Debates in Committee of the Whole on BILL OF RIGHTS (Article I) Chairman: CHARLES H. SILVA JUNE 1, 1950 • Morning Session At the outset it is proper for the spokesman of the com mittee to say that if there is any argument as to form or CHAIRMAN: The committee will come to order. The style your committee is willing to acquiesce to the “supreme subject at hand is Standing Committee Report No. 20. What court,” or any other court here, that the Style Committee is the pleasure of the committee? Will the chairman of the shall rewrite it, as we feel that perhaps that distinguished Committee on the Bill of Rights care to proceed at this time body will be able to present it in a form that will be satis to explain the report to the Convention? factory to all of our authors here. So if you have any ob MIZUHA: Thank you, Mr. Chairman. jections on the basis of form or style, please state your CHAIRMAN: Mr. Mizuha is recognized by the Chair. objection, that it does not refer to substance at all, and then we can just have that in the record for the Style Committee MIZtJHA: I’m not going to take too much time. I believe to consider, and save a lot of time on argument. it is proper at this time, with deference to all the attorneys in the Convention here, that it is well for us to review the Likewise there are some points here which the Commit thoughts of our Founding Fathers at the time they established tee on the Bill of Rights would like to add to the various sec the Federal Constitution. At that time there were 13 colo tions and, when the time comes in the consideration of the nies, who were afraid of a strong central government, and individual sections, certain additions as suggested will be because of their fear of the central government overrunning brought forth, brought before the Committee of the Whole. the rights of the people in the states, they drew up a list of At this time, Mr. Chairman, in order to start the ball rol prohibitions against the Federal Government which was in ling, I move for the adoption by the Committee of the Whole corporated into the Bill of Rights, the first ten Amendments of Section 1 of the Bill of Rights. of the Constitution. And we must be keeping that in mind an we discuss our Bill of Rights at this time; that the Bill of HEEN: I rise to a point of information. I note that this Rights of the Federal Constitution was a prohibition against matter is pending on a committee proposal, together with the Federal Government; and the 13 colonies when they or the report upon the committee proposal. Just wondering ganized themselves into states had their own Bill of Rights whether or not the record shows that this committee pro which was a prohibition against the state government. We posal passed first reading. in Hawaii, over the past 50 years, had our Organic Act which served as our Constitution, but all the prohibitions against CHAIRMAN: Will the Clerk - - It has passed first read the Federal Government listed in the ten Amendments of the ing, as been informed by the Clerk. It’s on second reading Constitution were prohibitions against the government of the now, Senator. Territory of Hawaii. HEEN: Very well. We have often heard the remark made that why should we have a Constitution enumerating certain rights? The reason MIZUHA: In order - - I withdraw that motion tempora is that when we become a state it must be written into our rily. I will move that the Committee of the Whole consider State Constitution certain prohibitions against state actions Committee Proposal No. 3 by individual sections. in behalf of the people. Over the years the Federal Govern DELEGATE: Second that motion. ment has found that it must limit state action, and as a re sult of that, after the Civil War we had three basic amend NIELSEN: I second the motion. ments, the Thirteenth Amendment, the Fourteenth Amend CHAIRMAN: The Chair suggests that Standing Committee ment, and the Fifteenth Amendment. The Thirteenth Amend Report No. 3, Section 1, that that first section be discussed, ment, as you know, abolished slavery. The Fourteenth then if it’.s immediately approved we go on to the next sec Amendment contains three basic prohibitions against state tion. Will the members of this Convention turn to Committee action. First of all, that the rights and privileges of the Proposal No. 3, Exhibit A, Partial Committee Proposal on citizens of the various states shall never be abridged by the Bill of Rights, Article - - Bill of Rights, Section 1. Any the state; second, that life, liberty and property shall not discussion on Section 1? be taken away without due process of law by the state; and third, that no state shall deny equal protection of the laws. MIZUHA: I move for the adoption of Section 1. Then we come to the Fifteenth Amendment, which states DELEGATE: Second the motion. that no person shall be denied the right to vote because of race, color, or previous condition of servitude. CHAIRMAN: The motion has been made and seconded that we adopt Section 1 of Exhibit A, Bill of Rights. Ques With that background, your Committee on the Bill of Rights tion? All those in favor say “aye.” Contrary minded. endeavored to write into the Constitution of the future State Unanimous. of Hawaii certain rights which would accrue to all of the peo We’ll now go on to Section 2. ple of Hawaii, and they are presented to you in Committee Proposals No. 3* and No. 4. MIZUHA; I move for the adoption of Section 2, and at this time I would like to ask that the Chair recognize Dele *For draft of CP No. 3 here under discussion, see Appendix. gate Larsen of the Bill of Rights Committee, who has cer 2 BILL OF RIGHTS tam thoughts to express to the delegates as a whole, and CHAIRMAN: Delegate Heen’s recognized. who has a proposed amendment. And I move for the adoption HEEN: I have a printed copy of this proposed amendment of Section 2. before me. “However, these rights cannot last unless the NIELSEN: I’ll second the motion. people recognize corresponding obligations and responsi bilities.” Just wondering whether the word “endure” instead CHAIRMAN: The motion’s been made that we adopt of “last” would be a preferable word. Our rights cannot Section 2. Will - - Delegate Larsen is not present. endure unless the people recognize corresponding obliga LARSEN: No, right here, right here. tions and responsibilities. CHAIRMAN: Oh. You care to have the floor, Delegate CHAIRMAN: Wouldn’t it be a matter for the Style Com Larsen? Because after all you’ll speak for yourself. mittee, I mean as far as that’s concerned, the word “last” and “endure”? LARSEN: No, I’m speaking for the committee. Yesterday MIZUHA: The committee’s willing to accept Senator when the committee met I said I didn’t want to make this amendment to Section 2 unless we had the majority of the Heen’s suggestion. I believe it’s a more appropriate word committee with us, and the majority of the committee asked after consideration here and we’ll defer to the Judge’s recommendation. me if I would not speak for myself, but speak for the com mittee. CHAIRMAN: All those in favor of accepting the word “endure” in preference to the word “last” signify by saying CHAIRMAN: I mean you gained the floor. “aye.” LARSEN: Why, thank you. CASTRO: Point of information, please. This is the first time I’ve heard of this amendment, and I’d appreciate it if CHAIRMAN: Someone suggested that you be given the it were read again slower so I could write it down before floor. we discuss it. LARSEN: This has been discussed at some length, the CHAIRMAN: You’d like to be recognized before you do question of how can we maintain rights. And the question that? The Chair recognizes Mr. Castro. of maintaining these rights was what we are all after. In going back over many constitutions, we called attention for CASTRO: I’m sorry, I thought you recognized me. instance to the early constitutions wherever rights were MIZUHA: I shall be happy to read the amendment, as mentioned, and also recognized the thought that unless there suggested. “However, these rights cannot endure unless were obligations with these rights they became lifeless. And the people recognize corresponding obligations and respon the threat today was that we forget the simple principle that sibilities.” with rights, in order to maintain them and keep them, we DELEGATE: Again. must have obligations. I’ll just read one of these early - - the State Constitution of Massachusetts. In three of its MIZUHA: “However, these rights cannot endure unless sections, it calls attention, but in this one that’s more like the people recognize corresponding obligations and respon Section 2 than any other, I read as follows: “Each individual sibilities.” in society has a right to be protected by it in the enjoyment CHAIRMAN: The only change is the word “last.” Delete of life, liberty, property, according to standing laws.” He the word “last” and insert in lieu thereof the word “endure.” is obliged,” in the same section, “consequently, to contribute his share to the expense of this protection, to give a service, MIZUHA: I move the previous question. and equivalent when necessary’ and so on; and another ASHFORD: I move to amend the amendment by striking section that tells about how he shall maintain temperance, out the word “However” and the comma following it. industry and frugality for the good of the state. In one other, I just want to mention just a report that I PHILLIPS: I second the motion. think you all have, but I just want to remind you how this CHAIRMAN: Well, there’s a motidn made to delete the growing tendency has been upsetting the rights which main word “However,” and insert in lieu thereof - - tain freedom. In society, there are disquietingly large number of groups and people who look upon the state as a MIZUHA: Will the - - Mr. Chairman, I’d like to ask kind of fairy godmother. Rights cannot last unless people Miss - - delegate from Maui, a question. Isn’t this a ques make a corresponding contribution of obligations and res tion of style? ponsibilities on which rights must be built and maintained. ASHFORD: I think it is, but I also think “endure” as a The committee, therefore, felt it would actually enhance substitute for “last” is a question of style. what we mean by Section 2 On rights if we add this sentence at the end, “However, these rights cannot last unless the MIZUHA: That is correct, but in order - - the delegate people recognize corresponding obligations and responsi from fourth district did not think it was a question of style, bilities.” And I would like to move that we have that as an That is why the committee did acquiesce to his suggestion. amendment to Section 2. However, inasmuch as the delegate from Maui believes it is a question of style, we are willing to just acquiesce to CHAIRMAN: I would suggest - - the Chair suggests that her remarks and let the Style Committee handle the matter. you make the amendment and discuss the amendment after you make the amendment. TAVARES: Before you move the previous - before the previous question is seconded, I’d like to ask another ques DELEGATE: I’ll second that amendment. tion. It is my understanding, and if I’m wrong I’d like to be HEEN: Mr. Chalrman. corrected, that the expression “all persons are born free from political oppression,” which is a rather unusual wording CHAIRMAN: Has the amendment been read? for that clause, means really that they’re born with the right HEEN: Mr. Chairman. to be free. That’s the way I read it. Is that correct? JUNE 1, 1950 • Morning Session 3 LARSEN: If I may answer. That was discussed at length, explain that those of us who are citizens born in this state and the words “all men are born free and equal” is so are oaly free from political oppression, and not from eco obviously wrong, and what the meaning of this clause was, nomic oppression? they are born free of political oppression, was the reason for trying to get the words into what the meaning had be MIZUHA: Certainly the Committee on the Bill of Rights come. That wa&the reason for the change. did not have the kind of thoughts expressed by the delegate from the fifth district. FONG: Taking up from there, I’d like to ask the com mittee why did they put the word “from political oppression”? MAU: Well, then, if that is the answer to my question, Now, I can visualize that persons may be free from economic why not leave out - - oppression, from social oppression, why do we restrict it CHAIRMAN: Everybody born a millionaire. just to political oppression? I’m afraid that if you put this word “political,” it more or less excludes ecOnomic, social MAU: Why not leave out the word, the expression and other things. “political oppression,” and have it carry its general mean ing as it is in the Federal Constitution? LARSEN: Well, the committee, alter considerable dis cussion, felt the only thing a state can promise is freedom MIZUHA: In defense of the Section 2 as it stands at the from political oppression, and we didn’t want to put in the present time, I believe it was the belief of my committee statements that had been made so many times about being that the words “political oppression” were not intended to born free and equal. A child born into a drunkard’s home limit it entirely to the political field. It is, if we study the or into a feeble-minded home is certainly not born free and section in its entirety, is a section on inherent rights, and equal. And the idea was to put into our State Constitution the expression “political oppression” was inserted, and we only those things that a state can be responsible for. And I could consider it as being mere surplusage in this statement think that has become the general meaning of this section. of political - - of this section on inherent rights. Certainly the Federal Constitution has that famous phrase, “all men FONG: Well, it may be the general meaning of it, but are born free and equal,” or something to that effect, and I’m afraid that by putting political oppression in here and the expression “political oppression” here was added for not mentioning the other things which probably - - I feel emphasis maybe, but primarily to show, as Delegate Larsen that we should be free from economic oppression, I feel has expressed, that today because we are - - some of .us are that we should be free from social oppression. Now by born in homes that are handicapped and feeble-minded and putting in just political oppression, I’m afraid we’re limiting other illnesses, that perhaps we are not born free, to the it a little too much. Now, what is the committee’s thought general term expressed, and equal. on that? LEE: Mr. Chalrman. LARSEN: Well, the thought, of course, was that’s the only thing a state can promise. However, if you read the MAU: Mr. Chairman, I have not yet - - next, “They shall remain equal in their inherent rights,” CHAIRMAN: Senator Lee. that a state can only promise certain - - a state can’t promise that you’re free of economic oppression. MAU: Mr. Chairman, this is an answer to my question, I have not yet completed my - - FONG: Now if we’re going to limit it just to political LEE: Yes, will Delegate Mau yield to an expansion on oppression why put it in? that same point. I’d like to state that the committee was LARSEN: Because that’s the only thing a state can not unanimous on this particular clause, but as far as I was promise, and if we are free of political oppression, the concerned, on several of these I had been absent, as you other things become natural. know, in going to Washington. I’d like to state that, however, I understand the philosophy back of this clause, which is FONG: To me this seems like a curtailment of our inherent particularly in the mind of one of our delegates on rights, ‘a curtailment of other freedoms. the committee, Delegate Larsen, on the feeling, from a LARSEN: May I ask the speaker what other things a medical standpoint, from other personal standpoints, I state can promise? suppose, that the idea that men are born free and equal is a fiction. However, I had pointed out to the committee that PORTEUS: It can promise freedom from religious it is a philosophy that is expressed, an ideal which the U. S. persecution. Constitution has propounded and has proved to be one of the LARSEN: That’s already promised down below. shining lights characterizing our American democracy as compared with the other nations. I, myself, can see the point CHAIRMAN: That would be political. raised by Delegate Fong. I think it would be a limitation. LARSEN: They’re not born free of religious, economic, And I believe that the section on the - - on this section here or other oppressions; but they can be born free from poli on the inherent rights, which the subcommittee of the State tical oppression. I don’t believe there is anything else you hood Commission had proposed, would be more satisfactory. can be born free of as far as the state’s concerned. I’d like to state that at this particular time that I believe those points raised by Delegate Fong and Delegate Mau are MAU: I wonder if the chairman or the last delegate who - - could be answered by the adoption of the clause contained spoke in behalf of the Committee of the Bill of Rights is in the Model Constitution. announcing a political philosophy when he states that people may not be born free of economic oppression. As I under DELEGATE: [Part of speech not on tape.] . . . free and stand it, the present national administration is charged in equal, free and independent. some quarters as sponsoring what they call the welfare KELLERMAN: May I speak to that point please? state. Some of the more vigorous opponents call it the trend towards socialism. Is that thought in the minds of MAU: I have not quite finished my - - I wonder whether the members of the Committee on Bill of Rights when they it be wise to go to another portion of it or to stick to this 4 BILL OF RIGHTS one sentence. Would the Chair desire to rule on that consent of a detached, unorganized group of individual human matter? It would be less confusing, I think, if we stuck to beings; each having his complete freedom and independence; this first sentence in Section 2 of the proposal. each agreeing with each other to renounce certain of those complete freedoms and Independence for the benefit of ob CHAIRMAN: Right now there’s nothing before the Con taining the protection and security of others in a group. vention but discussions. The words “free and equal” relate directly to that philosophy MAU: Yes. and that premise. But in denouncing or in giving up certain of those com CHAIRMAN: No motion has been put as yet. plete freedoms of the individual for protection and security, MAD: That’s correct. But I want to get to the Chair they were giving up politically, they were forming a political this thought. I have some other questions - - organization. They were not forming just an economic or ganization or a social organization. As we saw it, they were WIRTZ: Point of order. giving up certain of their - - a certain degree of their in MAD: - - to ask about other sentences. herent rights for the greater protection and security from the group. They organized themselves politically. There CHAIRMAN: State your point. fore, we thought the Constitution itself is not an economic WIRTZ: My point of order is: the motion has been put document, it is not a social document, it is a political to adopt Section 2, and that motion has been amended, I document. And it declares in a political document that mean the section has been amended by another motion. men are born free. It seems to me a natural conclusion There is a motion before the house. that it means free politically. It is expressed in a political instrument, not in a social or economic instrument. MAD: What is the - - If the amendment is to add a new In order to make It clear that we felt the intention was sentence to the - - political and also to make it clear that we do not believe CHAIRMAN: One motion is to delete the word “last” and that all people are as a matter of fact born free —we have add the word “endure,” and another motion to amend that seen them not born free and equal in too many circum mption was to delete the word “however.” stances—that we were simply clarifying the meaning of a general term which has been held up as an impossible MAD: Well, I would like to leave it to the Chair which statement of a dream, and very far from actuality, if you is the best procedure to follow, so that we won’t be all mean freedom in all respects. It was for that reason that confused. Shall we take up these amendments and then it was defined, “freedom from political oppression,” and later on ask questions on other portions of Section 2? that’s what we understood in the actual fact the freedom to CHAIRMAN: Well, what is the pleasure of the Convention? mean. Now if you are adverse to putting in that definition, on A. TRASK: I move that we take this first sentence first the feeling that it may be misconstrued, or will not have and then come to the second sentence, and I ask at this time this explanation, will not know what we’re driving at, or that the movant for the amendment, Doctor Larsen, defer feel that we may be taking away from a basic tenet of his motion until we’ve first dealt with the first sentence. American political thought, I don’t think the committee I do think with the other delegates who have talked that the would feel, well I don’t think they would insist upon putting first sentence is charged with a lot of matters that should it in. I don’t think they feel the matter that strongly. It be explained. was an attempt to be realistic and to define the term as we I for one want to know whether or not there’s been any saw its historical, philosophical and political background. judicial determination of the word “political oppression” and its implications. We’ve heard from the learned doctor MIZUHA: I believe that Delegate Kellerman has ex say and cite the Constitution from the colony of Massachu pressed the philosophy of the committee. It was - - there setts, but we have not heard whether there has been any was nothing in recommending Section 2 to change the basic, judicial determination of the word “political oppression” American philosophy with reference to inherent rights, and which Delegates Fong and Mau are bothered with. we are agreed that it’s a question of style, and anything that the Style Committee wishes to bring forth with reference CHAIRMAN: Would Delegate Larsen desire to withdraw to this language as to what our inherent rights are, that all his motion? men are born free and equal, the committee will be willing .MIZ UHA: With the consent of the chairman I’d like to to acquiesce to that point, and I make that point very clearly have Delegate Kellerman from the Committee on the Bill of for the record, for delegates from the fifth district, both Rights make a point here, and then the Chairman of the Mau, Fong and Trask, that we are not changing that basic Committee of the Bill of Rights will make a statement which philosophy upon which our government was founded, as to will clarify the whole situation. the rights of human beings. I think you should be agreed on that point. CHAIRMAN: Well, the Chair will suggest that we continue as we’ve done. Kellerman is recognized. CHAIRMAN: Is there any other delegate? KELLERMAN: I would like to speak to you just a moment MAU: I think that the subject matter we are discussing on the reasoning back of changing the words “free and equal” is not just merely a matter of form or style. It goes right to “free from political oppression and equal.” As you all to the heart of a very, very important situation; of a very know, when the Federal Constitution was adopted, it was important provision in the Constitution of the future State very largely based upon the philosophy expressed by Rous of Hawaii, so that we could not very well agree with the seau’s Social Contract. That philosophy was based upon the Chairman of the Bill of Rights Committee that this phrase premise that men lived free and individually in a totally “political oppression” could be left to the Style Committee unorganized society, in fact they did not live in a society. to change. I think it is so fundamental that this Convention The world apparently in its beginning, or whatever original must deal with it. As my understanding, the explanation organiz4tion was ever created, was made up by the voluntary made by Delegate Kellerman, the committee itself would JUNE 1, 1950 • Morning Session 5 have no particular objection if the Convention felt that if KELLERMAN: It’s a matter of history largely, using the phrase might be misinterpreted, that that clause be left the two terms. We have - - they’re both taken from the out. Am I correct in that explanation? Federal Constitution. MIZUHA: That is clear. CHAIRMAN: Will you yield the Chair, Mr. Roberts, to Mrs. Kellerman? MAU: Is that so? KELLERMAN: I was answering, trying to answer Mr. MIZUHA: That is clear. Roberts’ suggestion. The “law of the land” is a - - it’s a MAU: Then I would suggest that we amend the first historical term used in connection with that provision in sentence of Section 2 to read as follows: “All persons are other constitutions. “Due process of law” is the historical born free and equal in their inherent rights.” Now, if that term used in the Federal Constitution in connection with the is satisfactory with the committee, I suggest that after we deprivation of life, liberty and property. They mean the dispose of the motion and two amendments before the Com same. I presume they could be put together, and you’d get mittee of the Whole, that we go into the first sentence later. exactly the same constitutional result. It’s just a matter That is just a suggestion. of style plus the historical reference. They are both terms Now, I want to make this clear that I don’t believe that that are used in practically every constitution. the explanation made as to the effect of the Federal Consti tution being purely a political document is completely DELEGATE: Mr. Chairman, I would - - correct. From all the decisions of the Supreme Court of the United States they have, out of interpretation, dealt with CHAIRMAN: If there is no amendment offered, the Chair would suggest that I put the motion. All those in favor of the economic and social life of the nation. And in that res Section 3 as written say “aye.” Contrary minded. Section pect has taken it out of the field of purely politics, and I 3 is passed. mean science of government. And also, as I understand, all the constitutional authorities DELEGATE: Of course, Mr. Chairman, that’s with the have made the statement time and time again that the Fed understanding that the “e n” is eliminated from the final eral Constitution is a living document, so framed that it draft. can meet all of the changing times; and so when we go back CHAIRMAN: This is for approval, only for approval. to explanations to the time when the Federal Constitution Section 3 has been approved by the committee. was drafted, and to the time when they, some of the propo nents at that time of the then first draft of the Constitution, BRYAN: I’ll move the adoption of Section 4. in stating that it was a purely political doctrine, that phi DOWSON: I second the motion. losophy has changed and broadened as we have come down through the years. CHAIRMAN: The motion’s been made that we adopt Section 4. Open for discussion. Hearing no questions, the MIZUHA: Mr. Chairman, we have to answer Delegate - - I’ll put the motion. All those in favor of adopting Sec Mau - - tion 4 say “aye.” Contrary minded. Section 4 is carried, MAU: Very well, I - - unanimously. Now proceed to Section 5. MIZUHA: - - and, I believe all this delay in that matter need not be confined to speechmaking on the Federal Con BRYAN: Mr. Chairman. stitution itself. We have to answer him, and we’ll have, and I ask at this time for, a short recess to prepare Section 2 WOOLAWAY: Mr. Chairman. for the - - CHAIRMAN: Mr. Bryan is recognized, he’s the motion CHAIRMAN: Well, the Chair would suggest, I think the maker for this committee. amendment that Mau suggests is only the deletion “from BRYAN: I move the adoption of Section 5. political oppression” and remain. Delete those words and you have “all persons are born free and equal in their DOWSON: I second the motion. inherent rights.” Is that the amendment? CHAIRMAN: The motion’s been made that we adopt MAU: Yes, but we’d be happy to get together with the - - Section 5. MIZUHA: Yes, I believe that the five minute recess in order - - until - - AKAU: In number five here, I’d just like to say that, very briefly, there has been some discussion through the DELEGATE: I second the motion to recess, Mr. Presi press that President Truman may possibly recall the rep dent. resentative of United States, the missionary, or whatever you call the person who represents us, from the Vatican. CHAIRMAN: Recess is declared for five minutes. Now, in view of that, whether that means anything or not I’m not here to say, but I’m wondering, in this particular (RECESS) section, has there been any delineation of the church and the state? And I’d like very much for one of the members [Part of the debate was not taped. Delegate Heen moved of the committee to clarify that. to defer Section 2. A motion was made to adopt Section 3.] MIZtiIJA: In answer to the delegate from the fifth district, ROBERTS: As I got the statements made by the previous the Section 5 incorporates the first clause of the first amend two speakers, the meaning of the term “by the law of the ment of the Federal Constitution, and I believe the separation land” is the same as, or indentical with, “due process of of the state and the church has already been clarified by law.” Would there be any objection to using the term “due decisions of the Supreme Court, and it would be well for process of law”? It’s a question as to - - this future State of Hawaii to follow that clarification. BILL OF RIGHTS 6 LEE: I might add to that that this speaks merely to the meanors. I would like to have this - - action on this deferred establishment of a religion, not to the matter of separation until later. of state from church, which is an entirely different subject. DELEGATE: Second it. CHAIRMAN: All those in favor of approving Section 5, HEEN: I think some thoughts really should be given to adopting Section 5, say “aye.” Contrary minded. Carried this particular section. I so move that action upon this unanimously. section be deferred until later in the calendar. Section 6. DELEGATE: Second the motion. BRYAN: I move the adoption of Section 7. A. TRASK: Mr. Chairman. VOICE: No, no, Section 7. Section 7, Mr. Chairman. CHAIRMAN: All those in - - MIZUHA: Section 7, Section 7. A. TRASK: Mr. Chairman. DELEGATE: I second the motion to adopt Section 7. CHAIRMAN: Speaking on the deferment? TAVARES: I - - this went so fast on the last section, I A. TRASK: No. didn’t get a chance to speak. I do not want to be understood CHAIRMAN: All those to have it deferred later on in the calendar say “aye.” Contrary minded. Carried. CHAIRMAN: On Section 6? MIZUHA: May I make a statement with reference to TAVARES: On the religion. I do not want to be under Section 9? Section 9 is-- stood, and I don’t want this Convention to be understood as agreeing with the last speaker that it does not provide for CHAIRMAN: Section 9 has been deferred to later on in the separation of church and state. I believe that’s exactly the calendar. what it does, and I don’t think it should go down in the record MIZUHA: Yes, but, just a - - with the permission of the unchallenged. Chairman, in order - - the reasons for deferment. CHAIRMAN: Well, I think that was pointed out by the CHAIRMAN: You’re out of order, unless you would like chairman of our committee. to go on to Section 10. MIZUHA: Definitely, we - - I believe the committee CHAIRMAN: The Chair will rule that - - agrees with the point of view of delegate from the fourth district. The Supreme Court in its interpretation on all A. TRASK: Mr. Chairman. I would like to have - - matters pertaining to religion has definitely, in interpreting CHAIRMAN: - - Section 9 has been deferred. the first clause of the first amendment, has brought that out in all of its decisions. A. TRASK: I would like to have a reconsideration of Section 8. There is a recent decision of the Supreme CHAIRMAN: It’s not before the house, it’s Section 7. Court - - MIZUHA: Section 7. CHAIRMAN: You’ll have to move for reconsideration CHAIRMAN: We now proceed with Section 7, No - - first -- MIZUHA: Section 6 will come up tomorrow. Section 6 A. TRASK: Yes. will come up tomorrow, inasmuch as it hasn’t laid on the CHAIRMAN: - - and after it’s been considered then you table for four days on Committee Proposal No. 4. can discuss. CHAIRMAN: All those in favor of adoption of Section 7 A. TRASK: Yes, I’d like to move for reconsideration of say “aye.” Contrary minded. Carried unanimously. Section 8 at this time. BRYAN: If I may, I move the adoption of Section 8. DELEGATE: Second the motion. DOWSON: I second the motion to adopt Section 8. DELEGATE: Don’t you think we should go through it and CHAIRMAN: Motion’s been made and seconded that we get as many of these sections okayed, and then go back for adopt Section 8. Now open for discussion. Hearing no any reconsiderations so we’ll - - discussion, the Chair will have to put the motion. All those CHAIRMAN: I’ll have to put the motion as put to the in favor of adopting Section 8 say “aye.” Contrary minded. Chair. The motion has been made that we reconsider our Carried unanimously. action on Section 8. All those in favor say “aye.” Contrary BRYAN: It’s my pleasure to move for the adoption of minded. The ayes have it. Section 8 is now open for dis Section 9. cussion. DOWSON: I second the motion to adopt Section 9. A. TRASK: There has been just recently what appears to be a reversal in the historic stand of the Supreme Court CHAIRMAN: Same motion, same second. All those in with respect to this case. It involves a question of search favor of - - and seizures, and whereby a person need not have probable MIZUHA: I would like to call on the delegate from the cause to even get a search warrant before a search is made. fourth district. A question was raised as to whether Section I would like - - like the request made by Senator Heen, to 9 would provide for prosecution of a felony by information, have Section 8 deferred, if you please. as it is now in the Territory of Hawaii. Delegate - - I BRYAN: I think that the reason that our rules call for would like to ask the Chairman to recognize Delegate Heen. this delay on the table for four days is to preclude any HEEN: I have grave doubts that you can prosecute a necessity for deferment when it comes up for the Committee person by information, except in cases involving misde of the Whole. I would ask the delegates in the future to - - JUNE 1, 1950 • Morning Session 7 CHAIRMAN: The deferment is only to later on in the stitution, with an additional sentence with reference to the calendar, is what you asked, the deferment? detention of witnesses.” And that is why we have committee A. TRASK: Yes. Deferred in the same manner that reports. Section 9 has been deferred on the motion of Delegate FUKUSHIMA: I don’t believe the committee report is Heen from the fourth district. too clear. It says - - the only thing it says about 12 is CHAIRMAN: Later on in the same day. “incorporates the eighth amendment of the Federal Consti tution, with an additional sentence with reference to the MIZUHA: Again I would like to speak to Section 8 and detention of witnesses.” I would like to know - - Section 9. Both sections were taken from the Federal Constitution and if incorporated in the State Constitution CHAIRMAN: Would you care to have that sentence ex will naturally follow decisions of the Federal Supreme plained to you, the additional sentences? Court. Now - - FUKUSHIMA: Yes. I would like to know whether that A. TRASK: Will the - - was inserted there to take care of the 48-hour law that we MIZUHA: Now, if it is the desire of the delegates here have at the present time. to change the wording in the Supreme Court, in our - - the MIZUHA: No. The 48-hour law on the law of arrests wording in the Federal Constitution to our State Constitution was the subject of several proposals introduced by Delegates and then proceed from that matter, well it will take a long Trask and Trask, and at that time the committee voted that line of judicial decisions in order to settle the question of it was a legislative matter. However, it also voted that the search and seizures and what is covered in Section 9. That committee recognized that there were several instances is why I believe, and I think the committee believes so, where the law was abused, and perhaps this statutory law that if we follow the Federal Constitution as far as the of arrest of the Territory, if we become a state, should be State of Hawaii is concerned, then we will not run into the revised, and has so incorporated in this report, the last kind of difficulty that will be involved in our courts for a report. long, long time. CHAIRMAN: The Chair recognizes the fact. The Chair A. TRASK: I’d like to have an explanation of that second feels that since deferment has been asked on both of these sentence of Section 12, quote: “Witnesses shall not be sections, in all probability it will be accepted in its entire unreasonably detained or confined.” Now, why has the com ty, but for the courtesy of the members of this Convention mittee deemed that this second sentence was necessary? who asked for deferment, that we extend the courtesy to MIZUHA: I would not like to be a one-man supreme them. Section 8 has been as~ed for deferment until later court on the question here, but the unreasonable detention on in the calendar. All those in favor of having it deferred of witnesses specifically refers to witnesses who are picked until later on in the calendar say “aye.” Contrary minded. up with - - in connection with a felony and are brought down We’ll now go on to Section 10 - - 11. to the police station and held there for a long time and then, VOICE: Section 11. with the promise on the part of the police department to go easy with them and so forth, they are finally released. And CHAIRMAN: Section 11. that is also associated with the law of arrest in Hawaii. You BRYAN: I move the adoption of Section 11 as written. know you can arrest them for 48 hours on mere suspicion with reference to a crime. If a man is a witness to the crime, DOWSON: I move - - I second the motion for the adoption I - - the committee believes that he should not be kept at of Section 11. the police station for 24 hours, 12 hours, or 20 hours for CHAIRMAN: Same motion, same second. that matter, under our law of arrest. And this is a recourse for such witnesses to bring action on whatever the legisla MIZUHA: With reference to Section 11, we refer to ture will see fit with reference to statutory laws on any judicial circuits. Of course that will be changed by the course of action they may have if they are unreasonably Style Committee perhaps to conform with anything that the detained or confined. Of course, our word “unreasonable” Judiciary Committee reports out with reference to judicial is subject to definition by our courts, and we do not attempt circuits or districts here in the future State of Hawaii. at this time to write that definition in the Constitution. CHAIRMAN: Any questions on Section 11? All those in favor of Section 11 say “aye.” Contrary minded. Carried A. TRASK: I’d like at this time to have Section - - that unanimously. Section 12. second sentence, “Witnesses shall not be unreasonably detained or confined” of Section 12 stricken. And my reason BRYAN: I move the adoption of Section 12. for that is just plainly this. According to our law, a witness, DOWSON: Mr. Chairman. I-- as defined in our statute, is a person who is called to give testimony either for or - - for the plaintiff or for the de CHAIRMAN: Same motion, same second. All those in - - fendant, or for the government or for the defendant in a DOWSON: I second the motion to adopt Section 12. criminal case. He has the right to refuse to come unless his mileage or money is paid to him at the time he is CHAIRMAN: Any question on Section 12? Hearing no served with papers. This reference that the chairman of question, all those in favor of Section 12 - - the committee gives is a type of securing evidence which MAU: I just want to inquire of the chairman whether is not sanctioned at all and is no part of the law of the land this is - - this language used is the same as in the Federal at all. The policemen have exercised their right of bringing Constitution. people in, but people should get a good attorney and sue the police department. But that has no part in the Constitution MIZUHA: If you will read the report, Delegate Mau, on as such. Counsel is referring perhaps to an honored prac page two of our committee report, it says in Section 12, tice on the island of Kauai, but as far as I know we don’t “incorporates the eighth amendment of the Federal Con- have that in Honolulu much. 8 BILL OF RIGHTS The question, therefore, is a substantial one of witnesses or civil, as Judge Heen has suggested. That is a distinctive as defined by our law, which is “a person called,” and he situation. If the committee, I think with reference to that must be paid and he can defy the police or any other author principle of ne exeat being the state shall not detain, or any ity. So I do not see where this is pertinent. person has - - shall not have the power to detain any other The second reason is this: by having a witness who is - - person for any litigation. I think we should defer action on who responds to a subpoena alter he is paid, he comes to Section 2 until your committee would consider that collateral court. If you’re going to leave that section in, that he’s not important right, together with Section 12. And so, I would unreasonably detained. “Unreasonably detained” may be move, therefore, perhaps at this time, in view of the remarks considered from many angles. He may be wanted - - want to of the chairman, to defer action on Section 12. get married the next day. If he’s going to be called in a suit ASHFORD: May I state my view of the writ. - - that may reasonably go over three or four months, his mar riage would have to be detained. I think that’s unreasonable. CHAIRMAN: You may proceed. Now, that’s from the witness’ standpoint. ASHFORD: - - of ne exeat? The writ is ne exeat regno, From the litigant’s standpoint, some cases may be - - may and it used to be in existence here. It was forbidden by our have interference with many other things. A juror, or sev Organic Act. That writ was not to detain witnesses, it was eral jurors, may be ill; the judge may be UI; counsel may to forbid a man from leaving the realm. be ill; the defendant may be ill. Now, what is unreasonable? You will be throwing a very unreasonable sentence, as I see CHAIRMAN: Senator Heen is recognized. it, into a very, very important part of the Constitution, HEEN: We do have in the statute a provision which which has to do with the question of his trial, with the ques reads, “The Attorney General or other prosecuting officer lion of detention, with the question of bail, with the question may require of any judge of a court of record, at chambers, of fines. I think, therefore, that it has no, no, no reason to that witnesses material for the prosecution of any criminal be in, and I renew my motion that the second sentence be indictment preferred, or about to be preferred, be bound by stricken. recognizance to appear and testify at the trial of such in HEEN: I rise to a point of information. I’m wondering dictment, or that such witnesses be committed to jail for just what was intended by this sentence. Was it intended that purpose, and it shall be lawful for the judge so applied to apply to criminal cases where as I observed in other to, to make such order.” jurisdictions, witnesses have been arrested and detained, MIZUHA: Thank you. held for criminal cases? CHAIRMAN: All the discussion? The Chair will now CHAIRMAN: That’s right. Felonies, misdemeanors. put the motion. Shall Section 12 be adopted as written by HEEN: I don’t think this was intended or is intended the committee? for civil cases at all. HEEN: I think, for the purpose of clarity, that this IVIIZUHA: That is correct. sentence might be amended to read “Witnesses in criminal cases shall not be unreasonably detained or confined.” HEEN: By having it in the Constitution in this language, it implies that a witness may be imprisoned or kept in jafl CHAIRMAN: Then probably deferment is in order, if in order to secure his appearance, especially in criminal someone second the motion for deferment, we’ll be glad - - cases. Otherwise, you may lose a witness who leaves the DELEGATE: I second the motion. jurisdiction and you cannot prosecute a person who is ac cused of crime. CHAIRMAN: The motion has been made to defer this section till later on in the calendar. All those in favor say MIZUHA: The last sentence here, it started off with the “aye.” Contrary minded. Carried. first sentence with reference to excessive bail, and we think Now proceed to Section 13. of bail in terms of all criminal offenses. Delegate from the fifth district has raised a fine point. Perhaps that is a BRYAN: I move the adoption of Section 6 - - 13 as written. statutory matter that should be covered. However, it was DOWSON: I second the motion to adopt - - in line with his thinking with reference to other matters, with reference to our laws of arrest and detention, that CHAIRMAN: The motion, same motion, same second. this sentence crept into the section. DOWSON: - - Section 13 as written. There was also the thought that some of our eriminal - - witnesses were confined together with criminals and the CHAIRMAN: Section 13 is now open for discussion. objection was raised to the practice on the part of the police Hearing no question, all those in favor of adopting Section to place them in cells with other criminals when they were 13 as written by the committee, say “aye.” not criminals themselves. I believe the Territory at the ASHFORD: I have a question there. Why should we put present time has a statute where witnesses in capital cases in the provision, “and a reasonable amount of the property can be detained. I may be wrong on that point. Maybe some of individuals may be exempted from seizure or sale for of the practicing attorneys here in town can verify that payment of any debts or liabilities.” situation or that section in our law where witnesses in capital cases can be detained. CHAIRMAN: To keep it from going broke. A. TRASK: I’d like to supply that bit of information. ASHFORD: Isn’t that properly a legislative matter, Many years ago, I think it was 1865, one of the .early statutes solely? was, there - — MIZUHA: Well, that is a reason why it was inserted for CHAIRMAN: I don’t remember that far. the - - as a basis for legislation that will exempt a certain amount of property from seizure. I believe there are states A. TRASK: - - shall be no writ ne exeat. Ne exeat means in the Union even at the present time that provide for im that you shall not detain any person for any trial, criminal prisonment for debt and, likewise, it was felt that If a man JUNE 1, 1950 • Morning Session 9 had a judgment against him, he should have the kind of a man is required to pay alimony and doesn’t pay it, he exemption continued as he has under present statutory law. goes before the court and the question is not only whether And that would be the basis for this provision. he shall or can - - shall or shall not pay, but whether he ASHFORD: Mr. - - can pay and refuses to do so unreasonably. And that is always the question before the divorce court. KAUHANE: Mr. Chairman. Because that social obligation that he assumes from CHAIRMAN: She still has the floor, she just asked a marriage is so great, so important to the state, that it has question. to be taken care of in a special manner. And it’s not con sidered a debt, it is an order of the court, which he - — if ASHFORD: May I call to the attention of the chairman he doesn’t pay, he doesn’t — - can’t be punished for, unless of the Bill of Rights Committee that it is just an authoriza he unreasonably refuses to do so. And if he does, and it’s tion, an authorization which would exist without its expres taken up on appeal and the Supreme Court finds that the sion. In other words, a reasonable amount of the property court was wrong in saying that he could pay and refused of individuals may be exempted from seizure and sale. unreasonably to do so, then it’s reversed. It has no rela And is it not true that it could be exempted from seizure tionship to this type of provision, and I don’t think that or sale without writing that into the Constitution? should be affected in any way. MIZUHA: I don’t believe so. I may be wrong. Probably SHIMAMUR~A: The courts have acti~ally construed such if it was not so stated in the Constitution, the legislature a section, and have held that such a provision is not a might go ahead and make all property subject for attachment prohibition against the court’s imposition of a fine or im for the payment of debts. If the states in the Union, as we prisonment for contempt. However, I believe for clarity’s know, can provide for imprisonment of debts, certainly I sake that the committee report should include a statement believe in those states there’s no exemption at all. And to that effect, that it is not intended that this section shall this is a constitutional basis for legislation. And I believe prohibit imprisonment on contempt. provision in the Constitution here would be a safeguard from any future legislatures from going astray. Of course, CHAIRMAN: Is that in your report? this is not a mandatory provision at all, but the provision MIZUHA: I believe the committee report originally as written would serve the basis for legislation to that effect. stated that it was not intended to prevent imprisonment for KAUHANE: I’d like to ask the committee a question. contempt of court. Whether Section 13 protects an individual who appears be ANTHONY: As far as I am aware, there is only one state fore the divorce court and is ordered by the court to pay in the Union that has imprisonment for debt. Am I correct an alimony? Upon his refusal to pay an alimony, which I in that, Mr. Mizuha? contend Is a debt that he has to pay, the court then issues a contempt proceeding and sends the man to imprisonment MIZUHA: lam-- for failing to pay a debt which is legally termed an alimony. ANTHONY: Massachusetts. Whether this section protects the individual? MIZUHA: No, New Hampshire, I believe, is the state CHAIRMAN: The Chair agrees with you. The Chair that has imprisonment for debt. feels that in divorce cases a man is allowed to hang on to CHAIRMAN: Well, whatever it is, it’s just one state. his shirt. ANTHONY: However, I agree with the delegate from MIZUHA: The question was asked of the delegate from Molokai in regard to her statement as to the inclusion of Maui, Judge Wirtz, the question raised by delegate from what would more appropriately be a rightful subject of the fifth district. I believe we discussed that in the com legislation. Most states have a statutory provision for mittee with you, at that time. exemption against execution - - from execution of certain DELEGATE: A ruling from the bench. property. It arose chiefly in connection with the homestead laws. You’ll find throughout the Union, particularly in the KAUHANE: I couldn’t understand the speaker, whatever West, that homesteads are exempt. Now, it seems to me he said was only heard by himself, and those who are that we have never grown up in the tradition of homesteads around him. But I’d like to be enlightened as to the state such as they know them in the West, and we are perfectly ment he made with reference to my request for an answer, safe in letting to the legislature the preservation of existing whether the individual is being protected under divorce exempt ions. proceedings where he has to pay a legally termed debt In other words, this particular language: “A reasonable classified as alimony. And I also feel that if and when he amount of the property of individuals may be exempted from refuse - - fails to pay such alimony or debt, his property seizure or sale for the payment of any debts or liabilities,” may be seized and the court shall issue such order of that I am quite sure is not necessary to deposit a grant of seizure of his property for failing to pay a legal termed legislative power in the legislature to make such an exemp debt under the definition of alimony, and his property is tion. Therefore, it seems to me that if the Convention wants put up for sale for the payment of such debt. to continue the prohibition against the imprisonment for TAVARES: I don’t think that the question of a contempt debt, the section might very well end with the word “debt,” proceeding to enforce payment of alimony is usually cov putting a period after “debt.” The legislature would then ered by this type of provision. In fact, I know it isn’t. The be free, as it is under existing law, to make such exemptions theory of the contempt proceeding in a divorce matter is as it may choose, limiting garnishments, limiting the amount this: that married people have certain obligations to the of attachment, providing that household furniture will be family which it’s in the interest of the state to protect and exempt. I don’t think that this adds a thing to it, and it may preserve and enforce. And that when people go into the result in some confusion. marriage relationship, they cannot escape those - - some CHAIRMAN: You ask for deferment that later on you of those responsibilities by getting a divorce. And so when may make the proper amendment? BILL OF RIGHTS 10 ANTHONY: I would like to - - I would move that Section of the writ. This makes it perfectly clear that that power 13 be amended to read as follows: “There shall be no im resides in the legislature, not in the executive. prisonment for debt,” eliminating the next two sentences Answering my friend in the turban on my left, this would and a half. not in any respect interfere with the power of the federal government in case of a national emergency operating under DELEGATE: I second that motion. the appropriate section of the Federal Constitution to sus CHAIRMAN: Motion’s been made and seconded that the pend the privilege of the writ of habeas corpus by action of remaining - - “There shall be no imprisonment for debt;” the Congress. the remaining sentence, following sentence be deleted. All I have some doubt about the deletion of the committee’s those in favor say “aye.” Contrary minded. present language: “Nor shall the laws - - Nor shall the Since there is some doubt in the Chair’s opinion as to execution of the laws be suspended.” You’ll recall during this amendment, I would suggest that deferment of this the war period we enacted the Hawaii Defense Act, and that section be made to later on, and that the proper amendment had a very questionable provision in it, authorizing the be drawn for discussion by the Committee of the Whole. governor to suspend laws. Now traditionally that has been the great anathema of democratic processes. It went back MAU: So moved, so moved, Mr. Chairman. to the reign of George the Third, where George the Third CHAIRMAN: All those in favor of having this section endeavored to and did in fact suspend acts of the Parliament. deferred till later on in the calendar say “aye.” Contrary That’s why that language is found in many of the constitutions, minded. The motion has been made. Carried. Deferred. and I think we ought to go slow in eliminating that language We’ll now proceed to Section 14. from the committee’s proposal. I, therefore, think we should defer this until the delegates BRYAN: I move the adoption of Section 14. have had opportunity to consider the suggested amendments DOWSON: I second the motion to adopt - - of the committee’s own proposal. CHAIRMAN: Same motion, same second. MIZUHA: I presented this to the floor in deference to.the office of the Attorney General. And if the delegate from the DOWSON: - - Section 14. fourth district believes that this would not interfere with the MIZUHA: May I make an explanation of Section 14 - - kind of situation just mentioned, and prohibit the governor from acting in those cases as mentioned, in case of a dire CHAIRMAN: You may proceed. emergency when there was a plague or something like that, MIZUHA: - - and the recommendation from the office where he could suspend the laws so that the people could of the Attorney General with reference to Section 14. The return to a particular district, if it is his belief that this Attorney General’s office has recommended that we elimi would not interfere with the governor’s powers, then the nate the second clause of Section 14: “Nor shall the laws committee would like to see the proposal as is. But in or the execution of the laws be suspended.” They were deference to the office of the Attorney General I thought I afraid that in times of emergency, for instance; if there would - - we should present this for the delegates for was the bubonic plague here in Honolulu, and the governor consideration. and the legislature ordered the people out of the district, TAVARES: I believe that this section should be deferred and when the time came for them to return, the governor because I think there are other angles that we ought to dis could suspend the law to enable them to return to a parti cuss, perhaps some of us, without taking up all the time of cular district; this would prohibit him from doing so. And this Convention. I believe after discussion with the office there that it could be deleted from this section without any difficulty and with CHAIRMAN: Put in the form of a motion? out encroaching upon the intent of the writ of habeas corpus. TAVARES: One of the things that occurs to me, I’d like AKAU: I have read the report of the committee on Section to explain why, is this. In these days of the atom bomb it 14, stating that it comes from the Federal Constitution, may be too late if you wait for actual invasion before you Section 9, Article 1. Now then, the way it’s worded here, suspend the writ of a habeas corpus and do these other does this recognize or not recognize the right of a military things. We ought to consider the other angle, too, it may government to impose military government or rule upon be too late then. Under the Federal Constitution today, the civilian population, thus taking away the writ of habeas apparently there must be actual invasion or actual rebellion corpus? And then, in your last line, when you say “pres before you do this. Whether the danger of an atom bomb cribed by the legislature,” how far could the legislature go explosion or invasion here is such as to constitute invasion and how far would this power go? is an open question. I think we ought to discuss it a little further, and I move to defer. MIZUHA: When the Attorney General raised the question as to the deletion of the second sentence, I did say at that DELEGATE: Second. time that we could delete the last sentence also, so that the CHAIRMAN: The motion’s been made and seconded for section would read as follows: “The privilege of the writ deferment. All those in favor say “aye.” Carried. of habeas corpus shall not be suspended unless in case of We’ll now proceed to Section 15. rebellion or invasion when the public safety requires it.” BRYAN: It’s my distinct pleasure to move the adoption ANTHONY: I think it’s essential to preserve the language of Section 16 - - 15. that the committee has preserved, namely, “prescribed by the legislature” for this reason. Under the Federal Con DELEGATE: I’m afraid of a personal interest. stitution that expression is not found, and it took 50 years DOWSON: It is also my distinct pleasure to second the to discover whether or not the executive or the legislature motion. had the power to suspend the privilege of a writ. And it was only after Ex parte Merryman that it was found that Presi CHAIRMAN: It’s my distinct pleasure to announce that dent Lincoln did not have the power to suspend the privilege the same motion has been made by the same members. JUNE 1, 1950 • Morning Session 11 [Any] discussion, Section 15? All those in favor of Section able restrictions upon the right of the people to keep and 15 — — bear arms.” The committee had before it representatives TAVARES: I object to this railroading. This is a pro of various clubs, rifle clubs, gun clubs and so forth, to vision that I object to very violently. I think it’s utterly express their opinions about the present registration laws unnecessary, and I have not yet been shown satisfactory & the Territory. It had before it the representatives of the authorities to the effect that under this provision we can Honolulu Police Department, the Attorney General’s office, regulate with safety or we can be sure that our present laws and the City and County Prosecutor’s Office. And after on regulating of firearms will be valid. I think there ought careful deliberation on the subject, it felt that this provision to be extended discussion and we ought to be shown this. in the State Constitution would not prevent the State legis lature frpm passing reasonable restrictions on the right to CHAIRMAN: Well, the Chair would like to remind the keep and bear arms. delegate that there is no railroading. The motion has been put and the Chair will have to put the motion for discussion. ANTHONY: I think the chairman of the committee is You care to discuss the motion, you may. The railroads of correct in that. In the case of Robertson vs. Baldwin, 165 the territory have been dispensed with. U. 5. 275 —that arose under the Federal Constitution, and an act of Congress had prohibited the carrying of concealed TAVARES: But, Mr. Chairman, I think we ought to be weapons—that was upheld as not an abridgment of the Second given at least about two seconds to get on our feet before Amendment and I think there are many other authorities. the question is put. I think the only thing the delegate from the fourth district CHAIRMAN: The proper procedure is to put the question, wants to do is wants to have sufficient time to look into the then you get up and get on your feet. Do you want to ask for qdestion, and satisfy himself, which I think we all should do. deferment? You should ask for deferment, otherwise I’ll We shouldn’t hurry this through until we are satisfied that have to put the question. this is a correct application of the law. MIZUHA: Well, I think the chairman has been unfairly PHILLIPS: I’d like to ask the chairman of the committee criticized on this matter. a question. When you say “people” do you mean all the CHAIRMAN: I - - well, you can have your thinking, I’ll people or do you mean each individual in a state? keep to my thinking. 1VIIZUHA: Well, I believe it applies to all persons here TAVARES: Well, if I have unfairly criticized the Chair, in the territory. I apologize. PHILLIPS: To each individual or to them as a group? CHAIRMAN: I accept your apology. MIZUHA: I did not understand the question. A. TRASK: Let’s understand clearly. This thing, I don’t PHILLIPS: Well, you say, well, “the militia,” and then say it’s well greased, I think it’s a slick job. But it should the - - after the comma, “the right of the people to keep be done. The two militia men from Ewa over here are - - and bear arms.” Do you mean there the right of the indi got their particular duty. Other people have got their par vidual or the right of the - - ticular duty. Lawyers, I think, are somewhat handicapped today in getting on their feet. So, let us understand, I think CHAIRMAN: The individual; individual right. it’s only by way of getting this thing fully - - PHILLIPS: - - of all individuals? CHAIRMAN: The Chair never asked for a vote. The MIZUHA: All individuals. Chair just put the question, and the privilege is up to any of PHILLIPS: All individuals. the delegates to ask for deferment. CHAIRMAN: Individual rights, the Constitution is for DELEGATE: I think there ought to be a little time, Mr. individuals. What is the pleasure of the committee? Chairman, to give the handicapped attorneys some time to get on their feet. TAVARES: I’ll be satisfied if I ask - - if perhaps get CHAIRMAN: Well, I see two of them on the floor, in fact two or three more satisfactory answers in the record on 90 per cent of the time nothing but attorneys have been on this. It’s my understanding that under this interpretation the floor besides delegates, besides the other delegates, then, which we are to be considered as acting upon, if this pardon me. amendment - - if this provision is approved the legislature can by law provide for a registration act such as we have TAVARES: This is a serious question. It’s not - - it is today, at least in substance. of great moment. We have on our books today a law re quiring registration of firearms. I have asked a question. MIZUHA: That is correct. It was the understanding of I am not sure that the provision as now worded will permit the committee. our legislature or will - - to continue such a law in effect ANTHONY: Mr. Chairman. Just to fortify - - or will not render that law unconstitutional. I have been shown some authorities which are not conclusive. And I CHAIRMAN: Do you yield to a - think it’s well worth considering, because I think that is a TAVARES: I yield. very proper and necessary law. ANTHONY: The State of Massachusetts has an elaborate 1VUZUHA: I believe the delegate from the fourth district statute regulating the carrying of weapons, arms. The has raised~a good point. I would like to read from the Massachusetts Constitutional provision, Article 17, provides: committee report on Section 15. “Section 15 incorporates “The people shall have a right to keep and to bear arms for the Second Amendment of the Federal Constitution. In the common defense, and as in time of peace armies are adopting this language it was the intention of the committee dangerous to liberty, they ought not to be maintained without that the language should not be construed as to prevent the the consent of the legislature, and the military power shall State legislature from passing legislation imposing reason- always be held in exact subordination to the civil authority 12 BILL OF RIGHTS and be governed by it.” Under that constitutional provision, somewhat on the Interstate Commerce Clause, and inside the Massachusetts General Court for years has maintained the state, intrastate, we might need that power. If the one of the most up-to-date statutes in regard to the regis chairman says that is his understanding, I’m satisfied. tration and the carrying of firearms. I don’t think there’s MIZUHA: That is my understanding. any danger in that regard. CHAIRMAN: The Chair recognizes the Secretary of TAVARES: Well, Mr. Chairman, some of the authorities this Convention. I have looked at say that the provision of the Federal Con stitution and of many state constitutions was to be read in PORTEUS: Perhaps for clarity’s sake, we might agree the light of conditions existing at the time the constitution that if I’m in order, I’ll make the motion, that when the was adopted. In those good old days, when they adopted Committee of the Whole report is written, that it be pre these ancient provisions, many of which states do not even sented in such form as to show that it is the intent of this have them in their constitutions any more, the firearms body to permit regulation and registration of firearms in were considered as the musket and the - - some other things duding the forbidding of the having of such weapons as like that, old-fashioned firearms. Today, is the word arms bombs, machine guns and other automatic weapons of a going to be considered that way or are we going to consider similar nature. Now, if someone would second that motion arms as machine guns and everything else? We don’t - - I’m sure that we would perhaps dispose of this question. we want to have our legislature empowered to prohibit ANTHONY: I move that the section pass on the under entirely the possession of machine guns, except by govern standing - - is that before the house? ment officials, police, and so forth. We want them to be able to prohibit entirely the possession of atomic weapons, CHAIRMAN: It’s before the house. and various other things. And that should be made very DELEGATE: I second. clear here, because it’s not clear in the report as to what the word “arms” means. Does it mean we can only regu CHAIRMAN: On the approval of the - - Section 15 as late the possession of atomic weapons or machine guns, or approved as written by the committee. All those in favor does it mean we can utterly prohibit those? That is not of Section 15 as written by the committee say “aye.” clear, and I would like to make it very clear if we vote on Contrary minded. Carried unanimously. it that we have the right to prohibit entirely the use of that DELEGATE: No. type of lethal weapons. CHAIRMAN: No? You wanted to register your vote? BRYAN: I think it would clarify the record a little bit. As I recall in the committee when we discussed this, it was GILLILAND: I think that - - pointed out that there is a federal regulation concerning CHAIRMAN: Carried. automatic weapons and things of that nature that you spoke of. Also, that the committee felt in passing this that the GILLILAND: - - from the reading of Section 15 that it’s present method of registration would be allowed, if the leg the purpose of everybody that joins the national guard, so he islature so desired. Is that correct, Mr. Chairman? can carry arms with them. In other words, I take it from the wording here, the phraseology of this Section 15, if a MIZUHA: That is correct. man belongs to the national guard he can go around un HEEN: In construing this particular section you might molested with a gun. Well, I think there should be some take into consideration Section 24. modification in section about that, whether or not everybody has a right or only members of the national guard have the CHAIRMAN: It so pleases this Convention. right or who shall have the right to go around armed. HEEN: “The rights and privileges hereby. secured shall MIZUHA: I believe with reference to membership in the not be construed to justify acts inconsistent with the peace national guard, you are subject to military law as imposed or safety of this state.” I’m wondering whether or not some by the national guard and they will limit the right of their thought has been given - - further thought has been given to men to bear arms. an amendment of that Section 24 so that it might read: “The rights and privileges hereby secured shall not be construed SAKAKIHARA: During the 1949 session of the legislature to be absolute.” a bill was sponsored by the Police Department of the City and County of Honolulu to regulate the possession of firearms MIZUHA: That is a suggestion that was made to the and a method of registration of the same. Discussion was chairman by the office of the Attorney General, and when held in the Judiciary Committee of the House, finally the we arrived at that section that recommendation w~s to be law was enacted. Subsequent to the enactment of that law, made, Senator Heen, and that was discussed with you pre a judge of the court of record of this Territory made public viously I believe. statement in a public assembly holding that law to be un HEEN: That’s right. I think if you use that language, constitutional, invalid, because it was in violation of Amend “shall not be considered to be absolute” you’ve covered ment Two of the United States Constitution, holding that the everything. In other words, you may have the right to bear right of the people to keep and bear arms has been infringed. arms, but that is not an absolute right, that right may be Question of that nature was brought before the committee. regulated by, say, the enactment of legislation prohibiting Nevertheless, the Committee of the — - Judiciary Committee the keeping of machine guns, automatic rifles, and so forth. of the House felt in the interest of public welfare and a pro tection to the public from denying irresponsible people from CHAIRMAN: Tear gas. bearing arms or having firearms in possession, enacted TAVARES: If I am - - if I get an answer from the chair such law as the law of this Territory. It now dawns on me man of that committee that that is so and we are acting on whether that question may not come before the courts of that understanding, I will vote for the measure. I wanted this Territory, any federal law to the contrary notwith to make it very clçar because it’s my understanding that standing. I, therefore, move, Mr. Speaker, that Section 15 - - action on Section 15 be deferred. the power of Congress to regulate these weapons depends JUNE 1, 1950 • Morning Session 13 CHAIRMAN: The Chair will have to rule that Section 15 A. TRASK: Is there, what provision, if any, has been has been adopted by this Convention. But the Chair recog made in the legislative branch, legislative committee, with nizes the fact that this being an informal discussion we’ve respect to military power in order that - - allowed two people to speak on the amendment, but the vote was taken - - MIZUHA: I believe Senator - - SAKAKIHARA: May I move that - - A. TRASK: - - the [inaudible] may be rounded? CHAIRMAN: - - and I’ll have to rule that the motion was MIZUHA: I believe the chairman of the Legislative put and it was carried, it was adopted unless you ask for Committee can answer that question. reconsideration of that motion. CHAIRMAN: Senator Heen’s recognized. SAKAKIHARA: May I move for a reconsideration on the HEEN: There’sno specific reference to any military Committee of the Whole action on Section 15 on those power, but the proposed article on legislative power will grounds. have a provision that the legislative power shall extend to all rightful subjects of legislation. Broad enough to cover MIZUHA: May I state at this time - - everything. PHILLIPS: Second the motion. ANTHONY: Point of information. What is the status - - MIZUHA: - - that the provisions of the first ten amend CHAIRMAN: State your point. ments of the Federal Constitution are only prohibitions against the federal government. If we write into the State ANTHONY: What is the status of Section 15? Constitution a provision like this, it’s a prohibition against CHAIRMAN: Section 13 has been deferred. the state, and we are not guided by the Second Amendment of the Federal Constitution, and if this committee, the ANTHONY: Fifteen? Committee of the Whole, in its report states that it was not CHAIRMAN: Fifteen? O.K. Carried. intended to deny the state legislature from imposing rea sonable restrictions upon the right to keep and bear arms, ANTHONY: I’d like to move to reconsider. I voted to - - then there is no question of unconstitutional - - unconstitu I’d like to move to reconsider Section 15. tionality involved with reference to the type of legislation DELEGATE: A move to reconsider was lost. we have at the present time. CHAIRM~\N: The motion was made to reconsider the CHAIRMAN: The motion has been duly made and second action of the committee - - Convention, and - - ed to reconsider our action on Section 15. All those in favor say “aye.” Contrary minded. The noes have it. Section 15 ANTHONY: Well, at that time, I was then discussing a approved by this Cony - - by the Committee of the Whole. problem with two members of the Bill of Rights Committee, We’ll now proceed to Section 16. and I would like the consent of the body to - - CHAIRMAN: Well, did you vote with those not to recon DOWSON: Without any thought of deleting discussion, sider? and without request from anyone, I move for the adoption of Section 16. ANTHONY: I voted - - BRYAN: With an equally free mind, I second the motion. CHAIRMAN: Well, you can reconsider. CHAIRMAN: Same motion put in reverse. Section 16 is BRYAN: Point of order. Isn’t there a motion before the now open for discussion. All those - - house? LARSEN: [Inaudible] but the order has been reversed. CHAIRMAN: The only motion before the house now is that we adopt Section 17. CHAIRIvIAN: - - in favor of Section 16. All those in favor of Section 16 say “aye.” Contrary minded. Section 16 has ANTHONY: I ask for unanimous consent to reopen. been approved. Carried. CHAIRMAN: The Chair will put the motion on Section 17 Now proceed to Section 17. and ask that you extend the courtesy to the Chair and ask BRYAN: I move the adoption of Section 17. for reconsideration on Section 15 after 17. All those in favor of adopting Section 17 say “aye.” Contrary minded. DOWSON: I second the motion. Carried. Section 17 is carried. CHAIRMAN: The motio~i’s been put in the proper order, Now, Mr. Anthony. as usual. All those in favor say - - ANTHONY: I ask the unanimous consent of the body to AKAU: I’d just like to ask a question. We state here reconsider Section 15. “the military power” —would it be a little clearer for the CHAIRMAN: You don’t have to get unanimous consent. - - for constitutional purposes 20 years hence to say “of the state”? ANTHONY: I move that that section be deleted from the proposal. The reason for it I’d like to - - unless - - MIZUHA: I believe this is going to be a State Constitution and part of the Bill of Rights and we’re referring to the state CHAIRMAN: I’ll have to wait for you to ask. If you ask at all times. This [is a ] question of style, if the Style Com for reconsideration, someone’ll second your motion. That’ll mittee desires to put in the “power of the state,” I believe put that motion first. the committee will acquiesce on that point. SAKAKIHARA: I second the motion. A. TRASK: Point of information. CHAIRMAN: The motion has been made and seconded that we reconsider our action on Section 15. All those in CHAIRMAN: Information has been asked. favor say “aye.” BILL OF RIGHTS 14 ROBERTS: Point of information. they’re the only ones that had - - should own a gun of any kind, and no one else should have any. And the proof that CHAIRMAN: Make it. this is wrong is the fact that you have to go down and get a ROBERTS: I assume we had a question before on recon permit, subject yourself to a cross-examination as to where sideration. Can we put two questions on reconsideration on you’re going to use this weapon, what you want to use it for, the same time alter they’ve lost? and everything else; then you have to go to the dealer, pre sent this permit to get it, then you take it back down and it’s CHAIRMAN: The first question for reconsideration was registered. Then,%~intil the last session, if you loaned it put - - to a man, why, it could be taken over by the game warden or ROBERTS: Question for the reconsideration of this anyone else. There’s all kinds of restrictions that are not section, which lost. reasonable. Now, I think that our country would be a whole lot better CHAIRMAN: - - was lost, and - - prepared for the next war if our young men learn to shoot. ROBERTS: They’re now making another - - We had some in the Hawaii National - - Hawaii Guards at our monitoring station [at] the volcano, and they shot holes CHAIRMAN: - - anyone voting in the majority may ask in the roof of the ceiling just playing with their guns. Others for reconsideration. had to be taught, and finally they had to put wires on the ROBERTS: After a motion for reconsideration had lost triggers so they couldn’t play with them. Now, if our citizenry prior? is educated to the use of weapons, we’re in a whole lot of better way to defend ourselves, if they go into the army CHAIRMAN: Having voted in the majority. The Chair knowing something about a gun. will so rule. That’s Fong, Fong, and Fong. In addition to that, what happened in Czechoslovakia. HEEN: Now in order to expedite matters, if there is no The registration cards were all in the box, and when the objection on the part of any delegate, may we reopen dis communists moved in the first thing they grabbed was the cussion on Section 15? registration of all the guns, and went out and took them away from the people, and they couldn’t offer any resistance. I CHAIRMAN: Fifteen. All those in favor of reconsidering think it’s only right that American citizens, the same as in our action on Section 15 say “aye.” Contrary minded. all the other states in the Union, should be able to own a Carried. shotgun or a rifle, and if they want to carry it, certainly Section 15 is now open for discussion. they have to get a permit. All police regulations are still ANTHONY: Thank you. Section 15 was originally in in effect. corporated in the early constitutions of the 13 states, and BRYAN: I’d like to speak briefly on that point. I think it found its way into the Federal Constitution at a time when the reason that this is in here is because we don’t want to there were Indians in the back yard, and people had to have rifles and muskets and whatnot in order to provide for the see the legislature pass a law absolutely prohibiting the use or the ownership of firearms by the citizens. You’ll find in common defense. It has no relation to our modern conditions history that it is the illegally armed minority that actually of living, Therefore, I think that it is an archaic provision. Even though we do like to preserve the simplicity and the we’re faced with as far as the trouble is concerned. The legally armed majority are the ones that should have the pattern of the Federal Constitution, this is one point in right to protect themselves and I believe that this provision which I think we may well eliminate it. That would not mean gives it to them. I think lacking this it would be entirely that any rifle club would be prohibited, any person at all possible for the legislature to pass a law saying that there would be prohibited from bearing arms; it would simply should be no firearms in the territory, and in that case you mean that the legislature would be free in the exercise of know who will have them, the people that want to use them legislative power to regulate the carrying of arms. And for lawbreaking. what harm can be done in that? We don’t need them for I think that the law-abiding citizens of this territory our common defense. We’ve got an army and a navy and are entitled to have firearms for their own protection, for an air force that takes care of that. sportsmanship, for target practice and so forth. That’s It seems to me that with the ills & society such as there why I would like to see this provision remain. I think that are today, interstate crime and local crime and machine it’s been so worded and, with investigation into the court guns and things of that nature, the legislature should be free, action on similar provisions, it is so worded that the police within reasonable limits, to pass legislation on that and will not be left with their hands tied on this subject. Regu this is not going to basically infringe anybody’s civil lation can be imposed. liberties. If I want to keep a rifle or a shot gun, all I have to do is to go down to the police station and register it. CHAIRMAN: The original motion is still in order. Our legislature is not going to be silly enough to pass a law that’ll prevent these duck shooters from carrying their shotguns around or anything else that is reasonable and FUKUSHIMA: I’d like to speak to the retention of Section proper. But it would afford complete legislative scope. 15, also. There is this danger that we must observe. By including in our Constitution such a section, Section 15 will MAU: It may be true that we don’t have Indians around protect all the people from keeping and bearing arms, subject here, but there’re some people in this territory who believe of course to reasonable restrictions. If we did not have that there are some different kind of reds under each bed such a section in, the legislature can very well go ahead and in each house of the territory. discriminate non-citizens from citizens. This has been NIELSEN: I take exception with - - to some of the state attempted many and many a time. In fact in the last session ments that’ve been made. Thirty-three states out of the 48 of the legislature such a bill was introduced and after it was have the identical provision that’s in the Federal Constitution. called to their attention that perhaps it may be unconstitu Another thing is the fact that you don’t just go down and get tional, by the attorney general’s office, then the bill was amended to include all persons. I feel that all aliens, all the gun registered. The - - most policemen believe that JUNE 1, 1950 • Morning Session 15 persons, regardless of whether they’re citizens or aliens, country before there was war. So that it was quite possible should be entitled to bear arms if it is under a reasonable and quite reasonable to wait till they got into your shore restriction and if it’s used for sportsmanship. They desire and started waging war before you could hold them guilty the same type of sport as a citizen, and to prevent the of treason. As this thing stands, if you adopt it, we cannot legislature from enacting any type of bill of that nature, I define treason against the state until somebody had landed feel that Section 15 should be well included in our Constitution. and committed an overt act here, which may then be too late. CHAIRMAN: The original motion is still in order. The Secondly, it defines the punishment, or rather the proof - - Chair will now put the question. Shall Section 15 be adopted the way you can prove treason in a manner that goes back as written by the committee? to 1876 [sic] and around that time. In those days they hadn’t thought of circumstantial evidence being very good. They DELEGATE: Question. didn’t know about finger prints, they didn’t know about the CHAIRMAN: Question. All those in favor say “aye.” examination under the fluoroscope of different materials Contrary minded. Carried. and so forth, all the different aids today that make circum stantial evidence more reliable than eye witness testimony MIZUHA: Mr. Chairman. I move for a five minute today. If you adopt this thing, then, if somebody comes in recess. here with an atom bomb and you find his finger prints on it, CHAIRMAN: Short recess has been asked for. All those you find his clothes with it, you find his valise, you find in favor of a short recess say “aye.” Subject to the call of everything there, but you don’t find and nobody sees him the Chair. Declared. with their own eyes, two people don’t see him with their own eyes, you cannot convict him of treason. What’s the sense of such a provision? Are we going to adopt a thing (RECESS) that’s a 150 or 200 years old, a mode of proof and a definition, or are we going to take into consideration modern conditions CHAIRMAN: Sergeant at Arms will please have the and leave our legislature free with treason as you are leaving delegates brought before the Convention - - Committee of it free with murder and every other provision, any other the Whole. Committee of the Whole come to order. We’ll crime, to define it as the people from time to time see fit. now proceed with Section 18. They are protected by the others, the due process clause, ASHFORD: I move that Section 18 be deleted from the the jury trial, all the other safeguards we give in our Con article. stitution, will protect those people and give them a fair trial. Why tie the hands of your legislature to the definition of one BRYAN: Solely for the purpose of bringing it before the crime in a manner that won’t meet the condition today. Convention, although I’m not in favor of the motion, I will I say the provision should go out and many states don’t second it. have it. I say it’s utterly outmoded, it’s utterly old- MIZUHA: In presenting Section 18 on treason it was the fashioned and should be dispensed with. intention of the committee, perhaps it wasn’t clearly written NIELSEN: More than half of our states have this in their into the report, that this section should be brought to the constitution, thirty to be the exact number. And the latest floor of the Convention, and if the delegates assembled here one to put it in their new constitution is New Jersey in 1947, desire to delete same or adopt same, I believe I speak for just three years ago. I think it’s a good thing because this the majority of the committee, that the committee does not communist thing may develop here when we go to war with have any objections. Russia; so we’ll need something like this and need it quick TAVARE5: Just so that the members of the Convention and handy right here in the State of Hawaii. And I see that may know why we object to this clause, I should like to point it’s perfectly harmless not [sic] to have it in there, so we out a few of the defects. First of all historically, the reason can take. care of the situation when it develops. why this provision was adopted as shown by the history of it was that at that time under the common law of England and KELLERMAN: I wanted to supplement Mr. Tavares’ statement with respect to this clause. I don’t see any need the statutes of England, there were 17 different acts consti for having it in the Constitution because all the legislature tuting treason which were punishable by such barbarous has to do is to call an act by a different name—call it methods, not so long before that, of hanging, drawing and sedition, or criminal conspiracy and sedition—and can put quartering and so forth. And the colonists who were so horrified by those 17 acts of treason, and with that in mind, any provisions in it that it sees reasonably justified to define they limited the definition of treason and how treason could the circumstances of a crime which otherwise would come be proved. Actually they did not in any way limit the power under the definition of treason. So it’s completely outmoded of Congress to define any other acts without calling them and it’s just an artificial thing. I would agree in deleting it treason. So actually even under the Federal Constitution from the Constitution. today it is possible for Congress to pass other laws making ANTHONY: I think what the delegate from Kona wants to acts that are not treason subject to the death penalty. So, safeguard against will be defeated rather than advanced by therefore you are - - all you’re doing is defining one crime the inclusion of this section in the Constitution. As I when you have thousands of other crimes that you’re not gathered his remarks were to this effect, he wanted the defining. legislature to be free to take care of the situation where In the first place, it’s illogical to just single out one our enemies might subvert us either covertly or openly. crime. In the second place, remember, this thing was Now, if you have this treason provision in, it is a limitation. adopted in eighteen seventy something [sic] and was adopted In other words you’re doing just exactly what you don’t want with reference to the conditions then, and what has happened to do. since? In those days you did not have atom bombs, you did I should also like to point out, in addition to this being a not have guided missiles, you didn’t have poison gas, you rather old and antiquated provision, it does deal with a - - didn’t have germ warfare. Levying war - - in order to levy in a sphere in which the Congress, the national government war you had to actually send men to ph~sically invade a is supreme. In other words treason in reality is treason 16 BILL OF RIGHTS against the United States. We have ample laws and we have DOI: I’d like to make a correction first before I proceed the treason section of the Federal Constitution. We have and that is, this proposal here was introduced by three men, the Smith Act, an act of Congress ofunlawful conspiracies all from the island of Hawaii. Two of the three men are to overthrow the government of the United States. I see no married. I think we all agree that the statement made in occasion for including this in the Constitution, despite the Sectton 22 is a basic civil right of all citizens in a demo fact that New Jersey as recently as 1947 has included it in cracy. There has been some talk that this section should the Constitution. not go in the Constitution because in Hawaii there has been I might call the delegates’ attention to the Massachusetts no abridgement of such a principle. In answer we might section on this which simply says “No subject ought in any say that it is also the same case with freedom of speech, case or in any time be declared guilty of treason or felony religion and other basic rights which we have already ap by the legislature.” That’s all the Massachusetts section proved. There have been no abridgement of those rights. says on it. Therefore, I agree with the previous speakers I think there is, in addition to that fact, another reason that the clause be might very well be deleted. why this section should go into the Constitution and that is, should we look at the fact as it exists in the world and as it CHAIRMAN: The motion before the committee itself, exists in the United States of America. First, should we Section 18 be deleted. All those in favor of deleting Section look to England, the mother country of our United States of 18 and renumbering the rest of the sections say “aye.” America, we find the case of Seretse much talked about down Contrary minded. Section 18 is now deleted. We will now in South Africa today. He’s a Negro who is married to a renumber the rest of them I suppose and call - - white woman. There is a question of whether he should be Proceed to Section 21. seated as head of the Bechuanaland section of South Africa. ANTHONY: Could we keep the same numbering for Then we come to America from whom we in Hawaii have purposes of facility? borrowed our basic democratic principles, and we find that there are 25 states in the Union who have statutory provisions CHAIRMAN: Section 19. That’s right. prohibiting the marriages - - marriage between different kinds of races. And we find in addition five states in the ANTHONY: Could we keep the same numbering so the Union also having constitutional provisions prohibiting delegates will all know what we’re talking about? marriages between races. And two of those 30 states MIZUHA: That is why the sections were numbered. it a felony should they marry, and one makes it a gross Section nine - 18, 19. misdemeanor. BRYAN: I move the adoption of Section - — the section DELEGATE: Gross cheat. that is now numbered 19. DOl: And in view of that fact, I think it is not a principle CHAIRMAN: Nineteen. so well understood even in the democracies. And therefore I would like to see a restatement of this principle in our DOWSON: I second that motion. Constitution, not intended as an admission that this problem CHAIRMAN: Same motion, same second. Section 19 is does exist in Hawaii, and also not inten~ed that this is to open for discussion. Questions? Shall Section 19 be adopted? cure an existing evil, but inserted with the intention that it All those in favor say “aye.” Contrary minded. Carried is a statement of a - - affirming the present status as it unanimously. exists in Hawaii. And I urge that we vote “yes” on this Section 21. Section 22. BRYAN: I move the adoption of Section 21 as written. HEEN: I am just wondering whether it would be a good policy on our part to write this particular provision in the DOWSON: I second that motion. Constitution. This Constitution will go before the Congress CHAIRMAN: Heard the motion. Open for discussion, of the United States for approval and I can see where these Section 21. All those in favor of adopting Section 21 say representatives from the southern states, senators from “aye.” Contrary minded. Carried unanimously. the southern states may not approve this provision and may not approve the entire Constitution and admit this Hawaii BRYAN: I move the adoption - - [Laughter] into the - - as a state because if they approve this Consti CHAIRMAN: I can’t hear very well. tution then they will be approving this particular provision which is not in vogue in the southern states. BRYAN: Little decorum please. I move the adoption of Section 22. MAU: I think the elder statesman has a good point there from a practical standpoint. But I’m wondering, I understand WOOLAWAY: Second. that this provision is contained in the United Nations Charter. DOWSON: I second the motion. If that is correct, that is a national policy so far as our na tion is concerned, and if that be correct, even from the CHAIRMAN: Twenty-two is now open for discussion. practical standpoint I believe that this is one of the basic rights and should remain - - be a part of the Constitution MIZUHA: The language in Section 22 contains the - - in of Hawaii. Will someone answer whether that is so? the last phrase you might say “because of race, nationality, creed, or religion” may not be the kind of language that ROBERTS: I’d like to speak in favor of the inclusion of would be incorporated in other sections of the Constitution this section in our Constitution. I believe it’s fairly impor and that would be for the Style Committee to put it in its tant that we obtain approval of the Constitution by the Con proper order. This proposal was submitted by a disting gress. I think, however, there are some things that we have uished gentleman from the island of Hawaii and I believe to take a chance on. There are some things we’ve got to he should be given an opportunity to speak in behalf of this stand for and it seems to me that the Congress, if it takes section. Delegate Dol. the position that they will not give us statehood because of DELEGATE: Is he single or married? this section, there might be some question as to whether JUNE 1, 1950 • Morning Session 17 we’d want it. I’d like to support very strongly the inclusion am in favor of leaving the provision in the Constitution of of this section in our Constitution. Hawaii. MAU: I’d like to have my question answered. I asked CHAIRMAN: The Chair recognized that fact. In Wash for information - - ington during the hearing Representative Larcade of Loui CHAIRMAN: You yielded the chair, you yielded when siana so stated that if the people of Hawaii saw fit to live you sat - - the way we do here, it was our business. Leave them - - to let them live as they wanted down South and they’d leave MAU: No, but I asked - - us alone the way we wanted to live. MIZUHA: Will you state the question? ASHFORD: May I call the attention of the delegates to CHAIRMAN: The question was, “Will someone answer the fact that in Section 6, which is covered by the later report this question?” Then you sat down. and therefore is not before us, there is that provision re MAU: No, I didn’t, Mr. Chairman. quiring - - called for by HR 49 requiring that there shall be no distinction by reason of race, color, creed and so forth CHAIRMAN: Roberts made an endeavor to answer your in civil - - the enjoyment of civil rights, and marriage is question. certainly a civil right. MAU: Well, may I rise to a point of information then? A. TRASK: I would like to say that the section I think CHAIRMAN: You may. should be deleted. In the first place, it seems to infer that MAU: I’d like to ask, if anybody can answer it, whether our life in Hawaii has more or less been ruled by a sense or not this provision is not in the United Nations Charter? of miscegenation, that the races and people here have been opposed to mixed marriage, and such is not a fact. What KAWAHARA: In answer to the question and as one of the we’re concerned about writing a constitution is to seek to fathers of this proposal, the answer is yes, it is. The prin correct what may be a teaming misuse or misconduct or ciple is embodied in the preamble of the United Nations what might tend to be. We are evolving a civilization and Charter. as we all personally know, several years ago this group CHAIRMAN: Maybe the preamble of the United Nations didn’t want their children to marry into that group. We are Charter had nothing to do with the Constitution. breaking down practically all the barriers and there are none left. ANTHONY: I think there’s a good deal in what Senator What we should be also acquainted with, that this section Heen has said and I think we can accomplish what the pro should be read in connection with Section 2, namely second ponents of the measure desire to accomplish if we include sentence: “Among these inherent and inalienable rights in the report a construction of Section 4. Section 4 says, are life, liberty, and the pursuit of happiness.” Some recent “No person shall be deprived of life, liberty or property time ago Life Magazine presented quite a discussion forum without due process of law, nor be denied the equal protection on the expression, during the celebration of Jefferson’s of the laws.” Now, I don’t believe that the miscegenation birthday last year, the question of pursuit of happiness. statutes have ever been upheld in face of an outright attack And one of the greatest things about that was personal life. under the due process clause. And I venture the prediction I cannot go along with the learned counsel from Hawaii, that in such a case, there is a serious constitutional question Nelson Doi, that it’s like freedom of speech. It seems to as to the validity of those statutes. me marriage takes - - it’s a dual situation. It’s not only - - Now why could not we accomplish what the proponents it’s not left up to one person altogether. of the measure desire to accomplish, and with which I am in hardy accord, by having the committee, this Committee I do think from the question of probably a very wise and of the Whole, act upon this by deleting it, stating in the more careful submission of this Constitution, that we should committee’s report that we have never had miscegenation not be unaware, however rightly the lady from North Carolina statutes here, we would never stand for it, and that this says, we are aware certainly of certain forces that seeing Convention goes on record that that would be a denial of due this Section 22 there, their personal, emotional reaction process of law within the meaning of the Section 4 of the may be more severe and we’re not there to stop them. So Constitution. Would that not accomplish what the proponents I think this suggestion that there shall be no denial would of the measure seek to accomplish and still avoid getting raise in the minds of some people, well, there’s a right - - us tangled up in this FEPC wrangle back in Washington? is the marriage of the right - - the right to marry somewhat infringed in Hawaii, if not legally, at least by racial under KELLERMAN: May I answer that point please? House current reactions? I think we have succeeded in eliminating, Bill 49 provides in part as follows: “The Constitution and we have, and we’re evolving a very happy situation. So must be republican in form and make no distinction in civil I do not think it’s necessary, even though the United Nations or political rights on account of race, color or sex.” It Constitution may have that provision. They’re dealing with seems to me that that certainly points the picture against an utterly different situation. And so I’d like to be on the any discrimination, racial discrimination which of course side of those who are voting to delete this provision. is the essence of the miscegenation statutes. In the second place, may I speak for my benighted LARSEN: If we’re going to lose this Constitution because brothers from the South. They are firm adherents to the this sentence is in, we’re going to lose it anyway for many principle of states’ rights. If in those states they don’t want other sentences. It seems to me here’s one chance where to see races mixed in marriage they think it’s their business, we can show we’re a little ahead of the parade, rather than whether or not constitutional, but they would be the last, as behind it. Eventually all the nations and all the states, I I understand their political philosophy, to deny the people of think, will attain the United Nations Charter. But here’s this state the right to decide whether they want their races one place where I think we’ve shown by our actions that we mixed or not. And I don’t believe they would raise that already believe in it. It seems to be a basic right; I’m for question in the Senate at all. Not under states’ rights. I keeping it in. BILL OF RIGHTS 18 SmMAMURA: Two speakers have referred to life, liberty property. The question will arise, perhaps, whether that and property in discussing this provision. We speak of the regulation must be - - of private property must be com bonds of matrimony. I’ve always felt it was a surrender of pensated. That question is for the courts to decide on, not liberty rather than an acquisition of it. the Constitution. But joking aside, I believe that this provision is declara CHAIRMAN: All those in favor of Section 23 say “aye.” tory of a natural God-given right. And I think it is a very wholesome thing to have it in the Constitution. FUKUSHIMA: I’d like to ask the chairman of the com mittee a question. In taking up Section 23 did the committee HEEN: One part of the Bill of Rights refers to the right take into consideration the question of excess condemnation? to own property. Now, the old view was when you marry your wife she was a piece of property and - - MIZUHA: The question of excess condemnation was considered. I would like to have one of the proponents of CHAIRMAN: Now maybe the other way too. this provision explain what the thoughts were back of this HEEN: Well, I am in accord with what the delegate from provision here and I will call on a delegate from the fourth Molokal stated a moment ago in Section 6. The second para district, the former Attorney-General Tavares. graph of that section which is in Exhibit A of Committee TAVARES: I don’t know whether I fully understand the - - Report No. 24, “No person shall be denied the enjoyment May I have the question restated? of the civil rights nor be discriminated against in the exer cise of the civil rights because of religious principles, race, CHAIRMAN: You may. sex, color, ancestry, or national origin.” I think that par TAVARES: I’m sorry. ticular paragraph will cover the whole situation. CHAIRMAN: Fukushima. DELEGATE: That’s Section 2. FUKUSHIMA: In considering Section 23 I wanted to know HOLROYDE: A point of information on the previous whether the question of excess condemnation was considered. speaker’s first statement. I wonder if he still considers that to be factual. I suggest you read paragraph 24. TAVARES: I can say this. Being a member of the Com HEEN: What I said, that was the old view, ancient view. mittee on Taxation and Finance, the question was considered Now I don’t want to be misunderstood. I am heartily in in that committee, and of course some members of that accord with this particular section we are discussing at the committee, including the chairman I believe of Bill of Rights present time. But from a matter of policy, I think if we Committee is in - - were members on the Taxation and Finance Committee. Now as originally proposed, this sec point this out in the Constitution to those people who are against mixed marriages they might vote against the ap tion provided for that “Private property shall not be taken or damaged for public use without just compensation.” The proval of this Constitution. word “or damage” was pointed out to be a rather dangerous DELEGATE: I don’t think so. departure from the wording of the Federal Constitution and WIRTZ: I am likewise in accord with the expression not having necessarily a very definite meaning, the states being sort of, well not fully - - the state courts not being stated by the last speaker and I’d like to move to defer fully agreed on the meaning of it. Therefore, the words action on Section 22 until we consider Section 6 which is in the Committee Report No. 24 and is Committee Proposal “or damaged” were taken out and we’ve decided to rely - - No. 4, which was slated to come up tomorrow, because I the committee, I believe, decided to rely on the Federal think the subject is - - can be covered by that section. Constitution’s wording which is being gradually extended by interpretation of the courts to cover many of the matters ANTHONY: I second the motion. which might be considered ordinarily to be covered by the CHAIRMAN: Motion to defer action on Section 22 until word “damaged.” In other words, we decided to adopt Section 6 is brought before this committee. All those in wording, or they decided to adopt wording that is, has been favor of that motion say “aye.” Contrary minded. Still very well construed by the Supreme Court of the United carried. Motion deferred. There’s one or two yelling States. loudly, but it didn’t carry. Section 23. Now as to question of excess condemnation, it was con sidered in the Taxation and Finance Committee very BRYAN: I move the adoption of Section 23 as written. thoroughly and on the advice of the attorney general as I WOOLAWAY: Second. understand it, we finally deleted from the taxation and finance section all mention of excess condemnation on the DOWSON: I second the motion. theory as proposed, as stated by the attorney general that CHAIRMAN: Motion made and seconded. Open for a reasonable amount of excess condemnation is implied in discussion, Section 23. No railroading at this or any time. the general powers given the legislature, and which the legislature can confer in connection with a project, and that A. TRASK: May I ask Jack Mizuha whether or not any it was therefore not necessary to provide expressly for ex consideration was given with this section with relation to cess condemnation in the taxation and finance article or in public sightliness and good order? the Bill of Rights. That’s my understanding of what the attorney general’s advice was. If I’m mistaken I wish that MIZUHA: Evidently, to be frank, no consideration was the chairman of the Bill of Rights Committee would correct given with reference to public sightliness and good order me. as we did not know what the Committee on Health and Public Welfare will report. But if the Constitution does state that MIZUHA: That is correct. May I - - the power of the legislature will be such to pass reasonable regulations of private property in the interests of good - - AKAU: Excuse me. Mr. Chairman, I’m wondering in of sightliness and good order, naturally the authority will be this particular section if the thinking had taken place re there under that provision in the Constitution and supported garding whether say a case like our recent Nuuanu-Marks by this provision as well for legislative regulation of private case. Now then, the question wasn’t of compensation with JUNE 1, 1950 • Morning Session 19 them, it was a desire not to take any compensation, not to this is a non access road, to have a road lead directly from sell the land, not to have the land condemned by the city the highway right to her property. The question here is to and county. Is this something that would take care of that go down the road about a mile and a half and then create as - - from the constitutional point of view, or would some another road paved and paid for by the Territory to get to thing have to be added there? the Marks property which is way up in the sky. Now I am concerned in other words with this precise question—if we TAVARES: It is one of the most ancient and honorable do not put a provision for excess condemnation in the rules of government that private rights must be subordinated Constitution and leave that only to the legislature, whether to the rights and needs of the public. Condemnation or in the courts it may be successfully contended that excess eminent domain is one of those things in which private condemnation is not properly covered in the Constitution. rights must yield to the public. The legislature has a rea The Constitution is silent on it and therefore there is no sonable discretion to determine within reasonable bounds authority for the State to condemn property which is in what property and how much should be taken for a Proj ect. excess with what may be considered an ordinary condem And I don’t think you can lay down any rule other than that nation proceeding. because I don’t know how anybody can define it definitely enough to steer between exactly what’s right and exactly WIRTZ: I quite agree with the speaker that we should what’s wrong because no two people are going to agree on have to provide for excess condenmath3n. However, I don’t just how or where a Proj ect should go, just how much should think the subject is properly before this Committee of the be taken necessarily for the project and various other things. Whole. The only question that’s before us is the question It’s one of those things that has got to be left to the sound of Bill of Rights and that is to protect the individual pro discretion of the legislature and if the legislature violates perty owner, and this provides that whatever method, con its discretion too strongly, too greatly, the courts then can demnation power is given by this Constitution under appro be called upon to rule and prevent that. I don’t think you priate section of legislative powers, that nevertheless the can write down in this Constitution a rule that would take private owner will be compensated. And that’s all this is care of the objections of Mr. Marks, assuming that they intended to do. are to some extent reasonably taken. And therefore I don’t think that it’s feasible to do anything about that situation. TAVARES: I respectfully disagree with the delegate from Maui that this is not the appropriate place, if we are HEEN: We now have a statute which provides that as going to do it. It seems to me that regardless of whether follows: “and also to take such excess over that needed the present statute is under attack in our courts under our for such public use or public improvement in cases where Organic Act, if we adopt this provision and in the Committee small remnants would otherwise be left or where other of the Whole report, which I shall move we do, we state that justifiable cause necessitates such taking to protect and we have not inserted a provision for excess condemnation preserve the contemplated improvement, or public policy because we believe that it is included as an incidental power demands such taking in connection with such improvement.” of the general grant given. That will take care, it seems to BRYAN: Mr. Chairman. me, of any doubt in the minds of the court in the future on that proposition, leaving it then to the courts to decide when DELEGATE~ Mr. Chairman. the legislature goes so far in condemning excess property CHAIRMJ,N: Bryan’s recognized. Let’s have a civilian as to constitute taking it for something not a public purpose for a change. Bryan’s recognized. or some other violation of the Constitution. BRYAN: I think we should recognize that this is not LEE: I believe it’s twelve o’clock now and there are granting a license. The provision for eminent domain and several other sections. I believe this Committee of the the legislative acts covering that are the license. This is Whole should rise and report progress and beg leave to sit the protection of the individual to make sure that that license again. We all got to eat. Just a question as to what’s is not exercised without compensation. Nothing more nor planned this afternoon or this evening or when to meet. less. VOICE: Two o’clock. A. TRASK: To follow up the learned judge here on his reference to the statute, I want the Convention to know that PORTEUS: Mr. Chairman, I don’t think it is convenient that statute is under attack, was under attack by learned for us to meet this afternoon. As you will recall, tomorrow counsel Joseph Hodgson, an applicant for the supreme court is the last day for the presenting of committee reports. chief justiceship. The matter is now pending in the supreme It is my hope that you will not meet again today when you court. Although Judge Matthewman did rule that the statute recess, which will allow the various committees to meet is constitutional, it was vigorously contended by Joseph between now and ten o’clock tonight and try to get out their Hodgson that the statute is unconstitutional. reports. So it becomes pertinent for some thinking on this provi MIZUHA: As chairman of the Committee on the Bill of sion with respect to this question, namely, if we do not Rights I would like to suggest that we do rise, report progress provide for excess condemnation in the Constitution and will and take leave to sit again on Monday, and I so move that leave the matter up to the legislature and these statutes we, the Committee of the Whole rise, report progress and which probably will be reenacted as part of the law of the ask leave to sit again on Monday at 9:30 a.m. State of Hawaii. Should - - it would quite cause us some pain perhaps, if we did not perhaps put in the Constitution DELEGATE: Second the motion. some provision with respect to excess condemnation. Of course, the Marks case in Nuuanu does present a very ex ARASifiRO: I second the motion. traordinary situation because the road that goes through PORTEUS: Second the motion. our highway, at least intended, creates a thorough cut where by from the top to the bottom of the surface of the road it’s CHAIRMAN: All those in favor of that motion say “aye.” probably a depth of 34 feet. There is no attempt, because Contrary minded. Carried. Adjourned. 20 BILL OF RIGHTS JUNE 5, 1950 • Morning Session I know, for example, that the courts, Supreme Court particularly, have already construed the concept on the CHAIRMAN: Committee of the Whole come to order. right of free speech, and the court has stated, and I’m The Chair remembers correctly the last action taken up quoting: “It is a fundamental principle long established the previous meeting was Section 22 and that was deferred. that freedom of speech in the press, which is secured by It is the wishes of this committee that we proceed to Section the Constitution, does not confer an absolute right to speak 23. What isthe wish? or publish without responsibility whatever one may choose or an unrestricted and unbridled license that gives immunity DOWSON: Mr. Chairman, I move for the adoption of for every possible use of language and prevents the punish Section 24. ment of those who abuse this freedom.” I believe that the DELEGATE: Twenty-three. purpose of that section was to prevent license, unbridled license; was tcfprevent the idea that these are absolute DOWSON: I take that back, Section 23. rights, and I’m in accord with that basic idea. I believe BRYAN: I second the motion. that part can be met in the amendment which is already suggested for Section 2 of the section on the Bill of Rights. CHAIRMAN: The motion has been made and seconded As you recall in our discussion the other day that section that we adopt Section 23. All those in favor say “aye.” was deferred, but during the discussion it was indicated TAVARES: I would like to ask a question. I realize that that a phrase be added, and I assume that that phrase may some time ago there was an argument in the Committee on later be included: “That these rights cannot endure unless Bill of Rights at which some attorneys were present, and I the people recognize corresponding obligations and respon think I attended also, In which the words - - in which this sibilities.” section was worked over or added. But I’m wondering if MIZUHA: Mr. Chairman. the words “peace or safety of this state” are sufficient or whether we ought to throw in an extra provision about ROBERTS: I’m not through. general welfare of the state. MIZUHA: Perhaps we can speed up matters if I concede MIZUHA: I’m sorry to interrupt the delegate from the a point to you and - - fourth district. We are not on Section 24, we are on Section CHAIRMAN: Do you yield, Mr. Roberts? 23. MIZUHA: Do you yield just a minute? CHAIRMAN: That is correct. ROBERTS: I yield for a question. TAVARES: I’m sorry, Mr. Chairman, the last movant mentioned 24, perhaps by an error. MIZUHA: At this time it would be proper if the Conven tion [sic] of the Whole pick up Section 2 as has been amended, CHAIRMAN: So we’ll proceed with Section 23. which is before all the members of the committee, and M.AU: At the last seating of the Committee of the Whole, perhaps if Section 2 is acted upon, perhaps it will facilitate Section 23 was discussed rather thoroughly by the attorneys the disposal of Section 24. Doctor, will the delegate of the in this Convention. I’m wondering whether the opponents of fourth district yield to a discussion of - - deferment of this particular section care to restate their position. I Section 24 now, and taking up the consideration of Section 2 think it ought to be restated before we take a vote on it. as amended? CHAIRMAN: Well, it is their privilege and I’ve made - - ROBERTS: If that will facilitate the discussion, I’ll be the motion has been put and if nobody cares to express very glad to. themselves, then it is the Chair’s duty to put the motion. MIZUHA: Good. Shall Section 23 be adopted as amended? All those in favor say “aye.” Contrary minded. Section 23 is adopted. CHAIRMAN: The Chair will have to rule that if it’s the We’ll now proceed to Section 24. wishes of the Convention to defer action, someone will have to make a motion. BRYAN: I’d like to move for the adoption of Section 24. MIZUHA: I so move. DOWSON: I second the motion. CHAIRMAN: Committee of the Whole defer action on CHAIRMAN: Same motion, same second. Section 24. ROBERTS: I’d like to speak to Section 24, and when I MIZUHA: Twenty-four, and take up Section 2. complete I will move to amend the motion by striking the section. I have examined many of the Bill of Rights’ sections DELEGATE: Second that motion. in the states’ constitutions, and I have yet to find a provision CHAIRMAN: The motion for deferment has been made. in any of them which have a clause of this type at the end to Section 24 be deferred. indicate that all of the provisos shall be construed in such a manner that the rights and privileges which are listed in the ROBERTS: Well, Mr. Chairman, I assume that the de Bill of Rights’ sections are not to be construed to justify ferment of Section 24 will include a discussion of Section 2 acts inconsistent with peace or safety of the state. I agree at the same time. that in the general proposals on the Bill of Rights that none CHAIRMAN: Well, you can bring it up by another motion. of the sections are absolute, that there are no absolute All those in favor of deferring Section 24 say “aye.” Con rights, that rights have to have corresponding responsibi trary minded. Carried. lities and duties. I believe, however, that such a section does not belong in the Bill of Rights’ provisos. The courts MIZUHA: I move for the adoption of Section 2 as amended will construe each of these sections on the Bill of Rights which is before the delegates here. and those constructions will differ depending upon the sections before the court. DELEGATE: I’ll second that motion. JUNE 5, 1950 • Morning Session 21 ROBERTS: Would the proponent of the motion accept the SMITH: I’d like to call to the attention of the members word “duties” instead of the word “obligations”? I believe of the Convention here that these rights cannot endure un it’s a little stronger word, and I think it accomplishes the less the people recognize the corresponding obligations and same purpose. responsibilities. This is dealing with their inherent and WIRTZ: I rise to a point of information. On my desk I inalienable rights, something we are born by nature, free have two amended forms of Section 2 and I’d like to ask the and equal, inherent, inalienable rights. We cannot really Chair which of the amendments is now before the house? contest the statement due to the fact that we are a demo cracy, and I am very strongly in favor of keeping this in. CHAIRMAN: I think it’s proper and fitting that Section There was a question whether this should take - - be left 2, the section to be discussed, be read in its entirety. out of Section 2 and be put in Section 25. We felt in the committee, that it should be left with - - primarily with MIZUHA: The Section 2 that I moved to adopt reads as inherent and inalienable rights. The Section 24 which is follows: “All persons are by nature free and equal in their going to come up and try to be argued out is an overall inherent and inalienable rights, among which are those of picture protecting the people. enjoying life, liberty and the pursuit of happiness and the right of acquiring and possessing property. These rights KAWAHARA: May I ask the committee or the chairman cannot endure unless the people recognize corresponding of that committee a question as to why the word “born” is obligations and responsibilities.” excluded in the proposed amendment. In the first draft, With reference to the question raised by Doctor - - the the wording “All persons are born” was included. In the delegate from the fourth district on changing the word other, the redraft, “All persons are by nature free” is “obligations” to “duties,” I see no material difference rewritten and perhaps there was some reason for excluding between the two words. However, “obligations” carry the word “born” and I’d like to know. broader implications, and I believe it would not be too amiss HEEN: I rise to a point of information. Perhaps some to have “obligations” there instead of “duties” inasmuch as one can explain this. This amendment reads: “All persons the delegate from the fourth district did concede that all of are by nature free in their inherent and inalienable rights.” our rights are not absolute. Just what does that mean, “free in their inherent rights”? AKAU: I want to speak against adding, whether its duties MIZUHA: I believe the delegate from the fourth district or obligations or responsibilities. I’m not against the idea prepared the draft. of people being responsible or having obligations as citizens. HEEN: I prepared the draft in this manner. “All persons I raise the question whether this is the place in a Constitu are by nature free and are equal in their inherent and in tion to make this statement. It seems to me that our obli alienable rights.” Those are my notes. gations and responsibilities, while we do assume them, are the responsibilities of the home and the school and the MIZUHA: Then I believe it was an error in the printing church and not be worded in and put in a Constitution. and we’ll accede to having the word “are” inserted after A second thought I have, and perhaps this may sound “and are equal in their inherent and inalienable rights.” facetious, is that perhaps if other people elsewhere lead But first of all, Mr. Chairman, there’s a question before the some kind of provincial life the feeling might be that this house propounded by the delegate from Hawaii as to why the statement must be included because we here in Hawaii may words “are born free and are equal,” “are born free” was be, let us say, a little unethical or even unmoral, the fact not included. I believe Doctor Larsen, who was a member that we have to have a statement saying obligations and of our committee, can explain why that was omitted. responsibilities. I would, therefore, be against inserting CHAIRMAN: Why the word “born” was omitted. this last clause in Section 2. WIRTZ: Once again I rise to a point of information, that CHAIRMAN: What is the pleasure of the committee? is why I originally addressed the Chair. There are two drafts of this proposed amendment and I think that the Con KELLERMAN: The committee has gone into this matter vention or the Committee of the Whole should know which at length. We have found in several of the first constitutions draft is being proposed. of the colonies, Massachusetts, New Hampshire, and one or two others, expressly spelled out the concept of responsibility CHAIRMAN; The draft in which - - that we’re discussing to government and only on that responsibility can the gov was read by the chairman of the committee. ernment survive. The provisions of responsiblity are in WIRTZ: That’s correct and when he was asked the serted in the Bill of Rights of those early constitutions. question by the delegate from the fourth district, he reported They are not put elsewhere. They are put in there as a that the delegate from the fourth district drafted the amend recognition that only can rights survive if all recognize their ment, whereupon the delegate from the fourth district called responsibilities. I don’t see how it can be construed that his attention to different words which appear in the other we are implying to the world that we are unethical or that draft. we need to restate our responsibilities more than any other state. I think it’s a matter of growth in political development.. MIZUHA: In order to clarify the whole situation, I’ll Our early fathers recognized those responsibilities as es ask the delegate from the fourth district who had drafted sential to good government and on that concept of responsi the amendment to read whatever draft he considers his bilities has our democracy survived where democracies have draft at the present time. I did not know that there was died throughout the rest of the world. another section to have been circulated until right now. Today we are on trial again, a democracy against another HEEN; My draft, that is the first sentence, not the ideology and it seems to me to be most apt and fitting that second, reads as follows: “All persons are by nature free this first constitution to be drafted in nearly 50 years and equal in their inherent and inalienable rights, among should restate a fundamental principle which has been the which are those of enjoying life, liberty and the pursuit of basis of the survival of our democracy which we now ask to happiness, and the right of acquiring and possessing pro join as a state. perty.” BILL OF RIGHTS 22 CHAIRMAN: Is that the - - BEEN: - - sentence in No. 2. MIZUHA: And qualify the additional clause “these rights CHAIRMAN: It’s up to the committee to decide. cannot endure” and so forth. MIZUHA: I was going to suggest that amehdment by the CHAIRMAN: Well, will you - - delegate from the fourth district as a recommendation from the office of the attorney general for Section 24. However, BEEN: Now, agreed to that last one except to suggest a Section 2 is an expression of philosophy on the part of the change in one word, a change in the word “last” to the word kind of government that we desire here in the future State “endure.” It seemed to me that if we’re going to have of Hawaii, and in that expression of philosophy as to what something along this line in this particular section it should good government means for all of us. Certainly if we go read: “These rights carry with them certain corresponding back to the days when the colonists first organized them duties to the state.” That’s the way it should read. selves in states and founded the state constitutions, we find, running through all of the discussions, that desire on the ROBERTS: I’ll second that if the speaker will make that part of the people that their government should be not only a motion; to substitute for the language: “These rights the expression of rights, but also the expression of respon cannot endure unless the people recognize corresponding sibility. And in these days when there are other ideologies obligations and responsibilities” to read: “These rights creeping into our frame of government, here in Hawaii as carry with them certain corresponding duties to the state.” well as in the United States, the time has come when all of Is that the intent of the motion? us who are to write the Constitution for the State of Hawaii BEEN: That’s correct. should realize that citizenship in the state and in the Union carries with them certain corresponding obligations and ROBERTS: I will second that. responsibilities for the building up of the State of Hawaii to MIZUHA: I believe the amendment as so stated would the kind of State we desire as a member of the Federal be very limited in its nature, and I believe in a statement of Union. And I see no objection to the clanse as written here— corresponding obligations and duties and responsibilities, that these rights cannot endure unless the people recognize it should be as broad as possible. The effect of the amend corresponding obligations and responsibilities—as being an ment just makes certain corresponding duties to the state expression of philosophy of government, the democratic which would be very limited in nature, and if we are going form of government, under which we are living at the present along with the philosophy that citizenship in our government time. carries with it certain obligations and responsibilities for the development of a free democracy where everyone can ANTHONY: Mr. Chairman and gentlemen, I agree with participate in, so that we can have the kind of government the last speaker that it’s desirable to incorporate in the that we all cherish, limiting of those duties by that phrase Constitution in an affirmative way that while we are de will more or less give to the people loopholes and avoid daring certain inalienable rights, we are saying also that the obligations of citizenship in our state. these rights carry with them certain corresponding duties and obligations, and I think such a sentence should be in ASHFOBD: May I say that I am in agreement with the cluded in the Constitution. I submit I’m not making this in chairman of the Judiciary Committee upon that point, that the form of a motion at the moment—the last sentence might the use of the word “certain” makes the language uncertain. well read: “These rights carry with them corresponding obligations and duties.” That eliminates the delegate from TAVARES: I think the reason why this language was Molokai’s uncertainty by eliminating the word “certain.” first inserted, or language along this line, was due, as I And I think it will express the philosophy. “These rights recollect, to a feeling by the committee—of which I am not carry with them corresponding obligations and duties.” a member but I think I discovered that in listening to the We usually in the law speak of duties and obligations or arguments—that since we are providing in the Bill of Rights rights and duties rather than responsibilities. I think that one of the inherent rights is the right of acquiring and duties is a little better word. possessing property and so forth, too strong a statement that these carry with them corresponding duties and so forth CHAIRMAN: The Chair feels that the - - might imply that it was our duty to go out and help every LARSEN: I would hope that the delegates from the body else get rich. And I think that was one of the reasons fourth district may concede that what we had in mind here why the language was phrased in this negative or not so was make it very clear, and I think that the discussions in positive manner. the committee made it very clear, that we wanted to em However, tf language of the type now suggested is in phasize this fact of why rights and obligations were included cluded, I think it should be clearly understood that it does in this paragraph, and it was because a rising number of not imply that type of duty. In other words, the correspond people had forgotten that rights seem to be license - - or ing duties and obligations which these rights carry with rather that rights didn’t carry with them this, and there them are not duties and obligations to perpetuate or to build fore, we’re emphasizing that philosophy, “rights cannot a welfare state, but simply the type of obligations which endure unless.” They might say, “Oh yes, it carries cor require us to do our duties as citizens, to recognize the responding obligations,” but we felt it was a little clearer rights of others, and to obey and live up to the laws and to say why we wanted obligations and responsibilities be the good order of our society. cause rights cannot endure unless people recognize these BEEN: While we are not considering Section 24, any responsibilities. It seems to me we’re getting at the same effort that is to be made to have 24 included, that could take thing but we’re emphasizing the reason for including it. care of, I think, all of these problems by having that read: MAU: I believe that the second sentence, or a provision “The rights and privileges hereby secured shall not be similar to the second sentence is contained in the Model construed as being absolute.” We have it there, then we Constitution. Of course that provision is an unusual provi don’t have to discuss this last - - sion where you state certain rights in the Constitution. I CHAIRMAN: Section 2. understand that there might be one or two states that have JUNE 5, 1950 • Morning Session 23 declared the duties and responsibilities of the citizens in sarily to help create a socialistic society, but rather to so relation to the rights that are preserved to the people. But, live that everybody has an equal chance with them. I am in agreement with the first speaker from the fourth CHAIRMAN: The Chair would like to remind the speaker district when he stated that this problem could be resolved that that was discussed in committee and those points if the amendment he suggested to Section 24 would be adopted, brought out very thoroughly in the committee. and we would then leave out the second sentence of Section 2. I want to say to the Convention that from the discussion LARSEN: Every once in a while we get this question of there is no question that there are conflicting philosophies welfare state. I always feel they look at me when they say involved in particular reference to the declaration of the that. I hope they don’t because I think I’ve emphasized rights of the people. repeatedly when and if the philosophy of these people want You have heard the mention of welfare state again this a welfare state, we’re going to have it; when and if we want morning. I am certain, unless the chairman of the Bill of socialism we are going to have it. There’s no use arguing Rights Committee desires to make the record clear, that that. We’re trying to argue here on the basis; how can we there was no such discussion in his committee concerning build a strong government and write a good constitution for a welfare state, and I would like to have the records clearly the ways of today? I feel we don’t have to battle it and I stated that any provision, even if the second sentence of hope I’m over-sensitive when I think the delegates look at Section 2 is adopted, has no reference by implication or by me whenever they say welfare state. I just feel that isn’t - - directly of anything concerning a welfare state. I don’t a problem. like to have it in the record that we are in fear of what has I’m wondering if some of these things are not a question been termed the welfare state. At this time, I would like of wording. I just recently read John Hershey’s new book, to amend the amendment to Section 2 and move that the “The Wall,” and in this introduction he says, “I have spent second sentence of Section 2 be deleted. two years editing this book.” He said,” I could spend an other 20 years and I still wouldn’t be satisfied.” And it AKAU: Iso move. seems to me that’s what we have in some of our style here. J. TRASK: Mr. Chairman. Now, probably “these rights carry with them corres ponding obligations and duties” does give the same thought, TAVARES: Mr. Chairman, I rise to - but it seems to me we have discussed it so much and it CHAIRMAN: Trask. seems as though we are agreed that rights—and we’re talk ing now of the Bill of Rights—that rights cannot endure, and TAVARES: - - a point of personal privilege. I think that’s been the false interpretation, that rights are something the - - that you can just grab. But rights are something we have CHAIRMAN: Trask is recognized. to work for, and to emphasize the fact that this democracy will be destroyed unless we accept the principle that with J. TRASK: I accede to the delegate from the fourth rights we must have corresponding obligations and duties. district. A. TRASK: I speak in favor of retaining the second ROBERTS: Mr. Chairman. sentence of Section 2. In the first place, we must read into CHAIRMAN: Tavares. Tavares. this provision the simple fact that we have first established a common consent, an organization of men and women. J. TRASK: I accede to the gentleman. Having est ablished that, that organization declares that by nature free people are born free and equal in their inalien TAVARES: I think my word has been questioned here able rights. The question is, that there is an organization. and I would like to have some members of the committee You are not born free because you’re isolated. You are answer that whether or not the idea at least was discussed born free because you’re a member of a certain organization in the committee. I was so informed by members of the committee. founded on the Christian principles. I’m in favor secondly for the retention of the second CHAIRMAN: Before we proceed the Chair would like to sentence because there is reasonable doubt in the minds of announce a brief pause. We have in the gallery Hawaii’s all reasonable people that the reason why democracy is such School of Accountants, Mr. Uyeda, instructor. The Kapa a difficult pill to take for the people of the world is because lama School, Mrs. Richmond Ellis, instructor and Mrs. they do not have that sense of corresponding responsibility Wright, instructor. Fifth and sixth grade. and duties to the common consent of the people of the coun try. That is to me the very keystone of why democracy LOPER: And Mrs. Carter, principal. cannot sell itself as well as we want it to sell itself. We CHAIRMAN: We have paused and been refreshed. We certainly must know that this question of persons are born may continue. Mr. Tavares is recognized. Do you care to free is a Christian principle, based upon the Christian proceed, Mr. Tavares? doctrine that to get to God and get to heaven, you must per sonally save yourself. So this, the whole principle, is in TAVARES: In connection with discussions on this section grained upon the Christian principle of man is born free with members of the committee, I was certainly given to and equal to God and he must attain heaven on his individual believe that the matter was being considered as to whether self-will and determination. too strong a statement of corresponding duties, rights, So it seems to me clear that if people who are not demo duties and obligations, might not carry with them the im cratic-minded, are not of this government, not motivated plication that it is the duty of every citizen to get out and by any principles or sense of knowledge of our history, if help every other citizen acquire this property and so forth. they will look upon this second sentence, it would come to And that is the basis for my statement which is along the mind immediately that their country and their people are line of not letting our youth grow up to believe that a con not democratic, even though they may be striving for dem stitution is just something that gives them everything; that ocratic way of life, because this second sentence says to there must be a feeling that they have to return something them they must of themselves have a corresponding sense in duties and obligations and that it is not their duty neces of duty and responsibility. BILL OF RIGHTS 24 HOLROYDE: I think whether or not we want to include CHAIRMAN: The Chair feels that by the process of this philosophy in this article or not has been debated for elimination we’ll probably come down to the sentence, “These at - - considerable extent, and now to find out just exactly rights carry with them corresponding duties.” the consensus of opinion of the delegates to the Convention, ANTHONY: I might state, Mr. Chairman, the two I would like to move that the amendment to delete this words - - section be tabled. CHAIRMAN: The motion has been made and seconded CHAIRMAN: The motion - - that the words read, “These rights carry with them cor responding duties.” BRYAN: Second the motion. ANTHONY: I want to just explain the matter raised by CHAIRMAN: - - was not seconded. the last speaker. Obligations and duties are the same thing. BRYAN: I’ll second it. One happens to be the Latin form obligateo, and the other the Anglo-Saxon. There’s no need of having both. I prefer CHAIRMAN: Mr. Mau made the motion that it be deleted the simplicity of the Anglo-Saxon word, duties. and Mrs. Akau also made the motion that it be deleted. No motion - - SHIMAMURA: Mr. Chatrman. Mr. Chairman. BRYAN: Mr. Chairman. CHAIRMAN: Having taken up French, Pm not too familiar with the terminology. CHAIRMAN: - - was seconded in the first place. There was no motion before the house to have that section deleted, A. TRASK: I think the key word in that second sentence as yet. is the word “unless.” And that’s why I cannot agree with the delegate from the fourth district. To me, we’ve got to BRYAN: I’d like to rise to a - - have a word in there to show that for these rights to AKAU: Excuse me, Mr. Chairman. endure, they cannot endure, unless of these corresponding duties. So the word “unless” is important. And so I can BRYAN: - - point of information. not- - CHAIRMAN: I’d like to have the recording replayed to MIZUHA: I believe we are going far afield from where you. You moved that this section be adopted. we started from. The reason for the second sentence here was not a direct statement that there would be certain DELEGATE: That’s right. duties along with these rights. It’s the recognition of a WOOLAWAY: Mrs. Akau said “I so move,” Mr. Chairman. philosophy of government, an expression of philosophy of government that says—in our second section in the Bill of DELEGATE: That’s right. Rights—that those rights that we are, or we possess, cannot BRYAN: A point of information. I’d like to know what endure unless the people recognize that there are certain motion Is to be - - corresponding obligations and responsibilities with reference to these rights. But as the amendment is now proposed, it CHAIRMAN: There is no motion before the house as yet. will lay certain duties on the part of the people in connection BRYAN: - - before the house, the last amendment? with these rights. That’s not the idea that the Bill of Rights Committee is trying to present to the Convention here. We CHAIRMAN: Two of the motions were not seconded. are trying to present, in the second section, an expression BRYAN: There’s a motion to adopt this section. Other of philosophy that with the inalienable and inherent rights than the motion to adopt this section? of the people that it cannot endure unless there are corres ponding obligations and responsibilities. And that is why CHAIRMAN: That is correct. No other motion. I believe the short amendment as proposed from the dele ANTHONY: I’m in favor of retaining this sentence. I gate of the fourth district would defeat the intent of the think, however, it will be strengthened if you take out the committee in the recognition of a philosophy of government. word “recognize.” You want people to do more than rec And I move that the amendment be tabled. ognize. So I suggest that the last sentence be amended to DOWSON: I second the motion. read, “These rights carry with them corresponding duties.” CHAIRMAN: The motion has been made and seconded MAU: Does the delegate make that as a motion? that the last amendment be tabled. “These rights carry ANTHONY: I make that as a motion. with them corresponding duties.” All those in favor say “aye.” MAU: I second the motion. MAU: Roll call, Mr. Chairman. SMITH: Mr. Chairman. I would like to bring up one thing in the wording, obligations. The ideologies that are DELEGATE: Roll call, request for a roll call. going around attacking the - - our democracy are very CHAIRMAN: A roll call has been requested. All those emphatic in not wanting to be obligated in any way. And in favor please raise their right hands. You haven’t got you’ll find that any time that they do come up against ob sufficient votes for a roll call. Vote carries. The amend ligations, they fight it like cats and dogs. This right, cor ment has been tabled. responding obligations and responsibilities, being recognized in Section 2 Is dealing with inherent and inalienable rights, MIZUHA: I move the previous question. something which—we’re not the only ones, only people who HEEN: The question was put, and I think there was want to become a state—have to really recognize that there some “ayes” made, and - - but you didn’t call for the noes. are obligations and responsibilities. I think that they’re getting away when they say “corresponding duties.” We all CHAIRMAN: I didn’t call for the noes? Well, the know we have duties, but we have to recognizethe fact that Chair will extend the courtesy by - - but I’m glad you re there are corresponding obligations and responsibilities. minded me about that. Contrary minded to the motion to JUNE 5, 1950 • Morning Session 25 table. Two votes. No, there were five, three votes maybe. KAUIIANE: - - house for the chairman to start bellowing Still carries. Tabled. about. PORTEUS: I’m not sure that there is a motion before CHAIRMAN: Well, just inform the Committee of the the house with respect to this last sentence. Whole. KAUHANE: In order to accord that courtesy I second CHAIRMAN: The only motion before the house now is that motion made by Judge Heen. for the adoption as the second sentence as by the committee, as written by the committee. ASHFORD: I move to amend the motion; to amend so that the sentence shall read as follows: “These rights MIZUHA: No, the motion before the house, as I under carry with them corresponding duties without which they stand it, is for the adoption of the whole section which reads cannot endure.” as follows: “All persons are by nature free and are equal in their inherent and inalienable rights, among which are CHAIRMAN: You get that, Clerk? those of enjoying life, liberty, and the pursuit of happiness, PHILLIPS: Second that motion. and the right of acquiring and possessing property. These rights cannot endure unless the people recognize corres SHIMAMURA: In my humble opinion, we’re making a pond ing obligations and responsibilities.” mountain out of a mole hill. Whichever draft we accept, The speaker would like to inform the delegates assembled there’s no essential difference or distinction in any of here that this section is a rare expression of philosophy on them. I respectfully submit we’re wasting a lot of time. the part of government, that it does not particularly care CHAIRMAN: The Chair partially agrees. what the Style Committee does, so long as that philosophy is retained in the section as reported out from the Style Com HEEN: I accept the amendment that was made by Dele mittee, and that it does not believe that there’s too much gate Ashford. substance in here for us to be wrangling about for two hours, ARASHIRO: It seems to me that we agree in the retaining and we’ll defer to the Style Committee in the language of the of the last sentence and to me it seems that we seem to last sentence. agree as to the idea, the philosophy of insertion of the last PORTEUS: In order to bring this matter to the head as sentence. It seems to me that there’s only a disagreement to the last sentence, I move that this Committee of the of the word that we are trying to insert in the last sentence. Whole go on record as approving in principle the last sen So I therefore move that we recess temporarily for those tence of Section 2 reading: “These rights cannot endure people who do not agree on the word to get together and unless the people recognize corresponding duties and res agree on something that we can agree. ponsibilities,” and that it be left to the Committee on Style, KAUHANE: Second the motion. the exact wording. CHAIRMAN: The Chair is slightly confused but since PHILLIPS: May I second that motion. the motion for recess is in order the Chair will declare a short recess, subject to the call of the Chair. CHAIRMAN: That is an amendment because you are deleting the word “obligations.” (RECESS) PORTEUS: I thought that the committee chairman had accepted the use of the word “duties.” CHAIRMAN: Committee of the Whole please come to order. DELEGATE: No. DOWSON: I move to the previous question on - - MIZUHA: We are now - - CROSSLEY: Second the motion. HEEN: I move an amendment so that this sentence will read: “These rights cannot endure unless they carry with DOWSON: Section 2. them corresponding duties.” CROSSLEY: Point of information. MIZUHA: Mr. Chairman. Again may I speak to that CHAIRMAN: You’re recognized. Point of information. amendment? That will change the substance of that last sentence. It will change - - the idea back of this last sen CROSSLEY: My understanding that the previous question tence is just a statement of principles of philosophy as we would be the adoption of Section 2 in its entirety with the have previously expressed - - addition of the word “are” after “and” - - after the first “and” in the second sentence. Is that correct? Second KAUHANE: Point of order. line—second line. MIZUHA: - - that it carries with them corresponding CHAIRMAN: Second line. That is correct. We’ll - - for obligations and responsibilities. the information of the - - previous question has been asked, but for the information of the members of this committee, KAUHANE: A point of order has been raised and I wish - - I’ll have the chairman of the Committee on Bill of Rights CHAIRMAN: State your point. read Section 2 in its entirety as put for the previous question. KAURANE: - - the speaker would recognize the question ASUFORD: Just before we went into recess there was a of point of order. motion to amend which was seconded. CHAIRMAN: State your point. State your point. ARASHIRO: I moved that - - KAUHANE: The motion made by Judge Heen is not CHAIRMAN: That is correct. seconded so, therefore, there is nothing before the - - MIZUHA: I move to table the amendment. CHAIRMAN: That is correct. J. TRASK: Second the motion. 26 BILL OF RIGHTS CHAIRMAN: Motion to table is in order. Question? All CHAIRMAN: All those in favor of the previous question those in favor of tabling amendñient put by Miss Ashford say “aye.” Contrary minded. and seconded by Senator Heen, say “aye.” Contrary minded. Now reread the section for adoption. Section 2. In Its The ayes have it. entirety. ANTHONY: I rose to find out what the amendment was. MIZUHA: Section 2 in its entirety reads as follows: I don’t think the Chair ever announced what we were voting “All persons are by nature free and are equal In their on. inherent and inalienable rights among which are those of enjoying, life, liberty, and the pursuit of happiness and the CHAIRMAN: The amendment put, I mentioned the amend right of acquiring and possessing property. These rights ment, the amendment put by Miss Ashford and seconded by cannot endure unless the people recognize corresponding Judge Heen. obligations and responsibilities.” ANTHONY: What was it? CHAIRMAN: All those in favor of adopting Section 2 as CHAIRMAN: The amendment, will you read the amend amended say “aye.” Contrary minded. Carried. ment, please? We’ll now proceed to Section — - CLERK: “These rights carry with them corresponding KAUHANE: Point of Information. I believe, Mr. Chair duties without which they cannot endure.” man, when you - - before you allowed the chairman of the committee to move for the adoption of the section as he ANTHONY: I think the Convention ought to vote knowing read, you asked whether the Convention would agree to the what it was voting on, Mr. Chairman. I don’t believe the amendment made by Miss Ashford, and that was defeated. Convention did. CHAIRMAN: That’s right. CHAIRMAN: Well, that was - - they did vote and that was the question. The amendment was put by Senator Heen KAUHANE: I believe that there Is a pending motion or and I believe every delegate heard the amendment. Do you there was a pending motion which was made by Delegate care to have the question reput? Garner Anthony which was never put by the Chair. DOWSON: I believe we’re arguing over principles and I CHAIRMAN: The motion - - It Is a suggestion that - - he believe the delegates have stated their ideas. The Committee never put a motion. on Style will have a record of this debate. I, therefore, KAUHANE: I seconded that motion, as I got up to say, to move to the previous question. allow the chairman the opportunity to speak rather than to - - CROSSLEY: I second that. CHAIRMAN: Well, I believe your second was out of KAWAHARA: I rise for a point of personal privilege. order. That was just a suggestion. He didn’t put a motion. There was no motion. CHAIRMAN: A motion of previous question has been asked. KAUHANE: You recognized my second to the motion at that time to allow the chairman the right of the floor, which KAWAHARA: I rise to the point of personal privilege. was raised by me on a point of order. In the beginning of this discussion here I asked the commit tee why the word “born” was excluded. Nobody from the CHAIRMAN: Well, the Chair may have been out of order committee answered the question. Now there is a motion himself. to. previous - - KAUHANE: Well then, the record — - LARSEN: Mr. Chairman, may I answer that question? J. TRASK: Point of order, Mr. Chairman. It was an oversight, I’m sure. KAUHANE: - - still shows, then the record still shows CHAIRMAN: Highly irregular but it’s all right. Mr. - - LARSEN: I think we’ve discussed this before that — - we J. TRASK: A point of order. discussed the question”born free and equal” as being ob viously so unrealistic that we wanted something more CHAIRMAN: State your point. realistic. We then put down “all persons are born free,” J. TRASK: The motion was made by Judge Heen and then and someone facetiously said the only thing they are really Chairman Mizuha made an explanation on the motion. Mr. born free of is clothes. But, nevertheless, then Senator Kauhane rose on a point of order and said that he would Heen suggested that a better phrase rather than say “born” second Judge Heen’s motion for - - so that we might have to say “are by nature,” by the nature of circumstance and discussion on the floor. Marguerite Ashford moved that environment and so on, so we accepted “by nature.” And the - - she moved for the amendment to the amendment. we felt that was actually more according to what the mean And that was - - and Judge Heen stood up and mentioned ing of this phrase had come to be after these centuries that he accepted the amendment. So in moving to table and, therefore, we had accepted “All persons are by nature Miss Ashford’s motion, it automatically killed the motion. free and are equal in their inherent and inalienable rights.” Does that answer your question? KAUHANE: I stand to be correct, Chairman. But I still feel that the records will show the - - KAWAHARA: In your committee was there any discussion as to the statement that persons may not be born free? CHAIRMAN: The records will show that Section - - That is, somebody made reference to people - - KAUHANE: - - the records will show that a motion was LARSEN: When they said “born free and equal,” there made which was duly seconded to allow the chair - - the was much discussion because we obviously are not born chairman of the committee the right to speak on the intended free and equal. That was discussed, and that’s why we amendment that was offered, which was later amended by a changed it to this style. motion put by Miss Ashford which was put by you and de JUNE 5, 1950 • Morning Session 27 feated. I think the original amendment was put by as I still BRYAN: I move we reconsider action on that paragraph. insist, was put by Delegate Anthony and seconded by me, which is still prevailing and until the record is changed LARSEN: Second the motion. then - - CHAIRMAN: Motion for reconsideration of Section 24 CHAIRMAN: The record will - - is in order. All those in favor in having Section 24 recon sidered say “aye.” Contrai~y minded. Afraid the noes - - KAUHANE: - - there Is still that matter before the house. HEEN: I think the ayes have it, Mr. Chairman. CHAIRMAN: Mr. Kauhane, I’m afraid the record will show that Section 2 was amended, was adopted as amended CHAIRMAN: I am afraid noes have it. by - - as amended - - as the record will show. HEEN: Mr. Chairman, the ayes having had it, I ANTHONY: In order to clear the record, I did make a move - - motion and I believe it was seconded, but since the will of CHAIRMAN: The Chair will rule that the noes had it the body is to adopt this section, I’ll withdraw the motion. unless a roll call is requested. CHAIRMAN: As amended. We’ll now proceed to Section 24. WOOLAWAY: Roll call. DOWSON: I move that Section 24 be deleted due to the TAVARES: There is a motion before the house as to what possibility that it will weaken the freedom set up by the the report should state. I think that should be adopted. other sections. ROBERTS: Iso move. DELEGATE: I second that motion. ANTHONY: Mr. Chairman. ASHFORD: May I say that this section is my child but the child is a changeling. The swan has become an ugly CHAIRMAN: Motion is whether we should insert in the duckling and In its present form I am In agreement with report an explanation for the deletion of Section 24. All having It stricken out. those in favor say “aye.” CHAIRMAN: All those in favor of having Section 24 ANTHONY: I’d like to speak to the motion first. I think deleted say “aye.” Contrary minded. Section 24 is deleted. I had the floor. We’ll now proceed to Section 25. CHAIRMAN: Contrary minded. MIZUHA: May I suggest that we take up Section 25 at the ANTHONY: I had the floor, Mr. Chairman. end inasmuch as it’s a general clause. CHAIRMAN: I didn’t recognize you. I’m sorry. TAVARES: Lest there be - - in order that there be no misunderstanding when we adopt this Bill of Rights after ANTHONY: Well, will the Chair recognize me now? we go back into regular session, I should like to move, and CHAIRMAN: You are recognized. I so move, that when the Committee of the Whole writes its report it makes It very clear that the deletion of this Section ANTHONY: Judge Heen has just stated that these - - that 24 is not made for the purpose of eliminating the construction the report carries with it an expression, as I understood the of most constitutional provisions today, that all of these debate, that the rights are not absolute. Now that may be rights are subject to the power of the state to legislate in true as to some of the items in the Bill of Rights, it’s not the interest of the public health, safety and welfare. It true as to all. For example, the right of trial by jury in a should be made very clear so that it would not be urged criminal case is an absolute right. In other words nobody later on that we deleted this for the purpose of making can take that away from the people. So I think that state those rights absolute. I think the report should so state ment is perhaps just a little bit broad. There are certain and I so move. rights that are guaranteed and they’re definite, those that have great precision, like the right of trial by jury. CHAIRMAN: The report will show that - - Mr. Tavares. CHAIRMAN: The Chair should like to point out that CR~SLEY: In seconding that, may I ask the movant if he Section 24 is not before this committee for discussion. It means by that that all rights themselves are not absolute has been deleted. rights. Is that - - CROSSLEY: Speaking to the motion that is before us, TAVARES: That is correct, Mr. Chairman. Mr. Chairman - - CROSSLEY: I certainly second that motion. CHAIRMAN: There is no motion now. CHAIRMAN: The Clerk will make a note of that so that CROSSLEY: Yes, there is a motion. the report will show it. CHAIRMAN: It’s been adopted. HEEN: It seemed to me in order to obviate any argument at all about this situation that that section should remain CROSSLEY: Was the motion adopted? and should read: “The rights and privileges hereby secured CHAIRMAN: The motion has been adopted. I had just shall not be construed as being absolute.” You have it in explained - - there. There’s no room for argument at all. You don’t need to have the court make any interpretations that they ANTHONY:. The Chair had just put the question and didn’t are absolute. The courts have interpreted, made interpre call for ayes. tations along that line, that these rights are not absolute, CHAIRMAN: I called for the ayes while you were but have it in the Constitution and then there can be no ar asking to be recognized. And the committee voted in favor gument about It. of - - CHAIRMAN: That section has been deleted. There’s ANTHONY: I rose to be recognized before the question nothing before the committee. That section’s been deleted. was put. BILL OF RIGHTS 28 CHAIRMAN: But you were rec - - you were not recog that we will let the court decide the varying phrase, “pro nized. bable cause,” with respect to searches and seizures. And so I would vote now in favor of Section 8. ANTHONY: And the Chair then recognized me after ayes were called and before noes were called. MAU: I’d like to amend Section 8. I move at this time that at the end of Section 8 this sentence be added: “Evi CHAIRMAN: After the ayes and noes were put. dence obtained in violation of this section shall not be ANTHONY: No noes were ever called. The record admissible in any court against any person.” will show. DELEGATE~ Second the motion. CHAIRMAN: Well, will the Clerk please read the record MAU: Speaking on the motion, Mr. Chairman - - please? CHAIRMAN: Will you please repeat the wording of your CROSSLEY: May I suggest - - motion slowly so that the Clerk may take the wording? CHAIRMAN: The Clerk will show that noes - - ayes MAU: “Evidence obtained in violation of this section and noes were put. shall not be admissible in any court against any person.” The Chair recognizes that a second has been made? CROSSLEY: May I suggest to the Chair that you put the Speaking on the motion, Mr. Chairman. A recent decision question again? of the Supreme Court of the United States, Colorado against CHAIRMAN: If there is a request of this Convention - - Wolf, announced that states may admit certain evidence even of this Committee of the Whole that I reput the question, I’ll if illegally seized in accordance, of course, with their state be glad to. The question before this Convention - - before laws. We are to determine for the new state whether evi the Committee of the Whole is to embody in the report an dence which may be illegally seized may be admissible in explanation for the deletion of Section 24. All those in favor the state courts in criminal cases. I might state to the say “aye.” Contrary minded. Carried. Section 24 is de members of the Convention that in the federal court - - such leted, and the report will show the reason for its deletion, evidence seized illegally may not be used in the federal as explained by Mr. Tavares. court. And the Supreme Court of the United States recog nized that principle in the late case, Colorado against Wolf. ANTHONY: Well, Mr. Chairman, that’s just the point of It is my purpose in making this amendment to guard the my rising. We’ve had no debate and had no vote on what rights of the individual when they appear In court in crimi the explanation is. And I object to the Chair’s stating what’s nal cases. It seems to me that although the committee may going - - the report is going to show without taking the sense recommend that this be a legislative matter and be referred of this committee on it. to the legislature for determination that this comes to one CHAIRMAN: The Chair can only put the question as put of the fundamental rights and that we should have this sen by the Convention. The Committee of the Whole made the tence added to protect one of the fundamental rights belong motion with an explanation that that be embodied in this ing to our citizens. And that is why I am in favor of that report. That motion was put and carried. motion. MAU: I realize the position of the chairman, but I don’t ANTHONY: I’d like to speak In opposition to the amend believe that ample opportunity was given to discuss. I ment. The committee has very carefully followed the rose three times and the chairman just announced - - language of Article 4 of the Federal Constitution. That carries with it the decisions of the Supreme Court of the CHAIRMAN: Then the Chair will suggest that you ask United States interpreting that article. Those decisions for reconsideration of the subject. have already been imbedded firmly in our federal system, MAU: I move for reconsideration of that motion. that evidence illegally secured may not be admitted in evidence in face of an objection that it violates the Fourth CHAIRMAN: All those in favor of having the motion Amendment to the Federal Constitution. Therefore, if we reconsidered say “aye.” Motion - - No. Contrary minded. preserve intact the very language of the Fourth Amendment, The motion is lost. Now what is the next - - we also carry with it those decisions of the Supreme Court IvflZUHA: I believe we deferred certain sections of the that would prevent the admission of such evidence in any Bill of Rights at the last meeting of the Committee of the trial. It would not permit the state to pass legislation that Whole, and it would be proper at this time to take up Sec - would make such evidence admissible if we have the provi tion 8 following the numbered sections of the Committee sion in its present form. And therefore I think it will be Proposal No. 3. Section 8. The delegate from the fifth dangerous to add the suggestion. It’d be better to leave it district who asked to be heard on that subject, I believe as it stands. Delegate Trask, should be heard on the matter on Section MAU: In answer to the statements made by the last 8 with reference to unreasonable search and seizure. A speaker I think that the supreme court of the State of Hawaii motion is in order at this time. will perhaps give great weight to the cases laid down by the BRYAN: I move the adoption of Section 8. Supreme Court of the United States, in view of the similar language taken from the United States Constitution. But it DOWSON: I second the motion. doesn’t mean that the supreme court of the State of Hawaii A. TRASK: I had asked for Section - - could not follow the decisions of the various state courts and even follow the decisions of Colorado against Wolf. I CHAIRMAN: Motion has been made and seconded that would admit that these cases in the Supreme Court will be we adopt Section 8. of great weight in determining that question. I agree, so A. TRASK: I had asked for deferment on consideration far as that goes, but I am also saying that it does not prohibit to Section 8. I have since taken the matter up with the the supreme court of the State of Hawaii not to admit evi chairman and other members here with respect to the re dence illegally state - - illegally seized in state courts In cent decision of the Supreme Court, and it is the consensus criminal cases. JUNE 5, 1950 • Morning Session 29 HEEN: I don’t think you need that last sentence suggested ANTHONY: I’ll answer the lady’s question, if I may. by the last speaker at all, because if the evidence was ille The purpose of this is to make sure that there will be no gally secured then the courts must refuse to admit such evi unlawful search or seizure and if there is, then when evi dence. And to admit it would be violation of this provision dence is obtained by the police or the F. B. I. or anybody else in the Constitution. No question about it. pursuant to an unlawful search and seizure, it may not be A. TRASK: Mr. Chairman. used in any court against the person that it’s sought out to be used against. In other words this makes inviolate your CHAIRMAN: Senator Trask is recognized. home and your person against any unlawful search and seizure. A. TRASK: I yield to Delegate Mau. MAU: In answer to the last speaker, if this sentence is AKAU: Mr. Chairman, I’d like to thank the delegate from the fourth district. I’m wondering if in some of these not added I don’t think that there’s anyprohibition against —this terminology we could recommend to the Style Com the state from enacting laws which have been enacted in mittee to be very careful about the simplicity of language other states to change the concept of illegally seized evi because even in my simple mind I can’t get some of it. dence. And that’s what we’re driving at in order to put it into the Constitution, so that the state legislature is res CHAIRMAN: The Chair will express the welcome for tricted from passing any laws which would admit evidence the members. All those in favor of accepting Section 8 with which we today consider, following federal cases, to be an explanation in the report as ruled by the Supreme Court illegal evidence, illegally seized. However we might be of the United States, say “aye.” Contrary minded. Carried. able to resolve this question if the committee will agree to MIZUHA: Section 9. place in its report that this provision follows the provision of the United States Constitution and all of the cases. The CHAIRMAN: Section 9 is now in order. law laid down in the cases by the United States Supreme BRYAN: I move the adoption of Section 9. Court should be followed by the supreme court of the State of Hawaii. DOWSON: I second the motion. TAVARES: I so move that in our report we so state. CHAIRMAN: Same motion, same second. Open for discussion. CHAIRMAN: The Chair will instruct the chairman of the Committee on the Bill of Rights that in his report, final MAU: Point of information. I wonder if the committee analysis report, that we’ll put this provision in. It’s my could tell the Convention whether or not it considered the report. possibility of indictment even in felony cases by information. A. TRASK: Yes, Mr. Chairman, and in furtherance of MIZUHA: The question was raised with the office of the the same idea I have turned over to the chairman of the attorney general as to whether the language of Section 9 Bill of Rights Committee that particular case United States would permit prosecution by information. There was some vs. Rabinowitz, decided February 20, 1950, so that there’d disagreement between the office of the attorney general and be no doubt in anybody’s mind that the supreme court will some memb ers of the Convention here. And I believe the follow the rules right down in the Supreme Court of the delegate from the fourth district, a distinguished jurist who United States and not follow any state court with respect to had had court experience, Delegate Heen, entered into those this same section. deliberations and I believe it is proper at this time to have his remarks for the record. CROSSLEY: In view of the willingness of the previous movant of the amendment, I move to table the amendment. HEEN: Under the language used here in Section 9, there can be no information presented against an accused in felony MAU: I withdraw the motion. cases, cases that are capital or infamous. We have a statute CHAIRMAN: The amendment has been withdrawn so it which allows the filing of information in the circuit court in clarifies the section. certain cases, and those will have to be, of course, limited to misdemeanor cases. Here under this language no infor MAU: I withdraw. mation having the force and effect of an indictment can be CHAIRMAN: The only motion now before the committee filed in felony cases. -shall we adopt Section 8? All those in favor say “aye.” CHAIRMAN: Is that true? AKAU: Point of information. MAU: Another point of information. I wonder if the CHAIRMAN: Point of information has been requested distinguished jurist has given thought to the cumbersome through Mrs. Akau. procedure involved in grand jury indictments and what the modern trend is, whether or not some states have not fol AKAU: Statements have been going back and forth about lowed the information procedure even in felony cases. various cases in the supreme court. I’m wondering if that would clarify a certain right that we’ve been talking about HEEN: I have not given this subject any consideration here—the right of people to be secure in their persons and along those lines. But I think that no person should be so forth. Does this imply here that the right of searchers prosecuted in felony cases except upon the indictment of to go intu homes without warrant and if any evidence is the grand jury. To give a prosecuting officer the right to found that these people are suspected? Is this what they’re file information instead of indictment would give that pro talking about in a legal language, or am I on the wrong secuting attorney too much power altogether. There should track here? be some limitation on the power of a prosecuting attorney and that limitation would be the requirement that a person CHAIRMAN: The question put to the Chair or to the one accused of a felony must be by indictment of a grand jury. that made it? [Akau not clearly audible.] Chuck Mau, do In the constitution of Missouri, we have this, “That no you mind giving the lady a little explanation? Mr. Mau, a persons shall be prosecuted criminally for felony or mis question has been put to you. demeanor otherwise than by indictment or information 30 BILL OF RIGHTS which shall be concurrent remedies.” In other words in called, of the grand jury, I’d like to reecho the statements Missouri you can proceed In a felony case by information of the last speaker. The grand jury serves a very impor or by indictment, either way. But I think we ought to pre tant screening process and protects persons from being serve the requiren~nt of indictment by grand jury. persecuted. TAVARES: I am not going to oppose this section although CHAIRMAN: The only question before this Convention I personally believe that it could well be liberalized or, is shall we adopt - - before the Committee of the Whole is according to the last speaker, made more the other way. shall we adopt Section 9 as written by the committee? All But I do like - - I would like to have the Convention under those in favor say “aye.” Contrary minded. Carried. stand the situation. The fact is that the modern trend in MIZUHA: Section 12. many states has been away from an absolute requirement of a grand jury. There are a number of states today that CHAIRMAN: Section 9 is adopted. don’t even require an indictment, that allow an information. MIZUHA: Section 12 has been deferred. There are others where the constitution permits the legis lature to regulate that, to reduce the number of grand jurors CHAIRMAN: Section 10? or to permit prosecution by information. MIZUHA: The speaker desires that the Section 10 and - - The grand jury arose in the good old days when kings and barons and people of high estate in England could throw CHAIRMAN: Section 12 has been - - somebody into jail on an information and keep him there MIZUHA: They deferred - - without trial for a long time. Under modern conditions that is not - - that is seldom abused, that power of inf or CHAIRMAN: The Chair will move that Section 12 be, mation. And I want to say that many states have done away brought up at this time. with the grand jury or reduced the number or otherwise BRYAN: I don’t think the Chair can make that motion. regulated it, and I don’t think I’ve heard any particular It’s in order for me to make it. I move that Section 12 be complaints about the matter being too much abused when adopted. you remember that you still have the right of a trial by jury afterwards in case you are indicted or whether — - in case CHAIRMAN: Motion made that Section 12 be adopted. an information is signed against you. DOWSON: I second the motion. CHAIRMAN: I would suggest that we defer action on CHAIRMAN: Same motion and same second. this to see if we can get together on rewording of this sec tion to satisfy the objections to Section 9. ROBERTS: Would you read that? ANTHONY: I’d like to ask a question either of Mr. Ta CHAIRMAN: Mr. Roberts. vares or the chairman of the Bill of Rights Committee. ROBERTS: Would you please, would you please read that. Statement has been made that many states have abolished indictment by grand jury. Is that the fact, Mr. Chairman? CHAIRMAN: Mr. Roberts recognized. ROBERTS: I’d like to have the language read that we’re IvUZUHA: It is my recollection that most of the western adopting. Which language, the one that’s proposed or the states permit prosecution by information in felony cases. original? However, the question as to whether or not we should have prosecution by information or first by indictment by grand MIZUHA: I believe - - jury is a question that strikes at the heart of the rights of CHAIRMAN: As written by the committee. That’s all the people. If you have a prosecutor who is rather anxious we have before the house, before the committee. to make a record for the prosecution of the people, why he can go into court at any time with an information without MIZUHA: In order to avoid confusion there have been the safeguard of a grand jury. As it is, as the most of you two drafts circulated; one with the omission of the sentence will recall there are many cases that are presented to the on witnesses and one with the sentence on witnesses included. grand jury in which the grand jury returns a “no bills.” In And probably it is proper at this time to hear from the dele that case then the prosecutor is powerless to proceed with gates as to whether or not they would like to have that sen the prosecution. However, if we have information permitted tence included or deleted. in the State of Hawaii, prosecution by information, then any prosecutor who desires to make a record of prosecutions CHAIRMAN: Would the committee care to have Section can go into court with information and prosecute anyone he 12 read as amended? pleases. WIRTZ: For point of information. I think it’s only proper ANTHONY: I think the section ought to stand as drafted that the movant of Section 12 should move it in the form that by the committee. It’s entirely too much power to put in he wants it in. There’s been a motion on the floor to adopt the hands of a single prosecutor, the right to bring some Section 12. Which Section 12? body before the criminal courts in a felony charge. All of CHAIRMAN: A motion has been made to adopt Section 12 us know that when a person is charged in a criminal case as originally written. in a felony, most people remember the fact that so and so was indicted, but very few remember that he may have been BRYAN: That’s correct. acquitted, and so you - - we have this screening process of CHAIRMAN: And that was the motion. Now if there is an indictment by a grand jury which I think is a wholesome ‘any amendment in its adopt - - amended form, you can move thing in support of the liberties of the people. for these. CHAIRMAN: I put the question. HEEN: It seems to me that the last sentence of that WIRTZ: Perhaps as being one of the delegates who’s section is unnecessary. That matter can be handled by the had more experience with the cumbersome procedure so legislature. JUNE 5, 1950 • Morning Session 31 CHAIRMAN: The Chair believes that there were several C. RICE: Very good draft. amendments to be brought in and maybe the amendments cover that deletion. I do not know. ANTHONY: I move that Section 13 be amended to insert a period after the word “debt” - - HEEN: There was a proposed amendment reading as follows: “Witnesses in criminal cases shall not be un CHAIRMAN: I thought you were going to say after the reasonably detained or confined.” One critièism against word “thirteen” — — after the letter “thirteen.” that, that was made to me by Delegate Ashford, that that ANTHONY: - - and delete the remainder of the sentence might mean that you can detain witnesses in civil cases. which - - CHAIRIVIAN: By implication. DELEGATE: I second the motion. TAVARES: I agree that that sentence is - - the inclusion ANTHONY: So the section will then read: “There shall of that sentence is not a wise one. It has received no con be no imprisonment for debt” period. struction by the courts as far as I know, and I think that if a witness is unreasonably detained, under the Constitution TAVARES: In agreeing with the amendment I should like or the Bill of Rights of this state as it will be adopted or the report of this committee to state that this was deleted, the Federal Constitution, a witness will probably have not out of any desire to eliminate the power of thelegis ample protection. He can get out on habeas corpus and as lature to provide for such exemptions, which it now does, far as Delegate Ashford’s statement was concerned, it was but simply because that’s implied anyway in the general only in answer to a question about what’s the meaning of grant of legislative powers. the writ of ne exeat, and she merely explained, as I under stand it, that the writ of ne exeat is a civil action which used MIZUHA: That is understood by the committee. to exist in some states and in this jurisdiction which pre TAVARES: And I second the motion. vented a person from going out of the jurisdiction until the courts permitted him to do so. That has been abolished, CHAIRMAN: All those in favor of adopting Section 13 as and unless we put it into the Constitution I don’t think that amended say “aye.” Contrary minded. Carried. we can impose such a writ in this jurisdiction. One sentence - - J. TRASK: I move that we amend Section 12 by deleting MIZUHA: Section 14. the last sentence. CHAIRMAN: Section 14. Same motion? A. TRASK: I second that motion. BRYAN: I move the adoption of Section 14. DELEGATE: I second that motion. CHAIRMAN: Same second? CHAIRMAN: Motion’s been made and seconded that we DOWSON: I second it. delete the last sentence of Section 12. “Witnesses in criminal cases shall not be unreasonably detained or con MIZUHA: Section 14 was again discussed with the rep fined.” All those in favor say “aye.” Contrary minded. resentative of the office of the attorney general, with another Carried. distinguished jurist from the fourth district, and at this time I’ll call on Delegate Anthony to express his views on the IvIIZUHA: Section 13. subj ect. CHAIRMAN: Section 12 now reads: “Excessive bail shall not be required nor excessive fines imposed nor cruel CHAIRMAN: Mr. Anthony, care to be recognized? and unusual punishments inflicted.” ANTHONY: lam not a jurist. CHAIRMAN: All those in favor of adopting that section CHAIRMAN: No explanation necessary. as read say “aye.” Contrary minded. Carried. ANTHONY: The question raised by the attorney general’s BRYAN: Just to keep the records straight, let’s put in department was the phrase in the second line “nor shall there a motion that the section be adopted as amended4 the laws or execution of the laws be suspended.” And the J. TRASK: Second the motion. opposition was that that would defeat the enactment of such legislation as the Hawaii Defense Act. I’ve reviewed CHAIRMAN: That motion has already been put. that subsequent to the last discussion, and I believe that 1V]IZUHA: Section 13 now. that is a desirable deletion and therefore I would move that the phrase “nor shall the laws or the execution of the laws CHAIRMAN: Section 13. be suspended,” be deleted. DOWSON: I move for the adoption of Section 13. ANTHONY: Including both, one comma. BRYAN: I second the motion. CHAIRMAN: Motion has been made and duly seconded that the words “nor shall the laws or the execution of the ASHFORD: Thirteen was deleted. laws be suspended,” be deleted. MIZUHA: Section 13 was not deleted but it was deferred. ASHFORD: I move to amend that motion by adding to it CHAIRMAN: Section 18 has been deleted. “and that a period be placed after the words ‘requires it’ and the remainder of the sentence stricken.” IvflZUHA: Section - - CHAIRMAN: Thirteen has been deferred. ANTHONY: Is there a second to that motion? MIZUHA: There is a new draft of Section 13 on the desk PHILLIPS: I second the motion. of the delegates, which contains only one sentence: “There ANTHONY: It’s been seconded. I’d like to speak against shall be no imprisonment for debt.” I believe the delegates the amendment. I think it’s - - the purpose of that, the should be heard on the subject. delegate from Molokai will recognize, is to make sure that 32 BILL OF RIGHTS the only body that can suspend the writ is the legislature, ASHFORD: I concur with Delegate Trask. I think if the In other words there cannot be an executive suspension. last phrase in that Section 14 is retained, there’s no reason It is to. clarify the difficult situation that arose under the in the world why the second phrase should not be - - second Federal Constitution in which by reason of the position in clause should not be retained. In other words, if it is to be the article, there was a debate whether it could be done by cared for by a general act of the legislature in times of the executive or by the legislature. This language, I think, peace, then there’s no reason why that act of the legislature is good because it shows that it can only be done by the could not provide for the suspension of laws at the same legislature and in the manner provided by the legislature. time as it provides for the suspension of the writ of habeas In other words no executive can go around and suspend the corpus, and the method in which it should be done. privilege of the writ. He’s got to have statutory authority MIZUHA: Perhaps the section should be explained in its and the precise method, and the duration, which is also entirety. In the event the second clause “nor shall the laws very important, be fixed when the legislature does suspend or the execution of the laws be suspended” is deleted, then the privilege of the writ. the delegate - - the suggestion by the delegate from Molokai SMITH: I move that the amendment amending the amend as to the deletion of the last sentence is in order. Then the ment be tabled. section would refer only to the writ of habeas corpus. The question with reference to the suspension of the laws would MAU: Point of information. I was wondering whether or be a statutory matter, or a matter for the legislative article not the delegate from the fourth district would interpret to decide. That is the original position on the part of the Section 14 a little more fully to the Convention. Assuming office of the attorney general, that if we delete the second that the words “nor shall the laws or the execution of the sentence then the last - - second clause, then the last clause laws be suspended” were left in, wouldn’t the legislature - - should be deleted. couldn’t the legislature, even under that provision, provide KELLERMAN: Did I - - point of information. Did I for protection? I remember the argument made at the last understand Mr. Anthony to - - or the gentleman from the meeting of this committee that in view of the new type of fourth district to state that he now believes that the second warfare, it might be that we had to have a suspension of laws clause should be retained in Section 14? Would he answer immediately, and I wondered whether the legislature couldn’t that question? Then I’d like to speak to the point, provide for such a contingency under Section 14 as now worded without any amendment. CHAIRMAN: That is my understanding. PORTEUS: There is, as I understand it, a motion pending ANTHONY: I believe on further reflection that the to further amend the amendment and also a motion to table sections should pass as drafted by the committee. that amendment. If we can dispose of that, I think then the KELLERMAN: I agree with that for this reason. If you question - - delete “nor shall the laws or the execution of the laws be CHAIRMAN: The motion to table was not seconded. It suspended” you’re restricting the entire section only to the was not seconded. writ of habeas corpus. The legislature could then constitu tionally pass a general act which would grant the executive PORTEUS: The motion to table - - the power to suspend the operation of the laws at any time CHAIRMAN: The only motion we have is an amendment he felt like it, which seems to me to be a very tremendous exercise of power and certainly something that should be to the amendment. limitecd in the interest of the people by a constitutional ANTHONY: In answering Delegate Mau’s question, I prohibition. would construe Section 14 to permit the legislature to pass CHAIRMAN: The Chair feels that if it is so, then all a statute which would authorize the suspension of the laws previous motions should be withdrawn rather than be put. as well as authorizing the suspension of the privilege of the writ. In passing such a statute then the legislature TAVARES: I do not agree with the withdrawal of the would deposit executive power with the governor to state motion. Those words are new, “nor shall the laws or the the circumstance and the duration in which the privilege execution of the laws be suspended.” As far as I know of the writ could be suspended or the laws could be suw they’ve never been interpreted in any other constitution. pended. Does that answer the delegate’s question? And Suspension of the laws isn’t only confined to time of war. so with that in view, perhaps the section could very well stand You have provisions that when certain things happen certain as drafted. laws shall be suspended in civil matters. This thing is going to leave a terrific ambiguity in your laws, it will A. TRASK: I’d like to ask Delegate Anthony this question. cause 15 or 20 years of litigation before you know what it ff~ that second clause “nor shall the laws or the execution means. If the legislature says, in case the federal gov of the laws be suspended” is in fact deleted from this Section ernment suspends payment of certain payments, some other 14, would that not allow trial by jury and other rights of laws shall be suspended for our paying out money, this similar absolute nature be suspended with the writ of habeas thing will be attacked under this section. It has no meanings corpus? In other words, as amended the import of the sec that are definite enough for us to be sure of it, and I submit tion is limited only to the suspension of the writ of habeas it should go out. It’s too broad. corpus, not to the attendant laws with respect to other rights. Now that’s why it seems to me that if we delete WIRTZ: It seems to be an appropriate time. I move we that second clause the purpose of the suspension of the writ take a recess. is necessarily tied up with other laws, and so I just question DELEGATE: I so move. the advisability of deleting that second clause. CHAIRMAN: Short recess declared subject to the call ASHFORD: I concur - - of the Chair. A. TRASK: The question to be answered - Oh, pardon (RECESS) me. JUNE 5, 1950 • Morning Session 33 [Part of the proceedings not taped. Delegate Mizuha DELEGATE: That’s under Committee Report No. 24. moved for deferment of Section 14. CHAIRMAN: Committee Report No. 24. MIZUHA: - - is in Committee Proposal No. 4. BRYAN: I’d like to speak to delegate from the fourth. CHAIRMAN: Six, as I recollect. I think when that came up in the committee, we had con siderable discussion on that, and it was the feeling that MIZUHA: Is in Committee Proposal No. 4, entitled this section would not prevent voluntary segregation. Is Section 6. And at this time it is proper to consider Section 6. that correct, Mr. Chairman? In other words if someone was to enter the militia and because of his religious prin CHAIRMAN: Section 6 of Committee Proposal No. 4, ciples wanted to restrict his activitiy therein, it could be is now open for discussion. restricted by the militia on a voluntary basis. BRYAN: Did I understand the committee chairman to MIZUHA: That’s correct. move the adoption of Section 6? TAVAi~ES: On the other hand, let’s think what would CHAIRMAN: No. have happened if this were in the Federal Constitution. We have a National Draft Act, we allow conscientious objectors BRYAN: I so move. to be excluded, or to be sent over to non-combatant service DOWSON: I second the motion. and so forth, but we give the government the right not to take them if they’re conscientious objectors. We don’t CHAIRMAN: Motion has been made and seconded that - - force them to fight. Immediately you’ltforce the govern DOWSON: - - adoption of Section 6 in the - - ment to put him on the payroll and pay him even though he’s not willing to do 100 per cent of what the government orders CHAIRMAN: - - we adopt Section 6 of Committee Pro him to do. It seems to me that’s going too far. Now if the posal No. 4. committee report would state that this was not the intention, TAVARES: Mr. Chairman, a point of information. I of going quite that far, why I think that might take care of wonder, I may be perhaps going into too much speculation it, but as it stands literally now, you give a conscientious here, but I wonder if this means that a person whose religion objector the power to come to the enlisting people and say, prohibits him from fighting, but not from joining the mili “Look, I want to enlist in this militia and collect my salary tary organization~for other purposes, would have the right as a buck private; I’m not willing to fight, I’m not willing here to force the National Guard to accept him even though to do only one or two things, but you’ve got to take me on he wouldn’t fight. I think when you put religion in here, and you’ve got to pay me that salary.” you might get to that situation, of a man saying, “I’m con stitutionally averse from my religion to killing somebody, ASHFORD: Does that - - does the language as it exists but I’m willing to serve in the medical corps. Therefore here in Section 6 not permit a classification without regard I insist the National Guard take me.” I wonder if that’s to religion? Suppose a man has religious scruples against been considered. killing other people and there is no place in that organiza tion where a man who will not shoot is fitted. Is that not a MIZUHA: I believe the policy on the question of enlist proper method of classification which has no relation to ment as raised by the delegate from the fourth district can religion? be answered by the policy of the armed services during the recent war. Conscientious objectors were accepted in the CHAIRMAN: Care to answer the question, Mr. Mizuha? service of this country in non-combatant positions. They MIZUHA: With reference to the desire of a conscientious were welcomed in those positions because in the state of objector to serve in a non-combatant position, that’s a total war this country desires the service of every individual voluntary choice on his part and certainly in the armed who can contribute something. And as one who had gone to forces of this country we have lots of positions that the ‘war, may I say that a non-combatant soldier is just as im non-combatant can serve in. In the recent war, for every portant as a combatant soldier, and if there is a person, man on the front line we needed about 12 behind the front because of religious scruples, who does not wish to serve lines. And I think the delegate of the fourth district is as a combatant but is desirous of serving as a non-combatant wrong in his idea that there’s no room for the conscientious with the armed forces, I think he should be welcomed. objector in the armed services of our country. They should be welcomed, for this country has recognized religious TAVARES: I don’t doubt but what if they can use him freedom throughout the centuries. And if because of that they ought to do that, but they may need these non-combatant s recognition that individual says that he cannot fight on the in civil jobs and here you’re giving him the right to force front lines and kill other people but desires to serve this himself upon the military even though he doesn’t want to do country in non-combatant duties as a member of the armed all that the military will order him to do. Now I agree we forces, we should welcome him and give him that chance. should use all the people we can, and I certainly don’t want That is what America stands for at the present time, and if to see those people’s rights, who through their religion because of conscientious objector’s philosophy of life he don’t believe in killing other people, infringed, but at the does not wish to carry the rifle, but wants to administer same time I think if that’s what the purpose of this - - pur first aid to anybody on the front line, why that is something port of this is, that you’re going a little far in saying that that we should encourage and not deny. the military must nevertheless accept him although he can’t be a 100 per cent soldier. I think that’s cutting down the TAVARES: I think I’ve been misunderstood. I do not say powers of your military in selection a little bit too much. there is no place for those people, but I do say this, that their place might be in the civilian occupations. You have A. TRASK: Point of information, Mr. Chairman. What a national guard unit. We are not the national government. section are we dealing with, please, and how does it read? In case of a draft the national guard - - in case of a war, the national guard, the military forces’ functions in the CHAIRMAN: Section 6, Proposal No. 4. community are limited. The federal government takes over. 34 BILL OF RIGHTS In our limited need and our limited funds, the state needs that a person with religious scruples could compel himself national guardsmen or that type of military only for certain to be accepted as an enlistment. Now he says you can’t and specific purposes. points to the report. I think that should be made clear. Now why should they be forced to take conscientious ob jectors? I say yes, give the conscientious objectors the MIZUHA: Under the report as submitted here, it isn’t right to volunteer, but give your state also the right to for us to decide what qualifications the legislature may prescribe or what authorization the legislature may give choose and say, ~‘Now look, we need a 100 or a 1,000 men in the creation of the Hawaii Territorial Guard as to what who are willing to carry a gun. That’s all the money we’ve their rules and regulations, which will have the force of got, that’s all we need. We don’t need a conscientious ob law, should be. First of all, I’m proceeding on the general jector, therefore we can’t take you.” I see no objection to principle, and in the event the legislature sees fit to lay that. We’re not forcing him to fight. What I see the objection down the other principles for enlistment, it is for the legis to is to have this conscientious objector come and say, lature to decide. I do not believe I’m contradicting myself “Although I am unwilling to fight with those 1,000 men, I on thaf point. still insist you take me in, create a special category of non-fighters and pay me and keep me on the payroll.” I TAVARES: If I were satisfied that the words in the think that’s going a little too far in strapping the powers of report to the effect that regulations might deny enlistment the state. on the basis of security to this state, if I were satisfied CHAIRMAN: Any other objections to Section 6? that that covered the situation I would accept it as an ex planation. However, I wonder if the word “security” is MIZUHA: May I speak on the subject, and refer to broad enough. You may have a person extremely loyal, no Committee Report No. 24? The third paragraph on the question of security involved, but .you only have need for first page reads as follows: “Section 6 is divided into two say 500 men to carry a gun and guard your ports, and that’s sections. The first section provides that no citizen shall be all the money you’ve got. Now why should you have to take denied enltstment in any military organization of this state. on a conscientious objector? It’s no matter of security nor be segregated therein because of religious principles, perhaps there, unless the chairman wants to say that that race, color, ancestry or national origin. In providing for is involved. If he says that that’s what it means, I will this clause, it is the intention of the committee that this accept it. provision in the Constitution should not be construed as preventing the legislature of the State of Hawaii in creating MIZUHA: Certainly If it is the legislative finding in any military organization or from authorizing such organi creation of the Hawaii Territorial Guard and it calls for a zation to adopt such rules and regulations relative to age, security board and that security board feels that the security health and other qualifications for enlistment, or to deny of the State of Hawaii in time of war cannot permit the con enlistment on the basis of security to this state and to the scientious objectors to serve because they cannot defend nation.” the country, or defend the state, well, that is for their in I refer to that last clause “or to deny enlistment on the terpretation; it’s not for the Constitutional Convention to basis of security to this state and to the nation.” In the decide what is the breadth of that term of “security.” event that we have a state militia which goes - - which is BRYAN: I think that the delegate from the fourth is incorporated into the armed forces of this nation in time worried about a limited guard and having fit and willing of war, the armed forces has the policy to take care of the persons displaced by those that are not willing to do certain conscientious objectors; they will be under federal juris things. I would believe if the enrollment or enlistment was diction. Then we would have perhaps an organization like limited, the National Guard would be free to say that they the Hawaii Territorial Guard which functioned during the could take the first 500 most qualified persons and certainly war here, which would be the home militia. If in the cre on that basis they could pick and choose very carefully.~ ation of the Hawaii Territorial Guard the legislature provided for such qualifications which it deemed for the best interest TAVARES: If that is the meaning of the term, and it’s so of the State of Hawaii; if the legislature in creating that understood, I’ll vote for it; but I wanted that made clear. Hawaii Territorial. Guard would state that the security - - I didn’t think it was in the beginning. would make provision for a security board, which security board would determine that a conscientious objector who DELEGATE: I think it is. remains at home and just cooks is not of the type of calibre MIZUHA: I believe the report was quite clear in the that would be necessary for the security of the State of method it was written, that this Convention is not going to Hawaii because he’s a non-combatant, I believe there is write statutory legislation in the Constitution, and the point ample room to deny that person enlistment in the Hawaii that the delegate from the fourth district raises is a legis National Guard. lative matter. But with this provision here I believe the fears of the delegate from the fifth—fourth district are not of consequence CHAIRMAN: Chair will now put the question. All those at all, because as we know, under the definite standards laid in favor of adopting Section 6 as written by the committee - - down by the Supreme Court of the United States, they have A. TRASK: Point of information. Is Section 6 limited determined what a conscientious objector is, and in the just to the first paragraph, or does it—on which the debate history of litigation in this country, with reference to con has been centered on—or does it include also considera scientious objectors, they reflect but a small minority of tion of the second paragraph which reads as follows: “No the people of this country, very small. And to raise the person shall be denied the enjoyment of his civil rights nor question that he has raised, it seems as though if we are be discriminated against in the exercise of his civil rights to have the full participation of our citizenry in the armed because of religious principles, race, sex, color, ancestry forces of our nation we should give them a place if they or national origin”? desire to serve God and country. TAVARES: The chairman of the committee now seems CHAIRMAN: The question is to adopt the section in its contradictory. A little while ago he said it was intended entirety, Including the second paragraph. JUNE 5, 1950 • Morning Session 35 A. TRASK: Well, I’d like to direct the attention of the this Bill of Rights, this section, we will not be infringing on Convention to the second section and ask of the chairman the rights of any persons entitled to benefits under the Ha whether or not he considered this second section with waiian Homes Commission Act. reference to the Hawaiian Homes Commission Act? Now in the Hawaiian Homes Commission Act committee report A. TRASK: I concur with the expression of the delegate which it submitted, and the proposals with respect to its from the fourth district, and at this time move that this inclusion in the Constitution, there is the opening provision expression may heretofore be incorporated in the report of namely: “All provisions in this constitution notwithstand this Committee of the Whole. ing.” Now, the Bill of Rights Committee has extended to the DELEGATE: Second the motion. Madam Chairman of the Hawaiian Homes Commission Act Committee and to other members of our committee that with BRYAN: I’d like to point out that this particular para that opening sentence in the Hawaiian Homes Commission graph was reworded to get to the point that the delegate Act proposal and its Inclusion in the Constitution that this from the fourth just made. “No person shall be denied the section—this second paragraph of Section 6—will not in any enjoyment of his civil rights,” that means clvil rights that way interfere, and that such statement be included in the would go to him under any other circumstances. Therefore, report of this Committee of the Whole to indicate that this if enjoyment of the rights guaranteed by the Hawaiian Homes Section 2 will not interfere with the provision of the Hawaiian Commission Act do not apply to certain individuals, this Homes Commission Act. Could the chairman answer that? paragraph would not apply to them. CHAIRMAN: Will you please restate the motion. MIZUHA: The Committee on the Bill of Rights had before it the quehtion as to whether or not the anti-discrimination A. TRASK: The expression made with respect to second clause as written herein would conflict with the general Section 2 of - - paragraph 2 of Section 6 be incorporated - - provision for the record incorporation of the Hawaiian as part of the report of the Committee of the Whole. Homes Commission Act in the Constitution. After due con sideration, it was felt that the provisions in the Hawaiian CHAIRMAN: You’ve heard the motion. All in favor say “aye.” Contrary minded. Carried. Motion is carried. Homes Commission section as read by the delegate from the fifth district would take care of the situation, and I believe IvIIZUHA: The vote on the adoption of the whole section if the Constitution as adopted contains that section as read is in order, Mr. Chairman. by the delegate of the fifth district with reference to the Hawaiian Homes Commission, then it will serve as an ex DOI: I understand this Section 22 was deferred to be considered together with Section 6. In the discussion so ception to this Section 6. far, there has been no mention made of the relationship of ASHFORD: Point of information. May I ask the delegate those two sections. It is my opinion that the phrase “civil from the fifth district whether he regards the Hawaiian rights” have as yet not been adjudicated to include the right Homes Commission Act as a racial discrimination in the to marry, and I would like to ask that question of the chair granting of civil rights? man of the Committee of the Bill of Rights, or those who were of the thought that the free civil right does include A. TRASK: I certainly do not - - that particular right I am referring to, whether it is in CHAIRMAN: Question’s been answered. cluded in the civil right. A. TRASK: - - but in drafting such a basic law as this - - MIZUHA: I heartily agree with the delegate from Hawaii and it is a proper subject for consideration by this Conven CHAIRMAN: This is an explanation to the answer? tion. A. TRASK: - - the delegate from Molokai smilingly BRYAN: I’ll move that the committee report show that acknowledges, that we have to make this, the wording here, civil rights in this paragraph extend to the right to marry. precise and exacting as possible, and elastic as possible, and I want to say to the chairman of the Civil Rights Com DELEGATE: I’ll second that. mittee who answered the inquiry that Judge Heen, delegate A. TRASK: Point of information. Does that mean there from the fourth district, has concurred in his conclusion fore that Section 22, which is sponsored by Delegate Doi, is and that we request that the same be included in the report going to be wIthdrawn? of this committee. Will that be done, Mr. Mizuha? CHAIRMAN: That is my understanding; if it’s embodied MIZUHA: I believe that would be a proper subject for a in Section 6, then probably - - in all probability, Section 22 motion on the part of the delegate from the fifth district to will be deleted. be decided by this Committee of the Whole. DOl: That is right; I don’t want to see the Constitution TAVARES: It seems to me that if we adopt or go on the filled with many unnecessary superfluous details. premise, which I think we have to go on until the courts rule otherwise, that the Hawaiian Homes Commission Act DELEGATE: But with this provision there it has to be is constitutional; it is an act of Congress which has already guaranteed. given rights to a certain group of our people; if that act is DELEGATE: May I say that the Delegate Doi has shown valid, and as I say we must presume it until it’s declared statescraft here this morning. unconstitutional by the courts, until and unless it is so declared, then the people of this territory have no civil CHAIRMAN: The report I believe will show that, Mr. Doi. rights to share in that—in the Hawaiian Homes lands, and MIZUHA: A vote on Section 6 is in order at this present- - therefore this civil rights provision will not apply at all, as I read it. CHAIRMAN: Motion is now - - all those In favor of Now if the act is unconstitutional then somebody ought to adopting Section 6 in its entirety as written by the committee, take it into court, and do that, and it’ll take care of itself say “aye.” Contrary minded. Carried. automatically. I feel therefore that actually in adopting MIZUHA: Section 10 is now in order. 36 BILL OF RIGHTS CHAIRMAN: Section 10 is now in order. motion the amendment be adopted, and you can discuss the - - DOWSON: I move for the adoption of Section 10. TAVARES: I move that the amendment be adopted. BRYAN: I second It. DELEGATE: I’ll second it to allow discussion. CHAIRMAN: Motion’s made and seconded. Motion’s been made and seconded that Section 10 be adopted. TAVARES: The Constitution of the Republic of Hawaii allowed majority verdicts. It allowed the legislature to WIRTZ: I rise to a point of information. As I understood make any changes wanted in the number of jurors or the the discussion just previously - - just when we adopted Sec proportion of jurors in both types of cases. It read like tion 6, that something was going to be done with Section 22. this: “Subject to such changes as the legislature may - CHAIRMAN: We’ll come to that and have it deleted later from time to time make in the number of jurors for trial on. of any case, and concerning the number required to agree to a verdict and the manner in which the jury may be ANTHONY: The last sentence of Section 10 reads: “The selected and drawn, and the composition and qualifications legislature may authorize the trial of mental incompetency thereof, the right of trial by jury in all cases in which it without a jury.” From the very beginning of our government has been heretofore used shall remain inviolable except in here way back in the 1840’s, incompetency cases have been actions for debt or assumpsit in which the amount claimed tried by judges sitting in chambers without a jury. It Is not does not exceed one hundred dollars, and such offenses less a kind of a case that requires a - - it is not a suit at com than felonies as may be designated by law.” That’s Section mon law which requires a trial by jury, and therefore, I - - Article 6, Section 3 of the Constitution of the Republic think that we should eliminate that sentence, and I move that of Hawaii. the motion be amended to eliminate the last sentence of Mr. Chairman, I am not asking this Convention to go as Section 1 - — it’s 10. far as the Republic of Hawaii went, although I think there’s A. TRASK: I second that motion, but in seconding that sound reason for it. I am only asking an amendment which motion I don’t agree for the reasons given. I do think, and will allow the legislature if it so chooses to provide for there is considerable thinking on the part of many people three-fourths majority verdicts in civil cases and to provide rightly or wrongly, that many people are committed to our for three-fourths majority verdicts only in those misde institutions here wrongly and improperly. And I am for the meanors that are punishable only by fine. deletion of that situation and let the legislature in their own A. TRASK: May I ask the delegate a question? Why is manner go ahead and make provisions if they deem possible, the insertion put in there which is strictly lawyer language but I do ask for the deletion. “except in suits of common law where the value in contro CHAIRMAN: You secoild the motion to delete? Motion versy except for costs does not exceed one hundred dollars”? has been made and seconded that we delete the last sentence TAVARES: I took that from the Federal Constitution, of Section 10, “The legislature may authorize the trial of because it’s been construed; that language has been construed the issue of the mental incompetency without a jury.” All in the Federal Constitution. those in favor say “aye.” Contrary minded. Carried. All those in favor of adopting Section 10 as amended - A. TRASK: Well then, I can’t help but recall that, I think it was the associate justice of the Supreme Court in 1862 or TAVARES: I have an amendment to propose. I think 52, he said that the common law of England was not the law it’s on the desks of the members, entirely rewriting Section of Hawaii, that we were not a colony of Great Britain. So 10. And now that they’ve voted to eliminate the last sentence although the common law may have been interpreted by the of the original section, it will be of course understood that Supreme Court of the United States as having its certain my amendment will not include that last sentence, and I will application and connotations and meaning, I think in - - for ask to have it deleted. But I believe it’s been distributed purposes of simplification, I would like to see a more defi among the members of this Convention. Well, I have more nitive expression incorporated, rather than to leave it in copies here if it hasn’t been. that realm of pure judicial determination as to what are CHAIRMAN: Will the messenger deliver copies to those suits at common law. who haven’t a copy4? TAVARES: Well, as a lawyer I would think, I would TAVARES: “Section 10. Jury Trial. The right of trial much prefer to have the multitude of federal decisions by jury shall remain inviolate, except in suits at common interpreting a section at my behest than to have to have law where the value in controversy exclusive of costs does some new language and wait 10 or 15 or 20 years for the not exceed one hundred dollars.” But, “For the trial by court to interpret it. I adopted that because it had a definite jury of any civil case or any misdemeanor punishable only meaning, what are suits at common law. Th2 federal by fine, the legislature may provide for a verdict by not less courts have construed them. than three-fourth of the members of the jury, after not less ANTHONY: Will the speaker yield to - - than six hours of deliberation; and in any case, except a capital offense, a jury may be waived, or by agreement of TAVARES: I yield for a question or a reply. the parties in open court, a smaller number of jurors than ANTHONY: I’d like to reply to delegate from the fifth required by law may render a verdict by any stipulated district. That language—I’m not saying I agree with the majority.” amendment —that language comes directly from the Article Before the members rise straight up from their seats 7 which reads: “In suits at common law where the value in about such a provision, I should like to explain that this is controversy shall exceed twenty dollars” only this is put in not new. The Constitution of the Republic of Hawaii which the reverse. Suits at common law have a very definite was in effect in 189 - - meaning. They do not, as the speaker will recognize, in CHAIRMAN: To discuss your amendment, I perhaps do clude suits in equity, or causes of action of an equitable think it would be very much in order to let the - - make the nature. They do not include marriage and divorce, admiralty, JUNE 5, 1950 • Morning Session 37 guardianship, probate and things of that nature, and so I TAVARES: Yes, the first, “The right of trial by jury think the point is well taken that we should adhere to the shall remain inviolate,” then the exception comes along. language that has a settled judicial construction, and this has. A. TRASK: Then the next section is with respect to civil suits alone. Is that correct? TAVARES: I’d like to point out that 18 states now have TAVARES: No, it’s civil suits and misdemeanors not provisions either allowing majority verdicts or granting involving imprisonment. power to the legislature to provide for majority verdicts in civil cases. These states are as follows: 11 states allowing A. TRASK: Yes, over one year. a three—fourths majority in all civil cases, comprising the TAVARES: No, it just provides for misdemeanors where states of Arizona, Arkansas, California, Idaho, Kentucky, the punishment is only a fine. Nevada, Ohio, Oklahoma, South Dakota, Utah and Washington; one state allows a two-thirds majority in all civil cases— A. TRASK: Thank you, and in the second, third section - - that’s Montana; one state, Missouri, allows two-thirds clause after that semi-colon, after the word “deliberation,” majority in civil cases in courts not of record, that’s the would you consider - — after the word “capital offense,” justice of the peace courts; four states allowing a five- “a jury may be waived, or by agreement of the parties” sixths majority in all civil cases, comprising Minnesota— with reference to criminal and civil cases, shouldn’t specific after six hours deliberation, from which I took the six hours reference be made to criminal as well - - or civil cases? provision—Nebraska, New York, and Wisconsin; one state TAVARES: I think that means all cases. If there’s any allows less than unanimous verdict in all civil cases—that’s doubt about it, I think the report could make that clear. In New Mexico. And these states have adopted this provision other words, actually I might say this, I’m legislating a at various times clown to, I think, as late as 1938. It’s not - - little bit in that provision. I think the courts have inter it’s an old provision, but there is a modern trend in favor of preted, generally speaking, constitutions to allow waiver, majority verdicts. but to make it doubly certain I thought I would insert it in Now six states allow majority verdicts in some types of here. There are some slight disagreements I think in some criminal jury trials. One state, Oregon, allows ten out of courts. The Federal Rules of Civil Procedure allow waiver, 12 in all criminal cases except murder. One state, Louisi but this would make it clearer than ever. ana, provides for unanimous verdict of a jury of five for I would like to say this, the provision for the six hour crimes not necessarily punishable by hard labor—I think we deliberation taken from Minnesota I think is good. It pre call those misdemeanors—nine out of 12 for crimes neces vents a jury from taking a hasty vote without deliberation sarily punishable at hard labor and the unanimous verdict and then three-fourths verdict coming out unexpectedly of 12 for capital crimes. before they’ve had a chance to talk things over, and perhaps Four states allow majority verdicts in misdemeanor some of them changed their minds. And I think six hours cases: Idaho, five-sixths for misdemeanors; Missouri, is a reasonable period to require that deliberation before two-thirds in courts not of record; Montana, two-thirds in you have a majority verdict. cases less than felony; Oklahoma, three-fourths in cases less than felony. DELEGATE: Mr. Chairman, on that same point, Mr. My proposal follows the maj ority of these states in grant Tavares - - ing to the legislature power to provide for verdicts in civil CHAIRMAN: Mr. Tavares, you have the floor unless cases by not less than three-fourths of the members, but it you care to yield~ - - does not follow many states in permitting the legislature to reduce the number of jurors. I’d like to do that too, but I TAVARES: I yield for a question. ran into too much opposition from the bar and I think at LEE: As I read then, the paragraph after the sentence least we can get together on this three-fourths, and the after the semi-colon after “deliberation,” it applies to persons who objected to the reducing of the jury, members criminal and civil cases. of the bar who are very, very conservative, did not object to the three-fourths verdict in civil cases. Likewise, I have TAVARES: That’s correct. found resistance among the bar to a majority verdict for all LEE: And furthermore at the end of that particular misdemeanors, and a little resistance to the provision that sentence, “by any stipulated majority.” I’m trying to I asked for in the misdemeanor cases where the penalty is conceive of a defense lawyer coming into court representing only a fine, but I believe that that would not be serious. a defendant who’s charged say with a felony, say burglary Now I have not interviewed many members of the bar in the first degree, which carries possibly at least 20 years, about the provision for eliminating jury trial in cases not wherein he and the government may stipulate on a lesser more than a hundred dollars, but I believe this is in line number than 12 jurors as I understand it. Is that right? And with the Federal Constitution which allowed in the early days, then, do I gather by the last part of it, “by any stipulated 1890 something, the - - or 1879, was it, excuse, 1789 - - majority” that a counsel for the defense would agree to a allowed tt to be eliminated in cases of not more than twenty majority verdict in that case? dollars. I believe twenty dollars in those days would buy as much as a hundred dollars today. And I want to point out that TAVARES: I think that’s quite possible. It’s not as the Republk of Hawaii had a hundred dollar provision and unheard of as it might sound. I could imagine a case where I’m simply following that. We’re going back now to 1894 a defense counsel has been getting along very nicely with in Hawaii, so that’s nothing very alarming. the jury; he’s made a very strong case; he feels sure his man is going to be acquitted; one juror dies, he’s only got A. TRASK: May I ask the delegate one question? The 11 left. All right, what’s he going to do? second, after the word “deliberation” about the middle LEE: Are you pointing at me, Mr. Tavares? there, well, let’s divide this situation here. The first provision up to the first semi-colon, you’re referring to TAVARES: I mean, what’s he going to do then? all suits, criminal as well as civil. Is that correct? CHAIRMAN: He may drop dead. 38 BILL OF RIGHTS TAVARES: Is he going to waive the requirement of 12 with the suspension of the privilege of the writ; that jurors and take his chances on his good case, or is he sentence is identical with the language taken from the Fed going to force himself to have another trial. I think it’s eral Constitution, thus carrying with it all judicial interpre quite possible he might be willing to say, “Your Honor, I tations as to when a suspension may take place. am willing to gamble,” or “I’m willing to accept the verdict The second sentence has to do with the suspension of of this jury of 11 men, or 10 men, rather than go through laws and it provides that the legislature shall specifically another long trial that my client can’t afford.” authorize those particular cases in which laws may be suspended. In other words, it prescribes any executive LEE: Well, I don’t know whether Mr. Tavares has suspension, such was feared by the Committee on Bill of represented many defendants - - Rights. I might state that this second sentence comes CHAIRMAN: The Chair feels that probably - - directly from the Massachusetts Constitution, and with the assistance of Senator Heen is somewhat of an improvement LEE: - - but I doubt from my own personal experience on the existing language of the Massachusetts Constitution. that I would agree to - - with the government in a situation, to be bound by a majority verdict in a felony case when MIZUHA: I would like to move to amend Section 14, the there’s a possibility of one man in a 12-man jury voting last clause, to read as follows: “to be exercised only in against conviction so that there may be a hung jury. I think such cases as the legislature shall prescribe, expressly this is a very - - myself I believe it’s a dangerous prescribe.” I believe the phrase “in such particular cases invasion into the concepts relating to the presumption of as...” innocence, burden of proof, and the matter of reasonable [Delegates’ remarks inaudible.] doubt when you’re dealing with a jury. And I believe a clause of this sort, “by any stipulated majority,” I could go CHAIRMAN: No second so far. for a majority verdict in civil cases but I can’t see the A. TRASK: I second the motion. matter of opening it up to majority verdicts in criminal cases. CHAIRMAN: Motion been made and seconded. CHAIRMAN: Delegate Corbett has moved for deferment. ANTHONY: There is a motion pending before the house, Is that - - Delegate Corbett is recognized. as I understood it, that Section 14 as amended be adopted. CORBETT: I am completely confused at this point as I CHAIRMAN: The redraft, the redraft of Section 14 be think probably a good many of the other laymen on the adopted. floor are also. It appears to me that the lawyers present ANTHONY: Redraft, and that - - I suggest that It would who deny the privilege of any amplification in areas other be in order for the Chair or have the Clerk read the redraft than their own want to go too far when they get into legal and then take a vote on the redraft. I think it covers the areas, they become completely~ technical or very difficult language which Delegate Mizuha had in mind. for the non-lawyers to understand. I would like to move to table this amendment. CHAIRMAN: Will the chairman read the redraft of Section 14. CHAIRMAN: Motion for deferment is in order. MIZUHA: “The privilege of the writ of habeas corpus DELEGATE: The lady forgets her husband’s a judge. shall not be suspended unless, when in cases of rebellion, CHAIRMAN: The motion for deferment of this section or invasion, the public safety may require it. The power is very much in order, if so - - of suspending the laws or the execution of the laws shall never be exercised except by the legislature or by authority MIZUHA: I second the motion to defer. derived from it; to be exercised in such particular cases CHAIRMAN: Someone move - - only as the legislature shall expressly prescribe.” That is the redraft, but in my amendment to the redraft - - DELEGATE: I so move to defer, Mr. Chairman. CHAIRMAN: A motion to adopt that redraft has been CHAIRMAN: Motion’s been made and seconded that made, and an amendment to that has been offered by him. action on this section be deferred till later so that proper amendments can be drawn to satisfy the delegates of this IvIIZUHA: There’s an amendment to this redraft. committee. All those in favor say “aye.” Contrary minded. CHAIRMAN: An amendment to that redraft has been of Motion carried. fered by Mr. Mizuha. And seconded by Mr. Trask. MIZUHA: May we return to Section 14 which was deferred ANTHONY: Could we have the amendment read by the earlier in the morning? Clerk? CHAIRMAN: Section 14 is now in order. CHAIRMAN: Do you mind reading the amendment? Mr. MIZUHA: Section 14 has been redrafted, and I believe it’s Mizuha, I think needs more - - Read the amendment. before all of the delegates. CLERK: “To be exercised only in such cases as the the DOWSON: I move for the adoption of Section 14 as re legislature shall expressly prescribe.” drafted. ANTHONY: That means substantially the same thing. I A. TRASK: I second the motion. don’t know whether there’s been a second to that, but I’d like to speak against the amendment. CHAIRMAN: Motion’s been made and seconded that Section 14 be adopted as redrafted. CHAIRMAN: Well if it’s the same thing, It would be a matter for Style to change; if it isn’t - - ANTHONY: I might state, Section 14 has been broken into two sentences which will carry out the intention of the ANTHONY: Yes, it’s substantially the same thing, only Committee on Bill of Rights. The first sentence has to do the language in the redraft requires that power to be exer JUNE 6, 1950 • Morning Session ~39 cised in such particular cases. In other words, there PORTEUS: It’s okay. shouldn’t be any general statute of the legislature suspend ing the laws, it ought to be in particular cases. Therefore I think that that language is desirable. JUNE 6, 1950 • Morning Session MIZUH.A: The reason for my amendment was the limi CHAIRMAN: Committee of the Whole please come to tation is too specific here. However, it’s a question of order. Chair recognizes Mr. Dowson. style, and if the Style Committee can rewrite this without changing the substance of the section, I withdraw the amend DOWSON: Inasmuch as the adoption of Section 6 makes ment. the consideration of Section 22 redundant, I hereby move that Section 22 be deleted. A. TRASK: I’d like to bring to the attention of the - - BRYAN: I duly second that motion. CHAIRMAN: Do you withdraw your.second, Trask? CHAIRMAN: Motion has been made and seconded that A. TRASK: - - that the word “expressly” I believe we delete Section 22, Proposal No. 3 on the Bill of Rights. should be stricken. “Expressly prescribe.” I raise that, I’m not looking for the burglar under the word, but because WIRTZ: Wasn’t there a - - Point of order. Wasn’t there our laws in Hawaii are always printed expressly and they’re a motion to adopt Section 10 when we adjourned? published expressly, and all the other familiar language in CHAIRMAN: I’ll have to ask the Clerk about that. My the Constitution has been “as the legislature shall prescribe.” memory isn’t that long. And I don’t think “expressly” here would do anything else but to diminish the prescriptions authorizing the legislature TAVARES: Section 10 was pending, as I understand it, in the other provisions. and was deferred. I’m sorry I didn’t hear what went on just prior. ANTHONY: That’s correct. CHAIRMAN: Section 10 as I remember was deferred for A. TRASK: I think it should be stricken. amendment. ANTHONY: I’d like to answer that question. The reason ANTHONY: At this time - - why the word “expressly” is used there is for the very purpose that you may not have any executive to look at any CHAIRMAN: So I believe that the motion is in order to statute passed by the legislature and say, “By implication delete Section 22. the legislature really intended that I ought to suspend this ANTHONY: I thought we were discussing Section 10 and or that law.” In other words, if an executive is going to Id I suggest that that be deferred until we get Section 10 out exercise his extraordinary power, the legislature should of the way. I have an amendment on the Clerk’s desk which expressly tell him the circumstances in which he may exer I’d like to have circulated. Section 10 relating to trial by cise the extraordinary power. jury. A. TRASK: I’ll withdraw the suggested amendment in CHAIRMAN: That was deferred, though if that is the view of that explanation. pleasure of the committee - — MIZUHA: I move the previous question. WIRTZ: Point of order. There is a motion pending, and CHAIRMAN: The only motion before the committee now the Chair has ruled that it’s in order. is whether we shall adopt Section 14, the new draft, the CHAIRMAN: I believe that Section 22 should be deleted, redraft of Section 14, in its entirety. All those in favor but - - I so rule and so move. The question is shall Section say “aye.” Contrary minded. Carried. 22 be deleted? All those in favor say “aye.” Contrary IVUZUHA: I move that the committee rise, report pro minded. Section 22 is deleted. gress and take leave to sit again tomorrow at 9 o’clock. We’ll now proceed on with Section 10. DELEGATE: Second the motion. ANTHONY: I move that Section 10 as presented by the committee be amended to read as follows: “Jury Trial. In CHAIRMAN: All those in favor say “aye.” Contrary suits at common law where the value in controversy shall minded. exceed one hundred dollars, the right of trial by jury shall be preserved. However, the legislature may provide for a PORTE US: Before you put that question you’ve got verdict by not less than three-fourths of the members of some other committee meetings tomorrow that are being the jury.” scheduled. I suppose they can be deferred, if need be. The Committee on Agriculture and the Committee on Executive TAVARES: I wish to second that motion and to withdraw Powers and Functions wants to meet tomorrow. my original motion for amendment. BEEN: I rise to a point of information. What happened ANTHONY: May I speak to the motion at this time? I to Section 14? rise to speak to the motion. CHAIRMAN: Section 14 has been adopted. CHAIRMAN: You may. PORTEUS: May I ask a question? Was the motion that ANTHONY: The proposed amendment relates only to we sit tomorrow morning carried? civil cases, does not relate to criminal cases. It preserves the same language as is found in the Federal Constitution, CHAIRMAN: At 9 o’clock. reason for that being that we want to preserve also the PORTE US: At nine. judicial interpretation. There is one phrase in the Federal Constitution that has CHAIRMAN: I haven’t called for the “noes” yet. Con proved some - - made some difficulty and that is that section trary minded. Carried unanimously. of the Federal Constitution which says “No fact tried by a 40 BILL OF RIGHTS jury shall be otherwise re-examined in any court of the WIRTZ: Under our present system in the territory five United States and according to the rules of the common hundred dollars is the jurisdictional amount fixed for the law.” The reason for not including that in the proposed district courts, which does not permit jury trial. I would amendment is that courts have had difficulty in setting aside like to amend Section 10 as amended to delete the figure verdicts. Under the Federal Constitution, there are certain one in the second line thereof and insert in lieu thereof five, limitations on the powers of the law courts to set aside ver so that the jurisdictional amount here for jury trial would dicts, and therefore that language is not preserved. But be five hundred dollars instead of one hundred dollars. otherwise it will preserve the right of trial by jury in all WOOLAWAY: I’ll second that motion. civil cases in controversies where the amount in controversy exceeds one hundred dollars, and it also authorizes the leg ASH FORD: Point of order. In the statement by the Chair islature to provide for less than a unanimous verdict, namely of the issue before the house, was that not incorrect? I a three-fourths majority of the jury. In other words, it think it was stated as the question before the Convention as leaves the mechanics of that provision to the legislature. whether Section 10 as amended shall be adopted. And I think the real question is on the amendment first. CHAIRMAN: The question is, shall Section 10 be approved as amended? All those in favor of adopting - - CHAIRMAN: Discussion is on the amendment. A. TRASK: Question of Mr., Delegate Anthony. There is MIZUHA: I would like to ask the delegate from the fourth no reference whatever and there’s — - none is intended with district that, in a verdict if there is any damages awarded, respect to criminal cases? the figure arrived at would be by the three-fourths number of the jurors present? ANTHONY: That is correct, Delegate Trask. This applies exclusively to civil cases. In other words, in all criminal ANTHONY: That would depend entirely upon legislation. cases the right of trial by jury by a unanimous verdict is In other words in the absence of an implementing statute, preserved intact as it stands today. the effect of the section relating to the continuity of laws There is one item that I would like to call to the Conven would preserve a unanimous verdict. In other words it tion’s attention and that is, possibly the amount of one would then be up to the legislature to pass a statute imple hundred dollars is too low. In other words, the Convention menting the constitutional provision providing for less than might very well fix it at five hundred dollars, which would a unanimous verdict. As to the question of damages, in that be a rather small claim in these days; let that be tried case, of course, the jury would assess the damages. But without a jury. I would accept any suggestion that - - the party of pleading would have to include a statement that the amount in controversy in this case exceeds five hundred A. TRASK: Does the delegate mean that when you say dollars. that the criminal - — the right to criminal jury trials is preserved, you’re referring to the Convention’s adoption MIZUHA: The question of damages will be settled by of the Federal Constitution? three-fourths verdict, three-fourths number of the jurors present? ANTHONY: No, there’s an express provision in the Bill of Rights section, Mr. Trask. I’ll find it in just a minute. ANTHONY: That’s correct. If there is statute to that effect, of course. DELEGATE: Mr. Anthony. MIZUHA: Yes. A. TRASK: Is that that inviolate section? “The right to A. TRASK: Was the motion of the amendment to amend jury trial shall be inviolate”? by Delegate Wirtz seconded? MIZUHA: “Speedy trial by an impartial jury.” CHAIRMAN: I think by Mr. Woolaway. ANTHONY: Number 11. “In all criminal prosecutions, A. TRASK: May I ask a question of Delegate Wirtz? the accused shall enjoy the right to a speedy and public trial Would this - - by an impartial jury of the judicial circuit wherein the crime shall have been committed.” ANTHONY: Will the gentleman yield just a moment. A. TRASK: Thank you. A. TRASK: I will. CHAIRMAN: Mr. Anthony, the Chair would like to know ANTHONY: I would like to accept the amendment of the reason why the one hundred dollars is there inserted. Delegate Wirtz. That will speed up the process here, I Couldn’t the legislature fix that at five hundred or seven think. fifty or three hundred or whatever it deems feasible and A. TRASK: Well, I’m just wondering about whether - - of just leave out the “in suits at common law, the right of the advisability of this five. I’m personally opposed to it. trial shall be preserved. However the legislature may There are - - we have on the statute books a rent control provide” so and so and so and so. law. People, landlords have sought to get tenants out of ANTHONY: Well, Mr. Chairman, that I think would be their houses. The amount in controversy may in some inadvisable, because the most trivial suit for debt, say it cases may be less than one hundred dollars. It may go was two or three dollars, a person could demand a jury over, may be less than five hundred dollars. Now under trial. The jury fees would run on the order of a hundred this situation, the question in many cases is not so much dollars, and all that expense would be passed upon the state. money as it is a place to live. And seldom is any case in summary possession, that is landlord trying to evict the CHAIRMAN: Couldn’t the legislature fix that at five tenant, where the amount in controversy is more than five hundred dollars? hundred dollars, and in many cases, it’s a question of the ANTHONY: Not unless there is a provision in the Con humanity of the situation involved, as well as the law. And stitution; therefore there should be a stated sum, either it would seem to me if the amount is placed at five, it would one hundred dollars or five hundred dollars as a maximum. work great havoc and take away much of the good things that JUNE 6, 1950 • Morning Session we say are - - repose in the jury system, in jury trials. CHAIRMAN: Mr. Tavares, I think that explanation should And so I would - - and according to this reading, no person be embodied in the report in the Committee of the Whole. who is sued by his landlord to evict him where the amount TAVARES: Well, I just wanted to call It to the members’ in controversy is less than a hundred dollars, I question attention, if they care to look at it while this discussion is whether or not he has a right to demand a jury trial. Unless going on. On page three, starting with the word “note No. the judge wants to answer that. 14 supra” that refers to note No. 14 of the last quotation TAVARES: May I answer that question? As Mr. Anthony on page two, and it should have gone right there. On page tried to explain, this provision is only a permissive one. two you have a quotation which at the - - in the last two, Unless and until the legihiature passes a law to that effect, three lines has a little number 14 and 15 opposite certain the right of trial by jury is the same as it is today. The words. And those are the notes, 14 and 15, to which the note legislature can then pass a law if it wishes allowing jury No. 14 on page three, and note No. 15 on page four refers. trials in less than a hundred dollar cases, in less than five hundred dollar cases. They can set it at fifty, twenty-five, CHAIRMAN: The only motion before the - - zero, over five hundred, any amount they want, and that MIZUHA: Before a vote is taken on the section as will be a matter addressed to the sound discretion of the amended, I believe it is well at this time to make clear to legislature which undoubtedly will take all those matters the non-lawyers assembled here that this will give the into consideration, and I don’t doubt but what if there is a legislature of the future State of Hawaii the power to change need for it, the legislature can adjust it. what has traditionally been the system of jury trials here in the Territory of Hawaii. And that must be understood A. TRASK: Well, if that is the case, why insist on five? very clearly because we are departing from what~ has been ANTHONY: No, no, I think - - written into our judicial system for the past 50 years, where there must be a unanimous verdict in civil jury A. TRASK: That’s the situation. trials. And if the Convention, the delegates assembled ANTHONY: Mr. Chairman, I think Mr. Tavares didn’t here, are ready to give our legislature that power, then say exactly what the section says. “In suits at common the vote should be in the affirmative, but if you feel that law where the value in controvery shall exceed five hundred the legislature should not be given that power, and that we dollars, the right of trial by jury shall be preserved.” Now should retain the 12-men jury system, I mean unanimous in other suits, the legislature can pass any kind of a law it verdict, then the vote should be no. wants, and it could exclude,Delegate Trask, rent control However, it is my own personal feeling that a three- cases from that. I think the proper place to address your fourths maj ority verdict is a little too low. Hence, I propose problem would be to the legislature. If you want to preserve this amendment, the last sentence, the last clause, to read, a jury trial for a hundred dollar rent case, then preserve “the legislature may provide for a verdict by not less than that in a legislative enactment. five-sixths of the members of the jury.” CHAIRMAN: As the Chair understands it, no less than A. TRASK: I think five is too big a number. I think the three-fourths, so the legislature can fix it at five-sixths. courts are made for the little person, and there’re more little people in Hawaii than there are big people, and I do TAVARES: That’s correct. The legislature doesn’t feel that there, the figure, the amendment five is just too have to fix it at three-fourths. The legislature can £ix It much. at five-sixths under this amendment. TAVARES: What amount would the delegate feel? MIZUHA: There was no motion there. I think somebody wants to second my motion here. A. TRASK: I say preserve that one hundred - - TAVARES: One hundred? ASHFORD: May I ask a question of the chairman of the Bill of Rights Committee? Section 10 as reported by the A. TRASK: - - and so psychologically, the little fellow Bill of Rights Committee reads, “The right of trial by jury might think he’ll have just as much opportunity as the big shall remain inviolate.” Does that embrace the section of fellow. the Federal Constitution requiring suits at common law where the value is in excess of twenty dollars to go to a WIRTZ: In view of the discussion, I withdraw my amend jury, or does it require all cases to go to a jury, in his ment. opinion? CHAIRMAN: The Chair recognizes the fact that the mo MIZUHA: It is my understanding that all cases should tion has been withdrawn. go to the jury. But that section was reported out for general WOOLAWAY: The second is withdrawn. discussion on the floor. TAVARES: As I understand it then, that restores the TAVARES: I’d like to point out one more thing, and I original motion to amend to one hundred dollars. One more hope the members will forgive me for being so long-winded, last statement. On the desk I believe of each delegate is but this is important. And that is today very properly our now a memorandum about state constitution provisions on legislature has provided that jury fees shall be paid by the the right of trial by jury which I have gone to great pains Territory. That means that the poorest man or the wealthiest to prepare, and which indicates either the gist or the word man are in equality as far as the cost of jury trials are ing of many state constitutions on this subject. I’d like to concerned. In many jurisdictions, including the federal point out one typographical error which, due to the haste of courts, before you can go to trial in a civil case before a writing this, crept in. On page three at the bottom, note jury, you have to pony up half the fees on each side. No. 14 - — I asked to have it circulated. Now, I am for preserving that system of the Territory paying those jury fees so that the poor man has an equal ROBERTS: Copies have not been circulated to all chance with the wealthy one, but I think that we should try members. to cut down a little of that expense. In too many small cases 42 BILL OF RIGHTS and too many civil cases they gamble with the jury, expect the supreme court to make rules which will permit people, ing a hung jury or trying to get a hung jury, and it only takes not require them, permit them if they choose, to agree to one man. One man is all you have to have on a jury today verdicts of less than 12, by less than 12 jurors and a verdict to hang a jury in a case that may be very clear. of less than unanimous. In many cases where the case is very doubtful on one CHAIRMAN: The only question before the committee side, they will hope to have one friend on the jury and let now is, shall we adopt section - - of adopting the amendment me point out that I don’t know that it’s happened down here, to Section 10. The amendment is, “In suits at common law but on the mainland it has happened. Where you have a where the value of controversy shall not exceed one hundred unanimous jury requirement aU a wealthy man has to do is dollars, the right of trial by jury shall be preserved; how to either bribe or scare one juror enough to hang a jury, to ever, the legislature may provide - - - beat the game. Now this allowing the legislature to reduce the number by which a jury may bring a verdict prevents ANTHONY: No “not.” The chairman read a “not.” that from happening. It makes it much harder, If the legis lature chooses to do so, for a person to hang a jury, and CHAIRMAN: “Shall be preserved.” since the government is paying all those expenses—four FONG: May I ask the introducer a question? I notice dollars a day for every juror and it ought to be increased here that the first sentence, “In suits at common law.” and probably will be—I think the government ought to be Now I think that is meant to differentiate that from suits in able to cut down a little bit on those expenses. equity. Is that right? HEEN: By having a special provision included in the ANTHONY: That is right, Delegate Fong. That is taken Constitution to allow for a verdict by less than a majority, directly from the Federal Constitution, and has over a what is the implication there as to trials of criminal cases? hundred years’ interpretation. It would exclude equity suits, We have no provisions similar to this as to criminal cases. probate, divorce, guardianship, admiralty, things of that TAVARES: There is a provision that’s already been nature which are traditionally not suits at common law. approved by this Committee of the Whole on criminal trials FONG: Yes. Now will that prevent the legislature from allowing the trial by jury, which takes care of that. passing a law stating that in equity suits there may be a BEEN: That’s correct; it says that in criminal cases jury? I understand that some jurisdictions have that. a person accused may have a speedy trial by an impartial jury. That generally means the majority - - not a maj ority ANTHONY: That is covered usually by rule. That’s the verdict but a unanimous verdict. Now can a jury be waived federal practice at present. In a suit where there is a in the criminal case or can, by agreement between the state merger of law in equity the court by rule can require a jury verdict. Under the present law we can’t have a jury In equity and the accused, a jury - - may a jury return a verdict less than a majority vote? My point is this, having dealt with cases except in an advisory manner. It is never definitive, such as it is iii a law action or a suit at common law. criminal trials, with trials of civil cases, to allow less than a unanimous vote, does that imply that in criminal cases, FONG: Well, in the territorial courts we have no trial by they must always be unanimous, and that they must always jury in equity cases. have a jury trial? ANTHONY: Well, we could have a jury in an advisory ANTHONY: I think Senator Been has raised a good point capacity, in equity cases. that should be clear in our deliberations. The intention is to preserve intact the right of the unanimous verdict of a jury FONG: Yes, but the legislature could provide for trial in all criminal cases. That’s Section 11. As to the question by jury in equity cases? whether or not a jury verdict can be waived, that has been ANTHONY: The answer is yes. held by the courts permissible. As a matter of fact, in federal courts today, there are many felony cases that are ASHFORD: My recollection is that under the present tried without a jury. That can be done by stipulation; so I partition statutes certain Issues can be tried by jury. think the clear import of modifying the section relating to TAVARES: That is correct. It is my understanding as suits at common law, and these minutes should disclose that, that we are preserving intact the unanimous verdict in the original introducer of the first, the forerunner of this amendment, that there’s nothing to prevent the legislature all criminal cases, but in civil cases, we are giving the from saying - - from extending the right of jury trial over legislature a framework on which they can operate to pass what it is today. a statute which will provide for less than a unanimous ver dict. CHAIRMAN: I’ll ask the delegates to sit while a member TAVARES: In that connection I think it should be pointed has the floor. out that the Judiciary Committee has proposed an article ANTHONY: I want to give the delegate from the fifth which gives the supreme court of the new state the power district an example. In probate, as we all know, that ordi to make rules of criminal and civil procedure. It is my narily comes before a judge in chambers. If you’re dissatis understanding and belief, and I think our report should so fied with the decision of the judge, then by legislation you show, that under that power the supreme court can adopt may take an appeal. The same thing happens in the land rules which will permit, under proper safeguards to be set court. Nothing in this section would prevent the enactment forth in the rules, persons to agree to majority verdicts of such legislation. even in criminal cases. I mean, yes, to a verdict by legs than a number of 12, and less than a majority. I think the FONG: And nothing in this section will prevent the legis Federal Rules of Civil Procedure largely provide for that lature from stating afterwards that in suits in equity there now, and therefore, I would not want it to be understood that may be trial by jury? by deleting those sections, those provisions out of my original ANTHONY: That is correct. amendment, I was abandoning the idea that it can be done. I think It can be done if we adopt the judiciary rule and allow FONG: Then this paragraph here, “in suits at common JUNE 6, 1950 • Morning Session 43 law,” it deals with all those actions which we understand as today, and we have heard no complaints about the quality of having jury trial at the present time? justice in those states. As a matter of fact, I read an article ANTHONY; At common law, Mr. Fong. recently in a law journal which pointed out that there were fewer appeals in jurisdictions having a majority verdict than A. TRASK: May I address my remarks to the delegate in many other jurisdictions having the unanimous verdict. from the fourth district also on this same question. It seems It has worked well in those states which have it; we’ve heard to me that when a person comes into a lawyer’s office and no complaints whatsoever. has a law suit, he doesn’t know whether it’s a common law, Finally, I’d like to point out that although the Federal equity or probate or whatever it is. He’s got pilikia, and he Constitution under which we now operate does not require wants adjudication, and he may want a jury trial. So I don’t our legislature to give a jury trial in probate cases, in land know whether or not we should really confine ourselves just court, in many other types of cases, our legislature has to the federal delineation of this right. actually extended the right of trial by jury rather than re In other words, with the development of time this - - the stricted it. It seems to me, therefore, that, you can trust constitution and the people of the United States have not your legislature to make the proper adjustments that the deemed it advisable to have a constitutional amendment on people want, because even with the power to restrict, they this thing, but a person who is in trouble and comes to a have not restricted so far. lawyer, he’s got a case, and it seems to me that we ought to broaden the right of a jury trial and determination of facts. MIZTJHA: I wish to point out that five-sixths is ten out As a matter of fact there’s been discussion in many quarters of twelve; the original amendment was nine out of twelve. of perhaps a right of trial by jury in equity cases. Some We still make provision for a majority verdict - - people have suggested divorce cases. And it seems to me CHAIRMAN: One man hanging around there some place. that we ought to, in view of what - - how people feel about Nine, ten. All those in favor of making it five-sixths rather suits in the courts, to broaden the scope of the right of jury than three-fourths say “aye.” Contrary minded. Chair is trials and to leave it safely to the legislature to provide for in doubt unless a roll call is requested. the latitudes or the constrictions that are deemed right and proper. PORTE US: Rather than calling a roll call which takes I do feel, therefore, that as the questions of Delegate Fong a long time couldn’t we have a raising of hands? It’ll be a disclosed, that we ought to make the right of trial by jury be whole lot shorter. preserved extending to all cases, whether at common law or any other type of law. So I suggest here an amendment to CHAIRMAN: So ordered. All those in favor of five-sixths, the amendment reading as follows: “In all civil cases,” please raise your right hand. Contrary minded. Twenty-five, striking out the word “suits at common law.” Again, have five-sixths; twenty-four, no. All those not voting will vote an insertion after the word “in”; “in all civil cases”; and in favor of the amendment. then continue, striking out “suits at common law.” MIZUHA: Those not voting will increase it in favor of YAMAMOTO: May we have a - - I move for a five the amendment. minute recess. CHAIRMAN: I understand, in favor of the amendment. IVflZUHA: I second the motion. DELEGATE: Roll call. CHAIRMAN: Short five minute recess has been ordered. MIZUHA: I believe it’s not necessary for a roll call. We had a show of hands here already. (RECESS) DELEGATE: It’s only 49 delegates. A. TRASK: With the distinct understanding that the right KAUHANE: We demand a roll call. of the legislature to provide for jury cases and all other CHAIRMAN: A roll call is always in order. All those in suits other than those at common law, and that the same favor of a roll call, please raise your right hand. notation will be made in the report of this Committee of the Clerk, please call the roll. All those in favor of Whole, I withdraw any further inquiry to the matter. five-sixths vote “aye.” ANTHONY: That is clearly the understanding of the ANTHONY: I’d accept the amend - - I will accept the amendment as just stated. amendment. I’m the proposer of the amendment. CHAIRMAN: The only question before this committee - - CHAIRMAN: You’re out of order. The roll call has been MIZUHA: May I again point out to the delegates assembled demanded and ten votes carried. that this provision will authorize the legislature to provide ANTHONY: I’m trying to speed up the procedure here. for a verdict where nine people sitting on a jury of twelve can return a verdict that will - - must be accepted by the CHAIRMAN: Well the only way to speed up procedure is court. And because I feel that is too low a majority, I pro take a vote on it. Clerk, call the roll. pose the following amendment: The last clause to read as follows: “The legislature may provide for a verdict by not ROBERTS: What’s the question, Mr. Chairman? less than five-sixths of the members of the jury.” CHAIRMAN: Question is all those in favor of five-sixths DELEGATE: I second that motion. vote “aye.” Contrary minded, “no.” CHAIRMAN: Motion has been made and seconded that the [Roll call not available.] three-fourths be deleted, and in lieu thereof insert the word CLERK; 20 Ayes, 37 Noes, 6 not voting. “five-sixths.” TAVARES: I now move that the amendment be approved TAVARES: I should also like to point out as shown in my and that we recommend passage when this committee rises, memorandum that a goodly number of states permit that in the form of the amendment. BILL OF RIGHTS 44 CHAIRMAN: The only motion before this committee is MIZUHA: I second the motion. that - - CHAIRMAN: Mrs. Hayes second the motion? DELEGATE: Roll call. HAYES: Second it. CHAIRMAN: - - Section 10, the amendment to Section 10 KELLERMAN: In speaking to that motion, I should like be adopted. to point out tç the delegates that serving on a jury is not TAVARES: That’s correct. necessarily a civil right. It is more a civil duty. It is not necessarily included under the general anti-discrimination DELEGATE: I second that motion. clause on civil rights. For that reason it is expressly CHAIRMAN: All those in favor of the amendment, say spelled out in very many state constitutions, that no person “aye.” shall be disqualified to serve as a juror because of sex. Under the present Organic Law, there is a limitation. DELEGATE: Roll call. Roll call. Women are not allowed to serve on juries under the Organic MIZUHA: Mr. Chairman, roll call. Act, and statutes passed subsequent thereto have of course been in conformity with the Organic Act prohibition. When CHAIRMAN: Roll call has been requested. All those in the Organic Act goes out of existence there - - that limitation favor of roll call, please raise your right hand. Can’t even will go out of existence. But this guarantee in the Constitu count. I only see four hands up now. tion makes it impossible for the legislature to provide other DELEGATE: Wait a while, there are more than four. wise. CHAIRMAN: Section 10 by Mrs. Kellerman is sell ex DELEGATE: Hold your hands up. planatory. Any of those opposed to this amendment? DELEGATE: I see fourteen. ANTHONY: That is precisely in accord with the recom CHAIRMAN: Roll Call. Roll call has been demanded. mendations of the Judiciary Committee. I suggest, I’m in All those in favor of the amendment please - - the amendment favor that the amendment be left to the Committee on Style, offered by Mr. Anthony. the appropriate place to put it in the Bill of Rights. MIZUHA: Will you please read that amendment so there will be no doubt in the minds of the delegates. CHAIRMAN: Well then, it’s in order we adopt this amendment. CLERK: “Section 10. Jury Trial. In suits at common ASHFORD: I would like to say that I do not concur with law where the value in controversy shall exceed one hundred the delegate from the fourth district in the suggestion that dollars, the right of trial by jury shall be preserved. How that is not covered by the protection of civil rights. ever, the legislature may provide for a verdict by not less than three-fourths of the members of the jury.” AKAU: I was wondering if there might be an amendment on this. If we are going to accept it in the Bill of Rights, CHAIRMAN: All those in favor of that amendment, vote instead of the word “because” using the words “on account,” “aye.” Contrary minded, “no.” Clerk, call the roll. that is to “serve as a jury - - juror on account on sex.” [Roll call not available.] CHAIRMAN: On account of? CLERK: 51 Ayes, 8 Noes, 4 not voting. AKAU: Not “because.” There are more words, but I CHAIRMAN: The ayes have it. think the meaning is slightly different. BRYAN: I move the adoption of Section 10 as amended. KELLERMAN: I suggested the word “because” because DELEGATE: I second the motion. that is the word that has been used in the anti-discrimination clauses in the other parts of the Bill of Rights. It’s simply CHAIRMAN: Motion has been made and seconded that uniformity of style. we adopt Section 10 as amended. CHAIRMAN: Changing that word may be a matter of style KELLERMAN: I have another amendment to propose to rather than anything else. Section 10, although it does not relate to the identical sub SAKAKIHARA: I move to amend amendment offered by ject matter. Should that - - the delegate from the fourth district. Strike out “because” CHAIRMAN: The amendment may be offered. and insert after “juror,” “by reason of sex.” KELLERMAN: - - be introduced now or later. Is that KELLERMAN: I should think that’s a matter of style. I in order now? don’t object to “on account of,” “because of,” “by reason of” or any of the phrases that mean the same thing. CHAIRMAN: Your amendment is in order. CHAIRMAN: The Chair so believes. It’s a matter of KELLERMAN: Is it in order? style. Question. All those in favor of - - CHAIRMAN: Your amendment may be offered. MAU: Just for the record, I don’t quite agree with the KELLERMAN: Now? I wish to propose a second amend sponsor of the motion that the service on juries by women ment to Section 10. Perhaps the on - - the one on the sub is merely a duty. I consider it one of the fundamental rights ject matter under immediate discussion could be titled that belong to that class of our citizens, and I want the record Section 1OA and this could be entitled Section lOB. “No to show that there’s no unanimity in the explanation given by person shall be disqualified to serve as a juror because of the sponsor. I have a question on this, whether or not putting sex.” I think you have this proposed amendment on your this provision under Section 10, which relates to suits at desks. I’d like - - if there’s a second to that motion, Mr. common law, civil trials, whether women will serve only in Chairman. civil cases. I want that to be very, very clearly explained. JUNE 6, 1950 • Morning Session 45 ANTHONY: That was the purpose of my making the been included in other Bill of Rights. However, for instance, statement that it ought to be left to the Committee on Style that no law, no bill of attainder or ex-post-facto law incurring as to the appropriate place to put this language in the Bill the obligations of contract should - - some people have asked of Rights. that we write it into the Bill of Rights but after consultation CHAIRMAN: Well, it could be called lOB and Committee with the chairman of the Committee on Legislative Powers of Style - - Style Committee may change the - - and Functions, it is very clearly covered by Article 1, Section 10 of the United States Constitution, which prohibits — - DELEGATE: Question. which is a prohibition on the state from passing such laws, CHAIRMAN: Question. Shall we adopt the amendment to hence it is not necessary to include in our Bill of Rights. lOB. All those in favor say “aye.” Contrary minded. Likewise, the Committee on the Bill of Rights considered Carried. the question of segregation in the public schools in connec tion with this anti-discrimination clause. It is proper at TAVARES: Just to satisfy some of the members who this time that a question be asked of the chairman of the have doubts, I move that when this committee makes its Education Committee, whether that would be incorporated report it include in the report a statement that this section in the education article of the Constitution. that’s just been amended, the second part of Section 10, applies to all jury trials. LOPER: The committee proposal in its present form does include a sentence against such discrimination, but it MAU: I second the motion. has not yet been passed in its final form by the committee. HEEN: To have no doubt about it at all, this section MIZUHA: Then, I believe it is proper at this time that should be numbered bA. In other words, this should not be the recommendations of the Committee of the Whole will in a paragraph in Section 10. Otherwise, the implication will clude a provision or a qualification that that question could be it’s limited to civil cases. be considered or raised again in the future, in the event that CHAIRMAN: Well, someone will have to move for re the education article does not contain that provision of segre consideration. gation in the public schools. And I so move. HEEN: I move that this particular amendment be num DELEGATE: Second the motion. bered bA. BYRAN: Point of order. Couldn’t that be offered as an CHAIRMAN: You’ll have to reconsider your action. amendment to the education section when it’s presented, if it’s not included? HEEN: I don’t know whether that amendment was made to bA, or I mean, to 10 itself. I heard Delegate Kellerman MIZUHA: That’d be proper. So I withdraw my motion. say it might be 1OA or 10, part of 10. But it will be offered if it’s not included. Before going on to Section 25, I believe it is proper at CHAIRMAN: The amendment as printed calls it lOB. this time to ask any of the Convention delegates if they have HEEN: lOB. That’s all right. any other questions with reference to the Bill of Rights, and to raise it at this time inasmuch as Section 25 is a saving MIZUHA: I think we agreed that the intention here was clause and will complete the discussion on the Bill of Rights. that this lOB as proposed, was not restricted to civil cases only, and that the rest was to be left up to the Style Commit CHAIRMAN: Section 25 should be adopted. tee. There is no question, Mr. Chairman. MAU: The chairman of the Bill of Rights Committee has CHAIRMAN: The Chair so rules. asked whether there are any questions as to any other pro visions which might go into the Bill of Rights. Is that FUKUSHIMA: To make a lot of other things straight for correct? the record, I think there is no clear understanding [of] the composition of a jury. Do we mean here in Section 10 and MIZUHA: I did not get the question. Section 11 when we say jury, it is a jury of 12? Without any question? CHAIRMAN: The question is whether the members of the committee feel that perhaps some other provisions may go ANTHONY: No question about that. We adopted the into the Bill of Rights. federal language and that in turn adopted the common law. It is a jury of 12. MIZUHA: There’s none at present. We have a communi cation from the Committee on Labor and Industry that they TAVARES: There is not one decision of any state or the wiil incorporate this clause on the right to organize and United States courts that has ever held that the word “trial bargain collectively and will insert it in their article; hence by jury,” or “jury trial,” or the word “jury” when used the Committee on the Bill of Rights has not taken it up at without any other modification means anything but 12 men. this time. However, we reserve jurisdiction of the question, There isn’t one decision to the contrary; therefore, when and will present it to the floor in the event there’s no such we say “jury” without an amendment or without a change of report by the Committee of Labor and Industry. what we mean, it means 12 men. 12 persons. DOWSON: I move for the adoption of Section 25 if nobody ASHFORD: Does it mean 12 men or does it mean 12 men else has any question. and women? BRYAN: I second the motion. CHAIRMAN: God created men; he made no distinction between men and women. Section 25, I think is the next CHAIRMAN: The motion has been made and seconded we section. adopt Section 25. Now, Mrs. Akau. MIZUHA: Before we go into Section 25, the Committee on the Bill of Rights would like to call the attention of the AKAU: I want to say it isn’t - - my statement hasn’t various delegates to some standard provisions that have to do with 25, it has to do with the thing as a whole. 46 BILL OF RIGHTS CHAIRMAN: You may make the statement. JUNE 15, 1950 • Morning Session AKAU: Point of information. At the time that the pro CHAIRMAN: You should have before you for final action, posal on women on juries was presented here to the floor, the Committee of the Whole Report No. 5 in reference to the it was tossed around. I think a statement of the consensus Bill of Rights. I presume most of you have read the report. of opinion was that it first went to the Bill of Rights Commit At this time the Chair would like to thank Representative, tee, then it came back on to the floor and it was suggested, I mean Delegate Nils Tavares for doing in my opinion—I’ve I believe, not moved, but it was a consensus of the group read the report—a wonderful job. I think it’s a credit to that it go to the Judiciary. Now, the point I raise is, if after this Convention and to the Constitution to have in the Consti we’ve kicked it around and some1~ow the feeling was that it tution this report. And it’s a very nice piece of work, in my belonged in the Judiciary, that that’s really where it should opinion. I want to assure you that the signature is mine. be, and that we are out of order, I believe, in allowing it to What is the pleasure of the committee? go into the Bill of Rights. I just raise that point. [Inaudible. Motion made, seconded and carried to adopt committee report.] CHAIRMAN: I’d like to raise - - to remind you that SAKAKIHARA: What is the motion, Mr. Chairman? Section 10-B covering that subject has been adopted by the entire Committee of the Whole. CHAIRMAN: Motion has been made and seconded when the Chair rise, it reports the final adoption of the committee AKAU: I realize that, Mr. Chairman. I was just wonder report. All those in favor say “aye.” Contrary minded. ing if it might be in order to reconsider. Carried. CHAIRMAN: It’s in the Bill of Rights now. Chairman: HERBERT M. RICHARDS AKAU: Yes, if it would be In order to reconsider, al though it has been passed now, to reconsider this particular Second Morning Session section and have it go over to Judiciary without consulting the people on style, since that was the decision of the group CHAIRMAN: The Committee of the Whole shall come to some few weeks hence. order. CHAIRMAN: The Committee on Style can not change the ANTHONY: I move we take a five-minute recess while meat of the - - cannot change the language. all the delegates read the report. Then if they have any questions they can ask them. AKAU: Well, they won’t - - Mr. Chairman, excuse me, they won’t change the meaning of it, but I just raise the CHAIRMAN: If there’s no objection, I declare a recess. question as to the propriety of the thing since we had already (RECESS) moved. I, therefore, move now that we reconsider Section B-10, not the content of it, but the position, the place where KELLERMAN: First I’d like to explain the delay and it belongs. inconvenience to this body in asking that the Committee of the Whole sit again on this report. As you are all aware, CHAIRMAN: That, and I’d like to remind the speaker the committee report was adopted very hastily. I had before again, that would be left to rules allowed the Committee of me the report of the Committee of the Whole, and I was try Style, to put that section or any other section where they ing to find in my folder the report of the Committee on the feel it should belong. I think that’s a matter for Style to ~iU of Rights to get the language to propose the amendment. decide. Anyone feel differently may express their views on Before I was able to do so or to phrase the amendment, the It. report went through. I voted “no” against it, but that was All those in favor adopting Section 25, say “aye.” a minority “no,” and therefore it appeared that it had Contrary minded. Carried. passed. And so I’ve asked for reconsideration on this point. Now go out of Committee of the Whole into regular I would like to propose an amendment to Committee of the session. Whole report, page five, if you’ll turn to page five, your MIZUHA: I move that the committee rise and report its Committee of the Whole report —the end of the first sentence recommendations to the Convention. under “Recommendations, Reasons or Explanations.” The first sentence ends: “. . . and other relevant circumstances.” CHAIRMAN: Adjourned. At the end of that sentence I would like to - - I move to insert the following sentence: “Your committee understands further HEEN: I move that the committee rise and report pro that this paragraph would not prevent the state from authoriz gress and ask leave to sit again. And during the interim ing any military organization to deny enlistment on the basis period the report of the committee should be reduced to of security to this state or the nation.” writing. MIZUHA: I second the motion. CHAIRMAN: Final, final? TAVARES: I see no objection to the amendment. CHAIRMAN: Any further discussion? All those in favor MIZUHA: I withdraw my motion in favor of that motion. please signify ayes and noes. Contrary minded? It is so CHAIRMAN: All those in - - Is there any second? ordered. At this time, the Chair would like to recognize SAKAKIHARA: Second the motion. Delegate Woolaway. CHAIRMAN: All those in favor that the Chair rise, re WOOLAWAY: I think it’s fitting at this time, while we’re port progress, beg leave to sit again, say “aye.” Con in the Committee of the Whole, to recognize some of our trary minded? Carried. outstanding citizens, youngsters who someday will take our JUNE 15, 1950 • Second Morning Session 47 /places, the type we enjoy to have, the Cub Pack No. 9 of Tavares had written most of this, if he could explain be Kaimuki. cause justice in America may not necessarily be justice CHAIRMAN: We are most happy to have Cub Pack No. 9 elsewhere. of Kainiuki here, to be with us this morning. CHAIRMAN: Mr. Tavares, do you wish to answer that KAWAHARA: I would like to propose an amendment to question? the report, page five, Section 6. I believe on your desk, you TAVARES: It seems to me these questions should well have circulated amendment to Committee of the Whole Re have come before the Committee of the Whole got through port No. 5 which reads: “The Committee is unanimously debating. I don’t know offhand, at the moment, just what the agreed that the right to marry is a civil right within the latest English practice acts provide as to jury trials. I’d meaning of Section 6.” I would like to amend - - move to have to look that up. I wouldn’t want to answer that question amend section - - the report on Section 6, page five. After at the moment. It might be they allow majority verdicts. the words “consent of Congress” the following words: “Your I’m not sure. Or that may be they exclude jury verdicts in committee also agrees that the right to marry is a civil a number of cases that we allow them today. There’s no right within the meaning of Section 6.” British Constitution as the members here well know and CHAIRMAN: You have heard the motion. Is there any - - parliament can change or abolish the jury trial any time it DOl: I second the motion. wants to. TAVARES: Although this constitutes repetition of what AKAU: I believe, if I may use a name, Mr. Anthony Is stated in another portion of the report under Section 22, mentioned last week the question of the English courts and I see no objection to inserting it here also. that brought to mind that they do have a unanimous jury, and that’s why I brought the question up. Maybe Mr. Anthony CHAIRMAN: Is there any further discussion? All those might enlighten me. in favor of inserting the amendment, please signify by saying “aye.” Contrary minded. The ayes have it. So ordered. CHAIRMAN: Mr. Anthony, would you like to answer that question? HEEN: In order not to have the original written report of the Committee of the Whole re-written, I would suggest ANTHONY: The words “trial by jury” as appearing in that a supplemental written report be submitted setting the Federal Constitution have the meaning as that term was forth these amendments. ~That’ll save considerable time used in England at the time of the adoption of the Federal and it will obviate the necessity of writing a new report alto Constitution. They have that meaning today insofar as gether. criminal cases are concerned. The one departure is in civil cases in which we can provide for less than a unanimous DELEGATE: Second the motion. verdict. So in criminal cases we will still have a unanimous BEEN: I so move. verdict of 12; in civil cases there is the framework whereby less than a unanimous verdict can be adopted. CHAIRMAN: Put that in the form of a motion. It’s moved and seconded. Any further discussion? All those in favor CHAIRMAN: Does that answer the question, Delegate please signify by saying “aye.” Contrary minded. It is so Akau? ordered. If there are now no further - - Are there any further questions? Is there a second to Delegate Heen’s motion? KELLERMAN: I move the adoption of the committee re port as amended. KELLERMAN: I second Delegate Been’s motion. DELEGATE: I second the motion. ROBERTS: I’d like, if I may, to point out an error in CHAIRMAN: Moved and seconded that the committee typing on page two of the proposals on Section 6. “No citizen report as amended be adopted. shall be denied,” it says, “enlishment.” It should be “en I believe that the proper procedure would be that this listment” with a t. committee rise and - - Can the correction be made? Page two of the proposal, HEEN: That’s correct. end of the report. CHAIRMAN: - - and report. CHAIRMAN: It has been pointed out that there has been a misprint in the typing of Section 6 on page two in the BEEN: I’m just going to move that when this committee proposal. Perhaps Delegate Tavares was slightly tongue- rises, that it recommends the adoption of these amendments, tied at the moment of dictation. and that the same be included in the supplemental written report of the Committee of the Whole. I so move. TAVARES: I think maybe the typewriter got its feet mixed. AKAU: Point of information. I realize that we have passed Section 10 already. I want to ask a question, if I CHAIRMAN: I think that that correction can be made may please. Section 10, which appears on page 3 of the without formal action of the Committee of the Whole. You’ve report which you have in your hands now; there was some heard the motion to recommend upon rising to the - - recom discussion on the floor regarding the question of three- mend to the Convention upon rising that this report of the fourths of the members of the jury, three-fourths of the committee pass as amended with the amendments in supple members of the jury in Section 10, and I have already read mental - - in a supplemented [inaudible]. Is that the correct the clarification and the explanation. In view of the fact that motion? we have been told that we have based most of our laws from HEEN: The motion was that when this committee rises, the English courts, I’m wondering if we might have some it recommends to the Convention that the original written explanation about this, since in the English court, it has to report be amended in the form set forth in the motions that be a unanimous jury giving a decision, that is, a 12 man or were made upon the floor, and that that report be in a form 12 man and woman decision. Now, then, we say one thing of a supplemental report. In other words, the first step and then say another thing. I was wondering, ~since Mr. after resolving ourselves into a Committee of the Whole is BILL OF RIGHTS 48 to amend - - I mean to adopt the original report, then to CHAIRMAN: Delegate Porteus. Does that satisfy your adopt a supplemental report recommending the amendments interpretation? that were offered upon the floor in the Committee of the PORTEUS: No, I’m not satisfied. I don’t know how I’m Whole. going to write - - handle the minutes of the journal under CHAIRMAN: Does the second agree with that? these circumstances. I’ll leave it to you, but I don’t think it’s correct. PORTEUS: There is the possibility that when the minutes are written there may be at least one person who objects and KING: Point of information. Would it not be possible raises some points of order on this. So I think we ought to to adopt the two amendments to the pending committee explore this thing completely. I don’t believe that you can report while we’re in Committee of the Whole? Let me on the Convention floor, amend the Committee of the Whole ask that question of Delegate Porteus, tin parliamentarian. report. The Convention itself has no right to amend any CHAIRMAN: Delegate Porteus. committee report. Only a committee can amend a committee report; therefore, only the Committee of the Whole can amend KING: We’re now in Committee of the Whole considering this Committee of the Whole report. So, if there is any diffi Committee Report No. 5. culty in getting a signature to an amended report, due to the PORTEUS: That’s correct. fact that there have been two chairmen, I think that the sug gestion as made, altered very slightly would do the work. KING: Would it not be possible to adopt two amendments In other words, to take the Committee of the Whole report to that Committee of the Whole report? Then would it not as presented by the first chairman, and as I understand it be possible for the committee to rise and report to the Con you’re only supplementing that report, making additions to vention the adoption of Committee Report No. 5 as amended? it. Is that not correct? PORTEUS: That’s correct. HEEN: That’s correct. And that supplemental report KING: Well, then it seems to me the first motion is to will be adopted. That the original written report is amended move to adopt the amendment which has already been done, in the following particulars. That’s where you have two has it not? So that the Committee of the Whole Report No. 5 amendments, and that supplemental report may be signed stands amended and the committee can rise and report to by the present presiding chairman of the Committee of the the Convention the adoption of the Committee of the Whole Whole. 5, No. 5 as amended, with authority to the chairman of the PORTEUS: I differ only on the language that it’s an Committee of the Whole to file a supplementary report amendment. I say that you can supplement it by adding to covering those amendments. Is that correct? I so move that the Committee of the Whole, having already it, by adding and adopting a new report, but you can’t amend adopted two amendments to Committee of the Whole Report the other report on the Convention floor. Only the committee No. 5, rise, recommend to the Convention that the Committee can make that change. of the Whole Report No. 5 be adopted as amended, and that CHAIRMAN: Do I understand the proposition correctly, the chairman of the Committee of the Whole be authorized that Delegate Porteus suggests that this committee report to file a supplementary report covering those amendments. out two reports: one, the original report as it stands, and second, a supplementary report to be - - DELEGATE: Second that motion. CHAIRMAN: There is a motion on the floor. Does Dele PORTEUS: Supplementing the first report. gate Heen withdraw his motion? CHAIRMAN: - - supplementing the first report. HEEN: I withdraw the motion. PORTEUS: That’s correct. CHAIRMAN: The second withdraw - - Mrs. Kellerman, CHAIRMAN: Is that reasonable? I believe, seconds it. HEEN: That supplemental report, of course, will recom J. TRASK: Second the motion. mend the adoption of certain amendments to the original CHAIRMAN: It’s been moved and seconded that the com written report. Don’t see how else you can write that mittee on rising report the - - recommend the adoption of written report, that supplemental written report. That’s done very often in the legislature. You have an existent the committee report as amended, and that a supplemental statute, then later on the legislature amends that original report containing the amendments be filed with the Convention. statute by saying in paragraph 2 of Section 4 the word 1951 All those in favor please signify. Contrary minded. So is changed to 1954. That is a complete enactment. ordered. I entertain a motion to [adj ourni. Debates in Committee of the Whole on SUFFRAGE AND ELECTIONS (Article II) Chairman: GEORGE DOWSON JUNE 9, 1950 • Morning Session KOMETANI: The Committee on Suffrage and Election in this report would like to let the delegates here know that it CHAIRMAN: Will the Committee of the Whole come to was a unanimous report. The committee also was very order? This committee is meeting to consider Standing fortunate to have the four county clerks of the territory Committee Report No. 39 and Committee Proposal No. 8. appear before the committee in its discussions and deliber The Chair now recognizes the delegate from Hawaii. ations. It was this committee’s very desire to write into this Constitution a proposal that would not deny a single SILVA: I move at this time that the committee rise and individual in this territory the right to suffrage. We had recommend passage of Proposal No. 8 as recommended by made it as brief as possible, and whatever was considered the committee. to be statutory was left up to the legislature to be made into MIZUHA: I second the motion. our laws. CHAIRMAN: It’s been moved and seconded that Commit CROSSLEY: It is my distinct pleasure to move for the tee Proposal No. 8 be passed. All in favor say “aye.” Those adoption of the first section of Proposal No. 8. who are contrary minded, say “aye.” {sicJ APOLIONA: I second that motion. ANTHONY: Aren’t we going to have any debate on this J. TRASK: I think It proper at this time that we number proposal? I suggest that the - - we proceed to have debate the sections accordingly; one, two, three, four, five and the on this rather than take a vote immediately without anybody Committee Proposal - - knowing what’s in the proposal. CHAIRMAN: The Chair will accept that. If there’s no CASTRO: I think the proper motion is to consider Pro objections, we shall number them in the sequence from one posal No. 8 section by section. I therefore ask that the to five. movant withdraw his previous motion. Section 1 is up for debate. CHAIRMAN: Would the senator - - delegate, Senator Silva concede to that? SMITH: I’d just like to ask the chairman of the Commit tee on Suffrage and Elections a question. In Section 1, No. 4, SILVA: You have to reconsider your action because I “shall be able to speak, read and write English or Hawaiian think the ayes had it. language except for physical disability.” How will this be CHAIRMAN: I did not call for the noes before - - carried out? SILVA: The ayes have it then. CHAIRMAN: Would the chairman like to answer that question? CHAIRMAN: - - Delegate Anthony stood. KOMETANI: I did not get the question. SILVA: You didn’t call for the noes, but the ayes have it. CHAIRMAN: Delegate Smith, repeat the question. CHAIRMAN: The Chair rules that the vote was not taken. KOMETANI: The last part of that qi,iestion. HEEN: I move that we reconsider the action taken on that SMITH: I just wanted to know if, for instance, a voter was first motion. questioned as to his ability to be able to speak, read and write English or Hawaiian language, how - - wouldn’t that sort DELEGATE: Second the motion. of open it up having it in the Constitution like this? CHAIRMAN: It’s been moved and seconded that we re KOMETANI: No, I don’t think so. It is in the Organic consider action on the first motion, that is the motion to Act and, that is, the name is placed in Hawaiian. Is that adopt the committee proposal - - report as a whole in this right, Mr. - - committee. All in favor say “aye.” All who are contrary minded say “no.” It’s carried. KELLERMAN: May I offer an amendment? I’d like to amend Section 1 of sub-number 2 to read “shall have attained CASTRO: I move that we consider Committee Proposal the age of 21 years.” No. 8 section by section. WOOLAWAY: I’ll second that so we can discuss it. WOOLAWAY: I’ll second that motion. CHAIRMAN: It’s been moved and seconded that the CHAIRMAN: It’s been moved and seconded that we con second part of Section 1 be changed to read - - sider Committee Proposal No. 8 section by section. All in favor say “aye.” All who are contrary minded say “no.” KELLERMAN: May I speak to that amendment, proposed It’s carried. It’s in order to move for the adoption of amendment, Mr. Chairman? Section 1, so we can - - CHAIRMAN: Yes, you may. 49 SUFFRAGE AND ELECTIONS 50 KELLERIVIAN~ It seems to me that the time is not ripe the children mature a little earlier, and the committee de to reduce the Voting age from 21. At the time that the Feder finitely felt that we should give the responsibility and the al Constitution was adopted, and other early state constitu right of suffrage to our youth one year earlier than the rest tions, children became adults in their business, social and of the 47 states. family responsibilities far younger than they do today. The prevailing age for marriage at that time was around 15 to TAVARES: May I ask the last speaker a question, which 18. Fifteen usually for the women and 17 to 18 for the men. I think will bring out the situation further. There were families before the men were 21. They had their CHAIRMAN: You may. own businesses, they had started their own farms, they were engaged in the business of living an adult life several years TAVARES: Is it not true that in most of those states that before they were 21. In fact, many of the marriages took have.21 years as the voting age, it is also the age of major place at an even much earlier age for the men than even 17. ity? Today our marriage age on the whole is above 21. With KOMETANI: Yes. marriage comes the establishment of an independent home and family and family responsibilities. Most of our children TAVARES: And therefore, if we are going to change the today do not get out of school until they are 18. They are voting age to 21, we ought to change the age of majority for regarded as children until they are 18. The interim period other purposes to 21. Is that not logical? is spent usually in some form of apprenticeship, In learning KOMETANI: That’s right. a trade or the beginning of a trade or in further education. By and large our children today, our young people, do not CORBETT: The lady delegate from the fourth district engage in business or family lives. On the whole they do suggested that we should instead of decreasing the age of not until they are above 21 years of age. the voting population should possibly consider increasing It. In addition to that the work of government has become I submit that we are doing that continually. Medical science even more complicated than it was 150 years ago, very much has added a large body of oldsters who are entitled to the more complicated. It enters into more phases of our lives vote. The vote has not been taken away from them. I think than it did then. We all know that without further discussion. it might be salutary if we off-set to a certain extent this It seems to me that we are keeping our children as child body of conservatives by a group one year, one age bracket ren longer than they were then, and the acts, proposed [younger] who will possibly have political imagination, measures on which they are to be given the right to pass courage, and freedom from tradition. The young people judgment, are even more complicated and more difficult coming out of our schools today have a background, a train of understanding and the passing of good judgment than they ing in political education, self-government in their schools, were 150 years ago. I should think rather than decrease which £ it them to assume the responsibilties of a voter. I the age of voting judgment, the two facts which I have men strongly believe that we should give our young people of 20 tioned would tend to urge us to increase the age upon which the vote. to pass judgment. ASHFORD: Delegate from the fourth asked the chairman I’ve heard the argument made that since a boy can go to of the committee a question and following that up, I would war and risk his life at 18, he should have the right to vote. like to ask the chairman of the committee the following ques It seems to me that the very attributes in many respects tion. that make a good, young, brave and, I may add, reckless soldier are not the attributes which are conducive to the CHAIRMAN: Will you put the question? sound, sober judgment of a voter who is passing not only upon his own economic and political life but that of all others ASHFORD: Is it not true that in some of those states the in his community when he exercises his vote. age of majority for women is below the age of 21 years? I do not see any justification whatsoever in reducing the KOMETANI: Yes, I believe so. concept of voting judgment below 21 years of age. And for that reason I urge very strongly that this Convention think AKAU: The statement has been made by the delegate carefully before it reduce the prevailing and longstanding from the fourth district regarding the time of majority in recognition of 21 as the age of voting maturity to anything the early colonial days. I simply submit for your consider below 21. ation the fact that times have changed. Mechanization of industry, population trends, and all the things that go with HEEN: May I call the attention of the members of the our modern, atomic age —jet propulsion, and what have you. Convention to Appendix 1 on page 372 of the Manual on I could enumerate them right on down the line. State Constitutional Provisions which was prepared by the The point I wish to make is that what happened a hundred Legislative Reference Bureau. They list the minimum age years ago, a hundred and fifty years ago, is rn~t apropos to of every state, and every state sets a minimum of 21 years our particular situation here in Hawaii today. We have great except Georgia. In other words, 47 states - - Page 372. hope and faith tn our younger generation. The students are Every state sets a minimum of 21 years, I mean, 47 states coming out of the university much more mature than they have a minimum age of 21 years and Georgia is the only have in the past. They have had many more serious experi state that sets the minimum age of 18 years. ences. They are ready to assume more responsibility. The age of 20 is not too young for the vote. They certainly could’t KOMETANI: The committee was fully aware of the fact do any worse than the people have been doing for the past that 47 out of the 48 states had 21 years as their voting age. fifty years here in Hawaii. However, we figured Hawaii as Hawaii. Hawaii grants the age of majority at 20. At 20 he has a right to marriage MAU: Having heard the discussion I’m ready to vote on without parental consent. He by law becomes fully responsi the question. I move the previous question. ble for his debts. He is a taxpayer. Not only that, like the DELEGATE: I second the motion. wartime slogan, he’s eligible for draft. We also considered the fact that [in] Hawaii with its warm, temperate climate, KELLERMAN: Mr. Chairman. JUNE 9, 1950 • Morning Session 51 CHAIRMAN: It’s been moved and seconded that we move KOMETANI: Roughly about 7,000. to the - - for the previous question. DELEGATE: There is supposed to be reapportionment. ROBERTS: Mr. Chairman. KOMETANI: 7,000. HEEN: Mr. Chairman: KELLERMAN: Since I proposed the amendment, may I CHAIRMAN: I believe - - speak to it again and in answer to some of the remarks that HEEN: I think we ought to have further debate on some have been made opposed to it. of the other - - CHAIRMAN: You may. ROBERTS: I’d like to point out - - KELLERMAN: With reference to one of the statements CHAIRMAN: Is this on - - a debate on the previous made by the lady delegate from the fifth district, she com question? mented on the maturity of our university graduates. I would doubt that there are many university graduates in Hawaii just ROBERTS: I understand that there’s been a motion for 20 years old. The age at which most of our children get out the previous question which has been duly seconded. of high school is 18. I assume they go four years or certain CHAIRMAN: That is true. ly a minimum of three to the university. I dare say then we would have few university graduates in Hawaii at 20, so I ROBERTS: A previous question under normal proce don’t think that remark was pertinent. In fact, I think it dures is not debatable, and a motion, such a motion was put argues my point that if we are relying upon the greater to vote. I’d like to raise a point of order, Mr. Chairman. maturity of our university students, then there is no reason CHAIRMAN: You may. on earth of decreasing the age from 21. Now, with respect to the remarks recently just made by ROBERTS: As I understand the procedures for the Com the delegate from the fifth. The age of majority is a statute, mittee of the Whole, the purpose is to permit free discussion and it seems to me that it would be more pertinent and more and a full presentation of ideas by all of the delegates in the reasonable to amend a statute to raise the age of majority Convention. to 21, if the better political thinking of this community is CHAIRMAN: Are you - - going to be jeopardized by reducing the voting age to 20 just to make it conform to a statutory majority age of 20. I - - it ROBERTS: It seems to me, Mr. Chairman, I’ll move - - seems to me that that’s putting the weight upon the wrong I’ll make the point. It seems to me, Mr. Chairman, that there side of the question. The majority age can be changed by has not been sufficient opportunity afforded for the delegates statute, it is now only a matter of statute. to discuss this question, to discuss the question before us, I think for those reasons that the arguments against the Section 1 of the article before us. I therefore urge, amendment are not pertinent, and I ask the sincere consider Mr. Chairman, that the motion made by the previous speaker ation of the extreme responsibility of the vote, that it be withdrawn until such time as all the delegates who wish not be reduced. Our high school children coming out at 18 to speak have had the opportunity to speak on this particular have had experience in the methods of democratic discussion section. and class meeting. They are not well rounded, as well rounded as judgment and experience can give them, and the MAU: I’d be the last one to cut out debate on any question. questions of social, economic, and political importance that I withdraw my motion. older people have learned and learned to evaluate from ex DELEGATE: Thank you, sir. perience, the best teacher, and experience can only come with age. For those reasons I ask again the sincere and KING: The previous question would have been ordered on serious consideration. I think this is very important. the amendment offered by the lady from the fourth district, Delegate Kellerman, as I understand it, not on the section it KAM: I would just like to add in favor of this 20 years self, so it wasn’t the desire to cut out debate on the whole because the liquor commission of the Territory of Hawaii section but merely on that particular amendment. Now I feel set the legal age of 20 years in ordOr to purchase liquor. that we’ve rather exhausted the point of whether the voting Thank you. age shall be 21 or 20, and would have voted in favor of the previous question, but now being withdrawn that doesn’t come TAVARES: Just matters of information. Not so long ago up. this territory fixed the age of majority for women at 18, just I would like to say I am convinced by the argument that if as it is fixed in some states. Mr. Chairman, those ages were the majority age in Hawaii is 20, then the person who arrives fixed in the dark days when women were considered as chat at majority should be able to vote. He becomes legally a tels, when they were owned by their husbands. It goes back man or woman in his own right or her own right, pays taxes, to the days of England when a man could whip his wife as long incurs contractual liability, may be sued, maybe make a will, as he used a stick no bigger than his thumb, and the juris may marry, may do everything that a person that is accepted dictions that have now restored women to the same status as a citizen except to vote. It seems to me the privilege of as men are those as our territory who have recognized the voting should go with all those other obligations and responsi equality of women with men. And I submit it’s a very, very bilities, and I would be opposed to the amendment offered by outmoded argument to use that which goes back to those Mrs. Kellerman. dark ages, the disparity allowing of women coming of age before men. Our territory, fortunately, has seen the light LAI: Point of information. If we were to adopt this 20 and has placed them both on the same status. years voting age, what would be the increase in voters? Can Furthermore our legislators who represent the people somebody answer that? of this territory have fixed the age of 20 as the age of ma jority. That shows that the sentiment of this territory has CHAIRMAN: Can someone answer that question? Dele been and now is - - has been for many years and now is that gate Kometani. these people are in every way fully qualified to assume the 52 SUFFRAGE AND ELECTIONS responsibilities of life. And as long as we have done that, wondering whether or not that might be in conflict with Sec I don’t see why we should change in the absence of very strong tion 6 of the Bill of Rights. Section 6 of the Bill of Rights, evidence that those people are not qualified, and I don’t think second paragraph of that section reads, “No person shall the evidence is available, and I don’t believe it’s true. be denied the enjoyment of his civil rights nor be discrimi nated against in the exercise of civil rights because of SMITH: I am in favor of the 20 years but I’d like to ask religious principles, race, sex, color, ancestry, or national the chairman since we have gone back to the year - - years, origin.” I’m not speaking against the provision itself, but what was that, chattels, and ask if any study had been - - there might be raised this question of discrimination against or reference had been made to the last constitutions which other races than Hawaiian. May be that in time to come have been amended, New Jersey and Missouri, and if there’s everyone in the State of Hawaii will be able to read and write any reason why they kept it at 21. the English language, so that perhaps this one might be called discrimination in favor of the Hawaiian people. It DELEGATE: Second the motion. might be placed somewhere else in the Constitution, perhaps DELEGATE: Previous question. in the schedule of the Constitution, so that if sometime in the future it become functus; and there might be framed in CHAIRMAN: Can Delegate Konietani answer that? language, “anything in the Constitution to the contrary not KOMETANI: Both Missouri and New Jersey had retained withstanding, Hawaiians able to read - - Hawaiians who are 21 as their voting age, possibly because the age of majority able only to read and write the Hawaiian language shall en there likewise is 21. joy the right of suffrage.” I’m just presenting my observa tions on this matter so that it can be taken care of without SERIZAWA: It seems like we’ve had enough debate on any possibility of discrimination being raised in the future. this subject. Therefore, I move for the previous question. MIZUHA: It is my belief that the Section 6 of the Bill of DELEGATE: Second the motion. Rights relative to anti-discrimination because of race, do Chairman: It’s been moved andseconded that we move to not take into consideration the physical or mental attributes the previous question. All in favor say “aye.” All who are for the qualifications of that race or the background of that contrary minded say “no.” It’s carried. race. It is - - it does not take into consideration the speak The vote - - voting will be on No. 2 of Section 1, that is ing of the language or brown hair or white hair or blue eyes the amendment for that which reads “shall have attained the or long noses or short noses and so forth, but it’s just by age of 21 years.” I - - the Chair will request that no one race itself. Hence I do not believe it is in conflict with vote with the use of the microphone. Section 4 of the section - - sub-section 4 of Section 1 of the Committee Proposal No. 8 which refers to the language of MIZUHA: Do I understand that we are now only voting on the Hawaiian people, and I think there is sufficient tradition the amendment? in Hawaii recognizing the Hawaiian language as the language CHAIRMAN: We are now voting on the amendment which of the territory, so that if the committee report is clear on changes the 20 to 21 as the voting age. All in favor of the that point, there need not be any conflict later on. amendment, say “aye.” All who are contrary minded say HOLROYDE: The last speaker indicated that under Sec “no.” It’s not carried. It’s been defeated. tion 5 there could be possibly laws passed that would require SMITH: Mr. Chairman, before moving that, I just want residence in districts. I note in the Organic Act it corres to know, No. 3, “shall have resided in the state not less ponds practically to Section 3 of the proposal of the commit than one year next preceding the election.” Isn’t there some tee with the exception that they left out the three months re rule that they have to be in the district so long? quirement in the district, in the representative district. I’d like to know whether the committee left that out purposely KOMETANI: The committee seriously considered the to indicate that they did not recommend a residence in the question that was asked by the delegate from Maui. Because district because under that old rule in the Organic Act, many of the conditions or the requirements in the law, naturali.za people—especially school teachers who had moved from dis tion law, we felt that anyone, any person who’s naturalized trict to district —were prohibited from voting in territorial should be given suffrage immediately. We have given serious elections until the following election, and I would like to consideration to our Filipino population who were brought know the committee’s feeling on that particular question - - here as laborers. In order to be naturalized, they must be a resident of the territory for five years and certainly alter CHAIRMAN: Would the committee chairman - - waiting five years, if he has been naturalized, he should be HOLROYDE: - - especially for the report. given the right of suffrage the following day. CHAIRMAN: - - committee chairman like to answer that? KING: As I read the committee report, also, it authorized the legislature to make such restrictions as to residents in KOMETANL We left that phrase out because it is em the district, county, or precinct, as the case may be. In other bodied in the election laws of Hawaii. words the committee report left out all the statutes, isn’t CHAIRMAN: I believe there’s - - that correct? TAVARES: Perhaps that should be clarified. It seems to KOMETANL Yes. me that that would then be included in the language of No. 5, HEEN: I think Section 5 takes care of that situation. “Shall be registered as a voter in accordance with law.” “Shall be registered as a voter in accordance with law” so Now, if the short preliminary residence in a district is re that the law may prescribe the period of residence in an quired as a condition of registration, would not that be in election precinct, or rather district. cluded in that paragraph? Now, addressing myself to sub-paragraph or rather para MIZUHA: I move the previous question for the adoption - - graph four of Section i, in order to qualify to vote “one shall be able to speak, read, and write the English or Ha CHAIRMAN: Delegate Mizuha moves for the previous waiian language, except for physical disability.” Now I’m question. Do I hear a second to that? JUNE 9, 1950 • Morning Session 53 DELEGATE: I second it. or insane person” and I think that the committee has changed that language to “non compos mentis.” CHAIRMAN: It’s been moved and seconded that we move to the previous question. All in favor say “aye.” All who are ANTHONY: I’d like to state that I’m satisfied with the contrary minded say “aye,” uh “no.” It’s carried. explanation. The previous questions is, Section I, with the five CHAIRMAN: If there’s no further debate, we’ll put this parts. We are now voting on Section 1 with the five parts, up for a vote. We are now voting on Section 2 without amend none of which has been amended. All in favor of the motion ment. All in favor of passing Section 2. say “aye.” All who are contrary minded say “no.” It’s carried. Section 1 is carried. HEEN: I noticed that they used the term “felony” here. Section 2 is now being considered. Now, felony is a statutory matter. In other words, any crime punishable by imprisonment for a term of over one year is KAGE: I move that Section 2 of Committee Proposal No. considered a felony. That might be changed to some other 8 be adopted. period, in the Organic Act, which I think is the better lan APOLIONA: May I second Delegate Kage’s motion? guage to use, that provides “no person who shall have been convicted of any criminal offense punishable by imprisonment, NIELSEN: Mr. Chairman, point of order. whether with or without hard labor, for a term exceeding one ANTHONY: May I ask what’s before the house at the year, whether with or without a fine,” shall be disqualified. moment? You have that in the Organic Act; then, any change as to the period of imprisonment in a felony case to a period less than CHAIRMAN: Your - - the point of order has been brought one year would not change the provision of the Organic Act. up. NIELSEN: Didn’t the representative from the fourth dis MIZUHA: There is one question I would like to raise at trict ask if he could second the motion? He didn’t second it. this point. Maybe it’s not apropos to this section but maybe with reference to another section. At the present time there APOLIONA: I rose on a point of special privilege to is a limitation under the Organic Act as to the qualifications second that motion. of voting of service personnel stationed here in Hawaii. I am just raising the question whether it is advisable at this CHAIRMAN: That the Chair understood but now it’s time to insert it in the Constitution or whether it is a statu clarified. tory matter. I am not prepared to answer that question. KING: The motion then is on the acceptance of Section 2, Maybe the committee had considered that question? disqualifications of voters, as written. KING: Under Section 4, there is some language that would ANTHONY: I would like to have the committee answer cover it but it authorized, “the legislature shall provide the for me the disqualification, “no person who is non compos manner in which a qualified voter who may be absent from mentis.” Do they mean a person who has been adjudicated the state or the island of his residence on any election day non compos mentis or a person who is non compos mentis may vote.” and still has never been adjudicated. It seems to me that DELEGATE: Question. would, might raise a serious question of fact in the qualifi cation of a voter unless that’s cleared up. MIZUHA: The question that I raise is with reference to service personnel stationed in Hawaii, whether they shall be WOOLAWAY: Adjudicated, that means as judged, judged eligible to vote after residence in Hawaii. as such? CHAIRMAN: I believe - - the Chalr understands it as PORTEUS: I think that that subject could well be dis such, that it’s been judged as being non compos mentis. cussed under the next section. It says “No voter shall be deemed to have gained or lost rebidence by reason of his ANTHONY: Well, a person can be of unsound mind and presence or absence while employed in the service of the still not be committed. Now, I think it ought, and he would United States.” I think we can get at that subject at that vote. It seems to me if you want to make it abundantly time rather than in this prior section. clear, you ought to put in there, insert after the words “who is,” insert the word “adjudicated.” TAVARES: I don’t think the statement of - - the argument of the delegate from the fourth district was answered about PORTEUS: I wish to disagree with my brother from the the felony. For more than 50 years, we have had a statute fourth district. I think the addition of the word “adjudicated” which defines felony as any crime punishable by imprison means, would mean that in each case unless a person had ment at hard labor for more than one year with or without been held by a court to be non compos mentis, he was auto fine. Now it’s hardly likely that we will ever change that matically qualified to vote and the clerk of the county or a definition and if we do, it is hardly likely that we will make clerk registering voters would have no basis for rejecting it much less serious than that. And as long as we define the registration of such a person as a voter. Undoubtedly felony by statute, and I’m sure we always will, there will be someone could be presented for registration, very obviously no uncertainty about it. We are going to continue that statute one who was non compos mentis but not one who had been in effect by our Constitution, and I am certain our legislature hailed before a court in which there had been a judicial hear won’t repeal it without putting something in its place, so I ing on that subject. This question as to whether he is or is feel the danger is not real at all. not non compos mentis, it does not pose an unusual question CHAIRMAN: I believe the - - Delegate Roberts, have you - - for the clerk of the - - who registers the voters in that it would be the only thing presented to him, but rather in all ROBERTS: I’d like to ask a question of the chairman of these other matters as to whether the person is a citizen, the committee. Whether the substitution of the words “con whether he’s attained the age of twenty, whether he has had victed of” instead of “under conviction of” would be a matter residence in the state is a matter of judgment by the court of style. If it is, then I will not make a motion to amend that [sicJ,.and in fact our Organic Act in Section 18 says “no idiot section so that the section would read “No person convicted 54 SUFFRAGE AND ELECTIONS of a felony” instead of “under conviction of felony.” Would trary minded say “no.” The ayes have it. ft’s - - Section that be a matter of style? Jf it is, then we can take care of it 3 is up. in the Style Committee. WOOLAWAY: Point of order. Having withdrawn my CHAIRMAN: Would the chairman like to answer that? motion, there’s nothing before the house so now I move The Chair feels that there’s been ample debate here unless again that we adopt Section 3. there’s any question as to that and would you like to put this APOLIONA: Mr. Chairman. Section 2 up for vote? We are now voting on Section 2 with out amendment. All those in favor say “aye.” All who are CROSSLEY: The Chair recognized me, I believe, and contrary minded say”no.” ft’s carried. the point of order is - - We are now ready for Section - - CHAIRMAN: I believe Delegate Crossley has the floor. HOLROYDE: Point of information, Mr. Chairman. CROSSLEY: I now move the adoption of Section 3. CHAIRMAN: - - three. Delegate Crossley. DELEGATE: I second the motion. HOLROYDE: Point of information. APOLIONA: I now second that motion. DELEGATE: Point of order, Mr. Chairman. CHAIRMAN: It’s been moved and seconded that we adopt HOLROYDE: Point of information. Section 3 of the report. CHAIRMAN: Delegate Holroyde. KING: I might say in response to Delegate Trask’s motion that we rise and report progress and sit again, that the HOLROYDE: I’d like to know whether the Chair is aware chairman of the Judiciary Committee is willing to proceed of the fact that Delegate moved-to-adopt Bryan is now present. on the consideration of this if it doesn’t take too much longer. CHAIRMAN: That’s a point of personal privilege, Delegate So that if we finish this within the next 25 minutes, we can Holroyde. complete it and then go into Committee of the Whole on the judiciary. If we don’t complete it the next 25 minutes, then WOOLAWAY: I now move for the adoption of Section 3. perhaps the motion you made would be in order. I just make APOLIONA: I second the motion. that as an explanation of the point of view of the chairman of the Committee on the Judiciary. J. TRASK: Because of the lateness of the hour and in keeping with the general orders of the day, I move that the CHAIRMAN: Section 3. committee rise and report progress and beg leave to sit HEEN: On Section 3 I don’t quite understand the purpose again so that we might consider in the Committee of the of the section there. A person might be absent while employ Whole Standing Committee Report No. 39 on Committee ed in the service of the United States and will never lose his Proposal No. 8. Oh, no, Standing Committee Report No. 37 residence if he has an intent to always come back to Hawaii and Proposal - - on Committee Proposal No. 7. to live. That’s a matter of law. Nor does he lose his resi ASHFORD: I second that motion. dence if he goes away to the mainland to study in any institu tion on the mainland. He can go away and stay away for five WOOLAWAY: There’s a motion before the House - - be years; so long as he has the intent to come back to reside fore the committee right now. permanently in Hawaii, he will always be a resident of the CHAIRMAN: Motion’s been withdrawn on passage of Territory of Hawaii. That’s also a matter of law. So oaly Section 3. when you change your intent, then you lose your residence. I know some of these students who’ve gone away to study AKAU: The Section 3, 4 and 5 of this report is not too have registered as voters on the mainland. When they did lengthy and not half as involved as, let us say, the judiciary. that, that was an intent to give up their permanent residence ft would seem to me that we could sit another 20 minutes in the Territory of Hawaii. But if they didn’t do that, as long and probably get through if that would meet with the approval as they maintained an intent to come back to live in the of the Judiciary Committee. We could ask them to extend us Territory of Hawaii, their residence will always be in the the courtesy, and I’m now asking for point of personal privi Territory of Hawaii. lege to speak to the chairman of the Judiciary Committee. May Iplease? A. TRASK: I am bothered also with this Section 3. To me, it’s writing into the Constitution a question of qualifi CHAIRMAN: The Chair believes we could declare a short cation for citizenship which under the facts of the particular recess while you do that and get this matter straightened out. case, as the Judge has indicated, may disqualify the person AKAU: Oh, he’s right here. I could just ask him, Mr. in fact. In other words, when I was attending the University Chairman. of Southern California, I voted —forRoosevelt at that time— and I naturally cut off my voting allegiance to the Territory CHAIRMAN: Well, you may ask him. of Hawaii. I had not yet attained 21 at that time, but I think AKAU: Mr. Anthony, may we - - California was 20. The situation in this. I think we are putting into the Constitution something of a permanent charac SILVA: There’s a motion before the house. ter when such a matter should be determined by the facts of AKAU: I move to table the motion to go resolve our the particular case appertaining to the particular person. selves back into Committee of the Whole - - I mean, from I - - take for instance, the first section. Now, a person may the Committee of the Whole. be - - a local boy may be in the service of the United States Army, Marine, Air Corps, and so forth. He leaves here, he DELEGATE: Second that. goes away and he raises a family and alter a few years CHAIRMAN: It’s been moved and seconded that we table decides to come back. According to this provision, it would the motion to rise and report progress to the President of seem to me that by virtue of his services in the United States the Convention. All in favor say “aye.” All who are con- Army, even though he may have acquired legal rights and JUNE 9, 1950 • Morning Session 55 voting privileges elsewhere, he always has his voting privi as a voter; in other words, a private or a sergeant stationed lege in the Territory of Hawaii. I do not think it’s right, I at Schofield on the post, not formally a resident here, could do not think it’s fair. And so I doubt the wisdom of including not be eligible purely because of his being stationed here to such a Section 3 here, and I would like at this time to consi be a voter. He has to prove that he has acquired residence der seriously that this matter be altogether deleted and I so under the general body of law that is applicable. Insofar as move. the case that delegate from the fifth district was referring to, BRYAN: I feel that I’m fairly well qualified to speak on it arose in the Attorney General’s office. I think that ques this point. I have been in the predicament that this thing tion arose as to whether or not someone was eligible to be hopes to control and rules on. I think that the word “simply employed by the territory unless that person had been a by reason” gets around the objection that my colleague from resident of the territory for a certain length of time. By the fifth had. In his own case he had other reasons why he going to the mainland and voting, it was a clear indication should not be qualified to vote in the Territory of Hawaii, to surrender residence in the territory. There was nothing the other reason being that he had registered to vote and had that prevented that person from acquiring residence again. voted in the state of California. But “simply by reason” of It just meant that they couldn’t qualify by, on the moment of his service in the United States or his attendance at an insti coming back, as having been a resident for three years. next tution of learning in some other state, that was not what preceding appointment. That’s all that was. There’s no would disqualify him. And I think that this is a good pro ineligibility to acquire; it was just that she had surrendered tection, I’m very much in favor of it. her previous residence. A. TRASK: I think there is a distinct feature of home rule AKAU: Mr. Chairman. involved in this section, namely this. A voter with this par DELEGATE: Mr. Chairman. ticular section in hand would be placed at an advantageous position with respect to the clerk. In other words, the clerk’s CHAIRMAN: Delegate Akau wanted the floor a little while got to disprove his claim, rather than making it on the other ago. hand the obligation on the voter or the applicant for voter - - AKAU: I think Delegate Heen and Delegate Trask have for voting recognition, to register. In other words, I would both brought up some - - a very important legal question like to see the clerk placed in a more advantageous position that I had in mind also and perhaps from our “Supreme to judge the qualification of the applicant who desires to Court” here, we might get some judgment. Now, then I’d register as a voter. Whereas, in this situation we put the like to state the incidence that happened recently - - no, burden on the clerk to disprove the claim of the applicant a couple of years ago from the Attorney General’s office. for voting, which I think is not altogether proper. And to I simply quote from my memory. The woman who was me it has a feature which is against the local officials having working there in the Attorney General’s office in the secre a sense of home rule and control over the voters and regis tarial department used to vote here in Hawaii. Now then tration. she went to the mainland, I think it was to California and ANTHONY: I incline to think that this doesn’t put the I’m simply doing this as I say from memory, She voted, I burden on anyone. This is a simple statement of what the believe, in California as a legal resident there. Then she existing law as to residence or domicile is. And all it does came back here and wished to establish her residence here is say that you don’t either gain or lose your residence or as a citizen having voted here once, established her legal domicile if you’re in the armed services or if you’re away residence in I~alifornia, I believe, and then came back here. at school or if you’re on a boat. Now it might very well be I don’t know what the legality finally was, but I do think that deleted but I see no objection to enactment of it into the we need some kind of clarification here and I have an amend Constitution if the Convention wants it. It seems to me it’s ment alter somebody else speaks that I’ll get together on the a simple statement of the existing law on the subject, fairly same - - on this very question. accurate, and I see no particular harm in it. CHAIRMAN: Can anyone speak to that point? RICHARDS: I’d like to ask a question. As I understood the Secretary’s remarks, the inclusion of this would not PORTEUS: If I may be exempted as being a member of prohibit people in the armed services from obtaining local the “Supreme Court,” I’d like to talk on this subject. residence if they qualified under other terms. Is that correct? CHAIRMAN: You’re exempted. ANTHONY: That is an accurate statement. May I be PORTE US; Thank you very much. I think there is some recognized? good reason for the section as it is worded. I think the in- CHAIRMAN: It is an accurate statement? tent is, as expressed here, that simply and solely because of a person being here in the territory or being absent while ANTHONY: That’s an accurate statement. You can gain employed by the United States government, that isn’t con residence in Hawaii and be in the Army. The mere fact clusive as to whether he has acquired residence here in the that you’re in the Army however and in Hawaii does not territory or lost residence in the territory. The same prove that you’re a resident. applies while he is in navigation. Now, this last clause means ASHFO~: This is a section that is declaratory of the that if a person goes away to an institution of learning, a law as it now exists. A law not provided by statute, but school, that because of him going away, he shall not thereby by uniform decisions of the courts, not only our own courts be held to have lost his residence. It will take something but courts everywhere, including the United States Supreme more than that. Now, there are - - there is a good body of Court; and therefore It seems to me it’d be circuitous to law with respect to the acquisition of residence and domicile. write it into the Constitution. It’s a question of intent. It has usually been held that where a person is in the service of the United States such as in the SHIMAMURA: I also see no objection to this Section 3. Armed Forces, and is ordered to a post and lives on a post, As some of the previous speakers have mentioned, legal that thereby he has not got the option of deciding whether or residence or domicile consist of two things: first, physical not he will take up residence in that place and then qualify presence, and second, intent. That is, intention of whether SUFFRAGE AND ELECTIONS 56 or not you wish to make a certain place your home, whether ANTHONY: I don’t think we need it at all, really. It’s a or not you adopt it as your home. And it is therefore a ques matter of existing law. tion of fact. As Miss Ashford said, “this is declaratory of FONG: It seems quite ambiguous to me. the law,” and where a student goes to school, there’s a presumption that he doesn’t lose his residence. In other TAVARES: Mr. Chalrman. words, the residence isn’t changed; the same thing is true WOOLAWAY: Mr. Chairman. about being in the armed forces. Therefore I think this CHAIRMAN: Delegate Woolaway has been waiting patient section should be - - ly. Delegate Woolaway. A. TRASK: rd like to draw the attention of the delegates WOOLAWAY: Delegate Trask said that the sentence, “The to the second sentence in the following section, No. 4, which legislature shall provide the manner in which a qualified reads, “The legislature shall provide the manner in which a voter who may be absent from the state or the island of his qualified voter who may be absent from the state or the is residence on any election day may vote,” says that Section land of his residence on any election day may vote.” I think 4 as written covers Section 3. I would like the chalrman that is a more - - a proper expression which does incorporate of this committee to answer that. I feel that just covers No. 4, and let it be the law, and as it is, and it’s a good absentee voting. Is that right? statement, but still I think it should be - - KOMETANL Section 4, “The legislature shall provide ,WOOLAWAY: I think that question just covers absentee the manner—” Provide absentee voting. voting’, that’s all. WOOLAWAY: That’s right. Another thing, Mr. Chairman, A. TRASK: No, everything. I think we’re arguing over a lot of words. As a resident CHAIRMAN: Delegate Fong. voter of this territory on the island of Maui, if I went away, whether on a vacation or if I served in the army, when I WOOLAWAY: Mr. Chairman, rd like to ask the chairman came back and I appeared before the county clerk to re of the committee, doesn’t that question - - that sentence register, all I had to do was raise my hand and under oath that Mr., Delegate Trask just read - - say rye been here the sufficient time or qualified without CHAIRMAN: You’re out of order. Just a minute. Dele any trouble, why I’d be registered again. So I don’t think gate Fong has the floor. that - - I don’t see any reason why we should argue any more on Section 3; therefore I move the previous question. FONG: May I ask the chairman a question? Now the word used is “employed in the service of the United States.” SMITH: I’ll second the motion. Now if a man was in the agricultural service and he came CHAIRMAN: It’s been moved and seconded that we move here and say he will stay here for about 10 years, would he to the previous question. All in favor say “aye.” All who be able to gain residence here? are contrary minded say “no.” It’s carried. Now the CHAIRMAN: will the chairman answer that? Delegate question is on Section 3, without amendment. Woolaway, did you have a question? ANTHONY: I think the expression “no voter” is inaccu rate. It should be “no person.” Voter includes a person WOOLAWAY: I’m sorry, Mr. Chairman, I thought I still who is a resident. had the floor. Mr. Trask - - CHAIRMAN: I believe the delegate’s out of order. It’s FONG: Just a minute, Mr. ~oolaway. been moved that we vote on the previous question. CHAIRMAN: Oh, you’re not - - you haven’t given up the ANTHONY: I move for reconsideration. floor. I’m sorry. Delegate Woolaway, Delegate Fong still CHAIRMAN: It’s been moved and seconded that we re has the floor. consider Section 3. All in favor say “aye.” All who are FONG: The language as read was this: “No voter shall contrary minded say “no.” It’s carried. Section 3 is now be deemed to have gained or lost residence simply by reason being reconsidered. of his presence or absence while employed in the service HEEN: Mr. Chairman. of United States.” Now that means that he will not have gained residency if he is in the employ of the service of the CHAIRMAN: Delegate Heen has the floor. United States. CROSSLEY: Point of order. ANTHONY: Mr. Chairman. CHAIRMAN: Delegate Crossley rises to a point of order. CHAIRMAN: Do you wish to speak to this point? CROSSLEY: I believe that the last motion was inaccurate; ANTHONY: Mr. Chairman, may I answer that, Delegate I think what we were reconsidering was our vote on the pre Fong’s question? vious question. You had never put the question on the adop tion of - - CHAIRMAN: Will Delegate Fong yield to Delegate An thony? CHAIRMAN: I believe I stand corrected, Delegate Cr oss ley. ANTHONY: Isn’t this the situation? All this is saying is CROSSLEY: - - so the vote should have been the recon the mere fact alone of presence or absence in Hawaii, if sideration of our action in moving the previous question. you’re in the military service, will not make you a resident. In other words, if there are other facts, if an army officer CHAIRMAN: I believe you’re right. We are now con buys a home here, he pays his taxes, he marries, and so on, sidering Section 3. Delegate Heen. then naturally he becomes a resident even though he’s been HEEN: Considering Section 3? ordered here by virtue of - - CHAIRMAN: Yes. FONG: Why don’t we put it in so it won’t be so ambiguous. JUNE 9, 1950 • Morning Session 57 HEEN: I think the proper words to be used there, or tered may vote.” The reason for that is that on the Big Is rather the proper word to be used there is “person,” instead land Why it’s a 120 miles between one district and the other of “voter.” “No person shall be deemed to have gained resi and many times people are commuting between Hio and dence or lost residence,” because if he is already a voter, Kona and they don’t get to vote. So if we leave it to the leg he doesn’t gain it. islature “between representative districts” instead of “be KING: I believe the gentleman is correct and I suggest tween islands” then the legislature can do something about he offer that as an amendment to the motion to adopt Section it. As it originally is written, why nothing could be done 3. about it by the legislature except between islands. I so move. BEEN: I so move, Mr. Chairman, that the word “voter” ASHFORD: I’d like to say that we, there are several is in the first line of Section 3 be deleted and that the word lands in the county of Maui that are one, that are in one “person” be inserted in lieu thereof. representative district, and if you don’t have the island in, they’ll be left out. TAVARES: Mr. Chairman, I second it, the amendment. J. TRASK: Point of order. BEEN: I move the adoption of that amendment. BRYAN: I was going to suggest that you leave the words DELEGATE: Question, Mr. Chairman. We accept that “state, district and island” all in there. amendment. J. TRASK: Point of order, Mr. Chairman. CHAIRMAN: ft’s been moved and seconded that the word “voter” in line 1 of Section 3 be deleted and the word “person” BRYAN: I was wondering if that would be acceptable. be added in its place. CHAIRMAN: Delegate James Trask rises to a point of CROSSLEY: As the movant of this section, I accept the order. amendment. J. TRASK: There’s nothing before the Convention. Now KING: I believe with the mover of the original motion the motion has not been seconded, so I second the motion. accepting the amendment, we can now at one vote accept Section 3 as amended; the amendment has been incorporated. CHAIRMAN: The amendment has been seconded. Will Delegate — — CHAIRMAN: Will the seconder accept that amendment? Dr. Apoliona does. NIELSEN: I’ll accept the inclusion as indicated by Mr. I believe the Chair will accept that ruling. Delegate Bryan. Porteus. CHAIRMAN: Will you repeat the inclusion, Delegate PORTEUS: Mr. Chairman, when anyone moves that a Bryan? section be adopted, he can’t say that it be adopted in an BRYAN: I didn’t have the exact wording. I was going to amended form. Is that what your ruling is.? That, in other suggest “who may be absent from the state, district or is words, the section be adopted in amended form. land of his residence.” That would take care of his problem, CHAIRMAN: That is what’s under consideration. the problem of MOlokai, and the problem of the territory. PORTEUS: Customarily it is to move that the section be NIELSEN: “The state representative district” so that amended; then alter the amendment carries, then move that wouldn’t be mixed up with senatorial districts which are the section as amended pass. individual islands. CROSSLEY: That’s correct. J. TRASK: I see no reason for including the words “re presentative district” because of the fact that the state KING: In the effort to push it along they cut across lots. automatically includes the representative district. So I imagine the motion is on the amendment first. there’s absolutely no reason for the amendment. CHAIRMAN: Thank you. Are you ready for the question? NIELSEN: Explaining that - - one says from a state that The question is to vote on the amendment to Section 3 which means to the mainland or to the Orient or somewhere else. is the deletion of the word “voter” in line one, that is the second word, and the addition in its place of the word “per J. TRA5K: “Absent from the State of Hawaii.” You son.” All in favor say “aye.” All who are contrary minded might put that amendment in. After all we are writing a say “no.” ft’s carried. Constitution for the State of Hawaii. It naturally includes CROSSLEY: I move the adoption of the section as amended. the State of Hawaii. ft would mean that it’s implied. APOLIONA: I second the motion. BRYAN: I think the answer to that is thafr if someone who is a registered voter on the island of Molokai is on CHAIRMAN: It’s been moved and seconded that Section 3 Maui or on Oahu at the time of voting, they can vote by be passed as amended. Are you ready for the question? All absentee ballot on Molokai. That’s the idea. in favor say “aye.” All who are contrary minded say “no.?’ It’s carried; Section 3 is carried as amended. HEEN: I think What we should do is to use language which CROSSLEY: I move the adoption of Section 4. is in more general terms. “That the legislature shall pro vide for absentee voting.” APOLIONA: I second that motion. NIELSEN: I’ll accept that as an amendment. CHAIRMAN: ft’s been moved and seconded that we adopt Section 4. DELEGATE: I second that. NIELSEN: I’d like to make an amendment in that section KAUHANE: I did rise to a point of information. in the fifth line alter the word “absent,” the fourth word, and CHAIRMAN: Delegate Kauhane rises to a point of infor insert “from the representative district in which he is regis- mation. 58 SUFFRAGE AND ELECTIONS KAUHANE: Mr. Chairman, don’t you think because of the be absent from his voting district, and he can vote in such a confusion of the minds now that you should declare a recess manner as to go before the county clerk and vote there while and get this thing written up correctly? he’s absent from his own representative district, as an illus tration. KING: The point raised by Delegate Nielsen was that absence from Kona in Hio would not have a right to vote in DOL Is that a motion, Mr. Heen? Kona unless he was absent from Hawaii on some other is CHAIRMAN: I don’t understand it to be a motion. land. And the point made by Delegate Heen would fill it if he would propose it as an amendment instead of just as a HEEN: No, it was a suggestion. If it appeals to the statement of information. Let that last sentence read, “The members of the Convention, I would change it into a motion; legislature shall provide the manner in which absentee that is, by adding alter the word “method” in line two the voting may be held,” or some other phraseology if the dele words “and manner” and delete the last sentence. gate will figure it out, and Delegate Nielsen has indicated DOL I would like to second the motion to amend the his willingness to accept that. It’s merely to solve the point fourth section. of the largest island here where a man may be in Hilo on business on election day and according to this would not be CHAIRIVIAN: It’s been moved and seconded that the last entitled to vote in Kailua. Is that right? sentence be deleted and the word “manner” be inserted in the second line alter the word “method.” HEEN: In the Model Constitution, we find this: “Absentee Voting. The legislature may, by general law, provide a man KOMETANI: In inserting this last phrase in regard to ner in which qualified~voterS who may be absent from the absent voting, it was the desire of the committee to liberal state or county of their residence may register and vote, ize absentee voting. We have taken this matter up very and for the return and canvass of their votes in the election carefully with the county clerks and the phrase “island” was district in which they reside.” Now, the use of that general inserted because of the geographic make-up of our state. language might be adopted. I suggest this - - “The legis We would not like to deprive any individual from the right lature may, by general law, provide a manner in which of suffrage because of the fact that he lives in Lanai, Mob qualified voters who may be absent from the district in kai or Maui, which happens to be one county. I feel very which he is registered to vote and for the return and canvass strongly that this phrase should be - - this section, “Regis of their votes in the election district in which they reside.” tration; Voting,” should be left as it is, and the matter which Language along that line would, I think, cover the situation, was discussed by our delegate from Kona, I think the election but I think it requires a little more study in order to get the laws would take care of the district voting in the county. real proper language. I therefore move that this committee However, in the case of Maui county where it is made up of rise, report progress and ask leave to sit again. three islands, we felt that the individual in Maui when he is on a contract job to Lanai and because of the fact transpor DELEGATE: Second the motion. tation and a stretch of water prohibits him from returning, CHAIRMAN: It’s been moved and seconded that this he should not be deprived of the right to vote. In the dii committee rise and report progress and ask to meet again. trict of - - the county of Hawaii, it’s big enough to have the All in favor say “aye.” All who are contrary minded say law take care of that matter. no.” HEEN: I still insist that I think I’m right in having that last sentence deleted; the legislature can take care of JUNE 13, 1950 • Morning Session absentee voting as it does now. There’s nothing in the Or ganic Act about absentee voting at all and still the legislature has enacted appropriate statutes to take care of absentee CHAIRIVIAN: Will the Committee of the Whole come to voting. However, if the chairman of the committee would order for the consideration of Committee - - Standing Com like to have that provision Included, then I say it should mittee Report No. 39 and Committee Proposal No. 8. You read: “The legislature shall provide for absentee voting.” may be at ease. That will take care of the whole situation, without trying to CROSSLEY: I move, I believe Section 4 is the next sec determine from what district, what island, and so forth and tion under consideration. I move the adoption of Section 4. so on. The legislature can take care of that. Perhaps in order to clear the way, if Delegate Doi will CHAIRMAN: I believe it has been moved and seconded permit my withdrawal of my original motion, I will withdraw that Section 4 be adopted, at the last meeting of the Commit that motion and make the present motion, that the last sen— tee of the Whole. There was a pending amendment made by tence be amended so as to read: “The legislature shall pro Delegate Nielsen and seconded by Delegate James Trask that vide for absentee voting.” the word “district” be added in the fifth line alter the word “state” in Section 4. CHAIRMAN: Do I hear a second to that motion? HEEN: The matter of absentee voting involves absence ANTHONY: I second the motion. from the voting district, absence from the island, absence CHAIRMAN: Delegate Doi seconds the motion, I believe. from one representative district while being in another Delegate Anthony, do you wish to have the floor? representative district. Now all of those things can be taken care of by statute, and it’s my suggestion that that ANTHONY: No, Mr. Chairman, I just rose to second it. last sentence be deleted altogether because the first part CHAIRMAN: Thank you. Is there further discussion on of the section reads: “The legislature shall provide for the this amendment? registration of qualified voters and prescribe the method YAMAMOTO: Is it understood that in reference to this of voting at all elections, provided that secrecy of voting problem, the matter of the Big Island will be considered? shall be preserved.” Now, it may be “method” means voting All included? by ballot, and I think if we insert there after that word “method,” “method,” two words, “method and manner of voting,” it would CHAIRMAN: Delegate Heen, would you like to answer take care of the whole situation. In other words, a person may that? JUNE 13, 1950 • Morning Session 59 HEEN: May that question be repeated? I thought I “General elections shall be held on Tuesday after the first heard it but - - Monday in November in even numbered ye3rs, and every CHAIRMAN: Will you repeat the question, Delegate second year thereafter.” The amendment fits in now as Yamamoto? follows: “At any primary and general elections a voter shall not be denied the right to vote for candidates from YAMAMOTO: The problems in regard to the Big Island more than one party ticket.” will be considered in this matter? KAUHANE: I second the motion to adopt the amendment HEEN: Oh yes, quite definitely. If the legislature has offered by Delegate Sakakihara. the power to enact statutes with reference to absentee voting, they can take care of the situation over in Hawaii, for in ANTHONY: I’m opposed to this amendment. This is an stance, where they have two representative districts. obvious attempt to undo the good work of the last legislature in having a closed primary. I don’t think we ought to have CHAIRMAN: It’s been moved and seconded that the Sec anything in our Constitution that’s going to prevent the leg tion 4 be amended so that the last sentence will read: “The islature from keeping on the statute books wholesome legis legislature shall provide for the manner in which absentee lation which will prevent the shifting of votes from one party voting shall take place.” to another in a primary election, and therefore I’m against ANTHONY: No, the last sentence was - - the motion was: this. “The legislature shall provide for absentee voting,” period, SAKAKIHARA: That’s a matter of opinion whether that and the rest of the language stricken. was good legislation or bad legislation. I don’t necessarily CHAIRMAN: I’ll take that correction. All in favor say subscribe to the opinion of one man’s thinking. If the mem “aye.” All who are contrary minded say “no.” It’s carried. bers of the Convention will recall that the matter of a closed primary election was a very hotly contested issue before AKAU: A little before that where it says - - in the line the last session of the legislature. It was strongly supported before that, may I just read, “voting at all elections, pro by the union, by the two major political parties of the terri vided that secrecy of voting shall be preserved.” In view tory, who are now regretful of the fact that such legislation of our past experience in this recent election for the Consti was put into effect. Many good men of either party, their tutional Convention, and since some of the methods were candidacies are endangered in a closed primary election. not preserved, I move to amend that section b~ just adding I don’t know whether the members of this Convention the word before “preserved” to “scrupulously preserve” realize that approximately 85 per cent of the voters in this adding that word which makes it much more emphatic in my territory are non-partisan. Fifteen per cent of the voters opinion. “Scrupulously preserve.” are either Republican or Democrat. And out of the existing CHAIRMAN: Will you repeat that word, please. territorial statute, a person offering himself as a non partisan candidate for public office are discriminated AKAU: It would read therefore, like this, Section 4 on against; they have to receive twenty per cent of the votes registration and voting “The legislature shall provide cast or they are eliminated in the primary election. On the for the registration of qualified voters and prescribe the other hanâ, if you are running as a Republican or a Demo methods of voting at all elections provided that secrecy of crat, you could be nominated by a majority vote at that voting shall be scrupulously preserved.” election, but nevertheless it specifically provides that a ANTHONY: I move that Section 4 as amended be adopted. man offering himself as a non-partisan candidate, he will have to receive twenty per cent of the votes cast. CHAIRMAN: It’s been moved and seconded that Section This is in conformity with the trend of thought at the 4 be adopted as amended. present time even on the continental mainland United States. DELEGATE: Question. The states of Massachusetts and Ohio recently repealed the straight party ticket act which existed for many years. APOLIONA: I think the delegate from the fourth district, I submit that a man is entitled to vote according to the in the first sentence alter the word “method,” said “and conscience of - - according to his own conscience. He can manner.” It was seconded by Mr. Doi. no longer go to the polls and cast his vote for the man who HEEN: Mr. Chairman, that motion was withdrawn. he thinks is the proper person to represent him in a govern ment office. Hereafter he will have to select one or the CHAIRMAN: I believe so. other, select a Republican or a Democrat, and yet when he HOLROYDE: I second the motion of Delegate Anthony. is a non-partisan, not affiliated with either of the political party, he will be kept away from the polls; he will be dis CHAIRMAN: Is there any - - shall I put the question? couraged from voting. Eighty-five per cent will be dis All in favor of adopting Section 4 as amended say “aye.” couraged from going to the polls and cast their votes. And All who are contrary minded say “no.” It’s carried, as I submit that this is a good amendment. amended. We’re now ready for Section 5. CORBETT: I don’t intend to enter into the debate as to whether the legislation was good or bad at the last session, CORBETT: I move for the adoption of Section 5. but it is my belief that any actions taken on such legislation APOLIONA: Second that motion. should be by the next legislature and not written into the Constitution. CHAIRMAN: It’s been moved and seconded that we adopt Section 5. TAVARES: I’d like to say that I am going to vote against the proposed amendment, but I don’t think that we have to SAKAKIHARA: I have an amendment to Section 5 of Com agree that the closed primary is good or bad in order to do mittee Proposal No. 8, which was distributed last Friday. I that. I agree with the last speaker that this is a question move that the amendment be agreed to. Section 5 of the to be left to the discretion of the legislature. If the legis proposal. The amendment to Section 5 will read as follows: lature made a mistake the last time I think that mistake ought SUFFRAGE AND ELECTIONS 60 to be pointed out to the next legislature, and they ought to be ing to the dictates of their conscience without any statutory asked to change it. My own opinion is that as conditions prohibition as to how they should vote. I submit that this is change, sometimes the law should be changed to meet them. an appropriate question, a right to be incorporated into the Once upon a time we had a convention system, and it worked basic law of this territory. very well for a while; then it began to be felt that there was CROSSLEY: I am opposed to the amendment not on the too much control so we changed to the open primary; then merit of the amendment or on the merits of closed primary we changed to the dosed primary, and perhaps later on, we law as such, but purely and simply on the matter that this should make another change. Perhaps some day we will was created by the legislature and if they have made a mis want to come back to the convention system. I think it ought take, they’ll correct it; if they think it’s the will of the to be left open to the legislature to decide which one of those people, they’ll continue. it. I appreciate very much a mem methods, under all the conditions then obtaining, is necessary ber of the loosely connected Democrat party speaking for and for that reason I shall vote against the amendment. the Republicans, but I think the Republicans are quite able to carry on for themselves. It was in our party platform J. TRASK: I take exception to the remark made by the before its adoption and I think the Republican party primari delegate from Hawaii to the extent that the political parties ly feels that it’s something that should be tested out and are regretting that they adopted the closed primary law. given back to the people who created it for further action, Again I think it’s a matter of opinion. The Democratic and not by the Constitutional Convention. party is strongly in back of this closed primary law, which was enacted by the legislature and as such belongs to the HAYES: I just want to say that I was one of those who legislature. It should never be made part of the Constitution. fought against the - - who fought for the closed primary on I can’t speak for the union. However, speaking to a lot of my the floor of the legislature, and the result of that, at that Republican friends, they are all for the closed primary law. time was - - showed that it was a very close vote. There I don’t know what percentage the delegate from Hawaii rep are many, many things that I believe in thoroughly, but I resents but 1 think he’s erroneous in his information to the feel that at this Constitutional Convention that we should delegates of this Convention. Another thing, here he quotes refer it back to the legislature. If we’ve made a mistake, 85 per cent of the voters will be deprived of their vote in the the legislature should change it again, and so therefore I primary election. I am almost sure he is basing his remark feel that that is my sentiment and I just wanted to stand up on the existing law which is the open election. So I move at and speak for it because I was a marked woman on the floor this time that we table the motion to adopt the amendment. of the legislature speaking for open primary. SAKAKIHARA: I didn’t know that there wasn’t any Demo NIELSEN: I might say that it has been in the platform of cratic Charlie in Hawaii now. I don’t know which is the both the Democratic and Republican parties for several party, but I do say - - years. So, so far as being in the platform, why the stand- A. TRASK: Will the gentleman from Hawaii yield? patters have it in, and will continue to have it in. In the past we’ve been having two popularity contests.; we might SAKAKIHAR.A: I will. just as well have one election. Your primary is a party CHAIRMAN: Delegate Arthur Trask. matter, and then in the general you zigzag down and vote for anybody you want to. So rim sure we won’t lose 85 per A. TRASK: For the purpose of debate I seconded the cent of our vote in the primary. I’m sure it will still turn motion made by my fellow - - out around 80 per cent. But certainly it doesn’t belong in the SAKAKIHARA: I refuse to yield, Mr. Chalrman. Constitution, and it’s a legislative matter and so I’ll have to vote to table. CHAIRMAN: As I understand it, you yielded to Delegate Arthur Trask. KOMETANL While we are in the matter of open elections, SAKAKIHARA: He wanted to ask me a question, if I in 24 of the 48 states the matter of free and open election is understood it correctly. I yielded the floor to question. in the Constitution under the Bill of Rights, in suffrage rights. And it reads as follows: “All elections shall be free and CHAIRMAN: I don’t think the delegate from the fifth open and no power, civil or military, shall at any time inter district did say that he rose to ask a question. He asked - - fere to prevent the free exercise of the right of suffrage.” Now that is in 24 of the 48 states, and therefore the open A. TRASK: It wasn’t intended to deprive the orator from election is a matter of the individual state’s opinion. Hawaii of his rights, of course. I withdraw that second for the time being. CHAIRMAN: Will Delegate Sakakihara restate the amend CHAIRMAN: Second’s been withdrawn. ment so that it may be clear. SAKAKIHARA: I don’t understand why the fifth district SAKAKIHARA: The amendment reads as follows: Second delegate, who preceded before the elder Trask, said that sentence in Section 5, “In any primary and general elections, the Republicans predominately were in favor of the closed a voter shall not be denied the right to vote for candidates primary; I don’t know since when the gentleman speaks for from more than one party ticket.” That is the amendment. the Republican party. I do say, Mr. Chairman, I have an CHAIRMAN: Is there any deletion from Section 5? editorial comment from the San Francisco Chronicle of re cent issue of why Ohio has just adopted the Massachusetts SAKAKIHAR.A: Yes, delete the rest so that the Section 5 ballot, which abolishes the practice of straight party ticket will read as follows: “General elections shall be held on voting. Hawaii is not going forward by adopting such tactics Tuesday after the first Monday in November, even-numbered as closed primary elections to deprive the people of this years and every second year thereafter. In any primary and territory, especially who are not of any political party. I general elections a voter shall not be denied the right to vote submit that the people of this territory have every right to for candidates from more than one party ticket.” have this Convention incorporate their bill of rights, rights CHAIRMAN: Thank you. Are you ready for the question? of suffrage and election, and go to the polls and vote accord- JUNE 13, 1950 • Morning Session 61 ASHFORD: Wasn’t there some question raised the otherS CHAIRMAN: All in - - do I see the hands on that? day about the propriety of tabling an amendment? There is insufficient demand for roll call. CHAIRMAN: I don’t believe the motion to table has been TRASK: I think we should defer action on this matter put. Delegate Nielsen did mention that he would vote to until the other delegates are here on the floor. table, but I don’t think he put that into a motion. CHAIRMAN: That is a - - Would you put that in the form HEEN: I take it that the first section of - - or rather the of a motion. Delegate Kometani, did you - - first sentence of Section 5 is left intact under this amend ment proposed by Delegate Sakakthara? KOMETANI: I’m just looking around to see who’s absent from the Convention, that’s all. SAKAKIHARA: That is true, Senator Heen, and then I intended to make this clarification. My amendment will CHAIRMAN: Roll call has been put but there’s not enough merely replace this second sentence of Section 5 and retain hands. How many in favor of roll call? the third and fourth sentence thereof, so that the Section 5 SAKAKIHARA: No, as the Chair was about to roll call, will read: “General elections shall be held Tuesday after it was interrupted by Delegate Trask. Let’s be fair about it. the first Monday in November, even-numbered years and every second year thereafter. In any primary and general CHAIRMAN: There are about two people in favor of roll election a voter shall not be denied the right to vote for call. How many are in favor of roll call? Roll call has candidates from more than one party ticket. Special elec passed, and it’s to be - - this is to be done by roll call. tions may be held according to law. Contested elections AKAU: Are we voting now merely on the amendment - - shall be decided by the Supreme Court of the State of Hawaii according to law.” CHAIRMAN: We are. HEEN: So, I take it then that the amendment deletes the AKAU: - - or on the whole business? second sentence altogether and another sentence substituted CHAIRMAN: We are voting on the amendment as put by for it. Delegate Sakakihara. The Chair feels that there’s been CHAIRMAN: I believe so. enough explanation of the amendment so that it need not be re-explained. All in favor will say “aye,” and all who are HEEN: Is that correct, Mr. Chairman? opposed say “no,” by roll call. CHAIRMAN: I believe so. DELEGATE: In other words, all those who vote aye now HE EN: Because I would like to raise a point with ref er are voting in favor of Mr. Sakakthara’s amendment? ence to the first sentence later on. CHAIRMAN: That is true. CHAIRMAN: Are you ready for the question? Roll call: Ayes, 23. Noes, 34 (Anthony, Ashford, Bryan, H. RICE: The motion has been made by Mr. James Trask Castro, Cockett, Corbett, Crossley, Gilliland, Hayes, Heen, that - - to table the amendment. I second the motion to table. Holroyde, Ihara, Kage, Kawahara, Kellerman, King, Larsen, Lee, Loper, Luiz, Mau, Nielsen, Porteus, Rice, C., Rice, H., CHAIRMAN: I believe he’s withdrawn his motion to table. Richards, Roberts, Serizawa, Tavares, Trask, A., Trask, J., J. TRASK: Mr. Chairman. White, Wirtz, Wist. Not voting, 6 (Arashiro, Kido, Phillips, Sakai, Smith, Woolaway). CHAIRMAN: Delegate Rice, do you yield? CHAIRMAN: The motion’s been defeated. J. TRASK: I did make a motion to table the amendment; it was seconded by my brother Arthur who withdrew his HEEN: I’d like to have someone explain this language second. to me,”even-numbered years and every second year there after.” H. RICE: I will second that motion. KOMETANI: That was very seriously considered because CHAIRMAN: It’s been moved and seconded that the motion we would like to coincide our election with the federal and be tabled. we understand that the federal election is held on the even number of years. ROBERTS: I rise on the matter of personal privilege. I’d like to point out I’m not going to raise the question of HEEN: I think the language should be “in the even-num-’ procedure. I’d like to point out that when a motion to table bered years,” period. is put and my vote is recorded in the negative, it is not an KOMETANL~ No, “and every second year.” indication that I approve of the proposal. I have voted be fore on the motions to table and I have voted regularly HEEN: “In all even-numbered years,” put it that way. against any motion to table when adequate procedure exists “General elections shall be held on the Tuesday” - - there to vote on the specific proposal. It seems to me that ade ought to be a word after Tuesday inserted, the word “next.” quate procedure exists right now to vote on the amendment. That’s the language used in the Organic Act. “General elec There’s no need to move to table. It seems to me that as tions shall be held on the Tuesday next after the first Monday long as we can vote on the question then we can vote in terms in November in all even-numbered years.” I so move that. of our specific ideas and notions. A motion to table denies DELEGATE: I move we take a short recess so the chair that right. man of Suffrage and Election can get this. J. TRASK: in view of what the delegate has just said I SAKAKIHARA: Second the motion. withdraw my motion. CHAIRMAN: If there’s no objection - - CHAIRMAN: The motion to table has been withdrawn. Are you ready for the question? KING: Rather than recess, I would suggest that we rise, report progress and ask to sit again so that we may go into SAKAKIHARA: I ask for ayes and noes, roll call. the Committee of the Whole on the Judiciary, and when we SUFFRAGE AND ELECTIONS 62 the federal. If we held it on the odd-numbered years - - You sit again the amendment suggested by Delegate Been might will remember that when you become a state you will elect be the first order of business. I’d like to offer that as a for the President, and therefore it must be on the even- motion, that the committee now rise, report progress and numbered years. request permission to sit again. BEEN: That’s correct, it’s even-numbered years. So CROSSLEY: Second that motion. that if we have the Constitution adopted this year the first CHAIRMAN: It’s been moved and seconded that we rise, general election would be in 1952. report progress and beg leave to sit again. All in favor say TAVARES: It’s not my understanding that if we happen “aye.” All who are contrary minded say “no.” It’s carried. to come into the Union at an odd time that we won’t have an election, but that may be a special election. It shouldn’t Afternoon Session necessarily interfere with the general election to be held under this section. Therefore there would be a special CHAIRMAN: The Committee of the Whole is now come temporary provision in the ordinance section or some to order. There’ll be a - - if there’s no objection, there’ll other appropriate place taking care of that special election. be a five minute recess. Section 5 has been brought up for consideration. It was moved to be adopted by Delegate SBIMAMURA: Under the provisions of H. R. 49 it is Corbett and the motion was seconded by Delegate Apoliona. mandatory that the governor of the territory call an election within sixty days after receipt of notification from the Presi KING: If I recollect correctly there was an amendment dent of the United States certifying to the approval of this pending on that. Constitution. Therefore in this general section we should not try to restrict ourselves to the ordinary elections. As CHAIRMAN: There was one pending, but I believe at the a matter of fact the Committee on Ordinances has already time of’ the closing it wasn’t put up. May I suggest that the prepared and drafted and filed the committee proposal on proponent of that amendment offer it again. I think it was such an election ordinance. Delegate Been. I understand he was having it typed this afternoon. CHAIRMAN: I believe it would be in order if someone moves to adopt one of these amendments. PORTE US: I will go and see if I can find out whether that’s being typed and where Delegate Been is. KING: I agree with both the previous speakers that upon the adoption of the Constitution a special election would be CORBETT: I believe that I recall Delegate Been’s amend held to inaugurate the state government. Therefore the ment to be the deletion of the words “and every second year second suggestion offered by Delegate Been referring to thereafter.” I think his intention was to put a period after election after “even-numbered years following the adoption the words “even-numbered years” as he felt that the next of this Constitution and every second year thereafter” would phrase was simply repetitious. not be applicable. I’d like to suggest to Delegate Been, who CHAIRMAN: Could we check with the Chief Clerk on made the original suggestion,, that he move for the adoption that matter? of the amendment that would have Section 5 read: “General elections shall be held on the Tuesday next after the first NIELSEN: As I recall he also inserted the word “next” Monday in November in all even-numbered years” and here after the word “Tuesday” in the first line, and after the after the same language as the original proposal. word “November” in the second line, “in all even-numbered years,” it would read. BEEN: I move at this time that the first sentence of Section 5 of Committee Proposal No. 8 be amended to read BEEN: I am having two forms of amendment printed for as follows: “General elections shall be held on the Tuesday the members of the committee. Now one form will read, next after the first Mànday in November in all even-numbered “General elections shall be held on the Tuesday next after years.” the first Monday in November in all even-numbered years.” That’s one form. The other form might be in this manner: CBAIRMAN: Delegate Kellerman seconds the motion. “A general election shall be held on the Tuesday next after You would then delete the other two or three sentences? the first Monday in November in the first even-numbered BEEN: No, no, this is only the amendment of the first year following the adoption of this Constitution and every sentence that would delete the words “of every second year second year thereafter.” Take your choice. thereafter.” NIELSEN: Mr. Chairman, a question. I’d like to know KOMETANI: Mr. Chairman, we accept the amendment. if after the Constitution is adopted, it might not come in odd-numbered years. CBAIRMAN: The amendment ‘s been accepted by the - - CHAIRMAN: Will you answer Delegate Nielsen’s question? BEEN: No, there’ll have to be a vote on it because k’s an original amendment. BEEN: If we - - say the Constitution is adopted in 1950, then the general election would be in 1951 or if the general DELEGATE: I second the motion. election - - or rather the Constitution is adopted in 1951 CHAIRMAN: It’s been moved that the first sentence in after the close of the regular session of the territorial leg this Section 5 be amended as read by Delegate Been. Are islature, then the first election will be the 1953 general you ready for the question? All in favor say “aye.” All election. Of course there’ll be a provision for special ses who are contrary minded say “no.” It’s carried. sion if there’s a necessity for acting before - — acting on the changes in laws, statutes and so forth before the regular BEEN: Reference to the second sentence in the same session. A special session of the legislature might be called section which reads, “Primary elections shall be held not by the Governor. less than six weeks prior to the general election.” That should be left to the legislature, and should not be included KOMETANL The reason for even-numbered years is, in a constitutional provision - - as a constitutional provision. as I previously stated, is to have our election coincide with JUNE 13, 1950 • Afternoon Session 63 Efforts have been made in the past to have the legislature to Section 280 of the Revised Laws of Hawaii, 1945, as set a period of six weeks prior to the general election, and amended. You will note that the last sentence refers to they may yet succeed in having that done, but if you write it contested elections. The last sentence reads, “Contested in there as a permanent provision, the time may come when elections shall be decided by the Supreme Court of the you don’t need a six weeks’ interim between your primary State of Hawaii according to law.” Now there is a possibility election and general election. I therefore move to delete that candidates seeking county offices may have contested that section - - I mean sentence. elections. It will be very unfair to ask the candidates seek BRYAN: I second that motion. ing county offices to bring their witnesses all the way from Kauai and Hawaii to Honolulu in order that the matter may CHAIRMAN: Just the second sentence that was moved be adjudicated before the Supreme Court, which no doubt for deletion and seconded. will be here in Honolulu. I believe the legislators in the AKAU: I’d like to speak in opposition to that statement past have taken this fact into account. It was for that reason made by the honorable delegate from the fourth. I think if and in my opinion a very good reason that the matter was anybody has been near City Hall in the time between the left with the legislature. It is for this reason I have moved primary and the general and has seen those clerks work the deletion of the last sentence from Section 5. practically day and night, he would realize that the time is CROSSLEY: I’d like to second the motion to delete. absolutely necessary from the point of view of efficiency and practicability to get everybody registered. There are new CHAIRMAN: Delegate Crossley seconds Delegate Okino’s registrants, there are people who wish to change their motion to delete the last sentence, that is “Contested elec registration, and there are people who have come and have tions shall be decided by the Supreme Court of the State of set up residences here and have had their residence cards Hawaii according to law.” okayed. I think in fairness to the people who have asked us; AKAU: Point of information. Mr. Oren Long for example came to visit us at one of our meetings and other people from the county office, the county CHAIRMAN: Delegate Akau, what is your point? clerks from all of the counties, and discussed this very im AKAU: Perhaps it may sound naive but is it possible for portant time element with us; I think we should take the the Supreme Court to go to Kauai? Isn’t the Supreme Court word of the people who actually have to do the work. They’re where the judge is, whether it’s under a tree or what have the ones who ought to know. Of course, from the point of you? I’d just like to have somebody from our “Supreme view of a person who’s running for office it is a little hard, Court” here answer. physiologically, psychologically and anatomically, all that sort of thing. But for those people, if we are going to be HEEN: I believe though that the delegate from Hio has considerate for those people who actually do the work, I a point. It may be that the last sentence Should read, “Con think we should leave this clause as it is, namely six weeks. tested election shall be determined in a manner prescribed by law.” HEEN: I think if the last speaker were to address her remarks to the legislature it would appeal to the legislature, KAWAHARA: May I ask the delegate from the first dis and probably the legislature would probably set a six weeks trict a question? My question is in reference to the statute period. But there may come a time when you don’t need six that he referred to in regards to the contested elections. I weeks, when you simplify the process of registration you wonder if that statute states that in the case of contested may not require six weeks. election such a contested election shall be decided by the Supreme Court. Who decides in the final analysis as to the CHAIRMAN: If there’s no further debate - - validity of the election? Does the legislature decide or does KOMETANL Because of our geographic makeup it would - - the Supreme Court decide? By his reference that there is when we become a state, it will necessitate a little more a law written, that doesn’t answer the question, still doesn’t time for the representative or the office seekers to travel answer whether the Supreme Court decides or the legislature throughout the different islands. And for that reason we decides. have felt that six weeks or more should be inserted in the CHAIRMAN: Delegate Anthony, would you - - he has a Constitution to protect our office holders. question which you would like to answer? Delegate Anthony. CHAIRMAN: It’s been moved and seconded that the ANTHONY: For a great many years, in the days of the second sentence of Section 5 which reads, “Primary elec monarchies, in the days of the Republic, and even down to tion shall be held not less than six weeks prior to the general today, the matter of contested elections have been left to the election,” be deleted, that that section be deleted. All those Supreme Court, and it is by virtue of rule of the Supreme in favor say “aye.” All who are contrary minded say “no.” Court. Rule 17 of the present Rules of the Court provides The Chair is in doubt as to how that went. I believe we could for election cases. “Petitions by any candidate directly vote by the show of hands. All in favor of deletion raise their interested or by thirty voters of any election district, setting right hand. All who are contrary minded raise their right forth cause why the decision of any board of inspectors of hands, please. Just one hand. There are 29 ayes, 17 noes elections shall be reversed, corrected, or changed, shall be and there are some who didn’t vote. The second sentence is verified or supported by the affidavit of some person or deleted. persons having personal knowledge of the facts claimed to HEEN: I now move that Section 5 be adopted as amended. be grounds for reversing, correcting, or changing the deci sion.” Now there’s nothing to prevent the Supreme Court OKJ.NO: Before there is a second, I should like to make from sitting over in Hio if there should be a contested elec a further amendment of Section 5. I move that the last tion in Hio. sentence of Section 5 be deleted. There is nothing in our I imagine the purpose of this Rule of Court and this tra Organic Act with reference to the subject matter of a con dition of depositing that power in the Supreme Court is to tested election. Said subject matter in the past has been get away from any political suspicion of tampering with the regulated by its statute, by legislation. I refer specifically election ballot boxes and what not, and so you go to the most SUFFRAGE AND ELECTIONS 64 trusted agency in the whole government, namely the Supreme CHAIRMAN: Delegate Woolaway seconded the motion by Court, and let them pass on the contested election. And also Delegate Tavares to amend. k’s a very speedy matter. OKINO: To simplify procedure, Fm willing to adopt that C. RICE: Isn’t if a fact that when the election inspectors suggestion made by the delegate from the fifth district, Nils get through, all the ballots are put in the bag and mailed to Tavares. the Secretary of Hawaii, they’re all here. None of them are ANTHONY: Mr. Chalrman, if shouldn’t be “by the courts”; kept on the other islands. It’s easier to have your contest if should be “by a court of competent jurisdiction” if you’re right here where all the ballots are. We’ve had several going to put that in there. You’re not going to have more contests; one the island of Nithau, they wanted to recount than one court pass on the same contested election. the ballots but they’re always correct. They’ve counted them twice but they’ve always been found correct, counted TAVARES: I’ll accept the amendment. “It shall be de by the Supreme Court here. Of course, in those days they termined by a court of competent jurisdiction in such manner all voted Republicans, I guess. as shall be provided by law.” I’ll accept the amendment. SHIMAMURA: I shall also read Section 280 of the Revised CHAIRMAN: Will Delegate Woolaway accept that as the Laws of 1945 referred to by the delegate of Hawaii. That second? Will Delegate Tavares tell us what the amendment refers to appeals to the judicial circuit court from the de is now as if is? cisions of the respective board of inspectors and does not TAVARES: The amendment is to amend the last sentence pertain to election contests as such which the delegate from to read as follows: “Contested elections shall be determined the fourth district correctly pointed out have been always by a court of competent jurisdiction in such manner as shall wkhin the jurisdiction of t1~ Supreme Court. be provided by law.” HEEN: All the more reason why this section should be either deleted or amended. Leave it to the legislature to HEEN: Is that your motion now, Delegate Tavares, if I prescribe the manner in which contests may be determined. may ask? TAVARES: I think there is some point to that suggestion OKINO: For the benefit of the delegate from the fourth for this reason. I think k’s already been touched on. rd like district — - to make it a little clearer. I think that if if is entirely left CHAIRMAN: Just a moment. Delegate Heen, will you to the legislature it would be theoretically possible for the yield to Delegate Okino? Delegate Okino, you have the floor. legislature to provide that contested elections should be handled by the legislature kself, in which case it might go OKINO: I am answering the question interposed by the along party lines instead of on the basis of the facts as delegate from the fourth district. I am willing to adopt the shown before an impartial body. I don’t necessarily think suggestions again suggested by the delegate from the fourth they should be tried in every case before the Supreme Court district, Mr. Nils Tavares. but if seems to me something should be said about trial with in the courts rather than before some other type of tribunal. HEEN: I second that motion. OKINO: I have no objection to accepting the suggestion CHAIRMAN: Delegate Heen seconds that motion. There’s made by the delegate from the fifth district, Judge Heen, no more deliberation and no more - - that the last sentence be amended to read as follows: “Con MIZUHA: What is the amendment we’re voting on now? tested elections shall be determined in such manner as may be provided by law.” CHAIRMAN: Will you inform the delegate from Kauai? HEEN: Is that your motion or is that my motion, if I may TAVARES: The amendment is to amend the last sentence ask? of Section 5 to read as follows: “Contested elections shall be OKINO: I have adopted your suggestion into my motion. be determined by a court of competent jurisdiction in such manner as shall be provided by law.” HEEN: I second your motion. MIZUHA: There is a question, I rise to a point of infor CHAIRMAN: Delegate Heen has seconded the motion to mation. What would you mean by “contested election”? amend the last sentence. CORBETT: Would if not be possible to put both the special CHAIRMAN: Could you answer that, Delegate Tavares? elections and the contested elections in one sentence if both TAVARES: I take if that a contested election will be an of the subjects are going to be covered by legislative act? election in which there is a reasonable basis for claiming It doesn’t seem necessary to have two sentences. Fm sure that the count was wrong or that some other thing was not the attorneys can word this better than I, but this would be done properly and that if done properly the result would have my suggestion; “The legislature shall enact laws to provide been affected. And I think it would be up to the statutes to for special elections and contested elections.” set forth those circumstances. TAVARES: I’m a liftle bif concerned about leaving this MIZUHA: I believe now that question - - I believe that entirely to the legislature to provide by law for contested question is now decided by the boards of registration of elections. It seems to me that the one impartial tribunal voters in each county. you’ll have will be the courts. And I would like to move to further amend that by adding alter the word “determined” TAVARES: That is not correct. Before an election, if insert the words “by the courts.” I think that would be a voter’s right to vote is challenged, the board - - the in sufficient, “by the courts,” so that if would read, “shall be spectors of election must decide if on the spot. However, determined by the courts, in such manner as shall be pro a candidate who is affected by the votes which are affected vided by law.” by those rulings can appeal the election if it can be shown that if might make a difference in the result. And if he does, WOOLAWAY: I second that manner. JUNE 20, 1950 • Afternoon Session 65 then there is a recount under the supervision of the Supreme order before - - if the second will hold off on this. Delegate Court, at the present time. Bryan concedes. NIELSEN: Much as I hate to say it, I don’t see any reason KING: I move that Committee of the Whole adopt Pro to put this in the Constitution at all. It’s simply a matter for posal No. 8 as amended, and after they’ve done that then the legislature. They’ll set down the rules regarding any the committee rise, report progress and ask permission to contested elections. I don’t see why we have to put anything file a written report later. in the Constitution. SMITH: I second that motion. CHAIRMAN; If there is no more deliberation, we can put the question to amend the last sentence. Are you ready for CHAIRMAN: It’s been moved and seconded that the Corn the question? All in favor say “aye.” All who are contrary mitte Proposal No. 8 be adopted as amended and that the minded say “no.” I believe it’s carried. committee rise and report progress and ask for permission to file a written report. All in favor say “aye.” All who LAI: I move that we adopt Section 5 as amended. are contrary minded say “no.” It’s carried. APOLIONA: I second that motion. CHAIRMAN: It’s been moved and seconded that Section 5 JUNE 20, 1950 • Afternoon Session be adopted as amended. All in favor say “aye.” All who are contrary minded say “no.” It’s carried. Section 5 is CHAIRMAN: Will the Committee. of the Whole meeting adopted as amended. come to order. The [Committee of the Whole] report HEEN: I now move that this committee rise, report pro [No. 7] was made out and a great deal of help was given to gress, and ask leave to sit again to consider a written report. the chairman by members of the “Supreme Court” and other attorneys and other members of the Convention for which J. TRASK: Before there be a second on that motion, I the committee chairman feels very thankful. notice that.we have an amendment on our desk in regard to the limitation of political expenses. The amendment will KOMETANI: I move for the adoption of the Committee include a new section, Section 6, to read as follows—I be of the Whdle Report No. 7. lieve the delegates have the amendment on their desks — APOLIONA: I second that motion. “The legislature shall provide for the limitation of expenses which may be incurred by persons seeking elective offices.” DELEGATES: Question. I am just wondering, Mr. Chairman, whether~ this will be a CHAIRMAN: Is there any debate? All in favor of adopt constitutional matter or whether this will be a legislative ing Committee of the Whole Report No. 7 to be presented to matter. I wish one of the delegates here would answer that the Convention say “aye.” All who are contrary minded question. say “no.” Everything is aye, so I guess it is passed. KOMETANI: I feel that is entirely legislative matter. C. RICE: I move that when the committee rises, it re CHAIRMAN: Since no one seconded it - - ports recommending the passage of Committee Report No. 7. BRYAN: I second Delegate Heen’s motion to rise, report CRO5SLEY: I second that motion. progress - - CHAIRMAN: It has been moved and seconded that we KING: Does that motion include the adoption of the pro rise and report to the Convention the recommendation that posal as a whole? this report be accepted. All in favor say “aye.” All who are contrary minded say “no.” It is carried. The meeting CHAIRMAN: I don’t think so. I think that would be in is over. Debates in Committee of the Whole on LEGISLATIVE POWERS AND FUNCTIONS (Article III) Chairman: J. GARNER ANTHONY JUNE 28, 1950 • Morning Session urgency measures deemed necessary in the public interest, bills calling elections and proposed constitutional amend ments. In addition, special sessions are provided for. CHAIRMAN: The meeting will come to order. “The provision for annual sessions is a recognition of HEEN: In order that the delegates may be better informed the need today for more frequent, if not continuous, sessions as to the consideration of the various sections in the article of the legislature, particularly in view of the difficulties of on legislative powers and functions, I will read the prelimi projecting estimates of revenues and expenses for two years nary discussion in the report of the committee. and more in advance, as is the case at present. The provi “Your Committee on Legislative Powers and Functions sion for a budget session in those years in which a general submits herewith a committee proposal for a complete arti session is not held, makes it possible to limit appropriations cle on legislative powers and functions. The proposal em for the expenses of the government to a single fiscal year. bodies what your committee believes necessary or desirable “A similar thought underlies your committee’s action in in establishing the legislative department of the state govern providing for the establishment of a legislative council. ment. Before arriving at its proposal your committee studied While such a provision might be considered legislative and the several proposals referred to it, as well as those provi the inclusion of such provision objected to on that ground, sions of the Hawaiian Organic Act, the Model State Consti your committee believes that the work of the legislature tution and the constitutions of several of the states pertaining must be implemented by a continuous study by some agency to the legislature. Your committee has decided to retain the under the control of the legislature in the interim between framework provided in the Organic Act without substantial sessions and that it is a matter of such importance that It change, except in a few particulars. should not be left entirely to legislation. “Your committee believes that the legislature should re “Another important change is in the provision for reap main bicameral, but recognizing the desirability of wider portionment. The provision of the Organic Act for reap representation of the population which has greatly increased portionment has been, as is notorious, totally ineffective. since the adoption of the Organic Act, has provided for an Your committee proposes that reapportionment be practi increase in the membership of both houses of the legislature. cally automatic every ten years.” However, while it was unanimously agreed that there should It was my intent as chairman of the Committee on Legis be an increase in membership, your committee was unable lative Powers and Functions to take up all the sections of to agree as to the extent of the increase. A majority of the articles at this time instead of - - and leaving Sections your committee approved a Senate of 25 members and a 2, 3 and 4 to be considered last. Two, three and four of the House of Representatives of 51 members, while a minority article deals with the setup of the Senate, the initial ap insisted that the House should not be larger than 41 mem portionment of the House of Representatives and the auto bers, nor the Senate larger than 21 members. matic reapportionment of the House of Representatives “In fixing the composition of the two houses your commit every ten years. I understand, however, that some of the tee was faced with the problem of reapportionment, which, delegates would like to take up Sections 2, 3 and 4 first, with the increase and shift of population since 1900, has be dealing with the Senate, the House, the apportionment, and come complicated as well as acute. Your committee has the reapportionment of the House of Representatives. I agreed that the House of Representatives must be apportioned would like to hear from some of the delegates on that. on the basis of the number of registered voters among the SAKAKIIIARA: I so move. several major island divisions (the present counties) but that the present ratio of representation among the four ex MIZUHA: I second the motion. isting senatorial districts should be maintalned in the Senate. CHAIRMAN: What is your motion, Delegate Sakakthara? In districting your committee made but one change as to senatorialdistricts, that being the splitting of the island of SAKAKIHARA: My motion is to take up Section 2 and Oahu into two districts roughly corresponding to the present Section 3 and 4. representative districts, but completely revised the repre CHAIRMAN: You’ve all heard the motion. All in favor. sentative districts, which are increased from six to eighteen. MAU: Doctor Larsen is asking what the motion is. The “A major departure proposed by your committee from motion is to consider all the other sections of the proposal the provisions of the Organic Act is the provision for annual, other than that - - those that relate to reapportionment. as distinguished from biennial, sessions of the legislature. Your committee proposes that of the annual regular sessions, CHAIRMAN: No, Mr. Mau, the motion was to take up - - only those held in the odd numbered years, which shall be I should think you’d take up Section 1 first. The motion was known as ‘general sessions,’ shall be open to all kinds of to take up reapportionment first. Is there any further dis legislation, and that those held in the even numbered years, cussion? All in favor signify by saying “aye.” Contrary. to be known as ‘ budget sessions,’ shall be confined to Carried. Proceed. general appropriations bill and bills to authorize proposed MIZUHA: In this discussion on apportionment I would capital improvement expenditures, revenue bills necessary therefor, bills to provide for the expenses of such session, like to ask a general question before any motion is put to 66 JUNE 28, 1950 • Morning Session 67 the chairman of the committee, whether the dejegates here members, who shall be elected by the qualified voters of will discuss the question of apportionment only with refer the respective senatorial districts. The districts, and ence to particular districts by delegates from those districts the number of senators to be elected from each, shall or are we going to participate in a general discussion of all be as follows: districts. First senatorial district: the island of Hawaii, seven; CHAIRMAN: That’s up to the body. The speaker can proceed any way he desires. Second senatorial district: the islands of Maui, Mob kai, Lanai and Kahoolawe, five; HEEN: Perhaps it might be well to take up Sections 3 Third senatorial district: that portion of the island of and 4 first, dealing with the House of Representatives. Sec Oahu, lying east and south of Nuuanu street and Pali Road tion 2 provides for the initial apportionment of the House of and the upper ridge of the Koolau range from the Nuuanu Representatives which will continue until the automatic Pali to Makapuu Point, five; reapportionment of the House in 1959, about ten years hence. Fourth senatorial district: that portion of the island PORTETJS: I think there’s a disposition on the part of of Oahu, lying west and north of the third senatorial dis some of the members who wish to deal with the composure trict, five; and of the Senate and establish how many senators there’s going Fifth senatorial district: the islands of Kauai and to be. I think if we can go to the sections in order now, Niihau, three. Section 2, then Section 3, then Section 4, we’ll make progress. PORTEUS: Would it facilitate matters to have a motion CHAIRMAN: May I ask the chairman of the committee that we adopt - - we tentatively approve the first sentence a question? Is there any reason why we shouldn’t act on so as to determine the number. Section 1 first? CHAIRMAN: The Chair will entertain such a motion. HEEN: Well the problem as to reapportionment in my SAKAKIRARA: I so move. mind is more serious than that one connected - - SMITH: I’ll second it. CROSSLEY: Point of order. We just voted to take up Section 2. CHAIRMAN: ft has been moved and seconded that we tentatively adopt the first sentence of Section 2. Any dis CHAIRMAN: rm just asking for some information. cussion? MIZUHA: ft’s my understanding that Section 2 deals with H. RICE: I’d like to offer an amendment, where it reads senatorial districts, and I think we should proceed with “25 members” to read “15 members.” senatorial districts first before we - - MIZUHA: I second the motion. CHAIRMAN: Chalr so rules. We’re dealing with Section 2. CHAIRMAN: Just a minute, who seconded that? SMITH: I move that we tentatively adopt Section 2. HOLROYDE: Point of order. CROSSLEY: I’d like to second that motion. CHAIRMAN: What is your point of order? CHAIRMAN: ft’s been moved and seconded that we tenta HOLROYDE: The first sentence does not include the tively adopt Section 2. Any discussion? number. The first sentence which was the motion, “The NIELSEN: I have an amendment. I have an amendment Senate, the senatorial districts, number of members.” to Section 2. Would that be the first sentence? CHAIRMAN: Has it been printed? CHAIRMAN: No, that’s not the substance of the provision. That’s just descriptive. NIELSEN: Yes, it has been printed and distributed. The amendment is to make the first senatorial district, East HOLROYr)E: We want to clarify that. Hawaii with five senators; the second senatorial district, CHAIRMAN: What we are voting on is the first sentence: West Hawaii with two senators. “The Senate shall be composed of 25 members who shall be PORTEUS: Might I interrupt—one moment to ask whether elected by the qualified voters of the respective senatorial or not it might not be desirable to deal with the first sen districts.” To which there has been an amendment that the tence of the section first in order that we may determine number “25” be changed to “15.” ft has been moved and how many will be in the Senate. After we’ve made the deter seconded by Delegate Rice. Any discussion? All those in mination of how many will be in the Senate, then I think the favor of the amendment - - the vote is on the amendment. division in districts will be a little easier. HAYES: I would like to know the reason why the senator CHAIRMAN: That seems desirable to the Chalr if it is from Maui feels that the number should be 15. agreeable to the movant. H. RICE: From our county it would be ridiculous to have NIELSEN: That’s agreeable but the question is, I think five senators and six representatives. The senators would this ties in with the House too. So if it’s going to be a 25-51 be worth a dime a dozen in that proportion. I think that for combination, I’d be in agreement, but if it’s going to be 21-41 the economy of the territory and the good of the territory, or some other combination, why then we’ve got a headache we should cut down on this representation, and they’re not on our hands. I thiak the number in both the Senate and the going to increase anything except proportional representation House is the critical thing to decide right now. and I think it is all right to leave it where it is. HEEN: Perhaps it might be well to read Section 2 through- SMITH: I’d like to speak against the amendment. The out: main issue here, as the committee has decided, that for 50 years the reapportionment under the Organic Act is now SECTION 2. Senate; senatorial districts; number of proven defective due to population. And even though we members. The Senate shall be composed of twenty-five feel that there might be too many from Maui, we have to LEGISLATIVE POWERS AND FUNCTIONS 68 consider that in order to have something to follow in the ports out of committee, the matter often times is taken up future, that to give Oahu a true reapportionment, that maybe by the Committee of the Whole and that has been the practice Maui would have too many. But we’ll be having something of this Convention. You will note that if the Senate is the to follow, and therefore I believe that Maui will have to size of 15, many of the matters are taken up as the Commit have a little more than she really needs. tee of the Whole. There will be more opportunities to take up matters in the Committee of the Whole where every mem CHAIRMAN If there is no further discussion, the Chair ber of the Senate will be able to give full consideration to will put the question. any proposal that may be made before the legislature. I TAVARES: It seems to me that if we are going to vote merely call that in answer to the remarks from the delegate for a larger Senate, that may be all right provided we put from the island of Hawaii. some curbs upon the type of wasteful expenditures for KAWAKAML I believe in quality rather than in quantity patronage that legislatures are apt to engage in, and later and so far we have had three senatorial representatives and on I hope that if the 25~member Senate is voted on that the I hate to have that three diluted by water. Therefore, I be members here will seriously consider some reasonable lieve in 15. curbs on the unlimited patronage that has made our sessions so expensive. WOOLAWAY: While we’re speaking on the subject, Fil A. TRASK: I am in favor of the amendment by the senator speak for the measure. First of all, I’d like to point out from Maui. I feel that it isn’t so much the question of econo that in the year 1900 when the Organic Act came into effect, my, it isn’t so much a question of dime a dozen, it’s a ques the population of this territory was 154,000 people. At that tion of the House being the undergraduate, the more repre time, as we do now, we had 15 senators or a total of one sentative portion of the legislature, and the Senate being senator to every 10,000 of the population. With a 25 Senate, made up of men more mature, more learned, more experienced we would have one senator for every 20,000 or twice that amount. As far as caliber is concerned, it was mentioned who can give a deliberative eye, ear and heart and mind to the various problems the territory faces. U’s a question of to me that Maui would be at a disadvantage to the island of deliberation and it’s not a question so much of representation Oahu if we had five senators and not three because we just didn’t have the caliber of men on the county of Maui as you and I am altogether in favor of having the Senate as we all have on Oahii. Well, I can hardly swallow that, let alone like to think from the historical sense, that it is the group speaking for the senators now that represent us in the. terri of people composed of mature, deliberative people wise to torial legislature. Secondly, I think a 15 Senate, its voting the ways and experiences of the community life. power would be a little bit too overwhelming against a House CHAIRMAN: Any further discussion on the question? of 43 members, say three votes to every one in the House NIELSEN: I’d like to speak against the amendment be of Representatives; and let me tell you they can really wield their power with that vote. And fourthly, on the cost, it isn’t cause I feel that we need a larger number in the Senate so the cost of paying for the services of your senators and re we can have more committees. Because of the complicated presentatives that’s running this Territory into unnecessary days that we’re living in, with only 15 in there, the over- debt, but it’s the cost of unnecessary administrative costs, stacking on committees means that the various committees messengers, stenos, clerks and the like that are given jobs cannot meet half often enough. I might call your attention for political reasons alone, as was brought up by Delegate to the fact that the reorgani.zational act of Congress, they Tavares. I think this Territory can stand an increase in the reduced the standing committees in the House —which would House of Representatives and in the Senate. Furthermore, be the same as the Senate with us—from 48 to 19, that was after they reduced the number of committee assignments, in sticking to reapportionment that we’re all for, I’m not going to vote for any decrease in representation from Maui and what happened. The very first Congress that met county or anybody else in this Territory. I’m for the increase after that had to put under these 19 committe~s, three special committees and 119 subcommittees. So I think that in order - - of 25. so that each committee will have men familiar with the work ASHFORD: in the Federal Congress there is no reap that that committee will be given to do, that we should have a portionment of the Senate except as may occur from the en Senate large enough to take care of it. trance of new states. Just conceive of the immense increase, LARSEN: U seems to me that one thing we have to con for example, in the population of California. between 1900 and 1950, yet they still have two senators. The reapportionment sider is expense also. We have a chance to try this state occurs in response to population in the House, and it seems for ten years with the same number we’ve had, a well res pected body of few men who are deliberating with a minimum to me it is very proper that that is what should occur here. The 15 members of the Senate have functioned extremely çxpense. If this doesn’t work out, in ten years we can have well and I am for it. 25. But, let’s not start our state off with a top legislative expense. CHAIRMAN: Are you ready for the question? The Chair will put the question that’s on the amendment of Delegate CHAIRMAN Any further discussion? Rice, that the number “25” be changed to “15” in the first LEE: I believe that someone should answer the statement sentence of Section 2 of Committee Proposal No. 29. All made by the delegate from Hawaii concerning the matter of those in favor. Contrary. The nbes have it. committees. I believe that when a body is increased in size DELEGATES: Roll call. you will find that there will be more committees and when more committees are established, as we found here right CHAIRMAN: Is there a request for a roll call? Roll call in this Convention, members of that particular body have to is in order, apparently. The Clerk will call the roll. This belong to many more committees, and as a result it in- is on the amendment. creases the work of the particular members of that particu Ayes, 16. Noes, 46 (Akau, Apoliona, Bryan, Castro, lar body. U may be all right for one chamber of the legis Crockett, Crossley, Doi, Dowson, Fong, Fukushima, lature to be in that category, but you will find as in this Gililand, Hayes, Holroyde, Ihara, Kam, Kanemaru, Kauhane, experience we have here that whatever the committee re JUNE 28, 1950 • Morning Session 69 Kawahara, Kellerman, Kido, King, Kometani, Lai, Luiz, CHAIRMAN: No further discussion? Lyman, Mau, Nielsen, Noda, Ohrt, Okino, Phillips, Porteus, Richards, Roberts, Sakai, Sakakihara, Shimamura, Silva, MIZUHA: I would like to speak in favor of the amendment. Smith, St. Sure, Tavares, J. Trask, White, Woolaway, Yama The federal government has recognized the principle of equal moto, Yamauchi). Absent, 1 (Wist). representation in the Senate and that has continued over the period of the history of our government and has never been CHAIRMAN: The motion is lost. changed. Hawaii, since its inception as a territory of the WIRTZ: I now have the amendment to the first sentence. United States under the Organic Act established a 15 man I had previously had and prepared and printed an amendment Senat.e but did not follow the federal principle but did close to the entire section but I understood the ruling of the Chair ly resemble it and gave representation to the outside counties was that we’re going to take this up sentence by sentence, so in a sort of proportion which gave them some voice in the I’d like to read the amendment to the first sentence. I move Senate. In a republicanform of government where the two that the first sentence be deleted and in lieu thereof the branches of the legislature has been established, it has al following sentence inserted: ways been felt that the Senate should be a small body of men who would represent entire districts, or entire states The Senate shall be composed of 20 members who on a statewide basis to the Congress of the United States; shall be elected by the qualified voters of the respective with reference to the various state legislatures to represent senatorial districts and the lieutenant governor of the the various counties or districts to the state legislature. state who shall be the presiding officer and who shall have Increasing the Senate to the proportion, as originally a vote only in case of a tie. proposed by the legislative committee, of 25 members will A. TRASK: I second the motion. give Hawaii a 25 man Senate and follow the pattern of other state legislatures and the federal government. We have WIRTZ: I’d like to speak briefly in support of my amend seen throughout the years that the representative body of ment. I think it’s clear that in the legislative committee the state assembly always had about three or four times deliberations that so long as we moved up in terms of five the number of senators. If we establish a 25 man Senate, in the Senate-for each five giving each of the outside islands - then our state legislature - - House of Representatives outside counties, one and Oahu two—that the same proportion should, if we follow that pattern of proportion, have at least was maintained. The difficulty with a 20 Senate was the a minimum of 75 representatives. The history of our legis possibility of a tie. That is why the committee went to a lature here in the Territory of Hawaii has shown that they 25 Senate to avoid the possibility of a tie. I offered this have spent money in the legislative sessions, sums of money suggestion in the committee in the interest of economy to far out of proportion to the population and to the income of keep the number of the Senate down, and I feel that by having the territory as compared to other state legislatures. If we the lieutenant governor of the state act as the presiding had a 25 man Senate, every senator will have his brother officer we are following a well established precedent of the and sister working for the Senate. Every senator will have United States Senate and likewise of 35 states in the Union. his brother and sister and uncle and nephew working for the Now I think that this amendment will satisfy all persons holdover committee of the Senate. who are critical of the present setup of the Senate. It will Likewise we have seen the legislative article as set out - - increase the body to 20 members and by having a lieutenant put out by the legislative committee creating a legislative governor, who, I’d like to point out, is only to be the pre council, and our experience with holdover committees here siding officer and has no vote except in case of a tie, serves in the Territory of Hawaii has shown that our legislators both the criticism that our present Senate is too small and are human. Once they are elected to that great body, the should be expanded and likewise it answers the criticisms legislature of the State of - - the Territory of Hawaii, they of keeping expenses down. carry with them a certain aura of importance. Not only will they exert themselves in legislative sessions to give SAKAKIHARA: May I ask the Delegate from Maui a employment to their relatives and friends and seek to in- question? This amendment is to have Section 2, line 2 crease the legislative budget, but also they would be breath read “20” instead of “25,” is that it? ing down the necks of every department head of this territory CHAIRMAN: Delegate Sakakthara, will you please address morning, noon and night to give their relatives and friends the Chair. The amendment was that the number should be jobs, and if we have a 25 man Senate, every department fixed at 20, that the lieutenant governor should be the pre head once a day will have a call from a senator to tell him siding officer without vote except in case of a tie. Does that that he must give somebody a job. answer your question? And if we are to look at the facts closely, if we cannot have the 15 man Senate as it was voted down previously, SAKAKIHARA: May I ask, Mr. Chairman, the delegate then a 20 man Senate would give us just a slight increase and from Maui how he proposes to set up the Senate on the basis will avoid the tremendous expense that our legislative of 20 senators, from each senatorial district? sessions will have to face because of the increased salaries that have been proposed by the legislative article, fifteen WIRTZ: I’ll be glad to answer that question. As I stated, hundred dollars a session and then a thousand dollars for I have this entire proposal, the whole section which would the budget session. It must be remembered that they will show the breakdown, but I didn’t want to get into that for meet annually. Now, under this article certainly the costs fear of being out of order, but if the Chair will allow me to of the legislature would be double or triple, depending upon answer, and I’d partially answered it by pointing out that the number of people representing the various counties, when you go up in multiples of five the increase is one to and I am in favor of this amendment because it tends to bring each of the outer counties and two for Oahu. So that this economy to government and have the legislative body a de would, on a 20 member Senate: Hawaii five; Maui, Molokai, liberative body instead of a body seeking to seek jobs for Lanai and Kahoolawe four; Oahu eight; Kauai and Nithau their friends and relatives. three. SMITH: I am speaking opposing the amendment for this SAKAKIHARA: Thank you. reason; that I fully appreciate the work of the committee in LEGISLATIVE POWERS AND FUNCTIONS 70 their deliberations; that they felt that the Organic Act was The 1949 session is closely set out to be about $500,000 ineffective as far as reapportionment was concerned; that or near $600,000. Actually a 51, because if you adopt a 25 these arguments that will come up against their proposal, I member Senate you will amost be bound to vote for a 51 believe that they did come up in the committee and were House. Instead of 45 menibers of the legislature you will discussed, probably very thoroughly, more thoroughly than have 76 members of the legislature and your legislative bud we can possibly take time in one or just two days discussing get will be at least a million dollars for the regular session, it. Therefore, I really oppose this amendment. then plus the annual session which might be anywhere near $500,000 and $600,000. The cost is out of line, and it seems ROBERTS: I am generally in favor of a little larger to me when we become a state we will not have the aid of Senate, in part because it makes it more representative of the federal government in paying the salaries of your legis the community and doesn’t permit it to operate like a private lators. Your legislators are, under the present territorial club. I think we ought to get adequate representation from setup, are paid by the federal government. Now your tax the islands and I believe the previous method did provide payers, the people whom you represent, will have to dig out representation. I think that the increase in number whether of their pockets for this type of representation. it be five or ten has some bearing, not in terms of how much It seems to me that the proposal offered by Delegate it’s going to cost for the salary of the senator, but what it’s Wirtz comes near in answering to all of the criticisms going to mean in terms of the total budget. Those who have possibly of a smaller size Senate. If we are to have a 25 followed the budget of the Territory in terms of the expendi member Senate, it seems to me you will do away with the tures of funds not for the salary of the individual nor for principle that the Senate should be a deliberative body be his travel expense, but for additional expense in connection cause in my experience in serving in both the House and the with the operation of the legislature, makes it quite clear Senate, in my experience in the House, there is a tendency that the costs are extremely high. Let me just give you the of steam rolling because if debate were unlimited, as there figures for the year 1949. The total legislative costs ex is in the Senate, it would be very difficult to have legislation cluding members’ salaries and travel - - proceed in an expeditious manner, as we can well appreciate CHAIRMAN: Delegate Roberts, has that been printed and in this Convention. If debate were unlimited here and the placed on the desk? Is that the same document that has been matter of sixty days were to be invoked., we would never get printed and circulated? through. Therefore I believe that those who will support the amend ROBERTS: No, it is not. That figure shows a total legis ment will be supporting a lower sized House, and those who lative costs of $472,000 and that is exclusive of the salaries will be supporting a 25 member Senate will be supporting a of the members of the House and the Senate and the travel 51 member House. With the annual sessions plus the legis expenses. Now that $472,000 is 63 per cent of employee lative council which is being proposed by a majority of the cost to the total costs; in other words, the other cost amount committee, we would be imposing a great burden upon the to only approximately 37 per cent. Now when you increase people whom we represent. The cry has been that we are the size of your Senate and of your House, you are going to being taxed to death. Now certainly we are encouraging that have proportionate increases in cost, and it would seem to taxation without improving, it seems to me, the legislative me that we ought to try and keep the cost at some reasonable process. level; but at the same time consistent with getting as broad representation as possible, to permit the Senate to operate YAMAMOTO: Can I ask a question? Are we presupposing as a deliberative body properly representing the entire com that our legislature for the new State of Hawaii will meet munity. I think the amendment offered by the delegate from annually? Maui is a reasonable one; it provides for increase to 20 CHAIRMAN: Will the chairman of the Legislative Com and has the additional advantage of providing that the lieu mittee answer that question? tenant governor of the state is to be presiding officer of the Senate which provides some work for the lieutenant governor HEEN: That’s correct; it is proposed in the article on and also brings a person in to keep deliberative operation legislative powers and functions that there are to be annual and permits an operating Senate of 20 which is generally sessions, one to be known as the budget session and the other broader. I, therefore, would like to speak in support of the to be known as general session. amendment and I urge that it be adopted. A. TRASK: I’m voting for the amendment because I think CHAIRMAN: Delegate Lee, your microphone is not work the taxpayers ought to have a break. ing, I don’t believe. Still not working. MAU: I am wondering whether the reduction of the Senate LEE: I would like to speak in support of the amendment from 25 to 20 will increase the cost to a million dollars. I believe that that discussion should apply to the original mo proposed by the honorable delegate from Maui. If I may point tion made by the delegate from Maui who proposed a Senate out that the subcommittee of the Statehood Commission had recommended a House of 41 members of the lower house and of 15, so that it becomes a matter of degree. However, I don’t believe that any one sitting in this Convention is dis 21 members of the Senate. So that the point raised by Dele gate Smith concerning the deliberations by the committee of posed to disagree with what has been said insofar as the the Convention must also be weighed in line with the recom tax monies are concerned. But I am wondering whether or mendations made by the committee from the Statehood Com not in the past legislative sessions, if economy had been practiced, and I believe it could have been practiced, that the mission. Your chairman of the Legislative Committee has given amount of money expended for the general sessions of ‘43, considerable time both prior to the Convention as well as ‘45, ‘47, ‘49 could not have been cut down. I don’t see any during the Convention concerning the membership of both reason why even though you do have a Senate of 25 and a the House and the Senate and it is in line, it seems to me, House of 51 that it need cost us a million dollars to run the legislative sessions. I believe that if the people are con with the matter of costs. If as Delegate Roberts has pointed scious of the fact that the legislative sessions are costing out, the costs of the budget for the legislature in the ‘49 session, excluding salaries, is $472,000, we may safely so much money that public opinion will restrain their hand on the public purse. say . . . [Part of speech not on tape.] JUNE 28, 1950 • Morning Session 71 KELLERMAN: I’d like to speak in favor of the motion. MIZUHA: The question was raised, how can an increase I think we have one more factor to consider in addition to of five senators increase the cost of the legislative sessions the fact that even this increase is an increase in one-third a million dollars? It isn’t only the cost of the legislative of the body proposed. The increase in one-third doesn’t session that is concerned. Five more senators in the Senate mean just salaries and it doesn’t mean just clerks, it also of the State of Hawaii will have five more senators clamoring means room for the members to meet, a room adequate for for their pet projects in Hookena and Kapalama and every their sessions, adequate for the public and adequate for com place else and we’ll get a library in every village and ham mittees. I believe most of those who are in favor or contem let worth hundreds of thousands of dollars, and the final re plating favorably a 25 Senate are also the group favoring a sult will be an appropriation budget that we’ll never be able 51 House. to fund by our own income. I think, it may. seem a short view, but it seems to me we’re not writing a Constitution to which we are bound for KING: I had not intended to speak on this subject but I ever. If we feel that a 21 Senate or a 20 Senate with the don’t think that those who have been arguing about the expense lieutenant governor as the twenty-first member eventually should be allowed to get away with a lot of information which does not prove to be adequately representative, we can is inaccurate. The argument as to the pending amendment amend the Constitution. In the interim period, we are making is between 20 and 25 senators and the costs that have been an increase of 33_t/3 per cent, and we would be increasing put up defending the smaller number have to be taken into the body to a number that could be housed in our present consideration with the period in which those costs~ were in facilities. If we go to a 25 Senate, which is I feel sure volved. We know that the dollar has shrunk in buying power carries in its train a 51 House, we are going to find immedi tremendously in the last 30, 40 or 50 years. We know also ately upon our doorstep the necessity for a new capital build that the population of Hawaii has increased tremendously. ing. A new capitol building is an outstanding edifice of any We know also that the annual budget has increased tremen state government. It will mean millions of expenditure to dously. Delegate Sakakthara has prepared a statement which provide the necessary facilities to accommodate a Senate and was submitted to the Committee on Legislative Powers and an increased House on that proportion; millions which at Functions and was incorporated in the minutes of that com this time we can not afford to spend for such a purpose. And mittee’s deliberations, showing that the per capita cost of in view of the fact that we are not forever bound to the smaller the legislature is less today than it was 20 years ago and that Senate or smaller House if we do not consider that it works the ratio of the cost of the legislature to the annual appropri justifiably and adequately in representation, I feel that now ation is less today than it was 20 years ago. That information of all times, we should limit this to what is still a consider should be offered to the members of this delegation so they able increase, a 33_1/3 per cent increase in the Senate. will realize that this talk about the low cost in 1919 has no The one more point about the lieutenant governor. It was bearing whatsoever in the year 1950. I am opposed to the brought up in committee and discussed at some length, that amendment. if the lieutenant governor is given the duty of sitting in the Senate he will be taken away from his necessary duties as CHAIRMAN: Delegate Kage, did you want to speak? lieutenant governor. As of that time we had not adopted an KAGE: I am in favor of the amendment. I am not a poli administrative director, or administrative assistant or tician and I have never been one and I don’t know whether I’ll administrator, whatever the term, to the chief executive. It be one or not, so naturally my observation will be very, very seems to me that a lieutenant governor would have a very simple. By and large, the larger the number the lesser the valuable education and ample opportunity to work as the quality, by and large. Second, the larger the number the less governor’s representative in the Senate, to work with the the compensation, the less the compensation the bigger the legislature, to be the go-between between the executive and chances of graft. The larger the number the less the attract the legislative process as we have in the Senate of the United ing power. I am not worrying about the cost of the government. States. I think it would be highly valuable as part of our I think democracy is a very expensive form of government, cooperation of our two branches, executive and legislative but if we have a million dollars to spend why divide it among branches of government, to have the lieutenant governor 75 people when you can divide it among 50 people? There is serve as president of the Senate. For those reasons I am a question that I would like to ask of the chairman of the Legis in favor of the small Senate of 20 and of the lieutenant gover lative Committee. What is the minimum number of senators nor as the presiding officer. required to legislate for the State? SMITH: It just came to my attention that believing in dis tribution of powers—that there should be three branches of CHAIRMAN: Does the chairman care to answer that government. Here we would be having an instance where question? the executive branch will be an arbitrator in case of ties in HEEN: I don’t exactly know what the purport of the ques the legislature. I am rather dubious on that, very much so. tion is. You mean for the proposed State of Hawaii? CHAIRMAN: That is the same system that prevails in the KAGE: Yes. As I read your report it says here that 15 Federal Constitution. members was too small and that’s the only reason that you H. RICE: You have your memorandum of the cost of the give in your report that it should be increased to 25. legislature. Just for the record, in the Senate of 1919 I was HEEN: That’s the report of the majority of that committee. chairman of the Committee of Accounts. We had $25,000 The minority of the committee proposed first a 20 member and I returned $4,000 to the Territory. We operated on Senate —that was an amendment that was proposed by Delegate $21,000. But here I’m surprised that these men in that in Wirtz of Maui—but that failed to carry. Then there was a dustry wanting to build up, tied up your legislature; they’re proposal made to have the Senate consist of 21 members and always saying, “Why don’t you put your government on a that was voted down by a majority of the committee. Iiisiness basis?” and here they get away from it. You’re Personally speaking I think that the Senate can operate going wild in putting up your legislature to that amount; with either 20 members, the lieutenant governor serving as you don’t take on ten men when one man or two men will the 21st member without a vote except in the case of a tie, do; you keep them down. or with 21 members. LEGISLATIVE POWERS AND FUNCTIONS 72 of the government, namely, the legislature and the judicial. CHAIRMAN: Does that answer your question, Delegate In 1949 the population of the Territory of Hawaii was approxi Kage? mately 493,348. The legislature in that session made a total KAGE: The question that I’m trying to raise here is, what appropriation of $71,709,698. Legislative expenses appropri is wrong with the 15 members we have today? ated was $500,000. On a percentage basis, the percentage CHAIRMAN: What was that question? Please address of the total appropriation amounts to 0.7 per cent and per the Chair. capita $1.01. For the judicial, the legislature appropriated $1,857,652; percentage of total appropriation, 2.6 per cent KAGE: The question that I wanted to be answered was, to the legislative percentage of 0.7 per cent; per capita, “What is wrong with the 15 members we have today?” $3.76. Now I have given this comparison to show how much CHAIRMAN: That’s the question before the body for it costs to run your judiciary, one branch of the government, debate. Are you ready for the question? Is there any further to the legislative branch of the government. discussion? ASHFORD: May I ask the foregoing speaker a question? DOWSON: I have here some figures as to the economy practiced in the Senate in 1949. They had appropriated to CHAIRMAN: State your question, Delegate Ashford. run the Senate about $225,000. After the regular session ASBFORD: I would like to knowif a large part of that they returned $16,706.97. In the special session they had increase in cdst to the Territory was not due to the fact $75,000 to use and they returned $7,208.10. that the Territory took over the courts which had formally AKAU: I just want to say a word against the amendment. been supported by the county. We have heard the questions brought up about will there be CHAIRMAN: Will you answer that, Delegate Sakakihara? no room, it will cost a great deal of money and that we don’t have the kind of people or where will we get them, they’ll be SAK.AKIHARA: That is true. When the Territory took a dime a dozen. I’d just like to say, Hawaii has been in ex over the circuit courts, it became the obligation of the Terri istence voting for people at least since it has been a territory tory rather than the county. But that fact nevertheless re since 1900. The people of the community, the people of the mains, this is ~ne branch of the government, namely, the islands and the legislature have found ways and means of judiciary. doing things they wish to do. This is another challenge, CHAIRMAN: Is there any further discussion? If not - - another opportunity for them to rise to the occasion just as Delegate Rice. well as they have done over a period of years. We can stand 25 people in the Senate. I am sure we can do it because we C. RICE: I sent in a request to the director of the Bureau have all the capable people here who will find the ways and of Research, I wanted to find out these costs. We had 15 means. senators and 30 representatives in 1919 and we had the same number in 1949, but the costs went up tremendously. Presi ARASHIRO: The problem that I’m concerned about is not dent King said before the session, “If we didn’t have much the question of how many senators, it’s how many senators money, we couldn’t have any gravy trains.” That’s right. that we can afford to have in this state government of ours. But it seems that all legislative bodies have “gravy trains.” I am for a smaller number because I want to see that the We’re getting experts as we go along in government, and I senators and representatives of the legislature be paid a just wanted to show the cost to the people. Maybe they can sufficient amount of money. How many of you feel that $2,500 show that the cost is justified, but it’s there. You can’t have is enough to make a legislator be independent and not de so much money for kindergartens if you spend it on the legis pendent upon some other source of income? He should be lature. We’re going to try to live within our budget and if independent so he can act independently. But any time that we spend too much on the legislature, somebody else will we increase our legislature means that we cannot afford to have to suffer. Maybe you can run a 25 Senate as cheap as pay our legislators sufficient amount of money and thereby a 20; maybe you can, but one thing was pointed out, we had making that legislator dependent on other source of income, to move here because we have a 63 Convention. To have a whereby he will not be independent in his action and decision. 53 House, you’ll have to build a new building. We are invited That is the reason why I am for a lower number of legislators to go and see a million dollar building today. They’ll have though I am interested in having more representation from to have a two million dollar building for the next legislature all the districts and to preserve the democratic form of if we increase it too much. I’m just thinking a little, that government. But yet I am concerned about the cost because we are facing a little hard times now and we ought to cut I know that we cannot afford to pay a tremendous and exorbi down. tant amount of money, and I still want to say that the legis lator be paid sufficient amount of money so he won’t be de CHAIRMAN: The Chair will put the question. The ques pendent upon some other source of income. tion is on the motion of Delegate Wirtz. AKAU: Point of personal privilege. Mr. Chairman, DELEGATES: Roll call. point of personal privilege. CHAIRMAN: Roll call demanded? And that is, the Senate CHAIRMAN: State your point. should be 20 with the lieutenant governor as the presiding AKAU: I just want to say by the way, that Mr. Trask is officer with no vote except in case of a tie, an amendment now carrying out his promise regarding the ilima leis. He to the first sentence of Section 2 of Committee Proposal No. has now given each of the women delegates a beautiful lei 29. for which we thank him very cordially. NIELSEN: Point of information. That would mean that SAKAKIHARA: So much has been said here in connection the Senate would not elect their own speaker or the president with the increase of the legislative branch of government. of the Senate. If the present membership of 15 senators should be increased CHAIRMAN: That is correct. Do you want to answer to 25, I wish to call attention of the members of the Commit that, Delegate Wirtz? tee of the Whole [to] a fair comparison of the two branches JUNE 28, 1950 • Morning Session 73 WIRTZ: That’s been answered. I didn’t know whether divisors, greatest divisors and the method of equal pro you wished me to read the exact words of the amendment. portion,” and so forth. You stated it substantially. We are not considering this thing, but the amendment CHAIRMAN: Would the body like to have the exact that I had offered is based on a compromise, a compromise language read or do you have the substance already? The which I think will be acceptable to the Big Island, will be Clerk will please call the roll. acceptable to Oahu, and also to the rest of the islands which will have some tie with the apportionment of the House. LARSEN: Mr. Chairman, while we’re waiting for the vote, Now, under this setup, Oahu will have two senators increase could I call attention to how little the tremendous argumen and the Big Island will have an increase of two senators. tation has made any difference in the vote? I would like to Maui will have an increase of one and Kauai one. That will suggest, and all of us have listened in on this committee - - make Hawaii six, Maui four, Oahu eight and Kauai three. DELEGATE: Point of order, Mr. Chairman. I’m afraid And under this base I think it is acceptable to all the islands he is out of order. because Hawaii will probably not get too much increase in the House but will get two senators instead of one because CHAIRMAN: I think that is correct. There’s nothing be of the increase in population. Oahu will get two senators fore the house at the present time, Delegate Larsen. because of the tremendous increase in population, and I LARSEN: I asked for permission, didn’t I? think they should be satisfied with two because they are getting so much increase in the House of Representatives CHAIRMAN: You are recognized, Delegate Larsen. as has been proposed. So I feel that under this 21 base it LARSEN: May I continue? I’m merely asking for this will be acceptable if you are anticipating on the reapportion deliberative body to recognize this, and it will save an awful ment of the House as has been proposed by the committee. lot of time because we’ve all talked to members and we’ve all FUKUSHIMA: With all these numbers flying around, I’d sat in. like to ask the movant of the last amendment whether we Ayes, 20. Noes, 43 (Akau, Apoliona, Bryan, Castro, are in a Constitutional Convention or in a bingo game. Cockett, Crossley, Doi, Dowson, Fong, Fukushima, Gilliland, CHAIRMAN: I think the point is well taken. Will the Hayes, Holroyde, Ihara, Kam, Kauhane, Kawahara, Kido, delegates take their seats. Kometani, King, Lai, Luiz, Lyman, Mau, Nielsen, Noda, Ohrt, Okino, Porteus, Richards, Sakai, Sakakihara, Shima DELEGATE: Question. mura, Silva, Smith, St. Sure, Tavares, J. Trask, White, CHAIRMAN: All those in favor of the motion of Delegate Wist, Woolaway, Yamamoto, Yamauchi). Not voting, 0. Arashiro that the Senate be composed of 21 members signify by saying “aye.” Contrary. The motion is lost. CHAIRMAN: The amendment is lost. The question is now on the first sentence of Section 2 of SERIZAWA: I would like to submit an amendment to the Committee Proposal No. 29. first sentence to read that: The Senate shall be composed of 16 members with the lieutenant governor sitting in as the HEEN: As I understand it, whatever action is taken upon that particular sentence it will be tentative. president of the Senate without a vote except in the case of a tie and that the representation from each island shall be CHAIRMAN: That’s the understanding of the Chair. in equal numbers of four. HEEN: I would like to have that definitely understood CHAIRMAN: Is there a second to that motion? because during these proceedings Delegate Lee and myself will file a minority report for a 21 membership in the Senate, MIZUHA: I second the motion. but apportioned not along the line as stated by Delegate Ara CHAIRMAN: Any discussion? All in favor of the motion - - shiro, but apportioned five to Hawaii, four to Maui, nine to Have you heard the motion? All in favor signify by saying Oahu, and three to Kauai. “aye.” Contrary “no.” The motion is lost. NIELSEN: Point of information. Now we are voting on ARASHIRO: I wish to make an amendment making the the first paragraph I believe, not just the first sentence of Senate 21 members instead of 25. that first paragraph? MIZUHA: I second the motion. CHAIRMAN: First sentence was the motion, the Chair’s recollection. CHAIRMAN: It has already been acted upon, I think. NIELSEN: The first sentence is just senatorial districts. ARASHIRO: Twenty-one. CHAIRMAN: No, that’s just description. The first sen CHAIRMAN: Is there a second to that? tence reads, “The Senate shall be composed of 25 members, ARASHIRO: The reason for my 21 is this, that I think who shall be elected by the qualified voters of the respective there has been a tremendous discussion that has taken place senatorial districts.” in the committee - - Are you ready for the question? All those in favor signi fy by saying “aye.” Contrary. The ayes have it. WOOLAWAY: Point of order. Is that seconded? There is nothing before the body at the present time. Someone should move for the adoption of the remainder of CHAIRMAN: That was seconded by Delegate Mizuha. the section. ARASHIRO: And then there is a statement here submitted KING: It will be proper for the committee to make in a by the delegate from the Big Island which reads in the first form of motion that the second sentence be tentatively paragraph: “There are more than a dozen theories of ap approved. portionment. To name a few, rejected fractions, included SAKAKIHARA: I think that any member of the Committee fractions, Vinton method, geometric fractions, harmonic of the Whole can make such a motion. I move that we tenta fractions, inverse range, inverse minimum range, smallest tively approve the remaing portion of Section 2. LEGISLATIVE POWERS AND FUNCTIONS 74 BRYAN: I sçcond the motion. shall be based on geographical representation and the House on the basis of population. I think if we’re going to follow CHAIRMAN: The Chair didn’t get your motion. Will you that principle, at least right close to the heart of the matter, repçat it? I think perhaps when we consider the island of Hawaii, we SAKAKUJAILA: I move that the remaining portion of should likewise follow that principle. For that reason, I Section 2 be approved tentatively. believe that rather than setting the number of senators at five and two, if Oahu is to be divided between the third sena BRYAN: I’ll second that motion. torial district and the fourth senatorial district, likewise the CHAIRMAN: What do you mean by the remaining portion? island of Hawaii, with its large area, likewise Hawaii should The entire Section 2? be divided into two senatorial districts. However, in the division of the two senatorial districts, SAKAKIHARA: The entire Section 2. in the division of Hawaii, I believe in the Senate there should be more or less equal representation between the two CHAIRMAN: Is there a second to that motion? districts. In the report of the Legislative Committee, there BRYAN: I seconded that motion. is already a proposal that East Hawaii shall get six members in the House and West Hawaii, two. Granted that this will be CHAIRMAN: It has been moved and seconded that the possibly considered seriously, I believe that in the Senate entire Section 2 be tentatively approved. some guarantee should be given to West Hawaii which com NIELSEN: I have an amendment. It’s on the desks of all prises a greater area of land than East Hawaii does. Some the delegates and that is to - - at the top of page two, Commit guarantee should be given that it be represented in the state tee Proposal No. 29, change as follows: The first senatorial legislature. For that reason I propose to amend the amend district, East Hawaii, Island of Hawaii, five; second sena ment as presented by the delegate from West Hawaii, so that torial district, West Hawaii, Island of Hawaii, two; and then the amendment would read: “First senatorial district, East renumber the other paragraphs so that instead of two, three, Hawaii, island of Hawaii, four senators; second senatorial four, five, they will be three, four, five, six. I so move. district, West Hawaii, island of Hawaii, three senators.” DELEGATE: I second the motion. CHAIRMAN: Unless that’s accepted by the proponent, the Chair will have to rule it’s out of order at this time. Is CHAIRMAN: It has been moved and seconded that the that accepted by Delegate Nielsen? remaining language in Section 2 be amended in accordance with the amendment proposed by Delegate Nielsen, which is SILVA: Speaking in opposition to the amendment of giving on the desks of the members. Are you ready for the ques West Hawaii two senators, I am firmly of the conviction that tion? Is there any discussion? the people of Hawaii will have more to lose than to gain. I have been elected from West Hawaii for the last four terms NIELSEN: May I speak on the - - as senator from that area with the help of East Hawaii, and CHAIRMAN: You may. Proceed. in no time in the history of the territory has that district, West Hawaii, gone without representation in the territorial NIELSEN: The reason for that is: undoubtedly we’re Senate, with no law. Previously we’ve had two senators going to have a 51 member House and with the 51 member from West Hawaii, and with four we’ve had one. Surely with House, Oahu gets an increase of 21 and on our island we re seven, there’ll be times when we’ll probably have three and main the same eight that we have been for 20 or 30 years, East Hawaii with four. Sometime there will be times when but West Hawaii loses two. We only get 50 per cent of what we’ll have one. But the point remains that for the interest we’ve had all this time. We only have two representatives, of the people of Hawaii you will find that if they do run at and East Hawaii will have six so in fairness to West Hawaii large that the bargaining powers of the both districts are and the fact that if we’re going on an area basis we should be much stronger than having them divided. entitled to really four out of the seven on our island in a 25 Now I want to say this. In principle I do not believe in member Senate. However, I realize that is asking a whole lot dividing the Senate by districts and I say this because I know more than we could get, so I’d like to see West Hawaii have that West Hawaii will stand more to lose than to gain. Sena two and East Hawaii five of the seven senators that will be tors shouldn’t represent just a specific district, they should assigned to this island. represent the counties which they represent. I am of the Now the reason as stated for splitting Oahu is the fact strong conviction that we should elect our senators at large that it will cut down the cost of campaigning and that is an throughout the territory rather than by districts. And I see expensive proposition. But I want to point to the fact that no reason why West Hawaii - - There has been an argument, to cover West Hawaii—which has 2,234 square miles—but they say, “Well, maybe you’re afraid Nielsen will beat you just to follow the road when you go out campaigning, you in West Hawaii.” Well, hasn’t that fact been proven already travel 384 miles. I imagine in the fourth district on Oahu, during the last election to this Convention? Who led the with only 78 miles against our 2,234 square miles, that they ticket in West Hawaii? I did. I don’t want any credit for probably travel around 30 or 35. that but I want to point that out that is no argument. Now if this is not pul into effect, West Hawaii will have The point that I’m trying to seil is that the people them only two representatives and the senators being elected at selves will have more to lose by dividing their senatorial large will, practically all of them, except when you have districts rather than by letting them run at large. an outstanding man like Senator Silva, why, East Hawaii will elect all the seven senators. So in fairness to West LEE: Mr. Chairman, will the speaker yield to a question? Hawaii, I would like to see the delegates here kokua me on CHAIRMAN: Delegate Lee is recognized. this amendment to kind of take care of the fact that we lose 50 per cent of our representation. LEE: Delegate Silva, is it your conviction that the idea that the senators should be elected from the entire island? KAWAHARA: In looking over the report of the Legislative All senators? Committee, I see that somewhere along the line, the commit SILVA: I thought I made myself plain on that question. tee has agreed, at least in part, on the idea that the Senate JUNE 28, 1950 • Morning Session 75 LEE: Yes, I believe you did. And your answer would be YAMAMOTO: I’d like to say a few words in favor of this that they should run from the entire island, is that correct? amendment. I~come from the center of Hilo and I firmly SILVA: I just said that. believe that at all times there should be a representation LEE: And the theory being that those senators would from West Hawaii. The Constitution for the State of Hawaii have a broader picture of the entire island while the repre that we the 63 delegates are drawing up now to be ratified sentatives would be running from their respective districts. by the people, the voters of Hawaii, will be the pattern of SILVA: Whatever I say will be repetitious. our government for many decades to come. The Constitution must incorporate the broad philosophy of government which CHAIRMAN: Delegate Silva, if you’ve got anything to will be the future guide for the legislature and the courts. say, will you address the Chair, please. In view of the fact that we have seven senators from Hawaii, SILVA: Mr. Chairman, whatever I say would be repeti and in view of the fact that we have able delegates and Sena tious in answering those questions. tor Silva, in the future we might not have a representation from West Hawaii. I therefore maintain that we must follow CHAIRMAN: Does that answer your question, Delegate the pattern of the government of the United States. No matter Lee? how small the minority is, we must have representation in LEE: I believe my question answered itself.. our legislature. So I therefore ask each and every delegate MAU: I think we all know that in the territorial Senate here to favor the amendment. in the past 16 years, the honorable delegate from West LEE: I heard Delegate Sakakihara, I believe, make an Hawaii, who last answered the question, is one of the youngest announcement as to the standing of the Hawaii delegation. men in the Senate. By his argument, when he says that West I didn’t quite — — Hawaii has not suffered in the past, I think it is because of his able representation of that section of the island in the CHAIRMAN: The Chair understood him to say that the - - territorial Senate for the past 16 years, but he presupposes that he will continue to remain as young as he is. I do hope SAKAKJHARA: I would like to make a correction at this he is in good health; I hope that he will live forever and ever time for the information of.the delegate from the fourth dis and that he will be a senator forever and ever; then West trict. Hawaii probably will never suffer. However, we are writing CHAIRMAN: You may. a constitution; it will last for many, many years beyond the lives of most of us and it seems to me that the amendment SAKAKIHARA: Nine to three. is one of the fairest proposals put before this Convention. CHAIRMAN: Nine to three. Will the delegate state that It seems logical that a huge island like the island of Hawaii again, Delegate Sakakihara? should be divided in two. If the proposed amendment, or rather the amendment to the first paragraph on page. two of SAKAKI.HARA: Nine to three against the amendment. Proposal 29, contains the same number of representation LEE: Mr. Chairman, I have the floor. in the Senate for that island so that the island will not suffer nor will West Hawaii suffer, I believe that the amendment CHAIRMAN: Delegate Lee has the floor. should pass. LEE: Will the delegate also yield to a question? Did HAYES: I don’t feel that West Hawaii will lose its repre your delegation - - sentation if this amendment went through. I feel that she CHAIRMAN: Will you please address the Chair? would be well represented because according to the amend ment it would be two senatorial districts, East Hawaii, is LEE: I addressed the Chair, Mr. Chairman. Will the land of Hawaii, five; second senatorial district West Hawaii, delegate yield to another question? island of Hawaii, two. Now when you have two senators running for the division of East and West Hawaii, I feel that CHAIRMAN: You have the floor, Delegate Lee, no ques tion of anybody yielding. West Hawaii deserves two senators. A. TRASK: I am in favor of the amendment and I am in LEE: Well, to a question, Your Honor, Mr. Chairman. favor for this reason. The cost of campaigning was the What is the vote of your delegation as to the divisionof Oahu moving consideration which will seek to divide Oahu into into senatorial districts, third and fourth? the third and the fourth senatorial districts. So how we A. TRA5K: Mr. Chairman, this is not germane to the vote on this question will also reflect itself on whether or question. I think it is out of order. not Oahu, which is now the third senatorial district, will be divided into the third and fourth senatorial districts. I am LEE: I believe it is germane, Your Honor. The discus sion is on the entire remainder of Section 2. in favor of the amendment because of making or having the man with not enough money but with some talent to get an A. TRASK: I ask for a ruling from the Chair on this equal opportunity to get into this tough senatorial race matter. which costs just absolutely plainly too much money. This business of campaigning on Oahu itself is so expensive that LEE: It is a discussion on the entire remainder of Sec the ordinary fellow with an ordinary job just cannot and tion 2. should not run in fairness to himself and to his family. And CHAIRMAN: You want to ask a question of Delegate on the plain consideration of economy I am in favor of the Sakakihara? amendment. CHAIRMAN: Question is on the amendment proposed by LEE: That is correct. Delegate Nielsen. Are you ready for the question? CHAIRMAN: What is your question? Address the Chair, SAKAKIHARA: May I make a statement here as to the please. standing of the Hawaii delegation on this amendment. The LEE: My question is how does the Hawaii delegation Hawaii delegation stands ten to two against the amendment. stand then in the division of Oahu into two senatorial districts? LEGISLATIVE POWERS AND FUNCTIONS 76 CHAIRMAN: Just a minute. Afternoon Session DELEGATE: Point of order - - MIZIJBA: What is the order of business at this time? A. TRASK: Mr. Chairman, the speaker is seeking to get CHAIRMAN: At the close of the last meeting in the Com a poll on an anticipated vote on the floor. I think it’s out of order. mittee of the Whole we had just taken a vote on the amendment to Section 2, which was lost. As the Chair understands it, CHAIRMAN: The Chair will rule it is out of order. We Section 2 was tentatively adopted. are voting on the division of Hawaii. MAU: We have before us Section 2. NIELSEN: I want to say that the delegation i5 split on this. Naturally, with most of the delegates being elected CHAIRMAN: Section 2 is before the committee at the from East Hawaii, there are only a very few of them that present time. will go for this amendment, but I still say it’s fair and that MAU: At this time I would like to offer an amendment I’d like you to call for the question. to Section 2 by amending the third and fourth paragraphs of DELEGATE: Point of order. Section 2 of Committee Proposal 29, appearing on page two to read as follows: CHAIRMAN: The Chair will recognize DelQgate Ihara. He rose first. Third senatorial district: that portion of the island of Oahu, lying east and south of Nuuanu Street and a line IHAR.A: I don’t want to give you delegates here the idea drawn in extension thereof from the Nuuanu Pali to that perhaps there is some dissension among the delegation Mokapu Point, five; from Hawaii, but I would like to say this, that we are not in line with the opinion expressed by our Delegate Sakakihara. — senatorial district: (It will be either the fourth Not all of them, anyway. or fifth, depending on what the amendments are) that HOLROYDE: I’d like to state that if I voted for this portion of the island of Oahu, lying west and north of the amendment, I would also have to vote for Koolau as a sepa third senatorial district, five. rate senatorial district. It’s been unrepresented in the past This language, Mr. Chairman - - in the Senate and has 6,200 voters, which exceeds the num ber from Kona. KAM: Mr. Chairman, second that motion. CHAIRMAN: Is there further discussion or are you CHAIRMAN: Has that been printed, Delegate Mau? ready for the question? MAli: I beg your pardon? DELEGATES: Roll call. CHAIRMAN: Has that amendment been printed? CHAIRMAN: Roll call demanded? The Clerk will call MAD: It has been printed and circulated. the roll. CHAIRMAN: Placed on the desks of the delegates? Ayes, 29. Noes, 33 (Apoliona, Arashiro, Bryan, Cross ley, Doi, Fong, Gilliland, Heen, Holroyde, Kawakami, Larsen, MAU: Placed on the desks of the delegates. Lee, Loper, Luiz, Lyman, Mizuha, Ohrt, Okino, Porteus, This language, Mr. Chairman, appears in the Organic H. Rice, Richards, Roberts, Sakakthara, Serizawa, Silva, Act. I have changed the designation in the Organic Act which Smith, St. Sure, Tavares, Wirtz, Woolaway, Yamauchi, King, covers the fourth representative district to the third sena Anthony). Not Voting, 1 (Wist). torial district. It is my belief, Mr. Chairman, that the geographical division which has existed since the inception HEEN: Mr. Chairman, may I ask what Delegate Arashiro’s of the Organic Act and under which we have elected our vote was? members of the legislature from this island should be con CLERK: “No.” tinued. It would eliminate the inclusion of Kailua and Wai manalo from the fifth district. The proposal before this CHAIRMAN: The motion has lost. body places these two districts into the fifth district, and HEEN: I now move that the committee rise and report it seems to me that we should continue what has been the progress and ask leave to sit again. When that occurs I geographical desiguation and representative districts for would like to submit a minority report so that it can get the past fifty years or so in the State of Hawaii. There is no into the hands of the printing committee to be printed. good reason for gerrymandering this island by including Waimanalo and Kailua in the fifth district. It properly remains CHAIRMAN: Is there a second? part of the fourth district. WOOLAWAY I’ll second that motion. Of course, the argument would be raised that in the Con stitutional Convention election, Kailua and Waimanalo were CHAIRMAN: All those in favor signify by saying “aye.” included in the fifth district. I thought that that was wrong. Contrary. Carried. As a matter of fact, I presented that argument to the CROSSLEY: Couldn’t we just recess till 1:30?. attorney of the Territories Division of the Interior Depart ment and explained the situation to him, and he agreed that HEEN: No, I would like to offer the minority report, as that should not have been done, that that plainly looked like it should be in the regular session. gerrymandering, that they picked a section, a slim slice of KING: Mr. Chairman, does the chairman of the committee the northern section of the island and made it a representa desire to offer a minority report? He’s already sigijed a tive district. Of course, the reason why nothing was done majority report and not concurred. Isn’t that sufficient or with the present H. R. 49 in the designation of districts for is the minority report to be filed in addition? the constitutional election was that the Interior Department was afraid to jeopardize the statehood bill. They thought it CHAIRMAN: Mr. President, the vote was on the motion was best to leave it alone, but they did not agree that that to rise and report progress and that motion carried. JUNE 28, 1950 • Afternoon Session 77 was a fair designation on this island of representative dis Then the fourth and fifth senatorial districts in accordance tricts. And for that reason, I submit that this amendment with Delegate Mau’s amendment. The fourth senatorial dis should carry, that these two sections of the island, Kailua trict to read as follows: and Waimanalo, should belong in the fourth - - present fourth district and that is what the amendment attempts to That portion of the island of Oahu, lying east and accomplish. south of Nuuanu Street and a line drawn in extension there of from the Nuuanu Pali to Mokapu Point, five; HOLROYDE: As a member of the committee as well as Fifth senatorial district—that portion of the island of an elected representative of that district, as far as the com Oahu, lying west and north of the fourth senatorial district, mittee considerations were concerned, it was a much more five; equitable division as far as the total voting population was Sixth senatorial district—the islands of Kauai and concerned. As far as the people of that district are concerned, Niihau, four. one of their major ambitions and desires is to have a repre sentative district of Koolau. They feel that they do not have ARASHIRO: I second that motion. very much in common with the City of Honolulu as such. They feel that it is a rural district and part of the rural part of CHAIRMAN: It’s been moved and seconded - - Oahu, and they want to be a representative district, and SILVA: To expedite matters, I move at this time that they’d actually like to be a senatorial district too, as Koolau. action on this amendment be deferred. So I hope that you will see fit to vote down this amendment. CHAIRMAN: I think that’s proper at this time until the CHAIRMAN: No further discussion? Are you ready for delegates can examine the amendment. the question? All those in favor of the amendment proposed SAKAKIHARA: Second it, Mr. Chairman. by Delegate Mau signify by saying “aye.” Contrary. The Chair’s in doubt. SILVA: I think the motion was in order because the motion was made to adopt it and seconded: DELEGATES: Roll call. CHAIRMAN: I didn’t get your point. CHAIRMAN: Call for a rising vote. Madam Clerk, will you call the roll, please. NIELSEN: Mr. Chairman, could we have a two or three minute recess? It will probably be out by that time. Ayes, 31. Noes, 30 (Apoliona, Bryan, Cockett, Crossley, Dowson, Fong, Gilliland, Hayes, Holroyde, Kellerman, King, CHAIRMAN: We’ll have - - Chair will declare a two- Lai, Larsen, Loper, Lyman, Ohrt, Okino, Porteus, Richards, minute recess. Don’t stray away, though, it ought to be Sakai, Sakakihara, Silva, Smith, St. Sure, Tavares, J. Trask, here in a minute. White, Wist, Woolaway, Anthony). Absent 2, (Castro, Phillips). (RECESS) MIZUHA: I have an amendment. CHAIRMAN: Will the delegates please resume their seats. CHAIRMAN: Has it been printed, Delegate Mixuha? Delegate Mizuha, your amendment has been printed and MIZUHA: It has been printed but there’s a new version circulated. of the amendment. MIZUHA: A motion was made for the adoption of that CHAIRMAN: Has it been circulated? amendment orally. CHAIRMAN: A motion has been made and has been sec MIZUHA: It hasn’t come back from the printer as yet, onded. Anybody want to discuss the motion? and I would like to have the privilege of offering that amend ment in print as it returns from the printer. SAKAKIHARA: May I ask the delegate from Kauai how he arrived at this apportionment of the senate, Hawaii, six; CHAIRMAN: Does it relate to Section 2? Maui, five; Oahu, ten; and Kauai, four. MIZUHA: Yes. CHAIRMAN: Care to answer that, Delegate Mixuha? WIRTZ: Point of information. Did the Chair announce MIZUHA: Basically I don’t know how the committee the last vote and whether the motion - - the amendment arrived at their own apportionment when they had Oahu, carried or not? ten; Hawaii, seven; Maui, five; Kauai, three; and I be CHAIRMAN: The amendment carried. lieve just as much as the committee took it out from the heavens, I took it out from the heavens myself. MIZUHA: I want to change that here. It is being printed. I’ll read out my amendment and then it can be circulated CHAIRMAN: That’s an answer to question. afterward. SAKAKIHARA: May I speak to the amendment? CHAIRMAN: Proceed. CHAIRMAN: What was the statement? MIZUHA: The second part of Section 2 to read as follows: SAKAKIHARA: May I speak to the amendment offered “First senatorial district.” by the delegate from Kauai? CHAIRMAN: By the second part, what do you mean? CHAIRMAN: You may speak to the amendment. MIZUHA: Beginning with senatorial districts. SAKAKIHARA: Mr. Chairman, members of the Commit tee of the Whole, I wish to call your attention to the fact that First senatorial district—East Hawaii, four; Hawaii, when they have 21,000 votes, Maui with 13,000 votes, Second senatorial district —West Hawaii, two; five senators, Kauai with 8,600 votes should be entitled to Third senatorial district—the islands of Maui, four senators. I don’t think this will be a fair distribution Molokai, Lanai and Kahoolawe, five; of the Senate. LEGISLATIVE POWERS AND FUNCTIONS 78 WIRTZ: When Mr. Mizuha said he picked this out of the hands for a roil call. Roll call is required. Madam Clerk, heavens, I don’t think he quite meant that. This is based will you please call the roll? upon the logical increase by units of five. Everytime you Ayes, 27. Noes, 33 (Apoliona, Bryan, Castro, Cockett, increase the Senate five, it’s one, one, one for each of the Corbett, Doi, Fong, Fukushima, Gilliland, Holroyde, Ihara, outside counties mat two for Oahu and this is just going up Kawahara, King, Lal, Larsen, Loper, Luiz, Lyman, Ohrt, two stages; so it increases Hawaii two, Maui two, Kauai two Okino, Porteus, Richards, Roberts, Sakai, Salcakihara, Silva, and Oahu four; so it is following in the same logical pattern. St. Sure, Tavares, White, Wist, Woolaway, Yamamoto, Yama BRYAN: I’d like to say that the committee didn’t lust uchi). Not voting, 3 (Mau, Phillips, Shimamura). pick the figures out of the air either. If you worked the CHAIRMAN: The amendment is lost. The matter before percentages, you will find that the increase on each island the house is still Section 2. is as nearly uniform percentage-wise as you can get it under the proposal that the committee made. It’s 1.5 on KOMETANI: I would like to moveSor reconsideration of Kauai, 1.66 on Oahu and Maui and 1.7 on the island of the amendment that was proposed by Delegate Mau. Hawaii. So we didn’t pull it out of the air either. WOOLAWAY: I’ll second that motion. CHAIRMAN: Any further discussion on the Mizuha CHAIRMAN: It has been moved and seconded that the amendment? amendment adopted before the recess as proposed by Dele gate Mau be reconsidered. MIZUHA: May I speak on behalf of the amendment? Under the federal principle of representation, the Senate LEE: Delegate Mau isn’t here. I just wondered whether has always been a body of equal representation in the the - - Congress of the United States, two senators from each CHAIRMAN: I was going to cail that to the attention to state of the Union. Hawaii is seeking admission to the the proponent of the motion, whether or not he would like to Union as the 49th state and asking that the Congress of the withhold that until the appearance of the movant. United States permit us, under the federal principle, to have two senators in the Congress of the United States. There is KOIVIETANI: I will do so. no doubt in my mind today, if we went to the Congress of CHAIRMAN: The Chaii will consider it withdrawn then. the United States and said we would be satisfied with one senator, they would admit us tomorrow. KING: I feel very strongly that we can’t hold up the Under my amendment it increases the number of senators progress of the Convention’s considerations for the absence from each of the outlying islands by two; two for Kauai, two of one member, unless we have a recess until he can return. for Maui, and two for Hawaii and gives Oahu four. Under no When the vote was taken, there were other absentees. Never conception can we believe that at the present time that the theless the vote was taken, and I suggest, therefore, that we island of Hawaii will be entitled to three more senators and have a brief recess awaiting the return of Delegate Chuck Mau. Kaual only one. I believe it is grossly unfair if we give to one outlying island three and another outlying county and CHAIRMAN: I think, Delegate King, that we can instruct island one because of the fact that under the federal princi Delegate Mau to be present. Thai’s what we got a Sergeant- ple of equal representation in the Senate the islands of at-Arms for. Kauai and Nithau deserve that increase of two in the future KAUHANE: I’ll second that motion for a recess. State of Hawaii. Oahu will get its four, Maui will get an increase of two, but the island of Hawaii comes to this Con CHAIRMAN: We’ll take a short recess and in the mean stitutional Convention and asks for an increase of three. time the Sergeant-at-Arms will get in touch with Delegate We have to discuss the representation in the future State Mau. of Hawaii on the basis of statesmanship. We cannot go into (RECESS) this question on the basis of politics. We cannot go into this question on the basis of thinking who will be representatives CHAIRMAN: The delegates will take their seats. The and senators from the various outlying counties in the future committee will come to order, please. Will the delesates State of Hawaii and what our chances will be for election un der the basis of represenation as submitted by the committee. please take their seats? The Committee of the Whole is in order. I submit to the delegates here that if we are going to find ourselves in a position where we have to decide the issues of KOMETANI: Is it my understanding that due to the ab representation both in the Senate and the House of Represen sence of Delegate Mau that my motion was withdrawn? tatives of the future State of Hawaii, we must decide it on the CHAIRMAN: That is correct. You are now in order. high principles of statesmanship, where we believe it will be to the best interests of the people of this territory and the KOMETANL Then I would like to make the motion to future State of Hawaii. And if we are to recognize those reconsider the amendment that was proposed by Delegate outlying islands in the Senate of Hawaii we must give them Mau. a fair representation. Under the committee proposal, allow CASTRO: I second the motion. ing seven senators from the island of Hawaii, it will divide the balance of power and place the balance of power in an CHAIRMAN: It has been moved and seconded that the outlying island with seven senators that will be in the end amendment to Committee Proposal No. 29, which was carried the basis for political manipulation in the Senate and will this morning in regard to the division of the third senatorial result in the detriment to the interests of the people of the district be reconsidered. Is there any discussion on the future State of Hawaii. So I submit that the delegates con motion? sider this amendment on the basis of statesmanship and not DELEGATE: Roll call! political footballing. CHAIRMAN: Is there any discussion? Anybody want a CHAIRMAN: Are you ready for the question? Is there roil call? How many want a roll call? a roil call demanded? There is not sufficient showing of JUNE 28, 1950 • Afternoon Session 79 KELLERMAN: May I say a few words with respect to Hill. It’s the urban section of the island of Oahu. As a this proposal? matter of fact, it’s almost identical with the ancient Hawaiian CHAIRMAN: You may. district of Kona of the island of Oahu—we had a Kona too as well as Hawaii—and Waimanalo and Kailua lie outside of KELLERMAN: During the recess I talked to several that urban area. Furthermore the fourth district of Honolulu members from the outside islands who said they did not comprises that part of the urban area that lies east and south understand what any of the issues involved, so I think it of Nuuanu Avenue to Makapuu Point and goes over the moun behooves some one to speak on this point. It is my con tains to include these two precincts of Kailua and Waimanalo. tention that Waimanalo, Lanikai and the Kailua area should At the time that H. R. 49 was under consideration many belong in the district with the rest of the Koolau group. of us sat in on various committees to devise a more repre Their interests are essentially windward Oahu interests. They are not interests of the City of Honolulu. They do not sentative way of electing delegates to the Constitutional Con vention. I served on the committee with Delegate Heen and even use—that is the Lanikai-Kailua area—do not even use the late Judge Robertson and the former Senator David the transportation around the end of the island of Makapuu Trask and several others and we devised this program that Point. was carried out in H. R. 49 and in Act 334 of adding Kailua CHAIRMAN: Delegate Kellerman, does that go to the and Waimanalo to its proper geographical unit, the geographi merits of Delegates Mau’s motion or to the matter of recon cal district of Koolaupoko. That was approved by the legis sideration? lature and sent to Congress and introduced by Delegate Farrington and is embodied in the provisions of H. R. 49. KELLERMAN: It goes to the merits of the question, and therefore I think they might wish to reconsider their vote Then later it was approved by the legislature and embodied in the provisions of Act 334. if they realize that there are merits on the issue. For that reason I think it’s pertinent. Now this discussion of some attorney in the Department of Interior not approving is no relevance to the matter at KING: I had expected to seek recognition to speak on the all. As a matter of fact, I doubt very much whether the De merits of the amendment alter the vote on reconsideration partment of Interior would commit itself one way or another had been taken, but I do feel it was appropriate to offer to as to the zoning of our election districts for the Constitutional the Convention - - or the committee some reason for the Convention. Their interest lies more in the material matters vote for reconsideration. of public lands, and so forth, and had the attorneys of the De CHAIRMAN: Roll call has been demanded. Madam Clerk, partment of Interior made any suggestions to the committees please call the roll on the motion to reconsider Delegate of Congress to change it, it probably would have been disre Mau’s amendment relating to the division of the third garded since it was in the bill introduced by the Delegate, senatorial district. approved by the legislature and enacted info law in Act 334. Ayes, 39. Noes, 22 (Akau, Arashiro, Ashford, Doi, Fuku I feel very strongly, and the people who live in Kailua and shima, Heen, Ihara, Kam, Kanemaru, Kauhane, Kawahara, Waimanalo feel very strongly, that they should be a part of Kawakami, Lee, Luiz, Mau, Nielsen, Noda, C. Rice, H. Rice, rural Oahu and not a part of urban Honolulu. There is no Shimamura, A. Trask, Wirtz). Not voting, 2 (Phillips, J. common bond of interest. There we still have agricultural Trask). industries, they have dairies, they have commuters and are owners of suburban homes, and we have all of the rest of CHAIRMAN: The motion is carried. The question is the attributes of a rural and suburban area, So I feel that now on the amendment, I believe, proposed by Delegate Mau. this particular amendment should not carry and the division proposed in the committee report should carry. KING: When the motion was offered to adopt this amend ment, perhaps some of us didn’t read it as carefully as we Now while I’m on my feet and as I have not exhausted my might have. I realized what it meant but did not rise to speak time, I’d like to discuss the general attitude of the committee against the amendment. report. The committee report made a majority report, and The statement was made that this was gerrymandering as I recall the vote, it was nine to three in favor of the pro to put Waimanalo and Kailua into the fifth district. Gerry visions of this report as submitted to this Convention. As it mandering, if any, was done at the time of the adoption of happens the chairman of the committee is not in favor of the the Organic Act. They went up to the top of the Nuuanu maj ority report. rhe chairman and two other members have Pali then drew a straight line through the Mokapu Peninsula submitted a minority report. That’s well and good. That’s and said that all that lies east and south of that line would their privelege. Nevertheless the majority report consists be the fourth district, and all that lies north and west of of nine members of that committee that went over the provi that line would be the fifth distriet. At that time Kailua and sion of reapportionment and apportionment of the Senate and Waimanalo did not have a very great population. In the of the House very thoroughly and very exhaustecily and as far meantime those two sections have filled up with a rather back as June sixth the provision in this proposal of twenty- large population and they are part of Windward Oahu. five senators allocated as it is in this proposal was agreed The ahupuaa of Kailua and Waimanalo are a part of the old upon. The motion was put on June seventh to reconsider district of Koolaupoko. Further on in the report of the that action and that motion was voted down on a nine - three Committee on Legislative Powers and Functions, it is vote. Then later on, it was brought up again and discussed proposed to create a separate representative district of and discussed verbatim in all of the angles and phases of it Koolau. That may or may not pass. That is immaterial. and the final decision was to submit this report with nine Nevertheless, these two pieces of land are an intrinsic geo members of the committee in favor of it. graphical part of the district of Koolaupoko and has been Now I think it comes with ill grace to members of the for many many years. They lie over the mountains from other islands to question what the people on Oahu have de the fourth district. cided by a majority, to divide this island into two senatorial Now, the City of Honolulu is defined as being that area districts. Either vote dowe the senatorial district as a whole of the island of Oahu lying between Makapuu Point and Red or support the committee report as to their division between LEGISLATIVE POWERS AND FUNCTIONS 80 the fourth and the fifth district. So, I would urge the Com the final analysin the whole convention - - the whole com mittee of the Whole to vote down the proposed amendment. mittee votes and what happens? In reference to the report of the committee, Delegate LEE: I’m surprised, I don’t hear any answer in the re Crossley has mentioned that perhaps some of us signed buttal. I don’t want to take the floor on this too long either. and some of us did not concur on the various sections for But I’d like to say the first time I have heard the President various reasons. I signed it and said that I didn’t concur, say that the committee has voted nine to three, after going and one of the reasons why I said I didn’t concur was be through exhaustive studies. I agree that we had gone through cause of the fact that I wasn’t quite enlightened on this exhaustive studies. I might say to the committee that at one matter of redistricting O~.hu. In fact, I am still open for occasion after reconsideration the committee voted for 43-21, suggestion as to how to vote, what to do, what not to do. 41-21, somewhere along the line where there was only twenty- The second point is this; I signed the report saying I one senators. Then the matter was reconsidered. So that didn’t concur because I thought that the redistricting of actually there is a great deal of doubt on this particular the island of Hawaii for example wasn’t quite complete. point. Anybody can see that the redistricting of the island of It seems to me that it’s unfair to say that the people of Hawaii isn’t quite, you might say, artistic anyway. East Kailua and Lanikai have nothing in commGn with the City of Hawaii is divided into three districts. West Hawaii is Honolulu. I have a lot of friends who live out in that area divided - - is not divided into three districts, the whole of who have always voted along with the fourth district. That West Hawaii is district four. While I didn’t vote against it has been the part of the fourth district for over fifty years. nor did I vote for it, I think we still have a lot more to go It seems to me that the statement that Kailua and Lanikai as far as investigating the possibilities of this business of have no common interest with the rest of the fourth district, redistricting. in my opinion they have more of a common interest with KAUHANE: I believe statements are being made here the rest of the fourth district than with the fifth district. that should be answered; first of all, the delegate from the FUKUSHIMA: I would like just to say one sentence. Kai fifth district who stated that while he was back in Washington, lua is no more rural than Ama Haina or Portlock Road which he met with officials of the Interior Department of Insular is also part of the fourth district. and Territorial Affairs, and that this matter of the reap portionment which is contained in H. R. 49 was taken up. HEEN: When the report was signed by the members of Certainly the matter was taken up with the officials of that the Committee on Legislative Powers and Functions there body. The Democrats who appeared in Washington felt that were six delegates who did not concur with Section 2. Dele it was gerrymandering because in H. R. 49 we have a stretch gate Lee, Delegate Kellerman, Delegate Wirtz, Delegate of a combination of precincts arriving at Aala Park and we Serizawa, Delegate Kawahara and myself, all six did not run away over about two and a half miles and take in Pre concur with the provisions of Section 2. cinct 17; that’s the Kalihi Pumping Station. We showed the CHAIRMAN: The Chair would like to ask Delegate Heen officials in Washington what has been done. a question. That is, whether or not in the course of this This same setup of reapportionment when it was first debate, some place along the line, the body is going to be submitted to the Congress of the United States back in 1941 informed why we need this increase. I know a great many was objected to strenuously by the Democratic Party. The delegates have spoken to me about this vast increase. I same provision which was objected to by the Democratic think the body would like to hear about it. Party in 1941 is contained in H. R. 49. So much so, that those of us who are of the Democratic faith appearing in CROSSLEY: I would like to say that what the chairman Washington made every means to see that that provision of the committee has just said is right. There was a nine was not carried forth in H. R. 49. The ultimate goal was to six vote on this, on concurrence. The reason that the statehood for Hawaii, and because that was put to us we felt six did not concur was not based on a division of the areas. that we should sit back and take a back seat and let the They were not concurring because of numbers. Just to get ultimate goal, statehood for Hawaii, go through. We felt that up and say that the six did not concur; they did not concur upon returning to Hawaii that we would meet with those of for different reasons. As a matter of fact, I don’t recall the Republican faith and sit down and decide with them and that there was any disagreement as - - yes, there was some, talk over with them the method of reapportionment. Certain but only minor disagreement, certainly not six disagreeing ly the committee has studied reapportionment, and yet when with the cutting up of the districts the way they are. I be we came back before the legislature and tried to arrive at lieve that’s what President King had reference to when he a common ground, what had happened? The result was the was talking. The non-concurrence didn’t go to the point passage by the legislature and adoption of a provision of of this amendment. reapportionment similar to that as contained in H. R. 49. APOLIONA: I think we have heard all the reasons and I Reapportionment under the Organic Act should be based think lot of the delegates’ minds are satisfied, and now I and made according to the population as to citizens of the move for the previous question. Territory of Hawaii, and not to citizens of the United States. That’s the requirement of reapportionment under Section 55 CHAIRMAN: Delegate Kawahara, did you want to be of the Organic Act. The Bureau of Census has not yet heard? submitted to this body or any body interested in reapportion KAWAHARA: Yes, on the matter of the way - - of the ment, the citizenship with respect to citizens as to the Terri voting of the committee. Some sentiment is being expressed tory of Hawaii. Even up to the last census taken by the Census here that if it’s a matter of Oahu, we leave it up to Oahu, Bureau, there is no report to show citizens as to the Terri and if it’s a matter of Hawaii and I~auai - - or Kauai, we tory of Hawaii as well as citizens to the United States. And should leave it up to the various islands, and yet when it in order for us to comply with the section of the Organic Act, 55, we must arrive first as to citizens of the Territory of comes to the voting everybody participates. I don’t see Hawaii, then, from then reapportionment shall be based any logical reason between the two ideas that if it is a accordingly. matter for one island, then leave it up to the island and in JUNE 28, 1950 • Afternoon Session 81 The amendment proposed here by the delegate from the made in creating these representative districts to put people fifth district which was carried and which now has been over in those districts who have common interests. I don’t be ridden by reconsideration brings only one factor to my mind, lieve that that’s true. You will come to it whea you see that we are voting on this thing on a partisan basis—Democrat representative district number five, all of Manoa, part of versus Republican. That is the only reason by which the Manoa going all the way down to Waikiki. Their interests reconsideration has been asked. As reconsideration as I with the people of McCully, Bingham Tract are the same? say would be sincere and is asking if we come back and say That is not correct. that the Senate shall be composed of twenty-one members, When the statement is made that the windward Oahu twenty-one members which was agreed to by the Senate in people have common interests, that too is incorrect as a the 1949 session, when they passed Senate Concurrent Reso matter of fact. The vast majority of the people who live in lution No. 21. In Senate Concurrent Resolution No. 21, the Lanikai, Kalama and Kailua and some even in Hauula, work senators voted for a twenty-one member Senate and a forty- in the heart of the city. They are middle class people and two member House. It came to the House of Representatives, some upper middle class. That’s a fine residential section and we agreed to the amendment of the Senate, and we passed out there. But I think the true situation concerning this it back to the Senate except to increase the senatorial mem gerrymandering is simply this, one of your strong Republican bership to twenty-three following the proposal, the amend leaders told me this morning that he was in favor of that ment that was offered by Representative Arashiro. When it because the fifth district as it stands now is too strongly got to the Senate, the Senate changed it from twenty-three Democratic and we have to overcome that. That is the sole senators to twenty-one, and it came back to the House, and purpose. there it died for lack of having sufficient votes to carry. Certainly the twenty-one House - - Senate - - CHAIRMAN: Ready for the question? CHAIRMAN: Excuse me, is that relevant to the amend ASHFORD: May I ask a question of the last speaker? I ment? Delegate Mau’s. never have understood what middle class and upper middle class was. I’d like a definition. KAUHANE: It is relative to the amendment. CHAIRMAN: That was running through the Chalr’s mind, CHAIRMAN: Would you just point out the relevance. too, Delegate Ashford. KAUHANE: What’s that? HOLROYDE: I was very glad to hear the last speaker CHAIRMAN: Would you point out the relevance. It’s not quote that the people of Lanikai, Kailua and Hauula had clear to the Chair. something in common. That’s all. KAUHANE: As to the twenty-one membership and forty- CHAIRMAN: The question is on Delegate Mau’s amend two House? ment. Is there roll call requested? Roll call? CHAIRMAN: No, as to Delegate Mau’ s amendment. That’s DELEGATES: Roll call. what is before the house. CHAIRMAN: The Clerk will call the roll. The vote is on KAUHANE: Yes, we are considering whether or not to Delegate Mau’s amendment which was adopted this morning. adopt Chuck Mau’s amendment or reject Chuck Mau’s amend Then, there was a motion to reconsider. We are now voting ment. On the basis that Chuck Mau’s amendment presents onthe merits of Delegate Mau’s amendment, which reads as a pattern by which we should follow in adopting the apportion follows: Amend the third and fourth paragraphs of Section 2, ment of the Senate by the division of the district of Oahu into of Committee Proposal No. 29 to read as follows: fourth and fifth districts as far as senatorial districts are concerned. What I am trying to show is the membership of Third senatorial district; that portion of the island the Senate as increased and agreed to by the last legislature of Oahu, lying east and south of Nuuanu Street and a line to where the Senate and the House has agreed that the mem drawn in extension thereof from Nuuanu Pali to Mokapu bership should be twenty-one and then which could be applied Point, five; in the same division, as offered by Chuck Mau, in the division — senatorial district; that portion of the island of Oahu as far as senatorial districts are concerned in the of Oahu, lying west and north of the third senatorial dis fourth and fifth districts. We can apply that figure as well trict, five. to the amendment offered by Chuck Mau. Chuck Mau’s amendment, I think, has a lot of merit, merit where we are LOPER: Mr. Chairman, would you remind the delegates getting away from a pattern which we have followed for the please to use their microphones; we can’t hear back here. last fifty years clamoring for reapportionment. If we are CHAIRMAN: I have asked the body to do that. concerned about reapportionment, then let us go reapportion ment, all out for reapportionment, and adopt the proposal as HAYES: I believe the point that we would like to know offered by the delegate from the fifth district for the division would be, those who vote for the amendment would do this, of the senatorial district on Oahu. and those who vote against it would do this. Will you state that please? MAU: The statement has been made that originally Con gress in passing the Organic Act for the Territory of Hawaii CHAIRMAN: Those who vote in favor of the amendment gerrymandered this island. I don’t believe that’s true. They are in favor of Delegate Mau’s motion and you vote aye. If cut the island in two using Nuuanu and Nuuanu Pali as the you’re agalnst his motion you vote no. boundary line. But assuming for the purposes of argument that that statement is correct, if that was gerrymandering WIRTZ: Slight point of order. I don’t want the delegates should this Convention continue to gerrymander this island to be confused. We voted on this after lunch, not this morn worse than it was in 1900? Look at the map of Oahu when ing, shortly after lunch. you come to it later. You will find distinctly gerrymander CHAIRMAN: I think the Chalr was in error in that. Re ing. The statement has been made that an attempt has been consideration was voted after lunch. LEGISLATIVE POWERS AND FUNCTIONS 82 ARASHIRO: Is it still going to read as the “Third sena SILVA: if that is in order, I would like to further amend, torial district”? you can have one more amendment. The amendment would read that in the first senatorial district, leave it at seven, CHAIRMAN: Afraid I didn’t understand your question. and in the fifth senatorial district, two. ARASHIRO: It says, _. senatorial district; that por CHAIRMAN: You’re amending - - Just a minute. You are tion of the island of Oahu, lying west and north & the “ third amending what, Delegate Crossley’ s motion? or fourth? SILVA: The amendment offered by Crossley, the fifth CHAIRMAN: Will you answer that, Delegate Mau? senatorial district, cut it down to two and take the extra one MAlI: That was purposely left blank depending on what and give it to Oahu. amendments came. When this was drafted, there was an DOL I second the motion. amendment before that from one of the delegates from Hawaii, which used the first and second, rather than cover CHAIRMAN: The Chair doesn’t consider that as an amend Hawaii by the first senatorial district, if this amendment ment, because the original proposal said the island of Hawaii, does pass, then the Style Committee can - - seven, and the amendment was to six. So you’ve just changed it back again. A vote on the amendment will - - CHAIRMAN: Insert the appropriate number. DELEGATE: No, no, the amend- - MAU: Insert the proper for each blank - - number to the blank. CHAIRMAN: - - accomplish your purpose. CHAIRMAN: Will the Clerk call the roll? DELEGATE: Point of order. Ayes, 30. Noes, 32 (Apoliona, Bryan, Castro, Cockett, WIRTZ: Will the last speaker yield to a question? Which Crossley, Dowson, Fong, Fukushima, Gilliland, Hayes, Hol district, which senatorial district in Oahu will get the extra royde, Kellerman, Kido, King, Kometani, Lai, Larsen, Loper, senator? Lyman, Ohrt, Porteus, Richards, Sakakihara, Silva, Smith, SILVA: That - - well, we can decide that later on. They St. Sure, Tavares, J. Trask, White, Wist, Woolaway, Yama may run at large. uchi). Not Voting, 1 (Phillips). CHAIRMAN: Chair will recognize Delegate Crossley. CHAIRMAN: Amendment is lost. We’re still on Section 2. CROSSLEY: That last motion is out of order because it CROSSLEY: I have an amendment. I’d like to amend —- changes the purpose of mine by diminishing instead of in- CHAIRMAN: Has it been printed, Delegate Crossley? creasing. That’s just the opposite. CHAIRMAN: That’s correct. The Chalr has so ruled. CROSSLEY: No, it’s an oral amendment, it’s easy to You understand the motion? follow. Where it reads: “First senatorial district, the is land of Hawaii,” change “seven” to “six.” Where it reads SAKAKIHARA: Point of order. “Fifth senatorial district, the islands of Kauai and Niihau,” CHAIRMAN: if I might state the substance of it, that change “three” to “four.” would reduce the number of representatives in the Senate on MIZUHA: I second. the island of Hawaii from seven to six and increase the num CHAIRMAN: That’s in Committee Proposal No. 29, ber on the island of Kauai from three to four. Is that correct? Delegate Crossley? SAKAKIHARA: All right, Mr. Chairman. I believe that question was disposed of, Mr. Chalrman. I think if you will SILVA: Point of order. I think that that question has been play the recording, it’ll bear me out. settled a moment ago, about four senators for Kauai. CHAIRMAN: The Chair has already ruled on that. CHAIRMAN: The Chair is trying to get what the amend ment is, Delegate Silva, if you’ll permit me. DOl: We wish to appeal to the Chair, your honor, Chair CROSSLEY: The change is reducing the committee pro man. We wish to appeal from the ruling of the Chalr. I posal which calls for seven from Hawaii to six, and increasing think should we replay the recording there, all of the dis cussion on the amendment offered by Mr. Mizuha was con the fifth senatorial district in the committee proposal from fined to the question of increasing Kauai and decreasing three to four. I might say that in the previous amendment Hawaii. put in by Delegate Mizuha it was tied in with the Oahu, all of the rest of the senatorial districts. It was tied in with the IIEEN: As I understood Delegate Mizuha’s amendment, senatorial district proposed by Delegate Mau which has since it divided the island of Oahu into two senatorial districts, been brought up for reconsideration and defeated and there one to have four senators and the other to have two, so that fore I felt that it was in order to offer this new amendment. identical question hasn’t - - is not the same as what you have now. You don’t divide up the island of Oahu into two CHAIRMAN: Is there a second to that? districts now, left as one senatorial district with the same MIZUHA: I second that. number of senators. Therefore, we did not pass on this identical question at any time. SAKAKIHARA: I believe the amendment is not in order. The amendment offered by Delegate Jack H. Mizuha is just CHAIRMAN: That’s the Chalr’s interpretation. I think - what the amendment now proposed by Delegate Crossley of if Delegate Silva will examine the proposal, you’ll find that Kauai is which reads that Hawaii is entitled to six senators statement of Judge Heen is accurate. and Kauai four, leaving Oahu and Maui the same. The vote has been taken here on that amendment and that amendment APOLIONA: if my memory serves me correct, this was defeated. morning we approved tentatively the first sentence of Sec CHAIRMAN: The Chair ruled that the motion is in order. tion 2. Then a motion was made to approve tentatively the JUNE 28, 1950 • Afternoon Session 83 rest of Section 2. That being the case, Mr. Chairman, Dele CHAIRMAN: Do you accept that, Delegate Lee? Dele gate Silva’s motion is in order. gate Lee? I wish the delegates would take their seats. The CHAIRMAN: Are you ready for the question? All those Chair’s having difficulty getting your attention. Do you in favor signify by saying “aye.” accept that amendment? SAKAKIHARA: What’s the question, Mr. Chairman? LEE: Yes, Mr. Chairman. DELEGATE: Point of information; what is the question? CHAIRMAN: The question, then, is whether it is the sense of this Convention that the island of Oahu be not divi CHAIRMAN: The question is on the amend - - the Chair ded into senatorial districts. will state the amendment. It’s an oral amendment made by Delegate Crossley, page 2 of Committee Proposal No. 29, SAKAKIHARA: Is that the amendment? second line, strike out the word “seven” and insert the word CHAIRMAN: That’s the motion moved and seconded — “six” and the last line of Section 2, strike out “three” and moved by Delegate Lee and seconded by Delegate Heen. insert “four,” Am I correct, Delegate Crossley? CASTRO: I would amend that motion so that it is easier CROSSLEY: Yes. to deal with. That it is the sense of the Convention - - either SAKAKIHARA: I demand roll call. ask Delegate Heen to state it another way, either that the island be placed in one senatorial district or be placed in CHAIRMAN: Is roll call demanded? Madam Clerk, please two; “not,” that’s a negative statement and it might confuse call the roll. some of the delegates in voting. Ayes, 23. Noes, 37 (Akau, Apoliona, Ashford, Bryan, HEEN: I was waiting for someone in the majority because Castro, Cockett, Corbett, Doi, Fong, Gilliland, Hayes, Hol I am in the minority. I’m opposed to dividing Oahu into two royde, Ihara, Kawahara, King, Kido, Lai, Larsen, Luiz, senatorial districts - - Lyman, Nielsen, Ohrt, Okino, Porteus, Richards, Roberts, Sakai, Sakakihara, Silva, Smith, St. Sure, Tavares, White, CASTRO: Then I will make that amendment. Wist, Wo.olaway, Yamamoto, Yamauchi). Not voting, 3 HEEN: - - but in order to put that question definitely (Loper, Phillips, J. Trask). before the Convention, I had to do it that way, following my CHAIRMAN: The amendment is lost. stand upon that issue, if someone would want to put it the other way, it is just all right with me. In other words, it LEE: I have an amendment which has been circulated. might be put by those who favor the division to move that it CHAIRMAN: Has it been printed, Delegate Lee? is the sense of this committee that the island of Oahu be divided into two senatorial districts. LEE: Yes, printed and circulated, amending Section 2. All this does is make Oahu into one district so that the ten HOLROYDE: I think that issue is before this Committee senators from Oahu shall run at large over the entire island of the Whole now. Delegate Lee’s motion to amend and instead of the two districts, conforming with the rest of the change that would clarify the problem. other islands where the senators run county-wide. I move CHAIRMAN: Chair understands the question is perfectly for the adoption of the amendment. clear before the body, and that is whether or not we want Section 2. Senate; senatorial districts; number of Oahu divided into more than one senatorial district. That’s members. The Senate shall be composed of twenty-five the purport of the motion. members, who shall be elected by the qualified voters of SAKAKmARA: Would that dispose - - Mr. Chairman. the respective senatorial districts. The districts, and the number of senators to be elected from each, shall be KING: Mr. Chairman. as follows: CHAIRMAN: Delegate King. Who was it rose? First senatorial district — island of Hawaii, six; KING: Delegate, Mr. Chairman, I thought that Delegate Second senatorial district —the islands of Maui, Mob Salcakthara was seeking recognition. I yield to Delegate kai, Lanai and Kahoolawe, five; Sakakihara. Third senatorial district—island of Oahu, ten; Fourth senatorial district —the islands of Kauai and CHAIRMAN: Delegate Sakakthara. Niihau, four. SAKAKIHARA: Point of order, Mr. Chairman. There is DELEGATE: Roll call. an amendment before the Committee of the Whole offered by Delegate Lee which purports to reapportion the senatorial HEEN: I think in order to bring that issue directly before district — — the members of this committee, I might suggest and if that appeals to the members of the committee, change that to a LEE: Point of order, Mr. Chairman, point of order. motion, I would suggest that it is the sense of this committee CHAIRMAN: State your point. that the island of Oahu be not divided into two senatorial districts. LEE: That motion has been withdrawn in favor of the suggestion made by Delegate Heen, and the motion before LEE: That’s acceptable to the mover. the committee is whether Oahu shall be divided into one HEEN: I so move - - senatorial district or into two senatorial districts. DELEGATE: Second the motion. PORTEUS: Point of order, point of order, Mr. Chairman. HEEN: That is the sense of this committee that the is CHAIRMAN: State your point of order, Delegate Porteus. land of Oahu be not divided into two senatorial districts, If we PORTEUS: The motion that was pending before this com can clear that question, then I think we can proceed much mittee is to approve the balance of this section. There is now faster with the further consideration of Section 2. an entirely new motion not amending the motion that’s put, LEGISLATIVE POWERS AND FUNCTIONS 84 district, island of Oahu —nine,” or you could leave the nine that was now before us. In order to get into the discussion out. and present these other amendments, the motion was made, as I understood it this morning that we approve of the bal WOOLAWAY: Second the motion. ance of the section and on that basis these other amendments HEEN: Is not the question definitely before the Convention have been presented. Therefore it’s in order for anyone to as to whether we shall have one senatorial district on Oahu make any motion he wishes to as to any amendment as to the or more than one? Therefore can we leave the number of setup, and I think since the majority of the committee has senators out for the time being, because when we think of come forward with a specific proposal, the majority of the numbers then we get all confused, and there is so much committee desires to have anyone who wishes it differently difference of opinion as to how many should represent each present the amendment. A motion is now before the house senatorial district. Let’s get that other issue decided at and the other motion is not germane to it, it is not amend this time—whether Oahu is to be one district or more than atory to the other motion in any respect. one district. HEEN: Point of personal privilege. The idea was to PORTEUS: Did I understand that the word or figure nine facilitate further consideration of Section 2. I presented was used? Number nine. It seems to me that we tentatively it in that spirit. adopted the first sentence setting the number at 25, and Oahu’s KING: I think the point of order made by Delegate Porteus proportion of that would be ten rather than nine. Then if you is quite appropriate, quite in order. What’s before this Com reconsider - - if there’s any other action, it could be changed. mittee of the Whole now is the Section 2 of Committee Pro Bring it to ten. posal No. 29. Any amendments to that would be in order, HEEN: I’ll put in that figure ten, but I won’t be bound by but a motion to agree on a general principle is not pertinent that figure ten. I want the other issue settled first. to this particular section. Now, if Delegate Heen wishes to accomplish his purpose to have an expression of sentiment CHAIRMAN: I think that’s perfectly clear. We can vote regarding the division of Oahu, let’s vote on Section 2. The on that simple amendment using the figure in the committee passage of that section would immediately automatically proposal, then if there is any desire on the part of any of the divide Oahu into two senatorial districts, If it is voted down, delegates to change that figure, that can be done later. the business before the house then is to have one senatorial SHIMAMURA: Point of information, Mr. Chairman. What district. is the question before the house, Mr. Chairman? And let me say further that if Delegate Heen finds himself a little embarrassed to act as the chairman of the commktee CHAIRMAN: The question before the house is the amend because he’s in the monority, let’s suggest that the vice ment to Committee Proposal No. 29 which would create the chairman, who is in the majority, take the discussion on island of Oahu, the third senatorial district, with ten senators, Sections 2 and 3 until that’s out of the way and then we can one district. go on with the balance of the committee report. SHIMAMURA: Is that the only questiorr? ROBERTS: If Senator Heen would withdraw his motion CHAIRMAN: That is the only question. for the sense of the committee, I would move the amendment SHIMAMURA: Thank you. proposed by Senator Lee with two slight amendments: one, the first senatorial district, change the word “six” to “seven” NIELSEN: I am in favor of that as long as we’ve already and the word on the island of Kauai “four” to “three” so that taken the vote that on the island of Hawaii that there is to be the actual section before the committee, Section 2, remains only one senatorial district. So I think this is all right. identical except that the fourth and third senatorial districts CHAIRMAN: Any further discussion? will be combined in one. If I may have a second to that. LEE: I would like to speak in favor of the amendment. YAMAMOTO: I second the motion. It would seem to me that this Convention or committee at LEE: This amendment was prepared when Delegate Mau’ s the present time certainly would be accused of possible amendment had passed. Since the action has been recon gerrymandering when we vote for senators on the three sidered and it has failed, I am agreeable to the suggested other islands, Hawaii, Maui and Kauai, on an entire county amendment made by Delegate Roberts. basis while we are voting for the division of the senatorial district into two districts on Oahu. Let us be consistent. ChAIRMAN: Will you state your amendment again, Dele gate Roberts? ARASHIRO: Has Delegate Roberts’ amendment been accepted? ROBERTS: The amendment is the one proposed by Sena tor Lee, which is on the desk of every delegate, except that CHAIRMAN: It has been withdrawn and the question in the first senatorial district, the number “six” be changed that has been stated by the Chair has been substituted. to “seven,” and in the fourth senatorial district, the number ROBERTS: My motion was still pending but in the - - “four” be changed to “three.” So that the oaly issue on the floor is the question as to whether or not the island of Oahu CHAIRMAN: In the shuffle, I think it was withdrawn. should be one senatorial district. ROBERTS: - - for clarity I will be willing to withdraw it. HEEN: I would like to amend that motion so as not to be J. TRASK: For information, Mr. Chairman. What have involved in the question as to how many senators shall re we got before the floor at the present? present any senatorial district. In order to bring it to an CHAIRMAN: The question before the body at the present issue, I move, by way of an amendment, that the third sena time is the motion of Delegate Heen, seconded by Delegate torial district and the fourth senatorial district be deleted Lee, that the island of Oahu comprise one senatorial district from Section 2, together with the language attached to each and have ten senators. The number which is inserted is for of these senatorial districts and substitute in place of those conveninnce only and the movants feel free to change that two senatorial districts the following: “Third senatorial JUNE 28, 1950 • Afternoon Session 85 number at a later date. The purpose of the amendment is money as that without radio, without any buttons, and a few to get a vote on the simple question, whether or not you are newspaper ads which I have spoken of, and if he also has had going to divide the island of Oahu in two or more senatorial no pald workers—I had no paid workers, I paid for no cars, districts. I didn’t provide a lot of lunches, I had no luaus, I paid for no drinks. My campaign was not a splash campaign. It was PORTEUS: I’ve hesitated to speak on some of the various a campaign where some friends did a little talking for me, issues before the Convention because I felt that there were and I am very grateful to them. so many that were well qualified to speak on the subject and But I feel this, that at present, it is very difficult for I didn’t wish at the time to take the additional time. This is the new person coming into politics to hope to get the a matter, however, I think of some concern to all of us, those attention of the public and hope to get elected. Out of the that are in office, and those that are in the Convention and fourth district now, with six elected to the legislature, it’s the people, at least certainly on the island of Oahu. I say very difficult for the new man to come in and make himself that I favor the division of the island of Oahu into two sena known to so many voters. He has got to spend a lot of money torial districts, each district electing five senators. It seems or someone else has got to spend a lot of money for him. to me that has certain advantages. It has the advantage of Now, I believe that if the island is divided into two senatorial assuring to one part of the island five senators and to the districts, if the House is divided up into smaller districts, other part five, rather than a concentration of senators from that we will then give the newcomer in politics a chance to any particular area. I think, too, from the point of view of come in and get elected. those who come from the rural portions of Oahu that their Fm supposed to be an oldtimer from the fourth district. vote will loom larger in the total vote to be cast for five My fellow delegate from the fourth district has been in there senators with the divided island than their vote will be if the five terms as I have. There’s just the two of us. But I feel island remains undivided. that it is a healthy thing in politics to attract new able fresh There are those of us that have spent - - there are those faces into politics and have them campaign and put their delegates here who have spent many more years in politics ideas before the public. Even if they don’t get elected at than I have. I am a junior to many of those who come from, least they do this, they keep the oldtimers on their toes and or at least one of those who comes from the island of Kauai hustling. I think it makes for better government. I think and one from the island of Maui; junior, too, to at least one anything that will enable more young p~ople to run for office of the senators who is a delegate here, who has been in the on their own ability, on their own financing, that we are Senate rendering creditable service for many years. It has better off, rather than giving the advantage to those of us who been my experience, however, that running in the fourth are supposed to be oldtimers to hold the vote, if for no other district oaly, with some forty odd thousand voters, that with reason than that the 80,000 people or forty odd thousand out making much of a splash in the way of a political cam people haven’t heard of them before. paign that it cost me in excess of a thousand dollars to be If you will pardon the personal reference, in the last cam elected last time. I filed with the Secretary’s office an paign I had 25,000 votes in the fourth district in the House. expense of $997 for the primary—that’s a sworn statement, The lowest man had 20,000 votes and there are none of us a matter of record—and $400 in the general. So it cost me that admit that we know individually 20,000 people. We just $1400 to get elected, $1400 of my money, not someone else’s. don’t know them and the 20,000 people may have heard of Now, I hear it said that there are those who are fortunate us, but they don’t know us personally. And Fm for the smaller enough to be elected senators without spending a thousand district with lower cost and an opportunity for more people dollars. I don’t know how they do it. I only had one ad in who wish to render service to this Territory being able to the Star-Bulletin before the primary, seven inches long and come in and offer their services within their purses, within two columns wide, and it cost me $42. I used the same ad their capacity to foot the bill. It either is going to mean in the Advertiser, one insertion oaly, for another forty odd that the man has got to have a lot of money or it means that dollars. And then I ran a thank you ad after the primary in he has got to have someone come and finance him. Sorry each of those papers of the same size, because I wanted to to have taken so much time and I hope that you see the point say “thank you” in as big terms as I had asked for a vote. with which I’ve been trying to make. That’s all the political advertising, no half pages, no quarter pages, no more than one insertion and no full pages. I know CHAIRMAN: The Chair would like to ask the speaker it is the experience of the people on Oahu who have seen a question. This is for my own enlightenment. What is the those who have sought Senate office to have a full page ad. reason for districting the island of Oahu and not districting A full page ad in the Star-Bulletin runs $2.80 a column inch a much larger island, like Hawaii? I don’t quite understand and there are 168 column inches on a page, that is almost that. $490. They’ll give you a discount to take the full page of somewhere around - - it comes down to somewhere around PORTEUS: On Kauai, Mr. Chalrman - - $450 or $470. Now, many of the senators that are running DELEGATE: Hawali. don’t pay that themselves and I don’t blame them. But it is true that when you seek election and you seek CHAIRMAN: Island of Hawaii. to reach over 80,000 voters, it is necessary for the new man PORTEUS: Well, we’ll start with the islands and go to to spend money, either to spend it himself or to accept the Kauai. Kauai has between 7,500 to 8,000 voters and the cost backing of an individual who will finance him or have his is not very great. The island is of considerable size but it friends go out and collect money in order to put his cam is a belt road island with laterals going out from that. We’ll paign over the top. In the money that I spent, I had some go to Maui. Maui, of course, is divided over several of the cards printed. I had also some penny postals, some letters islands. On Hawaii, as I understand it, there’s a total vote printed. Just the cards for the fourth district in the primary of about 20,000 voters. The majority of the Hawaii delegation only cost me $350. felt that the senators elected from that island could run the Now, my point that I wish to make is this, that if some island as a whole and successfully do it. They can reach body who has been elected four times straight and seeking 20,000 voters without excessive cost. Twenty thousand his election the fifth time finds it necessary to spend as much voters is only fifty per cent of the number of voters that LEGISLATIVE POWERS AND FUNCTIONS 86 would be on one of these senatorial districts if we cut the is PORTEUS: I find it great pleasure to second the senator’s land of Oahu in half. We have over 80,000 voters with a motion. prospect of increase, and the expenses - - I checked as to CHAIRMAN: It has been moved and seconded that the what it would cost to just have an envelope addressed to committee rise and report progress and ask leave to sit send to these voters and was told that it would cost three again. All those in fator, signify by saying “aye.”• Contrary. cents, so it would cost you $2,400 to go to a commercial Carried. concern for addressing envelopes. And I think that there is a vast difference between having over 80,000 voters and JUNE 29, 1950 • Morning Session 20,000 voters. I don’t know, Mr. Chairman, whether this is being persuasive insofar as your point of view is concerned, CHAIRMAN: The Committee of the Whole please come but it is one of the bases on which I have made this decision to order. Delegates please take their seats. myself. HEEN: This statement about spending three cents on an HEEN: At this time I would like to submit an amendment envelope and circular addressed to 80,000 voters is far to Section 2 of Committee Proposal No. 29. In view of the fetched because you could do that by a postal card for one fact that yesterday this committee went on record for divid cent unless you want to be a little high toned and send it out ing Oahu into two senatorial districts, and in order to be - - in letter form. And furthermore, when you send out letters rather in order to conform to that decision, I have had re or postal cards to the voters, you’re not going to send them drafted the amendment attached to Standing Committee to all the voters because there are a lot of them you know Report No. 99 and that redraft of that amendment is on the who will not vote for you anyhow. I wouldn’t send one to desk of every delegate, I believe, at the present time. Delegate Porteus and ask him to vote for me because he is CHAIRMAN: Delegate Heen, will you please read the a rabid Republican and I wouldn’t send one to say friends caption of that redraft so all the delegates - - of mine because it is just wasting postage on friends, and I am not going to send two postal cards to man and wife. I’ll HEEN: The caption of the redraft is “Amendment to send only one to a man and his wife. So you could cut the Committee Proposal No. 29, substituted in place of amend cost down considerably. This idea of $2,400 is just an ex ment attached to Standing Committee Report No. 99.” Now aggeration. this amendment divides Oahu into two senatorial districts PORTEUS: May I say I have enjoyed receiving the cam and provides for a 21 membership in the Senate; and in the paign literature of the senator from Oahu, and from both division of Oahu into two senatorial districts, the number senators from Oahu that are in this convention hail, and my of senators for the third senatorial district is placed at five, wife has enjoyed receiving the same. On several occasions and that for the fourth senatorial district is placed at four. we were able to talk to the children and I had to promise them This is on account of the difference in population of regis to see if I couldn’t get for each one of them a letter also, be tered voters. There were 44,249 registered voters in the cause I got one and my wife got one, too. third senatorial district, which of course includes Waima nab, Lanikai and Kailua, and in the fourth senatorial dis HEEN: That was a mistake on the part of my clerk, and trict - - or rather which excludes Waimanalo, Lanikai and just a waste of postage there. He made a mistake. Kailua, and in the fourth senatorial district which includes APOLIONA: I want to also thank the honorable senator Walmanalo, Lanikai and Kailua, the population of registered from the fourth district for sending me that letter. voters there is 37,179. These figures were in connection with the Constitutional [Convention] election. Now I move A. TRASK: I am for dividing Oahu in two parts. In the for the adoption of this amendment. words of Kamehameha, if we divide Oahu in two parts, we’ll SECTION 2. Senate; senatorial districts; number of have equal opportunity for the big man, the small man, the members. The Senate shall be composed of twenty-one aged man and the ladies. Aloha. members, who shall be elected by the qualified voters of CHAIRMAN: Are you ready for the question? the respective senatorial districts. The districts, and the number of senators to be elected from each, shall be C. RICE: Did Mr. Porteus know that those papers were as follows: of general circulation? Just the same as it went all over First senatorial district: the island of Hawaii, five; the islands as in only one district. But as I would say from Second senatorial district: the islands of Maui, Mo the outside islands, maybe it would be a good idea to divide bokai, Lanai and Kahoolawe, four; Oahu. They wouldn’t stand so solid then. Third senatorial district: that portion of the island of CHAIRMAN: The question is on the motion of Delegate Oahu, lying east and south of Nuuanu Street and Pali Road Heen that the island of Oahu consist of one senatorial district and the upper ridge of the Koolau range from the Nuuanu having ten senators. Are you ready for the question? All Pali to Makapuu Point, five; those in favor, signify by saying “aye.” Contrary. The Fourth senatorial district: that portion of the Island motion is lost. of Oahu, lying west and north of the third senatorial dis trict, four; and ASHFORD: In consideration of the clerks, I move for a Fifth senatorial district: the islands of Kauai and brief recess. Niihau, three. CHAIRMAN: A recess is declared. DOI: Point of order. (RECESS) CHAIRMAN: State the point of order. DOL I believe yesterday we decided on the question of CHAIRMAN: The committee will come to order. the number of the members of the Senate. It was decided to HEEN: I now move that the committee rise, report be 25. This amendment here proposes 21. The question has been already settled. Also the question as to the number of progress and ask leave to sit again. JUNE 29, 1950 • Morning Session 87 senators from Hawaii has been already settled; also the was put and lost. The Chair still adheres to its ruling that number of senators from Kauai and Nithau has been settled; it was only tentative, and the present motion is in order. the only question as to number which hasn’t been settled is Oahu and Maui. LEE: Point of order. CHAIRMAN: The Chair will rule that there is only a CHAIRMAN: State your point of order. tentative agreement. The point of order is not well taken. LEE: The point of order that I’d like to make is that PORTEUS: May I understand what the ruling of the your ruling is absolutely correct; that the motion put by Chair is here? I can’t quite agree with this theory. When Delegate Arashiro went into the membership of the various you go down sentence by sentence and take a vote on it, it’s islands, which is different from the membership as pointed tentatively agreed subject to the adoption of the entire sec out by Delegate Been. tion, but once the vote is taken on a sentence or on some FONG: May I ask for an explanation of the word “tenta provision like that, it was the custom with the other Com tive”? Now as I understand it, the word “tentative” is only mittees of the Whole to require that a vote to reconsider used for the purpose of taking up the question sentence by be made in order to get at that particular subject. sentence or paragraph by paragraph, and that the whole BEEN: I think the Chair will recall, as weil as the thing will be voted upon as a whole afterwards. That’s the only meaning of “tentative” as far as lam concerned. Now delegates will recall, that at one point when we decided on the division of Oahu into two districts I put in the figure ten we, if the Chair means that - - if the word “tentative” means that we can vote on it and keep on voting on it, and keep on and that was supposed to be only tentative because I had in mind that I would later on submit a proposal advocating a voting on it, I think that is not the meaning of this assembly. membership of 21 members. CHAIRMAN: The Chair has stated what its position and ruling, still adheres to the ruling that there should be a full CHAIRMAN: The Chair believes the ruling is correct. and free debate on the constitution of the Senate and the This is one of the most important issues to be settled by House of Representatives. Thus far, that has not occurred this Convention. The Chair is not going to make any tecimi and the Chalr will maintaln its ruling. cal ruling that’s going to shut off a full and free debate on the constitution of the legislature. DELEGATE: What is before the committee? FONG: May I ask what we are voting for? Are we CHAIRMAN: Before the committee is the motion to voting just for fun in this assembly here? amend moved by Delegate Been and seconded by Delegate Trask. A. TRASK: I second the motion made by Delegate Heen. FONG: I just want to know what we’ve been voting for; DELEGATE: I’d like to hear from the proponent of the are we just voting for fun? We have Voted on the issue and motion. whether it’s tentative or whether it’s permanent, we have HEEN: In support of the amendment which has been voted on the issue and once we have voted on the issue, I submitted, I want to read the minority report in this con think that - - nection: LEE: Point of order. [Standing Committee Report No. 99] CHAIRMAN: State your point of order. We, the undersigned members of your Committee on LEE I think the Chair is absolutely correct in its Legislative Powers and Functions, do not concur with the ruling. The question of the 21 membership in the Senate majority report of ~he committee insofar as it establishes has not been voted upon. The only thing that has been voted a Senate of twenty-five members. upon was the 20 member Senate with the lieutenant governor A Senate of twenty-five members was chosen by the The proposal presently made by Senator Been at the present majority of the committee to assure that the precise time calls for a membership of 21 senators regardless of ratio of 40.0 per cent Oahu members to 60.0 per cent: the lieutenant governor. Is that correct, Senator Heen? neighbor island members would be retained. HEEN: That’s correct. That ratio is the mathematical result of the present senatorial apportionment, not the underlying reason for FONG: As I understand, Mr. Chairman, the question of it, and we are unable to discover any justification for its 21 has been voted upon. unequivocal retention. CHAIRMAN: Has not been voted upon. That exact ratio was not intended to become a sacred and inviolate standard. The framers of the Organic Act SAKAKIHARA: Point of order. stipulated that the Senate, as well as the House, was to CHAIRMAN: Delegate Sakakihara, state the point of be periodically reapportioned on the basis of citizen order. population. An apportionment, if made today on the basis of total population (citizen population statistics are not SAKAKIHARA: I have a memorandum before me that we available) would result in the following distribution of have voted on the 21 member Senate yesterday. That amend members: ment was proposed by Delegate Arashiro of Kauai and I (a) for a Senate of twenty-five members: First sena respectfully request that the Clerk, I refer to the minutes torial district, three; Second senatorial district, two; of the Clerk here, it will show that this Committee of the Third senatorial district, 18; Fourth senatorial Whole voted down overwhelmingly by voice vote Delegate district, two; and the ratio would be 72.0 per cent for Arashiro’s motion at yesterday’s session. Oahu, 28.0 per cent for theneighbor islands; (b) for a Senate of twenty-one members: First, three; CHAIRMAN: The Chair is in agreement, the Chair’s Second, two; Third, 15; Fourth, one; and the ratio would notes show that there was a motion by Delegate Arashiro, be 71.4 per cent for Oahu, 28.6 per cent for the neighbor seconded by Delegate Mizuha, on a 21 Senate. That motion islands. LEGISLATIVE POWERS AND FUNCTIONS 88 It may be seriously doubted that the use. of citizen assumption, basing this on some fair method whereby the population, if available, would have any material effect committee and this assembly has come to a conclusion that on the above apportionments. a bicameral legislature is necessary to attain this fair We accept the proposition that no single maj or island method. group should be in a position to control legislation for the Where there exists this bicameral legislature, there state. We are not advocating such control when we pro are many theories behind the setup of a bicameral legis pose a Senate membership of twenty-one. lature. To name the few they are as follows as I said yes The apportionment of members among the several terday from the statement submitted here by the delegate senatorial districts~ as proposed by the amendment (the from the second representative district where he stated that substitute amendment here) as a part of this minority we can have rejected fractions, included fractions, and report is the same as that contalned in Senate Concurrent Vinton method, geometric fractions, harmonic fractions, Resolution No. 21, adopted on third reading by the Tern and other methods. But whether we can pick any one of tonal Senate during the 1949 regular session. While the the above methods and say this is the one for the State of Senate was unable to concur in. a conference committee Hawali is, I presume, unacceptable to your delegates and report on that resolution, no better plan was proposed. the same applies if we were to choose a constitution from We agree with the apportionment attempted in 1949. any one of the 48 states in total and say this is the one for The ratio under such an apportionment is 42.9 per cent Hawaii. Now we cannot pick any one constitution in total or for Oahu members and 57.1 per cent for neighbor islands. any theory or method in forming the bicameral legislature. We believe this apportionment eminently fair to all con We are here to create, make or propose one that will fit and cerned. work here in the State of Hawaii. What I am driving at is this, that with all the information KELLERMAN: I should like to say that had this amend we have to date, and forgetting politics, we should work on ment, which divides the island of Oahu into two districts, the theory of just falr and uncontrollable legislature by any been attached to the original minority report I also would one or two counties. This is the $64 question. What is just have been one of the signers of that minority report. I and fair in trying to set up a fair method of representation don’t want to over-labor the question of expenses, but I in our legislative branch? If we are going to base the rep cannot but feel that when you have attained a number ade resentation on population alone, then I would say we should quate to do the job—and no one has held out the point that it recommend a unicameral legislature; but if we are going takes 25 senators rather than 21 to do the required work on to base our representation on [inaudible) for the purpose of a high standard —whenever you increase beyond those needed, the above state a fair one, then a check and balance method you necessarily of course increase expenses all down the of a bicameral legislature is our choice. Let us agree, and line, but you also diminish to that degree of increase the there is no question that one house will be on the basis of prestige of belonging to that body. It is far more important population but the other on the basis of a just and falr me to be one of 21 than one of 25 and as I feel strongly those thod where the check and balance is not oaly a word but who favor the large Senate will also probably favor the something that is in practice. very large House—the two go together in thinking, in psycho Now to me, whatever method you use, I do not think that logy, and in results —the same question is even more perti when you set up a Senate for the State of Hawaii that can be nent when it comes to the 51 House as against the smaller controlled by two counties it’s right, and especially when House. one house is already controlled by one county. Under the I cannot but feel that we are going overboard on this enlargement. To increase from 15 to 25 in the Senate is a present proposal, what assurance can be given to the coun sixty-six and two-thirds per cent increase, to increase ties of Maui and Kauai if Oahu and Hawaii should have a from a 30 House to a 51 House is almost as large, in fact a different type of people sitting in the future legislature than little larger. There has been no evidence that a tremendous the kind that we had in the past that we can look back with some pride? Every legislation that comes to the Senate will increase is necessary to do the work required on a high standard, and the greater you dilute the prestige and the be disposed of just the way Oahu and Hawaii want, since the responsibility the greater chance you have of not getting ten Oahu and seven Hawaii senators is far more than the necessary majority of the total 25, and so will the same into either of your two bodies the most capable people be apply to a coalition of Oahu and Maui of ten ahd five. The cause the reward of prestige which is probably the greatest Hawaii delegation may be assuming at present, or the Oahu reward for good public service is not held out in the same delegation for that matter may be assuming that a coalition degree. between Oahu and Hawaii, but it might turn out the other I feel that we should consider this very seriously. It way. For a coalition of Oahu and Maui can really hurt the isn’t a matter of politics. We are writing a constitution. Big Island which really needs and are so far back in their We should be keeping in mind the best governors whom we public improvements and projects. can get, the best legislators whom we can get to serve the public at a recognizedly amount of salary which is in no What I am trying to get is this, leaving the House aside sense a real compensation. It is merely a token. I would —which I don’t think there exists much difference in the ask all the body to consider these points very seriously. opinion for the matter in which we are going about in setting up the House and so there’s no question or argument in the AR.ASHIRO: I am thinking in line of having something to reapportionment of the House —however, I do not want to see protect you and all of us no matter what changes take place a Senate to be controlled by any two counties but, being in in our political setup and other changes that will have any the minority, I thought that the fair proposal and one that relation to our future legislature. For the matter of record, can be accepted by the majority was the one I offered yes I wish to make a statement to the assembly that I only wish terday. That is a 21 member Senate with six from Hawaii, that we did consider this matter from a layman’s point of four from Maui, eight from Oahu, and three from Kauai, view and judge it accordingly. If politics is the theory that but dividing the Big Island into two senatorial districts and we are basing on this issue of reapportionment or appor Oahu into two senatorial districts. In this setup no two tionment, then I need not go further. But I do not think that senatorial districts will control the Senate and the number we are basing this on the theory of politics. We are, to my JUNE 29, 1950 • Morning Session 89 will be a very workable one with the minimum cost of op the matter. Delegate Kellerman’s statement was a states erations. man-like approach to the problem but I didn’t hear very But if the assembly still prefers a 25 member Senate many people listening. that is still acceptable to me, except that I still want to see As a member of this committee, this legislative commit that the counties having six or more in a 25 member Senate tee, I’d like to state as to how the figure 21-51 was reached. to be divided so we base our balance and control of power How was it reached when after various statements were in no two senatorial districts. But if you on the majority made by the members of the committee that the member will lean a little to the minority then I would prefer you ship was unwieldy, was impractical and highly over expen making it that no two counties will control the Senate. sive, statements made by the members who voted for this From my experience in the legislature I can say this, proposal in the majority. Then how can they reconcile their what I have said here today is something I wish you dele view points? Their reconciliation it seems to me comes gates will give serious thought and consideration because I back - - well, it’s a matter of compromise. Certalnly, do not think that in my thinking — if my thinking should be politics is a matter of compromise. Nobody will question followed or carried out —that Oahu, Maui, Hawaii or Kauai that. But also balanced against the principle of compromise can be mistreated and neither one or two counties can abuse is the principle of what is best for the people and not what their powers, and that is the balance of power I want to is best for our particular political aspirations or the poli remain in the majority county. But under the proposed pro tical benefit of each particular island. posal, as tentatively adopted, there is a grave danger as I I know that there are members of the outside islands pointed out previously. who feel that since they are yielding to Oahu the lower To clarify this, may I briefly explain it. Under my plan chamber, that they should control the upper chamber. The the present setup of Oahu will by far have the majority in majority of them, in fact I believe all members of the com the House. That means they can stop any outside island mittee, were willing to go along with that principle, but not legislation in the House, but in the Senate this power of Qahu content with that the idea was to preserve the principle or cannot be offset becanse it will require more than two coun the ratio of 60-40 control. And so in order to preserve that ties to stop it, which is of course very hard. This is to point ratio of 60-40 control you had to reach the figure of 25. out to the Oahu delegation that their legislation cannot be That was the only way you could preserve that ratio, easily killed in the Senate. So I see no fear there as far as Then there was an able member of the committee who the Oahu delegation is concerned. As far as the other is realized that difficulty and also realized the expensiveness lands are concerned, we will need the help of Oahu because of the entire legislature which would mean a 51 House—we’ve the snag and obstacle for the outside islands will be in the got to consider a 51 House, unwieldy, admitted by the majo House. rity or a great number of the majority in the report that So, you see, there is a check and balance there where no came up, was produced by the majority of the committee— counties can monopolize the legislature. For monopoly in this member proposed a 20 House, with a lieutenant gov our democracy is a dangerous thing no matter where it is ernor - - Senate. Your ratio would be preserved. The and what kind it is because monopoly means the loss of outside islands’ ratio would be preserved. And with a 20 control of the power of the maj ority. The control in any House you’d have a far better chance of having a House faction—it may be in big business, big politics, big union— which is not unwieldy - - not a House which is not unwieldy I say this that there will be some abusement, for that is because you have a 51 House. You’ve got to consider, both human nature and you cannot help that. of them, you can’t only consider the Senate. You have a 25 You are here laying the basic law of the State of Hawaii member Senate, there’s no question you’ve got to go up in that will have much to do with our future legislation and the air to 51. Admittedly unwieldy. Are we representing especially the kind of taxation system we will have; and to the people of the entire territory or aren’t we when we go me when you are not just legislators, but writing a consti up to a figure of 51, admittedly unwieldy? tution and so doing can whole heartedly push something It would seem to me therefore that the better part of down the throat of the minority, then I say they are the kind wisdom is to bring down the figure and the only way you will of actions that breathe foreign ideology. By finding out the bring down the figure of the House is to bring down the real faults of our system where in one breath [we] say it is figure of the Senate. And the only way you’ll be able to a democracy and on the same breath have a monopoly. In bring down the figure of the Senate and to preserve that business, we call business monopoly or an industrial mono ratio is to pass a proposal which you refused to pass yes poly or a labor monopoly, but in politics we call it a dicta terday. It is not too late to reconsider. You will preserve torship or some sort of a totalitarian government with a your 60-40 ratio and you have a man presiding as lieutenant democratic front. governor, the lieutenant governor presiding over the Senate. So in conclusion, please, I humbly plead to you delegates, And it seems to me that the rest of this committee should let us work towards preserving this democracy by prevent understand what is involved in this entire picture. ing this means of giving or creating any sort of a monopoly or giving any group or any faction a chance of monopolizing. CHAIRMAN: The Chalr would like to ask the chairman of the committee a question. What was the basis for the CHAIRMAN: Before proceeding with the debate, I think division of the senatorial representation on the island of this is a serious question. A lot of the delegates are paying Oahu? I note that your amendment would give five to the no attention, reading newspapers. I suggest we get down to fourth district and four to the fifth district. What is the business on this. basis of that division? LEE: It seems to me that it’s very important to keep an HEEN: The third senatorial district, which is the present open mind on this question. I know that long before we had fourth representative district plus Waimanalo, Lanikai and discussions on this matter, various delegates of this Con Kailua, has a total population of registered voters of 44,249 vention have gone around arguing for their plan and prac as against 37,179 in the other district. tically, you might call it, doing a snow job, and a lot of the other delegates probably have been committed by the argu BRYAN: I’d like to perhaps clarify a few points as ments of which they have heard only one side concerning brought up by the last speaker on the floor regarding why LEGISLATIVE POWERS AND FUNCTIONS 90 the number 25 was picked. I was in the majority of the be continuously confronted with the problem of raising suf committee that came out with the report requesting a ficient moneys for the expenses of government. Under a Senate of 25 members. Now he reviewed the thing and 25 man Senate we will have an increase of ten senators in practically answered his own question. It was a case of our State legislature. The increase of ten senators may not preserving the ratio of 60-40. Now it’s been stated that that materially increase the expenses of our legislative sessions, can be done with a 20 member Senate and it can be done with even though they might come annually. The increase may be a 25 member Senate. I believe that the question of the 20 only $200,000 or $300,000 or half a million because of the member Senate was fairly well settled yesterday on the fact that the federal government won’t be paying the salaries basis that you were putting the controlling power of the of our legislators. But when you have ten more senators in Senate, in other words the deciding vote in the case of a the State legislature, every senator who goes back to his tie, in the hands of the executive department, and I think constituents must return home and stand re—election from that was the basis that many people refused to go along with time to time and tell them what improvements he has se that proposal yesterday. The whole history of this commit cured for his constituents in the State legislature, and sen tee action shows that the only thing that a majority of the ators, being what they are, are not going to divide the credit committee could agree upon - - for some capital improvements. We had that problem on the island of Kauai when two senators wrangled as who got the CHAIRMAN: Pardon me, Delegate Bryan, did you say airport for the County of Kauai. Every senator will have his executive department? pet project; it may be a library, it might be a flood control, BRYAN: I said executive department. it might be a new kindergarten, it might be a new school gymnasium and so forth. But the answer from some of those CHAIRMAN: You explain that a minute? who have written debt limitations into our Constitution say, “Well, you have a constitutional provision you can’t go over BRYAN: Yes, on the basis - - I was talking to the ratio 60 million or 15 per cent so we’re not worried about what of 60-40. The ratio of 60-40 can be maintained with a 20 the ten additional senators will do.” member Senate or with a 25 member Senate, either one, not with a 21 member Senate. And the reason that we picked 25 But there is the crux of the warning right now. Those was when you pick 20 you give the deciding vote, which is ten additional senators, if they cannot raise the money for actually the chairman’s vote in case of a tie, which is the capital improvements by floating bonds, will go to your tax deciding vote on important or controversial issues, to the structure; and industry will be taxed more than any other lieutenant governor who would be a member of the executive group here in the Territory, proportionately, to get the department. Does that clarify that? revenues for those improvements that ten additional sena When the figure 21 came up on the basis presented by tors would like to have for their constituents on the outside Delegate Heen this morning, the committee could not get islands; and that is fact because we see that in the federal together on it because it destroyed the 60-40 ratio, as his government today. Every senator is seeking to railroad proposal this morning destroyed the 60-40 ratio. In every into that public improvement or flood control - - army pro vote that was taken the only thing that a majority of the gram for flood control and rehabilitation, their pet projects; committee could agree on—the minutes I am quite sure will and we have seen continuously appropriations by the Federal prove this—as far as the Senate is concerned was 25. I Congress for improvements, capital improvements that are hope that answers the question as to why we ended up with far out of line, and as a result there has been a deficit in 25 so many times in the committee. our federal budget since the end of the war. A bigger deficit than the war even brought about in our federal budget. MIZUHA: I don’t see how the legislative branch will be If you think that ten additional senators are just going to taking over some of the executive authority by having the stand by and not make appropriations or get the money for lieutenant governor cast a vote in case of a tie. That has those appropriations because of debt limitations, I believe always been done in the United States Senate. I think it’s you are all wrong because they will raise the income tax, a principle that has been firmly established. It’s a weak they will raise your gross income tax, they will raise all excuse for a 25 man Senate. the taxes to get the money to get their pet projects through I would like at this time again to reiterate the federal so that they can tell the people back home, “I got you this principle upon which those people who wrote the Federal at our State legislature.” And it’s a warning I would like to Constitution decided to have equal representation in the sound now because if industry raises a howl, if our tax Senate and representation according to population in the structure goes awry, and increased taxes face the industries House of Representatives of our Federal Congress. In the of the territory, they may as well say that they gave us that proposal as submitted by the committee giving us that 25 Constitution in a State legislature [sic] that permitted that, man Senate for the Territory of Hawaii, they have discarded and they cannot howl afterwards. that principle and engaged in a sort of exchange which has given an increase to some of the outlying islands far above HOLROYDE: It seems to me that, at the moment, we’re those of other outlying islands. By giving Hawaii seven, debating a choice between 21 and 25 which is a difference of they have increased the senatorial representation of the four men. We’re not debating 15 as against 25. Now I think island of Hawaii 75 per cent and gave the island of Kauai it’s been obvious from the debate and the problem that this just a 50 per cent increase. Committee of the Whole has had as to the problem that your However, whatever the composition is with reference to committee of the legislative division had wrestling with this the 21 man Senate as proposed by Delegate Heen at the problem. We wanted to be fair to the representatives from present time, I must speak in favor of a smaller Senate and the other islands and as the previous speaker said, we tried I’m speaking in favor of it, sounding a warning to all of you to maintain that ratio. We reconsidered our action on these delegates here, especially those of you who are engaged in figures of 25 and 51 on three different occasions and tried industry here in the Territory of Hawaii and who will be desperately to find a suitable compromise of some kind and engaged in industry in the future State of Hawaii. And it is that was the only one that your committee, the majority of a warning which I give for the record because as the State your committee, could reach. of Hawaii takes its place in the sisterhood of states we will JUNE 29, 1950 • Morning Session 91 Now you’ve heard a lot of discussion on the cost of the the amendment offered by Delegate Heen, I’d like to refer to legislature, about how much is this increase in the legisla-. the Manual of the - - on State Constitutional Provisions. On ture going to cost you? It’s going to cost you just as much page 11 of that manual is listed the states of the Union, the as you allow your legislators to spend. Now you’ve had a numbers of senators and representatives. If the committee legislature of 45 members for the past many years and you will bear with me, I’ll have to take my glasses off to read look at the records that are on your desk of the increased that. I’m only going to read the states that have comparable cost of that legislature maintaining the status quo in number population to Hawaii. Arizona, 19 senators, 58 representa of members. I maintain that if the people of the territory tives. Arizona is a state that has a slightly larger population want their legislature to operate economically and do their than Hawaii. For a long time during the time I was in Con job on that basis that, with the amount of money spent right gress it had only one representative in Congress. I believe now for your legislature, you can almost finance a legisla— it has since gained one more. We are to have two represen tion that the committee has proposed as their proposal. tatives, if the provisions of H.R. 49 are carried out. We go MAU: I would like to ask the proponent of this amendment down to Delaware, small state with a population less than whether it would be agreeable to him to have Oahu be a ours, it has 17 senators and 35 members. We go down to little bit more than fair. It will take a licking by having Idaho which has only two representatives, 44 senators, and only eight senators, giving the lieutenant governor a right 59 representatives. We go down to the next state of compa to vote in case of a tie. In other words, you would have a rable population, Montana. Montana has two representatives 20 member Senate. The third senatorial district instead in Congress, has a population slightly greater than Hawaii. of having five, would have four. The fourth senatorial dis CHAIRMAN: Delegate King, you might give us the page trict will remain at four. Then amend the portion covering in the Manual so the delegates - - the third senatorial district, striking out the words “Pali Road and upper ridge of Koolau Range” and inserting in lieu KING: It’spagell. thereof the words of the Organic Act “a line drawn in exten CHAIRMAN: I think the delegates are worth - - this is sion thereof,” that would put Kailua and Waimanalo in the material worth listening to. fourth. if that is agreeable to the proponent of the measure, maybe we can get somewhere, particularly insofar as the KING: It’s page 11 of the Manual. I announced it I thought Oahu members are concerned. If they want to be what I cail at the beginning, and if the delegates will turn to page 11 you overly fair, beyond the 60-40 representation, we take less. look at Arizona, Delaware, Iowa, Idaho, and I was down to Possibly the outside islands may agree. I’m making that Montana. Montana has 56 senators and 90 representatives. just as,a suggestion. Nevada with a population of about one-fourth of our population, KING: I make a point of order against that suggestion: less than a fourth, has 17 senators and 41 representatives. Before the proponent of the amendment - - Get down to New Mexico with a comparable population, 24 senators and 49 representatives. Go down to North Dakota, CHAIRMAN: Delegate Mau has subsided, Delegate King. a large state, only two representatives, population only Is it still open to make a point of order now that he’s left slightly greater than ours; North Dakota, 49 senators, 113 the floor? representatives. Turn on the next page, page 12. Utah, a KING: I make a point of order against his suggestion. large state with a population not very much greater than ours, 23 senators, 60 representatives. Vermont, with a population CHAIRMAN: Very well. of 350,000 people, one of the old states, of course—not one of KING: That it is simply a rehash of what we decided the original 13 colonies but came in immediately after the yesterday. As a matter of fact, I am convinced that a point Revolutionary War—Vermont has 30 senators and 246 repre of order justly lies against this proposed amendment. But sentatives. Get down to the last state, Wyoming, the state the Chair has ruled that it’s open for discussion and to be that is represented in the United States Congress by that discussed, so I’m not making that point of order. Now, I’d very distinguished senator, Senator O’Mahoney, Wyoming like to be recognized to speak in opposition to the amend had in the 1940 census 350,000 people, its population has ment offered by the chairman of the committee on behalf of now shrunk to 285,000 people. State of Wyoming now has himself and two other members of the committee. 27 senators and 56 representatives. Let’s forget this busi ness about increasing the Senate to an exorbitant number. MAU: Point of order on the statement made by the speaker. A. TRASK: Mr. President. CHAIRMAN: State your point of order. KING: I do not yield unless it is for a question. MAU: There’s a difference in the proposal offered yes A. TRASK: Yes, it is for a question. terday. CHAIRMAN: Does the delegate yield? CHAIRMAN: State your point of order, Delegate Mau. KING: Yes. MAU: The point is this. Yesterday’s proposal on 21 did CHAIRMAN: State your question. not reduce Oahu’s representation in the Senate. This sug gestion made does reduce Oahu’s representation in the A. TRASK: Mr. President, are you - - by those figures Senate. which you have read - - CHAIRMAN: Proceed, Delegate King. CHAIRMAN: Will you please address the Chair? KING: The amendment offered by Delegate Wirtz was A. TRASK: Mr. Chairman, do you gentlemen - - Presi exactly along the lines of his proposal of eight senators dent mean that he is in favor of senatorial and representative from Oahu, and the amendment offered by Delegate Chuck houses based on population? Mau was exactly along the lines of restoring Waimanalo and Kailua to the fourth district. Now, in speaking against CHAIRMAN: Will you answer, Delegate King? LEGISLATIVE POWERS AND FUNCTIONS 92 KING: That is not the point at issue. It is merely the agreement in that committee. I was an ex officio member size of the Senate I am discussing at this time. It has been without a vote and if I’d realized what a tough nut it was repeatedly said that we are going to increase the cost of going to be, I would have assigned myself to that committee government tremendously, and a comparison was made be with a vote. But I sat in their many hearings and over and tween 15 senators and 25 senators. That’s not the issue. over again every possible combination of the House and The isàue is 21 senators or 25, or at the least 20 or 25. The Senate was submitted to that group of 15 delegates, repre move to retain the membership of the Senate down to 15 has senting this Convention, coming from all of the islands of been lost. It has been the consensus of the committee that this group, but they could not come to any other agreement 15 is too small and it must be increased. Even the proponents except 25. That was the least common denominator over of this amendment and the proponents of the other amendment which there was a majority in favor and a minority in use 20 or 25 and not 15. So let’s discard 15 as the figure, opposition. On many occasions, it was a nine to three vote that isn’t in the picture at all. The picture is 20 or 25, or in favor, ten to four vote in favor, but in every other possible 21 or 25, that’s the only question before this Committee of combination including this one here that is being proposed the Whole. by Delegate Heen, there was no majority in the Committee Now, when we get down to cost, it has also been brought on Legislative Powers and Functions. up by Delegate Sakakihara that the per capita cost of the Now I feel that after all, we can’t sit here as a Committee legislature is less today than it has been in the past. The of the Whole with 63 members and go over all the ground dollar has shrunk in buying value, our population has in- that’s been gone over before. One or two other remarks creased threefold, the appropriation made by the legislature made here today merely repeated the remarks that were at every session has doubled twentyfold. So that the cost made yesterday, and it seems to me that we should come to is not an important feature in this discussion. a conclusion, vote on the hubject, down or up, and then go Now, this amendment proposes to allocate nine delegates on to the next order of business. I am not going to move for previous question becanse I do feel that is uncalled for, to Oahu, divided five and four, and that of course, would penalize the fifth district. Now, the filth district with the but, nevertheless, there is no question that the argument lies only between, shall we have a Senate of 20, or 21, or 25. addition of Waimanalo and Kailua has a population equal to The pending amendment says “21,” so let’s vote on that. the fourth district. It has a registration of voters somewhat less than the fourth district but actually the population of CHAIRMAN: Delegate King, I have a question, if you’d the fifth district is equal to that of the fourth district under inform the Chair. I noticed in the table that you read from, the provisions that were adopted in the committee report in the New Jersey Senate is 21. Now, that’s the most recent cluding Waimanalo and Kailua into the fifth district. We are constitutional revision. Did that revision change the mem not using population as a figure in the Senate distribution, bership in the Senate, do you happen to know? we’re using an arbitrary figure because it has been general ly agreed that the theory of the balance of powers should be KING: I do not know and I do not care what the states of maintained; that Oahu should have the control of the lower large population do. You can turn to California which has house because of its greater population but that Oahu should seven million people, it has a Senate of only 40. You can concede to the other islands the control of the Senate. turn to New York. I have been one of the advocates of reapportionment for CHAIRMAN: Can any member of the committee advise many years. As a matter of fact, I introduced a bill in Con the Chair of that fact? gress in 1939 or 1940 when the legislature of Hawaii agreed upon a basis of reapportionment that does, I will say frankly, KING: Well, let me finish my reply, the Chair asked me follow the line of this amendment of 29 senators and 41 a question. I said that I did not know and I did not care that representatives. At that time I predicated my advocacy of New York with 15 million people has only a Senate of 56, SO reapportionment on three or four premises. First, that there’s no comparison between large populations. Now I’m Oahu was entitled to a majority in the House of Representa comparing Hawaii with the states of comparable populations tives. No one questions that and that majority should be a of 250,000, 285,000, 350,000, 525,000. If we are satisfied fairly substantial one, but I added to that premise, second, to base our representation on the standards adopted by that the other islands should not have their representation California, Pennsylvania and New York, we’d have a Senate in the House decreased, that Hawaii, Maui and Kauai should of two members and a House of five. not have less than they now have. It is true that they are not entitled to what they have now under the terms of the Organic WIRTZ: I just want to clear up one possible misappre Act. We have not obeyed the mandate of the Organic Act. hension that might be left with this committee in regard to We have not reapportioned in accordance with citizen popu per capita costs of the legislature. It is true that the dele lation by election districts. If we had done so Oahu today gate from Hawaii did submit to the committee certain figures would have 21 representatives out of 30 and would have nine based upon the relative inflation of the dollar, and as I recall senators out of 15, but it hasn’t been done and that’s water the discussion of the committee, it was pointed out that like over the dam. I never did favor it. But let me repeat the all comparable tables of that nature, it depended where you two premises on which I based my championship or advocacy started with the dollar and that those figures were rejected of reapportionment. First, that Oahu should have a majority by the committee. As one of the delegates who is a business in the lower house, a substantial majority, and that the other man pointed out, they just didn’t make sense. islands should not have any of their representation reduced. A. TRASK: I think as the President has indicated, there Second, in the Senate, that the other islands should have a are as many ideas on the subject as there are delegates here majority but that Oahu should have its representation sub in this Convention. What I am concerned about is what stantially increased in that body and that Oahu should be theory can this Convention pose to the people as being the divided into two senatorial districts and that it should be basis of whatever agreement we reach. How are we going divided into smaller representative districts. to justify to the people the basis and theory upon which this Now, with those four premises I sat in, and I advocated legislature is to be apportioned. I would like to know, as that and submitted memorandums to the Committee on Leg vice chairman of the Committee on Submission and Inf or- islative Powers and Functions. We tried to come to an JUNE 29, 1950 • Morning Session 93 mation, which is the official organ of this Convention to sell of the committee in trying to get this information out each the idea, I’d like to know. week to the people, I am not a bit concerned with going back Now this is my thinking about the subject. Let us read to the people and saying that what has been decided on this what the Organic Act says in Section 55: floor is the majority opinion of the people you elected to The legislature at its first regular session alter the represent you in writing a constitution. It’s just as simple census enumeration shall be ascertained, and from time as that. I’m not going to try and justify my vote on any issue to time thereafter, shall reapportion the membership in or anyone’s vote. I’m simply going to say, “There are lots the Senate and House of Representatives among the sena of things that were controversial in here; there are lots of torial and representative districts on the basis of popu things in this Constitution with which I don’t agree personally lation in each of said districts who are citizens of the but they’re in there because a majority of the people wanted Territory. them. Now, it’s up to you people.” I resent the innuendoes remarks that constantly go on Now, that’s a plain and simple statement. The question when I try to put across a point. first to be considered is, are we to depart from that princi pie of reapportionment in the House and the Senate after a C. RICE: I move we take a recess. census enumeration, which hasn’t been done and which fault CHAIRMAN: Any second to that motion? lies at the very foundation of the Republican party? Let’s find out if this principle is to be departed from. It has been WIRTZ: I second that motion. departed from in the last 50 years. Now having been de CHAIRMAN: All in favor. Contrary. parted from, what principle therefore are we proceeding on? Now to me that is basic. How are we going to justify any kind of reapportionment and as fair-minded men and women (RECESS) concerned about trying to give a proper answer to a proper question, what is the theory upon which we are proceeding? CHAIRMAN: The Committee of the Whole will come to Obviously the theory is this: we shall reapportion the House order. Delegates take their seats please. Ladies and Gentle but we shall not reapportion the Senate. That, to my mind, men of the Convention, just before the recess, Delegate is the basic thinking unless this Convention admits of selfish Crossley was speaking and he was obstructed in his address ness and personal gain. There is no other question but that ing the Convention by some remarks that came from some the thinking basically, if it is to be justified at all, is on the place. I don’t think that’s conducive to earnest and sincere principle that we shall reapportion the House but the Senate and effective debate. I think we ought to get rid of that sort shall remain the same. To me 21, 25, 20 and the various of thing. The Chair will recognize Delegate Crossley in case questions of whether or not the lieutenant governor or not he has something further to say. stays in as a president pro—temporare of the Senate - - if we do not apportion the Senate according to population we’re just CROSSLEY: I was trying to make the point that had been juggling it to our own provincial aims. raised by the delegate from the fifth district that we might It seems to me therefore, that the most logical thing is have a very difficult time in explaining some of the actions. to maintain the Senate at 15 and the House according to The point that I wanted to make, the point that I think is so population, on the basis of population of the districts who important for all of us to remember is that there may be are citizens of the Territory. It seems to be altogether many controversial issues embodied in the Constitution. I that that is the theory. It’s the history of the legislature. don’t think that you can pick out any one of them and say that It’s the history of the thinking here, unless we admit of that is going to be it. There will be some people who will other ideas than that of honesty. So therefore, 15 having fully agree with some of the actions, there’ll be many people been voted down—I wonder how we’re going to justify 15 who will disagree with some of the actions. You’re going to having been voted down when we go on the basis of population sell the Constitution as a whole. That will be one of the jobs for the House. Are we apparently to abandon and say to the of the Committee on Submission and Information. Therefore, people, “Even though we have a principle in the Organic I think it’s erroneous to state that on one issue alone-whether Act we disregard it altogether, it is not binding.” And yet, you may agree or disagree with the actioa finally taken—I on the other hand, we have, put into this Constitution many think the Constitution is going to be presented to the people provisions, and we say, “Ah, it is in the Organic Act and on the basis that it is the majority opinion in each of the therefore we must follow it.” I submit therefore, that as issues that has been settled, that that be decided as the article far as any proper thinking can be an excuse, the thinking to go into the Constitution, and that is the reason that it’s is obviously this: reapportion the House, but do not re there. In some cases, it may have been that they were unani apportion the Senate. But the 15 is killed so the only other mous decisions, in more cases it will be that they were majo figure, and I am supporting as the second to Delegate Heen’s rity decisions and that is how democracy works. That was motion, if we are to justify this thing at all, we can only justi the point that I wanted to make. fy it by voting for 21. I find that my sense of humor is not as good as it was 60 some odd days ago and for that I’m sorry because I appreciate CHAIRMAN: The clerks have been busily engaged for the a sense of humor as much as anyone and I don’t like to be last hour. If there’s no objection the Chair will declare a short, but I was so serious and intent yesterday and today on short recess. the two subjects on which I was talking that I did resent inter DELEGATE: I second the motion. ference. CROSSLEY: What I have to say will only take 30 seconds. KAGE: I’d like to make my remarks toward the statement made by Delegate King in reference to the ten comparable CHAIRMAN: Very well, proceed. states as far as Hawaii is concerned. We all speak about money and we say an expense is nothing, but money is a neces CROSSLEY: I’d like to say, as chairman of the Commit sary evil in our civilization and no matter what you do you tee on Submission and Information, and as one of the com just got to consider money. Most of us are unwilling to work mittee who has done a great deal of work with other members for love. LEGISLATIVE POWERS AND FUNCTIONS 94 cHAIRMAN: Delegate Kage, I think if you’ll hold your I realize, too, that we should have more help. Today I microphone a little closer you can be heard better. got a report from the Full Employment Committee and we have 26,288 individuals who were helped in the month of KAGE: Now, getting back to the ten states that were re May at a cost of $672,360. And you know, fellow delegates ferred by Delegate King: Arizona, Delaware, Idaho, Montana, and Mr. Chairman, that with 8,000 more graduates from our Nevada, New Mexico, North Dakota, Utah, Vermont and University, there’s quite a responsibility that goes with it Wyoming. Of those ten states, Nevada pays the highest sala all, and I think that if you have these larger houses they will ries to the legislators. Nevada pays for a two-year period shirk their responsibility. $900.00. According to the proposal of the Committee on On the Aeronautical Commission we have one delegate Legislative Powers and Funôtions, they are allowing a from the County of Hawaii, the County of Maui and the County salary of $2,500 for each session. For the general session of Kauai that always show up. We have six representatives $1,500; for a budget session, $1,000. The question that is from the island of Oahu and we can hardly ever get them going around and around and around in my mind is these ten together. The others realize their responsibility in these states that were named. Is it not possible that they would airports on the other islands, and they always are meeting like to have a smaller Senate than the Senate that they have when they’re called. It’s the same way with our school commission and other commissions, but the whole govern today? I would also like to make another reference to a very interesting book published by the - - Report of the Subcom ment - - I think that the Territory is in a critical situation mittee of the State Constitutional Convention of the Hawali on account of this unemployment and I think that two counties Statehood Commission. I notice that there is a report on re are floundering, the County of Hawaii and the County of Maui, apportionment and I notice also that the chairman of the on account of their finances. Kauai is pretty well off, so is Legislative Powers and Functions, Mr. Heen, is the chair Oahu. I think you can bring a few people together much man. And I also found out that the other members of the easier than you can bring a lot, and I think that you won’t committee are Thomas E. Waddoups, Charles Kauhane, have the responsibility that goes with the office if you have Rhoda Lewis and Judge Wirtz. I think this material here bigger ones. I’d rather have 15, but that’s out. Looks like deserves consideration. Thank you. you probably will kill 21, then they have 25, by jove, you have 51 House! I don’t think you can sell that kind of a House and SILVA: I’m just wondering whether it’s timely for us to Senate to the territory. That’s my firm belief, that the discuss the costs. If it is, then it is proper and fitting that people when they realize what it means will think it’s ridi at this time that we fix the salaries of the legislators. culous. What did those fellows do in those 63 days up there Otherwise we’re just wasting a lot of time about - - talking and then finally work out a legislature of this kind. I think about the costs and what the various states pay their senators it’s ridiculous! and legislators, unless we agree that in discussing the num ber we shall also discuss what their salaries shall be, if that YAMAMOTO: The legislature is possibly the most vital is going to be relevant to the subj ect. Otherwise we should branch of representative democratic government. settle the number first and then come to the cost. For us to bring the question of cost now in comparisons for the CHAIRMAN: Excuse me. Will the delegate speak a little various states, in my opinion is not a proper one ualess the closer to the microphone; I don’t think the delegates can Convention decides that we should talk about both of them hear you. at the same time. YAMAMOTQ Here today, we are debating on the most CHAIRMAN: You wish to make that in form of a motion, vital and important factor of this Convention—reapportion Delegate Silva? The Chair thinks there’s a good deal of ment —whether we are giving equitable or justifiable repre relevancy to what you have to say there. sentation to all sections or districts throughout the new State of Hawali. SILVA: I just want to point that out that I just hope that To give a slight phase of how other states of the Union they save their breath in talking about the cost if that is not base their representation, let me explain the system carried the intent of this Committee of the Whole. If we’re going to by the great state of California, which state that is represent discuss the number that is to be decided upon, whether it’s ed by the Honorable Governor Warren, who is one of the 21, 15 or 25, then let’s stick to that issue. rhen later on greatest proponents for statehood for Hawaii, and the state when we come to costs, it’s a different subject. that is closest to Hawaii. H. RICE: I am perturbed about the size of the Senate Under the present California “Federal Plan” of represen because I think it will have a bearing on the size & the House, tation, the 80 assembly districts—to us the House of Repre and I quite agree with Delegate Kawakami that when you di sentatives—are apportioned on the basis of population, while lute the milk it might not be as good, but I think that when the 40 senatorial districts are formed on a county basis, you dilute these bodies you won’t have the same responsi with the restriction that there may not be more than one district per county nor over three counties per district. bilities. I am fearful that with these large Senates you’ll It is the contention that such procedure is necessary to have a 51 House which I will surely oppose as well, and I protect the rural interests of the state which play an im think if we could get down to 21-41 or 43, it would be far portant part in the economic structure. better. In Delegate King’s analysis of the. different states, they I like to back up the past statements by quoting our Presi dent of the United States, the Honorable President Harry S. are not comparable to Hawaii because they have - - take the Truman, the strong advocator of equal rights to all. case of Vermont. I think all the legislators go home every On May 6th of this year President Truman urged the night. They don’t have the same situation and the same Senate to “strengthen the security of our nation” by granting responsibilities really, that go here. And as I say it’s made statehood to Alaska and Hawaii. a big difference and I am hoping that we have statehood soon “I know of few better ways in which we can demonstrate because I don’t think there’s anywhere in any state where you to the world oUr deep faith in democracy and the principle have to pay tax to go from one county to the other, the way of sell-government,” the President added. you do here. And the sooner we get statehood the better. JUNE 29, 1950 • Morning Session 95 Mr. Truman niacle this plea in a letter to Chairman Joseph C. O’Mahoney (D. Wyo.) of the Senate Interior Com CHAIRMAN: Would you answer that, Delegate Heen? mittee. Noting the contention of opposition forces that HEEN: It is based partly on geography and partly on admission of the two territories would give them the same population in terms of registered voters. It is almost in the representation in the Senate as the most populous states, same proportion that exists now of 40 per cent for the island the President said, “This argument is not only entirely of Oahu and 60 per cent for the outlying islands. It’s only a without merit, but also directly attacks a basic tenet of the small difference in percentage here under this plan of 21 constitutional system under which this nation has grown and membership in the Senate. prospered. Without the provision for equal representation DOL Will the movant also yield to another question, and in the Senate for all states, both great and small, regardless that is, whether he feels that the 40-60 per cent ratio should of population, there probably would have been no United also be retained in the House. Of course, reversed. States. There is no justification for denying statehood to Alaska and Hawaii on the basis of an issue which was re HEEN: I do not think so. I don’t think that was the solved by the Constitutional Convention in 1787.” standard that was fixed by the drafters of the Organic Act Don’t we consider the above statement by our great because in the matter of reapportionment of both the Senate President, Harry S. Truman, of great significance? and the House of Representatives, they set a different pattern. Let us consider other states of our great union. Ten Those two houses were to be apportioned on the basis of citi states, Alabama, California, Florida, Idaho, Iowa, Maryland, zen population. Montana, New Jersey, South Carolina, and Texas, provide in their constitutions that each county be limited in repre DOl: It is my conclusion that all these bases used here sentation to one senator. are simply arbitrary. Therefore, honorable delegates, I plead to your good HEEN: That is correct, a little arbitrary in creating judgment to give this matter of apportionment serious a little difference in the proportion. consideration on the merits of principles on which our nation is based on—to preserve certain rights of the minority. I MIZUHj~: May I ask the delegate from the first district reiterate again and plea to you all delegates with a clear a question? conscience of mind to weigh the merits of equality. This CHAIRMAN: You may. Constitution must be approved by Congress and the President of the United States after ratified by the people of Hawaii. MIZUHA: Isn’t the proportion that now exists in the pro I like to leave with you, fellow honorable delegates, a posal of ten to Oahu, seven to Hawaii, five to Maui and three thought. We want statehood, so let us be fair to all so that to Kauai, arbitrary also? Congress and the President of the United States will grant CHAIRMAN: You have any views on that, Delegate Doi? us that wish of approving our Constitution. Thank you. DOl: Yes, I do, Mr. Chairman, I think it is arbitrary. MIZUHA: May I ask the previous speaker a question? ROBERTS: I ‘haven’t spoken on the general question of CHAIRMAN: Address the question to the Chair~ please. the Senate. I’d like to make a few observations which I MIZUHA: Mr. Chairman, does the speaker desire equal think we ought to keep in mind on the question that is being representation from all counties in our future State Senate? voted on. The purpose of the Senate and the House, I think, has been adequately discussed. I think that there is a YAMAMOTcJ Yes. need as we see it, to increase the representation in the MIZUHA: Then I believe that the delegate is in a position Senate in order to provide a little more representation and to reconsider our action on the previous apportionment of to prevent the body from acting in such a capacity that it senators because there is an equal representation at the does not give broad representation and provides too much present time and I believe he voted for the proportion of veto power over the House. I favor some increase in the representation as it exists on the ten, seven, five, three Senate. Whether that number is 21 or 25 is not material basis. to me. It seems to me that the problem raised on the question CHAIRMJ~N: I think that’s correct. of cost which I discussed in part yesterday can be divided in CORBETT: I’d like to speak in favor of the amendment two sections. The first is the cost of the representatives offered. I believe it’s the first debate we’ve had when some themselves, whether they be House or in the Senate, and the one hasn’t mentioned the Organic Act and its virtues and how second is the cost of maintaining the operation. The figures well we’ve done for the last 50 years. Of course that’s be which I have indicated, that the cost - - average total cost cause we’re all in agreement on the need of reapportionment. expenditure per legislative day in the Territory of Hawaii But I do feel we should recognize the strides that the Terri apart from the cost - - expenses of salaries and travel, runs tory has made under the apportionment made by the Organic in excess of $7,000 per day. That’s excessive. I don’t be Act under the small Senate and the small House. The Terri lieve, however, there’s much we can do about it in the Con tory of Hawaii is recognized everywhere as being advanced, vention. That problem, it seems to me, is the problem particularly along social lines. Now this is something that which the people have got to face. If the costs can be re we Should not forget. duced, they ought to be, and the pressures ought to be ex erted, but not in the Convention. DOL I would like to ask the movant of this amendment The question we have is whether the 21 Senate or 25 a question. Senate meets the need. It seems to me that that basically, CHAIRMAN: Address your question to the Chair, please. however, is not the problem which has caused most concern on the floor. The question is how that 21 or 25 is to be DOl: Yes. I understand the House is apportioned on the apportioned, that’s the big issue and it seems to me that we basis of population. I would like to know just exactly what ought to face that issue, and in writing something into our the movant based his senatorial distribution of members, just exactly what did he base it on? Constitution as we’re planning to do now, we ought to be extremely careful. I personally have been very happy that LEGISLATIVE POWERS AND FUNCTIONS 96 Hawaii, I will support it even though I personally favor dis we’ve had two full days of discussion even though at times, tribution of the island of Hawaii as one and Oahu as one. perhaps, a little too many overtones in terms of volume. I think it was a good discussion, I think it raised the basic question. But we ought to focus on the problem and the DOWSON: Representation, I believe, should keep up problem to me is the problem as to how you apportion that with the population increase to a certain extent. The popu 21 or that 25. That’s the real problem. Not the problem lation has trebled since the Senate was set at 15. The as to whether it’s 21 or 25 because the total cost and the amount of milk has trebled, the amount of cream has trebled. total savings that you can make on the salaries are small. We need not have fear for the lack of good candidates for a You can’t keep the other costs down by any provision in the Senate of 21 or 25. I am in favor of an increase from 15 to Constitution. That you’ve got to leave outside. 21; however, I am more in favor of an increase to 25. I’d like therefore to address myself to what should consti tute a proper basis for the distribution in the Senate. I have HEEN: If there are no other delegates who would like to a general feeling that the senators ought to be basically re speak, perhaps I should take the opportunity at this time to presentative of broader areas than the members of the House. close the debate. Now in addressing myself to what Delegate They ought to view the overall problems in terms of the King said in his remark comparing Hawaii with Arizona, larger aspects of the entire community, the entire territory. Arizona has 19 senators and in 1940 Arizona had a population Therefore, the larger the unit from which the senators of 499,000, and in 1940 Hawaii had a population of 423,000 come, to me the better. I, therefore, supported yesterday and in 1950 Hawaii has a population of 493,000. Now take that the island of Oahu and the island of Hawaii each be one the State of Idaho, that has a Senate of 44 members. In unit so far as senatorial representation is concerned. How 1940, it had a population of 524,000. Montana in 1940 had ever, there seems to be a strong feeling on the floor, and the a population of 559,000. Now this is the one that should have majority has voted that Oahu ought to be divided into two been pointed out to the members of the Convention. New districts, two senatorial districts. The issue there it seems Jersey has a Senate of 21 members and in 1940 New Jersey to me is quite clear. The issue is in two districts, the issue had a population of 4,160,000, and before the revision of the is what is to happen to Lanikai, Waimanalo and Kailua. And Constitution of the State of New Jersey in 1947, prior to that it seems to me that we ought to face those issues- The same time, New Jersey had a Senate of 21 members. At the time thing it seems to me applies to East Hawaii and West Hawaii. of the revision, the State of New Jersey had the opportunity If there’s good logic in having two districts in Oahu, there is to increase the membership of its Senate from 21 to some good logic for having it in Hawaii. And even though I did higher figure, but it did not do that, but left it at the same not support two districts for Hawaii, if you’re going to have number of 21. two in Oahu, I think you can support as well logically and Now one comparison that was made by Delegate King was reasonably two for the island of Hawaii. the one in connection with the State of Vermont. In 1940, It seems to me therefore that we ought to have the Vermont had a population of 359,000 and the membership of problems clear before us as to basis. All figures that we the Senate in Vermont is 30 and the membership in the House pick, whether it be 15 or 21 or 20 or 19 or 25, are all of Representatives is 246. obviously that is altogether out basically arbitrary, there’s nothing scientific about it. of line, therefore it should not be used as a basis of com It seems to me therefore that once we agree on the general parison; and in addition to that, in Vermont they pay the figure, let’s face the real issues in terms of the distribution. members of the legislature there $375.00 per annum or It seems to me that we in the Constitution ought not to con $750.00 for two years. Therefore, it shouldn’t be used as sider the political question as primary, but consider the a basis for comparison at all. It is altogether out of line. overall problems of the Constitution as primary. Now you take the State of Washington, they pay the members As you recall, a few days ago we took up the question of the legislature there $5.00 a day for a 60 day session. of revision and amendments and in that section we inserted Now in closing, I would like to quote the words of Alexan a proviso which prevents any constitutional amendment, der Hamilton discussing the membership of an assembly. which prevents any reapportionment of the Senate from now One observation, however, I must be permitted to add until hereafter except under very unusual and difficult cir on this subject as claiming, in my judgment, a very se cumstances. It seems to me, therefore, that the problem rious attention. It is, that in all legislative assemblies of apportionment of the Senate ought to be on logical and the greater the number composing them may be, the reasonably sound ground. I did not support that proviso in fewer will be the men who will in fact direct their pro the section on revision and amendments. It doesn’t make ceedings. In the first place, the more numerous an good sense to me to tie the hands of any future constitutional assembly may be, of whatever characters composed, conventions. There may be some question as to whether you the greater is known to be the ascendancy of passion can do it, but if you write it into the Constitution you say in over reason. In the next place, the larger the number, fact that you do believe in it. Having written it in by majori the greater will be the proportion of members of limited ty vote, it seems to me that we’ve got to give it earnest and information and of weak capacities. Now, it is precisely serious consideration to the basic issue of distribution of on characters of this description that the eloquence and our 21 or 25 senators, and I therefore urge that the problems address of the few are known to act with all their force. be focused. Let’s have a degree of logic and sense in our In the ancient republics, where the whole body of the distribution even though we recognize that basically the people assembled in person, a single orator, or an artful number that we choose and the distribution is arbitrary. statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. CHAIRMAN: Delegate Roberts, are you suggesting that On the same principle, the more multitudinous a repre we amend the present motion to attack your problem logic sentative assembly may be rendered, the more it will ally, as you described it? partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cuaning, and ROBERTS~ I haven’t made any motion, Mr. Chairman. passion the slave of sophistry and declamation. [THE I just wanted the issue focused on the floor and if a proposal FEDERALIST] is made for reconsideration on the question of East and West JUNE 29, 1950 • Morning Session 97 KING: Since the chairman of the committee represents ROBERTS: A point of information. The figure that you the minority opinion, I think he should not necessarily have gave for Oahu is 22, isn’t it? Not two? the last word. CHAIRIvIAN: It was 22, Delegate Roberts, it was 22. CHAIRMAN: He can have the last word on his amend ment, Delegate King. DOl: That is only a suggestion I wanted to mention be fore we voted on this Been amendment. KING: I should like to answer the comparison he made with my statement. I took all of the states that had a com ARA SHIRO: Is the last delegate who spoke proposing to parable population. The eastern states such as Vermont, offer that as an amendment after this amendment is voted New Hampshire and Connecticut, they have a House of Rep down? resentatives based on the old township principle of New CHAIRMAN: He offered that as a suggestion. He’d like England. They all have very large numbers, three hundred to have it before the body before the vote is taken. and so forth and so on. Delegate Roberts told me that New Hampshire recently had a constitutional convention instructed A. TRASK: Point of order. to revise and reduce the House of Representatives. They DOl: If it is in order to amend the amendment on the had a House of Representatives of over 400. After several floor at this time - - is it in order to do so? days of deliberation, they reduced it from 450 to 399. But I’ll grant you that the New England states are not a com A. TRASK: Point of order. parison. Delegate Heen neglected to make a comparison CHAIRMAN: State your point of order, Delegate Trask. with Wyoming. Wyoming had a population in 1940 of 350,000 in round numbers. It has lost population and now A. TRASK: I think the Chair should rule out the pre has a population of about 285,000. It has a Senate of 27 and sumption of fact made by the delegate from Kauai that this a House of 56 and so the comparison can be made. The is going to be voted down. only point I was trying to make is that states of comparable DOl: Point of information. Is it in order at this time to population have in many cases as large or larger legislatures amend with the suggestion, the amendment of Delegate than we are proposing to establish for the State of Hawaii. Heen’s? Furthermore, in reply to the quotation that Delegate Heen read that came from Alexander Hamilton, the great federal CHAIRMAN: I believe it is although - - Delegate Been. ist who didn’t believe in democracy anyhow, he wanted to DOl: If that is the case, I would like to so move. make George Washington the king of the United States. DELEGATE: I second the motion. ROBERTS: May I add a footnote, a very brief footnote to Mr. Chairman King’s statement? The finance committee PORTEUS: I wonder whether since we have debated at such length the scheme presented by my fellow delegate report of the New Hampshire convention to which he has from the fourth district, whether or not we might not vote reference reported out the payroll for the cost of the con vention. That payroll provided for the services at $3.00 per on that and then turn to the suggestion from Hawaii, because if his suggestion as an amendment is put before us, it will day for the 451 delegates to the convention for a total cost of $5,400. require, I think, rather extended debate. If it passes, that’s fine; but i.f it does lose, then we’ll be up against the pro CHAIRMAN: For the purposes of the record - - Delegate position of debating the Been amendment all over again. Hayes. So if we could dispose of, either accept or reject the Heen HAYES: May I just give the delegates a little information amendment and then turn to the amendment that is being that I just read from our legislative book here —that Manual, offered by the gentleman from Hawaii, it might expedite that they have already 95 patterns on reapportionment, so matters. this will be the hundredth pattern. CHAIRMAN: The speaker agrees that the amendment is in order? CHAIRMAN: The Chair would like to state its position on - - Does Delegate Doi wish to speak? Delegate Doi is PORTEUS: Yes. recognized. CHAIRMAN: Delegate Doi is recognized. DOl: I too am not in favor of a large numbered House DOL~ For the sake of orderly procedure and the saving and Senate, but as Delegate Roberts has very adequately of time, I wish to withdraw my motion and reserve right to stated the question is distribution, a fair distribution, and submit it later. if a fair distribution is not meted out then probably we’ll have to have a large Senate and House. In line with that few LEE: I was just going to suggest to Delegate Doi that it remarks, I would like to suggest that some of the members might be a good idea to offer your amendment at this time on this floor have worked out a plan which we believe is so that the discussion could go immediately into that point fair in distribution and is also reasonable in the number as and it’s perfectly proper to propose an amendment to any to the Senate as well as the House. And specifically this is motion and I believe the delegate from the fourth district the recommendation. The Senate according to this idea will was merely making a suggestion. be composed of 19 members. It will be distributed on this BEEN: I don’t think it’s in order to consider any amend basis: Oahu, seven; Hawaii, five; Maui, four; and Kauai, ments along the lines advocated by Delegate Doi from Hawaii three. The House will be composed of 37 members and that at this time. If an amendment of that type is to be offered 37 will be divided into the following numbers: Oahu, 22; it should be complete in itself. That requires the setting Hawaii, seven; Maui, five; and Kauai, three. I believe the up of different districts as representative districts through numbers in both houses are reasonably small and adequate out the whole State of Hawaii and also would require the enough to do a good and efficient job. It also gives fair setting up of senatorial districts. Now the Committee of representation to the people of the respective areas in the the Whole has already gone on record, perhaps permanently state. or tentatively, that Oahu is to be divided into two districts; LEGISLATIVE POWERS AND FUNCTIONS 98 therefore, in order to have a complete amendment before CHAIRMAN: We are now voting on the amendment offered the Committee of the Whole, that amendment both as to the by Delegate Heen. House and to the Senate should be complete. Ayes, 20. Noes, 42 (Akau, Apoliona, Bryan, Castro, Cockett, Crossley, Doi, Dowson, Fong, Fukushima, Gilliland, OKINO: I realize that it is not in order at this time to Hayes, Holroyde, Ihara, Kam, Kanemaru, Kauhane, Kido, consider the number of representatives to our state legis King, Kometani, Lal, Luiz, Lyman, Mau, Noda, Ohrt, Okino, lature but I feel that the determination of the number of Phillips, Porteus, Richards, Roberts, Sakal, Sakakthara, senators for the State of Hawaii is dependent considerably Shimamura, Silva, Smith, St. Sure, Tavares, White, Woola upon the numbers in the House. way, Yamamoto, Yamauchi.) Not Voting, 1 (Wist). CHAIRMAN: The Chair agrees with the speaker. I think CHAIRMAN: The amendment is lost. the two things must be considered together. DOL I wish to move to amend Section 2 of Article 29 by KING: The only question before the committee is the changing the members of the Senate to 19, and as to distri amendment proposed by Delegate Been, and unless there’s bution of senatorial districts, Hawali, five; Maui, four; further .discussion on it, I suggest the Chair call for a vote Kauai, three; and Oahu, seven, with this understanding, that on it. the question of whether Oahu is to be split into two sena ARASHIRO: I think the amendment made by the delegate torial districts could be decided later, the island of Oahu, seven. - from Hawaii is in order and then if that amendment is voted down, then we vote on the amendment. ARASHIRO: I second that motion. WOOLAWAY: Point of order. The delegate from Hawaii PORTEUS: if the maker of the amendment tends to has withdrawn his motion. leave for a later time the question of the division of Oahu, I would like to object to that in that that matter was voted CHAIRMAN: There’s been no second. on more than once yesterday. It was reconsidered and then voted on again and under the rules no question may be twice ROBERTS: I have a point of information, that if the Heen reconsidered unless there is the suspension of the rules, amendment is adopted, that will be subject to amendment and the rules can only be suspended on a 32 vote. rm not subsequently? objecting to his presentation of the 19, but I am trying to CHAIRMAN: That is correct as the Chair understands stay out of the fight which I think has already been settled. it. Before voting on this, the Chair would like to make known DOl: I believe the chairman ruled this morning that all its position. I have listened with great attention and careful that we have agreed to this morning have been tentative. attention—I’m not a politician—to the debate and I’m not persuaded. CHAIRMAN: That’s what the Chair sald. KING: Point of order. PORTEUS: I know that was what the Chair sald, but at the time Delegate Heen presented his amendment, at that CHAIRMAN: State the point of order time yesterday he left the number blank that he was going to place on Oahu. I was one who stood and asked whether KING: When I was on the Chalr and started to make or not he couldn’t follow the form of the committee proposal some comment, I thiak it was Delegate Anthony who rose leaving the words “ten for Oahu” and the chairman said that to call me to order. he would be willing to do that provided however, that he had CHAIRMAN: Since then—the point is not well taken—I the right to come back at a later time with a further amend have examined the rules on the Committee of the Whole, ment on the question with respect to the number on Oahu, the chairman is entitled to participate in debate. and I think that was accepted by the assembly. LEE: Mr. Chairman, I believe that your remark to the CHAIRMAN: Delegate Porteus, there’s a motion. Are President was when the Convention was convened. This is you speaking to the motion? the Committee of the Whole. PORTEUS: I am speaking on the point of order with CHAIRMAN: That’s correct. That’s the difference. I respect to the ruling of the Chair as to whether or not—I have not been persuaded from anything that’s been said on believe it was perfectly proper under the understanding of the floor of this House, that we should depart from a 15 yesterday—to have Delegate Heen’s motion considered. I man Senate to a 25 man Senate. I agree that it should be do object however to a consideration of this other question increased. I agree with the basic principle that the outside which was voted on, reconsidered and voted on again. if islands should control the Senate, but I can not see any real the chalrman of the Committee of the Whole will turn to his basis for the figure of 25. The Clerk will call the roll. rules on this matter, the rules are very specific. DELEGATE: I demand a roll call. CHAIRMAN: Pardon me, I think what’s before the house is the motion of Delegate Doi. He’s not asking to reconsider CHAIRMAN: Roll call demanded? anything as the Chair understands it. DELEGATE: Roll call demanded. PORTEUS: He is making an amendment that would leave Oahu in its entirety again, and that matter has been debated SILVA: I was under the impression that the words used and settled more than once. In that respect the amendment by the chairman was “Clerk call the roll,” which is the is out of order. if he wishes to divide it among Oahu, then chairman’s privilege. it is in order. CHAIRMAN: I wanted to be in order, Delegate Silva. I CHAIRMAN: I think the point is well taken, Delegate Dol. didn’t know that I had that right. ROBERTS: I’d like to speak to that ruling. The rule is AKAU: Is it the amendment we are voting on or is it the quite clear, it seems to me. if a motion to reconsider is proposal? JUNE 29, 1950 • Afternoon Session 99 lost, it cannot be repeated except by consent. The question some members of the body that that meant tentatively and that we took yesterday in reconsideration was won, and it was open to change without a vote to reconsider at any therefore it goes back to the original motion, and therefore time. It is the view of others as a practical matter, as the it can be reconsidered. The purpose of the motion for re history of past debates have shown, once we have passed consideration is that it shall not be acted on twice in the something tentatively it has been final and not tentative. same manner, but that question is not now before us, Mr. Now my suggestion to resolve the difficulty is to take a vote Chairman. rhe question I think can come up if and when on Section 2 which will clear the decks. If that’s not satis that problem is faced by us, not now. factory, the Chair will entertain any other motion. CHAIRMAN: I’d like to speak to Delegate Roberts. If MAU: I believe that the Chair’s understanding of the you will examine Rule No. 39, Delegate Roberts, that rule practice and the agreement of this Convention in adopting provides, “When a motion for reconsideration is decided, any provisions or proposals tentatively was that anyone that decision shall not be reconsidered, and no question could make any amendments to it without moving for re shall be reconsidered twice.” It does not use the words consideration. We had agreed to that. That was a definite “lost,” as far as I can see. Any error in that? understanding. MIZUHA: Under that rule, as mentioned by the chair CHAIRMAN: Delegate Mau, that was the Chair’s under man, it can be reconsidered twice and it was reconsidered standing, but there is a disagreement. only once and if the question does arise again on the floor for another reconsideration, it can be again reconsidered MAU: I think the Chair is right. because our rules allow any problem to be reconsidered CHAIRMAN: Delegate Mau, will you please yield a twice. moment? There are other delegates who entertain a dli SILVA: Mr. Chairman. I’ve been standing here for an ferent view, and it seems to me we can resolve this question hour, Mr. Chairman. in the manner suggested by the Chair. CHAIRMAN: Delegate Silva, I’m sorry that you’ve been J. TRASK: I so move, Mr. Chairman, at this particular standing there for so long. time that any question that a motion is made on, any question that is seconded and approved tentatively, be subject to SILVA: Thank you. Thank you. I move we recess until 1:30 o’clock p.m. amendment at any time. SILVA: May I point this out to this Convention, especially H. RICE: Second the motion. we who are sitting in Committee of the Whole, that all CHAIRMAN: All in favor signify by saying “aye.” action no matter what it is taken in the Committee of the Whole is only tentatively any way, and that the final action (RECESS) on any measure will have to be taken when we sit in Con vention rather than in Committee of the Whole, and when we say “tentatively” that is the definite meaning of that word. In the Committee of the Whole you cannot take final Afternoon Session action on any measure and that’s why the word “tentative” was used, no final action is taken in the Committee of the CHAIRMAN: The committee will come to order. Will Whole. We all know that and those that don’t know should the delegates please take their seats. At the conclusion of know. the recess this morning, we were discussing a proposed WOOLAWAY: Point of information. Did you recognize amendment by Delegate Doi. That, I understand, has been my second to the amendment? printed and is circulated. The Chair would like to make this suggestion, if it meets with the approval of the body. CHAIRMAN: I recognize you now. Do you second? It seems to the Chair that there have been five or six votes Second the motion? on the combination as to the constitution of the Senate and the present difficulty seems to center about whether or not WOOLAWAY: I do. the action taken yesterday in regard to a Senate of 25 was CHAIRMAN~ It has been moved and seconded that we tentative or final. It is the suggestion of the Chairman that adopt Section 2. Is there any discussion? Not tentatively. we at this point move for the adoption of Section 2 which We adopt Section 2. will place squarely before the body a Senate of 25. Those members who are against a Senate of 25 can exercise their HE EN: I move that if we adopt Section 2 that we do so right to vote on that question. Then later, whatever number tentatively. is determined upon or whatever combination is determined WIRTZ: I second the motion. upon, can be voted upon by an appropriate amendment. if that meets with the approval of the body, the Chair would KiNG: It’s my recollection that when we were considering be glad to entertain such a motion. various measures in the Committee of the Whole, we adopted one section or one paragraph of a section or one sentence of SAKAKIHARA: I now move the adoption of Section 2. a section tentatively and then we moved on to the next para graph, sentence, or section. We did not continue to discuss WOOLAWAY: I’ll second that motion. possible amendments to the material that had been adopted DOL~ Do I understand that all the issues we’ve already tentatively. As Delegate Silva has pointed out, all action to passed on are declared as not having been decided, that we the Committee of the Whole are tentative, but it was in an are starting all anew again? effort to get along with the rest of the legislation pending before us, the proposal that we were discussing, to say all CHAIRMAN: The Chair made no such statement. The right, we’ll adopt Section 1 tentatively and now consider difficulty that we’re in is in regard to the technical use of Section 2 and the committee in charge would make a pro the language “tentatively agreed upon.” It was the view of forma motion, “I move for the adoption of Section 2.” It LEGISLATIVE POWERS AND FUNCTIONS 100 particular sentence they wished of Section 2. Isn’t that my would be seconded and that would be subject to amendment. understanding, Mr. Chairman? We have adopted, by the minutes which I have just read, the first sentence of Section 2 tentatively, and we should now be discussing the remainder of that section with no further KING: I certainly did not hear the chairman make any amendments to be considered to the first sentence of Section such ruling. Speaking to the point of order raised by Dele 2 unless by a motion to reconsider, which has to carry. gate Bryan, I should like to read what happened yesterday. That has been the procedure right along to the best of my Delegate Arashiro had an amendment pending. It was recollection. Now, if we’re going to sit here and talk about voted upon and the motion was lost. The Chair then further amendments to the first line, first sentence of stated that the question before the committee was the Section 2 and all the variations from 15 to 25, we’ll have a first sentence of Section 2 of Committee Proposal No. 29. profusion of amendments that will not mean anything. Delegate Heen stated that as he understood, whatever Twenty has been voted down; 21 has been voted down; 25 action is taken on that particular sentence, it will be has been approved. Now we have a new amendment that’s tentative. going to propose 19 and its only basis in reason is that it The Chair stated that that was his understanding. has a different apportionment, and it raises another point that Delegate Heen thereupon stated that he would like to has already been settled by the Committee of the Whole and have that definitely understood because during this pro that is the division of Oahu into two senatorial districts. I ceeding he and Senator Lee will file a minority report feel that we are wasting our time and I certainly do urge for a 21 membership in the Senate, but not apportioned that the Convention - - Committee of the Whole vote on at along the lines stated by Delegate Arashiro. least on the first sentence of Section 2 at this time. The Chair thereupon stated that the question was the CHAIRMAN: That’s what is before the house now. adoption of the first sentence of Section 2, reading “The Senate shall be composed of 25 members who shall be DOL~ Point of information. Do I gather that the motion elected by the qualified voters of the respective sena on the floor at this moment is just to the first sentence of torial districts,” and he thereupon put the motion, which Section 2 or is it to the whole section, Section 2? motion was carried. SAKAKIHARA: May I answer that question? I am the And then in the next action: movant of that motion to adopt the whole of Section 2, not the first sentence of Section 2. Delegate King suggested that it would be proper for the committee to make a pro forma motion that the second DOl: What is the ruling of the Chair? sentence be tentatively approved. CHAIRMAN: That was not the Chair’s understanding of Delegate Sakakihara thereupon moved that the com the motion. It was the first sentence but if you’ll bear with mittee approve the remaining portion of Section 2. me a minute I’ll check with the Clerk. The Chair rules Seconded by Delegate Bryan. that it was the first sentence of Section 2. It was the motion And that motion is pending. That is the only motion that’s of Delegate Sakakihara; however, we will permit the delegate pending other than the courtesy extended to the chairman of to amend his motion if he so desires. the committee to bring up his minority report this morning. SAKAKIHARA: In order to straighten the record, I move That was debated exhaustively, amendments were suggested that we adopt Section 2 in toto. to it, it was defeated by a roll call vote before we rose in recess, and now I may say, Mr. Chairman, that the only WOOLAWAY: I’ll second that motion. motion pending before this Committee of the Whole is the DOl: I move to amend Section 2. In the first line in motion to approve the balance of Section 2 and that the first Section 2 changing the word “twenty-five” to “twenty-one” sentence of Section 2 has already been approved insofar as members. On the next page, first senatorial district from the Committee of the Whole can approve any provision. “seven” to “six.” DOl: Mr. Chairman, what is the ruling of the Chair? BRYAN: I would like to raise a point of order before we go further. CHAIRMAN: I didn’t hear, Delegate Doi. What was your question? CHAIRMAN: State your point of order, Delegate Bryan. DOL What is the ruling of the Chair on the point of BRYAN: As I understand it we have voted on the first order raised? sentence of Section 2, which vote was carried, approving that as written by the committee. When that vote was taken LEE: Before you rule, may I have your attention, Mr. it was with the understanding that it would not prevent a Chairman? According to the information read by Delegate consideration of the minority report of the committee. The King I believe there is possible one of two constructions. minority report of the committee has been considered on When Delegate Heen wanted it understood by the committee this matter and that consideration is finished. I believe that that the adoption of Section 1 should be tentative, he stated if we’re going to amend the first sentence of Section 2 it that he had in mind the consideration of the minority report. would be necessary to ask for a reconsideration of that vote. That’s correct, that has been disposed of. But when the The only proviso when that was first passed was that the Chair ruled that that was his understanding and the under minority report of the committee would be considered and standing of the committee, that the action taken on the that is finished. Now, if there’re going to be other amend adoption of Section 2 is only tentative, it did not preclude ments, other than the minority report, I believe that we any one from offering amendments other than the minority would I’iave to reconsider our action on the first sentence of group, although at that time Delegate Heen was only inter Section 2. I believe that would clear the whole situation. ested in his consideration of the minority report. So I be lieve that the Chair’s ruling as to the tentative adoption is J. TRASK: Correct me if I am wrong but I believe the correct and it bears out the conclusion brought out by Dele Chair has ruled that the motion for consideration was not gate Silva that anything we do here, even though we adopt entirely in order, that the delegates were free to amend any JUNE 29, 1950 • Afternoon Session 101 this section using the language offered by Delegate Sakakihara CHAIRMAN: In order to get the record straight I request it would still be tentative and subject to amendment. that Delegate Sakakihara withdraw his previous motion so we can have a vote on this question. CHAIRMAN: The Chair will state that it was the purpose of inviting a vote oç the first sentence of 21, of Section 2 SAKAKIHARA: I made no motion for a previous motion, on the constitution of the Senate to avoid a resolution of Mr. Chairman. I just raised a point of order. I thought the what we meant by tentative. The Chair had one thing in Chair had ruled that you cannot reconsider. mind and I know a number of delegates have a different CHAIRMAN: No, the Chair had made no such ruling. It. thing in mind. Now, if Delegate Sakakthara would withdraw has been moved and seconded that we reconsider our action his motion and make a motion that the first sentence of on sentence 1 of Section 2. Section 2 be adopted it seems to me the purpose of the body, namely to get a vote on whether you want 25 or 21, would be WOOLAWAY: Point of information, Mr. Chairman. If accomplished. That is just a suggestion of the Chair. the vote to reconsider is lost, then the Senate still stands at 25? Am Icorrect? FONG: I thought we voted on the number of 25 yesterday. Now is it my understanding that the Chair is now ruling that CHAIRMAN: That’s correct. Are you ready for the our vote on 25 was a non-entity vote, that that doesn’t mean question? All those in favor signify by saying “aye.” anything? That we can now revote on that question? Contrary. The Chair is in doubt. Better have a roll call. The Clerk will call the roll. CHAIRMAN: The Chair’s understanding was that it was a tentative vote. If the Chair is wrong he’d like to be in LEE: There has just been called to my attention that I structed by the body. am not able to make a motion for reconsideration and since I’m always trying to be technically correct, I withdraw my BRYAN: I think if we’re going to revote on the first motion for reconsideration. sentence, then we should first vote to reconsider the first sentence and then vote on it again, if that’s what would clear PORTEUS: The subject is now before the body. I don’t the air because I believe our practice has shown in here that think it’s within the power of the delegate to withdraw it. we have voted on sections or parts of sections tentatively, There’s been a motion, there has been a vote in which the the idea being that when we come to the end of the section body is in doubt and now in order to clarify the question as we would vote in toto on the whole thing. On several to how the vote went, we’re now proceeding with a demand occasions when we have adopted sections or parts of sections for the roll call vote. and at the end different delegates have had questions on CHAIRMAN: The Chair will so rule. previous sections, we have reopened the matter on a motion to reconsider. Even on tentative votes. We have always re LEE: That may be correct, Mr. Chairman. I just merely considered in order to go back to something that was tenta wanted to make my position clear, if the majority wants to tively adopted. Therefore, if we are to vote on the first let the motion stand, that’s O.K. with me. sentence of Section 2, we should reconsider and then vote CHAIRMAN: The Chair will so rule. Roll call will pro on it again. There has to be another vote. That’s my opi ceed. nion. Ayes, 31. Noes, 30 (Akau, Apoliona, Bryan, Castro, WHITE: I’d like to ask the chairman a question. Under Cockett, Crossley, Dowson, Fong, Fukushima, Hayes, Hol your interpretation of it, when would you ever get through royde, Kido, King, Kometani, Lai, Larsen, Loper, Ohrt, with this section? Okino, Porteus, Richards, Sakai, Sakakihara, Silva, Smith, St. Sure, Tavares, White, Wist, Woolaway.) Not Voting, 2 CHAIRMAN: When the final reading of the article is (Gilliland, Kam). made and the committee makes its report, that was my understanding. CHAIRMAN: The motion is carried. WHITE: What’s the purpose of a vote? We take a section DOL Is it proper to move for an amendment of Section or we take a paragraph and we vote on it, then we pass on 2 at this time? to the next paragraph on the theory that that reflects the CHAIRMAN: The first sentence has been voted to re thinking of the Convention on that particular thing until we consider. get through the complete proposal; then we act on the com plete proposal. But as we’re going now, an action or a vote DOI: Just the first sentence? means nothing if we can continue to offer amendments to CHAIRMAN: That was the motion, to reconsider the actions that are already taken. first sentence. Is the Chair correct in that? CHAIRMAN: The difficulties the Chair is having, Mr. KING: Point of information, The vote to reconsider the White, is the use of the word “tentative,” which has been first sentence having carried, I would feel that if Delegate used throughout. Apparently it means something different Doi has an amendment that goes to the remainder of the that I thought the word meant. section, there could be no objection because he’s not only going to propose a different number but a different appor LEE: In order to bring this to a head, I move that we tionment and it might expedite matters if - - reconsider our action in adopting tentatively Section 2. CHAIRMAN: if there’s no objection from the body the DOL I second the motion to reconsider. Chair will make that ruling. That wasn’t the precise motion SAKAKIHARA: Point of order, Mr. Chairman. I thought though. The Chair will so rule then that the entire section the Chair had ruled that we can reconsider. is open. CHAIRMAN: I didn’t hear the statement of the delegate. TAVARES: I don’t like to be obstructive but earlier in this argument we were asked to vote on a question of prin SAKAKIHARA: I thought - - oh, let it go. ciple among other things. One was, shall we have one LEGISLATIVE POWERS AND FUNCTIONS 102 district or two senatorial districts on Oahu and we were Otherwise you wouldn’t have enough senators to go around. expressly asked to vote on the matter of principle so we If you reconsider the first sentence of Section 2, then that wouldn’t have any more arguments about wording on that. wouldn’t add up to what is contained in the remainder of the Now, are we going to change that too, without reconsidera sentence. Therefore, the ruling of the Chair is that the tion? We were asked to do one thing to avoid this trouble, remainder of the section is open. then we still have the same trouble. I think that it’s not PORTEUS: I think the Chair is correct on the addition. open, at least to that extent, because we voted on the matter I don’t agree with the chairman insofar as the scheme of of principle for the express purpose of avoiding - - senatorial districts is concerned. Your numbers will total J. TRASK: Point of order. more than 21. But the matter has been settled more than once with respect to senatorial districts. CHAIRMAN: State your point of order. J. TRASK: There is nothing before the floor of the CHAIRMAN: I agree with the delegate. The Chair will Convention. The movant, Delegate Doi, made a motion to so rule as to the division of the island of Oahu. That has amend. It was not duly seconded. been voted on and will require reconsideration. CHAIRMAN: The Chair will rule that the interpretation DOl: Am I correct in assuming then that the number of of the motion was that the first sentence was reconsidered. the Senate is subject to amendment as well as to the distri Thereafter at the suggestion of President King the Chair bution of that particular number, but not as to the division made its ruling that it would apply to the entire sentence of senatorial districts? [sic]. Now if the body is not in accord with that ruling, we CHAIRMAN: The Chair will so rule. can go back and the Chair will reverse itself. I was trying to expedite it in accordance with the wishes of Delegate DOI: In that case, at this time I would like to move to King. amend Section 2, first line, by deleting the word “25” and inserting in lieu thereof the number “21”. And on the KING: I merely made a suggestion but I feel that those second page, first line, first senatorial district, island of who have raised the point of order gave that as correct and Hawaii reduce the number “seven” to “six”; and in the the amendment should be to the first sentence of Section 2 second senatorial district, reduce the number “five” to only, as the only matter before this committee. “four”; and in the third senatorial district, reduce the CHAIRMAN: The Chair will so rule. What has been number from “five” to “four”; and the fourth senatorial district, reduce the number from “five” to “four;” and in moved and voted to reconsider is the first sentence. the fifth senatorial district keep the number “three” as is. LEE: I move that we reconsider the action taken on the CHAIRMAN: Is there a second to the amendment? other sections in Section 2. DELEGATE: Second the motion. ARASHIRO: I second that motion. CHAIRMAN: It has been moved and seconded that we CHAIRMAN: It has been moved and seconded that Section reconsider the remainder of Section 2. 2 be amended in the following respects: second line of the sentence, “21” in lieu of “25”; first senatorial district FONG: Point of order. I understand that Delegate Lee “six” instead of “seven”; second senatorial district “four” was on the losing end of that reconsideration motion and instead of “five”; third senatorial district “four” instead therefore he cannot ask for reconsideration. of “five”; fourth senatorial district “four” instead of “five”; fifth senatorial district “three.” Is there any discussion? CHAIRMAN: The point of order is well taken. Are you ready for the question? KING: Another point of order. The remaining part of FONG: May I ask the movant a question? Section 2 was not before the Committee of the Whole. No action was taken on it. CHAIRMAN: You may address your question to the Chair. ARASHIRO: To conform with the rule and the request from Delegate Trask, I move that we adopt Section 2, then FONG: What is the proportional representation of the we’ll be in order. island of Oahu at the present time in the Senate? The percentage. PORTEUS: I wonder whether this would be acceptable to the gentleman from the island of Hawaii who wishes to CHAIRMAN: Will the movant or Delegate Heen answer put the subj ect before this Convention as to the number in that question? the Senate. We have reconsidered our action on adopting NIELSEN: I can answer it. The outside islands would 25. The question will be clean cut as to whether it will be have 61 and 7/13. 21 or 25 - - pardon me, I think the amendment that was being proposed this morning was 19 - - or is it 21? - - then FONG: That didn’t answer the question. back to 21. Under those conditions I think it would be a WOOLAWAY: I believe it’s 40 per cent as it now stands. reasonable portion of the debate to have the gentleman offering the amendment explain that if his motion for 21 FONG: At the present time, 40 per cent. With the Senate carries, how he intends to apportion the 21 among the vari set at 21 with Oahu receiving only seven, what is that per ous districts. Then we can argue that point later and I am centage? Does Oahu win, lose or do we come out equal? sure that he can tell us the scheme he has in mind and I think we can get at it. DOI: Mr. Chairman, correction, Oahu gets eight in this deal. CHAIRMAN:. I think the Chair was in error a moment ago. When we reconsider the first sentence of Section 2, CHAIRMAN: The amendment was four for the fourth it seems to the Chair now just a matter of simple arith district and four for the fifth district as the Chair gets the metic, you’ve got to consider the rest of the section. amendment. They would have a total of eight, Delegate Fong. JUNE 29, 1950 • Afternoon Session 103 FONG: My question has not been answered, Mr. Chair AKAIJ: Will you kindly have the Clerk or somebody read man. Do we lose in percentage on Oahu or do we gain in how the first senatorial district reads, all the words in those percentage or do we retain our 40 per cent? three lines, please? BRYAN: The percentage goes from 40 per cent to 38 CHAIRMAN: First senatorial district, the island of point - - I think it’s .15 but I can’t remember exactly. Hawali, seven. No change from the committee proposal. FONG: In other words, Oahu will lose some more in NIELSEN: Now that there has been a definite decision percentage. Is that correct? to split Oahu in two senatorial districts, I feel that the SILVA: Mr. Chairman, the exact figure is six-tenths of consideration on the Big Island should be taken up, as un one per cent. doubtedly when many of them voted against splitting the Big Island it was for the reason that they were on record and CHAIRMAN: What is that figure again? wanted to be on record not to split Oahu. Now those maps SILVA: Six-tenths of one per cent. up there are quite deceitful as to scale because if you scale the island of Hawaii the same as you do the fifth district it CHAIRMAN: Will be lost by the island of Onhu? would be bigger than that whole blackboard. To give you NIELSEN: I’d like to correct that. some relative - - CHAIRMAN: Do you have a motion, Delegate Nielsen? RICHARDS: I have to disagree with the delegate from the island of Hawaii because it is approximately a two per NIELSEN: Well, I’d like for someone, in fairness to cent loss, just under two per cent. West Hawaii, to present this. CHAIRMAN: Is an accountant in the delegation that can H. RICE: I am in order. I move for a reconsideration give us the figure here? It’s a simple matter. of the island of Hawaii senatorial districts. NIELSEN: The exact percentage is that Oahu would lose KAWAKAMI: Second the motion. one and seven-thirteenths per cent. CHAIRMAN: It has been moved and seconded that the CHAIRMAN: Does that answer your question, Delegate senatorial districts on the island of Hawaii be reconsidered. Fong? NIELSEN: May I talk now? We have the cost of running FUKTJSHIMA: Correction please, 1.99. for election in West Hawaii as we have to cover 383 miles. SILVA: Point of order. You have to put the motion first BRYAN: I think this can be put on - - The easiest way for reconsideration before you can debate the subject. to answer this is that Oahu loses six-tenths of one senator. CHAIRMAN: You are quite right. The Chair is in error. CHAIRMAN: If there’s no further debate, the Chair will put the question. All those in favor of the amendment sig Are you ready for the question? All in favor of reconsid ering the senatorial district of the island of Hawaii signify nify by saying “aye.” Contrary. The Chair is in doubt. by saying “aye.” Contrary. The ayes have it. Proceed, DELEGATES: Roll call. Delegate Nielsen. CHAIRMAN: Will Madam Clerk please call the roll. NIELSEN: We have to look at this on a basis of a consti tution and not political finagling or chicanery, or some of Ayes, 23. Noes, 39 (Akau, Apoliona, Bryan, Castro, the words attached thereto. Now, you’ve got people of the Cockett, Crossley, Dowson, Fong, Fukushima, Gilliland, fifth district, when you run I don’t suppose you have to Hayes, Hoiroyde, Kauhane, Kido, King, Kometani, Lai, cover over a hundred miles; the fourth district is only 78 Larsen, Lee, Loper, Noda, Ohrt, Okino, Porteus, H. Rice, square miles. We have 2,234 square miles in West Hawaii Richards, Sakai, Sakakihara, Shimamura, Silva, Smith, St. with a 383 mile trip to make to be elected and we don’t have Sure, Tavares, J. Trask, White, Wist, Woolaway, Yamamo the wealth there. We don’t send up here any wealthy sena to, Yamauchi.) Not Voting, 1 (Kam). tors or wealthy representatives from West Hawaii. Those kind of people just don’t live down there. We have to live on CHAIRMAN: The amendment is lost. climate —we’ve got a lot of that. FONG: I move that we adopt sentence one of Section 2, Now, I think in all fairness to West Hawaii, to give us a not tentatively. little break, instead of having to travel around the entire island and also to guarantee that that great geographic belt AKAU: I second that. will have some senators up here in the future that we should CHAIRMAN: It has been moved and seconded that we consider giving two senators to West Hawaii and five to adopt sentence one of Section 2. Are you ready for the East Hawaii. Now, I’m not hoggish in that because we have question? All in favor signify by saying “aye.” Contrary. 55 per cent of the area of that island. We have a community The ayes have it. that may grow some day. I doubt that it will grow very much if Pele keeps up her erupting because she’s taken acreage LOPER: I move that we adopt the second portion & out in the hundreds of acres—several thousands this last Section 2. shot she took at us—but we do really need consideration of LAL I second that motion. our problem insofar as splitting up the two districts. CHAIRMAN: It has been moved and seconded that we CHAIRMAN: Delegate Nielsen, would it not be better to adopt the remainder of Section 2. Is that the motion, Dele make your motion so we, the committee know what your gate Loper? Are you ready for the question? Is there any motion is in regard to districting? I didn’t want to inter discussion? rupt your train of thought but it might - - J. TRASK: Is that tentative? NIELSEN: I move that we divide the Big Island of Hawaii into two senatorial districts making the first one have five, CHAIRMAN: No. which is East Hawaii, and the second district, two. LEGISLATIVE POWERS AND FUNCTIONS 104 YAMAMOTO: I second that motion. CHAIRMAN: Is a roll call demanded? The Chair will rule that there’s not enough showing here for a roll call. NIELSEN: Fm not going to talk very long because we’ve Sufficient? The Clerk will call the roll. been over this once, and I think that due to the fact that we have a change now in Oahu and have split the fourth and fifth KAM: Will you please state the question? districts that we are ready for consideration of the Big Is CHAIRMAN: I didn’t get the statement, Delegate Kam. land’s problem. Anyone who says that West Hawaii is well represented and has been, all they have to do is come down KAM: Will you please state the question? there and drive our one-way roads, where you’re taking CHAIRMAN: The question is on the motion of Delegate your life in your hands many times a day, as against any Nielsen to divide the island of Hawaii into two senatorial other part of the island. I say that without fear of contra districts, one and two; the first senatorial district to have diction. So far as water, you just get what God gives you five in the Senate and the second to have two. Is that cor in your tank back of your home in Kona and that goes for all rect, Delegate Nielsen? of Kona. You don’t have any water system. In fact you sometimes think living over there that the good Lord just NIELSEN: That is correct. West Hawaii would have two. wants to let us live on fish and poi and drink brackish Ayes, 33. Noes, 29 (Apoliona, Ashford, Bryan, Castro, water. But we do have something to sell the tourists and Cockett, Crossley, Doi, Fong, Gilliland, Holroyde, King, we do want to get some representation up here in the Senate Kometani, Lai, Loper, Luiz, Lyman, Ohrt, Okino, Porteus, so that we can develop that back country as the playground Richards, Sakakinara, Silva, Smith, St. Sure, Tavares, for all of Hawaii and I’ll appreciate kokua on the motion. White, Woolaway, Yamauchi, Anthony). Not Voting, 1 (Lar sen). HE EN: Will the last speaker yield to the question? CHAIRMAN: The motion is carried. Delegate Bryan’s NIELSEN: Surely. recognized. HEEN: Will two guaranteed senators bring water to BRYAN: Now that Oahu and Kaual have divided Hawaii, Kona? I move that we approve Section 2, as amended. NIELSEN: Well, It would certalnly help because we can WOOLAWAY: I’ll second that motion. build a little bigger fire up here when we do come up to the session. CHAIRMAN: It has been moved and seconded that Section 2, as amended, be approved. Are you ready for the SILVA: I have made my stand clear on that; I have made question? All in favor - - Delegate Arashiro. my stand clear on Oahu the other day; and surely just be cause Hawaii’s excuse that not knowing of Oahu’s intent to ARASHIRO: I wish to change the word on the thirteenth divide into two senatorial districts that some of the mem line from three to four. bers of this Convention had changed their minds, they had CHAIRMAN: The thirteenth line of what? to start somewhere. If they did not start with Hawaii they would start with Oahu. By the same token if they started ARASHIRO: The second page of Proposal 29. with Oahu then those on Hawaii could say, well we didn’t CHAIRMAN: The Chair doesn’t understand your motion. know you were going to divide, therefore I’d like to recon sider my action because of this division. I thought that was ARASHIRO: On Proposal 29, page 2 on the thirteenth made very plainly. But I would like to state at this time line, where there is the word “three” to change to “four.” that the majority of the island of Hawaii and I were amazed CHAIRMAN: The Chair will rule that is out of order. and surprised to find the good Senator Harold Rice from The Chair will now put the question. Are you ready for the Maui, trying to see what he can do for Hawaii by cutting us question? All those infavor -- up into two, had seconded the motion by a delegate from Kauai. I think when the fifth district’s turn comes, I think KAUHANE: Since we have reconsidered the action taken we’ll have a few of our boys trying to cut up Kauai, too. as to the division on the island of Hawaii I would like to I would like to make this point very clear that a maj ority amend, if permitted to do so, the language appearing in of this group, I’m not saying how many, have gone on record Proposal 29 on page 2 with reference to the third senatorial I think, sometime back - - district. SERIZAWA: Point of order. PORTEUS: Point of order. I think it requires a vote to reconsider on that matter. SILVA: I am speaking against the motion. KAUHANE: It requires a vote to reconsider? I so move, CHAIRMAN: State your point of order. Mr. Chalrman. I move that we reconsider the action taken. SERIZAWA: The motion to reconsider has already been PORTEUS: Point of order. I think that the gentleman passed. who is making the motion voted in the minority on that matter and is not in a position to make the motion. CHAIRMAN: The point of order is not well taken. The delegate is speaking against the motion. KAUHANE: But I thought your ruling was, Mr. Chair man, when you stated that all matters under reconsideration SILVA: I am speaking against the question of division. of Section 2, first paragraph, where you stated that the whole I am very much in order. Just to please the delegate I’ll call myself out of order if it makes him happy. thing is open. Basing your ruling to be the rule of the Con vention I thought that I am in order now to ask for an amend CHAIRMAN: If there’s no further discussion, the Chalr ment be made on the third senatorial district that the lan will put the question on the division of the senatorial repre guage should be changed, basing your ruling that the sentation in the island of Hawaii. remainder of Section 2 is now open for discussion. Am I SAKAKIHARA: I demand a roll call. right or wrong? JUNE 29, 1950 • Afternoon Session 105 CHAIRMAN: That was the Chair’s ruling. I’d be glad Third senatorial district: that portion of the island to be informed by Delegate Porteus on the point of order. of Oahu, lying east and south of Nuuanu Street and a line drawn in extension thereof from the Nuuanu Pali to PORTEUS: Mr. Chairman, in the matter of the question Makapuu Point, five; of 25 or 21 senators the vote was finally put on the motion — senatorial district: that portion of the island of to reconsider. This matter was discussed at some length Oahu, lying west and north of the third senatorial district, yesterday, voted on and disposed of. It requires another five. motion to reconsider on this particular matter as there was a requirement of the motion to reconsider with respect The Chair’s understanding is that was voted on first and to the number in the Senate. The difficulty is if we don’t it was carried. Then there was a motion to reconsider and move along in thin matter, if this rule is not adhered to, the motion was carried. Then the proposed amendment of then we are going to keep going over and over and over Delegate Mau was voted down. again. KAUHANE: I am still on the point of order. I feel I am CHAIRMAN: The Chair wants to adhere to the rule, but entitled to defend my position on the question that is now what is the point of order? being raised. I say that the motion on the adoption of the Chuck Man amendment was to the main subject matter as PORTEUS: The point of order is that this matter was contained in Proposal No. 29 of the majority committee set yesterday. It takes a motion to reconsider, to have it report. We voted to adopt that. A reconsideration was reconsidered, to open it up, and it also requires somebody asked on the adoption of the amendment that was offered that voted in the majority to make the motion. which is a part of the general or the main subject, so that CHAIRMAN: The Chair will so rule. Unless you voted was lost but the main subject matter was not lost. So the with the majority, Delegate Kauhane, your motion is now reconsideration is on the main subject matter, not on the out of order. amendment that was offered by Chuck Mau, so we are still in order to demand a reconsideration of the main subject KAUHANE: Mr. Chairman, I am only basing my attempt matter which is before this Convention. to have that language changed on your own ruling, when you reversed your second ruling. The Chair has made two CHAIRMAN: The Chair feels that he must rule that you rulings, the second one was to this effect; the Chair has are out of order and would be glad to take an appeal if you reversed his ruling and that motion taken is on the first think the Chair is in error. paragraph only. You later made a further ruling that the SILVA: To expedite matters, I withdraw my motion. remaining portion of Section 2 is still open for discussion. That being so, Mr. Chairman, on the motion - - MAU: I was just going to remark - - SILVA: To expedite matters, Mr. Chairman, I voted in CHAIRMAN: To what purpose do you rise, Delegate Mau? the affirmative yesterday and I so move we reconsider our The motion has been withdrawn. action. MAU: I was about to make a motion to suspend Rule 39 KAUHANE: Second the motion. for the purpose of reconsidering this matter. Before I put that motion I was going to remark that Delegate Silva is a CHAIRMAN: It has been moved and seconded that we gentleman and a scholar and I congratulate him and take my reconsider the action in regard to the districting of the hat off to him to permit the minority to get a chance to say island of Oahu. something on this floor. I move for the suspension of Rule KING: I’d like to make a point of order that such a 39 in order to consider this subject matter posed by Dele motion is a second motion to reconsider. This is the sec gate Kauhane. ond motion to reconsider. Rule 39 I believe forbids such KAUHANE: I second the motion. action. If the Chair will turn to Rule 39. CHAIRMAN: It has been moved by Delegate Mau and CHAIRMAN; Rule 39 provides that “When a motion for seconded by Delegate Kauhane that we suspend the rules in reconsideration is decided, that decision shall not be re order to permit reconsideration on this matter. State your considered, and no question shall be reconsidered twice.” point of order. It is the ruling of the Chair that this motion to reconsider is out of order. BRYAN: If we knew the amendment that was going to be proposed on this we might know whether it was pertinent to KAUHANE: I rise to a point of order. Yesterday, Mr. that which had been reconsidered yesterday or not. We Chairman, the motion for reconsideration was on the don’t know exactly what the amendment is. It may be that amendment offered by Chuck Mau which was pertinent to it’s not pertinent to what was reconsidered yesterday and it the main question as contained in Proposal 29 which we would save suspending the rules and reconsidering the vote are now considering. The main question that was put was if we knew that now. amended when Chuck Mau offered his amendment, so the CHAIRMAN: The Chair’s understanding is that the pur reconsideration was taken on the reconsideration of the pose of the motion is to suspend the rules to permit re adoption or rejection of the amendment offered by Chuck examination as to the question of the districting of the island Mau. That being the case, the ruling I believe holds true of Oahu. Are you ready for the question? All those in favor only to the main subject matter, that it cannot be recon signify by saying “aye.” Contrary. The motion is lost. sidered twice. The motion for reconsideration was on the The Clerk will call the roll. amendment that was offered by the delegate from the fifth district in amending the main subj ect matter. WIRTZ: I understand the question before the floor now is the adoption of the rest of Section 2. Is that correct? CHAIRMAN: Delegate Kauhane, I think that’s incorrect. I’ve got before me Delegate Mau’s motion. Reads as CHAIRMAN: That is correct. The motion on the adoption follows: of the remaining language in Section 2, the first sentence 106 LEGISLATIVE POWERS AND FUNCTIONS having been adopted, is now before the house, the remainder out of order. He may get up and explain his vote and may of that section. be against the pending motion, but we are no longer dis cussing the merits of it. WIRTZ: I asked that question because I now would like to have the Clerk read us the rest of that section in the CHAIRMAN: I agree with you. We have passed the stage amended form. of debate, Delegate Kauhane. I think you have adequately explained your position on the vote. CHAIRMAN: To expedite matterS, the only amendment has been on districting the island of Hawaii into two districts, KAUHANE: I don’t think I have, but if it is the ruling of one having five senators and the other having two. Does the Chair that I should be shut off from further clarification, that answer your question, Delegate Wirtz? then I shall abide by the ruling of the Chair. CHAIRMAN: The Chair will give you another 30 seconds. WIRTZ: Yes. The Clerk will call the roll. MIZUHA: Point of information. What are the geographi Ayes, 40. Noes, 23 (Akau, Arashiro, Corbett, Doi, Heen, cal divisions of the island of Hawaii that we are voting on at Ihara, Kam, Kauhane, Kawahara, Kawakami, Kellerman, Lee, the present time to classify West Hawaii and East Hawaii? Mizuha, Phillips, C. Rice, H. Rice, Roberts, Sakai, Seriza CHAIRMAN: Will you answer that, Delegate Nielsen? wa, A. Trask, Wirtz, Yamamoto, Anthony). Not Voting, 0. You’re the author of the motion. CHAIRMAN: The motion is carried. NIELSEN: Well, the geographical division is the NoHh LAI: I move for a short recess. and South Kohala, North and South Kona, Kau, those sections NODA: Second the motion. in West Hawaii will be known in the amendment as the second senatorial district. All that blue portion on the map plus CHAIRMAN: If there is no objection, the Chair will all that where the four is, that is West Hawaii. declare a short recess. CHAIRMAN: The Clerk will call the roll. Was a roll call demanded on this? (RECESS) AKAU: Are we voting then on the statement that appears in the second, third, fourth and fifth senatorial districts as C. RICE: Now that we have decided on 25 senators let me it appears now? point out that it will take 17 senators to over-ride the Gov ernor’s veto. CHAIRMAN: In the committee proposal, as amended by Delegate Nielsen’s amendment, dividing the island of Hawaii DOWSON: I now move for the adoption of Section 2, as into two districts of five and two. amended of Committee Proposal No. 29 on a permanent basis. KING: It is understood, of course, that the other senato LAI: Second the motion. rial districts will be renumbered. CHAIRMAN: It has been moved and seconded that CHAIRMAN: rhat is correct. All those in favor - - Section 2, as amended, be adopted. Are you ready for the question? All those in favor signify by saying “aye.” KAUHANE: As far as voting on the adoption of the Contrary. The ayes have it. Carried. proposal as amended, I am going to take a position to vote We are now on Section 3. against the proposal on principle. I feel that the fifth dis trict, having the greatest area and the greatest number of BRYAN: I move the adoption of Section 3, first paragraph population should not absorb any more additional population down to the words “follows.” by the inclusion & Kallua and Waimanalo into that portion of NODA: Second the motion. the fifth district that it today embraces. I feel that the fifth district if it’s going to absorb the population of Kailua and CHAIRMAN: It has been moved and seconded that the Waimanalo as part of the present fifth district setup, then first paragraph of Section 3, Committee Proposal No. 29, we are entitled to more senators than we are getting today, down to the words “shall be as follows” be adopted. Are or which is being attempted, to lay out for the fifth district. you ready for the question? Is there any debate on this? I feel that if, as expressed by the members during their Are you ready for the question? All those in favor signify deliberation on this matter before the committee, that they by saying “aye.” Contrary. The ayes have it. Carried. were somewhat kanalua about dividing Oahu because those BRYAN: I would like to move the adoption of the remain who ran for the office of senator in the last election admit der of Section 3. Perhaps some of the delegates would like ted before the committee which was considering Committee to take up the districts individually, but we’ll have a go. I Proposal No. 29 that it took the vote of the fifth district to move the adoption of the remainder of Section 3. elect them as senators. That being so, we who run in the fifth district feel that we have sufficient votes in the present NODA: Second the motion. fifth district to elect representatives and senators from the CHAIRMAN: It has been moved and seconded that the present fifth district. But if an attempt here is being made remaining provisions of Section 3 be adopted. to have the fifth district absorb additional population by the inclusion of Kailua and Waimanalo, then certainly we are HEEN: In order that the members of the Committee of entitled not to four or five senators as is being proposed, the Whole may more intelligently consider the contents of we should be entitled to at least - - if five, we should be Section 3 I would like to read the report of the Committee entitled to seven senators. We are justified in requesting on Legislative Powers and Functions upon that Section 3: the additional senators from that what is proposed by the Section 3 fines the number of members of the House committee present. of Representatives. It further describes the 18 repre KING: With all due tolerance in the world, I do believe sentative districts from which the members of the House I have to make a point of order. The gentleman is speaking will be elected. As the descriptions of some districts JUNE 29, 1950 • Afternoon Session 107 are necessarily long, they will be included in the schedule BRYAN: I think the delegate from Maui, Delegate Woola of the Constitution, but are nevertheless to be considered way, can answer that. as a part thereof. The number of members to which each of these districts will be entitled until reapportionment WOOLAWAY: The total registered voters on the island is based on the number of voters registered in each of Molokal is 1,400, Lanai 610, so that if you just combined district in~l950. those two islands you would have a registered total voters From a very early point in your committee’s deliber of 2,000. Wailuku and East Maui both have a total number ation on the question of apportionment and reapportion of registered voters of 5,600 and 4,200, so throwing Lahaina ment of the House of Representatives, your committee in with 1,500 additional votes would bring that area up to was unanimous in its decision to apportion the members 3,500 or near comparable to Wailuku or East Maui. Then among the several major island divisions on a realistic if I am not mistaken - - What are the least number of basis and in accordance with the principle that repre registered voters in any one district based on—2,300 or sentation should be as nearly uniform as possible. something near that figure? One of the reasons why the reapportionment directed CHAIRMAN: The Chair will have some one answer that. by the Organic Act was not carried out was because that Will you answer the question, Delegate Bryan? act required reapportionment on the basis of citizen population. A breakdown of the population according to BRYAN: The idea among other things was to make the this standard has not been locally available. Total pop districts as nearly equal population—wise as possible and ulation figures for the territory are shown by census by this means we arrived at the figures of the fifth district: tracts which do not necessarily coincide with locally Molokai, Lanai and Lahaina at 3,865; Hana and Makawao, defined areas. As a practical matter, the number of which is the seventh district, 4,706; and the Walluku area, registered voters was found to bear a reliable and fairly 5,592; and that division was made in order to make the uniform relationship to total population, although it favors three districts as nearly equal as possible. Now, there was slightly the neighbor islands where the percentage of one other point in doing that, Mr. Chairman, and that was persons who have registered to vote is from one to two that should the population shift drastically either from or per cent higher than for Oahu. It was in recognition of to one island we did not want the district so small that they the potential difficulty in obtaining figures which would would not be entitled to at least one representative and so show citizen population, or figures which would show we tried to make the districts large enough so they would be total population by desirable districts, that the basis for entitled to at least one and preferably two. Does that answer reapportionment of the members of the House was chosen your question? as the number of registered voters. ASHFORD: It seems to me, we have been given a little A majority of the members of your committee was of the edge. Of course, it makes it a little difficul for cam the opinion that the present representation enjoyed by the paigning to have to go to Lanai first, and then we have to neighbor islands should not, at least for the present time, travel all the way to Lahaina, but I can see that we got a be decreased. With a 51 member House apportioned little advantage having it like that. equally among the several major island units, the present representation is maintained, although the representation CHAIRMAN: “We from Molokai,” is that it, Delegate for the island of Oahu is increased from 12 members to Ashford? 33 members. ASHFORD: No, we from the extreme rural districts. The cost to the state of a legislature, with a 51 member House and a 25 member Senate, was discussed HOLROYDE: To further enlighten the delegate from at some length by your committee incident to the question Molokai, 2,445 voters qualify you for one representative, of having biennial or annual sessions of the legislature. so you would not quite qualify if you took just Molokai and Some of the members of the committee felt that this Lanai together. larger size would, on a cost basis, make it inadvisable AKAU: May lask a question please? I have heard to provide for annual sessions; however, the maj ority Delegate Heen give an explanation and I read it previously. of the members of the committee felt that the state Now, I would like to ask this, has there been any formula could afford to have both a large legislature and annual set up, a ratio so that the people between now and ten years sessions. hence when we are going to have another meeting of the At this point Delegate Bryan, Chief of Staff of the Com Constitutional Convention that there will be something to go mittee on the Legislature, will take over. by, some guide? I notice that the ratio varies as Mr. Bryan has just stated. Is there any particular ratio or formula BRYAN: I didn’t know that this honor was going to be automatically speaking that will work itself out so that we bestowed upon me. I had intended to merely to act as a won’t ever have this difficulty again? flunky in order to point out the districts. I believe that the BRYAN: Yes, there is. It is not a ratio. If we were to districts are rather adequately defined in the committee take a ratio of one representative for every 3,000 or 2,500 proposal and as shown on the board, and I would ask if there persons, if the population should double, the size of our are any questions as to where the division lines come or House would double. Therefore, we have adopted the formula any questions as to districts, I would be very glad to point used by the Congress of the United States which is known as them out. the method of equal proportions. It operates much in the same manner as the method of equal fractions. You take ASHFORD: May I address a question? I would like to the size of your House and divide it into the total number ask a question relative to the throwing together of Lanai, of registered voters—this is not the process of equal Molokai and Lahaina for two. Was that to put them on a proportion but it is the end that it reaches —and that gives parity with Central Maui or East Maui? I had thought that you your ratio. If you have 137,000 voters, I think we used Molokai and Lanai were going to be thrown together and for a base, divide that by 51 and you get 2,400 so actually that is why I am interested in Lahaina. you come out with one representative for every 2,400 people. LEGISLATIVE POWERS AND FUNCTIONS 108 The method of equal proportions goes at it in a little differ Should the number of registered voters in any district, ent manner because if you go by major fractions you some for example, drop in proportion to the number of regis times would end up with a 52 member House or a 50 member tered voters in the State as a whole, the number of rep House rather than a 51 member House. The method of equal resentatives to which that district would be entitled would proportions gives every district one member first and then be proportionately less. it sets up a priority list which shows which district would It was not deemed advisable by your committee to provide for complete redistricting of the State at the time bp next entitled to a representative, and as you progress when you get to the 50th number, you have 50 members of each reapportionment. To obviate the necessity for assigned to different districts. The last district, the one periodic redistricting, representative districts were that is most entitled on the basis of their population to fixed in such manner that it appears highly improbable another representative, gets the 51st member. It is a that any district in the next few decades will not be en mathematical formula, very practical and very usable for titled, on the basis of registered voters, to elect at least this particular purpose. Does that answer your question? one representative. Should, however, the number of registered voters fall below the number which would AKAU: It answers my question partly, but - - logically entitle it to elect a representative, provision CHAIRMAN: Delegate Bryan, the Chair would like to is made for the redistricting of the basic area within which ask you a question. Does this proposal fix the number of such district lies . The duty for effecting reapportionment and such re delegates for a given area but permit within that number districting as might be necessary has been placed on the the reapportionment depending on changes in population? governor. In order to assure that this duty, which is of Is that what you have done here? a ministerial nature, will actually be carried out, the BRYAN: Yes, we have. It goes a little further than that, governor has been made specifically subject to mandamus however, Mr. Chairman. In using the method of equal pro by the Supreme Court. This is the only way in which a portions, it is a two step method. First, it is divided on the constitution can guarantee reapportionment and is conse basis of equal proportions among the islands so that each quently the method considered by this committee to be island would be assigned so many representatives on the the most desirable. basis of equal proportions. Then again on the basis of equal proportions those representatives are divided among the I might state that the Committee on the Legislature was districts on that island, so that it goes through a process of unanimous in adopting this principle of apportionment and two steps. As far as automatic reapportionment is concerned, reapportionment on the basis of the method of equal propor that’s covered in Section 4 and it provides that the method tions. of equal proportions shall be used for reapportioning every LEE: Will the speaker yield to a question? Will the ten years. Delegate state that the committee, however, was not unani LUIZ: I would like to ask the chairman of the committee mous in the number? a question. I would like to know the reasons why you have HEEN: That is correct. the 12 and 13 on Oahu split right through School Street. CHAIRMAN: Any further questions on the apportionment HEEN: I think we ought to leave that up to later on, when in the House of Representatives? we get down to the several districts. By reading the report on Section 4 you will see how the method of equal proportions SHIMAMURA: If amendments are in order now I would is applied. On page 8: like to make an amendment. On page four, line two, I move, Mr. Chairman, that after the words “upper Nuuanu” Section 4 sets out the method and the procedure for insert “and Kapalama,” and on the third line alter the word automatic reapportionment, and involves two steps, both “schedule” insert the words - - under the captions “Twelfth of which have been spelled out. Step one is to take the representative district” and “Thirteenth representative dis total number of members of the House and to apportion trict,” delete the word “three” and insert the word “six” on those members among the four major island divisions line three and delete all of the fourth, fifth and sixth lines (which have been defined as “basic areas”) on the basis on that page. of the number of registered voters in each division. Step two is to take the number of representatives to MIZUHA: I second the motion. which each basic area is entitled and to further apportion BRYAN: I would like to point out to Delegate Shimamura those members among the several representative districts that under the method of equal proportions, as you change within each basic area as those districts are defined in the districts you sometimes change the relative priority of Section 3. This second apportionment is also based on the district. By combining those two districts, under the the number of registered voters. The result of this procedure is to achieve what is deemed to be the most method of equal proportions you would have five represen tatives instead of six. equitable distribution of members among the several representative districts. The mathematical process, SHIMAMURA: I have amended it so that the proportional known as the method of equal proportions, is the identical representation remains the same, Mr. Chairman. method used in apportioning the members of the United States House of Representatives among the several states CHAIRMAN: Does the explanation lead you to wish to (55 Stat. 761-2; 2 U.S.C.A., 2a, 2b) and has been proven withdraw your motion, Delegate Shimamura? by expert mathematicians to result in the least possible discrimination. SHIMA MURA: No, Mr. Chairman, because I have amended The initial apportionment, as set out in Section 3, “three” there to read “six” so that the representation re maintalns the present neighbor island representation in mains the same. On all of the districts there, all of the representative districts run from the sea to the mountains the House. However, there is no guarantee that upon reapportionment any area or district will continue to be or from the mountains to the sea, and it’s only in upper entitled to elect the same number of representatives. Nuuanu and Kapalama that they have been arbitrarily cut JUNE 29, 1950 • Afternoon Session 109 like that. I think it should conform to the rest of it so that and a half and we make it three, put it together and you have the twelfth and thirteenth districts shall be one. five. Does that answer your question? HE EN: if we followed the method of equal proportions, CHAIRMAN: It doesn’t answer mine. Is that a mathe that total number of six may not come out that way; it may matical result of a combination? Would it result in giving come out with five. So we should decide I think at this point the combined area a greater representation? whether or not we are going to stick by the method of equal proportions. if we stick by that, then if Delegate Shimamura BRYAN: The combined area gets a lesser representation. would like to have those two districts combined into one, J. TRASK: I would like to ask Delegate Bryan how does they may be combined but let the method of equal proportions that compare with the fifteenth representative district with determine how many representatives shall represent those both the combination of Manoa and Waikiki. Would you be two districts combined. getting more representation if you combine both or less? The fifteenth representative district —by combining both CHAIRMAN: It seems to make sense to the Chair. Did Manoa and Waikiki as one representative district I notice you get what Delegate Heen said, Delegate Shimamura? that they have six representatives. How does that compare SHIMAMURA: No. with the twelfth and the thirteenth? MAU: No, I don’t, Mr. Chairman. I would like to ask BRYAN: To answer that question I think we have to do a what difference there is in the fifteenth representative dis little research on the method of equal proportions. It is trict which would go into the fourth and which includes possible that by dividing that you might lessen your repre Manoa and Waikiki from the mountain to the sea. How does sentation and it might be that by dividing that you would that differ? gain representation. We would have to do some research CHAIRMAN: Can you answer that, Delegate Heen or to find out. I might say that in picking these districts the Delegate Bryan? committee did consider very many possibilities and with the aid of the Reference Bureau got the figures on how many BRYAN: I think that maybe the basic question here is representatives each district would have under certain con why in the fifth district do we have smaller districts and ditions. It is also true that by cutting this district in half in the fourth district, larger districts. Is that correct? either this way or this way, you may add a representative MAU: It’s like a crossword puzzle. You have got only to this one or you may add a representative to Koolau. You one representative district in the fifth that’s cut in two. can’t tell; you have to look at the whole island as a unit in There’s no other baby like that on the whole map. changing your districts. J. rRASK: What are the number of registered voters BRYAN: I can give you an explanation for that. This in the fifteenth representative district? line here dividing the twelve, fourteen and thirteen is the old division of the fourth and fifth districts. In the fifth BRYAN: 15,593. district, as we know it now, all of the new representative J. TRASK: And what would be the registered voters in districts were broken into smaller parts. In rural Oahu the twelfth and thirteenth representative districts? we have three representative districts with two representa tives apiece, and in urban fifth district we had three districts HOLROYDE: 6,552 plus 6,815. with three apiece. In other words, that was a more or less J. TRASK: What was that figure again? of a uniform distribution in the old fifth district. The mem CHAIRMAN: Approximately 13,000 in the combination. bers of the committee from the fourth district said that they thought it was more proper to have larger districts in the FUKUSHIMA: It is well and good to speak about equal fourth district and the fourth district was broken up in that proportions here, but I believe for those who are not mem manner. We tried in districting to let the members from bers of the Legislative Committee, we don’t have the figures, the various districts more or less decide what they wanted. we don’t know why this is split up in this fashion. I would For instance, on the island of Kauai, the representatives like to find out from the chairman of the committee whether from the island of Kauai said that they would rather have he has a graph or a chart prepared so that the other delegates one district than to have three districts or four districts, can study this intelligently. We are just groping in the dark. so you notice that the island of Kauai is one district. The HEEN: I think yesterday there was laid on the desk of the representatives from the fifth district said that they would Oahu delegates a map showing the division of Oahu into repre like to have districts with approximately two or three, and sentative districts. I might point out here while we were on as nearly uniform as we could make it. We have two for the districts number twelve and thirteen that according to the three districts in rural fifth district and three for each Mr. Dodge of the Reference Bureau those two districts were of the three districts in urban fifth district. combined and under the method of equal proportions, the CHAIRMAN: As the Chair understands it, all that Dele number of representatives for those two districts combined gate Shimamura’s motion is is to combine the thirteenth and would be five and the one that’s lost would go over to the twelfth representative districts without changing the num Koolau district. ber of representatives. Am I in error on that? KAUHANE: May I ask a question? Mr. Chairman, may BRYAN: You are correct. I would like to point out why I ask the chairman of the committee a question? The ques you sometimes gain or lose by doing that. For instance, tion that I would like to raise is this. Are we following the let us assume that District 12—to make it simple we will method of cutting up the district the same as we had in the go to the basis of a maj or fraction — if our denominator is Constitutional election? 2,400 voters District 12 may be entitled to two and a little HEEN: I don’t quite get the question. over half, so we give them three; and District 13 may be entitled to two and a little over a half, so we give them CHAIRMAN: The question is whether or not this is based three. When you combine them together they just equal to on the same as the election for this Constitutional Convention? five. It’s a case of two and one half we make it three, two HEEN: No. 110 LEGISLATIVE POWERS AND FUNCTIONS KAUHANE: As far as the fifth and fourth districts are to the map here, we have the setup of the division whereby concerned. the delegates to the Constitutional Convention were elected by combinations of precincts. We have purple lines dividing HEEN: Only I think in the case of the twelve and thirteen combinations of precincts P, Q and R. Would that mean the an attempt was made to follow the Constitutional Convention. fourteenth representative district? J. TRASK: Might I add, Mr. Chairman, I notice that the BRYAN: The fourteenth representative district as pro country districts - - posed by the committee, if you will start on your map up there under the 0 with precinct 27, the fourteenth represen CHAIRMAN: Just a minute. Delegate Kauhane has the tative district would include all of precinct 27 of the old floor. If you want to wait until he is finished. fourth district, precinct 26 of the old fourth district, precinct KAUHANE: Thank you, Mr. Chairman. 16, precincts 25, 24, 23, 22, 21, 20, 19, 18, 32, 17, most of 11 and part of 12. If you follow the purple line it should be CHAIRMAN: Proceed, Delegate Kauhane. clear. KAUHANE: I am waiting for an answer. I think these KAUHANE: I think we can get along very well. I think people are getting into a huddle there. I have been helped by the Secretary. HEEN: Mr. Bryan, who is more familiar with the fifth CHAIRMAN: Any further questions? district, tells me that the fifth district was divided that way, the same as was required for the election of the delegates HOLROYDE: It might be helpful for the delegate also if to the Constitutional Convsntion. he follows that with the schedule which is Committee Propo sal 30, which gives the definite boundaries of these sections. KAUHANE: Now, we go back to the same question that I raised. The fourteenth representative district, what com CHAIRMAN: The descriptions of the districts are con bination of precincts is that with respect to the election tained in Committee Proposal No. 30, Delegate Kauhane, if held for the Constitutional Convention? What combination you will examine that. would that be? ASHFOHD: Is this an appropriate time to offer an amend CHAIRMAN: What was your question again, Delegate ment to the fifth representative district provision? Kauhane? CHAIRMAN: If you wish. KAUHANE: I would like to know, the fourteenth repre ASHFORD: I therefore move, Mr. Chairman, that the sentative district, what combination would that be if they third paragraph on page 3 of Committee Proposal No. 29 have followed out the election method where the delegates be amended by substituting therefor two paragraphs to read to this Constitutional Convention were elected? as follows: - - CHAIRMAN: You mean what combination of the election CHAIRMAN: The Chair is in error. I believe we still of the delegates to this convention were elected? have a matter to decide on, the motion of Delegate Shima mum, unless he has withdrawn that, for a combination of KAUHANE: That is right. the twelfth and thirteenth representative districts. Do you BRYAN: District marked 14 here is not in the fifth dis wish to withdraw? trict and it didn’t follow the districting used for the Consti SHIMAMURA: No, Mr. Chairman. tutional Convention. I think if you want to see how these districts fall together, if you will look on that map before CHAIRMAN: You wish to vote on that? you, it will show you the lines of demarcation used in the SHIMAMURA: Yes. Constitutional Convention and the lines of demarcation used under this method here. FUKUSHIMA: I don’t think we can vote intelligently on Delegate Shimamura’s motion. I would like the committee KAUHANE: According to this map here, it is not spelled to point out what the equal proportion is. We have talked out clearly to clarify the provisions of Committee Proposal about it for half an hour and I still don’t know how many No. 29. representatives we have to how many registered voters. CHAIRMAN: I think your point is well taken. The Chair CHAIRMAN: You want them to go into the arithmetic of will have that explained. Will you please explain the map on how they arrived at this, Delegate Fukushima? the desk of the Oahu delegates, chairman of the committee or Delegate Bryan? FUKUSHIMA: If we don’t do that we can’t vote intelligent ly on anything here when we have any amendments. BRYAN: The heavy dotted lines show the division used for the election in the Constitutional Convention. The letters HOLROYDE: In setting up these districts, after they within the circle are the combination designations. The were set up under your rule of equal proportions, each dis small numbers within the circles are the precinct numbers trict is first assigned one representative. From then on a and the light dotted lines are the precinct boundaries. The priority - - purple lines are the lines drawn to conform with the dis CHAIRMAN: I have been trying to get order. Will the tricting that is described in our appendix as proposed for the delegates please take their seats? island of Oahu. HOLROYDE: After these districts are established and CHAIRMAN: Is that clear, Delegate Kauhane? Do you agreed upon, each district is thereby assigned one represen have anything further to ask? tative. Mathematically from then on a priority list is made KAUHANE: Yes, I cannot tie in the fourteenth represent up, the district with the highest priority getting the next ative district with the map here. It says here, “that portion representative for his district, and then it goes right down of the island of Oahu known as Pauoa and more particularly the line until the full quota of representatives has been described in the schedule, five representatives.” According exhausted. In this case the island of Oahu, the whole JUNE 30, 1950 • Morning Session 111 thirty-three. Now if it would be helpful to the group, we (RECESS) could ask Mr. Dodge to work up that list of priorities on these districts as they stand. However, once you change CHAIRMAN: The committee will please come to order. the boundary of a district and change the number of regis It is now 4:20 and the Chair would suggest that we might tered voters, you have to re-figure your priorities to know rise at this point, if somebody would make such a motion. exactly what it means. HEEN: I move, Mr. Chairman, that the committee rise, MIZUHA: Before we go into that, as a delegate I would report progress and ask leave to sit again. like to know how they arrived at the various districts and the boundaries first, before we go into the question of J. TRASK: I second the motion. priorities. Who determined where the lines should be on CHAIRMAN: It has been moved and seconded. All in these various portions of the map of Oahu? favor signify by saying “aye.” Contrary. The ayes have it. CHAIRMAN: Will you answer that, Delegate Bryan? BRYAN: I think the only thing to say that could be very JUNE 30, 1950 • Morning Session truthful was that we were arbitrary. We allowed each mem ber to make his suggestion as to where we should gerryman CHAIRMAN: The Committee of the Whole will come to der, or whatever you want to call it. order. ASHFORD: Yesterday I offered an amendment to the FUKUSHIMA: On that hypothetical, arbitrary equal pro fifth representative district. I think there was under dis portion, you have on the island of Kauai 6792 registered cussion at that time some other representative district, voters, and you give Kauai four representatives. Then we but I will ask for the consideration of the Committee of the come to the districts of Koolauloa and Koolaupoko, there Whole of this amendment at this time, since one of the are 6,242 voters - - Maui delegates is going to have to leave shortly. MIZUHA: I rise to a point of personal privilege. CHAIRMAN: Delegate Ashford, will you hold that for just a moment? The chairman of the Legislative Powers CHAIRMAN: The Chair can hear without you raising Committee wishes to make a brief statement and I will your voice. recognize you immediately after that for the purpose of MIZUHA: I beg your pardon, Mr. Chairman. The pre your amendment. vious speaker is in error. Kauai has about 8,600 registered HEEN: As the record will show there was a minority voters, not 6,500. report, the Standing Committee Report 102, that was filed BRYAN: 8620. with the Clerk, and attached to that report is an amend ment to the Committee Proposal No. 29, insofar as Section CHAIRMAN: Take a note of that, will you, Delegate 3 is concerned, that being the apportionment of the House Fukushima. of Representatives. I did not call the attention of the Com FUKUSHIMA: I added up what Kauai has and perhaps I mittee of the Whole to that matter yesterday as I thought am wrong, but all I see is from this last Constitutional Con that we would go through the preliminary study of the method vention - - of apportionment and reapportionment. However, Mr. Chair man, I would like to have it understood that whatever is CHAIRMAN: I think you can rely on the Kauai delegation to be accurate on their figures. done in connection with the maj ority report, that that will not eliminate consideration of the minority report. That has FUKUSHIMA: [Part of statement not on tape.J Then in been the procedure so far. Koolaupoko you have 6,720 registered voters; 6,242 and there they are entitled to only two representatives. How CHAIRMAN: That is the understanding of the Chair, un does the equal proportion work there? less there is some objection. PORTEUS: I hope we don’t get into one of these round BRYAN: Mr. Chairman, may I answer that? There are the robin propositions as we did yesterday because of mis two reasons for that. One is that we are short of one repre understanding as to exactly what we have done. sentative in the House. If we had fifty-two members Koolau would get the fifty-second member. if you take the fifty-first CHAIRMAN: I don’t think there will be any misunder member away, I’ve forgotten, some district loses one. So standing. When we vote on something it will be not tentative that some district or several districts that are just on the and will require reconsideration. What Delegate Heen is edge of getting another one but don’t quite get it. Then there asking is leave to present the majority proposal and at a is another point which should be remembered. In applying later date, without foreclosing a consideration of his minor this method in the two-step fashion-which was referred to ity report. Otherwise he will have to introduce an amend as the fox trot in the committee—in applying it by islands ment right now. first, each island gets its basic representation before the PORTEUS: That is the point I wish to make, Mr. Chair’- districts on that island have been considered at all. In that man, was that yesterday there was a motion made to accept manner you can see that you can’t compare the island of the first sentence and that passed, and we don’t want to in Kauai with the districts on Oahu. if you want to make a troduce any greater element of confusion. Now that was not comparison let’s compare the whole island of Oahu with the on a tentative basis as I understand it. It was proposed and whole island of Kauai. it was passed. Now I don’t wish to foreclose the chairman J. TRASK: I move for a short recess, Mr. Chairman. of the committee from being able to present his ideas—if he does wish to present them that is fine—but I think after the CHAIRMAN: If there’s no objections the Chair will de lesson we had on Section 2, the motion on the first sentence clare a short recess. The clerks have been working pretty of Section 3 was for a flat adoption. So I want to keep the long here. record straight now, rather than waiting and arguing about LEGISLATIVE POWERS AND FUNCTIONS 112 this later. Then if the chairman wants to introduce this the Whole. I am thinking now particularly of the Judiciary other proposition, why we can reconsider our action and where the minority, without even having filed a report, made decide whether to go into this question of 41 or 43 or what their position known on the elective judges versus the appointed ever else it is. judges, and as each of these sections come up, where the minority is in opposition of course to the majority, they HEEN: I would like to have this situation cleared and make their amendments at that time. So that the actions clarified. My position is this, whatever action is taken on that we take are in themselves final. That is the only way the majority report even to the extent of approving the com we are ever going to get through this report. mittee proposal in regards to Section 3, that that will not foreclose the consideration of the minority report. Other HEEN: Well, if that is the case then I’ll offer the amend wise, I would have to present that now, upon receiving recog ment that is contained, or rather that is attached to the nition from the Chair, as an amendment to the provisions Standing Committee Report 102 as an amendment to Section of Section 3 as contained in the majority report. 3 as proposed by the majority report and then we can go along from that point on. Then I would ask for reconsidera yONG: I hope we will not get into the same mess we got tion of that paragraph one for that purpose. I am sure that in the other day. If we are going to consider the majority the majority does not want to foreclose the minority from report with the understanding that the minority report will debating the problem. be reconsidered later on, we are really voting on nothing. Now, I think the better thing to do is to let the chairman KING: As one who has voted on the affirmative on the present his minority report and then it is up to this assembly first paragraph of Section 3, I will make the motion to re to adopt the minority report or the majority report. There consider the action taken in approving the first paragraph is no use just in discussing the majority report and we vote of Section 3. on that and then say, “Well, that doesn’t mean anything, now CROSSLEY: I’ll second that motion. we can vote on the minority report,” and vote all over the same question. Now it seems to me that if there is a mino CHAIRMAN: It has been moved and seconded that we rity report, the minority report should be presented at this reconsider the action taken yesterday on the first paragraph time. of Section 3. All in favor signify by saying “aye.” Contrary. CHAIRMAN: May I ask the speaker, it is feasible to have HEEN: In order that the debate may be carried on intelli both reports before the body at the same time? gently, I think it is appropriate at this time that we have an explanation made as to that method of equal proportion by Mr. FONG: And then we can discuss it. If amendments are to Dodge of the Legislative Reference Bureau. After we get that be made to one report or the other, well let’s make the cleared in our minds, then I think that we can proceed much amendment and vote on it. more rapidly, if that is agreeable to the members of the LEE: I would like to state that as to other majority re committee. ports and minority reports, if I recall, we considered the WIRTZ: I might point out to the committee, if I may, that majority report first—and I have a distinct recollection as there is no disagreement in the committee. There was no to the Committee on Initiative, Referendum and Recall — so disagreement at all as to the method of reapportionment. that all the action taken in respect to the majority proposal The only disagreement is as to the number, so I concur with was taken tentatively. But since it was adopted in the sense the chairman’s suggestion that we have this preliminary ex that the minority proposal, when it was presented, was voted planation of the principle of equal proportion so that the Com down, you still achieve what you sought to do in the first mittee of the Whole can understand all amendments that might place. If we are to consider both of them at the same time be offered. now, we would be reversing our procedure heretofore es tablished. I have no objection personally either way, but HEEN: That is correct. Now, Mr. Chairman, there is on we should have an understanding as to what we are doing. the desk of every delegate a statement entitled: “Apportion ment and Reapportionment by the Method of Equal Propor CHAIRMAN: The Chair recalls that Delegate Nielsen tions.” This statement was prepared by Mr. Dodge of the had an amendment in regard to Initiative and Referendum Legislative Reference Bureau and, in order to appreciate when we first dealt with the question of the majority report the explanation made by Mr. Dodge, every delegate should and he was not foreclosed. Now, whatever way the body have that statement before him or before her and in that way wants to handle it, is of course agreeable to the Chair. probably follow a little more easily the explanation that is to KING: Yesterday we passed the first paragraph of Sec be made by Mr. Dodge. I now move, Mr. Chairman, that tion 3. That states that the number of representatives of the Mr. Dodge be allowed to speak to the members of this Com House of Representatives shall be 51 members. The mino mittee of the Whole and to explain this statement which he rity report starts right off by fixing the number at 41. If has prepared. we are to wade through the rest of Section 3, and argue CHAIRMAN: I was wondering if you would hold that. I about the reapportionment of those 51 members between the understand Delegate Ashford has a fairly short matter, and islands and between the smaller representative districts, some of the Maui delegation want to leave, and she’d like to and then go back and consider the minority report, we would get that before the body. If you’d hold your motion. have wasted the whole forenoon or afternoon. It seems to me that if Delegate Heen wishes to bring up his minority report ASHFORD: In the minority report there is provision now, he should bring up the first paragraph of the minority for the separate representation for Molokai and Lanai. In report as an amendment to the first paragraph of the major the majority report we are thrown in with Lahaina and ity report. given two representatives. I therefore wish to present an CROSSLEY: I don’t think there is any question as to the amendment to that, the sixth, seventh and eighth paragraphs procedure. I think that if the minority has a different idea of Section 3 of Committee Proposal No. 29, to read as follows, than the majority, that it would be handled in the same way and the amendment is on the desks of the delegates. I will that we have handled all the others in the Committee of move for the adoption of that amendment. JUNE 30, 1950 • Morning Session 113 Substitute for the 6th, 7th and 8th paragraphs, of of Delegate Ashford, and the question is whether or not we Section 3 the following: are going to act on that. “Fifth representative district: the islands of Molokai PORTEUS: Mr. Chairman, the difficulty in this situation, and Lanai, one representative; I believe from the point of view of those who are not on Maui, Sixth representative district: the islands of Maui and is that if we have a House of 51, we know that Maui is entitled Kahoolawe, five representatives.” to six. We know under the scheme as presented by the Com Renumber the subsequent representative districts to mittee that two go to a certain area, two to another and the conform.” balance to the remainder of Maui. The difficulty is, however, that we don’t know whether the number, as recommended by ST. SURE: I second the motion. the minority report, may be a House of 41. if it is a House of 41, Maui will not get six votes. Now if Maui does not get ASHFORD: May the amendment be taken up paragraph by six votes then your distribution is going to be different, and paragraph? those are at a disadvantage, it seems to me, who wish to KING: I really don’t see how we can possibly undertake support the majority report. It’s all right from the point of the consideration of this amendment. We moved for recon view of the minority who say, give one representative to sideration of our action on the first paragraph of Section 3. Molokai and Lanai and let all the rest run at large. That’s This amendment goes to the latter part of Section 3 and, as fine, it’s clear cut, but it puts those at a disadvantage who pointed out by Delegate Ashford, would not be applicable if wish to preserve the districts because they don’t know how the minority report is accepted in place of the majority re many people are going into a district and they can’t make port of Section 3. So, with all due respect to the lady dele the proper argument until they know what the number in the gate, I feel that the motion to amend a section that is not House is going to be. before the delegation is not in order. CHAIRMAN: Is it your position that this motion is out of CHAIRMAN: The Chair was just trying to facilitate the order at this time, Delegate Porteus? convenience of the delegate from Molokai. PORTEUS: It seems to me that the motion is out of order and that there is no disposition I’m sure to prevent anyone WIRTZ: Might I add this thought, as expressed by the from Maui from having a vote, and we can vote on this at the movant, that regardless of what, whether we accept the very end after we have dealt with all the rest of the districts majority or the minority report, this amendment will fit in this section. in. The majority report divides Maui into three districts as shown on the map. The minority report divides Maui HEEN: I now move that consideration of the amendment into two districts in accordance with this amendment, and proposed by Delegate Ashford be deferred until later. this amendment is being made to the majority proposal. So HOLROYDE: I’ll second the motion. that if the Convention later adopts the minority proposal, this will fit right in. CHAIRMAN: ~lt has been moved and seconded that con sideration of Delegate Ashiord’s motion, relating to the CHAIRMAN: Did you hear the explanation, Delegate King? districting of Maui, be deferred until a later date. All in Are you agreed with that explanation? favor signify by saying “aye.” Contrary. It is carried. KING: I don’t know whether it is possible to take up an SILVA: I just want to get this straight. Was it deferred amendment to a matter that is not before the Committee of to a later date or a later hour? You said “later date.” Now, the Whole. “later date” means after today. HEEN: As I understand it, the idea was to have this CHAIRMAN: Later time. amendment placed in the record without acting on it now, because one of the members of the Maui delegation is HEEN: I renew my motion that Mr. Dodge be allowed to leaving before we perhaps reach that point. In other words explain the statement that was prepared by him. we can defer action or defer consideration of this proposed CHAIRMAN: Mr. Dodge, will you proceed with the ex amendment until it comes up in regular sequence. planation. CHAIRMAN: I will entertain a motion to defer Delegate BRYAN: I would like to preface his remarks by saying Ashford’s amendment. that I think it is very much in order that we hear from him. NIELSEN: As I understand, it doesn’t make any difference It took the committee at least three hours to understand it whether we take the amendment to the whole article in Sec themselves. tion 2 [sic] or the minority report. Maui still gets six repre HEEN: I’d like to amend that, it took about ten days. sentatives, so it’s just a question of who and where they are placed, so it shouldn’t make any difference, if Maui wants it, MAU: If the standard that is being used, known as the why we ought to give it to them. equal proportions, is so difficult to understand, why adopt such a standard? Why don’t we use some other standard? ROBERTS: I have one or two alternative suggestions to make. I have opposed the use of the motion to table, but a CHAIRMAN: It is a statutory standard contained in the motion to table is perfectly proper to put on the table until United States Code and maybe the witness will enlighten the we want to consider it. It would, therefore, be in order to body. That is why he is called here, Delegate Mau. table Mr. Heen’s motion and take up the suggestion made Will you proceed, Mr. Dodge. by the delegate from Molokai or, on the alternative, to move to defer Mr. Heen’s action, until such time. I would there DODGE: I’d like to point out to the body that I don’t fore move, Mr. Chairman, to defer - - think it is going to take hours to explain this. It took me about eight hours to understand it. Delegate Bryan said that CHAIRMAN: Delegate Roberts, the Chair will advise you the committee understood it in three. I hope it is boiled down there is only one motion before the body, namely, the motion now so that the delegates can understand it in 15 minutes. 114 LEGISLATIVE POWERS AND FUNCTIONS As the chairman of the committee pointed out, there is on major fraction; so you can’t round it to nine members, you the desk of each of you an explanation, not only of the method have to leave it at eight, then you drop 4.99 - - or .499 mem of equal proportions, but the reason why that method was bers. Similarly with Maui. Assume a slightly different chosen. registered vote, and again 5.499 is the answer. You can’t Now, it starts with an objective that you try to reach round it to six it must stay at five. The same situation with when you make an apportionment of any body. That objective Kauai and Oahu. Now you round those to the nearest whole is to have each member of that body representing as nearly number and you come out not with eight, six, four and 33, as possible the same number either of voters or of people but you come out with eight, five, three and 33 and you add or whatever standard you are using. Now if we start out those up and you get a total membership of 49. You wanted with a House of 51 members, theoretically each member of to get 51, so you’re immediately faced with a problem that the House would represent 2,445 registered voters because must be settled rather arbitrarily. You have two extra mem the total number of registered voters divided by the total bers of the House to apportion. Which of those four counties number of members of the House results in a quotient of is going to be entitled to it? They all have precisely the 2,445. Now there wouldn’t be any problem at all if each same remainder and so the allocation of one of the two mem district that was to elect a member had a population of bers to any one district must necessarily be arbitrary. registered voters that was always an exact multiple of your By the same token if you take straight percentage, of quotient, and there are figures that illustrate that in the course you arrive at the same figure that is shown here by second section of the explanation under the heading “The the ratio because the ratio is actually an expression in a Problem.” There I have given as a total population of reg different way of a percentage. So you get the same result istered voters for the four islands certain figures. I worked there, and if you use a straight percentage figure there will those backwards so that they had to come out in exact multi be times when you will round to the next higher number in all ples, but if the County of Hawaii was always at a fixed popu cases and come out with the House totaling 52 or 53. Then lation of registered voters of 19,560, and similarly if the you have to decide where you should put - - from which dis total registered voters of the territory was always 124,677, trict you should take away a member. You might come out you would never have any difficulty because 2,445 would go with 49 and then you have to decide which district gets an into those numbers equally, with no remainder. Neither additional member. would you have any problem if the total membership of the It is for this reason that these simple methods will not body of the House was exactly equal to the number of dis always give you the answer you want, will not always solve tricts from which you were going to elect the members, and the problem. Expert mathematicians have come up with each district would be entitled to one member. You have no these series or a number of different methods of apportion problem of apportionment then, because each district is en ment. Now all of these methods, and the method of equal titled to but one member and you don’t have any left over. proportions is one of them, is a method that permits you, in The problem does arise when you add to the total mem all cases, no matter what the figures, to come out with the bership of the body an additional member which is over and answer that you want to get, in all cases with the House of 51 above the number of districts or counties in the territory or in all cases with the House of 49. You have no fractions or the new state. Then if your House has a total of four left over. You are not faced with the arbitrary decision of members, then Hawaii, Maui, Kauai and Oahu is entitled to which district should an additional member go. to one member, then you wouldn’t have any problem of ap Now to restate the problem - - we’re on page 3 now. Un portionment. The problem arises when you have a House der what conditions would it be fairer to assign an additional of one more, or a House of five. To which basic area, or to representative to basic area A, for example Hawaii, in pre which county, should that one additional representative be ference to assigning an additional representative to basic allocated? Progressively on up the scale from five members area B, or Oahu. Similarly when you get down into repre to six, on up to 51. In each instance, when you add an addi sentative districts, under what conditions would it be fairer tional member to the total membership of the House, you have to assign a member to—well, the committee yesterday was the problem of which district is most equitably entitled to discussing the twelfth district —under what conditions would have that representative from that district. it be fairer to assign members to the twelfth instead of an Now getting on to page 2 of the report. The problem ex additional member to the eighth district over in the Koolau ists in using simple methods because they don’t always work area. Now that is the thing that the method of equal propor out. I have illustrated that by showing that when you divide tions and the method of maj or fractions and several others) the actual number of registered voters in each of the basic each of which uses a priority list of numbers, that is the areas by the quotient of 2,445, the quotient that you then get, solution offered by those methods. the number of representatives, are fractional representatives. Now it gets a little involved from here on in. Whenever For Hawaii it is 8.37 rEpresentatives, for Maui it is 5.79 and there is a difference, and of course you’re going to have a so on. Now it is merely coincidence that with a House of 51 difference between the various districts as it was pointed and the present population of registered voters, the distri out in the first pages of the report, all your districts are bution among the four basic islands comes out to the same not going to be of equal multiples of your basic quotient. as the committee proposal under the method of equal pro There’s going to be differences; you’re going to have frac portions. It is also only coincidental that the total member tions, fractional parts, less than half a ratio, more than half ship of the House after you add up the individuals comes to a ratio left over, so whenever there is a difference —and 51. you are always going to have them—that difference is the I point out in here that a single positive example of a least when it is measured in terms of its relation to the method does not mean that that method will in all cases be valid. But a single negative example will prove its failure and I prove the failure of the simple method of doing this by assuming slightly different figures for total registered Note: On the following six pages is a facsimile repro - votes. On Hawaii, I have assumed that instead of 20,468 duction of the explanation of the equal proportions method which they actually have, that that island have 20,780. Your of apportionment and reapportionment which was given quotient that then results is 8.499, not quite 8.5, not quite a to the delegates and explained by Mr. Dodge. JUNE 30, 1950 • Morning Session 115 APPORTIONMENT AND REAPPORTIONMENT BY THE METHOD OF EQUAL PROPORTIONS AN EXPLANATION THE OBJECTIVE: To apportion the total membership of the house of representatives so that each member will represent as nearly as is possible the same number of registered voters.’ For a house of 51 members the objective would then be: 124 677 (total number of registered voters, 1950 Constitutional final election) = 2445 51 (total number of members of house) or: each member representing 2445 registered voters. THE PROBLEM: There would be no problem if the total membership of the house was set at 4 and each county was entitled to 1 member. The problem arises when the house is increased in membership from 4 to 5, and, progressively, from 5 to 51. Stated simply, the problem is: which county is most entitled to each of the additional members of the house? Even then there would be no problem if each county had and would continue to have a population of registered voters which was an exact multiple of 2445. Thus, if the population of registered voters in each county were: Hawaii 19,560 Maui 14,670 Kauai 9,780 Oahu 80,685 then the number of members each county would be entitled to elect could easily be determined by simple division: Hawaii 19,560 8.0 Maui 14,670 2445 — 6.0 Kauai 4.0 80,685 Oahu 2445 = 33.0 1 Registered voters happens to be the basis for apportionment decided upon by the Committee. The explanation throughout would, however, be equally applicable if the basis were to be total population, citizen population or number of votes cast in any given election. 116 LEGISLATIVE POWERS AND FUNCTIONS Similarly, there would be no problem in determining the number of members the respective representative districts would be entitled to elect if, within each county, the number of reg istered voters in each district were and would continue to be equal to exact multiples of 2445. Simple division would achieve the result desired. But, the problem exists because the membership of the house is to be larger than 4, and each county does !2~ have a pop ulation of registered voters in an exact multiple of 2445, nor do the several representative districts within each county. To illustrate: Hawaii 20,468 (registered voters) = 837 Maui 14,163 = Kauai = 3 525 2445 81,426 — Oahu 2445 — 33.30 When the results are rounded to the nearest whole number, the number of members for each island, coincidentally, is 8-6—4 and 33, and the total membership is equal to 51. A single positive example does not establish the validity of a method, but a single negative example, either actual or hypo thetical, will suffice to demonstrate its failure. By merely assuming slightly different numbers of registered voters, the failure of the above simple method is immediately apparent. Assume: Hawaii 20,780 (registered voters) 8 499 2445 13,445 Maui — 5.499 8,555 Kauai = 3.499 Oahu 2445 Rounded to the nearest whole number, the result is 8-5-3 and 33, and the total membership is equal to only 49. Two members must be added somewhere to bring the total to 51. But which district is most entitled to an additional member? Each has precisely the same fractional remainder. A straight percentage will give a similar result, and will not always yield the desired answer. -2- JUNE 30, 1950 • Morning Session 117 Consequently, the solution of the problem necessitates some method the use of which will assure that the total number of members will be apportioned among the several areas so that, at no point, nor under any assumed set of figures, will the assignment of members depend on arbitrary action, but will in each instance result from the application of ~ predetermined, unchanging standard. THE SOLUTION--THE METHOD CF EQUAL PROPORTIONS:2 The problem restated: Under what conditions would it be fairer to assign an additional representative to basic area A in preference to basic area B? Similarly, under what condi tions would it be fairer to assign an additional representa tive to district 8 in preference to district 12? Whenever there is a difference between the population of reg istered voters in any two areas, or between the number of voters that the members elected from those areas represent, that difference is the least when measured in terms of its relation to the smaller of the two numbers. In mathematics, the relative difference between two numbers is measured by their geometric mean. Hence, the method of equal proportions uses the following processes of computation: Area A deserves an additional representative when its population of registered voters, divided by the geometric mean of its present assignment of rep - resentatives and of its next higher assignment of representatives, is greater than the population of registered voters of any other area divided by the geometric mean of the present assignment to such other area and its next higher assignment. In order to compute the relative claims of each area, or representative district, a priority list is prepared. The figures for the priority list are obtained by dividing the number of registered voters of the area by the geometric means of successive numbers of representatives. The geometric mean of two numbers if equal to the square root of their product, thus, for area A’s 2nd representative, the computation is: Priority No. No. of registered voters / 2 (2-1) 2 Actually, any one of several methods which make use of a priority list will solve the problem. The method of equal proportions has been chosen because it is the one which giv~ the most equitable distribution of members among the districts, and because it is the method used in Congressional apportionment. —3- 118 LEGISLATIVE POWERS AND FUNCTIONS and for its 3rd representative: Priority No. = No. of registered voters / 3 (3-1) Applied to the county of Hawaii: Priority No. for Hawaii’s 2nd rep- 20,468 , or resentative ________ / 2 (2-1) — 20,468 — 1.414,213,6 — 1447 for its 3rd member: p3 = 20,468 /3(3-1) P3 = 835 and for its 4th member: P4 = 590. Applied to the county of Maui: = 14,163 /~(2-1) 1001 and P3 578. Listing the priority numbers in sequence to determine, as between Hawaii and Maui which is most entitled to its second and its third representative: Priority No. County Number of Members 1447 Hawaii Its 2nd 1001 Maui Its 2nd 835 Hawaii Its 3rd 590 Hawaii Its 4th 578 Maui Its 3rd. Following is a listing of the priority numbers for each of the four basic areas. Because each basic area is initially en titled to 1 member, the size of the house begins at 4, and it is the assignment of the 5th and subsequent members that is determined by the priority list. -4- JUNE 30, 1950 • Morning Session 119 PRIORITY LIST -- FIRST STEP -- BASIC AREAS Total No. of Members Priority No. Basic Area Cumulative Total in House for Each Area 5 5757 Oahu 2 6 3324 Oahu 3 7 2350 Oahu 4 8 1820 Oahu 5 9 1486 Oahu 6 10 1447 Hawaii 2 11 1256 Oahu 7 12 1088 Oahu 8 13 1001 Maui 2 14 959 Oahu 9 15 858 Oahu 10 16 835 Hawaii 3 17 776 Oahu 11 18 708 Oahu 12 19 651 Oahu 13 20 609 Kauai 2 21 603 Oahu 14 22 590 Hawaii 4 23 578 Maui 3 24 561 Oahu 15 25 525 Oahu 16 26 493 Oahu 17 27 465 Oahu 18 28 457 Hawaii 5 29 439 Oahu 19 30 417 Oahu 20 31 408 Maui 4 32 397 Oahu 21 33 378 Oahu 22 34 373 Hawaii 6 35 361 Oahu 23 36 351 Kauai 3 37 346 Oahu 24 38 332 Oahu 25 39 319 Oahu 26 40 316 Maui 5 41 315 Hawaii 7 42 307 Oahu 27 43 296 Oahu 28 44 285 Oahu 29 45 276 Oahu 30 46 273 Hawaii 8 47 267 Oahu 31 48 258.57 Maui 6 49 258.52 Oahu 32 50 250 Oahu 33 51 248 Kauai 4 52 243 Oahu 34 53 241 Hawaii 9 54 236 Oahu 35 55 229 Oahu 36 As shown by the above list, Hawaii becomes entitled to its 8th member when the house is increased from 45 to 46; Maui its 6th when the house is increased from 47 to 48; and Kauai to its 4th at 51. -5- 120 LEGISLATIVE POWERS AND FUNCTIONS A similarly computed priority list is shown for the apportionment of Oahu’s 33 members among the several districts on Oahu. For the purpose of illustrating why a change in district boundaries effects a change in the apportionment, the districting agreed upon by the Committee on Legislative Powers and Functions is shown at the left, and that suggested by Delegate Shimamura is shown at the right. Total Priority District Cumulative Total Priority District Cumulative Total Total 11 1102 Manoa 2 10 1102 Manoa 2 12 910 Pauoa 2 11 945 Nuuanu 2 13 671 Kaimuki 2 12 910 Pauoa 2 14 636 Manoa 3 13 671 Kaimuki 2 15 529 Kalihi 2 14 636 Manoa 3 16 525 Pauoa 3 15 545 Nuuanu 3 17 481 Kapalama 2 16 529 Kalihi 2 18 463 Nuuanu 2 17 525 Pauoa 3 19 450 Manoa 4 18 450 Manoa 4 20 444 W. Rise 2 19 444 W. Rise 2 21 441 Koolau 2 20 441 Koolau 2 22 417 Ewa 2 21 417 Ewa 2 23 387 Kaimuki 3 22 387 Kaimuki 3 24 371 Pauoa 4 23 385 Nuuanu 4 25 348 Manoa 5 24 371 Pauoa 4 26 305 Kalihi 3 25 348 Manoa 5 27 295 Wahiawa 2 26 305 Kalihi 3 28 287 Pauoa 5 27 298 Nuuanu 5 29 284 Manoa 6 28 295 Wahiawa 2 30 278 Kapalama 3 29 287 Pauoa 5 31 274 Kaimuki 4 30 284 Manoa 6 32 267 Nuuanu 3 31 274 Kaimuki 4 33 256 W. Rise 3 32 256 W. Rise 3 34 254 Koolau 3 33 254 Koolau 3 35 241 Ewa 3 34 244 Nuuanu 6 35 241 Ewa 3 CONCLUSION: The objective was to have each member of the house represent as nearly as possible the same number of registered voters, namely, 2445. The result, under the method of equal proportions is as follows: Hawaii 1-2559 Maui 1-2361 Oahu 1-2467 Kauai 1-2305 1st 1—2355 5th 1—1933 8th 1—3121 18th 1-2305 2nd 1-2650 6th 1-2797 9th 1-2086 3rd 1-2348 7th 1—2352 10th 1-2953 4th 1-2584 11th 1-2497 12th 1-2164 13th 1—2271 14th 1-2574 15th 1-2599 16th 1-2374 17th 1-2095 Legislative Reference Bureau University of Hawaii June 30, 1950 JUNE 30, 1950 • Morning Session 121 smaller number. That is the relative difference as distin for its second member its priority is 1,001; for its third guished from an absolute difference. Now in mathematics member it’s 587. the relative difference between two numbers is the least Now when you get these individual priority numbers for when measured by their geometric mean. If you want to your various districts, all you db is merely list them in get the least absolute difference, you use the arithmetic sequence; that is illustrated by this little part set off in mean, but the least relative difference is the one that gives brackets here. To determine just as between Hawaii and you the most equitable proportion. The method of equal Maui, which is first entitled to its second, and which is first proportions is based on the geometric mean which gives entitled to its third and so on, you list the priority numbers you that least relative difference, and it is for those reasons without regard to county, but with regard only to relative that the method of equal proportions uses the following com sequence; in order, listing down 1447, 1001, 835, 590, and putation. 578. And Hawaii, therefore, has the highest priority num Now in all cases this is the process of computation that ber for being entitled to its second representative so it first is gone through. Area A deserves an additional representa becomes entitled to that. The priority number for Maui for tive —that’s an additional one to what it now has, if it now its second is higher than the priority number for Hawaii has four, it deserves a fifth, if it now has three, it deserves for Hawaii’s third member, so Maui gets its second member fourth, and so on —when its population of registered voters before Hawaii gets a third. Hawaii has a higher priority divided by the geometric.mean of its present assignment, number for both its third member and for its fourth member for example, four, and of its next higher assignment, for than Maui does for its third, so they get the next two repre example, five, is greater than the population of regis sentatives and the following one goes to Maui. tered voters of any other area divided by the geometric mean There is on page 5 the tabulation of the priority list made of that area’s present assignment of representatives and the up for the territory as a whole based on 1950 registered vote next higher assignment to that area. In other words, assume of the Constitutional [Conventionj final election, assuming you have two members from each island, now when is Island four basic areas, each county as one area and, of course, One going to be entitled to its third member before Island each county being basically entitled to one member. So Two is going to be entitled to its fifth or sixth member? The your problem is when you increase the membership from priority list determines that procedure. four to five which island, which basic area, is entitled to Now, in order to compute the relative claims of each of that fifth member. The priority list determines that, and these basic areas you use a priority list, and the priority if you notice that by adding the fifth, sixth, seventh, eighth list is determined by dividing the number of registered and ninth members to the House, Oahu, because it in each voters of each basic area in the initial step of the apportion case has the highest priority number, becomes entitled to ment or by the number of registered voters in the district its second, third, fourth, fifth and sixth members. When in the second step of apportionment, by the geometric mean you get down to the total sine House that you want to get, of successive numbers of representatives, that means by the 51 members, down near the bottom of the page, the last geometric mean of two and three, of the geometric mean of county that became entitled to a member, or the county that three and four, of the geometric mean of five and six, and became entitled to the fifty-first member that is added, is on up to Oahu 32 and 33. Now the geometric mean of two Kauai, and that becomes Kauai’s fourth member. As shown, numbers is equal to the square root of their product. Thus you can pick out the figures for the other islands. Hawaii for example, in Area A’s representation the computation is becomes entitled to its eighth member when the House is that the priority number is equal to the total number of reg increased from 45 to 46, Maui to its sixth when the House istered voters in that area, divided by the geometric mean is increased from 47 to 48, Oahu its thirty-third when the which is expressed at the bottom of page 3 by the square House is increased from 49 to 50. root of - - the product of two successive numbers and for - - Well, that is the system for the initial apportionment of There is an error. the number of representatives of the House among the several basic island units. Once that is done and once you get the HEEN: That word” if” - - answer of eight for Hawaii, six for Maui, 33 from Oahu, and DODGE: Should read “is.” four to Kauai, you repeat the process by apportioning those members for each island among whatever representative HEEN: - - should read “is.” districts you have established on that island, and you do it in precisely the same mathematical manner. You take the DODGE: “Geometric mean of two numbers is.” There’s total population of registered voters of each district, divide a typographical error there. Well, for the priority list for it by the geometric mean of the next higher successive a third representative for any given district then, you take numbers and you get a priority number. You do that for each the total population of registered voters and you divide that district and you list those priority numbers in sequence and by the square root of the next highest sequence of numbers, that determines which district is most entitled to that addi the product, the geometric mean. tional member. Now, let’s apply that to the island of Hawaii, for a specific On the left, on page 6, which isn’t numbered, on the last example. The island of Hawaii becomes entitled to its second page of the report, on the left side of the page is a table representative - - Well, I’ll put it this way, the priority num which shows the apportionment of members on Oahu in ber that determines when Hawali is entitled to a second accordance with the representative districts that were agreed representative is arrived at by dividing the total registered upon by the committee. You notice that that starts at the vote on Hawaii, 20,468, by the geometric mean of the pro eleventh member because there are ten representative dis duct of two times two minus one or its increase from one tricts under that scheme. Delegate Shimamura’s suggestion member to two members. That priority number is 1447. yesterday to consolidate two districts means that you have Now for its third member, the same computation is gone not ten representative districts among which to apportion through except that you use the geometric mean for the next the members but nine, and so your problem comes down a higher successive number and the geometric mean - -, I little sooner as to who gets the tenth member, not who gets mean priority number for Hawaii’s third member is 835; the eleventh but who gets the tenth one, and therefore you for its fourth, it is 590. Now, applied to the county of Maui, have one more member to apportion between the represen 122 LEGISLATIVE POWERS AND FUNCTIONS tative districts. Now those two tables, the one on the left who know far more about relative and absolute differences being the apportionment among the districts as determined than I. by the committee, the one on the right being in accordance C. RICE: Is that on the census? with the proposal made yesterday, are shown. Now under that system the apportionment that was suggested in the DODGE: The Congressional apportionment happens to committee proposal is arrived at. Two for Koolau, two for be on census, that’s true. Wahiawa and Walalua and so on. C. RICE: Then I am going to bring up a point a little Under the proposal suggested by Delegate Shimamura, later. Mr. Chairman, I want to bring up this point right consolidating the two districts changes the sequence in which now. Why didn’t they take the votes cast instead of the the priority - - well it changes the priority number for that registered votes at the last election? You know the regis district and it changes the sequence in which that priority tered votes. The clerk needn’t take off the absentees, the number will fall in the priority list. That is the reason why dead men or anything. You take just one district, the island it drops from a divided representation of three for each dis of Hawaii. East Hawali had 15,301 registered voters, only trict - - or six, to combined representation of five and why 10,901 voted. West Hawaii had 5,167 and 4,606 voted. I that other member, that sixth one, goes all the way over the want to have it on the men who go to vote, the people who ridge to Koolau because Koolau becomes, under this method, go to vote. You can see - - I know that they can - - if a more entitled to that additional member than does the Nuuanu county clerk wants to leave all the dead men on, they can area. Now if you’ll also notice that if Oahu would be entitled leave them on the registered list, we’ll have a padded list. to thirty-four members, Delegate Shimamura’s suggestion Congress bases it on the - - would achieve six for that district; whereas if the committee proposal is taken and the House is increased for Oahu to PHILLIPS: Point of information. I can just barely hear thirty-four, then the Koolau area becomes entitled to it. the delegate. I wonder if he could speak closer to his micro Well, that is the method of equal proportions. It is the phone. method used by Congress, as the chairman of the Committee C. RICE: I thought I was speaking too loud. Can you hear of the Whole has pointed out. It was chosen together with that? I’d be very glad because I think Mr. Phillips has some another method which measured the difference in absolute thing along this line. According to this vote and according terms instead of relative terms. But in 1941, Congress to the committee report, East Hawaii would have for 10,901 amended that and now only the method of equal proportions voters, they’d have seven representatives. West Hawaii for is used. 4,606 voters that voted, they would have two, isn’t it? You Now in getting back to the conclusion here, the objectives take Maui. Maui 14,163 registered voters, 11,393 voted. that we were trying to achieve in the method of apportion What do they get—six? Yet they had more voters voting than ment was that each member of the House represent as near East Hawaii. You take your fourth district, you have 44,247 ly as possible the same number of registered voters. There registered voters but 3,512 were all that voted. is a tabulation at the bottom of the page which shows how close we came to the objective. I might say this is as close BRYAN: Mr. Chairman. as is possible to come to the objective under any system of apportionment that has ever been devised. For the state C. RICE: 34,000. I’m taking this from this - - as a whole it’s 1 for 2445; for the island of Hawaii as a BRYAN: Is that from the constitutional election? whole it’s 1 to 2559; for Maui, 1 to 2361; for Oahu, 1 to 2467; for Kauai, 2305. Now within each of those islands C. RICE: Yes. the representation is as shown below and they are pretty BRYAN: I think the question can be - - uniform. You will notice under Oahu, the eighth district, which is the Koolau area, is under-represented. It has one CHAIRMAN: Delegate Bryan, can you answer that representative representing 3100 voters. But that’s because problem? it would be the district next entitled to have one member. BRYAN: There were two questions posed. The last Similarly you find those that are quite high on the priority question was as regards the figures on those voting and list for the last representative they got being slightly over- those registering. In the Constitutional election, several represented, such as the Waialua-Wahiawa areas which is delegates were elected outright which meant those voting in the ninth district, whose representatives will represent the general election - - in some precincts, nobody voted at only 2000 voters. But, nevertheless, the method gets as the general election. nearly as it is possible to get the most equitable distribution when it’s measured in terms of the number of people that a C. RICE: That is only on Kauai. representative is representing. I’d be glad to answer any BRYAN: I think we have cases on Oahu where people questions that the delegates have on this matter. It is com were elected outright. They were - - plicated. C. RICE: No. LOPER: May I ask a question about paragraph 3 on page .BRYAN: - - and people didn’t come to the polls because - - 3, where I read that the difference is the least when meas ured in terms of its relation to the smaller of two numbers. CHAIRMAN: DelegateS King was elected outright; the I don’t understand that because the difference between 80 Secretary was elected outright. and 100 is 20 and if you compare that with 80 it is 25 per C. RICE: Yes, but there were other voters in those dis cent and if you compare that with a larger number 100, it’s tricts, they are all registered voters, and goes on the gener 20 per cent. al election in the last election. DODGE: I knew I’d have to call for help. This that I am BRYAN: I wanted to - - going to quote from is a book on Congressional reapportion C. RICE: Same proportion. ment which was published by the Brookings Institute in col laboration with a number of the other expert mathematicians BRYAN: I wanted to get to the - - JUNE 30, 1950 • Morning Session 123 C. RICE: Same proportion. that we accept this method of equal proportions as worked out by the committee, and if we do that it seems to me we CHAIRMAN: Will you please address the Chair and dis continue this conversation back and forth. won’t be bickering about a little here and a little there. HEEN: I second that motion. C. RICE: I want to show, then in the fifth district there were 37,179 voters—that’s including Waimanalo, Kailua and CHAIRMAN: It has been moved and seconded that we Lanikai—had 20,102. I want to say that if you take the basis adopt the method of - - accept the method of equal proportiOns of registered votes it might be a fictitious number. Why as proposed and recommended by the committee. should we apportion for the fellows that are on the list? MAU: I want to ask whether there is any difference be Why shouldn’t we reapportion to those people that vote, tween the Congressional method and this method. I under they’re the ones that are entitled to reapportionment. People stand that this method is provided for in the Constitution of that don’t exercise their privilege of voting shouldn’t be the United States. counted. CHAIRMAN: No, by statute, Delegate Mau. HEEN: I think the using the basis of votes cast is not a reliable one because there are a lot of factors involved MAU: By statute? What is the difference between that there. In one area they may not show up on account of rain used by Congress and that used by the committee? and probably that’s what happened over in Hawaii. Over in DODGE: No difference. West Hawaii, where they have a dry climate, they all turned out; and over in East Hawaii, it must have rained pretty CHAIRMAN: The answer is no difference. bad and a lot of them didn’t turn up. Therefore, it is not a MAU: I understand that there is an essential difference, reliable standard to go by. There are a lot of other factors that Congress uses population as a basis, and they’re using to be thought of and - - I’m addressing the Chair, but looking here, registered voters. I am wondering whether or not at the delegate from Kauai. There’s only one place in the that does make a difference in the working of this complicated Union where they use the votes cast as a standard in deter method. mining the number of representatives and that’s Arizona, votes cast for governor at the last preceding general election. CHAIRMAN: We would like to have an answer from some No other state uses that measure. In Massachusetts it’s body who has those facts. based on the number of legal voters, which means the same ROBERTS: The report prepared by the committee indi thing as registered voters, both for the Senate and the House. cates in a footnote that “Registered voters happens to be And in Rhode Island, qualified voters, that method is used for the basis for apportionment decided upon by the committee. the apportionment of the members of the Senate; in Tennessee The explanation throughout would, however, be equally appli they use qualified voters, both for the Senate and the House; cable if the basis were to be total population, citizen popu and in Texas, qualified electors for the Senate. lation or number of votes cast in any given election.” I would I might add that we had to resort to some official figures like, Mr. Chairman, to speak in favor of the motion for the in order to use as a basis for apportionment and reapportion use of - - ment, and the only official figures that we can rely on is the registration of voters as kept by the various clerks of the MAU: Mr. Chairman, I believe I still have the floor. various counties. We cannot use population because there’s CHAIRMAN: I believe not, you asked the question. no method under which we can use the federal census to show how many people live in these ten districts, say, on the MAU: And it was not answered to me until just now. island of Oahu. You can’t tell how many of those are citizen Delegate Roberts was the one who answered the question. voters in these various districts. Therefore, we have to I accept that answer. But I - - resort to some method where you could get official figures. CHAIRMAN: You rose to ask a question and your ques C. RICE: I still say that the people that vote are the ones don has been answered, Delegate Mau. In the meantime that ought to be counted. the Chair has recognized another delegate. CHAIRMAN: I think you’ve made your point, Delegate ROBERTS: Mr. Chairman, I will yield to the delegate Rice. from - - C. RICE: I don’t want to take you any longer. I haven’t CHAIRMAN: Very well, Delegate Mau. spoken very much on this floor and I resent you calling~ me MAU: I wonder if the gentleman who has been explaining down and trying to shut me off. this complicated method this morning would explain how CHAIRMAN: I didn’t intend to call - - I’m quite sure the Wahiawa, Ewa. and Waialua have been arranged under this delegate didn’t mean that. I’m just saying that you’ve made method. I don’t have it in the sheet that was passed around your point clear. You made it clear to the chairman. to the delegates. This here ends with combination X under the Constitutional method of selection of delegates. NIELSEN: I wanted to take exception to the fact that the weather was the reason for the voting in West Hawaii. It is PORTEUS: Point of order. I understood the motion to the Americanism that we practice and preach over there. be the question of equal proportions, which was the subject matter to which I thought Delegate Roberts was prepared to LARSEN: I would like to urgently ask the delegates if address himself. they would give up some of the bickering about one or two CHAIRMAN: The point is well taken. Will you address and think about 51. It seems to me this committee deserves yourself to the motion, Delegate Mau? a tremendous lot of credit. They have gone through a tre mendous job; they went for weeks and weeks; they have done MAU: I think it is directly on the point. If I don’t under a good job; it’s a mathematical job. We can’t suddenly throw stand how they have arranged it and it is arranged under this it out of kilter here and it seems to me we ought to give method, how it works in various precincts, I would not know them full credit for it and I would like to make the motion how to vote. 124 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: The vote can be made on the method of to me if a man has enough citizenship to go and register, that adoption without reference to any map. The Chair will now gives him a reason for being counted. recognize Delegate Roberts. MAU: I rise to a point of order. ROBERTS: The procedure suggested of equal proportions CHAIRMAN: State your point of order. is a perfectly rational and easy method of application. The problem which some of the delegates are facing however MAU: The last motion which was passed and this motion seems to tie on to other problems, the problem as to where which is now before the house concerns Section 4, which deals the lines are drawn in each of the districts and the question with the method and also deals, I think, with how that method as to whether or not it ought to be on the basis of total popu will be used, whether by population basis, registered voters lation or on the total number of votes cast. I think this or votes cast. I thought that we were dealing with Section 3. procedure used by the committee is a fair one and can be HEEN: In determining the number of representatives from applied, and I therefore urge that it be adopted. I would indi these four basic areas and the number of representatives cate, however, that even though we adopt the equal propor from the’ various representative districts, that determination tions method I would feel free to discuss the question as to was made on the basis of registered voters, although it whether it should be on the matter of registered voters, doesn’t say so in Section 3; but that was the actual basis upon votes cast or on a basis of population. which the apportionment was made, that is the initial appor C. RICE: I hate to speak too often - - tionment as set forth in Section 3. CHAIRMAN: You’re one that has not offended in that FUKUSHIMA: I would like to ask the chairman of the respect, Delegate Rice. Legislative Committee how many states based their repre sentatives on the population basis? C. RICE: On page 5, this proportion would not have to be changed at all. You turn to page 5, where you say on HEEN: That is found on page 31 of the Manual. I haven’t the fourth line “voters registered,” you say “voters voting counted the number; there are quite a number of them based at the last,” instead of “registered.” Then you come down on population. to - - in the next paragraph, everytime it says “voters AKAU: For Mr. Fukushima, as far as I can figure out, the registered” you say “voters voting at the last general elec only states that don’t base their voting - - their reapportion tion.” This would be an incentive to get your voters out, ment on population are the states of Texas and Tennessee. too. I know that there’s a record of all these votes just the They are the only ones who don’t. same as they are registered and you wouldn’t have dead men and absentees counted. I know a lot of these Republicans BRYAN: I would like to answer that question. If I am are always trying to get a big vote for the delegates so as to allowed without being out of order to speak on the motion, have so many delegates in the convention, and so forth, and I think I can clear the point up that was raised by Delegate that is one incentive they have to get the vote out even when Fukushima. The problem as stated in the report and as there is very little other interest. But this would be a fair stated by the committee chairman this morning of using way. This wouldn’t complicate. I think Mr. Dodge’s thing population in these districts is that it is next to impossible can be worked out iust the same, you go on your proportions. to obtain accurate population figures for the districts that I am just trying to have it so that there won’t be any dispute we want to use or even for the old precincts or for any dis in the future, so that there is one county leaving the dead tricts, unless you should take your representative districts men on the list and so forth; I know it will lead to abuse. to be the same districts that are used by the Census Bureau. Now it is quite possible that by the next census we could HOLROYDE: I would like to clarify, for the moment, that convince the Census Bureau that they should break their in voting to adopt this principle, that we are not setting the areas up into the areas that we may decide upon for repre lines or the boundaries. We are not deciding whether the sentatives. dead men are going to be counted or not. All we are decid I would like to say a few words further on that. That in ing is whether we are going to use this method, this formula checking this over in the committee we found that there to determine the assignment of representatives to an indi was actually percentage wise or using the method of equal vidual district. The decision on the boundaries, the decision proportions or anything else, very little difference whether on the ~ead men, will come later. we used registered voters, votes cast or population. I believe Mr. Dodge can tell us how much the difference was CHAIRMAN: Any further discussion on the motion? Are and in favor of what islands or counties and so forth, but you ready for the question? the difference was very small. MIZUHA: I rise to a point of information. The vote on I would like to say further on the using of registered this method of division will not preclude further decision on voters that if you count and include the dead persons and so whether it will be based on votes cast or votes tallied? forth and so on, you only do it once, but the error is very small, percentage-wise it is just nil and I don’t think it will CHAIRMAN: That is the Chair’s understanding. All in ever make a difference in the apportionment. The reappor favor signify by saying “aye.” Contrary. The ayes have it. tioning section, in the committee proposal, says that the reap It’s carried. portionment shall be based on the last general election prior to reapportionment. If in that general election we had some BRYAN: I’d like to move that the method of equal pro sort of disaster in one county, that county might lose half portions be based upon the registered voters. If I could have of its representation. Or in any one district on one island, a second, I would like to - - if they had a large storm or something like that or epidemic LARSEN: I would like to second that and in seconding it I and large numbers of people couldn’t get to the polls, that would like to say this. It seems to me we ought to give credit district would lose a large share of their representation to those voters who go and register. And if they register and and I don’t think that it is fair. The registered voters can happen to be sick, if you have an epidemic, why should they, only be in error if half the people die off between elections if they are all in bed, why should they be punished. It seems and that is not too likely. JUNE 30, 1950 • Morning Session 125 ASHFORD: I think the theory of Delegate Bryan is correct, surmountable problem. That problem can be resolved the but my experience is that it is not the fact. I have been way other states have resolved it. You reapportion your carrying on a war for four years to have dead men and felons House and your Senate presumably every ten years. We dropped from the voting list and what do the election officials said we are not going to reapportion our Senate. You re do every time when they sit down, they run a pencil and check apportion the House every ten years on the basis of popu mark through the people they know are dead or in jail and lation. Now where do the other states get their figures? they continue right on the rolls as registered voters. They have hundreds of districts the way we would have. All you’ve got to do, when the census people prepare their tabu CHAIRMAN: You can take an appeal you know, Delegate lation, is to let them know that you want them to tabulate the Ashford. areas on the basis of population on the basis of the districts ASHFORD: I wish to retain you as my attorney. that you have. It is not an impossible problem, it is a very simple problem, and they will tabulate it for you on the basis FUKUSHIMA: Delegate Bryan made a statement that of population, on the basis of the districts that you want, and even if we were to use the population as a basis, under this the problem can be resolved very easily. I, therefore, vote method that we have just adopted it wouldn’t make much against the proposal to use either the method of registration difference with the registered voters, but I can’t see how or votes cast. he can make that statement when he’s already stated that there is no accurate method of determing the population. CHAIRMAN: I think the Chair will declare a short re cess. The clerks have been pretty well engaged. A few CHAIRMAN: I think Delegate Bryan should answer that. minutes recess. BRYAN: I believe that what my intention was in making that statement is that we do have the population by islands (RE CESS) and - - CHAIRMAN: Will you please explain the difficulty of CHAIRMAN: Will the delegates please take their seats. applying the federal census. I think that is the root of the The pending motion before the body is whether or not the problem. method of equal proportion by registered voters be adopted. The Chair is of the view that that should more properly be BRYAN: I thought I had explained that. brought up under the discussion of Section 4 rather than the CHAIRMAN: I thought you had too, but apparently Dele present section, and, therefore, requests the movant to de gate Fukushima didn’t hear it. fer that motion or withdraw it so we can proceed. I might state we’ve had a good deal of debate on this legislative BRYAN: His point was that my statement was unfounded article and of course it goes to the heart of our government, because I said it wouldn’t make any difference if you did use the legislative process, but we do have to proceed and the it, and that before that I said that you couldn’t use it. My Chair would appreciate it if we would proceed a little more point is this, you can use it in determining the number of expeditiously. representatives for each island because we do have population figures for each island, and on comparing that with the re BRYAN: In withdrawing my motion with regards to the gistered vote on each island the difference was very small. basis of whether it shall be registered voters, population, I think that should answer the question. and so forth, I’d like it clearly understood that that doesn’t affect the first motion that was already passed, that it should ROBERTS: I would like to speak in opposition to the be on the basis of equal proportion. motion that we use registered voters as the basis for the application of equal proportions. There is a great deal of CHAIRMAN: That is the Chair’s understanding, that was logic in the use of registered voters. It is something which the method that was adopted in the initial apportionment. is tangible, you can see it; it is something which does indi What should be done in the future is the present motion which cate that people have had the opportunity to go down and you are now withdrawing. register, and they have indicated their interest in voting. BRYAN: I think we have a misunderstanding. There is just as much logic for the total votes cast. As a matter of fact a little more logic because these people actu CHAIRMAN: Please state your position. ally went to the trouble of going down and casting their bal BRYAN: My motion was that the method of equal propor lots. Now in a democracy you ought to pin a bouquet on tion shall be used on the basis of registered voters and people when they cast their ballots. I think it is a responsi whether that is applied to the present apportionment or future bility which they have, but you want to say in this thing, reapportionment was not intended either one way or the apparently, that you are favoring such a proposal. other. I might also state that I had no objection to using some I believe, however, that the proper basis for determina other figures for reapportionment, but for the initial appor tion and distribution of the representatives should be on the tionment I have requested that we use the registered voters basis of population. When a person comes into the House because those were the figures that were most nearly appli of Representatives, he isn’t there to represent the people cable and could be obtained. Now if the motion is put that who cast their votes, he isn’t there to represent the people way, is it still out of order in your opinion? who register, he is there to represent all of the people in that partitular area, the total population, the children who CHAIRMAN: No, not at a later date, but at this time the have not yet voted, the individuals, the youngsters who need Chair understands you are withdrawing your motion and we taking care of, and those people who do not have the oppor are now voting on Section 3. tunity to or are too old to go to vote. The representative’s job is to represent the entire population of the area. It BRYAN: Okay. seems to me, therefore, that population makes much more ASHFORD: Is my motion for the fifth representative dis sense in terms of representative government. trict in order now? There is a problem and I recognize the problem with re gard to the census. That problem, however, is not an in- CHAIRMAN: I think not, Delegate Ashford. 126 LEGISLATIVE POWERS AND FUNCTIONS FONG: I move that we adopt the first sentence of Section arguments here about per capita cost and so on, the figures 3 reading as follows: are astronomical. You only have to examine the sheet that was placed on the desk of each delegate. House of Representatives; representative districts; number of members; apportionment. The House of Re My second reason against a large legislature is that it presentatives shall be composed of fifty-one members, is cumbersome. In a large House, it will be impossible for some of the representatives to keep track of the bills in the who shall be elected by the qualified voters of the res pective representative districts. legislature and especially is this true since the committee has gone on record favoring a limited session. CHAIRMAN: Is there a second? Now what is more important in my mind is the jeopardy BRYAN: I second that motion. that is placed upon what I consider very necessary reforms to oar legislative structure. You delegates will reflect in CHAIRMAN: It has been moved and seconded that the examining the various articles of this Constitution dealing first sentence of Section 3 be adopted. Any discussion? with the coordinate branches of government, the legislative branch is the least affected by form - - by reform. It is HEEN: I move an amendment to that first sentence. still, even as reported out of committee, very archaic in CHAIRMAN: What is your amendment? Has it been structure. These reforms that I am referring to that were printed and attached to your report, minority report? able to be presented in the committee report, and they are minimum reforms, are annual sessions, a budget session HEEN: That is correct, in connection with Committee in one year and a general session in another, the question Report No. 102 I move that that sentence be amended to of the legislative council. These, as I say, were minimum, read as follows: and there were many others probably that should be done, SECTION 3. House of Representatives; representa but that is the best that could be done by the committee at tive districts; number of members; apportionment. The this time. House of Representatives shall be composed of forty-one Now the jeopardy of those necessary reforms heightens members, who shall be elected by the qualified voters the necessity or the public demand or clamor for some voice, of the respective representative districts. The repre some means of reforming the legislature through initiative, sentative districts, and, until the next decennial re referendum and recall. I would like to place that definitely apportionment, the number of representatives to be elec in the record. The Committee on Initiative, Referendum ted from each, shall be as follows: and Recall considered these matters, and one of the wit nesses who advocated them was asked whether those expen WIRTZ: I second the motion. sive measures, if the money that was expended for those CHAIRMAN: It has been moved and seconded that the could be utilized in reforming the legislature, wouldn’t we first sentence of Section 3 of Committee Proposal 29 be have a better form of government, and the answer was amended by incorporating the first sentence of Section 3 “yes.” But what are we doing. We are taking the money of the proposal attached to the minority report of the com that we saved from the initiative, referendum and recall mittee. Is there any discussion on the amendment? and~ we are increasing the legislature, not reforming it, because I am very fearful that when these other questions of WIRTZ: I would like to make one last plea to this Con the reform come up they will be answered immediately by vention for a smaller legislature. This Convention has al the fact that we do not have money to put them in because ready gone on record as adopting the 25 Senate and probably our legislature is so large. It will be very interesting to that connotes, as the discussion indicated yesterday, a 51 hear that debate when we hit the other points. To me it is House. I am making my plea not only on the ground of unfortunate that we dealt with this problem first rather than economy. I think it is quite apparent that if we have this the rest of the articles originally suggested by the chairman large legislature, the first immediate problem that faces the of the Legislative Committee. Now we have agreed on the State of Hawaii is a new building. method of reapportionment. Just what difference is there Now it was booted around the floor under cover that the between a 51 House and a 41 House. In a 51 House, Oahu legislature had already appropriated money for a new build will have 33 representatives and the outside islands will ing. I have been unable to find any such appropriation. There have the same 18 they have now. That gives Oahu a 15 vote is an appropriation of $100,000 for preliminary plans. margin. In a 41 House as proposed in this amendment that There is also some indication that it might be contalnéd is now before the floor, Oahu will have 26 and the outside in the $70,000,000 bond issue program. However, those islands 15, or an 11 vote margin control. To me the differ bonds have not been issued as yet and it would still be an ence in four votes, insofar as Oahu is concerned, is im obligation that the people of Hawaii would have to face. material. So I ask once again that this body stop, look and With the large legislature, a larger legislature, the new listen before we go on and bind our future legislature to all building is a must; but with a small legislature, a smaller the expense of running this cumbersome Frankenstein. legislature, perhaps lolani Palace —although it is somewhat outmoded —would suffice, if the legislature at that time felt KELLERMAN: May I add one more point in addition to that the economy of the State would not permit capital ex Mr. Wirtz’ and in corroboration of his point of view. In the penditures. committee the original discussion hovered around a 41 or But not only is the question of capital expenditures in 43 House. I think I am being fair to all members of the volved. We have operating costs to meet. Now there has committee when I say that the one argument which boosted been much talk; four or five more senators, ten or eleven that number from 41 to 51 was so that, under the same more representatives, and the matter of salaries; but principle of equal proportions which we adopted unanimous please do not forget that under the territorial system we do ly, the three outside counties or islands could retain the not pay any salaries. It’s going to be a question of meeting number of representatives they have now. There was no all these salaries. True that is a small item and it is the question that 41 would not be capable of doing as good a job, smallest, as far as operating costs are concerned. Then we if not better; there was no question of the need for a 51 have the other costs that go with it, and regardless of all the House. It was purely the political fact of the discussion of JUNE 30, 1950 • Morning Session 127 representation, that for the outside islands to retain their the House. As so well explained by Mr. Dodge, if you took eight, six and four, it would be necessary to increase the the number in the left hand column, by looking across you House to 51 to do it. Therefore, increase the House to 51 can find out what the House would be as divided between to do it. It means for the addition of three members, one Oahu and the outside islands. from Hawaii, one from Maui and one from Kauai, we are Now as a matter of interest, we’ve been talking about saddled with seven additional members from the island of 51 and 41, there is nothing magic in the numbers. Let’s Oahu which frankly we do not need. To be able to obtain just for fun take a look at these numbers, let’s take a look at three more from the other islands, we have the expense all a 30 House. Oahu would have 20, that means the outside is down the line of seven more from this island, which is total lands would have 10, that’s a two to one margin. Now we ly unnecessary. And it seems to me having voted upon a 21 move up next to where Oahu might next like to go because [sic) Senate or even if in any circumstances we should re it demonstrates the point of where you pick the number, consider and get back to a 21 Senate, the three outside is what happens? if you pick a House of 39, if you will look lands would still be getting additional representatives at across please, you will find that in a House of 39, Oahu least as great as the one each they would lose under a 41 would have 26, that would obviously leave the outside islands House in the House of Representatives, if you adopt a 51 a total of 13. Again a two to one. Both Maui and Hawaii House, you have eight from Hawaii; you have seven senators should in a discussion on a House of 39 immediately point from Hawaii in a 25 Senate. You have six representatives out to the rest of the body that on the fortieth member, Maui from Maui; you have five senators from Maui. You have is entitled to that member, and on the forty-first member, four representatives from Kauai, and you have three sena Hawaii is entitled to it. Therefore, they should advocate tors from Kauai. Now in either a 21 or 25 Senate, each of that instead of taking a House of 39, we ought to take 41 which the other islands gets more representation or at least as would then give the split of 26 to 15. Now there is nothing much as it has on the eight, six and four basis now. True magic about this split of 26 to 15; that’s only what the divi it may be in one house rather in the other, but a house which sion is, if you will assume that you will take 41. Now as has stood for greater prestige and which has more power soon as you go to 41, if you will look at the table, it is to in that it has the power of approving appointments or re Oahu’s interest to ask that the House not be set at 41 but movals from office. So as I see it, the outside islands are rather for $4,000 a year, which would be the cost at a in fact losing nothing in going to seven, five and three re thousand dollars a year, we move the House up to 45. By presentatives, as against their present eight, six and four. moving it to 45 you then find that Oahu is entitled to 30. The And the cost of those extra three representatives of those outside islands, however, have not come in on any of those islands is seven additional representatives from the island four - - of Oahu which are totally unneeded. CHAIRMAN: Pardon me, Delegate Porteus, I didn’t quite Those reasons I think, with respect to everything that follow that, if you move it up to 42 - - Mr. Wirtz has said, is equally as applicable in the discussion of cumbersomeness, economy and all other, factors, and I PORTEUS: Up to 45, jump from 41 to 45. if you move wanted to bring up that point. That’s how we happened to hit to 42, Oahu has 27; at 43 we have 28; at 44 we have 29; upon 51. at 45 we get 30 of the House of 45. I am pointing out the difference between moving from 41 to 45. At 41 we have SMITH: I would like to ask the previous speaker, does 26 to 15; at 45 we have 30 to 15, what we’d have had at 39 that mean that her intentions are that the House should be and at 30. 41 and that the Senate would be kept at 25? So, there is reason to support the recommendation of the KELLERMAN: My intentions, if I had my way, have committee that the only figure that they could come together been made quite clear. I was in favor of a 21 Senate and on was a House of 51; there is reason to support it. Maybe a 41 House, but even on a 21 Senate as an increase over the I like 45, maybe someone likes 39. Kauai, Hawaii, Maui present 15, each of the outside islands would get an addition would have other numbers because if they just get in under al senator, which in my opinion would be worth more to them the line it is to their advantage to draw the line in the num than one representative in each house, which they would lose ber of the House where they last come in under the line. on a 41 House. By the time you got to 45 the difference in cost between 41 and 51—if the committee’s recommendation is carried FONG: Mr. Chairman, may I ask the speaker a question? out, which is apparently a $1000 per budgetary session and The fact that we have already passed on the number of sena $1500 for another—it means $10,000 a year in a budgetary tors, that is 25, does that mean that she will still persist session for salaries and $15,000 a year in another session. that the Senate be cut to 21 should her amendment pass? Now as far as this tremendous cost of $10,000 and $15,000, CHAIRMAN: I think the position of the delegate is per this cumbersome “Frankenstein” that is labeled at 51 be fectly clear. She is in favor of this number in the House, comes a very desirable body apparently at 41. As a matter and if that would prevail, then she feels that this body would of fact if that is all they call the legislature, the legislators reconsider its action on the Senate. I think that is the posi will be very lucky. But at 51 you’ll find that Kauai, the last tion of the delegate. outside island, comes in for its last representative. That PORTEUS: I wonder if the various members would be gives to each of the outside islands their present 18. It is kind enough to turn to the apportionment and reapportionment true there is nothing magic about 51, there is nothing magic circular that was distributed this morning. I think we can about 41; 30 is too tight, it should be increased. make the point very simply here. if you will turn please to Now if we wish to let those who desired to preserve the that table and turn to page 5 of the table. same number of representatives in their islands to go back to their islands and ask their people to vote for the Consti CHAIRMAN: The table prepared by Mr. Dodge of the tution, I see no great difference in cost a year. Ten thousand Legislative Reference Bureau, is that what you have refer dollars is a lot of money to me, but I don’t think $10,000 ence to? spent in salaries in a particular year is that much difference PORTEUS: Yes, Mr. Chairman. if you will turn to page as far as cost is concerned. It is true they can argue that 5, on the left hand column is the total number of menters in there are going to be a lot more clerks, but as I understood 128 LEGISLATIVE POWERS AND FUNCTIONS the argument that has been made earlier, the legislature is lation of 255,000 in 1920, the per capita cost was $1.98; operating on too expensive a basis and you ought to operate and in 1930 it went up to $2.34; in 1940 to $3.45; in 1950 on a more efficient one. If that is true it shouldn’t cost any to $14.60. Why? Because we demand more of government; more money. we demanded the government shall do things for us that wez~e The 18 committees of the House I think can just about not done in 1919 and in 1929 and so forth. adequately take care of the work of a House, whether there Now, this question of a new capitol. Frankly lolani Palace are 30 members or whether there are 41 or even 51 members. is no longer very adequate as a capitol at this moment, and I don’t believe that the item of cost is such a major one, but this increase to 41 representatives will make it less ap the table does show the difficulty of arriving at any particular propriate for a capitol. I don’t know what the future is going figure for the size of the House. As you look at it everybody to do, but we’ll cross that bridge when we come to it, and is for a different number, and every time you pick a different whether we erect a new capitol or not will not depend upon number it affects some people in some districts, in the rural the size of the legislature but upon the finances of the Terri districts, or, in other districts, as how many people they will tory at the time. be entitled to elect to the legislature. And it seems to me, Now if we want a good democracy we want better repre~ therefore, that the recommendation of the committee to be a sentation of all sections of the State of Hawaii. We want reasonable one, not necessarily one I would have chosen had representation based on a reasonable percentage of people I had the right to choose, but we’ve got to make a selection that have voted, and we get that by increasing the size of the along the line, and I think their recommendation to be a fair legislature. I recited the other day the number of states one. that have comparable size of legislature as we have. Colo rado, for instance, to mention a new one that I did not men CHAIRMAN: The Chair will ask Delegate Heen to close tion yesterday, has 35 senators and 65 representatives. It the debate on this. has a population of about a million people, about twice as LAI: Only three states out of 48 states - - many people as we have, but there is no comparison in popu lation when you get up to a higher figure. Wyoming, however, KING: Close the debate, why should we close the debate? with a population less than ours, has 27 senators and 56 rep There are a lot of us who want to speak on this. resentatives. They do not find that unwieldy. They do not LAI: I was speaking against the amendment. Only three find it overly expensive. As a matter of fact, Wyoming is states out of the 48 states have a House of less than 50 mem a poorer state in money spent than this Territory of Hawaii, bers, and only three states out of the 48 states have a House this future State of Hawaii. less than two times that of the Senate. In other words we So it seems to me that the cost angle doesn’t come into have decided on a 25 member Senate. Now we should have the picture at all. It is what will provide the State of Hawaii a - - 51 would be a proper size House to go with a 25 mem with a fairly distributed number of representatives for its ber Senate. Now our population of the territory has increased population and its vote, and you inevitably come to the figure tremendously the last 20 years and I think the increase in 51 as the only one that suits the needs of the other islands the membership in the House is very well justified. That and of Oahu. A lower figure would be taken out of the other would give a better representation of the increased population. islands before it is taken out of Oahu. So I feel that the amendment should not carry, that we should continue to KING: First let me say that I am very anxious to expedite maintain the 51 House membership and the 25 membership matters, but we didn’t take a great deal of time in discussing in the Senate. the theory of equal proportions. Once we’ve adopted the principle of equal proportions, you inevitably come to a MIZUHA: I am in favor of the amendment, and in favor House of a membership of 51 members because that gives of a smaller state legislature for Hawaii. It will be cover the other islands the same eight, six, four they now have ing the same ground as I covered with reference to my re and then gives Oahu the additional members to complete the marks on the size of our Senate when I speak for a smaller number, as was well pointed out by Delegate Porteus. House of Representatives for the State assembly. It isn’t Now this discussion of the additional cost to me seems so much a question as to the cost of our State legislature; all out of order. I have had some figures prepared here—of the amount of moneys that could be used for the salaries course we can always get many figures—but in 1919 from the of clerks, for representatives and senators and holdover memorandum that was circulated yesterday, the cost of the committees and so forth. What I am principally concerned legislature was $60,000. The expenditures of the legislature with is, by a larger body in the House of Representatives was $5,080,000. That made a ratio of legislative cost of the total budget of the Territory, whether it be on an annual total appropriation, 1.07 per cent. In 1929 the legislative basis or a biennial basis, will increase proportionately with cost was $100,000, the total appropriation was $8,633,000 the number of representatives and senators in the State [which] made the ration 1.16 per cent of legislative costs legislature. to the total budget, which was slightly higher. In 1939 the I wish to point out at this time that in establishing the legislative cost was $160,000 and the total budget was House of Representatives here in the Constitution we are $14,500,000; the ratio was 1.10 per cent, a decrease from departing from an established principle of representation the preceding decade. In 1949 the legislative cost was that Hawaii has enjoyed since the Organic Act. We have $500,000 and it has been assumed that it would keep going elected representatives on a large basis, large geographical upand up in that percentage which is not an assumption basis. On Kauai, on Hawaii, on Maui and on Oahu, we have that is justified. The total budget was $72,000,000 and the had only six representative districts. Now we are establish ratio was 0.69 of 1 per cent, almost half of what it was in ing 18. From some of these representative districts we are 1919. So this question of cost has been greatly exaggerated. electing six, as the fifteenth district on Oahu, some five, as We are getting into the larger monies because of in- the fourteenth district. And every representative that comes creased population, the lower buying power of the dollar and to the State legislature will come first and foremost with the the larger services required. It is true that the per capita interest of his constituents in mind and there will be com cost has gone up because the people of Hawaii.have demanded petition in the State legislature for improvements in the more services from the government. In 1929, with a popu various representative districts. And undoubtedly when you JUNE 30, 1950 • Morning Session 129 have 51 legislators in the House of Representatives each one do that, and if we could afford that, for the people of this of these boys must go back home and tell their fellow voters Territory then, surely, then we would have a truly repre that, “I got you this new library, this new swimming pool, sentative form of government. We are trying to stay within this new school,” and when the “pork barrel” bill comes up the economy and at the same time give the people, the truly for capital expenditures everyone can not be satisfied. So representative of the people, a voice in the legislature, and they will be confronted with Delegate White’s “debt limi it is because of that that the figure of 51 has been chosen. tations” and the answer will be, “Well, you can’t increase I say that if the delegate from Kauai is correct, then maybe the bonded debt of the Territory. You have already raised he is of the opinion that it would be better to do without a enough money and under the constitutional limitations you’re legislature so that none of the members of the House nor stymied.” the Senate could go back to the people - - So these boys in the legislature will get together, as they have gotten together here in this Constitutional Convention, CHAIRMAN: I don’t think his argument went to that and say, “Sure, we’ll get Delegate Silva’s proposal in 1949 extent, Delegate Silva. with reference to income tax and we’ll put it through, and SILVA: Well, he was saying for a smaller house, now when we put such an income tax bill through, we’ll have how small is the question. How small is the question. If enough money to take care of this new school, and this new the argument is that 51 is too large, that is not truly repre gymnasium and new swimming pools.” And that is what is sentative of the people, then - - going to happen because legislators are human. They must go back to their constituents and tell them, “We got some MIZUHA: I rise to a point of personal privilege. thing worthwhile for you when we went down to Oahu in that CHAIRMAN: State your point. beautiful lolani Palace and we brought back a new gymnasium for you, a new beautiful public school like the Castle school MIZUHA: In my previous argument, Mr. Chairman - - down at Kaneohe.” Why, the boys up there in upper Nuuanu, CHAIRMAN: The Chair recognized your argument. The in the twelfth representative district, and maybe it might be remarks were facetious on the part of Delegate Silva and Delegate Trude Akau, says, “I gave Puunui the best looking everybody recognizes it as such. public school in the Territory and I am going to fight for it.” And the end result with a large body like this will be a State MIZUHA: Thank you, your honor. budget not $100,000,000, it will be $250,000,000, and they SILVA: He never gave us any figure of what the exact will have to raise the money from income taxes or gross number should be. I just want to get this question straight income taxes, and we will find the State confronted with a tax ened out, Mr. Chairman. That his argument, in my opinion— structure that will make our present tax structure silly. I believe the majority of delegates here—was that 51 was too It is my opinion that a small legislative body—maybe a large. He didn’t say how small it should be. Now, I just few more representatives and a few more senators than we want to say that in my opinion, maybe, if we could afford, have at the present time —will be the kind of body that will if this Territory could afford a 150 House of Representa work for the interest of the State of Hawaii and will not bring tives and if it could do the work at the least expense to the politics into the deliberations to the extent that it will be when public, then I’d be for a 150 House of Representatives. I you have a larger body. Delegate Heen, the chairman of the do not think that the members of the House who will be Legislative Committee, read from the Federalists Papers representatives of the legislature are just running back to I believe, upon the recommendation of the distinguished every constituent and yell to the top of their lungs of how political scientist, what a large body will do and what a small much they got for Miolii and how much they got for Hoo body will do. And then if we have this large State legislature, kena or whatever it may be; that is not true. If I have I am certain, and I will sound a warning again, that our legis had experience in the legislature, the people of this Terri lative appropriations on an annual basis, on a biennial basis, tory are not as dumb as some of us assume them to be and will be far above what the Territory has ever experienced they know wherefore they vote. And let me tell you, gentle and it will mean taxation on a basis which was unheard of men of this body here, that I hope - - I am only hoping that under the Territorial status. I am in favor of this amend when we get through with this Convention that those of you ment for a smaller House of Representatives. who were never in the legislature try and become repre ARASHIRO: I was told it would be better to keep quiet sentatives of the people and you’ll find out. And I hope that than try to speak to a group that’s not going to listen, b~t I the speaker himself from Kauai will seek an office and may am not going to say anything, but I have a question to ask. be he will be one of the first ones to holler how much he got My question is - - for Nawiiwii. CHAIRMAN: The Chair didn’t mean you to keep quiet but KAGE: I too, like the other delegate from Maui, would wanted to remind you that a few souls are saved alter the like to put in a last plea for a small legislature. Reference first hour. I have a great deal of sympathy with the last has been made to the Manual issued to the State Constitu speaker, but I recognize what the feeling of the body is. tional Convention. We noticed that quite a number of people point at the states of comparable size to Hawaii and say they ARASH]RO: My question is, is the present legislature have a big legislature, a big Senate and a big House of Re a body too small that is not carrying out the wishes of the presentatives - - people, and if it need be increased, should it be increased to 25 senators and 51 representatives which will then, to CHAIRMAN: Delegate Kage, will you speak just a trifle this assembly, be reasonable and will be sufficient to re closer to the microphone? I think you will be heard better. present the different population - - I mean different people KAGE: One thing I would like to have the people under of the Territory adequately? stand here, the delegates, excuse me~ to understand here is SILVA: I would like to state that I heartily disagree with that the majority of the constitutions for the states were the delegate from Kauai. Truly in a form of government written 50, 60, 70, 100 years ago when they had very poor as ours, that it would be proper if we could break it means of transportation. They had no radio, their communi down into smaller units, if it would be possible for us to cation was terrible. It was much harder for them to travel 130 LEGISLATIVE POWERS AND FUNCTIONS from Albany to New York than it is to travel from San Fran BRYAN: That is correct. cisco to Hawaii. I am a firm believer of a representative CHAIRMAN: So if the outside islands really want a lower form of government, but with the advance of transportation House they can go down to any figure that would be satisfac and the advance of communication, the ability to represent tory to the island of Oahu. Is that a correct statement, a certain group of people that has lessened. That is, a President King? person today can represent a 100 people whereby a 100 years ago one representative was able to represent only 10. Now KING: Delegate Bryan was developing the point that those the trend at the present time is, I think, whether it is to the who spoke who are delegates from the other islands, why good or to the bad, is more towards centralization than de should they set on 41. Oahu might set at 45, and as Delegate centralization. New Jersey, just recently, about three years Porteus pointed out Oahu would have 30 to 15. In other words, ago, had a constitutional convention. They had a Senate of if they are willing to go down to 15 from 18, let’s make it 21. They had the opportunity to enlarge their Senate. They 45, not 41. However, the argument is 41 or 51. have a population of eight million. But why didn’t they do it? SILVA: Mr. Chairman? Because they also agreed that we should keep up with the times. Fifty years ago, when the Organic Act was written, CHAIRMAN: Delegate Bryan has the floor. they said that we should have a Senate of 15 and a House of BRYAN: I would like to be a little bit more facetious on Representatives of 30. why sure, but at that time they had a further point too. I think maybe the committee made a no radio, and that is why I believe that the ability to re mistake in not asking for a 75 member House and then we present has grown here in Hawaii and all over the world. could have settled at 65 instead of 51. For that reason I believe that we should keep our legislature small. CHAIRMAN: The Chair will recognize Delegate Silva. SMITH: In the beginning of this Convention, we had a SILVA: I move we take a recess for lunch and be back slight argument as to electing judges and other officers. I at 1:30. was whole heartedly opposed to that because I believed in SAKAKIHARA: Mr. Chairman, I second the motion to representative government. I also was in favor of keeping recess. the Senate at 15 and with adding on to the House of Repre sentatives slightly more to Oahu only. But when it came CHAIRMAN: The Chair feels that we ought to proceed to down to decide what could be done since the 15-30 was inef a vote on this. fective I tried to asic myself, in the idea of representation, SILVA: Let’s vote. what could be the nearest we could reach in numbers which would be appropriate and equal to all concerned. I couldn’t HEEN: I would like to speak upon this matter. help but realize that if we went to a 21 Senate and a 43 [House] it would be an addition, but also it would be taking away re SILVA: You want to speak on the matter to recess? presentatives from the House and giving to the Senate, say CHAIRMAN: There is a motion to recess. I was going for the island of Maui. At the same time realizing that we to ask you to close the debate on your amendment. If the were for the idea that the outer islands should have a 60-40 motion to recess is withdrawn you may proceed, otherwise ratio, we would not be getting that on a 21. Now with the we will have to vote on the motion. You withdraw your 20 and one it came up, and giving a 6 0-40 ratio, but I was motion, Delegate Silva? wholeheartedly against that because of the fact that the ex ecutive would be the arbitrator of the legislative branch. SILVA: The motion should be put to save time and if it Now if the opponents of the 25-51 can go ahead and say that doesn’t carry he is in order, otherwise - - we don’t want the representation changed at all in percentage, CHAIRMAN: All in favor of recessing until 1:30 signify geographically and by population and so forth, what figure by saying “aye.” Contrary. The motion is lost. Proceed, are we going to honestly arrive at? Now the only figure that Delegate Heen. I can so far see is that 25-51. Sure it is an expense, but our democratic government is very expensive and I don’t feel HEEN: Mr. Chairman, this minority report was submitted that by that addition it will be so great that the economy, in good faith and with the interests of the people of the State such as the administration, patronage and handling expenses, in mind: can’t easily be cut down otherwise. I am looking at [it in] The majority of your committee members propose a this light, we have to have representation of the people and fifty-one member House in order that the present mem with a 25-51 you gain that. It spreads it out more. I feel bership from the neighbor islands will not be reduced. also that with the spreading out, there is a lesser chance of This is a concession to a fifty-year period of legislative pressure groups or parties or anything to have such a die inaction that we believed this convention is unjustified in hard control in the matters of the people. making. BRYAN: I would like to inquire, there has been only two All evidence points to the fact that the initial apportion speakers from the outside islands in favor of a House the ment of the House, both under the 1894 Constitution of the size of 51; perhaps we on Oahu have made a mistake. We Republic of Hawaii and under the Organic Act, was on the should ask for 45. Don’t the outside island representatives basis of population. The Organic Act further provided want to retain their present representation? Mrs. Keller- for periodic reapportionment on the basis of citizen man said, and truthfully so, that the reason that the commit population. tee went to 51 was so that the neighbor islands could retain With a House of fifty-one members apportioned among their present representation and I see very many neighbor the major island divisions, in accordance with 1950 United islands delegates getting up and saying, “We want a 41 House.” States Census Population Statistics, the present neighbor island representation is reduced by three, one member CHAIRMAN: The Chair understood the heart of Presi from each neighbor island group. For a House of forty- dent King’s argument was that this figure of 51 preserved one members, that representation is further reduced by intact the present representation~ four members, one from Hawaii, one from Maui, and two JUNE 30, 1950 • Morning Session 131 from Kauai. Thus, if the directive of the Organic Act The rural districts of Wahiawa and Walalua and of were to be carried out today on the basis of total popu Ewa and Waianae, on the island of Oahu, have-been com lation (instead of citizen population), the apportionment bined and will be entitled to elect three representatives. would be as follows: The total number of representative districts in the state are thus reduced from eighteen to sixteen. Apportionment of the House of Representatives Now, Mr. Chalrman, there is no question but what politi on the basis of 1950 Population Statistics cal considerations were involved in determing this member ship at 51. The idea was to have the outside islands maintain Number of Members the same representation that they have now under the Organic 1950 Per cent of 51 Mem- 41 Mem Act of the last 50 years. In, however, giving up one repre County Population Total ber House ber House sentative from each of these outlaying island, they are gain ing, so far as Hawaii is concerned, three senators, losing Hawaii 67,683 13.7 7 6 one representative; and Maui gains two senators and losing Maui 48,387 9.8 5 4 only one representative; and Kauai loses one representative Honolulu 347,440 70.4 36 29 but gains one senator. So there the whole situation is leveled Kauai 29,838 6.1 3 2 off, so that each island major division is not losing any rep resentation in the legislature. So I submit on the basis of the statement made by those who advocate this amendment By this Convention adopting, as we hereby recommend, that a 41 membership is the proper representation in the a House of forty-one members, apportioned among the House of Representatives. several island units on the basis of registered voters, the neighbor islands will have the same representation as CHAIRMAN: The Chalr is going to put the question. they would be entitled to receive if the membership were What’s your question, Delegate Smith? increased by ten and set at fifty-one and the apportion ment based upon total population. SMITH: I would like to ask the previous speaker, is he The neighbor islands would receive only three of those saying to keep the Senate at 25 and the legislature - - House ten added members, seven would go to Oahu. We believe would be at 41? the additional cost to the Territory, by reason of having CHAIRMAN: The Chair didn’t so understand it. those three members, unsupportable by reason. The proposal submitted for the legislative article by HEEN: Mr. Chairman, I can answer that. So far as the your committee establishes a salary of $2500 for members 21-25 Senate is concerned, that’s a closed issue. The Con of the legislature for a biennium. By statute, there is now vention had decided upon a 25 membership Senate. a provision authorizing the payment of $15 per day for HOLROYDE: Mr. Chairman, as the - - neighbor island members and $5 per day for Oahu mem bers for each day of a legislative session. During the CHAIRMAN: For what purpose is the speaker rising? 1949 regular session, this amounted to $1100 for each HOLROYDE: As the vice chairman, I would like to - - neighbor island member and $370 for each Oahu member and as the head of the majority membership of the committee, or a total for the session of $24,420. Taking into con I would like to have something to say on this subject. sideration oaly salaries and per diem expenses, the cost to the state, by reason of having those three additional CHAIRMAN: I thought we were giving Delegate Heen the neighbor island members, would amount to over $34, 000 opportunity to close the debate, but proceed. per biennium - - over $11,000 per member. The total leg islative employee cost for the 1949 session of the House HOLROYDE: Your committee in considering this issue amounted to $5514, computed as an average cost per felt that the representation of the outside islands was very member. When this amount is added for each of the important in the House as well as the Senate, probably more additional members necessary to retain present neighbor important as far as number was concerned than representa island membership, an additional $55,000 for a general tion from Honolulu. With Honolulu’s large population, they session and perhaps $20,000 for a budget session would were bound to be taken care of. Now in deliberating between be required. Total additional cost, therefore, would 41 or 51, you find that by eliminating one representative approximate $110,000 per biennium. Surely, a great from Kauai, you cut down their representation in the House price to pay for adding three additional neighbor island by 25 per cent. By cutting one representative from Maui members to the House of Representatives. you cut down their representation by 17 per cent, but when We appreciate the need for a somewhat larger mem you cut one from Oahu you cut down their representation bership in the House of Representatives. We do not be by three per cent. Now the committee is trying to be fair lieve it necessary to go beyond a forty-one member on this matter and for that reason decided to stick to the 51 House to achieve this end. House, the size at 51. I am beginning to feel a little bit like Your committee has unanimously agreed that the dis the delegate at my right. Most of the speakers from the tribution of representatives among the maj or island di other islands so far have been fighting for a lower House. visions shall be on a realistic and equitable basis. We Now, if that is the consensus of opinion, should we from do not depart from that principle in advocating a member Oahu continue to hold on to a 51 House for their benefit? ship of forty-one in the House of Representatives. For that reason, Mr. Chairman, before we vote on this I The representative districts for the forty-one mem would like to move for a recess till 1:30. ber House remain the same as in Committee Proposal No. 29 with two exceptions. Lanai and Molokai would consti CHAIRMAN: The Chalr has heard no second. tute one district and the islands of Maui and Kahoolawe FONG: I move the previous question. would likewise constitute one district within that basic area, from which there would be elected one representative CHAIRMAN: That motion is not entertalned in the Com and four representatives, respectively. mittee of the Whole as I understand it. 132 LEGISLATIVE POWERS AND FUNCTIONS CASTRO: Well let’s have a vote then, Mr. Chairman, Afternoon Session it’s getting late. CHAIRMAN: Is a roll call demanded? There will be a KING: In order to make plans for the program for to vote on the question on the amendment of Judge Heen - - morrow and for Monday, it is necessary to know whether it Delegate Heen, which will amend Section 3, first sentence, is the intention of the Convention to meet Saturday forenoon to change the representation in the House of Representatives and on Monday, and I wanted to ask the Chair, while we’re from 51 to 41. Will the Clerk please call the roll? in the Committee of the Whole, merely to ask some expression of sentiment. I feel that we should meet Saturday forenoon HEEN: Mr. Chairman, may I state this. That if the and Monday. Some of the delegates from the other islands amendment to that sentence is defeated, that defeats the are asking permission to be excused from Saturday after entire amendment as presented in the proposal attached to noon until Wednesday morning. We would not take up any Standing Committee Report No. 102. matter on Monday that would require their presence as long CHAIRMAN: That is the Chair’s understanding. The way as we had a quorum, but I don’t think we ought to let Monday would still be open to amend the section for some other go without a meeting. There will be Committee of the Whole figure, however. reports to take up and other matters that would help expe dite the business so I do ask the Chair to request the Com HEEN: That is correct. mittee of the Whole’s sentiment on the question of meeting CHAIRMAN: That is the Chair’s understanding. tomorrow and Monday. Ayes, 21. Noes, 35 (Akau, Apoliona, Bryan, Castro, CHAIRMAN: You have heard the request of the President Cockett, Dowson, Fong, Fukushima, Gililand, Hayes, Hol that we meet Saturday and Monday in order to wind up our royde, Kido, King, Kometani, Lal, Larsen, Loper, Luiz, work. We are getting pretty far behind here. Lyman, Nielsen, Ohrt, Porteus, Richards, Sakai, Sakakihara, Shimamura, Silva, Smith, St. Sure, Tavares, White, Wist, ASHFORD: I heard the President’s remarks with the Woolaway, Yamamoto, Yamauchi.) Not voting, 7 (Crossley, greatest concern. I think we should meet not only on Satur Kam, Lee, Phillips, H. Rice, Okino, Kawakami.) day and on Monday but on Tuesday and carry on the most vital work of the Convention and get it cleaned up. CHAIRMAN: The amendment is lost. CHAIRMAN: Including the Fourth of July? FONG: May we have the vote on the original motion? ASHFORD: Including the Fourth of July. What better C. RICE: I move that the committee - - the majority dedication could we make to the country than to work on the committee report be adopted on that. Fourth of July on the Constitution of the new State. CHAIRMAN: What is your motion again—the report SMITH: Second it. or the section? Isn’t that Section 3? CHAIRMAN: The Chair is in entire agreement with the SILVA: That motion is out of order, that motion has been speaker. made long ago. KING: I am a little in doubt whether Act 334 allows us to HEEN: Mr. Chairman, if I may, we were voting on whether meet on Sundays and legal holidays. My recollection is that to adopt the first sentence of Section 3. we are not allowed to meet on Sundays and legal holidays. CHAIRMAN: That is correct. If some one has a copy of Act 334 handy, they might check that. KING: The amendment to the first section was defeated. It is now in order to move the adoption of the first sentence CHAIRMAN: The Chair offhand would say there would of Section 3. be no obstacle to that. Delegate Tavares, do you have any views on that? CHAIRMAN: But he didn’t make the motion. HEEN: We must not forget that we are working only in FONG: May I ask the Chair to put the question on the committees and therefore there is nothing final that is done first motion? by the committee. It is only when the recommendations are CHAIRMAN: What is the first motion that you refer to? presented to the Convention sitting in regular session that the acts then become final. As far as the work of the com FONG: It is before the house. It is to pass the sentence mittee is concerned, it can be done on Sundays, Saturday, as written by the majority of the committee. holidays and even at night. SAKAKIHARA: I second that motion. CHAIRMAN: That is the Chair’s understanding. CHAIRMAN: You heard the question. TAVARES: I am not arguing necessarily that we work SHIMAMURA: Point of information, please. Is that the on the holidays, although I expect to anyhow, but I do think first sentence of Section 3 only? that there is no prohibition against working on holidays. The only prohibition I know of is the prohibition against CHAIRMAN: That is correct, the first sentence of Sec labor on Sundays, and as Delegate Heen has said we could tion 3. That constitutes a House of Representatives of 51 always ratify what we have done by working on the next members. All those in favor signify by saying “aye.” Con regular day and saying we approved it, so that whatever we trary. The ayes have it. did informally could be ratified later. SILVA: I renew my motion for a recess, Mr. Chairman. HEEN: The Sunday law was repealed by the legislature. DOWSON: I second the motion to recess until 2 o’clock. KING: It has been suggested that on Monday morning at CHAIRMAN: It has been moved and seconded to recess 9:15 we stand in informal recess and have a Liberty Bell until 2 o’clock. All in favor signify by saying “aye.” Ceremony that would take fifteen minutes to half an hour. JUNE 30, 1950 • Afternoon Session 133 This is at the suggestion of the Honolulu Chamber of Com ASHFORD: I think they are not unanimous, Mr. Chairman. merce, that we ring the bell forty-nine times, play “Hawaii If Molokai, Lanai and Lahaina are joined the result will be Ponoi” and the “Star-Spangled Banner” and Colonel Unmacht, that Lahaina will elect two representatives all the time. I who has charge of that patriotic observance, would ask per request the support of the Convention to my amendment and mission to talk to the Convention in a ten minute speech. He I ask for the consideration of one paragraph at a time. tells me eight minutes and I told him I’d rely on ten. So, KIDO: I would like to speak against that amendment. without going back into Convention I wanted to get the First, I feel that Lahaina will not get any representation if opinion of the delegates whether we should hold that patriotic you include Lahaina with Maui. I believe that the fundamen observance on Monday morning. tal of districting is to give the various districts represen CHAIRMAN: Do you request that it be put to a vote, Dele tation, and for this reason I cannot see that Lahaina be in gate King, or do you think that the sentiment expressed is cluded with the rest of the Maui districts. Since the delegate sufficient at this point? said that if Molokai, Lanai and Lahaina were joined together in one district that Lahaina would elect the two represen KING: Just a sentiment expressed. We are in the Com tatives, this I disagree. Figures will show that Molokai has mittee of the Whole now. I just wanted to know what the 1,400 votes, Lanai 700 votes and Lahaina 1,500 votes, in delegates wished to do. which case it would take a combination of two islands at C. RICE: Can we pair off like we do in the Senate of the least to elect their representative. Secondly, I believe that United States? I would like to pair off with Monty Richards. the basis of apportionment will be thrown off as used by the I think he is going away. committee if you include Lahaina with the rest of the Maui districts. I cannot see any reason why those three districts CHAIRMAN: That pair is out of order, I am afraid. right now as shown on the map cannot be included as one SHIMAMURA: Mr. Chairman, I was about to suggest that district. By doing so we will be assured of at least of two perhaps our deliberations here would not be considered representatives from district five as shown on the map. labor in any event. Wailuku, that’s district six, will have their two and district seven on the other side. Therefore I appeal to all the dele CHAIRMAN: Let’s proceed with the business at hand. gates to bear in mind that what we want is a wider distribu I think the President has gotten the sense of the body that we tion and representation. I believe that was the foundation are going to work and try to get this work done. I suggest we of this districting. try to complete this legislative article this afternoon. DOWSON: I would like to ask two questions. The first is, HEEN: Mr. Chairman, I think you are over optimistic. besides sheep what other living things are on Kahoolawe? We are only on Section 3, and there are nineteen other sections we will have to go through before we finish with CHAIRMAN: The Chair was wondering about that too. this article. I now move that we adopt the balance of Sec WOOLAWAY: Goats. tion 3. DOWSON: No voters. If they expect to have voters on SMITH: Second the motion. Kahoolawe, why don’t they include Molokini? CHAIRMAN: It has been moved and seconded that the WIRTZ: We have great expectations for Kahoolawe but remainder of Section 3 be adopted. we have given up insofar as Mobokini is concerned. ASHFORD: My long delayed amendment, I think, is now in order. I move the adoption of the amendment that is on ST. SURE: I would like to call to the attention of the all the delegates’ desks, the substitution for the sixth, seventh delegates here that the delegate from Molokai’s amendment and eighth paragraphs of Section 3, two paragraphs and re is a confirmation of what is being done in the County of Maui numbering. now. In the past it has always been a gentleman’s agreement that one member to the House has always been elected from ST. SURE: I second it. Mobokai and the other five from Maui. I think this is more or less assuring Molokal and Lanai that they will always CHAIRMAN: It has been moved and seconded that Com have one member in the House. mittee Proposal No. 29 be amended as to the sixth, seventh For the rest of Maui I want you to realize this, the face and eighth paragraphs to inser.t the following: of Maui right now is being changed. By that - - if you look Fifth representative district: the islands of Molokai over the map it shows district six; within the next two or and Lanai, one representative; three years there is going to be a shift in the population and Sb~th representative district: the islands of Maui about 30,000 and 35,000 people will be moving. The reason and Kahoolawe, five representatives. why is that the industries are breaking down the plantation camps and they are building a dream city. I don’t think it ASHFORD: The reason for it I think is obvious to any would be fair right now to split it two, two, two, because of one who knows these three islands concerned. We on Mob the possibility that all six can come from the island of Maui kai can’t even go to the headquarters of the county without and I don’t think it will be fair to Mobokai. going to some other island first. For campaigning purposes, if we have to go to Lahaina as well as Lanai it means we CHAIRMAN: The Chair would like to hear from the chair have to go all around Robin Hood’s barn. Lahaina is the man of the committee on this. Has this problem been ex nearest geographically and just about the furtherest from amined by the Legislative Committee? point of convenience and travel, and also from the viewpoint HEEN: That is correct. of contacts and community of interests. Lanai and Molokai have great community of interest. We associate together CHAIRMAN: What are the results of your deliberations? in many public matters. HEEN: The result was that Molokai and Lanai was to be CHAIRMAN: Delegate Ashford, is the Maui delegation tied up to Lahaina, those areas to have two delegates with a unanimous in this regard? Can you advise the Chair? total population of registered voters numbering 3,865; and 134 LEGISLATIVE POWERS AND FUNCTIONS representative district six, as shown on the map of Maui, pany, are moving from plantation houses within the same with a total population of registered voters numbering area so that there is no change in the population from that 5,594; and the rest of Maui, district seven, has a population standpoint. of 4,704 registered voters. I think there was no dissention Another point brought up by the same gentleman was that there as far as the committee was concerned as to the divi there has always been a gentlemen’s agreement that we have sion of Maui, Molokai, Lanai and Kahoolawe in that manner. elected one individual from Molokai. rhere has been no such gentlemen’s agreement. You don’t find that in the politi CHAIRMAN: What the Chair wants to know, was the cal scheme of affairs. But Molokai has always had repre specific probiem that is now posed by Delegate Ashford’s sentation in the House of Representatives although they only amendment before your committee? have 1,400 votes. They’ve had representation in the last HEEN: That was discussed from time to time. two or three years and also in the Senate. For a good many years they were represented by Senator Cooke. WIR’rz: I might say that the Legislative Committee acted I think it will be a disadvantage for Molokai to alienate in the manner it did on the basis of the Maul representatives itself from the rest of Maui and in voting against this amend in the committee. At that time it was the understanding that ment together with five other delegates from Maui, which that was the best way to do it. However, it has been dis constitutes the maj ority, who are against the amendment, I covered for reasons that have now been brought forward that am doing it so because I think it will be beneficial for Maui that is not the unanimous opinion of the Maui delegation. to vote this way. Now, I think on the figures, and I think Mr. Dodge will bear me out, that as far as this question of dividing the House of APOLIONA: About two or three months ago Lanai came fifty-one on equal proportions, it will make no difference to down here with an appeal for recognition. She appealed to the representation of Maui’s total number of six if we follow your Committee on Local Government to grant self -govern the amendment, namely, of combining Molokai and Lanai ment to Lanai. Your committee, even though it felt that it into one and five for the rest. Is that not correct, may I could not give self-government to Lanai, was very sympa~ ask Mr. Dodge the question? He has answered in the affirm thetic to the appeals of the people. In the committee’s re ative, so this does not affect the problem of equal propor port that Lahaina, Molokai and Lanai be combined as one tions in any way. representative district and be allowed to elect two repre sentatives to the House of Representatives is a good idea HOLROYDE: One of the problems in this division is what because eventually I think Molokai will have a representa happens to Lahaina in a deal like that. Where Lahaina was tive and Lanai will have a representative and everybody thrown over with Molokai and Lanai, they were then given will be happy. Then there will be four representatives from a fair chance of electing one as were Lahaina and Molokai. Maui. if we throw Lahalna back with Maui as a whole, I figure that they have very little chance of electing a representative be CHAIRMAN: Are you in favor of the amendment? cause they have only i,700 or 1,800 votes. That was another reason for supporting this division as it is. APOLIONA: I am riot in favor of the amendment. CHAIRMAN: The Chair is ready to put the question. ASHFORD: Mr. Chairman, if everyone else has spoken, may I speak again? WOOLAWAY: As in the past we all know that the repre sentatives from the County of Maui have been elected at CHAIRMAN: I am going to find out. I think we ought to large. I am against this particular amendment but I am not bring this to a vote. Anyone else care to speak on this? agalnst it because I am trying to keep something away from Molokai. I think that Molokai will benefit as it now stands. ROBERTS: I would like to get a few figures on the popu As far as the difficulty in candidates getting around from lation of Molokai, Lanai and Lahaina, if I may. Molokai and covering those three spots, it certainly is not any more difficult than it has been in the past covering the CHAIRMAN: Will the chairman of the Legislative Powers rest of Maui, way out as far as Kaupo. Committee give us those figures? It has also been brought up, with 1,400 votes on Molokai HEEN: I will give them in terms of registered voters: and 600 on Lanai, I don’t care what anybody says, whether Molokai has 1,449, Lanai 701, Lahaina 1,715, or a total of they say Lanai is in agreement or not, still Lanai would 3,865. certainly be at a two to one disadvantage in trying to get representation themselves. Whereas combining it with KING: I just wanted to point out that the committee adopted Lahaina, Lanai’s a point of stabilization there—1,400 Mob as a general principle that no representative district would kai and 1,500 Lahaina—then your 600 votes on Lanal can be have less than two representatives. We discussed the sub played either way to get their election over for the benefit division of Hawaii into smaller units and it was turned down. of all. Now again, Molokai and Lanai are part of the County of CHAIRMAN: You mean the Committee on Legislative Maui and if you are going to elect one representative out of Powers and Functions? fifty-one, the choice of Molokai with their majority vote, KING: Yes. if I am in error I would be glad to yield for you are alienating the island of Molokai in consideration correction. with the other five representatives on the main island. Also the point brought up by the colleague sitting back WIRTZ: I believe that West Hawaii was divided up one of me about the trend of population over the one point in the and one. I am trying to be correct in my statements, but next two or three years on the island of Maui is something there are two districts on the island of Hawaii that have one to behold. I know very well that the plan calls for a period representative. The original thought of the committee was, of twenty-five sears. We are not building that many houses as Delegate King stated, to try’ to get each district to have in that area in a period of three years. It is going to take a a minimum of two so tint in ail likelihood no district would period of twenty-five. In the meantime the people moving ever get below the proportion of representation to warrant into this new housing area, the Kahului Development Com at least one representative. JUNE 30, 1950 • Afternoon Session 135 KING: I am glad to be corrected, but I sat in on a meeting elected delegate and request that they be given some con where it had been tentatively decided that no representative sideration by this august body, and I am sure that the amend district would have less than two. But in the amendment ment as proposed by the delegate representing the people of offered by Delegate Ashford, Molokai and Lanai would be Molokai and Lanai should be given great consideration by set aside with one and that destroys the balance of the rest this delegation and should be voted upon as being the accept of Maui. The Chair has noted that two spokesmen from that ed amendment in behalf of the people of Molokai. island spoke in opposition to the amendment. Now I would like to suggest to the delegate from Molokai that in a repre KIDO: What the previous speaker said is equally true sentative district consisting of Molokai, Lanai and Lahaina, with Lahaina. For instance, if Molokai and Lanai got to and with a vote of nearly 1,500 on Molokai, Molokai is almost gether, we would be left in the cold also. So it is a question sure to get one of the two allocated to that representative dis of politics, I think. trict. WOOLAWAY: The chairman of this committee mentioned CHAIRMAN: Delegate Ashford will close the debate. horse trading. The chairman of the Legislative Committee mentioned the chances of Lahaina and Lanai horse trading. ASHFORD: There are just two points I want to make. That is true, but at least they have a chance of horse trading. One is the reference to the counties. That matter of counties If you are going to set up Molokai and Lanai as a separate has been left wide open for the legislature and we feel that district, as Delegate Apoliona said, Lanai would never elect our legitimate aspirations will very soon be recognized. anybody. Don’t forget Molokai has 1.400 votes, Lanai 700. The second point is as to the control of the election. It is We ought to be fair to all concerned. As I am saying right true that we have from time to time a representative from now, Lanai would be a point of stabilization there between Molokai but almost never a representative who gets the both other districts, and also we would not be alienating highest vote on Molokai of those running from that island. Molokai and Lanai from the rest of the County of Maui where In other words the representative from Molokai is chosen they now belong. I do hope that some day they will be given by Maui. Now if it comes to an election of those three seg separate status as a county of Molokai by itself, but until ments, the two islands and Lahaina, that is exactly the situa then I think we would be making a very grave mistake for the tion that will exist. Lahaina, Lanai and one precinct of Mob people of Molokai by making them a separate representative kai will probably join together and either elect two men who district. are from Lahaina or some one from Molokai who is not MIZUHA: I speak in favor of the amendment as a former satisfactory to the voters of Molokai. Maui boy. I have lived there most of my lifetime, so I know HEEN: I might point out this, that if the three areas are what the result of this division shall be. Under Delegate combined into one representative district—Molokai, Lanai Ashford’s amendment, we will give Molokai and Lanai one and Lahaina—that does not mean that Molokai will always representative for 2,150 registered voters. Under the orig be assured of one representative. It will depend how smart inal proposal of the committee, we would give Lanai, Mob they can horse trade with Lahaina. Now, if Lanai does the kai and Lahaina two representatives for 3,865 registered horse trading with Lahaina, throw all her votes with Lahaina, voters. Dividing that up it would give one representative provided Lahaina helps Lanai, they can elect one represen for 1,900, but in the deal that has come out now they have tative from Lahaina and one from Lanai and leave Molokai given Wailuku, representative district number six where I out in the cold. It is all a matter of horse trading. come from originally, two representatives for a total num ber of 5,594 registered votes, and then went over to repre KAUHANE: This morning prior to the session getting sentative district number seven and gave them t~o represen into order a representative or a voter from the island of tatives for only 4,704 votes. In the event Molokai and Lanai Mobokai came to this floor and visited some of his former are constituted as a single representative district and given colleagues who served with him in the House of Represen one representative, and Lahaina combined with representa tatives. He sat with me and told me that as far as he is tive districts numbers six and seven, then the five remaining concerned and the people of Molokai are concerned that they representatives would be alloted to the island of Maui on a believe that the amendment as offered by Delegate Ashford fairer percentage of registered voters, If Lahaina seeks is a proper amendment which meets with the approval of the consolidation with Wailuku and have Lahaina included in people of Molokai. He left me with this impression, that if representative district number six, then you would have Lahaina, Lanai and Mobokai were combined as proposed by Wailuku getting a fairer representation or percentage of the committee proposal that Lanai would be the pendulum representatives to the registered vote and I believe the upon which the election of a candidate from Molokai would amendment should be adopted. be successful. He felt that presently with the votes that HOLROYDE: Actually, we are dealing with representatives Lahaina has combined with Lanai, Molokai would be left out now, and if that is carried out as Delegate Mizuha suggests, as suggested by Delegate Heen. So in fairness to the people what will be the end result is that Wailuku, as the center of of Molokai, he feels that Lanai and Mobokai should be com population, will have the representation and Lahaina will be bined together, and they together elect their representive left out in the cold. That was one of the reasons why the representing the islands both of Mobokai and Lanai. committee tried to divide up the island so that we would have This request for representation for Molokai was made to representation throughout the island. the legislature, as I remember, for two sessions. Molokai has come to the legislature requesting representation on AKAU: Mr. Chairman, just before we vote. I think if the board of supervisors. Mobokai feels that they should have there had been representation from Molokai in the last legis such representation on the board of supervisors of the County lative session, that the money which had been set aside for of Maui. The House of Representatives passed such a re those frightful washboard roads in Molokai would be fixed. quest from the people of Molokai that they should be repre It stands to reason that if there is representation directly sented on the board of supervisors for the County of Maui. from Mobokai, Molokai will see to it that they get the money It went to the Senate and the Senate pigeon-holed the bill. which is set aside for them, and Maui will not be taking the They again come to this Convention in the form of their money away. 136 LEGISLATIVE POWERS AND FUNCTIONS WOOLAWAY: Point of information. Did I understand ST. SURE: Point of order. Delegate Ashford asked for that Delegate Akau said that Molokai was without represen a roll call in the beginning. The Chair did not ask if the tation in the legislature? floor wanted roll call. CHAIRMAN: That was not the Chair’s understanding. CHAIRMAN: The Chalr did not hear any request for a roll cail, and did not see a sufficient number of hands for AKAU: May I answer that? They were without direct a roll call, if the Chair is wrong about the decision, we will representation. He was not elected from the island of Mob have a roll call. kai directly. CROSSLEY: I think the point of order was not well taken CHAIRMAN: if there is no further debate, the Chair will because it is the floor that has to ask for the roll call, not ask Delegate Ashford if she cares to close the debate on this. the Chair. The Chalr asks for the ayes and noes which the It is her amendment. Chair did properly, if the floor asks for it, they have to COCKETT: I am not in favor, inasmuch as I am one of show a sufficient strength. the old timers of Maui, having been county treasurer for J. TRASK: Point of order. The Chair just ruled that the over twenty-five years. Molokai has been well taken care ayes have it, so the first sentence is adopted. Is that correct? of. As one of the delegates said, through some gentlemen’s agreement we had senators from Molokai, even though Mob CHAIRMAN: Well, there is a question as to the ruling. kai did not have enough votes, and they had representatives SILVA: Point of order. The only way is to take a roll and even members of the board of supervisors. So with this call. The Chair may take a roll call in any way he sees fit. amendment Molokai will be assured but poor Lanai will He can have a roll call by ayes and noes, by hands, or by a never have a chance. So I am in favor of the committee’s standing vote, but if the Convention feels that that vote is proposal making Molokai, Lanai and Lahaina as one district, incorrect, then they may ask for a roll call or any other and either Lanai [sici will have one as a sure thing, and form they so desire. That is the situation. if the members also, Lahaina will always have one, and I think Lanai in of this Convention would like to have a roll call, then they time will have a representative in the House. So I am in should so state~ Otherwise the ruling of the Chair is correct. favor of the proposal by the committee. CHAIRMAN: if the body wants a roll call, the Chair will CHAIRMAN: The Chair feels that Delegate Ashford, the have a roll call. Apparently there is a sufficient number to proponent of the amendment, should close the debate if she require a roll call. cares to. ASHFORD: I have no further arguments to make, but I ROBERTS: On a point of order. I think the vote was would like to ask for a roll call. taken and the vote was carried in the affirmative, if they want to reconsider the question, they know how to reconsider CHAIRMAN: The question is on the amendment. it. It would seem to me that after a vote is taken, you don’t KING: Point of information. Are we voting on the first ask for a roll call vote. You ask for it before the vote is sentence, “Fifth representative district: the islands of taken. Molokai and Lanai, one representative.” SILVA: I rise to a point of order, Mr. Chairman. There is no definite determination of an aye vote on the floor, so CHAIRMAN: I was just going to ask the delegate from any delegate may ask for a roll call as its final determi Molokai that question. The amendment was for the entire nation or a standing vote to be counted. if that vote is not amendment of the fifth representative district, and yet in challenged, then it is a different question, but the moment all arguments she requested that we vote on it, sentence by that vote is challenged, you must put either a rising vote or sentence. Now, what is your wish, Delegate Ashford? ayes and noes. ASHFORD: I would rather have it voted on sentence by CHAIRMAN: The Chair will recognize Delegate Porteus sentence, but it is one amendment. to get us out of this dilemma. CHAIRMAN: Wouldn’t a vote on the entire amendment PORTEUS: I was under the impression that the delegate satisfy you? from Molokai had risen and said that she had nothing further KING: It makes quite a lot of difference. if Molokai and to add on the subject other than to ask for a roll call vote, Lanai were created one representative district, then the and I wish we could ascertain from the delegate whether or question rises whether the remalning five should run at not she had requested a roll call vote, if she had, the ques large over the whole of Maui, or whether there will be a tion should then have been put to the floor as to whether or further division of the island of Maui. There are representa not there should be a roll call vote in which case it would tives of the island of Maui who would like an opportunity to take - - be heard on the second sentence of the proposed amendment. CHAIRMAN: The Chair did not understand that. CHAIRMAN: Will Delegate Ashford then amend her PORTEUS: May I ascertain from the delegate whether motion to read that we vote on the first sentence of this that is so? amendment? CHAIRMAN: Will you please address the Chalr, Delegate ASHFORD: Yes, I would be glad to do that, Mr. Chair Porteus? man. PORTEUS: Will the Chair please address the question CHAIRMAN: Are you ready for the question? All those to the delegate from Molokai? in favor of the first sentence of Delegate Ashford’s amend ment, reading as follows: CHAIRMAN: Is that correct, Delegate Ashford? Fifth representative district: the islands of Molokai ASHFORD: Yes. and Lanai, one representative; KAUHANE: I think your ruling is binding upon this Con signify by saying “aye.” Contrary. The ayes have it. vention. Although the roll call vote was requested, you JUNE 30, 1950 • Afternoon Session 137 abided by such a request for a roll call vote and demanded WIRTZ: I was just waiting to be in order. I would like the roll call vote to be taken in the fashion that you so put. to ask now from the expert attached to the Legislative Com The rules say that the Chair has the right alter a voice roll mittee whether Lahaina has sufficient votes to warrant a call vote is taken to decide the issue and you have decided separate representation. the issue that the amendment carried, so there is no con CHAIRMAN: Can you answer that, Delegate Heen? fusion in your mind as to the vote taken and I believe your decision is final. HEEN: Mr. Dodge says yes. You will remember the ratio was 2,445, and this is over one-half of that ratio. KING: There are two points involved. In the first place, Delegate Ashford did request a roll call and the Chair did KING: Speaking in favor of the amendment, what the not ask if the Convention wanted a roll call. That is one of previous action has done is to create a separate represent them. The other one, the Chair was in little doubt on the ative district out of the islands of Molokai and Lanai. What voice vote but finally decided that the affirmative had it the second sentence of this proposed amendment, the one in and there was immediately a call from the floor for a roll troduced by Delegate Ashford, wouki [do is] throw Lahaina call, so it seems to me there is no further argument. A into the rest of Maui and break up the present two represent roll call is demanded. ative districts there and make the whole island of Maui and its pertinent island of Kahoolawe, for whom the Maui people CHAIRMAN: I think that is clear enough. The Chair will have great hopes in the future, make it all one district, so rule. We can reconsider the action. The voice vote was electing five. In other words, we have already destroyed erroneously heard by the Chair. The Clerk will please call the integrity of two, two, two, and now they are going to the roll on the amendment of Delegate Ashlord. further destroy it by having five. So the amendment pro MAU: I appeal for the ruling of the Chair, Mr. Chairman. poses to create Lahaina as a separate district, electing one representative with something like 1700 odd registered votes CHAIRMAN: Before we call the roll, we’ll recognize and then leave the other two districts as they are, the Wai Delegate Mau. luku District with two and the Makawao District with two. MAU: I was one of those who voted for the amendment. The amendment was not phrased in the exact correct termi I now move that we reconsider our action on the amendment nology, but that is the intent of it and I think we could vote to give the other side a chance. on that with the understanding that the Style Committee or the Committee on Legislative Powers will re-write it and SILVA: Mr. Chairman, you don’t have to reconsider your then re-number the districts thereafter. The purpose is to action. give Lahaina representation which, under the amendment CHAIRMAN: The Chair has ruled that that is not neces proposed by Delegate Ashford, will not exist because it will sary, Delegate Mau. The Clerk will please proceed to call be thrown in with the centers of population and never have the roll. any representation directly from Lahaina. Ayes, 36. Noes, 19 (Apoliona, Bryan, Cockett, Dowson, WIRTZ: I’d just like to point out that even on the two, two, Fong, Fukushima, Hoiroyde, Kage, Kanemaru, Kido, King, two plan, Wailuku district number six, Central Maui, has Kometani, Lai, Larsen, Ohrt, Porteus, Smith, Woolaway, the greatest number of votes proportionately to that two, so Anthony). Not Voting, 8 (Gihiland, Kawakami, Lee, Nielsen, they were to that extent under-represented; whereas, five Okino, Phillips, H. Rice, Richards). and seven were over-represented. Now, if we give Lahaina alone with 1,700 votes one representative, we throw that CHAIRMAN: The motion is carried. We’ll now proceed balance even further out of kilter. with the second sentence. Is that in order, Delegate Ash- ford, at this time? You offer that? MAU: I believe the amendment is rather indefinite, but we ought to give the movant of the amendment an opportunity ASHFORD: I move the adoption of the second sentence. later if his amendment carries to give a more specific delin WIRTZ: Second the motion. eation. I think that ought to be the understanding. CHAIRMAN: It has been moved and seconded that the CHAIRMAN: Delegate Mau, the Chair was going to ask second sentence of Delegate Ashford’s amendment to Pro Delegate Woolaway, if he can get the delegate’s attention, the posal No. 29 relating to the sixth representative district, Chair still doesn’t quite understand that amendment. Dele reading as follows: “The islands of Maui and Kahoolawe, gate Ashford’s amendment, as the Chair understands it, would five representatives.” put the islands of Lanal and Molokai in one representative district and the rest of the County of Maui in another. Is that WOOLAWAY: I want to amend that amendment. Make correct? And yours would do what? Lahaina one separate district, and the others remain as they are. WOOLAWAY: I would leave Maui with three representa tive districts, Lahaina being one with one representative, KIDO: Second the motion. and six and seven to remain as they are now shown in the CHAIRMAN: The Chair does not understand your amend committee report. ment. Where would you insert those words? CR~SLEY: I move for a five minute recess to have the WOOLAWAY: You would have to give Lahaina a separate amendment prepared. representative district number there, making it a separate DELEGATE: Mr. Chairman, I don’t believe that - - Mr. district, and six and seven remaining as they are. All you’ve Chairman. done is take Molokai and Lanai away from Lahaina. DELEGATE: Second the motion. CHAIRMAN: The Chair is trying to understand your CHAIRMAN: It has been moved and seconded that we amendment, it confesses it doesn’t understand it. take a five minute recess. I think that’s a good idea, then WOOLAWAY: Sixth district, Lahaina; seventh district, Delegate Woolaway can get his - - . The Chair will declare Wailuku; eighth district, East Maui. a five minute recess. 138 LEGISLATIVE POWERS AND FUNCTIONS (RECESS) CHAIRMAN: It has been moved and seconded that we reconsider our action on the adoption of the first sentence of Delegate Ashford’s amendment. All in favor signify by CHAIRMAN: The Chair will recognize Delegate Woolaway. saying “aye.” Contrary. The ayes have it. Delegate Smith. WOOLAWAY: Thank you, Mr. Chairman. At this time, I’d like to withdraw my amendment. SMITH: I now move this amendment: “Fifth represent ative district: The islands of Molokai, Lanai, Kahoolawe CHAIRMAN: Motion to amend is withdrawn. and Maui, six representatives.” SMITH: I have an amendment which I’d like to have CHAIRMAN: Is there a second? distributed. COCKETT: I second that motion. CHAIRMAN: State your amendment. Clerk will distribute it later. CHAIRMAN: Moved and seconded - - SMITH: Substitute for the sixth, seventh and eighth para SMITH: I would like to go a little further. If you notice graphs of Section 3 the following: “Fifth representative that this throws it wide open as it was before, and if Molokai district: The islands of Molokai, Lanai, Kahoolawe and feels that they’ll be left out the window, why even though a Maui, six representatives.” man from Molokai is elected, say by the rest of the islands, he still comes from Molokai and he still has a chance of CHAIRMAN: Is there a second to that? doing as much as he possibly can for Molokai. And another COCKETT: Second it. thing is that Molokai has intentions of becoming a county of its own. That is a problem which will be taken up later, but CHAIRMAN: It has been moved and seconded that the for harmony’s sake, we agreed for this redistricting for the present County of Maui, as I understand the motion, will be common good of the representation being spread as evenly one representative district from which there will be six as possible all around. representatives chosen. Is that the effect of your amendment? CHAIRMAN: The Chair understood the purpose of Dele SMITH: Yes, it is, sir, and I’d like to talk on it. What’s gate Ashford’s amendment was so that the island of Molokai being passed around is - - would get some representation. Your amendment wouldn’t do that at all. CHAIRMAN: Will the delegates give Delegate Smith their attention, please. SMITH: That’s right, but there’s quite a few number of persons - - there’s quite a few number of other registered SMITH: I have - - there’s an error. It says fifth sena voters that would be affected. As far as Molokal is con torial district. It’s supposed to be fifth representative dis cerned, I believe it’s 1,400 or 1,500. There’s 2,300 regis trict. Now, if you look at the map, Maui, central Maui which tered voters that will be affected and left out entirely, and is numbered six, is your biggest population area, your con they should all be given a chance. I was absolutely in favor centration. We in that area were for the good of represen to condescend to agree as the proposal was submitted by tation, spreading it around as far as we could, felt for the the committee, but since that is broken up, my coming from good of all that we would condescend to only having two, so Wailuku and Puunene, the biggest population, I don’t think that Lanai, Molokai and Lahaina would be given at least a it’s fair to that area nor any other area. chance. We felt that Lanai needed representation, that if they didn’t have that - - if they were unable to have that repre ASHFORD: Some condescending remarks were made sentation, at least they could have a little behind them to about harmony. This isn’t producing harmony. urge Molokai or Lahaina to kokua. This way, it’s left it out CHAIRMAN: The Chair is ready to put the question. Is entirely. If you go ahead and have Molokai and Lanai in one, there a roll call demanded? Sufficient for a roll call. The and the rest of Maui in another, it means that Lanai and Clerk will please call the roll. The Chair will put the ques Lahaina of approximately 2,300 registered voters, they would tion on Delegate Smith’s amendment which in substance will just be out on a limb. So, since this amendment for just place the County of Maui in one district with six represent Molokai alone, Molokal and Lanai, with Lanai not having a atives, no division. chance, I feel that it’s only fair to all and that is especially the district of - - Ayes, 22. Noes, 32 (Akau, Arashiro, Ashford, Corbètt, Doi, Dowson, Hayes, Heen, Ihara, Kanemaru, Kauhane, Kawa WOOLAWAY: Point of order. I hate to do this because hara, Kellerman, Lee, Loper, Luiz, Lyman, Mau, Mizuha, I’m in favor of the amendment as proposed by Delegate Noda, Roberts, Sakai, Serixawa, Shimamura, Silva, St. Sure, Smith, but I think the amendment by Delegate Ashford is A. Trask, J. Trask, Wirtz, Wist, Yamamoto, Yamauchi). passed and we’d have to move for reconsideration before Not voting, 9 (Gilliland, Kam, Kawakami, Nielsen, Okino, we take up this new amendment. Am I right? Phillips, H. Rice, Richards, White). CHAIRMAN: The Chair doesn’t understand it. CHAIRMAN: The motion is lost. WOOLAWAY: The first sentence has already been car ASHFORD: I move for the adoption of my entire amend- ried, making Molokai and Lanai one representative district. ment. The new amendment would bring Molokai, Lanai and Maui ST. SURE: I second that motion. into one representative district. We’ve already made one decision there. I think we’d have to move for a reconsider TAVARES: As one of those who originally voted with the ation. Therefore, I so move. group on Molokai, I’d like to state that I have changed my mind. I’ve seen the result of trying to destroy a plan which C. RICE: Point of order. The gentleman who just moved, I believe has been carefully worked out by a committee that he’s voted in the minority. He can’t make that motion. Mr. worked very hard to get some order out of chaos, and after Chairman, just for harmony’s sake, I move we reconsider. this last demonstration of what destroying a carefully worked SAKAKIHARA: I second the motion. out plan does in one particular, and seeing what it may lead JUNE 30, 1950 • Afternoon Session 139 to in practically every othçr precinct being re-hashed, I ative district with one representative. Now in order to find believe that we should stick to the committee’s recommen out whether Puna alone with the number of registered voters dation. I don’t believe that enough reasons - - enough infor is entitled to one representative, I don’t know. I understand mation can be given us in the time we have available to enable the number of registered voters in the District of Puna is us to vote any more intelligently than the committee after its 1,819, so that under the method of equal proportions it would hard work has done, and from now on, I think I will stick to be entitled to one representative. the committee’s recommendations. I hope the rest of the Convention does because this is what happens when we don’t. CHAIRMAN: May the Chair ask the chairman of the Leg islative Powers Committee, was the Hawaii delegation in LOPETh I would like to second that motion. I feel exact favor of the committee proposal as it was brought to the ly the same way. floor? CHAIRMAN: That was not a motion, Delegate Loper. It HEEN: Yes. At one time the island of Hawaii was to be was an expression of sentiment. divided into two district. East Hawaii, one district and West Hawaii, one district. Then later on, the delegation in that LOPER: Didn’t you make a motion for reconsideration? committee from Hawaii decided to divide East Hawaii into CHAIRMAN: No motion is before the house other than a three districts, one to consist of Puna and a part of Keaukaha, motion to adopt Delegate Ashford’s amendment. another to consist of Hamakua and North Hio as one district, and the rest of East Hawaii to constitute one district. TAVARES: I was simply arguing against the motion, and arguing that we should not vote for it, but try to stick to the BRYAN: I might explain why this combination was made original plan. in the first instance by the committee. We tried, as we ex CHAIRMAN: Any further discussion on the question of plained concerning the districts of Maui. to make the districts large enough so that the figures would approach the common Delegate Ashford’s amendment? All those in favor, signify denominator of 2,445. Puna when combined with Keaukaha by saying “aye.” Roll call? The Clerk will call the roll. came to 2,355, which was a good approximation. Now, we WIRTZ: This is on the amendment in its entirety. wanted to do that to give them leeway so that they would al ways be. or at least for the foreseeable future, a district CHAIRMAN: On the amendment in its entirety. entitled to one representative. In the reapportionment sec Ayes, 34. Noes, 20 (Apoliona, Bryan, Cockett, Crossley, tion, I think it’s set up so that when any district does not Dowson, Fong, Fukushima, Holroyde, Kanemaru, Kellerman, have registered voters equal to one-hall of our common Kido, King, Kometani, Lai, Larsen, Loper, Ohrt, Porteus, denuminator of 2,445, it should be combined with some other Smith, Tavares). Not voting, 9 (Gilliland, Kam, Kawakami. district. Nielsen, Okino, Phillips, H. Rice, Richards, White). Now we’ve broken the precedent on that in changing the districts on Maui and we have one district with - - that’s CHAIRMAN: The ayes have it. The amendment is not really breaking the precedent, but it’s reducing the size adopted. of the district the committee recommended, so actually this HEEN: It seems to me that we should take up the first change is not too far out of order. The only danger is that representative district which comprises the district of Puna they would only have to drop about six hundred votes in that in the island of Hawaii, plus the portion of Keaukaha, as area, or the rest of the territory to increase proportion Keaukaha is described in the schedule, as that area has one ately in their representation in their number of votes, so representative district. that district would not be entitled to any representation. In other words, if they dropped down to 1,200, they would have CHAIRMAN: Delegate Heen, may the Chair make an in to be redistricted and combined with some other district, and quiry? If there’s no substantial dispute among the Hawaii we tried to arrange the districts so that the number was delegation, would it not save time to take up the entire rep resentative districts from the Island of Hawaii? approximately 2,400 wherever possible. Now having gone off that standard in some respect. I don’t know that there’s HEEN: That’s correct. If there is no dispute among that tremendous argument for keeping it the way it is, in my delegation, why we can dispose of that. own mind, but that is my personal opinion. SAKAKIHARA: I would like to have Delegate Heen bring CHAIRMAN: It would appear to the Chair that it would be that up. of interest to the Hawaii delegation to keep it as the committee proposed it. Delegate Sakakihara. have you heard that ex CHAIRMAN: We’d like to know whether that is the feeling of the Hawaii delegation before we - - planation? SAKAKIHARA: I have heard that explanation. When we SAKAKIHARA: I think an amendment is in order as to the incorporated precinct nine, which is known as Keaukaha, first representative district by deleting Keaukaha. Amend with Puna we tried to maintain the common denominator of Section 3, first representative district to read as follows: 2.445. In view of the fact that Lanai and Molokai have devi “that portion of the island of Hawaii known as the district ated from that denominator, it is not necessary for Hawaii of Puna, one representative,” and deleting “and Keaukaha. to maintain that common denominator of 2,445, and I there the latter being more particularly described in the schedule.” fore make the amendment to delete Keaukaha and establish HEEN: That amendment, has that been seconded? a single representative district for the district of Puna with one representative. CHAIRMAN: Not yet. HEEN: I think it might be in order for me to ask the SILVA: I’ll second for the - - last speaker this question. Then what would become of that HEEN: That amendment means this, that that portion of portion of Keaukaha that was intended to be joined up with Puna? the island known as Puna, that’s the way it’s described in the Organic Act—Puna is known as the District of Puna but SAKAKIHARA: Keaukaha would be incorporated into the described in the Organic Act as Puna—to be one represent- South Rio. 140 LEGISLATIVE POWERS AND FUNCTIONS HEEN: South Hio alone, without Hamakua and North we were deliberating on the amendment I offered to amend Bib, is that correct? Section 3 relating to reapportionment, namely, first repre sentative district; to define the boundaries of the represent SAKAKIHARA: Correct. ative district for the first representative district so that HEEN: There’s another question. I was wondering the first representative district would read as follows: whether that by adding Keaukaha or that portion of Keaukaha “That portion of the island of Hawaii, known as Puna, one that was intended to be joined up with Puna, by adding that representative.” to South Hio, would South Hio receive additional represen CHAIRMAN: You make such a motion, Delegate - - tative? SAKAKIHARA: No. SAKAKIHARA: I do, Mr. Chairman. HEEN: It would not. CHAIRMAN: And is it seconded? CHAIRMAN: Delegate Sakakthara’ s motion simply is for YAMAUCHL I second the motion. the deletion, as the Chair understands it, of the words “and CHAIRMAN: The Chair is ready to put the question on Keaukaha.” Is that correct, Delegate Sakakihara? this and the understanding of the Chair is this is a non SAKAKIHARA: Yes, Mr. Chairman. controversial amendment. We will take a vote on it. CHAIRMAN: In the first representative district, “that DOl: I can’t say I am for the amendment nor can I say portion of the island of Hawaii known as Puna and the latter I am against it. I believe this is a question which relates being more particularly described in the schedule, one re directly with the problem of Hawaii and it should concern presentative”? every delegate from Hawaii. I noticed there are quite a few absent this morning and I believe it is the feeling of this KING: The language to be cut out is “and Keaukaha, the Convention this morning not to concern itself with Section 3, latter being more particularly described in the schedule.” the apportionment problem. Why can’t we leave this thing That goes out also because that description was only to on the table for awhile till the rest of the delegation comes Keaukaha. back to the Convention and handle this like we do the others. CHAIRMAN: Oh, that description relates only to Keau CHAIRMAN: Well, we could either do that, Delegate Doi, kaha, is that right? or move for - - put the question, and you can vote with the KING: Puna is already described as a geographic divi majority; then when the rest of your group comes back on sion in the Organic Act. Monday or Tuesday, it could be reconsidered when we deal with this section. I think that would be more expeditious. CHAIRMAN: Then the amendment would read: “That portion of the island of Hawaii known as Puna, one represent SMITH: I’d like to ask the chairman of the committee, as ative.” Is that correct? far as the report is concerned, what effect will that make? SAKAKIHARA: Correct. HEEN: Do I understand if this amendment were to be adopted, what effect would it have on the report? The effect CHAIRMAN: Are you ready for the question? would be that other amendments will have to be made in the HEEN: For the purpose of helping the clerks in this latter part of that section to conform to this amendment. matter, the amendment should be this: That after the word “Puna” insert a comma in the second line of that particular SMITH: I don’t believe that we can, at this time - - we paragraph, and delete the words “and Keaukaha, the latter don’t have enough members from Hawaii and I don’t think being more particularly described in the schedule,” delete that it should be voted on until all of them are here. I don’t all those words. Then the clerk can figure that out. It’ll be think it’s fair to anyone. easier for the clerk to figure that out. CROSSLEY: It seems to me that if all we’re going to do is go through the form of voting today, with the idea that it KING: I’d like to confirm what Delegate Tavares said a can be reconsidered on Monday, with the idea that that’s moment ago when Delegate Ashford’s amendment carried. going to change it, then we’re just wasting time. Let’s go It upset the schedule, the program set up by the majority on to something that we think we can pass that will stay of the committee, and opened the gate to a great many more passed. amendments which I think the delegates are not too familiar with at the moment. Also, I have already granted leave to CHAIRMAN: In view of the statements made on the floor, be absent to six and seven members of this delegation, some the Chair is of that view, Delegate Sakakthara. Your motion who are not going to be back until Monday. So I now move to amend this section should go over until the Hawaii dele that the committee rise, report progress and ask leave to gation is here and have some debate on it. Will you - - sit again. SAKAKIHARA: We have the Hawaii delegation here, Mr. C. RICE: Second the motion. Chairman. CHAIRMAN: You heard the motion that we rise and re CHAIRMAN: Delegate Nielsen isn’t here, is he? port progress. All in favor signify by saying “aye.” Con trary. Carried. SAKAKIHARA: He’s the West Hawaii delegate. This reapportionment is East Hawali. JULY 1, 1950 • Morning Session DOl: Delegate Okino and Delegate Luiz are not here from East Hawaii. CHAIRMAN: The Committee of the Whole please come to YAMAMOTO: Mr. Chairman, for your point of inf or order. ation, I would like to say that since I sent a message back to SAKAKIHARA: Yesterday afternoon when this Committee Hio, I had a phone call last night to hold this matter up of the Whole rose to report progress and asked to sit again, until Wednesday. Will it be possible? JULY 1, 1950 • Morning Session 141 CHAIRMAN: The Chair will entertain a motion to defer TAVARES: I think the words “when all the delegates are this. here” ought to be left out of the motion. That is our hope that they will be here but if by any chance they don’t all get here KING: If objections are raised from some of the East on Wednesday, it seems to me we shouldn’t add that as a Hawaii delegation, I think it should be deferred. We thought condition. If we want to defer until Wednesday and then there at the beginning it was a minor matter. Originally Keaukaha are some people that we feel we should defer further for, was added to Puna merely to increase the voting strength of we can decide at that time. I think the motion ought to be that particular representative district, and the separation of to defer to a definite period. Then let the Convention act Keaukaha, placing it back with Hio to which it belongs geo at that date. graphically and as a part of the urban area of Hio city, would be the logical thing to do. But if there are objections SILVA: At this time I move we rise, report progress, I would suggest that Delegate Sakakihara withdraw his amend and beg leave to sit again. ment at this time so that we can go on with other provisions SAKAKIHARA: I second it. of the proposal. CHAIRMAN: That motion is in order. CHAIRMAN: I suggested that too, but apparently the delegate is unwilling, therefore the Chair will entertain - - KING: I don’t know whether that motion is debatable or SAKAKIRARA: I withdraw my amendment. not but when we went into the Committee of the Whole this morning it was with the understanding, that had not been yoNG: I move that we defer consideration of Sections 3 generally agreed upon of course but a few of us discussed and 4 until all the delegates get back here. it, that we could go ahead with Section 1 and then skip to Section 5 of Proposal No. 29. Those are non-controversial APOLIONA: I second Delegate Fong’ s motion. features of the Committee Proposal No. 29, and if we could CHAIRMAN: It has been moved and seconded that all dispose of that much ground, then on Wednesday we will be action on Sections 3 and 4 be deferred. prepared to take up the controversial features of Sections 3 and 4. I hope that the motion to rise and report progress TAVARES: I think there should be a definite date of defer will not carry for that reason, unless there is serious ob ment. All of the delegates might not get back for a long jection and unless there is some feeling that Sections 5, 6, time. I think we can then - - 7 and so forth are controversial, and if they arc, then the CHAIRMAN: That’s why the Chair didn’t put the question best thing to do is for the committee to rise. in the form of a statement as stated by Delegate Fong. CHAIRMAN: Are you ready for the question? The ques FONG: Until Wednesday, Mr. Chairman. tion is on the motion to rise and report progress. All in HEEN: A motion was made yesterday along the line favor signify by saying “aye.” Contrary. Motion is lost. stated by Delegate Sakakihara this morning. The record The Chair will now put the question on Delegate Fong’s will show that an action upon that motion was deferred until motion that action on Sections 3 and 4 be deferred. a later time, so I think the record should be kept that way. ROBERTS: I’d like to speak in favor of postponing action When we reconvene say on Wednesday then that same motion on Section 3 but on Section 4, regardless of the districts we can be brought up; otherwise the record will be somewhat adopt under 3, the problem is a general one and I personally confused. believe that we can handle it this morning, If the movant CHAIRMAN: Are you ready for the question? would accept an amendment so that only Section 3 would be deferred and we could take up Section 4, I would like to so SAKAKIHARA: I have a motion to offer. move. CHAIRMAN: There is a motion pending before the house, FONG: I think that if we find enough time, I think we can Delegate Sakakthara. reconsider that motion. There’ll be a lot of questions here SAKAKIHARA: Will the Chair kindly restate the motion? on Sections 5, 6 and 7, and it will take time. CHAIRMAN: Can’t hear you. CHAIRMAN: That appears feasible. Is that satisfactory to you, Delegate Roberts? SAKAKIHARA: What is the motion pending before the house? ROBERTS: After we try five, come back to four? CHAIRMAN: The motion is that action on Sections 3 and CHAIRMAN: No, the delegate’s suggestion is that there 4 be deferred. is ample material that will consume the rest of the morning SAKAKIHARA: May I amend that motion? I desire to and if we have any time left over we can reconsider our amend that motion upon the grounds that there are a great action, and proceed to five. many delegates who are not present this morning. ROBERTS: All right. CHAIRMAN: The Chair did not understand that statement, TAVARES: I should like to move to amend the previous Delegate Sakakihara. You move to amend it? motion so that there will be attached to it the following SAKAKIHARA: Amend it upon the grounds that there are condition: That whatever action we take at this time, in a great many delegates who are not present here. Proposal view of the smallness of the delegation here, shall be sub 29 is a very important proposal. I move at this time that ject to a motion to reconsider by any person, whether he action on Committee Proposal No. 29 be deferred till Wed votes in the affirmation or the negative, next week. nesday when all the delegates are here. CHAIRMAN: The Chair will rule that motion out of order. HAYES: Second that motion. We have rules governing this body. CHAIRMAN: That’s not an amendment to Delegate yong’ s CROSSLEY: Point of information, will you state the motion. The Chair will so rule. motion, please? 142 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: The motion is that we defer action on Sec TAVARES: I have a further amendment to propose. tions 3 and 4. CHAIRMAN: Wait till we get the section before the CROSSLEY: Until when? house. HEEN: Until Wednesday, as I understand the motion. TAVARES: Well, has that not been adopted? CHAIRMAN: Until Wednesday. CHAIRMAN: No, it has not. Is there a second to Dele gate Crossley’s motion? CROSSLEY: Until Wednesday. WOOLAWAY: I’ll second the motion. SERIZAWA: I second that motion. CHAIRMAN: It has been moved and seconded that CHAIRMAN: It has been moved and seconded. All in Section 5 be adopted. favor signify by saying “aye.” Contrary. The ayes have it. TAVARES: I move that in the third line of Section 5, ARASHIRO: I now move for the tentative adoption of after the first word “the” we insert the words “term of” Section 5. and then in that line and next line delete the words “for a CHAIRMAN: Is there a second? term of” so that that second sentence will read: “The term of office of members of the House of Representatives shall be” HEEN: May I suggest that we start with Section 1? CHAIRMAN: Just a little slower, will you please, Dele CHAIRMAN: I think that’ll be more in order. gate Tavares. HEEN: That will be in proper order. I move the adoption TAVARES: Insert alter the word “the,” the first “the” of Section 1. in the third line of Section 5, the words “term of,” and then SAKAKIRARA: Second that. delete in the same and the next line the words “for a term of,” so that - - CHAIRMAN: It’s been moved and seconded that Section 1 be adopted. Any discussion? HEEN: I don’t just get that. SAKAKIHARA: Question. TAVARES: Well, I will read it with the amendment. CHAIRMAN: All those in favor signify by saying “aye.” HEEN: May I ask the speaker if he is referring to the Contrary. Unanimous. mimeographed copy of the proposal? HEEN: I move the adoption then of Section 2 - - no, no, TAVARES: Yes, Mr. Chairman, on page 6, the third not Section 2. line starts out with the words “the office of,” and I suggest that it read “The term of office of members of the House WOOLAWAY: Section 5. of Representatives shall be,” then delete the words “for CHAIRMAN: Section 5. a term of.” I think it reads better that way, it will - - CROSSLEY: I check, I second his motion. I second CHAIRMAN: Couldn’t the Style Committee change that, Section 2. Delegate Tavares. Isn’t that just a matter of style? SAKAKIHARA: Second Section 5. MAU: That’s correct. HEEN: That’s right, Section 5. May I ask the - - perhaps CHAIRMAN: I think so. this should be in a form of a motion to amend. The word TAVARES: Well, we’ve made some other changes too. “elections” in the second line - —“ election” in the second “Elections” is a matter of style. line just before the period should be in the plural instead of singular. I move that amendment. CHAIRMAN: I agree. ROBERTS: Second that. ARASHIRO: I second that motion. CHAIRMAN: It has been moved and seconded that the HAYES: I second that motion. word “election” appearing in the second line of Section 5 CHAIRMAN: What motion do you second? be changed by adding an “s” before the period to read “elections.” ARASHIRO: I second Delegate Tavares’ motion. SAKAKIHARA: So that it will read “general elections”? HAYES: I second Delegate Tavares’ motion. HEEN: That’s correct. CHAIRMAN: Will the delegates who are not addressing the Chair please take their seats so the Chair will know who CHAIRMAN: The plural instead of the singular. Is there wants to be recognized. any discussion? All those in favor signify by saying “aye.” Contrary. Carried. FUKUSHIMA: I think that the last amendment is purely a matter of style, nothing else. PORTEUS: Mr. Chalrman, what is the vote on? CHAIRMAN: Two delegates felt otherwise and want to put HEEN: That’s the adoption of Section 5, or the amend it to a vote. The Chalr agrees with you, Delegate Fukushima. ment? TAVARES: With that understanding, I withdraw my PORTEUS: Oh, the amendment, all right. motion. CHAIRMAN; Section 5 has now been amended, the first CHAIRMAN: It is withdrawn. sentence by adding an “s” to the word “election.” TAVARES: However, I have a question to ask and that CROSSLEY: I now move for the adoption of Section 5, is, we are going to have, I hope, a legislative council. It as amended. seems to me that this is awkward, to have the term of JULY 1, 1950 • Morning Session 143 office commence with the date of general election, because the Congress of the United States? In the meantime the our sessions do not start on that date. And when you have territorial delegate - - senators would have been elected. a legislative council, which is in effect a holdover committee, CHAIRMAN: Will you answer that, Delegate Heen. you always have a hiatus for the two-year term members of the House. I think it’s proper to have your term expire on HEEN: The Committee considered that problem and it’ll the date of the next general election - — I mean expire at have to be taken care of in the schedule. the beginning of the next general session of the legislature CHAIRMAN: In other words, there could be an ordinance so that your holdovers will surely be in office during that to that effect, Delegate Sakakihara, that would take care of period. That is the policy followed in Congress. You do it. have a “lame duck” session, but you very seldom have a special session called. SAKAKIHARA: There are quite a few members of the Committee of the Whole who are not members of the com CHAIRMAN: Do you have an amendment, Delegate Tavares? mittee and who are not familiar with that very question and TAVARES: Well, then, I move that the - - they are rather confused about it. CROSSLEY: Mr. Chairman, will he yield for a question? HEEN: H. R. 49 requires a special election alter the Constitution is approved by the Congress and the President, CHAIRMAN: Will the speaker yield? so that that matter will have to be taken care of in the CROSSLEY: Will the speaker yield? schedule and not in the ordinance as someone stated because the amendment to H. R. 49 as passed out of the Senate com TAVARES: Yes. mittee has eliminated all references to ordinances. I think CROSSLEY: Don’t you think we should provide in there, that was checked yesterday. Mr. Chairman, also in the event of a special session being called from the time of the election until the regular or the SHIMAMURA: May I say in reply to the question raised general session is called? Because a special session could as to special elections that there is an ordinance already be called in that interim period and the people have been provided for and the only amendment necessary will be that elected to office. Therefore, the term should begin, it would the word “ordinance” be deleted, and also that, “upon the seem to me, on the date of being sworn in at the first general approval of the Congress of the United States,” instead of or any special session called between the time of their elec “the President.” tion and the first general session. AKAU: I’d like to ask the delegate from the fourth dis CHAIRMAN: Will the gentleman answer that question? trict, the chairman, a question. If you have in Section 6, that we’ve been discussing, “as prescribed by law” - - we’re TAVARES: Well, of course that gives us a somewhat in- discussing 6, are we not? If you have “as prescribed by definite time, but I imagine that could be worked out. It law,” do you need the rest of that - - those next two lines, and would take a little more intricate wording to provide for if no provision is made, will it not be prescribed by law? that. I wonder if the chairman of the committee would com ment on that suggestion. CHAIRMAN: Delegate Akau, that is essential. There either has to be a provision by law or you’ve got to take HEEN: The provision here with reference to the House care of it some way. This gives the governor the power if you will find in the Organic Act. It would seem to me that the legislature doesn’t act. insofar as the legislative council is concerned, if it’s going to be created under the Constitution and implemented by AKAU: Well, aren’t we assuming then the legislature legislation, the members of that council, even though they won’t act. may be members of the legislature at the time they were CHAIRMAN: That’s correct. This fills in the hole in appointed, could hold over beyond their term. It’s a body case the legislature doesn’t act. created by the Constitution and legislation implementing the Constitution. AKAU: Well, my question is, we’re assuming the legis lature doesn’t act, but it usually does, so I still don’t see TAVARES: If that is taken care of in the legislative why we need it and why we shouldn’t delete it. council section, I will withdraw any proposed amendment. HEEN: I might add that the point raised by the last CHAIRMAN: This is just an abundance of caution. No speaker would apply if it were a legislative committee where doubt they will act, but this will just fill in the hole in case all the members must be members of the legislature. they don’t. TAVARES: I’m satisfied, Mr. Chairman. ASHFORD: I thought we were asking questions about Section 5 still, and may I ask one question in regard to CHAIRMAN: The Chair will now put the question. It’s that, not attacking the fact that it has been adopted. Would on the adoption of Section 5, as amended, with the “s” on it not be proper to put into the schedule a provision for “election.” All in favor signify by saying “aye.” Contrary. short term senators in the first election? Otherwise they It’s carried. will come up at every election, all of them. HEEN: I now move for the adoption of Section 6. HEEN: That’s correct. That problem has been consider SAKAKIHARA: I rise to a point of information. Will the ed and a provision will be made in the schedule to take care of that situation. It’s quite a complex matter. chairman of the Committee on Legislative Powers and Func tions explain to the Committee of the Whole as to how this LEE: I believe - - I am not sure, has there been a second election will operate in the event this Constitution is rati to your motion, Delegate Heen? fied by the people and appr’oved by the President and the CHAIRMAN: It has been moved and seconded that Section Congress of the United States, and in the meantime, the 6 be adopted, Delegate Lee. Congress will take a recess, say till November of this year, rathel than adjourning, and the Enabling Act is passed by LEE: I was just going to second the motion. 144 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: Are you ready for the question? All in LEE: Mr. Chairman, may I interrupt for a moment. Per favor signify by saying “aye.” Contrary. It’s carried. haps I might suggest to the chairman of the committee, as was done in the judiciary article, that the words “of profit” HEEN: I now move the adoption of Section 7. be inserted after the word “employment.” I believe Delegate CHAIRMAN: Is there a second? Wirtz has a very good point, even though your majority re port covers it as to what it means generally, but it would WIRTZ: I second that motion. seem to me the words “of profit” would take care of the CHAIRMAN: It has been moved and seconded that Section problem raised by Delegate Wirtz, 7 be adopted, any discussion? If not, all in favor signify by HEEN: That’s in Section 10, with reference to positions saying” aye.” Contrary. It’s carried. of profit, but this is a disqualification on the part of a per HEEN: I now move the adoption of Section 8. son who seeks election or seeks appointment to the legisla ture so that —may I continue —so that if anyone holding BRYAN: I second that motion. public office or position of any kind desires to run for elec CHAIRMAN: It’s moved and seconded that Section 8 be tion to the legislature, he must resign from that office or adopted. Any discussion? All those in favor - - position. WIRTZ: I think that answers my question. I was con WIRTZ: I didn’t notice this till now, but isn’t there a cerned about whether a person on an advisory committee, little confusion there? “No person while holding any public who wanted to run for office, had to first resign and I think office, position or employment.” Is it perfectly clear that that’s been answered. that refers entirely to public state offices, state and county offices and employment? SHIMAMURA: The chairman of the Committee on Legis lative Powers and Functions mentioned territorial and city CHAIRMAN: What was your question? The Chair didn’t and county officers and employees. I take it that Section 8 hear you, Delegate Wirtz? will certainly disqualify federal offiàers and also federal WIRTZ: My question is whether there might be some employees. confusion when you get down to the question of employment? HEEN: That’s correct. CHAIRMAN: Delegate Heen, will you please answer that? CHAIRMAN: Are you ready for - - HEEN: This language was chosen deliberately to apply ASHFOBD: I would like to ask if the committee makes to all territorial officers, employees and all officers and any distinction between the words “position” or “employ employees of any political subdivision and if you will look ment” and “office.” Does “position” add anything at all to on page 11, of the committee report, you will find concise that? explanation for the form of that Section 8. if I may read it: CHAIRMAN: Delegate Heen. Section 8, which is derived from but somewhat broader than Section 17 of the Organic Act, disqualifies any per ASHFORD: In other words I want to know whether it’s son while holding any public office, position or employ style or substance? ment from being elected to or from taking or holding a HEEN: Perhaps those two words are synonymous, and seat in the legislature. the Style Committee can give it some study and delete one That is where there might be an appointment in case of a or the other. vacancy. The difference being that the proposed section applies APOLIONA: I would like to ask the chairman of this to persons holding public positions or employment as committee a question. well as public offices. It is not to be construed, however, CHAIRMAN: Proceed. to prevent a member of the legislature from being re elected or to prevent a member of either house from being APOLIONA: Delegate Heen, will you clarify the status elected to the other. of the police reserves in Honolulu Police Department in this section here? WIRTZ: Well, my - - perhaps I didn’t state my - - Mr. Chairman? HEEN: if they are holding an office of any kind or a posi tion of any kind that particular person would be disqualified CHAIRMAN: Delegate - - I’m sorry, Delegate Wirtz. from seeking election to the legislature. It may be that if WIRTZ: Maybe I didn’t state my question very clearly. there is any question about it, he can reSign. Is this intended to preclude any one who is holding a position CHAIRMAN: Delegate Heen, would this apply to the on a - - National Guard as well if they seek election to the legislature? CHAIRMAN: An advisory council or something like that? HEEN: if they are employees, if they are public employ WIRTZ: Advisory council, juvenile council. ees, it would bar. A. TRASK: The chairman has explained to Judge Wirtz’ CHAIRMAN: The Chair had that in mind too, Delegate inquiry that “eligible to election to” would prevent a person Heen. Could a member of the legislature sit on an advisory being eligible to be a candidate for office if he holds a posi council created under the act of the State? tion. Now, if that is the meaning of that Section 8, is it HEEN: Oh, I think if the Constitution itself provides that necessary to have the additional words “or to a seat in”? there may be a legislative council and that the members Because if the person is ineligible to become a candidate can sit on that council - - for office, obviously he cannot have a - - be entitled to a seat to that position. CHAIRMAN: No, that wasn’t the question. Suppose the Welfare Department has an advisory council, could a mem HEEN: You will note that the language states “shall not ber of the legislature sit on such a council, such a board? be eligible to election to.” That’s one problem. The other JULY 1, 1950 • Morning Session 145 one is where a vacancy occurs and a successor is appointed, HEEN: That’s in Section 10, that problem. might be appointed by the governor. CHAIRMAN: This relates to eligibility for election, Dele TAVARES: I personally believe that this provision is too gate Trask. tight, and for the purpose of enabling me to speak in order, A. TRASK: We ought to consider deleting that entire I move an amendment by inserting alter the word - - between Section 8. the words, “any” and “public,” in the second line, the word HEEN: I might state that if you are going to confine “salaried.” this to persons who have salaries then there are a lot of DOI: Second the motion. persons who are members of commissions who do not get salaries, and they should not be appointed - - I mean be TAVARES: Now in support of that motion - - eligible for election to the legislature while they hold those CHAIRMAN: Just a minute, wait until we get the amend- offices. There are numerous commissions where the mem ment. bers of those commissions receive no compensation what ever. TAVARES: Insert between the words “any” and “public” in the second line, the word “salaried.” Mr. Chairman, my CHAIRMAN: You’re thinking of the Public Utility Com reason for this —that may not be the right word —but my mission, and the Harbor Board. reason for suggesting any amendment is this. At the present HEEN: No, I think Public Utilities, they do get some time a legislator can’t even hold the office of notary public. compensation, but the commissions, the Board of Osteo Such a provision is too tight. He may have a per diem job pathy, OptoMetry, Board of Agriculture, I think they receive that occupies him two or three days a year and he’s got to no salaries. There are lots of others. Board of Cosmeticians, resign that in order to run for legislative office. I don’t be they receive no salary, Naturopathy and so on down the line. lieve that a legislator needs to be insulated that much against competition by public officers and employees. It seems to CHAIRMAN: Delegate King. me a little bit - - sort of trying to protect the position of KING: Delegate Loper was trying to get attention a those who are in the legislature from competition. Now, I moment ago. am in favor of not having salaried officers and employees run, and if it’s improper to have others run the Civil Service CHAIRMAN: Delegate Loper, I’m sorry. laws can take care of that. It’s a legislative matter, Mr. LOPER: I wanted to ask a question of the chairman of Chairman, alter you get past the stage of salaried officers the committee. Whether It was the intention, I assume it or employees, and it seems to me that not even allowing a is, that people who are members of the school board, or legislator to be a National Guardsman—of course he’s an Commissioners of Public Instruction would not be permitted employee if he’s a National Guardsman—not even allowing to run for the legislature? him to be a police reserve, not even allowing him to be a notary public, perhaps not even allowing him to be a master. • HEEN: That’s correct, in this language, or the members of the Board of Regents. The members of the Board of Edu CHAIRMAN: A what! cation would not be eligible to seek election to the legislature TAVARES: A master. or to be appointed to the legislature to fill a vacancy. They can do this in order to make themselves eligible both to CHAIRMAN: Oh. election and appointment, by resigning their office. There TAVARES: Those are public officers. is no complication there, they can resign. LOPER: Was it the intention of the committee also to CROSSLEY: I would also like to speak to the point that then exclude members of the newly created Territorial Delegate Tavares has raised, and I hope I’m not misunder Commission on Children and Youth from running for the stood. I think that the point Delegate Tavares raised was territorial legislature? raised also in the committee. There was considerable dis cussion. At the time I had thought we were going to insert HEEN: That’s correct, it’ll take care of them too. If the words “of profit” in there, which has been suggested by they want to run, let them resign. two other delegates today, the same provision that we have LOPER: Mr. Chairman, a third question. Is it the in the judiciary. I would like to ask the last speaker if alter intention to exclude people on retirement that are drawing “employment,” the insertion of the words “of profit” in the a pension from the Territory or from the State? third line would do the same thing as “salaried” alter “any,” or perhaps “salaried” would take care of profit and wouldn’t HEEN: When they are in retirement they no longer hold make an exception of notary publics whereas maybe “salaried” any position or office. They are in retirement. would. 11 that is the intent, why then all right. Otherwise, I TAVARES: I believe still that there are some pertinent think “of profit” is a more inclusive term and would meet the arguments made by the chairman which should be considered needs. and which are sound. I still think that a provision can be CHAIRMAN: Notary public does not get any salaries drawn to take care of that, narrowly enough drawn, to take from the state. care of the situation I have in mind where non-policy form ing officers who don’t get compensation can still run, or A. TRASK: Following the expressions of Delegate Tava or employees who don’t - - who are not - - certain types of res, which I agree, I think the public want to decide whether employees can still run. I therefore move to defer action a candidate is going to be elected, whether he holds a public on this section until alter other consideration. office or not. I think it’s a little too stringent. I think there ought to be a reverse English on this situation to put it in DELEGATES: Mr. Chairman. Mr. Chalrman. Mr. this fashion: “No member of the legislature shall hold any Chairman! office, position or employment of this State,” or “under CHAIRMAN: The Chair would appreciate it if three dele this State.” gates wouldn’t speak at the same time. The Chair is trying 146 LEGISLATIVE POWERS AND FUNCTIONS to recognize Delegate Crossley, for a second. You do sec tions, as compared to section 28 of the Organic Act, which ond it, do you? limits the immunity to “words uttered.” The proposed section is intended to cover written as well as oral state CROSSLEY: I second the motion. ments and any action taken in the exercise of legislative CHAIRMAN: It’s been moved and seconded that we take functions, in the broadest sense. The provision for ex thié up at a later time in the discussion of this article. emption from arrest is the same as contained in section 29 of the Organic Act, except that the ten-day limitation SILVA: I move we defer this until Wednesday, then. on going to and returning from sessions has been omitted. CHAIRMAN: That wasn’t the Chair’s understanding of Now, there’s always some question, at least in my mind, the motion. whether the term “words uttered” meant oral statements SILVA: I amend the motion to defer until Wednesday. A and someone may claim that that includes written statements, motion to defer at a certain time is always in order. but here the committee has definitely used the term “any statement that may be made” whether uttered or in writing. ASHFORD: I’ll second that motion. Then the committee went one step further to include in this CHAIRMAN: It has been moved and seconded that this privilege any action that might have been taken, so that the be deferred until Wednesday. You accept the amendment? action, for instance, of the legislature in passing Act 2 of the special session of 1949 relative to the water-front strike, CROSSLEY: I will accept the amendment. would be definitely creating an immunity on the part of the CHAIRMAN: All in favor - - Delegate Roberts. legislature from any $3,000,000 suit. ROBERTS: I have no objection to deferment, but I would KELLERMAN: May I propose an amendment to line 5 of like to raise one or two questions for the chairman of the Section 9? Delete the word “treason.” I think that came Legislative Committee. into the section from the Organic Act. We have deleted the section on treason from the Bill of Rights. Treason is, of CHAIRMAN: Delegate Roberts, if you have no obj ection, course, a felony. I see no reason for the duplication and can’t we put the question and you can do that at another time? mentioning the crime independently. So I would move the ROBERTS: Sorry. deletion of that word and the comma that follows it. CHAIRMAN: All in favor signify by saying “aye.” Con SMITH: I’ll second that. trary. Carried. CHAIRMAN: Any discussion? HOLROYDE: Did the movant of that motion accept the SHIMAMURA: May I ask a question regarding that? When amendment? we discussed the sections on the Bill of Rights and the other CHAIRMAN: Yes. pertinent section on treason, wasn’t that especially with reference to treason against the government of the State of HOLROYDE: The second did? Hawaii? CHAIRMAN: Yes. CHAIRMAN: That’s correct. And this statement is TAVARES: I didn’t do it through the loudspeaker, Mr. treason generally against the United States. Chairman. SHIMAMURA: Yes, I was wondering about that. CHAIRMAN: Deferred until Wednesday. ASHFORD: It seems to me that the point of Delegate Kellerman’s proposed amendment is that if we write in HEEN: Mr. Chairman. “treason” as well as “felony,” k raises the question as to Section 9. Privileges of members. No member of the what felony is, whether treason is or is not a felony. legislature shall be held to answer before any other tribunal for any statement made or action taken in the TAVARES: I agree with the last delegate and with the exercise of his legislative functions in either house; and proponent of the motion. I think that the word “treason” is members of the legislature shall, in all cases except utterly redundant. Treason is a felony; felony covers every treason, felony or breach of the peace, be privileged from thing; why put in an extra word there. It’s just a carry over arrest during their attendance at the sessions of their from ancient times, it’s absolutely unnecessary. respective houses, and in going to and returning from the HEEN: Speaking for myself, I have no objection to the same. striking out of the word “treason.” if you will turn to page 11 of the committee report, you will CHAIRMAN: Could the chairman of the committee en find there a concise explanation of that section. I move for lighten the chairman as to what section of the Federal Consti the adoption of that section. tution this is found in? HOLROYDE: I will second the motion. HEEN: I believe this is found in the Organic Act. WOOLAWAY: I would like to ask the chairman of the KAWAHARA: In the Federal Constitution, I believe in committee a question. I’m wondering if he’s just worrying Section 6. about the $3,000,000 suit which is now pending against him. HEEN: Section 29 in the Organic Act. CHAIRMAN: That’s out of order. CHAIRMAN: I might call the body’s attention to Section 6 HEEN: of Article I of the Federal Constitution, that Section 9 sets forth the privileges of members of the in all such Cases, except Treason, Felony and Breach legislature. The immunity from liability of members of of the Peace, be privileged from Arrest during their the legislature has been enlarged to include “any statement Attendance at the Session of their respective Houses, made or action taken” in the exercise of legislative func and in going to and returning from the same; and for JULY 1, 1950 • Morning Session 147 any Speech or Debate in either House, they shall not for any statement or speech made,” and delete the words “or be questioned in any other Place. action taken in the exercise of its legislative functions in Is this as broad as the immunity conferred under the Feder either house,” so that the words “or action taken” will be ai Constitution, Delegate Heen? deleted and words “or speech” be substituted, and the section will read: HEEN: I didn’t quite - - No member of the legislature shall be held to answer CHAIRMAN: Is your section as broad as the immunity before any other tribunal for any statement or speech conferred under the Federal Constitution? made in the exercise of his legislative functions in either house. HEEN: Broader. J. TRASK: I’ll second the motion. CHAIRMAN: It involves the deletion of the word “treason.” LARSEN: I would like to ask when is a speech not a SILVA: I would prefer to leave the word in there even statement? though it has probably the same meaning. Any person elected to the legislature and creates such an act, it shouldn’t be CHAIRMAN: You hear a lot of speeches here, Delegate pointed out to him if he does. if the act is treason he should Larsen, and sometimes they’re not much of a statement be pointed out as a traitor, and the word - - the statement when the - - “treason” should be left in there for that purpose. if he’s LARSEN: I accept that, but didn’t dare to say it. a legislator - - CHAIRMAN: The thing that Delegate Tavares was point TAVARES: I speak in opposition to the amendment. It seems to me the amendment is designed to again place the ing out, and Delegate Kellerman, was that treason is a felony. Now it is a kind of felony which has a statutory legislature in the position it finds itself with this $3,000,000 definition in the Federal Constitution and presumably that’s suit. In my opinion that is a trumped up suit and I think this lends aid and comfort to the people who trumped up that suit. why the framers of the Federal Constitution used both words I submit that this amendment should not be adopted, that in in the Federal Constitution. modern times the cleverness or whatever you want to call SILVA: Well, I realize that. I just want it so that people it of certain people has invented means of trying to harass can know that in their Constitution that that word can be legislators trying to perform their duties and I think they pointed out to them, that’s what he did right there. Never should be kept free, as free as possible from that kind of mind about the felony - - even though it’s a felony, but the external pressure in performing their duties. legislator did that, that’s the word and he’s a traitor. CHAIRMAN: The Chair is of the opinion that the present TAVARES: There is nothing to prevent the legislature, statute requires no change to prevent the immunity from the or either house of the legislature, if it removes one of its pending suits. As a matter of fact, the Chair is a special members for treason, which is a felony, from saying they’re deputy attorney general in that matter. I don’t think you have removing for that felony which is treason. It’s absolutely to change the law to defeat that, to raise that issue in the open to them. Putting treason in here is like saying “rice federal courts. and food.” “Food” includes “rice” so why mention “rice.” You’ve got a million other things you could mention also. TAVARES: I did not mean to imply that, but I think it’s all right to nail it down to the hilt here and to make it doubly LEE: Of course, Mr. Chairman, I agree with the last clear in this Constitution that we are not going to stand for speaker but I remember the committee voted once to include that kind of pressure. the word “commitment” [sici after the word “pardon,” period. KAWAHARA: Does this not mean that by inserting the CHAIRMAN: The Chair doesn’t feel it’s very material. word “action” that we are giving a constitutional - - you The question will be put. All in favor of the amendment might say a constitutional okay to the legislators to do any which is the deletion of the word “treason” signify by saying thing within the provisions of the second part of this section? “aFe.” Contrary. The ayes have it; the word is deleted. They may do anything except commit treason, felony and LARSEN: I read this “breach of the peace,” which ap breach of peace, and I think the word, that’s a dangerous parently comes from 1776 - - insertion in our Constitution,) to guarantee and say, “Okay, you may do this and may you do that.” HEEN: Mr. Chairman, will the speaker yield while we are on this point here. The comma after the word “treason” HEEN: Now, Mr. Chalrman, the delegate who has just should also be deleted. spoken is confused. The second part there is an immunity from arrest. The first part is immunity from being harassed CHAIRMAN: Style Committee will take care of that. No when the legislature performs their legislative functions. appeal. It must be in connection with the performance of legislative LARSEN: Not being a legislator, it seems to me in to functions. day’s day what is much more important in protecting the CROSSLEY: I now move the adoption of Section 9 as it community, and you see I am a little bit suspicious possibly has been amended. of legislators, we might put in drunk driving. CHAIRMAN: The Chair would like to hear the amendment CHAIRMAN: That would be unduly restrictive, Delegate again before the question is put. Larsen. LARSEN: But it is also unduly protective. KING: I don’t think that motion is in order. Delegate Kawahara did make a - - KAWAHARA: Keeping in conformity with the Federal Constitution, I would like to propose an amendment so that CHAIRMAN: I don’t think there’s been any second, Dele Section 9 would read, in the third line, “No member of the gate King. legislature shall be held to answer before any other tribunal J. TRASK: I second it, Mr. Chairman. 148 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: That’s correct, the Chair was wrong. HEEN: No, if you’re sitting in session, that’s one thing, that’s regular session. But if you are sitting in a committee, SILVA: I wish that Mr. Trask would withdraw his motion. you’re still exercising legislative functions. I think that if you do this, this would be in our Constitution, then our legislature would be here for years. They would CHAIRMAN: Then the immunity applies? be afraid to vote on any, any question. HEEN: Immunity applies. CHAIRMAN: I doubt that very much. LOPER: •What about a public hearing? SILVA: Well, I tell you I’d be afraid. I know what I CHAIRMAN: That was the Chair’s question, that’s in went through during that last special session. I’d be afraid committee and the immunity applies. to vote on any question if that’s taken out of the Constitution. SAKAKIHARA: For the purpose of clarification here some CHAIRMAN: For the convenipnce of the body, will Dele of my members here from Hawaii are unable to make a dis gate Kawahara repeat his motion so that the Clerk can get tinction between sessions, in the sessions of the committees it and the Chair also. maybe on Sunday nights and on evenings. While it is not a KAWAHARA: I move to amend Section 9, so that it will regular session of the respective house, although it was indi read as follows: cated here by the remarks of the chairman of the committee No member of the legislature shall be held to answer that the immunity applies because it is the function of the before any other tribunal for any statement or speech legislature. Is that correct, Senator Heen? made in the exercise of his legislative functions in either HEEN: I didn’t quite get the purport of the question. house. CHAIRMAN: The question was whether or not the legis CHAIRMAN: You’ll have to go a little bit slower - - lative immunity continues whether you are in actual session KAWAHARA: In other words - - or in committee. I believe you have already indicated that it does. CHAIRMAN: Indicate where the amendment comes. SAKAKIHARA: Well, that’s on Sundays, when the legis KAWAHARA: In the third line delete the words “or lative sessions are excepted by law. action taken,” and between the words “statement” and “made” insert a comma and insert the words “or speech” so that the CHAIRMAN: That’s correct, Sunday dopsn’t make any third line would read, “any statement, or speech made in the difference. exercise of his legislative functions in either house.” ASHFORD: May the chairman of the committe be asked CHAIRMAN: You heard the motion. All in favor signify the question that you put to Delegate Shimamura. That is, by saying “aye.” Contrary. The motion is lost. whether it would not really strengthen the section by cutting The question - - the Chair will now put the question on out “in either house.” the section - - CHAIRMAN: That is the chairman’s view. What does the SHIMAMURA: Before the Chair puts the question, may chairman of the Legislative Committee feel about that? I ask a question of the learned chairman of the Committee HEEN: Without further study, it would seem to me to on Legislative Powers and Functions, please. On line 4 eliminate some question that is involved there when the two there, “legislative function in either house,” may I ask if houses sit in joint session. By eliminating that, you elimi the statement is to be restricted strictly to statements made nate that quick. or action taken while the legislature - - while the house is in session, and whether the statement or action taken is res CHAIRMAN: You eliminate the limitation. If you leave tricted to a statement made or an action taken strictly in in the words “in either house” you’ve got a limitation on that house? What happens if the legislature is in joint ses your immunity, and I suggest the possibility of deleting those sion, that is, both houses are in joint session? And another words. question pertinent to that, what happens if a member makes SHIMAMURA: I would like to be excused for interrupting a statement in the committee or a legislative council aside a moment here. As far as that goes if you put in the word from the sitting of the house? “of” instead of the word “in” perhaps that will solve that CHAIRMAN: Delegate Shimamura, would your difficulty particular situation. “Legislative functions of either house” be met if the words “in either house” were deleted? and you’d necessarily heed not be sitting in session in one house, if you make it “of either house,” as far as joint ses SHIMAMUR.A: I did not so moves I am just raising a sion goes. I wonder what the other delegates - - question. HEEN: Mr. Chairman, in regards to that you will note CHAIRMAN: Will you answer that, Delegate Heen. that the language is “legislative functions.” Whether it’s HEEN: Of course, “in the exercise of his legislative one house or the other makes no difference as long as the functions” would cover a situation where a statement is functions are legislative. made in committee because he is exercising his legislative SAKAKIHARA: In studying Section 9 and comparing with function when he sits in a committee and the committee is the Organic Act, the committee has merged Section 28 and operating under the authority of the house. The other ques Section 29 of the Organic Act and simplified it into one sec tion there about “either house” poses a problem because tion, Section ~, in the proposal. There are some phases of they do sit in joint session from time to time and that would this section which require further study and I therefore not be perhaps - - move that we defer action on Section 9 until Wednesday. CHAIRMAN: Delegate Heen, may the Chair ask you a KAWAHARA: I second the motion. question? Will you state whether or not the immunity will apply whether you are sitting in committee or sitting in CHAIRMAN: It’s been moved and seconded that action on session? It’s the same thing, as the Chair understands it. thin section be deferred until Wednesday. All in favor signi JULY 1, 1950 • Morning Session 149 fy by saying “aye.” Contrary. The Chair will put the ques CHAIRMAN: State your point, Delegate Dowson. tion again. The Chair is in doubt. All in favor of deferring action on this section until Wednesday signify by saying DOWSON: There is no motion for the adoption of Section 11. “aye.” Contrary. May we have a show of hands? All in favor. Against. Deferred, motion carried. CHAIRMAN: You’re correct. SERIZAWA: For the sake of the clerks, I move for a DOWSON: I move for the adoption of Section 11. short recess. CHAIRMAN: Is there a second? CHAIRMAN: A short recess will be declared. WOOLAWAY: I second that. (RECESS) CHAIRMAN: It has been moved and seconded that Section 11 be adopted. Delegate Ashford is recognized. CHAIRMAN: Committee will come to order and will the delegates please take their seats? Will the Sergeant—at- ASHFORD: I now move the adoption of the amendment Arms ask the delegates to take their seats, please. Will the which has been distributed to the various delegates. Ap delegates please take their seats? The last action of the parently there is no second. committee was on Section 9 which was deferred until Wed AKAU: I second it. nesday. We are now on Section 10. CHAIRMAN: It has been moved and seconded that Sec APOLIONA: Since Section 10 is quite similar to Section tion 11 be amended to include the language: “No law direct 8, which we have deferred until a later date, I move that we ly or indirectly increasing the compensation or emoluments defer Section 10. of the members shall be effective for a period of two years CHAIRMAN: Will the delegate please just hold that until subsequent to its enactment.” we get an expression from the chairman of the committee, and then the Chair will recognize you, Delegate Apoliona. ASH FORD: I think, perhaps, the words “compensation or” are surplussage. I think “emoluments” will cover it all Delegate Heen is recognized. but I used the two to be sure. Now the purpose of this is HEEN: Section 10 relates to disqualification of members perfectly clear. In the executive and in the judiciary of the legislature from holding “any other public office, branches we have had some provisions as to increasing position or employment of profit” during the term for which and decreasing. I think, myself, that the salary fixed by that member of the legislature is elected or appointed, “be the legislators is too low - - by this section. I think the elected or appointed to any public office, position or employ salaries should be sufficient so that members from the ment of profit which shall have been created, or the emolu other islands should have ample to maintain them ments whereof shall have been increased, by legislative act here and to have perfect independence of action. But I do during such term.” It may be that the other members who not think that any legislature should vote to itself increases are now absent from this committee might want to be heard in the emoluments preserved by the Constitution. If it be on that as well as on Section 8. comes necessary under this amendment, they could vote in- creases which would take effect two years afterwards. That CHAIRMAN: May the Chair ask you a question? Is this is, give the voters a chance to say whether they approve. not an almost verbatim statement from Section 6 of the Federal Constitution? LARSEN: May I ask a question of the chairman? HEEN: We did not pattern this particulariy on the Feder CHAIRMAN: I’d like to ask the delegate if he will hold al Constitution, but this was patterned alter Section 16 of the that for a moment. Delegate Ashford, would your amend Organic Act. ment be applicable then in substance only to the House of Representatives and not the senators? They have different CHAIRMAN: It doesn’t appear to the Chair that there’s terms. anything controversial about this. However, the Chair will entertain any motion. ASHFORD: No, you see I didn’t use the word “terms.” SAKAKIHARA: In view of the fact that this committee “Shall be effective for a period of two years subsequent to its deferred action on Section 8, I move that action on Section 10 enactment.” I think four years is too substantial a time, but be deferred until Wednesday. you see you have an election in two years and if the voters express disapproval of that, the holdover senators would CHAIRMAN: That motion was made by Delegate Apoliona act in accordance with the mandate of the voters without and I assume you second it. any question. SAKAKIHARA: I second the motion. CHAIRMAN: Your theory is that the law will then be repealed? CHAIRMAN: It has been moved and seconded that action on Section 10 be deferred until Wednesday. All in favor ASHFORD: Yes. signify by saying “aye.” Contrary. Call for a show of hands. CHAIRMAN: After the subsequent election? All in favor of deferment. Contrary. The motion is carried. ASHFORD: Yes. HEEN: With reference to Section 11, now that relates to salaries of members. It’s proposed by this section that the CHAIRMAN: Delegate Larsen is recognized. salaries of the members of the legislature shall be fixed by LARSEN: I wanted to ask the chairman and call attention the Constitution instead of leaving it to the legislature itself. to delegates that it seems to me the one thing we have been ASHFORD: I have an amendment. wrought up about is not putting any figures in the Constitu tion. Five years from now, $1500 might not be worth $100 CHAIRMAN: Your amendment has been printed and - - today. Now then the one case I remember off hand is the DOWSON: Point of order, Mr. Chairman. Pennsylvania legislature which wrote in they shall spend 150 LEGISLATIVE POWERS AND FUNCTIONS $1,000,000 on education. That’s still in the Constitution, first place I’d like to look up a little further what the word and yet last year they spent $90,000,000 on their system “emoluments” means because I’m a little afraid that that of education. It seems to me. that one thing we shouldn’t do term is too broad. Now when you say “compensation or is tie ourselves down with a sum that we know might be emoluments,” after mentioning salary, you imply then that hopelessly out of date in a year or two. compensation and emolument are something in addition to the salary. Now what is an emolument? Does it mean that CHAIRMAN: We hope not, Delegate Larsen. you can’t give free lunches to the legislators if they’re held GILLILAND: I believe this proposed amendment by the in a night session, and can’t order lunch and pay for the delegate from Molokai is out of order. You have in Section lunches? There are lots of other things that might be called 11, “The salary of members of the legislature shall be as emoluments and I think it goes too far, and if there is any idea follows: the sum of $1500 for each general session, the of the members of passing this, that we ought to just get a sum of $1000 for a budget session and $750 for each special little further definition of the word “emolument” before we session.” Now under the Constitution we can - - vote on it. CHAIRMAN: The Chair agrees with you, Delegate Gilli CHAIRMAN: The Chair rules that the amendment is out land, this is a constitutional provision for the fixing of the of order. As the Chair construes the section - - salary and therefore there has to be some further amend ment than the one offered. The Chair would like to ask Dele ASHFORD: I appeal from the ruling of the Chair. gate Ashford if that is not correct? LOPER: Since we have deferred action on Sections 8, 9 ASHFORD: Mr. Chairman, if you change the one word and 10, I don’t know why we shouldn’t defer action on this. “salary” of members in Section ii to “emoluments” you I so move. have it covered and the subtitles are not a part anyway. LARSEN: I second the motion. ROBERTS: I was going to point out that no change in SILVA: What’s that, deferred? Now, Mr. Chairman, I salary can be made if Section ii is adopted other than what was going to ask to be excused from voting, having a we write into it except by a constitutional amendment. pecuniary interest in this thing. CHAIRMAN: That’s correct, that’s what the - - CHAIRMAN: The Chair refuses to excuse you, Delegate ROBERTS: That can’t take effect for at least two years. Silva. CHAIRMAN: That’s the Chair’s view. CROSSLEY: While there is a motion to defer, there has been an appeal on the ruling of the Chair which must be HEEN: I was going to point that out. decided. ASHFORD: If the chairman of the committee and the CHAIRMAN: Well, perhaps Delegate Asbford will with various other members would read the report you will draw her appeal. notice they use “salary” and not “emoluments.” CROSSLEY: If you’ll withdraw your ruling, I think - - CHAIRMAN: That is not the point, Delegate Ashford. The point is Section 11, by constitutional provision, stipulates ASHFORD: Yes, if you’ll withdraw your ruling, I will be that the salary shall be $1500 and there could be no law, di very glad to withdraw my appeal. That’s clearly within the - - rectly or indirectly, increasing the figure over $1500 with CHAIRMAN: The Chair will withdraw its ruling but gives out a constitutional amendment. notice that the ruling, if the amendment comes in the same ASHFORD: That’s quite true, but if you’ll notice in the form upon a deferment, that the ruling will be just the same. report they narrowed the term to salaries, so it wouldn’t The Chair will now put the question on deferment. include other emoluments, the $15 a day provision, for ex ample. And this amendment is aimed at just such legis ASHFORD: The appeal will be just the same. lative provisions. CHAIRMAN: The question is on the deferment. SHIMAMURA: May I ask the chairman of the Committee, WIRTZ: Point of order. I’d. like to point out that the the Organic Act, as every one knows provides for per diem motion - - the amendment is in, it has been duly seconded and for mileage fees. There is no provision here for either and if we defer there’s no question about the amendment mileage or per diem. coming in again. It’s in. We have to vote. HEEN: That’s correct; that’s why the term “salary” CHAIRMAN: That’s right. was used, so that the legislature can take care of mileage and other expenses. As you know we have a statute now DOWSON: Point of information, Mr. Chairman. I would which provides for an allowance of $15 a day for members like to know whether we are voting to defer action on the of the legislature who live in the outlying islands and $5 a amendment or - - day for those members who come from Oahu, for incidental CHAIRMAN: The question before the body is, shall we expenses. defer action on this Section 11 until Wednesday? All in APOLIONA: If rm wrong I stand corrected, but I think favor signify by saying “aye.” Contrary. The ayes have it. the entire substance of this debate is a little out of order. HEEN: Perhaps it would be in order then to defer action We haven’t decided whether we’re going to have a general on Section 12, which is somewhat tied up with the provision session or a budget session and we are deciding, fixing the as to salaries. I move to defer action on Section 12. salaries of the different legislators for two sessions. I think we should go to 12 first, then come back to 11 after APOLIONA: I second the motion. wards. CHAIRMAN: It has been moved and seconded that we TAVARES: I am in sympathy with the idea of this amend defer action on Section 12 until Wednesday. All in favor ment but I wonder if it is - - if it doesn’t go too far. In the signify by saying “aye.” Contrary. Carried. JULY 1, 1950 • Second Morning Session 151 SAKAKIHARA: I now move that we rise and report pro SILVA: Point of order is well taken. You ruled that it gress and ask to sit again. has been carried as far as that section is concerned. BRYAN: I’d like to second that motion. I note that we J. TRASK: Mr. Chairman, a point of order. have 39 delegates on the floor, counting the chairman. CHAIRMAN: The Chair has ruled that Delegate Tavares CHAIRMAN: It has been moved and seconded that we has the floor. Will the remainder of the delegates take their rise and report progress. Did the President hear the motion? seats and we’ll hear from Delegate Tavares what he wants There’s been a motion that we rise and report progress. All to raise at this time. those in favor signify by saying “aye.” Contrary. Motion is TAVARES: A point of information, I ask unanimous con carried. sent so I can ask a question. CHAIRMAN: You don’t need any unanimous consent. Ask Second Morning Session your question, Delegate Tavares. TAVARES: The question is, is there anything else in this CHAIRMAN: The committee will come to order. article which might provide for punishment in case either GILLILAND: I think we ought to get together here and house did adjourn sine die without consent of the other? agree that if this matter we adopt today comes up again on DELEGATE: Point of order. Monday or any other day, that we stand by what we vote HEEN: No, there’s nothing here to take care of this for today and not impose any motion to reconsider our action situation. This Section 13 was taken from the Organic Act taken today. verbatim. SAKAKIHARA: I thought when we resolved into the Com SILVA: I appeal to the Chair the point of order, that mittee of the Whole, it was the ruling of the Chair that in section has carried. If you want - - order to be fair to the absent members here, that all of these things would be tentative and brought up again on Wednesday. CHAIRMAN: The Chair agrees with you. Am I correct? WOOLAWAY: I move that we reconsider Section 13. CHAIRMAN: I didn’t understand your statement, Delegate APOLIONA: Second that motion. Sakakihara. CHAIRMAN: It has been moved and seconded that we SAKAKIHARA: When this committee resolved itself into reconsider the action on Section 13. All in favor signify by the Committee of the Whole in the earlier part of this saying “aye.” Contrary. Carried. morning it was the ruling of the Chair, upon the query of some members of this committee, that the action would be TAVARES: I’m sorry that the situation has arisen. I just tentative here, that upon the return of the absent mem merely wanted to state I was hoping that someone would bers that these matters acted upon today will be reconsidered offer an amendment later that would, somewhere in the by the absent members. Is that correct? section, that would provide for some kind of teeth in this section because I know personally of an instance where for CHAIRMAN: That’s not the ruling of the Chair, Delegate 30 days one house adjourned without the consent of the Sakakthara. other and there was nothing the other house could do about it. I was wondering if the chairman had considered that WIRTZ: My understanding of that understanding was that matter in committee. if one of the absent delegates made a motion to reconsider, it would be considered, and favorably, in view of the absence, HEEN: The committee did not consider that matter at all. but in the absence of any such request on the part of any CHAIRMAN: Delegate Tavares, are you familiar with absent delegates I understood that what we’re doing today the fact that that is the identical provision contained in the would be binding. Federal Constitution? WOOLAWAY: I move for the adoption of Section 13. TAVARES: Yes, Mr. Chairman, and I’m also aware of the fact of the futility of it in actual experience in this SMITH: I’ll second that. territory recently, under the Organic Act. CHAIRMAN: It has been moved and seconded that Section ASHFORD: I call the attention of the delegates to the 13 be adopted. All those in favor signify by saying “aye.” fact that that adjournment was after the 30 day session. Contrary. It’s adopted. PORTE US: May I bring to the attention of the body what KING: Point of information. What section was that that one of the delegates, I think, had reference to. One time was just adopted? there was a difference of opinion between the Senate and the CHAIRMAN: Thirteen, relating to adjournment. House. So, because in those days there was no per diem, they got to a point where the Senate would not consent to SILVA: Aren’t we going to ask for discussion? going over more than three days. The Speaker of the House, as I understand it, excused the outside island members and TAVARES: I’m sorry I didn’t notice that, I wanted to the outside island members went home, and every day they ask the chairman a question. May I still do that about that rapped the gavel and said the House will come to order. It section? was announced that less than a quorum was present, and J. TRASK: Mr. Chairman? under the rules, being less than a quorum present, that minority was able to adjourn and they adjourned until the CHAIRMAN: Proceed. Delegate Tavares has the floor. following day, and they kept that up until they thought they J. TRASK: Point of order. had reached the point where they could come to an agreement with the Senate and then they came back. That was the situa CHAIRMAN: Delegate Tavares has the floor. tion that I think the delegate from the fourth district had 152 LEGISLATIVE POWERS AND FUNCTIONS reference to when he was saying, of what real effect will CROSSLEY: Second the motion. this be if one house is determined to circumvent the language. CHAIRMAN: It’s been moved and seconded that Section SAKAKIHARA: Following up the statement of the previous 16 be adopted. Is there any discussion? speaker, I believe it’s a matter of common knowledge in this territory that during the session of 1941 while the House was TAVARES: As I recall from the report, I’d like to be still in session, the Senate, on its own action adjourned the corrected if I am mistaken, the use of the word “bill” here is intended to eliminate the use of joint resolutions which Senate without the consent of the House. have been used a lot in the Territory heretofore, under the CHAIRMAN: The question before the body is action on Organic Act provision. Is that correct? Section 13. Are you ready for the question? All those in HEEN: That’s correct. favor signify by saying “aye.” Contrary. Carried. CHAIRMAN: Page 15 of the report so states, Delegate WOOLAWAY: I now move for the adoption of Section 14. Tavares. CHAIRMAN: Is there a second? TAVARES: I was wondering if the chairman would an HAYES: I second that motion. swer this other further question and that is, was any study made as to whether there was any other use or efficacy for CHAIRMAN: It has been moved and seconded that Section a joint resolution, before we exclude it entirely? As I re 14 be adopted. call, I’m sure the Federal Constitution doesn’t read the TAVARES: I have a question I would like to ask the same, but Congress has made use of joint resolutions in a chairman if I may, about this section. As I recall it, in manner which was different from acts or bills, and I won the article on suffrage and elections there is a provision dered if that matter has been explored. concerning contested elections being determined by the HEEN: It wasn’t explored. courts, and I am wondering if there isn’t a possibility here of an area which conflicts. That is, there is a contested PORTE US: It has not always been followed in the legis election and the courts decide that a certain person was lature, but on the whole a joint resolution was used for some elected and somebody else claims that he wasn’t, then the thing that was once executed within a - - could be executed house is going to be able to determine that all over again. within a short period of time, relatively that is. Some might I’m wondering, if that is the case, if we shouldn’t later on run for three or four years and at that time then drop out either eliminate this or later on amend the suffrage and of sight. There was no use keeping a law on the statute books elections section to exclude legislators. after a certain period, and I think that the legislature could use the device of the joint resolution. Once it has accom CHAIRMAN: The Chair is inclined to agree with you that plished its purpose, it is then dropped out of sight and we that should be taken up when the suffrage and election pro don’t have to carry it forward in the Revised Laws and other posal comes up. laws. It is distinguished from statutory laws of broad appli TAVARES: May we have the chairman’s reaction on that, cation that needed to remain on the books from now on out. chairman of the other committee? CHAIRMAN: Delegate Porteus, your attention is directed HEEN: I think that that matter should be reconsidered to this sentence in the report. “This provision would elimi on that article on suffrage and elections. I appreciate the nate the practice of legislating by joint resolutions.” Page 15. difficulties that might arise because of that particular pro vision in the article on suffrage and elections. I don’t know PORTEUS: Mr. Chairman, would you explain to me what whether or not that question might be considered a little significance that pointing - - what that would mean? more thoroughly and if so, deferment of action on Section 14 CHAIRMAN: I’m just directing your attention to the might be in order. explanation of the committee. Perhaps Delegate Heen could BRYAN: This question came up in committee and if I explain that. recall the conversation correctly, it was decided to leave PORTEUS. Well, perhaps, Mr. Chairman, you didn’t the statement of the judge of election and returns and so listen to what I was saying. I was talking about the utili forth in here because it might be a case where the returns zation of the joint resolution so that you would not put on were not correct but there was no contest. Where the other the statute books a regular law, pointing out that the joint section calls for a determination in contested elections, if resolution did have value and pointing out that the legislature there’s no contest, then this would cover. didn’t always use the joint resolution as it might be used, but WIRTZ: There is a possibility of conflict in this particu that it was a useful device where you wanted to have some lar section and I move that that be deferred until Wednesday thing executed within the next year or two and then drop out so that we can go into the language more thoroughly. of sight. That’s what a joint resolution should probably be used for, and in that I am disagreeing with what the commit CROSSLEY: I second that motion. tee said. The committee report says it eliminates joint CHAIRMAN: It has been moved and seconded) that it be resolutions. I’m pointing out there’s an advantage perhaps deferred until Wednesday. All those in favor signify by in retaining it. saying “aye.” Contrary. Deferred. HEEN: Well, Mr. Chairman, I might call attention to the WOOLAWAY: I now move for the adoption of Section 15. fact that all general appropriations bills run only for two years, and they go out of the picture at the end of two years. CROSSLEY: Second the motion. They don’t get into the Revised Laws at all. The appropria CHAIRMAN: It’s been moved and seconded that Section tions are enacted by bills and not by joint resolutions. 15 relating to a quorum be adopted. Is there any discussion? TAVARES: One more question if I may, one other ques All in favor signify by saying “aye.” Contrary. Carried. tion. That is, is this article a quotation or copied after any WOOLAWAY: I now move for the adoption of Section 16. other state constitution? Is the exact wording exact? JULY 1, 1950 • Second Morning Session 153 BEEN: It came out of the Model Constitution that - - Department that the legislature was authorized to appropriate funds by means of joint resolution. TAVARES: Which? BEEN: After all it’s just a matter of style, whether you BEEN: The first sentence, “No laws shall be passed are going to term one legislative act a joint resolution and except by bill.” another one a bill. They’re all bills; they become law any TAVARES: That answers my question. On the other way. You can call them all joint resolutions, and if you go side, I should like to point out that although we have used through the procedure of three readings and the approval joint resolutions in this territory, we have always held of the governor, they become legislative acts. that they had to be passed three times, the same way as a SAKAKIHARA: I don’t, therefore, see why we should set bill, and that they have to have a title, the same way as a off enactment by joint resolution and confine it simply to a bill, so that I guess in general effect, they were probably bill. the same except we used joint resolutions more for tempo rary purposes, as a rule. CHAIRMAN: Will the chairman of the committee give us the language under which legislation is now being enacted BEEN: I might state k’s been used usually for the pur under the Organic Act? What is the language? pose of requesting Congress to enact certain legislation BEEN: There is no language with reference to joint by way of amending the Organic Act. That’s always been resolutions. done by joint resolution. As I recall it, there is no language in the Organic Act about any joint resolution at all, but CHAIRMAN: Doesn’t that answer your question, Delegate joint resolutions have been enacted to become law and it Sakakihara? In other words you can still pass them, I has to have the enacting clause, “Be it enacted by the leg suppose. islature,” and also it required three readings, the same as SAKAKIHARA: But under Section 16, as proposed by the a bill. committee proposal, they were outlawed, they were prohibit PORTEUS: I think the senator and delegate is quite ing legislation by joint resolution. correct, and one of the reasons that a joint resolution was SHIMAMURA: Although the Organic Act is silent as to used in respect to Congress or any other body was that, resolutions - - joint resolutions, it also does not have any not only did if have a deliberative process accorded a bill mandatory provisions that the enactment shall be by bill. for three separate readings and on three separate days in Therefore, under the present system, under the Organic one house and the same procedure in the other, but it also Act, a law might well be passed by resolution or joint reso required the consent of the governor, and consequently it lution. seemed to carry very much more weight than a joint reso lution - - I mean a resolution of both houses, or a House CROSSLEY: It appears to be controversial, I move we resolution or a Senate resolution alone. It also let the ex defer it. ecutive authority have a say so in the matter and it had, I thought, been a useful device and possibly one we would want SAKAKIHARA: Second. to preserve. As I understand the commktee report you CHAIRMAN: All in favor signify by saying “aye.” Con would eliminate the useof a joint resolution. trary. Carried. Till Wednesday, the understanding is the deferment is until Wednesday. CHAIRMAN: Commktee report says “legislating” by that device. I don’t know whether that’s any different or not. Is CROSSLEY: Yes. I move the adoption of Section 17, it, Delegate Porteus? passage of bills. BEEN: Those joint resolutions directed to Congress WOOLAWAY: I’ll second that motion. which required the approval of the governor required three TAVARES: I hate to appear an obstructionist. I really readings. It can very well be passed by a bill. Call it a am not trying to obstruct, but it is my recollection, my bill. understanding, that Congress is not bound by any three-day PORTEUS: I suppose that procedure could be followed. requirement and that many states are not bound, that under As a matter of fact we’ve also used the joint resolution to certain types of emergencies they can act without acting deal with other matters of a temporary nature. If I’m not on separate days, and I wonder if the chairman would give mistaken, Keehi Lagoon, the authorization of the proceedings us how many states require absolutely this three-day pro in respect to the acquisition of that property came through vision. in part at least on a joint resolution. CHAIRMAN: Delegate Been. BEEN: I might state, Mr. Chairman, that all these joint BEEN: The commktee didn’t go into that phase of the resolutions which have been passed after three readings problem, simply adopted what appears now in the Organic and approved by the governor have been written into the Act. session laws, and when they become functus, of course, they don’t get into the Revised Laws. So I see no problem there, TAVARES: Well, I’m just wondering if we are going to Mr. Chairman. Instead of calling them joint resolutions, become a state, whether there may not be some cases where call them bills. it will be to the urgent benefit of the state to act in less than five days or in less than three days. As I understand it, CHAIRMAN: Ready for the question? even under this provision, by passing a bill in both houses SAKAKIHARA: I beg to differ with the chairman of the simultaneously and then switching one for the other in one committee that no appropriation has been made by joint of the houses you can still pass legislation in three days; resolution. When we made an enactment, a certain act by but I have some feeling that as a state, which is a rather joint resolution, such as the Statehood Commission to go permanent status, there might be a situation where we might to Washington, the joint resolution also appropriated funds want to pass if sooner. As I recall it some states do have for the commission and it was held by the Attorney General’s a provision that under certain emergency conditions and by 154 LEGISLATIVE POWERS AND FUNCTIONS certain large majorities, bills can be passed more than once adopted the language “who have been convicted,” “found to on the same day. have been guilty.” I’d like to move that as an amendment, Mr. Chairman. CHAIRMAN: Did you have an amendment, Delegate Tavares? SAKAKIHARA: Only guilty persons are convicted of contempt, you don’t convict innocent persons. HEEN: It would seem to me that if you have a very im portant measure, that measure should at least require three CHAIRMAN: I didn’t get the question. Is there a second days’ deliberation and not less. to this? TAVARES: I am in sympathy with that for general legis DELEGATE: I second the motion. lation, but I can imagine a case where, if we were at war and CHAIRMAN: It has been moved and seconded. wanted to mobilize quickly, that there would be a little ad vantage in being able to pass a bill in one day to raise a SAKAKIHARA: I rise to a point, Mr. Chairman. I beg to national guard or state guard or something a little higher. differ with the delegate from the fourth district. I see no harm in the language as used by the committee, only guilty CHAIRMAN: Are you ready for the question? persons are convicted. SAKAKIHARA: I believe this Section 1? deserves further HEEN: The use of the term “convicted” might imply study, according with the remarks of Delegate Tavares. I conviction by court and this is a summary action on the part have had some experience of ten sessions in the legislature. of the legislature itself. The legislature, a body of that kind, We have found some difficulty under the present system of has power to punish for contempt on the part of any person requiring bills to - - who might interfere with the functions of the legislature. CHAIRMAN: Your move is to defer it? ROBERTS: Do I understand that answer to mean that he SAKAKIHARA: Defer, yes. may not be guilty and therefore can still be kept out? CHAIRMAN: Is there a second? CHAIRMAN: The question is that your amendment would imply, as it does to the mind of the Chair, that conviction SAKAKIHARA: Till Wednesday. means conviction not before the body but means in a court. ST. SURE: I second the motion. Of course it doesn’t mean that. The legislature has got the power of punishment for contempt without regards to what CHAIRMAN: It has been moved and seconded that we the courts may do. defer action until Wednesday on this section. All in favor signify by saying “aye.” Contrary. I think the motion is HEEN: And as pointed out in the report, this will not lost. The Chair will call for a show of hands on the motion. prevent the legislature from enacting legislation for punish All in favor of deferring this section until Wednesday. ment of these persons in the criminal courts. That’s being Against. Motion is carried. Deferred until Wednesday. done now by the Congress where they have contempt of Congress or any committee of Congress. Then they have WOOLAWAY: I move for the adoption of Section 18. legislation whereby these persons who are - - may be pro CROSSLEY: Second the motion. ceeded against in the courts of law and punished there. FUKUSHIMA: I have a very long amendment on Section ROBERTS: I gather this is controversial. 18 concerning the pocket veto, and I believe after I had put CHAIRMAN: I don’t think so. it in it will be very controversial, so I move at this time that this section here and Section 19 be deferred until Wed TAVARES~ Frankly, I think that the fears of the delegate nesday. who made the motion are not well founded. Before each house can punish they’ll have to find the man guilty and I don’t CROSSLEY: Second the motion. think the word “conviction” adds anything to it. But I do CHAIRMAN: Section 18 and 19 both be deferred until feel this, that there may be a more substantial defect from Wednesday? my point of view in this. I don’t know why each house shouldn’t be able to put one of its own members in jail if his action is FUKUSHIMA: That is correct. contemptuous enough. Why should it be just an outside mem CHAIRMAN: Is that seconded? ber? Under another section just deferred, they can suspend or remove him, but maybe they don’t want to do either or it CROSSLEY: I seconded the motion. might be easier to slap him with a little fine and ifit gets CHAIRMAN: All in favor signify by saymg “aye.” Con bad enough it might be proper to punish him like you would trary. Carried. Sections 18 and 19 are deferred until Wed anybody else, as long as the house does it itself. nesday. CHAIRMAN: Maybe the Republicans can put all the Demo WOOLAWAY: I now move for the adoption of Section 20. crats in the clink then under your amendment. CROSSLEY: Second the motion. PORTE US: Did I understand the chairman of the’ commit tee to advocate that as a desirable piece of legislation in the ROBERTS: I have an amendment to Section 20. It may future? not be controversial. I would like to offer it. SHIMAMURA: Section 20 in my humble opinion is very CHAIRMAN: Has it been printed? broad. It’s a very substantial enlargement of the powers of ROBERTS: No, it has not. It’s a simple amendment I’d the legislature contained in our present Organic Act. In like to offer. In the fourth line, the words “who shall be the first place, it provides for summary punishment, and guilty of contempt,” I’d like to change that to “who have been although the learned gentleman from the fourth district said convicted of contempt.” We had previous discussion on the that certainly there’ll be a hearing, when you have summary floor on the question of “who shall be guilty” and I think we punishment it’s a question of whether or not you’ll have a JULY 5, 1950 • Afternoon Session 155 hearing in the first place. in the second place, it’s an en SAKAKIHARA: I second the motion. largement of the present section of the Organic Act, in that this provides for any sort of contempt, whereas in the Or CHAIRMAN: It has been moved and seconded that we rise and report no progress and beg leave to sit again. ganic Act as far as the section on contempt goes, or con temptuous behavior goes, it is direct contempt, technically WOOLAWAY: I move that we rise and report progress. known as direct contempt; for example, contempt before the We did do something. judge in court which is in session. This is very broad and is not limited to direct contempt in the presence of the CHAIRMAN: All in favor signify by saying “aye.” Con trary. Carried. court, but to any sort of contempt. ROBERTS: If the delegation would look at Section 20, JULY 5, 1950 • Afternoon Session Section 20 does not apply to the action of the legislature with regard to its own members. It deals with punishment CHAIRMAN: For the convenience of the delegates, the of persons who are not members of the legislature. It seems Chair will summarize the action thus far taken on this arti to me therefore, Mr. Chairman, that when you are giving cle. Article 1 has been adopted; Article 2 has been adopted - - the legislature the opportunity to find people guilty of con tempt without an opportunity to go to court to contest that, DELEGATE: Don’t you mean section? that seems to me to be highly improper. The language CHAIRMAN: Section 1 has been adopted; Section 2 has here is quite specific, it says that “any person who is not been adopted; Section 3 has been adopted. This is Commit a member of the legislature who shall be guilty of contempt” tee Proposal No. 29, Standing Committee Report No. 92 and of each house. Suppose that the house says “this guy is Standing Committee Report No. 99, and Committee Proposal guilty.” Does that mean he doesn’t have a right to go to No. 30. I’d like to summarize what action has been taken. court and contest that? He has to be proven guilty by the If the Chair is in error, a correction can be made. Section court. This isn’t the question of the action in the house of 1 of Committee Proposal No. 29 has been adopted. Section its own members. This goes to the very root of the protec 2, the first sentence has been adopted. That’s the Chair’s tion of the individual. I therefore move, Mr. Chairman, that recollection but the Clerk thought otherwise. The Chair’s the amendment is quite proper and quite important, and if recollection is that the entire Section 2 has been adopted. the body wants to defer that until Wednesday, I’m in agree ment. It seems to me that it’s a very vital amendment and APOLIONA: The entire Section 2 has been adopted as should not be passed over very lightly. amended. You divided the Big Island into two districts, two senatorial districts. CHAIRMAN: The Chair didn’t get your amendment. What BRYAN: That is correct. is your motion? That it be deferred? CHAIRMAN: That is correct. Section 3, the first sentence ROBERTS: My motion was to amend, Mr. Chairman. That has been adupted; Section 4 has not been acted upon; Sec motion is still on the floor. tion 5 has been adopted, as amended; Section 6, relating to TAVARES: I move to defer action until Wednesday on this vacancies, has been adopted without amendment; Section 7 matter because I can see there is plenty of controversy. has been adopted without amendment; Section 8 was deferred until today; Section 9, the same ruling; Section 10 has like PORTEUS: I second that motion. wise been deferred; Section 11 has been deferred; Section CHAIRMAN: Moved and seconded that we defer action 12 has been deferred; Section 13 was adopted; Section 14 until Wednesday on Section 20. All in favor signify by saying has been deferred; Section 15 has been adopted; Section 16 “aye.” Contrary. Deferred until Wednesday. has been deferred; Section 17 was deferred; Section 18 was deferred; Section 19, deferred; Section 20, deferred; Sec WOOLAWAY: I move that we adopt Section 21. tion 21, deferred; Section 22 has not been debated at all. CHAIRMAN: Is there a second to that? HEEN: It’s my understanding that the delegates would BRYAN: I second that motion. like to take up the question of reapportionment which is containedin Section 3. There was an amendment offered by CHAIRMAN: It has been moved and seconded that Section Delegate Sakakihara to amend the second paragraph relating 21 be adopted. to the first representative district. That amendment was to TAVARES: It devolves upon me in behalf of Delegate delete the word —in lines 2 and 3—the words “and Keaukaha, Okino to raise some questions about this section, and since the latter being more particularly described in the schedule,” we have been deferring so many matters and there are some and placing a comma alter the word “Puna” in the second serious questions that he has raised in a memorandum which line. he submitted to me, I therefore move that we defer it until CHAIRMAN: At the time of that deferment it was deferred Wednesday, because they are substantial questions. on the ground that possibly some members of the Hawaii de CHAIRMAN: Is there a second to that motion? legation did not agree with that amendment. Could we have a report on that, Delegate Sakakthara? Have you reached SAKAKIHARA: I second the motion. an agreement on that? CHAIRMAN: It has been moved and seconded that we SAKAKIHARA: The Hawaii delegation is divided and we defer until Wednesday, action on Section 21. All in favor have an absent member. I’d like at this time to request the signify by saying “aye.” Contrary. Carried. Defer it until Committee of the Whole to defer action on Section 3 insofar Wednesday. as applicable to the island of Hawaii until tomorrow when CROSSLEY: Inasmuch as Section 22 deals with the Legis Delegate Sakai will be present. lative Council and that is a highly controversial article, I SHIMAMURA: If the delegate from Hawaii is making that move that we now rise, report no progress for the morning in the form of a motion, I move to amend his motion to defer and beg leave to sit again. all of Section 3. 156 LEGISLATIVE POWERS AND FUNCTIONS SAKAKIHARA: I’il accept the amendment. CHAIRMAN: He’s already had five days’ notice. The last time the request for deferment came up was June 30th, CHAIRMAN: It’s been moved and seconded that the entire Delegate Sakakihara. The Chair will put the question. Section 3 be deferred until tomorrow. KING: May I call attention to the fact that Delegate Silva FONG: I think we could defer the question of Hawaii, is not present also, so that means two absent from the Hawaii but as far as the other sections are concerned we are really delegation. deferring the meat of this whole committee report. I think we should go right ahead with the other sections. CHAIRMAN: All in favor of deferment signify by saying “aye.” Contrary. The motion is lost. Do you now want to CHAIRMAN: The Chair is of the same view. put your amendment, Delegate Sakakihara? KAWAHARA: I would like to speak against the motion SAKAKIHARA: I move that the second paragraph reading to defer. We’ve been sitting here for quite a while now, and “First representative district,” I move to amend, after the I think the statement made by Delegate Sakakthara is correct word “Puna” in the second line thereof and third line up to insofar as the island delegation is split. The delegate from the word “schedule” be deleted, so that the amendment the first district didn’t say, of course, how we were split, would read: “First representative district: that portion and I’m quite sure we will continue to be split, and I think of the island of Hawaii known as Puna, one representative.” perhaps it would be wise for us to grab the bull by the horn now and vote and get this thing over with. CHAIRMAN: Is there a second? HAYES: I second the motion. CHAIRMAN: We’ve got to get through this article some time. The Chair is of the same view. However, is there any CHAIRMAN: Any discussion? further view on this? The motion is on the question for deferment. All in favor signify by saying “aye.” Contrary. WIRTZ: Point of information. I would like to ask the chairman of the Committee on Legislative Functions and Lost. Powers, does this amendment in any way disturb the repre SAKAKIHARA: I move at this time that we defer action sentation on equal proportions 2 on Section 3, first representative district, second represen HEEN: I understand not. tative district, third representative district, fourth repre sentative district. CHAIRMAN: Any further discussion? CHAIRMAN: The Chair rules your motion out of order. DOl: Some of the - - in fact, I want to say, the majority The motion has already been put and lost. of the Hawaii delegatioi3 are interested in seeing that Hawaii be divided just into two districts, East and West Hawaii. Now SAKAKIHARA: No, the motion was to defer action on all as a matter of a point of information I would like to ask the of Section 3, Mr. Chairman, the entire section. Chair whether this is the time that you would like to see the YAMAUCHI: I second the motion. amendment introduced or after we have passed on this other issue. CHAIRMAN: Moved and seconded that we defer action CHAIRMAN: I think if we take a vote on this, it would on - - will you state those sections again, Delegate Sakaki then be in order to move your amendment. It would go to hara? the whole section as to the Hawaii redistricting. SAKAKIHARA: Paragraphs where it reads first repre sentative district, second representative district, third LEE: I am not quite sure whether I understand the amend representative district and fourth representative district ment. I heard the delegate from Hawaii. He said that the be deferred until tomorrow. language should read as follows: “That portion of the island known as Puna, one representative.” Is that right, eliminate CHAIRMAN: Are you ready for the question? All in the rest? Where would Keaukaha land? favor of the motion - - SAKAKIHARA: Keaukaha would be taken care of in the LEE: It seems if we accept the policy not to defer but second representative district. By deleting the words “ex to take the thing by the h9rns it would be entirely inconsis cluding Keaukaha” after the word “Hilo” in the second line tent for the deferral of just this Hawaii problem when only thereof. one member of the delegation from Hawaii is absent. We have acted on other matters where one or two members LEE: All right. May I inquire of the chairman of the have been absent. So, I’m against deferring the proposal committee, with the absence of Keaukaha in the first repre unless we defer the entire matter. sentative district, how many voters will there be in the first representative district? SAKAKIHARA: May I explain the reason for the defer HEEN: There would still be four representatives. ment for Hawaii? There is an even division - - LEE: Four. CHAIRMAN: The Chair can’t hear you, Delegate Sakaki hara. HEEN: No, you mean in the first? SAKAKIHARA: I would like to advance the reason for LEE: Yes. deferment for the first, second, third and fourth represent HEEN: One. ative districts on the grounds that insofar as the second representative district, which comprises the fourth repre LEE: No, what I meant was, how many voters does Puna sentative district, there is an even division. Two members have? are for requiring candidates to run at large and two are for BRYAN: 1,819. definite division of that district, and one of those members is not present and he will be here tomorrow. LEE: How many does Keaukaha have? JULY 5, 1950 • Afternoon Session 157 CHAIRMAN: Six hundred, according to the vice chairman. representatives will remain the same, one for Puna with Keaukaha eliminated, and still four for South Hio with Keau SAKAKIHARA: Yes, 600; way over 600. kaha added to South HUb. LEE: And wouldn’t then the second representative district KING: The precinct of Keaukaha is merely a part of the be over-balanced by way of voters if you put Keaukaha’s six geographical district of South Hio. It’s not a part of the or seven hundred voters in that portion of the island of Hawaii geographical district of Puna. Why it was put in Puna in known as South Hio, or would it come out a better balance? the first place I am not certain except there was an effort Because I cannot seem to understand this manipulating going to get a larger number of votes in the district that was going around here, I want to know why. to elect one representative. It would be the natural thing to BRYAN: I am not sure that I undershand that question, put it in South Hio as they propose to do it now and it would Mr. Chairman. I’ll try to answer it if I understand it. not disturb the allocation of voters between Puna and South Hio and North Hio and Hamakua. So that there’s no objec CHAIRMAN: What Delegate Lee is asking is whether or tions to the amendment on that basis. Incidentally, the not there would be a better balance of registered voters if the gentleman who last spoke and questioned the fatal defects proposal was adopted as it stands, including Puna and Keau of the committee was a member of the committee, as far kaha together. Would that, the deletion of it, disturb the as I can recollect, and concurred with both of these recom balance as between the respective districts, as I understand mendations with the exception of one or two points. him. CHAIRMAN: That’s what the Chair understands. BRYAN: Well, there would be some disturbance, natural- ly. LEE: Well, I certainly didn’t concur with the reapportion LEE: Well, I want to find out what disturbance. ment end of it. BRYAN: Keaukaha would increase the number of voters CHAIRMAN: Are you ready for the question? in the South Hio District by approximately 644 and reduce MAU: If Puna - - if Keaukaha is withdrawn from the the number of voters in Puna District, the first district first representative district, then it merely leaves 1,700 under this proposal, by that number. That would leave - - votes in that first representative district as I understand I stand corrected on the first figures. approximately 1,711 it, which is quite a departure from the mean that they used voters in Puna. Now according to the method of equal pro in this thing called the equal proportion theory on the basis portions as we have applied it here, as long as there are over of 2,400 voters. Is that correct? about 1,250 in any one district they are entitled to one rep resentative as long as the remainder of their - - up to CHAIRMAN: Well, Delegate Mau, I believe the committee 2,400 is taken up by some other district on the same island. stated at the outset that upon the first apportionment there And as I understand it, the amendment is that while the was an arbitrary apportionment; thereafter it has the mathe committee gerrymandered that line a little bit in order to matical application formula. The first apportionment of increase the vote in Puna, the representatives from the Big necessity had some arbitrary features to it. Island feel that that’s not an area of like interest, so forth and so on. They believe that Keaukaha belongs with Hilo. OKINO: Point of information, If the amendment offered by Delegate Sakakihara is acted upon favorably, that is LEE: Then, am Ito understand, Mr. Bryan, that there’s carried, would it be in order for some other delegate to move some fatal defects in the majority report, committee report an amendment which would incorporate the first four para on legislative procedure? graphs of Section 3 beginning from the first representative CHAIRMAN: Will you address the Chair, please. district, so that all aggregated representatives who are sup posed to represent these four districts could be represented LEE: Thank you, Mr. Chairman, I was - - I’ll still not from all four districts as enumerated herein as one repre yield the floor. I was just wondering - - I was just follow sentative district? ing up my question to the chairman of the committee. CHAIRMAN: And thus divide the island of Hawaii in two, BRYAN: May I answer that question? is that it? LEE: Yes, go ahead. OKINO: Yes. BRYAN: Mr. Chalrman? CHAIRMAN: The Chair would rule that would be an CHAIRMAN: Please proceed. appropriate amendment even after the adoption or rejection of Delegate Sakakihara’s proposed amendment. BRYAN: We don’t consider that this is a fatal defect, and the chairman of the committee assured me that there are OKINO: Thank you. no fatal defects in the committee report. BRYAN: I’d like to correct one statement the chairman made a minute ago. That is, the first apportionment is not LEE: You mean the chairman was opposed to the commit arbitrary, the first apportionment is on the basis of equal tee report, as I understand. proportion. However, if you study the committee report as BRYAN: Maybe I better let him speak for himself. it refers to reapportionment in the future you will see that we have provided there where a district does not have at CHAIRMAN: You want to answer Brother Heen’s rhetori least a maj or fraction of the basic denominator required cal question? for each representative then it shall be redistricted to be HEEN: There is no fatal defect in the report made by the added to another district so that they will be entitled to one majority of that committee and this change would not make representative. That’s why I used the term 1,250. It’s not it another fatal defect at all. It’d just add so many more too illogical. The committee tried to build the districts voters to one district by subtracting it from another district. up as large as possible in order that that wouldn’t happen But under the method of equal proportions the number of in the foreseeable future. 158 LEGISLATIVE POWERS AND FUNCTIONS MAU: One more question. I see on the board there the HAYES: Under this amendment, I believe Delegate Doi most colorful map is that of the island of Hawaii. Does that is taking two away from West Hawaii. Isn’t that correct? make any difference at all in the four representative districts CHAIRMAN: No, it’s simply dividing the - - set up for the island of Hawaii, the part in blue as compared with the part in pink way up north? They don’t have any num DOI: We are following the recommendations of the com bers. The southern part of the island is marked out in blue. mittee proposal as regards the division between West and Which representative district does that belong to? East Hawaii. There is no increase or decrease. SAKAKIHARA: The fourth representative district. HAYES: But at the present time West Hawali - - at the present time you do have eight representatives from the is BRYAN: May I answer that, Mr. Chairman. I think he’s land of Hawaii, don’t we? speaking of West Hawaii. That belongs to the fourth repre sentative district which is all of West Hawaii. DOI: That is only because we are following the committee recommendations again and that is equal proportions. CHAIRMAN: Are you ready for the question? The ques tion is on Delegate Sakakihara’s amendment which would HAYES: So that under your amendment, then, West Hawaii delete Keaukaha from the second paragraph of Section 3. would lose two representatives. All in favor signify by saying “aye.” Contrary. The Chair DOI: Under the committee proposal, Mr. Chairman. is in doubt. All in favor please rise. Contrary. The motion is carried. HAYES: I’m talking about today. We have four repre DOl: I would like to move to amend Section 3, the section sentatives from the island of West Hawaii and four from of Section 3 dealing with the first representative district to East Hawaii. That’s the situation as it is today, is it not? the fourth representative district inclusive. In lieu of those DOI: That is correct. four representative districts, I would like to move to place the following words: HAYES: Well, that’s what I’m saying. The amendment that is being made now - - First representative district: East Hawaii, island of Hawaii, six representatives; DOI: But even if we adopt the recommendation of the Second representative district: West Hawaii, island of committee, it would still be the same. We will be taking Hawaii, two representatives. away two from West Hawaii. I don’t see why that argument should be used against this amendment. CHAIRMAN: May I ask how those two districts would be described if your amendment was carried? CHAIRMAN: That’s part of the problem of reapportion ment. DOI: The exact wording has been used as regards the NIELSEN: To resolve this thing, it simply means that senatorial district, and I believe that is sufficient as refer instead of breaking down into districts in East Hawaii, we ence to the present division of Hawaii. simply elect at large six from East Hawaii and at large YAMAMOTO: I second it. two from West Hawaii. That’s all this amendment of Mr. Doi’s means, that they’re at large in both East and West FUKUSHIMA: I’d like to ask a question of the movant. Hawaii. Does that increase the representation from the island of Hawaii? KING: I would like to speak in agreement with the chair man, if I understood him correctly, and that is that the DOl: No, it doesn’t. It’s the same number, eight. It amendment should designate the district East Hawaii and doesn’t give East Hawaii any increase nor does it give West then name the districts, Puna, Hio and Hamakua; West Hawaii any additional numbers than that recommended by Hawaii, name the districts, Kau, Kona and Kohala. the Committee on Legislative Matters. CHAIRMAN: The Chair feels you should adhereto the HEEN: May I suggest that as amended the paragraph language of the Organic Act. It’d be simpler, would it not? relating to the first representative district shall read the same as it reads in the Organic Act: DOl: That is right. We are happy to do that. The reason First representative district: that portion of the island why we suggested the recommendation so worded was be of Hawaii known as Puna, Hio and Hamakua. cause the section on the Senate was done in the same word ing I stated. We are very happy to adopt the recommenda That’s the way it reads in the Organic Act. tion made by Senator Heen. DOI: That would be satisfactory. CHAIRMAN: Are you ready for the - - OKINO: I should like to make this suggestion. I think it SAKAKIHARA: May I amend the motion? The secondS would be better to say North and South Hio. representative district, amend line two, add comma after the word “Hilo,” delete “excluding Keaukaha,” four repre HEEN: Well, with reference to what is now the fourth sentatives, and the remainder remain the same, the third representative district in the committee proposal we speak and the fourth. of West Hawaii the same way it is spoken of in the Organic Act, “that portion of the island of Hawaii known as Kau, KING: The amendment offered by Delegate Doi would Kona and Kohala.” In other words, they don’t divide the two really telescope the first, second, third and fourth repre Kohalas into North and South Kohala nor do they divide the sentative districts into two. The amendment now offered Konas into South Kona and North Kona. Of course it can be by Delegate Sakakthara - - done, North Kona and South Kona, North Kohala and South SAKAKIHARA: I withdraw my amendment. Kohala and refer to the Hios as being South Hio and North Hio, if you want to do it that way; but if you follow the CHAIRMAN: There has been no second, Delegate King. Organic Act we’ll have no trouble at all. The Chair will put the question. JULY 5, 1950 • Afternoon Session 159 DOl: Before the question is put I would just like to make TAVARES: I’d like to have the Hawaii delegation argue one statement. The amendment as proposed at this moment more pro and con so we can get the merits of both sides. was the consensus of the majority of the delegation from Hawaii that met during lunch hour. CHAIRMAN: Well, they’ve been given every opportunity. LYMAN: I happen to come from the Puna district. We SAKAKIHARA: May I submit the case in opposition to in the Puna district feel that if we are going to reapportion the motion to establish two representative districts for the and if we have earned a representative in the legislature of island of Hawaii and the representatives running at large the State of Hawaii we should be entitled to it. For the past as proposed under Mr. Doi’s amendment. I have been in fifty years the rural areas on the island of Hawaii have al the legislature for many sessions. I thiak I served ten ses ways been dictated to by the urban center, Hio. I, therefore, sions in the legislature. I feel very strongly that the rural ask that the group vote against this amendment. districts should be assured of representation, particularly KAUHANE: I know that this is a Big Island fight and I from the island of Hawaii. Speaking geographically, Puna should not get into the mixup, but unfortunately I just can’t is entitled to representation in the House of Representatives, sit by here with some of the voting constituents of the Big and the district of North Hio and Hamakua combined is en Island who have come in and suggested that the represent titled to one representative in the legislature. I had much ative districts, both the first and second districts, snould difficulty in the sessions of the legislature trying to find out follow on the same lines as the election held for the election from the people of that district—districts of Puna, Hamakua of delegates to this Constitutional Convention. The reason and North Hio—as to their needs and wants and I’m sure if that they put forth such a suggestion is as follows: that if the rural districts, as proposed in the committee’s report, we were to take the election of delegates from combined excluding Keaukaha, were given adequate representation, precincts B which will include Puna and Keaukaha, there is then the burden on the members being elected from East all opportunity for the minority group to be represented from Hawaii at large would not be so great. And I believe that that combination. If we take precinct combination C, which the members from Hawaii would more effectively represent embraces Hio, Honokaa and Hamakua, that that part of the the people of the district of Puna, the district of North Hio first representative district would have an opportunity to and Hamakua combined and the South Hio District. I submit, send people of their choosing from a minority group to rep Mr. Chairman, and ladies and gentlemen, that this amend resent them in the legislature. The same holds true with ment should be voted down. combined precincts G and H. I am just wondering whether KAWAHARA: The previous speaker has mentioned some some of my Democratic colleagues who sit here in this thing about geographical representation. It has been my im Constitutional Convention are looking at the situation that pression that the membership in the Senate would take care will confront the Democratic Party when we become a state— of that geographical representation. I would like to point out the possibilities of not being able to elect Democrats from one more thing. If we went along with this idea of giving various precincts to represent the minority people of that Puna one representative, perhaps we should give the district section of East and West Hawaii. of Kau, which is slightly larger than the island of Oahu, one CHAIRMAN: You think this is a Republican plot, do you? representative, even though Kau has some 1,100 voters. We have somewhat resigned ourselves to this idea, that in the KAUHANE: I am trying to get away from a Republican Senate we will get geographical representation and in the controlled legislature as being advocated by the present House, come what may, hell or high water, we will take our chairman of the Republican Party, so much so that I feel representation according to population. I don’t know, I think that equal representation and strength should be considered the arguments are somewhat inconsistent. On the one hand here the request of the people. The constituents who vote we say, let’s have geographical representation, let’s have for the elected officials from the Big Island who -sit here rural areas represented. Certainly, in the Senate we will in this Convention, and work as janitors and Sergeant-at~ be represented; in the House we will count the number of Arms and what not, feel that the present method by which heads and as far as I can see, in Kau there’s something the delegates were elected is satisfactory to them. like 1,108 registered voters. I don’t know how many there They also say this, Mr. Chairman, that the division of are in Puna but I understand somewhere around 1,800. I the two - - of Hawaii into two senatorial districts will cause think we have to be realistic and take what’s coming to us. a hardship on the senator that is to be elected representing the people of West Hawaii, that they feel that the senator SAKAKIHARA: In reply to the remarks of the last speaker, should be elected from the whole County of Hawaii rather I think the 15 members of the Committee on Legislative Pow than having Hawaii cut up into two senatorial districts. That ers and Functions will bear me out and the minutes of that is the information that has reached me and I’d like to pass committee will bear me out, that on the question of reappor it on to the members of this delegation. tionment, I as a member, and the only member from East Hawaii, at that time, offered to the West Hawaii delegates OKINO: I might add that the vote on this question is one representative from Kau, one from North and South somewhat of a test as to what might follow eventually. Kona, one for North and South Kohala, and that was rejected in spite of the fact that my colleagues from East Hawaii CHAIRMAN: The Chair will put the question. The ques were rather reluctant to give one more to West Hawaii. tion is on Delegate Doi’s amendment which in substance would divide the island of Hawaii into two districts as defined in CHAIRMAN: Delegate Sakakihara, the Chair notes that the Organic Act, the first district to have three represen you joined in the committee report without dissent. tatives and the second to have two. All those in favor - - SAKAKIHARA: I do, yes. TAVARES: I don’t feel the matter has been aired enough CHAIRMAN: And yet you come to the floor of the Com for the rest of us to know what’s what. We’ve heard two or mittee of the Whole and offer an amendment. three people speak for and against. SAKAKIHARA: No. Amendment, in so far as we reserved CHAIRMAN: Well, you have the floor. that - - 160 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: Correct. CHAIRMAN: I gather you’re against the amendment. SAKAKIHARA: I reserved my right in the committee LYMAN: lam. report. KING: I would like to speak along the lines Delegate LARSEN: It seems to me we’re coming back to the orig Larsen spoke. The committee amendment, I mean the inal again. The committee did a tremendous lot of work committee report, after a great deal of thought and consider on trying to make it fair. If now every little district is ation and the expression of the wishes of the delegates from going to pull here, pull there, pull everywhere, each trying the various districts were presented to the committee for to grab a little extra, a few votes here and a few votes there, consideration, provided for the division of East Hawaii into we’re not going to end with something better than we’ve got. three districts, Puna, South Hilo and then North Hi].o and We’ve a good suggestion here, and I would like to urge the Hamakua. This amendment that was offered by Delegate majority to let’s vote on this committee [proposal]. We’re Sakakthara is merely a rectification of the boundaries. It certainly not making it better by this type of thing we’re doesn’t affect the total number of delegates or their alloca doing now, trying to split them here. If we’re going to have tion. In other words, Puna, less Keaukaha, would elect one representation, one to 2,450, let’s take it. In ten years from delegate; South Hio, plus Keaukaha, would elect four; North now, if it hasn’t worked out well, then let us change it. Hio and Hamakua would elect one. That’s in the committee report and I believe we should support it. If we’re going CHAIRMAN: Are you speaking for or against the amend to open it up for six at large, the probabilities are all six ment? would come from the city of Hio, and neither Puna nor North LARSEN: I am voting against the amendment and support Hio and Hamakua would obtain any representation. the committee. MAU: In line with what has been said in support of the committee report, I notice that three of the committee mem DOl: I too am in favor of giving the rural areas repre sentation as well as different districts as they exist in bers who favored that report voted to amend. So I don’t know Hawaii today, but if we were to do that we would need nine where we stand now. It seems to me that after the first representatives instead of eight. amendment had been made and voted on and agreed to, that I would also like to say the mere fact that a local unit further amendments—if the representatives or delegates elects one representative doesn’t mean that that unit gets from Hawaii desired such change from the committee re the best representation possible. I would think that in this port —that they ought to be given some consideration. case Puna, speaking specifically, would benefit more by CHAIRMAN: The Chair understands that Delegate Saka voting for the six East Hawaii delegates than they would if kthara’s amendment was more of a perfecting amendment, they should vote and elect only one representative. I do not not a substantive amendment. think the six representatives could ignore a vote of 1,800 from Puna and they must accede to the needs and wishes of MAU: But no committee member got up to say that was the people from Puna. what they agreed to. CHAIRMAN: The Chair will put the question. LEE: In line with that just mentioned by Delegate Mau, as long as a particular representative district doesn’t lose SAKAKIHARA: May I further amplify that remark to any members, the number does not decrease, I assume that correct the impression left by the previous speaker. That that argument would also apply to any other amendments is not true. proposed, say in the fourth district or fifth district on Oahu. CHAIRMAN: I didn’t hear what the delegate said. CHAIRMAN: Let us argue one at a time. The Chair will SAKAKIHARA: I said I would like to correct a misim put the question. The question is on the amendment. The pression left here by the previous speaker. I served in the amendment would divide the island of Hawaii into two dis 1941 session of the legislature. In spite of the appeal and tricts, one and two, the first to have six representatives request of the people of the district of Puna for various and the other to have two. All those in favor signify by saying public improvements, namely and particularly the highways “aye.” Contrary. The motion, the amendment is lost. in Puna, Puna District was neglected, was not given one LEE: I think there was some doubt in my mind on the copper penny in the final appropriation, and I felt very matter. I suggest a raising of hands on that matter or a strongly since then that the Puna district should be repre roll call. sented in the legislature. It was not until the 1949 session that I made a strong appeal to the Hawaii delegation in the DELEGATES: Roll call. House and with the help of the members from Oahu, Kauai CHAIRMAN: The Clerk will call the roll. and Maui, that was how Puna was taken care of at the 1949 session. I regret very much the previous speaker has had Ayes, 20. Noes, 36 (Apoliona, Ashford, Bryan, Castro, no prior legislative experience which some of us have, and Cockett, Corbett, Dowson, Fong, Gilliland, Hayes, Holroyde, I believe very strongly that the rural district, namely the Ihara, Kage, Kam, Kanemaru, Kellerman, Kido, King, Lai, district of Puna and the districts of North Hio and Hama Larsen, Loper, Lyman, Ohrt, Porteus, H. Rice, Richards, kua combined, should have a representation in the House. Roberts, Sakakihara, Smith, St. Sure, Tavares, A. Trask, Wirtz, Woolaway, Yamauchi, Anthony). Not voting, 7 (Ara CHAIRMAN: The question is on the amendment. shiro, Crossley, Kawakami, Phillips, Sakai, Silva, White). LYMAN: For thirty years we have heard the same old CHAIRMAN: The motion is lost. story from the same old fellows running from Hio and they’ve never produced the goods. I want to back up Mr. SAKAKIHARA: May I offer an amendment to the para Sakakihara and what he has said. It’s only in the last two graph relating to the second representative district? In years that Puna got one red copper penny—they got $200,000 second line, on line two thereof after the comma after the —but for the thirty years previous to that Puna never got a word “Hilo” delete the words “excluding Keaukaha” so that penny. the amendment would read: JULY 5, 1950 • Afternoon Session 161 Second representative district, that portion of the is KAWAHARA: I’d like to correct the statement made by land of Hawaii known as South Hio, four representatives. the previous speaker that I’m a delegate from Kona. I am CHAIRMAN: Is there a second? a delegate from the Combination H which includes Kau, the district of Kau. Even if the other two delegates did come KING: I’ll second it. and express an opposing view it would be the same. I’m CHAIRMAN: That is simply in conformity with the prior quite sure that the voting would be fifty-fifty. In other words, amendment. I think we’re going to be split. I’m in favor of taking this matter up now so that it’s going to be two to two, so that - - KING: It is a perfecting amendment to carry out the Well, Delegate Silva is here. I’m in favor of taking this amendment already adopted with regard to the first repre matter up now, Mr. Chairman. sentative district. CHAIRMAN: It seems to the Chair we should take a vote CHAIRMAN: The Chair doesn’t feel there’s any need on this. for debate on this. All those in favor signify by saying “aye.” Contrary. It’s carried. SAKAKIHARA: The reason why I deferred action in the absence of Senator Silva is because I happen to know that he SAKAKIHARA: May I move for the adoption of the third has an amendment to second paragraph - - paragraph which reads: CHAIRMAN: He is here now. The Chair will recognize Third representative district: that portion of the is him right away. Delegate Silva, if you can catch your breath land of Hawaii known as North Hio and Hamakua, one and turn to Section 3 - - representative; SILVA: I think I am pretty well familiar with the subject. OKINO: I second that motion. I was just wondering whether we on the island of Hawaii are going to divide East Hawaii into districts. On the same island, CHAIRMAN: Couldn’t we take both at the same time, by the same token we move to another district and we say— Delegate Sakakihara, third and fourth? that very same island —the representative district shall not SAKAKIHARA: The fourth is very controversial, Mr. be divided. Then in the senatorial district we divide the Chairman. That is the reason why I deliberately left it out. County of Hawaii into two senatorial districts, the first and the second. In the second senatorial district with two sena CHAIRMAN: Is there any discussion? If not the Chair tors we fail to - — will put the question. All those in favor signify by saying “aye.” Contrary. The ayes have it. It’s adopted. CHAIRMAN: Pardon me, you didn’t get what was before the house, the question of whether or not we should defer. SAKAKIHARA: Since Senator Charles H. Silva and Supervisor Sakuichi Sakai, both of West Hawaii, are absent SILVA: Defer? here now, I respectfully request the Committee of the Whole CHAIRMAN: Defer or - - to defer action on the fourth representative district. SILVA: I think to defer is very much in order, Mr. Chair CHAIRMAN: Haven’t we already voted on that once? man, because Mr. Sakai isn’t here and the West Hawaii dele SAKAKIHARA: No, we have not, Mr. Chairman. gates are sort of divided two-two on that question. CHAIRMAN: Didn’t you ask to defer the whole section? CHAIRMAN: Well, there’s been considerable sentiment expressed in favor of going forward with this. So if you KING: Well, Mr. Chairman, that was another proposition, have anything to say why it should be deferred, you ought to defer all four. to give it to the body here. CHAIRMAN: Is there a second? SILVA: Well, as I pointed out a moment ago that Mr. YAMAUCHI: I second it. Sakai isn’t present. I think Sakai and myself are for cutting West Hawaii into two representative districts so that North KING: This merely defers action on the fourth represent and South Kohala with a portion of probably Kona, like they ative district which gives to West Hawaii two delegates at elected to the Convention here, would elect one representative, large. Delegate Sakakihara’ s motion is that we defer action and the other part of Kona with Kau, like Mr. Kawahara was until two of the delegates from that district are here, Dele elected under those circumstanee~, would elect the other gate Silva and Delegate Sakai. representative. Otherwise you’re going to find Kohala Dis CHAIRMAN: All in - - trict and Kau without representation at all. NIELSEN: I don’t see any reason to defer action on that. CHAIRMAN: The question is on the deferment. All those We’re only entitled to two representatives in West Hawaii in favor signify by saying “aye.” Contrary. The motion is under reapportionment and we’re going to go along on re lost. apportionment. We’re only entitled to two, and two at large is the only way to elect them over there. So I see no reason HAYES: I feel that we should let Senator Silva catch his breath and go to the next one and then we come back to the for deferment by East Hawaii on this matter. other. I don’t believe he knows what we’ve already done DELEGATE: That’s right. with East Hawaii, dividing them up as reported by the com mittee. Are you ready? OKINO: In fairness to Delegate Silva and Delegate Sakai, I feel that the matter should be deferred. Delegate Nielsen SAKAKIHARA: I desire to ask the Committee of the and Delegate Kawahara are delegates from Kona. The two Whole to defer until the end of the Proposal No. 29 action delegates from Kohala are absent and I think in all fairness on fourth representative district. the matter should be deferred. CHAIRMAN: Would you amend that motion to read until CHAIRMAN: They knew this was coming up though, the end of the section? In other words we then could clean didn’t they? up the section. 162 LEGISLATIVE POWERS AND FUNCTIONS SAKAKIHARA: Yes. mittee of the Whole- as well as outside, it is that it not be reconsidered twice, and therefore the suspension of the rules CHAIRMAN: I think that would meet your point. as proposed is a procedure for opening up any other question HAYES: I second it. that might later be open. CHAIRMAN: It’s been moved and seconded that we defer WOOLAWAY: Mr. Chairman, if I am not mistaken we action on this until we dispose of the other items in the reconsidered once. section. All in favor signify by saying “aye.” Contrary. CHAIRMAN: If that is the case, then there is no occasion It’s carried. to suspend the rules. Fifth representative district. Is there a motion that be adopted? Mr. Chairman, is there any further action need PORTEUS: I think those who made the motion are correct to be taken on this section? in asking for a suspension of the rules if they desire to get into this question further. I think the delegate from the fourth HEEN: No, as I understand it, action has already been district is correct in pointing out that the motion for the sus taken whereby Molokai and Lanai has been made into one pension of the rules for the purposes of considering these representative district with one representative, and the particular sections is to get around the ruling that the matter rest of Maui constituting one representative district with has been reconsidered once and under our rules cannot be five representatives. reconsidered twice. Therefore, it is necessary to suspend KING: Just for a brief statement. Three letters were the rules in order to deal with this situation on the County received in the Convention this morning, two from Molokai of Maui. The rules are not - - as I understand it, the motion and one from Lanai. They were referred to the Committee is not made for the suspension of rules. Any business that of the Whole. They are pertinent to this particular subject. anybody wants to take up from now on out - - I suggest that perhaps the Clerk might re-read these letters before we complete discussion on these two districts. CHAIRMAN: The Chair understands that it only applies to the County of Maui. Are you ready for the question. It’s LEE: I don’t think that’s necessary. I think it’s commu been moved and seconded the rules be suspended in order nications from some Republican clubs. to permit reconsideration of the re-districting of the County DELEGATES: Mr. Chairman. of Maui. All in favor signify by saying “aye.” Contrary. The chair is in doubt. WOOLAWAY: Mr. Chairman, under the circumstances - - DELEGATE: Roll call. CHAIRMAN: Just a minute. CHAIRMAN: I think we can have a standing vote on this. KING: Mr. Chairman, in reply to - - All those in favor of suspension will please rise. Contrary. CHAIRMAN: Delegate Kauhane is recognized. So close, I think we’d better have a roll call. I think Brother Heen stood up twice. KAUHANE: Thank you, Mr. Chairman. I think I am of the same opinion as Delegate Lee that the letter has already LEE: Mr. Chairman, did you count 32 ayes? If not the been read. The fact that we received three letters from the motion would fail anyway. So, if there’s less than 32, the island of Molokai and the rest of the people did not write motion would fail. in their views, I am certain that they favor what was voted CHAIRMAN: That’s right, it was not 32, it was 26 to 25 upon by this delegation whereby Lanai and Molokai shall be or something like that. The motion fails. You’re quite right. constituted as one representative district. So therefore the It requires 32 votes. preponderance of evidence is in favor of the action taken by the committee by the silence of any protesting letters. WOOLAWAY: I’d like you to note that there were six Maui people in favor of suspension here. CHAIRMAN: Delegate Woolaway is recognized. HEEN: I move for a recess, Mr. Chairman, a short KING: I rise to the point of personal privilege, please. recess. The previous speaker before the last one, Delegate Lee said - - CHAIRMAN: Recess for five minutes. CHAIRMAN: Don’t take him too seriously. (RECESS) KING: Well, never mind, I want the records to show that one of the letters was from Judge S. H. H. Ashford, a lead CHAIRMAN: Will the delegates please take their seats? ing Democrat on the island of Molokai and the brother of the DELEGATE: Let’s go. lady who sponsored the amendment and he’s opposed to the amendment. H. RICE: I suggest we start on Oahu now. WOOLAWAY: Under the circumstances I now move for CHAIRMAN: Delegate Heen, it’s been suggested that we the suspension of rules so that we can reconsider our action start on the reapportionment of the island of Oahu. on Maui, the County of Maui. BRYAN: Pd like to move the adoption of the paragraph ST. SURE: I second that motion. beginning “The eighth representative district.” I think for CHAIRMAN: It’s been moved and seconded that we sus the sake of clarity, although there are amendments which pend the rules in order to permit this committee to recon would change the district numbers, if until we finish the sider its action. article we can retain the numbers in the report they will jibe with the numbers on the map, and I think it will keep it ROBERTS: I’d like to call attention to what the group is a little clearer until we get to the end, and then we can doing. The motion to suspend the rules on this is for second change it or you can change them in the report. consideration. We’ve already acted on this, as I recall, twice, and on the basis of the rules that we’ve adopted for the Com LAI: I second the motion. JULY 5, 1950 • Afternoon Session 163 CHAIRMAN: That is just a mechanical change. It’s been CHAIRMAN: The Chair would like to point out the minute moved and seconded that the eighth representative district we get into this kind of amendment we’re going to take a as recommended by the committee be adopted. Is there any long time. Now presumably the committee had representa discussion? tives from both political parties and came out without any LEE: Let’s see, that’s Koolaupoko and Koolauloa. What dispute as to this particular section. precincts are they at the present time, may I inquire? That’s SHIMAMURA: I am willing that it be deferred until a Kaneohe, the first of the fifth? later date. It has been deferred for several days already. HOLROYDE: That’s right, first of the fifth. LEE: I move that it be deferred until the end of the LEE: Second of the fifth? section. HOLROYDE: Second of the fifth, third of the fifth, fourth CHAIRMAN: End of what section? of the fifth, twenty-eighth of the fourth, and thirty-eighth. LEE: This particular section, Section 3. LEE: I see, that includes Waimanalo and Kailua. SHIMAMURA: I second the motion. HOLROYDE: It does, that is correct. CHAIRMAN: It’s been moved and seconded - - Delegate Fong. CHAIRMAN: All those in favor signify by saying “aye.” Contrary. Carried. FONG: I think we’re ready to vote on that question Ninth representative district. Will you make a motion please? CHAIRMAN: You have to vote on this motion then. It’s been moved and seconded that it be deferred until the end BRYAN: I’d be very glad to. I move we adopt the para of the discussion on the section. All those in favor signify graph concerning the ninth representative district. by saying “aye.” Contrary. The motion is lost. LAI: I second that motion. WIRTZ: I’d like to ask the chairman of the Legislative CHAIRMAN: It’s been moved and seconded that we adopt Committee a question. In the amendment as I understood it, the paragraph of Section 3 relating to the ninth representa offered by Delegate Shimamura, a combination of the twelfth tive district on the island of Oahu. Any discussion? If not, and thirteenth would still combine the total number of repre all those in favor signify by saying “aye.” Contrary. The sentatives. ayes have it. KAUHANE: Point of order. Wasn’t the motion lost? BRYAN: I’d like to move the adoption of the paragraph concerning the tenth representative dintrict. CHAIRMAN: The motion was lost. The motion to defer was lost. So we’re now on the subject of the twelfth repre LAI: I second the motion. sentative district. CHAIRMAN: It’s been moved and seconded that the para BRYAN: No second. graph relating to the tenth representative district on the is land of Oahu be adopted. All those in favor signify by saying CHAIRMAN: The motion to defer it was lost. “aye.” Contrary. Carried. WIRTZ~ Amlin order? KAUHANE: I move for the adoption of the eleventh re CHAIRMAN: You’re in order. Proceed. presentative district. WIRTZ: The question that I want to ask the chairman of KAM: I second that motion. the Legislative Committee is, by combining the twelve and CHAIRMAN: Any discussion? If not the Chair will put the thirteen, how does that affect the representation on the the question. All in favor signify by saying “aye.” Contrary. theory or doctrine of equal proportions? Carried. BRYAN: Before I speak on the question I insist that we BRYAN: I move the adoption of the paragraph dealing have a second on the motion. with the twelfth representative district. J. TRASK: I second the motion. CHAIRMAN: What was that? BRYAN: As I understand it - - BRYAN: Twelfth. I move the adoption of the paragraph CHAIRMAN: It’s been moved and seconded that the twelfth concerning the twelfth. representative district be amended to include Kapalama, as I NODA: I second the motion. understand it. Is that the effect of your motion, Delegate Shimamura? SHIMAMURA: I made a motion previously, some days ago. I should like to renew my motion to amend by substi SHIMAMURA: That is right, Mr. Chairman. tuting for paragraph thirteen and fourteen of Section 3 the CHAIRMAN: Proceed. following: BRYAN: That would, under the method of equal propor Twelfth representative district: that portion of the tions, would leave them with five representatives rather island of Oahu known as upper Nuuanu and Kapalama, than six and the sixth representative would go to Koolau. and more particularly described in the schedule under the caption the twelfth representative district and the J. TRASK: Mr. Chairman, let me clarify that. The word thirteenth representative district, six representatives. is Koolau, and not Kulau. And number the subsequent representative districts to CHAIRMAN: The Chairman has already chastised him conform. I have the written amendment here, Mr. Chairman. for that, Delegate Trask, silently. 164 LEGISLATIVE POWERS AND FUNCTIONS H. RICE: I’d like to know if - - and it says “Nuuanu, CHAIRMAN: No, we voted on that as a principle. more particularly described in the schedule.” I don’t under NIELSEN: How many registered voters, may I ask, are stand that schedule. Where is that schedule presented to us? in the twelfth and thirteenth combined? CHAIRMAN: That’s a part of the matter that’s before the committee. It’s Proposal No. 30 accompanying - - CHAIRMAN: Will you hold that a minute until the Chair straightens out the point of order? Delegate Shimamura, AKAU: I’d like to ask the delegation here to vote against the Chair is inclined to agree with the chairman of the com the amendment. I think it’s high time we got what was coming mittee on that point of order unless you can convince us to us and if we vote for the amendment, unfortunately these otherwise. - districts would actually lose one representative. So if you’re SHIMAMURA: I don’t think that point of order in my voting I trust that you’ll vote against it. humble opinion is well taken. For this reason. We voted WIRTZ: The purpose of my question was to br~ng that on this special paragraph twelve, and this amendment is to out. I understood the movant to say that he wanted six rep this particular paragraph, and if this Convention adopts resentatives in those two districts. That was part of his this amendment it is amending this particular paragraph. motion, to combine the twelfth and thirteenth and leave the CHAIRMAN: Don’t you agree that it’s an invasion of total number at six. That is why I brought out the question what the committee has already done in regard to adopting from the chairman of the Legislative Committee that under the principle of equal proportions? the theory of equal proportions twelve and thirteen combined would only have five. SHIMAMURA: The principle of equal proportions as far as the particular article is concerned relates to the reappor CHAIRMAN: This is the same amendment that was pro tionment in 1959. It’s no part of this article at all, except posed at our last meeting which did involve the combination for Section 4.. of the twelfth and thirteenth representative districts allo cating to the two districts six. BRYAN: I’d like to speak on that point of order. As I HEEN: That’s correct. If the delegate who proposed the recail the morning that we had the explanation of the mathe amendment insists upon six, then he’s out of order for the matical process of equal proportions there was a motion Convention has gone on record as adopting the principle of made, duly carried, and I believe the minutes will bear it equal proportions. Having adopted that principle, then if he out, that we follow the method of equal proportions in allo wishes to have that motion considered, he will have to leave cating the representatives in the apportionment which we that to be determined under the method of equal proportions are speaking of now. as to how many representatives will be elected from the HOLROYDE: May I add a little bit to that also? Dele combination of the two districts. gate Mau’s inquiry is to Puna. He implied that the equal proportions system was not applied there, didn’t appear CHAIRMAN: Delegate Shimamura, what pave you to say like it was applied there, and I grant from where he sits to that point of order. It seems to me there would be some his observation probably looked to be correct, but the substance to it. committee here checked equal proportions method when MAU: If what the chairman of the committee has just that proposal was first submitted and found out that it did stated is correct, what about the action we took in Puna? not alter the representation at all and that theory was follow Isn’t that the same? Is there a difference there? ed in that change. There was no - - under the system of equal proportions there was no change in representation. CHAIRMAN: That did not involve the taking away or add ing to the number, as the Chair understands it. This does. OKINO: Point of information. I should like to ask the chairman of the Committee on Legislative Powers and MAU: This doesn’t add to anything. Both of them give Functions a question. If the twelfth and thirteenth repre three each, that would be six. sentative districts are combined and if the number of re HEEN: In the case of Puna and South Hio it didn’t make presentatives by reason of this combination is to reduce any difference. Under the method of equal proportions the number of representatives from six to five, where is the neither Puna lost any nor South Hio gain any. sixth representative going? MAU: As I understand the amendment neither will these HEEN: Under the method of equal proportions and districts, if combined, lose any representative. using the priority list that is established in connection with the application of that method, that one delegate lost CHAIRMAN: They will if we abide by what this body has by the combination of the twelfth and thirteenth would go to already agreed upon, namely, the application of the principle Windward Oahu, Koolauloa and Koolaupoko. of equal proportions. That’s what Delegate Heen is pointing out. KING: Mr. Chairman, have you ruled on the point of order yet? MAU: Assuming that the Convention votes for it, and I don’t think it will, they still have six if they vote for the CHAIRMAN: I have not. The Chair is trying to find out amendment. what’s in the minutes. The Chair is of the view that we adopted the principle of equal proportions. That being so, CHAIRMAN: His point of order is that we first have got it seems to follow that if this will involve, upon an applica to reconsider our basic principle before this motion is in tion of that principle, a change of one representative, the order. I am now asking Delegate Shimamura if he doesn’t present motion is out of order. agree that there’s substance to that point of order. KAUHANE: Point of order. I believe the committee did MAU: I’d like to be informed about that, on that point of a very good job by arriving at equal proportions to deter order, whether or not we took that as a separate motion and mine the number of representatives for each representative voted on the theory o± whether we voted on a section which district, but the po11 has just been taken of the representa carried that theory. tives from the fifth district and the- majority of them are JULY 5, 1950 • Afternoon Session 165 against the amendment, so I think let us vote on the amend SHIMAMURA: It was a sense vote. ment that is now being submitted. I move the previous CHAIRMAN: That is correct. question. SHIMAMURA: That was a mere general vote on the HEEN: I insist upon my point of order. My recollection general proposition of a sense vote and it does not directly is clear, Mr. Chairman, that at the earlier stages of the con alter the situation. In other words, this does not directly sideration of the question of apportionment and reapportion conflict with that vote because this is an amendment to a ment, I believe I made the motion that the committee adopt definite specific paragraph. I think the Chairman has ruled as the sense of the committee that the method of equal pro because the incidental effect of the house voting on this portions be applied, and that carried. section on this particular paragraph, if it did agree to it, CHAIRMAN: The Chair is of that opinion and will so rule. would be to overrule its prior sense vote. This is not in Delegate Shimamura, you may take an appeal from the ruling direct consideration of the sense vote, Mr. Chairman. Thin of the Chair if you care to. amendment is a specific amendment to a definite paragraph. J. TRASK: In lieu of the decision just made by the Chair, CHAIRMAN: Delegate Shimamura, the Clerk has finally I want to amend Delegate Shimamura’s amendment to strike found the minutes. The discussion occurred when Mr. Dodge out the word “six” and include the word “five.” had made his explanation, and this is from the Clerk’s notes: CHAIRMAN: Is that acceptable, Delegate Shimamura? “Following the explanation of Mr. Dodge, Delegate Larsen moved that the Committee of the Whole accept the method SHIMAMURA: No, Mr. Chairman, that is not acceptable of equal proportions as worked out by the Committee on Leg to me. islative Powers and Functions. Seconded by Delegate Heen. There was considerable discussion on this matter following FUKUSHIMA: For the benefit of the rural areas, I’ll which the Chair put the question to adopt the method of equal second the motion. proportions as worked out by the Committee on Legislative CHAIRMAN: The Chair didn’t hear your statement, Dele Powers and Functions, which motion was adopted.” gate Fukushima. SHIMAMURA: May I ask when that vote was taken, whe FUKUSHIMA: I’ll second Delegate Trask’s motion. ther that sense vote was taken after my motion to amend? CHAIRMAN: Delegate Trask’s motion is to move to CHAIRMAN: That was taken before your motion to amend, amend combining the twelfth and thirteenth districts, chang so the Chair adheres to its ruling. ing the figure by one representative. TAVARES: I rise to a point of order. If Delegate Shima FUKUSHIMA: That is correct. I’ll second that motion. mura’s motion is out of order, an amendment to it is out of order because it places us in this position: if we vote for APOLIONA: If you have ruled that Delegate Shimamura’ s the amendment we are making a motion not out of order, in amendment is out of order, then Delegate Trask’s amendment order; if we vote against it then we are voting to retain to that amendment is out of order, too. the original one which is out of order. CHAIRMAN: No, that’s not correct. This does not invade CHAIRMAN: The Chair construes it as a new and indepen what the body has already adopted as to the theory of equal dent motion made by Delegate Trask and seconded by Dele proportions. gate Fukushima. KAWAHARA: May I ask a question of the chairman of FUKUSHIMA: Mr. Chairman, if this is a new motion, I the Committee on Legislative Powers and Functions? As withdraw my second. I read Section 4, of the Committee Proposal No. 29, Section 4, there is a definite statement that reapportionment of the CHAIRMAN: There is nothing before the house. House of Representatives in 1959 shall be an the basis of A. TRASK: I second the motion. equal proportions. Nothing in Section 3 -- there is no de finite positive statement to the effect that the reapportion CHAIRMAN: It has been moved by Delegate James Trask ment or apportionment shall be on the basis of equal pro and seconded by Delegate Arthur Trask that the twelfth and portions. thirteenth representative districts be combined and that the two as combined have five representatives. CHAIRMAN: You don’t reapportion the Senate, just the House of Representatives. FONG: I don’t think I can sit here and let that highway HEEN: That’s correct. There’s no mention of that robbery go by. method of reapportionment in Section 3 but the fact re CHAIRMAN: Are you referring to the Chair’s ruling or mains that the apportionment, initial apportionment was what, Delegate Fong? made on that basis. If you will read the report it states that the initial apportionment until reapportionment was made FONG: This motion. under the method of equal proportions. CHAIRMAN: Oh! CHAIRMAN: The question is on the amendment. MAU: Point of order. Do the rules provide that a brother can second the motion of another brother? SHIMAMURA: I did not have an opportunity to address myself to the Chair on the Chair’s ruling on the point of CHAIRMAN: I think so. order. May I speak to that now, Mr. Chairman? FONG: Six precincts are entitled to three representatives; CHAIRMAN: You may. five precincts are entitled to three, that is referring to the twelfth, thirteenth and eleventh precincts. The Legislative SHIMAMURA: If there was such a vote, and I think the Committee had a hard time arriving at what it should do in Chairman is correct, that it was a sense vote. the matter of reapportionment of the districts known as X, CHAIRMAN: It was a what? Y and Z, Kalihi, Palama and Nuuanu and it first adopted the 166 LEGISLATIVE POWERS AND FUNCTIONS number of eight representatives for the three districts, but CHAIRMAN: Moved and seconded. Ready for the question? in looking over the redistricting of the other part of the All those in favor signify by saying “aye.” Contrary. Car fifth district we found that we were out of line. You will ried. note that you have voted on the various reapportionment BRYAN: I move the adoption of the paragraph concerning for the districts, the districts of ICoolaupoko and Koolauloa the fourteenth representative district. will have two representatives, that is in conformity with the Constitutional Convention in which they had two representa J. TRASK: Second the motion. tives. The portion of Waialua and Wahiawa would have two ROBERTS: The action this afternoon on the fifth district. representatives and the portion of Waianae and Ewa, two. fifth area, covered the Constitutional Convention combinations You will note that in the fifth district the districts are cut U, V. W. X, Y and Z. Combination U became the eighth dis up so that none of the districts have representatives ex trict, V became the ninth district, W became the tenth district, ceeding three in number. This amendment if it goes through X became the eleventh district, Y the twelfth and Z the thir would have the effect of stealing one representative from teenth. The previous speaker, Mr. Fong. pointed out that the the twelfth and the thirteenth precincts - - distribution of those districts was done by a non-partisan A. TRASK: Point of order. group. I have no reason to contest that. I think, therefore. accepting that premise, the combinations 0, P. Q, R and CHAIRMAN: He is against the larceny. S of the fourth should therefore be distributed in like manner. I have an amendment to offer which would provide that com FONG: This is larceny in the highest degree. This bination 0 become the fourteenth district. amendment - - CHAIRMAN: Just a minute, there is no combination 0 in A. TRASK: Point of information and order. Larceny is this proposal. not possible unless you first establish the fact and we haven’t a fact yet. ROBERTS: I am merely indicating the overall basis for my proposal. Combination P becomes the fifteenth; com CHAIRMAN: It only relates to personal property, not to bination Q. the sixteenth; combination R, the seventeenth human beings. and combination 5, the eighteenth. The overall effect of that FONG: The twelfth precinct would have three represent would be to give each of those combinations three seats with atives according to the committee report and the thirteenth a total of fifteen seats, as is now proposed in the fourteenth, precinct would have three representatives according to the fifteenth and sixteenth. I’d like, Mr. Chairman, since only committee report. Now, if this amendment goes through one proposal is before us, that of the fourteenth represen then a combination of the two will consist of only five rep tative district — — resentatives which will mean we will lose one representa CHAIRMAN: Before you speak to it, is there a second tive from the twelfth precinct and thirteenth precinct. Now to this motion? in the fifth district you will note from the committee’s report that the district went according to the Constitutional Conven LAI: I second that motion. tion line. Now, there was no gerrymandering of the fifth CHAIRMAN: Proceed, Delegate Roberts. district. That line was established by a non-partisan group composed of Democrats as well as Republicans. They were ROBERTS: I have been - - the ones that set forth the Constitutional Convention districts HEEN: Point of information. What becomes of combi upon which the delegates were elected, and the members of nation T? the Legislative Committee felt that they would follow the lines as set forth by the Constitutional Convention group ROBERTS: Combination T becomes the nineteenth repre which first delineated the district. So I want to say to the sentative district. There is no distribution - - there’s no group here that there is no gerrymandering of theee districts increase in the seats on the basis of equal proportions. It as far as these two combinations are concerned. So I would made good sense to me that a proposal as applied to the fifth, like to ask that the Convention vote down this amendment. which gave representation of seats of two, two and two to U, V and W and three, three, and three to X, Y and Z, that FUKUSHIMA: I’d like to voice my feeling as to that that same distribution should apply to combinations 0, P, Q, amendment which is now before the house. I’m against the R and S. There can be no accusation of gerrymandering on amendment. I’m against all amendments to the committee the same basis, since each of those combinations are en proposal. A few days ago I thought I was at a bingo game. titled to three seats so far as the population is concerned of Now apparently this is an old time taffy pull. those five areas, the population in terms of registered voters. The fourteenth has 7,000; the fifteenth, 7,600; the sixteenth, CHAIRMAN: The Chair will put the question. The ques 7,400; the seventeenth, 7.700 and the eighteenth, 8,000. tion is on the amendment. All in favor signify by saying Each of those would then have three representatives. I think “aye.” Contrary. Amendment lost. we can avoid a lot of discussion because the combination as DELEGATE: Previous question. proposed by the committee set up new boundaries and new lines. The boundaries as adopted for the Constitutional Con CHAIRMAN: The Chair will put the question on the twelfth vention to me seem to have been fair. I have not been shown representative district. All those in favor of adopting the anything which indicates that they were gerrymandered or provision relating to the twelfth representative district signi biased or prejudiced. I think therefore that the combinations fy by saying “aye.” Contrary. Carried. used for the Constitutional Convention should also be used in the district. BRYAN: I move the adoption of the paragraph concerning the thirteenth representative, district. CHAIRMAN: Delegate Heen, would you care to express your views on that? CHAIRMAN: Is there a second? HEEN: I have not given the subject as proposed now any LAI: Second the motion. study at all. JULY 5, 1950 • Afternoon Session 167 LEE: It seems to me, Mr. Chairman, that any comments itself would be the body which would determine the particular should come from the ones who have been delegated by the boundaries. The boundaries, I think, worked out very well majority member group in the Legislative Powers and Func insofar as election to this Convention is concerned. tions. He’s in the minority, we are all minority. However, insofar as the legislature is concerned, I think the former delegate to Congress, our President, will bear CHAIRMAN: Delegate Bryan, you got any views on this me out, that I have always felt that we should not have small subject? districts. I’ve always been in favor of running our lines on BRYAN: I think when we started the discussion of appor the old boundaries, land boundaries of Hawaii from the tionment some days ago I tried to explain that so far as the mountain down to the sea. Basically that was what was done committee could, they tried to consider the views of the on the island of Hawaii. Basically that was what was being members of the committee that were from the particular done in the committee report insofar as Maui is concerned. districts under discussion at the time. At that time the At present it’s true, it now stands five to one but it’s on a members of the committee of the fifth district were in favor geographical distribution. I think the fourth district is now of having the districts as presented by the committee. The split up. It follows geographic lines along the mountainsides members of the committee from the fourth district favored until they start going into the lowlands, and as soon as they larger districts, for that reason we have broken the fourth go into the lowlands, then they pick up a major street and district up into larger districts with greater representation follow that major street or landmark down to the ocean. Now from each district. That is about the only thing I can say that is the division. Originally there have been many who about it. thought the fourth district should be divided into about three In the fourth district some of the people felt their popu divisions. However, the committee in considering it, felt lation was more concentrated than in the fifth district and that the fourth district could very logically be divided into they felt for that reason they would like larger districts four, and that ~vas the result of the committee’s delibera with more representatives. Now that is not wholly true tions. because our districts twelve and thirteen have a fair con I for one have always liked, as I say, the districts with centration of population. However, those districts were more people in them, with more people to be elected from made to keep the fifth district or old fifth district uniform. the particular district. I never favored the running of all In the fourth district, as I recall, we went along with the those to be elected from the fourth district at large if we majority of the members of the fourth district that wanted were fortunate enough to have a number such as twelve or it in larger districts. even eighteen as is now contemplated. I might point out that in the fifth district, for instance, or the rural area, the LEE: I might add I believe there was a little confusion rural area would have had six votes. Now, that would seem and tiredness on the part of the members of the committee. a very appropriate district. However, those in the rural By that time there were many members who disagreed with areas felt that they would prefer to divide that into three the size of the Senate and House. When it came to Qahu sections, and it came down to a natural division, and it those members who were in the minority were pretty well seemed logical enough to have them divided as they desired. worn out. They knew that the group over there had the When it came into the fifth district, I think it was soon found votes and there was no use of saying anything, so that actually that with Kalihi electing three and then the next division very little consideration was given to the fourth district. Of running from the mountains to the sea, five could well be course, we had several ex-officio members who had a lot elected. However, in looking the situation over I believe of weight in the committee and that’s the way it went along, those that - - who were elected from the fifth district to this but as far as I’m concerned I made no expression. At this Convention soon found that by following the lines as laid out time I want to say this much, that I am definitely opposed for this Convention, instead of having five elected at large to the present plan of reapportionment in the fourth district. there, by dividing into two districts they got six and picked I have a substitute plan if this one doesn’t pass. up a man. As far as the fourth district is concerned I’m very much CHAIRMAN: The Chair will ask Delegate Porteus if he’ll in favor of having the larger number run. I know that in enlighten us on this. You’ve heard the proposed amendment many issues before a legislature it has sometimes happened to change the committee report? that a small area becomes somewhat irked with a position of a particular representative or person in politics. However, PORTEUS: Yes, Mr. Chairman. I don’t know why I am as time goes on usually the people get over their annoyances selected to speak on it other than I have for many years and swing back behind that person if he has rendered good had a great interest in the representation on Oahu insofar service. I believe that the division as the committee has as the legislature is concerned. For some years in the leg laid it out, while not the divisions that I would draw on the islature we attempted to find some formula under which we map, is nonetheless a reasonable division. I might point could have an apportionment to give more votes to Oahu. A out that they would elect five, and then in the center section scheme was suggested that we increase the members of the six, then four and then three. Insofar as the area electing House. We always ran into the difficulty, however, that when six is concerned, there is some prospect in the future that we came to draw the precinct boundaries, nobody seemed to with the housing area removed from Manoa ~,Talley that that be able to agree with the other. Two people could agree, any section might well in the future lose representation from that two people could probably compromise and agree but the central area up to the area out at Kuliouou, the last repre others couldn’t get along and I think it was much the same sentative district on this island. I don’t think there’s great way as far as this committee was concerned. prospect for increase. I think rather there is more chance It is true that there have been certain districts set up, for decrease. I believe the division of the committee to be which the legislature adopted in a bill authorizing this an equitable one. I think it’s perfectly workable and after Constitutional Convention. At that time we felt that it was all that’s the thing we want. better to follow the plan as more or less outlined in the Act I think the people from the fourth district, the senators before Congress without trying to draw any boundaries, and who have been elected will testify, have on the whole not it was said at that time that the Constitutional Convention insisted that their senators and representatives bring back 168 LEGISLATIVE POWERS AND FUNCTIONS to them particular bacon for their particular little area, but three in each of the groups, gives representation to the rather they let them play their politics not quite as close to fourth district which will provide distribution in terms of the ground as is played in some of the other areas. I am over-all ideas which are equally applicable in the fifth dis sure that the chairman of the committee will testify to such trict. I would therefore urge that this amendment be adopted. being the case over the many years of service that he’s If it is, then we are through with the districting of the fourth rendered in the Senate. There are others that I think have district - - fourth area and all of the combinations are taken experienced the same situation. For instance, when you are care of. afforded the opportunity to have kindergartens, we may poli tically leave the matter to the Department of Public Instruc CHAIRMAN: The Chair will put the question. tion and let the Department of Public Instruction allocate those kindergartens where the need is the greatest. Where TAVARE S: May I point out one more matter? Some as in certain of the other districts it is necessary that those statement was made that this Convention didn’t do so badly who are able to secure kindergartens actually mandate where about election. I don’t know which delegates were being they go, and they are forced to do that because if they don’t. referred to, but I would like to remind the delegates that then at the next election someone will stand up and say, “Had some of the delegates ran at large over the whole fourth I been there in that man’s place I would have brought you a district and didn’t run from the combinations. kindergarten to this particular school.” I think, Mr. Chair SHIMAMURA: May I ask specifically—I think the ques man, that the division is a reasonable one, a workable one. tion was asked in a general way—but what will happen to the I hope the committee will be supported. theory of equal proportions as far as this amendment is con DELEGATE: Question. cerned? CHAIRMAN: What we are debating is Delegate Roberts’ CHAIRMAN: That will not be violated, as I understand it amendment. Do you have anything to say, Delegate King? from Mr. Holroyde and from Delegate Roberts. KING: Yes. Delegate Roberts’ amendment would make SHIMAMURA: Will not be violated? an additional representative district in the fourth district. CHAIRMAN: Will not be. The Chair will put the ques I feel that that would throw out the equal proportions again. tion. The question is on the Roberts’ amendment. All those I would like to ask the chairman of the committee if that in fayor signify by saying “aye.” Contrary. The amendment subject had been considered. The minute you add or subtract is lost. an election district you disturb the balance in accordance with the principle of equal proportions. J. TRASK: Roll call. BEEN: That’s correct. You would have to figure the ROBERTS: Is it proper now to ask for a roll call? thing all over again. I might say that I am opposed to the amendment offered by Delegate Roberts. I believe in having CHAIRMAN: No. larger districts and larger representation where you can KAUHANE: I was somewhat in doubt because some yelled draw on more material to represent the people in the House loudly through the microphones. of Representatives. Under the proposal as it stands now some of the districts will elect six representatives, others CHAIRMAN: All right. All those in favor will please five. Under the Roberts’ amendment they’ll be reduced rise. Roll call must be put before the question is put, Dele to smaller figures and you draw, of course, on lesser mate gate Roberts - - asked for, rather. The Chair is asking for rial. a division on the Roberts’ amendment. All those in favor will rise. Contrary. The motion is lost. HOLROYDE: In fairness, however, to Dr. Roberts’ sug gestion, the system of equal proportions has been applied to LEE: I believe that in between the sentiments expressed it and it doesn’t affect the balance between the fourth and for the Roberts’ amendment and the committe’s amendment, fifth districts. there is a proposal that I have had printed and circulated CHAIRMAN: The Chair understands that. Are you ready among the members there, which I now offer as an amend for the question? ment wherein the divisions would be more in line with the rest of the divisions recommended by the majority of the AKAU: Before we vote, we didn’t do such a bad piece of committee. The fourteepth representative district as set work in getting some very fine people here on that Constitu out there would include Precincts 15, 16, 17, 21, 22, 23, tional Convention basis. I would say that it’s a very good etc., four representatives; fifteenth representative district, amendment. four representatives; sixteenth representative district, ROBERTS: I would like to suggest that careful thought be four representatives; and seventeenth representative dis given to this amendment. It does not change in any respect trict, three representatives; and the eighteenth representa the number of representatives allowed to the fourth district. tive district,three representatives. So that actually you The numbers to be elected from each of the districts are have the matter of size taken care of in the numbers of four. no smaller than those in the fifth district where they have You know that four will be the largest number of all of the two and three combinations. They certainly are not smaller divisions by this report, and it seems to me that instead of than the Hawaii one in Puna which only has one. I think we four representative districts in the fourth district you have are less subject to criticism if we follow the lines used for five representative districts. It seems to me that this the Constitutional ConventiOn. It seems to me that as you amendment is proper, and I, therefore, move for the adoption examine these lines, the basis for the meandering of the of the amendment. line has created some doubt in many delegates’ minds as to Amend Section 3 of Committee Proposal No. 29 in the the allocation and distribution of votes. I think the combina following respects: tions that I suggest, which have been found workable and have been used and cannot be regarded as improper, since they (1) Amend the definition of the fourteenth represent are being used for the fifth, provide for representation of ative district to read as follows: JULY 5, 1950 • Afternoon Session 169 “Fourteenth representative district: that portion DODGE: The proposal by Delegate Lee would retain of the island of Oahu included in Precincts 15, 16, 17, Nuuanu, of course, as the dividing line. The first, the 21, 22, 23, 24, 25, 26, 27 and 32”; Waikiki boundary of his fourteenth district would be along the boundary line that separates the fourteenth and the (2) Amend the definition of the fifteenth representa tive district to read as follows: fifteenth precinct. The amendment has been prepared so you can spot on the maps that you have before you the pre “Fifteenth representative district: that portion of cincts that are included in there, and it would run down to the island of Oahu included in Precincts 8, 9, 10, 11, King Street, which is the - - it uses the dividing lines that 18, 19, 20, and 31.” are now dividing the various precincts. It does not cut a- (3) Amend the definition of the sixteenth represent cross any precinct line. It comes down the dividing line of ative district to read as follows: the fourteenth and fifteenth precincts to King Street. The next representative district is that area that lies “Sixteenth representative district: that portion of makai of King Street and runs over here to, approximately, the island of Oahu included in Precincts 6, 7, 12, 13, Kapahulu. That area makai of King and ewa of Kapahulu 14, 34 and 36”; over to Nuuanu, the lower portion of that is one representa tive ~1istrict. The sixteenth representative district then (4) Amend the definition of the seventeenth represent would run from the boundary line that is roughly along Pablo ative district to read as follows: Avenue —just on the ewa side of Pablo Valley there —runs “Seventeenth representative district: that portion from there over to the boundary line between the fourteenth of the island of Oahu included in Precincts 2, 3, 4, and the fifteenth districts and stops again at Waialae. The 29, 30 and 33”; seventeenth representative district would take in the Diamond Head area up to Waialae, and straight out Kalanianaole out (5) By renumbering the eighteenth representative here. The balance or the eighteenth representative district district to be the nineteenth representative district; and would be what is now T on the committee proposal except (6) By inserting a new eighteenth representative dis that it includes a little area on the ewa side of Wilhelmina trict defined as follows: Rise and is on the mauka side of Kalanianaole Highway. The numbers that they would elect are shown in the amend “Eighteenth representative district: that portion ment prepared, and they have been worked out by equal of the island of Oahu included in Precincts 1, 5, 35 proportions. and 37.” DELEGATES: Question. CHAIRMAN: The Chair would like to ask Delegate Lee, you were a member of the committee. You did not dissent KAUHANE: I would like to ask Mr. Dodge to point out from the apportionment feature of the committee report, the twenty-second precinct on the map. did you? DODGE: The twenty-second precinct - - LEE: I’d like to remind the Chairman what I said pre KAUHANE: Would you move this way, Dodge, towards viously, that by the end of that session we had, everybody the rail so I can have it identified by you. The twenty-sec was pretty well worn out, and when the committee report ond precinct. I’ve got it here. I am only trying to show, was prepared it was just a question of either including in the when he points out the twenty-second precinct, and then I minority - - signing minority side or the majority side, and would like him to show me the fifteenth precinct. I signed on the minority side although I didn’t specify as to this particular provision. However, I believe that consider DODGE: The fifteenth? ation can be given by the Committee of the Whole at the pre KAUHANE: That’s right. sent time. I’ve taken this matter up with Mr. Dodge, and Mr. Dodge informs me there would be no loss in representation DODGE: The fifteenth precinct is roughly this area in under the theory of equal proportions. Perhaps if the com here. mittee would want enlightenment on it, I’d like to call on KAUHANE: Well, my question is this, on Mr. Lee’s Mr. Dodge to point out the division on the geographical map amendment on the fourteenth representative district. Al there. though muk~h has been said here about gerrymandering, that CHAIRMAN: I think it would be more to the point at this we are not attempting to gerrymander the precinct combina time if you’d summarize briefly what this does. tion, but it is clearly shown when Mr. Dodge pointed out the twenty-second precinct, which is Central Grammar School A. TRASK: Point of order. on Emma Street, and then he goes to Wilder and Kewalo CHAIRMAN: Delegate Lee has the floor. Streets, the fifteenth precinct at Wilder and Kewalo, we are somewhat stretching too far apart from precincts that are A. TRASK: I’ll second the motion in the meantime so that so close. I think that the lesser of the two evils, of the the debate can continue, Mr. Chairman. taking the committee proposal and recommendation of the CHAIRMAN: Very well. It’s been moved and seconded precinct combinations or the precincts as submitted by the that Section 3, Committee Proposal No. 29 be amended with committee and the one by Representative Lee, that I’d respect to the fourteenth to the eighteenth representative sooner accept the amendment that was offered by Delegate districts inclusive. Roberts because these precincts, as stated in the combina tion of the election of the delegates to the Constitutional LEE: I’d like at this time to call on Mr. Dodge to point Convention, is so close, and that the people, if the people are out the division where the fourteenth representative district to be considered in this instance, would be given the repre would be, where the fifteenth representative district would sentation that they really need. That’s only the first ques be, and where the sixteenth representative district would be. tion that I’m asking now. CHAIRMAN: I’d suggest you take a pointer and indicate, LEE: I wonder if Delegate Kauhane might yield to this Mr. Dodge. point? Delegate Roberts’ motion has already failed. 170 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: That’s right. What we would like to be CHAIRMAN: Where do you insert it? enlightened on is the advantage of your amendment over LEE: Insert it after sixth paragraph, after “precinct five.” the proposal. CHAIRMAN: Insert the number, 29. LEE: In the fourth district you have to start from Nuu anu and start moving towards the waikiki direction. Which LEE: So that the representatives will remain as they ever plan you take you have to move towards the waikiki are in the proposed representative district, so that this direction, and moving to Wilder and Kewalo is the farthest will not violate the method of equal proportions. extent that area in the twenty-second precinct—as pointed out by Delegate Kauhane —goes to, and from then on you CHAIRMAN: You’ve checked that with Mr. Dodge, our start with another combination. authority on that question? HOLROYDE: One point in regards to Delegate Lee’s LEE: Yes, with Mr. Dodge; the experts, Mr. Bryan and proposal is the fact that it throws out of kilter the delicate Mr. Holroyde, Mr. King and Senator Tavares. balance between the fourth and fifth districts. He gives the fifth district one more representative under his proposal. CHAIRMAN: They’re all in accord with that statement? I don’t know whether he did that purposely or not, but under Are you ready for the question? The question is on the - - equal proportions that happens. Delegate King. CHAIRMAN: Is that correct, Delegate Lee? KING: The perfected changes in the amendment is agreed LEE: That is not my understanding, because you have to, but that’s all? four, eight, twelve; and three, three, fifteen, eighteen as the CHAIRMAN: Oh, yes. Oh, yes. representation in the fourth district. KING: I would like to speak briefly against the amend BRYAN: If that’s correct, Delegate Lee’s proposal is ment or change. Turn to the map, those of you who have out of order. It does not follow the method of equal pro maps. Delegate Lee’s amendment would make a makai rep portions. His proposal - - resentative district from Nuuanu Avenue to Kapahulu Ave CHAIRMAN: Well, the issue we’d like to find out now is nue below King Street, taking all of the city, the old district whether it does or does not follow the method of equal pro of Kakaako, Kewalo, McCully Tract and Waikiki, and then portions. If it does not then, like Delegate Shimamura’s have Manoa and Pauoa, Makiki put together, then Kaimuki, amenglment, the Chair will rule it out of order. and then end out in the small district up here. There’s no advantages proposed by his amendment over that submitted BRYAN: May I speak on that? by the committee, and it seems to me that the amendment CHAIRMAN: Yes. should not carry. LEE: Go ahead, proceed, go ahead. LEE: If there’s no further debate, I think I’ll - - BRYAN: I understood at first that it did and in checking CHAIRMAN: Delegate Lee may close the debate. the figures, according to Mr. Dodge, there’s been either a LEE: May I close the debate here? I believe most of misprint or an error made in the proposal before us. It should the votes are already cast in the minds of the delegates. read under paragraph six “the eighteenth representative What this amendment really actually does in my opinion is district, two representatives,” which means that it would give the common man a chance to be elected in the fourth do as Delegate Holroyde suggested, throw the balance be district. tween the fourth and fifth districts out somewhat. CHAIRMAN: All those in favor of the amendment - - LEE: I understood it that under the eighteenth represent ative district there would be three representatives under SILVA: Before you go any further I want to ask Senator the method of equal proportions. I was informed of that Lee a question. What does he consider the other fellow? by Mr. Dodge. Now, if there is any change in that, of course, Who’s this common man and who’s the other fellow? Is I have to reconsider my amendment. If this information the other fellow a freak or something of that sort? given to me was false he should at least have.let me know. CHAIRMAN: That question’s out of order. The Chair CHAIRMAN: Chair will declare a 2-minute recess. Will is about to put the question. All those in favor of the amend you find that out, Delegate Lee? ment signify by saying “aye.” Contrary. The amendment is lost. (RECESS) LEE: Roll call, Mr. Chairman. The vote was pretty close. I demand a roll call. LEE: I’d like to say that there was a slight error in the location of the twenty-ninth precinct which is in the seven CHAIRMAN: All those in favor will please rise. In favor teenth representative district under paragraph four. of the amendment. CHAIRMAN: You have some changes in your amendment? LEE: How about a roll call, Mr. Chairman. Aren’t we entitled to a roll call, Mr. Chairman? LEE: Yes. If the members will consult the amendment you will notice that in paragraph four it includes the twenty- CHAIRMAN: No. ninth precinct. Well, the twenty-ninth precinct was supposed LEE: Well, then the Chair will ask all those in favor to to be down at the bottom to be included after the word “five,” rise. Is that it? 1, 5, 29, 35 and 37.” CHAIRMAN: I’m now putting the motion again. All those CHAIRMAN: Just a minute, Delegate Lee. You first in favor will please rise - - in favor of the Lee amendment. strike out “29” in paragraph four, is that right? Contrary. The Chair is still in doubt so the Clerk will please LEE: Yes. call the roll? JULY 5, 1950 • Afternoon Session 171 Ayes, 23. Noes, 33 (Apoliona, Ashford, Bryan, Castro, an amendment but have the record of the Committee of the Cockett, Corbett, Crossley, Dowson, Fong, Fukushima, Whole indicate that the Committee on Style may correct it. Gililand, Hayes, Holroyde, Kage, Kauhane, Kellerman, Kido, There is another further matter. The State of Hawaii King, Lai, Larsen, Lyman, Ohrt, Porteus, Richards, Sakaki will include not only the islands we have been discussing, hara, Silva, Smith, St. Sure, Tavares, Wist, Woolaway, Ya but a lot of little islands such as Midway, Johnson, Palmyra, mauchi, Anthony). Not voting, 7 (Kawakami, Kometani, Loper, and the Organic Act—not the Organic Act, but the statutes Mizuha, Phillips, Sakai, White). of Hawaii—in defining the county boundaries do mention all CHAIRMAN: The motion is lost. other islands not otherwise assigned, and I suggest the Committee on Style be instructed to add that on to the KAUHANE: I move that the committee rise, report pro seventeenth election district, so that the seventeenth elec gress and ask leave to sit again. tion district will include Palmyra, Johnson Island, Midway. And whoever runs from that district will have the pleasure PORTEUS: I don’t think that the motion has een put of campaigning among those islands. yet to adopt the proposal as reported by the committee. I move — — CHAIRMAN: All the cats and dogs go into the seventeenth, is that right? There’s a motion for the adoption - - CHAIRMAN: Before that is done, the Chair on re-exami nation of the notes must state that it was in error a few BRYAN: I would like to speak to the motion. I might minutes ago in regard to Delegate Shimamura’s motion. suggest that they add those miscellaneous islands to Koolau That motion was in fact made prior to the adoption of the so they could pick up another representative. equal proportions principle and therefore the Chair was DELEGATE: Question. in error. There was a date here that the Chair was con fused about and the Chair will be inclined to reverse itself CHAIRMAN: The Chair will put the question. All in if the question is pressed at this time. favor signify by saying “aye.” Contrary. Carried. HOLROYDE: Point of order. I think there was a motion SERIZAWA: I move that we adopt the paragraph on the to adopt the fourteenth section ahd Delegate Lee’s amend eighteenth representative district. ment was an amendment to that. Was it not? I don’t think C. RICE: I second that motion. he could have presented that without having something before the house. CHAIRMAN: Any discussion? It has been moved and seconded that we adopt the paragraph relating to the eight CHAIRMAN: The Chair was calling attention to a pre eenth representative district. All those in favor signify by vious ruling in regard to one specific district, .the twelfth saying “aye.” Contrary. Carried. and thirteenth, that Delegate Shimamura was pressing and the Chair ruled him out of order. CHAIRMAN: Section 4. Will you proceed, Delegate Heen? PORTEUS: I think I was in error in asking for the PORTEUS: Is it in order to ask for adoption of the entire adoption of the entire section. I think really we were only section? on the fourteenth representative district. I think if we take CHAIRMAN: I should think that would be done when we those one by one we would clear the record. I move for complete the work on the article. the adoption of the fourteenth representative district. SAKAKJIHARA: I think we deferred to the end of this HAYES: I second it. section, Section 3, the paragraph relating to the second CHAIRMAN: All those in favor signify by saying “aye.” representative district. Contrary. Carried. CHAIRMAN: The second representative district? That was adopted. APOLIONA: I move for the adoption of the fifteenth representative district. SAKAKIHARA: No, that was deferred ‘til the end of the section. LAI: I second that motion. CHAIRMAN: You’re quite right. You’re quite right. CHAIRMAN: Any discussion? All those in favor signify by saying “aye.” Contrary. Carried. HEEN: It was the fourth. LAI: I move to adopt sixteenth representative district. CHAIRMAN: It was the fourth, not the second. The Chair will entertain a motion that the paragraph relating to the APOLIONA: I second that motion. fourth representative district be adopted. CHAIRMAN: It has been moved and seconded that the KAUHANE: I so move. paragraph relating to the sixteenth representative district be adopted. All in favor signify by saying “aye.” Contrary. DELEGATE: I’ll second the motion. Carried. CHAIRMAN: It has been moved and seconded that the KELLERMAN: I move to adopt the seventeenth repre paragraph in Proposal 29 relating to the fourth representa sentative district. tive district be adopted. HAYES: I second that motion. SILVA: There’s an amendment, I think, on the desk of every delegate here. CHAIRMAN: Is there any discussion? CHAIRMAN: Read your amendment. KING: There is a matter which I think the Committee on Style can correct. The seventeenth representative dis SILVA: The amendment amends Committee Proposal 29, trict comprises Kahala and Aina Haina. Aina Haina is a Section 3. tract name and not a geographical name and should be Fourth representative district: that portion of the written Waialae or Wailupe. I do not want to suggest it as island of Hawaii known as the second representative 172 LEGISLATIVE POWERS AND FUNCTIONS district, precincts 16, 1, 2, 3, 4, 5, 6, 7 and 8 inclusive, HEEN: Might I ask the last speaker if all these precincts one representative. will be in the districts of North Kohala and South Kohala, in one part? And all the other precincts in the districts of That gives you a total of 2,229 - - 49 votes. North Kona, South Kona and Kau? Fifth representative district: that portion of the is SAKAKIHARA: No, sir. The fourth representative dis land of Hawaii known as the second representative dis trict will include from Kailua, North Kona, to South and trict, precincts 9, 10, 11, 12, 13, 14 and 15 inclusive, North Kohala, inclusive, and part of North Kona, South Kona one representative. and the district of Kau will comprise the fifth representa That is 2,918 votes. That is similar to the districts that tive district. we had for the Constitutional Convention in which Sakai was CHAIRMAN: if there is no other discussion, the Chair elected and Kawahara was elected, without the two at large. will put the question. You have two representative districts in that one district and that’ll give a better chance for the smaller districts to KAWAHARA: I am not too strongly opposed to this be represented. Otherwise you are going to have your con amendment, except for this reason, that some of the argu centration of voters in both the Konas, and Kau, and the ments presented are rather inconsistent, if you will notice Kohalas will probably be out of the picture. That falls in the map of West Hawaii there, you will notice that there are line with the idea of giving Puna one representative district three distinct geographical areas; Kau, the districts of North and Hamakua one representative district. and South Kona, and the districts of North and South Kohala. You on the island of Hawaii, you’ve gone and reapportioned In the districts of North and South Kona there is something one side of the island as far as senators and representatives like 2,300 registered voters. In the district of Kau there are concerned; then you go to the other representative dis is something like 1,100; the difference of something like tricts and you say in that representative district there shall 1,100 voters. By splitting Kona in two it is very convenient, be no reapportionment in the House nor in the Senate, both certainly, to throw half of Kona into Kau and throw the rest shall be at large from the very same county. Now, I just of Kona into Kohala. if that’s the will of the Convention, wanted to be a little bit consistent not too much, but I’d like that’s okay with us. to point out that on the island of Hawaii you’ve gone over to I would have to oppose it on this ground, that we are not Puna and given them one representative with 1,800 votes. following the intention, for example, of what we started out In West Hawaii with 5,000 some odd votes, you say these to do when we gave Puna one representative. In order to outly~ng districts of North and South Kohala should not have be consistent it would be necessary to give Kau one representation, they should run at large. North and South representative and Kona one and Kohala one. By splitting Kohala has more votes than the district of Puna. Yet, you the whole district up in two we are splitting Kona up. Kona allow Puna to have one and you don’t allow North and South itself is a geographical and economic unit; Kau likewise is Kohala with these few precincts in Kona which gives 2,249, a geographical and economic unit; and Kohala likewise is and that is the purpose of the amendment. I now move for a geographical and economic unit. However, because of the the adoption of the amendment. fact that we can’t get more than two, I see no reason why we should arbitrarily draw a line somewhere between North SAKAKIHARA: I second the motion. and South Kona and say this hail goes to Kohala and the other half going to Kau. For that reason I’m opposed to this CHAIRMAN: It has been moved and seconded that the amendment. amendment be adopted. The Chair will put the question. CHAIRMAN: Delegate Silva, would you like to close the NIELSEN: That will put 2,049 in one district and debate on this? 3,119 in the other. Will that agree with reapportionment? I would like to ask the chairman of the Legislative Commit SILVA: Yes, I would. That is not true as far as the tee. arbitrary line dividing both Konas. When we elected these delegates to the Convention, Mr. Kawahara was elected. He CHAIRMAN: Delegate Heen or Delegate Bryan, would ran from Kau up and through part of North Kona, Keauho, you answer that? with Holualoa thrown in there; and Mr. Sakai from North HEEN: No, I can’t tell you offhand. That would have to be and South Kohala, including Waimea and Kawaihae, Ponohula figured out. and Kalaua. Ponohula has 32 votes, Kalaua 82 and Kailua 250 somewhat, votes. That was thrown in with the Kohalas HOLROYDE: Basically, they’ll each get one and accord and that was one representative to this Convention. Mr. ing to Mr. Dodge that will be allowable under equal propor Nielsen and I ran at large. tions. They will each get a basic one. Now, I’d like to give the strong economic districts of CHAIRMAN: Are you ready for the - - Delegate Nielsen. that community representation rather than arbitrarily throw them into a part where they have no representation at all. NIELSEN: That places half of Kona and Kau with 3,149, The wealth of West Hawaii is dependent upon the Kohalas and higher than any other in the whole Territory. I think at Kau. They are the biggest taxpayers in the community and large is the answer here and I’m going to vote against the they should have a crack at the House of Representatives amendment. The sentiment over there in Kona and Kau is whether they elect one or - - they should have some voice. all to be at large. That was the reason that 1 put this amendment in. And it only takes 200 somewhat votes from Kona, and even if you SAKAKIHAR.A~ Mr. Chairman, correction. The fourth leave the Konas by themselves, then the Kohalas in compari representative district, including precincts 16, 1, 2, 3, 4, son with Puna, just the Kohalas alone, North and South Koha 5, 6, 7 and 8 will have 2,249 votes. The fifth representative la, has 1,823 votes, just like Puna. if it is the wishes or if district, that portion of the island of Hawaii known as the this is true then I would be only too glad to let North and second representative district, precincts 9, 10, 11, 12, 13, South Kohala elect one representative and all of the Konas 14 and 15 will have 2,918 votes, not over 3,000. and the Kaus elect the other representative, if they will do JULY 6, 1950 • Afternoon Session 173 that it’s okay with me. If they don’t want to cut any part of JULY 6, 1950 • Afternoon Session Kona at all then I say surely North and South Kohala has suff i cient votes to elect one representative, just like Puna. They have 1,823 votes. CHAIRMAN: The Chair will put the question. The ques CHAIRMAN: Committee of the Whole is in session. tion is on the amendment proposed by Delegate Charles Silva HEEN: We are now considering Section 4 which relates which would amend the paragraph relating to the fourth rep to reapportionment of the House of Representatives. I now resentative district, dividing it in two. Are you ready for move that we approve the first sentence of that section which the question? All those in favor of the amendment signify reads, “On or before June 1 of the year 1959 and each tenth by saying “aye.” Contrary. The amendment is lost. year thereafter, the governor shall reapportion the members DELEGATE: Roll call. of the House of Representatives in the following manner.” CHAIRMAN: The Chair will rule you’re not entitled to a HOLROYDE: Mr. Chairman, I second the motion. roll call unless it is requested before the Chair put the ques C. RICE: I would like to know why they picked ‘59 instead tion. of ‘60, after the census. I think ‘60 would be better. KAUHANE: Mr. Chairman, you have twice deviated from HEEN: The reason for that, we were basing the reappor your rule. In one instance you said the motion carried on a tionment on the number of registered voters, the population voice vote, and you insisted on the roll call. Secondly you of registered voters, instead of on the population as deter took a standing vote, and you again was in order - - mined by the federal census. CHAIRMAN: It’s because my arithmetic differed from C. RICE: Well, in ‘59 they have an election, don’t they? the Clerk’s. HEEN: That’s correct. KAUHANE: No, I think your arithmetic was all right, only you wanted to satisfy an individual. C. RICE: I asked the deputy county clerk over here how long it took him to take the names off of people that didn’t TAVARES: I move for a division of the house. There vote. It took him nearly two years. isn’t - - HEEN: No, ‘59 is no election. CHAIRMAN: All those in favor will please stand? In favor of the amendment of Delegate Silva. Against? The C. RICE: What? motion is carried. HEEN: The election is in 1960. KAUHANE: See what he’s done, Mr. Chairman? C. RICE: ‘60? CHAIRMAN: Thank you, Delegate Kauhane. HEEN: So there’s considerable time from June 1, 1959 NIELSEN: It’s all right with Kona because we’ll probably till the time of election. elect both of them right from Kona this way. C. RICE: I was just thinking maybe Delegate Roberts KING: Mr. Chairman, a minor point that the Committee was going to bring in the one on population. I think it’d be on Style might take into consideration. The precincts enu fairer, population. That’s why I brought up ‘59 before it merated must be tagged with some year. “Precincts 9, 10, passed. 11, 12, 13, 14 and 15 inclusive as delineated in the Secretary ROBERTS: I have an amendment to propose which I dis of the Territory’s Proclamation of 1948” or some other - - cussed in our previous consideration of this question. CHAIRMAN: There’ll have to be reference made to the CHAIRMAN: Amendment to the sentence? schedule attached like the other sections. ROBERTS: Amendment to this section, Section 4. HEEN: That’s correct, Mr. Chairman. It can be taken care of in the schedule. CHAIRMAN: The Chair will rule you out of order at this time unless it relates to this sentence. KING: Another minor point. The numbering of the differ ent paragraphs will have to be corrected. ROBERTS: Well, this sentence would involve that, be cause if you are going to use the population figures of the CHAIRMAN: They will have to be renumbered in accord census you have to use June 1, 1961 as you have the census ance with these amendments. Section 4 is before the house. figures of 1960. I was going to move the subsequent language on population instead of voters registered, but if you are DOWSON: I move we adopt Section 3, as amended. going sentence by sentence, I now move, Mr. Chairman, that in the second line of Section 4, “June 1 of the year 1959,” SAKAKIHARA: I second the motion. delete the figures “1959” and substitute “1961.” CHAIRMAN: It has been moved and seconded that Section AKAU: I second that motion. 3, as amended, be adopted. Are you ready for the question? CHAIRMAN: It has been moved and seconded that the All those in favor signify by saying “aye.” Contrary. year “1961” be substituted for “1959” in the first sentence Carried. of Section 4. Any discussion? SAKAKIHARA: I now move that we rise and report pro BRYAN: I think it would expedite matters perhaps if we gress and ask to sit again. would dispose first of the question of principle, whether ‘it’s going to be on population or on registered voters, then the FONG: Second the motion. amendments could be made more orderly and I think the CHAIRMAN: Is there any discussion? All those in favor entire section could be considered in a more orderly fashion. signify by saying “aye.” Contrary. Carried. I’d like to ask Delegate Roberts if he would withdraw his 174 LEGISLATIVE POWERS AND FUNCTIONS motion in order that we might make the motion that reap CHAIRMAN: It has all been pretty well aired at the last portionment shall be on the basis ekher of registered voters debate. The Chair would like to put the question. or on the basis of population. FUKUSHIMA: Section 4 does not deal with the immediate CHAIRMAN: I suggest that we take a sense vote on whether problem. This is a question of reapportionment in 1959, or reapportionment shall be based upon registered voters or according to the amendment proposed by Delegate Roberts, population, if Delegate Roberts will withdraw his motion and 1961. make the suggested motion. CHAIRMAN: No, that’s withdrawn, that was withdrawn. ROBERTS: I’ll withdraw the motion, although I was said out of order by the Chair previously when I was going to FUKUSHIMA: That is correct, but if we are to assume move that. that we are to reapportion the legislature on the basis of population, this is projected to 1961 and if is not, and it CHAIRMAN: The Chair allowed you to proceed upon your will not, hamper what we have done so far. We’ve done assurance it related to the first sentence, you will recall. only Section 3, which is on the basis of registered voters; that is because we could not get the figures at this time. ROBERTS: I discussed this question before and I don’t However, in 1961, upon proper request I am sure that the think it’s necessary to repeat the general discussion with federal census will give us the figures that we want as far regard to the desirability of using population instead of as population is concerned, so the point that was made by registered voters for your reapportionment. President King is not correct. CHAIRMAN: For the sake of the record, have you moved CHAIRMAN: Are you ready for the question? that we adopt the population figures for reapportionment? HOLROYDE: Just one minute before we close this. The ROBERTS: I will so move. delegate’s first part of his statement was correct. It doesn’t CHAIRMAN: Is there a second? affect Section 3. However, he says, “I am sure that we can get these census figures taken the way we want them by FUKUSHIMA: I second the motion. district.” Now what assurance can he give us that that’s CHAIRMAN: Proceed. so? I’m a little hesitant about that part of the proposition. HEEN: I would like to find out whether this is population CHAIRMAN: I think his view is k’s done elsewhere and generally or citizen population? there is no reason why we shouldn’t do it here. / ROBERTS: My basic premise and argument last time FUKUSHIMA: That is correct, Mr. Chairman. It is was that the legislators represent all of the people in the done all over the 48 states; there’s no reason why we particular area from which they are elected. Therefore, can’t have it done here. population includes all individuals. CHAIRMAN: Are you ready for the question? All in CHAIRMAN: Aliens as well as citizens? favor signify by saying “aye.” Contrary. Lost. ROBERTS: All, that is correct. The question is now on the first sentence of Section 4. Are you ready for the question? All those in favor signify CHAIRMAN: Are you ready for the question? The ques by saying “aye.” Contrary. Carried. tion is whether or not reapportionment shall be based upon population rather than registered votes. All those in favor - - HEEN: I now move that this committee adopt the second sentence of Section 4, which reads as follows: KING: The reason the committee didn’t adopt population The total number of representatives shall first be re was that you cannot get population figures for individual apportioned among four basic areas; namely, (1) the is election districts. You get them for geographical districts land of Hawaii, (2) the islands of Maui, Molokai, Lanai and for islands, but you cannot get them - - for instance, and Kahoolawe, (3) the island of Oahu, and (4) the islands the setup in Kalihi, Kapalama, Nuuanu and in the fourth of Kauai and Niihau, on the basis of the number of voters district. registered at the last preceding general election in each Now there’s another point why population is not necessary. of such basic areas and computed by the method known I had a study made by the Legislative Reference Bureau and as the method of equal proportions, no basic area to re found that the percentages of votes cast or votes registered ceive less than one member. and population did not differ too materially, and as a matter of fact, the population percentages for the other islands, the CHAIRMAN: Is there a second? neighbor islands, are less than the votes cast. If we are HOLROYDE: I second that. going to use population and then use the system of equal proportions, the other islands might suffer. The island of CHAIRMAN: Any discussion? Hawaii for instance cast in 1948, 18,500 votes. That was C. RICE: I’d like to change the word “registered.” 17.2 per cent of the total votes cast. The population on the Where it says “number of voters registered,” “number 1950 census is only 14.5 per cent. The island of Maui cast of voters voting in the last preceding election,” then we 12,616 votes which was 11.7 per cent, and the population could go down - - figures, Maui county has only 10 per cent of the total popu lation of the terrkory. The same is true of Kauai. They CHAIRMAN: You mean the number of votes cast? cast 7.3 per cent of the votes; they have only 6.4 per cent C. RICE: Number of votes cast, or voting in the last of the population. general election, cast. I have the last general returns, of So the committee was wisely guided in using registered ficial tabulation. voters instead of population. The figures I quoted were for votes cast in ‘48 but the same is true of the registered CHAIRMAN: May I understand your amendment? On votes of 1950; therefore, I feel the amendment would upset the fourth line of Section 4, you would delete “voters regis what we’ve already done in regard to reapportionment. tered” and insert in lieu of that “votes cast”? JULY 6, 1950 • Afternoon Session 175 C. RICE: Yes, in the last preceding general election. go to vote. Those are the people who are to blame, not those CHAIRMAN: “At the last preceding,” and the language who are registered to vote. They want to go to work - - to will be the same. Proceed, Delegate Rice. Is there a vote, and I think this Convention here should give that thought second to that? some consideration. Blame the people who keep the people from the polls, not the people themselves. NIELSEN: I’ll second the motion. NIELSEN: I am very much in favor of this amendment C. RICE: West Hawaii has the biggest number of voters - - because I think it’s going to teach Americanism. I think it’s of registered voters. They vote 90.8 per cent, Kauai votes a step that the other states would like to take right now and 90.6 per cent, East Hawaii votes 90 per cent, fifth district I think if we can put a premium, as Charlie Rice says, on 87.6, and the fourth district 84.99. Is Dr. Larsen here, I the men and women that will go to the polls and vote, it will mean Delegate Larsen? He told me there must be an mean that they get a bonus in going to the polls and electing epidemic and so forth, if they don’t vote. I want him here the people they want to serve. I am fully for it. because I think there was an epidemic. TAVARES: I am opposed to the amendment. I think the CHAIRMAN: Will the Sergeant-at-Arms get Dr. Larsen? sponsor should withdraw it, in the light of just what Delegate C. RICE: The last election here for the delegates to the Bryan alone said. Too much can happen by some fortuitous Convention, 10,000 stayed away. circumstances, acts of God and so forth that would unfairly discriminate against an area. If you are going to have an TAVARES: I understand Dr. Larsen is addressing a average figure over the last 10 years, that would be a differ meeting of physicians this afternoon. I don’t think he should ent thing; but if you’re just going to take one particular day, be disturbed. and what happened on that particular day, which could be CHAIRMAN: Will the Sergeant-at-Arms stop the messen influenced by so many different considerations, I think it is ger? unwise and I think the sponsor ought to withdraw it. C. RICE: Then in the last general election 87 per cent CHAIRMAN: I don’t think he will but the Chair will put stayed away. I think the people that take an interest to go the question. out and vote, they are the ones who should be counted. It ARASHIRO: May I ask the Republican party leader and isn’t just because it makes some of the other districts the Democratic party leader the reason for their choosing higher but I think the votes cast are the ones. It’s very the number for delegates to the Convention on the basis of easy to do it, just as easy as taking the registered voters. votes cast for the Delegate to the Congress of the United They have a record. You have a record of how many votes States or based it on that? in each district are cast and the dividing of precincts is very easy, and why not put a premium on the fellow who CHAIRMAN: The Chair doesn’t feel that that’s germane goes to vote? to this issue. As I understand Delegate Rice, they have a high number of votes cast over on Kauai and therefore he’s CHAIRMAN: Any further discussion? If not, the Chair in favor of his amendment. Is that correct, Delegate Rice? will put the question. BRYAN: I think that Delegate Larsen’s point was not C. RICE: No, that’s not right. You shouldn’t put words without foundation. I’d like to ask the members from the into my mouth. I know you are trying to put cards in my Hilo area what the votes cast would have been had there hands but that doesn’t work with words. No, I think this is been an election the day of the tidal wave. A registered right, don’t make any difference, but it’s true that the man votes would still be a good figure that we could go by, but who goes out to vote should be counted and there is no - - had the general election fallen on that day or had the tidal A. TRA5K: Point of order. If the - - wave come on general election, how many representatives would they have in the House for the next 10 years after CHAIRMAN: State your point of order. that? A. TRASK: If the delegate of Kauai - - I’m sure he wants CHAIRMAN: The Chair will put the question, the ques the vote down here. The delegates down here would like to tion is on the - - hear him. HEEN: I am opposed to the amendment. The committee C. RICE: I couldn’t quite hear. Oh, can’t hear. I was considered these various problems; votes cast, registered afraid my voice was too loud. No, I sincerely think that this voters, population, citizen population and so forth. There should be the way to select them. It isn’t that just a few of is only one state that uses this measure of votes cast for the outside islands gain by it, they don’t gain much. But the governor, that’s Arizona, and that’s only for the House there’d be no subterfuge, there’d be no leaving dead men of Representatives. Now, Massachusetts uses legal voters, or anybody else on the list. We know who comes to vote both for the House and the Senate. Rhode Island uses quali and it’ll be an encouragement for everybody to get the fied voters for the House. Tennessee, qualified voters for people out to vote. You’ll have a bigger percentage of voters both the House and the Senate. Texas, qualified electors voting on that day and it’s a great encouragement and I think for the Senate. it’s fair and square and should be adopted as amended. APOLIONA: I am against this amendment and at the DOl: I am against the amendment proposed. The argu same time I would like to submit to the honorable Delegate ment advanced in favor of the amendment to the effect that Rice from Kauai some facts of maybe why the Oahu people the registered votes carry many dead voters, I think is show a small percentage of votes cast. I wish, Mr. Chair invalid because under the present system, I believe, should man, that this delegation here - - delegates here do not a voter fail to go and vote, his name is dropped from the blame the people who register to vote. They are ready to register at the next general election. The argument also at all times, but the people who are really to blame for advanced that using the basis of votes cast will make better keeping those people away from the polls are these business Americans, also I think does not carry much weight. Reason houses in town who keep the stores open so the people can’t for that is reapportionment comes around once in ten years 176 LEGISLATIVE POWERS AND FUNCTIONS and I don’t think that is incentive enough to make good Amer ration in this particular paragraph. This would in effect icans. bring those other islands and islets within Oahu. Are you ready for the question? All those in favor signify DOWSON: I am against the amendment because should by saying “aye.” Contrary. It’s carried. it pass it would be unfair to certain areas which are adjacent Chair will now put the question on the section. to military installations. I believe in times of emergency, these people who work there in these military installations HOLROYDE: I move that that section now be adopted as would not be able to go and vote. They are patriotic and amended. sticking to their installations and we can’t very well call HEEN: Second the motion. them down for not voting. CHAIRMAN: It has been moved and seconded that Section DELEGATE: Question? 4-A, as amended, be adopted. Any discussion? All those in CHAIRMAN: The question is on the amendment of Dele favor signify by saying “aye.” Contrary. Carried. gate Rice, who would substitute “votes cast” for “register HEEN: I move that sub-section B of Section 4 be adopted ed voters” in the fourth line of page 5 of Committee Proposal down to - - no, all of that section. No. 29. All those in favor signify by saying “aye.” Con trary. Afraid it’s lost. CHAIRMAN: The whole section, Delegate Heen? On the copies before me I note the word “ratio” has been taken out RICHARDS: I have another amendment to offer. The and “quotient” inserted. Is that - - matter was brought up yesterday in regard to the other is lands that are to vote along with one of the groupings on HEEN: That’s correct. the island of Oahu. Now, if they are to vote with that par CHAIRMAN: Should that correction be made on all the ticular grouping, they should also be included in the matter prints before the delegates? of reapportionment. Ther efore, I should think that line three should be amended to read: “the island of Oahu and HEEN: That’s correct. the other islands not specifically enumerated.” CHAIRMAN: That occurs in two places. Paragraph B, CHAIRMAN: I think we agreed when that was last raised the very end of the paragraph, the word “ratio” should be that that would be taken care of by the Style Committee. taken out and substituted “quotient,” and nine lines above that where the same word appears, take out “ratio” and insert RICHARDS: But, Mr. Chairman, I think that this is a “quotient.” Is there a second? little bit different. That was as far as Section 3 was con NODA: I second the motion. cerned but this is Section 4, a different section, and has to do with reapportionment and I think that a note should def i TAVARES: To be perfectly clear that should be rein nitely be made that those islands should be included in forced as a motion to amend, and I second Judge Heen’s reapportionment. amendment. CHAIRMAN: Does the chairman of the committee have HEEN: I second Delegate Tavares’ motion. any views on that? TAVARES: All right, I’ll make the motion, Mr. Chair- HEEN: I think that’s a good amendment. man. TAVARES: I second that motion. CHAIRMAN: It has been moved and seconded that the substitution of the word “quotient” in the two places, indi CHAIRMAN: What are the words of your amendment, cated by the Chair, be adopted. All those in favor signify Delegate Richards? by saying “aye.” Contrary. Carried. RICHARDS: I drafted them very rapidly. I don’t know HEEN: I now move that this sub-section B of Section 4, whether that’s proper or not, but my suggestion is, “and be adopted as amended. the other islands not specifically enumerated,” in view of the fact that all the other islands that are in the different HOLROYDE: I’ll second that. groupings are specifically enumerated. ASHFORD: I move to amend that motion by striking out CROSSLEY: I understand that will go in number 4, “the the last sentence. islands of Kauai and Niihau and such other islands as not CHAIRMAN: Beginning with the word “Upon,” Delegate enumerated.” Ashford? CHAIRMAN: No, you’re in error on that. ASHFORD: Yes. HEEN: Question, Mr. Chairman. All these other islands WIRTZ: Point of information. will be tied to Oahu? CHAIRMAN: Hearing no second, the Chair will be obliged CHAIRMAN: Chair has already noted that on the amend to put the question on the motion. ment, Delegate Heen. Are you ready for the question? I think we can vote on this question and the actual language WIRTZ: Point of information. When you are referring can be left to the Style Committee. The sense of it is clear to section B do you mean that paragraph or all of the rest of enough. it all the way over to Section 5? A lot of us don’t know what you’re talking about, “the last sentence in sub-section B.” ARASHIRO: Point of information. Are we now voting only on the Section 4, paragraph A? HEEN: I amend my motion and confine that to the first paragraph of sub-section B of Section 4. CHAIRMAN: We are now voting on the Section 4, para graph A. Delegate Richards has called attention of the body CHAIRMAN: All those in favor of adopting the first para to a technical defect in the description, or the omission graph of Section 4, sub-section B as amended, signify by from the description of the other islands not in the enume saying “aye.” Contrary. Carried. JULY 6, 1950 • Afternoon Session 177 HEEN: I now move the adoption of the second paragraph WOOLAWAY: Sections 5, 6, and 7 have been adopted, I of sub-section B of Section 4. now move for the adoption of Section 8. HOLROYDE: I’ll second that. CHAIRMAN: May I go through the list here? Will you hold that just a second? Section 6 has been adopted, Section HEEN: That paragraph reads as follows: 7 has been adopted and Section 8 was deferred. You’re The governor shall thereupon issue a proclamation quite right. Is there a second to that? showing the results of such reapportionment, and such WOOLAWAY: I should change that to move the adoption reapportionment shall be effective for the election of of Section 8 as amended. I believe we put in the word members to such house for the next five succeeding “salaries” between “any” and “public.” legislatures. CHAIRMAN: The second line after “while holding any,” CHAIRMAN: Is there any discussion? insert the word “salaries,” and I believe the word “position” AKAU: If we are going to meet every year, Delegate was stricken, according to my notes. Heen, would you say that should be for the “five succeeding ASHFORD: I think following the word “office,” there legislatures,” if we’re going to meet for the budget and then should be included “other than legislative,” because he may for the regular one? Would that still hold true? hold a legislative office and still be qualified to run. HEEN: That’s correct. It is the same legislature sitting HOLROYDE: Could I second that? I’ll just second that annually instead of biennially. motion to the adoption. RICHARDS: I have a question that I would also like to CHAIRMAN: You’re seconding what? ask. Assuming that there has been a change in the Consti tution within that particular period, this would be in conflict HOLROYDE: Woolaway’s motion. I don’t believe there with it if we use the term “for the next five succeeding was a second. legislatures.” CHAIRMAN: Question before the house is on Section 8 CHAIRMAN: Any change in the Constitution would have as amended. Did Delegate Ashford care to make an amend ment? to take care of that difficulty. Are you ready for the ques tion? All those in favor signify by saying “aye.” Contrary. ASHFORD: I will offer that amendment, Mr. Chairman, Carried. that alter the word “office” there be included “other than legislative.” Otherwise a member of the legislature wouldn’t HEEN: I now move the adoption of the third paragraph of be eligible to run. sub-section B of Section 4. HEEN: That’s correct, speaking technically, but we have HOLROYDE: I will second the motion. the same language in the Organic Act and that language has HEEN: This particular paragraph deals with the writ never been held to preclude members of the legislature of mandamus that might be issued in order to compel the from running for election. governor to perform the duties as described in the two CHAIRMAN: It appears to the Chair, Delegate Ashford, paragraphs prior to that, the Supreme Court being given that it’s implicit in that section that a man can hold the office original jurisdiction for that purpose. It also provides that he’s elected to. that if the governor does not reapportion correctly on the basis of the method of equal proportions, the act of the ASHFORD: I don’t think anybody seconded that motion. governor may be corrected also by mandamus. I think the reason it has stood is that it hasn’t been attacked. WIRTZ: I second that motion. Perhaps the movant will CHAIRMAN: Any further discussion? If not, the Chair accept a slight amendment, if we insert the word “other” will put the question. All those in favor signify by saying before “salary.” “aye.” Contrary. Carried. CHAIRMAN: I think that would do it a little more expe HEEN: On my notes, I note that Section 5 was adopted ditiously, Delegate Ashford. The amendment is to insert in an amended form. the word “other” before the word “salary,” hence a legis CHAIRMAN: That is in the Chair’s notes too. There lator could be a public officer and receive a salary, but no was an amendment proposed by Delegate Tavares, however other salaried officer. the amendment was not complete. I was going to call the PORTEUS: In connection with this I wonder whether some body’s attention to it. That amendment was in the third member of the committee might care to answer the follow line beginning with “the office of members,” “the term of ing question? At what time does a legislator cease to hold office.” office? It was my understanding from the examination of TAVARES: That was objected to as being a matter of the proposal that a legislator goes out of office at the next style. I think then the matter was sort of either ruled general election~ If he goes out of office at the next general out of order, or I withdrew it, something, it wasn’t acted on. election, beginning on that day he’s out of office. As a matter of fact he’s not a legislator on the day that they’re voting for CHAIRMAN: I think you’re correct. I suggest that Dele him and he succeeds himself. But I don’t think there’s even gate Tavares has the floor, I want to see if his recollection any technical question there because he goes out of office is the same as mine. He made the motion and I suggested - - on election day, not at the end of the day, he goes out of office the Chair suggested that it could be taken care of in the immediately on the start of the election day and he isn’t Style Committee in both places where it appears, and you elected until the end of the election day, until the votes are acquiesced in that view. Is that correct? tallied, cast and a certificate of election is filed. TAVARES: Yes, Mr. Chairman. CHAIRMAN: Delegate Ashford, have you any rebuttal to CHAIRMAN: It has been adopted, Delegate Heen. that suggestion? Sounds kind of reasonable to the Chair. 178 LEGISLATIVE POWERS AND FUNCTIONS A. TRASK: I don’t think that argument is valid because ROBERTS: The purpose of my amendment is to meet this section, as I remember the last debate on it, was to the the problem of individuals who are employed and who would eligibility of the person to file for the office. So even though be disqualified under this proposal from running for office. the election day is subsequent, it will always be subsequent I note for example, there are a number of individuals in this to the day of filing the application for the office. Convention, who were elected to the Convention, who would not be permitted to run for office under this provision if TAVARES: I seem to have a faint recollection that pro adopted in the Constitution. I would therefore, Mr. Chair visions of this type, such as age and various other qualifI man, move to delete that section in order to provide indi cations, have been held to apply to the situation as it existed viduals who have the general qualifications to run and if at the time they take office, whatever time that is. In other they are elected, during their term of office, then they shall words, we have elected senators to the United States Senate not hold any other office. That section was adopted for the who are under age, and if they became of age before the ses governor. The governor, for example, can run for the sion opened or before they took office why they were con United States Senate. Any member of the legislature sidered eligible. Some of them, in fact, were just not allow could run for the Senate of the United States. They aren’t ed to take their seats until they became of age and then have disqualified from running. Why shouldn’t an individual in been given a seat, so that I don’t think that should cause too the community, if you’re looking for individuals to run, be much damage. if on the day before election or perhaps even permitted to run for office? on election day before they are declared elected they resign from their offices, I would thiak they would be eligible under CHAIRMAN: In the judiciary article, they forfeit their this provision. office if they run for an elective office. ARASHIRO: Under this provision does it make it possible ROBERTS: Well, talking about the judges, the problem for a legislator to be a member of the board of regents or there was quite different. the school board? A. TRASK: I second the motion made by Delegate Roberts. CHAIRMAN: No. No. The prohibition is against holding a salaried job. ROBERTS: May I speak to the amendment, Mr. Chairman? ARASHIRO: But if they are not paid salaries, non-pay CHAIRMAN: Proceed. ing - - ROBERTS: The amendment is to delete Section 8. There is only one other state in the Union that has made any pro CHAIRMAN: That’s right, they can hold that job. vision for disqualification along this line, and that is the HEEN: No, Mr. Chairman, that situation, I think, is state of Missouri. And that state has made specific exemp taken care of in Section 10. I might state there was some tions which include, for example, reserve corps, school discussion of having an amendment inserted in this Section 8, boards, notary public and others. that each position - - each office shall be salaried offices or It seems to me that if we are looking for individuals in position but there was no vote on that as I recall it. the community to run for office, that if we want to provide as CHAIRMAN: May the Chair ask - - Delegate Arashiro broad a basis for individuals for the new legislature which has raised the question—why weren’t the disqualifications has increased its membership, then you ought to go to every area in the community to bring competent and qualified people dealt with in a single section rather than in two, Delegate there to serve the community and the public. This thing it Heen. I note that k’s dealt with in Section 8 and also in Section 10. seems to me would prevent individuals in the community from running. HEEN: Well, Section 8 disqualifies public officers and Suggestion was madç the other day that the way to do it employees from being eligible for election or to hold a seat was to resign from your office. That seems to be hardly an in the legislature. Now Section 10 is the other way around. answer. if a person has a livelihood he can’t give up his job, WIRTZ: To clarify the atmosphere, I’ll remove my and no individual in private employment gives up his job when suggestion of the “other.” I understand the movant is will he runs for office. He takes leave of absence. Why shouldn’t ing to withdraw her motion to amend. My recollection, how individuals in the community who have jobs as teachers, for ever, on the other point [that] was raised by the chairman example, if they wish to run, get a leave of absence? Why of the Legislative Committee was that we did vote on the should they be denied the opportunity for serving their com question of “salary.” munity? I think this amendment, Mr. Chairman, would per mit all individuals to run if they have the general qualifica CHAIRMAN: We did not? tions. if they are elected, then obviously they have to give up WIRTZ: We did. their previous employment while they are in the legislature. CHAIRMAN: That is the Chair’s recollection but the A. TRASK: In support of the deletion, I think the best section was deferred, so the Chair will now read the section argument for this deletion is the fact that there are so many according to his notes. It reads as follows: “No person people in government service here contributing to this cove while holding any salaried public office or employment nant and doing an excellent job. I thiak the invitation to shall be eligible to election to, or to a seat in, the legisla people to run for public office should be a general one. ture.” Are you ready for the question? Question is on the I am very curious to look at Section 22 of this proposal adoption. where the members of the legislature, after they’re elected and get their salaries, they may vote themselves additional ROBERTS: I have an amendment to offer to this section. salaries. Now that’s an extraordinary feature. My amendment is to delete the second sentence and to sub stitute, therefore, the following: “No legislator shall hold CHAIRMAN: We haven’t passed that yet. any other office or employment of profit - - A. TRASK: I know, but that is the proposal and I’m direct CHAIRMAN: Delegate Roberts, that’s covering Section ing the attention of the delegates to that provision. The gov 10, if you’ll examine it. ernor can run for the United States Senate while he is still JULY 6, 1950 • Afternoon Session 179 the governor. And directing our attention to this matter with even the language I put in, “salary,” doesn’t hit the problem. reference to what Delegate Tavares brought to the attention There are some heads of departments who are members of of the Convention with respect to the United States senators boards and commissions that don’t get paid that shouldn’t who were elected when they were under age, provision with run for the legislature. On the other hand, there are some respect to Article I of the United States Constitution says: officers, like notary public, who do get profit from fees who “No person shall be a senator who shall not have attained to shouldn’t have to resign in order to run for office, and I don’t the age of 30 years~” think we can cover it unless we do what Delegate Roberts said Missouri did in their constitution. CHAIRMAN: This section goes to the question of eligibility Now we have a civil service law which, after weighing rather than - - Yes, there’s a difference. the pros and cons of employees running for office, has A. TRASK: Precisely, that’s why the argument of Delegate decided that there are more evils from allowing them to Tavares was not in line. You not only seek to have a person run for office than the benefits of allowing them to do so, be in government service, but you penalize him and you make and therefore the civil service law allows the civil service him ineligible to apply for office, to be elected, and I think commission to prevent that under rules and regulations. certainly that the government workers have an advantage over If you put Delegate Roberts’ amendment in and it means what most people in government. And I think they should not have he says it does, you are invalidating your civil service rules. this confronting them and alienate a large part of the people Now, Mr. Chairman, a school teacher running for office of the territory, some 15,000 in number. sounds fine, but that school teacher has thousands of children whom he is in a position to influence unduly and unfairly, CHAIRMAN: What would happen to his public duties and even if he doesn’t do it, as some of the school men will during the time he was running for office? Who would do testify, he is accused of doing it anyhow and the people don’t that? like it. I think in the long run we should leave it to the leg A. TRASK: I think we could leave that to the wisdom of islature. I, therefore, move that we delete the whole Section the legislature. 8 with the understanding that the legislature can regulate it as it does under civil service. HAYES: I have a question I would like to ask Delegate Roberts and my question is this. For instance, he runs for ARASHIRO: I second that motion because I feel that the legislature and he is elected and after the legislature has Section 10 can properly take care of that. closed its work, does he go back again to his position that he left to run? CHAIRMAN: It has been moved and seconded that Section 8 be deleted in its entirety. ROBERTS: Let me assure the lady delegate that I do not intend to run for the legislature. ROBERTS: That was my motion, Mr. Chairman, and that was seconded by Delegate Trask—to delete Section 8. CHAIRMAN: She wants you to construe the section for her, though. That was her query. CHAIRMAN: I thought you had some added language. ROBERTS: If an individual in the community has a job ROBERTS: I did, but when the suggestion was made that and he feels that he can make some contribution in the leg it was not proper I therefore moved to delete. islature, he can take a leave of absence and run for that office, and if he is elected, then sits in the legislature and CHAIRMAN: Are you ready for the question? All those is on leave and may return to his office when that legislature in favor signify by saying “aye.” Contrary. Carried. Sec is pau. That same privilege is accorded to private employ tion is deleted. ees who run for office and are elected, serve their term, and then they go back to their job. There’s no reason why WOOLAWAY: I now move for the adoption of Section 9. the same provision is not applicable and proper for other CHAIRMAN: Is there a second? individuals in the community. COCKETT: I second that motion. SILVA: There is no getting away that working for the government and working for private employment are two CHAIRMAN: It was moved and seconded that Section 9 different things in its entirety. Working for the government be adopted. Any discussion? I call the attention of the body is a privilege rather than working for private employment. to the fact that at the last discussion of this, the debate cen Now, there is no binding duty in working for the government. tered about the words “any statement made or action taken” If that is true, then all of us, every citizen throughout the on the question of treason. territory should have the same privilege and any time there is a depression, we should go to the government and say, WIRTZ: Point of information. Weren’t the words “ex welL I want to be a teacher and I am entitled to be a teacher cept treason” - - no, just the word “treason,” wasn’t that like the other school teachers or like the other government deleted? worker. There is a distinct difference and I am opposed to CHAIRMAN: No. the amendment in its entirety. I can’t see for any member of any department, whether in the school or any department WIRTZ: My recollection is that it was deleted. of government, to get into the legislature and work out for the WOOLAWAY: Point of information. very same department in which he represents. That, in it self, is contrary to our own Constitution to have a judicial CHAIRMAN: Not according to the Chair’s notes. branch, legislative and administrative branch all in one. WOOLAWAY: It was my understanding that Delegate Kawahara made that amendment and it was lost. TAVARES: As the one who suggested the first amendment, I think I am going to have to eat a little humble pie here. I CHAIRMAN: Delegate Kawahara made the amendment to am now convinced that Section 8 ought to go out entirely with take out the words “or action taken” and insert the words the understanding that we are leaving it to the legislature “or speech” according to the Chair’s notes. It was never by law to regulate this situation. I am now convinced that acted upon. 180 LEGISLATIVE POWERS AND FUNCTIONS KELLERMAN: I think I made the motion to delete the TAVARES: It is my understanding that it would depend word “treason” and the comma following it and that was upon whether he was performing a legislative function or passed. Then the discussion went to “action taken” and not. I am not prepared to say, without studying that further, after some discussion on that gmendment, there was a motion that just because it was a legislative council meeting that to defer the paragraph. I think you will find that’s correct. there wouldn’t be immunity. I believe it wouldn’t be as broad possibly but if it was in the exercise of legislative functions, TAVARES: My notes show on July 1 we did vote to delete as the court should find, then I think this would give immu the word “treason,” but we did not pass on the others. nity. ASHFORD: Wasn’t there also a motion to delete the words CHAIRMAN: I think the correct rule would be that it “in either house”? I think that was made by the chairman would stand on the same basis as the testimony before any of the committee, “in the exercise of his legislative func other public body. There is a certain immunity, as you tions,” cutting out the words “in either house.” know, if you testify before the P. U. Commission, or court. PORTEUS: Will the body recess for a moment to give the chairman an opportunity to check his notes? Everyone SHIMAMURA: Well, that’s just the point I mean, because is telling him what has been done and I don’t think we are if it’s in the performance of the legislative function pre giving him the opportunity to find out from his own records sumably the question would arise whether or not that leg what’s happened. islative immunity would cover that situation. That’s why I raise the point. The section as it stood prior to the CHAIRMAN: The Chair will declare a two-minute recess deletion of the words “in each house,” would limit it to till he gets his bearings. his deliberations, his speeches, and his actions in the house. WIRTZ: I second the motion. HEEN: In the exercise of legislative functions, it might (RECESS) be in a committee so long as he is exercising his legislative functions, and much & the function of the legislature is per CHAIRMAN: Committee of the Whole will please come formed in committee, so that if a legislative council can be to order. The word “treason” be deleted. That motion was regarded as a committee of the legislature that immunity carried. The second motion as put by Delegate Kawahara, might extend to the members of that council so long as they that the words “action taken” be deleted, that motion was put are all members of the legislature who are members of that by the Chair and lost. So the section now stands as it appears council. in the print before you with the word “treason” deleted and CHAIRMAN: The proposed amendment would broaden the the comma. immunity in other words. HEEN: I move that the Section 9 as amended, be adopted. A. TRASK: This would, of course, extend to holdover DELEGATE: Second the motion. committee legislative activity, would it not? TAVARES: I was under the impression that a motion was CHAIRMAN: That’s correct. Are you ready for the pending to delete the words “in either house.” question? CHAIRMAN: No, that is not correct. SAKAKIHARA: Would you be kind enough to restate the question. TAVARES: Well, I so move. CHAIRMAN: The question before the body is the deletion HEEN: I second that motion. from Section 9, fifth linç, after the words “legislative CHAIRMAN: It has been moved and seconded that the functions,” delete the words “in either house,” and the pur words “in either house” appearing on the fourth line of pose of the deletion is to broaden the immunity rather than Section 9 be deleted. Any discussion? to restrict it. All those in favor signify by saying “aye.” Contrary. Carried. SHIMAMURA: May I ask the question similar to the one I raised at a previous session, Mr. Chairman? In SAKAKIHARA: I have an amendment to Section 9. Sec other words, if you delete “in either house,” you’re making tion 9, the last word, “the same,” delete the period and in this provision much more expansive than it is now. Isn’t sert the following: - - that correct? CHAIRMAN: Chair did not get where you are beginning, HEEN: That’s correct. It’ll take care of the situation Delegate Sakakthara. where we have in some other article provided that the judi SAKAKIHARA: Starting from “the same” in the last cial officer may be removed by the two houses sitting in sentence there, delete the period and insert a semicolon, joint session, and I think there was one provision this add the following sentence: “provided, that such privilege morning along the same line. as to going and returning shall not cover a period of over SHIMAMURA: May I ask another question, Mr. Chairman? 10 days each way.” CHAIRMAN: Proceed. YAMAMOTO: I second the motion. SHIMAMURA: What would be the situation of a member HEEN: Your committee decided to delete that provision. of the legislature who makes a speech, say at the legislative That’s the provision that appears now in the Organic Act. council meeting, if we have such a council? Would his im The Organic Act was passed 50 years ago when they had no munity apply to such a speech if he makes some ordinarily - - let’s rather say it statement that is ordinarily defamatory, automobiles. I believe, at that time, you had to have buggies and horses and it used to take 10 days to go from Kau to would he be still immune? Hio. CHAIRMAN: No; there would be no immunity unless it is expressly conferred in the section creating the council. CHAIRMAN: No airplanes? JULY 6, 1950 • Afternoon Session 181 HEEN: No airplanes. Now you don’t need that provision. TAVARES: I should like to quote from an authority cited You leave here at half-past four in the afternoon and get in a note to Section 6, clause I of the United States Consti to Kauai about an hour alter that. tution. I’m reading from the U. S. Code Annotated. There is this decision cited from the case of Williamson vs. U. S., CHAIRMAN: That seems to make sense to the Chair. 207 U. S. 42552, Lawyer’s Edition 278, and it says this, Does the delegate want to withdraw his amendment? “The term treason, felony and breach of the peace as used SAKAKIHARA: Oh no, the amendment stays. in this section excepts from the operation of the privilege all criminal offenses.” There is nothing to worry about. CHAIRMAN: Chair will put the question. CHAIRMAN: What are you, for or against the amendment? PORTEUS: May I point out that it would seem to some as though this were an extension of time by putting in “shall TAVARES: I am against the amendment, it isn’t neces not exceed 10 days.” If you have gone home, you’re home. sary. But under the provision as written here, a person might take a month to return home and try to claim his privilege. CHAIRMAN: Are you ready for the question? The Chair I think that time would be unreasonable, but at least in this, will call the attention of the body to the fact that the same we would be pinning him down to the ten days. I don’t think language appears in the Federal Constitution, “in going to it is an extension but rather than that, it sets an outside and returning from the same.” The Chair will put the ques limit. tion. All in favor of the amendment signify by~saying “aye.” Contrary. The amendment is lost. CHAIRMAN: The body understands the question? All those in favor of the amendment signify by saying “aye.” HOLROYDE: I move Section 9 be adopted as amended. Contrary. The amendment is lost. APOLIONA: I second the motion. ROBERTS: I’d like to offer an amendment as follows: CHAIRMAN: The motion is on the adoption of Section 9 at the end of that section after the word “same” delete the as amended. All those in favor signify by saying “aye.” period, put a colon, and provide the following language: Contrary. It’s adopted. “provided that such privilege as to going and returning shall KAM: I move for the adoption of Section 10. not cover a period of over two days.” If I have a second to that, I would like to speak to that amendment. WOOLAWAY: I second the motion. YAMAMOTO: I second it. ASHFORD: Section 10 was adopted, wasn’t it? ROBERTS: The way the article reads now, a legislator CHAIRMAN: No, we are now on Section 10. could take a month or two off and engage in any kind of acti AKAU: In this question of public office, would that apply vity under the Constitution and be completely privileged to the holdover committee appointments? The statement and immune from arrest. I don’t think we ought to grant is, “No member of the legislature shall hold any other pub him that immunity. The purpose of the immunity is to per lic office, position or employment of profit.” Now I raise form certain functions - - the question, did the committee think about the holdover CHAIRMAN: Just a minute, Delegate Roberts, “except group and would that apply? felony or breach of the peace.” “In all cases except felony CHAIRMAN: They could still be on the holdover com or breach of the peace.” Now if the legislature - - mittee, that would not be a prohibition against that. “No other public office,” it says. ROBERTS: That is while he is in session and perform ing his duty. The parenthetical clause says “be privileged AKAU: Delegate Heen, would that be considered a public from arrest during their attendance at the sessions of their office? respective houses and in going to and from the same.” It HEEN: Not the other kind of public office. It is still a seems to me, therefore, what you’re doing is giving a com legislative office. plete immunity without any specified time and that’s the purpose of the proviso in the Organic Act. Now maybe the CHAIRMAN: You don’t trust the chairman of Legislative time is too long because we have airplanes and boats and Powers either, is that the idea? automobiles, but you certainly don’t want to give them a free-for-all on that. You ought to put some time limitation HEEN: I believe there is a defect in this Section 10 with on it. reference to the use of the term “of profit” after the word BRYAN: I’d like to speak against that amendment, not “employment” in the third line. I believe that those two that I’m not particularly in favor with the sentiment of it words should be deleted, otherwise members of the legis but I think the words “and in going to and returning from” lature may hold the position of police commissioner over are sufficient. If a fellow is taking a month off on Kauai on Kauai or police commissioner in Honolulu where there when his home is on Hawaii, he is not going to or returning is no salary or profit attached — I mean legal profit —attached from the legislature, in my mind. to those offices. I move for the deletion of the two words “of profit” following the word “employment” in the third FONG: This privilege from arrest is not an immunity line. in which a man after the attendance in the legislature cannot WIRTZ: May I ask a question? Is it also deleting the be arrested. Now thin immunity only applies to the time words “of profit” as they appear later in the section? They when the legislature is in session. You can’t arrest him at appear twice. that time. Nothing prevents you from swearing a warrant after the legislative session is over to arrest him. Now CHAIRMAN: That’s right, that would be the same, three this is only to prevent you from hampering the administra lines below that, Delegate Heen. “Be elected or appointed tion of the legislature. to any public office, position or employment of profit.” 182 LEGISLATIVE POWERS AND FUNCTIONS HEEN: I move the same amendment to delete the same which he is elected. Now a situation can arise where some two words following the word “employment” in the fifth one is elected to the State senate for a period of four years. line of that section. At the end of two years there is a change in the governor ship. Now the governor might want him as his executive ASHFORD: I’ll second that motion. assistant or might want him in one of the cabinet positions. CHAIRMAN: It has been moved and seconded that Sec Now would this preclude the senator resigning because his tion 10 be amended in two respects. To delete the words term would not be up and accepting a position of other gov “of profit” in the two instances where those words appear. ernment employment? FONG: May I ask whether a reserve officer in the CHAIRMAN: It appears to the Chair that it would. Is United States Army is a public officer. Does that mean if there a second to Delegate Okino’s motion? I stay in the legislature I got to resign my reserve commis CASTRO: I second the motion to defer Section 9. Pardon sion? me, 10. HEEN: I think that this language here would include CHAIRMAN: Until the end of this article? reserve officers. CASTRO: Until the end of the article or such time as KING: I think the language ought to be limited to officers we can get satisfactory wording for this section. under the State of Hawaii and its political subdivisions, not to the federal government. CHAIRMAN: You have heard the question. All those in favor signify by saying “aye.” Contrary. It’s deferred. CHAIRMAN: Well, you wouldn’t want to see an officer holding a salaried position in the federal government, would WOOLAWAY: I move for the adoption of Section 11. you? As a member of the legislature? KELLERMAN: I move that we take up Section 12 before FONG: rhat would eliminate Delegate Samuel King also. Section 11, because the issues involved in Section 11 are He is a reserve officer, I understand, retired. He is still definitely tied in to whether we have an annual session or holding a public office. That would knock us all out, all the not. It seems to me that, depending upon how the vote reserve officers who are in the legislature. That would goes on the next section, we might have to reconsider what prevent reserve officers from running for office. They are we did on Section 11. only reserve officers to the extent that when the government CHAIRMAN: You make a motion to that effect? is in a dire emergency they are called to active duty, other wise they are civilians. So I was wondering whether this was KELLERMAN: I will move - - a little too harsh and I don’t think this was the intention, to WOOLAWAY: I accept the amendment. eliminate these people. CHAIRMAN: Moved and seconded that we take up Section KING: Aside from the difficulties that might be experi 12 at this time. All those in favor signify by saying “aye.” enced by Delegate Fong and myself, the Territory and the Contrary. Carried. Floor is open for Section 12. State of Hawaii of the future will have thousands of officers and men in the organized reserves of the army, na~ and HEEN: I move for the adoption of the first paragraph marine corps and all of them will receive some retainer of Section 12. pay and they will be public officers according to this section. CHAIRMAN: Is there a second? OKINO: I should like to ask the chairman of the Legisla HOLROYDE: I’ll second that motion. tive Committee a question. As I read Section 10, the officers CHAIRMAN: It has been moved and seconded that the commonly known as notaries public are included, are they first paragraph of Section 12 be adopted. This provides for not? annual sessions. HEEN: That is correct. PORTEUS: In conjunction with the provision for annual OKINO: I feel that an exception should be made for nota sessions—I probably am anticipating the second paragraph—as ries public because many legislators from the outside is I understand the matter of taxation and finance, there was a lands are notaries public and there are not too many notaries recommendation there that other legislation not be tackled public in the outside islands, and I think the people of the is until legislation affecting appropriations of money, not being lands are entitled to those particular services. By inserting passed until the general appropriations bill has been passed. a very short clause after the word “employment” respective if we have a budgetary session, might we not reconsider our ly in the third and fifth line, “excepting notaries public,” it action in that portion of the taxation and finance article? will take care of that situation. Did the chairman of the committee have that particularly in mind? CHAIRMAN: Delegate Okino, it appears to the Chair that there are several instances which would work a hardship on HEEN: I think the language of the second paragraph of reserve officers. Wouldn’t it be in order to defer this until Section 12 is not in conflict with the provision that was we get a little perfecting language and proceed with the next adopted in connection with the article on taxation and finance. section? PORTEUS: Well, I thought the general appropriation bill OKINO: I move for deferment at this time. would be passed at one session. You wouldn’t have to pass CHAIRMAN: Is there a second? it at the next session. If you passed it, it is already disposed of. if you don’t have a general appropriations measure, what RICHARDS: If we are going to defer action on it for are you doing to do, wait to pass it when you don’t have any possible other wording, there is another question that I particular one in mind? would like to raise regarding the wording here and a situation which could easily arise. As I read it, no member of the CHAIRMAN: Do you have an amendment, Delegate legislature shall hold any public office during the term for Porteus? JULY 6, 1950 • Afternoon Session 183 PORTEUS: I want to get what the picture is between the HEEN: That is correct; the lin~iitation is on the two Legislative Committee and the Committee on Taxation and houses, sitting as the legislature. But it so happens that the Finance as to whether these things do or do not fit together Senate is also in session; therefore, the Senate, being in under this scheme. They wish to have one session exclusive session, can act on those appointments in the way of confirm ly confined to general appropriation measures. ation or consent to removal. TAVARES: I think I can answer that question. The chair ROBERTS: If that goes in the Committee of the Whole as man of the Committee on Taxation and Finance was also a a statement of consideration by this committee, that will be member of the Committee on Legislative Powers and Func perfectly all right. tions and the taxation and finance sections have been care CHAIRMAN: That’s perfectly clear, Delegate Roberts. fully dove-tailed into what we understood the language of this was going to be. There is now a provision for regular OKINO: I should like to propose a question in connection sessions which is defined in this bill, in this article suff i with the second paragraph of Section 12. Is the expression ciently so that whether you have annual or biennial sessions, “urgency measures” sufficiently broad and inclusive to in it will fit the taxation and finance article. clude impeachment of public officers? WIRTZ: I think there is some confusion that the appro HEEN: It might well be if the governor becomes too priation bill is going to cover a period of two years. Under dictatorial and wants to take over the government, it might this system the appropriation bill will be for the next succeed be an urgency measure that might require drastic action on ing fiscal year. The only difference between the two sessions the part of the legislature. is that ohe - - there will be the appropriation bill i~ both OKINO: I should like that statement to be incorporated sessions, but in one it will be limited to the appropriation in the report. I think it will clear up the situation. bill and revenue measures and certain emergency measures. CHAIRMAN: Chair may appoint you as subcommittee of CHAIRMAN: Delegate White, did you want to be recog one to incorporate these things in the report, Delegate Okino. nized? OKINO: I shall appoint you as a committee member. WHITE: It is my understanding that the provision which NIELSEN: I wasn’t on either one of those committees, we adopted would apply to a biennial session or annual but I noticed in the third sentence it says, “for the succeed session, that was the purpose of it. The only difference is ing fiscal year.” Isn’t the budget session supposed to cover that you will have an annual budget instead of a biennial the biennium? budget, that’s all. CHAIRIVIAN: Any further discussion? The question is on HEEN: No, Mr. Chairman, it’s supposed to cover each the first paragraph of Section 12. All those in favor signify year, each year becomes a fiscal year instead of a biennial by saying “aye.” Contrary. Carried. appropriation. HEEN: I now move the adoption of the second paragraph NIELSEN: Well, then you have a budget session every of Section 12. year? BRYAN: I’ll second that motion. HEEN: That is correct. In other words, in your general session you consider your general appropriations bill; in ROBERTS: I have a question to address to the committee. your budget session you consider only the appropriations I thought it had been our previous understanding that it would bill and other bills referred to in the provision of this sec be possible at the budget session to take up confirmations tion, urgency measures and tax measures that may be re in the Senate or for the possible removal of individuals. As quired for the general appropriations bill. I read the section, there is no provision at the budget ses sion to permit the taking up of Senate confirmations. NIELSEN: I was under a mistaken idea then. I thought there was one session, one year there was a budget session CHAIRMAN: That isn’t done in the session; it is a and the following year there was a general session. session of the Senate alone, confirmation. WHITE: On this question of confirmation and other things, ROBERTS: I know, but there is no sense in calling a isn’t that handled under the paragraph on the executive special session of the Senate when the House and Senate are powers and duties where it says that the governor “shall at both in session and you can bring those matters up to them the commencement of each session, and may, at other times, instead of reconvening them, providing for special consider give to the legislature information as to the affairs of the ation. State and recommend such measures as the governor may deem expedient”? Does that permit him to take up those CHAIRMAN: You think there is a prohibition here? things that need to be taken up at that session? HEEN: There is no prohibition here, Mr. Chairman. CHAIRMAN: The Senate confirmation does not neces sarily involve a session of the legislature. So the problem CHAIRMAN Then there is nothing to stand in the way of that Delegate Roberts raised is taken care of. the Senate confirming any nominee during any one of those sessions. H. RICE: You’re going to have 76 senators and repre sentatives. Don’t you think we ought to write it in here ROBERTS: As I read the section, Mr. Chairman, it says somewhere that each member should be allowed to introduce at the budget session, the legislature shall be limited to the one bill or 10 bills or 15 bills, that’s the limit? consideration of the following things. HEEN: That is correct. CHAIRMAN: Chair is ready to put the question before any facetious remarks are extended. CHAIRMAN: That is not the action of the Senate. PORTEUS: I note here that at a budget session or ap ROBERTS: I assume the Senate is part of the legislature. parently at a general session a general appropriations bill 184 LEGISLATIVE POWERS AND FUNCTIONS for a succeeding fiscal year only may be handled. It would tutions who didn’t plan very well a couple of years ago and seem to me under some circumstances that it would be they were in hot water. I think we should do it on the basis desirable from the point of view of a department and from of one year and let it go at that. the point of view of the governor to be able to budget out CHAIRMAN: Chair will put the question. their expenditures over more than one year’s period. I think this is unduly restricted. If it appears desirable to ROBERTS: I’d like to speak in support of the comments have a budget for a succeeding fiscal year only, that could made by Representative Porteus. I think there are problems be handled. On the other hand, many expenditures for a in terms of the operation of the legislature where you may department, as those who have been in the legislature know, want to provide budgets for a biennium. I know, for example, may well be handled over more than one particular series at the university if you’re going to bring in individuals from of months. It may be a little desirable to postpone some of the mainland to teach, you’ve got to make some overall pro the purchases or to make some of the purchases a little visions in planning for more than one specific year in terms earlier. Now, if you don’t let a department budget itself of budget. I think the legislature should be given the oppor out for about two years in advance or even a year and a tunity to make provinions for longer budgets than one year. half, I think that you’re placing an undue restriction on I think we ought to provide for some amendment to the your legislature, on your governor, and the executive de section to take care of that and if k’s agreeable with the partments because there are sometimes a good time to group, could we defer action on that paragraph so some make purchases. You don’t know quite when they’ll be, language could be provided? whether they’ll be in the next year or six months. Give HOLROYDE: Again we are talking about the difference them a little discretion and that, I think, will be more de between budget and appropriations. You can make a budget sirable than to restrict your budget to a one year period. for ten years; there is nothing to prevent you; in fact most CHAIRMAN: Will the committee address themselves to businesses do plan for ten years. But you appropriate for that? one year, then you come back and review and if you want to - - maybe you tentatively decided what you were going to BRYAN: The only point that I want to make is the words, do the following year, but you come back and review it again “for the succeeding fiscal year” referred to the general against that budget and maybe change the budget. But your appropriations bill. It’s just describing what the general appropriation is for a year, your budget can be for any appropriations bill is. Now other authorizations for ex number of years. penditures and so forth and so on would not necessarily be limited to the succeeding fiscal year in my mind. ROBERTS: Mr. Chairman, there is a distinction obvi ous - - Mr. Chairman, may I have the floor. PORTEUS: It is my understanding that the general appropriations bill is the budget for the territory. The CHAIRMAN: Delegate Roberts, you have the floor. general appropriations bill that I thought we had been talk ROBERTS: I just want to know. ing about in this Convention is the one that not only sets up the out-lay of money for personnel but it sets up the money CHAIRMAN: You what? to be expended for supplies, maintenance and the operation ROBERTS: I want to know whether I have the floor. I of the particular departments of government. understand the difference between a budget and an appropria CHAIRMAN: Delegate White, can you clear up the Secre tion. I think the problem basically is that, to say you’ve got tary? a budget mapped out for ten years and then tell the depart ment to go ahead, but they cannot go ahead except for one WHITE: I think he’s getting confused about budgeting and year because all you given them an appropriation for is one the general appropriation bill. You can develop a budget year. And even though they may look to you and say, “Yes, three or four years in advance, if it is necessary for proper you’ve got this plan for the next five or ten years,” but they planning, but when you come to a particular session you cannot act unless they are given funds with which to act. approve a certain amount of appropriation to take care of general operating expenses for a one year period. That LOPER: I’d like to ask the chairman of the committee, doesn’t prevent the development of a biennium budget as a if there’s any reason why these words should not be deleted: guide to the legislature and as a guide to the executive, and “For the succeeding fiscal year and.” then you come along to the following year and you may want HEEN: It was definitely decided that the appropriations to modify what you’ve already budgeted for the second period. bill should cover only one fiscal year. CHAIRMAN: Are you ready for the question? CHAIRMAN: Delegate White, do you have any further PORTEUS: I take it then the answer is that you can tell views on this? Does it present any problem to you? the legislature all you want, the legislature can sit around and talk all it wants about maybe what might happen in a WHITE: No, it doesn’t to me. It seems it is a relatively succeeding fiscal period, being a one year period, but if the simple problem. I think you always have problems where in governor and the executive department and the legislature employment you may go beyond the period of a fiscal year feels that it would be better to set up a general appropria which might have to be taken care of in the amount that you tions bill and make it an appropriation for two years or for appropriate, but I can’t see that it raises any more problem a year and a hail, that under this provision then it is for than when you have to take on the employment of a man for bidden to do so. four years when you have a biennium budget. AKAU: I’d just like to speak on the other side of the KELLERMAN: May I add in support of the committee picture. I think the people in public office, in government report that we had before us in the committee the heads of office here, would appreciate the fact that they can set up several of the executive departments. They were unanimous their budget for one year. I think they have founi it very in their opinion that an annual budget on a one fiscal year difficult to see forward for a period of two years. I think basis would be of material benefit to them in planning their we have a very glowing example of the Department of Insti expenditures and laying out their plan of work and what they JULY 6, 1950 • Afternoon Session 185 could expect to have without running into the question of ROBERTS: My own personal preference would be to cuts by the executive branch where there were discrepancies place no limitation on the time of the legislature. In dis in revenues and funds - - taxation plans that were set up in cussing the matter with various delegates, however, I find an appropriation bill. They were unanimous in their appro that there is general opposition to a continuing session of the val of the workability of a single fiscal year plan. legislature. CHAIRMAN: Chair will put the question. Question is on CHAIRMAN: Delegate Roberts would like to have your the adoption of the second paragraph of Section 12 beginning attention. It just may be he has a contribution here. The with the words, “At a budget session” down to the words Chair is inclined to think he has. “entered upon its journal.” All those in favor signify by ROBERTS: We’ll weigh that after I get through talking. saying “aye.” Contrary. The ayes have it, it’s carried. It would seem to me that a 60 day session, which would in HEEN: I now move the adoption of the third paragraph dude the general legislation and the passage of an appro of Section 12. priation bill, that 60 days is much too short a time. You ought to provide at least 90 days if you’re not going to CHAIRMAN: Is there a second? provide for a continuing session. The budget session, I KAGE: I second the motion. think, ought to remain as they are and the special sessions ought to remain as they are. I would suggest that some CHAIRMAN: Any discussion on the section? This limits opposition may be created by the fact that the salaries in the number of days of the session of the legislature. Section 11 for the 60 day session are limited to $1500. When TAVARES: May I ask a question? Under the Organic we come to that section I plan to move an amendment to Act which has substantially the same language, the governor provide additional compensation for the legislators for that has exercised the power to grant more than one extension additional time. I would amend that section when I get to during the 30 day period. In other words, it doesn’t mean it from $1500 to $2000 and from $1000 for the budget to that he can only exercise the right of extension once. In $1500. other words he can extend for five days and then two days HEEN: Mr. Chairman, may I ask the speaker one ques and ten days more until the 30 days are up. I think that tion? I take it you will leave the provision there as to the should be understood, that the power of extension is not lost extension of every regular session for a period of 30 days. by one exercise thereof within the limits. ROBERTS: Yes, the language in your section with regard CHAIRMAN: As a practical construction that would to the extension by the governor would still remain. I under follow, I think. stand that the purpose for limiting to 30 days would be that if the governor needs more than 30 days for some special HEEN: This language follows the language in the Organic operation then he has to call you back in special session and Act and it has been so interpreted that the governor may pay you appropriate funds for it. extend for five days, and before the expiration of five days gives another extension of two or three days and so on down HEEN: As I understand the last speaker, he feels that it the line, so long as the combined extensions do not exceed would take 90 days to take care of all kinds of bills, includ 30.days, excluding Sundays and holidays. ing the general appropriations bill during a general session. Is that correct? Well, they can do that with 60 days plus ROBERTS: The second section provides for general 30 days’ extension. sessions limited to a period of 60 days and budget sessions to 60 days and special sessions for 30 days. ROBERTS: The fact that we can do a job in three months doesn’t mean sometimes that it might not take us more. I HEEN: Mr. Chairman, correction, 30 days. thought perhaps this job here might be done with less time, CHAIRMAN: Thirty days for special session - - budget but when getting 63 people together we found that it was and special sessions, 30 days. much more difficult and I would venture to suggest that perhaps it would be more difficult with a larger House and ROBERTS: I’m sorry, that’s correct. a larger Senate. There will be more individuals to consider CHAIRMAN: That’s right. and more differences of opinion to reconcile. I think you ought to be given adequate opportunity to do a job in giving ROBERTS: I’d like to amend the number of days for 90 adequate legislation and proper consideration to the appro days for the general session and 60 days for the budget priation bill. session and 30 days for the special session. I also plan, MAU: In line with what the last speaker has just said, Mr. Chairman - - in this Convention we have only one body to deal with. If CHAIRMAN: Wait till I get that. Ninety for the regular, we are to have a bicameral legislature there’ll be two houses 60 for the budget and 30 for the special. to deal with and I think progress will be much slower than has been the progress in one house in this Convention. I ROBERTS: That’s correct. want to call the attention of the delegates to the fact that this HEEN: Ninety days for the general session and 60 days 60 day period has been going on for the last 50 years in the for the budget session. The budget session and the general Territory. Of course times have changed. We have come a session are regular sessions. long ways from where we were 50 years ago. I think there’s much more work for the legislature than say 20 years ago ROBERTS: My amendment, Mr. Chairman, was to change and yet the performance of the legislature in the past say the words 60 to 90, to provide for 60 days for a budget ses ten years has been such that the public is inclined to believe sion and 30 days for a special session. that 60 days has been too short, and I sincerely believe that CHAIRMAN: Do I hear a second? the legislators ought to have enough time in which to do a MAU: Second. good job. I contend that if the legislature has to rush through its work as this Convention has been trying to do, to rush CHAIRMAN: Seconded by Delegate Mau. through its work, that possibly a good job cannot be done. 186 LEGISLATIVE POWERS AND FUNCTIONS I also want to call attention to the fact that Congress used Question is now on the paragraph. Are you ready for the to meet between the months of December and March and now question? All in favor of the adoption signify by saying it is in session continually because of increased business, “aye.” Contrary. Unanimous. Not unanimous, excuse me, and I believe the same holds true for territorial and I hope carried. state affairs. WOOLAWAY: I move for the adoption of Section 11. CHAIRMAN: Question is on the amendment. NODA: I second the motion. FONG: I want to speak in opposition to this amendment. WOOLAWAY: It was my understanding we were going In my experience in the legislature, I have found that 60 to take up Section 12 and then go back to Section 11 by the working days is plenty enough for the legislature to do its wishes of Delegate Kellerman. business. In the five sessions that I have been in, it was only on very few occasions that the governor has seen fit ASHFORD: I have an amendment to Section 11 which is to convene the legislature in extra session for two or three on the desks of the delegates. I offer that amendment. days and the longest that I have stayed was about five or six CHAIRMAN: Delegate Ashford, may the Chair get the days. Now the 60 working days which we have been given procedure straight. Has it been moved that Section 12 be to carry on the work of the legislature has proven sufficient adopted? The Chair will entertain a motion then that that for the legislature to do its business. Now if you extend section be adopted prior to receiving your amendment. the session to 90 days it will mean that your legislature will be in session for almost one-third of the year, that is KELLERMAN: I move the adoption of Section 12. 90 working days will stretch out to about four months of CHAIRMAN: Is there a second? work. Now four months of work is a pretty long time to have your legislators sit and I believe that 60 working days with SMITH: I second that motion. the privilege of the governor to extend it for 30 days, the CHAIRMAN: It has been moved and seconded that Section way he has been extending it two or three or four days de 12 be adopted. Is that the entire section, Delegate Kellerman~ pending upon the time needed, is plenty sufficient for us to Chair will recognize Delegate Ashford. carry on our work. Besides the regular session we now have the budget session and in the budget session we’ll HEEN: Mr. Chairman, if I may. In the first paragraph of carry on some of the emergency measures which will be Section 12, fourth line, they have this language, “All sessions taking off the load from the general session. So actually we shall be held at the capitol of the state.” One article that was have an extra 30 days in the budget session, and I would adopted by the Convention says that the seat of government say that 60 working days is plenty enough. So this amend of the state shall be in Honolulu, so this will have to be ment should be voted down. amended to conform with that provision in that article and maybe that can be a matter of style. That could be ironed APOLIONA: I, too, am against this amendment. Knowing out. the legislators as I do, I am casting no reflection on them, they are all good and honorable men. If you give them 60 WIRTZ: I so move that the matter be taken up by the days, they’re going to ask for more. If you give them 90 Style Committee, to conform. days, they’re going to ask for 120 days. I think the idea is HOLROYDE: I second the motion. to give them a lesser number of days so they will get down to work from the very beginning because legislators are CHAIRMAN: The Chair will incorporate that understandin€ just like we are. We are human, we like to loaf until the in the report, that it will be taken up by the Style Committee. last few days and then rush everything. Personally, I think The Chair will recognize Delegate Ashford who is trying this extension of time is just giving the legislators more to get her amendment before the house. I don’t believe it time to “dilly” around. has been offered yet. CROSSLEY: Point of order, Mr. Chairman. H. RICE: I wish the delegates would look at their manuals, pages 48 and 49, and they’ll find that the majority of the states ASHFORD: Mr. Chairman, I - - do try to limit the number of bills introduced into their leg CROSSLEY: Point of order. You just asked for a motion islature. The trouble is the legislature now has too many on Section 12, Mr. Chairman, which is one section that we worthless bills Introduced and that takes time to segregate adopted paragraph by paragraph. them all and expecially - - CHAIRMAN: Quite right, the Chair is getting a little CHAIRMAN: Is that done by constitutional provision or is dizzy. The Chair will now put the question on Section 12. that a sell imposed rule? TAVARES: Point of information about Section 12. It H. RICE: I’ll read just a sentence here. “As a result of seems like a trivial matter, but I think it should be under these constitutional provisions and legislative rules, a great stood. In the last paragraph of that section when it says, majority of states in some way attempt to restrict the intro “Regular sessions shall commence at 10:00 a.m.,” it means duction of bills.” I think that you will find that some say it 10:00 a.m. whatever time the legislature may enact from will take four-fifths of the legislature to introduce bills time to time. after the 40th day. I’m against this amendment. I think the legislature is long enough in 60 days and I think if it’s annual CHAIRMAN: Hawaiian Standard Time. you will find it’s plenty. TAVARES: Daylight saving or any other time the legis CHAIRMAN: The Chair will put the question. The ques lature enacts. tion is on the amendment enlarging the number of legislative CHAIRMAN: That’s so understood. Are you ready for days to 90 for a general session, 60 for a budget session, the question? All in favor signify by saying “aye.” Con and 30 for a special session, with the power to extend for an trary. Carried; additional 30 days. All in favor of the amendment signify by saying “aye;” Contrary. Amendment is lost. CROSSLEY: I now move for the adoption of Section 11. JULY 6, 1950 • Afternoon Session 187 WOOLAWAY: That’s already been covered, carried. anything to be allowed during the first session after state hood? CROSSLEY: It couldn’t be, it’s out of order, so I now move for the adoption of Section 11. CHAIRMAN: That is correct. The Chair might suggest to Delegate Ashford —I don’t know whether the delegate SMITH: I’ll second that.. heard that inquiry—the adoption of this amendment would CHAIRMAN: It’s been moved and seconded that Section preclude a change in the salaries of legislators, and what the 11 be adopted, and the Chair will now recognize Delegate delegate from Hawaii is inviting the delegate from Molokai’s Ashford. attention to, is just that. if you desire to have the second paragraph acted upon, that could be done separately. ASHFORD: I have an amendment to Section 11, to the entire section. HOLROYDE: I would like to ask Delegate Tavares or someone else in the law profession if that act now on the Section 11. The compensation of members of the books that allows them $15 a day, won’t that continue? legislature shall consist of a salary of the sum of $1,500 for each general session and the sum of $1,000 TAVARES: I assume it would under the Ashford amend for each budget session and the sum of $750 for each ment. The emoluments are mentioned. They are provided special session which sums shall be payable in such for by law. installments as may be prescribed by law, together with such additional emoluments as may be provided by law. HOLROYDE: That’s my understanding, so that won’t be No salary shall be payable when the senate alone is taken away, it will continue. convened in special session. TAVARES: Was there a second to that motion, Mr. No law directly or indirectly increasing the emolu Chairman? ments of the members shall be effective for a period of two years subsequent to its enactment. CHAIRMAN: Yes, there was a second. ASHFORD: I’m not in agreement with that suggestion. CHAIRMAN: You move the amendment. Is there a I don’t think that that would necessarily continue because second? that was the legislature of the Territory of Hawaii and ASHFORD: I move that amendment. we’re setting up a new legislatureby this State - - for the State. if the delegates will refer to Section 11 as included CHAIRMAN: Is there a second? here by the committee, it doesn’t give the legislature any WIRTZ: I second. power to raise their salaries, the salaries are frozen. CHAIRMAN: It’s been moved and seconded that Section CHAIRMAN: Could Delegate Tavares enlighten the Chair 11 be amended in accordance with the amendment offered as to what section of the Revised Laws this per diem is in? by Delegate Ashford, on the desks of the delegates. TAVARES: As I recall it I think it’s later than the Re ASHFORD: if I may speak to that. I incorporated in vised Laws of 1945. I think - - this Section 11 the salary schedule presented by the com CHAIRMAN: Here, we got it here from an expert. mittee although I think that salary schedule is far too low. For a regular session at the time of the adoption of the Or SAKAKIHARA: It was the 1945 session of the legislature. ganic Act, $1000 was given. Now we’ve had more than CHAIRMAN: 1945 session laws? 100 per cent inflation. if we are to have a truly representative legislature they SAKAKIHAHA: Yes, 1945 session law. must be adequately paid, particularly people from the other HEEN: Mr. Chairman, are you referring to the allowance? islands who have to come here and live away from their That was enacted I believe in 1947 and amended in 1949, homes, and unless they have adequate compensation, of where it was raised from $10 to $15 for the members of the course they can’t leave, particularly one-man businesses legislature from the outlying islands and where an allowance or what not, can’t come, but I did not attempt to amend that of $5 for incidental expenses was made for the members in the amendment I am offering because I didn’t want to from Oahu. ask too much at one time. The amendment which I do offer is to cover the situation NIELSEN: I’d like to ask Senator Heen, under this amend which now exists. The legislature has voted itself an emolu ment then there can be no allowance per diem to the outside ment of, I understand, $15 a day for legislators from the islands or the local representatives until they voted it for the other islands and a lesser amount for legislators from Oahu. next succeeding session? They couldn’t get It the first Now I am in hearty accord with that principle but I do not session after statehood, is that right? think that any legislature should be permitted to raise its own pay, and therefore the meat of my amendment is con TAVARES: I disagree respectfully with Delegate Ashford. tained in the second paragraph that “no law directly or in- We are going to have, I believe, a provision in the ordinances directly increasing the emoluments of the members shall and continuity of law portion of our Constitution which will be effective for a period of two years subsequent to its continue in effect laws not inconsistent with this Constitution. enactment.” I do not consider such a law inconsistent with this Constitu tion unless we provide otherwise specifically, and therefore CHAIRMAN: In other words, your amendment simply it will be continued in effect until the legislature otherwise adds the second paragraph to the committee proposal, is provides, in my humble opinion. that right? FONG: I think the passage of this amendment will give ASHFORD: That’s the essence of it, yes. further strength to the opinion of Attorney General Tavares. There was a question as to whether the legislature could NIELSEN: I’d like to ask a question. This does freeze pass such a bill and there is still a question as to whether the salaries, however, at $1500 with no further per diem or the bill is valid or not. But with this amendment here, it 188 LEGISLATIVE POWERS AND FUNCTIONS would validate what the legislature has done, and I think if amount that was proffered. this amendment passes and nothing is said about the law However, I think it should be pointed out in the defense which is now in effect, that law will continue and the per of the territorial legislature that had taken some of these diem will still be paid. actions that their pay has been set by Congress in the Organic Act, and I think there’s been a legitimate effort to pay for PORTEUS: May I point out to the concern of some of some of the terrific expenses to which the outside legislators those from the outside islands that if the next legislature have been put by extended service in the territorial legisla anticipating statehood doubles the ante, when the first state ture, where in the last several sessions I don’t think we have legislature meets they’ll get double what it is today. It’ll failed to have a short extension, if not two or three extensions be a nice incentive for some of those that desire to see what of time. That has been, I think, very hard on those who have pay is established when the first state legislature meets. had to come here from the other islands and maintain, in Actually if there is a session of the territorial legislature effect, two homes. before a session of the state legislature such laws as are in effect will continue over. I think the former attorney CHAIRMAN: Chair will declare a short recess for the general, the delegate from the fourth district, is quite correct clerks. in his opinion. But don’t let’s make the assumption that it’s ASHFORD: Before a short recess is declared, Mr. $15 and $5. It might be nothing if it’s repealed and it might Chairman, I would like to withdraw the word I used. I think be something else if a different law is passed. that was in very bad taste and I would like to substitute for HE EN: If the Republicans are still in control of the leg the word “abominable,” the words “bad taste.” islature that might happen. C. RICE: Mr. Chairman, just one correction I want to NIELSEN: That’s the reason I brought that up because make. I think it was the Organic Act started with $500 for we are certainly taking a beating these days from the out the legislators, not a $1000. It was increased, I think, in side islands in this Convention. 1921. CHAIRMAN: The Chair will call the body’s attention to CHAIRMAN: Recess for five minutes. Act 1? of the Session Laws of 1949, which provides: (RECESS) A member of the legislature of the territory, other than members residing on the Island of Oahu, while CHAIRMAN: The Committee of the Whole will please attending any session of the legislature, shall be allowed come to order. Will the delegates please take their seats. fifteen dollars a day, which amount is to cover all per sonal expenses, such as board, lodging and incidental ASHFORD: With the consent of the delegate who seconded expenses, but not traveling expenses, and a member of my amendment, I would like to - - the legislature of the territory residing on the Island of CHAIRMAN: Will the delegate hold just a minute? Will Oahu, while attending any session of the legislature, the delegates please take their seats. Proceed, Delegate shall be allowed five dollars a day. Ashford. Now under the continuity of law section that statute is con ASHFORD: I would like to offer as a revised amendment, tinued; your amendment would not reach the vice, Delegate the second paragraph of the amendment, also substituting Ashford. for the word “emoluments” the word “compensation.” ASHFORD: Apparently rm not supposed to speak on this WIRTZ: I’ll accept the amendment. subject. FUKUSHIMA: I’d like to further amend the amendment CHAIRMAN: You certainly are, Delegate Ashford. by inserting the word “minimum” in the second sentence ASHFORD: The attitude of some of the delegates here before the word “salary.” seems to be that I am opposed to having the legislators CHAIRMAN: There is no word “salary” in the amendment, properly paid. I’m not; I think they should be, I think that’s Delegate Fukushima. The Chair understands - - the way you get good men, and particularly good men who have not private resources. But I think it is abominable FUKUSHIMA: There is; the second sentence, Mr. Chair for a legislature to vote money to itself. man. I mean the second line in the first sentence. PORTEUS: I’m sorry, but I feel that I can’t let that CHAIRMAN: Wait. Will you hold that just a second. pass unanswered. It’s all right for some of the delegates Does the Chair understand that the first paragraph of Dele to make remarks about the legislators. Legislators are used gate Ashford’s amendment has been deleted in its entirety? to being fair game by a great number of citizens. They would ASHFORD: Yes. expect, however, that those that had had some concept of the CHAIRMAN: So there is no language there relating to duties and the difficulties would perhaps speak a little more salary. kindly. I think I’m in a position to rise to this and speak on the matter because I was not one who ever voted for any FUKUSHIMA: In that event, Mr. Chairman, I’d like to increase in pay, for any retirement, or for any emoluments. amend Section 11. There were others that did; I did not. I think, however, that CHAIRMAN: What we have before us is Delegate Ashford’s the law as passed, while it was passed by a negative vote, amendment which is the last paragraph of the printed amend has worked to the advantage of the outside island legislators; ment before the - - distributed among the members, and the I think it has worked also to the advantage of the legislators word “emoluments” has been stricken orally by the delegate here on the Island of Oahu. In fact I might add that when and the word “compensation” inserted. That is what is it was - - the law was passed giving Oahu $5 a day the out before the house now. side islanders looked at those of us in Oahu and said smiling ly, “You vote ‘no,’ but your hand is out.” And I don’t know FUKUSHIMA: In that event, I’ll wait until disposition of that any of us who did oppose it then refused to accept the that is made. JULY 6, 1950 • Afternoon Session 189 FONG: I think it’s a good amendment. ASHFORD: Well, if it—I was going to say, if k please the court, Mr. Chairman. I think an indirect compensation TAVARES: In connection with voting on the amendment is when you, in addition—you notice I didn’t use the word or the amended amendment proposed by Delegate Ashford - - “salary,” I used the word “compensation” —and I think CHAIRMAN: No, it’s just on the amendment of Delegate that that includes any financial contribution to the office, and Ashford. She has changed that and the second has accepted I think it would unquestionably cover this ten or fifteen the change. dollars a day. Not this, but I mean if they start to increase it, I think that would be increasing their compensation as TAVARES: I move that it is the sense of this Convention distinguished from increasing their salary. that in so doing, we are not by implication holding that the per diem now paid under existing law would be invalid under WHITE: I’m not an attorney, but I wouldn’t interpret k the first part of the section. I think that should be clearly that way because I would think that the compensation would understood. apply to a salary, not to an allowance made for traveling or living expenses of that nature. CHAIRMAN: This would have a prospective operation when and if we become a state, as the Chair understands it. CHAIRMAN: That would be the Chair’s interpretation of the language. TAVARES: Yes, Mr. Chairman, but the deletion of the WHITE: I would like to go back. Personally, I think that word “emoluments” from Delegate Ashford’s first amend the amendment that Delegate Ashford offered, the first para ment might now lead to an implication that we didn’t want graph, is a good one. I see no reason why we shouldn’t put anything else brought in. I think it should be clear that we’re carrying over the existing construction of our Organic Act, in there that the legislature shall be entitled to other emol that the prescription of the compensation as salary does not uments as may be prescribed by law. There’s no reason why - - there’s no magic in having to continue k as an ordi prevent the legislature from putting up additional per diem nance. There’s no reason why k can’t go right into this for expenses, a reasonable amount to cover living expenses. provision so that there is no misunderstanding about it. CHAIRMAN: I don’t think that this Convention can pass FONG: After taking a look at this amendment, I have a on the propriety of that act of the legislature, Delegate question. Now you will note that the amendment says, “No Tavares. law directly or indirectly increasing the compensation of TAVARES: I think that this Convention can place a con members shall be effective for a period of two years.” I struction on any words that it wishes; and I believe that think k impliedly means that the legislature could increase it’s perfectly in order for us to say that it is the sense of the salaries of the members by that amendment. this Convention that we mean thus and so, at least as far as the Constitution is concerned. CHAIRMAN: That’s right, but that would have to be effec tive two years hence. HEEN: I rise to a point of information, Mr. Chairman. Do I understand the first part of the amendment, first pro FONG: So if the legislature says the salary of the mem posed by Delegate Ashford, has been deleted? bers shall be $5000, then the subsequent legislature can come in and get $5000. I don’t think that was the intent of Miss CHAIRMAN: That’s correct. The Chair will restate the Ashford. status of the amendment because the delegates have been moving about from place to place. Delegate Ashford has ASHFORD: That absolutely was, and I think the people offered an amendment to Section 11, the first paragraph of who return to the legislature would be an entirely different which she has now deleted, and offered an amendment which group. reads as follows; this is an amendment to Section 11; “No FONG: Now, Mr. Chairman, under those circumstances law directly or indirectly increasing the compensation of I don’t think that this is such a good amendment. the members shall be effective for a period of two years subsequent to its enactment.” CHAIRMAN: Do you change your vote? H. RICE: I’d like to see this amendment in the reverse. FONG: I change my vote if that is the intent. Now I This is one time when I don’t agree with Delegate Ashford. think that if you give the legislature the power to set their I think the way k’s set up it is an expense account. I’m in salaries from time to time and only to be effective two years the same category as Delegate Porteus. I did not vote for hence, k’s not the thing to be desired. I think that this Con this but I think it’s a very fair thing because this is an ex vention should set the amount of salary and then they should pense account and it can be deducted from your taxes. This stick on to that salary. $1500 they’re going to get, the first deduction is going to be H. RICE: I move we defer action on this and go on to - - 20 per cent for the Federal Government and then two per cent of the whole amount for the Territory. So you take 22 CHAIRMAN: We are now on Section 11. This is a pro per cent off and I think k’s only fair. I’d like to wrke k posed amendment to Section 11. into the Constitution that there should be a $10 expense H. RICE: I would like to offer another amendment in account for the legislators. place of Miss Ashford’s amendment and I’d like to have time CHAIRMAN: The Chair may call your attention, Delegate to get it written up. I’m not a lawyer myself. Rice, that in the section establishing a salary it would be ASHFORD: I will second the motion having full confidence perfectly competent to propose an amendment, a salary that I will agree with Mr. Rice even though he doesn’t agree plus expenses not to exceed blank dollars per annum. That,, with me. of course, would be fully tax exempt. CHAIRMAN: The question then is on the amendment of WHITE: I’d like to ask the movant of this motion, what Delegate Ashford. All in favor of deferring Delegate Ash do you mean by “directly or indirectly increasing compen ford’s amendment signify by saying “aye.” Contrary. sation”? Carried. 190 LEGISLATIVE POWERS AND FUNCTIONS WIRTZ: I understood the motion to defer went to the qualifications of its members. The section to which you entire section, not only the amendment. have reference has to do with the contested election, which is a very different problem. CHAIRMAN: That wasn’t the Chair’s understanding. ROBERTS: Well, there may be a contest of election in KING: Mr. Rice made the motion to defer action on the connection with the legislature. section. PORTEUS: Section 11. CHAIRMAN: Then the legislature is the sole judge. CHAIRMAN: The Chair will reverse itself then. ROBERTS: Well, unless you construe Section 5 to apply only to those areas other than the legislature and the consti WOOLAWAY: I believe Section 13 has been adopted, so tutional convention elections, otherwise there is a conflict. I now move for the adoption of Section 14. NODA: I second the motion. CORBETT: I don’t see how you can make the legislature judge in a contested election of its own members. It seems HEEN: I don’t know what the status of Section 13 is? to me that the point in putting that section in suffrage and CHAIRMAN: Has been adopted, on July 1, 1950. elections was to have a body entirely objective in its approach to the problem. You have a group of people sitting in judg ASHFORD: May I ask a question of the chairman of the ment on each other, and it is going to make a very difficult committee in regard to Section 14? Inasmuch as there is situation. In a contested election where there are facts to go a provision in another section for the judging of elections, on, it is quite a different story. would the chairman of the committee feel that this is desi rable to say, “Not withstanding any other provision of the CHAIRMAN: That’s a provision contained in our consti Constitution”? tutional history from its very beginnlng. Whether or not a person is qualified to sit in the legislature each house deter HEEN: I believe what the delegate just stated refers to mines; it’s a political question with which the courts cannot some provision in the article on suffrage and elections which interfere. provides for contested elections by a court of competent Are you ready for the question? All those in favor signi jurisdiction. Mr. Chairman, I must state that that provision fy by saying “aye.” Contrary. Carried. there gave the Committee on Style some concern and may be that provision should be eliminated altogether. But, if TAVARES: I now move that it is the sense of this Con it is going to be there, remain there, then the suggestion vention that any conflict in the article on suffrage and made by Delegate Ashford I think is in order. “Notwith elections should be controlled insofar as inconsistent with standing any other provision in this Constitution, each house the sections just adopted by this section. shall be the judge of elections and returns and qualifications CHAIRMAN: Is there a second? of its own members.” C. RICE: I second the motion. CHAIRMAN: With the understanding that the Style Com mittee will reconcile any difference, will that be satisfactory CHAIRMAN: You heard the motion. All those in favor to Delegate Ashford? signify by saying “aye.” Contrary. Carried. ASHFORD: Yes. In my opinion perhaps the exception - - WOOLAWAY: Section 15 having been adopted, I now two exceptions should be written into the article on suffrage move for the adoption of Section 16. and elections, that is, with the exception of any constitutional NODA: I second the motion. convention or the legislature. CHAIRMAN: Any discussion? If not, the Chair will put BRYAN: The last time that this question came up, I the question. All in favor signify by saying “aye.” Con pointed out that it may not have been exactly pertinent. This trary. It’s adopted. covers cases where there is no contest. Judges of elections in the other case, covered under the article on suffrage and WOOLAWAY: I now move for the adoption of Section 17. elections, there would have to be a contest before it could NODA: I second the motion. be determined. CHAIRMAN: It has been moved and seconded that Section CHAIRMAN: This only applies to the legislature; it 17 be adopted. Any discussion? Chair will put the question, does not apply to the executive officers of government that all those in favor - - maybe elected. Any further discussion? If not, the Chair will put the question. TAVARES: I just wanted to refresh the melnories of those present. I am not going to argue too much one way or the ROBERTS: I’m not quite clear as to the disposition you other. There is a possibility of a need sometimes for faster are making of this. In Committee Proposal No. 8 on suffrage action than one reading on each day. However, I am not going and elections, there is a sentence which reads, “Contested to labor the point. If the delegation still feels that as we have elections shall be determined by a court of competent juris operated for 50 years we can safely operate in the future, why diction In such manner as shall be provided by law.” Unless that’s all right. There are some constitutions that allow by you are going to make some exception in the case of consti a two-thirds vote or some other special manner, the legis tutional convention elections and elections involving members lature or each house of the legislature can waive that separate of the legislature, those two sections are in conflict. I think reading on each day for emergency measures. that the Committee on Style should be directed by this com mittee to resolve the conflict in some specific way, either CHAIRMAN: Chair will put the question? All those in change the article on suffrage and elections or make some favor - - provision in the present article with regard to that. BRYAN: I’d like to put Delegate Tavares at ease. If the CHAIRMAN: This language is a common provision, that legislature were to pass a bill [by] three readings in one each house shall be the judge of the election returns and day, the only objection could be on the grounds of unconsti JULY 6, 1950 • Afternoon Session 191 tutionality. While that was being labored in the courts they bill is a very strong power. He possesses legislative powers could repass the same law and take three days to do it. as well as executive powers. Many a time we have a bill CHAIRMAN: That doesn’t make him too happy. passed after much deliberation in both houses, passed unani mously; and then the bill is certified to the governor, the ROBERTS: I don’t think that statement should be left in legislature adjourns sine die, the governor doesn’t do a our record uncontested. I think the intention of this thing within ten days and the bill is killed. This will prevent section is quite clear. The purpose is to see to it that no that and I think much of that power we have given to the legislation is passed hurriedly and without due and careful governor may now be taken away from him as far as legis consideration by the legislature. The intention is to pro lative matters are concerned. vide three separate readings. I for one would not suggest that we look aside at this thing and say make it a consti CHAIRMAN: How would the legislature reconvene under tutional section and violate our Constitution. I think the your amendment, Delegate Fukushima, just automatically language is clear and ought to stay that way. or by proclamation? CHAIRMAN: The language is perfectly clear. Are you FUKUSHIMA: Automatically, Mr. Chairman. ready for the question? All those in favor signify by saying CHAIRMAN: I don’t think you’ve said enough in here to do “aye.” Contrary. Carried. that. WOOLAWAY: I now move for the adoption of Section 18. FUKUSHIMA: This follows the New Jersey Constitution NODA: I second the motion. and I believe that is done automatically in New Jersey. It says without petition or call, 20 days from the date of ad CHAIRMAN: It has been moved and seconded that Section journment sine die. 18 be adopted. FUKUSHIMA: I have an amendment to offer to the second CROSSLEY: I would like to speak in favor of the amend paragraph of Section 18. The amendment has been distri ment. I think it is a good amendment and serves a very useful purpose. There has been a lot said here about giving buted to the delegates. At this time I would like to move the governor too much power and I think this is one way in the adoption of this amendment. Amend the second paragraph which we can take what would very well be a legislative of Section 18 to read as follows: power away from him. It accomplishes one more thing in if any bill is neither signed nor returned by the gov that it makes everyone take a position on every piece of ernor within ten days, Sundays and holidays excepted, legislation that has been passed by the legislature, and I after having been presented to him, it shall become a think that is worthwhile and I would be in favor of this law in like manner as if he had signed it, unless the leg amendment. islature by its adjournment prevents its return, if on the tenth day the legislature is in adj ournment sine die, TAVARES: Mr. Chairman, may I ask a question of the the bill shall become a law if the governor shall sign it experienced legislators here? This sets an absolute time within twenty days, Sundays and holidays excepted, of 20 days after adjournment within which the governor after such adjournment. On the said twentieth day the must consider all bills. At the present time, the require bill shall become a law, notwithstanding the failure of ment is that the governor has ten working days or ten days the governor to sign it within the period last stated, un exclusive of certain days, like Sundays and so forth, in which less at or before noon of that day he shall return it with to consider a bill after he receives it. Experience has shown his objections to the house of origin at a special session that sometimes at the end of a session the legislature passes of the legislature which shall convene on that day, with say 100 or 150 bills or more and some of them are very long out petition or call, for the sole purpose of acting pur and it takes them quite a number of days to even write those up and engross them, so that the time of ten days doesn’t suant to this paragraph upon bills returned by the gover nor. A bill reconsidered at such special session, if start running until the governor receives them. This will approved upon reconsideration by two-thirds of all the require that your clerks engross all of those bills and get members of each house, shall become a law. them up to the governor in that 20 day period. The query in my mind is, will that 20 days be sufficient to give the No salary shall be payable when the legislature is convened for this purpose. typists and so forth in the houses of the legislature time to engross the bills and at the same time give the governor CHAIRMAN: Does this relate to the second paragraph adequate time to consider them? From my recollection only? those bills come dribbling into the Secretary’s office now FUKUSHIMA: Yes, it does. at the rate of a few a day, and it sometimes goes on for ten or 15 days before the last bill is received by the Secre J. TRASK: I second the motion. tary’s office and transmitted to the governor. FUKUSHIMA: This amendment has to do with the subject FUKUSHIMA: The Constitution of New Jersey provides matter of the pocket veto. We have in this Convention set 45 days. I thought perhaps 45 days was a little too long. up an executive with very strong powers. Here, as proposed Therefore, after consultation with some of the delegates, in Committee Proposal No. 29, the governor has the power we changed it to 20 days. to veto bills when the legislature adjourns sine die, without signing the bill certified to the governor. My amendment CHAIRMAN: Delegate Fukushima, are you referring to permits the legislature to reconvene for the purpose of re the executive article on page 14 of the New Jersey Consti considering bills that are not passed by the governor, if tution? he should fail to sign a bill within 20 days from the date of FUKUSHIMA: That is correct. adjournment the bill automatically becomes law, unless he shall return the bill to the legislature for reconsideration. CHAIRMAN: The delegates have that before them. This will take away some of the powers which the governor FUKUSHIMA: if the period of 20 days is too short, I now has. I feel that the governor’s power to pocket veto a feel that the New Jersey language of 45 days could be sub- 192 LEGISLATIVE POWERS AND FUNCTIONS stituted for 20 days and I shall now so amend my amendment CHAIRMAN: But the substance of it is the same, is that to delete “20” and insert in lieu thereof, “30.” correct? HEEN: Point of information. What was the last state FUKUSHIMA: That is correct. ment? HEEN: I think Delegate Tavares has a point there. I CHAIRMAN: Change the twentieth day to the thirtieth think the only action that the legislature ma9 perform after day, about the middle of the paragraph of Delegate Fukushi the bill is returned to the legislature is to either override ma’s amendment. the veto or sustain the veto. I don’t think it has power to reconsider that bill at all under the language used here in AKAU: I second that. this proposed amendment. WIRTZ: There are two places. In the ninth line the “20 SILVA: That is right, or introduce a new bill to comply. days” should be changed to “30 days,” and the next sentence the “thirtieth day.” Is that where you want to make the HEEN: They can’t even do that. changes? CHAIRMAN: The Chair will call the attention of the body HEEN: I would suggest 45 days. That would give ample to the omission from Delegate Fukushima’s amendment of time for the clerks to engross those bills and give ample the following language in the New Jersey Constitution. “At time for the governor to ponder over them. He has to send such special session a bill may be reconsidered beginning those bills over to the attorney general’s office for the on the first day in the manner provided in this paragraph opinion of the attorney general’s office and adequate time for the reconsideration of the bills and if approved upon should be given the governor for that purpose. reconsideration by two-thirds of all the members, it shall H. RICE: I think that Delegate Heen is quite right. If become law.” That would meet, I.assume, what Delegate we are going to have this in the Constitution we ought to Tavares is raising here. have 45 days. As you know the last legislature of ‘49, they SHIMAMURA: Isn’t there similar language contained in appropriated $100,000 for Manulani Hospital and $100,000 Delegate Fukushima’s proposed amendment in the last sen for the Hilo Hospital and both of them were pocket vetoed tence? by the governor. Of course, now with the appropriation bills going through early in the session, the appropriation bill CHAIRMAN: That is correct; the Chair is in error. won’t be affected so much by this veto power of the governor, and there may be other legislation but it is legislation that TAVARES: I still think that unless we adopt Delegate would take time for the attorney general’s office to go over Heen’s interpretation that they must only pass it as is over thoroughly and I think if you will accept the amendment of 45 the governor’s veto or sustain the veto, I think you are going days, I will go along with it. to get into some more trouble. Then you have another pocket veto coming up if the legislature makes an amendment, so FUKUSHIMA: The amendment is accepted. what do we do in that case, go on ad infinitum? I think unless we adopt Delegate Heen’s interpretation that they must pass CHAIRMAN: Will the delegates make the appropriate it as is without amendment, then we should have further changes: “~~“ in lieu of “20” in the two places where they language to show the circumstances under which they can appear. pass it or to make sure that if they amend it and the gover KING: The only reason I rose, Mr. Chairman, is that nor then doesn’t approve it, why then it is pocket vetoed Delegate Fukushima was ready to accept 45 days in the first permanently this time. instance and we sang out 30 to him, so I think he is quite willing to have the 45 days if those who are experienced in SILVA: The usual procedure, if the governor finds fault in a bill before the ten days are up, he calls the introducer the legislature think the longer period is desirable. of the bill and makes some suggestions. Then the Senate CHAIRMAN: Any further discussion on the proposed may recall the bill from the governor’s office for recon amendment? If not, the Chair will put the question. sideration before the final veto period. That’s the usual procedure, you recall - - to have the bill recalled. TAVARES: One more question. I wonder if there is any construction of this provision as to this situation. The gov HEEN: That is correct if the legislature is still in ses ernor vetoes a bill, the legislature reconsiders it and the sion. But this is at a time when the legislature adjourns veto message has a good point in it and the legislature amends sine die. that bill to conform to the governor’s objection. Must they pass the bill as is or can they on reconsideration make TAVARES: I think this amendment is important enough amendments to that bill? I think that point ought to be and I am in favor that if it can be worked out that we should cleared up. defer and see if we can work out that problem by research or otherwise in the meantime. I move vie defer until to CHAIRMAN: Can you enlighten us on that, Delegate Fuku morrow this section. In the meantime, we will try to do shima? a little research on it. FUKUSHIMA: I believe any bill returned for reconsider HEEN: Second the motion to defer action. ation will follow the same procedure, and that is Section 19 - - as provided in Section 19 of this Proposal. CHAIRMAN: Motion is on the question of deferment. Are you ready for the question? All those in favor signify by CHAIRMAN: May the Chair ask whether or not this is an saying “aye.” Contrary. It is deferred. exact dpplication of the section of the New Jersey Constitu tion? It seems greatly simplified as against the New Jersey WOOLAWAY: I move for the adoption of Section 19. provision. NODA: I second the motion. FUKUSHIMA: I think it has been simplified. I asked the Legislative Reference Bureau to prepare thin in line with CHAIRMAN: It has been moved and seconded that Section the New Jersey Constitution. 19 be adopted. Any discussion? If not, the Chair will put JULY 6, 1950 • Afternoon Session 193 the question. All in favor signify by saying “aye.” Contrary. WIRTZ: Then I would like to speak against the amend Carried. ment for this reason. I don’t see how the house, a member of the legislative branch, can punish a person who is con WOOLAWAY: I now move for the adoption of Section 20, victed in court. They could provide, they could delegate I believe as amended. to the court by law a certain punishment and allow the court NODA: I second the motion. to punish them. WOOLAWAY~ Was the amendment made by Delegate CHAIRMAN: That is correct. That is what the Chair Roberts carried? Or was it defeated? Then I change my tried to point out to Delegate Roberts in the last hearing motion to adopt Section 20 as is. on this. CHAIRMAN: That was deferred. My notes do not show TAVARES: I wonder if Delegate Roberts’ words were - - that Delegate Roberts’ motion was carried. Am I in error the first words he used were not necessarily such as to re on that? quire only a court to convict; he said an authority or some competent authority. Now as I read it, I would like to move ROBERTS: We discussed the matter and it was felt that to amend that to substitute for the word Delegate Roberts it was controversial and we deferred action until today. had, the word “found,” “who shall be found guilty.” Then CHAIRMAN: The Chair thought it wasn’t controversial the finding can be by the legislative body. I thought that and it turned out to be very controversial. was what was intended. There must be a finding of guilt. Unless we are going to eliminate the power to punish for ROBERTS: I know the delegates are tired and it is almost contempt altogether from a house, we ought to leave it in five o’clock. something like this. If we want only a court to punish, then CHAIRMAN: We have lots of time. we should delete this provision entirely about the power to punish and leave it to laws to be passed. ROBERTS: I have too. I think we ought to give pretty close attention to this particular one. My batting average CHAIRMAN: The Chair would suggest that that would be has not been very good this afternoon. a desirable amendment. That is exactly the situation in the Federal Constitution. HEEN: I would suggest that Mr. Roberts have his amend ment typed and mimeographed because it will require some ROBERTS: I move to delete Section 20. study before we can act. KAGE: I second the motion. ROBERTS: The amendment is very simple. May I defer this then to prepare - - CHAIRMAN: Moved and seconded that Section 20 be deleted. CHAIRMAN: Will you. please address the Chair? TAVARES: In saying that we should do one or the other ROBERTS: In line with the suggestion made by the I certainly didn’t want to imply that I was in favor of delet senator, may I ask that this section be deferred until to ing the section. There is a certain amount of force, a morrow? great deal of force in the contention that a body like the SAKAKIHARA: I second the motion. legislature should be able to protect itself against contuma cious conduct in its presence, and if you require them to go CHAIRMAN: Do you move that it be deferred? each time to the courts to bear that out you are placing the ROBERTS: if that is the consensus of the Convention. body in the power of the courts to that extent. The legislative The amendment is quite simple. body when it is deliberating, deliberates for only a short time, if anybody gets in there and starts being contemptuous CHAIRMAN: What is the amendment? and delays its proceedings, he is performing a great dis ROBERTS: The amendment is to delete the words “be service to the community, if they don’t have the power to guilty” and substitute the words “have been convicted.” So make summary punishment for contempt—and this is small, the sentence would read: “Each house may summarily it’s only 30 days at the most, it’s not a large penalty—why punish by fine, not exceeding $100.00, or by imprisonment, then you force them to go into court, and then by the time not exceeding 30 days, any person not a member of the you are through with court the session is over. I think they legislature who shall have been convicted of contempt of should have some summary powers. such house or of any committee thereof.” KING: I understood that this section was condensed from CHAIRMAN: Is there any second? What do you mean the section in the Organic Act, but the Organic Act very by the word “convicted”? Convicted where? specifically says what Delegate Tavares mentioned a moment ago but what is not in this section, that it has to be in the ROBERTS: Convicted by competent authority to pass presence. So the Organic Act says, “That each house may on the question. punish by fine, or by imprisonment not exceeding 30 days, CHAIRMAN: That would defeat the entire section. The any person not a member of either house who shall be guilty word “convicted” as you use it refers to the conviction in of disrespect of such house by any disorderly or contemptu court. ous behavior in its presence or that of any committee there of,” and so forth. Now this section doesn’t say that. It says ROBERTS: That’s correct. that “Each house may summarily punish, by fine not exceed CHAIRMAN: This has to do with finding guilty within ing $100 or by imprisonment not exceeding 30 days, any per the body itself. son not a member of the legislature who shall be guilty of contempt.” They may be guilty of contempt not in the WIRTZ: Has there been a second to the amendment? presence of the legislature. I feel that some language more CHAIRMAN: There was a half-hearted one on my left, closely approximating the language of the Organic Act would but I don’t know who made it. be more appropriate. 194 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: The question is on the motion to delete. The legislature shall by law provide for the manner of procedure of removal by impeachment. SHIMAMURA: I agree with the last speaker. The Organic Judgments in cases of removal from office shall not Act also provides for notice and opportunity to he heard extend further than to removal from office and disquali which this does not. In fact - - fication to hold and enjoy any office of honor, trust or CHAIRMAN: We are not debating this section, we are profit under the state; but the person convicted may debating the question of deleting it. nevertheless be liable and subject to indictment, trial, judgment and punishment according to law. HEEN: I move we defer action upon this section. CHAIRMAN: Will you read that second sentence as you CHAIRMAN: We did that once before. have amended it, Delegate Okino? HEEN: Until this point can be ironed out. OKINO: Second paragraph. “The legislature shall by CHAIRMAN: The Chair doesn’t feel that it should be law provide for tin manner and procedure of removal by deferred. However, if there is a motion. Is there a motion impeachment.” to that effect? Is there a second that we defer? DELEGATE: I second the motion. C. RICE: I’ll second that motion to defer. I happen to have been one of those chosen while in the Senate to try a HEEN: I move that action on this amendment be deferred so that we can give it some study. I have no particular objec case before the Senate. It was the Desha Bathing Suit Act, tion to it but I would like to give some study before voting on do you remember? It happened to be a California firm the amendment. that Senator Desha was very outraged that the advertise ment that this particular firm had, and that party happened OKINO: I have no objection to defer action on the amend to be down here visiting us. We got him up before the leg ment which I have just offered. islature and made a Christian out of him. I think you could CHAIRMAN: Chair suggests that you get a reprint of it make a Christian out of quite a few people here if you bring with your corrections. them before the body. OKINO: I shall do that. CHAIRMAN: What was the judgment, guilty or not guilty? WIRTZ: I move that we defer action on the entire Section C. RICE: Guilty. 21. CHAIRMAN: What was the sentence? WOOLAWAY: I second the motion. HEEN: Question is on the motion to defer. CHAIRMAN: Moved and seconded that we defer action CHAIRMAN: Question is on the motion to defer. All in on the entire Section 21. All those in favor signify by say favor signify by saying “aye.” Contrary. It’s deferred. ing “aye.” Contrary. Carried. Deferred. WOOLAWAY: Let’s try Section 21, so I now move that WOOLAWAY: Last but not least, Section 22, I now move Section 21 be adopted. for its adoption. NODA: I second the motion. NODA: I second that motion. OKINO: I should like to offer an amendment to Section CHAIRMAN: Moved and second that Section 22 be adopted. 21. Before making a formal offer of my amendment I should Any discussion? like to remove some doubt or confusion, confusion which WIRTZ: I should like to at this time move to defer for might have resulted by reason of the fact that I had circulated this reason: Dr. Larsen is interested in this particular a proposed amendment yesterday. Will you discard my section, having been one of those who signed the original amendment dated July 5? proposal, and I have been informed that he would like to, CHAIRMAN: The one relating to judiciary? or intends to make an amendment to the section as contained in the committee proposal. For those reasons, I move to OKINO: No, Mr. Chairman, it refers to Section 21 of defer. Committee Proposal - - yes, that is correct, I understand what you mean now. Now before I make the offer of this C. RICE: I second the motion. amendment which I have circulated among you, will you CHAIRMAN: All in favor signify by saying “aye.” Con please make the following addition. You will note in the trary. Carried. fourth line a mark inserted after the word “require.” Will you insert the following: “excepting justices of the supreme J. TRASK: I move that we rise and report progress and court and judges of the circuit court” comma. And I would beg leave to sit again. like to insert further, in the second paragraph following the PORTEUS: May I point out that this afternoon we had a word “manner” which is the last word in that line, insertion: conference where - - at least we tried to agree that a week “and procedure of removal by impeachment,” delete the from this Saturday we would wind up the affairs of this Con preposition “of” appearing before the word “impeachment.” vention. A good deal of time has been spent, properly so, I niove at this time, Mr. Chairman, to offer that amendment in exploring many of these sections. I don’t ‘Want to imply to Section 21 of Committee Proposal No. 29. that it is my desire to cut anyone out from full exploration, Section 21. Removal of officers. The governor, other but nonetheless after debating sometimes 15 or 20 minutes elective executive officers, and any appointive officers or half an hour we have had these matters deferred until for whose removal the consent of the senate is required, tomorrow. Now that means that tomorrow, if we come up excepting justices of the supreme court and judges of the having already deferred each of these matters once already, circuit courts, may be removed from office on impeach it is to be hoped that those who wish deferment will be pre meñt for such causes, as may be provided by law, and pared at that time to present any amendments they may have. upon conviction of the charges against such officers. There have been others of us who have not spoken this after- JULY 7, 1950 • Morning Session 195 nopn on these sections, some because we thought the ideas FUKUSHIMA: I have an amendment to the amendment. were good and wanted to hear it out, but some of us because we were prepared to vote. We didn’t want to take the time CHAIRMAN: Will you hold that just a moment so we can and stand up and say, we were ready to vote and we were get the parliamentary situation cleared? for the matter. But I hope that tomorrow, at any event, all KELLERMAN: May I suggest that we discuss this para those that have perfecting amendments to those matters graph by paragraph. Take up the first paragraph and vote being presented will be prepared to adopt them, I mean upon that separately from the second paragraph. present them, because I think we’ve go~ to go forward with the article and further deferment will only postpone coming CHAIRMAN: That isn’t the parliamentary situation. I to grips with these particular problems. would call that to Delegate Rice’s attention. The vote on this amendment would defeat the entire amendment. They’re CHAIRMAN: Chair would like to ask the President tied up together. They would have to be offered separately. whether or not we would be able to go forward with this and wind it up tomorrow morning, Mr. President. H. RICE: I will so offer them separately. KING: That will be the first order of business, other CHAIRMAN: The motion is on the adoption of the first than any third or second readings on the Clerk’s tables. paragraph of the amendment proposed by Delegate Rice. Is there a second? Will the second accept that? CHAIRMAN: Otherwise, if we have a delay, the arguments won’t be fresh in the minds of the delegates. A. TRASK: Iwill. KING: I would like to second what Delegate Porteus has CHAIRMAN: We are now dealing with the first paragraph just said, that those who have amendments not thoroughly of Delegate Rice’s amendment - - proposed amendment to ready to present them in final form would work on them to Section 11. night and be ready to present them tomorrow morning so FUKUSHIMA: I have an amendment to offer to this that we may adopt or reject them, as the case may be. amendment, the first paragraph of this amendment. In the CHAIRMAN: Motion is that we rise and report progress. second line after the word “a” - - All those in favor signify by saying “aye.” Contrary. ASHFORD: Point of order. Has it not been ruled that Carried. two amendments can’t be made to an amendment? CHAIRMAN: That is correct. That’s why the Chair in JULY 7, 1950 • Morning Session terrupted in the beginning and then the point escaped the Chair’s mind. In order to clear the parliamentary situation CHAIRMAN: The Committee will please come to order. I was wondering if the delegate from Molokai would be will Will the delegates take their seats? We have deferred the ing to withdraw her amendment at this time, so that we have consideration of Section 11 relating to the salaries and com one amendment before the house. If not, the Chair will have pensation of members of the legislature. There was an to rule Delegate Fukushii~a out of order. Is that agreeable amendment proposed by Delegate Ashford. Delegate Rice to the delegate from Molokai? at the close of the last session requested time in which to prepare an amendment to Delegate Ashford’s amendment. ASHFORD: Yes. The Chair recognizes Delegate Rice. CHAIRMAN: Then we have one amendment and you are H. RICE: On the delegates’ desk is Section 11 amended in order. Proceed, Delegate Fukushima. to read as follows. It’s in two paragraphs. If you take the FUKUSHIMA: In the second line after the word ~‘ a” and one in two paragraphs, that’s the amendment that I would before the word “salary” insert the word “minimum.” In offer at this time. the same line delete “$1,500” and insert in lieu thereof CHAIRMAN: Do I hear a second? “$2,500”; in the third line delete “$1,000” and insert in lieu thereof “ $1,500.” I move the adoption of the amendment WIRTZ: Second that motion. to the amendment. H. RICE: Section 11 to read: DOl: I second the motion. The members of the legislature shall receive a salary CHAIRMAN: Delegate Fukushima, the Chair would like of $1,500 for each general session and $1,000 for each to ask you a question. By the insertion of the word “mini budget session and $750 for each special session, and in mum,” did you intend that the legislature would have power addition thereto an allowance which shall be fixed by to increase the salary over and above the minimum? law not to exceed a per diem of five dollars for members from the island of Oahu and fifteen dollars for members FUKUSHIMA: That is correct, Mr. Chairman. from the other islands, which sums shall be payable in CHAIRMAN: In other words, thin would not be fixing of such installments as may be prescribed by law. When the salary, but simply leave it to the legislature with a the Senate is convened in special session alone the mem floor on the salary of $2,500. bers shall receive no salary. FUKUSHIMA: That is correct. That’s the first paragraph. The second paragraph reads: CHAIRMAN: Any discussion on the amendment? In no case shall the total expenses for officers and employees for each house exceed the sum of $1,000 per ROBERTS: I have a question on that first - - on that calendar day during any general session, nor the sum paragraph. As I read the paragraph, there’s a minimum of $500 per calendar day during any budget or any special salary set in the Constitution and the legislature may session. change the per diem as prescribed by law. I move the adoption of this amendment. CHAIRMAN: That’s what the Chair was calling attention to, Delegate Roberts. I believe there would have to be fur A. TRASK: I second that motion. ther language to conform to the intention of the movant of the 196 LEGISLATIVE POWERS AND FUNCTIONS amendment. In other words, you would have to have a grant competent men as possible for the job. I have no objection of legislative power to permit an increase over and above to the $2,500, although I think it’s a little high. I have no the $2,500 in this section, I believe. objection to the $1,500 for the budget session or for $750 for the special session. I think, however, that the matter of ROBERTS: Are we going to vote on an imperfect amend the amount to be received ought to go into the schedule for ment? the first legislature. The legislature then should be free CHA IRMAN: That’s the parliamentary situationunless to raise the salary as it sees fit but no raise shall go into Delegate Fukushima wishes to amplify his amendment. effect for that particular session. if the legislators think the salary is too low, when conditions change they ought to FUKUSHIMA: I didn’t get the question. be permitted to make the adjustment. They will not act in CHAIRMAN: It has been directed to the attention of the violence against public opinion and public opinion will see movant the same point the Chair called to your attention, to it that no undue salary increases are to go into effect and that this purports to fix a minimum salary and yet it does it will apply only in subsequent sessions, and therefore, Mr. fix a salary and there is no grant to the legislature to ex Chairman, I think we ought to defeat the amendment. ceed the minimum. FONG: I’d like to speak in opposition to this amendment. FUKUSHIMA: No grant to the legislature? You will note that the figure proposed for the legislative CHAIRMAN: No grant of legislative power to pass a law session is $2,500, and five dollars per day for members on to exceed the minimum. on Oahu will be $300 for sixty working days, giving us a total of $2,800 for the general session. The budget session FUKUSHIMA: Is that necessary in a constitution? The is to be paid $1,500. Assuming that the budget session will legislature has that power to increase the salary of any take thirty days, at five dollars a day it will be $150. If office. What we’re trying to prevent here is for the legis you add all that up, it will give us a total of $4,450, that is lature not to go below a certain amount. The legislature for a legislator from the island of Oahu. We go to the out may always increase the amount if it saw fit without any side islands and we have $15 per diem for sixty days giving legislative grant in the Constitution. a total of $900. Add that to $2,500 you get a total of $3,400 CHAIRMAN; In other words, [as] you read it this would for one session. You add $1,500 for the budget session. An constitute no prohibition. I think that is correct, Delegate other thirty days at $15, you get a total of $450. You add all Roberts. The question is on the amendment. of that, the outside islanders will get a total of $5,350 for two years. By this amendment and by giving the legislators H. RICE: Why I didn’t vote for the allowance originally these sums of money we will be creating a legislature of in the legislature is because the salary of the legislators professional legislators and housewives. Now when I say were fixed by the Organic Act, and I felt that in passing this that, I don’t want the housewives to be sore with me. per diem for the legislators, they were in fact increasing It will boil down to this, that the men who are competent their own salaries. That’s why I feel that if we’re going to to run for office will not have the time to go from house to have a per diem allowance it should be a part of the Consti house and buttonhole the candidates [sic]. The only persons tution, and if it reads as an allowance for expenses as I say that will have the time to buttonhole the candidate [sic] in the then that could be a deduction from taxes. district will be the housewives who will not be employed but who will be able to spend their time for the sum of $4,450 CHAIRMAN: Are you ready for the question? The ques a year. Now $4,450 a year is almost 200 per month and I tion is on the amendment. am beginning to think that we will create here in the Terri ROBERTS: I would like to speak in opposition to the tory of Hawaii a bunch of professional legislators who will amendment. We put a section in the executive article pro do nothing or who will have so little employment that they viding for a salary in the Constitution. The purpose of put could afford to spend the time going from house to house ting that salary in was to fix a salary. I argued at that time to buttonhole the electors. that there was no place in the Constitution for the setting of Many people will say the electors are smart; they will fixed figures in terms of any salary. There is a problem vote for a man who has ability. Now, you will note that in in terms of the first governor and there is a problem in most of our district, the districts are cut down so that we terms of the first legislature, but that figure ought to go elect either three or four people in the district. I would into the schedule and ought not be a part of your basic Con admit that if there were only one person running probably stitution. Once you place a figure in the Constitution, that the elector will exercise his opinion and give the best man does not then make it open for the legislature to change it. the vote, but when you have three or four people running The purpose of putting it in the Constitution is to fix the then the votes are scattered all over the place and the man salary, and I assume that the basis for putting this in is to who buttonholed the electorate will be the one that will have fix the salary at a specified number, $2,500. sufficient edge in the election to get elected. Now, I am saying that we are paying too much to our CHAIRMAN: No, the purpose of the proposed amendment legislators here from the standpoint of the public interest. is to fix a minimum and permit the legislature to exceed the I believe that if a man runs for public office that he should minimum. Are you ready for the question? devote some of his time for the public interest and not ex ROBERTS: Mr. Chairman, I haven’t finished. pect that he be reimbursed for everything, for the time that he has put in. The amount should not be too low so that it CHAIRMAN: Well, you stopped talking. will prohibit the man who hasn’t got the means to run. The ROBERTS: Just to give the Chair a chance to interrupt. sum of $1,500 for one session, for the general session, and $1,000 for the budget session is plenty enough; $2,500 for CHAIRMAN: Proceed, Delegate Roberts. two years. At the present time your legislators are only ROBERTS: Thank you, Mr. Chairman. I believe that this getting $1,000 plus the per diem. In this case here we are section ought to be defeated. I certainly favor as high a increasing it $1,500 for the biennium and I think that is salary as possible for the legislators to attract as many plenty enough money for your legislators. JULY 7, 1950 • Morning Session 197 We are limiting the session to sixty days only, and stood for office on the basis that whatever they got out of the special session, that is extra session—the governor can job—and it would certainly be a more lucrative one under call extra sessions for a few days —and I think if we pass this amendment—has been as good as they could do under this amendment we will be creating here in the territory any form of work they might choose. something we will be very sorry for. We will be creating I don’t think that’s the purpose behind the increase in a group of political politicians, that is professional poli salaries. I believe that Delegate Fukushima is honestly ticians, and a group probably of women who will be able to trying to get a better type of person to serve and there’s devote their time in going from house to house to canvas - - no question that there are many very competent people who to buttonhole the candidates [sici. just can’t afford to serve because the remuneration is not Now one thought, another thought and I will quit. When I great enough. However, I don’t think that this accomplishes talk about professional legislators I’d like to liken him to a that. I don’t think that it’s enough money to get the highest professional gambler. Many of us look at the professional type of man. I think it’s still an in-between-the-road figure. gambler from the standpoint that he is a man who goes out On the other hand, I’m not sure that the Territory can pay and gambles professionally and makes a lot of money. Now the figure at this time that it would be necessary to pay to I have talked to a lot of professional gamblers in my life and get the highest type of man to leave. For instance, men in they go out with the idea that by playing percentage in a crap the professions who make such a sacrifice to go into this game, by playing for seven or eight hours they will be able type of work. to make eight or ten dollars a day, and if they make eight or But I think we’re all losing sight of the fact that the work ten dollars a day they will be satisfied in making that amount we’re doing here is community service. It should be, as it of money because it is a day’s work. Now, you will be creat is on many of us, a sacrifice, a personal sacrifice to serve ing here the same type of political thought - - same type of the Territory or the State of Hawaii. Now, you don’t make thought by giving them $200 per month. A man will go out a sacrifice if you make more money or as much money or if and say, “I have done my day’s work. I have seen my there is no sacrifice. To me a sacrifice is when you actually constituents and I think that this is my employment and I lose something in order to serve, and I think that if this feel that this employment pays me enough so that I can stick amendment were allowed to go through that it would defeat to it.” the very purpose for which it is intended and therefore I am against the amendment. GILLILAND: I don’t think this amendment goes far enough. CHAIRMAN: The Chair will put the question. CHAIRMAN: Can’t hear you. MAU: I’d like to ask the delegate from the fourth district, GILLILAND: I don’t know why the authors don’t add a Delegate Roberts, if I follow his argument correctly, he also pension alter one session of the legislature. would be against Section 11 in the committee proposal itself because that section in the committee proposal does set a SILVA: I can see that. Representative Fong probably salary for the legislators. Am I correct in that impression? is scared of those housewives, a little afraid of them, but that’s all right. The point I’d like to press at this time is ROBERTS: That is correct. I have an amendment which it’s the longest motion I have ever heard mentioned on this is being printed which will provide for the salary of the floor by Fong and I take pleasure in seconding that motion, legislators in a schedule and then have a provision in the that is $1,000 for the budget session and $ 1.500 for a regu Constitution giving the legislature the power to fix the salary lar session. So I second that motion. It’s about the longest as conditions change, but the salaries cannot go into effect motion I ever heard. for the people who vote on the salary. CHAIRMAN: The Chair understood that the motion was CHA IRMAN: The Chair will put the question. Delegate moved and seconded by Delegate Fukushima. There was Fukushima, do you desire to close the debate? a second to his motion and Delegate Fong was speaking in FUKUSHIMA: As the movant of the amendment, I’d like opposition to Delegate Fukushima’s motion. Is the Chair to say a few words. The statement made by Delegate Fong not correct in that? is certainly amazing to me, that he’s afraid of housewives FONG: I didn’t hear what Senator Silva said. and professional politicians. I’d like to see a government, in fact we all spoke of a representative government here. CHAIRMAN: He was saying some very bad things about If you have your salary as low as he and the others would you, Delegate Fong. like the salary to be, we will have only certain types of DELEGATE: He said we husbands are opposed to your individuals running—lawyers who can come out for couple remarks. of months, go back to their practice and pick up the way they left off; businessmen who do not give any services, but sell CROSSLEY: I would like to speak in opposition to the merchandise which others can do for him. That’s the type amendment, not because I’m afraid of housewives. I think of men you will get. You will also get the poor men who are that the women in this Convention have been helpful, for the financed and controlled by some others. That’s not the most part. type of legislators that we want. We want all, be they small CHAIRMAN: Careful, careful. or rich, to run for office if he is capable. We talk about representative form of government, then we come here and CROSSLEY: I still think I’m on safe ground. I think say we are afraid of housewives. They’re the people; if most of the people here have been helpful, for the most they can get in buttonholing voters, more power to them. part. As far as the figures are concerned, the statement was I’d like to speak in opposition to it because I feel - - in made that the State may not be able to meet these payments. part at least I don’t agree entirely with the delegate from I don’t think that’s well founded. The salaries of the legis the fifth, but I. too, am afraid of professional politicians. lators at this amount will not increase the expenses of the I think that if you examined a lot of people who have run legislature very much. Second paragraph of Section 11 will for office in the past, you would find that many of them have cut down the expenses of the legislature. That’s what is the 198 LEGISLATIVE POWERS AND FUNCTIONS trouble with the legislature today. We have too much pa Ayes, 33. Noes, 27 (Bryan, Castro, Corbett, Crossley, tronage. The janitors get much more than the legislators, Fong, Gilliland, Heen, Holroyde, Kam. Kellerman, King, Lai, the doorman gets more than the legislators, and so does the Larsen, Lyman, Okino, Porteus, H. Rice. Richards, Roberts, sergeant-at-arms and all the officers and the employees Sakakihara, Smith, A. Trask, J. Trask, White, Wirtz, Woola down to the lowest level. That’s the ridiculous situation way, Anthony). Not voting, ~ (Lee, Phillips, Wist). that we have today, and anyone who says that we have pro The motion is carried. fessional politicians coming into the horizon if we lift the salaries a little further up is certainly afraid of the type APOLIONA: I move for the tentative adoption of the first of government we should have. paragraph of Section 11. DOl: Mr. Chairman. CHAIRMAN: We’re still on the amendment. The second paragraph of the amendment is now before the house, Dele CHAIRMAN: The question is on the amendment. The gate Apoliona. Chair asked if there was anybody to speak and then per mitted Delegate Fukushima to close the debate. A. TRASK: I ask that, and I so move, that on the fourth line of the amendment alter the word “and,” strike all of DOl: I happened to be the one who seconded the motion that until the words “other islands,” so that the next words of Delegate Fukushima. would be “which sum shall be payable in such installments as may be prescribed by law.” CHAIRMAN: Very well. CHAIRMAN: Would you mind repeating that? The Chair DOl: I would like to speak in favor of the motion to is in doubt as to your amendment. amend. If we look at the motion to amend we will note that it reads, about the middle of the paragraph, “in addition A. TRASK: After the word “session,” which is the first thereto an allowance which shall be fixed by law not to ex word on the fourth line, put a period and strike the balance ceed a per diem of $5.” The words “not to exceed” I be of the sentence. lieve means that the legislature has discretion as to whether CHAIRMAN: In other words, you want to eliminate the they can give any per diem or not. That would mean that the per diem in its entirety. Your purpose is to eliminate the salaries of the legislators could be left at $2,500 and $1,500 per diem for expenses in its entirety? respectively as regards the different kind of sessions. Now the point is I do not believe a salary - - the fixing of a salary A. TRASK: That is correct, but retaining the last sen at $1,500 in the future might do justice to the legislators. tence which reads: “When the Senate is convened in special session alone the members shall receive no salary.” There is a possibility that the value of the dollar might change and that the salary must be changed again and I think the CHAIRMAN: Is there a second? There’s nothing before amendment provides for that and leaves it to the discretion the house. of the legislators. The argument advanced that the change in the value of the dollar can be met by changing the amount H. RICE: I’ll second the motion. of the per diem allowance, I think, is weak in that suppose SAKAKIHARA: May I ask the movant as to how he pro the dollar value drops right in half. I cannot conceive the posed under the Constitution to pay the legislators, in lump legislators - - legislature rather, changing the per diem sum or installment payments, by deleting the sentence, allowance to $30, and which is definitely prevented in this “which sums shall be payable in such installments as may amendment here. Therefore, I believe the amendment as be prescribed by law,” if that is deleted under his amend proposed by Delegate Fukushima should be carried. ment? Another point I would like to point out is that we should not confuse the cost of running the legislature and that of NIELSEN: Can I have the amendment again? the salary of the respective legislators. Salaries are paid CHAIRMAN: The amendment would place a period alter to attract good and able men. I am in agreement with the the word “session” on the fourth line of the first paragraph last paragraph, and that is to cut the expenses of the legis and strike out the rest of the language down to the words lature. “installments as may be prescribed by law,” leaving intact CHAIRMAN: The Chair will now put the question. The the last sentence, “When the Senate is convened in special motion is on the amendment - - Delegate Fukushima’s amend session alone the members shall receive no salary.” ment. A. TRASK: There has been a suggestion by the President FUKUSHIMA: I’d like to delete the word “minimum” and I’d like to withdraw my amendment. that I included in the second line. CHAIRMAN: You withdraw your amendment? The amend CHAIRMAN: Will the second accept that deletion? ment is withdrawn. DOl: Yes, Mr. Chairman. A. TRASK: I have a new motion. Strike out the following words, beginning with the second word on the fourth line, CHAIRMAN: The effect of that amendment would be to these being words, strike “and in addition thereto an allow fix the salary at $2,500, have the per diem as stated and the ance which shall be fixed by law not to exceed a per diem of rest of the amendment. $5 for members from the island of Oahu and $15 for mem DELEGATE: Roll call. bers from other islands.” That be stricken, and retaining the words which continue, “which sums shall be payable in CHAIRMAN: The Chair will now put the question. such installments as may be prescribed by law.” DELEGATE: Roll call, Mr. Chairman. CHAIRMAN: May the Chair inquire if you appreciated that the purpose of the original movant was to permit the CHAIRMAN: Is there a demand for roll call? The Chair allowance of a per diem which would not be treated as tax only sees three hands. The Clerk will call the roll. able income? JULY 7, 1950 • Morning Session 199 A. TRASK: That is correct. months, which is just what a sixty day session means. It goes from the middle or early part of February until the CHAIRMAN: Your amendment would defeat that purpose. beginning of May. It’s a full two and a half months. A. TRASK: That is correct. In addition to that they are put to the expense of going back to their islands to consult with their constituents and J. TRASK: I second the motion, Mr. Chairman. certainly occasionally they are justified in going back to) A. TRASK: Point of information. Would an acceptance see their families. There’s no traveling expenses that is by Delegate Rice, the original movant of this amendment, allowed for those trips back to the islands. They are put to if he accepts this amendment, would there be a necessity vastly more expenses than the people are who are living for a vote on this motion? here on Oahu. It is true that many of us who live here on CHAIRMAN: I think there would. That goes to the heart Oahu spend some money on various incidental matters. of Delegate Rice’s motion. That, however, is their option. It may be an enforced option Are you ready for the question? The Chair will put the where we feel it is necessary to do it, but nonetheless if we question. don’t want to do it, actually we don’t have to. I think that when a man comes from the other islands HOLROYDE: Our discussion yesterday brought out the and he finds that he’s staying at a hotel and costs him $12 fact that the per diem allowance now carried on the statute a day to stay and it costs him so much for his meals here, would still be in effect if the laws are continued as such. that it is fairer to give him an amount such as $15 not sub Now, taking it out of here, of course, removes it from the ject to taxes. Otherwise what are you going to do? You’re Constitution but it still remains a statute, does it not? going to try to find out what it is that will give the man any CHAIRMAN: There would still be some question about salary, sufficient salary to compensate him for his services the validity of it and that’s the purpose of clearing this up, and at the same time give him sufficient money for his as the Chair understands it. living expenses alter deducting taxes, and I don’t know how you’re going to do this, how you’re going to work that out. WIRTZ: Likewise there’d be a question as to the tax It always seemed to me from the point of view of those ability. others who came down from the other islands that the CHAIRMAN: That is true. Whether or not it’s income fairest thing to do is to find out how much it costs him a or - - day to live here in Honolulu and then give them exactly HEEN: If this amendment is voted for, then it will open that amount of money. So far it has been determined to be up the first part of this sentence for the reason that then the $15 a day. It is not taxed. You say it’s $15 a day; the man members of the legislature will have to pay their expenses spends more than $15 a day; it’s his option. But I think out of their salaries and that is not tax free. it’s a very much better system than trying to incorporate the increase in his salary. CHAIRMAN: That’s what the Chair endeavored to point I have no objection particularly to the deletion of this out to Delegate Trask. Evidently it’s his purpose to cut phraseology from the section of the Constitution, but I do down the emoluments of the legislators. wish to register an opinion adverse to those who have given A. TRASK: That is correct, Mr. Chairman. it so far, that by taking it out you will prevent the legisla ture from covering this point, because I believe this to be PORTE US: I’m sorry to say that I differ completely a particular subject of legislation. An embarrassing with the gentlemen who have deb4ted the question of the subject - - elimination of this clause from the Constitution. As sub mitted by the committee there was no reference to emolu A. TRASK: Will the gentlemen yield a question? ments. In my opinion, one man, I think the legislature can PORTEUS: Yes, indeed. pass a bill with respect to emoluments, and if you delete this it leaves it in the same position it was when the com A. TRASK: The per diem allowed legislators covers at mittee brought out its report. Under ordinances and con least a minimum, usually of one hundred days, so that at tinuity of laws, the laws will be continued in effect, and if $15 - - the law is in effect with respect to per diem, the per diem PORTEUS: I don’t think you’re correct in that. will stay in effect. If you eliminate this you will not eli minate in my opinion, the ability of the legislature to pro A. TRASK: What is per diem considered, just the legis vide for a per diem. The only way you can do that is by lative pay? specifically forbidding it in a Constitution. And by leaving PORTEUS: Do you mean now or do you mean in the future? all rightful subjects of legislation to the legislature, the legislature can provide for it. CHAIRMAN: Let’s have a little order here. Will you I might add, Mr. Chairman, that while I was not one who please address the Chair. voted for the $2,500 and the $1,500, however I do want to point out to the outside islanders and to the people here A. TRASK: Thank you. What is the meaning of the word that for those of us who have been in the legislature, it would “per diem” as has been considered heretofore. Does it seem to us that it was better to give to those people who mean a legislative day which excludes holidays and Sundays, come down from the outside island money in the way of per or the period of the time? diem. It is a fairer way of treating them than it is to give PORTEUS: The per diem will depend upon exactly the the Oahu legislators exactly the same salary as those people way the statute is written. At the moment it is written so get who come down from the other island. They are put to that it covers the period in which they’re here. In other certain expenses. They are not making money on this. It words, it covers the Saturdays and the Sundays, even though is not really a salary to them. They are maintaining homes the legislature cannot sit on a Saturday [sicj. I might point on the other islands and they are maintaining residences out, as the gentleman knows, that on a Sunday when the legis here in Honolulu. In most cases they don’t have an oppor lature can’t sit nonetheless there are many legislative acti tunity to stay at the home of a friend for two and a half vities and great number of the committees meet. I might 200 LEGISLATIVE POWERS AND FUNCTIONS point out that this, while an embarrassing subject for the per diem pay. I think that’s the height of imposter. I don’t legislators to deal with, of per diem and salary, it is none know the word that will fit the case. theless, however, in my opinion a fairer way of compensa CHAIRMAN: What is that word, Delegate Gilliland? ting for out of pocket expenses those that come from the outer islands than it is to try to increase their salaries and GILLILAND: I’m sorry, I’m excited. The idea of paying to put the Oahu members on exactly the same plane. $1,250 a month to these men and then on top of that they want per diem pay. That’s too much already, Mr. Chairman. LARSEN: [Inaudible] - - to leave out the one thing that it seems to me we have all learned, which is don’t put into the NIELSEN: I’d like to call attention to the fact that this Constitution any sums and no specific numbers. $2,500 is not net, that’s gross. You got to take 20 per cent off for federal and 2 per cent for territorial, so your net CHAIRMAN: It has been already voted on, Delegate Lar figure is only really $1,950. sen. CHAIRMAN: In other words, legislators, like everybody LARSEN: But I’m just calling attention. There is an else, got to pay taxes. other- - - SILVA: I think some of the remarks passed by Gilliland CHAIRMAN: You want to move to reconsider? are not really accounted for. When he says that the legis LARSEN: - - amendment here that seems to me covers lators would like to get $2,500 plus the per diem, he men that and that’s the one of Roberts. I would like to move to tioned the legislators very distinctly. I want him to know reconsider this idea of considering sums because we’ll talk that Mr. Fukushima is not a legislator, that none of the leg all morning on this. islators I believe are in accord. In fact I was going to move for reconsideration of Fukushima’s amendment. I voted ROBERTS: I planned to offer my amendment alter the “no” and they had the majority and I was going to move amendment is now acted on. So there’s no need to recon for a reconsideration of the action. I do say that the $2,500 sider, the section is still before us. and the $15 is really too much, and I believe that most mem CHAIRMAN: The question is on Delegate Trask’s amend bers of the legislature from the outside island would prefer ment. Is there any further discussion? a smaller salary compensation and a fair per diem allowance, tax free. That Is really what fits the rentals and the food H. RICE: I note that illinois, Massachusetts, New York expenses, etc., allowed us under the law. and Ohio are the only four states that will pay more than the State of Hawaii for a session, and that twenty-seven GILLILAND: The members of the legislature in other states provide the salaries. They fix them by Constitution, states like New York, illinois, they pay taxes too. Yet and twenty-one states fix it by statute. You turn to pages there’s only four states where members of the legislature 16 and 17, [Manual of State Constitutional Provisions] you are going to receive more than what we receive here if this get all of them. Probably the committee has been all amendment is adopted. through it, but I think as long as you have raised the salary HEEN: I might point out Pennsylvania pays $3,000 a to that high maximum you can forget the per diem, and I session and $1,200 a year expense account. want to see it written into the Constitution that they can’t get a per diem if they’re going to get a salary that size. DOl: The fact that other states pay salaries that are very low is no reason for us to follow that practice. I think TAVARE S: I’ve been quiet here for a while. I think it’s students of government could say that that is the reason why about time I was heard. As the attorney general who is the many of the legislatures in the states are so - - the caliber culprit who advised the legislature that in his opinion this of them are so low. In fact the arguments advanced for the per diem was valid I do not subscribe to any of the state unicameral system of legislation was that the government ments that have been made that this is an illegal contribu can pay better salaries and thereby attract better men. tion at this time. We looked up that matter conscientiously. Now what is this $2,500 for each general session and It was my - - $1,500 for each budget session based on? The governor CHAIRMAN: I don’t think anybody said that, Delegate in this Constitution has been allowed a minimum salary of Tavares. $18,000 a year, that would be about $1,500 a month. Should we look at this $2,500 it would come out that each legislator TAVARES: Yes, Mr. Chairman, but I don’t want the will get a salary of about $1,000 a month. I think the legis records to show that that has not been questioned. It is lature is one of the three important branches of the govern my humble opinion, but very strong opinion that there is ment. It should be given the eminence that the governor sound and strong authority to sustain what the legislature has, but the individual members of the legislature should has done, and I agree with Delegate Porteus that if this is not be given the same salary but should be given something deleted the legislature under its legislative powers will that approaches it and would thereby attract good men. have the power to enact a per diem statute and that it will Should we ask this question of all the legislators in this not have the effect of eliminating that power. Convention, I think they would say - - should we ask the CHAIRMAN: Unless it’s taken away in this Constitution. legislators of this Convention a question somewhat to this That’s your point, is it not? effect, that wasn’t the per diem passed in the ‘47 or ‘49 sessions of the legislature really made, agreed to the TAVARES: Yes, Mr. Chairman. amount of $15 because the individual legislators felt that GILLILAND: I heartily endorse the statement made by the salary of $1,000 was inadequate and therefore they in the delegate from Maui. Presently, the representatives and creased it, without much reason or comparative study as the senators are getting $1,000 a session of sixty days, that to the cost of living, to the amount of $15 per day? In fact means an average of about $500 a month. By the amend I got one answer right now from Dr. Silva who says that’s ment of the delegate of the fifth district it would raise this right. That kind of a thing I think should not be permitted. to $2,500 or $1,250 a month, and on top of that they want The amendment as it stands now, will allow the legislature JULY 7, 1950 • Morning Session 201 to make a study of the cost of living and give the legislators CHAIRMAN: That’s a deductible expense. the proper amount they need to live. HEEN: Will the gentleman yield to a question? Don’t Look at the other government officials of the government. you make your clients pay for that? Today when they travel they are allowed I believe twenty cents per mile traveling expenses and I believe under the MIZUHA: No, but every time Delegate Gilliland goes down State government the individual legislators will be allowed to the Circuit Court to have a divorce case he doesn’t pay traveling expenses. The legislators from the outside is any travel fare, and he goes down there and does it all the lands, however, will not be allowed traveling expenses after time too. The same with Brother Fong and Brother Trask. or between - - during the session. Now as to the cost of Now, let us be fair about this question. living in Honolulu for the outside legislators, I believe that should be paid by the government also as is done with other CHAIRMAN: Let’s dispense with personal remarks. I government officials. Should the governor travel from the don’t think that’s in order here. seat of government on Oahu to the island of Hawaii to do MIZUHA: But if Delegate Trask feels that the compen some official business he will be paid traveling expenses sation is too high then perhaps a level of compensation for plus his expenses of lodging and board and I don’t see why the outer island delegates should be set in a salary schedule, the individual legislators from the outside islands should and a lower level for the Oahu members of the legislature. not be paid that amount. Then it would be fair, then eliminate per diem. Let us be CHAIRMAN: The Chair will permit Delegate Trask to fair about this thing. I think people like us who come to close the debate. It seems to me - - the Constitutional Convention or to the legislature are not rich men. We have to pay the price for public service, FONG: May I ask the movant of the amendment, what and every one of us who are in public service makes great was his intention in deleting that section? sacrifices, and I think by the elimination of the per diem CHAIRMAN: He has already expressed that. He thought expense it’s striking at the heart of representative govern that the salary was too high and therefore if they’re going to ment for people who desire to serve in the public interest. get $2,500 they ought to pay their own per diem. CHAIRMAN: The Chair will put the question. FONG: If that is so then he should amend to say there J. TRASK: The amendment as proposed by the delegate shouldn’t be any per diem paid. here from the fifth district does not preclude the legislature CHAIRMAN: That can be taken care of in later amend - from setting a per diem amount, but I do not believe that the ments but that was his express purpose, as the Chair under per diem amount should be a part of the Constitution. It stood it. should be left to the legislature, so that if it should be FONG: He should do it now. $10 or $20 for the outside islands it’s up to the legislature to set, but I do not believe that the particular amount for A. TRASK: Weil, I have written in here, in view of what the per diem should be set in the Constitution. has been said by Delegate Porteus and concurred in by Delegate Tavares, as the amendment as suggested by me SHIMAMURA: The present laws provide for per diem stands, the legislature is still empowered to go ahead and for the members of the legislature. Now that law will be write in any further emoluments that it desires. In view of continued under the section on ordinances and continuity that and in view of the invitation from the delegate from the which continues all existing laws. If this is allowed to be fifth district, Pd like to further provide that at the end of left in, this clause is allowed to be left in, that will mean the first paragraph there will be included this expression, that the per diem will be frozen at this rate, and even if “No other compensation shall be provided.” say twenty-five years from now the cost of living goes up the legislature cannot increase it without a constitutional CHAIRMAN: That wouldn’t do it, Delegate Trask. We’re amendment. talking about expenses. CHAIRMAN: We have a revision every ten years, of A. TRASK: With respect to emoluments. course. CHAIRMAN: You said “compensation.” The Chair sug The Chalr will put the question. All those in favor of gests that we vote on the amendment and then a subsequent the amendment offered by Delegate Trask, and it would amendment can be entertained. delete the words “and in addition thereto an allowance which shall be fixed by law not to exceed a per diem of KAUHANE: Point of information. Since you are some $5.00 for members from the island of Oahu and $15.00 what confused on this matter wouldn’t it be proper to suggest for members from other islands,” be deleted. All those that we take a recess so that the legal heads can get together in favor of the amendment signify by saying “aye.” Con to get the proper words? trary. The amendment is lost. CHAIRMAN: The Chair is not confused in this matter. ROBERTS: I have an amendment which is on the desk A. TRASK: I move for the previous question. I think of the delegates. The amendment provides for the compensa we’re all prepared to vote. tion of members of the legislature, both salary and emolu ments, as may be prescribed by law, but the amount thereof MIZUHA: Pd like to speak in opposition to the amend shail neither be increased nor diminished during the term ment of Delegate Trask. It seems as though our brother attorneys from the fifth district feel that the compensation for which they are elected. No salary shall be payable when is too high. As an attorney who practices on an outside is the Senate alone is convened in a special session. land I would like to inform the delegates that every time I I then propose to put in the schedule the actual amounts have to try a case on Kauai while this Convention is in set for the first legislature. If it be the sense of the Con session I have to go home and it costs $19.55 for me to get vention that the amounts should be as in the amendment pre sented by Mr. Fukushima, in the amounts of $2,500, $1,500 back to Kauai by plane, plus taxes. and $750 instead of $1,500, $1,000 and $750, that’s a matter HEEN: Will the gentleman yield - for the Convention to decide. It seems to me, however, that 202 LEGISLATIVE POWERS AND FUNCTIONS the problem of writing specific amounts of money in a Con In my opinion the business of being a legislator is becoming stitution—even though some states have done it, much to more expensive and more difficult all the time and a sub their regret because they’ve had to have constitutional stantial raise in pay might be considered necessary. You amendments to change the amounts—it seems to me that the may note Congress has recently raised the pay of a member proposal as we adopted it makes it rather difficult in case of the House of Representatives and of the Senate from of changes in prices and changes in the cost of living to give $10,000 to $12,500 and then granted each member of the adequate consideration to the appropriate salary for the leg United States Congress a $2,500 expense account which is islators. The amendment to Section 11 now says that the tax free. They do not, however, get a per diem. amount shall not exceed $5 per diem for members of the I am also in considerable sympathy with the efforts to Island of Oahu. secure a reasonable per diem which might even be increased over the $5 minimum and the $15 minimum if the future CHAIRMAN: Excuse me, Delegate Roberts. Have you requires it. But I don’t think these things ought to be written moved an amendment? into the law. Delegate Roberts’ amendment would provide ROBERTS: Mr. Chairman, I was explaining. I would that the rate of pay of the members of the legislature and like to move this amendment. Amend Section 11 to read as the emolument may be prescribed by law, and then later follows: in the schedule would fix the rate of pay as fifteen, one thousand and seven-fifty, or twenty-five and fifteen if the Section 11. Compensation of members. The members Convention so wishes. of the legislature shall receive such salary and emolu But I do feel that the amendment submitted by Delegate ments as may be prescribed by law, but the amount there Rice, and as already amended, is not a very good constitu of shall neither be increased nor diminished during the tional provision. The illustration made of those states that term for which they are elected. No salary shall be pay have very small rates of pay are not very good because the able when the senate alone is convened in special sessions. states are very unhappy about it. The members of the Cali The following to appear in the schedule: fornia legislature are very poorly paid and recently in Colliers Magazine it was written up that the lobbyists for Until otherwise provided by law in accordance with large interests in the State of California almost dominate Article _section 11, the salary of members of the the legislature through various means of aiding these legis legislature shall be as follows: the sum of $1500 for lators to meet their expenses. each general session, the sum of $1000 for each budget So it seems to me that we should in the Constitution adopt session and the sum of $750 for each special session of the general law and leave it to the judgment of the legislature the legislature. in the future to raise the pay if it’s necessary. CHAIRMAN: Well, before you debate, I’d like to get There’s only one little item here, that the “amount there something before the house. of shall neither be increased nor diminished during the terms for which they are elected.” If this amendment is passed, LARSEN: I second the motion. the holdover senators would continue at the same rate of pay CHAIRMAN: And that amendment is to what, Delegate until their holdover terms were expired, and we would have Roberts? the situation where the members of the new legislature, the newly elected senators, would get the increase in pay and ROBERTS: The amendment is to Section 11 as submitted the holdover senators wouldn’t, but that’s rather a minor by Delegate Rice, as amended by Delegate Fukushima’s difficulty. I certainly do feel that the amendment offered by amendment. Delegate Roberts is in line with good constitutional drafting. CHAIRMAN: And you would leave in the second paragraph of Delegate Rice’s amendment? BRYAN: I would like to say that the committee had under consideration a proposal very similar to this, and the only ROBERTS: I assume that the second paragraph, Mr. reason we changed to what the committee reported to the Chairman, could be taken care of by my second paragraph Convention was that in discussion it was felt that the mem with regard to the schedule. So that if the amendment is bers of the legislature at times were a little bit embarrassed adopted it takes care of both the section in the Constitution, at increasing their own compensation. For that reason we the first paragraph, and a provision in the schedule in the finally hit upon the scheme of putting it in as a constitu second paragraph. tional provision with the amount fixed, and in hopes that as CHAIRMAN: The Chair will have to rule you’re not in constitutional amendments were made every ten years or order there at all. That has nothing to do with the second approximately every ten years, that that adjustment could paragraph. be made to go up and down with the cost of living. There fore, I don’t think any of the members of the committee are KELLERMAN: The second paragraph is not before the greatly opposed to the amendment offered by Dr. Roberts. house as yet. I have one suggestion, however. The last three words in ROBERTS: Oh, I’m sorry, Mr. Chairman. I was looking the first paragraph, “when the Senate alone is convened in at my second paragraph. I’m sorry. It applies only to the special sessions,” I think might well be deleted because first paragraph. the words “special sessions” is used in the Constitution referring to the entire legislature, and I think perhaps if CHAIRMAN: Delegate Roberts’ amendment then is an the period were placed after the word “convened” it would amendment to the first paragraph of the amendment offered be an improvement. by Delegate Rice, which has already been amended, to insert the words $2,500 and $1,500 for sessions. Are you finished, ROBERTS: That’s acceptable, Mr. Chairman. Delegate Roberts? Delegate King is recognized. CHAIRMAN: As I understand Delegate Roberts’ amend KING: If Delegate Roberts has finished, I would like to ment as it now is, the last sentence would read “No salary speak in favor of his amendment. I have a good deal of shall be payable when the senate alone is convened” period. sympathy with the amendment offered by Delegate Fukushima. Is that correct, Delegate Roberts? JULY 7, 1950 • Morning Session 203 ROBERTS: That’s acceptable unless some problem CHAIRMAN: Delegate Roberts, has your amendment been might be created - - printed or do you have it written out? CHAIRMAN: Well, the Chair wants to know if it’s ac ROBERTS: It has not been printed. It’s been written out, ceptable. and I’ll read it slowly so that the delegates can get it. ROBERTS: I accepted the amendment. CHAIRMAN: Just hold it a minute until the delegates take their seats, will you? Will the delegates please take their TAVARES: I’d like to speak in support of the Roberts’ seats. Delegate Roberts, you have a proposed change in your amendment. I hope that there will be economy in the legis amendment. lature, but we must remember first the legislature is one of the major branches of government; we must not lose ROBERTS: That’s correct. sight of that. And in deciding what we are going to pay them CHAIRMAN: Read it, please. or what arrangements we are going to make to pay them we must never lose sight of the fact that they are a major ROBERTS: In line three alter the comma after the word. branch of government, and therefore there is some justi “law,” first paragraph, delete from the word “but” down to fication in paying a substantial amount to that major branch the end of the sentence which ends with the word “elected,” of government. and substitute therefore the following language, “but any in- Secondly, there is the question of fixing dollar amounts crease or decrease in the amount thereof shall not apply to which, ordinarily, is unwise. The dollar, as we know, fluc the legislature which enacted the same.” Mr. Chalrman, tuates. while - - Thirdly, I think if one looks at the history of Congress, one will find that the congressmen have been very very CHAIRMAN: Just a minute please. As the Chair under stands it, your amendment, alter the words “prescribed by reluctant indeed to increase their salaries. That reluctance is borne of the fact that no matter how reasonable the in law” would delete the remainder of the sentence and insert creases may be, the first reaction of voters is usually the following: “but any increase or decrease thereof shall against any increase at all. That fear itself is sufficient not apply to the legislature which enacted the same.” Is deterrent I think to prevent the legislature from running that correct? away too much. ROBERTS: “In the amount thereof,” but that’s a matter Finally, the provision here is very salutory in this of style, Mr. Chairman. amendment. That the increase anyway shall not take effect until after their term will also have a deterring effect for CHAIRMAN: Does the second accept the amendment? It’s accepted. Proceed, Delegate Roberts. two reasons. First, they’ll have to run again if they want to be re-elected and will have to explain that amendment. ROBERTS: I’d also like, in view of the discussion during Secondly, they won’t get the benefit of it themselves anyway the interim, that the amounts set forth in the second para for that term and I think there will have to be some sound graph, $1,500, $1,000 and $750 - - principle, some pretty strong principle to induce them to HEEN: Mr. Chairman, may I interrupt? It seems to me vote for it when there is no immediate prospect and no that the word “emoluments” in the second line of the first certainty that they will enjoy the increase, because there’s paragraph here should be changed to “allowances.” The no absolute certainty that any man will be re-elected. term “emoluments” might be regarded as additional compen Under all those circumstances, I feel that this amendment sation, whereas allowances would be in the nature of reim is preferable to the others that have been proposed. bursement for amounts spent for expenses. CHAIRMAN: I think there has been enough debate on this. CHAIRMAN: The Chair is inclined to agree with that, LOPER: I’m speaking in favor of the Roberts’ amendment Delegate Roberts. and to the slight defect noted by President King. I’d like to ROBERTS: That’s acceptable. ask whether this amendment would cure the problem, to take the last sentence of the Ashford amendment, which was CHAIRMAN: Strike out the word “emoluments” and before us a day or two ago, so that the latter part of the insert the word “allowances.” You were discussing the first sentence which now reads, “but the amount thereof second paragraph of your amendment. shall neither be increased nor diminished” would change and say, “but no law directly or indirectly increasing the ROBERTS: That’s correct. Since it’s been the sense of the Committee of the Whole to increase the amounts for the emoluments of the members shall be effective for a period of two years subsequent to its enactment.” I would like to various sessions, I’d like the second paragraph to conform to our previous action, which provides for the sum of move an amendment to the Roberts’ amendment to incorpo $2,500 for the general session, $1,500 for the budget rate that sentence. session and $750 for the special session. So that in line CHAIRMAN: The Chair will have to rule that’s out of three of the second paragraph delete “$1,500” and sub order. stitute “$2,500,” in the fourth line delete “ $1,000” and substitute “$1,500.” RICHARDS: I would have another suggestion to take care of that particular problem. If an amendment to the Roberts’ CHAIRMAN: The Chair is ready to put the question or amendment is out of order - - accept further debate. CHAIRMAN: The reason for it being, Delegate Richards, DELEGATE: Question. is you’re piling up the amendments here. Perhaps we might WIRTZ: Point of information. Do I still understand take a few minutes recess. The Chair will declare a few that this being an amendment to the amendment offered by minutes recess. Delegate Rice, that it does not affect the second paragraph? (R E CE S 5) CHAIRMAN: That is correct. That’s correct, that’s still open. 204 LEGISLATIVE POWERS AND FUNCTIONS FONG: I think this amendment is worse than the previous CHAIRMAN: State your point of order. amendment which was passed. You will note that this HOLROYDE: The second paragraph would not be an amendment goes beyond the other amendment. The other amendment to the legislative article or to Section 11. It amendment just stops at $2,500, but this is going to get up would be something to go into the schedule. I think we could to the sky. Now, if you set this schedule at $2,500, you vote only on the amendment to the section. don’t expect the legislature to cut it down below $2,500. I think it’s very - - Originally the way he had it at $1,500 ROBERTS: That’s not correct. We’re dealing with I think was all right, but now you increase it to $2,500 and article - - Section 11. We can amend that to put it in the and let the legislature lift that lid over $2,500. Makes it schedule. It’s perfectly proper. The section is before us. worse. HEEN: I move that we act on the first paragraph first. ROBERTS: The purpose of putting those amounts in was WHITE: I’ll second that motion. to conform to the action of the Committee of the Whole. We voted on that. It was the sense of this committee that BRYAN: I’d like to speak to that motion to clarify per those amounts be fixed at that level. I therefore think that haps what Delegate Roberts is afraid of. If favorable action they’re perfectly proper and perfectly in order. was taken on the second paragraph first and the first para graph lost, what would you do? The whole thing would be WHITE: What are we voting on? The first paragraph? out of order. The first paragraph provides the basis for CHAIRMAN: We’re now voting on the Roberts’ amend- the second paragraph. Unless the first paragraph is carried mend to the Rice amendment. The Rice amendment is the the second paragraph is meaningless. first paragraph of Section 11, relates to the compensation CHAIRMAN: It seems to the Chair that that’s the sen and expenses allowable - — paid and allowable for legis - sible disposition. However, what is the wishes of the lators. The proposed Roberts’ amendment would have delegate, Delegate Roberts? the compensation prescribed by law but the salary in the beginning fixed in the schedule. ROBERTS: You can go ahead on the first paragraph, Mr. Chairman, but I want it quite clear that my amendment WHITE: But in voting at this time we’re just voting on was in two parts, and I intend to put the $2,500, $1,500 and the first paragraph, are we? And there would be a sub $750 back in again. sequent motion to adopt the second? CHAIRMAN: The Chair so understands. CHAIRMAN: We’re voting on the first and second para The Chair will put the question . The question is on the graphs of Delegate Roberts’ motion. I would suggest to amendment which is the first paragraph of Delegate Roberts’ Delegate Roberts, for his consideration, that if you desire amendment to Section 11. to have your motion acted upon in the absence of the figures, you could leave the figures blank and then they could be ARASHIRO: Point of information. If we vote on the first filled in. However, that’s up to the delegate. paragraph of the proposed amendment, then does that mean that we are now substituting or making an amendment to HEEN: I move that we take action on the first paragraph Section 11 of the part that we have already adopted? “In first, get that out of the way. addition thereto an allowance which shall be fixed by law DELEGATE: I second that. not to exceed a per diem of $5 per member,” and right down the line until “the other island”? ROBERTS: The reason I suggested we act on both para graphs is that there’s some fear in the minds of some of CHAIRMAN: There would still be open the question of the delegates that part of this is put in for one purpose and what the allowances of the legislators would be. The reason part for another purpose. This is a package deal to cover for breaking it up was pointed out. There was no basis for both the problems. I’d like it presented in that form to get the second paragraph unless the first paragraph is adopted. the sense of the Convention. ARASHIRO: The paragraph that we have adopted freezes HEEN: I might be in favor of the first paragraph and that per diem? not in favor of the second paragraph and I say it’s out of CHAIRMAN: That’s right. order to put two subjects for vote at the same time. There fore it is out of order. ARASHIRO: But, this will be in contradiction to the - - DELEGATE: I ask for a division of the question. CHAIRMAN: That’s right. This will leave it as a matter of law for future legislators, but establish it for the first ROBERTS: I then move that the second paragraph be legislature in the schedule. Delegate Roberts has ex considered first, leave the amounts $2,500, $1,500 and pressed his intention to insert the figures, and abide by $750. what has already been indicated in the Fukushima amend LARSEN: Second the motion. ment. CHAIRMAN: That is not the suggestion, Delegate Roberts. WIRTZ: To clarify that problem, I’d like to point out The suggestion is we vote upon the first paragraph of your that we put the word “allowances” in the second line of the amendment, leaving to further action of the body the dealing amendment offered by Delegate Roberts, which leaves the with the paragraph relating to what goes in the schedule. legislature to provide for these allowances, which in turn If that is acceptable to you, the Chair will put that motion. could be tax free. ROBERTS: I said it wasn’t, Mr. Chairman. CHAIRMAN: That’s correct. CHAIRMAN: Was not? NIELSEN: I think that the two paragraphs very defi nitely tie in together because if we’re going to vote on the ROBERTS: That’s right. first one first, why then I’m going to vote no, and yet I HOLROYDE: Point of order. think it’s very sound; but without the second paragraph in JULY 7, 1950 • Morning Session 205 the deal, why then I know what the play is here, I know CHAIRMAN: - - strike out $1,500 and re-insert $1,000 politics. They’re going to get the first one in and then kill for each budget session. the-second one. ROBERTS: Roll call, Mr. Chairman. CHAIRMAN: The Chair will put the question. CHAIRMAN: The Clerk will call the roll. The vote is BRYAN: Mr. Chairman, before you put the question, upon Delegate Heen’s amendment which would cut down the please. In discussing the matter of the small change I re salaries of the legislators from $2,500 to $1,500 and from quested with the members of the committee, I find that I $1,500 to $1,000 respectively. was in error. The words “in special sessions” should be retained as they are used in connection with the Senate in KELLERMAN: May I ask the - - I understand it to be Section 12, which has been adopted. the case that the present per diem allowance permitted by statute will continue in effect unless specifically stated CHAIRMAN: The Style Committee can take care of that. otherwise in the Constitution or the schedule. The Chair will put the question. All those in favor of the amendment signify by saying “aye.” Contrary. It’s carried. CHAIRMAN: That is correct. We now have the second paragraph. KELLERMAN: Therefore the adoption of either of these WHITE: Are we talking about the second paragraph of as proposed by Mr. Roberts or Judge Heen would have no Mr. Roberts’ amendment? effect upon the existing statutory per diem. Is that it? CHAIRMAN: That is correct. CHAIRMAN: That’s right. We’ve already adopted the WH1TE: I have a question on the second paragraph of provision that the legislature will fix the salary and al Delegate Rice’s amendment that I’d like to - - lowances as may be prescribed by law. The Clerk will please call the roll. CHAIRMAN: We haven’t quite reached that, Delegate White. Ayes, 24. Noes, 36 (Akau, Apoliona, Arashiro, Cockett, Doi, Dowson, Fukushima, Hayes, Ihara, Kage, Kanemaru, WHITE: All right, I will withhold it then. Kauhane, Kawahara, Kawakami, Kido, Kometani, Loper, ROBERTS: I move that the second paragraph be adopted Luiz, Lyman, Mau, Mizuha, Nielsen, Noda, Ohrt, Okino, as proposed with the amendments suggested for the change C. Rice, Roberts, Sakai, Sakakihara, Serizawa, Shimamura, in the amounts of $1,500 to $2,500, $1,000 to $1,500 and Smith, St. Sure, Wist, Yamamoto, Yamauchi). Not voting, leaving $750 as it is. 3 (Lee, Phillips, Silva). CHAIRMAN: Is there a second? The motion is lost. AKAU: I second that. ROBERTS: I move the adoption of the amendment. HEEN: I move the amendment that the sum of $1,500 be FUKUSHIMA: I second the motion. substituted for $2,500, $1,000 substituted for the sum of $1,500 and -- CHAIRMAN: Any further discussion? Are you ready for the question? All in favor signify by saying “aye.” FONG: I second that motion. Contrary. The ayes have it, it’s carried. ROBERTS: I have some question about the propriety of We’re now on the second paragraph of Delegate Rice’s that amendment. amendment. The Chair will recognize Delegate Kellerman. CHAIRMAN: The Chair has no question about the pro KELLERMAN: I move the adoption of the second para priety of it. You raising a question of order? graph of Mr. Rice’s amendment. ROBERTS: Yes, lam. J. TRASK: Second the motion. CHAIRMAN: What is your point of order? State it. CHAIRMAN: It’s been moved and seconded that the second paragraph of Delegate Rice’s amendment to Section ROBERTS: The point is we have acted on the question 11 relating to total expenses of officers and employees of of amounts. The amounts were agreed on at $2,500, $1,500 each house be adopted. and $750. KELLERMAN: May I read the full amendment, Mr. CHAIRMAN: The Chair will rule that it’s a different thing Chairman? to have a statutory provision and then have it fixed by law. Quite different. CHAIRMAN: Proceed. ROBERTS: But the votes, Mr. Chairman, were on the KELLERMAN: amounts to be received by the legislators for specific In no case shall the total expenses for officers and sessions, whether they go into the schedule or are in the employees for each house exceed the sum of $1,000 per Constitution. calendar day during any general session, nor the sum ASHFORD: When the first paragraph of Delegate Roberts’ of $500 per calendar day during any budget or any amendment was adopted, it knocked out the first paragraph special session. of the other amendment which fixed the salaries? May I speak to the amendment? CHAIRMAN: That is correct and the Chair will so rule. The question is on the amendment offered by Delegate Heen CHAIRMAN: Proceed. which would strike out $2,500 and insert $1,500 for a DELEGATE: There is no second. general session - - CHAIRMAN: There has been a second. Proceed, ROBERTS: May I have a roll call on that? Delegate Kellerman. 206 LEGISLATIVE POWERS AND FUNCTIONS KELLERMAN: We have just voted for the adoption of a $62,000, depending upon the length of the legislative session salary schedule of $2,500 for a general session and $1,500 from a total or a maximum of $62,000 or $63,000 to $75,000 for the budget session to present to the Territory the bill or $80,000 for that session. of $364,000 per legislature for salaries, not counting per Of course this could be done by the legislature and there diem. I think a great many of us are very much in favor will be those who will consider there is no place in the Con of a per diem. At the present rate of per diem that would stitution for a provision which limits the legislature to a go up to approximately $430,000 per legislative session. certain amount in money. There are several ways of han This is of course based upon a 25 member Senate and a dling this. This we considered the most feasible. Some 51 member House. constitutions limit the number of employees that can be If the members will turn to this mimeographed material engaged. For instance, the Constitution of Missouri, which which was distributed on the desks this morning - - has a thirty-four member Senate and a one hundred and fifty-four member House limits the number of employees CHAIRMAN: That bears the caption, “Comparison of to seventy-five for the Senate and one hundred and twenty- legislative expenses 1929, 1945, 1947 and 1949.” Is that five for the House. You will notice on that basis with our what you have reference to? existing legislature of fifteen in the Senate and thirty in the KELLERMAN: That’s the one. You will find that the House, at the last 1949 session there were eighty-six em total cost of officers and employees, and may I clarify any ployees of the Senate and one hundred and nine in the House. possible misconception, that does not include the salaries May I repeat, the Missouri Constitution where you have a of the legislators. Officers are such as the sergeant at thirty-four member Senate and a one hundred fifty-four arms, chief clerk and others who hold positions, they are member House, has a constitutional limit of seventy-five the officers of the legislature. The 1929 session, the cost employees for the Senate and one hundred and twenty-five per legislative day—and remember the proposed amendment for the House. I’ve just read you the Cilifornia provision is calendar day, which means for every day during which which fixes a dollar maximum limit at $300 a day for each the session is in existence counting holidays and Sundays, house in general session. The California legislature has a but you will note that you will have to make a comparison forty member Senate and an eighty member House. in your mind with the figures on this form which relates to Now, if you will turn your attention briefly to these other legislative days, which means working days only —the cost two mimeographed sheets which were distributed yesterday, per working day was $666 per day, working day, for both headed “Partial breakdown of personnel cost for the House, houses of the legislature. Now that sum spread over the regular sessions, and Senate, regular sessions.” I’d like calendar days would, of course, be reduced to less than that to call your attention to one or two points of clarification. by approximately one-sixth of a sixty day session. If you You will find in the last column per diem pay. I have been turn to the 1945 session, you will find the total had increased questioned on the mathematics of these figures. I want to to $2,547 for both houses for a sixty-three day session. clear that up. That per diem pay relates only to the 1949 That has been figured; it comes to $2,006 if spread over session. A survey of the salaries paid through the last - - the number of calendar days. If you’ll turn to the ‘47 through the ‘29, ‘45,’47 and ‘49 sessions shows that the session you’ll find that the total cost of personnel for both salaries have been increased - the per diem that is - has houses for a sixty-two day session was $3,271. On a been increased each session. We decided we’d complicate calendar day basis that ran $2,535. The 1949 session - - it to put in each time what the increase was, but in each of the respective sessions shown on your breakdown there has CHAIRMAN: Is that for ‘47, Delegate Kellerman? been a per diem increase. Therefore the per diem rate KELLERMAN: That was for ‘47. For the ‘49 session, shown only relates to the ‘49 figures. you will find that the cost of employees and officers ran for But there are several points there that I think should be the legislative session of sixty-two days to $4,835 for both brought to your attention. You will see that although the houses, that is jointly. Broken down on a calendar day session - - let’s take the ‘49, the 1949 session had sixty- basis that comes to $3,747 for the two houses. two legislative days. That comes up to seventy-seven May I read briefly from your Manual of Constitutional calendar days. However, you will note that a great many Provisions on page 41. “The temptation to reward the of the employees listed here and these are - - of course politically faithful and to repay political favors through this is not the total list of employees obviously, this auto appointment to legislative office or employment has re matically lists a few as individuals because there is only suited in the establishing of both constitutional and stat one of each of certain of these offices. Of various others utory limitations on the legislature’s power to choose its there were many, of course. But you will notice here for officers and employees.” Further in that paragraph you instance, the bottom line of the House, Regular Session 1949. will find the statement, “The California Constitution. Article The sergeant at arms of the House was paid for one hundred 4, Section 23A fixes the maximum total expenses for officers and forty-one days at the rate of $22.50 per day although and employees and attaches at $300 per day at regular the session, including the calendar days, lasted only seventy- sessions and $200 per day at special sessions for both seven days. You will note also that the secretary to the houses of the legislature.” That is jointly. clerk and the assistant clerk were paid for one hundred and The proposal which Mr. Rice has introduced has fixed forty-one days although the session lasted, including calendar the amount at a maximum of $1,000 per calendar day during days, only seventy-seven days. The chief clerk was paid for any general session for each house. On the basis then of a one hundred and thirty-seven days at the rate of $45 per sixty day session that would run approximately $75,000 day, although the session lasted seventy-seven days. Now for each house. Calendar days include holidays, Sundays may I add that those days for which that extra payment was and weekends. The reason that we who have worked on received did not include the cost of preparing the journal. this amendment have considered that a reasonable pro The journal obviously has to be prepared after the session vision, rather than a legislative day, is because our com is closed. But the journal costs are in addition to those mittees do meet on weekends and holidays and employees payments. They are listed under employees and come in do work on weekends and holidays. However, the sum effect under your total quoted on your comparison of legislative of it merely is to increase from a possible $60,000 or a expenses and cost as cost for employees. In my opinion JULY 7, 1950 • Morning Session 207 that could more reasonably be regarded as an independent WOOLAWAY: I’d like to ask a question concerning the contract and not as an employee, but it is so considered in generosity of allowing the Senate the same amount of money the tabulation of expenses in the files filed by the Account per day, although that body is half the size of the House. Clerk of the Senate and House as employee pay. But these figures which I have given you here do not include the cost CHAIRMAN: What is your question? Will you please of the journal and do not include time spent on the journal, address the Chair? which obviously comes afterwards. WOOLAWAY: Both houses are going to be allowed the Now I know Mr. Fukushima brought up yesterday a pro sum of $1,000 a day for their expenses. I would like to ask posed amendment that would imply at least that all bills the proposer of this amendment why the Senate is being would be engrossed and submitted to the governor in time allowed the same amount of money as the House although for him to pass upon them within forty-five days after the that body will be half the size of the House. session. Presumably they would be engrossed and passed up to the attorney general’s office or the governor within CHAIRMAN: Would you care to answer that, Delegate twenty days. Yet we have the assistint clerk of the House, Kellerman? the secretary to the clerk, one hundred and forty-one days; KELLERMAN: Yes, Mr. Chairman. At present, our the engrossing clerk, ninety-six days; the assistant en Senate is half the size of the House but if you will look grossing clerk, one hundred and four days; and so forth. across this line, “Average personal services per legisla Now I cannot but believe that the figures must indicate tive day” on your comparison of legislative figures that we’ve that we do not have sound financial administration of our been referring to, you will find 1929 Senate cost $337 per legislative expenses. I cannot but believe that they indicate day, House $329. There the Senate cost more than the that were there someone there who was obviously serving House. In 1945 you will find $1,197 for the Senate, $1,350 in the position of a financial manager or administrative for the House, just a little bit over $150. officer that many of these days would not have been regarded as necessary or as full time work justifying such pay. I CHAIRMAN: In other words, you followed the historic cannot but think that part of this is due to the carelessness pattern. of not having any single responsible person looking to the KELLERMAN: Following historically they come within economy of the legislature, as well as to the fact of the in $200 or $300 of each other right across the line. I have formation that I read, the reward of the politically faithful. not had the opportunity to ascertain why that should be, but I believe - - I’ve been told by several legislators who that follows the pattern apparently through a period of have indicated that they consider it impossible for the legis twenty-five or thirty years. lature to clean its own house, as impossible as it was for the legislature to reapportion itself, although it was under TAVARES: I would like to have that amendment read mandate for fifty years to do so and never did it. I there over again because I would like to make a further amend fore offer my suggestion, the amendment - - or rather Mr. ment to it. Rice’s amendment, I am speaking to it—in all friendliness CHAIRMAN: The amendment is on your desk, Delegate and amity to aid them in clearing their house of unnecessary Tavares. The Chair will read it. expenses and unnecessary employees. I would earnestly request the consideration of this body, if they’re going to TAVARES: It’s the second paragraph of Delegate Rice’s the people with a seventy-six member legislature—$400,000 amendment? for legislative salaries which now are no cost to the Tern - CHAIRMAN: That’s correct. tory whatever since, as we know, Congress pays the $45,000 now paid to the legislature—that they would be very wise to TAVARES: Then, Mr. Chairman, I move to further think to an enforced curtailment of what will undoubtedly be amend by substituting a comma for the period at the end a tremendous increase over the legislative expenses for of that paragraph and adding thereafter the following words, employees when all those extra people get in there, each “based upon the average purchasing power of he dollar claiming his patronage in addition to the patronage already upon admission of this State to the Union.” well established. COCKETT: Second the motion. CHAIRMAN: Delegate Kellerman, the Chair would like CHAIRMAN: What would that accomplish, Delegate to ask you one question. Do these figures of the average Tavares? Is there a second? cost per legislative day include the expenditures of the holdover committee? I notice under the Session Laws of TAVARES: Was it seconded? 1949 there was $150,000 appropriated by the holdover com CHAIRMAN: Yes. Delegate Cockett. mittee. TAVARES: We have seen in the last few years a tremen KELLERMAN: No. The 1949 figures include the cost only dous fluctuation in the purchasing power of the dollar. Be of employees for the regular session. fore the last World War $10 a day was allowed by law as Now there’s one more point I’d like to bring out, which I per diem for trips to the mainland and ii was ample. Today intended to in the beginning. I don’t want to talk too much $20 a day doesn’t get you as far as $10 did in those days. but I think this is very pertinent. I’m advised by the chairman If we get into another large scale war, inflation may come of the Accounts Committee that this body, with sixty-three further. The purchasing power of the dollar may go down members, has been working, including our salaries, our further, and this will allow us to keep up with the purchasing rent, our loud speaker system, all of our employees, all of power of the dollar. our materials and supplies, we have been working on slightly under $1,200 per day, calendar day, including the salaries CHAIRMAN: Pardon me. I don’t think your amendment of the sixty-three legislators. For that reason I feel that would, though. There’s still a prohibition on the limit, is the proposal of $1,000 per day maximum for employees of there not? each house is more than generous. It will in no sense be TAVARES: I think, Mr. Chairman, that word “based upon where they will have to budget carefully to meet it. the present purchasing power of the dollar” would lend mean- 208 LEGISLATIVE POWERS AND FUNCTIONS ing to the $1,000 and $500. I think it would mean that what AKAU: I rather agree with Delegate White when he says ever the purchasing power of the dollar was at that time, we we haven’t this clause on many other statements we hnke could go up or down depending on the way the dollar fluctuates, made regarding our finances and salaries and what have you. within reason. Would it be possible then to put this statement in the report, in the explanation of the report of this committee, rather ROBERTS: If we could use the words “to be adjusted in than put it on right here in the proposal? accordance with” - - CHAIRMAN: I’m afraid not, Delegate Akau. This is a CHAIRMAN: The Bureau of Labor Statistics figures or limitation on the total expenditures. If there’s got to be any something like that? leeway some language has to be inserted here to permit the ROBERTS: The purchasing power figures, I assume, leeway. would be the figures of the Bureau of Labor Statistics or WHITE: I’d like to say that while I’m in sympathy with our own Territorial Employment department because the the objective of this second paragraph, it seems to me we’re only figures we have on changes in purchasing power are writing something into the Constitution that we don’t have changes in actual prices. I am in accord with the amend the faintest idea how it will ever work. We haven’t even had ment proposed by Delegate Tavares. I think the language a State legislature in session and we don’t know what prob ought to read, “to be adjusted to the changes in the cost of lems we’re going to be confronted with, and it is my opinion living index of the Territory of Hawaii,” which would pro that to try to put a limitation like this on, that is going to vide an actual base upon which to make the changes. govern for all time, is just trying to do crystal gazing. It just isn’t possible. I don’t think any of us can tell what kind TAVARES: I’m willing to accept any amendment within of conditions we are going to be confronted with. I am reason, if someone has a better one in words. I think that sympathetic with the objective but I fust don’t think it is a we should bear in mind that there is a possibility of a very practical provision. rapid fluctuation of the dollar from now on. I think since we’re going to put this tight rein, which I’m in favor of, on CASTRO: I think that this probably deserves a little leginlative expenditures, we ought.to allow at least enough more thought between the gentlemen who have ei~pressed their leeway to take care of at least substantial fluctuation in the sympathy with it. I suggest that this committee recess un dollar purchasing power. til 1:30 as it approaches the noon hour, and possibly at that time we can come up with the positive suggestion of whether H. RICE: I’ll accept that amendment. we will incorporate this or not at all. So I so moVe at this WHITE: I’d like to ask them why they picked on one time for a recess. particular item and tied it to the purchasing power of the SMITH: Second the motion. dollar. We fixed salary, we’re fixing the compensation for legislators. You going to do the same thing for them? What RICHARDS’~ If the movant will hold his motion, I would is this tied to? Is it to be tied to the cost of living? Is it like to offer one other suggestion that the delegates can tied to the wholesale commodity price index, or what is it think about. Is it the purpose of this amendment to have tied to? I wouldn’t know what kind of index to tie legislative the clerks walk out along with the meeting of the legislature? expenses to. There’s certainly clean-up work to be done, and how is that going to be done if the clerks all walk off the floor the day CHAIRMAN: The Chair has difficulty with that too. It the legislators leave? would have to be redrafted, the amendment. CHAIRMAN: The purpose of the amendment is to enable ST. SURE: I’d like to call the body’s attention to the the legislature to budget its expenses within reasonable word “expenses.” Could that be construed to be other than limits. That’s the purpose of it as the Chair understands it. compensation? WIRTZt As long as we’re - - CHAIRMAN: That has nothing to do with compensation CASTRO: I withdraw my motion. of legislators. CHAIRMAN: Excuse me. There has been a motion and ST. SURE: It states “expenses for.” I believe it was seconded. Is this motion to recess until CHAIRMAN: That means the pay. 1:30? CASTRO: To permit the gentlemen to get this off their TAVARES: I realize, although I am not a financial expert, minds, I withdraw my motion to recess temporarily. that there is some indefiniteness in the words “purchasing power of the dollar.” However, I believe that under those WIRTZ: I just want to pass on one further suggestion circumstances if the legislature make a determination for the consideration of the delegates during the noon re based upon some reasonable grounds that the purchasing cess. I am heartily in accord with the objectives of this power of the dollar has gone down and they exceed their proposition. I feel that here is a very valuable contribution expenses within that limit, I believe the courts will honor made by a housewife. Housewives have so much money to their finding. I don’t think you can absolutely tie it down in deal with in their household expenses and they have to make any event, but I think it leaves enough leeway so that the it fit. courts, if the legislature in good faith finds with good reason that the purchasing power of the dollar has gone down a CHAIRMAN: And a member of the bar, you might add. certain amount and the court cannot find absolutely, almost FONG: I am in accord with the sentiments expressed by unimpeachable reasons against that, the court will hc3nor the Delegate Kellerman, but I’m afraid that we are delving into findings of the legislature. something which we know very little about. You will note CHAIRMAN: It appears to the Chair that the amendment in setting forth the expenses of $1,000, Delegate Kellerman would leave the discretion entirely to the legislature and it is cutting the legislative expenses down to around 38 per would not be a reviewable question based on that. cent of what the legislature has spent for the year 1949. JULY 7, 1950 • Afternoon Session 209 Now the delegate has set a figure of $500 for a budget KELLERMAN: There’s been one point which was called session. I don’t know whether the delegate understands the to my attention during recess for lunch which I made this working of the legislature. In the budget session the only morning but apparently was not entirely clear. The proposal committee that I can conceive of that will be operating will limits expenditures to $1,000 per day for each house per be the Finance Committee and the Printing Committee, the calendar day during the general session. In other words, Printing Committee just to print the financial report of the a basis say on a sixty day session would run about seventy- Finance Committee. hi the regular session you have probably five calendar days. That would be $75,000 for each house from twelve to eighteen committees, each of them almost as or $150,000. The figure quoted on your “Comparison of big as the other. In each of the committees we have our Legislative Expenses” tabulation, to which we referred this clerks, we have our typists, and then we have a Printing morning, for the 1949 session of $4,835 as the average Committee which is very large. Now, if you’re going to personnel cost per legislative day is on the basis, as you set a figure of $500 for a special session, that is for a note, o~ legislative day. Now that figure translated in terms session in which the budget is only going to be taken care of calendar day, which would make it comparable to the of and which only one committee will work, and you set a proposed amendment, drops to $3,747; so the proposal is sum of $1,000 for a general session, I believe you are way to limit to $2,000 per day as against $3,747 in the 1949 off the mark. Now I don’t know whether $500 will do the session, $2,535 in the 1947 session—you see, there’s only trick for the budget session. If $500 will do the trick for a a $500 difference there—and in your 1945 session it was budget session, then I believe the sum of $2,000 probably exactly $2,006. Is that clear to the delegates that the figures is more in accord than the sum of $1,000. - - Beg your pardon. Another problem to be considered is the question of the number of employees in the House as well as in the Senate. CHAIRMAN: It’s not clear to the Chair. The proposal In the House we had a lot of bills that were introduced as that you have suggested or you’re advocating would fix the compared to the number of bills that were introduced in the per diem at $1,000. Senate. You will note that the total measures of bills intro KELLERMAN: Per calendar day which includes holidays, duced in the 1949 House was 1,479, as compared to the total Sundays. It’s every day from the date the session convenes in the Senate of 905, the difference of almost 600 measures until it adj ourns finally. introduced in the House. The introduction of bills takes a lot of work of the legislators, work of the members, of the CHAIRMAN: What would that be in a legislative day? working staff. They type the bills, they see they’re engrossed, KELLERMAN: In a legislative day that would come down they have them printed and delivered and the messengers put to - - it would go up to about $1,200 per legislative day. Or them in the books and the amendments are made and the if you want to turn it around and take this at $1,000 calendar committee has to discuss all the bills. day and transpose the figures on your “Comparison of Legis Now I don’t know whether Delegate Kellerman has made lative Expenses,” it transposes the $4,835 which was the an exhaustive study of this problem as to the number of ‘49 daily total—do you get that, the 1949 session—it takes workmen that is necessarily needed for the expeditious that figure down to $3,747. It takes the ‘47 figures down to work of the legislature. Certainly I know there is nothing $2,535 and it takes the ‘45 session down to $2,006 per day. here to show that the thing has been worked out to compare So you see, it is not as much a cut as some people had the special session, the budget session, with that of the gener concluded, and because they brought up that point during al session, and I feel that the setting of an amount here is recess and did not understand the difference between the going to be difficult. I am in accord with the objective of calendar day and the legislative day, I wanted to make that the delegates to hold down the expense of the legislature point clear. so that our tax revenue need not be so high, but we must consider that there are problems here which we have to CHAIRMAN: That’s a reduction of what percentage, Dele foresee. gate Keller man? Can you figure that out? Now another question which has come to my mind is the KELLERMAN: A sixty day session runs approximately question as to whether - - I’ll continue after the recess. seventy-three or four days. It depends upon the day it CHAIRMAN: The Chair will entertain a motion to recess convenes. For instance—I can get it exactly—the 1949 to 1:30. session was a sixty-two day session. It convened on Febru ary 16th and it adjourned, I think it was May 2nd or 3rd—the CASTRO: I so move, Mr. Chairman. Legislative Reference Bureau has the date —and that came CHAIRMAN: Second? up to a total of seventy-seven calendar days. The sixty-two day legislative session of ‘49 constituted seventy-seven SMITH: Second. calendar days, so it’s a difference of about one-sixth. CHAIRMAN: All in favor signify by saying “aye.” WHITE: As I interpret Delegate Kellerman’s thing then, Carried. what is proposed on this thing would represent just about a fifty per cent reduction? Is that right, Delegate Kellerman? Afternoon Session CHAIRMAN: That’s what the Chair was trying to get at. WHITE: About $150,000 as against $300,000 shown for CHAIRMAN: The committee will please come to order. this year? Will the delegates please take their seats. I direct the com mittee’s attention to the fact that we still have some substan KELLERMAN: The suggestion would be $2,000 per calen dar day as against the ‘49 session of $3,747 per calendar day. tial work to get done, so let’s get down to business. We are now debating Delegate Rice’s amendment and we CHAIRMAN: About a ninety per cent reduction. closed with the discussion by Delegate Kellerman. The Chair will ask whether or not she has finished her remarks KELLERMAN: That’s not right. in supporting the amendment. CHAIRMAN: About a forty per cent reduction roughly. 210 LEGISLATIVE POWERS AND FUNCTIONS KELLERMAN: On the basis of the 1947 legislature it’s a must be spent and can only be spent by the end of the legis reduction of only $500, that is $2,000 as against $2,500. lative session. It simply gives them a total sum available for employees’ services, and those that must continue, by WHITE: Well, if you figure roughly seventy-five working nature of their work after the session is over, would have days at $2,000 a day that would be $150,000. to come out of that total. KELLERMAN: Yes, it would be $150,000 for employees. HEEN: Under this language it would seem to me that WHITE: Well, that’s just about a fifty per cent cut of the amount allotted is to be for the general session. When your $299,788 then which is the figure right above your - - the general session adjourns sine die there’s no longer any session, then how can you pay those clerks who have to con KELLERMAN: Yes, yes, I was looking at the daily cut. tinue engrossing these bills to be sent to the governor? I beg your pardon. CHAIRMAN: I think the idea would be so much would be WHITE: That’s what I meant. Could I ask one more ques allowed and then the payment could be deferred; it could tion? This paragraph now reads: “In no case shall the total be computed on the per calendar day. I think that’s the in expense for officers and employees for each house exceed tent of the amendment. $1,000.” How would you take care of - - supposing the legislature went out and contracted a lot of the work outside, KELLERMAN: If the language is not clear to indicate that that wouldn’t be covered by this, would it? it’s intended to be a maximum available for the expenses of the session based upon this rate of $1,000—that’s the idea, KELLERMAN: No, it would not, not independent contract. it is a way of arriving at a maximum, it is not intended to This would be just officers and employees. mean that it can only be paid $1,000 each day within the WHITE: For instance if work done by the Printing Com session—if the language isn’t clear, maybe it should be mittee, printing now done by the legislative employees, sup cleared by amendment or cleared in the report. But the posing it was contracted out to one of the printing houses. intent of it—k’s worded as the california constitution is Then you would have no control on that expense at all. worded and I gather they have the same questions of engross ing as we do and some employees must continue for a few KELLERMAN: That’s right. You have no control over days after the session, it was taken from that language—but that expense. For instance, the final printing of the session the intent of it is that it simply fixes a maximum based upon laws, as you know, is done by a printing concern, that’s done that method of arriving at the maximum for the full expenses by independent contract. The journal, under the present pro of the session, that is the compensation of employees and cedure, the journal is done by members of the legislature, officers. that is, one member of the Senate and one of the House and it’s listed under employees’ pay, although in my opinion that is HEEN: Another question. In the first line of that para more in the nature of an independent contract because it is graph, the word “expenses” is used. not on a per diem or salary but on so much per page basis. CHAIRMAN: May the Chair invite your attention to the WHITE: The point I’m trying to get at is this, that much fact that what is before the house is Delegate Tavares’ of the work that is presently done by the employees of the amendment which adds the sentence, “based upon the aver legislature today could be contracted during the session age purchasing power of the dollar.” I think that is the and circumvent what you’re trying to control here. precise issue that is before the house. KELLERMAN: There is no doubt that the printing, I TAVARES: I should like to move a further amendment presume, could be done on a contract basis. You mean the or rather have my amendment read as follows, in addition mimeographed printing in the legislature? Yes, that prob to the language which I have proposed, as an addition at the ably could. end of the paragraph which reads as follows: WHITE: Many of those functions - - based upon the average purchasing power of the dollar upon admission of this state to the Union, as measured KELLERMAN: It probably could and I don’t know any by the consumer’s price index prepared by the Depart way of fixing that as far as the Constitution is concerned ment of Labor and Industrial Relations of this state or other than the good faith of the legislature in carrying out the department hereafter performing such function. a constitutional mandate with the intent to cover employees, attaches and officers. 5AKAKIHARA: Will the delegate please reread the addition. CHAIRMAN: The Chair might suggest that such a contract TAVARES: “As measured by the consumer’s price index probably would have to be let in accordance with the general prepared by the Department of Labor and Industrial Rela statutes. You would have the assurance that there wouldn’t tions - -“ be a lot of water in the contract. I think that is what the delegate has in mind. CHAIRMAN: May the Chair invite your attention to the fact that they do not keep indices, that they take their indices HOLROYDE: One other question on the same subject. from the Bureau of Labor Statistics? It might be a more Say your total number of days was seventy-five; that would ascertainable standard. I don’t believe they keep indices allow them $75,000, but there is considerable work usually themselves. They in turn have a few indices not as compre left over for the employees to do, maybe a week or three hensive as the Bureau of Labor Statistics. weeks or four weeks. Now that work, as I understand it, must be done within the $75,000 range. ROBERTS: The Territorial Department of. Labor does issue quarterly figures. CHAIRMAN: That’s right. This is a legislative day. They’ve got to cut their cloth accordingly. CHAIRMAN: Yes, but they do not keep statistics like the Bureau of Labor Statistics does. KELLERMAN: The $75,000 would be the maximum, the maximum determined by the length of the session, but that ROBERTS: Not quite the same way but they do issue does not mean that all the $75,000 is going to be spent or publicly on a quarterly basis these data. JULY 7, 1950 • Afternoon Session 211 CHAIRMAN: Only a few commodities. However, that’s SAKAKIHARA: What is there, if we were to adopt this up to the delegate. amendment, what is there for the legislators to commit TA VARE S: May I finish reading this as I was requested? subterfuge. There’s nothing for the legislature to contract. “As measured by the consumer’s price index prepared by There are the costs of the printing of the bills and resolutions the Department of Labor and Industrial Relations of this which may be presented to the legislature, and I feel very State or the department hereafter performing such function.” strongly that this amendment would not serve this purpose. CHAIRMAN: I assume the second accepts that. Is that CHAIRMAN: That’s already been brought out. correct, whoever seconded it? Does the second accept Dele CASTRO: Point of information. Are we voting or are gate Tavares’ re-statement? Just a moment until I find out we about to vote upon that portion of the amendment which whether I have a second here. has been added by Delegate Tavares? TAVARES: I have another suggestion, Mr. Chairman. CHAIRMAN: That’s all we are voting on, the proposed I’m sorry. Another delegate has suggested improving amendment by Delegate Tavares which is an effort to gear language. Pm very willing. Instead of the first part of my the maximum expenditure to the price indices, in substance. amendment, “based upon the average,” substitute “to be adjusted in accordance with the average purchasing power.” CASTRO: The printed section then will not - - KELLERMAN: I think Mr. Rice accepted that original CHAIRMAN: We’re not voting on that. amendment to the amendment and therefore - - I don’t know CASTRO: Thank you. about the second, but he accepted that amendment. FONG: Do I understand by that, that if the purchasing CHAIRMAN: Well, the Chair will ask if this proposed power of the dollar goes up that the legislature would be amendment has a second. cut down to less than a $1,000? ROBERTS: I’ll second. CHAIRMAN: No, go up. You’re quite right, it would go CHAIRMAN: Delegate Roberts seconded. Ready for the down. That is, it would be within the power of the legislature question? The question is on the amendment. The substance to reduce it. of the amendment as the Chair understands it would be to fix FONG: Now I understand that is tied up with the pur a limit but to put a permissable leeway based upon the price chasing power of the dollar. Now suppose the dollar buys indices from which the legislature could from time to time two dollars worth of things. Does that mean the legislature depart. All those in favor - - will be restricted to $500? WHITE: Pd like to raise a question about this. I think CHAIRMAN: No, they could still spend $1,000. we are just jumping into something that we may well regret. I think it’s a very unusual provision to have worked into your FONG: I think that is what it means. It will have to come down to $500. Constitution. Just to take one particular part of government expenses and try to tie it to the purchasing power of the CHAIRMAN: Chair doesn’t construe it that way. dollar, I don’t see that there’s anything to support it. I think we ought to review this thing very carefully. TAVARE5: Pm afraid it doesn’t mean that. I’d like to point out that with a two hundred and fifty or sixty billion CHAIRMAN: The Chair is of that view, too, but the dollar national debt, if our dollar doesn’t stay inflated, amendment is pressed. we’ll jolly well suffer. I don’t think it’s within the realm of possibility that a dollar can start to purchase more from WHITE: In other words there is no relationship between now on with the debt we have. It’s got to stay inflated. the index that we select and the type of legislative expense that we’re talking about. I’m opposed to it but if you want FUKUSHIMA: A point of information. Did not Delegate to put it to a vote - - Rice accept the amendment as made by Delegate Tavares? CHAIRMAN: Chair is obliged to put it to a vote. CHAIRMAN: No, he did not. He accepted a prior amend APOLIONA: I shall address myself to this amendment ment and this has been changed and this is a direct amend and speak against this amendment. In principle it sounds ment, Delegate Fukushima. very, very good but it sure belittles the intelligence and SHIMAMURA: May I please have Delegate Tavares’ integrity of the leginlature. Just yesterday we passed that amendment. section whereby we say that each house shall choose its own officers, determine the rules of its proceedings and keep a CHAIRMAN: I will endeavor to read it to you. If you journal. In the procedure of that business, Mr. Chairman, will examine the last paragraph of Delegate Rice’s amend the two houses of your legislature are free to do what they ment, after the words “budget or any special session,” the think is in the best interests of the people. This amendment, period is deleted and in substance the following is added: as I see it, Mr. Chairman, is very much out of order and “to be adjusted in accordance with the average purchasing very much inconsistent with what we did yesterday, and so power of the dollar upon the admission of this State to the therefore, Mr. Chairman, at this time I move this amend Union, as measured by the consumer’s price index pre ment be deleted. pared by the Department of Labor or such other agencies performing such functions,” or substantially that. It’s CHAIRMAN: The motion before the house is it’s adoption; rather crude, as the Chair has stated, but that’s the sub the Chair cannot put your request, Delegate Apoliona. stance of it, I believe. SAKAKIHARA: In analyzing the amendment, the word TAVARES: I don’t think it’s quite as crude as that. “expenses,” I take it to mean compensations for officers May I read it? and employees alone. CHAIRMAN: I said as the Chair stated it was crude, CHAIRMAN: That’s right. Delegate Tavares, not as you stated it. 212 LEGISLATIVE POWERS AND FUNCTIONS TAVARES: I’ll read it. “To be adjusted in accordance limit on the expenditure of the legislature, she is setting in with the average purchasing power of the dollar upon advance ten years, twenty years, the budget which the legis admission of this State to the Union as measured by the lature is going to operate by. Now if the argument for an consumer’s prIce index prepared by the Department of annual session is strong enough to secure an annual session Labor and Industrial Relations of this State or the depart so that we could budget our expenditures and our appropri ment hereafter performing such functions.” ations for a year or two years in advance, certainly that argument is just as strong for the legislature as we have CHAIRMAN: The Chair will put the question. All in it here. favor signify by saying “aye.” Contrary. The amendment Now you will note that your government appropriated is lost. one hundred million dollars for the biennium, the appropri The questions is now on the second paragraph of Delegate ation bill I think around seventy million dollars and with the Rice’s amendment. capital expenditures items it ran up to almost a hundred LOPER: May I direct a question to Delegate Kellerman million dollars. You have three branches of government; who made this - - you have the judiciary, you have the legislative and you have the executive. The judiciary is comprised of all the judges CHAIRMAN: Can’t hear you, rm sorry. in the Territory of Hawaii, the expenditures of the jury, the LOPER: I’d like to direct a question to Delegate Keller- expenditures of the juvenile court, the members of the man to this point. Is it assumed that this restriction cannot probation office staff and all the clerks that work in the court be circumvented? It seems to me that the legislature could room. Now that is quite an expenditure to take care of your meet two or three days a week, take off two or three days, judicial branch of government. And then your executive and the calendar days could be two or three times as many branch of government, everything that is not in the judicial days as the legislative session and circumvent the purpose branch is your executive branch of government, probably of this amendment. running up to almost seventy or eighty million dollars per biennium. KELLERMAN: Yes, Mr. Chairman, I think they could. Your legislature, which is a sovereign branch of govern However, as I understand, they’re being paid for a session ment, which is the third branch of government having the themselves at a fixed amount. If they want to stay here for same dignity as that of the judiciary and that of the executivq four or five months just to run in extra calendar days to pay is now going to be held down to an expenditure of $1,000 their employees more money through those calendar days or per day. In other words, heretofore they have appropriated give themselves a per diem through those calendar days, I for their own use in the legislature the sum of five hundred think the public will be certainly pretty much aware of what thousand dollars or approximately thereabouts. You are is being done, and I don’t think that that is the kind of run saying to the judiciary - - to the legislature, you can go around that we would expect from the legislature even in ahead and appropriate millions, a hundred million of dollars the interest of patronage. to the other branches of government, that is to the executive CHAIRMAN: Delegate Akau. She rose before the recess and the judiciary, but we will not allow you to appropriate and the Chair refused to recognize her. five hundred thousand dollars for your own purposes. Now you will note that your legislature expenditure is a very, AKAU: Thank you. Just a word in favor of the paragraph very small fraction in this case where there is a hundred regarding the expenses. I speak infavor of it. Just before million dollars, and five hundred thousand dollars is 1/200 recess this afternoon, my good colleague from the fifth of the expenditure of government for the biennium; your district made a statement which I would like to answer. He five hundred thousand dollars as against your one hundred stated that there were a great many bills that came into the million dollars. House of Representatives and therefore a great many Now your government - - your legislature is supposed people - - the implication was that a great many people were to be supreme in its own sphere. It is supposed to legislate needed to take care of all this paper work. I’d just like to for the whole Territory of Hawaii and it has the power to say inject this. By the higher-paid calibered people who will be, to each department, your appropriation for the next biennium we hope, elected to the House and the Senate—not to be cast is so much, and yet you are denying to your legislature the ing any reflections on the people there now, but with more right to say that we will appropriate the sum of five hundred money we hope to get better people —the very fact that they thousand dollars to take care of the expenditures of the legis will be people who will know what they are doing and not, lature. shall we say, repeat some of the bills that are put in by Another discrepancy here in the amendment is the fact themselves and repeat the bills that are on the statutes al that you will give to the Senate and to the House, which are ready, that the number of bills that will be presented, we unequal in numbers, and unequal in number of employees, hope, will be many, many fewer - - much fewer, I should say, and unequal in number of work, unequal in the number of than have appeared in the past in the legislature. bills that are introduced and unequal in the number of things FONG: I do hope that my - - that are taken up in the legislature, the same amount of money which is allotted to each of the bodies, that is $1000 CHAIRMAN: Counsel for the defense. per day. Now if you set the amount of $500 per day for a FONG: Yes, I do hope that my good friend from the fifth budget session which only takes care of your appropriation district will see to it that a harness is placed upon the in bill —one bill out of 1400 bills which was introduced in the troduction of bills by the members of the legislature, but House of Representatives in the 1949 legislature and 900 unfortunately there is nothing to prevent a member of the bills that were introduced in the Senate, a total of 2300 bills legislature from introducing bills. introduced in the House of Representatives and in the Sen Now I was quite surprised that our delegate, Mrs. ate —one bill, the appropriation bill, and you say for that ap Kellerman, brought this amendment up. She was one of the propriation bill we will allot the sum of $500 per day. And staunchest supporters of the annual session. And the only yet you say in the general session, when you will be able to argument for an annual session is that a department head introduce 2300 or 2400 bills in the two houses of the legis cannot budget three years in advance. Now when she sets the lature, that your amount is only $1,000 per day. JULY 7, 1950 • Afternoon Session 213 Now, I don’t know under what rhyme or reason or under the legislature, and I venture to say that if the Democrats what figure the delegate picked this figure of one thousand had 20 members they would have had 20 committees with and five hundred. if the figure of $500 is correct, which I 20 clerks of the Democratic party. You just can’t get away do not know, and I have been in the legislature for over from that. I believe that Delegate Arashiro’s amendment, 10 years - - for 10 years, then I would say that the thousand if he were to propose an amendment, would be a far better dollars for each day of the session, for a general session, amendment than Delegate Kellerman’s because in her amend is far insufficient, if the $500 is enough, then I will say ment the legislature may by diverse — - devious methods your $1,000 should be at least $2,000 per day. Now if the get away from this amendment. Whatever we have in the $1,000 is enough for the general session, then I say your Constitution will be of no avail, and this will be merely an appropriation per day for your budget session should be abortive attempt to curb the legislature from spending the $250. money which we don’t want them to spend. Now I leave this for the thought of all the delegates here. I’d like the objective to be accomplished, if we can CHAIRMAN: Do you move an amendment? save money, I am for it. I’d like to cut the expenditures of government as much as we can, but I am afraid we are FUKUSHIMA: I don’t have it prepared, Mr. Chairman, tackling something which we don’t know anything about, and but I’m speaking against the amendment as written here by I for one am not ready to vote for this amendment because Delegate Kellerman. I don’t know what it’s all about. CHAIRMAN: if there is no further discussion, Chair will NIELSEN: I’m very favorable to such an amendment. put the question. To give you an instance of where the brakes were thrown HEEN: It seems to me that the use of the term “expenses” away, in the last session when 20 Republicans took over, is a little confusing. I take it that this was supposed to be they created 20 committees and all hired clerks and some a limitation on the amount of compensation for the employees. of the clerks twiddled their thumbs most of the session. Is that correct? Now we’ve got to put the brakes on the expenditure and this is really an anti-nepotism bill. I think that’s the way you CHAIRMAN: That is the Chair’s understanding. pronounce it. HEEN: Then I move an amendment that deletes the words CHAIRMAN: Didn’t the Democrats come in for any of “expenses for” and insert in place thereof the words “com this patronage? pensation of.” NIELSEN: We got one for ten members. KELLERMAN: As far as I’m concerned I’ll be glad to accept the amendment. Mr. Rice hasn’t picked up his micro PORTEUS: No nepotism? phone; he says he will accept the amendment of the word ARASHIRO: I am in favor of the intent of the amendment. “compensation” in lieu of “expenses.” I think it will take a non-political assembly of this sort to correct the political evil because the politician won’t be able CHAIRMAN: I heard that. Question then is on the amend to correct their own political evil. I think this is a very ment, which will read, “In no case shall the total compen good intention but I do not think that this amendment will sation of officers and employees for each house exceed the meet the necessary needs to avoid these abuses, I might sum of $1,000 per calendar day during any general session say at this time, of the expenditure because they may by nor the sum of $500 per calendar day during any budget or some means be able to go beyond this expenditure. any special session.” CHAIRMAN: What would you suggest, Delegate Arashiro? KELLERMAN: May I close the debate on that with one Are you suggesting an amendment? answer to Mr. Fong’s statement about the special session. I’m afraid he has unfortunately misled the body with respect ARASHIRO: I’m coming to that. I think that this amend to the number of bills that can be introduced in the budget ment should be drafted in a manner so that none of the session. There may be many independent bills introduced politicians is entitled to employ any employee for the legis relating to capital improvements, many. There may be lature, but we have a civil service department with a list of many introduced relating to some of the other phases of thousands of names who are qualified to do all kinds of work work that can be taken up in a budget session. There may in the legislature, where the civil service department may be some introduced independently which may go into the be able to furnish the men, instead of the legislator getting general appropriation bill. the workers. So I feel that we are in agreement as far as Besides, as long as you have two houses sitting, you have the intent of this amendment is concerned, except that we to have personnel required for two houses. They have noth do not agree in the amount that is set forth in the amendment, ing to do with the volume of bills introduced. if you need a and to expedite the matter I move that we accept the princi lawyer for the House and a lawyer for the Senate, and I ple of this amendment, I mean the intent of this amendment understand in some cases we have two lawyers for each, the and then we proceed. fact that there may be one bill, five, fifteen or a thousand, CHAIRMAN: Chair will rule you can’t do that. your lawyers do not come a dime a dozen. You will have to have the pay for the legal advisors for the two houses. FUKUSHIMA: I believe the amendment as proposed by Frankly, it was on the basis of legal advisors that we deli Delegate Kellerman has considerable merit. We’ve all berately changed from $500 jointly for the two houses in brought that out, everyone that spoke here this morning budget session to $500 for each house in the budget session. and this afternoon agrees with Delegate Kellerman. Just The California Constitution does put the smaller amount before Delegate Arashiro got up, I thought Pd get up and jointly for the two houses. I presume their legal services make the same suggestion, that although the amendment come from the attorney general’s office. I’m told in our carries much merit it will not cure the things that she is legislature the attorney general’s office being so overworked, trying to cure. Certainly, I am just as much against the and I say that not facetiously, that we ar.e required to engage principle of nepotism which is practiced at all sessions of additional attorney services for each house on a per diem. 214 LEGISLATIVE POWERS AND FUNCTIONS CROSSLEY: I haven’t spoken on this subject yet. I cific figures which may have no meaning within a period of would like to concern myself with the remarks that were time, within the next ten or twenty years. made directed towards needing this legislation because the I believe that there is room for progress, and there is Republican party having been in power had practiced nepo room for progress in every legislature dealing with matters tism. of expenditure. I think the problem properly belongs as a matter of public action, as a matter of public interest, as a CHAIRMAN: Mr. Crossley, I don’t think anyone took that matter of adequate publicity in the press, on the radio and very seriously. elsewhere. I think, although the problem appeals to me and CROSSLEY: I did. the approach is quite valuable, I think we would make a mistake by placing a figure in the Constitution. We are CHAIRMAN: I didn’t. thinking basically, I think, in terms of immediate problems CROSSLEY: Well, the Chair and I - - and not thinking of this in terms of a Constitution for years CHAIRMAN: Proceed. and years to come. I, for example, followed the similar data for the State CROSSLEY: I’d like to point out in the ‘47 session, the of Nebraska, and I compared the figures for 1929 where our House was evenly divided, the committees were evenly total expenditures per legislative day, apart from salaries divided. I think that in itself answers the question. However, of legislators, ran approximately $1000 and the State of in the ‘49 session it was stated that the Republicans had 20 Nebraska ran $2100. In the 1949 legislature, the average members and 20 committees. The question was asked, how cost per legislative day in the State of Nebraska dropped many did the Democrats have and the answer was one. Now from $2100, dropped to $1200 in 1949. Our costs rose nepotism, as I understand it, means employing one’s own from $1000 to $7,600. Those figures are high, but I think family, and I think the speaker was probably on dangerous it would be a mistake to try and write something in our ground when he made that point, because in the first place Constitution to remedy a specific evil which ought to be I believe that it was a member of his own family that was remedied by appropriate action of the community and by a employed and I believe that there was more than one Demo proper understanding of the problem and treatment thereby. crat who had a committee. I might have supported this particular proposal if there I think that from these debates that we have, if we try and was some provision made which provided for some flexi break this down to personal politics that we lose a lot of the bility, but that was voted down and no flexibility exists in merit of the bill itself, and that is why I took exception to it. there now. I therefore can’t see how I can support a propo Not because I am a Republican or a Democrat, but because sal of this type. I hate to see these things broken down to the basis of where we’re taking personal exceptions to things instead of looking CHAIRMAN: Delegate Kellerman, do you wish to close at a bill objectively. the debate finally? The Chair will put the question. The I think there’s a great deal of merit to such an amend question is upon the Rice amendment to Section 11 which ment. I think that the people in office themselves for the would fix a ceiling on the sum to be expended for compensa tion of officers and employees of each house. most part would welcome it as it is an automatic answer to a lot of people who are trying to work on the political KELLERMAN: May I ask. a roll call vote? fringes, and to that point I’m very much in favor of the amendment. I agree with the delegate from the fifth, Dele CHAIRMAN: Roll call demanded? The Chair does not gate Fukushima, who says that it might not cure everything. see sufficient hands. Clerk will call the roll. I think we’ve passed a lot of legislation here that is - - or constitutional matter that is legislative perhaps, that is Ayes, 29. Noes, 27 (Apoliona, Ashford, Corbett, Doi, aimed at curing things that the legislators themselves can Fong, Fukushima, Hayes, Heen, Kage, Kauhane, King, Kome not cure or find it very difficult to cure. The very question tani, Lai, Larsen, Loper, Lyman, Noda, Ohrt, Porteus, of compensation was one which they expressed some reluc Roberts, Sakai, Sakakihara, St. Sure, White, Yamamoto, tance to deal on. There are lots of other things. I hope Yamauchi, Anthony). Not voting, 7 (Kawahara, Lee, Mau, Mizuha, Phillips, Richards, Silva). that the delegates will look at this objectively, and if they do I’m sure that they will recognize perhaps not a cure-all, CHAIRMAN: The amendment is carried. and I doubt that we can write a cure-all without being too restrictive, but at least it is in the right direction and I hope J. TRASK: I move that Section 11 be adopted as amended. it will be supported. A. TRASK: I second the motion. NIELSEN: I want to take exception to the remark that in CHAIRMAN: It has been moved and seconded that Section the ‘49 session that any member of my family worked in 11 as amended be adopted. All in favor signify by saying that session. There was no member of my family, wife, “aye.” Contrary. It’s carried, it’s adopted. cousin, sweetheart, or a side-kick worked in that session. We’ll proceed to a discussion of Section 20. As the Chair CHAIRMAN: I think we can keep this debate on the level understands it, it has been moved and seconded that that be of the merits of the bill. adopted and thereafter it has been deferred. NIELSEN: And what I said about the Democrats getting HEEN: I believe that there is an amendment here which one is true. was proposed by Delegate Sakakihara. ROBERTS: I’d like to suggest that the problem which we CHAIRMAN: That’s correct. Has that been printed, have before us, although an extremely vital and important Delegate Sakakihara? one in terms of an objective of expenditures by the legisla ture apart from salaries of the legislators, is vital and im SAKAKIHARA: Yes, Mr. Chairman, it has been distributed portant and has been fairly high and has been rising rapidly. to the members. I personally have some doubt as to whether we, as .a matter of writing a constitution, ought to place in that section spe CHAIRMAN: You offer your amendment? JULY 7, 1950 • Afternoon Session 215 SAKAKIHARA: At this time, I offer my amendment to CHAIRMAN: The Chair will then put the question on sec Section 20 to read as follows: tion as amended. All those in favor signify by saying “aye.” Section 20. Punishments of persons not members. Contrary. Carried. That each house may punish by fine, or by imprisonment HEEN: My vote was “no.” I am going to move for recon not exceeding thirty days, any person not a member of sideration later on. either house who shall be guilty of disrespect of such house by any disorderly or contemptuous behavior in its CHAIRMAN: Of this Section 20, Delegate Heen? presence or that of any committee thereof; or who shall, HEEN: That is correct. on account of the exercise of any legislative function, threaten harm to the body or estate of any of the members CHAIRMAN: You vote “aye” on this, then. of such house; or who shall assault, arrest, or detain any FIJKUSHIMA: I believe yesterday we deferred Section 18 witness or other person ordered to attend such house, on also. his way going to or returning therefrom; or who shall rescue any person arrested by order of such house. CHAIRMAN: That is correct. Section 18 is now before But the person charged with the offense shall be in- the house. It has been moved and seconded that that be formed, in writing, of the charge made against him, and adopted. have an opportunity to present evidence and be heard in FUKUSHIMA: The amendment to Section 18 was moved his own defense. and seconded. CHAIRMAN: Is there a second? CHAIRMAN: That was your amendment, Delegate Fuku shima? ROBERTS: I’ll second it. FUKUSHIMA: That is correct. If the Convention recalls CHAIRMAN: The Chair understands that the amendment when discussing this amendment the question was asked, of Delegate Sakakihara substantially incorporates a section what would happen to a bill returned by the governor with of the Hawaiian Organic Act. suggestions of amendments, and it was not too clear whether SAKAKIHARA: Section 25 of the Organic Act, correct, this section covered it or not. Therefore, this morning I sir. conferred with Delegate Tavares, who made this observation, and we included in the amendment which is now before the CHAIRMAN: Any discussion? If not, the Chair will put Convention and distributed to each delegate and inserted the question. this sentence to cover that situation. That sentence is the HEEN: There is one situation that is not covered by this last sentence of the first paragraph of my amendment. It amendment and that is one where the two houses may sit reads, “If such a bill is amended and reenacted at such in joint session. I believe that there is some such provision special session, it shall be presented again to the governor now in one of the articles where the two houses may sit in but shall become law only if he shall sign it within ten days joint session; for instance, in the election of or rather the after presentation, Sundays and holidays excluded.” I feel, appointment of the post-auditor, that requires action on and I believe the person that made the observation also feels, the part of the two houses sitting in joint session. This pro that this amendment here will cover that situation adequately. vision provides for punishment by each house for any act of CHAIRMAN: The purpose of your amendment is to avoid direct contempt or indirect contempt as against each house the evils of the so called “pocket veto,” is that correct? or the committee of each house or by the house. There is nothing to cover the situation where the two houses sit to FUKUSHIMA: That is correct. gether in joint session. CHAIRMAN: The basic purpose of your amendment. CHAIRMAN: You’re thinking of the situation in the event TAVARES: I agree with the last speaker and I think a contempt should occur in that particular instance? this last sentence cures the small hole I found about a bill which might be sent back with the governor’s objections, HEEN: That is correct. and the legislature might agree and pass the amendment CHAIRMAN: Well, possibly the sergeant at arms could the governor suggested. Or if they didn’t do that the gover take care of that. nor would then have a pocket veto on that second try. Any further discussion? If not, the Chair will put the CHAIRMAN: Delegate Fukushima, how many readings question. The question is on the amendment of Delegate would be required in the event the special session is recon Sakakihara, printed and on the desks. All those in favor vened under your amendment? signify by saying “aye.” Contrary. Carried. FUKUSHIMA: I believe that would be taken care of under FUKUSHJMA: I believe the Chair has gone ahead with Section 19, Mr. Chairman. Section 20 when Section 18 was also deferred. CHAIRMAN: The same number, three readings? WIRTZ: Point of order. My understanding [isi we have FUKUSHIMA: I don’t believe that’s the procedure out not yet voted on the section as amended, Section 20, have lined in Section 19 for a regular veto when the legislature we? is still in session. CHAIRMAN: We have just voted on the amendment. CHAIRMAN: In other words, Section 19 would be appli cable to your amendment as well? WIRTZ: Not the section as amended? FUKUSHIMA: That is correct. CHAIRMAN: That is correct; it is a complete substi tution of Section 20. HEEN: About the middle of this proposed amendment you will find the words at the end of the line there, “house of WIRTZ: I move the previous question. origin at a special session of the legislature.” Now in the 216 LEGISLATIVE POWERS AND FUNCTIONS other parts of the article and in the Organic Act the gover ASHFORD: May I ask a question of the proponent? “No nor is required to return the bill to the legislature itself, salary shall be payable when the legislature is convened and that has been the practice, where he sends his message for this purpose.” That means I assume, no salaries shall together with the bill to both houses. ~o I would move the be paid the legislators. deletion of the words “house of origin at” and then in the FUKUSHIMA: That is correct. next line “special session of the,” so that that clause will read, “shall return it with his objections to the legislature, C. RICE: Does the proponent of this amendment think which shall convene,” etc. Then later on, alter the words they should be paid mileage when they come from the other “that day” - - “legislature which shall convene on that day,” islands? delete the words “without call” and insert in place thereof CHAIRMAN: I assume the statute would take care of the words “in special session.” “In special session without that. call,” deleting the words “petition or.” C. RICE: I just wanted to say that in a 25 Senate, nine CHAIRMAN: “Without call” inserted after the word members have to stay away, and they can’t over-ride the “convene”; “shall convene without call”? governor’s veto. It takes two-thirds. - HEEN: “Shall convene on that day in special session CHAIRMAN: The statute would take care of the mileage without call.” problem. FUKUSHIMA: That amendment is acceptable. PORTEUS: Who pays the employees? What does the HEEN: Then later on following the word “call,” and legislature do, convene, and then what does it do, spend reading on, “for the sole purpose of acting,” then delete its money? the words “pursuant to this paragraph,” so that phrase FUKUSHIMA: This provision, the last sentence, merely following the word “call” shall read “for the sole purpose prohibits the legislators from getting any salary. of acting upon bills returned by the governor.” CHAIRMAN: In other words that could be changed by CHAIRMAN: So the Chair can understand your amend the Style Committee to make that clear, if there is any ment, Delegate Heen, would you go over that again beginning ambiguity. with “shall return it with his objections to the legislature.” PORTEUS: rm not attacking the amendment. What I HEEN: With those amendments the clause will then read: have in mind is some previous action taken this afternoon “shall return it with his objections to the legislature which where we budget the amount of money and the employees, shall convene on that day, in special session without call, whom I would like to put in a good word for, spend a great for the sole purpose of acting upon bills returned by the deal of time working very hard. In perhaps the last two governor.” weeks of the legislature, there are no people in the territory CHAIRMAN: Is that acceptable, Delegate Fukushima? who get as little rest and sleep as do the key employees of the legislature. The legislature has budgeted that sum, it is FUKUSHIMA: Yes, Mr. Chairman. certainly not going to hold out a reserve for this additional CHAIRMAN: Chair is still a little bit puzzled as to how session. As a matter of fact, right now - - the legislature convenes. How is the legislature going to KELLERMAN: I can answer that very question. find out about it under your amendment? FUKUSHIMA: It convenes without call on the forty-filth PORTEUS: May I continue my remarks. As a matter of fact, right now our clerks are working ‘til alter mid-night day, Mr. Chairman, if the bill is returned, If the bill is every night. The expenses of this session were referred to not returned, then it becomes law. as a good indication of what could be done in the legislature. HEEN: May I continue with some amendments? At the I’d like to point out that we are very fortunate in having a end of that clause, the last word being “governor,” delete chief clerk and assistant-chief clerk who are willing to work all of the next sentence. The provisions in other parts of for the money they are getting now for as many hours as they the article will take care of the required two-thirds vote are working. I’ve been down here from 11 and 11:30 at night to over-ride the governor’s veto. and checked with them and been told - - CHAIRMAN: You think that’s surplus? CHAIRMAN: Are you speaking for or against the amend HEEN: That’s surplus. ment? CHAIRMAN: Do you accept that, Delegate Fukushima? PORTEUS: I am speaking as to a defect. FUKUSHIMA: Yes, Mr. Chairman. CHAIRMAN: We have already debated the question of the costs of a legislative day. CHAIRMAN: Any further amendments? PORTEUS: I see, then what do you suggest that I do, Mr. TAVARES: I’m in doubt about just what portion the dele Chairman, when I feel there is a defect with respect to this gate wishes to delete. insofar as employees are concerned? CHAIRMAN: That sentence: “A bill reconsidered at CHAIRMAN: I would suggest an amendment. such special session, if approved upon reconsideration by two-thirds of all the members of each house, shall become HEEN: I don’t think you need any amendment because the a law.” In other words, you go back to the original veto provision about paying compensation for the officers and provision. employees applies. It applies for each house, “shall not exceed the sum of $1000 per calendar day during any general TAVARES: Which would control then and allow just the session nor the sum of $500 per calendar day during any one reading? budget or any special session.” So you have $500 for that CHAIRMAN: That’s right. purpose. JULY 7, 1950 • Afternoon Session 217 PORTEUS: Is this to be a special session which would CHAIRMAN: That’s what the Chair said. otherwise compensate the members at $750 if this other provision were not inserted? Is that your idea, Mr. Chair HEEN: “ - - when - -“ man? CHAIRMAN: “Convened for this purpose.” HEEN: There shall be no compensation, as I understand HEEN: “ - - convened for this purpose.” That’s correct. it, for the members of the legislature. CHAIRMAN: Did Delegate Fukushima hear that proposed PORTEUS: But it does rate as a special session? amendment to his amendment, suggested amendment? It was CHAIRMAN: As the Chair understands it, this would be to obviate the question raised by Delegate Porteus. “No counted a legislative day for which they could expend funds salaries shall be payable when the legislature,” and the for employees. suggestion was, “No salaries shall be paid to members of the legislature when convened for this purpose.” Is that PORTEUS: This would be a special session. acceptable? CHAIRMAN: A legislative day, that is correct, but there FUKUSHIMA: That is acceptable, but I see no difference would be no compensation to the legislators for that particular from the second sentence of that paragraph. occasion. CHAIRMAN: Well, Delegate Porteus thought that might ASHFORD: By implication at least, does not this amend preclude the payment of the employees. “No salary shall ment restrict the legislature in that special session to recon be paid when the legislature is convened for this purpose.” sideration of the bill sent back? ~an they pass an appropria tion bill to pay their employees? FUKUSHIMA: Very well, I’ll accept the amendment. WIRTZ: Wouldn’t the proper construction be that this is CHAIRMAN: That will put his mind at rest. an extension of whatever session it was that the bill that was HAYES: This is an important amendment and I feel that vetoed by the governor, and if it happened to be at a special we should have a recess so that it would give them a chance session that same allowance would continue on $500; if it to go over the amendments that have been entertained. So happened to be in a regular session, $1,000 a day would I therefore move for a very short recess. continue on. HEEN: It is not an extension of the regular or the general WHITE: Before you put that, could I ask the chairman of the Legislative Committee a question. Whether, if his session or any other session. It would be a special session interpretation is right that this would be considered a spe and the provision that was agreed to this afternoon would cial session, wouldn’t it be necessary then to go back and cover the compensation of employees or other officers of the make an exception where we fix a compensation, to provide legislature. that “except as otherwise provided in this Constitution”? WIRTZ: Then may I ask the chairman of the Legislative CHAIRMAN: That’s right, that’s the last sentence that Committee the reason why in his amendment he struck the we’re discussing, Delegate White. “No salary shall be words “a special session.” paid - -“ HEEN: No, the words “special session” are still there. WHITE: Well, I think you’d have to go back and make an WIRTZ: The way I read it, your amendment was “house exception to Section 11 then because if it is a special session of origin” - - you struck “house of origin,” you struck “a it provides that the legislator shall receive $750 for a spe special session” - - cial session. CHAIRMAN: No. The amendment reads as follows: “Re CHAIRMAN: Would you be satisfied if the Style Commit turn it with his objections to the legislature which shall con tee would solve that apparent difficulty? vene on that day, in special session without call.” WHITE: Well, I raise the question because I’m inclined FUKUSHIMA: It doesn’t matter what we call it—special to agree with the chairman of the Legislative Committee that session. We all know what this is for, the primary purpose this is a special session, and if it is, then I think that in is merely to reconsider bills that have been turned over to order to be consistent that there should be an exception made the governor after the legislature had adjourned sine die. in Section 11. If you want to call it a supplementary session, we can do so, or a supplemental session. I think that it’s a matter of HEEN: Section 11 is general in terms, and this is a spe style. I said “special session” for the lack of a better word. cial provision which would control as a matter of construc tion. HEEN: I think the term “special session” is correct and it would carry with it the payment of compensation of em CHAIRMAN: Chair will put the question. The question ployees and other officers serving the two houses. is on - - Now, if that is a closed issue I would move an amendment, ASHFOnr~: May I ask either the proponent or the chair that the word “legislature” be deleted and the word “legisla man of the Legislative Committee whether it is not true tors” be substituted for that word. “No salaries shall be that under this amendment that is now proposed, that legis payable to the legislators when the legislature is convened lature in special session could not appropriate the necessary for this purpose.” In other words, after the word “payable” moneys for the staff which would be obliged to work for them insert the words “to the legislators,” that’s all. if they were to get their work done? CHAIRMAN: The Chair would suggest, “No salaries HEEN: I think that’s absolutely correct. shall be paid to members of the legislature convened for this purpose.” Does that meet with your suggestion? TAVARES: For all these 50 years, the legislature hasn’t had any trouble appropriating money for a session, and then HEEN: “No salaries shall be paid to the members of the for two years for a hold-over committee. If they can appro legislature - -“ priate money for two years for a hold-over committee—and 218 LEGISLATIVE POWERS AND FUNCTIONS ram one of the people who have been for hold-over commit the legislature if he plans to return any bills with his objec tees, I think they have done good —they can certainly appro tions on the forty-fifth day.” priate money to carry over 45 days to a special session. CHAIRMAN: Are you finished, Delegate Roberts? Is that CHAIRMAN: Chair will put the question, question is on your amendment? the amendment. ROBERTS: That’s correct. SHIMAMURA: On the last sentence of the first paragraph TAVARES: ru second the amendment. it reads, “if such a bill is amended and reenacted.” I won der, for clarity’s sake, although this is a minor matter, if SAKAKIHARA: I would like to have the movant reread it would be better to say “enacted” instead of “reenacted,” his amendment so that we will understand the purport of the because if a bill is amended it would not be reenacted, but amendment. enacted for the first time. CHAIRMAN: “The governor by proclamation shall give CHAIRMAN: What is the appropriate language? five days’ notice to the members of the legislature if he plans to return any bills with his objections on the forty- FUKUSHIMA: This word has been taken from the New fifth day.” Jersey Constitution. If the Style Committee sees fit to use the word “enacted,” it’s perfectly all right. H. RICE: Yesterday I thought that I would support Dele gate Fukushima’s amendment but in thinking it over, we’re CHAIRMAN: It’s all right with you. The Chair will put not going to give as much power to an elected governor as the question. we are giving now to an appointed governor and lots of times — HEEN: I think that word “reenacted” might be changed it will work both ways—lots of times a bill just gets a fair to “passed,” “if such a bill is amended and passed.” majority in both houses. It isn’t carefully considered and I think that a governor should in lots of instances pocket veto CHAIRMAN: It’s a matter of style, I think, Delegate it.if he doesn’t think it’s right. Don’t forget the governor, Heen. if he is in politics, he’ll have to run again, and if he has ROBERTS: As I read this article, and I have some vetoed some item for say Wahiawa High School, why he is sympathy for it, there seems to be a requirement in the going to run in that district and he will have to get the votes article that on the forty-fifth day alter the session has in that district. So I think we are trying to do a lot of funny ended, the legislature reconvene on its own if the governor business and the present law, they should stand as it’s hasn’t signed all of the bills. Now you’ve got to make some written. provision in there for the governor to inform the members CHAIRMAN: The Chair would suggest that a simplifica of the legislature to bring them in session. This thing would tion of this could be had by just giving a legislative grant of automatically require that they come back at 45 days after power to legislate in the field of a pocket veto without this they end the session. Now you’ve got to make some provi long amendment. However, the Chair will put the question. sion for letting the legislators know whether he plans to veto, whether he plans to put those into effect, or if he HEEN: Before that sentence that was recited by the plans to return some of them. chairman, there was another clause added after the word “governor” in the sixteenth line. CHAIRMAN: That is the question that the Chair propound ed to Delegate Fukushima three times. CHAIRMAN: After the word “governor,” the line begin ning with “shall return it with his objections” has been WIRTZ: I renew the motion to recess to ponder that changed to read, “shall return it with his objections to the question. legislature which shall convene on that day, in special ses CHAIRMAN: Take a five-minute recess. sion without call, for the sole purpose of acting pursuant to this paragraph upon bills returned by the governor, unless (RECESS) he shall have failed to give - - “ This is the insert. HEEN: The words “pursuant to this paragraph” were CHAIRMAN: Will the delegates please take their seats. deleted in a previous amendment that was made by me and H. RICE: Is the Fukushima amendment still before the accepted by the proponent of the amendment. body? CHAIRMAN: The Chair would appreciate it then if you CHAIRMAN: The Chair will recognize either Delegate would restate that amendment, Delegate Heen. The Chair’s Fukushima or Delegate Roberts. I believe they have amend got it wrong apparently. ments. HEEN: Starting with the word “shall,” “shall return it ROBERTS: The following language I think will meet the with his objections to the legislature which shall convene on question which we raised before the short recess. After the that day, in special session without call, for the sole purpose word “governor,” line 16 in the paragraph, it reads: “For of acting upon bills returned by the governor.” the sole purpose of acting upon bills returned by the gover CHAIRMAN: Then was there not an insert, “unless he nor.” Change the period there to a comma and add the shall have failed to give the notice hereinafter provided”? following language, “unless he shall have failed to give notice hereinafter provided” or “mentioned.” FUKUSHIMA: rh accept all amendments so that we will vote upon only one amendment. CHAIRMAN: A little bit slower, please. Can we have that again? CHAIRMAN: Does the body understand the amendment now? ROBERTS: “Unless he shall have failed to give notice hereinafter mentioned,” or “hereinafter provided.” Then KING: Following the language read by Delegate Heen, Mr. add the following sentence after that. “The governor by Chairman, would come the amendment offered by Delegate proclamation shall give five days’ notice to the members of Roberts which has been accepted, and there was a sentence JULY 7, 1950 • Afternoon Session 219 deleted. “A bill reconsidered by such legislature” and so CROSSLEY: Point of information. I believe we have forth was deleted by Delegate Heen and accepted by Dele amended a part of Section 12 and therefore it would be in gate Fukushima. order now to adopt the entire section. CHAIRMAN: That’s the way the Chair has it. I’ll read CHAIRMAN: You’re quite right, Mr. Crossley. Do you it again. Beginning with that line in the original print, “shall so move? return it with his objections to the legislature which shall convene on that day, in special session without call”; the CROSSLEY: I so move. rest of the sentence goes down to the word “acting,” and the C. RICE: I second the motion. words “pursuant of this paragraph” are deleted. Are you ready for the question? The Chair will then put CHAIRMAN: It has been moved and seconded that the the question. All those in favor of the amendment signify entire Section 12 as amended now be adopted. All those in by saying “aye.” Contrary. The Chair will call for a rising favor signify by saying “aye.” Contrary. Carried. vote. All those in favor. Contrary. Amendment carried. KING: Section 20 was adopted. KiNG: This amendment replaced the second paragraph CHAIRMAN: That’s correct. of the original Section 18. I now move for the adoption of KING: Section 21 is now before the Convention. Delegate Section 18 as amended. ~akakihara had a proposed amendment to Section 21. TAVARES: I second the motion, In so doing I should SAKAKIHAR.A: Section 21? Delegate Okino’s amendment, like to have it understood the committee report will state I believe. what was said here in explanation of that second paragraph as amended, that it does not take three readings in this CHAIRMAN: Section 21 is before the house. It has been special type of special session to reconsider a bill and pass moved and seconded that it be adopted. Delegate Okino has it over the veto by a two-thirds vote or to amend it and send a motion which he may offer at that time. it back to the governor, that it only requires one reading in OKINO: Thank you, Mr. Chairman. I believe all you each house. delegates have - - CHAIRMAN: There is a motion before the house that CHAIRMAN: Do you offer the amendment? Section 18 as amended be now adopted. Is there a second? Delegate Tavares seconded the motion. Are you ready for OKINO: I do offer an amendment. Amend Section 21 of the question? All those in favor signify by saying “aye.” Committee Proposal No. 29 to read as follows: Contrary. The ayes have it. Section as amended is adopted. Section 21. Removal of officers. The governor, other elective executive officers, and any appointive officers HEEN: There was some discussion in considering Sec for whose removal the consent of the Senate is required, tion 18, as amended, as to the payment of expenses of this may be removed from office on impeachment for such particular special session. In order to take care of that causes, as may be provided by law, and upon conviction situation, I will now move that this committee reconsider of the charges against such officers. its action taken in connection with the second paragraph of The legislature shall by law provide for the manner Section 12 of the same article. and procedure of removal by impeachment. J. TRASK: I second the motion. Judgments in cases of removal from office shall not extend further than to removal from office and disquali CHAIRMAN: All those in favor of reconsideration of fication to hold and enjoy any office of honor, trust or Section 12 signify by saying “aye.” Contrary. Carried. profit under the state; but the person convicted may nevertheless be liable and subject to indictment, trial, HEEN: I take it that the delegates have before them judgment and punishment according to law. the second paragraph of Section 12 of Committee Proposal No. 29. CHAIRMAN: Is there a second? CHAIRMAN: Beginning with “At a budget session”? SILVA: I second the motion. HEEN: That’s right. In line seven of that paragraph, CHAIRMAN: State the amendment, Delegate Okino. delete the period after the word “session” and insert after OKINO: You will note from the amendment which I the word “session” the following words: “and the special have offered that the first correction made to paragraph one session to be convened thereafter in accordance with the of the committee proposal is the insertion of the words, “any provisions of Section 18 of this article.” appointive officers for whose removal the consent of the Senate is required.” I believe all of you know, many of you CHAIRMAN: Are you ready for the question? All those did fear that the governor of the State of Hawaii was being in favor of the amendment will signify by saying “aye.” built up to be a superman because he was given too much Contrary. Carried. power. You will also note that when Delegate Tavares made HEER~ I now move that that paragraph be adopted as an amendment to the executive article, Proposal No. 22, amended. the governor was to be given further power to make removal of his appointees. There is no provision in the Constitution SERIZAWA: I second that motion. with reference to popular recall of any officers of the State. CHAIRMAN: Moved and seconded that the paragraph The only way of removing officers is by impeachment, with just amended of Section 12 be adopted as amended. All in the exception of that special provision contained in the judi favor signify by saying “aye.” Contrary. Adopted. ciary article. It was for that reason that I have not included justices of the supreme court and circuit court judges in KELLERMM~: Is there anything before the house? this proposed amendment. By this amendment you will note that the legislature is CHAIRMAN: Section 20 is the next item of business. being given the power to remove not only the governor and 220 LEGISLATIVE POWERS AND FUNCTIONS other elective executive officers but other officers appointed fication from the further holding of office. Did you consider by the governor himself. It is limited to those appointees that problem? whose removal can be done only with the consent of the OKINO: No, I have not considered that problem, but Senate, but if the governor does not exercise this power to from the wording contained herein, I believe that cannot be remove his appointee, no matter how bad and inefficient he done unless the legislature perhaps may enact such specific may be, because of the reason that this particular appointee provision. may be his very good bosom friend or perhaps this parti cular appointee may have a toe-hold or something on the CHAIRMAN: Well, that was my question. governor, the governor certainly will not remove this parti OKINO: In providing for the manner and procedure of cular appointee, but by giving the legislature this power of removal by impeachment. impeachment there is that check and balance. The governor realizes that if he takes no action, he would be compelled to CHAIRMAN: Couldn’t that be fixed, “after the term of do so by the legislature. By that I mean, if the governor office had expired in accordance with law.” should realize that the legislature also has the power to im OKINO I’m willing to accept your amendment. peach any of the appointees made by him, the governor would be in the position to exercise and carry out his duties more CHAIRMAN: I’m just asking you what the language means. efficiently. That should be done, in my opinion, by impeach OKINO: With reference to paragraph two? Is that with ment. reference to paragraph two? The next change I have made in paragraph one of the committee ‘proposal concerns the grounds and causes of CHAIRMAN: That’s right. impeachment. You will note in paragraph one of the com OKINO: I am inclined to the view that the language is mittee proposal that there is a specific enumeration of causes broad enough so that it could be done. for the impeachment of the governor and elective executive officers. The grounds given are as follows: treason, bri CHAIRIvIAN: Any further debate on this? bery or other high crimes or misdemeanors. You will re KING: I have no opposition to the amendment. It does call when the judiciary article was submitted before the permit the impeachment of appointive officers whose appoint Committee of the Whole for consideration, a similar enumer ments in the first instance have to be confirmed by the ation was provided. The same was amended so that Section Senate and whose removal has to be approved by the Senate. 4 of the judicial proposal reads as follows: “That the re But this amendment abolishes the rather standard practice moval from office may be done upon the concurrence of of having the House of Representatives, which shall have the two-thirds of the membership of each house of the legislature, sole power of impeachment, the Senate shall preside as the sitting in joint session, for such causes and in such manner court, and requiring the chief justice to preside in case~ the as may be provided by law.” I feel that it would be better governor is impeached, and requiring a two-thirds vote. to follow the wording of the section contained in the judiciary “No person shall be convicted without the concurrence of article. If we do not do so, there seems to be a discrimina two-thirds of the members present.” It seems to me the tion between the judges and other elective or appointive impeachment of the governor or the lieutenant governor officers of the State of Hawaii. With reference to what may should have those requirements. As to elective officers, constitute sufficient causes, the same is to be left with the I mean appointive officers, I’m not certain. legislature, as qualified by my amendment, “as may be This substitutes for all of that language that was in the provided by law.” original committee proposal and which follows the usual The next amendment - - the next change proposed by me form of the law governing the impeachment. One brief para in this amendment is the deletion of paragraph two of Sec graph says, “The legislature shall by law provide for the tion 1 of the committee proposal. You will note that para manner and procedure of removal by impeachment.” Now graph two of the committee proposal is a reproduction of that would leave it to the legislature to enact a statute that the Constitution of the United States. I believe it is realized would govern, and the statute may or may not require a by many students of political science that an impeachment two-thirds vote for the removal of the governor or lieutenant proceeding is a very cumbersome procedure, and I believe governor. it was for that reason that the chairman of the Judiciary Committee made the change regarding removal of justices CHAIRMAN: You are quite right, Mr. President. from courts. Likewise, I feel that the power may be duly KING: I feel that that language should be amplified a delegated to the legislature to enact proper legislation to little bit and then I would be in favor of the amendment. expedite any removal proceeding by impeachment. The amendment offered is simply, “The legislature shall by CHAIRMAN: Delegate Okino, you stated that this was a law provide for the manner and procedure of removal by counterpart of the judiciary article. Was there not a require impeachment.” I believe, Mr. Chairman, that this will ex ment of a two-thirds vote in tile judiciary article? pedite impeachment proceedings, it will be invoking the OKINO: I felt that the legislature could include that par principle of check and balance, so that there is less fear ticular provision. about too much power being vested in the governor, and I think all in all it will result in good administration of govern CHAIRMAN: I’m asking you what was in the judiciary ment. article. OKINO: Yes, I’ve read that. CHAIRMAN: Delegate Okino, the Chair would like to ask you a question. One of the vices of the Federal constitution TAVARES: I don’t know whether that motion was seconded al provision relating to impeachment is that you can’t im for purposes of making It regular; if it wasn’t, I second it. peach an officer after he is gone out of office. On your pro CHAIRMAN: It was seconded. posed amendment, could impeachment proceedings be had after the officer’s term had expired? I notice in some TAVARES: But I do think that - - well, I had told the constitutions that is placed in order to get at the disquali delegate I was in favor of this amendment. I believe Delegate JULY 7, 1950 • Afternoon Session 221 King has brought up a point which was overlooked, and I move GILLILAND: A question in my mind is whether “the mem to defer until the end of the consideration of this article and bers of the house” refer to the bill to the committee, or the we’ll try to work out a further amendment. speaker of the House, or the president of the Senate. CHAIRMAN: The Chair would like to state we want to conclude this article very shortly, so I would suggest, Dele KELLERMAN: I think that’s a technical point. By this is meant the body, that part of the legislature—I don’t .know, gate Okino, that you get your amendment in shape. I think that’s clear —rather than the particular clerk or ASHFORD: I second it. office of the body. This is known as the anti-iceboxing proposal. May I W]RTZ: I move for a recess then, Mr. Chairman. state first that this was introduced not with one-third but ST. SUREt I second the motion. at a much lower percentage in the Legislative Committee of which I was a member. In that committee there was a CHAIRMAN: Is there a motion for deferment? vote taken eight to five to recommend to the Rules Committee KING: Mr. Chairman, I’m going to suggest that the chair of the legislature that it give serious consideration of this man is unduly optimistic if he believes that we are going to measure. I was told immediately after the meeting of the complete Section 22 very shortly. committee by three members of the committee who had voted to refer it to the legislature that they would favor this A. TRASK: Shouldn’t we have an expression from the chairman of the committee before we recess? proposal on the floor with the increase from one-fifth as it had been introduced in the Legislative Committee to one- CHAIRMAN: Was there a motion for recess.? I suggest third. I therefore feel I am justified in saying that I’m that we go on to the next article instead of a recess, wouldn’t bringing it to the floor with the approval of a majority of that be more expeditious? the Legislative Committee. Howeveç, it is not so listed in the committee report. I give that history of the proceedings CASTRO: Kokua. to justify my statement. DELEGATE: Next section, you mean. Next section. I think the Committee on Initiative, Referendum and Re call will bear me out in my statement that one of the grounds CHAIRMAN: Next section. The Chair will entertain a on which that committee or the majority of that committee motion to defer this section until the conclusion of this voted against recommending to this Convention provisions article. - for initiative, referendum and recall was the ground of im MAU: I so move. proving legislative process, of making it more, I shall say more representative, make it perform in a more represent FONG: I second it. ative nature to those who elected them and put them in CHAIRMAN: All in favor signify by saying “aye.” Con office. It seems to me that it is a violation of the whole trary. It’s carried. theory of democratic representative government that a com mittee, by virtue of its chairman, or even with a full consent MAU: I wonder if I could ask the sponsor of the amend of the majority of a committee, which I presume would be ment to consider the fact that there’s only one other elective a minority of the house from which it was appointed, shall officer that I can recall, the lieutenant governor. See if he be able to keep from consideration of the majority of that can work out the wording there. body any controversial measure which it sees fit to keep from consideration. I think it only just and right that the TAVARES: Mr. Chairman. members of the public who are by our own act of turning CHAIRMAN: We’re now on the legislative council. Dele down initiative, referendum and recall, and on that I am in gate Tavares. full agreement with this Convention, denying them the right to bring up a bill of their own accord and force its consider TAVARES: Oh I’m sorry, I thought a question was asked about the one we just deferred. I just wanted to say that - - ation by the public or the legislature, we should at least provide that by a vote of one-third of the members of the CHAIRMAN: Delegate was out of order on that, Delegate house of referral, any bill can be withdrawn from committee, Tavares. therefore from any iceboxing by that committee, and at least Section 22, is there a motion it be adopted? present it to the floor for full consideration and debate. Under our present rules, it takes a majority vote to bring KELLERMAN: Before we go into Section 22, which I think any bill from committee. It’s highly improbable that a ma will take quite some debate, so I understand, may I propose jority vote could be so obtained unless there was a majority an amendment? It has no number; it would have to be fitted in favor of the bill which needs passage. I fully recognize in by Style, wherever it should come. The amendment is on that a one-third does not mean that you bring up a bill that the desks. I’ll read it and help you to identify it. would necessarily be passed. That is not the point. The SECTION. Committees. Fifteen days after a point is to get it considered, ample discussion and debate, bill has been referred to a committee, one-third of the so that the public who have elected those representatives members of the house which has made the referral shall will know how they stand on controversial insues on which have power to relieve the committee of further considera the public certainly has a right to be advised. tion of the bill and place it on the calendar for considera Any man now can go to any member of the public who tion. has elected him and say, “I would have voted,” as he knows that individual would have wanted him to vote, “but the bill WIRTZ: I second the motion. never got out of committee.” He can go to the next one on CHAIRMAN: Delegates have this amendment on their the next block and say the opposite. We have no knowledge desks? of how our representatives vote in committee, and if it is kept in committee we have no knowledge on how they would KELLERMAN: This was passed around just a few minutes stand on any issue which can be of a great deal of importance ago. to the community. 222 LEGISLATIVE POWERS AND FUNCTIONS I therefore propose that with one-third the figure is it considered to be a hearing and find that the committee is reasonable and adequate and justified. With a vote of one- unable to sit at that time because members are tied up in third that eliminates the possible vote-trading of a smaller other committee meetings, or because - - group than one-third who might agree to help each other KELLERMAN: Point of order. This has nothing to do get certain bills out for consideration. I think it’s high with the hearing. I don’t think the speaker is speaking to enough to eliminate the abuse of it; I think it’s low enough to the proposed amendment. bring before the body measures of real importance. I may add - - PORTEUS: May I point out to the delegate from the fourth district that when I discussed - - CHAIRMAN: Is this included in any other constitution? CHAIRMAN: Just a minute, I’ll have to rule on the point KELLERMAN: It is. I have here the constitution—just of order. What is your point of order, Delegate Kellerman? a moment, I’ll report it to you—it’s on page 51 of our com The Chair was not paying too strict attention. pilation of constitutional provisions. The State of Kentucky, KELLERMAN: I think the speaker was referring to getting incidentally, allows any bill to be withdrawn by one member a notice of hearings from the secretary of the committee and of the legislature, which I do think it would be definitely attending hearings on the bills. This amendment has nothing harmful. I don’t propose that as you see. Missouri’s Con to do with the hearing. I did not think that he was speaking stitution has one-third, exactly the proposal which I have to the amendment. introduced. Their new Constitution adopted in 1945 provides for one-third vote. I think the provision adopted in the Model CHAIRMAN: It does appear to the Chair that it has to do Constitution provides for a vote of one-fifth, and it was on with the power of coercing bills out of the committee and I the basis of the Model Constitution that the original proposal think that’s what he is getting around to. Will you proceed, was introduced and referred to the legislative Committee. Delegate Porteus? However, I have agreed to, and see a great deal of reason to PORTEUS: Thank you. The point that I wish to make is raising that to one-third which is the basis of the present that the public, while it is sometimes inconvenienced as to amendment and that is in conformity with the new Missouri the time the committees meet, we try to give - - or the leg Constitution provision. islature tries to give them notice and you aren’t always It is recognized, of course, that the rules can provide able to reach a bill within the limited period of time. In the for such provisions for taking bills out of committee, but first 30 days of the legislature there is a good deal of com it is just like other things that the legislature has not seen mittee work. I think the members will tell you, as will those fit to adopt and they find it difficult to bring themselves to who have followed legislative sessions, that during that time the point of publicizing their votes on controversial ques there is a tremendous influx of bills. The problem of just tions by deliberately putting themselves in this position. I trying to find out what’s been introduced to the legislature is feel that it may be necessary to put this into our Constitu really tremendous. If you try to keep track of what’s there, tion to assure for better representative government, that no what bills are similar to others, to give the chairman of the bill can be iceboxed if one-third of the members of that committee a time to start groupings, to start laying out a house consider it of sufficient importance to bring it on the program, 15 days, I think, would upset the orderly workings floor. of the legislature. I think a longer time perhaps would be PORTEUS: On the theory that when certain matters are better. debated on the floor of the Convention with respect to the Even if you have a longer time, however, I do think for a legislature, that I can’t be wrong all the time, I now take the question of getting a matter through when you are so very liberty of debating this particular matter. With respect to busy, that perhaps it would be a little better to leave it to this proposal, the legislature can control the thing entirely the rules of the house. At the moment, those rules require by its rules. We are getting really into legislative procedure. a majority vote. The person who’s interested in getting I have on my desk the bills that were introduced in the House; it, he asks the other members if they are interested in see there are over 1200 of them. Can you imagine what would ing the matter come to the floor of the house. They sign a happen in a 60 day session if you are trying to carry a pro resolution, and it is not unknown for that to happen, it’s gram along, get bills worked over in the committee, have happened several times as the various members that are the committees hold hearings on them, notify the public here - - delegates that have been in the legislature can testi about the time of the hearing, and then within 15 days of fy to. when the bill was introduced find that the matter had been Once the measure has been brought out, however, if it’s forced on the floor? That’s not the way to get the best legis brought out too soon, before the committee has been able lation, in my opinion. to have adequate hearings on it, before they have been able It seems to me that anyone who wants to know the status to consider the amendment and work it over, I think that it of a bill of a particular committee can go to the committee would interfere, as I say, with the orderly operations of the and find out from the members and from the chairman legislative body. I feel writing this into the Constitution is what consideration is going to be given. The legislatute not the place to tackle it. has always been willing to have the clerks notify those If the public is anxious to find out where the people stand people that are interested in the bills when there will be a in these matters, I don’t think it’s very difficult to find out. hearing on a particular bill, in order that those who are I think that all legislators are delighted to find that there interested may be present. are people interested enough to come to them and to discuss It is true that things don’t go always the way we plan them. measures with them and to find out what their position is. As with meetings in this Convention, it sometimes happens Not to read whether they said “yes” or “no” to a slogan or that when we say that the committee will meet at a certain just to a bill but to have their attitude fairly, extensively ex time the Convention will stay in session and you couldn’t plained. rye always been delighted to have groups invite meet at that time. And so it’s true with the legislature, too, me to appear before them or appear before groups to explain that when you schedule a committee meeting it sometimes the matter in detail because many things which on the surface happens that the public is inconvenienced by coming to what sound quite desirable, when you go into them you find that it JULY 7, 1950 • Afternoon Session 223 doesn’t work out very well as a law. There are certain dis planned. Now, the legislature certainly will be in an uproar advantages. There are other matters, there’s an overlap, if you had a Committee of the Whole almost every day to and consequently these matters involve a great deal of study, discuss 2300 bills. study that not only involves one committee but the work of other committees as well. WIRTZ: I’d like to speak in favor of this amendment. The work of the legislature is handled a great deal in First, I, like the Chair, was somewhat puzzled by the dele committee rather than on the floor. There’s where most of gate from the fourth district’s argument. I thought what was the work is done on the bills and preparing them and having bothering him was the 15 days. However, in answer to the the amendments made, so that they are in as good shape as request of the Chair, he indicated that that was not the whole possible when they hit the floor for consideration. problem. However, since there might be some doubts by And I think that we would do well not to put this in the the arguments used by him in the minds of the delegates, Constitution if this Convention feels as it does in certain the 15 days in the first place was hit upon as being half other matters that the matter should be directed to the way through a budget or special session. I would like to attention of the legislature. The legislature certainly is - - point this out too that there is nothing mandatory about the can always find room for improvement, and I’m sure that 15 days. It just says alter 15 days one-third of the member they’d be very happy to listen to a respected body of opinion. ship shall have the power. But I am sure that if a committee As I say, I’ve been wrong on the vote on several of these is diligently working on a bill they won’t try to force that legislative matters, and as they say, even a blind pig will bill out within that time. find an acorn once in a while. So on that theory, I hope Now this other thing about the futile act, about having the I’ve found an acorn on this one. majority, quite true, but sometimes how does the legislature know the merits or demerits of a bill unless it is brought CHAIRMAN: Delegate Porteus, are you against the entire out and thrashed out on the floor. This amendment is nothing amendment or specifically the 15 day limitation? more than to put democracy to work. PORTEUS: I’m against - CHAIRMAN: I think Delegate Sakakihara had risen for CHAIRMAN: The entire amendment, are you not? recognition. PORTEUS: I’m against the amendment. I am not against SAKAKIHARA: Thank you, Mr. Chairman. I wish to the original discussion in the committee where it was pro speak against the amendment. I was one of those members posed that the matter be referred to the legislature for its of the committee who voted down this amendment before the attention and for consideration, Mr. Chairman. committee. I do feel this way, Mr. Chairman. When in a 51 member House any 17 member block can bargain and FONG: In this Convention here we’ve been sitting for bring before the floor of the House all bills which have been over 60 days, we have had 195 proposals. I’ve asked the pending before a committee, I feel very strongly in the face Clerk a little while ago how many proposals were introduced of the amendment proposed by the same movant of this in this Convention, and she has just notified me that 195 pro amendment to curtail expenses of the legislature limiting the posals were introduced in this Convention. You will note expenses of the legislature to $1,000 a day, what size of a in the 1949 Legislature there were 2,384 bills introduced in journal would we be required to print? the legislature. Now, you can see how the Committee of the It’s going to be an expensive proposition in the first place Whole works. Many of you are now sitting in the Committee and it will not serve the best interest of the public because, of the Whole and you can see how Committee of the Whole as you know, when a bill is brought before the house, it is works. Now if every one of the 195 proposals were brought going to entail considerable debate and argument on the floor, before the Convention, I venture you will not go home for and consequently alter the argument is held on the bill, the the next two or three months. majority of the committee will again recommit the bill back Now, what Delegate Kellerman is trying to do here is to to the same committee where the bill has been pending. force the legislature to discuss almost every bill in the I regret very much that the mpvant has not had experience Committee of the Whole. You will note that out of 2,384 bills in the legislature. Some of us who have been there for many introduced in both houses, and if we are to spend as much years do realize and appreciate this obligation, and it is not time on the bills as we have been spending on these proposals, going to benefit the public at all, and I am against this you can imagine how long your legislature is going to sit. amendment. Now, Mr. Chairman, if you haven’t got the vote, if you haven’t got the majority of the vote, it’s no use talking. You J. TRASK: As the junior member of the House of Repre may have one-third of the votes of the assembly to bring the sentatives, and also a member of the minority group in the bill out of committee for consideration. Now if the majority House, I can fully appreciate the amendment introduced by says O.K. you can bring it out, we’ll send it back to the com Delegate Kellerman. As it was pointed out by Delegate mittee again, you have done the useless act and as we Wirtz, how are we going to weigh whether a bill is worth attorneys know, equity courts will not force you to do a use while or not unless we bring it out. Delegate Nielsen can less act, and I think this amendment is trying to force the bear me out that we have gone through some trying days in legislature to do a useless act. If you haven’t got 15 votes the legislature. So I urge, gentlemen and ladies, that deep there is no use talking. consideration be given this amendment by Delegate Keller- All the bills that are introduced and are filed by the com man. mittee are brought before the house by committee reports. MAU: I think I can remind the delegate who last spoke All the bills are reported back to the House or to the Senate. that whenever he is in a minority he always goes through So there you have some semblance of what the committee has trying times. But I believe that this amendment is a very done. I feel that this is a useless amendment, it serves no good amendment, If the history of our legislative sessions purpose. If you haven’t got 15 votes when you bring the bill had been different, I believe that no such amendment would out and discuss it on the floor, you’ll wind up in the same have been offered, but there have been times when meritori old committee again. The majority can send the bill back to ous bills have been iceboxeci and there is no reason why the committee and you haven’t got the discussion that you had representatives of the people as members of this legislature 224 LEGISLATIVE POWERS AND FUNCTIONS should be unwilling to discuss such bills on the floor of either HEEN: I have an amendment to offer. the Senate or the House. if the minority can bring it out to CHAIRMAN: Is it printed? the floor, it will give them an opportunity to express their views, and it seems to me that the people ought to know how HEEN: Not yet. In the second line after the word “com the members of the legislature feel and stand on certain mittee,” delete the comma and delete all of the rest of the measures. I don’t believe in any type of hidden form of words thereafter, and substitute for the words deleted the government, I believe that everything should be out in the following: “In either house, the same may be recalled from open, and I think that this amendment will provide for what such committee by the affirmative vote of one-third of the Delegate Wirtz designated “putting democracy to work,” and members to which such house is entitled.” So that the entire I believe that this amendment will help do it, and that is why section will read - - these are the substituted words: “In I am in favor of it. either house, the same may be recalled from such committee by the affirmative vote of one-third of the members to which SMITH: I am speaking opposing this amendment, pri such house is entitled.” So that the entire section will read marily for the fact that before a bill can be iceboxed in a house as follows: it will take the majority, and there’s going to have to be a Fifteen days after a bill has been referred to a com big majority from now on. Another thing is that if the amend mittee in either house, the same may be recalled from ment was more in the line where a bill having passed one such committee by the affirmative vote of one-third of house and then referred to another one, why then I can see the members to which such house is entitled. that it has been considered by one and is very worthy of being considered by the other. I don’t feel, as I know many KELLERMAN: I will accept the amendment, Mr. Chair a time, maybe one individual will put in a hundred bills which man. will be absolutely worthless, but they are using it for their propaganda purposes of going back to their citizenry and A. TRASK: May I ask a question of the movant? saying, “Look what I tried to put in but they wouldn’t let me.” CHAIRMAN: The amendment has been accepted. Some of them, like right here in this Convention, have put in amendments in many instances knowing full well they wouldn’t A. TRASK: Does one-third of the members mean one- pass, but it would sound good to the public. I am in strong third of the members of either house then voting on the measure? favor of the idea, but after it has passed one house then re ferred to the other house. I believe that say 40 per cent or HEEN: “One-third of the members to which each house round about of that other house, having a chance of bringing is entitled.” if the house is entitled to 25 members, then it out of the icebox and placing it on the calendar for consider you have to have one-third of 25. ation. Now the purpose of this amendment is this, if a resolution or a motion is made in a house to have a bill recalled, then A. TRASK: I am partial to lady Delegate Kellerman and that will give the members of the committee the opportunity I am more partial to this amendment of hers. In Hawaii we to state why they haven’t been able to act upon that particular call freezing legislation iceboxing a bill. I think where the bill. They may be considering it, have some difficulty in lady comes from in North Carolina they call it anti-freeze. having hearings, calling witnesses, and so on, and with that In Hawaii I think we are all against anti-freeze. explanation I am sure that no one-third of the membership To me, and I appeal directly to aU the delegates elected of each house will insist upon such a recall of the bill. here in a non-partisan election, and believing in the two party system, that it is vital for all of us that we insert this WIRTZ: As a seconder of the motion, I will likewise provision into the Constitution as an improvement of the accept the amendment. I think it’s a very fair one. legislative process that Delegate Porteus says there should HAYES: As a member of the leginlature I should like to be room for improvement. I say this is the contribution to say a few words of my experience in regards to some of the that improvement. It is for the preservation of the two measures that I have introduced that I wanted to get on the party system. Let’s not forget that it is not without surprise floor of the House because it would not come out of the com that the two leaders, the speaker and the vice speaker of mittee. the House of Representatives, leaders of the dominant party, would say, “Let us do what we want with all of our men in CHAIRMAN: Is this iceboxing experience? charge of the committees,” and they are the dominant mem HAYES: Yes, iceboxing experience. So I introduced a bers. Let’s have a little democratic action; let us preserve resolution with one-third majority and it came out of the the two party system; and let us have some faith in the committee and it passed the House of Representatives. legislators—which I am surprised with their remarks be Now any member can do that. if some of the members are cause sometimes it is difficult to follow the logic. Sometimes saying to some of the people that, “You can’t get a bill out this argument is all right in one way, and when you consider of the committee; I’d vote for it if it would come out of the another provision it is not all right in the other direction. committee,” well, that member had that same privilege to The remarks by Delegate Porteus and Fong are that the bring it out on the floor of the House with one-third mem members of the legislature are going to cause a lot of bills bership to vote for it, and I did the same thing and it passed. to come out when they shouldn’t come out and cause a lot of I also have had experience as chairman of the Education confusion, and the arithmetic is brought out that the number Committee when many bills have been introduced. Some I of bills here - - proposals is 195. Let us not forget the felt were not very good measures and sometimes we had amendments that have come into consideration on the floor. many, many letters from the public saying, “Please icebox I think that number would exceed perhaps 1000 because bill so and so.” Now you have the opportunity there, if equal consideration has been given to these thoughts and people believe that you are a good member of the legislature, contributions. and the chairman of that committee is strong enough to know, But I do say that if we are really interested in the practi if it is a good bill it should be brought out on the floor of the cal operation and preservation of the two party system we House, and I have not iceboxed a bill that they told me to should not overlook and vote and kokua this solid amendment. icebox, because I brought it out on the floor of the House. JULY 7, 1950 • Afternoon Session 225 MAU: Might I ask the chairman of this committee a this type of abuse by Senator Butler, the United States question on procedure? After it is recalled, if the bill is Senator, that prevented us getting statehood in 1947, and we recalled from the committee, how does it get on the calendar? want to correct such abuses. There might be a time when HEEN: It is on the calendar alter it is recalled. Then the we will have a Butler in Hawaii and we want to put him where members of the house, of that house, can act in such manner he belongs. that they may deem wise. MAU: I would like to offer an amendment to the amend CHAJRMAN: And send it back to committee again, if they ment by adding at the end thereof, the following words, “and choose. Is that it? shall be placed on the calendar for consideration.” HEEN: It might be sent back to the committee if it is A. TRASK: Second that. explained that owing to difficulties in having hearings, it should have further time to reconsider. H. RICE: I am against this amendment. I will give you a practical example of how it works. I agree with Delegate MAU: If that is the case, I see a defect in the amend Tavares in this matter. There’s an esprit de corps amongst ment - - to the amendment. The original amendment auto committees. In 1947 they were very anxious to get an aero matically places this bill that is recalled on the calendar nautics commission formed and I was on the Ways and Means for consideration. if a bill is recalled to the house, then if Committee. There were members in the Senate that tried to the members vote to recommit, there is nothing that the get that bill withdrawn from the Ways and Means Committee — one-third can do unless automatically it goes on the calen Senator Heen will remember, I’m sorry Senator Silva isn’t dar for consideration on the floor so that it can be discussed here —but when the Senate attempted to withdraw that bill and debated. from the Ways and Means Committee, although I was in favor CHAIRMAN: Same thing could be done under the Keller- of the aeronautics commission, I voted to leave it in the man amendment, unless there is subsequent language insert committee. The governor immediately sent for me and said, ed, “and it shall not thereafter be sent to committee until a “Harold, you’ve killed the aeronautics commission bill.” I vote is taken.” said, “No, I think I helped pass it, because the boys in the committee know how I feel and I can go down and talk to them MAU: That’s why I’m against the amendment as proposed. and we can get the bill out, but not in that way.” And they It has been accepted though, hasn’t it? I believe, Mr. Chair did put it out on the floor in a few days and we got the bill man, that the Kellerman amendment does the job. After it finally through. That is the practical way it will work out. has been recalled, it is placed on the calendar for considera I realize sometimes - - I think we old legislators have tion, not to be sent back to any other committee or to the learned a lot in this Convention on the minutes kept of each same committee. committee. I think we should pass that on to the legislature. TAVARES: I am opposed to the suggestion of Delegate I think if they kept minutes of their meetings in the legisla Mau, and I believe that as long, as the bill is brought back tive committees so that those could be printed if necessary, to the floor and the members have a chance to decide whether so that everybody would know that every bill is being con they want to pass it now or send it back to committee, it sidered and they’d know how they stand, I think things would has served its purpose. I don’t think we should go further be a little different. I don’t think this way; I don’t go along than that. I do realize that iceboxing is a very convenient with them. I think sometimes an icebox is a good thing. method, and in 75 per cent at least of the cases, if not more, WIRTZ: I would just like to point out that I think my good the bills deserved to be iceboxed. Most of them are a general colleague from Maui has proved the point by the action that nuisance or they are a drug on the market. There are just was taken on the example given on the aeronautics commis too many bills. But every once in a while there is a bill sion bill. Sufficient attention was focused so that the com which ought to be brought up, and if it is important enough mittee got busy. to attract the attention and support of one-third of the total Now my other colleague from Maui has also pointed out membership of a house to be brought back on to the floor to you that there’s going to be a tremendous majority in this alter 15 days in committee, I agree with Delegate Heen that new legislature we create. As I argued the other day, with I don’t see too much harm in that. I realize it may be a so many members it’s going to be very difficult for them to nuisance but I think there are other deterring influences. keep track of all the bills and keep working alter the com It is an insult to a committee to take a bill away from mittees. them, and every member knows that when he does that, unless he’s got strong minority support on that committee, CHAIRMAN: Chair will put the question. It is on the he’s going to make an enemy maybe of that whole committee. amendment of Delegate Mau which would add to the amend So that he is not going to do that all the time without thinking ment of Delegate Kellerman as revised by Delegate Heen, about what it is going to do to him. There’s an esprit de the words “and shall be placed on the calendar.” Are you corps among members of committees. If it can happen to ready for the question? All those in favor signify by saying my committee it can happen to yours, and if one-third of “aye.” Contrary. Chair is in doubt. Chair will call for a the members try to take it away from my committee, the standing vote. All those in favor of Delegate Mau’s amend rest of the committees are likely to stand together unless ment. Against. Amendment is lost. there is an unreasonable refusal to work on the bill. And I Chair will now put the amendment. For convenience we agree with Delegate Heen that if a committee has not had might number that 23, so we will know what we are talking opportunity sufficiently to examine the bill and needs more about, I suggest. time, I believe they won’t be able to get one-third under those circumstances because of these other deterring in NIELSEN: Can I talk on the bill now? Well, during the fluences. ‘47 and ‘49 session, at both sessions I introduced a bill so that it would require that the committees show a record of A. TRASK: Just one brief remark with respect to what the vote oniceboxing or passing out bills. It died both times. was said by Delegate Tavares. I think it should be brought The reason is because legislators don’t like to go on record strictly and very, very solidly to our minds that it was just as to how they vote in committee. 226 LEGISLATIVE POWERS AND FUNCTIONS Now another thing that happened in the ‘49 session was session and I think this will provide adequate time for basic that we had a horse racing bill and Maui wanted it. It didn’t consideration. make a bit of difference to me, there won’t be a race track CHAIRMAN: Question is on the amendment. in Kona for the next thousand years probably, but Maui really wanted it and they need .it because they are going to go broke KELLERMAN: I will accept the amendment in view of the on their horse racing if they don’t. Their county fair is in explanation. I think Mr. Roberts is right. the dumps. So that bill was in the Judiciary Committee and CHAIRMAN: The amendment has been accepted. The main I found that I had what I thought was a. vote to pass it out on question will now be put. This is on the proposed amendmen~t a four to three vote, and we had discussed it for I don’t know on Section 23. how many days. One day I demanded. that we take a vote on it, figuring to get it on the floor and then let the floor have KELLERMIVN: May I ask for a roll call on this? a chance at it because it was going to let each county say CHAIRMAN: Clerk will please call the roll. through their board of supervisors whether they want horse racing in that county or not. What happened when we took Ayes, 33. Noes, 24 (Apoliona, Ashford, Bryan, Cockett, the vote? Mr. Fong and Mr. Porteus voted on the bill al Fong, Fukushima, Hayes, Holroyde, Kauhane, Kido, King, Noda, though they were not members of the committee. Chairman Okino, Porteus, C. Rice, H. Rice, Richards, Sakai, Sakakthara, Marcellino, he says, “Well, Nielsen, there goes your horse Smith, St. Sure, White, Yamamoto, Yamauchi). Not voting, 6 racing bill; it’s in the icebox.” Well, I blew up, and started (Doi, Mizuha, Ohrt, Phillips, Silva, Woolaway). to leave the room. Well, the first thing I grabbed when I CHAIRMAN: Amendment is carried. did leave was the rule book, and they had changed it in the past 50 years and instead of the speaker and vice-speaker PORTEUS: •For the sake of the record, I’d like to point out being ex officio members without vote, they had left out that I sure missed that acorn an awful long way on that one. those two little words “without vote” and that’s how the CHAIRMAN: It’s a bad day for the Secretary. horse racing bill got killed. That meant - - and I took it up with Paschoal who had 32 years in the legislature, Doc Hill WIRTZ: Mr. Chairman, if we take a recess, I’ll buy him and the rest, and never had the vice-speaker and the speaker a bag of peanuts. been able to walk into a committee and either kill or pass a J. TRASK: I move that Section 23 be adopted as amended. bill out of committee. CHAIRMAN: Is there a second? CHAIRMAN: Well, you learned something, then. FUKUSHIMA: I second the motion. NIELS~EN: I learned something. Now, I think this is a good bill and it doesn’t mean that CHAIRMAN: It seems to the Chair that the section has been if we introduce 2000 bills that every bill is going to be brought adopted, it is not an amendment to anything. Is that not correct, out by a one-third vote to the floor. It only means very im Delegate Trask? portant bills will be brought out. On the basis of majority, J. TRASK: We haven’t taken a vote on the section yet, Mr. like it is at present, it is ridiculous because if you can get Chairman. a majority vote on the floor why, the bill is passed, you can bring it out anytime. But in this way you do get an expression, PORTEUS: Mr. Chairman, as the Secretary, I’m sorry to a record of how the legislators voted on the bills that are inform the body that I’ve already lost on that. The motion was introduced. I’m for it. an amendment to the proposal itself and being carried, I think, that’s it. FUKUSHIMA: I think the delegate that last spoke gave ample reason why this amendment should be defeated. CHAIRMAN: That’s the way it appeared to the Chair. ROBERTS: I’d like to amend this section by substituting TAVARES: Mr. Chairman, I believe Section 10 was deferred. the word “twenty” for “fifteen.” CHAIRMAN: Chair will declare a five minute recess. CHAIRMAN: Is that accepted by the movant, Delegate. Kellerman? Otherwise, the Chair will put the question (RECESS) on the amendment. KELLERMAN: Mr. Chairman, may I ask the last movant a question. In view of a 30 day session, Mr. Roberts, a CHAIRMAN: Will the delegates and the housewives please budget, a special session - - take their seats. CHAIRMAN: I suggest we get back into order, Delegate C. RICE: I believe the next section is 22, is that right? Kellerman. Do you make that as an amendment? CHAIRMAN: Thought we’d go to 21; there was a deferment ROBERTS: I’ll make it as an amendment, and I’d like to of 21, Delegate Rice. I believe Delegate Okino has an amend indicate - - ment to 21. The Chair will recognize Delegate Okino. It has been moved and seconded that Section 21 be adopted. CHAIRMAN: Is there a second? This has been deferred at the request of Delegate Okino to CASTRO: Second it. prepare an amendment. CHAIRMAN: Question is on the amendment. OKINO: There have been several drafts circulated on the floor within the last 15 minutes. Apparently the judges here ROBERTS: May I speak to the amendment. I believe that don’t seem to agree. I’d like to refer the delegates’ attention adequate opportunity ought to be given to the committee to to the last draft. Now when I say the last draft, I suppose I study. The 20 day period would provide approximately three will have to read a portion of it so that you all can intelligent weeks in which to give consideration to the bill. I assume ly follow. The first paragraph reads - - most of the major bills will come in your regular session and not your budget session, which will be at least a 60 day CHAIRMAN: Is that the one dated July 7? JULY 7, 1950 • Afternoon Session 227 OKINO: I believe both are dated July 7. SHIMAMURA: May I ask if it is the intention of the pro CHAIRMAN: Both offered by yourself. ponent of this measure that there shall be conviction by only two-thirds of the members present instead of the two-thirds HEEN: One was 3:30 and the other 3:35 p.m. of the full house? OKINO: Will you refer to the draft of the single sentence CHAIRMAN: It says two-thirds of the members present. which reads as follows: “The legislature shall by law pro That’s perfectly clear. vide for the manner and procedure of removal by impeach ment.” Do you have that draft? Now if you do have the SHIMAMURA: Well, I want to find out if that’s his inten draft I would like to make a further amendment on that by tion. adding, remove the period, insert a semi-colon or comma CHAIRMAN: That’s correct. That is the same as the and add the following words, “subject to the provisions of Federal Constitution. this section.” OKINO: That is correct; that is the same as the judiciary DELEGATE: May I ask if the delegate is referring to article. the long or short draft. CHAIRMAN: Are you ready for the question? The ques CHAIRMAN: The Chair is trying to identify two drafts of tion is on the amendment. the same date offered by the same delegate, and the Chair is in doubt what he is talking about. RICHARDS: The amendment speaks of two offices only. In what category is the auditor? He is elected by the House. OKINO: I’m sorry, both drafts are just about the same length. I suppose the best thing to do is to read the whole CHAIRMAN: No, he is appointed by the legislature. thing. RICHARDS: Appointed? CHAIRMAN: Will you read the one you want to offer? CHAIRMAN: Appointed. He stands no popular election. OKINO: Yes, I shall do that. HEEN: I would like to inquire whether or not there is any SECTION 21. Removal of officers. All elective provision in the articles on the executive branch of govern executive officers, and any appointive officers for whose ment which would prevent the legislature from creating some removal the consent of the Senate is required, may be office, elective office, other than those provided for in the removed from office on impeachment for such causes Constitution itself. as may be provided by law, and upon conviction of the CHAIRMAN: I think the answer is no to that, Delegate charges against such officers. Heen. The House of Representatives shall have the sole power of impeachment and the Senate the sole power to FUKUSHIMA: I think the answer is very obviously no. try all impeachments of all elective executive officers. OKINO: To my recollection, the answer is no, but the No such elective executive officers shall be convicted reason why this particular expression was used is to meet without the concurrence of two-thirds of the members with future condition in the event there is a revision and there present. should be any other elective officer. The legislature shall by law provide for the manner and procedure of removal by impeachment, subject to CHAIRMAN: Meet with what condition? the provisions of this section. OKINO: Future; no one knows; there may be some other The rest, the fourth paragraph is the same, in both drafts. elective officer. There have been several attempts made on the floor that we shall have some more elective officials. Judgments in cases of removal from office shall not extend further than to removal from office and disquali TAVARES: It’s my very distinct recollection from the fication to hold and enjoy any office of honor, trust or Committee on Style that the legislature can provide for the profit under the state; but the person convicted may election or appointment of officers for whose election or nevertheless be liable and subj ect to indfctment, trial, appointment the Constitution doesn’t otherwise provide. How judgment and punishment according to law. ever, as to those other elective officers, I presume the legis lature could in the same law or by general law provide for NODA: I second the motion. a different method of removal, because they have general KING: Delegate Okino changed his original amendment powers of creating the office and tenure. So that if it’s agree to comply with the suggestion I made, that the procedure for able to the movant to accept “the governor and lieutenant the impeachment of the chief executive and the lieutenant governor,” I don’t think any harm will be done except we’ve governor might follow the usual form of having the House got to amend the rest of the section then to conform. of Representatives authorized to prefer the charges and the WHITE: There is one quebtion I’d like to ask and that has Senate to act as the judges, and to have the conviction require to do with the auditor. This first paragraph reads: “and any a concurrence of two-thirds of the members present at the appointive officer for whose removal the consent of the Senate trial. So he has inserted that paragraph in there and then is required.” That isn’t required in the case of the auditor; followed on to harmonize with the original section. it’s, “the legislature, by two-thirds majority vote of members FUKUSHIMA: I have an amendment to offer. The first in joint session.” Is there a conflict there? paragraph of Section 21 reads: “all elective executive off i CHAIRMAN: I think this has to do with popularly elected cers.” I move to delete those four words and insert there officials, Delegate White. in: “the governor, the lieutenant governor.” I don’t think we should have any subterfuge, we have only two elective TAVARES: It is my understanding and Pm sure the officers. movant will agree with me that the purpose of this is not to include the auditor, that he is not considered as a person for J. TRASK: I second the motion. whose removal the consent of the Senate is required. As a 228 LEGISLATIVE POWERS AND FUNCTIONS matter of fact the consent of both houses is required in that CHAIRMAN: Before you ask for a second on that, may case, and it wasn’t intended to cover that particular type of the Chair invite your attention. This is taken from the officer. language of the Federal Constitution, Article I, which reads: “and no person shall be convicted without the concurrence PORTEUS: I wonder whether in the debate on this matter of two-thirds of the members present.” I believe that’s I heard correctly as to the two-thirds of those present. I where Delegate Okino got his language. It seems to be think if the delegates will turn to Committee Proposal No. 7, clear. being that of the judiciary article and being Section 3, it states there with respect to the various justices of the Supreme A. TRASK: But we don’t have that here, do we? Court, “They shall l?e subject to removal from office upon the CHAIRMAN: This says, “No such - - concurrence of two-thirds of the membership of each house of the legislature,” and not just two-thirds of those present. KING: You’re talking about something else entirely. Mr. Chairman, Delegate Trask was referring to a different part CHAIRMAN: That’s correct. This follows the Federal of the proposed amendment. As I understood it, he was re Constitution and refers to those present. ferring to the first paragraph, had no reference to the ques A. TRASK: Point of information of the movant, Mr. Chair tion of concurrence. man. The Senate will impeach and - - CHAIRMAN: What paragraph are you on? CHAIRMAN: No, no, the House will make the charge; the A. TRASK: I am referring to the first paragraph. House will impeach and the Senate will try. CHAIRMAN: I’m sorry; I misunderstood you, Delegate A. TRASK: The question is the word on the fifth line. Trask. Shouldn’t the word “or” be there instead of the word “and,” A. TRASK: In other words, if a conviction refers to a so that it will read “or upon conviction of the charges against House of Representatives conviction it should be tied up such officers,” referring to a judicial conviction as such? with that; otherwise the interpretation would be misleading CHAIRMAN: Not a judicial conviction, as such. It has to to refer to a judicial conviction, and I so move. do with conviction in the Senate. I think the word “and” is TAVARES: Am I correct in my understanding that im correct, Delegate Trask. peachment means charges? A. TRASK: In that case, if the movant agrees with the CHAIRMAN: Impeachment does mean the charge. Chair’s interpretation, I move for an amendment, therefore, TAVARES: Therefore, I think Delegate Trask’s motion that the words in the fourth line, “removed from office,” in sert “upon conviction of impeachment for such cause as may is probably all right. “Upon conviction of impeachment” be provided by law” period, because otherwise you would would mean upon conviction of the charges of impeachment - - have a consideration as to conviction by a court which may CHAIRMAN: That is correct. precede proceedings of impeachment in the House. TAVARES: - - and therefore, I believe there would be CHAIRMAN: Just a minute, Delegate Trask, there is al no harm in the movant accepting that amendment. I wonder ready one amendment to this and I think we’re piling them if the movant will accept that? up. We’ll take that later. J. TRASK: I will second that motion to amend. The question is on the amendment proposed by Delegate Fukushima which would amend the proposal of - - the motion CHAIRMAN: Just a minute. Delegate Trask, will you of Delegate Fukushima to delete the words “elective executive state clearly to the Chair what your proposed amendment officers” where they appear in each instance, and substitute is? In the first paragraph. therefore, the words, “the governor and the lieutenant gover A. TRASK: Delegate Okino’s amendment to Section 21, nor.” Are you ready for the question? All those in favor, the first paragraph, the fourth line, after the third word, signify by saying “aye.” Contrary. strike the word “on” and insert three words “upon convic I wish the members would pay attention and vote on this tion of impeachment for such causes as may be provided by question. Chair couldn’t hear anything to speak of. All law” period, deleting the rest and replacing the comma with those in favor of the amendment will signify by saying “aye.” a period. Contrary. The ayes have it. CHAIRMAN: I’m sorry, the Chair still didn’t get that. A. TRASK: I renew my suggestion here that before the The fourth line? word “impeachment,” in the fourth line of the first paragraph, strike the word “on” and insert for the words “on,” the A. TRASK: The fourth line, after the word “office,” “re words “upon conviction of,” and then on the fifth line after move from office,” strike the word “on” and insert “upon the word “law,” replace the comma by a period. I believe conviction of” and continue “impeachment for such causes that this is necessary because the word “conviction” may as may be provided by law” period, deleting the rest. be interpreted to refer to a judicial conviction. We may 01(1110: I will accept the amendment. have a situation, and properly so, where there might be a conviction before the proceedings or conviction of impeach CHAIRMAN: Delegate Okino has accepted the amendment. ment by the House of Representatives will take place. So I presume the second will accept it. if the intention is a conviction of impeachment by the House TAVARES: I move, to conform to the first paragraph, of Representatives, the word “conviction” should precede the following further amendment of the second paragraph. and be tied up with the word “impeachment.” So if that’s In the third line, delete the words, “all elective executive the thought of the movant, it seems to me an amendment is officers,” and insert in lieu thereof, the words, “the gover necessary so that after the word “office “ in the fourth line, nor or lieutenant governor.” strike the word “on” and insert the words “upon conviction of impeachment for such causes as may be provided by law.” CHAIRMAN: I believe that’s already been put and carried, I move for the amendment. Delegate Tavares. JULY 7, 1950 • Afternoon Session 229 TAVARES: That was just the first paragraph, Mr. Chair OKINO: Yes, Mr. Chairman. man. Will the movant accept that? A. TRASK: May I ask a question on this second paragrap~i, OKJNO: The movant accepts the amendment. if you please, Mr. Chairman? “The House of Representatives TAVARES: Then in the next sentence, the second sentence shall have the power of impeachment.” In other words, the of the second paragraph, in the second line of that sentence House of Representatives acts like the grand jury and charges, where it says “no such elective officers,” I move to delete and that the Senate will be the court trying that person. Now, the words “elective executive” and the “s” on the word it seems to try only the governor and the lieutenant gover “officers,” so that it will read, “no such officer shall be nor. Now does it mean that the appointive officers - - how convicted,” and so forth. Does the movant accept the amend will they be impeached and tried? ment? CHAIRMAN: They’re not dealt with at all in this section. OKINO: I do. TAVARES: I think I can answer that. The answer is that TAVARES: Now, I don’t know whether the movant will only for the governor and lieutenant governor do we actually accept this next amendment, but to satisfy some of the prescribe the requirements and procedure to that extent. members who want to conform to the judiciary article, In the case of the others, the legislature can provide a differ I would suggest that the last two words of the second para ent method of impeachment for appointive officers. If that graph, the words, “members present,” be changed to “mem is the intention of this Convention, I think that’s all right, bership of the Senate.” and I’m for it because I think they can adjust it any way they want. They could say the Senate shall present charges OKINO: Delegate Tavares, would it not be better to follow or somebody else. However, Delegate Heen raised a point. the language of the judiciary article consistently and to clari He asked whether there was a possibility that the legislature fy the situation, finish it up by saying “two-thirds of the could create an entirely separate body to remove appointive membership of each house of the legislature sitting in joint officers, and I think the answer probably is yes as this session”? thing stands. CHAIRMAN: Just a minute. Is this in the form of a HEEN: Before going into that point, Mr. Chairman, with motion, Delegate Tavares? Is this in the form of a motion? reference to the use of the term “the members present.” TAVARES: Well, I will make it a motion, Mr. Chairman. As I stated a moment ago, that’s the language used in the Federal Constitution, and that was intended, Mr. Chairman, HEEN: May I interrupt at this point? As I recall it, to prevent one-third of the house remaining away from the someone read in connection with the similar provision in hearing in order to defeat any trial of the impeachment the article on judiciary. The words used were “the mem charges. bership present.” Is that correct? CHAIRMAN: That is correct. That would thwart the CHAIRMAN: No. impeachment process. PORTEUS: I think I was the one who read that and I PORTEUS: That is not a correct statement. I beg to believe that you will find that the words are “upon the con differ with the chairman. The house has the right to compel currence of two-thirds of the membership of each house of the attendance of all the members. If that’s so, then the the legislature, sitting in joint session.” You’ll find that on lawyers will fix something so that the justices of the Supreme page 4, Committee Proposal No. 7, redraft 2. Court aren’t subject. There’s an opening there. What we’re TAVARES: So that my language does conform as far as trying to do is be consistent here. If the statement is correct, it can when we have only one house instead of both houses that one of the houses, by an absence of m~mbers, can stop trying the impeachment. The words, “membership of the impeachment, then that’s a defect in the jud~ciary article. Senate” in lieu of the words “members present” conforms And as I understood it - - as far as practicable to the judiciary language. CHAIRMAN: That has nothing to do with the judiciary article. I’m sorry. OKINO: Delegate Tavares is correct, and I do accept his amendment. PORTEUS: Why hasn’t it, may I ask? CHAIRMAN: The Chair might point out the two procedures CHAIRMAN: This is the impeachment process. for removal are quite different, the one under the judiciary article and this one proposed, so of necessity they do not PORTEUS: That’s right, and there’s impeachment pro cess in the judiciary article referred to. have to be in conformity. TAVARES: I understand that, but it is my understanding CHAIRMAN: No, you’re in error. There’s no impeach that the members felt that if you needed two-thirds of each ment process in the judiciary article. house’s as membership to remove a judge, you should have PORTEUS: There is a removal from office. two-thirds of the membership of the Senate to remove the governor and lieutenant governor. CHAIRMAN: Correct, which is very different. HEEN: This language here follows the language in the PORTEUS: Not very different. It’s a very similar pro Federal Constitution. cedure. In effect there you are requiring the two-thirds. In other words then, if it’s the opinion of the chairman of CHAIRMAN: The language unamended. this committee, who was also chairman of the judiciary HEEN: That’s right. article, then there is a defect in the judiciary article be cause you are making it too tough and almost impossible to CHAIRMAN: Delegate Tavares would amend the language have a removal. But I don’t agree with the opinion of the to require an absolute two-thirds of all members whether chairman because I say that I believe that each house has they are present or not. Is the amendment accepted, Delegate - - the right to compel the attendance of all members. 230 LEGISLATIVE POWERS AND FUNCTIONS CHAIRMAN: Well, are you ready for the question? The CHAIRMAN: May the Chair ask you a question, Delegate question is on the amendment. Tavares? The sentence which reads: “The legislature shall by law provide for the manner and procedure of removal by TAVARES: I take it that means now that the whole section impeachment; subject to the provisions of this section,” is to be voted on since all the amendments have been agreed wouldn’t that authorize the legislature to create a committee? to by the movant. I should like to point out one more thing which I believe is TAVARES: That was my interpretation, Mr. Chairman, the proper interpretation of this section, and that is that the but it is challenged now by men of equal - - certainly for third paragraph which authorizes the legislature by law to whom I have high regard, and I think it ought to be settled provide for the manner and procedure of removal by im by the Convention. peachment subject to the provisions of this section will, in CHAIRMAN: I think it’s perfectly clear to the Chair that my opinion, authorize the legislature to lay down rules even there is that legislative power. for impeachment of the governor or lieutenant governor, under which the Senate could delegate to a committee the LEE: I move that we defer this section until we take the actual hearing of the charges, as is done by a court for a other sections. master; and then the charges could be referred to the Senate CROSSLEY: I second that motion. and the final hearing held in the Senate, as if on the master’s report, with such further hearing as the law should provide. CHAIRMAN: It has been moved and seconded that we de I believe that that third paragraph would permit that and I fer action. All in favor signify by saying “aye.” Contrary. think that is desirable because I think one of the dangers, one CROSSLEY: I move that we rise, report progress and of the defects, one of the real defects of the system of im beg leave to sit again. I would like to point out that it’s peachment is not the requirement for two-thirds but the re nearly 5:30 and the Committee on Style meets tonight at quirement for holding a quorum of the whole Senate in ses 7:30. sion for a long tedious trial, and I believe that is the proper interpretation and I believe the movant will agree with me CASTRO: Second the motion. that that is the proper interpretation of the third paragraph. CHAIRMAN: The Chair had hoped that we’d get through with this. All in favor of rising, reporting progress, signify ROBERTS: I believe that the process of removing a gov by saying “aye.” Contrary. Motion is lost. ernor and lieutenant governor is quite serious and the charges ought to be heard by the body that’s going to re CROSSLEY: While it’s not pertinent to the discussion, move him and not by a sub-committee of that group. I I’d just like to announce to the chairman of the Committee certainly do not think that’s proper. I believe that the en on Style that I won’t be available for a meeting tonight. I tire body should hear him and the entire body should act can’t do these hours and do justice to the work. on the evidence as presented to them. CASTRO: Neither will I, Mr. Chairman. CHAIRMAN: Well, I’ll point out that this does not follow the Federal Constitution. It permits legislative changes in CHAIRMAN: Is there a meeting of the Style Committee the method of impeachment and would permit what Delegate tonight, Delegate Wist? Tavares is suggesting be done. WIST: There definitely is a meeting tonight and we defi FUKUSHIMA: I don’t believe that’s a correct statement. nitely need Mr. Crossley, who is the chairman of the subcom mittee on the article on taxation and finance that we’ll be The second paragraph reads, “and the Senate the sole power to try all impeachments of the governor or lieutenant gover - dealing with tonight, and unless we can meet tonight I don’t see how we’re possibly going to get through with our work. nor.” That’s certainly inconsistent with the statement made by Delegate Tavares. KING: May I call the attention of the delegates to the fact we won’t complete this article till half past six or KING: I subscribe to the remarks of the last speaker. seven o’clock. Delegate Tavares had in mind, perhaps, that the legislature might delegate some of its authority to a committee but that CHAIRMAN: If there’s no objection, the Chair will put should not apply to the trial of the lieutenant governor or the question again. the governor by impeachment. It might apply to these others. KING: I would like to ask the Committee of the Whole to I think the article reads for itself, the section reads for it rise, report progress and sit again. We can start with these self and that no such implication should be accepted by the problems fresh tomorrow morning. Committee of the Whole. CHAIRMAN: It has been moved and seconded that the TAVARES: Because this question has been raised, may committee rise, report progress and beg leave to sit again. I make a suggestion? All in favor signify by saying “aye.” Contrary. Carried. A. TRASK: I think in view of the expression in paragraph The ayes have it. one that - - CHAIRMAN: Would it not be in order to defer this until JULY 8, 1950 • Morning Session we get a redraft? Delegatp Tavares, do you think there should be a deferment on this? CHAIRMAN: The committee will take up the section, TAVARES: No, Mr. Chairman, in order to resolve that Section 21 of Committee Proposal No. 29, dealing with im question I think we should take a sense vote as to whether peachment. Delegate Okino is recognized. it’s the sense of this Convention that in the trial of the governor or lieutenant governor on impeachment the whole OKINO: I believe there is a new draft on the desk of each Senate should conduct the whole trial or whether they should delegate this morning after a few of the delegates got together be able to - - authorized by law to have a hearing first be to iron out some of the differences of opinion so far as inter fore a committee and then a final hearing before the Senate. pretation of some of the sentences in my offered amendment JULY 8, 1950 • Morning Session 231 are concerned. The amendment before the Committee of the TAVARES: This is a motion relating to this. We’ve Whole is my amendment to Committee Proposal - - Section 21 taken many consensus votes on different measures in this as amended by Delegate Fukushima’s motion to specify the Convention, and this is a construction of the section which elective officers. I think that is before the Committee of apparently is ambiguous because men of ability, I believe, the Whole at this time. The new draft is dated July 8th. on both sides have expressed opposite views of its meaning. CHAIRMAN: The Chair would suggest that if it’s agree KING: If the parliamentary procedure permits of such able to the movants of the numerous amendments, that they a motion, I would be glad to second it. all be withdrawn and we start with this draft. Delegate Fu kushima, would you accede to that? CHAIRMAN: That’s what the Chair is in doubt about. I don’t see how the Chair can put both motions. That could FUKUSHIMA: That is acceptable to me. be done separately I should think. I don’t know. CHAIRMAN: And I believe Delegate Tavares had made a CROSSLEY: I see no reason why it couldn’t be done number of amendments. subsequently, but if you want to combine them it seems to TAVARES: I withdraw any amendments I may have moved me the first motion could be amended for the adoption of for. this amendment, that there be contained in the committee report relating to this amendment the following words, that CHAIRMAN: I think that would clear the decks, so if we is, the sense that Mr. Tavares has just given us; and that pull them all together in this one amendment the thing can motion I believe would be in order, inasmuch as they are be offered. related subjects. OKINO: It definitely does so, Mr. Chairman. CHAIRMAN: What was the language that Delegate Tavares CHAIRMAN: And you offer this amendment? wanted in the report? The Chair didn’t understand it. OKINO: That is correct, Mr. Chairman. Amend Section TAVARES: The language was that it is the consensus of 21 of Committee Proposal No. 29 to read as follows: this Committee of the Whole, and that it be inserted in the written report of the Committee of the Whole, that the para SECTION 21. The governor and lieutenant governor, graph authorizing the legislature by law to provide for the and any appointive officer for whose removal the consent manner and procedure of removal by impeachment does not of the Senate is required, may be removed from office authorize the Senate to delegate to a committee of the Senate upon conviction of impeachment for such causes as may the hearing of the charges of impeachment against the lieu be provided by law. The House of Representatives shall tenant governor or the governor, that the requirement is have the sole power of impeachment and the Senate the that such charges must be heard by the Senate itself. sole power to try all impeachments of the governor and lieutenant governor. No such officer shall be convicted CHAIRMAN: And as to other officers, they could delegate without concurrence of two-thirds of the members of the the authority under the same identical language, is that it? Senate. TAVARES: Yes, Mr. Chairman. The Legislature shall by law provide for the manner and procedure of removal by impeachment, subject to the CHAIRMAN: Well, the Chair doesn’t see how you could provisions of this section. have two interpretations for the same words, frankly. Judgments in cases of removal from office shall not extend further than to removal from office and disquali ASHFORD: I leave the proponents of the measure to fication to hold and enjoy any office of honor, trust or answer that, although it seems clear to me by the specifi profit under the state; but the person convicted may cation of the governor and lieutenant governor in the first nevertheless be liable and subject to indictment, trial, paragraph. What I wished to do was to inquire whether the judgment and punishment according to law. provision of two-thirds of the members of the Senate could be changed in the opinion of the proponent by the Style Com CHAIRMAN: Is there a second? mittee to conform to other language which is to be used in TAVARES: I second the amendment. And in view of the other sections following the language of the Organic Act, fact that yesterday different people expressed different “two-thirds of the members to which the Senate is entitled.” opinions as to the meaning of the second paragraph of this TAVARES: As the seconder of the motion, I am sure that redraft which says that “The legislature shall by law pro we agree that the Style Committee can do that. The intention vide for the manner and procedure of removal by impeach is to have two-thirds of the total membership of the Senate ment, subject to the provisions of this section,” in view of concur in the removal of the lieutenant governor or governor, the differences of opinion on what it means as far as the and that being the case, as a matter of style the language procedure for trial - - for impeachment of the governor and can he made to conform to other articles which have been lieutenant governor is concerned, and since now it is limited approved with slightly different language. only to those two officers, I move that it is the consensus of this Committee of the Whole and shall be inserted in the re KING: The only ambiguity is in this phrase in the second port of this Committee of the Whole that this paragraph does paragraph, “subject to the provisions of this section.” Both not authorize a trial of an impeachment charge against the Delegate Tavares and, I believe, the Chair in an informal lieutenant governor or governor by a committee of the Senate, discussion yesterday interpreted that qualification to autho but that the trial must be by the Senate itself, this relating rize the legislature to try the governor or lieutenant gover however only to the impeachment of the lieutenant governor nor by a committee or by some group of members of the or governor. Senate designated for that purpose. Delegate Roberts ex pressed his opposition to that and I concurred in his remarks CHAIRMAN: The parliamentary situation is the motion that for the impeachment of the governor and the lieutenant for the amendment is before the house, as the Chair under governor the whole Senate should act as the judge, and not stands it. I don’t know whether I can put both questions at a committee designated as such under the provisions of this the same time. second paragraph. 232 LEGISLATIVE POWERS AND FUNCTIONS Now, all that we are trying to do this morning is to in cause of the fact that the field is not the same as to the corporate in the proceedings of the Committee of the Whole lieutenant governor and governor as it is with respect to and then the Committee of the Whole report our interpreta appointive officers, my motion to take a concensus vote was tion that “subject to the provisions of this section” may for the purpose of clarifying that. apply to appointive officers but shall not apply to the trial by CHAIRMAN: If it is ambiguous, the Chair feels we ought impeachment of the governor and the lieutenant governor. to clear up the ambiguity rather than leave it to some report. Now, if it is not proper to have a motion expressing the con sensus of opinion of the Committee of the Whole, then it may A. TRASK: Pursuing the same line of thinking with re be adopted as a separate motion after the section itself has spect to the appointive officers which I asked yesterday of been approved, if it is approved. Delegate Tavares also, the second paragraph seems to imply HEEN: I would like to ask the sponsor of this amendment that the only manner whereby appointive officers could be this question. The first paragraph, the second sentence, you removed would be by impeachment. That seems to be, since find the following language, “The House of Representatives in the first paragraph there is “the causes for impeachment shall have the sole power of impeachment.” Does that mean may be provided by law”; the second paragraph refers to impeachment only; the third paragraph refers to judgmenI sole power of impeachment not only of the governor and lieutenant governor but also of the appointive officers? issued upon conviction of impeachment; so that there is ~io other provision whereby the legislature could, pursuing tfte OKINO: In reply to the question, I should like to say thought of Delegate Heen, allow and provide for the removal that insofar as my interpretation of the same is concerned of appointive officers by any other remedy except by im it applies strictly to the governor and lieutenant governor. peachment. I don’t think that is right. It was for that reason that amendment was inserted in this TAVARES: Of course it isn’t and if you write other amendment of mine. portions of this Constitution in relation to that, I don’t think HEEN: Then as I understand it according to that inter it necessarily follows. I don’t think it follows at all. This pretation, the impeachment of appointive officers may be is simply an additional method of removal giving to the made in some other way. legislature the power of removal by impeachment in addition to any other which is provided in the Constitution, or which OKINO: That is correct and that is the reason why you under general powers the legislature may provide, simply find paragraph three. Originally the second sentence in to give to the representatives of the people one more method paragraph one was not in the amendment. of removal in addition to any others provided or permitted HEEN: Now another question, following the first question. by the Constitution. You find this language, “and the Senate the sole power to try SHIMAMIJRA: May I state that I concur with the obser all impeachments of the governor and lieutenant governor.” vation made by the Chair a few moments ago with respect Does that imply that so far as the appointive officers are to the difficulty of interpretation in the light of the second concerned they may be tried by another body or tribunal, is sentence of paragraph one and the second paragraph. I be that correct? lieve that the proponent of this measure and the other per OKINO: That is correct. That is intended to be covered sons who are in favor of this proposition favor the principle by the second paragraph of this new draft. of a trial of the impeachment by the entire body of the Senate, but on that principle I am not quite inclined to agree. HEEN: Then it seems to me that the second sentence Perhaps they feel that the appointive officers are not as should be rephrased so that it will apply to appointive off i important as the governor or lieutenant governor, but when cers. “The legislature shall by law provide for the manner we impeach a man it’s a very serious charge. I don’t see and procedure of removal of appointive officers.” why as a matter of principle we• don’t include the appointive CHAIRMAN: You mean officers other than the governor officers and not limit the trial of impeachment by the Senate and lieutenant governor? as a whole body merely to the governor and lieutenant gov ernor. HEEN: That is correct. BRYAN: I may be a little out of place being strictly a CHAIRMAN: That would fix it up. layman on this subject. However, I think that in my mind HEEN: You don’t need any further statutes or legislation the ambiguity can be cleared up very easily using the same to provide for the procedure in the trial of the - - in the im language that we have here but rearranging it somewhat. peachment of the governor and lieutenant governor and the I’d like to ask the movant and others to consider this. To trial because you have it all there. The House shall impeach withhold the first sentence and start the paragraph off with the governor or the lieutenant governor, and the Senate shall the House of Representatives. “The House of Representatives try the charges on impeachment. shall have the sole power of impeachment and the Senate the sole power to try all impeachments of the governor and TAVARES: I don’t think that necessarily follows. There lieutenant governor. No such officer shall be convicted with might be some slight areas with relation to procedure alone. out concurrence of two-thirds of the members of the Senate. Perhaps it is the manner of issuing subpoenas and various The legislature shall provide for the manner and procedure other things that can still be legislated on by the legislature of removal by impeachment,” and going back to the first in aid of the impeachment procedure provided for the lieu sentence, “of any appointive officer for whose removal the tenant governor or governor. For instance, if the legisla consent of the Senate is required,” then continue on. ture saw fit to provide for the form and manner of compelling attendance of witnesses by law rather than leaving it to HEEN: It seems to me there should be some amendment implied powers, I believe the legislature could implement along those lines,. Of course, the last speaker hasn’t com that. If it wished to provide for contempt for failure to obey pleted the amendment of the entire provisions of the second such subpoenas, it could also legislate in that field. I be paragraph. May I ask at this time for a short recess. I lieve there is a field where it can operate in both, but be- think we can iron this out. JULY 8, 1950 • Morning Session 233 CHAIRMAN: Short recess. work of the legislature must be implemented by a continuous study by some agency under the control of the legislature (RECESS) in the interim between sessions, and that it is a matter of such importance that it should not be left entirely to legis CHAIRMAN: The committee will please come to order. lation.” There are two proposed amendments to this section present Now we have heard a lot of criticism lately about the ly being printed and it seems advisable that we proceed with holdover committee. We have heard that they got $150,000 the discussion of the section relating to legislative council and did very little. I suspect that much of that is newspaper while that work is being done. The Chair will entertain a analysis without perhaps going into what they actually have motion to defer Section 21 until later. done. I hope they have done more than one of the newspaper editorials suggests. OKINO: I so move at this time. But it isn’t a choice made by the previous speaker of not SAKAKIHARA: Second the motion. having a legislative council. The legislature can vote for a holdover committee. The legislative council does what the CHAIRMAN: All in favor signify by saying “aye.” Con holdover committee is supposed to do. We are trying to trary. Carried. prevent, as much as possible, abuse. HOLROYDE: I move for the adoption of Section 22 to The amendment that I have, if this present motion is get it before the house. defeated, is to insert the following: “There shall also be one member of the legislative [council] from each county, ap BRYAN: Second the motion. pointed to the council by the governor. Neither house shall CHAIRMAN: It has been moved and seconded that Sec have a greater number of members in the council than that tion 22 relating to legislative council be adopted. of the number of non-members.” So theoretically we have a total council of twelve members. This is an efficient body LAI: I move to delete this whole Section 22. and can be working. I feel it’s so important to prevent abuse DOI: I second the motion. by having too many people, by having a critical analysis be tween times. I believe from the standpoint of our community CHAIRMAN: It has been moved and seconded that this there are a good many people who believe in initiative and section be deleted. Is there any discussion? referendum, and academically initiative and referendum is LAI: May I speak on that? This council will add another an ideal way of democracy but by actual practice k’s been burdenupon the State’s finances. Creation of this legislative abused, and it’s the abuse of power, and we all recognize council will mean more compensation for employees and its I think that wherever power is put into a few hands, there is members. Because of the annual session of the legislature abuse of power. as provided in this article, emergency legislation does not Now this legislative council is not criticising the legis need to wait for two years for its consideration. There is no lature. Putting on lay members is not criticising legislators guarantee that any member of this council will be elected but k’s putting that ear into the communky of a few men, the following term and therefore his service and his study one in each county, who shall not have to think about being of different legislative problems is not certain to render any reelected and who can critically analyze legislation, who value to the following legislature. can propose things, who can work together with the legisla We have created a twenty-five member Senate and a ture more analytically than critically. I believe if we’re fifty-one member House. A legislature of this size will going to save money in this setup we need something wotk form a better deliberating legislative body. It is harder for ing between times and we need this ear in the communky to a larger body of this type to railroad through any bad legis listen to the criticisms of laws and government. I believe lation. Therefore any emergency that arises, a legislature k’s an essential thing and I would be very strongly in favor can always create or appoint a commission to study a partic of killing this deletion movement, and if it’s killed I would ular problem. Therefore I am against this section and I like to suggest the amendment. move to delete this section. CASTRO: I’m not opposed to the idea of the legislative LARSEN: I would like to speak against this. I also have council. However, I am aware that the legislative council -. - an amendment to suggest. It seems to me, what the previous the idea of the legislative council and the matter in which speaker said, it isn’t the cost of a few extra salaries that’s it is worked out varies greatly in the various states which important in a democracy, it’s whether democracy is eff I- have tried it. I therefore am in support of the motion to dent and whether we can prevent the abuse of power. We delete and I would say that I would like to have had the know that democracy is cumbersome but what we’re after— pleasure to make the motion myself. and after I’ve listened to the floor discussion, it’s very evi Now the argument that a provision is statutory, I realize, dent that we all of us feel—how can we prevent abuse and has been overdone in this Convention from time to time, but how can we increase efficiency? In all these studies and in in most cases the argument is a valid one. In this particu the ancient days when we began this Convention I was partic lar case k is a valid one. The supreme court of the State of ularly interested in this and had occasion to look it up and Washington, when a statutory provision that set up a legis a good many of the states have it and more of them will have lative council was challenged on the basis of the fact that k it. With a short legislature, it still is more important to was not constkutional, the supreme court brought out an have some group, an analytical group, working between opinion which indicated that in ks view the legislative council sessions, and if they are not working between sessions then was nothing more than a body to aid the legislature in ks the terrific rush of the sixty-day session will be inefficient work and was not adding any powers to the legislature, and and we won’t get what we’re after. therefore it was perfectly within the statutory provision Now I notice in the committee report itself, they say, and properly a subject for statutory provision. “While such a provision,” for a legislative council, “might Now, I don’t think we ought to put anything into our Consti be considered legislative and the inclusion of such provision tution that we are not too sure about, and if you examine the objected to on that ground, your committee believes that the record, the efficacy of this kind of a legislative council is 234 LEGISLATIVE POWERS AND FUNCTIONS something we cannot be too sure about. I can indicate the proposal of legislation. They’ve gone so far in some several weaknesses in this provision. One, there is no states as to take away the right of the legislative council limit to the number of members. According to this provi to propose legislation. They have said that it is merely a sion, Section 22, the whole legislature could be a member fact finding body. I present to this group we have a fact of the legislative council. I know that’s carrying it to the finding body, a very efficient one, the Legislative Reference ridiculous extreme but according to this provision, that’s Bureau. true. They’ve got salary provisions, they’ve got power So, I think, Mr. Chairman, in view of the rather unusual provisions in here that make this council more than what status of this idea throughout the country, varying as it does it - - actually the original concept and the accepted concept from one state to the next—some include private citizens, is, and that is that it should be an organization merely for some don’t, some have fifteen members, some have five, collecting information and outlining the legislative program. some have clerks, some have salaries, some don’t have Now there have been states which have tried this. In New salaries—I think that if we place something in the Consti Jersey, a state whose Constitution many of the more able tution that is so unsettled we are merely taking a chance. members of this delegation pay a great deal of attention to, We are experimenting with our fundamental document. the State of New Jersey, despite the recommendation of its There’s room enough for experimentation in the statute Constitutional Revision Commission, did not include the leg and I think that is the place where this belongs. islative council in its Constitution of 1947. Now, the State of Missouri did include the legislative council in 1945 but it MAD: I wonder if the last speaker would agree that there cost the State of Missouri $110,000 a year. We already have shall be a prohibition against legislative holdover committees, a holdover committee which in 1947 received an appropriation and permit only the Legislative Reference Bureau to function? of $50,000 and in 1949 received an appropriation of $150,000. Is that his idea? We have a Legislative Reference Bureau which as far as I CASTRO: I made no such statement, Mr. Chairman. can see actually carries out the true function of the legisla tive council. CHAIRMAN: The Chair did not understand him to say Michigan established a legislative council in 1933. Six that, Delegate Mau. years later they got rid of it. That was by statute. If we should establish a legislative council here in our Constitu FONG: I am convinced that we should not write into the tion and decide it is running away with us, possibly costing Constitution this legislative council. I believe that the legis more money than it’s worth, we can’t get rid of it as easily lature could, by its powers in the enactment of statutes because it’s a constitutional matter. could provide for a holdover committee or a legislative Wisconsin tried an executive council which is more council by statutory enactment. I presume that would be along the line of the proposed amendment of Delegate Lar sufficient. I don’t think we should copper rivet it by putting sen, appointments by the governor. They found it pretty it in the Constitution. successful but they kept changing the membership. In 1931 Now in defense of the legislative holdover committee they had five senators, five assemblymen and ten citizens irregardless of what the newspapers have stated, I would at large, private citizens. In 1933, two years later, they like to say that when the report will be finally in, you will made it three senators, three assemblymen and three citi find that we will be able to save millions of dollars as zens. In 1933, the citizens were replaced by heads of the far as the Territory is concerned. We are now working on major state departments, indicating that these councils from the problem of insuring all the buildings of the Territory, time to time as the needs arise vary in the functions that are which would mean a saving of several million dollars to the demanded of them, and if you tried to set out these functions Territory. We are now taking a look at all the institutions, the section would be weak ualess it spelled them out correct taking a look at the hospitals, trying to centralize the hospi ly, and I am not so sure we know exactly what we want as to tals. We have a group of doctors who are advisors to the a legislative council. committee and we will be able to present to the community Now I think that actually the legislative council idea, while a centralization program which will mean millions of dollars very laudatory and I say I agree with the idea, it is still in to the Territory. The public lands problem is being gone the experimental stage. Kansas was the first state to try into. We have an expert working on the problem and by the the legislative council, that was in 1933, but actually outside end of the year when all the reports are in, the people will of Kansas the experiment is only about ten years old in the find that the Territory will be given legislation by which United States. We find each year that a different type of millions of dollars will be saved. So let us withhold our legislative council is set up in the v~rious states as they comment on what the legislative holdover committee is do come around to this thinking, all through statute and the ing, or is not doing, or has done. The committees are busily statute is never challenged. The fact that it is still in its working on the problems. We have laymen from the com early stages would be a very sound argument against placing munity who are experts in the problem helping along in the it in the Constitution. work and I feel that when the whole matter will be presented Now the charge was made in the Honolulu Advertiser to the legislature that millions of dollars will be saved. I the other day that the legislative council is something of a believe that the question of a holdover committee can be taken pork barrel, and I am inclined to agree that if you should up by statutory enactment rather than by constitutional en allow a council to be set up with no brakes on it, it could actment. become a pork barrel. Now in deference to our honorable legislators, I think that they would not have the temerity to WHITE: I’d like to speak in favor of Mr. Lai’s motion make it such, but according to this Section 22 it could become to delete it. I think in theory such an organization, such a legislative council, sounds all right. I think in practice such. though, it has a great many problems. What kind of salaries are you going to pay to these people, and how about all the rest of the expenses? And it says In reading the second paragraph here it says that, “It “other powers and duties,” what kind of powers are you go shall be the duty of the legislative council to collect infor ing to give them, extra judicial powers? I thought that this mation concerning the government and general welfare of was an organization for the gathering of information and for the state and to report thereon to the legislature.” Well, I JULY 8, 1950 • Morning Session 235 think that’s a function of your executive branch of the govern NIELSEN: I question this council because I think it is ment, to collect all the information on the state of affairs absolutely another pork barrel opportunity and any one of the government for presentation to the legislature. that says that the holdover committee at present is not a As I view this thing, I think it could become a super-or pork barrel job, they just haven’t looked into it. All you ganization. I think that you’ve got to take into account human have to do is see who got on the holdover committee in the nature. You set up an organization of this kind and I think House. Only one man that was for the closed primary got that I’d be just like everybody else if I were director of it. on it. Anyone else that voted for the closed primary didn’t I’d like to make sure that the thing grew so that my job be have a chance. In addition to that - - came still more important. I think as far as the economies are concerned it would work just the other way, and I know CHAIRMAN: Are you a member of the committee, Dele no better way of developing a cleavage between your executive gate Nielsen? branch of the government and your legislature than by having NIELSEN: Absolutely not for that very reason, that I such an organization. voted and stuck for the closed primary. TAVARES: I feel compelled to speak against the deletion Further, they voted themselves $20 a day and here they of this, with one qualification. Unless it is amended to put argue we shouldn’t be paid $15 a day, us outside island laymen on it I am not in favor of it. I believe that some lay members, if we serve in the next state legislature. I could men on the committee will tend to keep too much of the super- go on and on, but I won’t take any more time. rm against politics from getting headway. I think the laymen will tend it. to call the shots more non-politically than the members of CHAIRMAN: The Chalr will put the question. the legislature. However, as Dr. Larsen has pointed out, you have pres ROBERTS: I was sorry to hear the chairman of the sures in your community from people who want legislation committee indicate his neutrality in view of the strong posi and in between times you have no central body to go to to tion made in the report. I thought we were going to support discuss or present ideas for laws which you think are the Legislative Committee report on the floor. needed. To be sure, you can go to individual legislators, but I recognize that there is some problem in terms of cost. they don’t have the office set up for it and they aren’t always There are also some problems in terms of potentiality of available to listen to you. If people have a central agency abuse. I don’t think the question before us is either a legis to go to that has some degree of impartiality—and I believe lative council or no legislative council. I think the question that if it is set up that the legislature will be careful in is a legislative council or a holdover committee. It seems choosing the members of that council and it would have some to me quite clear that if we make no provision in the section, measure of impartiality, particularly with some laymen on in the Constitution, then you have greater potentiality for it, not a majority of laymen—that you will relieve that abuse. I’m not suggesting that there has been abuse. I think pressure for the initiation and the referendum. You will that there’s a very definite job which needs to be done in have a place where people can go any time of the year, between sessions, not a matter merely of compiling materials present ideas and have them studied. but a matter of reviewing legislation which may be needed Therefore I shall vote against the deletion but as I say, and which ought to be prepared for the next session. I think with the qualification. I shall vote for some amendment such that the work of the Legislative Reference Bureau to us as Dr. Larsen’s. here has been very useful and I think it ought to be continued, AKAU: Mr. Chairman, I think we have been very much and the legislative council, I think, can continue such func interested in what has been said here for and against the tion and can provide for additional research work to be done legislative council. Mention has been made of the council by the Legislative Reference Bureau. being rather new and being tried out in several states in the I think the question basically is how do you best achieve past ten years. Since we are growing in status here and we that particular end, and it seems to me that the best way to are reaching out to various countries in the world and know achieve it is by providing a body, not to go into the executive ing and interested in what they’re doing, I thought with just functions, not to take over the power of the executive, but as one quotation from New Zealand —and I am not from New the section clearly implies and states, only with regard to Zealand—that you might be interested in knowing how the legislation to be proposed at the next session of the legisla legislative council has worked in New Zealand and I just ture. I believe that, as Dr. Larsen has stated, that a group quote one sentence. “The legislative council in recent of laymen on that board would be extremely useful and years,” and this is from New Zealand, “has played a very valuable in terms of finding out as close to the county as small part in the country’s affairs. Very little legislation possible what legislation is required and what type is re originates there and has been used merely as a revising quired, and also to see to it that the expenditures of such a chamber to make minor changes voted by the government group be maintained within reason. after bills have passed the lower house.” I therefore believe, Mr. Chairman, that we should make I think that meeting every year here that we really don’t a provision, in view of the other sections that we have adopted, need a legislative council at all, and I would go along very that there ought to be a legislative council, that it ought to much with the idea that our Legislative Reference Bureau consist of legislators and laymen, and therefore I hope that and our Reference Bureau in the University does an all the motion to delete be acted on unfavorably, that we retain year round job and the research that is needed for any of the section and subsequently amend as proposed by Dr. these bills or any potential bills could easily be done there. Larsen. I think we need no council at all. MAU: I wonder if any one can explain to me the difference CHAIRMAN: Counsel for the defense want to say any between the present legislative holdover committee and this thing in regard to this proposal? I think we should hear legislative council without the suggestion of Dr. Larsen. The from the committee. only difference I see is that constitutionally we say that the members of the legislative council shall receive a salary HEEN: I’ve gotten in the position that I’m almost neutral in addition to their salaries as members of the legislature. now. The holdover committees do exactly what is called for in 236 LEGISLATIVE POWERS AND FUNCTIONS the legislative council. Maybe there is some difference and CHAIRMAN: Shouldn’t that be done in the Convention yet no one has mentioned it. rather than in this committee? We’re adopting proposals for the legislative article. CASTRO: May I answer that question? The difference is only in the name is the answer to the question. The duties LARSEN: Well, I am proposing a legislative article to of the legislative councils throughout the states vary com take the place of the one that was defeated. pletely. rhey vary from mere clerical work to extra judi CHAIRMAN: You said resolution, Dr. Larsen. cial bodies, bodies that can subpoena witnesses, and the legislative council as set up by this constitutional section LARSEN: Well I’m sorry, I misspoke. is in duties no different than your holdover committee. I MAD: For the purposes of discussion, I second the think that’s the answer, the difference is in the name. amendment. LAI: Could I answer what the difference with the amend LAI: I think that motion is out of order, because the sub ment is? It limits the number; it brings in the layman; it stance of that motion is the same as that one just defeated. also recognizes there shall be a critical analysis and there shall - - ROBERTS: I’d like to suggest that it’s perfectly proper for Delegate Larsen to submit a new section, Section 23, CASTRO: Point of order. specifying the proposal which he has as a new section to CHAIRMAN: State your point. the Constitution. As the Chair previously pointed out we have acted only on the proposal submitted by the committee CASTRO: Delegate Larsen’s amendment nor my pro which deals with a specific question. This provides for an posed amendment, if the motion to delete fails, is not be entirely new proposal. fore the house. The motion before the house is to delete the section. CHAIRMAN: The Chair will so rule, Delegate Roberts. The point of order is overruled. CHAIRMAN: That’s correct. Delegate Lai was seeking my attention. Oh, excuse me, Delegate Mau still has the floor. ROBERTS: I move that the proposal submitted by Dele gate Larsen be added as a new section to the Constitution, MAU: One more question, if this motion to delete carries Section 23, to read as he has previously indicated on the there will be an opportunity to insert a new provision in lieu floor. of this legislative council provision, is that correct? AKAU: Point of order. CHAIRMAN: The Chair would say yes because this is con CHAIRMAN: State the point of order. fined to the members of the legislature, and you could have a different section which would be comprised of other people. AKAU: The proposal presented yesterday was called 23, The Chair will recognize Delegate Lai. He’s been endeavoring so if this could be called 24, I think you would be in order. to get the attention of the Chair. ROBERTS: I accept the amendment, Section 24. LAI: I just want to add one more thing. A problem of to SHIMAMURA: I second Delegate Roberts’ motion. day may not be the problem of next year or tomorrow or next month, therefore the service of a council of this type as sug CHAIRMAN: The Chair thinks that is in a rather amor gested by the committee or as stated by Dr. Larsen is not phous state, is it not? Delegate Larsen, is it ready for of much value. offering at this time? CHAIRMAN: The Chair will put the question. The question LARSEN: I’m ready to offer it. I have it here all written is upon the adoption or the deletion of Section 22. out but - - DELEGATE: Roll call. CHAIRMAN: Not printed. CHAIRMAN: Delegates want roll call? Show of hands for LARSEN: Not printed. a roll call. The Clerk will please call the roll. The motion is CHAIRMAN: Will you read it again so the Chair can that Section 22, relating to a legislative council, be deleted. understand it? The Chair would like to hear it so the Chair In other words, if you vote “aye,” there will be no legislative knows what we’re acting on here, to make sure that we’re council consisting of members of the legislature. right. Ayes, 42. Noes, 14 (Heen, Holroyde, Kanemaru, Kawahara, LARSEN: Larsen, Lee, Loper, Mau, Roberts, Shimamura, Tavares, A. Trask, Wirtz, Anthony). Not voting, 7 (Ihara, Mizuha, Phillips, There shall be a legislative council consisting of Sakakihara, Silva, Wist, Woolaway). twelve members to be chosen in the following manner: four members to be selected by the Senate from its mem The section is deleted. The motion is carried. bership; four members to be selected by the House of LARSEN: I would like another trial balloon, if I may. I Representatives from its membership; four members would like to introduce a resolution which reads as follows: who are not members of the legislature to be appointed by the governor, one from each county. Legislative council. There shail be a legislative coun The legislature shall provide by law for selection, cil consisting of twelve members to be chosen in the follou? tenure and compensation - - ing manner: four members to be selected by the Senate from its membership; four members to be selected by and if it doesn’t work they can - - the House of Representatives from its membership; four CHAIRMAN: Wait a minute. Is that the end of the pro members who are not members of the legislature to be posal? appointed by the governor, one from each county. The legislature shail provide by law for selection, LARSEN: I’m sorry, I was going to comment. May I tenure, compensation - - just add the final word: JULY 8, 1950 • Morning Session 237 of members of the council and for such research staff vote on the present section would not preclude a different as the council may require to perform its duties. legislative council consisting of persons not exclusively Then I have a second section on duties, but that’s much like legislators. what we have. May I comment for one moment? WIRTZ: At this time I would like to second the motion CHAIRMAN: You have the floor, Dr. Larsen. of Delegate Roberts to defer this to give the movant an opportunity to have it printed. There may be some other LARSEN: The idea, of course, is this does take the amendments to it. duties of the legislative council. However, I call your attention that if the legislature feels that it’s not working CHAIRMAN: It has been moved and seconded that the well they can delete compensation, it’s left open to that. matter be deferred. All in favor signify by saying “aye.” This is much like an organization before any - - It’s an or Contrary. The Chair is in doubt. The Chair will put the ganization that will outline the list of what’s to be done at question. This is on the deferment. All those in favor the next session; they also hear the criticism of the com signify by saying “aye.” Contrary. The ayes seem to have munity. However, that discussion seems to me has been it. The ayes do have it. full here but the idea of limiting it seems important. There has been printed and on the desks of the delegate~, two proposed amendments to Section 21, one offered by CHAIRMAN: Delegate White has been endeavoring to get Delegate Heen and the other offered by Delegate Trask. the floor. The Chair would suggest that all existing amendments to ROBERTS: I would like to make a suggestion on proce this section could be withdrawn in order to get this on the dure. We already have the Okino amendments; I would floor and straighten out the parliamentary situation. suggest that we defer action on this to give the delegate a OKINO: Mr. Chairman, apparently there has been a chance to print the amendment. bandit around here. The amendment designated as being CASTRO: Before that’s done, I appeal for a ruling from offered by Judge Heen is really my amendment. the Chair. I submit that Delegate Larsen’s proposal is CHAIRMAN: That is correct. I didn’t mean to deprive nothing more than an amendment to Section 22. It’s an you of that. Could we first have all prior amendments to amendment insofar as the make-up of the membership. It Section 21 withdrawn by agreement? is not an amendment as to the subject of the legislative council. It is a legislative council. BRYAN: I think we are a little bit out of order. I’d like Now the amendment as to the make-up was not the argu to move for the adoption of Section 21. It was deferred so ment that went back and forth here a few moments ago. The that we could reconsider it. argument was as to the establishment of a legislative coun CHAIRMAN: That has been moved, the Chair believes. cil. If there were delegates who felt that the legislative council should be established if its membership were BRYAN: That’s right, but there’s no reason that it should amended, they should have voted no. But they voted aye be the next matter of business other than some other section. and the aye vote was simply to delete the legislative council. We have deferred what we are on. DELEGATE: Point of order on the speaker. CHAIRMAN: You’re quite right. CHAIRMAN: Delegate Castro has the floor. Proceed, HOLROYDE: I second the motion. Delegate Castro. CHAIRMAN: It has been moved and seconded that we CASTRO: The vote, Mr. Chairman. I’m asking for a adopt Section 21. All in favor signify by saying “aye.” Con ruling from the Chair. The vote, as I understood it, was trary. Carried. The Chair was in error, that we debate against the establishment of a legislative council. It did Section 21. Will the Clerk please note. not go to the make-up of the membership and I would like HEEN: There is now on the desks of all the delegates to ask whether or not the Chair agrees. an amendment to Committee Proposal No. 29, RD. 1. This BRYAN: I think that question is out of order. I would bears the endorsement that it was offered by myself. That’s like to call the previous speaker’s attention to the fact a mistake. It really should have been in the name of Dele that the Chair made that ruling before the motion to delete gate Okino. This amendment now reads: was put. If there was any objection to the ruling of the Section 21. The governor and lieutenant governor, and Chair at that time, it should have been made at that time. any appointive officer for whose removal the consent of The Chair distinctly ruled before the motion to delete was the Senate is required, may be removed from office upon put that it would not prevent a new section or an amendment conviction of impeachment for such causes as may be of the question. provided by law. CHAIRMAN: That was the purpose of the Chair’s ruling, The House of Representatives shall have the sole Delegate Castro. power of impeachment of the governor and lieutenant governor and the Senate the sole power to try all such CASTRO: I withdraw my objections. impeachments, and no such officer shall be convicted CHAIRMAN: Withdraw the appeal. No appeal. without the concurrence of two-thirds of the members of the Senate. Subject to the provisions of this paragraph, CASTRO: “No appeal” is the word. the legislature may provide for the manner and procedure SMITH: I would just like to correct one statement there. of removal by impeachment of such officers. I believe that the chairman stated before the deletion motion The legislature shall by law provide for the manner - - the motion for the deletion that he would recognize any and procedure of removal by impeachment of the appoin amendment to the section, not saying any new section. tive officers hereinabove mentioned. Judgments in cases of impeachment shall not extend CHAIRMAN: The Chair ruled in response to the inquiry further than to removal from office and disqualification of Delegate Mau that in the opinion of the Chair a negative to hold and enjoy any office of honor, trust or profit 238 LEGISLATIVE POWERS AND FUNCTIONS under the state; but the person convicted may neverthe profit under the state; but the person convicted may less be liable and subject to indictment, trial, judgment nevertheless be liable and subject to indictment, trial, and punishment according to law. judgment and punishment according to law. Any appointive officer for whose removal the consent CHAIRMAN: You are now seconding Delegate Okino’s of the Senate is required may be removed for such causes motion to amend the section, I gather. and in such manner as provided by law. OKINO: I move the adoption of this amendment. NODA: Second the motion. HEEN: Second the motion. CHAIRMAN: It has been moved and seconded that the ASHFORD: May I ask a question? In the second para amendment to Section 21 offered by Delegates Heen and graph, “the Senate the sole power to try all such impeach Okino be amended and be substituted therefor by RD. 2, ments,” does that “all” refer to the impeachment of any which is likewise printed and on the desk. Delegate Trask appointive officer or does it refer merely to the governor has the floor. It has different names, endorsements at the and lieutenant governor, and if it be the latter should it not bottom. Does Delegate Tavares want to be recognized? be stricken out? TAVARES: I raise a point of order, that actually I don’t HEEN: By putting that in the same paragraph it was think Delegate Trask’s proposed amendment is different in intended to refer to the impeachment of the governor and substance in any way from the other one. I think he may lieutenant governor. have intended it to be but as I read it, it doesn’t change it at all, it just shifts the language around a little bit. ASHFOBD: May I address a question? Would not the chairman of the Legislative Committee feel that that inter A. TRASK: May I discuss that. There is a substantial pretation would be strengthened by leaving out the “all”? difference. The confusion in the discussion of this section In other words, it is “such impeachments,” the impeachment is due to the fact that the governor and lieutenant governor of the governor and lieutenant governor. and appointive officers are discussed in the commencement of this section. That’s where the confusion is. In other CHAIRMAN: Delegate Ashford, the Chair understands your difficulty. The word “such” would refer back in your words, I think it is the sense of this Convention that the judgment to either appointed officers or the governor and governor and lieutenant governor shall be given a dignified lieutenant governor when the word “all” was in there. state trial as such with all the proper attention that should be given such a trial of state. With respect to the appointive ASHFORD: When “air’ is in there, yes. officers I do not think it is the sense of this Convention CHAIRMAN: The chairman can quite agree with that. that they should be given a trial and impeachment process of equal dignity and order. So, that being the case, I have re HEEN: I move the deletion of the word “all.” moved the expression “appointive officers” and relegated it OKINO: I accept the amendment. to the last paragraph of that Section 21. Now the difference, in answering Delegate Tavares’ in CHAIRMAN: Will the delegates strike out the word “all” quiry, if you will direct your attention to the Okino-Heen and that’s the amendment that’s before the house. RD. 1, the third paragraph, you will note that, “The legisla ture shall by law provide for the manner and procedure of A. TRASK: On a redraft, RD. 2, which is indicated by myself, it’s a mistake also and should be Delegate Okino. removal by impeachment of the appointive officers herein above mentioned.” In other words there is no other process The only difference between the draft 1 and draft 2 lies in the liberality that will be awarded and given, vested with the than by the process of impeachment whereby a person may legislature, to try in whatever manner and for what causes be—an appointive officer particularly—may be removed, appointive officers may be removed. whereas if you will direct your attention to the last para graph of the Okino-Trask amendment you will note that the CHAIRMAN: Excuse me, Delegate Trask, you’re moving removal of appointive officers shall be prescribed by law for an amendment are you not? “for such causes and in such manner as may be provided by law.” A. TRASK: I am moving for an amendment, yes. Now it is my interpretation and understanding—that’s CHAIRMAN: Let the Chair get this straight. Is there a where Delegate Tavares seems to differ with me—I say that second to Delegate Trask’s amendment? the causes and the manner is certaialy more elastic and broader than by the only one procedure of impeachment A. TRASK: I move the amendment of RD. 1 by RD. 2. which is advocated by the Okino-Heen amendment. It cer Amend Section 21 of Committee Proposal No. 29 to read as tainly is my understanding that the sense of this Convention follows: is not to make the removal of appointive officers difficult, Section 21. The governor and lieutenant governor may but if the governor doesn’t remove a more or less difficult - - be removed from office upon conviction of impeachment for such causes as may be provided by law. The House CHAIRMAN: Pardon me. May the Chair direct one of Representatives shall have the sole power of impeach thing to your attention. I just want to stralghten out whether ment and the Senate the sole power to try all impeach or not there’s any difference. If you will examine the first ments of the governor and lieutenant governor. No such sentence of RD. 1 it says “for such cases as may be provided officer shall be convicted without concurrence of two- by law.” Wouldn’t that be the same as the substance of your thirds of the members of the Senate. amendment? The legislature shall by law provide for the manner HEEN: “For such causes.” and procedure of removal by impeachment subject to the provisions of this section. A. TRASK: “For such causes.” The situation is this, Judgments in cases of removal from office shall not Mr. Chairman. I conferred with Judge Heen and his inter extend further than to removal from office and disquali pretation to me of how an appointive officer may be disposed fication to hold and enjoy any office of honor, trust or of or removed, he says it shall be only by the process of JULY 8, 1950 • Morning Session 239 impeachment. That is Delegate Heen’s interpretation of the with all due deference to him, is put of order for this Okino-Heen amendment. I feel that the causes and the reason. The first paragraph of Delegate Trask’s amendment manner, the procedure for the removal of an appointive is substantially similar to the first two paragraphs of Dele officer should he more elastic than mere handling by the gate Heen’s amendment, but in the additional paragraphs House and Senate. Delegate Trask’s amendment diverts from the matter of im In other words I feel that if the House may decide to act peachment. It provides for removal for all causes not limit as a grand jury and bring a charge against a rascal appoin ed to impeachment. Therefore, I respectfully feel that at tive officer whom the governor refuses to remove and the least as to the latter portion of this amendment, it is out of legislature therefore feels that it is in honor bound to act, order and the amendment being whole and not separable therefore it may do so by impeachment, by the selection of should be ruled out of order. a joint committee of both houses, or just by the Senate or just by the House, in whatever manner and for whatever MAU: With all due deference to the last speaker, although causes. So I do feel that that is the sense of this Convention I don’t agree with the amendment offered by Delegate Trask, and that’s why I urge that the language be made broader to I believe that his amendment is in order. There is a sub include causes and remedy and not to have the removal of stantial difference in the method of removal of appointive appointive officers by impeachment only. officers. In the first instance, the amendment by Delegate Heen proposes that the removal of such appointive officers CHAIRMAN: The Chair has got to dispose of this point shall only be by impeachment. Under the Trask amendment of order. It seems to the Chair that this is a close question. it provides that the legislature may provide any other means, Delegate Tavares, you have any further views on the point whether by impeachment or any other procedure. So I think of order, whether Delegate Trask’s motion is in order? there is a substantial difference. ROBERTS: I have a point of information which if answer CHAIRMAN: The Chair is prepared to rule. This ques ed might dispose of the question. tion is not free from doubt, but the Chair will rule that the Trask amendment is in order, and will now put the question. CHAIRMAN: State your point. FUKUSHIMA: In that event I wonder if Delegate Trask ROBERTS: The question I want to raise is this. if we will accept an amendment by inserting the fourth paragraph adopt the article as submitted by the committee on impeach before the third as it appears in his amendment. The para ment and leave out any reference to other appointive officers, graph reading, “Any appointive officer for whose removal,” doesn’t the legislature have the power to provide by law for etc., insert that paragraph before the paragraph which procedures and methods of impeachment? reads, “Judgment in cases of removal,” and that will clarify CHAIRMAN: Absolutely. the amendment. ROBERTS: If they do, it seems to me that we ought to CHAIRMAN: Will you state that again? adopt the committee proposal and then leave it to the legis A. TRASK: I accept that, which is to make paragraph lature to make such other provision as they may want to four of RD. 2, paragraph three, so that paragraph three with regard to impeachment. would become paragraph four, Mr. Chairman, beginning TAVARES: I beg to differ with the last speaker. The with the word “Judgment” as the last paragraph. impeachment provision applies only to elective officers as it now stands. That’s fine, but we want to extend it to appoin KING: I would like to speak against the amendment tive officers. offered by Delegate Trask for the simple reason that that paragraph four, which would now become paragraph three, CHAIRMAN: His question was whether or not it could be would permit the legislature to dismiss an executive officer by legislation. who had been confirmed by the Senate and whom the gover TAVARES; I disagree there. The Constitution has now nor refused to remove with the consent of the Senate, on prescribed two methods of removal. One, impeachment of any cause at all not with any formal impeachment. By law, elective officers; the other one, the removal with the con the legislature could provide some means of removing sent of the Senate, removal by the governor of appointive from office any one of the appointive officers of the gover officers with the consent of the Senate. By implication you nor’s cabinet, heads of departments, with no formal im have excluded other methods of removal of those particular peachment and perhaps very little trial. It broadens the officers. As to those officers for whom no particular method purpose of the original amendment very greatly. is prescribed, it is true the legislature in setting up the This whole issue arose by Delegate Okino’s desire to office can also provide for methods of removal, but as to provide a means of removing officers who are appointed to those officers for whom provision has been made, such as office by the governor with the approval of the Senate when heads of principal departments, for a method of removal by the governor refuses to remove them. It provides, and I the governor with the approval of the Senate, I say by im think very properly, that such officers should be impeached. plication you can’t remove them any other way unless in The legislature is left with the procedure of impeachment, another section of the Constitution you give that express the manner of trial, and that should, be the limit of the legis power to provide by law. lative jurisdiction over that. Otherwise it could very easily be possible that the legislature could harass a department CHAIRMAN: The Chair is inclined to agree with that, head without very much of a formal charge or trial. And Delegate Roberts. The Chair was in error a minute ago. therefore, I am opposed to the RD. 2 of this amendment but SHIMAMURA: Speaking to the point of order raised by feel that the original amendment revised from Delegate the Chair - - Okino’s offer by Delegate Heen should carry. CHAIRMAN: It wasn’t raised by the Chair. CHAIRMAN: All in favor of the amendment—this is the Trask amendment—signify by saying “aye.” Contrary. SHIMAMURA: Very well, raised by someone, Mr. The noes seem to have it. The motion is lost. Chairman. I feel that this amendment by Delegate Trask, The question is now on the amendment. 240 LEGISLATIVE POWERS AND FUNCTIONS ROBERTS: I am sorry to bring an amendment on this As you know the presiding officer of the Senate is the Vice but I think the original proposal submitted by the committee President. It would be hardly conceivable for the Vice had two sections in it which were extremely valuable and President to preside over the impeachment of the President. I think ought to be retained, If we are going to adopt the Here we don’t have such a thing. So if we have the lieutenant amendment proposed now, the Okino-Heen amendment, in governor here, he is not the presiding officer of the Senate. the second paragraph of 29, RD. 1, at the beginning & the Therefore the amendment proposed by Delegate Roberts second sentence which starts “Subject,” I would like to in doesn’t seem to be in order. There was a reason for the clude a new sentence in there which would read as follows — provision in the Federal Constitution which does not exist this applies only to the impeachment trial of the governor here in our Constitution. and the lieutenant governor by the Senate — and the language FONG: What would happen in the case if the governor would read as follows: “When sitting for that purpose, the knew he was going to be impeached and he refused to appoint members of the Senate shall be on oath or affirmation and the chief justice. the chief justice shall preside.” If I have a second to that, I’d like to speak to it. It’s in CHAIRMAN: Then the office would succeed under the judi the committee proposal. cial article. TAVARES: For the purposes of enabling the speaker to FONG: He is not chief justice, he is only acting chief discuss, I will second the motion. jtstice. ROBERTS: The language proposed by the committee CHAIRMAN: The judiciary article provides for succes followed very closely the language of the Federal Constitu sion and the associate justice will succeed to all the powers tion. I am not arguing that everything in the Federal Consti of the chief. tution ought to be adopted by us. I haven’t so argued before SHIMAMURA: I should like to speak in favor of Delegate and I don’t plan to argue that now. I do feel, however, that Roberts’ amendment. I believe this is a sound amendment the removal of a governor or lieutenant governor on impeach because I think it will more greatly assure justice and fair ment charges requires as careful a procedure and method ness of the trial where the chief justice, who has knowledge for disposing of him, if he needs to be disposed of, in ac of the law, is the presiding officer. cordance with the best rules that we can lay down. It seems to me when the Senate sits for impeachment that it ought to OKINO: The amendment offered by Delegate Roberts sit and that it ought to be on oath or affirmation and that the was in one of my amendments. It was left out. I was rising chief justice ought to preside in those cases. to accept the amendment so that the matter can be put to a The argument might be presented that the governor is vote. I do accept the amendment. going to appoint the chief justice. That may be true, but so does the President of the United States appoint the justices CHAIRMAN: Is that amendment accepted, Delegate Heen? of the Supreme Court. The justice who may preside may HEEN: It’s accepted. not be the one appointed by the specific governor on trial. We have provided for long tenure for our justices and it’s MAU: I wonder if the movant would also accept this possible obviously that the justice presiding will not be the amendment to his amendment, “Two-thirds of the members one appointed by the governor. In any event, the justice present.” It appears in line five of the second paragraph. presumably has to preside and the justice is required to give justice in any event. HEEN: That question came up before thin committee I I believe, Mr. Chairman, that the procedure with regard think yesterday and it was voted down to have it read this to impeachment of a governor is a pretty serious problem way. and it ought to be circumscribed in such manner that he be MAU: It was discussed but I don’t believe a vote was given adequate and full and careful trial. It seems to me taken. these amendments, Mr. Chairman, to conform to the provi sions of the Federal Constitution and the committee recom CHAIRMAN: Well, all prior amendments have been with mendations are in order. drawn. If you wish to make that amendment, the Chair will entertain it at this time. CHAIRMAN: Delegate Roberts, just where would that amendment go. MAU: I do make that amendment, Mr. Chairman. ROBERTS: It goes in the second paragraph of the draft SHIMAMURA: Second it. RD.l as a new sentence after the word “Senate.” CHAIRMAN: The word “present” would be added. ASHFORD: After having the extremely agreeable experi HEEN: That I think is a separate amendment, not tied ence of having the delegate endorse something from the up to the amendment made by Delegate Roberts. Constitution of the United States, in counter-distinction to actions in the Style Committee, I would like to say that I CHAIRMAN: No, the Chair is not going to put that amend am heartily in favor of having the chief justice preside. If ment in view of the fact that both the movant of the original he doesn’t preside fairly, he can be impeached. But I would amendment and the second have accepted the proposal of also like to know what’s meant by “upon oath or affirmation.” Delegate Roberts. Therefore, the parliamentary situation is The Senate is upon oath or affirmation all the time. there is one amendment by Delegate Mau, who would add the word “present” at the end of the expression “two-thirds of CHAIRMAN: That is taken from the Federal Constitution the members of the Senate present.” and they are sitting as a high court of impeachment specifi cally when they try impeachment cases. MAU: I had in mind as a matter of style, “two-thirds of the members present.” FUKUSHIMA: The Federal Constitution, when it provided that the President when he is being tried for impeachment CHAIRMAN: In other words, you would conform to the the chief justice should preside, there was a reason for that. Federal Constitution. JULY 8, 1950 • Morning Session 241 MAU: That’s correct. I don’t think “of the Senate” is and allowance prescribed by law. There was also a motion necessary. Just surplusage. that the salary be fixed in the schedule. The second part H. RICE: I think we should defeat this amendment be of Delegate Roberts’ motion involved a schedule for the cause you should have all the Senate present. first legislature. That schedule was adopted and provided for a salary of $2,500 for the general session and $1,500 CHAIRMAN: The question is on the amendment. All in for each budget session and $750 for each special session. favor signify by saying “aye.” Contrary. The motion is There was also an amendment - - I might state that Delegate lost. Roberts’ motion was an amendment to the amendment The Chair will now put the question on the amendment to offered by Delegate Rice, which left the second paragraph Section 21. All those in favor signify by saying “aye.” Con of Delegate Rice’s amendment intact. That was voted upon trary. Carried. and it was that paragraph which fixed the limit which the SAKAKIHARA: I now move that Section 21, as amended, legislature could expend for employees. That was adopted. be adopted. And that was fixed at $1,000 per calendar day during any general session and $500 per calendar day during any budg ROBERTS: Second the motion. et or special session. Those provisions now constitute, CHAIRMAN: It has been moved and seconded that Section added up together, Section 11. 21, as amended, be now adopted. All those in favor signify Does Delegate Gilliland desire to enlighten the body as by saying “aye.” Contrary. Carried. to the reasons for his request for reconsideration? GILLILAND: Having voted in favor with the majority, ASHFORD: I’d like to correct part of that. I think Mr. at this time I move that this committee reconsider the action Rice’s amendment was an amendment to my amendment. taken on Section 11 from Committee Proposal No. 29, the last paragraph there with respect to expenses of $1,000 a CHAIRMAN: That is technically incorrect because if day for the legislature. the delegate will recall she withdrew her amendment at one time to permit Delegate Rice to put in the substance of the KAM: Second that motion. same thing in the delegate’s amendment. Substantially you are correct, Delegate Ashford. CHAIRMAN: It has been moved and seconded that we reconsider our action in regard to Section 11. GILLILAND: Since voting on this Section 11 I have had further time, ample time, to study the cost and expenses of A. TRASK: Will that section be read, if you please. the legislature. Having been a member of the legislature There are so many drafts of it. at one time in 1947, I have come to the conclusion that the CASTRO: Point of information. Is it proper to ask a legislature cannot get along on $1,000 a day or $500 a movant of a motion to reconsider the reason for the motion? calendar day as we voted for on this Section 11, so my I think it would enlighten the vote. In other words, there is intention is to have this section of the second paragraph of considerable in this section and I am sure that a motion to Section 11 be deleted altogether. That’s the reason I’m reconsider in this particular case, the movant probably asking for a reconsideration. doesn’t have the entire section in mind, and I’d like to know CHAIRMAN: And you are asking for a reconsideration so that I may vote more intelligently, the reason for the of the entire section, is that correct? motion to reconsider. GILLILAND: Of paragraph two of Section 11. CHAIRMAN: Delegate Gilliland, do you desire to state your reason? CHAIRMAN: Just the paragraph relating to fixing the maximum of expenses per diem of the legislature? A. TRASK: Point of order. Since the Chair is having some time getting that particular amendment and since Mr. GILLILAND: That’s right. Gililand has proposed it, let’s have Mr. Gilliland read the KING: He has to ask to reconsider the action taken in section he is referring to, please. ~he adoption of the section before he can vote on a certain NIELSEN: Point of order. Mr. Gilliland voted “aye” paragraph. on the limiting of legislative spending, so he can’t move for CHAIRMAN: That is correct. The Chair will so rule. reconsideration, I don’t think. It has been moved and seconded that we reconsider the CHAIRMAN: That is just the reason he can, Delegate action taken. Nielsen. The Chair will declare a few minutes recess so ARASHIRO: Point of information. Are we going to re we can get these amendments together. consider the whole section or the second paragraph? (RECESS) CHAIRMAN: The whole section. PORTEUS: May I point out to the delegates, as I under CASTRO: In regard to my question as to whether or not stand this particular motion, it is the intention to get at it is proper to ask the movant of a motion to reconsider his the particular section with respect to the $1,000 limitation, reason for wanting a reconsideration, if it is proper, I but because of having adopted the entire section you can’t would like to direct that question to the Chair. get after the paragraph unless you reconsider the action CHAIRMAN: As soon as the delegates take their seats, on the entire section. the Chair will acquaint the body with the status of the section. CHAIRMAN: That is correct. The Chair will endeavor to state the status of the section, the substance of it, without reading the exact language, unless PORTEUS: But insofar as the salaries of legislators the words are requested. are concerned, that’s in the schedule and that is not in There was a motion by Delegate Roberts to amend Section cluded in this motion. 11, which would provide that the legislators receive salary CHAIRMAN: No, the Chair will rule otherwise on that. 242 LEGISLATIVE POWERS AND FUNCTIONS PORTEUS: Pardon me, if you will read Section 11, the and the language goes on, “The following to appear in the schedule of $2,500 is not in Section 11. The motion was to schedule.” So I think that the point raised by Delegate reconsider the action taken on Section ii. That leaves the Porteus is well taken, that the action on the salaries is not $2,500 as set in the schedule quite apart from this motion. a part of Section 11 but is going to be a part of the schedule. It will not be in order to vote again with respect to the pay We adopted it to be incorporated in the schedule when the of legislators because that is not written out in Section 11. schedule is taken up, and this first paragraph pertains only That is put into the schedule and k’s not in the motion and to the first paragraph of Section 11 and that has only one that’s not what the gentleman is after. He’s after the $1,000 more short paragraph. limitation, as he stated. ASHFORD: I am not in agreement wkh some of the FONG: I believe the speaker is correct in that attitude previous speakers. I think that first section, if we choose and I don’t think there is any move here to reconsider the to amend ft now, we can go right back to where it was before salary of $2,500. There is no move here to reconsider the amendment and write in the salaries. that salary, that salary will stay. CHAIRMAN: The Chair is trying to get its bearings here. H. RICE: When you consider the section the whole sec Will you just hold that a minute? tion is open to amendment, not just part of the section. PORTEUS: I wonder if you would give me the opportunky CHAIRMAN: It is the Chair’s understanding. Certainly, to make a suggestion which may bring this matter to a head. it was the substance of Delegate Roberts’ motion. He made That is if the movant —if I can get his attention, Delegate it very clear to this body that when he was changing the Gililand —if the delegate were to make a motion that he stated figure, the numbers that he didn’t want, that he was moves to reconsider Section 11 for the purpose of dealing doing so in abiding by the figure that this body had already with the paragraph with respect to the limitation of expend voted upon, and he would offer at the appropriate time a itures for employees of the legislature, that it would mean schedule which would have the identical figures in it and that that the section was being reconsidered for that purpose only was done and that was carried. It seems to the Chair that in and the motion to reconsider carrying on that basis would that framework k’s improper to consider the section apart leave that paragraph alone for consideration. That would from the schedule. dispose of this other question. FONG: May I ask for a ruling? The movant asked for CHAIRMAN: That doesn’t seem to dispose of the Chair’s reconsideration of the last paragraph of Section 11, para problems. graph two. Under that request I believe it is proper for us BRYAN: Might I help the Chair, please? As I recall, just to discuss paragraph two. there was a ruling on this very subject yesterday in terms CHAIRMAN: Don’t you agree that the entire matter of of whether we could vote on Section 11 and the part appear ing in the schedule at the same time. Does the Chair recall the salary and the expenses were tied up in Delegate Roberts’ that? It was finally ruled that they were actually separate motion? You do not agree with that? things. I think that that might help clarify the present prob FONG: No, I do not agree with that. lem. CHAIRMAN: The Chair will ask Delegate Roberts, being H. RICE: I move to reconsider the whole Section 11. the author of this impasse, to enlighten the body. FONG: Second the motion. ROBERTS: I am not the author of the impasse. I would FUKUSHIMA: I rise to a point of order. There’s another like to state that so far as my amendment was concerned motion pending. and the rulings of the Chair are concerned, they apply to Section 11. It is true that the section, the second paragraph, CHAIRMAN: The point of order is sustained. would appear in the schedule. Technically I think the Chair could rule either way on this question, that having adopted H. RICE: I’ll amend the motion that we consider the whole section. Section 11, Section 11 consisting of two parts, paragraph one of Section 11, paragraph two to go into the schedule, he CHAIRMAN: That’s the basic question that the Chair has therefore could rule in favor of reopening the second section. to decide. I think we’ll take about a two-minute recess while The section dealing with paragraph two of the Rice modified I read the minutes. amendment deals with another part of that same proposal. It seems to me, Mr. Chairman, that once you open the A. TRASK: Delegate Gilliland has withdrawn his motion. section, however, you open the section to any amendment DELEGATE: No. unless the Chair clearly rules beforehand that opening (Confusion) Section 11 will not permit the opening of the section dealing with the salaries. Then it would be open for amendment KING: Just one small point. Delegate Rice, I think, is not when it came in. If the Chair would rule that it’s not open, qualified to move to reconsider. If the Chair wants a two then the question could be opened on reconsideration. minute recess I think ft might be quite in order. KING: I have before me a copy of the amendment to (RECESS) Committee Proposal No. 29, amending Section 11 to read as follows: “Section 11. Compensation of members. The members of the legislature shall receive such salary and CHAIRMAN: The Convention will please come to order. allowances as may be prescribed by law,” and something Will the delegates please take their seats. about “the amount thereof shall neither be increased nor It is the ruling of the Chair that Section 11 alone is diminished during the term for which they are elected.” being reconsidered in view of the fact that we voted upon That language was changed. Then, “No salary shall be the schedule separately. However, the Chair will point out payable when the Senate alone is convened.” Then there’s that in the event Section 11 is reconsidered, it would then quite a break in the amendment offered by Delegate Roberts be open to any member to incorporate or make by reference JULY 8, 1950 • Morning Session 243 or otherwise the schedule, so therefore the entire subject CHAIRMAN: The Committee of the Whole has not made of the salaries of the legislators would be open by that any report. method. Are you ready for the question? The question is on the BRYAN: All right, as amended by the Committee of the motion for reconsideration. The Clerk will please call the Whole yesterday. roll. FUKUSHIMA: That motion has already been made and MAU: I wonder if you would ask the delegates to use seconded. their mikes. We can’t hear those who are voting in the KING: The motion offered by Delegate Fong referred to front. the amendment which I think was originally proposed by CHAIRMAN: The Chair has requested that several times. Delegate Harold W. Rice which split Section 11 into two paragraphs. The first paragraph was amended and adopted, [Delegate Tavares entered the Hall during the voting and and then the second paragraph was adopted. voted on the question.j CHAIRMAN: That’s not now before the house. We’ve CHAIRMAN: The Chair will rule that Delegate Tavares reconsidered everything that we did yesterday. The only is out of order at this time. thing before the house is Section 11. KING: Delegate Tavares has entered the hall before vote FONG: May I restate my motion? I move that Section 11 was announced and he may vote. be amended to read as follows: substitute the word “$2,500” CHAIRMAN: He may vote any time before the vote is - - for the word “$1,500.” He can’t participate in debate. ROBERTS: Mr. Chairman. TAVARES: I simply asked and I vote “aye.” CROSSLEY: Point of order. Ayes, 34. Noes, 22 (Akau, Arashiro, Ashford, Castro, CHAIRMAN: Delegate Fong has the floor. Proceed, Corbett, Kanemaru, Kawahara, Kawakami, Kellerman, Delegate Fong. One at a time. Larsen, Luiz, Nielsen, C. Rice, H. Rice, Roberts, Sakai, Serizawa, A. Trask, J. Trask, Wirtz, Wist, Anthony). Not CROSSLEY: Point of order. The Chair has just ruled voting, I (Ihara, Lee, Mizuha, Ohrt, Phillips, Silva, Woola that the section before us is the original Section 11. That way). is not what we voted to reconsider. We voted to reconsider our action yesterday in adopting Section 11, as amended. CHAIRMAN: The motion to reconsider is carried. That is what we reconsidered. ASHFORD: May I now ask if there were some who voted DELEGATE: Point of order. “kanalua” whose names were not subsequently called? CROSSLEY: I have not finished stating my point of order, CHAIRMAN: They were all called. please. Therefore I think the Chair is out of order in stating Section 11 is now before the body. that what we voted to reconsider was the original section, FONG: I now move that we delete the second paragraph not what we had adopted. We voted to reconsider the action of Section 11. that we took yesterday. FUKUSHIMA: Second it. FONG: I think the point is well taken. CASTRO: Mr. Chairman? A. TRASK: Point of order. I had requested the Chair, CHAIRMAN: Just a minute, Delegate Castro. when Mr. Gilliland first brought up this subject of recon The Chair will direct your attention to the fact that the sideration, to inform this body what the movant wanted re only thing that is left is the committee proposal. The entire considered. He failed to do so and I think the Chair is right Section 11 is reconsidered. And what is your motion then, in opening up the subject and leave it to the committee pro delegate? Should there not be a motion to adopt the section posal Section 11. They refused to bring up that subject and originally? The Chair will entertain a motion that Section to read the precise matter at hand because they were fear 11, as reported by the committee, be adopted. ful of bringing up the question of compensation. They wanted to limit the attention of this body just to what they were CASTRO: I so move. interested in and nothing else. FUKUSHIMA: I second that motion. CASTRO: My motion, which has been duly seconded and FONG: Mr. Chairman, I now move that that Section 11 is before this committee, was that Section 11, as amended, be amended to delete the second paragraph. be adopted. That has been seconded and that is what is be fore this house. So that my understanding is that Section 11, FUKUSHIMA: I second that motion. as amended, starts out with a paragraph on compensation of CHAIRMAN: The Chair does not understand at all what members and the second paragraph is regarding the calendar Delegate Fong is talking about. There’s only one paragraph day limitation of the expenses of both houses, and the inten in Section 11. tion of my motion, Mr. Chairman, was to place whatever motion the opponents of the amended section have before BRYAN: I think, in order to clarify the thing, I will the committee. So I really believe that at the moment the move that we adopt Section 11, as amended. motion that Delegate Fong was about to make is in order be CHAIRMAN: That has been moved by Delegate Castro cause the motion to adopt is now before the committee. and appropriately seconded. Now the question is the vote CHAIRMAN: The Chair was trying to get Delegate Fong’s on Section 11. motion and all these points of order were raised. Will you BRYAN: Point of information. That means my motion please state your motion, Delegate Fong? was Section 11 as reported by the Committee of the Whole FONG: I believe that the points raised by Delegate Cross yesterday? ley and Mr. Castro are well taken. My amendment is that 244 LEGISLATIVE POWERS AND FUNCTIONS Section 11 be amended to delete from that section the second going to run ten years. Ithink that it’s entirely out of order paragraph - - for this body to put something in when we don’t know what the conditions are going to be and will not be able to take CHAIRMAN: Just a minute, what Section 11 are you care of the situation. talking about? AKAU: As a direct antithesis of what is just being said, FONG: Section 11 as we have before this assembly, why then did we stipulate the money for the governor, the which is the Section 11 which we adopted. money for the lieutenant governor and other purposes that we CHAIRMAN: The Chair understands that. have been incorporating. In other words we are being very inconsistent, we stipulate something in one place and then we FUKUSHIMA: I now second that motion. say it smells wrong if we put it elsewhere. CHAIRMAN: What paragraph do you want to delete, Dele RICHARDS: In answering the statement of the last gate Fong? speaker - - FONG: The second paragraph. CHAIRMAN: Delegate Lai is recognized. ROBERTS: I think it would help the situation if Delegate LAI: I can answer that question. I think the salaries Fong would read the specific section he wçuld like to have set in this Constitution would be more than enough to support deleted so that the body would know specifically what he the governor himself, but I am in favor of this motion to wants deleted. delete this paragraph because we have no concrete evidence FONG: The paragraph to be deleted will be - - that we can run the legislature with a thousand dollars a day. Nothing has been shown to us yesterday or today with A. TRASK: Point of order, let us have stated for now figures that we can run with that amount. Another thing, and all time what the entire section is that we are consider the fluctuation of the American dollar has gone up and down ing. the last few years and you know we talk about basing our FONG: We have been stating that for the last two min value of the dollar on the cost of living. I don’t think we utes, Mr. Chairman. can do that because the value of the dollar in buying mer The paragraph reads as follows: chandise or cost of living is not the same as the value of a dollar in hiring help. Sometime you have foodstuff plentiful, In no case shall the total expenses for officers and that’s where you have prices that are low. That’s not the employees for each house exceed the sum of $1,000 case with help. if you have a shortage of special help, of per calendar day during any general session, nor the special type of help, you find that the salaries are going to sum of $500 per calendar day during any budget or any be high. So I don’t think to set a specified amount of $1,000 special session, based upon the average - - would be very practical and I think this is dangerous. I didn’t get the other words on that. MAU: I was one of those who voted for reconsideration HEEN: That is not correct. I think the word “expenses” because I wanted to give the proponents of any new motions was changed to “compensation.” they would make a chance to give us any new material they have. So far I’m not convinced that this paragraph should FONG: I think that was it, yes. be deleted. Yesterday, I recall, the figures that were pre CASTRO: There’s also a period alter the word “session.” sented by Mrs. Kellerman, and Pm very, very grateful to her for the information she gave to this Convention, and I CHAIRMAN: We will leave that to the Style Committee, think the people at large would be very interested in that if it ever gets it. information. But until I can be shown that it was necessary, CASTRO: I have a question which I think goes to the very for instance, in the last session to spend dose to a half a root of this motion and Pd like to direct it to the Chair. million dollars for clerical help, Pm not ready to delete I’d like to ask the movant what the reason for his motion to this paragraph. delete is, because if it is my understanding that his reason H. RICE: When the great sovereign state of California is that the limitations are too tight then I would gather from can limit their regular expenses of salaried employees to that that he would have no objection to further amendments $300 per regular session and $200 for a special session, to this section which would attempt to make the financial it seems to me that we’re very liberal here in setting a operation of the legislature more efficient. My question is, limit of $1,000. Of course, I know there is a lot of unem what is the reason for the motion to delete? ployment in the territory and probably the body in power would like to spread their patronage over more people, FONG: The reason for deleting that was well expressed build up the printing committee with a lot more people than yesterday by the speakers who spoke against this amendment.. they need, but it doesn’t make sense to me. if we don’t put We feel that we shouldn’t hog tie the legislature, that we a limit here, the legislature themselves will not be able to should have no limitation as far as the legislature is con do it. It’s shown how the expenses of the legislature have cerned in this matter. grown year alter year. It just doesn’t make sense. RICHARDS: I feel that it is perfectly proper to delete this. We do not know what the legislature is going to be HAYES: I would like to state my reasons here why I faced with; we do not know what type of inflation might come voted against this section here. For the simple reason first along which would change salary schedules, we do not know that I do not wish to put restrictions on those who will come what can happen in the next ten years. It’s the same situa into the future state of Hawaii in this section. Pm not one tion as faced this Convention when the last legislature in a of those legislators - - I can say, and look you in the eye matter of less than two years ago picked the figure of and say that I have had a lot of pies to split in quarters. I $250,000 out of the air to run this Convention and we find am not that type of legislator that has had or has ever done out that they were very wrong. Now we are putting in some such a thing as that. In spite of that, in spite of the fact that thing in the Constitution that isn’t just two years away but is I do not have about ten or three or four people to work for JULY 8, 1950 • Morning Session 245 me in the legislature, I still feel that there is a certain prin the present form. I am more fearful of freezing the expenses ciple in this section, that I have no right to come here and at $1,000 than the abuse that might be exercised by the leg put restrictions such as this for the new legislators that islators. may come in to be elected to the legislature. Then, too, Mr. Chairman, right here in this convention, ROBERTS: I voted against the proposal which was adopt you and I know that as we look around here we have had many ed on the floor yesterday. I believe the record is clear as people who are working here that perhaps we should have to the basic reasons. I think the action yesterday has served done away with them. Have we? The principle is the same, its purpose. The purpose was to call attention to the fact Mr. Chairman, and let’s leave to the leadership of the legis that our legislative expenses other than salaries have been lature to decide for themselves, and if the people don’t like high, comparatively. I do believe that it is not appropriate that kind of leadership, then let them defeat them at the next to place in the Constitution an intent to criticize actions of election. a group or body. Our Constitution has to be regarded as a document which SMITH: I was one that voted for reconsideration for one will remain in existence for many years to come. We have fact, that — more on the sentiments of Delegate Richards — I’d written a very difficult section in our Constitution dealing like to ask the Reference Bureau for the information as to with revisions and amendments. I say it will be extremely how they arrived at their figures and how the $1,000 was difficult to amend our Constitution. I can’t see writing any arrived at. I think it’s very important that if we sit down thing in our Constitution dealing with specific funds and and try to figure out - - I don’t know a single thing about allotments of money, regardless of the basic value and pur the clerical staff, but I do know this, that if we sit down and poses for which the amendment was intended. As a matter take into consideration the cost of lawyers and the clerks of statute I think we could do it. As a matter of publicity and the overtime that they do work, the time that is needed, and action in the community I think we ought to do it, but I’m very leery of putting down in the Constitution a state I cannot see how we can write into our Constitution a limi ment that they shall only be able to work under a set figure. tation of this type, no matter how desirable, because of the If they would limit the number of persons working, as some difficulty of amendment and because we’ve made no allow of the other states I believe have, maybe that’s a different ances and no provision for modification based on the appro thing, but I certainly am reconsidering it on that thought. priate changes either in prices or other methods as suggest ed yesterday by amendments. I think the proposal ought to FONG: I’d like to give the members some idea of how be defeated. the people work in the legislature. When I first went into the legislature I had no inkling of how hard the clerks worked, KING: I rise to support the motion to delete this last but being Speaker of the House in the last session I was paragraph. I voted against the paragraph for somewhat the faced with the problem of seeing that all these things were same reasons just mentioned by Delegate Roberts. I don’t to come out on the calendar for the next day, seeing that these think it’s good constitutional law to write a limitation into bills that were enacted into law were sent to the governor the Constitution on the expenses of the legislature. As a and seeing that everything was run right. As Speaker of matter of fact, the legislative branch as one of the three the House I feel that the people who work for the legislature coordinated branches of government is the least expensive are really doing a service to the Territory of Hawaii. We branch to the taxpayer. When you add the salaries together begrudge them the salary of say $17 a day but do you know, and the expenses of the legislature it does not compare in Mr. Chairman, that those people come to work at 7:30 or dollars and cents with the executive branch or the judiciary. 8:00 o’clock and they don’t go home until 3:00 or 4:00 o’clock Now I feel that we’re going way out of line to say that for the next morning, that again the next day they’ve got to get the next ten years at least, until there’s another Constitu to the legislature and report to the legislature at 8:00 o’clock tional Convention, the legislature shall be restricted in its and sometimes they are excused for another hour at 9:00 expenditures to $1,000 a day per house, and we’ve made no o’clock and they work throughout. Many of them work for provision in there for the expenses that carry over after the fourteen, fifteen, sixteen hours a day doing the work of the legislature has adjourned, and there is a great deal of clean legislature. up work that needs to be done. So I feel that the original Now you have seen some of the stenographers here in paragraph should be deleted and I speak in favor of the this Convention work. I understand that some of our clerks motion made by Delegate Fong. do not go home until 1:00 o’clock in the morning or 12:00 I’d like to add one more word. I am neither a member o’clock at night. Now, do you begrudge these people paying of the legislature nor a prospective one and those who may them $17 or $20 a day for doing work which ordinarily will feel that the members of the legislature are speaking from require three people’s time to do the work? personal interest—because I do believe you’re doing them Now as Speaker of the House I feel that those people who an injustice when you do that—they are speaking from ex come to the legislature to work for sixty days only—remem perience. But certainly you cannot apply that criticism to ber this is not permanent work, it is temporary work, work my opposition to this paragraph. for sixty days —working during those long hours of the day, they are really doing a service to the Territory and I can’t LAI: I want to ask the Convention one question. Can you see how we can set a limit on the amount of pay we are tell me sincerely, that the help for the last legislature, half going to give those people, aside from the economic factors of them are useless and not necessary? Now, if you can’t in the community. answer the question, I hope you vote to delete this paragraph. DOl: I am in agreement with the ideas expressed by the RICHARDS: I would like to point out something here. amendment. Yesterday after Delegate Tavares’ amendment We’ve been talking a great deal about how the payroll has to the amendment was defeated, I cannot see how we can been padded. In this sheet that was prepared by the Legis vote for this amendment as is in the present form. Delegate lative Reference Bureau that was discussed the other day Tavares’ amendment was to meet the fluctuation in the value when we took our previous action, there was one line that of the dollar. Now that that has been defeated there is no wasn’t pointed out, I think inadvertently, but that is the line, sense - - reason why we should vote for the amendment in “Percentage employee cost to total cost.” In 1929 it was 246 LEGISLATIVE POWERS AND FUNCTIONS 63.8 per cent. In 1949 it was 63.4 per cent. In other words, in the last session. I do believe that economies could have all the costs have gone up and it hasn’t been just the padding been practiced, but I do not believe that such a provision of payroll that seems to be indicated here. belongs in the Constitution. ASHFORD: I would like to say that I voted against this TAVARES: As one of those who advocated this amend amendment yesterday because it seemed to me clearly a ment and voted for it, I think I owe this Convention and restriction that should not be in the Constitution and I fol myself an explanation if I vote contrary, which I’m going to lowed the reasoning that has been discussed here on the -- do. I believe very strongly in the principle of what this floor repeatedly, but this morning I voted against reopening thing is trying to accomplish but I have now been convinced it because I am very much concerned by the apparent grow by talking to others and thinking the matter over myself ing tendency to reopen what has been amply discussed and that there are so many holes in it anyhow that I don’t think voted on. it will accomplish its purpose. However, I want to say that I can’t help but feel that this ARASHIRO: As I have stated yesterday that I thought that Convention has demonstrated that by pooling employees and the intent of the amendment was a very good one except that by choosing more competent employees they can save money. I had a grave doubt in myself whether the $1,000 was suf I do believe there is substantial ground for improvement in ficient, but after thinking it over and voting for it I prefer the legislative expenses, and without trying to point the the legislature to be a legislative body and not an employing finger at any one I do believe that our legislature owes it to body and that is the reason why I thought maybe the printing the public now and in the future first of all to choose more and other jobs can be contracted out to some contractor and competent help. We won’t resent paying help that’s really we need not worry about how long the clerks work or how competent. We do resent, for instance, employing clerks late the clerks work and we could get away from that who leave out a whole line when they’re checking and don’t worry and forget about employees completely. pick it up, which has been my experience. Have it picked I also made a suggestion that maybe we’d rather have the up after the law has passed and sent to the governor. Even Civil Service Department or the Unemployment Department in engrossing that has happened. That was not the job of of the government to furnish us with the employees that are competent clerks, it was the job of some clerks who at necessary, and the $1,000 that was limited to us was for times were not fully first class stenographers. I am not the caring of the chief clerk and other employees or officers pointing the finger at any clerk either. That type of clerk that were of that particular profession. That is the reason should be given a clerkship other than engrossing and things why I voted for it and I still think that we can go by with it, like that. But I do say there is plenty of grounds for taking except if some amendment should be made, then I would out some of the water and I believe that this is going to have vote for it. But I’m still in favor of the intention of that some effect in that respect. amendment and if that amendment is killed I prefer the em I am going to vote now to delete the amendment because ployment part of the legislative body will be completely I am convinced it would not accomplish its purpose. divorced from the legislature and some other agent should handle that. APOLIONA: I voted against this amendment yesterday for two reasons. First, because I believe that it is purely KELLERMAN: If there is no one else who would wish to statutory and secondly, the proponents of this amendment speak I suppose I - - Mr. Rice has granted that I may close referred oaly to the compensation of the hired help. Why the debate since this paragraph was originally my motion. is it so that no reference was made to the cost expense of MAU: I desire to speak if the lady desires to close the carrying out the work of the legislature, and that is paper debate. costs, pencils, ink, and so forth. I would contend that the proponents of this amendment know that the cost of the CHAIRMAN: The lady has yielded, Delegate Mau. different items necessary to carry out the successful work MAU: Thank you. There’s been a remark, Mr. Chairman, of the legislature varies and so does the hired help vary. that the lady always wants to have the last say. And in response to my good friend Delegate Rice from Maui saying that the California hired help costs - - compensation CHAIRMAN: Housewife polkicians yesterday. is much less than the Territory of Hawaii, I would say that MAU: There’s been no answer given to the figure, for our people here are much better than the people in California. instance, that was used yesterday and is on the sheet that NIELSEN: In this large book it says, “The temptation was furnished to show why in the legislative session which to reward the politically faithful and to repay political favors lasted for sixty-three days, for instance, one of the officers, through appointment to legislative office or employment has the sergeant-at-arms, was present for one hundred and forty- resulted in the establishing of both constitutional and one days. However, I don’t believe that there has been any statutory limitations on the legislature’s power to choose padding of payroll. I agree that there possibly have been its officers and employees,” and in the Lord’s prayer if raisesin the salaries of the various employees due to the says, “Lead us not into temptation.” I think we ought to high cost of living. lead the legislators away from temptation. But I think essentially we must come down to this basic point that this paragraph does not belong in the Constitution. ARASHIRO: One more word I want to inject over here There have been many of us who have argued that the Con is that k’s hard for a politician to correct its own evil and stitution should be a concise document, that legislative a non-political assembly of this sort may be able to help. matters be left to the legislature. I think that we must look Because I had an experience in the legislature where people at it in this sense, that if we disagree with the enormous from Kauai came over specially to work in the legislature amounts of money that may be spent for legislative employ and the number of jobs that we were entitled to were limited! ees during the sessions, then we must place that responsi and we only can give so many jobs, but the moment we gave bility upon the legislators. After all they are elected by the to the one that we thought were most qualified, the one that people and let them carry that responsibility. By voting to couldn’t get the job went back and sald I was a no-good delete this it does not mean that I give my consent or agree legislator and everything that I did in the legislature was to a total of close to half a million dollars that was spent no good. Maybe they’re right. I don’t know. But if we can JULY 8, 1950 • Morning Session 247 have something that we do not have to go into the employ on the theory they’ll get them all because we can’t tell which ment business, then I think this will be something good for ones are guilty of this, then I think you are mistaken. The the legislature. And that is the thing I want to prevent, I citizens don’t act that way, they would be unjustified in act don’t care how it is done, but I’d like to have something in ing that way. I had it from one of the members who has that line to correct that sort of a thing. proposed the deletion of this amendment only yesterday the flat statement that the memory of the public is very short KELLERMAN: May I answer some of the points that have and if you make friends with them in the interim between been made against my proposal and I think there are answers anything that occurs in one session they don’t like, they to every point that has been made. I’ll begin with number one. are very, very prone to forget it by the next. No figures have been given to support the reasonableness I think the last point made that this is statutory only, I of the figures of $1,000 per house per calendar day. I don’t give you gentlemen an example of what you can expect from think we need a complete breakdown for the future to obtain a legislature curtailing its expenses by statute, if you have’ those figures. I call to your attention one more time, be had ears to the ground or to the ceiling or just in the middle cause it has been misunderstood and misunderstood by the of the room in the last 24 or 36 hours, I think you will note press also in one instance, we are running this Convention that there has been a great deal of work to obtain a neces with 63 delegates, 78 employees, paying rent, paying for a sary vote of 32 to 34 people to get reconsideration of this loud speaker system, paying for all of our supplies for less proposal and that work has been done by the legislators. than $1,200 per day. That includes the salaries of the 63 Some of them, I shall not include all. I think that certainly delegates, it includes all supplies, it includes rent, it in— points very clearly the fact that the legislators need the help cludes loud speakers and it includes the salaries of the 78 of others than themselves to clear their houses. I do not employees. I think they’ve done an excellent job. Admitted believe the citizens’ body are capable of doing it as well as ly they have worked hard and they have worked overtime. this body. That leads me to the second point. I think the first point For that reason, those many reasons, I feel the proposal is answered. The second point, my proposal to limit the that was introduced and adopted yesterday was well thought expenses was not directed against the per diem pay of those out and was well adopted, and I would ask that you defeat who worked and performed their jobs. I know they work over the amendment to delete. time. I know they come early and they stay late. I know it Before I sit down I’d like a ruling from the Chair on one would be impossible to fix a classified pay for people who point. If by any chance this proposal - - the amendment - - work on that type of schedule and that wholeheartedly. I I beg your pardon, the motion to delete carries I propose to know there are many others who do not work that way. It introduce a second amendment. Will that be in order under was directed against an overall which includes the many the ruling that we now have Section 11 before us? who are not capable and efficient and working in that manner and it includes those who, according to the schedules of pay CHAIRMAN: Relating to what section? ment, have been paid for days as much as sixty days in ex cess of the length of the full session, including the calendar KELLERMAN: Relating to the same subject. days within that session. On the work, I think Mr. Fong CHAIRMAN: Well, if it is just a re-hash of what we’re brought out the point that those who worked so hard worked voting on it would be out of order. only sixty days. That’s one reason that I mentioned the ex tension of time. In many cases I must believe that extension KELLERMAN: It is not, Mr. Chairman. is not and cannot be justified. CHAIRMAN: Well, the Chair will say it would be in order On the point of this being the least expensive of three of then. the branches of the government, I think that argument is extremely weak. As also was pointed out yesterday, the LYMAN: I heard a figure of $1,200 per day mentioned. I amount of money spent by the legislature on its own expenses am a little curious as to how that figure was arrived at. It is something like one-twentieth of one per cent or one-tenth seems to me that the average cost per day that we were paid of one per cent of the total amount appropriated. Ladies was $1,000 a day for the delegates alone and I can’t understand and gentlemen, the Congress of the United States is about how the $200 would cover the cost of all other help, plus all to adopt an appropriation bill for one fiscal year of twenty- other expenses. eight billion dollars. I wonder what per cent of that the CHAIRMAN: Delegate Castro, you have those figures? Congress of the United States costs and if that makes to you any sense as an argument whatsoever, If I put my hand in CASTRO: I gave Delegate Kellerman some figures. The your pocket and take out ten dollars I am guilty of stealing, Convention has or will by July 15th have spent $181,000. whether it’s ten dollars or $10,000. It is not a question of Those figures can be broken down to three items; $136,000 diminumus, it is a question of if we are paying more than which is the balance of the appropriation available to us for we need to pay and we are paying it for political patronage, the running of the Convention, $30,000 which we received let’s cut it out. It isn’t a question of the dollar value. from the Governor, and an additional $15,000 which we re Now the question has been brought up also on “leave it ceived from the governor; $181,000. The pay of the dele to the citizens to correct the evil.” I think that’s a very gates—and this is the point that needs correcting—the pay excellent idea. I would like for all of the citizens to know of the delegates is $63,000. We have run - - by July 15th the evil. I would like for them to carry it in their minds we will have run one hundred days. If you subtract the pay long enough and have the ability to direct it against the of the delegates from the $181,000 you’ll get $118,000 for legislators who are responsible. I would like to ask the 100 days, which is $1,180 cost for this Convention exclu proponent of that idea how are the citizens going to know sive. Now, if you add the cost of the delegates it is still which legislator is responsible. He’ll never get it from a under the $2,000, it is in fact $1,810. confession of the legislator and he will always get the Now, I gave Delegate Kellerman a round figure, the $1,200 answer that it wasn’t my doing, it was everybody else. And was without the salary of the delegates, and I wish to apologize if you suggest that the citizens can turn down at the next polls for giving her the incorrect figure because it was quickly every member who was elected in the preceding legislature arrived at. 248 LEGISLATIVE POWERS AND FUNCTIONS However, this does not shake the point of view and the argu service examination, and shall be supervised by the ment that Delegate Kellerman brings forth which is that this secretary. Convention With its volume of work has proceeded in one DELEGATE: Second the motion. hundred days of work at the mean cost of $1,180 per day which is just short of $1,200. KELLERMAN: May I make a slight correction in the draft which you have on your desks before we start discuss CHAIRMAN: The Chair will put the question. ing it? DELEGATE: Question. CHAIRMAN: Has the amendment been seconded? CHAIRMAN: The question is on the motion to delete the CASTRO: I’m waiting for the chance to second. paragraph and that relates to the paragraph the Chair will read: KELLERMAN: Insert the word “executive” before the word “secretary” in each of the three places in which the In no case shall the total expense for officers and em word “secretary” appears. That’s line one, line six and ployees for each house exceed the sum of $1,000 per calen line eight, “executive secretary.” dar day during any general session, nor the sum of $500 per calendar day during any budget or any special session. CHAIRMAN: It would read “an executive secretary.” FONG: Roll call. KELLERMAN: “There shall be an executive secretary,” CHAIRMAN: A roll call demanded? Voting aye will favor and then in the other two places the preceding word is “the” so that will not have to be changed. The word “executive” the deletion of the section which was adopted yesterday. Clerk appears before “secretary” in line six and again in line will please call the roll. eight or nine, whichever it is. Ayes, 35. Noes, 19 (Akau, Arashiro, Castro, Dowson, Ka HEEN: Shouldn’t that be “legislative secretary”? nemaru, Kawahara, Kawakami, Kellerman, Larsen, Luiz, Nielsen, C. Rice, H. Rice, Serizawa, A. Trask, J. Trask, CASTRO: I second the motion to adopt the amendment as Wirtz, Wist, Anthony). Not voting, 9 (Bryan, Crossley, Ihara, changed by the movant. Lee, Mizuha, Ohrt, Phillips, Silva, Woolaway). KELLERMAN: If I may, I wish to speak very briefly on The paragraph is deleted. this. I don’t think the point need to be belabored. KELLERMAN: I have another amendment that I’d like to I think all of the expressed opposition to my preceding make to Section 11. proposed amendment, which was eventually deleted, went to the fact - - two facts. One, that it would be impossible CHAIRMAN: Has it been printed? to estimate in advance what expenses, what the employees’ KELLERMAN: I have it here for distribution. While it’s compensation might necessarily become due to fluctuating being distributed I will read it; Section value of the dollar. Also that it was bad constitutional drafting to write into a constitution a maximum dollar figure There shall be an executive secretary of the legisla which would be very difficult to amend were that found to be ture - - inadequate due to now unforeseen circumstances either in CHAIRMAN: Delegate Kellerman, wouldn’t it be a good volume of work or in the value of the dollar. idea if we distribute this? The Chair could declare a few My proposed amendment deletes all reference to money. minutes recess while it’s distributing. It incorporates the expressed statement of almost every speaker who spoke against the preceding amendment that (RECESS) he was deeply in sympathy with the idea of curtailing legis lative expenses where they were unjustified, that we need KING: I move that we take a recess until 2:00 o’clock persons who are qualified to perform the work and those un p.m. qualified should not be employed, that we needed to put this on a much more businesslike basis.! It seems to me my CHAIRMAN:. All in favor signify by saying “aye.” Con proposed amendment accomplishes all of those expressed trary. So ordered. beliefs, intentions and ideas. You will notice that this provision would anthorize the Afternoon Session selection by both houses of the legislature, in the same manner that it appoints an auditor, to select an executive CHAIRMAN: The committee will come to order. secretary who shall serve for a term of eight years, there HEEN: At the time we took the recess this morning we fore will not be subject to pressure by any one legislature, were considering an amendment that was offered by Dele which was our reason for putting an eight year term for the gate Kellerman. auditor. He would serve as what I would call an administra tor, a business manager of the legislature to get away from CHAIRMAN: It has now been printed and is on the desks the evils of the political system of patronage, to get away of the delegates. You offer that amendment, Delegate Keller- from unnecessary expenditures of the tax doilar. man? I think it may amuse the delegates and also be a point KELLERMAN: I offer the amendment, Mr. Chairman. of interest that it has long been recognized that just plain political patronage is an evil of the political system. I Section_. There shall be a secretary of the legis have often heard it expressed that it is unfortunately a lature who shall be selected by the legislature in the necessary evil. I would put that “necessary” in exactly same manner as the auditor and shall serve for a term the same position as the arguments that were made against of eight years. All employees of the legislature other women being given the vote when I was a child. I remember than the chief clerk and sergeant-at-arms of each house it very well. I wasn’t too young, rh admit that. shall be appointed by the secretary from lists of those who have qualified for the respective positions by cWil CHAIRMAN: How old is the delegate? JULY 8, 1950 • Afternoon Session 249 KELLERMAN: Old enough. I don’t mind, we can cail after the word “position,” “by an examination given by the that personal privilege. I would just as soon tell you, but civil service department.” the point is this. I lived in a small town in Virginia and be fore women were given the vote, election day was a day CHAIRMAN: That’s already in, is it not, Delegate Ara when women and children stayed off the streets entirely. shiro? The men went to the polls, many of them got drunk. There ARASHIRO: No, the addition I am making is that “by an were a great many fights around the polls, the election examination given” and then goes on “by the civil service booths therefore were no places for ladies. During the department.” evening there were torch light parades when the returns came in and there was more drinking and there were more CHAIRMAN: It seems to be substantially the same thing fights. Now perhaps none of that ever occurred in the to the Chair unless you can enlighten the Chair. Is that Paradise of the Pacific. It occurred in the good old states not right? of Virginia and North Carolina. KAGE: I was going to second that motion. May I explain Those very reasons were used against women getting the a little further on that? vote. They were necessary evils of the political system. CHAIRMAN: Will you please explain the difference? On election day no lady who justified the title would be caught dead at an election booth because she would be dis KAGE: As it is here in the amendment here, these em graced to be in the presence of such drinking and such un ployees will become members of the civil service system couth behavior which always went on. May I point out that of the state. But if you have it the other way, they take the since women have been given the vote the election booth examination from the civil service department but are not has changed its character. It is now the place where chil members of the civil service system. dren play all day with the campaigners’ cards and have a beautiful time. I’ve seen no fights, I’ve heard no obscenity, KELLERMAN: I think I was asked if I would accept that and it is all very well behaved. I think the evil of patronage amendment. May I speak on that point first? I think we in the legislature can go the same way as the disgraceful might arrive at that proposal, which I think is a very good election booth. one, by a slightly different change of language there. If we CASTRO: This gives to the delegates of this Constitution say “respective positions by examinations prepared by the al Convention a chance to show the way to all of the sister civil service department and given by the executive secre states where they in their own time have failed. This attempt tary,” then that takes it entirely out of the civil service is not new. If incorporated into the Constitution it will be authority, and it also gets away from the difficulty of classi new. It will be the first incorporation into a constitution of fication and classified pay schedule which you will observe its type, but to show you that the thinking is not new, I would in my amendment I have not proposed realizing that em direct your attention to the fact that Wisconsin’s Constitution ployees of the legislature work under such extremely differ provides for selection of staffs - - only provides for election ent conditions from ordinary governmental employment. of presiding officer and chief clerk, and then a statute was The usual even part-time employment for the government followed up on the basis of a recommendation by the Conven is so many hours per day but throughout the year, it is not tion that the staff of the legislature should be chosen on a limited to intensive work of 17 or 18 hours a day for two merit basis. Now, that was Wisconsin’s attempt to solve months, so that I have carefully omitted any reference to this situation of political patronage, milking the public fund. classification or pay schedule. And I think to make it even California, the state which has given a great deal of atten more clear that this does not place them under civil service, tion in these latter years to the expenses that result from if we say there “respective positions by examinations pre political patronage, has in its Constitution a rather newer pared by the civil service department”—if that’s the proper amendment to the Constitution, the requirement that the word; I don’t know about the word department —“and given legislature so far as advisable will select its employees by the executive secretary.” and attaches under the provision of the law governing civil CHAIRMAN: The Chair was going to suggest to Delegate service, but the direction of the Constitution has never been Arashiro if the following - - followed by the legislature. And while I have not had the time to investigate into the debate of that particular - - when KAGE: According to the amendment there, it calls for a that amendment was adopted, I feel sure that those voters who civil service department or civil service system. We do could have gone along with a stronger provision were lulled not have a civil service system in our Constitution. I think away from it on the basis of the legislature will provide in it’s wrong. I think it should be amended in this particular view of the sentiments of the Convention. fashion; strike out the words “civil service” and after the Now six other states have attempted to meet the problem word “examination” insert “as may be prescribed by law,” and their legislative session - - the provision in the legisla because you cannot call for an examination from a body tive session as to what the merits shall be have always which has not been created. And it serves the same purpose. failed. So, I think the delegates, if they feel that they would like KELLERMAN: I think then if that language is advisable perhaps to take an initiative in a new and rather prideful we have to say “who have qualified for the respective positions attempt to aid the citizens, whom all of us sooner or later under a merit system by examination as may be prescribed have come around to saying we represent, in having his tax by law.” “Under the merit system by examination as may be dollar spent wisely, then a provision - - the support of such prescribed by law” - - “Such examination as may be.” I an amendment would not only be wise in my estimation but would appreciate any further thinking on phraseology from on the basis of the statistics and the information we have, the delegates to arrive at what is obviously what we’re would indeed make history. trying to get at. I don’t know just the language to put it in. ARASHIRO: If it’s acceptable to the proposer of this CHAIRMAN: The Chair will suggest this language to amendment, I wish to offer an amendment to this amendment Delegate Arashiro. If you will examine the line, third by the insertion of the following words in the seventh line from the bottom of the proposed amendment, if it should 250 LEGISLATIVE POWERS AND FUNCTIONS read “for the respective positions by a civil service exami CHAIRMAN: She did not welcome an amendment such as nation which shall be supervised by the secretary,” would Delegate Richards gave. that meet the delegate’s point? “By a civil service exami KELLERMAN: I welcome the amendment of phraseology nation which shall be supervised by the secretary.” to bring out the point which we were trying to word. It had C. RICE: I don’t think this amendment is going to accom nothing to do with the election by the public body, I mean by plish anything. I don’t think so. the public at large of the executive secretary of the legis lature. HEEN: May I ask - - rise to a point of information. What amendment is the speaker talking about? The last - - KAUHANE: That being the case, I’d like to move that, if it is proper at this time, that this proposed amendment C. RICE: I am talking about the one under consideration. offered by Delegate Kellerman be referred to the Committee on Miscellaneous Affairs. HEEN: The one proposed by Delegate Arashiro? CASTRO: When I seconded this motion I was prompted C. RICE: No. to make a remark which I thought possibly would be con HEEN: Oh, the whole thing. sidered impertinent, so I didn’t, but in view of the ham string ing tactics going on at the moment I would like to make a C. RICE: Delegate Kellerman. statement; that the defeat of the previous amendment was CHAIRMAN: The delegate is talking about Delegate Keller- based, with prefacing statements of sympathy with the atti man’s amendment to which there has been a suggestion of an tude of the amendment, but the opposition was placing amendment. dollars and cents in the Constitution. Now here is an amend ment which tries to go to the same evil, the same trouble, C. RICE: Nobody is going to say how many employees there and I find that the speakers who were speaking against the are. You talk about the governor being all powerful, the secre amendment on the basis of dollars and cents are now finding tary of the legislature is going to be the next all powerful. It’s a new way in which to trip up an honest attempt to - - not going to curtail expenditures, just has someone to appoint. I was chairman of the Ways and Means Committee for several RICHARDS: I rise to a point of personal privilege. Are years. I always took a qualified man for my clerk. You mean those remarks directed at my remarks? to tell me that some administrator is going to send me a list, CASTRO: They’re not directed to your remarks. I’ve got to pick one from that? I can’t see that this is going to accomplish what we want. We want to hold down the expendi CHAIRMAN: Will you please state your point of personal tures of the legislature. I don’t think Mrs. Kellerman is getting privilege, Delegate Richards? You are recognized. at it the right way. I am opposed to this amendment. RICHARDS: I made my point. It was the fact that the remarks sounded as though they were directed to my re LAI: As I see it here the position of the secretary will be marks. I have been apologized to, or rather stated that a permanent position. Now what is the status of — - are they they were not directed to me, therefore the point has been all permanent? cleared. CHAIRIVIAN: Well, they’d be temporary employees, to serve CHAIRMAN: Proceed, Delegate Castro. during session presumably. CASTRO: Possibly it would be better at this time to ask LAI: I am not saying I’m for it, but I think something to if it is really the sense of the delegates of this Convention this effect “to serve during the term required” or “during the that some provision should be put in the Constitution to try time required.” to - - RICHARDS: I would like to move an amendment to this FONG: Out of order, Mr. Chairman, out of order. amendment, if the proponent would accept it. Instead of the words “selected by the legislature,” delete those words and CHAIRMAN: The Chair’s inclined to agree, Delegate insert “elected by the qualified voters of the state.” Castro. The question is on the amendment. The Chair would like to get straightened out, if it could, the status of FONG: Second the motion. the proposed amendment. RICHARDS: If I may speak on that point? This particular KING: My understanding is that the amendment suggested little Napoleon - - by Delegate Arashiro and in essence accepted - - CHAIRMAN: Mr. Richards, may the Chair get the parlia CHAIRMAN: That’s what the Chair wanted to get straight mentary situation - - ened out. KELLERMAN: I do not accept that amendment. KING: - - by Delegate Kellerman - - CHAIRMAN: I didn’t think you would. The Chair wants to RICHARDS: Mr. Chairman, may I - - get the parliamentary situation straightened out. As the Chair KING: Let me finish, please. understands there was an amendment proposed by Delegate Kellerman to which there has been an amendment suggested CHAIRMAN: Delegate King has the floor. by Delegate Arashiro. Th& Chair would like to get straightened KING: Let me finish. out the status of Delegate Arashiro’s amendment before enter taining your amendment. CHAIRMAN: Will you please give the delegate the floor, Delegate Richards. APOLIONA: I appeal to the ruling of the Chair. Delegate Kbllerman has already stated her cause to this Convention KING: There was a further suggestion from Delegate by saying that she welcomes any amendments to her amend Kage, but as a matter of fact there’s no concrete amendment ment. I think Delegate Richards is offering an amendment to Mrs. Kellerman’s proposed amendment before the Con to this amendment. He is perfectly in order. vention. So in that case Delegate Richard’s amendment is JULY 8, 1950 • Afternoon Session 251 in order. In other words, there’ve been suggestions and KELLERMAN: I’m sorry. suggestions on top of suggestions. Now if Delegate Arashiro, Delegate Kage and Delegate Kellernian can get together and CHAIRMAN: - - the statement is being addressed to you. suggest to the Convention what language they would like to AKAU: I was wondering if you actually meant these words put in there after the words “respective positions,” then because in view of the fact that it takes a great deal of time we’d have something concrete to discuss. to correct examination papers - - CHAIRMAN: The Chair’s understanding was that there DELEGATE: Address the Chair. had been a proposed amendment by Delegate Arashiro, which was seconded by Delegate Kage and it was in indefinite AKAU: I was wondering if you would eliminate “given form, and the Chair was trying to find out what the purport by the executive secretary” the first time. In other words of the amendment was. have what you have there, “by the civil service commission,” and that’~ the idea. The civil service commission would KELLERMAN: I rose to that point. prepare the examination and give it, but then the work itself RICHARDS: In order to clear the atmosphere I’m willing would be supervised by the executive secretary. Isn’t that to withdraw my amendment temporarily until the other point actually what you meant? has been decided. CHAIRMAN: Do you care to comment on that, Delegate CHAIRMAN: Very well, it has been withdrawn. Kellerman? KELLERMAN: May I suggest this language then. Line KELLERMAN: I am trying to arrive at a basis by which nine, “the executive secretary, from lists of those who have these examinations will be given - - prepared and given on qualified for the respective positions by examinations pre the merit basis and not bring the employees under civil pared by the civil service commission and given by the service. That’s the only - - I’m trying to arrive at a method executive secretary, and shall be supervised by the execu of expressing just that. tive secretary.” I am very much afraid to leave to the - - CORBETT: Pd like to ask a question. I don’t understand CHAIRMAN: Would you locate that amendment? The what the objection is to these employees being under civil Chair did not follow it. I’m sorry. service. As I understand civil service, any employee is paid a full day’s wage and then time and a half for overtime, KELLERMAN: After the word “positions” in the eighth and so objection to the long hours seems to me to be out of line, I think it is, or seventh, insert the words “by examina line. I wonder if there is any other objection to their being tions prepared by the civil service commission” —if the word members of the civil service? It seems to me a very sound commission is wrong, I’d like some one to correct that, I basis for setting up this group of workers. Certainly those don’t know the departmental setup—”by the civil service people who are habitually employed by the legislature would commission and given by the executive secretary, and shall,” be at the top of every list because of experience and ability then the rest of the language follows as was originally pre and some of the people who may wish to get on that list pared. would have an opportunity to do so. That list would be con My reason for not accepting the language, “as may be stantly available to an executive secretary such as is set up in prescribed by law” is because with the obvious dislike at this prpposal. I would like to ask the delegate who made least of the present members of the legislature, many of this proposal, and is in the process of amending it, if there them, and the direction which that leads my thinking, I can is any other objection to the employees being on the civil see how the legislature could defeat most of this by not service list. prescribing any examination if left to them by law. So I think perhaps it’s better to spell it out. The civil service CHAIRMAN: Well, it’s not a permanent position, you commission would prepare an examination. It would be understand. given by the executive secretary who would do the grading CORBETT: Do they need to be permanently employed to and the analysis of it. It would not come under civil service. be on the civil service list? That is not my understanding. It would not be passed by civil service. CHAIRMAN: Delegate Kellerman, inquiry from the Chair. CHAIRMAN: The Chair understood that they won’t fall Then the language, “by civil service examination and shall be under any classification system. Delegate Kellerman, do supervised by the executive secretary,” would be deleted, is you care to answer that? that correct? KELLERMANf That’s the reason I had left out the classi KELLERMAN: No, Mr. Chairman. After - - I will read fication system, because 1 thought there were too many prac again beginning with the word “position,” “by examinations tical difficulties. I think the civil service could certainly prepared by the civil service commission and given by the prepare the examination and they could - - but I had been led executive secretary, and shall be supervised by the executive to believe by someone who knew more of the civil service secretary.” Your confusion probably arises, the supervision than I that you have difficulty with your classification where means their work shall be supervised by the executive secre your workers work at such unusual hours and under such tary. The other phrase is an insertion that would come in difficult citumstances and different from the usual system, lieu of the word “by civil service examination.” that you’re just running into a headache and that it won’t be CHAIRMAN: Is that acceptable to Delegate Arashiro? practical, and I was trying to make it practical. I had no personal objections. AKAU: Point of information. I wonder if Delegate Keller- man means exactly what she’s saying here. In view of my KING: Let me say frankly that I’m opposed to this amend experience in correcting examination papers, being on one of ment. Nevertheless, I would like to insist on clarifying the the civil service committees, it does take a great deal of time, language so it may be presented to the committee in some Delegate Kellerman. form that they can vote for up or down. When we refer to a civil service commission, we’re referring to an organization CHAIRMAN: Delegate Kellerman, - - that does exist today but may not exist under the state, that 252 LEGISLATIVE POWERS AND FUNCTIONS is, it has not been re-established by law. We’re referring SAKAKIHARA: I second the motion. to an agency that has no being insofar as the Constitution TAVARES: May 1 explain that my amendment has this is concerned. It seems to me the language that I think the effect. If the members will look at the old Section 10, they Chair suggested, “who have qualified for the respective will find that I have deleted the words “position” and “of positions under a merit system subject to an examination,” profit,” so that the first sentence reads, “No member of or something of that sort, “to be given by the secretary,” the legislature shall hold any other public office,” that part; and not refer to any agency of the government which now then further on I have provided, “nor shall he, during the exists and which may or may not exist under the state of term for which he is elected or appointed, be elected or Hawaii. appointed to any public office or employment which shall Now, in view of the difficulty in arriving at satisfactory have been created, or the emoluments whereof shall have language, I’d like to move that we defer further action on Sec been increased, by legislative act during such term.” tion 11 at this time and go to Section 10 and Section 22, both Now, Mr. Chairman, I believe that if you disqualify of which are pending. There’s an amendment that Delegate members of the legislature from holding office rather than Tavares has ready and has had distributed to Section 10 which employment before they take office, you can leave to the seems to be one on which there may not be much contro legislature any further disqualifications the legislature may versy. So I move now, Mr. Chairman, that we defer action want to lay down as a condition of public employment. It on Section 11 for the time being and take up Section 10. can be taken qare of by statute. BRYAN: Second the motion. Now, furthermore, the second paragraph of my amend ment removes some of the objections or most of them which SAKAKIHARA: I would like to ask the introducer of this were made that the original provision disqualifies a legisla amendment - - tor from holding any office, position or employment of profit. CHAIRMAN: Delegate Sakakthara, the motion is on the It, for instance, included notaries public and reserve officers deferment whiôh has been seconded. and so forth and my amendment would exclude from the dis qualifications notaries public who just get fees for work they SAKAKIHARA: I apologize to the Chair. I thought the second was not recognized. do from time to time paid by the parties concerned and who don’t get salaries or money from the government, reserve CHAIRMAN: The second is Delegate Bryan. Are you officers of the police who now are very important and will ready for the question? All in favor of deferment, signify be increasingly so as the need for security inCreases —and by saying “aye.” Contrary. Deferred. who don’t get paid by the way, Mr. Chairman, as I understand KING: May I ask the committee now to call up Section it —and reserve officers of the armed forces of the United 10? States. Some of our legislators are reserve officers and they cannot resign, as I understand it, Mr. Chairman, with HOLROYDE: I move we consider Section 10 at this time. out the consent of the United States authorities in some BRYAN: Second the motion. cases. Finally, I think it important that we encourage people to go into our state militia or national guard particularly at ROBERTS: May I have that put again, please? Are we this time, and so I propose to exempt them. And, in defer’ going to reconsider Section 10? ence to the atomic bomb and other weapons of the day, and the tidal waves and so forth, I’ve also proposed to exempt CHAIRMAN: No, consider. That has been deferred. members of the emergency organizations for civilian defense Section 10 was deferred by prior action of this committee. or disaster relief. I think, Mr. Chairman, there is ample Am I not right in that, Delegate Heen? ground to exempt all those. HEEN: That’s correct. There was a motion to adopt The only one I can think of any objection to would be the Section 10 as written in the proposal and that was seconded. officers in the state militia or national guard, but I believe Now it’s up for amendment or whatever action the committee they’re high officers, they probably won’t run for the legis may decide. lature. I can’t imagine the general in charge of the national guard running for a legislative office. CHAIRMAN: What is pending before the body is a motion to adopt Section 10 as prepared. It’s open for amendment at APOLIONA: Second the motion. this time. RICHARDS: Point of information. In line three, the sen TAVARES: I move to amend Section 10 so as to read as tence reads, “during the term for which he is elected or set forth in my amendment which is on the desks, entitled, appointed.” I raise the question, would this prohibit a judge “Proposed amendment to Committee Proposal No. 29, Sec from resigning his position as judge and accepting the attor tion 10,” and bears my name at the bottom thereof and the ney generalship, or would this prohibit a senator whose date of July 8, 1950. term has not expired from resigning and accepting a cabinet Section 10. Disqualification of members. No member position of the governor? of the legisl3ture shall hold any other public office, nor shall he, during the term for which he is elected or ap TA VARE S: As I understand it, Mr. Chairman, the way pointed, be elected or appointed to any public office or this is drawn it doesn’t apply to judges at all unless the employment which shall have been created, or the emol judges - - Well, as far as the judges are concerned, their uments whereof shall have been increased, by legisla right to run for office is taken care of in another section tive act during such term. under judiciary, entirely separate. But these are legislators This section shall not apply to the offices or employ and unless the pay has been increased or the job created dur ments of notaries public, reserve officers of the police, ing the legislator’s term, he could resign and take the office, or of the armed forces of the United States, members of but if the office had been created or the emoluments had the State Militia or National Guard, or members of been increased by legislative act during his term, then he emergency organizations for civilian defense or disaster would be disqualified during the remainder of his term relief. from taking those particular offices. JULY 8, 1950 • Afternoon Session 253 RICHARDS: I raise this particular question because of I don’t think it’s necessary to put that provision for employ the fact that it will be perfectly possible to perhaps create ment in, otherwise you, as they say, you’re going into very a new department within the government during the time great legislative detail. when a senator is a holdover member or rather would be a holdover member. Now the newly elected governor may KING: One small change of language, which I’ve discussed desire that man’s services. Now, is that man disqualified with Delegate Tavares. Where the second paragraph reads, from accepting that position? Also the same point might be “This section shall not apply to the offices or employments true of a judge. They might raise the attorney general’s of notaries public, reserve officers of the police or of the pay, or they might create some other job. Now, if he is armed forces of the United States,” in the reserves of the appointed for a six or seven year term, does this language United States there are more than officers, there are a lot preclude his resigning his particular position and accepting of enlisted personnel who are members of the reserve of the such other position? armed forces. So I suggest that in the third line of paragraph two, after the word “or,” insert “or members of the reserves CHAIRMAN: The prohibition is addressed to the members of the armed forces of the United States, the state militia or of the legislature, Mr. Richards, not to judges. national guard.” RICHARDS: Well, if he is a senator then. Let’s go back TAVARES: I accept that amendment. I ask my second to to just the first part of my remarks. accept it also. PORTEUS: As I understand this provision, it is the design CHAIRMAN: “Members of the reserves,” is that it, Dele of such a provision to prevent a member of the legislature gate King? or a holdover senator to push for the creation of a new posi KING: I would like permission to check the official desig tion in order that he may be able to have it. He can assist nation and submit it to the Committee on Style, but it’s merely in the creation of new departments and new positions, but he to broaden that clause to include not only the reserve officers knows at the time that he does it he cannot hold it until after but reserve enlisted personnel of the Army, Navy and Marine his term of office has expired. That’s to prevent a legislator, Corps Reserve. after a number of terms, deciding that he hasn’t a job in prospect and having other friendly legislators join him in CHAIRMAN: Subsequent to your suggestion, would delete creating a position which the governor agrees that he’ll officers and apply it to officer and men, is that it? appoint this man to. I think it’s specifically designed to KING: That’s right. prevent a man from taking such a position. TAVARES: That isn’t quite accurate. in the third line of CHAIRMAN: The Chair will give you this suggestion. In the second paragraph the delegate suggests we insert after the the event the office of the attorney general is increased from word “or” the words “members of the reserves,” so that it $10,000 to $15,000, no senator who voted for that increase Will read in that line, “the police, or members of the reserves will be eligible for that office during his term of appointment, of the armed forces of the United States,” in that line. We as the Chair understands it. have accepted that amendment, Mr. Chairman. RICHARDS: I raise this point, not on any particular deal CHAIRMAN: Will the word “officers” remain or not, Dele of a particular governor, but there can be assumption where gate Tavares? a minority senator may have been in the minority and a new governor—he’s a holdover senator—when a new governor TAVARES: Which officers, Mr. Chairman? comes in, and the new governor may wish to place him in CHAIRMAN: Reserve officer. another position. Now, is that new governor precluded from placing said senator in such a position? KING: That would only apply to the police. It would read “reserve officers of the police, or members of the CHAIRMAN: If it meets this prohibition, “which shall reserves of the armed forces of the United States, members have been created or emoluments thereof have been increased of the state militia or national guard, or members of the by the legislative act during the term.” emergency organizations for civilian defense or disaster ASHFORD: I have another problem. As I read this—I relief.” think it is sometimes difficult to distinguish between an HEEN: I rise to a point of information. I’d like to ask office or an employment—but let us say that the cadastral Delegate Tavares thin question. Does the term “offices or engineer in the Department of Public Works is an employee employment” apply to members of the reserve officers and not an officer for the purposes of pointing out what I of the police or did you cut out that phrase, “offices or think is a defect in this. He takes leave of absence, he runs employment”? for the Senate or the House and is elected. He takes leave of absence from his office, or his vacation, as the case may TAVARES: The way it reads.now with the amendment is be, because he is not disqualified, being an employee, and this: “This section shall not apply to the offices or employ in the legislature he increases very substantially the pay of ments.” Those words “offices or employments” relate to that employment. He is not appointed because he goes back every category mentioned thereafter, meaning offices or to the job which he held before and yet he has increased his employments of notaries public, offices or employments of own pay. reserve officers of the police, offices or employments of the reserves of the armed forces of the United States, and so TAVARES: The reason why I don’t put that in is because forth as the case may be, is what it means. it’s so difficult to handle all possible types of employees, and the legislature has under the civil service law now pro HEEN: When they are not on active duty, these reserve hibited those people from running for office, so you don’t officers, are they in employment at that time or out of em need it. There is now a law prohibiting civil service employ ployment? ees from running for office and I think that it’s such a minute TAVARES: I still think they are officers, If they are thing. It’s not in the Organic Act, we only prohibit officers. either officers or employees I think they are covered by It’s worked all right so far with supplementary legislation. that terminology. 254 LEGISLATIVE POWERS AND FUNCTIONS HEEN: Well, Mr. Chairman, I’m opposed to the amend out of Congress or going off to war. Some went off to war ment designed in the second paragraph of this amendment, but they didn’t stay in Congress subject to orders. I don’t except as to notaries public. Now reserve officers, if they think the kind of man that is willing to run for office and are on active duty they should not be in a position to choose get elected and the kind that has served his country is the what they should do. They might find it difficult to legis kind that’s going to take anybody’s orders as to how he’s late - - perform their functions as legislators. They might going to vote in the legislature. I think we ought to give have orders to do something else contrary to what the those men that consideration. legislature might want to do, and the military should be KING: In further reply to Delegate Heen’s objections, a kept apart from the operation of the civil government. That’s good many officers are reserve officers with retainer pay my stand. but not on active duty. Now I quite agree with Delegate Heen APOLIONA: Looking over the language of this amendment that the minute they go on active duty they should resign from in the second paragraph, I wonder if the introducer of this the legislature. section will agree to this change? Now, we have no reserve Now the reserve officers who were serving in Congress officers of the police, what we have is members of the police at the time of the outbreak of World War U used to take reserve. I wonder if Delegate Tavares - - leave of absence, serve on active duty, and then return to Congress. Then the President decided that it was improper CHAIRMAN: You mean ordinary persons as distinguished procedure and laid down that no reserve officer would be from the officers of the police reserve? called to active duty unless he resigned his seat in Congress. APOLIONA: That’s right. We are members of the police Senator Magnuson served out here when he was a represent reserve. Will you accept that, Tavares? ative, in the Pacific area. Representative Jimmie —the name fails me—also served on active duty a long part of the war TAVARES: A member of the police reserve is an offi while he was still a member of Congress. But I do agree cer. A police officer is an officer and nothing but an that no officer on active duty should be a member of the officer. legislature. DELEGATE: Question. However, our medical officers and many other officers are reserve officers in the organized reserves, get some retainer APOLIONA: In the police department you have all kinds pay, and might possibly run for office and serve in the legis of ranks, from sergeants to lieutenants to captains and lature without impairing their ability to give first allegiance chiefs. to their legislative duty. After they are ordered to active CHAIRMAN: Well, what Delegate Tavares is pointing duty, then they should resign from the legislature. out, they’re all called officers. Flippantly speaking, we HEEN: If the particular paragraph is amended to take call them cops. They are all officers. care of that situation, then I would have no objection. But TAVARES: By way of further explanation I might say when they are on active duty they should no longer serve in there is a distinction in law between a person who holds the legislature. an office and a person who holds a mere employment as CHAIRMAN: The Chair would suggest “members of the distinguished from an office. Now, within the police depart reserve, except during time of active duty,” or some ment they may be called flat feet and sergeants and lieute such language, if that is acceptable. nants, but before the law they perform duties of officers of the law and therefore they are officers, no matter what KING: I rise to another question entirely. A good many they are called in the department. members have suggested that we are not in the mood to do any constructive work this afternoon and wanted to suggest CHAIRMAN: The Chair will put the question on the amend that we rise, report progress and sit again. I feel that we ment. ought to finish the legislative powers and functions, so I HEEN: I would like to reiterate my stand. Anybody con just raise the point now. Do we wish to continue or do we nected with the police force or connected with the Army wish to rise, report progress and sit again. should not be placed in a position where he might have to, under the command of his superior officer, do something CASTRO: I suggest we continue because from the head against what he should do as a legislator. Those people lines it’s possible that Major Fong and myself and two or should always be subordinate to the civil authorities. three other people won’t be here in two or three days. We’d like to see that the amendment gets properly passed so that PORTEUS: It is not often that I find occasion to differ when we get back we’ll be able to get into the legislature. with the senator and fellow delegate from the fourth district. FONG: I second the motion. However, I do have a great deal of sympathy with those people who went away in the armed forces of the United CHAIRMAN: Delegate King, there has been a suggestion States and after their services, specifically let’s take the by Delegate Heen that in the event - - that he would welcome last war, after their services in the last war have risen to the suggestion or withdraw opposition if the membership of a position where they may be .members of an organized re the reserve “except during active duty” was incorporated. serve of the United States of America. If those people have Is that desirable or - - gone to war and come back, I think that they’re entitled to KING: If Delegate Heen will actually put it in writing, that hold a reserve commission or be a member of an armed re is desirable. I agree with him that no officer of the armed serve and still perform their other duties to the state which forces on active duty shall serve in the legislative body. is, among those, that of running for office and serving in the legislature. If they are ordered to active duty, they no longer SAKAKIHARA: May I move for the disqualification of re would be serving in the legislature. serve officers from participating on this amendment? They I think members of Congress came up against this very have a definite pecuniary interest. same thing the last war. Those of them who had reserve commissions were finally given the choice of either getting DELEGATE: Out of order, Mr. Chairman. JULY 8, 1950 • Afternoon Session 255 CHAIRMAN: You are overruled. Delegate Heen, do you TAVARES: No, Mr. Chairman, it isn’t. I’d rather have have language that will fix that up? the Convention vote the way it feels. I’ve made my sugges HEEN: Not right at the moment, but I can prepare one. I tion and I’m not going to argue one way or the other. object, though, to reserve officers in the police force serving CHAIRMAN: Very well, the Chair will put the question. at any time. WJRTZ: Pd like to suggest language. HEEN: I move that amendment. CHAIRMAN: Delegate King, in the absence of Delegate CHAIRMAN: Yes, the Chair will put your amendment. Heen’s suggestion of language, the Chair might suggest this, APOLIONA: Speaking against the amendment, especially “members of the reserves of the armed forces of the United tQ the deletion of the phrase “reserve officer of the police,” States while on active duty” or “except upon active duty.” I want to call to the attention of this Convention here that Otherwise the Chair will put the question without the suggestion. there are hundreds of us who are members of the Honolulu WIRTZ: I suggest we take a short recess subject to the police reserves that do not go into active duty until such call of the Chair. occasion arises where we are called by our country to active duty. We are subject to call twenty-four hours of the KING: May I just make this brief statement. I didn’t pro day. We are given our instructions as to the security of pose this amendment but I did propose the language “or mem our country which I have not the power to make known at bers of the reserves of the armed forces of the United States.” this time. We are called by the police department to per The language suggested by the Chair is perfectly agreeable. form functions in case of tidal waves, warnings, evacuation The intent is that officers serving in the organized reserve, of people, and guarding the premises and property and going to drills one night a week, going on a fifteen day active health and safety of people. Without your Honolulu police duty once a year shall be eligible to serve in the legislature. reserve, Mr. Chairman, your police department is inade The minute they are called to active duty they shall not be quate in numbers to take care of the safety of the people’s eligible. That is my understanding of the purpose to be property and public safety. served. So, we as members of the police reserve put in our own CHAIRMAN: The Chair has no predeliction one way or the time, we buy our own guns, we pay for our own uniform, other. He just wants to get this put to the floor. In the ab we even supply our own car, and even take care of our own sence of an amendment, the Chair will put the amendment as insurance so that the health of the people of this territory it now stands and it is in the absence of any qualifying language. may be protected. We, as members of the police reserve, have served this CASTRO: Just a point of explanation. I think there are community faithfully during the war. Without our organi a few who feel that possibly they couldn’t vote for this amend zation this Territory of Hawaii would be overrun by your ment because they’re afraid of members of the reserves, Marine guards. That’s what the Navy wanted to do, but whatever reserve that might be, serving while on active duty. because of the existence of your Honolulu police reserve, While I’m not completely familiar with the Articles of War your commanding general of this Territory during the war or the Articles of the Navy, I believe there is a higher law saw fit that the Honolulu police department could actually than the State Constitution which forbids a reserve officer or police the entire territory and it was done so because of a regular officer, when on active duty, from participating in the existence of the Honolulu police reserve. the employment under any basis of another government, At this time I ask that this Convention do not delete the whether it be Federal or a subordinate government to the members of the Honolulu police reserve from having a Federal government. So I feel that if we should look into chance of becoming elected in your state legislature. this further, we would discover that there is a higher law that would keep your reserve officer on active duty out of CHAIRMAN: Delegate Apoliona, the Chair will ask Dele the legislature even though no provision would be placed in gate Heen if this would be any prohibition against police our Constitution. reserves—the Chair does not so understand it—from serving on the legislature. Am I right about that, Delegate Heen? HEEN: I think I have the proper amendment here. Delete the words “or employments” following the words “offices,” HEEN: Well, if they are holding a public office, it might which word “offices” appears in the first line. Then after apply. If a reserve in the police force is holding a public the word “public” in the second line insert “or to,” Delete office then this would apply. “reserve officers of the police or of’ appearing in the second and third lines, then insert “members of the reserves RICHARDS: The Honolulu police reserves are a portion of,” after the words “United States,” “who are not on active of the emergency organization for civilian defense and duty.” Then delete the words “members of the state militia disaster relief. Now, why single them out as to be not or national guard” in the fourth line, and after the word “or” permitted while other members of these other organizations in the fourth line add the word “to.” So that that paragraph are permitted. would read: “This section shall not apply to the offices of notaries public or to members of the reserves of the armed HEEN: Then if they are members of the emergency or forces of the United States who are not on active duty, or to ganization, they are there because they are member of that members of the emergency organizations for civilian defense organization, not because they are reserve officers in the or disaster relief.” police force. CHAIRMAN: Is there a second? RICHARDS: If that is definitely understood and so written HEEN: I move that amendment to the second paragraph in the committee report, that is all right. But I want to make of Section 10 as offered. certain that it is considered an emergency organization for civilian defense and disaster relief. The fact that it is being CHAIRMAN: Is the amendment acceptable to Delegate stricken out would tend to think it was otherwise unless the Tavares? It would save us putting the question twice. committee report so states. 256 LEGISLATIVE POWERS AND FUNCTIONS J. TRASK: I might inform the chairman of the committee state militia or national guard, or members of the emergen that the members of the police reserve receive no compen cy organizations for civilian defense or disaster relief.” sation whatsoever, that they just perform in the case of The only thing we have done is to qualify the exemptions emergency. They have police powers as police officers but granted members of the organized reserve when they are they receive no compensation whatsoever. not on active duty. That would seem to me to meet all of the points that have been raised. APOLIONA: That is why a few moments ago I wanted to change the wording “members of the Honolulu police reserve.” TAVARES: Let me point out one thing more that causes Now we have a police department here, but we have a police difficulty, and that was my trouble in drawing this. You are reserve and a police reserve is a~member of the emergency going to have a lot of vacancies all of a sudden if a man is organization for civilian defense or disaster relief. Your allowed to run as long as he is not on active duty and then reserve is a member of that. That’s why I wanted to change in the middle of a session he is called into active duty. the wording there, ‘~members of the Honolulu police reserve.” Then what’s going to happen, a vacancy in his office. That’s not desirable. You either ought to bar them entirely or ASHFORD: If, as it has been said here, the members of not leave the legislature liable to be decimated by a call the police reserve are such really because they are members to active duty. That’s the piikia that I found in trying to of emergency organizations for civilian defense or disaster make those exceptions. relief, wouldn’t they be covered even though you don’t refer to them specifically? In other words, if you strike out this KING: One point to answer that. When an officer in the reference to police reserves they would still be protected reserve or enlisted man is called to active duty, if he’s a under that last provision of the second paragraph. member of the legislature he can almost invariably get a waiver of it or resign. He can take his choice just as they CHAIRMAN: That was the Chair’s view when it addressed did in Congress when World War II broke out. The Navy that question to Delegate Been. Would you care to comment Department or War Department would ask them, did they on that, Delegate Heen? want to go on active duty. If they did so, they got their orders and resigned from Congress. If they did not, th~y HEEN: Well, I did. I said they would be members of the resigned their reserve commission. None of the armed emergency organization for civilian defense not by virtue forces would require a man to leave the legislature under of being a reserve police officer but by being a member of orders if he preferred to serve in the legislature. The the organization. armed forces are usually cognizant of the fact that service CHAIRMAN: Does that clear up your difficulty, Delegate in the legislative body is equally important to the welfare Apoliona? of the country. APOLIONA: Then, I see nothing wrong in retaining this CHAIRMAN: The Chair will put the question. The ques phrase here, “reserve officer of the police.” tion is upon the amendment offered by Delegate Heen, sub stance of which would prevent members of the armed forces BRYAN: That brings up another little point here, that I’d while on active duty from being eligible to be elected or to like to have the attorneys look at. I would like to have added hold a seat in the legislature. All those in favor signify by ~t the end of this, or some language to do the same thing, the saying “aye.” Contrary. The Chair’s in doubt. All those word~s “solely because of membership therein,” In other in favor raise their right hand. Contrary. It’s carried. words, some one may be disqualified for some other reason but he can go and say, “Well look here, I am a notary public KING: I would have voted for the amendment but as I and therefore I am eligible.” Under this language it appears understood Delegate Been when he read it, he cut out mem so to me. bers of the state militia, national guard, members of the emergency organization and the reserve officers, is that CHAIRMAN: The Chair will put the question. The ques correct? I wasn’t able to follow Delegate Heen’s amendment tion - - closely when he read it. ASHFORD: In reply to that, doesn’t the fact that it refers CHAIRMAN: Will the President hold just a moment to to offices, it doesn’t refer to the people who hold the offices? see if the Chair is correct in announcing the result. The KING: The difficulty comes in the first sentence of Sec Chair believes the motion carried. Evidently the Clerk is unable to get the call. The Chair thought the motion - - tion 10, disqualification of members. “No member of the legislature shall hold any other public office.” Now, we DELEGATE: Roll call, Mr. Chairman. asked what’s the interpretation of “public office.” Does a CHAIRMAN: We’d better have a roll call on this. commission under the Medical Corps Reserve of the Army become a public office? Yes, it does. Is a reserve officer PORTEUS: I think a roll call would take some time. A in the organized reserve of the Marine Corps or the Naval division of house would require the members to stand in Reserve a public office? Yes, it is. Well, then you are order to make the vote quite apparent. barring those men and there are many thousands in Hawaii who belong to the organized reserves of the Army, Navy, CHAIRMAN: Very well. All those in - - Marine Corps, Medical Corps Reserve and police reserve KING: Point of information. and then the civil defense. So the effort was made to qualify that disqualification by this second paragraph. CHAIRMAN: Delegate King is recognized. Now, the only difficulty there is the point raised by Dele KING: Point of information. I request that Delegate gate Been that members of the armed forces should not serve Heen’s amendment be re-read so we can all understand it. in the legislature when they are on active duty. All we need I’d like to vote for it because that would simplify matters to do is to say this section “does not apply to the offices or and get this out of the way. employments of notaries public, reserve officers of the police or members of the reserves of the armed forces of the CHAIRMAN: Delegate Heen, before we take the vote will United States who are not on active duty, members of the you re-state your amendment? JULY 8, 1950 • Afternoon Session 257 BEEN: As amended, this paragraph reads as foilows: of the state. All officers in the United States Army, national This section shall not apply to the offices of notaries guard would be officers not under the state but under the public or to members of the reserves of the armed United States, so this section will not apply to those officers forces of the United States who are not on active duty who are officers of the United States. or to members of the emergency organizations for CHAIRMAN: Then, an army officer could be elected as civilian defense or disaster relief. legislator. CASTRO: In all respect to the senior statesman - - BEEN: That’s correct. But as I understand it, I’ve been assured that if they go into active service, under some mili CHAIRMAN: Elder statesman. tary regulation they must resign their office as a member CASTRO: - - elder stateman, this amendment doesn’t of the legislature, if they are members of the legislature. make sense. CHAIRMAN: Delegate Apoliona is recognized. CHAIRMAN: Well now, the Chair has got to put the vote, APOLIONA: I now second that motion. Delegate Castro. ASHFORD: Then the United States District Attorney CASTRO: I am about to ask - could be elected to the legislature and serve as United CHAIRMAN: rm sorry. States District Attorney and as a member of the Senate at the same time? CASTRO: - - that Delegate Been reconsider this amend- ment. CHAIRMAN: That is correct, or a colonel or a general. CHAIRMAN: If it does not make sense, then you can vote KING: That would apply if the United States permitted against it. The Chair has no alternative. them to do so. They could only do that if the United States permitted them to do so. KING: That’s the problem. I would like to vote for it but he has stricken out “reserve officers of the police and mem CHAIRMAN: That’s correct. bers of the state militia or national guard.” If that were in TAVARES: I will accept the amendment and move to add cluded, I’d be happy to vote for it. a further amendment reading as follows: “The legislature HAYES: Point of information. may prescribe other disqualifications.” CHAIRMAN: I don’t understand why that was stricken ASHFORD: I second that amendment. out either. CHAIRMAN: The Chair doesn’t want to pile these amend HAYES: Point of order. ments up. Is that acceptable to Delegate Been? CHAIRMAN: Delegate Hayes. BEEN: Not at the moment, without giving it some thought. Supposing we act on the amendment that was proposed by me HAYES: I voted on the opposite side, so I therefore move first. Then we could take up the other. to reconsider the action. CHAIRMAN: The question is on the amendment proposed CHAIRMAN: The Chair hasn’t announced its ruling yet. by Delegate Heen. All in favor signify by saying “aye.” Con It’s in doubt as to what happened here. trary. It’s carried. DELEGATE: Let’s vote on it. Delegate Tavares, you desire to make a further amend ment, I believe. BEEN: May we take a short recess. TAVARES: I believe that I was in error. What I had in CHAIRMAN: Two minutes. mind was this, as it stands now I do believe it’s too tight. HEEN: Two long ones. While I would like to have the legislature authorized to prescribe further disqualification, it seems to me when we (RECESS) don’t exempt members of civilian defense organizations — we are all going to be called on to do civilian defense CHAIRMAN: The Convention will please come to order. work—that means that any man who wants to run for the legislature or is in the legislature is going to have to stay HEEN: I now withdraw the amendment that was offered out of these emergency wardens and disaster relief councils by me, which was pending at the time the committee took a and everything else. short recess. At this time I offer the following amendment: In the third line of the first paragraph after the word “office” CHAIRMAN: The Chair understood that that language delete the comma and insert after the word “office” in the was deleted. Is the Chair in error? third line the following: “under the state, except notaries HEEN: That’s correct. Those who may become members public and reserve police officers,” period. of the relief organization become members not as officers CHAIRMAN: You don’t want the period, do you, Delegate but perhaps become members as employees only. Been? CHAIRMAN: The Chair’s understanding was that section BEEN: No, no period, comma. was deleted and your objection thereby will be met, Dele gate Tavares. APOLIONA: I second that motion. TAVARES: Well, I was probably a little out of order. I CASTRO: The amendment isn’t completed yet. want to point out that if we create a civilian defense organi CHAIRMAN: Seconded anyhow. zation and we make a man a warden and give him power to go around with a star and keep people from putting on their BEEN: Delete the entire second paragraph. All officers lights, he is going to be an officer no matter what you call designed to be covered by the first paragraph must be officers it. He is going to be exercising the sovereign functions of 258 LEGISLATIVE POWERS AND FUNCTIONS the state in defending the state, and you are not letting him Now, the organized is a group of officers and men who are act as a legislator if he joins one of these relief organiza paid for their participation part time, usually once a week tions. If that’s what this Convention wants, that’s all right. and two weeks active duty a year, and these are officers I think we have voted on it but I think it’s too tight. who are under the Federal government, offices of profit be cause they are paid, several hundred dollars up to and over CHAIRMAN: Well, we can always fix it up if it is too a thousand dollars per annum for their duties, and this tight. again would not mend the situation because in an era of CASTRO: I believe that the term “public office” has been peace you have this large number. In Hawaii today we have given enough adjudication to indicate that it is properly an some three thousand, I think the number is larger now, or office of profit. Now civilian defense organizations, at least ganized reserve who would be barred by Delegate Roberts’ up to the atomic age, have not been offices of profit under proposed amendment. I don’t think that cures if. the state, and I don’t think that any of the civilian defense TAVARES: I think k’s still necessary to defer this fur organizations are touched if the Committee of the Whole ther and I think if we have another five minutes we can try report will indicate that these various civic vblunteer to iron this out a little further. I still think the Heen amend functions are not covered, are not within the intent of this ment is not quite all that we need. prohibition. It seems to me that that is going to be adequate, CHAIRMAN: The question is on Delegate Roberts’ amend but if we can’t satisfy the motion now it probably would be better to defer until we can go into the history of similar ment. Is that - - what is the status of that? Does the dele constitutional provisions in other states, because there are, gate care to withdraw it to clear the decks? in almost all of the forty-eight states, there are similar ROBERTS: I will withdraw the amendment, but I might provisions, and it would be interesting to find out whether suggest that we’re not saving any time by staying here and or not there has been some court adjudication on these working on this. I suggest that we rise and report progress words. Is that the thing to do now or should we just push to give the chairman a chance to work on his report and we the thing through and be stuck with it? start fresh on it Monday morning. CHAIRMAN: If Delegate Tavares desires to loosen it FONG: Second the motion. up, the Chair would invite suggestions. The legislature PORTEUS: The chairman of the committee, I might tell could add furthex’ qualifications as prescribed by law. the delegates, informed me not long ago that he hoped we CASTRO: The objection to that provision, that the legis would be able to bring matters to a close so that he would lature may prescribe further, would be that a legislature in know that he was finished with this and could write a com a fit of pique could prohibit from its membership the very plete report. I don’t think that we have too far to go. I people that we are trying to protect here who are the reserve think, after consultation with the chairman of the commktee, officers of the United States of the various branches, so I that language such as the following: “The legislature may don’t think we could leave it to a matter of law, that is, a provide for further disqualifications,” would enable the legis matter of statute. We have to be very well satisfied we are lature to tnke care of the skuation where there are federal covering the ground here. I think possibly it would be better employees or federal district attorneys. We haven’t, of for us to defer. course, said here just how far the legislature could go, but if would by necessity mean that they would operate by HOLROYDE: I can’t see the legislators barring the re general law as to disqualification. They could then by serve officers from serving on the legislature. There are statute spell out that reserve officers of the Unked States so many of them in the Territory it would be political suicide were eligible under certain circumstances or were not, de to attempt to do anything like that. pending on the conditions as they appeared to them. CASTRO: I quite agree that it might be political suicide CHAIRMAN: That would fill in the gap, would it not? but that isn’t the point. The point is that the provision does not mend whatever illness might be in this section. It mere PORTEUS: That would fill in the gap. I mnke that as a ly leaves it open at both ends. motion, that the following language be added: “The legisla ture may provide for further disqualifications.” ROBERTS: I have a further amendment to this section. At the end of that sentence add the following: “No person APOLIONA: I second that motion. holding any federal or state office or position of profit shall CHAIRMAN: It has been moved and seconded that the be entitled to a seat in the legislature.” section be further amended that: “The legislature may YAMAMOTO: I second the motion. provide for further dis4ualifications.” CASTRO: The objection to that is substantially the same TAVARES: I would like to move a further amendment as the previous one and that is that in the reserve corps, the to that amendment by adding thereto before the period, the Army and the Navy, the armed forces, there is a distinction following language: “and may by general law provide for between the volunteer reserve and the organized reserve. exemptions from such disqualifications with respect to mem Now the volunteer reserves are those people who are furthest bers of emergency organizations for civilian defense or away from a call to active duty, but there is an in-between disaster relief.” group. CHAIRMAN: That wouldn’t tnke care of the U.S. attorney I might even quote from the Honolulu Star Bulletin, the situation, would it, Delegate Tavares? most current quotation I can find here, by way of an expla nation of the current call for enlistment - - for volunteering TAVARES: That would be tnken care of, Mr. Chairman, that has come out in Washington today. The last paragraph by the right to disqualify further. of the article on page six, column four states: “The organ FONG: I second the motion made by Delegate Roberts ized units of all branches are considered close to fighting to rise and report progress and ask leave to sk again. trim. If the situation worsens they will be called into active service.” CHAIRMAN: That motion is out of order at this time. JULY 8, 1950 • Afternoon Session 259 FONG: Why is it? (RECESS) CHAIRMAN: There is pending before the house a motion to amend, and under the Rules of this house - - CHAIRMAN: The Chair will invite the committee’s atten FONG: I now move that we rise, report progress and ask tion to the fact that there are only three matters pending, leave to sit again. one of which is on the press or shortly will be, the other SAKAKIHARA: Second it. relates to Dr. Larsen’s amendment and the other relates to Delegate Kellerman’s amendment. I suggest that we de CHAIRMAN: All in favor signify by saying “aye.” Con fer action on the pending matter and take up Delegate Lar trary. The motion is lost. sen’s amendment, if that’s agreeable to the body. Delegate Tavares, you had the floor when you were inter rupted. APOLIONA: I so move. TAVARES: I don’t think anybody seconded my motion SMITH: Second it. and therefore, apparently I am out of order. CHAIRMAN: All those in favor signify by saying “aye.” CHAIRMAN: Not at all. Contrary. The motion is carried. APOLIONA: Second the motion. LARSEN: Just a few words, hoping we won’t get too tired. This is again not the question of whether we’re going CHAIRMAN: Would you be good enough to restate your to vote for a legislative council but whether we’re going to motion, Delegate Tavares? vote for this type of holdover committee, a legislative coun TAVARES: May I have the Clerk read it. I gave my cil that will take the place of a holdover committee. It will copy to Delegate Heen and I don’t have it before me. limit the size to twelve, it will put on four laymen, one from each county. It will be the ear to the ground of whether CHAIRMAN: Delegate Apoliona appears to have it. legislation can be analyzed between sessions. They will APOLIONA: I have the language, Mr. Chairman. Delete have at their beck and call the research council and it is the period and insert the following language: “and may by one more attempt to prevent abuse and to make law making general law provide for exemptions from such disqualifica more efficient and I move for its adoption. tion to members of the emergency organizations for civilian Amendment to Committee Proposal No. 29. defense or disaster relief.” Section_. Legislative Council. There shall be a CHAIRMAN: Are you ready for the question? All those legislative council consisting of twelve members, not in favor of the amendment signify by saying “aye.” Contrary. more than six from any one political party to be chosen It is carried. in the following manner: four members to be selected The question is now on the amendment, as amended. All by the Senate from its membership; four members to those in favor of the amendment signify by saying “aye.” be selected by the House of Representatives from its Contrary. It is carried. membership; four members who are not members of the The question is now on Section 10, as amended. legislature, to be appointed by the governor, one from each county. The legislature shall provide by law for J. TRASK: Have we a motion to that effect, Mr. Chair the selection, tenure and compensation of members of man? the council, and for such research staff as the council may HOLROYDE: I make a motion to that effect. require to perform its duties. J. TRASK: Second it. Section_. Organization and Duties of the Legislative Council. The legislative council shall choose one of its CHAIRMAN: It has been moved and seconded that we members as chairman and shall adopt its own rules of adopt Section 10, as amended. All those in favor signify - - procedure, except as such proc~dures may be established CORBETT: Would you please read us the amended section? by law. It shall be the duty of the council to collect infor I think there are a number of us here who are confused about mation relating to the government and general welfare of what we are voting on by now. the state and to report thereon to the legislature. The council shall consider the desirability and efficacy of CHAIRMAN: It’s a big order, Delegate Corbett. existing legislation, and shall receive for consideration suggestions of individual citizens and of citizen organiza SAKAKIHARA: May I rise at this time and ask that the tions for changes in the laws of Hawail. Proposed legisla amendments be printed before we take a vote on the amend tion may be submitted to the council and shall be considered ed section of Section 10, so that we may understand what the and reported to the legislature with its findings and recom amendments are and how Section 10 will read with these mendations. The legislative council may also recommend amendments. such legislation as in its opinion may further the welfare LYMAN: Second the motion. of the state and its people. Other powers and duties may be assigned to the council by law. CHAIRMAN: The Chair will declare a five minute re cess to get that printed. DELEGATE: Second the motion. BRYAN: Before we declare a recess, wouldn’t it be CASTRO: Prior to the defeat of the original section on possible to defer this for printing, while we take up the last the legislative council the Chair made a ruling which has section that we deferred? permitted this amendment. I respect the ruling but I would like to say nevertheless that this is still a legislative council. CHAIRMAN: I think that’s highly advisable if the Clerk The arguments have gone back and forth and I’m sure that can attend to the printing. Just a moment. The Clerk advises every delegate here has them in mind and is weary of them. me that it would be impossible to get it printed without a But there is one argument that I would like to direct to short recess, so the Chair will declare a few minutes recess. the amendment as proposed by Delegate Larsen which was 260 LEGISLATIVE POWERS AND FUNCTIONS not brought up previously because it was not pertinent to the May I add that further duties, that I think would be high committee proposal section, and that is as to this member ly feasible, have been brought to my attention and would ship, the make-up of the membership. This morning I pointed be justified as follows. We know that the executive secre out to the delegates that in Wisconsin the council started out tary would have to be on deck some time before the session in 1931 with twenty members, five senators, five assembly convenes and some time after to carry through the full men and ten citizens. That was a matter of statute. Then administrative or business management of the legislature in 1933 that was changed down to three senators, three for the work that is necessary to be done after the session assemblymen and three citizens, and in 1933 they fired the closes. There is also the matter of holdover committees, citizens and replaced them by the heads of major state de the Legislative Reference Bureau accumulating facts and partments. information in connection with that. There are various Now, the argument I have to make is this, that we should duties which can be performed and should be well fitted not —granting the legislative council is still in an experimen into the full legislative procedure. Remember we also have tal state and the efficacy & it and the proper membership an annual session. The next session also has to be prepared, make-up of it in Hawaii is still not known —we should not and so forth. bind this council with a make-up of membership that we have So I feel that this justifies the full time position and work no basis to prove will be efficient, and on that basis I feel ing in that administrative capacity. His salary will be well that that particular point is not going to improve the council, repaid by the amount of money that he can save justifiably and therefore all of the arguments against the council which in a good businesslike administration of the legislative this committee voted down still stand. process. LAI: I am against this proposal for the same reason I CHAIRMAN: Delegate Kellerman, in view of the fact have stated this morning. The abuses are just as great. that you have prepared several amendments to your proposed The chances of the layman hiring his family and friends to amendment, and in view of the further fact that the amend work is just as great as the case of the legislator. After ment to Section 10 is now on the desks of the delegates, all a layman is just as human as a legislator. would you care to have your amendment reprinted as re draft No. 3 and have that on the desks when it’s voted upon? CHAiRMAN: For convenience the Chair will identify Or do you want to proceed now? Dr. Larsen’s amendment as Sections 24 and 25. I believe that would follow in consecutive numbers, if that is agree KELLERMAN: I don’t think that’s necessary. These able to the delegates. amendments are very slight. If you’ll take the second sentence of the paragraph, “All ROBERTS: I’d like to speak in favor of the amendment, employees of the legislature, other than the chief clerk, I am going to vote for it. sergeant-at-arms, chaplain and attorney of each house” CHAIRMAN: The Chair will now put the question. It is all right, then in the ninth or tenth line, “respective positions,” on the amendment offered by Delegate Larsen, Sections 24 instead of the words “by examination,” if your copy has not and 25 relating to a legislative council. been corrected change the word “by” to “after.” In the beginning of the last sentence, “such employees” should DELEGATES: Roll call. read “all employees shall be supervised by the executive CHAIRMAN: All those in favor signify by saying “aye.” secretary,” and add the following language, “and he shall Contrary. perform such other duties as may be prescribed by law.” PORTEUS: I think we should have a division of the house. CHAIRMAN: The Chair feels there’s been adequate de CHAIRMAN: I think we will have to have a division, as bate on this, and accordingly will put the question. Is the the secretary suggested. All those in favor will please roll call demanded? The Clerk will please call the roll. rise. Against? The amendment is lost. This is on the amendment to Section 11 offered by Delegate Kellerman. KELLERMAN: I think the delegates have on their desks a redraft, and I’m sorry to bother them by asking them to Ayes, 23. Noes, 24 (Apoliona, Ashford, Bryan, Cockett, add one or two subsequent thoughts that I think improve it. Dol, Fong, Gilliland, Hayes, Holroyde, Kam, Kauhane, Kido, In the second sentence - - I’ll read from the beginning. In King, Lai, Lyman, Noda, Porteus, Richards, Sakai, Sakaki cidentally, this is not to amend Section 11 to read as follows, hara, Smith, St. Sure, Tavares, Yamauchi). Not voting, 16 it is to amend Section 11 to add this paragraph. That should (Crossley, Fukushima, Ihara, Kawahara, Kawakami, Kome be in the record of the proceedings. tani, Lee, Mau, Mizuha, Ohrt, Phillips, C. Rice, Shimamura, Silva, White, Woolaway). Section 11. There shall be an executive secretary of the legislature who shall be selected, and be subject to The amendment is lost. removal, by the legislature in the same manner as pro FONG: I now move that we adopt Section 11, as amended. vided for the auditor in Section 8 of Article_, and shall serve for a term of 8 years. KAUHANE: I second it. That’s a two-thirds vote of each house as you recall from CHAIRMAN: It has been moved and seconded that Section that section. 11, as amended, be adopted. All those in favor signify by saying “aye.” Contrary? The ayes have it. All employees of the legislature, other than the chief clerk, sergeant-at-arms, chaplain and attorney for each DELEGATE: Mr. Chairman, does that complete the busi house shall be appointed by the executive secretary from ness for this Committee? lists of those who have qualified for the respective posi HEEN: Section 10. The delegates have on their desks a tions after examination prepared and administered in copy of the amendment RD 1, dated July 8, 1950. I think accordance with the merit principle. All employees shall this is almost the ultimate of perfection now. be supervised by the executive secretary, and he shall perform such other duties as may be prescribed by law. CHAIRMAN: Got all the commas in there, Delegate Heen? JULY 8, 1950 • Afternoon Session 261 HEEN: No, there should be one “s” in the word “organi CHAIRMAN: This is only a prohibition against state zation,” in the third line from the last line, “organizations.” office. That section now reads: Are we ready for the question? All in favor signify by Section 10. Disqualification of members. No member saying “aye.” Contrary? It is carried. Unanimous. Ex of the legislature shall hold any other public office under cuse me, not unanimous. Still carried. the State, nor shall he, during the term for which he is FONG: I now move that we rise and recommend that elected or appointed, be elected or appointed to any public Proposal No. 29 be adopted. office or employment which shall have been created, or the emoluments whereof shall have been increased, by CHAIRMAN: Delegate Heen, does that complete in its legislative act during such term. The term “public entirety our deliberations on this? According to the Chair’s office,” for the purposes of this section, shall not include notes that completes everything. notaries public, reserve police officers or officers of emergency organizations for civilian defense or disaster HEEN: There’s one more section, Section 20 of Commit relief. The legislature may provide for further disquali tee Proposal No. 29. I believe there has been distributed fications. to each delegate a copy of an amendment proposed by Dele gate Sakakihara under the date of July 7, 1950. I move the adoption of the amendment. WIRTZ: My recollection is that that was passed. APOLIONA: Second it. CHAIRMAN: We acted upon Delegate Sakakihara’s CHAIRMAN: The Chair would like to ask the movant a amendment. That amendment, in substance I think it question. Delegate Heen, this would permit army officers literally copied its section from the Organic Act, was and the United States attorney to serve in the legislature, adopted by this committee. would it not? HEEN: Oh, did it pass? HEEN: That’s correct, but the last provision there, “The legislature may provide for further disqualification,” would CHAIRMAN: I invite the chairman’s attention to that permit the legislature to bar district attorneys and the like. description —whether or not that should be acted upon. Com mittee Proposal No. 30, does that require any action? CHAIRMAN: That would take care of that. KING: It would permit army officers and the United HEEN: I don’t know whether any changes were made in States District Attorney and the United States District Judge reference to these districts during the discussion. If no to serve in the legislature provided he was a citizen of the changes were made with reference to these districts, then State of Hawaii and could get elected and was not on active there need not be any discussion on that. Is that the sched duty and barred from that office by Federal requirements, ule? so I think the danger is very remote. CHAIRMAN: That is Committee Proposal No. 30 relating PORTEUS: And I might add, if the legislature didn’t say to a schedule describing representative districts. It is the he couldn’t run. Chair’s recollection we did change one on the island of Hawaii. RICHARDS: May I ask one further question? The state ment, “The legislature may provide for further disqualifi HEEN: That’s correct. The district of Keaukaha or cations,” could the legislature provide for a disqualification that part of the area known as Keaukaha was eliminated of a man already elected and serving? I am thinking of a from the first draft of the proposal, so that would just hold-over senator. mean a correction in that regard to conform. I don’t see the necessity for going through that. PORTEUS: I think the intent of that is to provide that the legislature may by putting in effect general law provide CHAIRMAN: Would it be in order to adopt 30 - - Com other disqualifications, such as being a Federal office holder, mittee Proposal No. 30, the schedule, as amended to con such as a district attorney or some one in that category, form with our prior action in regard to the proposal itself? but that the legislature need not go all the way and say that HEEN: I so move. a person who holds a reserve commission in the organized reserve of the United States is disqualified. So we are WIRTZ: Point of information. The motion to coat o~m to getting at the problem in that fashion. our prior action, that would take care of the situation of the change on Maui? RICHARDS: That does not quite answer my question. CHAIRMAN: That is correct. TAVARES: I think I can answer that question. Would that not be an ex post facto law, that was made retroactive? HEEN: That is the other change. That’s correct. CHAIRMAN: I was going to suggest to Delegate Richards, CHAIRMAN: Several minor changes in the motion, gener - any further disqualification would be prospective in its al in its terms, would take care of all of them. The Presi operation. While it’s true that ex post facto laws only apply dent indicates there are four. to criminal laws, it’s unthinkable that the legislature would make its disqualification retroactively. HEEN: Therefore I withdraw my motion and make it in this form: I move that Committee Proposal 30 be adopted NIELSEN: I happen to be an officer in the Civil Air with appropriate amendments to conform to changes that Patrol. Is that taken care of? were made in connection with the adoption of Committee CHAIRMAN: Is that an office under the Territory of Proposal No. 29. Hawaii? FONG: Second the motion. PORTEUS: I believe under the Army Air Service, so I SAKAKIHARA: Point of information. What is the status believe that’s all right. of the amendment to Proposal No. 29 relating to the redis 262 LEGISLATIVE POWERS AND FUNCTIONS tricting of the second district into two districts. Has that ASHFORD: May I ask whether that fits in with the amend amendment been taken care of? ment made the other day, which I frankly confess didn’t make sense to me, which was designed not to relate to im HEEN: That’s not in the schedule. That’s in the article peachment but to provide for expenses, as I understood, for itself. the staff made necessary by reconvening to consider bills NIELSEN: I don’t know why, Mr. Chairman, Mr. Sakaki which the governor vetoed? han is so interested in the second district. CHAIRMAN: That was defeated, the Chair recollects. CHAIRMAN: That’s a private feud you have, I guess. I Was it carried? don’t know either. HEEN: No, it was an amendment to that first sentence The Chair will put the question. in the second paragraph, which was added to the first PORTEUS: I think possibly because we have always re sentence, reading as follows: turned to the Committee of the Whole to clear the report and the special session to be convened thereafter in that the motion would be to rise, report progress and ask accordance with the provisions of Section 18 of this leave to sit again. article. CHAIRMAN: The Chair is ready to put the question. The So this amendment follows that period. Now if this amend question is that the proposal, as amended, together with ment as I have proposed is adopted, then the class can be Proposal No. 30 to be amended in conformity with the action dismissed for the day. taken by this body in committee, be adopted. All those in favor will signify by saying “aye.” Contrary? It appears CHAIRMAN: You’ve heard the amendment. All those in to be unanimous. Not unanimous, but it’s carried. favor signify by saying “aye.” Contrary? The motion is carried. PORTEUS: May we now rise, report progress - - The Chair will now put the question on the adoption of HEEN: I would like to move for a reconsideration of Section 12, as amended. our action in adopting Committee Proposal 29, as amended, HE EN: I so move that. for the reason that I would like to insert by way of amend ment a matter that will take care of hearings of impeach PORTEUS: Second it. ment cases in a budget session. CHAIRMAN: It has been moved and seconded that Section OKINO: I so move. 12 as amended be adopted. All those in favor signify by saying “aye.” Contrary? The motion is carried. BRYAN: I second it. FONG: I now move that we adopt Committee Proposal No. PORTEUS: I think that the motion to reconsider should 29, as amended. only be directed to the particular section, rather than to the entire article, because we haven’t adopted the entire article. DOWSON: I second the motion. What is the section number? CHAIRMAN: It’s been moved and seconded that Commit HEEN: Section 12. tee Proposal No. 29 as amended be adopted. All those in favor signify by saying “aye.” Contrary? The motion is CHAIRMAN: You have an amendment prepared, Delegate carried. Heen? It has been moved and seconded we reconsider our action in regard to Section 12 in order to permit Delegate HEEN: I now move that this committee rise, report prog Heen to present a proposed amendment, simple in form, ress and ask leave to sit again, that in the meantime a the Chair understands it. All those in favor signify by say written report be prepared by the chairman of the Committee ing “aye.” Contrary? The motion is carried. of the Whole in accordance with the actions taken by this committee. HEEN: One minute recess, please, Mr. Chairman, just FONG: Second the motion. one minute. PORTEUS: Did the chairman announce the results of the CHAIRMAN: Hall a minute recess. vote? CHAIRMAN: The Chairman tried to. It carried. Not (RECESS) quite unanimous. Question? All those in favor signify by saying “aye.” CHAIRMAN: The committee will come to order. Contrary? It’s carried. HEEN: Section 12, dealing with the second paragraph of that section, insert after the first sentence of the second paragraph of Section 12 the following: JULY 13, 1950 • Morning Session The legislature at such budget session shall also be authorized to consider and act upon matters relating to the impeachment or removal of officers. CHAIRMAN: Will the delegates please take their seats. FONG: I second the motion. Will the committee please come to order. As soon as we have order here, we can dispose of this in a few minutes. HEEN: That will then permit the legislature in a budget Delegate Lai is recognized. session to consider impeachment cases or cases relating to the removal of judicial officers. I move the adoption of LAI: Is it in order now, Mr. Chairman, to make a motion the amendment. to adopt Committee Proposal 29? FONG: I second the motion. CHAIRMAN: It is. JULY 13, 1950 • Morning Session 263 LAI: I so move. HEEN: I now offer this amendment. BRYAN: I’ll second that motion. HOLROYDE: I move we reconsider our action on that ASHFORD: Is the motion to adopt the Committee of the section so that Delegate Heen can present his amendment. Whole report for recommendation out to the Convention as HEEN: Second that motion. a whole, because I have a question on that report. CHAIRMAN: It has been moved and seconded that we CHAIRMAN: That is the motion, Delegate Ashford. reconsider action upon Section 17. ASHFORD: On page 27 of the report. HEEN: That’s correct. CHAIRMAN: Before taking that up, may the Chair make CHAIRMAN: All in favor signify by saying “aye.” Con one statement. The Chair has not checked the proposal trary. Carried. attached to the report. I am advised it has been carefully checked by the staff, and will endeavor to do it before it is HEEN: I now offer an amendment to Section 17 as set presented to the Convention for second reading or third forth in this written amendment which has been distributed reading, but I do believe it’s accurate. I just want to make to the members of this committee. Perhaps I should read that statement to the members. it and read it slowly. ASHFORD: At the end of the discussion on page 27, just The governor shall have ten days, Sundays and holi before the recommendation, there is a short paragra~ph days excluded, to consider bills presented to him ten which reads: “It is the further intent — -“ days or more before the adjournment of the legislature sine die, and if any such bill is neither signed nor re CHAIRMAN: Oh, could we have the page first? Twenty- turned by the governor within that time, it shall become seven? Proceed, Delegate Ashford. law in like manner as if he had signed it. ASHFORD: “It is the further intent of your committee That is in the Organic Act at the present time. Now the that, should the legislature fail to convene on the day re next paragraph reads as follows: quired, the bill nevertheless would not become law.” Mr. Chairman, I do not think that that conforms with the language The governor shall have 45 days after the adjourn of the section. I think it is the intent that it shall not become ment of the legislature sine die, Sundays and holidays law unless the Governor notifies the legislature or the mem excluded, to consider bills presented to him less than bers thereof that he intends to veto. ten days before such adjournment, or presented after adjournment, and any such bill shall become law on the CHAIRMAN: You’re suggesting an amendment? forty-fifth day unless the governor shall have given by HEEN: Point of information. May I ask the last speaker proclamation ten days’ notice to the legislature that he what page she is reading from. plans to return such bill with his objections on the said forty-fifth day. The legislature may convene at or before CHAIRMAN: Page 27, Delegate Heen. noon on the said forty-fifth day in special session, without ASHFORD: Of the report. call, for the sole purpose of acting upon any such bill re turned by the governor. In case the legislature shall fail to CHAIRMAN: Of the report, and it’s addressed to Section so convene, such bill shall not become law. Any such bill 18 of the proposal. may be amended to meet the governor’s objections and, HEEN: That part of that particular section relating to if so amended and passed, only one reading being re pocket veto is not too clear in the language that was finally quired in each house for such passage, it shall be pre adopted, and because of that I have prepared an amendment sented again to the governor, but shall become law only that clarifies the situation and removes a great deal of the if he shall sign it within ten days after presentation, ambiguity that existed in the draft as adopted by the Com Sundays and holidays excluded. No salary shall be paid mittee of the Whole and which is now incorporated in the to the members of the legislature when convened for this proposal attached to the report of the Committee of the purpose. Whole. The last one there is already in the bill, and perhaps CHAIRMAN: Has it been printed, Delegate Heen? Your should not have been included because this was designed to amendment? amend only the second paragraph of Section 17. The Style Committee, however, can take care of this situation. HEEN: It has. It’s ready for distribution. I move the adoption of that amendment. CHAIRMAN: Committee may stand in recess while the FUKUSHIMA: I second that motion. clerks are distributing the proposed amendment. ROBERTS: I’d like to have Delegate Heen explain the (RECESS) purpose of his amendment and the changes made from the from the one we previously adopted. CHAIRMAN: Committee will come to order. CHAIRMAN: Will you do that, Delegate Heen? HEEN: I might state that this proposed amendment is an amendment to the second paragraph of Section 17 instead HEEN: In the form adopted by the Committee of the of 18. This was prepared before one of the sections of the Whole in the third sentence there, “on the said forty-fifth committee proposal was deleted the other day, so I would day the bill shall become law notwithstanding the failure of ask the delegates to change the figure 18 to 17 in the second the Governor to sign it within the period last stated unless line on this RD 1 draft. at or before noon of that day he shall return it with his objections to the legislature which shall convene on that CHAIRMAN: You offer that as an amendment, Delegate day in special session without call, for the sole purpose of Heen? acting upon bills returned by the governor, unless he shall 264 LEGISLATIVE POWERS AND FUNCTIONS fail to give the notice hereinafter provided.” It’s a little same day, and it goes on to the governor a different day, confusing there with that second “unless” being in the pic and every time he vetoes one bill we’re going to - - the leg ture. That’s at ten days’ notice. islature is going to convene? ROBERTS: When we first amended this section it was CHAIRMAN: No, no. This is designed to cure the so- to make sure that the legislators were given adequate notice called evil of the pocket veto. It will make the governor to appear if the governor planned to return some of those give ten days’ notice within a forty-five day period after bills with his veto. Ten days’ notice having been given, they the adjournment that he proposed to do that. then knew that the governor was going to present that. Now, if he gave no notice, then it was the intention that the gover HEEN: I think I can answer the delegate’s question. We nor did not plan to veto any of the bills but adopted them all. had in mind that these bills will be presented to the governor at different times where he can exercise the pocket veto. If HEEN: Now, there’s been a change of position of that he sends it on the ninth day before adjournment sine die, that’s “ten days’ notice” and “any such bill.” In the proposed one bill that he can pocket veto. If he sends another bill say, amendment, “and any such bill shall become law on the ten days after adjournment, that’s another bill that may be forty-fifth day, unless the governor shall have given by pocket vetoed. But all these bills become law on the forty- proclamation ten days’ notice to the legislature,” when the fifth day after the adjournment unless he notifies the legis ten days’ notice is given then that bill does not become law. lature that he plans to veto the bill by sending the bill with ASHFORD: Mr. Chairman. his objections. They all have to go into effect, all on the forty-fifth day, the same day, no matter when they are pre CHAIRMAN: Delegate Heen still has the floor. sented to the governor by the legislature. That is, they must, of course, be presented not more than ten days before HEEN: Then the legislature may convene on the forty- the adjournment. fifth day in special session without call for the sole purpose of acting upon any such bill. Then this goes on further to say, ARASHIRO: That means that the last bill that goes to if “In case the legislature shall fail to so convene such bill the governor, and the governor had the intention of pocket shall not become law,” notwithstanding the fact that it has vetoing the bill, then the governor must notify the legisla not been returned to the legislature for failure of the legis ture that that bill is going to be pocket vetoed on the thirty- lature to convene. However, it shall not become law. Then fifth day. Is that right? the latter part of this makes it clear whether or not after CHAIRMAN: That’s right. making any amendments there should be three readings or one reading only. This makes it clear that the bill may be RICHARDS: I have a question to ask the movant. The amended in order to meet the objections of the governor, situation as I interpret the reading is that if a bill is re which then will require only one reading by each house. turned by the governor on the forty-fifth day with some suggestions for amendment and the legislature does follow ASHFORD: I’m opposed to this amendment and I am those suggestions, he still has the right to veto. Now a opposed to it because of the insertion of that one sentence, situation can arise where the legislature, who has the power “In case the legislature shall fail to so convene, such bill to override his veto, would prefer to override his veto on shall not become law.” In effect that transfers the veto the original bill and not conform to the governor’s sugges power from the governor to the legislature. In other words, tions, Whereas, by conforming to the governor’s suggestions, the governor advises the legislature that he is going to veto they give him a power to veto. certain bills. Now the legislature can then fail to convene to consider his reasons and to act in accordance with their HEEN: That’s correct. desires upon the matter and the bill becomes law. In other words, a failure of a majority of the legislators to come CHAIRMAN: That’s up to the legislators, isn’t it? can override the governor’s veto, and to me that’s wrong. HEEN: At the last stage of the proceedings, when the HEEN: That does not override the governor’s veto. legislature sees fit to do so and amends the bill in order to meet the objections of the governor, the presumption is, CHAIRMAN: It’s just the reverse. of course, that the governor will approve that bill when it is HEEN: That sustains the governor’s veto. If the legis again presented to him. Otherwise, it wouldn’t make sense. lature wanted to override the governor’s veto, then, of course, If the legislature does not approve the objection or does not they will meet, convene, and by a two-thirds vote override agree with the governor as to his objections, then they can the governor’s veto. override the governor by a two-thirds vote. ASHFORD; I submit that that is an incorrect reading of CHAIRMAN: I think what Delegate Richards is pointing the sentence. “In case the legislature shall fail to so con out is that there’s a certain amount of risk in amending, which, vene, such bill shall not become law.” In other words, they of course is inevitable as the Chair sees it. You may not veto by a majority failing to convene. override it. CHAIRMAN: Wouldn’t this be the situation. The governor TAVARES: For the purposes of the records, I would like would already have indicated his pocket veto by saying he to ask if the movant agrees with me that in the second line, wasn’t going to sign it. So the failure to convene would sim the words “Sundays and holidays excluded” applies to every ply uphold the exercise by the governor. Is that not the period of days thereafter mentioned. In other words, that situation? interpretation, “Sundays and holidays excluded,” also applies ASHFORD: No, not at all, because the law - - Oh, I’m to the other periods mentioned later in the section. wrong. I’m wrong. I’m wrong. I apologize and recede. HEEN: The second paragraph, I might answer that ques ARASHIRO: Does this mean then that the legislature is tion, says, “The governor shall have forty-five days after going to convene every time that the governor intends to the adjournment of the legislature sine die, Sundays and veto a bill, which bills do not go to the governor all on the holidays excluded .“ JULY 13, 1950 • Morning Session 265 TAVARES: There is another provision, though, in the this convening of the legislature alter the forty-five days, first paragraph, in the second and third lines. “The gover it’s presumed and understood by the members of this Con nor shall have ten days, Sundays and holidays excluded, to vention that they will be eligible for travel pay and per diem. consider bills presented to him ten days or more before Is that our understanding? I ask that question to the movant adj ournment.” I take it that ten days or more means Sun of the amendment. days and holidays excluded to coincide with the first portion. That’s what I mean. FUKUSHIMA: If the delegate was present at the time when the Committee of the Whole met to discuss this matter, BEEN: Where about is that? that question would be unnecessary because that was ade TAVARES: In the first paragraph. quately discussed. It does not preclude the payment of travel expenses or any other expenses but the salary alone. CHAIRMAN: The first paragraph of the amendment, Delegate Tavares? MIZUHA: This is a new amendment. TAVARES: Yes, Mr. Chairman. It reads: “The gover DELEGATE: Question. Question. nor shall have ten days, Sundays and holidays excluded, to CHAIRMAN: The question is on the sense of the inter consider bills presented to him ten days or more before pretation of this proposed amendment. All in favor signify adjournment.” That ten days or more I presume, as I read by saying “aye.” Contrary. Carried. - it, means Sundays and holidays excluded also. I think that’s obvious intent, otherwise those two periods wouldn’t coin TAVARES: One more question. In the sixth line from cide. the bottom of the second paragraph of this amendment, the sentence reads: “And such bill may be amended to meet BEEN: There is some slight - - it’s a little indefinite the governor’s dbjection, and if so amended and passed” there as to whether or not the second ten days - - and so forth. Now, the legislature may not want to amend CHAIRMAN: Don’t we have a statute that covers this, it the way the governor wants. They may want to amend it Delegate Tavares? some other way, and I don’t think they should be forced to amend it just the way the governor wants to. And I, there TAVARES: Whether we have or not, if it’s the sense of fore, move to delete the words “to meet the governor’s nb the Convention - - we take a sense vote that we mean Sun jections.” And then the legislature - - if the legislature days and holidays excluded in all these other ten-day pro wants to take a chance on the governor pocket-vetoing it visions mentioned, why we’re - - that I think is sufficient. alter that with those other amendments, they can do so. I think that is the intent I read from the whole section. Perhaps, they’ll meet the governor half way. This forces Otherwise, some periods won’t coincide. For instance, the legislature to either take everything the governor says the forty-five day period, Sundays and holidays excluded, or nothing. And if the legislature is going to convene again, after the legislature adjourns, in order to have the ten I don’t see any reason why, if they want to take a chance of days’ notice come out properly, the ten days’ notice the a pocket veto, they shouldn’t say, “All right, Mr. Governor, Governor gives before the forty-five day period expires we’ll give you half of what you ask but we won’t give you should be ten days, holidays and Sundays excluded. all.” And maybe the governor will sign it. CHAIRMAN: Delegate Tavares, would it be your view SAKAKIIIARA: I second that motion to delete. that it’d be better to take it out of here and have a sense vote and have that situation apply to the whole amendment? PORTEUS: I think that this is a reasonable scheme for TAVARES: No, Mr. Chairman. I think if we take a sense permitting the legislature to come back and reexamine the vote that it means the same whether we put that “Sundays various bills in order to see whether or not that in the opin and holidays excluded” or not in each place. I think we’ve ion of the legislators the bill should become law despite taken care of it. And I so move, Mr. Chairman. the governor’s objection. However, I’d like to point out if you don’t look out, with the sixty day session one year, ASHFORD: I don’t believe that will do it. In other words, that’s two and a half months; thirty day session the next I don’t think a sense vote will be sufficient where we express year, that’s at least a month and a half; it takes you two in two places the fact that Sundays and holidays are excluded, months to get elected; then you’ve got to come back alter and then two other places we don’t. My own suggestion would the general session; then you’ve got to come back alter the be to leave out “Sundays and holidays excluded” there, and budgetary session. Then instead of just dealing with the then put at the end that the number of days in each instance veto, yes or no, we want the bill as it is, and also instead shall exclude Sundays and holidays. of just saying yes, we’ll meet certain of the governor’s ob jection, the legislature apparently can write a new bill on TAVARES: I believe that if we make that sense vote, the same subject. Now all we’re doing is going to get into the Style Committee will then make the proper adjustment, another extended legislative session, with no pay and only because the Convention will then have gone on record and a per diem. And I don’t like to see the legislature have to Style can take care of that. return and I don’t like to see the opportunity of sitting down LEE: I believe with that understanding, in order to facil and taking a bill on a certain subject and rewriting the itate the work here, I second the motion made by Delegate thing entirely differently and be there for I don’t know how Tavares with the understanding that the Style Committee long. will follow the suggestion outlined by Delegate Ashford which, It seems to me when the legislature has passed it, the I think, is a good one. governor points out the objections, the legislature wants CHAIRMAN: In other words, for the purposes of dealing to override his veto, they can try it. if they fail, that’s the with this section wherever the period of days is contained, end of it. if they want to try to meet his objections, they Sundays and holidays will be excluded. may try. But to start writing new legislation is just provid ing that we’ll have another session. Now if we’re going to MIZUHA: I rise to a point of information. In order to have another session, let’s just have another session eliminate any headaches for our future attorney general, and start all over again. So that if we want to divide the 266 LEGISLATIVE POWERS AND FUNCTIONS subject into two bills instead of one, why we can do it and subject matter, which is always a restriction on the legis start all over, but let’s not get into a third session on top lature going too far afield in making the amendment. of the two sessions we’ve provided. Suppose for instance, Mr. Chairman, the governor sends back an objection. “You want ten new teachers. We think TAVARES: That argument sounds all right on the face that’s too much.” The Governor says, “You have got too of it but let me show you what it leads to. The governor many, ten too many.” The legislature says “No, we’ll make often in his veto message sends back his objections in it five then.” You have the question of whether they have general terms, and if you leave this in here then the courts complied with the governor’s obiection. will have to decide whether the amendment actually adopted by the legislature and even signed by the governor actually LEE: I wonder who’s talking tweedle-de-dee and tweedle did meet hisobjections, and if it didn’t the law is void any de-dum right at this moment. It seems to me, Mr. Chair how. You’re bringing yourself a lot of trouble in the courts man, your question wasn’t fully answered. When you asked if you leave that statement in. a question, I believe you knew the answer. It was a political Secondly, the governor may be wrong in his objections. question. He may say that certain things should go in and they may actually be wrong grammatically and otherwise. And if the CHAIRMAN: That’s the Chair’s view. legislature does the thing substantially correct but not the way he wants it, but meets his objection substantially in a LEE: Furthermore the matter of meeting the objections way a little different from what he said, again you have the of the governor, it’s very plain when a governor vetoes a bill. question of whether their action is valid even if the governor He states his reason and if the legislature has to override approves it. And, Mr. Chairman, you’re running yourself it, they can override it or they can meet his objections. And into an awful lot of trouble. I say that if you leave that in some of his objections may be substantially met, they don’t there, you’re making it very difficult and you are making have to be met in full. We’ve got to take the word in its the legislature swallow everything the governor wants, word common sense meaning. We can’t divide the word “objection” for word, even if the governor is wrong and even if he, upon into 100 bundle of sticks and as long as one bundle, one stick being told, thinks it was O.K. isn’t - — the objection isn’t met, that therefore it might develop a judicial question. I can’t see any objection to the CHAJRMAN: The Chair would like to ask Delegate Tava present language. res a question. Delegate Tavares, is it your opinion that un der this language, if the two executive and legislative HEEN: With a constitutional provision such as this, the branches of the government would reach an agreement on a governor is going to be very careful in stating his objections subject matter, that it would be a judicial question whether specifically. if the bill says that they must have ten teachers or not the legislature had then met the governor’s objection? over in Hio and he objects to that and says that they should have five, it’s very easy to meet that objection by changing TAVARES: I think that is a possibility there; that is, the ten to five. And if it’s a question of policy which does that the governor might agree to it afterwards. But the ob not meet with the approval of the governor, he can say so, jections he made are made at the time he submits his report. that this bill is not a sound bill. Then that question is one Now here’s what can happen. The governor says the legis that can be overridden by the - - When a veto is based upon lature made a mistake. The legislature says, “Yes, we made a matter of policy, then it’s up to the legislature to either a mistake and we’ll correct it, but the correction you want sustain him or override his veto. isn’t the right correction. We will correct it a little differ ently.” Now they don’t have time to go up to the governor, back and forth and get an absolute signed agreement that they ROBERTS: I think we ought to keep in mind the basic have complied to his objections. They may want to pass purpose of this section in the Constitution. As I understand several bills in succession and adjourn. And so they pass its meaning, it cuts two ways. One, it is a basic prohibition these bills admitting they’re wrong to some extent, admitting against the leginlature putting bills to the governor, passing the governor’s right, but saying that the particular way he bills and then going home and saying, “We passed a law and wanted it corrected isn’t the right way to do it. And my the governor has vetoed it.? It puts a pressure on the legis fear is that in so doing they are running a question of whether lature to submit bills and pass them only when they want they have complied with the governor’s objections. them passed. It makes it quite clear that the governor can put them right on the spot by calling them back in session. SAKAKIHARA: Will Delegate Tavares accept further It also cuts the other way. It makes sure that the gover amendment to his amendment by including in the amendment nor, when he has an obj ection, states it, and if he thinks that the deletion of, after the word “objections,” “and if so the veto is improper, then gives these individuals in the leg amended.” So that it will read, “any such bill may be islature a chance to override it. amended and passed - -“ I’m speaking on the amendment It cuts both ways, but it seems to me that once you pre that Delegate Tavares offered here which I seconded. sent a bill, once you pass it, you submit it to the governor, The governor then very clearly spells out in what specific TAVARES: Mr. Chairman, the veto - - ways the bill is objectionable. The legislature’s hands ought CHAIRMAN: There’s been a request to see whether or not to be tied, and to meet the specific issue, if they pass the you accept that amendment. bill, then they ought to be able to back it up and to override the veto of the governor. They ought not to write new bills. TAVARES: The veto power is covered by another section We provide here that there shall be onLy one reading. if which will apply if they override his veto. they’re going to write new statutes, then we ought to have at least three readings to make sure that it’s properly under CHAIRMAN: The answer is no, Delegate Sakakihara. stood. So that they can’t pass the buck again to the governor, TAVARES: I don’t think this would cover it. I think if either you mean it specifically as you have in the present it is amended, it should be made clear they can amend it on language or else you remove the entire section. You’ve got one reading. There is a protection. The bill must be one to put an end to the proposal some time along the way. JULY 13, 1950 • Morning Session 267 PORTEUS: I wonder whether or not we might be able FUKUSHIMA: I believe we’ve had enough debate on this. to meet the difficulties that we seem to be discussing at This was proposed by Delegate Heen as a perfecting amend the moment by the insertion of the word after “meee’- - ment. So I now move the previous question. CHAIRMAN: After what? CHAIRMAN: No, the question is on the amendment of PORTEUS: After “meet,” where it says, “Any such bill Delegate Tavares, the Chair believes. may be amended to meet the governor’s objection and if so FUKUSHIMA: The second was withdrawn. amended,” etc., to insert the words, “any of” after “meet” so that it could be -- CHAIRMAN: Oh, it was withdrawn. Are you ready for the question? All those in favor of the amendment, signify CHAIRMAN: The Chair can’t hear you, Delegate Porteus. by saying “aye.” Contrary. Carried. PORTEUS: I’m sorry. In the last sentence of the second DELEGATE: May we have a short recess for the benefit section - - second paragraph where it starts, “Any such bill of the clerks? may be amended to meet the governor’s objections and if so amended,” etc., I’d like to insert the words “any of” after FUKUSHIMA: I now move the adoption of Section 17 as the word “meet,” so that it would read as follows: “Any amended. such bill may be amended to meet any of the governor’s J. TRASK: Second the motion. objections,” and then we would go on. By making an amend CHAIRMAN: It’s been moved and seconded that Section ment such as that, I think that we could meet the difficulty 17 as amended be adopted. posed by Delegate Tavares. I wonder if I might have his attention. SAKAKIHARA: That is as amended by Senator Heen’s amendment? CHAIRMAN: It doesn’t appear to the Chair, Delegate Porteus, that that would present any judicial question. I CHAIRMAN: That is correct. Are you ready for the would doubt that very much. question? All those in favor signify by saying “aye.” Con trary. The ayes have it. Carried. PORTEUS: I’m speaking, Mr. Chairman, to the attention of the delegate here. Chair will declare a short recess. CHAIRMAN: The delegate was wandering around the floor. (RECESS) TAVARES: Sorry, Mr. Chairman. CHAIRMAN: Will the committee please come to order. SAKAKIHARA: Mr. Chairman. KING: I move that the committee rise and recommend CHAIRMAN: Delegate Porteus has the floor. the adoption of Committee of the Whole Report No. 24, and the passage of Committee Proposal No. 29 on second PORTEUS: I think that the use of the words “any of” reading as amended, and Committee Proposal No. 30, with would meet the argument presented by my fellow colleague out amendment. from the fourth district when he says that the legislature might want to meet some but not all of the governor’s ob NODA: I second the motion. jections, as the legislature might determine that some of HEEN: I think the motion should be to adopt the committee those objections were not well taken. I think the insertion report subject to the amendments which have been made. of those words would completely dispose of that argument. I think it would also be better to restrict, as Delegate KING: I accept the amendment. Pass second reading Roberts has indicated, the activities of the legislature to subject to amendment to the Committee Proposal No. 29. meeting the objections—either overriding the veto of the bill ASHFORD: As I see it, the report will have to be as passed, meeting some or all of the governor’s objections, amended by striking out the paragraph I objected to, to or putting an end to the matter there. Because if you’re going meet the amendment. to go in and start amending, then we’ve got to really get into the whole legislative procedus’e, and I don’t think we want CHAIRMAN: The Chair would like to avoid that, if he to do that. could get your permission. TAVARES: My only thought was this. The governor may ASHFORD: That wasn’t the intention of the Committee not suggest the exact wording of the amendment. He may of the Whole. I didn’t want that staying in the report. send the bill back with general objections. The governor CHAIRMAN: Very well, The action is on the report and may interpret it one way, as we do here, and the legislature proposal as amended. another, and so they pass an amendment thinking they have met his objection. But if they are mistaken, if in fact, as HEEN: The motion is to adopt the committee report sub interpreted properly, the governor’s objections was not ject to the amendment made to the committee proposal. actually met by the amendment, the question in my mind is KING: That will be all right. The adoption of the com even if the governor thereafter approves the bill, is it going mittee report is to be insofar as it is not inconsistent with to be valid? I think there is a question unless you are going the amendment. to say that when the governor approves it, he then signifies that his objections have been met. I am not sure the courts CHAIRMAN: Are you ready for the question? All those will so interpret it. in favor signify by saying “aye.” Contrary. Carried. TAVARES: One further motion, that this motion also CHAIRMAN: Well, what better evidence of his approval includes leave to file a supplementary report setting forth could you have than that? the amendment recommended. SAKAKIHARA: In order to shut off any further debate, CHAIRMAN: I gather that is obligatory in view of the I withdraw my second to Delegate Tavares’ amendment. amendment. Debates in Committee of the Whole on EXECUTIVE POWERS AND FUNCTIONS (Article IV) Chairman: EDWARD C. BRYAN JUNE 20, 1950 • Morning Session suggests amendments to various sections in Proposal No. 22, and for that reason, I feel it would expedite matters if CHAIRMAN: Committee of the Whole please come to Delegate White will offer his amendment as we proceed with order. The Chair will recognize Delegate Okino, chairman each section of Proposal No. 22. of the Committee of Executive Powers and Functions. CHAIRMAN: Is that satisfactory, Delegate White? OKINO: I believe it is fair for me to assume that all of you have already read our Committee Report No. 67 and two WHITE: Yes. other committee reports filed by the minority, I believe it CHAIRMAN: Is that satisfactory with the Delegates Kage, is also fair for me to assume that you have read Committee Ohrt, etc.? Proposal No. 22, attached to the Standing Committee Report No. 67. May I at this time briefly refresh your memory OKINO: Yes. and read two paragraphs of Committee Report No. 67. CHAIRMAN: Is it? Yes, it is. The fundamental principle upon which your committee proposal was drafted is that of concentration of executive LAI: I move for the adoption of Section 1. power in the governor, which would give the best govern APOLIONA: I second the motion. ment. Consistent with this principle, your committee proposal provides, for the election of only the governor CHAIRMAN: It has been moved and seconded that Sec and lieutenant governor and for the appointment of prin tion 1 of Standing - - of the proposal attached to Standing cipal department heads to serve at the pleasure of the Committee Report No. 67 be adopted. governor. There shall then be a very short ballot. The DOl: I thought we had agreed a few seconds ago that we principle is comparable to that found in the management were to take it up paragraph by paragraph where one section of corporate enterprises. Its advantages may be summed contained more than one paragraph. Therefore, I think the up in the statement that, in concentrating executive power, motion is out of order. it fixes responsibility for the efficient conduct of govern mental affairs and enables the electorate to judge the CHAIRMAN: Well, can we do this? Can we consider merits of the administration. paragraph 1 and when that is finished vote on it, and then Your committee has subscribed, by and large, to the consider paragraph 2? Or would you like to have a motion principle that a constitution should state only basic funda for each paragraph? mentals, and that many desirable matters, for which there DOl: I think it’s proper to go - - a motion for each is strong temptation to make constitutional provisions, paragraph. should be left open for legislative treatment as future conditions may require. Your committee believes that CHAIRMAN: The Chair will so rule. it is only through such delegation to the legislature that LAI: i so move. I move that we adopt the first paragraph the flexibility necessary to keep government in step with of Section 1. economic and social development is possible. APOLIONA: I second that motion. I suggest that we go to Committee Proposal No. 22 at this time and that we take the proposal section by section, CHAIRMAN: It’s been moved and seconded that we adopt and if any section contains more than one paragraph, then the first paragraph of Section 1, Committee Proposal No. 22. we take that particular section with more than one para Are there any questions? graphs - - more than one paragraph, by paragraphs. TAVARES: For the record, I should like to have the CHAIRMAN: That is satisfactory. Just a second please, reason explained for this provision: “The person receiving Delegate Lai. I’d like to ask the chairman of the committee the greatest number of votes shall be the governor.” if he has any recommendations on the method of taking up OKINO: That’s paragraph 2. the minority reports. Can they follow afterwards or shall we take them up with any particular section? TAVARES: Oh, I’m sorry. OKINO: I suggest that we take it up together with the OKINO: Mr. Chairman, that’s paragraph 2. Committee Proposal No. 22. If you will study the minority CHAIRMAN: Are there any questions on paragraph 1? report filed by Delegates Ohrt, Kage and Loper, it pertains to a new subject matter which is not covered in the Commit MAU: Just a question, Mr. Chairman. Are we tentatively tee Proposal No. 22. It is an amendment offered to include agreeing to paragraph 1? If we adopt it, in order to recon a new section to be numbered 11, namely, for the establish sider we have to move to reconsider. Isn’t it better, because ment of the administrative manager. Now the minority re we don’t know what the effect of other paragraphs would be port filed by Mr. Crossley pertains to only two paragraphs in the other sections that we just tentatively agree without of Section 10 of the Committee Proposal No. 22. The com actually taking formal action so that a motion for reconsider mittee minority report filed by Delegate White makes - - ation need not be made? 268 JUNE 20, 1950 • Morning Session 269 CHAIRMAN: Well, I think that in the paragraphs that are to begin with is very ambiguous, is not clear. Also, the to follow, some of which may be little bit more complex, that subject matter, as I gather, covered in this section can be if we don’t move and vote on each paragraph, we’ll never easily covered by statute. It is a legislative matter. And know when we’re tentatively agreed on it. So if - - perhaps I think the question of contested elections is partly covered if Delegate Lai would change his motion that would satisfy in the suffrage section of this Constitution. Therefore, I you, but I think we should still have another motion in order think a short single sentence for this paragraph here is to reconsider after it’s been voted on. The delegate accepts sufficient. that suggestion. All those in favor of tentative agreement on Section - - CHAIRMAN: Delegate Okino, did you ask for the floor? the first paragraph of Section 1 say “aye.” Opposed. ROBERTS: I have a question to ask the previous speaker. DELEGATE: I move for the tentative - - The proposal as I gather is to delete the paragraph and to substitute one sentence, “The governor shall be elected as CHAIRMAN: That vote was carried incidentally. provided by law.” Law is established by legislature. I LEE: I notice that one of the delegates sought to speak. assume that the legislature that you have in mind under this We are in the Committee of the Whole. It seems to me Constitution will be elected at the same time that the gover that where a delegate desires to speak, the Chair should nor is elected in the first Constitution. You don’t have any recognize the delegate before putting the vote. law until the legislature meets. DOI: If that is the problem we could provide for that in CHAIRMAN: I’m sorry but I did not notice the delegate the ordinances and continuity section of the schedules. until after the vote had been called. Would you like to speak on that subject, Delegate - CHAIRMAN: I believe that’s correct. Any further dis cussion on this question? [Delegate’s reply inaudible.] PORTEUS: I take it that we are assuming that “The gov LEE: The delegate was standing up to be recognized. ernor shall be elected as provided by law” means that the CHAIRMAN: I’m sorry. governor shall be elected by popular vote. That’s not what this amendment says, however, If it says the elected gover ASHFORD: Is the executive power vested in the governor? nor shall be elected as provided by law, the legislature Won’t there be commissions and other matters which are might elect the governor. It does not cover popular election, not, which are at least semi-independent from the governor statewide election. and perhaps independent from the governor, who will have some of the executive power? ASHFORD: In the event that we continue to have a pri mary and a general election, this would not be covered be CHAIRMAN: I’d like to refer your question to the chair cause the one receiving the greatest number of votes at the man of the committee. primary, even though not a majority of all votes cast, would OKINO: Maybe so, if the legislature should provide ~ still be the governor. special board and commission. By this - - by and large OKINO: It would seem to me that the legislature, in pro this particular power has always been vested in the gover viding laws relative to election, would specifically provide nor of the Territory of Hawaii. The expression is found in that~ any candidate running for the office of governor in the. the constitution of all the states, I believe. primary election will not be elected governor of the State CHAIRMAN: Is that satisfactory? of Hawaii, and that the election will result from the result of the general election, and by reason of that fact, it would OKINO: The 48 states of the United States, and it also seem that this particular clause appearing in paragraph 2 appears in the Constitution of the United States of America. of Section 1 would be so construed. Exceptions, special exceptions have been made at times by the legislature when a special board or commission has DOI: The suggestion made by Delegate Porteus is well been created, which board or commission may be vested taken and, with the permission of the Chair, the movant at with special executive functions. this time would like to amend the amendment to read, “The governor shall be elected by the legally qualified voters of LAI: I move for the tentative adoption of paragraph 2 of this State as provided by law.” Section 1. CHAIRMAN: Is there any second? Just a moment, APOLIONA: I second that motion. please. CHAIRMAN: It’s been moved and seconded that we ten SAKAKIHARA: Second it, Mr. Chairman. tatively adopt paragraph 2 of Section 1. OKINO: I’m sorry, what was that motion? DOl: I would like to amend Section - - rather paragraph 2 of Section 1 by providing in lieu thereof one sentence to CHAIRMAN: Would you restate your motion please, Dele read: “The governor shall be elected as provided by law.” gate Doi? I might ask that you withdraw your former motion. CHAIRMAN: Do you make that in the form of a motion? DOl: That is right; I withdraw my first motion. The DOl: Yes. motion would read: “The governor shall be elected by the legally qualified voters of this State as provided by law.” SAKAKIHARA: Second it. HEEN: I rise to a point of information. CHAIRMAN: It’s been moved and seconded that paragraph 2 be amended to read: “The governor shall be elected as CHAIRMAN: Will you state your point? provided by law.” Any discussion? HEEN: What is the purpose of having that phrase added, DOl: A few words in favor of the motion. The sentence “as provided by law”? there, “The person receiving the greatest number of votes,” CHAIRMAN: Delegate Doi, would you like to answer that? 270 EXECUTIVE POWERS AND FUNCTIONS DOl: I have been debating that question myself and prob HEEN: No, I have not. I thought I’d pose that question ably Delegate Heen can help resolve the question. for the consideration of the Convention. If it’s deliberately intended that a person receiving the greatest number of CHAIRMAN: Do you have a suggestion, Delegate Heen? votes may be one who does not receive a majority of the votes, then this is all right. I don’t know whether it was so HEEN: It seems to me it’s not necessary there. Let the intended. Constitution itself state how he is to be elected, that he is to be elected by the qualified voters, as stated now, by the OKThIO: The committee did so intend. That particular qualified voters of this State. The New Jersey provision in question raised by Delegate Heen has been considered by this connection reads as follows: “The governor shall be the committee members. The history of - - the political elected by the legally qualified voters of this State.” Going history of the Territory of Hawaii has shown that there have on beyond that particular sentence, I might read from the been no more than two parties. We have studied the consti New Jersey Constitution. “The person receiving the greatest tutions of other states wherein are more than one - - more number of votes shall be the governor; but if two or more than two major political parties, but history has shown that shall be equal and greatest in votes, one of them shall be no third party has shown any strength to be considered in elected governor by the vote of a majority of all the mem the matter of an election of a governor of that particular bers of both houses in joint meeting at the regular legisla state. tive session next following the election for governor by the ARASHIRO: I wish to at this time make an amendment people. Contested election for the office of governor shall to the amendment by inserting “in a general election” after be determined in such manner as may be provided by law.” the word “votes” in the third line of the second paragraph, ANTHONY: I’d like to pose this question to the commit to read as follows: “The governor shall be elected by the tee - - that is the Committee on Executive Powers. Should legally qualified voters of the State. The person receiving not the Constitution contain a section that’ll have within its the greatest number of votes in a general election shall be own framework the method of electing the governor, just the governor.” exactly as the Constitution of the United States does, in KAWAKAMI: I second the motion. order that we need not go to the legislature or any other place to establish by law that framework? I just pose that as CHAIRMAN: It’s been moved and seconded that the a question to the committee. amendment of Delegate Doi be further amended. OKINO: The constitutions of all 48 states, including that ARASHIRO: I think that amendment will take care of the of the United States, have apparently given special attention question raised by the delegate from the fourth district and to the election of the governor, who is the highest executive also the question raised by the delegate from the fifth dis officer of the state. And it is for that reason that the method trict, whether the governor will be elected in the primary of election of a governor has been singled out by enacting a or not. And the person receiving the vote, the highest num specific - - by enacting specific provisions with reference ber of votes in the general election, will mean whether we to that subject matter. have three or four parties doesn’t make any difference, be cause it is the final election when the person who receives ANTHONY: That doesn’t quite reach the question. The the greatest number of votes in the general election should question is whether or not we should have in the Constitution, be the governor. without resort to legislation, a method of electing the gover nor. In the Federal Constitution, like in the New Jersey CHAIRMAN: I’d like to ask Delegate Arashiro to read Constitution, there is such a method, a constitutional method. his amendment once more, please. In this proposed section, it is a method but it is to be provid CROSSLEY: Before he reads it, a point of information. ed by law. In other words - - CHAIRMAN: State your point. OKINO: It’s an amendment. That is the amendment offered by Delegate Doi. Then I take it you are speaking CROSSLEY: I believe that the amendment should be to against the amendment. What the committee did was follow the section rather than to the previous amendment, so it the provision in the New Jersey Constitution. Section 1 of would be an amendment to the section. this article, Committee Proposal No. 2, is basically from CHAIRMAN: U it’s an amendment to the section, I think the New Jersey Constitution, the section with reference to the Chair will have to rule that it be held in abeyance until a tie vote. we vote on the pending amendment. HEEN: This provides that the person receiving the greatest number of votes shall be the governor. Now, it SHIMAMURA: May I speak to the original amendment may mean that the candidate running for election and re proposed by the gentleman from Hawaii? U we proceed on ceiving the greatest number of votes may not receive a the premise that our government is founded on the separation majority of the votes. It might be a plurality vote, and of powers, and if we believe in the fundamental doctrine of therefore, is not an elected governor representing the the separation of powers, then I feel that it’s inevitable that majority of the votes. We, I think, were thinking in terms we adopt within our Constitution a definite procedure of of there being only two parties, political parties, putting up electing the governor, just as in the Federal Constitution the candidates for election to the office of governor. There President is provided for in detail, the method of election might be four parties in the field, four political parties, and and so forth. U we leave it up to the legislature, I feel that when you split the votes up, the one receiving the greatest the chief executive may be at the mercy of the legislature. number of votes may not receive the majority of all the votes. CHAIRMAN: I would ask the delegate if he has an amend ment to that effect. CHAIRMAN: I’d like to ask the delegate from the fourth who just spoke, Delegate Heen, do you have an amendment SHIMAMURA: I am speaking against the proposed amend to propose? ment by the gentleman from Hawaii. JUNE 20, 1950 • Morning Session 271 LOPER: That was the point I wished to make when I rose ANTHONY: I’d like to have the amendment read, if we to get the floor a moment ago, that the amendment which is could. being considered apparently is designed to do two things; one is to abbreviate this particular section, and the other is CHAIRMAN: I would like to ask Delegate Doi to restate to leave it to the legislature. It would be quite possible to his amendment. boil down this paragraph and the two following paragraphs DOI: “The governor shall be elected by the legally quali into one sentence: “The governor shall be elected by the fied voters of this state as provided by law.” legally qualified voters of this State for a four year term, and he shall have such qualifications as may be prescribed ANTHONY: That’s exactly what we don’t want in the by law.” But if, as the previous speaker has said, we wish executive article. We don’t want to leave the possibility of to provide for a separation of powers, it seems to me that whether or not we are ever going to have a governor, namely the executive should not be left entirely to the legislature. “as provided by law,” to any legislation. There should be It seems to me it’s almost as important to provide for full provided in this Constitution the framework of electing the coverage on the executive as for the judiciary. governor, and I don’t know why we don’t simply take Section 4 of the New Jersey Constitution which is perfectly clear. TAVARES: Before voting on the proposed amendment. I’d “The governor shall be elected by the legally qualified voters like to see if my understanding of this original set out para of this state. The person receiving the greatest number of graph is correct. As I understand it, the purpose of the votes shall be the governor, but if two or more shall be equal second sentence reading: “The person receiving the greatest and greatest in votes, one of them shall be elected governor number of votes shall be the governor,” is first to make it by the vote of a majority of all the members of both houses clear that the governor does not have to be elected by a in joint meetings at the regular legislative session next follow clear majority of all of the persons voting at an election. ing the election for governor by the people. Contested elections That is one of the purposes. for office of governor shall be determined in such manner as OKI.NO: That is correct. may be provided by law.” Now in such an article you have complete constitutional TAVARES: As I understand it, using the ordinary mean framework for the election of the governor. The only time ing of such terms, ordinarily the courts would understand that you have to resort to legislation is in the event of contest. that to mean the vote at a final election rather than a pri The suggested amendment would leave it to the mercies of the mary, because generally speaking a primary election is not legislature to make a provision. In other words, you might really considered an election in the technical sense of the get a legislature that wouldn’t make any provision, then what term under constitutional provisions. Just like our Organic are you going to do? Act. It has been held a primary election is not an election within the meaning of our Organic Act. SMITH: May I ask a question of the last speaker? Is that There is one more matter I would like to clear up and an amendment you were just proposing? that is that speaking—although I’m a little out of order—to ANTHONY: I was speaking in opposition to the amendment Delegate Arashiro’s proposed amendment, I think since it’s of the delegate from Hawaii. I don’t think it reaches the fun understood and will be understood in the courts that a final damental problem here. We want to incorporate in the exec election is meant, we do not need to put this special wording utive article complete workable framework for the election in about a general election, because you may have to elect of a governor, and this does not do it. an interim governor if you have a special election, in which CHAIRMAN: Are there any other comments on the pro case that wouldn’t apply. posed amendment? If not, all those in favor of the amendment CHAIRMAN: Is there any more discussion on the proposed as stated by Delegate Doi will say “aye.” Opposed. The amendment? motion is lost. OKINO: Before we take action - - No, I shall hold the ARASHIRO: I now offer my amendment, as I have stated matter in abeyance. previously, by changing the word “general” to “final election.” DOI: I, too, believe in the separation-of-power doctrine. CHAIRMAN: Your amendment as I read it will be “The What has been said in that principle was very nice. But governor shall be elected by the legally qualified voters of theory standing alone is meaningless. Theory here as pro this state as provided by law.” pounded, applied to the several facets as is before this ARASHIRO: No, and - - committee here, will show that insofar as the term of office of the governor is concerned, it’s contained in a different CHAIRMAN: “The person receiving the greatest number - -“ paragrpph than that we are considering here, and insofar as ARASHIRO: “The person receiving the greatest number the qualification of the governor goes, it’s also contained in of votes in the final election shall be the governor.” different paragraphs before us. The paragraph we are deal ing with only has to do with the method of election of the CROSSLEY: I would second that if I understand that the governor, and as to the method of the election of the governor, balance of the section continues as is. That’s correct. the amendment already provides that he shall be elected by CHAIRMAN: It’s been moved and seconded that the section the qualified voters. Therefore, the rest, if it should be left be amended. to the legislature, does not go to the basis of the power of HEEN: I rise to a point of information. What does the the governor, does not affect it in such a - - does not affect word “final” mean? What is the intent of the using that word? his power in such a degree as to render the separation-of- power doctrine meaningless. Therefore, I think the amend ARASHIRO: When Delegate - - when Delegate Tavares ment should be adopted. mentioned it, the thing that came into my mind was that probably there might be a special election, and in that CHAIRMAN! Delegate Okino, did you wish to speak? special election they might have a primary and a general. OKINO: No, I wish to speak on another phase of the Will that then be considered as a general election, or will paragraph. “general” be more appropriate than “final”? 272 EXECUTIVE POWERS AND FUNCTIONS HEEN: As I understand it, the general election is the ANTHONY: I move that this paragraph be amended to regular election that is held for the election of legislators read as follows: “The governor” —and this is from Section and the governor. Now, you may have a special election 1 - - Article 5, Section 1, subparagraph 4 - - for the election of a governor when the original governor CHAIRMAN: Is that going to be verbatim from that sec dies or vacates his office. So I don’t see the sense in using tion? the word “final” in this particular paragraph. ANTHONY: From the New Jersey Constitution. I will TAVARES: I believe our committee report can make it supply it later. “The governor shall be elected by the legal clear enough so that we don’t need to put another word or a ly qualified voters of this State. The person receiving the few more words into this article. I think that if the expla greatest number of votes shall be the governor, but if two nation goes in, there will be no question about what is meant. or more shall be equal and greatest in votes, one of them shall be elected governor by the vote of a majority of all the OKINO: I think that explanation has been adequately made members of both houses of the legislature in joint meeting by Delegate Tavares. The word “election” has been con at the regular legislative session next following the election strued, as used in the Federal Constitution, to mean the for governor by the people. Contested elections for the final or general election of the governor. Now, in qualifying office of governor shall be determined in such manner as by putting in the word “final,” to contra - - distinguish from may be provided by law.” the words “special election,” the committee proposal does LOPER: I would like to second that motion, but in doing not contain any special election for the governor in the so I would like to ask the chairman of the committee, Dele event of a vacancy by reason of the governor’s death or gate Okino, if he had some special reason for omitting this resignation. The officer, namely the lieutenant governor, particular provision, that in the event of a tie the legislature is to succeed to that particular office, and thereafter it is in joint session should determine the one to be elected. My provided in the section relating to the succession of that question is, did you have some special reason for modifying particular office that the matter would be regulated or what is apparently taken from the New Jersey Constitution? prescribed by law. So there is no - - there will never be a special election for the governor. OKINO: I think you will recall, Dr. Loper, I mean Dele gate Loper, that the purpose of rephrasing that particular MAD: Do I understand that the movant of thin motion to sentence was to make it as brief as possible. You will know amend has withdrawn? - - you will note that the sentence submitted in paragraph 2 CHAIRMAN: I do not believe so. of Proposal No. 2 [sic] is much shorter than that expressed in the New Jersey Constitution and yet the context or the MAD: And it has been seconded? idea is incorporated. That was the only reason why it was shortened. CHAIRMAN: It has been seconded. Is there any further discussion? RICHARDS: I would like to further amend the proposed amendment by the delegate from the fourth district by FONG: Do we understand - - I’d like to ask the chairman striking out the last sentence: “In a contested election, the of the committee a question. Do we understand that the selection of the governor shall be determined in such a words, “The person receiving the greatest number of votes manner as may be provided by law.” shall be the governor,” does that mean that if there are ten persons running in the final election representing ten differ ANTHONY: I accept that amendment. ent parties that the person receiving the greatest number of RICHARDS: The purpose of that is that in Committee votes, irregardless of whether he receives the majority of Proposal No. 8, which we have already acted on, we state votes, should be elected governor? Is that the intent? that the contested election shall be determined by the su OKINO: That is the intent of the committee. preme court of the state according to law. FONG: A plurality of the votes? MAD: I’d like to ask the chairman of the committee what the situation will be in the event of a contested election. OKINO: Presupposing there are ten parties in the final Does the governor who has been elected by a prior elec election, general election with ten candidates running for the tion continue in office until the situation is cleared by the office of governor on each ticket. supreme court? FONG: Then that will be decided at that general election. OK1NO: It is presupposed that the lieutenant governor will qualify on that particular day and carry on the office of OKINO: Yes. governor because of inability on the part of the governor FONG: The vote for governor will be decided at the final elected to serve and fulfill his functions. election, which is the general election - - CHAIRMAN: Is that a satisfactory answer? OKINO: That is correct. TAVARES: I should like to point out that if the section FONG: - - regardless whether he receives the majority as originally - - or paragraph as originally drawn by the of votes or not. committee is adopted, we will not be leaving a hiatus here because Section 173 of our Revised Laws takes care of ties. ARASHJRO: If the statement made by the chairman of the It may not be the best way, but there will be provision for a Executive Committee and the statement made by the delegate tie vote by statute. Now it says: “In case of the failure of from the fourth district that an election means a general elec an election by reason of the equality of votes between two tion is clearly understood by the committee and will be clear or more candidates, the tie shall forthwith be decided by ly understood in the future, I withdraw my motion. lot,” and so forth. CHAIRMAN: Delegate Arashiro’s motion has been with- OKINO: I have referred to that particular section in my drawn. report. But the only reason why it was left in is because the JUNE 20, 1950 • Morning Session 273 particular statute now existing under the laws of the Terri ARASHIRO: Then I move to the previous question. tory of Hawaii may not be the law of the future State of Hawaii. The Chair was about to move that the matter of DELEGATE: Second the motion. contested election be deleted from each proposal also. You CHAIRMAN: The previous question has been called. will recall that the Chair was the one who raised that ques tion when paragraph 5 of that proposal submitted by the Com KELLERMAN: I have an amendment to offer. mittee on Suffrage and Elections was debated on the floor. CHAIRMAN: Would you hold that? Mrs. Kellerman, CHAIRMAN: The motion before the house now is to you have the floor. The previous question was not amend paragraph 2 of Section 1 to read as the New Jersey seconded. Constitution with the deletion concerning contested elections. KELLERMAN: As I read this section, it provides that CASTRO: Was that amendment seconded? I mean, it is the term of office of the governor shall begin - - shall be before the - - four years beginning at - - [Discussion in background inaudible.] CHAIRMAN: The amendment was accepted by the original movant. KELLERMAN: Mr. Chairman. CASTRO: Oh, I see, it was accepted. I’d like to, for the PORTEUS: Did the chairman of the Executive Powers sake of having a chance to read that, move on to the next Committee agree that the “or a contested election” should paragraph while Delegate Anthony has a chance to get his be deleted? amendment printed. So, if the Chair will accept the motion OKINO: Yes, Delegate Porteus. The matter is covered to defer action until the end of the section - - by article on suffrage and election. CHAIRMAN: The reason that I did not suggest deferment PORTEUS: Well, if the chairman would care to make is, I thought that most delegates had a copy of the New Jer that motion, I would be happy to second it. sey Constitution. OKINO: Iso move. CASTRO: Do all of the delegates have a copy? PORTEUS: And I second it. CHAIRMAN: That was my understanding. CHAIRMAN: It’s been moved and seconded that the words CASTRO: Well, if there are copies around, I would like “or contested” - - to request one from the Sergeant-at-Arms. ROBERTS: I have a question to raise on that. FUKUSHIMA: I’d like to speak in opposition to the amend ment proposed by Delegate Anthony. It doesn’t add anything CHAIRMAN: - - that would be deleted. to the proposal as submitted by the committee. The only ROBERTS: I have a question on that. That would be thing it does is [cover] the situation when there is a tie vote, with the understanding that our Committee of the Whole re and that is determined by the vote of the legislature. The port will show that that question is covered by another part committee, as I understand it, when we took this up went of the Constitution. through the New Jersey Constitution and the provisions very thoroughly and deleted that portion of a tie vote because that CHAIRMAN: Right. Delegate Kellerman, did you wish happftns so rarely. And I believe that is the reason for this the floor? language here. The language as proposed by the New Jersey KELLERMAN: This amendment has come in now before Constitution, as proposed by Delegate Anthony now, doesn’t I was able to make mine. I was discussing my proposed add anything to this. The tie vote is so remote that the amendment by referring to the third paragraph, but my committee felt that it should be left out and left to the deter proposed amendment will be to the second paragraph, as mination by the legislature. soon as you take the vote on this one. ANTHONY: I think that the last speaker is absolutely SHIMAMURA: Point of information, please. right, and I regret wasting the time of the Convention. I would like to withdraw my motion for amendment. CHAIRMAN: State your point. OKINO: Now that the offered amendment has been with SHIMAMURA: Does the last motion consist of deletion drawn, I should like to briefly explain thin particular point. of the entire last sentence or only the words “or a contested As one of the delegates called to your attention, the Chair election”? has no objection to deleting that portion of sentence 3, “or a contested election,” by reason of the fact that that matter CHAIRMAN: “Or a contested election,” only. is now covered by Section 5 of Suffrage and Election. Now, SHIMAMURA: Thank you. if we are certain that a matter of tie vote will also and like wise be covered by the statute of the future State of Hawaii, CHAIRMAN: All those - - then it would seem to the Chair that that last sentence may MAU: Point of information. If I understood Delegate just as well be deleted. Because of the fact that the Com Kellerman correctly, she wants to propose an amendment mittee on Suffrage and Elections contained nothing with refer to paragraph 2. ence to a tie vote, the committee felt that that particular portion of the third sentence, “In case of a tie vote, the CHAIRMAN: She has a further amendment to offer. The selection of governor shall be determined in such manner question before the house at the moment is the deletion of as may be provided by law,” should be included herein. the words “or a contested election.” ARASHIRO: Do I understand that there is no amendment MAU: Oh, I see, Thank you. right - - pending now. CHAIRMAN: All those in favor of the motion to delete CHAIRMAN: There is no amendment pending. will say “aye.” Opposed. Carried. 274 EXECUTIVE POWERS AND FUNCTIONS KELLERMAN: I have begun discussing the third para CHAIRMAN: Delegate Shimamura, chairman of the Com graph to explain my motion. If you will read it through— mittee on Ordinances. and to understand it, you’ll have to read through this section SHIMAMURA: May I state that there is already a special —it provides that the governor shall take office as of a cer election ordinance proposed. That situation is provided for. tain Monday following or alter - - next following his election. It doesn’t say when the election is to take place. Now, if we CHAIRMAN: Thank you. should become a state say next July it’s quite possible there CROSSLEY: That situation was discussed in committee, would be an immediate special election to elect a governor. and it was felt that that, as I understand it, was to be covered There is nothing in this provision nor in our provision on by a provision, an ordinance, or in the Committee of the suffrage and elections which would not necessarily require Whole report setting forth the manner just so that we would that governor being re-elected four years from the date not clutter this section up with language that we felt might of that special election. There’s nothing in the report and be restrictive rather than helpful. there’s nothing in this section that says that the governor must be elected at a general election. So under the absolute HEEN: It seemed to me that there should be a statement language of paragraph 3, with nothing in here to the contrary, here somewhere that the governor is to be elected at a the governor’s term would be four years from the date of regular election, because there is no special election pro that special election, and that four year term would continue vided here for the governor in case of a vacancy. Of course, at that odd time. starting off, there may be, or shall - - I think there ought to So, I, therefor~ would propose an amendment to the first be a special election for not only the election of a governor sentence of the second paragraph: “The governor shall be but also the election of the members of the legislature. If elected by the legally qualified voters of this state at a we state here that the governor is to be elected at a regular regular election.” That makes possible the interim term election, then the other matter can be taken care of by - - to be provided for elsewhere under continuity of laws, but it in the schedule or by an ordinance. would make it impossible for the interim term to be construed CHAIRMAN: The Chair understands that an ordinance as the four year term referred to in the third paragraph. section has been provided for that purpose. Is there any further discussion on the motion to amend? Delegate Heen, LOPER: May I ask the previous speaker if it would not are you through? also make, it impossible to elect the governor at a special HEEN: I’d like to have that amendment read again, please. election in the event of the death of the governor? CHAIRMAN: Would you care to read it, Mrs. Kellerman? KELLERMAN: I think it possibly would, unless that Delegate Kellerman. is provided for elsewhere. I was under the impression KELLERMAN: “The governor shall be elected - -“ This that the lieutenant governor would take over the gover is the first sentence of paragraph 2. “The governor shall norship in case of the death of the governor. be elected by the legally qualified voters of this State, at a CHAIRMAN: That’s the Chair’s understanding. regular election.” Now I notice in just referring to Com mittee Proposal No. 8 which we have adopted on suffrage KELLERMAN: It seems to me that if it is not so provided, and election, they use the term “general election” rather that would have to be provided for separately. But this than “regular election.” So in the interest of uniformity, I language, leaving it like this, leaves the interpretation that would say change my - - the original language that I had the four year term will be four years from the election of given to read, “at a general election.” “The governor shall the first governor, whenever that may be, which may be at be elected by the legally qualified voters of this State, at a special election at a time that does not conform with our a general election.” general election period. CHAIRMAN: Thank you. CHAIRMAN: Is there any second to the amendment? HEEN: I think that is correct. In the article on legislative powers, there is a section dealing with the sessions of the KAM: I have the New York Constitution. It says here legislature and as I recall it - - if you’ll bear with me for that the governor shall be chosen at the general election held in the year - - even number of years, and the person re a moment. I don’t know, k’s not covered there, but I think in the article on elections and suffrage, I don’t know what ceiving the highest number of votes for governor shall be elected. So in the second paragraph, if just says that “the is used there in that article. May I ask what committee proposal that is, in the files? person receiving the greatest number of votes shall be the governor.” It doesn’t say what election, so I’ll second RICHARDS: Committee Proposal No. 8. Kellerman’s motion, that we have the “regular election” KELLERMAN: You wanted the section on election? there. RICHARDS: The last section. CHAIRMAN: It’s been moved and seconded that the para graph be amended to read, “qualified voters of this State at KELLERMAN: May I read that section from elections a regular election.” - - suffrage and elections? TAVARES: I think again this is a situation in which there CHAIRMAN: Is that from elections? Is that covering are enough variations so that we had better explain in our election of the governor? Committee of the Whole report and not try to add too many KELLERMAN: It just says, “General elections shall be words. I think it is proper, and that we should have an ordi held on the Tuesday next alter the first Monday in Novem nance at the end of this Constitution which would take care ber, in all even-numbered years. Special elections may be of the special situation where, when we become a state, we held according to law,” and so forth. may have to have a special election. And I think it’ll be dangerous to try to cover every situation by putting a word HEEN: That’s the correct term then. “General election” here or a word there. in the term. JUNE 20, 1950 • Morning Session 275 CHAIRMAN: Is there any other further discussion of the CHAIRMAN: It was moved and seconded that we adopt proposed amendment? paragraph 5 tentatively. Is that correct? SHIMAMURM I’m not speaking against the amendment - - DELEGATE: That’s correct. CHAIRMAN: Are you speaking for the amendment? CHAIRMAN: Did we put the question on paragraph 5? SHIMAMURA: - - but I just wish to comment that the DELEGATES: No, no. officers are all elected at the general election. They are not elected at the primary. So even if you left the word WIRTZ: We did put the question on paragraph 4, however. “general election” out, it means general election. CHAIRMAN: I stand corrected. CHAIRMAN: I understand it that that question has been HEEN: We are now discussing the fourth paragraph and discussed. there has been a motion to adopt that tentatively. SHIMAMURA: They are only nominated at the primary CHAIRMAN: The Chair stands corrected. Thank you. election. All those in favor of the amendment to paragraph 4 dele KELLERMAN: My amendment does not go to the idea of ting the five years and substituting ten years in the next to a primary versus a final election. It goes to a general last line - - versus a possible special election. That’s the reason for ROBERTS: I don’t think we’ve given this thing adequate putting in “at a general election.” consideration. The committee reports out for the recom CHAIRMAN: All those in favor of the amendment as mendation for five years and we move to amend for ten with proposed by Delegate Kellerman will please say “aye.” out, it seems to me, giving adequate consideration as to the Opposed. The amendment is carried. recommendation of the committee. I’d like to hear from the Unless there are further amendments, a motion to adopt committee as to their reason for the recommendation. the section as amended is in order. CHAIRMAN: The Chair has no way of knowing how much LAI: I move that we adopt paragraph 2 as amended. consideration the movants of various amendments gave the question. APOLIONA: I second that motion. ROBERTS: I recognize that, Mr. Chairman. It’s not CHAIRMAN: May the Chair restate the motion that we addressed to you. I think it’s addressed to the delegation adopt paragraph 2 tentatively of Section 1. All those in in terms of the problem. favor of the motion will say “aye.” Opposed. Paragraph 2 is adopted, tentatively. OKINO: The committee considered the following facts. Paragraph 3. In the Organic Act of the Territory of Hawaii, the residential requirement is three years, There are only three states in LAI: I move for the tentative adoption of paragraph 3. the United States of America which require ten years’ resi dential requirement. These three states are Louisiana, APOLIONA: I second that motion. Missouri and Oklahoma. There are seven states requiring CHAIRMAN: It’s been moved and seconded for the tenta seven years’ residence; there are three states requiring tive adoption of paragraph 3, Section 1. six years; there are 18 states requiring five years, which is the prevalent residential requirement. There is one state, TAVARES: It is my understanding in voting for this, as I intend to, that this refers of course to what has just been four years; one state, three years; eight states, two years; said about the regular term of a governor. In other words, one state, one year, and six states, not specified. The com it is intended that that four-year term begins after a general mittee simply adopted the prevalent residential requirement election of a governor. of five years. CHAIRMAN: Is that residential requirement of five years CHAIRMAN: That’s the Chair’s understanding. All those for office of governor or for - - in favor of adoption of paragraph 3 tentatively will say “aye.” Opposed. The paragraph is tentatively adopted. OKINO: Office of governor. This article is restricted for the office of governor. LAI: I move for tentative adoption of paragraph 4. CHAIRMAN: Is there any further discussion? APOLIONA: I second that motion. LEE: On a point of information from the chairman of CHAIRMAN: Any discussion on paragraph 4? the committee. Was it the conclusion on the part of the ASHEORD: I would like to amend that by substituting for committee—I understand the committee was unanimous on the words “five years,” the words “ten years.” this point because there was no minority view expressed on the five year limitation—that as we progress to a longer SAKAKIHARA: I second the motion - - amendment. residential clause that it would be more of a definite step ASHFORD: May I speak to that? backward as compared with a shorter period for a progres sive type of limitation? CHAIRMAN: You may. OKINO: in reply to that question, I would like to reply, ASHFORD: We provided in our courts not merely that Delegate Lee, that the committee members felt that a resi the justices and judges should be residents for ten years, dent should live here for a period of above five years in they must be residents for more than ten years, I think, Hawaii before he would become familiar, become acquainted because they must have been members of the bar for ten with the somewhat peculiar problems here of the State of years, and they would have had to be residents for at least Hawaii. It is not like the 48 states of the Union. a year prior to that. Now when it comes to the chief execu tive, it seems to me that he should be a resident for at least LEE: As I understand it then, your committee was unan ten years. imous on that point. 276 EXECUTIVE POWERS AND FUNCTIONS OKINO: After some debate, yes, the committee was unan LAI: I move for tentative adoption of paragraph 5. imous. APOLIONA: I second that motion. FONG: I’d like to talk against the amendment. If this CHAIRMAN: It’s been moved and seconded that we office was an appointive office, I think the amendment would tentatively adopt paragraph 5. Is there any discussion? be well taken. But due to the fact that this office is going to be an elective office and a man, if he’s any good at all, AKAU: Point of information from the chairman of the and he can prove to us that he’s a good man, I think if he’s committee. Does this statement appear in any other con been here for five years, we should put him into office., and stitutions regarding the governor holding office, “no other I’d like to say that ten years is a little too long. Five years, office for profit”? The reason I ask the question is, isn’t going along with the majority of the states, would be in good it implied and understood that the governor who has, let order. us say, a great many responsibilities wouldn’t be able to CROSSLEY: I would like to concur with the remarks of handle other work for profit. Is it - - I just raise the ques the last speaker. As a matter of fact, that was one of the tion, is it necessary to put it in? main considerations that was given to putting this at five OKINO: The expression “çf profit,” whether the same years. It was the feeling of the committee. Some of us should be retained or deleted, met with considerable dis thought it should be only three, some thought seven, some cussion. It was eventually resolved by the committee that thought ten. We all agreed that if any man can be elected the committee adopt the language of the - - basically the alter living here for five years, then he deserves to be language of the New Jersey Constitution. if you will refer elected. to the Constitution of New Jersey, you will find the follow MAU: I’m in agreement with that statement. If any citi ing sentence in paragraph 3 under the executive department. zen in the United States who desires to reside in the Terri “No member of Congress or person holding any office or tory of Hawaii comes here and becomes a good citizen and position of profit under this State or the United States shall wants to run for office and can get elected alter five years be governor.” of residence, he must be a very good man. AKAU: Does a statement appear in any other part of the LEE: I see - - I notice that all those that run for office Constitution and in ahy other section that would take care many times concur in that viewpoint, because it is a handi of - - in general of all the groups, judiciary, executive and cap for those who have not been born and raised here to be legislative? elected to office. And I say I take my hat off to anybody who CHAIRMAN: Delegate Crossley, would you like to answer can get elected who hasn’t been here for a long time. the question? C. RICE: The committee, in discussing this, felt that CROSSLEY: I’d like to answer part of that. There is a this Constitution was going to be looked over by the Senate restriction, of course, on justices and judges in the section and Congress of the United States, and if we put five years that we adopted the other day. That was spelled out specif where the majority of the states had that, it looked as though ically in that case. we weren’t trying to bar any malihini coming here, and we might have a little more favorable attention. RICHARDS: I would like to ask the chairman of the committee another question. Will this, if it is put into the CHAIRMAN: Any further discussion of the motion to Constitution, require the resignation of any elected official? amend? The motion to amend is to delete the word “five” For instance, if a member of the State House of Represent and insert the word “ten” next to the last line in paragraph atives or a member of the State Senate desired to run for 4. All those in favor of the motion will say “aye.” Opposed. governor, would it require his prior resignation? The motion is lost. Are there~ any further amendments to paragraph 4? OKINO: Is your question directed to this point; if the governor who is - - if an individual who is in office as DOI: I would like to direct a question to the chairman of governor seeks appointment to any other governmental offices, the committee. That is, what reasons prompted the commit or if he would desire to become a candidate, say, to the tee to decide on the age 35 as being the minimum age? Senate of the United States? OKINO: In reply to that question interposed by the dele RICHARDS: Well, yes. That’s stating my question in gate from Hawaii, I should like to reply by furnishing him reverse, but both conditions apply. with the following facts. The Organic Act prescribes that the governor of the Territory of Hawaii shall be 35 years OKINO: I believe my committee report explains that of age. There is only one state which requires the age of point in the following manner. if the governor should seek 31 years. There are 35 states which requires the governor, election to any other public office, there will be legally a the candidate for governor, to be 30 years of age. There are resignation upon his part from the office of governor if he four states requiring the candidate to be 25 years of age. shall assume the new office to which he has been elected There are eight states not requiring any particular age for or appointed. That is predicated upon the principle of in any individual for the office of governor. We simply followed compatibility of offices. the Organic Act, that document which was given to us, the RICHARDS: I see. Then would that also take care of the Territory of Hawaii, by the United States Congress. situation of a holdover state senator who runs for the office CHAIRMAN: Any further discussion? of governor, that upon his - - that he will qualify but upon his assuming the office of governor he automatically gives DELEGATE: I think it ought to be 60. up his state senatorship? CHAIRMAN: I’m glad I did not hear you. The motion OKINO: Logically - - before the house is for the adoption of paragraph 4, tenta tively, of Section 1. All those in favor will say “aye.” RICHARDS: If he loses the office he may retain his Opposed. The paragraph is adopted tentatively. state senatorship? Loses the election? JUNE 20, 1950 • Morning Session 277 OKINO: That’s correct. CHAIRMAN: I think that is the understanding of the RICHARDS: Thank you. chairman of the committee. Is there any further discussion? CHAIRMAN: Are there any further questions? ROBERTS: I have a question on that. Is it the intent of the article that if a person who is governor runs for the ROBERTS: I’d like to suggest that as we go through the United States Senate that he may run and still retain his sections that we follow along with the committee report. The office as senator [sic] until he qualifies as senator of the committee report is one of the best that’s been put out on United States? Ijust want that in the record. Is it clear? the floor so far and covers very adequately each of the points as they come up. I think if we follow through with the report, OKINO: That is the intent of the committee. I think we can move along very promptly on it. CHAIRMAN: Is there any further discussion? ChAIRMAN: The Chair would be very glad to second that TAVARES: To correct an obvious error, he would still motion. Is there any further discussion? All those - - retain his office as governor while running for the Senate. MAU: Point of information. The gentleman said, “He would retain his office as senator.” CHAIRMAN: State your point. CHAIRMAN: The record will show the correction. Is there any further dincussion? All those in favor of the MAU: It might be that other offices are covered by the tentative adoption of paragraph 5, Section 1, will say “aye.” same type of prohibition, including the judiciary and the Opposed. So carried. members of the legislature. I wonder if it would be wise The Chair without objection will declare a five minute to have a general clause. I was trying to think and I can’t recess. think of any officer who could possibly hold two offices under authority of the State on the theory of incompatibility CROSSLEY: Second the motion. of offices. Should we give some consideration to that? (RECESS) HEEN: In the proposed committee proposal of the Legis lative Committee we have thin provision: “Disqualification CHAIRMAN: The Committee of the Whole please come of members of the legislature. No member of the legislature to order. When we had recessed, we had completed Section shall during the term for which he is elected or appointed, 1. be elected or appointed to any public office, position or employment which shall have been created or the emoluments CROSSLEY: I would at this time like to move the adoption whereof shall have been increased by legislative acts during of Section 2. such term.” APOLIONA: I second that motion. CHAIRMAN: The Chair feels that possibly the Committee LAI: I think - - Point of order. I think we’d better adopt on Style could take care of them if they are identical provi Section 1, entire section as amended. I so move. sions. J. TRASK: Tentatively, Mr. Chairman. TAVARES: I think that the question of incompatibility is a common law question which is determined by the courts on SILVA: Point of order is out of order. the basis of the facts as they exist, as to whether the duties CHAIRMAN: The Chair will recognize Delegate Lai’s of one office actually conflict with the duties of another. proposal. And it’s quite possible, and it is done in this Territory, for a person to hold more than one office, providing they are J. TRASK: Second the motion. not incompatible. For instance, there are many officers CHAIRMAN: It’s been moved and seconded that we adopt who are also notaries public and that’s an office. Section 1, tentatively, in its entirety. CHAIRMAN: Is there any further discussion? DELEGATE: As amended. HEEN: In the report, I see no remarics on paragraph 5 CHAIRMAN: The Chair stands corrected. All those in of this Section 1. favor say “aye.” Opposed. Carried. CHAIRMAN: Can someone supply the page reference. CROSSLEY: Mr. Chairman, I now move that we adopt Section 2 in its entirety. ROBERTS: On page 3, I think, on paragraph 4, “Under the provision set forth in the last paragraph of Section 1, CHAIRMAN: Tentatively? a person holding any other office under the State or APOLIONA: I second that motion. United States could seek election to the office of governor, but will be required to resign such other office before quali CHAIRMAN: It’s been moved and seconded that we adopt fying as governor. Conversely,” and so on. Section 2 tentatively in its entirety. Is there any discussion? CHAIRMAN: Does that answer your question, Delegate A. TRASK: I move for an amendment. In the second Heen? sentence, at the end of the third line, alter the word “elected,” insert the following words: “from the same party as the HEEN: It seemed to me that paragraph 5 really controls. governor.” “The Governor shall not hold any other office or employment of profit under the State or of the United States during his CHAIRMAN: Delegate Trask, where would you insert term of office.” In other words, he may seek election to your amendment? the United States Senate, but as soon as he takes that office, A. TRASK: After the word “elected,” at the end of the which is an “office of profit,” then he can no longer remain third line of Section 2, Committee Proposal No. 22, insert as governor under this very provision, this paragraph 5. the words “from the same party as the governor.” DELEGATE: Second the motion. J. TRA5K: I second the motion. 278 EXECUTIVE POWERS AND FUNCTIONS CHAIRMAN: It’s been moved and seconded that the to his cabinet or to the various offices created by law from words “from the same party” be inserted in the line - - after his own party. Now in case of a vacancy in the office of line 3 - - at the end of line 3, after the word “elected.” governor, the Democratic lieutenant governor will succeed under the terms of this article. And where these cabinet CROSSLEY: Point of information. I’d like to ask the officers and other officers hold their term at the pleasure movant of that last motion if he could explain just how it of the governor, you can see where the lieutenant governor would work. is going to throw them all out and elect - - and appoint CHAIRMAN: Are you referring to the present situation? members from his own party. So there you create confusion, chaos and lot of political skulduggery. A. TRASK: Well, the suggestion only recently came from It seems to me that we should follow the idea that was President Dewey of a certain American political party. I stated by Governor Dewey the other day, and I believe he’s haven’t yet communicated with him, but I do think that the right. I don’t say that I almost believe he’s right, I think he’s suggestion, however impromptu it’s now proposed, should right, I believe he’s right, even though he is a Republican be worked out. governor. My reasons are as follows: first, the very theory upon The way to handle that seems to me would be in this this executive article is to have a strong executorship. It’s manner, by a separate section, “The governor and the based upon the theory that there shall be harmony in the lieutenant governor shall be voted for together upon the same administration of the executive department. Consistent with ballot.” that, it is almost inconceivable to have the governor of one party and a lieutenant governor of another party, particular CHAIRMAN: Delegate Heen, did you make that as a ly when there is some thinking here in the Convention that motion? the lieutenant governor perhaps should be the president pro HEEN: Sure, well as a suggestion. I’d like to have a tem of the Senate, so that the number in the Senate instead little - - some views expressed upon that, but the idea is of being 21 should be 20 by - - because of economy. As a good one. recent as last week, Governor Dewey did suggest the situa tion of the governor and lieutenant governor being of the A. TRASK: May Delegate Heen yield to an inquiry on same party. I’m almost convinced he’s right. that? Maybe paragraph 2 of Section 1, Delegate Heen, where I think, thirdly, that we must certainly provide for con you say that the selection of the governor shall be determined tinuity upon the death of the governor with the same people in a manner as may be provided by law would do it, inasmuch in office continuing. Otherwise, we would have quite a wide as Section 2 refers to the governor - - the lieutenant gover open breakup of the spoils system, of course, which we nor being appointed in the same manner as the governor. don’t want to have unless done by the proper party. HEEN: I think it should be a new section. We can desig C. RICE: May I ask him a question? nate it as Section 2A for the time being. CHAIRMAN: Would you yield to a question? A. TRASK: In view of this, as I say, impromptu sugges A. TRASK: Yes, indeed. tion coming up at this time, may we defer action on Section 2 so that we may have something prepared on this point? C. RICE: If he belongs to the same party, should he be long to the same wing of the party? CHAIRMAN: You may so move. CROSSLEY: Would the gentleman yield? PORTE US: I wonder if I could speak - - CHAIRMAN: Delegate Trask has the floor. CHAIRMAN: Are you through, Delegate Trask? Are you through? A. TRASK: I refuse to give myself further embarrass- ment. A. TRASK: Yes. CROSSLEY: Well, I will not embarrass him. I wonder PORTEUS: I wonder if we can speak to - - for the moment, if he will yield to a question. to the thuggestion before the matter is deferred. Pd like to CHAIRMAN: Delegate Trask has the floor. Would you point out to the delegates here that this was a subject wrestled yield for a question? with by your subcommittee in the Statehood Commission, and also by - - and also wrestled with by your committee A. TRASK: I will yield to another party. here in the Constitutional Convention. The scheme as pre sented provides that there shall be a governor and a lieuten CROSSLEY: The question I had is this. Would you con ant governor, the only two elected offices of the executive sider that the governor should be the one who would run for department. If you say that both shall run on the same ticket, office and the lieutenant governor would simply be an associ it means that you do not have a popularly elected lieutenant ate name on the ballot, not running separately? They would governor. What you will have is the man who is nominated thus be joined together and they could both campaign but the on the ticket with the govennor automatically carried into vote itself would need to go only to the one office. office by the election of the governor of that particular party. A. TRASK: It would be in the theory of the closed primary. There’s no point in allowing the voters to vote, one for the You vote for one, you stay oq that side. That would be the governor, next for the lieutenant governor, because if you theory. elect a Republican governor but the Democratic lieutenant governor has by far the vast number of votes, you then have HEEN: May I make - - to say those votes don’t count because he’s not of the same CHAIRMAN: Delegate Trask, do you yield? party. Therefore, the Republican lieutenant governor is elected though he got but a few votes. Now, therefore, if HEEN: - - a little contribution to this discussion. I you have a situation such as that there’s no point in letting think it is a very serious problem because if you elect a the people vote on the lieutenant governor. Republican governor and a Democratic lieutenant governor, you can rest assured that the governor will appoint persons A. TRASK: Mr. Chairman. JUNE 20, 1950 • Morning Session 279 PORTEUS: A point of order, Mr. Chairman, will the policies the lieutenant governor Or the secretary of state gentleman please sit down till I’ve finished. should be appointed, but if you are going to elect two officers, You might just as well - - one a governor and one a lieutenant governor, then it seems CHAIRMAN: I do recognize the point of order. to me that they should represent the same political party. That’s what is being done with reference to the office of A. TRASK: I’m afraid that’s an extraordinary request. President and Vice President of the United States. They vote CHAIRMAN: The Chair has so ruled. in such a way that there’s always an assurance that they be long to the same political party, and I think this can be taken PORTEUS: Under those circumstances, therefore, you care of by this language: “The governor and the lieutenant will find that it will only be necessary to cast a ballot for governor, representing the same political party, shall be the governor, and the lieutenant governor will automatically voted for together upon the same ballot.” In other words, go into office with him. you put the name of the governor, and the lieutenant gover Now under the scheme as presented here, you will also nor below that of the governor, and then have just one box have no special election in case the governor goes out of for one cross only, voting for those two at the same time. office. if there is to be no special election, the lieutenant I think that’ll take care of that - - this situation. governor succeeds to the office of the governor. He then becomes the governor, if you have a strong executive, it TAVARES: I don’t think that will work either. Are we is right that he should choose the heads of the departments. going to permit no non-partisans to run? As long - - as From then on out it is his responsibility to the people of soon as you have a non-partisan on the ballot, that whole the Territory for the administration of the executive branch thing goes out of the window anyhow. I don’t think it’s of the government. Now, how in the world is a man going to practical. I feel very much the same way as the delegate be responsible for the executive branch of the government from Kauai. if we are going to have a popularly elected if he is of one political party and all the heads of the depart lieutenant governor and have him something more than a ments are of another political party. He’s not going to be mere nonentity, dictated and controlled by the governor, able to have a controlled administration carrying out his we’ve got to give the people the right to choose which man particular policies. He’s the one that must answer. There they want. fore, he should have the right of making the choice. I can imagine the situation where you’ll have a very And I think the scheme as presented by the chairman of strong man running for governor, a very weak man running the Executive Powers Committee and of the members of that for lieutenant governor on the same ticket, and on the other committee to be a wise one. Certainly, we haven’t provided hand a weak man running for governor on the other ticket for the election of very many people to the - - in the executive and a very strong man for lieutenant governor. And if the department and it seems to me that we would - - could rea people are going to be governed by those - - have the possi sonably leave a vote on the governor and a separate vote on bility of being governed by the lieutenant governor, they may the lieutenant governor. not wish to elect that lieutenant governor. You’re not giving them the right to choose. I would rather see an appointive CROSSLEY: I’d like to address myself to the amendment lieutenant governor than this situation. that was offered. The reason I asked the questions that I did as to how it would be put on the ballot, was because—to carry A. TRASK: I’d like to forthwith reply to the Secretary out the thought so well expressed by the Secretary—it would who made the observation that you would, should you have seem to me that if you did that, if you put both men on the the governor and lieutenant governor on one ballot, you’d same ballot from the same party, that you might do what I be taking away the right of popular selection. I think that’s advocated in the very first instance, that is appoint the erroneous and invalid, for this reason. When people vote, lieutenant governor or the secretary of state or the man who they vote for a certain particular political theory at that will perform both of those duties, because that is in effect particular time. Now we’re well aware what took place in what you would be doing. 1933 when Roosevelt was swept into office. The people of I’m not sure that isn’t a better way than to have the con America voted for one political theory as against another. fusion because I agree with the delegate from the fifth dis It wasn’t so much the person as it was the revolt of the trict that there is something to be said for continuity in people against a certain theory of government doing nothing. this office, once the people have made their choice. And the Now, it is on the theory of government, it’s the theory of only way that you can assure yourselves of that continuity action or inaction, it’s the theory of policies, the policy of is by having a man of the same political faith go along with one political party as against the policy of another political you. That can be done in two ways. You can either have it party. on a joint ballot or you can have the office not an elective The observation has been made by Delegate Tavares that office hut an appointive office and you will be sure then that you might have a lieutenant governor who might be weak. the governor would be appointing a man of the same political Well, we have the situation of President Truman who they party. thought was weak, but certainly not even the Republicans I even went further in the committee in suggesting that the today would say, “He is weak.” I say to that observation lieutenant governor so appointed only serve until such time that the people have a right in a democracy to make their as a new election could be held to determine who should be own mistakes and we have - - we’re not endowed by any governor. In other words, when people vote for the gover appellate jurisdiction to say that they shall not make their nor they should be voting for the governor, and in that man mistakes. ner they would have an immediate chance to vote again for So I cannot help but feel strongly that when we all observe governor, and in doing so would get the continuity of office as we do that the political party is bigger than the man, why the governor would bring with him. is that political axiom so strong? It is because people who At the proper time I would like to offer an amendment but are of political parties advocate a certain philosophy. And I would like to hear the debate on this subject before I do. how wrong it would be to the people if after the people vote for a certain phiosophyfollowed by a certain governor to HEEN: What the last speaker said, I think, is quite in have upon one week later this same governor dying and an order. In other words, if you want to have continuity of other person with an absolutely different faith taking over 280 EXECUTIVE POWERS AND FUNCTIONS and denying the people the continuity of their philosophy at CHAIRMAN: Just a moment. The Chair will have to that particular time. rule that you have withdrawn your original motion and have So I again move, with Senator Heen agreeing, that we substituted therefore the language proposed by Delegate defer action on this matter so that his amendment may be Heen. printed and distributed. And I move for deferring Section 2 A. TRASK: That is correct. at this time. LARSEN: I sit here listening to this political chatter. CHAIRMAN: Therefore, I wanted him to state that so a Actually, it seems to me the one weakness in American second would be in order. The withdrawal of the motion by government is that parties can take control and subvert the Delegate Trask to me indicates that the motion for the good of the people. Let the people choose. Why should we previous question has also been withdrawn. write this in the Constitution. If a political party puts up HE EN: I will make that as a direct motion, if I may. I a very weak man as a lieutenant governor, that political move that a new section be added to this Committee Proposal party doesn’t deserve to stay in power if their strong No. 22, after Section 2, to be designated Section 2 A, reading governor dies. Let the people choose. Why should we try as follows: “The governor and the lieutenant governor shall to manipulate for the people. It seems to me if we’re going be voted for - - “ I withdraw that. “The governor and the to have an elective office, then let the people choose it and lieutenant governor representing the same political party, make the various political parties see that they put up just shall be voted for together upon the same ballot.” as strong a man for lieutenant governor as governor, and if they put a weak one up just because they want to give him A. TRASK: Mr. Chalrman. a political plum, then they deserve to have it taken away CHAIRMAN: Just a second, the Chair is trying to record from them. I the motion. So, as far as I’m concerned, it seems to me we are leaving so little to the people that we~ hear this cry, “Let A. TRASK: I second the motion. the people do it.” In this case let the people choose and CHAIRMAN: I think it will be up to Delegate Heen to let’s not write it into the Constitution. second the motion. The motion is your motion. You made LEE: I believe there’s been enough debate on this matter it. Unless you wish to withdraw. and having considered out the people’s feelings here. There’re A. TRASK: Well, whatever way the Chair, the Chairman only two persons in the entire executive branch of the govern rules. ment we’ll be providing an election for, and I am ready to move the previous question. CHAIRMAN: Would you second that motion, please. LARSEN: Second the motion. HEEN: I’ll second that motion. CHAIRMAN: Previous question has been called. TAVARES: It has just been stated that I said nothing about the supposed chaotic conditions that will exist if there’s A. mASK: Point of information. What is the previous a change of parties in the middle of an administration. Al question? though this is the first time I’ve mentioned it, I don’t like CHAIRMAN: The previous question is your amendment. to be goaded into political talks. But although I have been There was no second to the motion to defer. a Republican for a long time, I am not one of those people A. TRASK: At this time I withdraw my amendment in who thinks that there are not good people in both parties. favor of the amendment suggested by Delegate Heen, and I So, first of all, there won’t be chaos because I assume that the Senate will not lie down on its duty, and if the governor do second his motion, and I ask that his amendment be printed so that we may have the benefit of his thinking on removes people of the opposite political faith, the people he puts in will be approved by the Senate and they’ll have to it so that we can more intelligently vote on the amendment. be good people or reasonably good. So that I do not think HEEN: I only made a suggestion which I thought merited there will be chaos at all. some discussion and thought, and I think it does. Furthermore, I am still naive enough to believe that if a Now, the gentleman from the fourth district, the one who lieutenant governor of the opposite party is a good enough spoke before the last speaker, didn’t express any views as man to get elected when his opposite is elected governor, to the chaotic condition that might come about if the one he’ll be a good enough man to have the courage to keep governor - - if the governor represented one party and the some of those people in for the sake of continuity, and I lieutenant governor represented another party, and the lieu don’t think there will be chaos. tenant governor succeeds the governor upon a vacancy ex ANTHONY: I would like to speak for a moment to the isting in the office of governor. There’s no question that amendment. The difficulty with the Federal Constitution there would be a condition of chaos and confusion if that was that it initially framed a perfect frame of government were to occur. He expressed no views upon that at all. which was completely unworkable, unworkable because at That’s the meat of the whole situation. the time of its adoption there were no political parties. It wasn’t until after the Jefferson administration came in, and CHAIRMAN: Delegate Jleen, would you care to read from then on, that political parties began to play the part your suggested amendment? which they now play in our government, thus making the LEE: On a point of order. Do I understand then the Federal Constitution a workable instrument. movant of the amendment has withdrawn his amendment? Now, to my way of thinking, it would be impossible, an impossible situation to have a governor and lieutenant gover A. TRASK: I’ve withdrawn my amendment in favor of nor of different political faith. The governor would step out the amendment suggested by Delegate Heen, and I do second of a state and his duties would devolve upon the lieutenant his amendment. governor and then you’d have all sorts of back fighting and LEE: Well now, Mr. Chairman - - what not. JUNE 20, 1950 • Morning Session 281 I certainly believe that this amendment is a valid one. It die or otherwise become incapacitated for his office very early will make our Constitution work, it will make our governor in his session, then the lieutenant governor should be entitled ship work, it will have two men of the same political faith, to change the administration and make new appointments. He one to succeed the other in the event of a death or a vacancy. might succeed to the office with three years and nine months AKAU: Regarding this amendment, perhaps if we got some to go and would have the right to make changes. information, maybe the chairman of the committee could give Now I don’t anticipate there’ll be chaos or any other jam- it to us so that it could clarify our thinking before we voted. up for the government, and if the lieutenant governor was Regarding the lieutenant governor, in most states, is he serving temporarily he’d have to be a pretty bold man to upset elected? the policies set by his senior in office for a temporary period of three months or so. On the other hand, if he succeeded to OKINO: In each of the 37 or 38 states where you find the the office for a long period, he ought to be entitled to make office of lieutenant governor, the lieutenant governor is such changes as might seem best in his judgment with the ad elected by popular vote. vice and consent of the Senate. AKAU: All right, thank you. So I feel the amendment doesn’t accomplish any useful Now then, if he is elected by popular vote, then it seems purpose and it anticipates a situation that will probably never to me in regarding this amendment that those of us who are exist in a hundred years of history. feeling as the delegate from the fourth, as Mr. Tavares, that SILVA: I move the previous question. we should have an opportunity as people of the State of Hawaii to vote for the fellow we want, not to have him shoved GILLILAND: Mr. Chairman. down our throats. A. TRASK: Will the gentleman from Hawaii yield for a DELEGATE: Question. moment? Pd like to reply to the President. FONG: Pd like to talk against thin amendment. Now, CHAIRMAN: I think he yields, there’s been no second. we’re going to make the lieutenant governor run for office The Chair recognizes Delegate Gilliland. He was up before and say that we should put him on the same ballot with the you. governor. I think it is meaningless. If you’re going to do GILLILAND: I am against this amendment for the reason that, why don’t you put the attorney general, the auditor that I don’t believe iii electing, for instance, the president and the treasurer and all the other offices and say, “Well, of the bank and the janitor of the same bank on the same we’ll lump them together and we’ll all throw them together ticket, or having the vice-president riding on the shirt tails and you can cast one ballot and all of those people will be or coat tails of the governor. declared elected.” Now, if we’re going to have an election, let’s have an election. If we want him of the same political A. TRASK: In replying to the remarks of the President, faith, let’s appoint him. Now, I have stood consistently for after all, the main thing we’re concerned about is security the election of our public off icals, but I think that this method in our governmental operations. Now let’s look at this thing by which you say that you elect two men with one ballot is with realistic eyes. A governor is appointive of one politi sort of an empty gesture. I think if you’re going to demand cal faith, the lieutenant governor is of another political faith. that this man be of the same political faith as that of the The immediate job, therefore, is to secure people as heads governor, then let us appoint him. But if you feel that he of the departments. Now I’m concerned about one particular should be elected, then let us elect him by popular vote and situation. What would be the attitude with respect to securi let us leave it to the people and let the people choose and I ty of people who may be selected as department heads? Let’s think that the people will not make a mistake when they are take the attorney general, for instance. Now if I had the given a choice on the ballot. good opportunity to be a candidate for attorney general under a certain setup, and I see where the governor is a Demo H. RICE: Pd like to ask the delegate from the fourth, to crat and a Republican is - - the lieutenant governor is a spoil this amendment, wasn’t there a kind of a chaotic situa Republican—the observation is, this situation won’t occur tion in California when they had a governor of one party and in a hundred years —but the immediate situation is, what a lieutenant governor of the other? Wasn’t the governor would be the thinking of those people who would be available afraid to leave the state because the lieutenant governor as department heads? The governor who would be elected, might change things considerably? say, as a Democrat, would be about 80 years or 75 years of ANTHONY: That has occurred not only in California but age and the Republican is a young fellow 35 years of age, in Connecticut and several other states. And I might state and I have the opportunity to probably be attorney general. that I have just discussed this very problem with three I would not consider going into a situation knowing full well learned gentlemen that are sitting in the audience, all repre of the precarious health of this Democrat and knowing full sentatives of government, professors at the university, and well that the lieutenant governor is a Republican. It doesn’t they are of the view that they should be of - - the lieutenant make for security, gentlemen and ladies. We must have governor and the governor should be of the same political something whereby we could carry through securely in a party. I think it would be very Unwise to have anything differ- shape and a form of government, and it’s all a question of degree. But certainly the opportunity of the lieutenant governor to break down the program is greater than it would KING: Pd like to speak against the amendment for two be if the lieutenant governor was of the same political faith. reasons. One is if you elect the governor and the lieutenant governor from the same party, there’s no assurance that CROSSLEY: I would like to speak against the amendment, the lieutenant governor isn’t going to do things that are against and I would like to say for the benefit of the delegate from what the governor would do if the governor were present. the fourth district that what I have to say is not “political The lieutenant governor might have aspirations to succeed chatter.” I have an amendment to offer which I think, far his chief, and electing them from the same party doesn’t solve from being in line with “political chatter,” is something that the problem. On the other hand, if the governor and the lieu is designed to make a stronger executive department, and tenant governor were of opposite- party and the governor should that is the only thing to which I have been speaking. The 282 EXECUTIVE POWERS AND FUNCTIONS amendment that I have to offer reads as follows: in the Committee, that he should be elected, and I think as it reads in here in our proposal is right. I’m against all There shall be a lieutenant governor who shall be these amendments. appointed by the governor and whose term of office shall be the same as that of the governor, In the event there CHAIRMAN: There’s only one amendment before the occurs a vacancy in the office of the governor, the lieu house. tenant governor shall assume the duties of the governor SMITH: I’d like to speak against the amendment for the until a successor has been elected, such election to take simple reason that if we are to vote for a - - or have an place within sixty days unless the unexpired term of the elected governor and lieutenant governor, I am strongly in governor shall be less than six months. favor of the sentiments of President King in the very fact Now, that is not finished language; I have just jotted it that any governor or lieutenant governor that is elected by down here while the debate’s been going on, but I would like the people in the State of Hawaii, I’m quite sure will have to offer that amendment in place of the section that now to be impartial, very much so, if he wants to stay in. And stands - - I think only in fairness to the popular vote that the section RICHARDS: May I second that? as read is sufficient, and if - - I am strongly in favor of that. If there are amendments where they are trying to tie CROSSLEY: - - as an amendment to the amendment that it down, as this last amendment, why then I would go very has been made. strongly for the amendment of Mr. Crossley. RICHARDS: I second that. HOLROYDE: P11 second the motion for the previous PORTEUS: Point of order. question that was made a while ago. HEEN: Is that point of order - - CHAIRMAN: I’d like to call attention, there are a few CHAIRMAN: Who has a point of order? Delegate Heen. delegates who have not spoken on this question. HEEN: I don’t think that can be made as an amendment MIZUHA: in order to assist me in voting, I’d like to ask to the other. It doesn’t seem to be germane to the other a question of the exponents of Section 2 as it is written in one. I think k’s a separate amendment that might be offered the proposal. The arguments that they have advanced, would depending upon what action in taken upon the first amendment. they consider those same arguments in favor of an election of the attorney general of the State? CHAIRMAN: The Chair feels there’s some merit in your point. CHAIRMAN: I don’t think that that subj ect pertains to CROSSLEY: I would like to speak against the suggestion. what we have before us particularly. Would you care to I think it is germane. We’re talking now about the office of answer that, however? the lieutenant governor, as to how he shall be elected on a OKINO: I’m willing to answer that question. There is same ballot. It seems to me that we’re - - that the amend a big difference between the office of attorney general and ment that I have proposed is germane. It’s certainly to the that of lieutenant governor. The office of lieutenant gover office, k’s to the method. nor apparently was created with the idea that a man who is CHAIRMAN: The Chair feels that the question before the to succeed the governor elected by the people should be an house actually is whether or not the lieutenant governor officer elected by the people. The office of lieutenant gov shall be of the same political faith, and the amendment to ernor is an independent office, not like that of an attorney that only went further in that it set up the mechanics for general whose function is one that will concern purely or obtaining that end. Therefore, I feel that your motion strictly administrative matters, more technically, legal should be held in abeyance and we will vote on the present matters. An attorney general should be one who should motion unless there is further discussion. work in absolute harmony with the governor. ARASHIRO: Point of information. CHAIRMAN: Does that answer your question? CHAIRMAN: State your point, please. A. TRASK: Point of order. The amendment as offered by Delegate Heen and I together - - ARASHIRO: Does that mean that we are not adopting tentatively Section 2 but we are only voting on whether the CHAIRMAN: By you. lieutenant governor should be from the same political party A. TRASK: - - is Section 2A, so the immediate question, or not? wouldn’t k be, for consideration and vote, wouldn’t it be a CHAIRMAN: The amendment reads, as I recall, “The vote on Section 2 as such, and then later proceed to the governor and lieutenant governor shall be members of the second paragraph as offered, Section 2A? same polkical party and appear on the same ballot.” CHAIRMAN: I don’t believe - - MAU: It is a new section, designated Section 2A. KING: Point of order. The amendment - - excuse me. CHAIRMAN: A new section, correct. Am I recognized on a point of order? C. RICE: I’d like to speak against the amendment. It CHAIRMAN: You are. doesn’t matter whether the lieutenant governor and governor KING: The amendment was offered to Section 2 by the belong to the same party. If the lieutenant governor takes addition of a new section to be numbered 2A and if won’t be office, he will have his own ideas. You take when McKinley 2A later when it’s revised and renumbered. It will be 3 or died, was shot, and Theodore Roosevelt went in. It wasn’t something else. But it was offered primarily as an amend very long before he had all his own way. They belonged to ment to Section 2. the same party. If the lieutenant governor is a strong man, he’ll have his own ideas, and I believe that the man should CHAIRMAN: The delegate, I mean, the Chair does not be voted for by the people. I was the one that put in there, winh to limit debate. However, I would like to recognize JUNE 20, 1950 • Morning Session 283 only those who have not spoken on this subject. I think MAU: That’s true, we know that. That’s the report of there’s been sufficient said. the committee. But we’re trying to find out how - - what MIZUHA: I rise to a point of information. the other states provide for in their other offices. CHAIRMAN: Delegate Okino, do you have an answer to CHAIRMAN: State your point, please. that question? MIZUHA: I would like to ask the delegate from the fourth OKINO: Mr. Chairman, I am sorry I have been interrupted district who is the movant for this amendment whether his and not been able to - - amendment applies only to general elections or do - - are we going to have just a single election for the governorship CHAIRMAN: The question as I understand it is in the and the lieutenant governorship, or will we have a primary other states, how many of them have elected officers other election and a general election? than the lieutenant governor and governor. Is that correct? HEEN: The provision of course, in the Constitution, re OKINO: I can give you a very general answer for that lates only to the general election. Primary elections are question, Delegate Mau. In many states of the 48 states matters taken care of by legislation. there are constitutional officers elected by the people just like the governor. Now, most of the officers elected in the Now the language that was mentioned in the amendment reads as follows, a little different from what the Chair majority of the states are the attorney general, secretary stated. of state, auditor and superintendent of public instruction. Now, if you can give me say about thirty seconds, I may be Section 2A. The governor and the lieutenant governor, able to refer to the manual prepared by the Legislative representing the same political party, shall be voted for Reference Bureau. But insofar as this Committee Proposal together upon the same ballot. No. 22 is concerned, you will note from Section 10 thereof that all other administrative offices, boards and commissions That’s the language of the amendment that was offered - - are to be created or established by the legislature. There LARSEN: May I ask, with only one X - - will be no other elective officers in connecition with the executive branch of our government. HEEN: - - by Delegate Trask and seconded by myself. IVIAU: Thank you very much. LARSEN: Question. May I ask, with one X for the two of them? LEE: I’m wondering whether that information is correct. Isn’t there a clause which says “unless provided by law” in MAU: Point of information. Section - - HEEN: Yes, one cross instead of a double cross. OKINO: “As may be prescribed hy law,” I think that is MAU: I wonder if the chairman of the committee could the language, is it not? give us some idea as to the other offices of the states. How LEE: No, the word is “unless.” Page 4 of your proposal. many of those offices are elected or appointed? He was “Each principal department shall be under the supervision speaking in answer to a question put to him on the office of of the governor. The head of each principal department shall attorney general. I think it would have some bearing on be a single executive unless otherwise provided by law.” how we vote on this amendment and Section 2 of the proposal itself. The offices of attorney general, treasurer, and OKINO: Yes, the legislature will retain the control in other offices. How many states provide for the election, the the first place to determine whether or not that that depart appointment or other methods of selection? ment shall be headed by a single executive, that depending upon the nature of the functions; and if not, the legislature CHAIRMAN: With reference - - would have the discretion to set up a board or a commission department. NIELSEN: Point of order. I think we’re discussing - - CHAIRMAN: Will you state your point. LEE: I see, so it was the intention of the committee that all other officers shall be appointed by the governor. Is that NIELSEN: - - lieutenant governor now. it? MAU: It would have a direct bearing as to whether or OKINO: That was the consensus of your committee. not we would vote for Section 2A which is an amendment proposed to Section 2, or whether we would stand by Section CHAIRMAN: I think there has been sufficient debate and 2 because it provides for an election, or whether we would other comments on this section. All those - - on this amend vote for Delegate Crossley’s - - ment rather. All those in favor of the amendment made by Delegate Trask, seconded by Delegate Heen, will please say KING: Point of order. “aye.” All those opposed. The amendment is lost. MAU: - - proposed amendment. The only thing before the house now is the adoption of Section 2 as written. CHAIRMAN: Will you state your point, please, Delegate King. CROSSLEY: I now offer the amendment that I offered a moment ago that was ruled out of order at the time. KING: The gentleman can read the Proposal No. 22 and the committee report that goes with it. All of the other CHAIRMAN: Have you had time to have that printed? executive offices are to be appointed and the answer’s right there. In the meanwhile, he’s not discussing the amendment. CROSSLEY: I haven’t even had time to review it. I believe the clerks have it. I can read it from here again. MAU: We know that, Mr. Chairman. CHAIRMAN: Unless there is any objection, we’ll take it CHAIRMAN: The Chair’s understanding of this question from the reading. If there is any objection, we’ll defer and was - have it printed. 284 EXECUTIVE POWERS AND FUNCTIONS A. TRASK: I think that’s out of order, your - - Mr. - - an authority upon one man. And after all, this one man is a human being who will serve for a period of four years. Not CHAIRMAN: I said unless there is any objection. Do only will the matter of a great political machine be built but you wish to object? it would seem to me that this Convention, which has been A. TRASK: I certainly object. characterized by some of the other speakers as being anti- people, will certainly end up with that symbol. I for one be CHAIRMAN: Delegate Trask, what is your objection? lieve that the Committee on Executive Powers and Functions A. TRASK: We haven’t been shown the same courtesy as well as the Statehood subcommittee which has gone into that is now being shown here. this problem, realize that it is a tough problem, but, believing that the authority should finally rest in the people, supported CHAIRMAN: I beg your pardon. this proposal which called for the election of the governor A. TRASK: I said, we haven’t been shown the equal and the lieutenant governor. Therefore, Mr. Chairman, unless treatment here with respect to the other. I’ve asked for a there is further debate on this matter, I would like to table deferment and the attitude of the Chair has been more or the amendment. less against it, and now the Chair very, very softly says, CHAIRMAN: The Chair will rule that in Committee of the “If there’s no objection.” I think the treatment is unequal. Whole, the motion to table is out of order whereas the motion to the question itself can be put and won or lost. CHAIRMAN: I believe the delegate misunderstood the Chair. The delegate misunderstood the Chair, I believe. KING: I desire to speak in opposition to the amendment My point was that if it was sufficient for the rest of the also. The model we are following on the whole is the election committee, they could take the amendment as read. If they of the chief executive and one standard. The President and did not want to take it that way, it would be necessary to the Vice-President of the United States are elected by the move for deferment. people of America. Should the President be incapacitated, ther the Vice-President takes his place. That’s the model we’re CROSSLEY: I move that this section be deferred till the following in the State. I certainly believe the lieutenant gov end of the total proposal. ernor should be elected. I don’t think it matters whether he’s A. TRASK: I object to such action. of the same party or of the opposite party. And then there’ll be two persons elected by all of the people of Hawaii to act, LEE: Ibelieve we should proceed. We’re going along at one in the capacity of chief executive and the other to stand by a snail’s pace here and since we’ve already considered and to fill that place should the first one be unable to fulfill the acted upon a proposed amendment on this matter, let’s hear duties of his office. what this amendment is so that we may act on it and pass Now, we’ve heard a good deal here about this Convention on the section before we go to lunch. being against the people. I rather resent that, I think that WOOLAWAY: I’ll second the amendment to speak on it. goes to the privilege of the Convention. There are 63 of us here and we’re all working for the people. We’re all elected CHAIRMAN: Will you read the amendment please. by the people, and I feel that this implication that because we CROSSLEY: The amendment is an amendment to Section do not want to elect the janitor and the gardeners and some body else down the line in an administrative position then we 2, amending the section to read: are against the people. We elect the governor and the lieuten There shall be a lieutenant governor who shall be appoint ant governor, we elect the legislature, and this Constitution ed by the governor and whose term of office shall be the will grant that legislature very great powers. The other same as that of the governor. In the event there occurs night I was in sympathy with most of the action taken in strik a vacancy in the office of the governor, the lieutenant ing out of the report of the Committee on Taxation and Financc governor shall assume the duties of the governor, until several powers that would have been given to the governor at a successor has been elected at a special election to take the expense of the legislature. If it had come to a voice vot~, place within sixty days unless the unexpired term of the I mean a roll call, I would have voted in favor of deleting thos governor shall be less than six months, in which case the particular powers. But, the question now we have is whether lieutenant governor shall serve the balance of the term. the number two man in the State shall be appointed or elected and I certainly do believe he ought to be elected. HEEN: May I suggest an amendment to that, and I hope LEE: Point of personal privilege. you’ll accept it, that instead of “lieutenant governor” it’ll be the term “secretary of state.” CHAIRMAN: State your point, please. CROSSLEY: I accept that amendment. LEE: I’d like to state that the remarks which I used came from the remarks which were made by a former speaker at CHAIRMAN: The word “lieutenant governor” has been a former debate, one of the vice-presidents of this Conven stricken from the amendment, and the word “secretary of tion, a Republican. state” put in its place. KING: Mr. Chairman, also a point of personal privilege. LEE: I would like to speak in opposition to the proposed amendment. It seems to me that if that amendment is CHAIRMAN: State your point. accepted there will be only one person elected representing KING: I was not referring to the last speaker when I the executive branch of government. It seems to me also said I resented the implication that we’re working against that those of us who may believe in a certain amount of the people, but that remark had been made several times, efficiency in the executive branch of government, to have not only today but in previous days, and I think it’s about other offices such as the attorney general, the superintend time we forget imputing the motives or the character of ent of public works, the land commissioner and all other our fellow delegates and say we’re all working for the people. heads of the departments to be appointed by the chief execu tive where in many other states they call for the election, HEEN: The President of this Convention relies upon the would be prone to object to fastening the mantle of so great fact that the President and the Vice-President of the United JUNE 20, 1950 • Morning Session 285 States are both elective officials. That’s all right so far as WOOLAWAY: Point of order. it goes, but he overlooks the fact that they run upon the same - - from the same political party. That’s where the ROBERTS: Point of order. big difference comes in. WOOLAWAY: You allow the others - - CHAIRMAN: I believe that question’s been settled, how CHAIRMAN: State your point. The Chair would like to ever. state that I didn’t have a chance to allow these speakers to speak because I was interrupted by a point of order from the FUKUSHIMA: I’d like to speak in opposition to the amend delegate from Kauai - - Maui rather. ment. It will be very brief. I do not believe in a pseudo- Democratic government or a pseudo-Republican form of ROBERTS: Point of order. government, and I also do not believe in a government by CHAIRMAN: Will you state your point, please. “cocktail appointment.” FONG: The proponents of this amendment presuppose ROBERTS: I think we’re still in the Committee of the that the governor and the legislature are going to be of the Whole. I haven’t raised any objection to questions put before same political faith. Now, they are talking about the party on the previous question in the Committee of the Whole. affiliation of the governor and the lieutenant governor. They That motion is an entirely improper motion in the Committee assume that by appointment the lieutenant governor will be of the Whole. of the same political faith as that of the governor. We are CHAIRMAN: The Chair did not have a chance to rule on giving to the legislature the right of confirmation, that is to that motion. I will ask the - - the Senate. It is to be conceived that the governor may be Democratic and the Senate, Republican. Now, under those ROBERTS: I’ll wait until the ruling of the Chair. circumstances, are we to assume that the Democratic gov ernor is going to have a Democratic lieutenant governor, CHAIRMAN: Thank you. I will ask the person who and vice versa? There is no assurance that the lieutenant seconded the motion if they would withdraw to allow speakers governor is going to be of the same political faith as that who have not spoken on this question to speak. Delegate of the governor because the confirmation power lies with Arashiro. the Senate. ARASHIRO: I’m just wondering, but I will withdraw for I would like to state that I’m beginning to get a little the sake of those that want to express their views on this worried about this governor, the position that he is going matter. to have in this State of Hawaii. We are building here in Hawaii the biggest political machine that the State will ever CHAIRMAN: Thank you. see. In no other state has the responsibility been placed GILLILAND: I am opposed to this amendment, proposed upon one man and one office, and in this Convention we are amendment on the ground that the people of the Territory going to give that man superhuman powers. Where is this have enough confidence to elect the man as the lieutenant superhuman person that’s going to guide this State of Hawaii? governor, and if anything happens to the governor, why Who is this superman that will have the intelligence of a shouldn’t he fill out the rest of the term. I think we should Solomon, that is going to solve all the problems of this not make a puppet or a rubber stamp or a dummy of the Territory by his appointments? And I’m beginning to get lieutenant governor if we’re going to elect him the same as a little worried about this superhuman governor that we’re we elect the governor. going to have, who’s going to appoint all the other officers, who’s going to run this State the way he sees it, only subject CROSSLEY: In order to stop all of this debate, I with to the weak confirmation of a weak Senate. draw my amendment. WOOLAWAY: I shall withdraw my second. ANTHONY: I was one of those who was in favor of having the governor and lieutenant governor run on the same ballot CHAIRMAN: The amendment and its second has been and be from the same political party. I still think that that withdrawn. is wise, but I would vote against this amendment because, as the delegate that last spoke has pointed out, in this Con TAVARES: I rise to a point of special privilege. stitution we are concentrating the executive powers of gov CHAIRMAN: State your point, please. ernment in one man. Now suppose the governor dies, what we are doing in effect is to say, not only during his term of TAVARES: It is my privilege to announce that the Bar office may he exercise all of these powers but in effect by Association has endorsed Delegate Okino for the appointment his last will and testament he can pick out the fair-haired to the Third Circuit judgeship. boy that’s going to be the heir apparent. I think that the DELEGATE: Tom Okino happens to be absent for just a people ought to have some voice in who is going to succeed moment. the governor in the event of a death or a vacancy. Therefore, I vote against the amendment. CHAIRMAN: I will call on the delegate from the fourth district to make that announcement. We’ll have a short recess APOLIONA: I’m not going to make a political speech but in a minute. I think it’s time to vote on this question. I agree very heartily with the findings of our future judge of Hawaii and his committee. And at this time, I’m going to A. TRASK: Point of information, please. vote against the amendment and I call for the previous ques CHAIRMAN: You have a point of information. State your tion. point, please. ARASH]RO: I second that motion, Mr. Chairman. A. TRASK: Will Delegate Tavares give us the score, if he RICHARDS: Mr. Chairman, may I ask the - - desires. CHAIRMAN: The previous question has been moved and CHAIRMAN: I would like to have that held until we vote seconded. on this section, please, since Delegate Okino is not here. 286 EXECUTIVE POWERS AND FUNCTIONS APOLIONA: I’d like to correct Delegate Tavares. I made delegate to that man a number of the duties that he is per the announcement before he did, when I said “the future judge forming today. There are here in the islands, of course, of Hawaii.” separate islands. It is often necessary for the governor, or I think the governor should, visit the other islands and spend CHAIRMAN: The question before the house is the adoption some time on them. During the time that he is absent from of Section 2, committee report. Is there any further discus the island of Oahu, if the capital is here, he ought to be able sion on this section? to delegate certain ministerial duties to the lieutenant gover DOl: I would like to direct a question to the chairman of nor. If he’s on the island of Hawaii and there’s certain the committee. I would like to have an explanation of the routine business which requires his signature, I see no ob meaning of the last clause there, the last line of Section 2, jection to the governor having the clear power to delegate “or as may be delegated to him by the governor.” certain authority to the lieutenant governor for him to exer cise certain ministerial duties when he is absent. CHAIRMAN: Delegate Okino, would you care to answer I think that this provision enables the governor to dele that question? gate such powers as may be consistent with the abilities of DOl: Probably I should venture another step and say, does the lieutenant governor. If we tried to describe those duties that create indirectly a two-headed executive? by law, we may find that the particular abilities of the partic ular lieutenant governor do not lend themselves well to the OKINO: The purpose of including that particular phrase assumption of certain of that authority. There’s no doubt in that Section 2 was to empower the lieutenant governor with that in the delegation of the authority, the governor remains functions which normally would not be delegated to him by the the one that is responsible. He hasn’t forfeited his right. legislature. It is on the strength of the recommendation of Such duties as he may assign he may take back to himself. the subcommittee of Hawaii Statehood Commission that that But this allows for a little more ease of administration in clause was incorporated. On page 29 of this report, under the the delegation of certain functions to the lieutenant governor. title of “Lieutenant governor,” the last sentence of the first The subcommittee thought that this was a very desirable paragraph, you will note that he should also be acting gover thing from an administrative point of view. nor at such other times and with such power as the governor It does not rule out, however, the idea that somehow, that might delegate to him from time to time. the governor should have an administrative assistant. That’s CHAIRMAN: Is that a satisfactory answer to your question? perfectly all right. But we do know from our experience with past Secretaries of the Territory that there have been DOl: Another question. Does it mean that the governor people of particular abilities who are able to handle certain may delegate such duties such that after the duties are dele situations and it ought to be clear that the governor can gated, the lieutenant governor becomes fully responsible for utiine those people fully in those areas. the execution of those duties and that it removes the governor from responsibility as to the execution of those duties? HEEN: In considering this particular problem, we might go over to Section 4. “In case of the failure of the governor OKINO: I do not think so; I think the governor is still to qualify, or his removal from office, death, resignation, responsible [inaudible] if he does delegate any particular inability to discharge powers and duties of the office, or administrative functions or duties to a lieutenant governor. absence from the State.” In other words, if he’s absent from Honolulu, which will be the capital, and is on the island of ROBERTS: I have a question. Does that clause give him Hawaii, the lieutenant governor cannot perform those duties; powers which he would not have if that clause were absent? and the governor cannot delegate those duties to the lieuten OKINO: I believe that is the real reason why that clause ant governor under that Section 4. is incorporated. You will note that most of the duties will A. TRASK: Point of information, if you please. Chair be prescribed to the lieutenant governor by legislative act man of the committee, what particular duties are to be dele and there may be some question - - gated by the governor to the lieutenant governor that was in ROBERTS: I have a question on the matter of delegation the mind of the committee? of power. It’s one thing when the governor leaves the state OKINO: The committee relied, principally, upon the and asks the lieutenant governor to take charge, he has his representation made by Delegate Porteus and the language functions. It’s something quite different if, for example, the as it is set forth in that Hawaii Statehood Committee report. governor should turn over to a lieutenant governor certain We felt then that there were some minor ministerial or jobs which are, let’s say, a little “messy.” The lieutenant administrative duties which could lawfully be delegated by governor is - - suppose he happens to be of a different the governor to the lieutenant governor, taking into account political faith, he’ll do the dirty job for the governor and the particular fact that has been stated to you by Delegate the governor says, “I have the authority to delegate this Porteus, the governor of the Territory of Hawaii may be job to you, you do that,” even though it may mean that this going from one county to other counties. individual has jobs to perform which the governor should be performing as the head of the government. Now, I think A. TRASK: Well, you - - does your reply, therefore, fill that the governor does have power where the lieutenant gov in the situation that Delegate Heen has suggested, namely ernor is there, to turn over certain ministerial tasks. But that absence from the territory does not mean absence from when you delegate the power to the lieutenant governor, the the island of Oahu on the island of Molokai, perhaps? But, governor is giving up his basic rights. in that situation would therefore the power of delegation come in to fill in that particular absence that is not an ab OKINO: I do not think that the governor is giving up any sence as intended in Section 4? basic rights, but I shall yield the floor to Delegate Porteus. He, I believe, will be able to give a more detailed explanation OKINO: No. Section 4 covers an entirely different situa of this particular clause. tion and I think that has been adequately expressed by Dele PORTEUS: We felt that if we were going to have an elected gate Heen, because the expression “absence from the state” lieutenant governor that the governor ought to be able to as it appears in Section 4 under the title of “Succession” JUNE 20, 1950 • Morning Session 287 is something which is entirely different. I have a case to MAU: There is always a catch, Mr. Chairman, in using substantiate that point, a very recent case decided by Nebras the Secretary’s mike. He always says that if you’ll join ka in 1942. me, I’ll let you use my mike. ANTHONY: I’d like to ask the author of this language, I wonder whether all of this argument can be resolved the Secretary, what acts he thought would be accomplished by a simple amendment. If it is purely ministerial duties under this delegation? that you desire to unburden from this superhuman of a gover nor, then all we have to do is to use afteçthe words “law or” CHAIRMAN: Delegate Porteus, would you care to answer in the last sentence and insert “such ministerial duties as that question? may be delegated.” PORTEUS: I had specifically in mind, or the committee ARASHIRO: The question in my mind is in line with had specifically in mind, that should the governor go to the Delegate Anthony’s presentation where in case in the future island of Hawaii to attend certain functions there, that in the some emergency should arise, and in that emergency the meantime the routine work in the capital could be continued, governor now being elected by the people—k will be an the presentation of proclamations for Health Week, for emergency which we might call a “hot potato” —in that case, National Youth, for tuberculosis drives, for cancer drives, to shirk or to avoid from making a decision on an emergency for all the other things that are required, the governor can he will delegate that duty to the lieutenant governor. That is let him do that in his absence. In fact - - if you’ll just wait a question pointed to the Secretary. until I’ve answered the question. CHAIRMAN: Do you care to answer that question, Dele ANTHONY: I’ve got enough of an answer. I’d like to gate Porteus? address myself to the sentence. PORTEUS: Was the question, Mr. Chairman, the question PORTEUS: Well, I’d like to go on a little further if I of delegating a “hot potato”? may because I haven’t finished the answer. This will permit the governor to go to one of the other CHAIRMAN: Correct. islands and take a week’s vacation, if it need be. It isn’t PORTEUS: Well, as far as delegating a “hot potato” is an absence from the state, it isn’t the inabiky to qualify concerned, k seems to me that there wouldn’t be a state of or removal from office or inability to discharge his duties. continual friction between the lieutenant governor and the If the governor wants to take two weeks’ vacation on the governor. The idea was to get a working team. Now, if there island of Hawaii, if he’s been there in office for four years is friction I hardly thiak that the governor is going to put him and gets elected for another four years, he can say to the self into a poskion of allowing a lieutenant governor to take lieutenant governor, “You take over and run the duties of over in a difficult skuation and come out of it, because nobody this office. I’m going to Hawaii for two weeks’ vacation.” in this territory is going to sit back without knowing that a And it will mean that the work of the office can go on with “hot potato” has been handed over to a lieutenant governor. out it being held up until the governor himself comes and And they’re going to say, if this is the way the governor sets his hand to any instrument that may require a signature. operates in office maybe we’d better not support him for this office or another polkical office again. Certainly, there are CHAiRMAN: Is that a satisfactory answer, Delegate? “hot potatoes” that are around, but I thiak that this clause, ANTHONY: Now I’d like to address myself [inaudible] leaving k to the discretion of the governor, will mean that the two men will try to work together for the benefit of the PORTEUS: If the delegate will come over here, I’d be Territory. Now if he passes a “hot potato” on and the lieuten glad to let him speak from this desk. ant governor can successfully handle the “hot potato,” then he certainly will gain in political stature within the State. ANTHONY: The sentence in question is not confined to the proclamation of Poppy Days or pinning things on Boy WHITE: If you will refer to - - if they’ll refer to Section 5. Scouts. I thiak the explanation of the Secretary makes it Section 5 reads that “The governor shall be responsible for perfectly clear that this is a broad delegation, not confined the proper execution of the laws.” Now, he can’t relinquish to simple ministerial acts. And once you have such a broad his over-all responsibility, and as far as this section is con delegation, you thereby give the executive an “out” on the cerned, one of the difficulties is that we are setting up a job responsibility for those acts that are delegated. here that’s never been in the executive setup before. in the Now I will give you a specific example. Suppose the thinking of the committee he was supposed to take over the governor, and he could well do it under this section, would duties of the secretary of state, and, therefore, with all the say to the lieutenant governor, “You take over the entire power you are vesting in the governor, he’s got to have some project in connection wkh the commissioner of public lands, body that he can delegate some of these duties to. So I think if there is such an officer, of subdividing areas and opening it’s a very natural provision to have in here and I wouldn’t up homesteads by an appropriate executive order.” Now say that k just goes to simple ministerial duties. the lieutenant governor would go ahead and do that. The governor would thereby relinquish his authority. He would HEEN: I now move an amendment to that particular then not have the responsibility of the office and I assume sentence. Place a “period” after the word “law” in the last that this Constitution will have some place in here that the line and delete the rest of that sentence. governor shall see to it that the laws shall be faithfully ANTHONY: I second that. executed. You will be giving this power to the governor, then permitting him to make a delegation. Not a delegation for CHAIRMAN: It has been moved and seconded that the Poppy Day, but a delegation for the real substance of his period be placed after the word “law” in the last line and the office and I am against the sentence. remainder of the sentence be stricken. MAU: [Inaudible] TAVARES: I think we are having a lot of ado about nothing. There are probably thousands of laws on the books, federal PORTEUS: I’d be glad to volunteer the loan of my mike, laws, that say the President shall do this and the President although I seem to be picking up opposkion all the time. shall do that and the courts have held time and again that 288 EXECUTIVE POWERS AND FUNCTIONS he - - and have sustained his action through any number of pose of certification merely of the election returns of sena his Secretaries and said that is the act of the President. He tors and representatives. I merely make that as a suggestion, has delegated thousands and millions of things to his subordi Mr. Chairman. nates. Of course, the governor is not nearly as busy as the CHAIRMAN: One question. Did you suggest it be done by President but the principle is the same. It can be delegated. ordinance? If you take this out now, you are making it appear that the legislature cannot authorize the governor to delegate even SHIMAMURA: Either here or in the ordinance. I thiak ministerial matters. I think it would be wrong to delete it preferably in the ordinance where it would be more of a now. transitory nature. With that understanding, I won’t make the amendment at this time. CHAIRMAN: Delegate Anthony, are you speaking to the motion? LEE: I agree with the chairman of the Committee on Ordinances; so that with that understanding that the matter ANTHONY: Speaking to the motion. That is precisely will be taken care of by the Committee on Ordinances, I why I want it taken out, because with the period after the - - believe we are ready to put the question on the section. as the delegate from the fourth has put it, the governor will, as a matter of law, have the right to delegate ministerial CHAIRMAN: The Committee of the Whole report will duties. The Federal Constitution provides that the President include that statement. shall be responsible for the faithful - - shall see to! it that the laws are faithfully executed. That does not mean that ROBERTS: I’d like to suggest that the Committee of the the President may not delegate certain acts to subordinates. Whole report show that it’s not the intention, in deleting The difficulty with this sentence is that if you put it in, you this section, to deny the governor the opportunity to turn mean something more than the ordinary law. I am against it over those little small jobs that were mentioned on the because it will be giving away some of the powers of his floor which need to be done as a matter of ministerial office, and it’s in conflict with the other section which re operation. quires the governor to be responsible for the faithful execu CHAIRMAN: if there is no objection from the floor, the tion of the laws. committee report will show that. All those in favor of the A. TRASK: I speak in favor of the amendment striking amendment to delete the last line with the exception of the this latter portion because it leads us into a very indefinite, word “law,” will say “aye.” unsimplified, foggy situation. What is a ministerial duty? LEE: That has already been passed, Mr. Chairman. What is a substantive real duty? There might be an ad mixture here and it in not simplified and it calls for further CHAIRMAN: I beg your pardon. explanation. That’s why I’m afraid of that and I think it LEE: The motion is the entire section! as amended. should be deleted. I’m concerned concretely about the question of the appointment of judges. Will the duty devolve? CHAIRMAN: Thaak you. All those in favor of adopting Is it, the power to appoint a judge, a power that the governor tentatively the Section 2 as amended will say “aye.” may delegate to the lieutenant governor or not. Now maybe Opposed. Carried. not, but certainly it does raise a question and therefore I’m The only thing - - in favor of the amendment. LAI: I move for the tentative adoption of Section 3. CHAIRMAN: Is there any further discussion on the APOLIONA: I second that motion, amendment? If not, all those in favor of the amendment will say “aye.” Opposed. I believe the ayes have it. CHAIRMAN: Section 3 is now before the house. LEE: I now move that we tentatively agree to that section LEE: A point of information from the chairman of the as amended. committee. I notice that in your report there is shown that the federal salary of our present governor is set at $15,000 J. TRASK: Second the motion. a year and the legislature of the Territory has provided an CHAIRMAN: It has been moved by Delegate Lee, second additional sum to make it $16,000. It would seem to me, ed by Delegate Shimamura that we agree on this section as Mr. Chairman, that imless you and your committee can amended. show otherwise that $16,000 is enough money for the gover nor and I will make an amendment to that effect unless I SHIMAMURA: The Chair has put words into my mouth. hear good cause from the committee. I did not rise to second it. OKINO: On that particular question, I am sure the dele CHAIRMAN: I stand corrected. I heard someone say, gate from Kauai, Delegate Rice, would like to speak. “Second the motion.” J. TRASK: I second the motion. C. RICE: Mr. Okino asked me to speak on this as I was the introducer in the committee to put this at $18,000. The CHAIRMAN: It has been moved, seconded by Delegate present governor gets $16,000. I feel that $18,000 compared Trask. with other salaries paid in Honolulu is not too much for the SHIMAMURA: Before that question is voted upon may I governor. I went up to the Collector of Internal Revenue and state that under the provisions of HR 49, so-called Statehood asked him what the deductions for federal taxes would be Enabling Bill, the governor and the secretary of state are and he said if it was a single man, he’d have to pay $5,000 designated to be the officers to certify to the election of or near that in taxes. I feel, compared with salaries paid representatives and senators to the United States Congress. in Honolulu —and there’s a lot of entertainment, although Under•those circumstances, there should be an amendment the legislature did give $75,000 to run the governor’s office, either to Section 2, or if the delegates see fit, a provision Washington Place, and so forth at the present—I think that in the election ordinance that the lieutenant governor is for $2,000 we shouldn’t be niggardly. A man with a moder authorized to use the title of secretary of state for the pur ate income could not run for the governorship and could not JUNE 20, 1950 • Afternoon Session 289 support the office. I feel it’s a chance for people with amendment which she sponsored with regard to the judiciary moderate income to take the office. would be applicable to this section, so that if there was a LEE: A point of information from Delegate Rice on this general cut, the governor and lieutenant governor would matter. Assuming that your remarks are valid, I notice that share that cut. I believe Delegate Ashford has looked up in our judiciary article, in cases of’ depression the salaries the original amendment she sponsored for the judiciary and of the offices from the judiciary may be decreased in pro may be prepared to offer it. portion with the salaries of other government employees. CHAIRMAN: Delegate Ashford. Now as I read this section, there’s a little inconsistency there which I haven’t resolved in my mind. In the third ASHFORD: I’m sorry, I haven’t; but I’ve been looking for sentence, there it says, “But in no event shall be less than it. It’s here somewhere but I can’t find it. $ 18,000 and $12,000 respectively, per annum, and shall not MAU: It’s very close to noon now and I think the commit be increased or decreased for the term for which they shall tee ought to be given an opportunity to bring in this amend have been elected.” There might not be an inconsistency. ment. I move that we recess until 1:30 or rather that the As I understand that section, in case of a depression the committee rise, and report progress and ask leave to sit legislature would still have the authority to cut that salary again. except that it shouldn’t cut it during that term. Is that the understanding of the committee? LEE: Second the motion. OKINO: Perhaps I can answer that question. The salary CHAIRMAN: I would ask that you would hold that in or compensation ~f $18,000 provided in this clause here abeyance for a second. While we’re still in Committee of for the governor is the minimum salary. The legislature the Whole, I would like to ask Dr. Apoliona to make the would not have the right to decrease the governor’s compen appropriate announcement now that Delegate Okino is here. sation. The legislature may, however, increase the com APOLIONA: I ask that Delegate Tavares be given that pensation of a governor but not for the term he is serving right as he’s president of the Bar Association. in office; and if there is an increase over and above the, sum of $18,000, then the legislature may, of course, by the CHAIRMAN: Delegate Tavares, president of the Bar power to establish that salary destroy the same-. But the Association. minimum of $18,000 will be the minimum salary of the TAVARES: Mr. Chairman, it is again my special privi governor. That is the intent of the committee. lege to announce to the delegate from Hawaii that he has been endorsed by the Bar Association for nomination and LEE: That is during the term for which he is elected? appointment to the office of judge of the third circuit court. OKINO: During the - - I wish to extend our congratulations to him. LEE: At all times, at any time? OKINO: Thank you, Delegate Tavares. I am really over whelmed and I think I shall be brief by saying thank you, OKINO: $18,000. all people who gave me kokua. LEE: Yes. APOLIONA: And, Mr. Chairman, when you address OKINO: Yes, because it is a constitutional provision. Delegate Okino from Hawaii, will you extend him the same courtesy as you give to Judge Wirtz. LEE: Well, it seems to me that why should the governor be given special treatment as compared with the other MAU: I renew my motion. officers of the State including the judiciary and other mem bers of the executive branch of government. CROSSLEY: I believe that we can today, unless there is any other business on the Clerk’s desk and in order to ex OKINO: I believe you will recall that that amendment to pedite our getting back to work immediately at 1:30 and not the compensation provided for the judiciary was made by going through all of the parliamentary procedure, recess the Committee of the Whole. now until 1:30. LEE: That’s correct. H. RICE: Second the motion. OKI,NO: This report was already filed with the Clerk of CHAIRMAN: Is that satisfactory? It has been moved the Convention. - and seconded that we recess until 1:30. If there is no ob LEE: So that, Mr. Okino, in order to have uniformity jection, so ordered. on this matter, that same provision should apply to the salary of the governor, don’t you think? OKINO: Speaking for myself, I would have no objection, Afternoon Session but I cannot speak for the delegate from Kauai. C. RICE: I think it should be the same. CHAIRMAN: When we recessed for lunch, Section 3 was before us. There was a motion for the adoption, and there CHAIRMAN: Will the delegate please address the Chair. were delegates who were suggesting amendments. I believe Delegate Rice. one amendment has been distributed. I recognize Delegate C. RICE: I think it should be the same, If everybody Ashford. has to take the cut, the governor should take the cut too. ASHFORD: In the judiciary article where it provided CHAIRMAN: I would ask if any of the delegates have an that the compensation should not be diminished during office, amendment. we inserted the following provision as an amendment, “unless by law applying in equal measure to all officers of the State.” KING: I called attention to that provision - - called Dele It appears to me that that is an appropriate amendment re gate Ashford’s attention to it and suggested that the same lating to the governor’s salary which is - - it is now provided 290 EXECUTIVE POWERS AND FUNCTIONS should not be increased or diminished during his term of wage were not included and I would want the record to show office. I, therefore, move the adoption of the amendment by that when we say “applying to all officers of the State,” inserting it alter the word “decreased” in the fifth line. we mean by a general law, not necessarily - - we don’t mean necessarily if a few jury commissioners or masters are SMITH: I’ll second that motion. left out that that would invalidate the general cut or increase CHAIRMAN: It’s been moved and seconded that the sec or decrease. I take it that that’s the sense of this Convention tion be amended with the inclusion of the words “unless by because you can’t always hit everybody. But as long as it’s law applying in equal measure to all officers of the State.” a general law, not designed to discriminate against the gover nor or, in the case of the judiciary, against the judges as a HEEN: May I ask the delegate from Molokai whether or special class, but applicable generally to salaried officers, not this new phrase should come alter the word “elected” that would satisfy the requirement of the Constitution. at the end of that sentence instead of alter the word “de creased”? I think in the judiciary article that was put at the CHAIRMAN: If there’s no objection, the report will so end of the sentence. I’m not certain. state. ASHFORD: In my amendment, I think it was adopted in that form, it was put alter the word “diminished.” AKAU: I wasn’t going to talk against or for the amend ment, but rather for information since Mr. Crossley has TAVARES: I think that’s well taken. This provision says mentioned something about money. I raise the question as “it shall not be increased or decreased during the term,” to the value of putting in a piece of statutory business in this and to put it at the end of the sentence would then allow it to section. While I realize it says that it shall not be less than be increased by a law applying equally to all officers of the a certain amount of money—that’s a safety precaution per State. chance somebody in the legislature would be sore at the ASHFORD: I had thought it meant that wherever it was governor and want to reduce his salary to some insignificant put; in other words it was intended to apply to both the in- amount—I’m wondering if, as I’ve heard other constitutions, crease and diminution if it were by general law applying to if they have mentioned the actual amount. all officers of the State. Where it goes in is a matter that’s The second reason, our value of the dollar has fluctuated immaterial to me. so in the past years. Let us say, ten years ago, if we dared put down $18,000 that would be heresy. Now then, we’re CHAIRMAN: I believe the Style Committee perhaps could making the Constitution for let us say ten years hence or take care of that, knowing the committee’s intent. along that line and while our dollar has fluctuated a great PORTEUS: Was the intent that the governor should only deal in the past ten years, who can tell what is going to be get an increase if all officers of the State got an increase? ten years hence. So I raise the question of the wisdom of Then I disagree heartily with the amendment. I think that putting in any amount, since in the first two sentences it the governor’s pay ought to be adjusted according to the actually says that the legislature shall take care of this. duties of the office and if - - I agree, however, that in case I raise that point. there is to be a reduction, it’s fair enough that it should be reduced according to a proportional reduction. But, CHAIRMAN: I’d like to refer your question to the chair there are times when certain offices because of their duties man of the committee, Delegate Okino. are selected for an increase, rather than giving every OKINO: I am not in a position to answer the question officer an equivalent increase. whether or not the compensation & a governor has been ASHFORD: As the section reads at present, it couldn’t provided in the constitutions. I can only refer you to the be increased at all during his term. Manual on page 153, and it will give you a pretty good idea of the various compensations provided for in the different CHAIRMAN: Is that a satisfactory reply, Delegate states. I made an effort just a minute or so ago to ascertain Porteus? in this page, whether or not there was any specific consti CROSSLEY: The section was written so that it couldn’t tutional provision covering compensation of governors. be increased or decreased during his term of office. That Perhaps some states do. was so that there could be no retaliation against the office during the term of office, or if they were in the same polk TAVARES: It’s my understanding there has never been ical field so that it couldn’t be increased as some special any difficulty where only a minimum was fixed. The diffi consideration. The whole purpose of the section was to be culty has come in constitutions when they fixed a flat salary sure that there would be a guaranteed minimum, however, without any possibility of change. I do not think with the huge national debt we have that the dollar is ever going to and the reason that they in this section - - that we thought be much more valuable than it is today until we get rid of there should be a guaranteed minimum was that this is an that debt. We need inflation to pay off that debt. Heaven elective office as opposed to the appointive office that we’ve help us if the dollar doesn’t stay cheap in paying off that been talking about. For that reason, that there are certain huge debt. expenses that go along with the office that don’t exist in an appointive office, and therefore, we felt that there was a LOPER: I wonder if the word “for” shouldn’t be changed difference between the two, and that there should be some to “during.” “For the term of office,” it cannot be increased guaranteed minimum preserved to get a man to go into the or decreased “for the term.” Doesn’t it mean “during the office. term of office”? Any increase at any time for subsequent TAVARES: Another point of information. Harking back governors and lieutenant governors would have to be “for” over the years to 1932, as I recall it, when we made the 10 the four year term. Another suggestion that I have is that — per cent cut, we made it apply to salaried officers or per if you wish to get around as I understand the intention of the diem offices, I mean salaried officers and employees. But amendment—is that “it shall not be increased during the jury commissioners and jurors and masters and various term of office nor decreased for the term of office” except other minor types who don’t get paid a regular salary or as provided in the amendment. JUNE 20, 1950 • Afternoon Session 291 CHAIRMAN: Delegate Okino, would you like to reply to CHAIRMAN: If the motion before the house carried, it that. would, without reconsideration. The floor is open for further OKINO: I’m sure the committee would have no obj ection. amendment, I mean the section is open for further amend Personally, I think it’s an improvement. ment. CHAIRMAN: We can only write it in there one way. WHITE: We’ve only dealt with the one sentence and Somebody’s got to make a motion to that effect. we’ve been going at it sentence - - I would like to have the opportunity of raining a question in connection with Section KAM: I so move that we substitute the word “during” 3, but in order to explain it, I really have got to talk more for “for.” about Section 4 than I do about Section 3. CHAIRMAN: I would ask that we dispose of the amend ment that’s before the house first, however. Is there any CHAIRMAN: With that understanding, I think it would be further discussion on Miss Ashford’s - - Delegate Ashford’s all right to proceed. amendment? if not, it’s all before you. All those in favor WHITE: Well, in the second section it provides that when of its inclusion will say “aye.” Opposed. So carried. the lieutenant governor succeeds to the office for the re KAM: I now move that we substitute the word “during” mainder of the term, the lieutenant governor shall receive in lieu of “for” in the last - - in the fifth line of Section 3. that compensation of that office. Then if you go down into Section 4, they set forth the number of conditions under CHAIRMAN: Is there any second to that motion? which the governor might not serve. He might not - - he APOLIONA: I second that motion. may fail to qualify, he may be removed from office, death, CHAIRMAN: The motion before the house is for the in resignation, inability to discharge the powers and duties of clusion of the word “during” so that the line would read, the office or absence from the State. My main concern has “shall not be increased or decreased during the term for to do with that term “absence from the State” because I which they shall have been elected.” feel that in that particular paragraph the distinction should be made between temporary absence or authorized leave as WHITE: I’d like to raise a question. By changing that against absence for any of the causes stated in the first part to “during” whether you might not create a situation where of that paragraph, because if you read on further, it goes on the legislature was in session between the time that the to say that in those instances the powers and duties devolve man was elected and actually took office, so he could change upon the lieutenant governor. his compensation. And the purpose of the “for” is to try to Now I have an amendment to make as far as Section 4 is protect it for the term for which he was elected. concerned, but for the amendment to be any good, I’d have ASHFORD: I call the attention of the delegates to the fact to amend Section 3 to delete that second sentence so that it that that was just what was done before President Truman comes down below. I was wondering whether we could defer went in. He was a carry-over, he was elected in November, action on Section 3 until we have disposed of Section 4. I and then they raised the pay before he entered his new term, So move. and if you’ll remember, it was a very close thing as to the SAKAKIHARA: I’ll second that. days by which it passed. CHAIRMAN: It’s been moved and seconded that we defer CHAIRMAN: Delegate Loper, do I understand that you’ve action on Section 3 until action is complete on Section 4. Is withdrawn? there any discussion of that motion? LOPER: Yes, except that I didn’t make the amendment. TAVARES: Before we do that, may I ask just one more I think it was Delegate Kam. point of information. I’d like to make it clear in my mind KAM: That is correct. I withdraw my motion. for the purposes of the Style Committee that regardless of where Delegate Ashford moved to place the amendment CHAIRMAN: Thank you. The only thing before the house which was adopted, it is intended to apply both to the in- now is Section 3 as amended. We have no motion to that crease and to the decrease. effect. CHAIRMAN: Is that correct, Delegate Ashford? APOLIONA: I move that we tentatively adopt Section 3 as amended. ASHFORD: That is correct. And I was just discussing with the President the place where it should be put. It can HOLROYDE: I’ll second that. very readily be shifted around by the Style Committee. CHAIRMAN: Moved and seconded that Section 3 as CHAIRMAN: All those in favor of the motion to defer amended be adopted. will say “aye.” Opposed. Section 3 is deferred. RICHARDS: May I ask one question of the chairman of KAM: I move that Section 4 be tentatively agreed to. the committee. We’ve run into a situation where there’s been rapidly increasing prices, or rather we did during the early CHAIRMAN: Is there any second? stages of the war, and they put in a cost-of-living bonus HOLROYDE: I’ll second that. to all employees of the Territory. Now, does this preclude any such bonus being applied to the governor? CHAIRMAN: It’s been moved and seconded that Section 4 be tentatively agreed to. Would you restrict that to the CHAIRMAN: if you don’t mind, I will not refer that ques first paragraph? tion. That question’s been answered twice. It would not. KAM: First paragraph. ROBERTS: I was going to ask the Chair to read the section of the proposal as it’s being put. CHAIRMAN: Is there any discussion? WHITE: This will not preclude further amendment to WHITE: I have an amendment to it that I’d like to have the second sentence of the paragraph? circulated to the committee. 292 EXECUTIVE POWERS AND FUNCTIONS CHAIRMAN: Would you like to read your amendment? DELEGATE: Who authorized the leave? WHITE: I’ll read it. WHITE: That’s a good question. That was put in to take care of a situation where the governor might be required to Section 4. In case of the failure of the governor to go away for medical attention for a period of time or he qualify, or inability to discharge the powers and duties might be away on vacation, and I would assume that “author of the office by removal from office or otherwise, or his ized leave” would probably do. I have no - - there’s no pride impeachment, the powers and duties of the office shall as to the language. I was trying to get the idea. devolve upon the lieutenant governor for the remainder of the term or until the disability be removed, and he TAVARES: May I ask a question? Some of the difficulty shall receive the compensation of that office during such here evidently is due to the fact that we are trying to antic period. When the governor is temporarily absent from ipate all possible situations. I’m wondering if the chairman the state on official business or on authorized leave, then of the committee would see any objection to letting the leg the lieutenant governor shall perform all the functions of islature provide by law for the situation under which the the governor within the state. lieutenant governor would take over. During the temporary absence of the lieutenant gover OKINO: Speaking for myself, I would have no objection nor from the state on official business or on authorized but the proposal before you is the proposal of the committee. leave, the duties of such office may be assigned by the I’d like to ask the mover of this amendment a question. governor. In case of the failure of the lieutenant governor Delegate White, in your amendment offered, you have the to qualify, or inability to discharge the powers and duties following clause appearing in the third sentence, “in case of the office by removal from office or otherwise, or his of the -failure of the governor to qualify”; then we go to the impeachment, the powers and duties of the office shall third sentence, “or his impeachment, the powers and duties devolve upon such officers in such order of succession of the office shall devolve upon the lieutenant governor for and in such manner as may be provided by law. the remainder of the term.” You mean, if the governor is Now, that’s to take care of the temporary absence and to impeached, do you mean by that reason alone, that the provide that the lieutenant governor assumes the - - or lieutenant governor shall serve for the remainder of the carries on the functions of the governor’s office but does term despite the fact that the governor may be acquitted? not take over the powers, because if you talk about a chaotic WHITE: It was intended that if he were removed from situation, I can’t~ imagine anything worse than the governor office as a result of the impeachment proceedings. leaving the territory and once leaving the territory, the lieutenant governor taking over and with all the powers,. OKINO: But you haven’t said “as a result of the impeach AKAU: Point of information. If the governor leaves the ment proceedings.” The term “impeachment” means one territory whether for pex~sonal reasons or business reasons thing, the initiation of the proceedings by the legislature, it means - - likely in accordance with the article that will be provided by the Committee on Legislative Matters. I don’t think that CHAIRMAN: Are you discussing this amendment? was the intent and I don’t think the delegates would subscribe AKAU: Yes. to that statement. I have another question to ask. In the last sentence of CHAIRMAN: I think it should be before the house before your proposed amendment, paragraph one, you have used we discuss it. the expression, “temporarily absent.” Now what does con AKAU: I’m sorry. stitute “temporarily absent,” ten days, three days, two months, three months, half a year? WHITE: Well, I’ll move the adoption of this amendment. APOLIONA: Second it. WHITE: Well, I would say that any reasonable length of time. I don’t know if you could ever tie it down to a day CHAIRMAN: It’s been moved and seconded that this or a week or a month. amendment just read—you didn’t read the whole amend ment, however, did you— be adopted. OKINO: I submit that if the language that has been pro AKAU: The point I raise is this and perhaps others have posed by the committee is adopted, that particular language been thinking about it and I’d like to get an answer. If the has already been adjudicated by many of the óourts in the, governor leaves the State, the State pf Hawaii, whether for states; that is the language which has been recommended personal or business reasons, I don’t see how you can tie by the Model - - that is the language which appears in the the hands of the lieutenant governor by saying that he can’t Model State Constitution, and in going over somç of the do this or he ‘can’t do that or he can do this. When the cases I have found out that that particular language seems governor leaves, it seems to me the responsibilities for the to have been adopted by most of the states. State lie very definitely in the hands of the lieutenant gover Now there is this Nebraska case which was decided in nor and according to this first paragraph which has just 1942. It gives a very good explanation of temporary dis been read, it does just the opposite. For example, if there ability, permanent disability, and so forth. Permit me to are important decisions to be made, are we going to hang read to you at this time. fire and wait until the governor returns? The constitutional provisions upon which the plaintiff CHAIRMAN Would you like to answer that question, relies for the allowance of his claim deal with the dis Delegate White? abilities in case of the death, impeachment and notice thereof to the accused, failure to qualify, resignation, WHITE: I would say that you’d have a pretty difficult absence from the state or other disability of the gover situation if the governor was away on official business and nor. These are all disabilities within the meaning of the you stripped him of all of his powers. Constitution. Death, failure to’ qualify and resignation LOPER I’d like to ask the maker of the motion if he are petmanent disabilities. Impeachment is a disability, really needs the words, “authorized leave”? at least until trial and .acquiftal, and permanent in the JUNE 20, 1950 • Afternoon Session 293 event of conviction. Absence from the state is a perma OKINO: Well, if the governor should leave the State of nent disability if the governor abandons the office and Hawaii for the State of California for a matter of one hour, becomes a non-resident. But mere temporary absence during that period of one hour while the governor is away from the state for business or of a personal nature, not from the State of Hawaii, the lieutenant governor by reason interfering with the interest of the public, does not vacate of this clause takes over the duties of the governor. And as the office of the governor, and instate the lieutenant soon as the governor returns to the State of Hawaii, he is governor therein with all the powers, duties, and emolu ipso facto, by that fact, reinvested with the functions of the ments thereof. Absence from the state to entitle the governor. lieutenant governor to the emoluments of the office of governor is an absence amounting to permanent disability, WHITE: I’d like to ask Chairman Okino one question, too. or to a temporary disability creating a vacancy; or to a What are the governor’s powers when he goes away on busi disability which prevents the governor from holding the ness? office. OKINO: The governor’s powers will devolve upon the Now, the language proposed by your committee is the lieutenant governor. language which seems to have been adopted by most of the WHITE: You mean he has no power then. He has no states, and courts have already adjudicated on many of the power to act for the state while he’s away? expressions found in that particular clause. It is for that reason that the Committee feels that Section 4 as submitted OKINO: That’s correct. in Committee Proposal No. 2 [sic] should be adopted. Now WHITE: Well, I don’t see how he could go away on official if we were to make amendments, then we shall be using business and be stripped of his power. That’s what concerns language that has never been adjudicated heretofore. me. TAVARES: I’m certainly concerned about the language OKINO: Official powers, but there’s nothing to stop him of this amendment. I do not think Section 4 will cover the to speak for the State of Hawaii, but it will not be official. entire situation as proposed to be amended by the delegate WHITE: Well, I think that that would be an impossible from the fourth district. And if Section 4 as in the original situation, if a governor has to go away, for instance to attend proposal—the first paragraph—has been construed by the the Governors’ Conference, and not be able to speak as the courts, I would think it would be safer to follow that unless governor of Hawaii. That’s the very thing that concerns me. we study the section - - the amendment a little more. I do I’m perfectly willing to admit that in sticking impeachment not think it covers the situation fully. in there, I did - - it was wrong. The point I’m trying to clear up, and I’m not particularly worried about the language HEEN: In the Model Constitution we have similar language, of the section otherwise, I’d like to have it cleared up as to but there you have also the clause “or of his impeachment.” what this Convention intends, that when the governor leaves Now, as stated by the chairman of the Executive Committee, the Territory that he’s stripped of all of his powers even that could be temporary disability if he’s not convicted, and though he’s on official duty? if he is acquitted the disability would be removed. HEEN: I think I can answer that. When the governor OKINO: That is correct, and you will note the insertion is out of the state, there’s no official duty that he’s required of that specific sentence appearing in the last sentence of to perform outside of the state. If he attends a conference Section 4, “In case of his impeachment, he shall not exer of governors, what is there for him to do officially for the cise his office until acquitted,” which would mean that he State of Hawaii? All he does there is to talk and talk, and would be under disability at the time when his impeachment nothing else, and pass resolutions to make the State of Hawaii proceeding is going on. a territory again. HEEN: I think that’s correct. KING: Right at this moment the Governor of Hawaii is attending a governors’ conference in the East somewhere HOLROYDE: I’d like to ask the chairman of the committee, and the Secretary of the Territory is the acting governor. where in the article have they allowed for temporary absence And Governor Stainback has no power that he can exercise of the governor, to cover what was meant to be covered in in Hawaii while he’s absent there even though it’s an official the last sentence of the first paragraph of the amendment or semi-official occasion. suggested by Delegate White? WHITE: I’d like to say in my opinion that’s an entirely OKINO: That appears in paragraph one of the proposed different situation. The man acts as acting governor and he amendment, the last sentence beginning with - - which reads carries on what duties he’s instructed to carry on. Now, as follows: “When the governor is temporarily absent.” you say that you can’t imagine anybody - - what if the Now the expression “temporary absence” is not provided governor had to go to Washington in connection with the for in Section 4 of the Committee Proposal 22. The mere question of public lands that the State is to take back. He fact that the adjective “temporary” is lacking is no reason would have no power to speak then for the State? There why the court cannot construe that absence could be perma are many, many situations that will develop. nent or temporary. It is for that reason that I have read to you the Nebraska case. CHAIRMAN: Any further discussion of that point? H. RICE: I get Delegate White’s point and I would like HOLROYDE: But is there anywhere in your article that to say that we’ve asked the Governor to go on to clear up you’ve allowed for that temporary absence or made arrange the situation at Kahului Airport. It seems that the chairman ments to have it taken care of? of the House Committee on Expenditures is holding this OKINO: You mean a special compensation? transfer up. That’s been approved, and we’ve asked the Gov ernor to go along and see if he couldn’t see the chairman of HOLROYDE: No, just to allow the lieutenant governor to this committee. Well, he’ll be acting in his official capacity, take over, as is stated here in that sentence. wouldn’t he? 294 EXECUTIVE POWERS AND FUNCTIONS CHAIRMAN: Anyone care to answer that question? I SAKAKIHARA: Yes, sir. believe he would be. HEEN: I think that the legislature may so empower him. H. RICE: It’s an official duty of his; he’s well acquainted There’s nothing in this article that prevents that or prohibits with the situation so far as Kahului is concerned. any legislation along that line. OKINO: Delegate Heen, would you - - PORTEUS: May I point out that under the Organic Act HEEN: There’s nothing to prevent the governor from ex the language there is similar to that adopted by the commit pressing his views before any body of the Congress in the tee. “Is case of the death, removal, resignation or disability United States or before any administrative officer of the of the governor or his absence from the territory, the secre national government. He can go there and talk all he wants. tary shall exercise all the powers and perform all the duties But there will - - he will not perform any official duty though, of governor during such vacancy, disability or absence or over there so far as the State of Hawaii is concerned. All of until another governor is appointed and qualified.” I don’t those duties will have to be performed here by the lieutenant think there’s anybody in the territory who has suffered governor while he is absent. under misapprehension as to who the governor and the H. RICE: I should say that he was the official representa effective authority of this Territory was. When Governor tive of the Territory. Isn’t that right? Stainback is away, Secretary Long is the acting governor and has all the powers and duties. But when the governor HEEN: He is the official representative of the Territory leaves, he is recognized still as being the governor of this and there’s nothing to prevent him from talking all he wants, Territory, If he reaches an agreement with governors of and as long as he wants, before any administrative body of other states, votes on matters, when he comes back here, the national government or before any committee of the this in his kuleana and he succeeds to all those powers and Congress, nothing to prevent him from doing that at all. all those duties. This is the accustomed language. We’ve had it for fifty years in the Organic Act and I think it’s ROBERTS: It seems to be quite clear that you don’t strip worked. the governor of his office when he leaves temporarily to attend to business which may or may not be in connection WHITE: I’d just like to say, I think that that might be with the State. He’s still the governor. He doesn’t perform entirely satisfactory with an appointive officer, but supposing any functions within the state because he isn’t in the state, you do have the situation that was discussed this morning and he turns over some of the functions - - or under the and have a governor of one party and a lieutenant governor Constitution, they are turned over to the lieutenant governor, of another party. And I thought that we were interested - - and he performs the functions of the governor within the we were trying to provide a situation where we weren’t going state during the period for which the governor is absent. to have chaos. But the governor in his absence elsewhere is still the gov OKINO: May I read further from this decision which was ernor. He still speaks for the State. He just doesn’t per form any functions within the State while he’s gone. I think decided in 1942, k’s rather recent. with that understanding, we don’t have to worry about the CHAIRMAN: Please do. language. The language in there, I think is fairly clear. Is that in accord with the intention of the committee? OKINO: It’s written on the same language. “A governor does not lose his office by stepping over the boundary line of WHITE: My concern is that it says, this paragraph says the state for a purpose or for a time that does not disqualify very clearly that “the powers and duties shall devolve upon him from holding the office. During such an interval, the the lieutenant governor.” Now under that wording, it seems lieutenant governor does not become governor. The Consti to me that the lieutenant governor while the governor was tution does not provide for two governors at the same time. away for a short period of time could exercise power that When the lieutenant governor performs duties in the execu might be contrary to what the governor wanted done. If you tive office, during the temporary, non-disqualifying absence talk about having chaos with two different people in, I’d see of the governor, he still acts as lieutenant governor and his how you’d just have a nightmare with this. compensation in such an interval is the lawful salary of that SAKAKIHARA: I rose to a point of information, and I officer.” would like to ask the delegate at large from the fourth dis CHAIRMAN: Is there any further discussion on this ques trict, Senator Heen. I understood from Senator Heen’s re tion? The motion before the house, if I may state it, is the marks here a few minutes ago that the governor during his adoption of the amendment presented by Delegate White. absence from within the state and during his tour of the mainland United States, as governor of Hawaii he may speak WHITE: Is the interest of saving a little time, as long as for the people. But, what I am concerned [about] is this. that’s fully understood and will be interpreted that way, I’m If that’s what is his power, it limits the governor, If there perfectly willing to withdraw my amendment. should be an official act or deed for the governor to execute, CHAIRMAN: The amendment has been withdrawn. will the governor have that right in the name of the State of I think the motion before the house now is for the adoption Hawaii, to execute any documents? of the first paragraph, tentative adoption of the first paragraph CHAIRMAN: Delegate Heen, would you care to answer of Section 4. Is there any further amendment? that question? HEEN: At the outset when we first took up the discussion HEEN: You mean when the governor is outside of the of this particular section, there was some discussion about state? the amount of the salary, the minimum salary, whether or not SAKAKIHARA: Correct. $18,000 was too high and maybe not high enough. The expres HEEN: Whether or not he might sign some document, sion made at that time seemed to indicate that it might be too say in Washington, a compact, say, between the national high. I was just wondering whether that’s a closed matter at government and the State of Hawaii? the present time. JUNE 20, 1950 • Afternoon Session 295 CHAIRMAN: I think that that matter was deferred until thought in my mind is that this section could be easily left we finish with Section 4. That is in Section 3. We will return out. to that when we finish Section 4. That was the understanding on deferment. SAKAKIHARA: I beg to differ with the speaker. The remuneration of the governor and lieutenant governor should HEEN: No, as I understand it, the deferment was for the be - - the minimum of their salary should be fixed. The purpose of further considering the last sentence of Section 3, governor and the lieutenant governor, whoever they may be, as to when the lieutenant governor is to receive the compen must be elected by the people of the State of Hawaii. They sation of the governor. at least should know at the time of their canvassing for the offices, should be in a position to know what remuneration CHAIRMAN: That section is not before us at the moment, to expect. On the other hand, in regards to the offices of Delegate Heen. We were talking about Section 4, the first the chief justice and the judges, they will be appointed. They paragraph. The motion to defer included, as I recall, the will be - - they are not elected by the people; they are not proviso that upon completion of Section 4, we would return required to make financial expenditure for their campaign to Section 3. expenses as the governor and the lieutenant governor are HEEN: I apologize, Mr. Chairman, I’m a little confused. required to do. The pay of the judiciary could be provided by the State legislature, but I may add here that at the time CHAIRMAN: That’s 0. K. Thank you. of election of the State legislators the governor and the lieutenant governor must run for election. I submit at least SAKAKIHARA: It was my understanding when I seconded in fairness to those who may offer themselves to the office, the motion to defer, it was to enable Delegate White to dis the governor and lieutenant governor should be in a position cuss part of Section 4 with the last sentence of Section 3. to know - - expect the renumeration from those offices, and CHAIRMAN: Correct. it should be incorporated in the Constitution. SAKAKIHARA: In view of the fact that the matter has LEE: I’d line to have a point of information from the been disposed of, I now move that the Committee of the chairman of the committee, if he can reply. I notice that Whole tentatively approve Section 3 as amended. the President of the United States had his salary increased HOLROYDE: Second the motion. by $25,000. Can you inform this committee as to the salary of the President of the United States, how it’s determined, CHAIRMAN: I don’t believe that the motion is in order whether or not there is a limitation in the Constitution of unless the movant of the motion to consider Section 4 wants the United States concerning the salary of the President, or to withdraw or we want to reconsider our action on defer is it left to the determination of Congress? ment. I believe that unless some other step is taken, the section before us is Section 4, first paragraph. CHAIRMAN: Delegate Okino, would you care to answer that? SAKAKIHARA: Then I move to reconsider our action on deferment. OKINO: I can only express an opinion. I do not think there is a minimum compensation provided for in the Con LEE: Second the motion. stitution of the United States for the President. CHAIRMAN: It has been moved and seconded that we LEE: In other words, you doubt that there is any limi reconsider our action on deferment. All those in favor will tation in the Constitution of the United States. say “aye.” Opposed. Carried. Now, Mr. Okino, can you furnish this other information? SAKAKIHARA: I move that Section 3 be tentatively How many states of the Union provide for a limitation of the approved, as amended. governor”s salary or the lieutenant governor’s salary? KAM: I second that motion. OKINO: Six states. Legislative Reference Manual, page LEE: I came in late, but a point of information. Was the 153. California, Georgia, Maine, Michigan, New York and amendment offered byMarguerite Ashford adopted? Texas. CHAIRMAN: It was. LEE: And what is the limitation in those six states? LEE: So the only thing left really for discussion is the OKINO: California, $25,000; Michigan, $22,500; amount of the salary, whether it’s too high or too low. Is Georgia, $12,000; New York, $25,000; and Texas, $12,000. that it? LEE: And the other remaining states do not have any CHAIRMAN: Correct. One of the things. limitation? LEE: Well, I’d line to hear from others on that. OKINO: Apparently other jurisdictions provide the gover FONG: In the article on judiciary, I believe we did not nor’s compensation by law. insert in the article on judiciary the compensation of the CHAIRMAN: Are you through, Delegate Lee? judges although at that time we thought that the compensation of judges should be large enough so that the office may be LEE: I notice here a notation concerning the President attractive to men of ability and men of learning. Now here of the United States. For the information of the committee, we have inserted in the Constitution a provision on what the “The President shall at stated times receive for his services minimum salary should be for the governor and the lieuten a compensation which shall neither be increased nor di ant governor. I was just wondering whether we should leave minished during the period for which he shall have been that to the legislature and have the legislature set it, instead elected and he shall not receive within that period any other of putting it in the Constitution and freezing the minimum emoluments from the United States or any office.” There’s salary of the two positions. Now, we have not done that for no specific provision other than a limitation on the salary’s any of the other offices which we have provided for and the increase or decrease during the term for which he is elected. 296 EXECUTIVE POWERS AND FUNCTIONS HEEN: I note in the Manual the salary of the governor of I think a man should be able to count on reasonable compen Pennsylvania is $ 1.8,000 and that is prescribed by statute. sation. I’m just wondering whether that is a minimum salary which As a matter of fact, there’s another thing. We know that may be - - or I suppose they can raise it or decrease it at it’s a little out of line to pay the heads of departments more any time if that’s not within the term of the office. than you pay a governor or as much. If you’re going to pay a governor $10,000 a year or some such sum as that, how OKINO: if you will refer to page 152 of the Manual be in the world can you get the best men possible in order to ginning with California, where it is provided by the Consti take the heads of these various important state departments. tution, $25,000, you will note the reference A, “Legislature They’re going to have to live. You’re going to have to pay may reduce.” Then, we come to Georgia, $12,000, footnote them an adequate salary. You may have to pay as much as E, “Legislature may change it after completion of the present $12,000 or $14,000 a year. After all this $18,000 has an- term of office.” Then, we come to the state of Maryland, other effect. It’s a certain guide in the establishment of $4,500, there is no note. We go to Michigan, $22,500, pro pay for other positions, and I don’t think we ought to get vided by the Constitution, note G, “Constitution specified the governor in a position where if he’s only getting $10,000 $5,000, however, the legislature appropriated $2,500 addi or $12,000 a year, the argument will then be used that you tional for the fiscal year ending June 30, 1947.” Then we can~t pay the heads of the departments more than that be go - - cause the governor isn’t getting far more. I think it’s a HEEN: What page is that on, if I may ask, Mr. Chairman? fair enough provision, does no violence. What page? OKINO: I should like to submit this for your further OKINO: 153. You will find the states, length of office, consideration. The governor of our Territory of Hawaii maximum term, annual salary, salary fixed by either law has been receiving about $16,000 a year with perquisites. or constitution, and on page 152 proper notes commenting The governor of our Territory of Hawaii to this date was upon the various provisions. never elected by the people. But if the governor of the Territory of Hawaii is to be elected by the people, then it HEEN: What I have in mind is this. Take the great state would seem that an additional $2,000 a year is not unreason of Pennsylvania with millions of inhabitants where the gover able. After all I think he would like a few dollars for his nor receives $18,000 a year. It seems to me that $18,000 campaign fund. a year for the governor of Hawaii, with only half a million people is a little out of line. FONG: In looking over this chart on page 153, we find Now, besides the salary prescribed for the governor, I that if our governor is paid not less than $18,000 a year, might call attention to this, that in the general appropriations he will be the - - he will be tied for sixth place as far as bill passed in 1949 the governor was given an appropriation salary is concerned. He will only be exceeded by the State of California, $25,000; by the State of Massachusetts, of $75,000 for current expenses in connection with his office $20,000; by the State of Michigan, $22,500; New Jersey, and Washington Place, the mansion of the governor. My recollection is that in the past that amount allotted to the $20,000; and New York, $25,000. He will be tied for sixth governor’s Washington Place was in an amount around place with the governor of the State of Pennsylvania. $5,000, which was spent for his help and buying groceries, Now, in our talk before the Congressional Committee, I suppose, and a little light liquid refreshment, and that’s we told the Congressional Committee that our Territory is all tax free. No rent to pay and those things, I think, are quite a self-sustaining Territory, that we pay into the things of value. I don’t doubt but when he has to make his United States Treasury in taxes more than ten of the other tax return, he may have to state the value of - - the regular states in the Union. Now if we pay taxes, if our taxes only value of that place in order to make a proper return, income exceed ten other states, and only five other state governors’ tax return. salaries exceed us, how can we justify paying our governor $18,000, and remember that is only the minimum. Not less PORTEUS: The subcommittee that worked on this did than $18,000. The salaries which I have quoted are the make a recommendation. They found that in 1947, 37 states maximum salaries that are now paid the executives of the provided a salary of $10,000 or less a year, and seven pro Commonwealth of Massachusetts and the State of California vided a salary between $10,000 and $12,000, so 44 of the and the other states. states were under $12,000. Now that doesn’t make it right. Now, it seems to me, although I know the point raised by Some states go down as low as three, four, five and six the Secretary is well taken—that we should pay a man for thousand dollars a year. That’s not right for the chief what his responsibilities are —still we must go somewhat in executive of a state. conformity with the salaries paid by the other commonwealths, Whether Pennyslvania chooses to pay $18,000 or not, I and in looking over this chart it seems to me that the salary think what we ought to do is pay what the office is worth. of not less than $18,000 is far above the salary paid to the I think the office is worth more than $18,000 a year. I think other governors. I will say that it would put our governor’s it’s worth much more than that. I think the man guiding the salary way out of line with the chief executives of the other destinies of the State of Hawaii is entitled to enough compen states. I don’t know what salary should be paid. I know sation so that he can - - does not have to be somebody that that he should be paid a good salary because I know his has a large private income and wishes the honor with the campaign is going to cost him $18,000, it’ll cost him that responsibility. I think compensation should be coupled with if he really wants to make a good campaign, but we should that responsibility and I think as a practical matter it’s a at least adhere to what is being paid to the other executives. good thing to set a limit, then the legislature cannot play around with that limit. A man knows that under this Consti ROBERTS: I’d like to address myself not to the amount tution as governor he cannot get less than $18,000 a year. of money—that to me is at the moment a little immaterial If the legislature, in its discretion, decides to provide a to the problem—but to the question as to what we should residence that’s not in the Constitution, it may do so or not. write into our Constitution. I believe that generally we The legislature decides to provide help, food or other per ought not to write any specific figure in our Constitution quisites. The legislature may do so. It’s not forced to. But with regard to the amount of money to be received by an JUNE 20, 1950 • Afternoon Session 297 officer of the State, whether he be the executive or the amount beyond that which had been granted by the federal judiciary or the legislators. It seems to me that’s a prob government. In addition to that, they provided certain per lem that could be determined as the problem arises and as quisites to go along with the job. the job is evaluated and the figures set. Now then, getting back to whether or not there should be I think, and I agree with the previous speakers that we a minimum. I was one of those in committee that thought the ought to pay enough to attract the most competent and best minimum should be somewhat less, but went along with the qualified people for the job, whether it be $10,000 or $15,000 majority which I would support. I’m not concerned either or $25,000. I’m not concerned as to whether we are sixth. with what place we have in the race for paying the governor I have no objection if we’re first among all the states in the highest salary, whether we’re first or forty-ninth. I do paying a good executive a decent salary. I also think that think, as other speakers have said, we should have a salary we ought to pay more to our legislators so that we can attached to the job that will attract the highest caliber of man attract individuals to the legislature. I think we ought to possible to get for that job. pay more to the judiciary. That problem however, it seems Also the thing that the committee couldn’t find out in to me, is not a problem which we ought to wrestle with and examining the records of salaries for these other people write into our Constitution. I would suggest that we follow that we talk about was what perquisites they got, what else the procedure that we followed in the article on judiciary. went along with their salary, and if we had the full story. Put out the general language that provision be made, but In other words, if we had what is commonly known as take provide that they cannot be reduced unless other adjustments home pay, why then we might be able to make a comparison are made to all officers of the state. and say we are first, second, third or sixth or whatever we Now the argument might be presented that a fellow has to stand. But we do not have that information and I don’t think run. Judiciary don’t have to run, they get appointed. But that it is proper to make a comparison between something what we’re talking about basically is the first office. That’s that we know as being all-inclusive and something that we the only time when they don’t know, but after that the execu do not know as being all-inclusive. I would support a provi tive knows what he is going to get because it’s specified in sion that would permit a minimum salary. I think that should the law. The legislature can’t change it, and it seems to me be guaranteed. that just for consideration of the first election, that we ought MIZUHA: I would like to add one more thought to the not to spell out the language. previous speaker, that the job should attract the highest I would therefore move that the following language be caliber of men or women in the Territory regardless of inserted in lieu of the existing Section 3: background, so that even the poorest man or woman in this The governor and lieutenant governor shall receive Territory will be able tq run for that office and serve the for their services such compensation as may be pro people if he is qualified for the job. vided by law, ~vhich shall not be diminished during their KAM: Speaking of high caliber men, I notice that the respective terms of office, unless by law applying in State of New York with eight million people will lose a good equal measure to all officers of the state. man in Governor Dewey who will not seek re-election for That language is identical with the language of Section 6 $25,000, too small for him. Is that right, Porteus? So, I in the article on the judiciary which we have already adopted. think we should pay a very high salary to the governor of I’d like to move that as an amendment to Section 3. the State of Hawaii. CHAIRMAN: Is there any second? PORTEUS: I’d like to answer that question. Governor Dewey was such a good governor that the people of the APOLIONA: I second the motion. United States decided that he would best serve his country AKAU: I second the motion. by continuing to be governor of the State of New York. CHAIRMAN: It has been moved and seconded that this H. RICE: I think that by writing this into the Constitution section be amended. you take these figures out of politics and, having been into CROSSLEY: I would like to ask the delegate from the politics more or less, I think that this is one time when we fifth district, Delegate Fong, what is the present salary should not leave this open to political sknlduggery, or some of the governor of the Territory of Hawaii? thing like that, and therefore I cannot agree with the delegate from the fourth district. I thiak we ought to write this in. CHAIRMAN: Delegate Fong. CHAIRMAN: The motion before the house at the present FONG: They tell me it’s $16,000. time is the adoption of the amendment read by Delegate CROSSLEY: $16,000. How much of that is provided by Roberts. All those in favor of the motion to amend will say the legislature? “aye.” Opposed. The motion is lost. The question before the house now is the adoption of FONG: I think the legislature provides around $6,000. Section 3 as amended by Delegate Ashford. All those in Is that right? $6,000. favor of the motion will say “aye.” Opposed. I’m afraid CROSSLEY: It used to be that the legislature provided it’s carried. about $6,000; they now provide only $1,000. But the thing HOLROYDE: I move we temporarily adopt the first para I would like to point out is that the reason that the legisla graph of Section 4. ture provides that $1,000 is because the federal provision is only $15,000. It used to be only $10,000 and the legisla APOLIONA: I thought that motion was already put. ture in their judgment thought the job was worth $16,000 CHAIRMAN: Well, we deferred and went back. I think and therefore they provided them with the other thousand. it’s in order now. I don’t recall that there was any big fight about providing that extra money. I do recall the discussion that they felt APOLIONA: I second that motion. at the time that the compensation should be brought up to CHAIRMAN: It’s been moved and seconded that we adopt thin level, and therefore raised the salary by providing the paragraph one of Section 4 as written. All those in favor - - 298 EXECUTIVE POWERS AND FUNCTIONS J. TRASK: Point of order. I should think it’d be proper HEEN: I think we did that last night with reference to the to move tentatively that Section 3 be approved as amended. article on taxation and finance. We deleted a similar section. CHAIRMAN: We just did that. ASHFORD: To delete it here and put it in the legislative J. TRASK: Did you? article Organicwould Act atfollow the same the present procedure that is used in the time. CHAIRMAN: Yes, we did. All those in favor of the motion before the house to adopt Section 4 tentatively will CHAIRMAN: Delegate Heen, did you make that in the form say “aye.” Opposed. Carried, of a motion? KAM: I move that paragraph two of Section 4 be tenta- OKINO: Your Committee on Executive Powers and Func tively approved - - agreed to. tionsinserted was has no objection to the there purely to deletion call it toofthe that paragraph. attention of theIt HOLROYDE: I’ll second that. delegates when this committee proposal was submitted to the Convention. Now, the committee did not want the dele CHAIRMAN: It’s been moved and seconded that paragraph two of Section 4 be tentatively approved. Any discussion? gates about to thefeel vetothat yourofcommittee power had completely forgotten the governor. SMITH: Before we go into that could we have a five CHAIRMAN: I would like to ask the original movant, minutes’ recess for the clerks? Delegate Kam, if he would like to amend his motion to read CHAIRMAN: I was thinking we could vote on this and for the deletion rather than the adoption? then I would declare a recess. That’s the last paragraph KAM: I so move, Mr. Chairman. of Section 4. All those in favor of the motion will say “aye.” Opposed. Carried. CHAIRMAN: Will the second accept that? The next section before the house is Section 5. Without J. TRASK: I accept that. objection, the Chair will declare a five minute recess, and I do mean five minutes. CHAIRMAN: It’s been moved and seconded that the second (RECESS) paragraph in favor sayof “aye.” Section Opposed. 6 be deleted. Any question? Carried. Allisthose The section HOLROYDE: I move we adopt temporarily Section 5. deleted. CHAIRMAN: The delegate is out of order. I haven’t RICHARDS: I now move that Section 6 pass tentatively called the committee to order yet. as amended. Committee of the Whole please come to order. CROSSLEY: I second it. DELEGATE: Second the motion. CHAIRMAN: It’s been moved and seconded that Section CHAIRMAN: Delegate Holroyde is recognized. 6 pass tentatively as amended. HOLROYDE: I move we adopt temporarily Section 5. ASHFORD: I move to amend - - oh, I’ve got Section 7. J. TRASK: I second the motion. CHAIRMAN: All those in favor will say “aye.” Opposed. Carried. CHAIRMAN: It’s been moved and seconded that we tempo rarily—did you say temporarily? —tentatively adopt Section 5. HOLROYDE: I move Section 7 be deleted. It is covered Is there any discussion? All those in favor of the motion in the legislative article. will please say “aye.” Opposed. Carried. CHAIRMAN: Both paragraphs? It’s been moved that KAM: I move that Section 6 be tentatively agreed to. Section 7 be deleted. H. RICE: Second the motion. ROBERTS: Thin article, I gather, goes to the power of the governor. CHAIRMAN: It has been moved and seconded that Section 6 be tentatively agreed to. CHAIRMAN: motion Are seconded. has not been you speaking to the motion? The HEEN: It has been limited to the one - - first paragraph. I understand that the movant has amended that to apply only J. TRASK: I second the motion. to the first paragraph. CHAIRMAN: It has been seconded. Dr. Roberts. KAM: Yes, sir, Mr. Chairman. ROBERTS: I gather we are dealing in the article with CHAIRMAN: I will correct the motion then, to apply to the powers of the governor. The provision, Section 7, the the first paragraph only. Any discussion? All those in favor first sentence, the first part of it at least, provides that the of the motion will say “aye.” Opposed. Carried, governor may call a special session of the legislature. If you put it in the article on the legislative powers, that’s not KAM: I move that the second paragraph of Section 6 be a power of the legislature. We’re talking about the governor’s tentatively agreed to. power, the governor’s power to call the legislature into J. TRASK: I second the motion. special session. That’s not a power of the legislature. I would suggest that we retain, but we retain only part of it. CHAIRMAN: It’s been moved and seconded that the second paragraph of Section 6 be tentatively agreed to. HOLROYDE: I think the delegate has a good point. So Any discussion? I’ll move that that section be - - I withdraw my first motion. HEEN: I think that that paragraph might be deleted be- CHAIRMAN: There is nothing before the house. cause it’s adequately covered in the article on the legislature. KAM: I move that Section 7, first paragraph, be tenta ARASHIRO: I second the motion to delete. tively agreed to. JUNE 20, 1950 • Afternoon Session 299 CROSSLEY: I’ll second the motion, if it’s for adoption. as the Organic Act of Hawaii is concerned, the matter CHAIRMAN: It’s been moved and seconded that the should be treated by the Legislative Committee, and yet first paragraph of Section 7 be tentatively agreed to. others felt that this was clearly an executive power. For that reason, it was felt by the majority that the matter ASHFORD: I move to amend by inserting a period alter would be contained in this committee proposal subject to the word “convened” in the fourth line of that section, and whatever amendment that may be offered by members serving deleting the remainder of the section. on the Legislative Committee, and it is for that reason that ARASHIRO: I second that motion. I did not actively participate in the discussion now going on. CHAIRMAN: It has been moved and duly seconded that the HEEN: Speaking for myself, and I think I speak for the paragraph be amended to read down to the word “convened” other members of the Legislative Committee, we feel that in the fourth line and the rest deleted. Is there any discussion in a special session called by the governor there should be of that amendment? All those in favor - - no restriction as to what, or no limitation as to what might be considered by the legislature sitting in special session, ROBERTS: I’d like to speak in favor of the motion to amend, and that is the way it is handled in the Organic Act at the if it is understood that the article does not preclude the legis present time. There is no limitation. lature from considering other matters than those which have been set forth by the governor in his statement. If that is CHAIRMAN: What is the wish of the committee? understood and set forth in the report of the Committee of TAVARES: That is something that I think should be the Whole, I would support the amendment. thought over rather carefully. I personally feel that gover HEEN: The Committee on Legislative Powers has a provi nors have been deterred in the past from calling special sion which reads as follows: “Sessions of legislature. Regu sessions that were needed because they felt that if they did lar sessions of the legislature shall be held annually. The the legislators were of a mind to go all over the lot and not governor may convene the legislature, or the Senate alone, in pay any attention to the business in hand. Now I’m not special session.” And if thin is to remain in part, at least in necessarily opposed to giving the legislature some leeway the article on the executive powers it should be only the first in going beyond the governor’s call, but it seems to me this part of it: “The governor may call special sessions of the is a provision that will encourage the governor to call legislature by proclamation,” period. But insert in that an special sessions when needed, and I think we can take care other clause, “or the Senate alone,” so as to conform to what of the legislature’s rights by requiring a higher percentage, we have in the legislative article; so that that sentence will say, than 50 per cent concurrent resolution to allow special read: “The governor may call special sessions of the legis other matters to come in. In that way, you might have a lature, or the Senate alone, by proclamation.” special session that is limited to the business in hand and doesn’t go off on horse racing and a lot of other things. CHAIRMAN: Is that a motion? ARASHIRO: As suggested by the delegate from the HEEN: I so move - - fourth district, will not this then give the governor the MIZUHA: I second the motion. advantage of vetoing all the bills in the regular session, and then from time to time call special sessions for specif HEEN: - - that the paragraph be amended to read as stated. ic items that he is interested in? CHAIRMAN: It’s been moved and seconded that the para TAVARES: I’ll answer that question. The answer is yes, graph be further amended. but you can take care of it by saying that the legislature by concurrent resolution passed, say, by 60 per cent of the TAVARES: It seems to me - - membership of each house, can take up any other matter CHAIRMAN: Just a second, Delegate Tavares. Delegate than the governor provides. In that way you provide a little Roberts, were you through or did you want the floor again? control instead of having these people that sometimes will copy a whole bunch of bills from the preceeding session just ROBERTS: We have not discussed anything with regard to to make a record for introduction of bills, which has happened. the Senate in special session. I would suggest that we adopt the first part of the sentence: “The governor may call special ASHFORD: I’m strongly in favor of the deletion, needless sessions of the legislature by proclamation.” Now if later on to say. I think that we should observe the division of the we adopt a section in the legislative article which provides three great departments of government and should not be for a special session of the Senate, the Style Committee can perpetually trying to confine the legislature. then in rearrangement put that section in the section dealing FONG: We are trying here at every turn to really cir with the power of the governor, so that he could call not only cumvent the power of the legislature. Every time we have a special session of the entire legislature but also a session something in which we should give free rein to the legislature, of the Senate,if the Committee of the Whole agrees to such somebody jumps up and says that we don’t seem to be trusting inclusion. the legislature. Now your legislature is your legislative TAVARES: This is a report of a committee, and I have branch of the government. It is one of the three branches of heard no argument in favor of Section 7. It seems to me government, and I think we should have enough respect and before we vote to delete a substantial portion of Section 7, enough confidence in your legislature to know that they will we ought hear from the members of the committee as to the do the right thing. In the special session which was called reasons which led them to recommend this. I think we to deal with the strike, your legislature didn’t run wild all should consider both sides. over creation and introduce a lot of bills. They handled the strike situation, they handled a few bills according to their OKINO: Your committee members did consider this executive committee and they went home. particular point which is now being debated before your Now I think that our history in the territory for the past Committee of the Whole. Some felt that in view of the fact fifty years, as far as the legislators are concerned, is that that such provisions exist in the legislative article insofar our legislature has done a good job and we can depend upon 300 EXECUTIVE POWERS AND FUNCTIONS the legislature to do what is right. Every time when we try KING: Delegate Heen’s is an amendment to an amend- to hamper their style and try to put obstacles in their way, ment. we are really not showing the confidence that we should have CHAIRMAN: That’s right. in our men who will be elected by the people. KING: Miss Ashford was trying to get your recognition BEEN: I know this, that when the special session was to withdraw her amendment, which would leave Delegate called last year to deal with the strike situation, it was Heen’s amendment pending. called primarily for that purpose, and most of the time was devoted in respect to that matter. Then alter the great part CHAIRMAN: Now, at the present - - of that work was completed we found out that there were ASHFORD: May I be heard for that purpose? I don’t many statutes that were passed at the regular session that know why the Senate should be called in alone, but Fm per should have been amended, and through a screening commit fectly willing to accept the amendment to my motion, making tee these additional bills were allowed to be introduced in it the original motion. order to correct these errors, these very glaring errors in some cases. And they proceeded along that line. HEEN: I can explain that, Mr. Chairman. I think that the legislature can be trusted not to go hog CHAIRMAN: Just a second. The Chair understands now wild in the matter of dealing with legislative measures in that Delegate Ashford has withdrawn her amendment. The a special session. In the article on legislative matters, amendment you accepted has not been seconded. special sessions will be limited to a period of thirty days with the right on the part of the governor to extend that HOLROYDE: I will second that, Mr. Chairman. period for another thirty days, Sundays and holidays excluded. CHAIRMAN: Okay, it has been seconded. HAYES: I just wanted to remind, following Delegate Fong APOLIONA: Now can I ask the delegate from the fourth and Delegate Heen, to remind the rest of the delegates here a question - - I mean fourth district a question. What does that the same legislature was also sued. he mean by calling the Senate into special session, why the Senate? PORTEUS: I think this is a subject that may well be left for discussion when we hit the legislative article. I believe HEEN: Because the session - - I mean the Senate has that there might be some limitation so that one person can’t the power to confirm appointments, acting alone, and that’s throw a number of bills into the hopper and force the others the only purpose for which the Senate may be called in spe to either turn them down, ignore them, or otherwise dispose cial session sifting alone. That language appears in the of them. So some limitation may be appropriate, but I think Organic Act, and we just followed that Act. And we have when we come to the legislative article, that’s the time to provided in various places here that the governor shall have deal with it. power to appoint judges, justices, with the confirmation of the Senate, and the present article of the executive depart CHAIRMAN: I’d like to remind the committee that the ment provides for the appointment of departmental heads motion that’s before us now is for the amendment of Section by the governor, subject to the confirmation by the Senate. 7. Therefore, the Senate can be called into session, sifting H. RICE: Does the amendment - - Mr. Chairman, does alone for that purpose, and that’s the only purpose. That’s that state that “The governor may call special sessions of why it’s been inserted in the article on legislative functions. the legislature by proclamation,” period? APOLIONA: Can I ask another question of the delegate? CHAIRMAN: The last amendment that was made was CHAIRMAN: I believe you may. made by Delegate Heen. APOLIONA: You mean to tell me that every time the H. RICE: Is that right? governor makes an appointment, he has to call the Senate into special session? CHAIRMAN: His amendment was to make it read as the legislative provision in the legislative committee proposal. HEEN: Not necessarily because they may be treated at Would you care to read that again, Delegate Heen? a regular session when the Senate is sitting and it may be done at a special session when a Senate is sitting. And if HEEN: My motion was to amend that section so that we adopt the matter of a budget session, the matter of ap the same will read: “The governor may call special sessions pointment subject to confirmation of the Senate may be con of the legislature, or the Senate alone, by proclamation.” sidered at that time also. APOLIONA: Was that amendment seconded? TAVARES: In order to bring my suggestion to a vote, because I don’t think k’s been fully considered yet—I want CHAIRMAN: I believe it was. to give control to the majority of the legislature in special HEEN: Fm not sure whether it was. session—I, therefore, move to amend the amendment by accepting Delegate Heen’s amendment, deleting Miss Ash- APOLIONA: If not, I’d like to ask the delegate from the ford’s - - Delegate Ashford’s amendment, changing the fourth district a question. period to a comma at the end of the first paragraph following DOl: I seconded the motion. At this time I withdraw my the word “session,” and adding the following words: “unless second. authorized by concurrent resolution adopted by a majority of each house of the legislature.” That will allow the legisla CHAIRMAN: The motion is not before the house. The ture by a majority of each house to control the type of bills motion before the house at the present time - - that will come in during the special session and will make KING: A point of order, Mr. Chairman. Miss Ashford, for economy of operation of the legislature. Delegate Ashford made a proposed amendment. CHAIRMAN: Delegate Tavares, as I understand your CHAIRMAN: That’s correct. motion, it would include the present first paragraph of Sec JUNE 20, 1950 • Afternoon Session 301 tion 7. Delegate Tavares, you would include the whale of The governor may call special sessions of the legisla the first paragraph of Section 7? ture or of the Senate alone by proclamation, and shall TAVARES: Yes, Mr. Chairman, with Delegate Heen’s state to both houses when organized the purpose for which amendment and with that addition which would then authorize they have been convened, and the legislature shall transact a majority of each house of the legislature to override the no legislative business except that for which they were governor’s limiting of the session on any particular issue. especially convened and such other legislative business as the governor may call to the attention of the legislature CHAIRMAN: Delegate Heen’s amendment deletes most while in session, unless authorized by concurrent resolution of that paragraph and substitutes a short sentence therefor. adopted by a majority of each house of the legislature. HEEN: That’s correct. It ends with the word “procla HOLROYDE: I would like to point out that this is the execu mation.” tive article that we’re dealing with, and now we are trying to TAVARES: My amendment reinstates it, Mr. Chairman, limit the legislature and what they do in the executive article. but allows the reference to the Senate being called in alone I think any amendments or any restrictions on the legislature to remain in. should be in the legislative article and not in the executive article. CHAIRMAN: I would ask Delegate Tavares to read his amended paragraph. ARASHIRO: If there should be any restrictions as far as the legislature, I think the legislature can take care of them- LEE: There’s nothing before the committee on that self instead of we having that article again in the executive amendment. It hasn’t been seconded, and furthermore I be section. lieve that we should take a vote on this amendment proposed by Delegate Heen, and then alter the thing is adopted or re DELEGATES: Question. jected, if Delegate Tavares seeks to further amend, I think CHAIRMAN: Question. All those in favor of Delegate we can get to the point. Tavares’ amendment to the amended paragraph will say “aye.” Opposed. The amendment is lost. DELEGATES: Question. The question before the house now is adoption of the first CHAIRMAN: All those in favor of the amendment to para paragraph as amended. graph one of Section 7 as proposed by Delegate Heen will SAKAKIHARA: I now move that Section 7 as amended be say “aye.” Opposed. The ayes have it. tentatively approved. WOOLAWAY: Now is it in order to second Delegate CHAIRMAN: Are you speaking to the first paragraph Tavares’ motion then? alone? CHAIRMAN: You may. SAKAKIHARA: That’s right. WOOLAWAY: I do second. WOOLAWAY: I’ll second the motion. CHAIRMAN: You are recognized. CHAIRMAN: It has been moved and seconded that the WOOLAWAY: I’ll sit down alter I’ve seconded. first paragraph of Section 7 as amended’ be adopted tentatively. TAVARES: I now renew my motion, and I understand the ARASHIRO: Will that paragraph be reread again so - - delegate from Maui has seconded it. CHAIRMAN: Delegate Heen, would you please read your CHAIRMAN: Correct. The motion before us now is the amendment, please. HEEN: That section will read as follows: FONG: I wish to speak against the amendment. As I said, we should have enough faith in our legislators, to know that The governor may call special sessions of the legislature, they will do the right thing. The history of our legislation or the Senate alone, by proclamation. has shown that the legislators have done the right thing when CHAIRMAN: All those in favor of the motion will say “aye.” they were called into special session. In all the special Opposed. Carried. sessions that I have sat in your legislators had gone about their work and have done the work that they were called in DOl: I move to delete the second paragraph of Section 7. specifically to do and they have not wandered all over the SAKAKIHARA: Second it. place except just to do the thing that they thought was the right thing to do. CHAIRMAN: It’s been moved and seconded that second Now I think this unnecessary limitation upon the powers paragraph of Section 7 be deleted.’ Is there any discussion? of the legislators is an infringement upon their rights. The H. RICE: I think they are making a mistake if they delete governor is representing the executive branch of the govern this. In ‘31 or ‘32, we had a couple of special sessions, ment. The legislators are representing the legislative didn’t we, and if we hadn’t had this in the Organic Act, why branch of government. I think if the governor is going to call we would have had to go out and come in. I think the execu the session, he should leave it up to the legislators to decide tive should have this power to extend the sessions. as to what they want to do. I think we have enough men and women in our legislature who are able to do the right thing. SAKAKIHARA: This section is taken care of by the Com And I think this amendment is an unnecessary restriction mittee on Legislative Functions and Powers. upon the right of your legislators. DOI: I would like to speak in favor of the motion. I think CHAIRMAN: Delegate Tavares, would you like to read this paragraph here goes to the basis of the legislative your amendment throughout, please. power and that is the length of time the legislature deems wise they need to consider certain problems. I think the TAVARES: My amendment would cause Section 7 to read best judge to determine how much time they need is as follows: the body deliberating on the question. In this case it happens 302 EXECUTIVE POWERS AND FUNCTIONS to be the legislature. I therefore believe that this paragraph APOLIONA: Second the motion. should be deleted. CHAIRMAN: It’s been moved and seconded that the para HEEN: This problem is adequately treated in the article graph as amended be adopted. All those in favor will say on legislative powers and functions. Among other things it ‘1aye.” Opposed. provides, “General sessions shall be limited to a period of AKAU: Point of order. 60 days and budget sessions and special sessions shall be limited to a period of 30 days, but the governor may extend CHAIRMAN: State your point. any session for not more than 30 days. Sundays and holidays AKAU: The point of order is regarding the amendments shall be excluded in computing the number of days of any that are beginning to come to our desks. I wonder if it would session.” So it’s adequately taken care of in the article on be in order to ask the people who are writing the amendments legislative powers and functions. to kindly sign their names because then we can refer to them, ROBERTS: I’d like to speak against deleting of this sec then we’ll know that that was such and such amendment, tion at this time. I think that the purpose of the deletion instead of fingering through about four or five amendments would be to prevent the governor —we’re dealing now about and we don’t know which one we’re talking about. the executive functions article —to extend any regular or special session. That is on the assumption that there will CHAIRMAN: I believe the delegates have heard the re be a limitation of time in the article dealing with the legis quest. lature. Such a proposal is now in the section. if it carries There’s nothing before the house now except the paragraph - - Section 7 which has not been adopted. in there for limitations of the sessions, then it seems to me you’ve got to provide the power of the governor to extend. HOLROYDE: I move that Section 7 be adopted as amended. If, however, in the article dealing with the legislature, we put no limits on the legislature and its sessions, then it CROSSLEY: Second the motion. seems to me the Committee on Style can very well present CHAIRMAN: It’s been moved and seconded that Section that question and we could delete it. But until such time as 7 as amended be adopted in intent. All those in favor will we’ve acted on the legislative article, it seems to me if we say “aye.” Opposed, “no.” Carried. delete it now, we will be unable, if the other article goes through, to give the executive the power to extend sessions, CROSSLEY: I now move the adoption of Section 8. if we have a limitation, if we don’t have a limitation, then this article could very well go out. But we haven’t established SMITH: I’ll second that. that, yet. CHAIRMAN: It’s been moved and seconded that Section 8 KING: I agree with the last speaker that this paragraph be adopted. should not be deleted at this time. Delegate Heen has quoted ASHFORD: Did we cut out the reference to treason in the from a report that has not yet been submitted to the Conven Bill of Rights, and where would be the provision for treason? tion nor adopted. And any duplication or repetition can be cleared by the Committee on Style. So I think it would be FUKUSHIMA: In the Bill of Rights, we did cut it out, yes, a mistake to delete this paragraph submitted by the Commit but still by statute, we may have the crime of treason. tee on Executive Powers which is now before the committee. OKINO: In reply to the question interposed by Delegate CHAIRMAN: Is there any further discussion on the ques Ashford, I should like to direct your attention to the report tion? filed by the chairman of the Committee of the Whole relating HEEN: As I have stated, that will be reported out in that to Bill of Rights. It pertalns to Section 17. I’m sorry, it manner so far as duration of sessions are concerned - - is pertains to Section 18 of the proposal submitted by the chair concerned, and I don’t for a moment think that the Convention man of the Committee of the Whole. The original section is going to throw that provision out. if this provision is to read as follows: “Section 18. Treason against the State remain, it might read this way, “The governor shall have shall consist only in levying war against the same, or in power to extend any regular, budget or special session of adhering to the enemies, giving them aid and comfort. No the legislature as provided in this Constitution.” It might person shall be convicted of treason unless on the testimony read that way, and the Style Committee can then throw it of two witnesses to the same overt act, or in confession in out later as being unnecessary. open court.” Then the recommendation of the Committee of the Whole. CHAIRMAN: Any further questions? All those in favor [Report No. 5] of the motion to delete will say “aye.” All those opposed, “no.” The noes have it. This section is derived from Section 3 of Article III of the Federal Constitution, which was adopted at a time HEEN: All right, then I move an amendment to that when there was fresh in the memories of the revolting paragraph, so that the same will read as follows: “The colonists the fact that under the then or recent laws of governor, shall have power to extend any regular, budget England there were seventeen types of treason punishable or special session of the legislature as provided in this by death in a “very solemn and terrible way,” and when Constitution.” I move the adoptionof that amendment. the modern scientific methods of crime detection and H. RICE: Second the motion. proof, other than eye-witness testimony—such as photo graphy, fingerprinting, handwriting analysis, microscopic CHAIRMAN: A further amendment to this section has and chemical analyses, fluor~scopic examinations, etc., been made and adopted - - moved and adopted [sic]. Any —were unknown. Actually such a provision is unnecessary discussion? All those in favor of the amendment will say because it defines only one crime, leaving to the legis “aye.” Opposed. Carried. lature in any event the power to define other crimes, in CROSSLEY: I move the adoption of the paragraph as cluding other capital offenses. Deletion of the section, amended. therefore, would actually strengthen the power of the JUNE 20, 1950 • Afternoon Session 303 legislature, or at least render it free from any uncertain upon impeachment should at some time have the right to ty, to deal in any manner commensurate with the needs for be pardoned or reprieved. I, therefore, move that the words protection against modern espionage, fifth column acti in the third line “except treason and cases of impeachment” vities . . . and so forth. be deleted. You will note, I am leaving the comma after Now, in this particular section, you will note that that is “impeachm~nt,” so that that section will read: “The gover mentioned as an exception, that the governor shall not have nor may grant reprieves and pardons after conviction for the right to grant pardon or reprieve if a person is found all offenses, subject to regulation by law as to the manner guilty of the offense of treason. And since the matter is to of applying for the same.” be left with the legislature, I see no reason why any specific RICHARDS: Second the motion. provision covering the same be included specifically in this Constitution. CHAIRMAN: It’s been moved and seconded that the words “except treason and cases of impeachment” be TAVARES: I think this section raises some very serious deleted from Section 8. Is there any discussion? problems. I realize that treason is a very serious offense and so is impeachment. But are we to have two c~rimes that FONG: I have a question. There are some jurisdictions nobody can ever punish [sic] forever and ever and ever? like the State of California in which a person after being This is what this does. I see no other provision in here for convicted and after having served his time or having been the legislature or anybody else to give relief from these paroled for a certain time can go before the judge and have things. And I think therefore that unless you do take care of his crime wiped out. Now, I would like to ask this question. it, it will be better to leave it to the governor. Will this section prohibit a law to that effect? Secondly, treason can be defined as a lot of other acts TAVARES: It’s my opinion, rather hastily formed, that just by giving it a name, and you make it impossible to get such a law would probably be unconstitutional because it a pardon. In other words, a man who is convicted of treason would be considered as infringing on the pardoning power, is forever afterward disqualified from holding office, from if such a law were passed. voting, from having all the other general rights that go with FONG: In the State of California there is such a law. citizen - - with the rights of citizenship when a man is not convicted of crime. I think that is probably going much TAVARES: Well, it must be under a special constitutional further than the committee intended. Other constitutions provision, I think, of the Constitution of California, which is which have that have a provision allowing specifically for much longer than ours. some type of reprieve or pardon or relief from some other FONG: I believe that - - just posing a thought here, that party than the governor in those particular cases. it would probably be a good thing if we don’t leave this par There is one more problem that hasn’t been covered doning power entirely in the hands of the governor. There but I think it can be covered by including it in the report are many cases in which a man after having served his time of this Committee of the Whole, and that is, there is very in prison should have the right of every private citizen, and grave doubt whether, unless you make it clear otherwise, I think he should have the right of going before a court and the governor’s power to pardon extends to misdemeanors having himself absolved from all the crimes that he has created by ordinances of the counties. In this territory, committed, only to a certain extent. Now, I believe that this traditionally, the governor has assumed the power to pardon section should not be written so that the legislature in its against misdemeanors created by ordinance. The majority discretion may not be able to grant to persons of this char rule of the states is that that is not included ordinarily in acter, for violation of minor offenses, the right of going be the governor’s pardoning power. It only includes offenses fore the court and, after having served his time and after against the state under state law. I believe that we should having paid his price to society and after rehabilitating in our report make it clear that this includes pardoning himself, that he may not be able to restore himself to the against offenses under ordinances. And this is no joke be good graces of society. cause we have one attorney general who has actually ruled that the governor has no power to pardon misdemeanors SAKAKIHARA: I wish to ask the chairman of the commit created by ordinances. I disagree with that ruling but it is tee a question. Why was the word “commutation” left out a ruling; it is supported by the weight of authority in the from that provision? states whose history, of course, I believe is different from OKINO: Heretofore, the matter of commutation was a ours. And for that reason I think that our report should statutory matter. I will direct your attention to Section 3910, state that this includes the power to pardon against offenses Revised Laws of Hawaii, with reference to commutation of created by county or ordinances of municipal sub-divisions misdemeanors; Section 3950 with reference to the subject or counties. matter of commutation of felonies. That having been statu CHAIRMAN: The report shall so state. tory matter right along and the matter of commutation having been deleted - - not included in our Organic Act, we thought HEEN: Some reference was made that this matter might it would be safer to include in our Constitution merely re be taken care of by legislation. The only legislation contem prieves and pardons, deleting commutation. plated here is one relating to the manner of applying for reprieve or pardon. Now I think that the term “for all BEEN: May I answer that, also? Commutation, as I offenses” would cover any offense at all, whether created understand it, is the power on the part of the governor to by ordinance or created by legislative enactment. They reduce the term of sentence or to reduce the fine or to are all offenses no matter by whom prescribed. All these eliminate the fine altogether. That is included in the power cases for the violation of ordinances, the case is one of to grant pardons. It is something less than a pardon, but the Territory against the defendant, and it’s not the city and it’s included in the power to grant a pardon. county or county against the defendant. It’s always brought SAKAKIHARA: I would like to make sure that that power in the name of the Territory. Now, so much for that. is vested in the governor under the terms of Section 8. I I am in accord with the views expressed by the last therefore would like to amend it by placing a comma after speaker, that a person convicted of treason or convicted “reprieves” and insert the word “commutations.” 304 EXECUTIVE POWERS AND FUNCTIONS ROBERTS: I’ll second that. FONG: We should remember that we are writing the Constitution for the people. We are not writing a Constitu HEEN: Point of order. It seems to me there is a motion tion for lawyers, and if we want to make it specific and pending now to amend. explicit, let’s put it in the Constitution. Don’t say, “Well, CHAIRMAN: Correct. let’s put it in the report,” and you will never find a layman looking at the report. He will read the Constitution. He’s HEEN: That was proposed by myself. Why not get rid going to be guided by what the Constitution tells him. And of that and then this other matter can be brought up. if we can make it explicit in the Constitution, let us make CHAIRMAN: Would you place this in abeyance, Delegate it. Don’t say, “Well, let’s put it in the report.” We are by Sakakihara, until we dispose of the present motion? all means writing a Constitution for the people and not for lawyers. DELEGATE: What is the amendment? CHAIRMAN: Is there any further discussion on this CHAIRMAN: Is there any further discussion? point? DELEGATE: What is the amendment? LEE: In that case, I believe we should write the whole CHAIRMAN: The amendment before the house at the Revised Laws into the Constitution. present time would delete the words “except treason and TAVARES: Yes, and let’s write “due process of law” cases of impeachments.” No further discussion? All those then in simple terms so the layman can understand it. in favor of the motion will say “aye.” Opposed. The amend ment was carried. FONG: What is the harm then - - what is the harm in adding the word “commutation” there instead of putting it SAKAKIHARA: I would like to amend by inserting a in the report and using another sentence or ten sentences comma alter “reprieves,” and inserting the word “commu to explain what “commutation” is? tation.” TAVARES: We have been using the Federal Constitution YAMAMOTO: I’ll second it. as a model here in many respects, particularly the Bill of CHAIRMAN: It’s been moved and seconded - - Rights. The President has been granting commutations for a long time, too, and all the power he has in the Constitution OKINO: I believe the committee, your Committee on is in these words, “He shall have power to grant reprieves Executive Powers and Functions would have no objection to and pardons for offenses against the United States except in including that word “commutation,” firstly, to clarify whether cases of impeachment.” Nothing said about commutations or not the term “commutation” or the effect of that term there. “commutation” is included in the word “pardon”; secondly, HEEN: I think the present language of the article in this it has always been treated in my opinion as a statutory connection is an improvement not only following the Model matter; but if the delegates feel at this time that it should Constitution, but also the Constitution of Arizona. be given a constitutional status, then it may properly be included herein. FUKUSHIMA: If the word “commutation” is included in TAVARES: If the word “commutation” is not included in the word “pardon” I believe we have a Committee on Style to fix that up. It’s not a matter of substance, it’s a matter the word “pardon,” the governor’s been granting unconsti of form. tutional commutations for lo these 30 or 40 years. There’s nothing clearer in my mind than that the word “pardon” CHAIRMAN: I think we can vote on the amendment. The includes pro tanto the right to give a partial pardon, and amendment is to include the word “commutation” after that’s all a commutation is, a partial pardon. “reprieves.” All those in favor will say “aye.” Opposed. The Chair is in doubt. I’ll ask for a standing vote. All SAKAKIHARA: Assuming that the governor of the Terri those in favor of the amendment will please stand. All those tory for the last 30 years has granted commutations with opposed. The amendment is carried by a vote of 29 to 21. out that being spelled out in the Hawaiian Organic Act, I do say that it is a safeguard so that there will be no misunder HOLROYDE: I move Section 8 be adopted as amended. standing in the future that the State Constitution of Hawali APOLIONA: I second that motion. does provide a power of commutation to the Governor. CHAIRMAN: It has been moved and seconded that Section LEE: I agree with the speaker before the last, that the 8 as amended be adopted. commutation is included in the general term “pardon.” I believe in order to satisfy, however, the distinguished dele SHIMAMURA: May I inquire the reason for the insertion gate from Hawaii that the committee report of the Whole of the words “after conviction” in the second line? might state that the intent of the committee and accepted CHAIRMAN: Delegate Okino. fact by the committee that pardons do include commutation, would be sufficient. I don’t think we should keep on adding OKINO: Beg your pardon, Mr. Chairman? words that are already included in the generic term. CHAIRMAN: The question was the reason for the words SAKAKIHARA: In reply to the gentleman from the fourth “after conviction” in the second line. district, I say this, that under the Model State Constitution OKINO: Well, that always has been the classical expres I find the language written as follows: “Executive clemency. sion followed by most all of the states. The governor shall have power to grant reprieves, commu ASHFORD: May I answer that? tations and pardons after conviction.” CHAIRMAN: You may. SHIMAMURA: I may also point out that some of the state constitutions also include the word “commutations,” Ari ASHFORD: Perhaps some of the delegates here, my zona and some others. friend Mr. Anthony being absent, who claims to be a Jeffer JUNE 20, 1950 • Afternoon Session 305 sonian Democrat, Jefferson in the Aaron Burr conspiracy advance before such a person is even tried or convicted, pardoned the witnesses before they were even indicted, so the governor can eliminate the right of such person to re they could be witnesses against Aaron Burr. fuse to testify on the ground of privilege against self-incrimi CHAIRMAN: Any further questions? nation because such a pardon then makes it impossible to prosecute him for the crime. You thereby are able to com TAVARES: I think that it should be explained, what we’re pel the witness to testify, whether he likes it or not, against getting into. Actually, the present Organic Act does not have his accomplices or against his partners in crime. That power such a requirement. This has actually happened. Maybe has actually been used and is needed sometimes, and I think we should consider it, maybe it’s good, maybe ii’s bad, but it would be rather serious to eliminate that power, particu a witness is about to claim privilege against self-incrimi-~ larly since we have had it for fifty years, and as far as I nation and you need him to get a conviction. In order to know it hasn’t been abused. eliminate that privilege, you give him a pardon, then he can testify and he cannot claim privilege against self-incrimination CHAIRMAN: Is there any further discussion? If you put this in, you remove the power the governor now has OKINO: I should like to ask the speaker this question. to eliminate that ground of refusing to testify against some one Isn’t the same power, Delegate Tavares, utilized by or in else. the prosecutor as a matter of common law? CHAIRMAN: Any further discussion? TAVARES: No. The prosecutor can make no binding AKAU: Does the - - do the words “as to the manner of promise not to prosecute. He can give this - - they call applying the same” in Section 8 refer to the regulation by this - - it’s called immunity, but in my opinion no prosecutor law? What does it refer to, and is it actually necessary to can give immunity. All he can do is refrain to prosecute put it in there? somebody, and if he makes a promise not to prosecute, and CHAIRMAN: Delegate Okino. then he does prosecute, I don’t believe that the courts can prevent such a prosecution. OKINO: I believe it is necessary to put it in so that the legislature may implement the constitutional provision here ASHFORD: I would like to speak against the amendment. in provided. The gentleman from the fourth has said that we have no CHAIRMAN: If there’s no further discussion, we’ll vote instance of abuse of it. I thought that I had given an instance on the question. of the most outrageous abuse of it. A man of contemptible reputation was pardoned beforehand so he could cook up a FUKUSHIMA: I move an amendment at this time, by story against the President’s great rival. There’s always striking the comma after “pardon” and by deleting the words been a very considerable question as to whether Aaron Burr “after conviction.” was guilty or not. But thin pardoning power before even a SHIMAMURA: I second the motion. man was charged was used to build up that case against Aaron Burr, and it could be used to build up a case against CHAIRMAN: It’s been moved and seconded that the words any one of us. “after conviction” in the second line including the comma preceding shall be stricken. Any discussion? All those in TAVARES: One more statement and I’ll subside, Mr. favor of the motion to amend will say “aye.” Opposed. Chairman. If you eliminate this power to pardon before conviction, you make it possible for every gang, every HEEN: I’d like to have some discussion on that as to what crime syndicate, every member of a crime gang to refuse the purpose is. to testify, and there’s nothing you can do about it, and in that CHAIRMAN: The Chair believes that the motion was way they can cover up their crime. I think you are playing carried. If you want to rise to a point of information and into their hands if you take away this power. ask the movant the purpose and if there is any further dis ROBERTS: Many of the state constitutions make it very cussion, we’ll have to move to reconsider. specific that the governor may grant reprieves, commu HEEN: That’s correct. I move for reconsideration. tations and pardons, the language that we have adopted, but they also provide that it be after conviction. It seems to me SAKAKIHARA: I second it: you don’t pardon a person until he is proven guilty. There’s CHAIRMAN: It’s been moved and seconded that we recon nothing to pardon him for if he hasn’t been proven guilty. Now sider the amendment just passed. All in favor say “aye.” there is a problem in terms of prosecution. Now, it seems to me if the governor can convince an individual to testify Opposed. Carried. against somebody else to assist the state,~ he can give his The amendment is open for discussion. Delegate Fuku word to that individual that he will grant him a pardon if shima, do you wish to explain the amendment? Delegate he is prosecuted and if he is found guilty. I don’t see any Tavares, need to delete that section. It seems to me that before you TAVARES: I would like to explain again. This power has grant a pardon that a person has to be proven guilty. been enjoyed by the Governor of Hawaii for fifty years, and it FUKUSHIMA: Delegate Roberts’ statement and Delegate is also enjoyed by the President of the United States. There Okino’s statement that a prosecutor may give a pardon, may have been a few abuses, but they have been so few that which is not true, and Delegate Roberts who states that the evidently no scandal has ever been raised to my knowledge governor may later give a pardon after conviction presuj~ about such abuse. The situation is this. Under our Bill of Rights, there is poses that the governor will live. Supposing the governor a right of a person to claim privilege against self -incrimi makes that promise and he dies, and another governor nation, and therefore, refuse to testify. There are situations comes in and doesn’t keep his promise? What do you have? where, in order to convict one criminal, perhaps the more The same thing can be said of the prosecutor. guilty one or the ring leader, it is necessary to have the DOI: I would like to also state my opinion on the question testimony of his accomplices or some of his partners in of whether the prosecutor can in a way give immunity. My crime or some of the lesser fry. By giving a pardon in answer is yes, I think he can go to court and make a state- 306 EXECUTIVE POWERS AND FUNCTIONS ment as a matter of record and come to an agreement with CHAIRMAN: Speak more closely into the mike, please. the court and the defendant that he will not prosecute because A. TRASK: Many of us suspect that Governor Stainback he wants to prosecute the most serious offender than as had much to do about whether or not Kageyama would testify regards the less serious offender. Because he needs him and all that resulting situation which compelled his resignation as a witness, he will not prosecute. I think the court will from this body. Obviously it occurs to anybody that if there bind him to that word. was any such pact, the governor at this date is authorized under HEEN: That statement is not correct, that a prosecuting the present existing law to go ahead and pardon Kageyama officer may act in such a way as to grant a pardon. Now, if for whatever crime there was, if any, in his situation, in his a prosecuting offieer, say elected to office, grants in a way particular case. We have this petition now before the county some immunity to an individual from prosecution, when he attorney with respect to impeachment pursuant to an offense runs for office and is not reelected, the new prosecuting alleged with respect to violation of the City and County oath officer may bring that same individual up before the court taken as a supervisor. There is, however, certainly an offense, for prosecution so long as it is still within the statutp of an offense existing. It hasn’t been wiped out by any statute of limitations. limitation as Delegate Heen has observed. So strictly we have right here in our midst the Kageyama case with respect to this CHAIRMAN: Is there any further discussion? The word sought to be deleted, and I’m in favor of the deletion, amendment before the house is for the elimination of the “after conviction.” If there was a deal made by the governor words “after conviction.” with Kageyama and the governor was in praise of Kageyama, SAKAKIHARA: I rise to a point of information. Will the I believe he is morally bound to act, to pardon him. Whereas, Chair kindly restate the amendment as it is? if tomorrow we would be a state and we pass this thing, “after conviction,” the deal, if any was made, could not be followed CHAIRMAN: The amendment which is to be amended? through, and I think that would be improper. So, I am in favor of having this “after conviction” deleted SAKAKIHARA: Amendment, yes. because I think it’s consistent with our past history of fifty CHAIRMAN: “The governor may grant reprieves, commu years. tations and pardons after conviction for all offenses subject CHAIRMAN: Is there any further - - to regulation by law as to the manner of applying for the same.” The amendment on that amendment is the deletion of the KAM: I’m not an attorney but I’m still confused myself. words “after conviction.” I was just wondering, in New York and California they have that phrase “after conviction” and I guess maybe we try to LEE: If the lawyers are confused on this question, it be a little different from them. would seem to me that the laymen in this Convention should be more confused. KAGE: I’d like to second Delegate Lee’s motion to defer action. LARSEN: Not so, sir, not so. WOOLAWAY: I suggest those who are still confused - - LEE: And some of my distinguished colleagues in the CHAIRMAN: Delegate, are you speaking to the motion to back were asking me about this matter and asking me how defer? I was going to vote. I’m not sure how I’m going to vote. I have listened to Delegate Ashford’s statements and find WOOLAWAY: Yes, that they vote kanalua. no contradiction thereto. Based upon that statement, I can’t CHAIRMAN: All those in favor of the motion to defer will very well vote for the deletion because to the ordinary mind, say “aye.” Opposed, “no.” The noes have it. the only time a pardon comes into effect is when a man has All those in favor of the motion to delete will say “aye.” been accused of crime, charged with crime, and convicted Opposed. The motion is lost. with crime. Now, here we are to give an unlimited power to the governor to say to a man who has possibly not even HOLROYDE: I renew my motion to adopt Section 8 as been accused of crime, not even been charged of crime, and amended. not even convicted of crime, a pardon. A pardon for what? CHAIRMAN: I think that’s well before the house. All those And I can see a possible offense which a person might be in favor of the motion to adopt Section 8 as amended will say pardoned for and yet, for that same offense, there may be “aye.” Opposed, “no.” Carried. other crimes committed which the pardon may not include, and you might run into a lot of contradictions here for a DOWSON: I now move that we temporarily adopt Section purpose which was merely to encourage a reluctant witness 9. to testify. I am trying to weigh the advantages of that effect LEE: I move that we rise and report progress and beg to the amendment sought to be introduced here, so I would leave to sit again in one more session. For time, Mr. Chair like to defer action, and I so move that action be deferred on man - - this matter until the end of the calendar. KING: I’d like to ask, is it anticipated that Section 9 will A. TRASK: I’d like to say, one of our axioms here I’m take sometime? If not, it might be helpful to clear it before sure in trying to draft this convenant called the Constitution we rise. is to follow as nearly - - as far as possible our Organic Act. SAKAKUJARA: May I ask for a recess, Mr. Chairman. Now referring to Section 66 under the executive power we have this expression referring to the governor, “may grant CHAIRMAN: There will be a five minute recess at the pardons or reprieves for offenses.” The words “after con call of the Chair. TI no objections are heard, so ordered. viction” are not in our basic Organic Act. Now, let’s get down specifically to the point at hand. (RECESS) Many of us are concerned about Delegate Kageyama’s case. To me, this word “after conviction” has direct reference CHAIRMAN: Committee of the Whole please come to to that situation.. order. JUNE 20, 1950 • Evening Session 307 KING: There is some business on the Clerk’s desk, so But with reference to the subject matter relating to the I suggest and move that the committee rise and report suspension of the privilege of the writ of habeas corpus, I progress and ask to sit again at 7:30 this evening, rather should like to ask the movant of the amendment the following than recess until 7:30. question. Section 14 with reference to the suspension of the SAKAKIRARA: Second it. writ of habeas corpus reads as follows: “Section 14. The privilege of the writ of habeas corpus shall not be suspended, CHAIRMAN: It’s been moved and seconded that we rise unless when in cases of rebellion or invasion the public and report progress, ask leave to sit again at 7:30. All safety may require.” And if you were to read the committee those in favor say “aye.” Opposed. Carried. report, there is nothing mentioned as to who is to exercise that right when that occasion arises. Now, it seems to me Evening Session from the contents of the report submitted by the Committee of the Whole on the Bill of Rights that the executive depart CHAIRMAN: Will the Committee of the Whole please ment is to exercise the power with reference to the sus come to order. pension of the civil law, but there is nothing mentioned as CROSSLEY: I move adoption of Section 9, Committee to who, what officer of the State of Hawaii is to exercise Proposal No. 22. that right. Now in the absence of any clarification along that line, perhaps that clause should be retained. APOLIONA: I second that motion. KELLERMAN: I think that the chairman of the committee CHAIRMAN: It has been moved and seconded that we is correct. If it isn’t stated in the report who is to exercise adopt Section 9 of Committee Proposal No. 22. it, I don’t know who else would other than the chief execu KELLERMAN: I would like to make an amendment to tive. That was my understanding when we passed the section Section 9. In line 7, beginning with “place,” “place this on the Bill of Rights; and if I’m wrong on that I would like state or any part thereof under martial law,” I move the to be corrected, but that’s my understanding. deletion of those words because that is covered in Section ANTHONY: The suspension of the privilege of the writ 13 of the Bill of Rights, in which it states—this is a new draft can only be done by the legislature. This section is in direct of the Bill of Rights, the draft that the Style Committee is conflict with the section that this Convention has already working on—where it says, “The power of suspending the adopted on the Bill of Rights. Now, the suspension of the laws or the execution thereof shall never be exercised ex privilege of the writ was questionable under the Federal cept by the legislature or by authority derived from it to Constitution because of the location of the language in the be exercised in such particular cases only as the legislature Federal Constitution. It wasn’t until Ex parte Merryman shall expressly prescribe.” It seems to me that under that that it was determined that it could only be done by the Con language the executive cannot be given the power to place the gress. state or any part thereof under martial law in any such general terms as in this section. I, therefore, would move In my judgment this entire section so far as it relates to to delete the words “place this state or any part thereof martial law and the suspension of the privilege of the writ under martial law and.” should be deleted. In the first place, that power can only be done, under the present Bill of Rights, by the legislature. ASHFORD: I would like to ask the proponent of that They can say, implementing the section in the Bill of Rights, motion - - when and in what cases the governor may suspend the CHAIRMAN: I believe - - privilege of the writ. Naturally, it requires an executive act, but it first requires legislation. So much for that. LAI: I second the motion. Now, as to the question of whether or not the words CHAIRMAN: I stand corrected. Delegate Ashford. “martial law” should remain in there. Those words have been treated in many decisions as synonymous with the sus ASHFORD: I would like to ask the proponent of that pension of the privilege of the writ of habeas corpus. We’ve motion if she will accept an amendment to her amendment, had an experience here with a declaration of martial law making a “period” after the word “invasion” and deleting which we should never like to have repeated again. Many the rest of it. state constitutions have no such provision. In fact, the KELLERMAN: I will accept that because under the Bill Organic Act of Alaska has no such provision in it, nor does of Rights, it is stated that “The privilege of the writ of the Organic Act of Puerto Rico. Hawaii is unique. It came habeas corpus shall not be suspended, unless when in cases from Section 31 of the Constitution of the Republic and the of rebellion or invasion the public safety may require it.” reason it was incorporated as it was in the Constitution of So I will accept that amendment. the Republic was because it was not a popular revolution, and the authors of the Constitution of the Republic wanted ASHFORD: In speaking in favor of this amendment, I to make sure that the judges that sat on the bench wouldn’t would like to say that I think this one of the most dangerous be interfering with any military commissions; That’s why provisions that has been proposed anywhere in this Consti they wrote Article 31 of the Constitution of ‘94. tution. We had our dose of martial law and this provides Now, in my opinion this would be a very dangeous pro that the governor can declare martial law and suspend the vision. I agree entirely with the delegate from Molokai, privilege of the writ of habeas corpus when the public and so, therefore, I should think the correct way to handle safety requires, and I presume he is to be the whole judge this would be to put a period after the word “invasion” and of “public safety.” delete the rest of the sentence. OKINO: I was going to request that that portion with reference to martial law may be deleted in view of the fact CHAIRMAN: The Chair understands that that is the that the Committee of the Whole had taken action on that present motion, present amendment. particular subject matter in paragraph two of Section 14 of ASHFORD: I’ve already spoken once, but I would like to the Bill of Rights. say a few words more. 308 EXECUTIVE POWERS AND FUNCTIONS If you will notice, this goes much, much further than the Honolulu is invaded, how are you going to call a special Bill of Rights. This isn’t a question of rebellion or invasion; session to get the governor authorized? We shall have to this is a question of actual or - - “to suppress actual or get the legislature to pass a law right away after we become prevent threatened insurrection, violence, rebellion, or a state, giving the governor power under certain conditions repel invasion.” That’s very broad language. to suspend it; otherwise there will be a hiatus. I think that’s correct, is it not? HEEN: In the Bill of Rights the matter of suspension of the writ of habeas corpus is dealt with in one paragraph. ANTHONY: That is not correct, Mr. Chairman. Dele “The privilege of the writ of habeas corpus shall not be gates, it is absolutely wrong. If there is any national emer suspended, unless when in cases of rebellion or invasion the gency, if we are being invaded, that is a national problem public safety may require it.” Now, that’s one subject. Then, to be dealt with by the general government, the national in the next paragraph, you are dealing with statutes passed government, not the state militia. The only thing that they by the legislature. “rhe power of suspending the laws” — are used for is to put down labor disputes or when there’s what laws? It must be laws passed by the legislature. “The insurrection or troublesome attacks down at the docks, and power of suspending the laws or the execution of those laws,” things like that. It’s only in a rare case in which the state which I say is still limited to statutory laws, “shall never militia is ever called out to provide for the conimon defense. be exercised except by the legislature, or by authority de We don’t need anything like this in our Constitution, and rived from it, to be exercised in such particular cases only you don’t find it in Massachusetts’ Constitution. as the legislature shall expressly prescribe.” Now, if I am correct in that interpretation, that that RICHARDS: I would like to take issue with the last second paragraph is limited only to statutory laws, then speaker. I happened to be here on December 7th. It took you have nothing by which the suspension of the writ of habeas some 24 hours later for the Congress of the United States corpus may be suspended. Therefore, there must be some and the President to declare a national emergency. It was thing either in the Constitution or there must be a change here already. We had problems to take care of. We aren’t here in the Bill of Rights so that the legislature may pres sitting in Massachusetts. We’re sitting here on the fore cribe the time when not oaly statutory laws may be suspended, front of where something might happen, and I do not feel but also when a writ of habeas corpus may be suspended. that it is up to us to wait for Massachusetts or for the Con That’s correct. gress of the United States to act in an emergency. ANTHONY: That is correct, and it would be perfectly AKAU: I’ve been interested in hearing both sides of the competent for the legislature, implementing the section picture here, what the delegate from the fourth and the that is stated in the Bill of Rights, to state precisely the delegate from the fifth have said. It seems to me that we occasion for the suspension of the privilege of the writ, don’t want a dictatorship. On the other hand, and by the or the particular occasion for suspending any law, but just same token, we do want protection. It seems to me if we like in our Federal Constitution the Congress would have to change this wording and rather than have the governor - - act. There is no self-executing provision in the Federal have it come under here, it would come under the legisla Constitution and there should be none in ours. We don’t want tive powers, “The legislature shall,” with some kind of any dictator here as a governor who is going to look at this statement for emergency purposes and perhaps, if I may section and suspend the privilege of the writ. Call the leg ask the delegate from the fourth district, would that take islature together if there is an emergency and let the emer care of the situation? gency be declared by the legislature. We all know if there HEEN: As I tried to point out a moment ago, one is a national emergency the federal troops will take over paragraph of the Bill of Rights gives the legislature the this place anyhow, but let’s not put anything in our Consti power to prescribe when statutory laws may be suspended, tution that is going to authorize any governor to place this or the execution of statutory law may be suspended, but State under martial law. then in the first paragraph you say nothing about what the The history of this thing on the mainland has been largely legislature may do in reference to the suspension of the in connection with labor disputes. There’s been a strike writ of habeas corpus. Now, I am in agreement with what out in Western Pennsylvania or in the coal mines or the the other side has said about amending the particular mines of Colorado and they called out the militia and declared section, Section 9 of the article on the executive branch martial law, and that’s the sort of thing we don’t want. We of the government, If you do that, then in order to clear want the legislature to deal with that sort of situation. We the situation, the provision in the Bill of Rights should be don’t want any dictator dealing with it. amended. Then it should be amended this way: “The privi lege of the writ of habeas corpus shall not be suspended, TAVARES: It seems to me that a little further light might unlesth when in cases of rebellion or invasion the public be thrown on the question by reiterating something that at safety may require.” “The power”—this is new—”of sus least to my mind wasn’t made very clear. I have read a pending the writ of habeas corpus and the power of sus little bit since the last meeting. I think that by adopting the pending the laws or the execution of the laws, shall never be provision of the Bill of Rights against suspending the privi exercised except by the legislature, or by authority derived lege of the writ of habeas corpus, we have automatically from it to be exercised in such particular cases only as the adopted the interpretation placed on that section by the legislature shall particularly prescribe.” Then you give the Supreme Court of the United States which held that President legislature the power to suspend the writ of habeas corpus Lincoln did not have power independently to impose - - to as well as suspension of statutory laws. suspend the writ unless Congress authorized it, as a result of which Congress then did pass a law. OKINO: I should like to ask Delegate Anthony a question. I do want to point out, though, along Delegate Heen’s - - Delegate Anthony, you made the point that the legislature the line of Delegate Heen’s argument, that if the legislature would have the power to implement this particular paragraph does not, in advance, pass a law authorizing the governor by legislation, did you not, something like the next paragraph? to declare martial law in case of invasion and so forth, the governor will then have to call a special session. Now, if ANTHONY: That is correct. JUNE 20, 1950 • Evening Session 309 OKINO: Unless the amendment as suggested by Delegate KING: - - there has been a motion made for the previous Been is incorporated in the first paragraph, like the second question and seconded. paragraph, would it not be the function of the court, the judi ciary, to determine when there is a £tate of rebellion or in CHAIRMAN: I did not recognize any second. vasion? KING: I apologize to the gentleman. ANTHONY: That’s an executive determination in the first BEEN: The idea is that that section should be amended instance. But under the present section of the Bill of Rights, in the Bill of Rights. “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion YAMAMOTO: I rise to a point of information. Will the the public safety may require it,” the legislature may chairman of the Executive Powers and Functions explain the suspend the privilege of the writ. It will then be a question interpretation of the Committee’s Report - - Proposal No. 22~ of legislative and executive determination whether or not of the word “violence.” Would you give me the interpretation the facts warrant the suspension. That is a judicial question of the word “violence.” which can come before the courts. You don’t need any CHAIRMAN: Delegate Okino, can you answer that ques further implementation of the present section of the Bill of tion, please? Rights. That is taken directly from the Federal Constitution. OKINO: I don’t think I could give you a better definition OKINO: Then, in this - - than to repeat the word “violence.” CROSSLEY: Mr. Chairman. CHAIRMAN: Is there any further discussion? CHAIRMAN: Are you finished? CROSSLEY: I second the motion for the previous ques OKINO: No. tion. CROSSLEY: Mr. Chairman, I was going to suggest a five CHAIRMAN: I think there are others who would like to minute recess and let the “supreme court” agree on language speak on this subject who were unable to clear their minds and - - during the recess. Would you hold that for a few more speakers? CHAIRMAN: If there’s no objection, so ordered. CROSSLEY: Gladly, Mr. Chairman. (RECESS) CHAIRMAN: The Chair feels that if you don’t, we will have to withdraw. KELLERMAN: If I may restate what has taken place to NIELSEN: Now, from our eminent attorneys—I think clear the matter, I moved that we delete the words “place that’s setting them up on a good high level—I would like to this State or any part thereof under martial law and.” The know about this word “threatened,” because you can shake motion was seconded, and then I accepted it and the second your fist at a man and threaten him, and it looks to me also accepted the addition made by Miss Ashford to add - - like you’re giving an awful lot of power if you can have that to put the period at the end of the word “invasion,” thereby word “threaten” in there. You can have 20 men just walking deleting the rest of the paragraph. I now move the previous in a gang and you can say that was “threatening.” The gov question. ernor would have the power to act under this. I’d like to ASHFORD: I second that motion. hear about what their meaning of the word “threatened” is. CHAIRMAN: Do I understand that Delegate Ashford’s CHAIRMAN: Does anyone of the delegates wish to answer amendment is deleted now? that question? Delegate Tavares. TAVARES: I’ll stick my neck out a little bit. The word KELLERMAN: Delegate Ashford’s amendment was made “threatened” is not, of course, a word that you can define to my amendment, which I accepted, so there is only one exactly, but I can say this. If under the guise of anticipating amendment before the floor. threatened violence the governor acts not in good faith - - I CHAIRMAN: Therefore the period will go after the word can find you cases where the Federal courts have enjoined the “invasion”? governor and enjoined anybody else from preventing people from going to a certain place if there wasn’t just due cause KELLERMAN: After the word “invasion.” There’s only for it. In other words, if that provision is ever taken ad one amendment now - - one motion before the house. I vantage of in bad faith, there is a remedy in the courts under move the previous question. the laws of - - under the right of peaceable assembly and BEEN: As I understand it, then, alter putting the period other rights under the Constitution, so the courts can protect after the word “invasion,” all the rest of that sentence shall people who are unjustly discriminated against or unjustly be deleted. Is that correct? oppressed by such a violation. CHAIRMAN: That is correct. The Chair so understands. ROBERTS: I believe that we ought to have a section deal ing with the power of the governor and stating in our Consti HEEN: I am going to support that motion, but I want to tution that he shall be Commander-in-Chief of the armed give notice now that at some stage of the proceedings, per forces of the State and to call on such forces to execute the haps before we get to the stage of third reading, that the laws, and I think, also, to prevent insurrection, rebellion or article on the Bill of Rights, Section 13 as now reported invasion, whether real or threatened. I have very serious out by the Style Committee - - doubts as to whether you need any section in there dealing KING: I’d hate to raise a point of order against Delegate with violence or threatened violence. The time when the Heen, but - - governor ought have the power to call out the militia is a time when things are serious and there are serious threats CHAIRMAN: State your point. to the safety of the State. They ought not be left to the 310 EXECUTIVE POWERS AND FUNCTIONS discretion of the governor when he thinks there may be some SAKAKIHARA: I now wish to offer a further amendment violence, actual or threatened. If the problem deals with to Section 9. On the fourth line of Section 9 delete, alter insurrection, if the problem deals with invasion or rebellion, the word “suppress,” “actual or present threatened,” and it seems to me that he has a responsibility as chief executive on the 5th line, “violence, rebellion or,” so that that section to see to it that the State is adequately protected. I would will read: “The governor shall be Commander-in-Chief of therefore urge, Mr. Chairman, that the word “violence” be the armed forces of this State, and may call out such forces deleted from Section 9; and I would therefoie move to amend to execute the laws, to suppress insurrection or to repel the amendment by deleting the word “violence.” invasion.” I believe that the matter of - - YAMAMOTO: I’ll second that motion. NIELSEN: Point of order. P11 second the motion. CHAIRMAN: Delegate Roberts, the Chair will ask that CHAIRMAN: Proceed, Delegate Sakakihara, you are now you hold that amendment in abeyance as it does not apply to in order. the actual amendment that’s now before us. Let us dispose of that first, please. SAKAKIHARA: I believe that the other features, such as violence, rebellion, and so forth, will be purely statutory ROBERTS: I will hold it until the action - - matter covered in the execution of the laws, for which the RICHARDS: What is the actual amendment before us? governor as Commander-in-Chief will be called upon to call out the forces of the armed forces. I don’t see the necessity CHAIRMAN: The amendment before us is to place a of enumerating the “actual or present threatened violence period alter the word “invasion” and delete the remainder or rebellion.” of the paragraph. Is there any more discussion on that point? SHIMAMURA: I agree with the amendment and also with sentiments expressed by the last speaker. I do not feel that ARASHIRO: Yes, I wish to ask this question on the pend in our Constitution the prerogative and privilege and power ing motion as to what might be the possibility of the usage of the governor should be enlarged. It should be restricted, of the word “threatened insurrection” and also “violence.” if possible, and the usage of the words in Section 9, “threat What are they referring to as far as - - ened” and “violence” are an enlargement of the governor’s CHAIRMAN: I believe that your question falls in the powers and not a restriction thereof. same category as the motion that I just asked to be with RICHARDS: May I ask the proponent of this amendment held. Let us vote on the deletion of the last part of the that, does he feel that if a mob should get together and start paragraph and we’ll get to that point. out to burn down the Palace because of something that they SMITH: I’d like to ask the chairman & the committee, particularly dislike, or take particular action against some when they inserted the words “when the public safety re other individual in government, that the governor should not quires it” was that to take care of say earthquakes, floods, be empowered to call out the militia to protect State property etc.? or protect State officers? OKINO: Yes, it does. It would be an emergency from CHAIRMAN: Would the proponent of the motion care to which there might occur tumultuous disturbance. They answer that question? may result in violence. ANTHONY: Mr. Chairman, I can answer that question SMITH: I believe that “when the public safety requires it” for the delegate. should be left in the section. Therefore, I’m strongly not CHAIRMAN: Would that be satisfactory, Delegate Saka in favor of having the period ending right alter “invasion.” kihara? Delegate Anthony is recognized. OKINO: Point of order. I think Delegate Smith is out of ANTHONY: If the governor is made the Commander-in- order. That portion is not included in this amendment. That Chief and if he is clothed with authority to execute the laws, portion is to be stricken out. he would have every authority to call out the state militia to CHAIRMAN: That is the amendment, to strike it out, and suppress violence, to keep these mobs in order. You don’t he’s speaking against the amendment. Is there any further have to put it in the Constitution. I have no particular objec discussion? All those - - tion to the language going in there, but the simple provision in the Federal Constitution is that the President, the chief DOWSON: I’d like to ask a question. Are there any executive, is the Commander-in-Chief of the Army and Navy, states which empower the governor to suspend the law, go that’s all it says. Now, under that simple provision, the under martial law and suspend the privilege of the habeas President has done many things. Witness the sale of the 49 corpus? aged destroyers under the war power as Commander-in- CHAIRMAN: Delegate Okino, did you hear the question? Chief. So he would have every power to suppress violence by calling out the militia. OKINO: No, I have not been able to find anything from my search. That particular clause - - section is a composite RICHARDS: As long as that is well understood and placed of that which we find in our Organic Act, Section 66 and in the committee report, I have no objection. I merely thought Section 67. The committee felt that it would be advisable that, with my colleague from the fifth district, that when to follow the language of the Organic Act as closely as certain things are a little bit uncertain to the general lay possible. mind, why not spell them out, because we are not writing a Constitutiou for the benefit of the attorneys, as was stated CHAIRMAN: Are you ready for the question? earlier today. SAKAKIHABA: Question. OKINO: For the benefit of Delegate Dowson, and perhaps CHAIRMAN: All those in favor of the motion to delete other delegates, I should like to furnish at this time this or to amend the paragraph by deleting will say “aye.” information. The right to call out the militia to repel in Opposed, say “no.” The motion is carried. vasion, to execute the laws or to suppress rebellion is JUNE 20, 1950 • Evening Session 311 specifically conferred upon the governor in 25 states. Would amended, or I will make an amendment to the amendment, you like to know the names of the states? In Mississippi further amendment, to place a period after “State,” and that the governor may also call out the militia to suppress riots; the committee report will show that this is no deletion of the in Missouri, to suppress actual or threatened insurrection. powers contained in the balance of that section as amended, CHAIRMAN: Thank you. and by that I mean with a period after “invasion.” CROSSLEY: I would like to ask Delegate Anthony, then, WOOLAWAY: I’ll second that motion. in view of his statement, if it wouldn’t be better in Section 9 NIELSEN: I would like to ask the chairman of the Execu to go back to the period after “State,” in the second line of tive Committee how many, if any, states have the word that first sentence, and then it would read, “The governor “threatened” as regarding violence, rebellion, etc.? shall be Commander-in-Chief of the armed forces of this State,” if that wouldn’t be better than to try and put in limit OKINO: For the benefit of Delegate Nielsen, I refer to ed powers. if you are going to begin to strike out words page 141 of the Legislative Reference Bureau Manual. In along here, it seems to me you are putting a restriction by the State of Missouri that language is used, “to suppress trying to spell out specifically one or two things, whereas actual or threatened insurrections.” the other is a broad power. That’s the way it should be. NIELSEN: It’s just one state that uses that? ANTHONY: There’s a great deal in what the last speaker OKINO: Yes, one state. has said. I had put a period after “state” earlier this after NIELSEN: One out of 48. Well, I think that to write into noon when I left the Convention, thinking that if this was the Committee of the Whole [report] that we agree with all coming up that’s where I would put the period. So far as of this, but we won’t write it into the Constitution. I think I’m concerned, that would be perfectly adequate. The chief that what we write into the Constitution is what we agree to. executive would have all the power of a chief executive. Of Therefore, I am going to vote against that amendment. course, he would be answerable in the courts if he wrong fully called out the militia when there wasn’t any emergency. ASHFORD: I can’t allow a statement made by one of the But doing it that way, you are following the pattern of the delegates here to pass without objection. It was said that federal government and you are obviating the danger, by no one here objected to martial law. Hundreds of people whittling away some of these words, that a future court will objected to martial law, I was one of them. interpret that to mean that he can’t do thus and so. I think there’s a great deal in what Delegate Crossley said. MAU: Two of the delegates who spoke before Delegate Ashford stated that if the amendment were - - if the amend TAVARES: First of all I want to remind the delegates ment be to put a period after the word “State,” they would here that this provision has been substantially in our Organic agree to that amendment only with the thought that in the Act, under this language. “That the Governor,” and so committee report everything that is stricken out of Section forth, “and whenever it becomes necessary he may call upon 9 be made known in the report to be included in that provision. the commanders of the military and naval forces of the I disagree with that. I don’t believe that any one delegate United States in the Territory of Hawaii, or summon the could commit the whole Convention by saying that “I agree posse comitatus, or call out the militia of the Territory to to an amendment providing that a committee report be prevent or suppress lawless violence, invasion, insurrection, written in such a - - in a certain way.” or rebellion in such Territory.” CHAIRMAN: Delegate Mau, that was part of the motion. Now, the abuses that come from martial law came not Therefore, if you don’t agree, you may vote against it. But from this portion of our Organic Act, but from the imposition you’re in order. I’m just - - on this Territory of the unconstitutional “kangaroo courts” or provost courts, as they were cailed. Nobody here objected MAU: But I’m speaking against the amendment for that to martial law; nobody today says we shouldn’t have had reason. martial law. The thing we objected to was those “kangaroo CHAIRMAN: 0. K., Delegate Mau has the floor. courts” and we’re not going to have them here. MAU: if anything be written in any committee report, the Now, if that first portion, as Delegate Anthony says, eloquent words of Delegate Anthony ought to be written into includes all of the wording of this portion that’s to be deleted, the report to show the intent of this Convention, rather than and the report so states, I will acquiesce in that. But I think that the governor should have such extraordinary powers. the report should be very firm and specific on that because Let us go back to the illustration used by Delegate Richards, I want to call again to the attention of the delegates that our that in the event mob violence occurred, and this mob went supreme court in at least one case has held that the Terri to the Palace and burned the Palace down, or attacked some tory had no war powers. I don’t know whether that means of the officials of the State, first of all, the police powers of the State has no war powers either. Remember the Presi the State, I think, would be sufficient to take care of that dent has war powers and perhaps the states don’t, and matter, if that police power is insufficient, then the laws therefore, perhaps the President has a little more implied of the State have been violated and the governor, under the power than our governor does. Therefore, I would like it power to call out the militia so as to see to it that the laws very clearly understood in the record that if we are to delete are executed and obeyed, I think would be sufficient. So everything after “State” that it means exactly - - it includes that to say that if the amendment carries with a period after all of the provisions that are deleted, except this placing the word “State,” that everything after that which had been under martial law and suspending the privilege of the writ stricken should be covered by the report, I think is absurd of habeas corpus. and wrong. CROSSLEY: It was on that basin that I suggested that AKAU: I think what has been said is very good. I’m there be a period after “State.” if that is not included in wondering if we realize that when the people will be reading the committee report, and that is not, in fact, what this this Constitution that very few, comparatively speaking, will section means, then I wouldn’t be for the deletion of any part go back, let us say, and read the details that have been dis of this. Therefore, I would like to move that this section be cussed by this Committee of the Whole or even by these 312 EXECUTIVE POWERS AND FUNCTIONS various committees. I think they will probably concern follows: “The governor shall be Commander-in-Chief of themselves with the actual sections. Now, then, I’m wonder the armed forces of this State.” Is that correct? ing if the delegate from Kauai - - CHAIRMAN: Correct. CHAIRMAN: Delegate Crossley, you are being addressed. SAKAKIHARA: For what purpose are the armed forces for? For what purpose does the State provide a state nation AKAU: I am wondering if the delegate from Kauai would al guard? I firmly believe that the delegates assembled withdraw that proviso in his motion so that we might just here were elected to draft a State Constitution. Certainly vote on that part until the word “State,” and leave it to the the people of the future State of Hawaii is entitled to know discretion, let us say, of the people who are writing it in. the purpose for which the state militia is maintained. What They probably will write it in, but if you would withdraw the are their duties? I strongly feel that among some of the proviso I think the people would vote for it. purposes for which the state militia is maintained, that that CROSSLEY: May I answer that question. militia should be used for some specific purpose, for the purpose to execute prevention of insurrection, to suppress CHAIRMAN: Would you yield for a man who has been rebellion or repel invasion. If enemy forces should invade trying to speak on this subject? our shores, then the governor, as Commander-in-Chief, CROSSLEY: Well, I was asked a question. I’d like to could call out the militia to repel invasion. I believe very answer the question. strongly that the governor, as Commander-in-Chief, be entitled, under the State Constitution to call out the militia CHAIRMAN: Delegate Crossley is recognized. for the purpose of suppressing invasion or insurrection. CROSSLEY: When I spoke on the section in the first There has been times when strikes were going on, riots, place, I spoke of putting a period after “State” because I and that the forces of the police was inadequate. The gover had heard the eloquent speech, the eloquent words of the nor was called upon to call out the national guard. I believe attorney from the fourth district and agreed with him. I that the Constitution in certain degree should spell out, and am not an attorney; I don’t know what the courts are going I, in this instance, feel very strongly that Section 9 should to interpret in the first two lines of that with a period after provide so that the people can read and understand their “State,” and I don’t think that any other lay person here does own State Constitution, and for that reason I made the know. Therefore, I would like to know what this means my original motion so that the Commander-in-Chief of the armed self. forces of this State may call out such force to execute the Now the people that are going to go and read a report of laws, to suppress insurrection or to repel invasion. Section the Committee of the Whole are the judges and the attorneys 5, as tentatively agreed this forenoon, provides that, “The who are looking for an interpretation of what we were trying governor shall be responsible for the proper execution of to say. It’s not the man in the street that is going to read the laws.” Among the duties of the guard will be to enforce this report. I doubt that he will even read the Constitution. the execution of that law. The governor, as Commander-in- But for sure, the judges, the attorneys, the people that are Chief, will call out that force to execute that law. And I trying to get an interpretation of these sections are going to believe that the wording as amended by the gentleman from do it; and all I was asking for was that the thing that had Kauai is inadequate. been said be clearly spelled out, so that when they did look KING: It seems to me the point has been quite clarified for interpretation here that they would see it clearly stated and I would like to speak in opposition to the amendment to that the governor shall be Commander-in-Chief of the armed the amendment because the point made by Delegate Sakaki forces of this State, and that means that he has these rights, hara has considerable weight. “The governor shall be and that’s all in the world that my amendment was. Commander-in-Chief of the armed forces of this State.” That may be sufficient because he is the Commander-in- RICHARDS: I rise to a point of personal privilege. Chief and he may use them for any legal or proper purpose, CHAIRMAN: State your point. but it does seem desirable to add something to it, that he may call those forces out for certain purposes. So I would RICHARDS: I was misquoted by my colleague from the like to suggest that we vote on the amendment to the amend fifth district, and I would like to have that corrected before ment and clarify that point, and if that should fail to carry, we proceed with the discussion. He stated that where I re then we vote on the original amendment and clarify that ferred to the matter of the burning of the Palace and the point and go on to the next section. We’ve been on this attacking of citizens in government, that I was referring to particular section about an hour and a half and it seems to a fact that had been accomplished. My speech was on the me everybody’s mind is about made up how they want to have question of “threat,” and I wish that fully understood by the it written. There are two amendments pending, one is an rest .bf the delegates, where I feel that the governor should amendment to amendment and the other is a basic amendment, have the power, or some authority should have the power and all it needs is two votes to decide what we’re going to do to take care of threatened actions of that nature, and not with Section 9. So I’d like to move the previous question. actions after they have been accomplished. CHAIRMAN: The Chair would be very happy to put both CHAIRMAN: I believe that’s clearly stated. of those votes, incidentally. SAKAKIHARA: I rise to a point of information. I am MAU: Point of order. First I’d like to ask about the the original movant of the amendment. It was duly seconded. amendment to the amendment, how it reads. Delegate Crossley of Kauai has offered another amendment. Was that amendment to my amendment? CHAIRMAN: I would be very glad. The first amendment as offered by Delegate Sakakthara would place a period after CHAIRMAN: It was. the word “invasion”; would strike the words “actual or SAKAKIHARA: May I speak to the second amendment, prevent threatened”; and also the word “violence” and amendment to the amendment, in opposition to that amend “rebellion.” The amendment to that amendment, proposed ment? As I understand it, Section 9 will merely read as by Delegate Crossley, was to place a period in the second JUNE 20, 1950 • Evening Session 313 line after the word “State” and to delete the remainder of similar to Mr. Crossley’s have been acted upon. Unless the paragraph with the understanding - - not with the under we proceed - - standing but as part of the motion that the committee report would state that the substance contained in the rest of that CHAIRMAN: The delegate will recall that the Chair did paragraph, up to the word “invasion,” was the intent of this not rule the motion out of order. committee. RICHARDS: Well, I just really rise for a point of infor MAU: The point of order I raised was this, whether the mation inasmuch as the last speaker from the fourth district second part of that motion can be properly included in one now seems to want to write into our committee reports that motion, whether or not it shouldn’t be divided into two the committee reports mean nothing compared to the language motions. It makes an amendment asking that the period be that is submitted in the Constitution. Now, if that is so we put after the word “State,” and then a second motion that better start all over from the beginning. when the committee report is written - - whatever that motion is. I don’t believe the two can be tied together. CHAIRMAN: Would you yield a moment? Are you through, Delegate Mau? CHAIRMAN: I believe the same end can be accomplished, and just as quickly, if we put the motion, and depending upon MAU: I wanted to see if I couldn’t explain the true situa the outcome of the motion, either another motion could be tion to my colleague from the fifth district. The courts made to add either part of that motion either to the report never look to extraneous matters for interpretation. Only or to change the language. I think it can be accomplished when there is an ambiguity in the language. It first looks either way. Do you get my point, Delegate Mau? at what is written, if it understands it, then it goes nowhere else and says this is it. But if there is ambiguity in the MAU: I don’t think that’s a proper motion. language, if there are several ways to interpret the language ANTHONY: I’ve been trying to get the floor for sometime. as written, then they go to your report or your legislative journal. It’s only in such instances that the court resorts CHAIRMAN: I recognized you a while ago and you didn’t to extraneous matters for interpretation. want it. CHAIRMAN: The Chair feels that further discussion of ANTHONY: I didn’t notice it. the point so far as it pertains to the committee report is out CHAIRMAN: Delegate Anthony. Are you through - - of order. The motion has been withdrawn. The motion in MAU: I’ll yield for a moment because he’s so anxious cluded the language concerning the committee report. to get the floor. NIELSEN: The motion before the house now is Sakakiha CHAIRMAN: I will recognize you when Delegate Anthony ra’s motion, I believe. is through. CHAIRMAN: That is correct. ANTHONY: I think there’s a good deal in what Delegate NIELSEN: I move for the previous question. Mau has said. I don’t think that any statement here on the floor as to the construction of words that ultimately go into APOLIONA: I haven’t spoken on this question here and I the Constitution by any particular delegate can be binding on shall address myself to the amendment as proposed by Dele any court or anybody as to what those words mean. Now, as gate Sakakihara. if our enemies or invaders were all out I understand the motion, the motion is to put a period after side of the country proper, everything would be fine. But “State.” as far as I’m concerned, there is just as much danger with in the country as there is without the country. So at this RICHARDS: I rise to a point of order. time I would like to say that I shall vote against the amend CHAIRMAN: Will you state your point, please. ment as proposed by Delegate Sakakthara. RICHARDS: We have discussed here, since we have been H. RICE: There’s nothing like the school of hard knocks meeting as a Committee of the Whole, the point that inter and having served as president of the Senate of the Terri pretation shafl be written into the committee report. Now, tory of Hawaii when Mr. Garner Anthony was the attorney if this is something new, I’d like to know about it. general and fought for the Territory, I think this is one time ANTHONY: Let’s get that straightened out right away. we should look to the man who has had the experience during The only time you have resort to the legislative journals is that time. I agree with Delegate Ashford. When we were in when the meaning is not clear. You don’t pick up a legislative martial law, I told the Governor, Poindexter, that he let us report unless there is something in the language that is am down so that we were worse off than a conquered territory biguous. if the language is perfectly clear, then you read the here in Hawaii. I agree that this is one time where we words. You don’t read the report and see what the words should listen to Garner Anthony because he’s been through mean. the school of hard knocks and he knows what he’s talking Now as I see it, if we would put a period after “invasion,” about. it would do the same thing as Delegate Crossley’s motion CHAIRMAN: The question before the house - - would do. And I would not be in favor of taking out the words that Delegate Sakakthara would take out, the words “threat WOOLAWAY: I haven’t spoken yet. Pd like to ask this ened violence.” Now it seems to me that if everybody in this point of information. Maybe Garner Anthony, Delegate An Convention understands that in the event of an emergency thony can answer. What is wrong with this section as it is sufficiently bad to warrant the calling out of the troops, the now covered under the Organic Act, as we have been abiding governor may do so, then let’s put a period after “invasion” by it for fifty years? and let it go at that. ANTHONY: The section in the Hawaiian Organic Act was CROSSLEY: I’ll withdraw my motion. the principal cause of all of our trouble. if it hadn’t been for Section 67 of the Hawaiian Organic Act we would never have RICHARDS: I still rise to a point of information. We had this nonsense and rigamarole that we had down here have been going on for some days now in Which motions during the war. The President could have suspended the 314 EXECUTIVE POWERS AND FUNCTIONS privilege of the writ for a few days and it would have been that we’re dealing with here has nothing to do with the sus all over. We wouldn’t have had those four years of it. That’s pension of the writ or the privilege of the writ nor the what we had, these “kangaroo courts” down here under the declaration of martial law, it simply enables him to call out declaration of martial law. Why? Because we had the the militia, and I think it’s ail right. words “threatened invasion” in there, and those words should CHAIRMAN: Is that a satisfactory disposition of your not be in our Constitution. question? But I still believe that the governor should have the right to put down violence, and so I say put a period alter the HEEN: I rise to a point of information. word “invasion,” and vote against Sakakihara’s proposed CHAIRMAN: Dr. Roberts still has the floor. amendment. Then it would be a question of fact for the gov ernor to determine, whether or not the situation is serious ROBERTS: I’m sorry, Senator Heen. I’ll be through in enough to warrant the calling out of the troops, and the a minute. I’d like to suggest that we either retain the very governor will have to take his chances with the ultimate simple language that “The governor shall be Commander- facts, and he will be an elected official and you can depend in-Chief of the armed forces of the State,” which section, on him to do the right thing. by the way, is the section which has been used in the State of New Jersey, or a simple section such as the one in the DELEGATE: Question. Constitution of the State of Michigan, which provides that SMITH: I’d like, for a point of information, to ask the “he shall be Commander-in-Chief of the military and naval last speaker, is it necessary to leave out the words “or he forces and may call out such forces to execute the laws, to may when the public safety requires”? suppress insurrection and to repel invasion.” The word “violence” does not appear in any of the state constitutions. CHAIRMAN: No. It does not appear in the Organic Act. Violence? Well, this ANTHONY: I’m sorry, I didn’t get the question. doesn’t say “lawless violence,” and k just says “violence,” any kind of violence. CHAIRMAN: It was in the first amendment which was I agree wkh you, Mr. Chairman, but we’re dealing with a not voted on. basis of a Constitution now. If we’re putting in language SMITH: I just asked, is k—on the question whether or which is different from the Organic Act, we’re going to not the words “and he may when the public safety requires” have to interpret it. That’s been one of the arguments which —is it necessary to have that in? has been raised on the floor and one of the reasons why a good many of the lawyers want to keep the Organic Act in. CHAIRMAN: The Chair is in doubt on the point of order They say they’ve had 50 years of experience under it and here. adjudication. That makes good sense. But if you’re changing A. TRASK: Point of order. it, it doesn’t make good sense because you’re going to have further questions on it. CHAIRMAN: Perhaps I better check with the Clerk. The I go for a very simple clause that “The governor shall be words “and he may when the public safety requires” and so Commander-in-Chief of the armed forces of the State.” forth, was that deleted by a vote? That’s a section which has been adjudicated, federally; a A. TRASK: That was deleted, Mr. Chairman. section which is fairly simple and fairly clear. If you are going to make provisos, the provisos ought to be fairly AKAU: Point of order. I think we’ve had full and free simple and they ought to be confined to insurrection, to discussion. I move the previous question. rebellion or to invasion. Now, if the governor executes DELEGATE: That was my point of order. his authority improperly, then he’s subject to action in the court. ARASHIRO: I second that motion to the previous question. I would suggest, therefore, that the amendment proposed by Mr. Sakakihara be supported, but I would like to add the ROBERTS: I haven’t spoken on the amendment, Mr. Chair word “rebellion” in that section and I would move to amend man. The previous speaker stated that one of the serious the section to include the word “rebellion.” difficulties of martial law in the problem of the Organic Act were the words “threatened invasion.” The words “to pre SAKAKIHARA: I accept the amendment. vent threatened insurrection, rebellion or to repel invasion” CHAIRMAN: The amendment is accepted by the movant. are in the present proviso. That language is in there. It would seem to me that the difficulty isn’t met by leaving HEEN: I rise to a point of information. I would like to the same lapguage. know just exactly what Delegate Sakakihara’s amendment is, with that amendment proposed by Delegate Roberts which he CHAIRMAN: The amendment before the house would has accepted. delete. CHAIRMAN: I will read the amendment. The amendment ROBERTS: I understand that, but the speaker before was is to delete, after the word “suppress” in the fourth line, speaking in opposition to the amendment, and was speaking the words, “actual or prevent threatened,” skip the word for the retention of Section 9 with a period after the word “insurrection,” and delete the word “violence,” so the section “invasion.” It seems to me that leaving the language in would read: there does not meet that purpose. The governor shall be Commander-in- Chief of the ANTHONY: This is a rather technical discussion, but armed forces of this State, and may call out such forces Section 67 of the Hawaiian Organic Act has two things. One, to execute the laws, to suppress insurrection, rebellion the first part of it, permits the governor to call out the or to repel invasion. posse comitatus or the militia, in the event of violence and so on. The other section was the section that we had the HEEN: I now move an amendment to that amendment, most trouble with. It authorized him to suspend the privi that the word “actual” be deleted in the fourth line, that the lege of the writ and to declare martial law. This section word “threatened” be deleted in the fourth line, so that the JUNE 20, 1950 • Evening Session 315 - - no, no, he deleted too many words - - so that that part CHAIRMAN: The Chair has ruled that the motion is in shall read: “and may call out such forces to execute the order in that by placing a time limitation on the suspension laws, to suppress or prevent insurrection, violence, rebel of the privilege of the writ, it is a new subject. lion or to repel invasion.” ASHFORD: Move the previous question. I move the ANTHONY: I was wondering if the movant of the last previous question, Mr. Chairman. amendment would accept a further amendment to insert the word “lawless” before “violence.” DOI: Second the motion. CHAIRMAN: Insert the word what? RICHARDS: Mr. Chairman, my motion was seconded. Is that the - - HEEN: “Lawless” before the word “violence,” “lawless violence.” So that my amendment - - it seems to me that CHAIRMAN: That is correct. Delegate Sakakihara should agree with my amendment. RICHARDS: - - previous question we are voting on, my SAKAKIHARA: I accept Senator Heen’s amendment. amendment? CHAIRMAN: That is correct. The motion before the CHAIRMAN: Do you agree with it? house is the amendment by Delegate Richards. All those in SAKAKIHARA: I agree with it. favor of the amendment will say “aye.” Opposed. The motion is lost. CHAIRMAN: The only question before the house is to amend the first sentence of Section 9 so that it would read The motion before the house now is the adoption of Section 9 as amended. as follows: The governor shall be Commander-in- Chief of the DELEGATE: Mr. Chairman, I move that Section 9 as armed forces of this State and may call out such forces amended be adopted. to execute the laws, to suppress or prevent insurrection, CHAIRMAN: The motion has been made. All those in lawless violence or repel invasion. favor will say “aye.” Opposed. So carried. HEE N: No, “rebellion” remains. LAI: I move for the adoption of first paragraph in CHAIRMAN: “Lawless rebellion.” Section 10. HEEN: No, “lawless violence, rebellion or to repel SAKAKIHARA: Second it. invasion” period. CHAIRMAN: It’s been moved and seconded that the first CHAIRMAN: Thank you. All those in favor of the amend paragraph of Section 10 be tentatively adopted. ment as just stated will say “aye.” Opposed. The amend J. TRASK: I move for a short recess subject to the call ment is carried. of the Chair. CROSSLEY: I now move the adoption of this section as CHAIRMAN: If there’s no objection, a short recess of amended. approximately five minutes. WOOLAWAY: I now second the motion. (RECESS) CHAIRMAN: It has been moved and seconded this section as amended be adopted. CHAIRMAN: The Committee of the Whole please come RICHARDS: I have a further amendment. My amendment to order. would be: “and he may” —putting a comma alter the word AR.ASHIRO: I now move that we adopt Section 10. “invasion”—”and he may when the public safety requires, place this State or any part thereof under martial law and CHAIRMAN: That motion is before the house. suspend the privilege of writ of habeas corpus for a period DELEGATE: I second the motion. not to exceed 90 days.” LARSEN: I would like to present an amendment that’s J. TRASK: Point of order. on your desks, in the name of Henry White who couldn’t be CHAIRMAN: Will you state your point of order, James here, to delete the present first three sections and in their Trask? Delegate James Trask. place put in the sections as suggested. The one that’s on your desk. J. TRASK: I am quite sure that we voted on that deletion. CHAIRMAN: The copy that I have is not identified, Dele~ RICHARDS: Was there a period for which he could pass - - gate Larsen. suspend the writ mentioned? LARSEN: It starts: “Amendment to Committee Proposal CHAIRMAN: The Chair will have to rule that the amend No. 22. Amend Section 10 of Committee Proposal No. 22 by ment is in order under that understanding. Is there any deleting the first three paragraphs thereof and substituting further discussion on this? Is there any second? in lieu thereof the following:” and then comes Section 10. SMITH: I’ll second it. Got it? CROSSLEY: I’ll second it for debate. Section 10. There shall be an Attorney General, a Commissioner of Finance, a Treasurer, a Commissioner HEEN: Point of order. At the outset there was a motion of Taxes, a Superintendent of Public Works, a Board of to delete that very part of that sentence, and action was Regents, Commissioners of Public Instruction, and a taken upon that motion and the motion carried. Therefore, Public Utilities Commission, each of whom shall be in if you want to deal with that same part of that sentence charge of a principal department of the state and their again, there should be a motion to reconsider. Therefore, respective functions, powers and duties shall be as this motion at the present time is clearly out of order. provided by law. 316 EXECUTIVE POWERS AND FUNCTIONS All other executive and administrative offices, depart CHAIRMAN: Delegate Larsen, do you wish to put this ments and instrumentalities of the state government and amendment before the house? their respective functions, powers and duties shall be LARSEN: I would like to place this before the house. established by law in such manner as to group the same according to major purposes so far as practicable. DELEGATE: I’ll second the motion. The legislature from time to time may assign new CROSSLEY: I would like to speak agalnst this amendment. powers and functions to departments, boards and instru As I read this amendment, this would eliminate the first mentalities, and it may increase, modify, or diminish the paragraph of Section 10. Now, the first paragraph of Section powers and functions & such bodies, but the governor 10 was designed to do a special job. It was designed to do shall have power to make such changes in the adminis - away with the trend towards the multiplication of many de trative structure or in the assignment of functions as he partments. It was designed to stop independent agencies may deem necessary for efficient administration. Such being set up one after another, increasing the bureaucracy changes shall be set forth in executive orders which of government, and to carry out one of the principal functions shall become effective as of the dates set forth therein of the Little Hoover Commission in concentrating the work and~shall continue until modified by executive orders or in fewer departments. Not oaly would that bring about more specifically modified or disapproved by a resolution economical government, but it would make the job of the adopted by a majority of each house of the legislature. governor a lot more precise. It would enable him to pick The legislature may create temporary commissions for better men because he would be picking fewer men to head special purposes or, except for those established herein, these principal departments. reduce the number of departments or boards by consoli Now, limiting the number of administrative departments dation or otherwise. is a constitutional requisite for streamlining the government Each principal department shall be under the super of the State, for increasing its efficiency and in reducing its vision of the governor. The head of each principal depart cost; and to do those things and to that end, the constitutional ment shall be a single executive unless otherwise provided limit on the number of departments is desirable. When you herein or by law. Such single executives shall be nomi do this, you integrate administrative functions, and to that nated and appointed by the governor, with the advice and end, of course, later on in this section, you will find that consent of the Senate, to serve at the pleasure of the gov we have recommended that each principal department shall ernor. be under the supervision of the governor, the head of each Whenever a board, commission or other body shall be principal department shall be a single executive, except vested with the responsibility for the administration of a where a board is called for. All of those things would mean principal department of the state, the members thereof that you could build up without any difficulty at all any shall be nominated and appointed by the governor with number of departments. The trend has been in the Model the advice and consent of the Senate. Members of the State Constitution, in the New Jersey revision, in the Connect Board of Regents and of the Public Utilities Commission, icut report, all of these states have put a limit on the num and Commissioners of Public Instruction shall serve for ber of departments to bring about the very thing that the staggered terms, as provided by law, and shall be subject Little Hoover Commission has tried to bring about, not oaly to removal oaly for misfeasance or malfeasance in office. in state but federal government, and that is a limitation All other appointees of the governor to boards, commis upon the number so that there will be a concentration of the sions or other bodies shall serve at the pleasure of the number of people. governor. Each board, commission, or other body may, with the advice and consent of the governor, appoint a HEEN: I rise to a point of information. principal executive officer who may be ex officio a voting CHAIRMAN: State your point. member of such board, commission or other body, when authorized by law. Such principal executive officer may HEEN: I was wondering what he means by the “Little be removed by a majority vote of the members appointed Hoover Commission.” by the governor. CROSSLEY: I mean the “Big Hoover Commission.” CHAIRMAN: I have it. HEEN: I thought so. RICHARDS: A point of order. Are we going to talk about CROSSLEY: Therefore, inasmuch as this amendment all of Section 10 at once, or are we going to go paragraph by offered by Delegate White would serve to delete that first paragraph? paragraph, I would like to see the amendment defeated. CHAIRMAN: In view of the amendment that has been CHAIRMAN: Is there any further discussion on the offered, which would be to amend the first three paragraphs, amendment? All those in favor of the motion to amend the I’m afraid it would be up to the movant of the amendment to first three paragraphs in accordance with the proposal move that this be placed in lieu of the first three paragraphs. submitted by Delegate White will say “aye.” Opposed. The motion is lost. RICHARDS: As I read that amendment, it is paragraphs The motion before the house at the moment is the adoption two and three to be amended and does not affect paragraph of Section 10 as proposed by the committee. one. LOPER: I have one minor amendment. In the middle of CROSSLEY: I don’t believe that is correct. Paragraph the second paragraph, “The head of each principal depart one deals with the subject that: “There shall be not more ment shall be a single executive unless otherwise provided than 20 principal departments.” If you will read the amend by law.” I think - - ment offered by Delegate White, you will find out that he CHAIRMAN: Delegate Loper, are you speaking to the wants to delete that section. He is, of course, silent on it first paragraph of Section 10? which would mean that there would be no limitation on the number of departments. LOPER: Second. I understood the - - JUNE 20, 1950 • Evening Session 317 CHAIRMAN: I may have stated the motion incorrectly. OKINO: I should like to ask Delegate Richards a ques The motion is for the adoption of the first paragraph. That tion or two. I take it from what you have said, Delegate motion was amended to replace three paragraphs. The Richards, that your committee is proposing a board, or two amendment was lost; therefore the only motion before the or three boards, to take charge of the administration of the house is the adoption of the first paragraph, Section 10. agriculture, forestry, maybe fisheries and conservation, LOPER: I thought the motion was to adopt the whole something like the proposal that was submitted by the Com section. mittee on Education. CHAIRMAN: I may have incorrectly stated it. All those RICHARDS. if I may answer that question, we are sub in favor of the motion will say “aye.” mitting no suggestions of any number. We are merely sug gesting an over-all comparatively short article for inclusion RICHARDS: May I ask the chairman of the committee as to why the number of 20 principal departments was picked in the Constitution. Our committee report merely suggests out? Did he have a specific number as to which departments, that because of the diversity of the problems, and because of the necessity of conservation of our assets, and because or why 20 instead of 24 or 16 or 10? certain of those conservation programs might encroach OKINO: I believe my committee member, Delegate upon each other, that there might be a fairly large number Crossley from Kauai, would be willing to answer that ques of boards necessary. tion. OKINO: You mean to be established by law or to be given CROSSLEY: The committee did discuss a variety of a constitutional status? numbers. For instance, the Connecticut Report took the RICHARDS: All to be established by law. The oaly point whole State of Connecticut into 14 administrative departments involved is that we do state that they should be executive and other states had varying numbers. I believe the highest boards with the power of appointing the executive officer. was 20. However, we did invite the budget director and That is the only requirement that we have in our proposal, others of the territorial government over to discuss and but there is no question as to the number, that we leave up propose a consolidation of departments, and the highest to the legislature. number that we came out with was somewhere in the neigh borhood of 14 or 15, along in there. The committee felt - - OKINO: May I at this time direct your attention to para the majority of the committee felt that there should be a graph three of Section 10 of Proposal No. 22. if you have cushion over and above anything that we could see or under any - - if any board is specifically recommended to be given stand, that there should be a sufficient cushion to grow into, a constitutional status, then it may be excepted by the first but not too great a cushion to use up all at one time. Some phrase or clause, “Except as otherwise provided in this of these other states have done just that; they have provided Constitution.” And if it is so, it will not be counted in as a cushion, and in most cases they still have that cushion be one of the 20 principal departments. cause they keep consolidating rather than using that all up because when it’s gone, it’s gone. RICHARDS: if that is the interpretation, that is perfectly satisfactory with me. I didn’t read it that way as I read RICHARDS: I can appreciate the idea of the delegate from through the report. Kauai and I certainly am in favor of having as few departments of government as possible, but we do arise to the situation that TAVARES: Fm afraid I didn’t quite catch all that Dele occurred in this particular Convention, where everybody gate Okino said. May I get the meaning of that “principal happened to say we can get by with eight or ten committees departments” again? and yet by the time we added up, we kept increasing. OKINO: The idea of that clause, “Except as otherwise I have no particular argument with whether 20 is going to provided in this Constitution,” was to meet with any commit be sufficient or not. There is, tomorrow, the committee tee proposal like the proposal submitted by the Committee report on agriculture, conservation and land coming forward. on Education. That board will not be counted in as one of That committee report does not recommend any specific the 20 principal departments limited in paragraph one of number of boards or commissions to take care of the various Section 10. Likewise, if the Committee on Education is to aspects of the assets of the State, but it does request that submit any such recommendation, and if approved by the there be a sufficient number available, realizing that there Convention, then it would be excepted from the limitation was a limitation suggested in this particular article, to take of 20 principal departments. care of the requirements to properly administer the assets of the State, particularly from the conservation angle. In our TAVARE5: I am a little bit concerned because, according committee meetings, we met with people from the fisheries; to my recollection, I just put down all the departments I can we met with people from the land board and the land commis remember right now, with the Auditor, Budget Director, sioner; and we met with people from the board of agriculture; Attorney General, Tax Commissioner, Department of Educa we also met with people interested in conservation; we met tion, Board of Regents, Public Utilities Commission, Public with people interested in the conservation of water as being Works, Public Lands, Treasurer, Archives —would Archives the lifeblood of the State. be considered a principal department? Now, I have no particular bone of contention with 20 OKINO: That I believe will be ascertalned by legislature. principal departments. I merely wish to make sure that there’s going to be enough to take care of the problems TAVARES: Agriculture and Forestry, Hawaiian Homes which will be put before the legislature regarding the various Commission, Hawaii Housing Authority, Public Welfare and and sundry assets of the State, as well as the functional de Institutions, I get about 17 or 18 already and if you only have partments which we all know are necessary for the proper 20, Fm a little concerned really now as to whether that operation. I also wish to state that I do feel that the fewer number is enough. number of departments the greater efficiency of the State. CROSSLEY: I’d like to point out to the delegate that just That point I certainly agree with, but I just raise the ques spoke that if you want to go through and take all of the princi tion, is 20 going to be enough? pal departments, you can get 73, we can save the delegate 318 EXECUTIVE POWERS AND FUNCTIONS a counting, you can get 70 some odd departments. But I matter of the Committee of Agriculture, Conservation and have here the organization chart of the State of Connecticut, Land and it had nothing to do with the State of Connecticut. there are 14 operating departments. Under agriculture and I am heartily in agreement, personally, with the remarks natural resources, there would be a head of the department, of the delegate from Kauai regarding the matter of conserving or the head of the commission, as it’s called here—a single the cost of government by consolidation. I am merely point executive with an advisory board in this case, and an adjudi ing out to this Convention that the report that is coming out cation board - - administrative board; and under that from the committee does not favor complete consolidation Agricultural and Natural Resources Department, Commis as is suggested. sioner of Farms and Markets, Milk Administrator, Milk LOPER: I wish to speak in support of the committee re Regulation Board, Connecticut Regional Marketing Authority, port and the position taken by the delegate from Kauai and State Board of Veterinary Registration Examination, State add just this additional argument, which I don’t believe has Board of Fisheries and - - been brought out. Part of the reason for limiting the number RICHARDS: I fully appreciate the remarks made from to 20 is based upon a principle of organization, good adminis the - - by the delegate from Kauai and there was one - - the trative organization whether military, business or govern point on which I wish to inform this Convention is that a mental, and that is that there is a limit to the spread of particular proposal was presented to the Committee on supervisory authority and responsibility, and by limiting Agriculture, Conservation and Land, providing for just such it—as a matter of fact 20 is too many to be supervised a setup as is in Connecticut, and it was voted down 100 per by any one executive—but by limiting it, it’s an invitation cent except for the chairman. Now, I’m just throwing before when some new function of government comes along, to this Convention a particular thought that because certain find one of the existing departments to assign it to instead delegates do feel that there should be independent boards, of setting up another commission or department. that this situation should be taken care of. It is entirely HEEN: I rise to a point of information. up to the Convention. I’m holding no brief for the particular points involved. I’m just merely stating that I do not know CHAIRMAN: Will you state your point, please. whether 20 is going to be sufficient. HEEN: I would like to ask the delegate from Kauai, in CHAIRMAN: The Chair feels that if 20 is not the proper the setup that he first spoke about, there would be one de number, some delegate should propose an amendment to partment relating to agriculture and other related subjects. this section; otherwise, I think further discussion is not in Now, does that mean that the present Board of Agriculture, order. Forestry and Conservation would be abandoned or that that CROSSLEY: I’d like to continue, if I could, uninterrupted. particular agency would be within the department that you I was trying to point out that when you look at states like New spoke about? Jersey, that is limited and does operate under 20, and some CROSSLEY: Mr. Chairman, if I may answer that question. of these other states, that the whole purpose of trying to get It certainly would not be abandoned. It’s simply that under a fewer number of boards is just to prevent what the previous a Department of Agriculture, you would probably add con speaker is talking about, and that is that every man who is servation and lands; you would add fisheries; you would going to be in charge of some division of government will add a number of things, natural resources, and a lot of other have an entire independent setup of his own. If you limit the things that would have a natural affinity for the section it number, it will be found that those functions of government self, rather than set up independent departments for all of that are well related can be brought together and put under those things. a single department without losing any of the efficiency. As a matter of fact, every single study that has been made on HEEN: That is, there would be a separate division, say, thin subject, every revision of a state constitution, has of the over-all department. Is that correct? brought about a limiting of the number for the sole purpose CROSSLEY: That’s correct. of bringing together these departments and trying in that manner to cut the cost of government and to bring about a HEEN: I think we have one setup that is similar to that more efficient government in so doing. at the present time. That is the Department of Institutions, Now, as to Connecticut rejecting this a hundred per cent, where you have under that department the territorial peni Connecticut has not yet had the opportunity to vote on the tentiary, the industrial schools, the territorial hospital, and Connecticut report. It has been held up by one section that maybe one or two others. But those do not have any separate has nothing to do with the consolidation of departments. It boards, as I understand it. Is that not so, Mr. Delegate from has to do entirely with reapportionment. I went into the Kauai? National Municipal League when I was in New York last CROSSLEY: I’m sorry, I didn’t hear the question, but my month and talked to the people who have written the report, colleague, he says it is. and they told me that reapportionment is the only thing hold ing up the Connecticut report, and that is because a few dis HEEN: That’s correct. Now another question. As you tricts, in reapportionment, do not want to lose the repre know, we have several boards, like the Board of Dental sentation they now have and under reapportionment they Examiners, the Board of Engineers, Architects and Surveyors, would lose that, and therefore would lose control of the the Board of Health, the Board of Medical Examiners, the State Assembly; and that is the only thing holding up the Board of Optometrists, the Board of Osteopathy, the Board report. Every other section has been adopted. of Hairdressers, Cosmetologists and Cosmeticians. What would you do with all those boards? Put them under one RICHARDS: I rise to a point of personal privilege. department and what would you call that department? CHAIRMAN: State your point. CROSSLEY: I would like to make it clear that what I RICHARDS: I believe delegate from Kauai misinterpreted have proposed, or what the committee has proposed, and my remarks. My remarks had nothing to do with the rejec the majority have adopted in this first paragraph of Section tion or not of the State of Connecticut. I was discussing the 10 is not as to how they shall be consolidated, but only to JUNE 20, 1950 • Evening Session 319 the point that there shall be not more than 20, and if you specific statement, namely, that the method shall be left limit the number to 20, the consolidation will have to be with the discretion of the legislature. worked out within that number. Under all of those things - - In reply to the statement made by Delegate Tavares, I all of those would be consolidated unquestionably under one think the answer is this. No one expects that the now-exist appropriate department, single executive. ing 75 boards, licensing boards, commissions, departments could be allocated within 20 principal departments. I think ROBERTS: I’d like to speak in support of the proposal. the matter could be worked out in a schedule so that the legis The section, to me, is a very valuable one. It goes to the lature may, within the next two years or perhaps three years, very heart of proper executive function and integration of reorganize the existing boards, commissions and departments operations so that the governor, the chief executive, has so that it will comply with the provision of Section 10 now a limited number of departments that he, personally, can recommended by your committee. keep in touch with and can follow the functions and operations of those departments. The section does not spell out how the KING: The only point at issue is, is 20 departments suff i— existing departments are to be allocated, that is left for the dent. They’re not being allocated in the Constitution; it’s legislature. The legislature then can re-allocate and place merely a provision that the principal executive functions shall the departments where they think they properly belong. This be allocated by law. Now if 20 is enough, why let’s pass the proposal merely provides an adequate method of administra first section. If 20 isn’t enough, why let’s amend it to read tion with a limited number of departments so that the execu 24, and I think that’s the only point. tive can keep personally in touch with their operation and see Now for the further point that Delegate Tavares raises, to it that the executive functions are effectively carried out that is not covered here. But it simply says, “All executive in the State. I think the purpose is good and I think we ought and administrative offices” and so forth, “shall be allocated to support the proposal. by law.” Presumably it’s an instruction to the legislature to make such an allocation at the first session after statehood TAVARES: I am in sympathy with the purpose of this has been achieved. proposal, but it seems to me there is one missing link here. I notice that in the Model Constitution where they have such ANTHONY: I think Delegate Tavares has raised a rather a provision, they have a self-executing provision, and so if serious defect in this proposal. The very thing that we want the legislature doesn’t act, the governor can by executive to accomplish, namely a consolidation, is left up in the air. order see that they are consolidated. Now, I am in sympathy Now we all know the great multiplicity of bureaus and depart with reducing these things, but suppose we miss and leave ments that the federal government has had and the difficulty one too many outside. Now, which ones of the departments that the President has had with his reorganization plan. Now, are going to be void, and which ones are going to be valid? it seems to me if we follow the Model Constitution provision There is one question that isn’t answered. What are you and incorporate some place in this section, or elsewhere, going to do about it until the next legislature meets if you executive power to permit the governor to effect a reorgani haven’t consolidated them all at one time? We’re going to zation of departments and consolidation and, if you will, sub go into a new era here where we should have 20 departments, mit it to the legislature, but nevertheless give the executive but what’s going to happen in the meantime when we become the power so that something will be accomplished. If you a State? Who is going to do the consolidating if the legis leave it up in the air completely, then there is no assurance lature hasn’t done it before that? And which departments that the consolidation that the committee wants to accomplish are going to be void because they are over the 20 limit? will ever be accomplished. I think by leaving out the Model Constitution self-executing CHAIRMAN: I believe that the delegate is at liberty to portion giving the governor power to do it, subject to revo propose such an inclusion. cation by the legislature, you’ve only done half the job. KING: We’ve discussed this section for quite a long time HAYES: A point of information. I would like to know, and no one has offered a specific amendment. Now if either since the committee has reported this out and recommended Delegate Anthony or Delegate Tavares has an amendment to that within not more than 20 principal departments, now I offer, I suggest they submit it. Meanwhile, I move that we would like to know whether they have an idea what the 20 defer action on Section 1 - - paragraph one of Section 10 and principal departments will be? I would like to see it spelled proceed to paragraph two of Section 10. out. KAGE: I notice someone mentioning something about the OKINO: I believe the delegate from Kauai has already Model State Constitution. There’s a very interesting question given an explanation on that point. The commission establish posed here. May I read the question. It says “Why 20 depart ed by the Connecticut legislature worked on this problem not ments instead of 40, 30 or 10?” It is found on page 32, only 60 days or 90 days, they have spent a considerable num second paragraph on the right column. Very, very interest ber of years. Before the New Jersey Constitution was revised, ing article. If you care to have me read that short little there was also a special committee which did considerable paragraph, I’d be very happy to do so. work on the subject matter of reorganization of the adminis CHAIRMAN: I beg your pardon. Is that an answer to the trative departments~and boards. What our committee has question? done was merely to accept the benefit of these profound and long studies made by experts serving on these commissions. KAGE: Yes. If New Jersey and Connecticut felt, and it does include CHAIRMAN: Read it. several other states, they could have consolidated and allo cated the various existing boards, commissions and depart KAGE: ments into less than 20 and in some states 18, we felt that Why 20 departments instead of 40, 30 or 10? The the State of Hawaii certainly, with no more than probably answer is the result of careful thought and study of much about half a million people, should be able to consolidate administrative experience. Students of administration our 75 boards, commissions and licensing boards. Now, it have long agreed that the “span of control” or number of is for that reason that the committee proposal contains the subordinates which an individual should supervise must 320 EXEcUTIVE POWERS AND FUNCTIONS be carefully limited if the supervisor is to know his men Senate,” “and may be removed with the consent of the and to keep their efforts properly coordinated. In mili Senate,” deleting the rest - - the remainder of the section. tary organizations, span of control rarely exceeds five DOl: I second that motion. or six subordinates. In business, it is not likely to run higher than 10 or 15. ASHFORD: The purpose of it is that it doesn’t seem to me right that department heads should be removed at the WOOLAWAY: I would like to second the motion of Presi pleasure of the governor, particularly the attorney general. dent King so that a proper amendment can be written up on The attorney general interpreting the law should not be this matter. subject to removal, in my opinion, by the governor if he CHAIRMAN: It’s been moved and seconded that this mat doesn’t accede in his interpretation to the wishes of the ter be deferred. chief executive. ROBERTS: May I speak on that? CHAIRMAN: It has been moved and seconded that the second paragraph be amended. CHAIRMAN: You may, Delegate Roberts. SERIZAWA: I would like to pose a question to the chair ROBERT& I think the only question that has been raised man of the committee. is the question of providing an effective date for the setting up of the 20 departments. I think it’s extremely difficult, SILVA: Point of order. I would like to hear the amend and I think it would require adequate time to study the prob~ ment as made, moved and seconded. lem and to make the proper investigations so the legislature CHAIRMAN: I thought maybe some of the other delegates can act in setting up those 20 departments. I think if we ask would. Second paragraph of Section 10. It has been moved the committee dealing with ordinances and continuity of law, that it be amended to read in the last sentence: or we can put a section in the present proposal which would have this section effective four years from the date that the Such single executive shall be appointed by the gover Constitution goes into effect, which would give the legislature nor subject to the confirmation of the Senate and may be —the first one —an opportunity to get a commission to study removed with the consent of the Senate. the problem and to act on it subsequently. I will, therefore, Is that correct? move that it be the sense of this committee that four years be permitted for this reorganization to go into effect. HEEN: If we are going to do that, then in that particular provision or somewhere else in that same section, there CHAIRMAN: I believe your motion will be out of order should be a provision for a definite term of office. unless the motion to defer is withdrawn. ROBERTS: I indicated the basis for speaking on the FONG: I would like to amend the amendment by adding motion, and then I would like to ask whether instead of at the period of that paragraph the words as follows - - deferring it, we could act on that basis and we could dis CHAIRMAN: Which period? pose of the problem in that way. FONG: Period alter the words, “with the consent of the TAVARES: I think that would be satisfactory. Senate,” the last period in the last paragraph. “Excepting KING: I have no objection, but I’d like to see the Com however, that the attorney general shall be elected by the mittee of the Whole get along. My understanding is that legally qualified voters of this State at the same general Delegate Tavares raised two questions, not only as to the election as the governor and hold office for the same term. time limit, but as to the agency, in case the legislature He shall be a licensed attorney at law of the State of Hawaii fails to make such an allocation by law, whether the chief and shall possess the qualifications provided in the fourth executive would then be authorized to do so. Though I’m not paragraph of Section lof Article~,” referring to the sure that the motion offered by Delegate Roberts will cure qualifications of the governor. it, however if that seems satisfactory, I withdraw my motion KAUHANE: I second that motion. to defer action. FONG: Speaking in behalf of the motion, I would like to DOl: I am convinced that Delegate Roberts’ motion will refer the delegates to the Manual which has been given to expedite matters, therefore I second the motion. us by the Leginlative Reference Bureau, turning to page 187 CHAIRMAN: It’s been moved and seconded that the sense and 188. You will note that in page 187 and 188, it deals with of this Convention is that Section 10, paragraph one shall be the attorney general, as to how he is appointed or elected in approved in substance and that a further amendment will be the yarious states. You will note in this appendix that there made to take care of the situation brought up by Delegate are only four states which appoint their attorney general. Tavares. Is that a correct statement of your motion? All the rest of the states - - There is one state which gives to the Supreme Court the power to appoint the attorney ROBERTS: Yes, Mr. Chairman. general, four states give the governor the power to appoint CHAIRMAN: All those in favor of the motion as stated, the attorney general, and in all the other states out of the please say “aye.” Opposed. Carried. 48 states, that is 43 out of the 48 states provide for the election of the attorney general. KING: Just to bring it before the committee, I move that The attorney general should be elected because I feel we tentatively approve of paragraph two of Section 10. that he is the man who should interpret the laws of the State. TAVARES: I second the motion. He should be independent of the executive because if he is not independent of the executive, he will be prone to con CHAIRMAN: It has been moved and seconded that we strue the laws, that is to interpret the laws to favor the tentatively approve paragraph two of Section 10. executive. He should be free from the legislature because ASHFORD: I move to amend the section by putting a if he was not free from the legislature, he would be biased period at the - - by inserting alter “confirmation of the towards the legislature. So following the program and JUNE 20, 1950 • Evening Session 321 following the practice of the 44 states of the Union, I feel CHAIRMAN: It has been moved and seconded that the that the attorney general should be an elective officer. paragraph under discussion be deferred until a later date. CHAIRMAN: Delegate Fong, does the Chair understand FONG: We could dispose of this question right now. that your amendment would retain the language inserted by There’s no need of deferring this question. We must know Delegate Ashford’s amendment? where we stand on this problem and I don’t see any reason FONG: That is true. for deferring it. CHAIRMAN: That is true? ANTHONY: To discuss this question will take a full hour and I, for one, will want to take as much time as the FONG: Yes. Chair will allow me to discuss this. And there are a lot of delegates that are not here. I don’t see why we can’t FUKUSHIMA: Speaking for the amendment proposed by Delegate Fong, I’d like to point out that not only 44 states move on to a less controversial subject than this one. You’ve elect their attorney general, but also it would be well in got to have a full debate on this. There’s no use fooling yourself about it. Just because one quarter of the delegates line to check the Missouri Constitution which was revised very recently. There the attorney general is still an elec aren’t here, there’s no reason to press for a vote at this time. tive official. The attorney general’s function is not only an advisor CHAIRMAN: Any one else wish to speak on the move to to the executive. He has many, many functions which are defer? not close to the executive. He is the chief enforcement - - APOLIONA: My mind is still open as far as the selection law enforcement officer of the State. He also drafts bills for the legislature; he also deals with public charities; of the attorney general and I’d like to have more time to he supervises equitable proceedings for the abatement of study this thing over, and I would go along for deferment of this paragraph. nuinances; he intervenes in divorce proceedings where collusion is suspected; and he does a host of other things LOPER: I have a minor amendment which I think might which are not pertinent to the executive. pass, but perhaps rm out of order. Secondly, his function to the executive is merely an advisory one, k’s merely ministerial, his opinion is mere CHAIRMAN: I think the only motion before the house is ly an opinion. The executive officers, the administrative for deferment, unless you wish to amend that. heads, do not have to follow their opinions - - his opinions. DOI: I believe we should decide the question tonight. If I am also inclined to go along with the proponent of the we need more members, ask the Sergeant-at-Arms to bring amendment in view of the fact that the attorney general them in. possesses great discretionary powers. He has quasi judicial powers which is the inherent right of his office FUKUSHIMA: There is no need of delaying this thing. in interpreting certain laws, and not even the courts can Why should we tackle something which is easy or which is not controversial. What difference does it make whether touch that. The attorney general’s office should not be subservient to the executive. That was one of the reasons we take it up tonight or not. The fact that it is controversial should be the very reason why we should take it up tonight. why the delegate from Molokai introduced her amendment, because she felt that the attorney general should not be PORTEUS: Let’s not fuss over whether we’re going to at the mercy of the governor when his opinion would not vote on this tonight. The matter is very easily resolved. coincide with that of the chief executive. We can take a roll call vote and those that want the election will vote “aye” and those that don’t want election will vote TAVARES: I have a lot to say about this but k’s ten “no.” One side or the other will rapidly analyze to see o’clock. I think we ought to defer this until tomorrow. whether or not they’ve got the winning vote. And then There’s going to be a great deal of argument on this. I several of us will stand up and we’ll change our votes in don’t think this ought to be - - order to be able to reconsider. So k’s perfectly all right, KING: I feel that we should go on as long as we can. We there’s no harm done. It still can be reconsidered tomorrow. are just falling behind. We haven’t finished the report of It will be. So I think we’ll take roll call on the thing and we’ll the Committee on Taxation and Finance and if this carries watch the vote, we’ll change, and then we can have reconsider over to tomorrow and we have Agriculture coming up to ation. But we won’t dispose of it tonight. That’s all right. morrow, let’s go on at least to half past ten. Let’s have the roll call and let’s get the vote. TAVARES: I move to defer further action on thin pro SAKAKIHARA: Let’s have roll call. posal and to take up the next proposal that the delegate has CHAIRMAN: The motion before the house is a motion to just mentioned, the next amendment on this. defer. All those in favor of deferring this section will say CHAIRMAN: I beg your pardon, Delegate Tavares, what “aye.” All those opposed. The Chair will ask for, a standing was your motion? vote. Is a standing vote satisfactory? TAVARES: Well, go on to the next one then, Mr. Chair- DELEGATES: Roll call. man. CHAIRMAN: How many want roll call? Roll call is CHAIRMAN: The next what? called. The motion before the house is a motion to defer. TAVARES: Paragraph. ROBERTS: May I speak to that question before we vote? CHAIRMAN: Is that a motion? CHAIRMAN: I don’t think k’s proper to speak to it at this time. It’s already - - the vote has been called in one instance. HEEN: The motion, as I understand it, was to defer This is just a case of dividing the house to see whether the further consideration of the second paragraph at this time, motion shall carry or fail. Will the Clerk please call the until some later time. I second that motion. roll? 322 EXECUTIVE POWERS AND FUNCTIONS LOPER: What are we voting on? paragraph before us as written. Is there any further dis cussion on that paragraph? Delegate Fong, that means that CHAIRMAN: The motion before the house is whether your amendment is washed out by the withdrawal of the amend or not paragraph three shall be deferred or not. Paragraph ment which you amended. two, I’m sorry. FONG: Under those circumstances I would like to renew APOLIONA: In substance the motion before the Commit my amendment. tee now is whether the attorney general shall be elected. CHAIRMAN: You may proceed. CHAIRMAN: In substance, the motion before the Com mittee is whether this paragraph shall be deferred or not. FONG: Put in a comma after the word “governor.” DELEGATE: Take it easy, take it easy. CROSSLEY: Has the gentleman from the fifth yielded the floor? I have an amendment. CHAIRMAN: The Chair will not recognize any more speakers. The Clerk will call the roll. CHAIRMAN: He wants to state his amendment. Delegate Fong, is your amendment of this morning the same as the Ayes, 27. Noes, 23 (Akau, Ashford, Doi, Fong, Fukushi one of last night? ma, Ihara, Kage, Kam, Kanemaru, Kauhane, Lai, Luiz, Lyman, Mau, Nielsen, Noda, Sakakihara, Serizawa, Shimamura, St. FONG: I have it now. “Excepting, however, that the Sure, J. Trask, Yamamoto, Yamauchi). Not voting, 13 (Ara attorney general shall be elected by the legally qualified shiro, Gilliland, Holroyde, Kawahara, Kido, Lee, Mizuha, voters of this State at the same general election as the gov Phillips, Sakai, Silva, A. Trask, White, Wirtz). ernor and hold office for the same term. He shall be a licensed attorney at law of the State of Hawaii and shall CHAIRMAN: The motion is lost - - the motion to defer possess the qualifications provided in the fourth paragraph is carried. of Section 1 of Article_.” The qualifications which I FONG: I move that we rise and report progress and ask refer to are the qualifications set down for the governor, leave to sit again. that is, he must be 35 years old, a resident, and so forth. I move for the adoption of the amendment. FUKUSHIMA: I second the motion. FUKUSHIMA: I second the motion. CHAIRMAN: U’s been moved and seconded we rise, report progress, ask leave to sit again. All those in favor CHAIRMAN: The amendment has been duly made and say “aye.” Opposed. Carried. seconded. Is there any further discussion on this point? TAVARES: Just one short statement. I should like to JUNE 21, 1950 • Morning Session remind the delegates present that the people of this terri tory through their duly elected legislators have spoken on CHAIRMAN: The Committee of the ~Whole please come this problem as far as the City and County of Honolulu is to order. When we gave up last night, we were on the second concerned. It has been significant to me that in speaking of paragraph of Section 10 of Committee Proposal No. 22. That popular election of officers the delegate who proposes this paragraph was amended first by Delegate Ashford, amended amendment has very carefully refrained from mentioning again by Delegate Fong, then there was a motion to defer the two legal officers of the City and County who, after great which was duly carried. When that motion was carried, deliberation by the legislature, have been made appointive we moved to adjourn. What is the winh of the Convention? because the elective system didn’t work. LOPER: Will you please review for the committee the CHAIRMAN: Any further discussion on the motion? two amendments that have been made to this paragraph? FONG: I’d like to take exception to that remark. We CHAIRMAN: I will attempt to do so. were in Congress before the Congressional Committee of the Senate, the Senate Insular Affairs Committee, and it ASHFORD: Were those amendments made or were they was there that Seth Richardson, who was sent down here to merely offered and under discussion? review the Massie case and to make recommendations to CHAIRMAN: The amendments were moved and seconded. the Senate, spoke to the members of the Insular and Interior Affairs Committee and told them that we were on the verge Your amendment was then amended by Delegate Fong. of being given a commission form of government. And due ASHFORD: Well, I would like to withdraw my amendment, to the fact that we were on the verge of being given a com if that is proper. mission form of government, we were forced to accept the recommendation made by Mr. Seth Richardson, and that was CHAIRMAN: I think the question is whether this matter the only reason why the city and county attorney and public which was deferred last night, is it in order to take it up prosecutor are not elected by the people of the Territory today, Section 10, without any formal motion? The Chair of Hawaii - - by the people of the City and County of Hono understands that is proper. I will recognize Delegate Ash- lulu. If that was so, why wouldn’t the city and county attor ford. ney of Maui or the city and county attorney of Kauai or the ASHFORD: I would like to withdraw my amendment. It city and county attorney of the island of Hawaii, that is the was directed primarily to the attorney general. Upon fur county attorneys of the islands of Hawaii, Maui and Kauai, ther consideration, it seems to me that a weak attorney why aren’t they appointed? The legislature didn’t speak in general is subject always to direction and a strong attorney their behalf because there was no pressure brought upon general if he were dismissed would result in the failure of the legislature to change those officers from elective to re-election of the governor. So it is not quite as serious as appointive offices. But it was due to the fact that pressure I had thought upon my first impulse. was levied on your legislature, pressure was levied to the CHAIRMAN: The Chair would like to state that the with extent that if we did not follow the recommendation of Seth drawal of your amendment would automatically leave the Richardson that we would be given a commission form of JUNE 21, 1950 • Morning Session 323 government, and it was Mr. Seth Richardson who stated the people direct, he may and often will cross swords with that we did not know how close we came to a commission his superior, the governor of the State. In California, form of government. where they have an elective attorney general, there have CROSSLEY: I would like to ask the last speaker when been two very sad illustrations of that point. When Gover that recommendation and report was made, when was it nor Warren was serving in a previous term, the attorney that they were under pressure—1931, 1932? general was a Mr. Kenney of the Democratic Party who immediately used his office as a springboard to run against FONG: 1931 according to - - Governor Warren in the next election. As it happened, he CROSSLEY: Well, what has happened then? I’d like to was defeated. More recently the attorney general, also ask if that was the pressure at that time, that pressure no elected, of the State of California is a gentleman who has longer exists, it hasn’t existed since - - certainly since way refused to cooperate with the governor in order to root out after that time, and why wasn’t the system changed then? If organized crime in California. Those of you who read the it was only done under duress and to accomplish a purpose, current periodicals will read that this gentleman, I’ve which it apparently did accomplish, I don’t argue that with forgotten his name, has pooh-poohed the idea that crime them, but I can’t see why it wasn’t changed then. It’s been exists in California and is almost ready to be indicted as a long time since 1931, nearly twenty years. being hand in glove with the criminals. He is an elected attorney general of the State of California and he’s beyond FONG: Mr. Crossley has been in the legislature. He any control by the governor of California. So, the elective knows how difficult it is to change a bill. Reapportionment system hasn’t worked too well. has been with us for 50 years and we have tried to change Now, I am sympathetic towards the point that has been reapportionment and we haven’t been able to succeed yet. made by others, that perhaps we are trying to create a super CHAIRMAN: The Chair would like to say that we intend man out of this governor of the State of Hawaii. nut, I don’t this morning to eliminate the debating society. I would like think that’s true. He has to run for election every four the delegates to say all that they have to say when they get years. He has to answer to the people of Hawaii on the up, so they won’t have to speak more than five or six times. hustings or he won’t be re-elected, and you’re also electing a lieutenant governor. SILVA: Mr. Chairman. Now, there’s another angle. There are two balances to KING: Mr. Chairman. the governor’s powers. First, the legislature. If the legis lature doesn’t give him the money or doesn’t give him the CHAIRMAN: President King. authority to carry out the duties of his office or refuses SILVA: You look me in the eye and recognize somebody him additional grants that would allow him to exercise else. Thank you. powers beyond those granted in the Constitution, he’ll not be able to do very much. We have a very fine illustration of CHAIRMAN: He has been waiting to be recognized. that in recent American history, where there was a Demo KING: I yield to Senator Silva if he wishes to be recog cratic Congress in the last two years of President Hoover’s nized. term and he was unable to do anything for those two years. Every proposal he made was put in the wastepaper basket CHAIRMAN: Delegate Silva. by the Congress, and after he went out of office, we had a SILVA: Thank you, Mr. Chairman. I was just about to Democratic President and a Democratic Congress and every say that I disagree with Mr. Fong in its entirety, as long as thing went through fine. So, I think the legislature is the I remember about county attorneys. We have a county first great brake on the governor. Now, I’m one of those attorney here, former county attorney, the good chairman who believes that the legislature is the senior one of the of this committee, and he’s asked me time and again that three equal branches. There isn’t any question about it, be he thought for the best interest of the counties that all county cause they come direct from the people and they’re re attorneys should be appointed rather than elected. There’s elected every two years and they hold the power of the purse no question - - and I believe there is something to that. Now, strings. So that’s one barrier against the governor’s actions. these county attorneys get elected every two years and there’s The third is the power of the judiciary to find certain no question that they get around. They have to do it other things illegal, not in accordance with statutes or not in wise they just can’t get elected. And just to show you what accordance with the Constitution. kind of good county attorney he is, he was so good in fact So, whoever this governor of Hawaii may be, he’ll not that he tried to do the right thing that he got defeated. So be any superman. We’ve had right here under appointive you can see that the fellow that gets around and makes the power a governor with all the powers that we are proposing most promises gets elected. So I think if you want a good to grant this governor whom we are going to elect and he county attorney, I think he better be appointed rather than hasn’t been any superman. There hasn’t been anything he’s elected, and I think your attorney general of the Territory, been able to do against the wishes of the people and against like the attorney general of the United States, should be the wishes of the legislature. So I think we may disregard appointed rather than elected. That’s my speech and that’s that fear that the State Constitution is clothing one man with all. too much power. On the other hand, if you do not give him KING: I’d like to speak in opposition to the amendment. sufficient power to carry out the duties of his office, he’ll I do so with a certain amount of hesitation. There is always be unable to function properly as the chief executive. So I the imputation that we are speaking here in some antici am opposed to the amendment on that basis. pation of future political fortune. That certainly is not the basis on which I oppose this particular amendment. CHAIRMAN: Are there any other delegates who wish to We are trying to establish a State Constitution that would speak? have a strong executive and leave that executive with suffi LEE: I am sure that the Chairman didn’t mean fully cient authority to carry on his duties. Now if the govern about cutting off debate on this rather important question. ment attorney general is elected and has a mandate from We’re in the Committee of the Whole and we’re supposed 324 EXECUTIVE POWERS AND FUNCTIONS to probe into all phases on this question so that every dele Now, analyzing these duties, it would seem to me that it gate in this committee would have resolved in his own mind would be incumbent upon all the delegates here to weigh the and conscience how he wants to vote on this matter. So questions of wherein lies the duty of the attorney general of that cutting off the “debating society” I am sure was meant the State of Hawaii. Where is it to be, to the executive branch in a humorous light rather than in a serious light. of the government or is it to the people in general? In my mind I came here to this Convention with an open mind CHAIRMAN: May the Chair state he, the Chair, is on this question and as a lawyer would have felt that the sympathetic with the point raised. However, my point was attorney general as an advisor to the governor should be we wanted to give everyone a chance to speak. appointed and confirmed by the Senate. However, I came here this morning, and realizing that there was some ques LEE: The first question that comes to my mind would tion on it, asked to look into the problem from its inception be to ask, what are the duties of an attorney general of the and find and come to this conclusion right at this moment, new State, and in checking the Revised Laws of the Territory— when I’ve read this matter, that his duty is not only to ad I’m sorry I wasn’t here last night, I’m not sure whether it vise the governor but his duty is first and last to the people was read last night—in Section 1501 of the Revised Laws, it of this Territory, of this new State. I can see a situation states the duties of the attorney general under Chapter 22. where the legislature and the governor may be in conflict Let us analyze it then. “The attorney general shall appear as to a policy. If he is appointed by the governor, would not f or the Territory personally or by deputy in all the courts his loyalty tend by human nature to favor the person who of record, in all cases criminal or civil in which the Terri he appointed - - who appointed him? tory may be a party, or be interested, and may in like man Furthermore, it is in cases of conflict that we must test ner appear in the district courts in such cases.” We may this question of whether or not he should be appointed or assume safely from that languaage that it has no connection elected. And as I said, when I first came to this Convention, with the office of the governor. my opinion was that the attorney general should be appointed “Section 1502. Prosecutes offenders, enforces bonds.” by the governor and confirmed by the Senate. As these ques The language reveals that he has the duty to be vigilant in tions arise, if the answer to my question is that the attorney detecting offenders against the laws of the Territory and general is responsible to the people and not to one branch of prosecute the same with due diligence, and the matter of the government, then I say that he should be elected. Unless enforcing bonds. These are two duties that are placed upon I can be shown good cause otherwise this morning, it would the attorney general for which he would be responsible re seem to me that looking at this question from a de novo gardless of whether or not he was appointed by the governor basis, the attorney general should be elected. I point to or elected by the people. these duties of the attorney general, and weighing the ad “Section 1503. Gives opinions. He shall, when required, vantages as well as the disadvantages of appointment and give his opinions upon questions of law submitted to him by the elective system and come to this conclusion. the governor, the legislature, or the head of any department.” What is then the danger under which an attorney general These duties, it would seem to me, would have some connec would be placed in if he were elected. The dangers would tion with the governor’s office, certainly a strong governor be that he would be just like any other politician, so to under an appointive system. I’m speaking of the possible speak. Well, you mean just like the governor? The gover disadvantage it would be to make a stooge out of the attorney nor is elected. Where the judiciary might be well construed general. In other words, a strong governor could have an to be different from the attorney general because the judiciary attorney general render an opinion according to the policies interprets the laws and takes into consideration not only a that he desires. I believe the late President Franklin Delano conflict between the legislative branch of the government, Roosevelt was accused of that as well as many other presi but also the executive branch of the government, I could see dents. However, the duties of the attorney general in giving well a distinction between the appointment of the judiciary as opinions includes, besides giving opinions to the governor, compared to the appointment of the attorney general. And, his duty includes giving opinions to the legislature as well therefore, I would like to hear full debate on this matter, if as to all heads of the departments. that matter has not been fully debated before, and that’s why The other, “Section 1504. Advises public officers. He I say that it seems to me, on such an important question as shall, without charge, at all times when called upon, give this, we should not try to close debate on this matter. advice and counsel to the heads of departments, the high sheriff, magistrates and other public officers” et cetera. A. TRASK: I am wrestling with my soul on this question Well, that’s part of his duties which would relate, it seems like the rest of the delegates here, but I cannot help but feel to me, to the executive branch of the government. that the relationship of client and attorney is a privileged Section 1505 relates to giving aid to the poor. In other one. What is said between a client and an attorney is a words, besides acting as the so-called legal advisor of the sacred confessional matter, privileged in the law, and no governor, legislature and heads of the departments, he one can give evidence if they do not care to do so. Of course, owes a duty beyond that, his duty goes right to the heart that’s in private conference of a private nature between a of aiding the citizenry who cannot afford legal counsel. client and his attorney. And Section 1506 relates to “No fee, not to act as attor Let’s move it into the realm of public affairs. We’re ney. He shall not receive any fee or reward from or in still concerned, however, with the question of a philosophy. behalf of any person or prosecutor, for services rendered When a political party is moved into office, it is moved into in a prosecution of his business . . . nor be concerned as office because it has put forth to the people a program which counsel or attorney for either party in any civil action the people have adopted, adopted for that particular time to depending upon the same state of facts.” solve certain problems that confront the people. The ques Then 1507 relating to accounting of money which comes tion is, therefore, should there be an election in Hawaii by through his hands; the next one relates to his salary; then a group, by a party which advocates even as severe a thing the next section relates to the attorney general and his as the breaking up of the Bishop Estate. Do you think for assistants and his power of removal of his assistants and one moment a program such as that advocated by a governor the using of his seal. could have elected an attorney general who would be opposed JUNE 21, 1950 • Morning Session 325 to that? Would not the will of the people be frustrated the President’s program cannot be carried out without the when you elect a governor to make more lands available to legislative kokua. That is the answer to that. break up existing situations here if it’s deemed advisable. I’m not saying I’m for breaking up the Bishop Estate, but KING: Will Delegate Lee yield for a question? that is a stark problem. It is a problem. It is in the think LEE: I certainly will yield. ing of all of us here. What shall we do, because the problem is here. KING: Isn’t it a fact that within the recent past several Now, pursuing that thought for a moment. It would be un years the legislature has invariably employed very high fair, it seems to me altogether, to have a legal advisor class counsel in addition to the attorney general to help elected who would be opposed to the program of the governor. them draft legislation and advise them as to the legal angles There is a confidential nature of a public character, however, involved? whereby to put a program into effect you must have legal LEE: That is correct, Mr. King. The duties of the legal advice from a person who is sympathetic to that particular counsel to the respective houses is to advise the respective philosophy. And it is not a trivial matter. Just imagine, for houses as to the constitutionality of any legislation, as well instance, when this country in 1933 in the direful condition as to draft bills for the respective legislators. On the other of poverty, when people were hanging sheriffs, threatening hand there, they might well - - the/advice of the counsel for judges, turning over milk wagons, people lining up outside the respective houses might well conflict with the opinions of restaurant doors ready to dig into the garbage for food. of the attorney general, as we all know from this Convention Those were the conditions in America in 1933 because I was that lawyers are quite often in disagreement as to the consti back there in the East. I was in Havana when Roosevelt was tutionality of certain laws as well as to their respective shot at and Cermak of Chicago died. It’s a real situation policies. and the problem can very well arise when the two parties It seems to me we must weigh the final question as to have programs so divergent in viewpoints that upon the elec where the responsibility of the attorney general lies. That tion of an attorney general advocating such a program would is where I have been trying to reach a conclusion in my own determine the welfare of the people. mind and it seems to me that not only from the statute but It would seem to me, therefore, consistent even with the from the inherent duties of the office of the attorney general, provisions that the delegate from the fourth district has it goes beyond his responsibility to the governor, his res cited, namely, Chapter 22, the powers of the attorney gener ponsibility to the legislature and to the people. That is the al. They are not extraordinary powers. They are powers thing that confronts me at this particular moment; and as that are usual to any attorney general, namely the enforce I say, I have an open mind on this matter and I can see ment of the law. He is the civil and he is the criminal where there would be good reason for either system. prosecutor, he must uphold the law. That is nothing extra ordinary at all. That is his usual, traditional duties. But CROSSLEY: Mr. Chairman, may I ask a question of the what we’re concerned, and we are primarily concerned with last speaker? Not only is it — — isn’t it true that the legis is drafting a convenant for the people which will promote lature has employed counsel, their own, but isn’t it incum assiduously the program and welfare of the people. And bent upon the governor to file certain administrative bills, since we are an organization, a society that goes from time and doesn’t he have to look to the attorney general to do that to time with changing views as to politics and to welfare, we job for him? That’s part one of the question. Part two of must have a person learned in the law who will advocate the the question would go to the fact that the governor is respon program which the people have voted for. So, I cannot help sible for the execution of the laws of the state and the gover but feel strongly, I am quite torn in soul about negativing an nor doesn’t go into court, the attorney general goes into the election to office of a public person. I think everybody - - court as the agent of the governor, and, therefore, has a I believe sincerely in elective offices as much as possible, direct responsibility to the executive branch. Aren’t both but I cannot help but feel that with experience back of us of those questions true? we must have as near as possible a confidential relationship between the governor and his attorney general who will LEE: I believe the speaker has just answered his own support his, the governor’s program. questions. LEE: A point of - - question. Will the speaker yield to FUKUSHIMA: After listening to my fellow colleague from a question? the fifth dintrict, all I can say about his remarks here this CHAIRMAN: State the question, please. morning is that the attorney general should be the tool of the governor and nothing else. LEE: Now, the duties of the attorney general is also to I’d like to supplement Delegate Lee’s remarks this - -from the attorney-client basis, would also go to the morning so that the delegates will have in their minds the legislature, wouldn’t it? nature of the duties of the attorney general besides those A. TRASK: Yes. that were mentioned by Delegate Lee. Among other duties LEE: Now, let us hypothesize a situation where the pro that were mentioned, the attorney general possesses super gram of the legislature may conflict with the program of visory powers over the estates of lunatics; he institutes the governor. Is it your opinion that in the enforcement of’ disbarment proceedings against attorneys; he institutes quo that program of the governor’s that the attorney general warranto proceedings against public officers and corpora must render his opinions in the light of that program of tions; he exercises the right of enforcing public charities; the governor as compared with the program of the legis he institutes equitable proceedings for the abatement of lature? public nuisances; and also intervenes in divorce proceedings where collusion is suspected. These are the many powers - - A. TRASK: Well, I cannot conceive of a situation where in fact there are many other inherent powers reposed in the a program of the governor can be carried through without attorney general. The function as being an advisor to the the kokua of the legislature. In other words, as the dele governor is one of the minor items as far as the attorney gate - - as President King has indicated, the governor’s or general is concerned. I’d like the delegates to bear that in 326 EXECUTIVE POWERS AND FUNCTIONS mind when the delegates here speak of a strong executive to appoint people who are older and more conservative. And department. I think in the position of the attorney general you want some body with a lot of fire, and that’s what we want. We want some H. RICE: It seems to me that the outer islands would be younger and more aggressive element in the department. best served by an appointed attorney general. The attorney By election of more of our public officials, I think we’ll general, if he was to run for office don’t need to bother with create more interest in our executive department by the the other islands at all. You’d have 70 per cent of the votes people. Right now our governor and secretary of Hawaii is here. It seems to me that the way it’s worked at the present appointed by the President of the United States; naturally time with the governor appointing the attorney general and the people here would not have as much interest as we would the Senate confirming him, he looks to the interests of the if we have our governor, lieutenant governor and attorney other outer islands just as much as he does to Oahu. And general elected by the people. I think the scheme of appointing the attorney general is to the benefit of the outer islands. And the fellow that we would NIELSEN: I want to speak in favor of the amendment want to elect is the governor, he’s the boss and he should because I have had the experience of serving in the last two appoint the attorney general with the advice and consent of sessions of the legislature, and I’m sorry there’s not more the Senate, and therefore, I’m against the election of the people here that had that experience. attorney general. Now you take this loitering law. That’s just one instance and I can name several. There was no question the attorney DOWSON: If a person seeks legal counsel he can choose general agreed with the governor and also with the majority his own attorney. The attorney general is the legal advisor of the two houses. When the question was put to him directly, of the governor and the department heads of the State. I “Will this be constitutional?” he said, “Yes, it will be.” The believe the governor should be given the freedom to choose Supreme Court just two or three weeks ago ruled that it was his attorney general for his legal advisor. unconstitutional. Now, there is no question but it was sub LAI: I am speaking in favor of the motion. I am speak servience. I feel that if we elect our attorney general then ing for myself as a lay citizen and speaking for thousands he will represent the people. I’m going to continue to feel of citizens in this Territory who might have the same idea that we should elect more officials, and possibly when we as I do. When we go to the polls to elect our public officials, get down to dog catcher, we may elect one. we elect our legislators and say to them, “Get in there and set up the policies that are for the benefit of all of us.” MAU: I can’t help but refer to a statement made by the When we elect our executive officials we say to them, “Get delegate from the fourth district when he was outlining the in there and see that the policies are carried out.” Now, duties of the attorney general. He said that even here so it would be a foolish thing for me to say, “You, too, get in many of the lawyers were in disagreement on so many ques there and appoint your own attorney general and watch tions. I would like to remark that that is one of the reasons yourself.” And I think as a citizen and as a voter we are all why we have traveled at a snail’s pace, because of so many in favor of voting for an attorney general. We say to the disagreements and because each of the lawyers has attempted attorney general, “You get in there and watch and see that to impress upon the Convention his own viewpoint in the the policies are carried out.” The attorney general should matter. be independent and free to report to the people of any wrong On this question, I believe that two philosophies of govern doing on any part of the government. He will seive as a ment are involved. On the one hand, the philosophy of Alex check and balance in the three departments. ander Hamilton. He believed that government should be run The opponents have claimed that a strong executive would by the educated people, by the intelligentia. He also believed be the thing for us to have here, and by appointing an attor that even as to the electorate, only those who owned property ney general we would have a strong executive. I don’t think should vote. He felt it was dangerous to give any powers at I agree to that because by having an elective attorney general, all to the people. On the other hand, Jefferson believed that he would serve - - he would keep the executive efficiency in the government belonged to the people, that the people should the highest level because of possible criticism from the have more to say in who should run and how their govern attorney general. And by having appointive - - more appoin ment should be run. I recall the other day that our distin tive officials in the executive department, the governor can guished delegate from the fourth district, a former attorney create more patronage jobs., appoint people that are not general, Delegate Anthony, remarked that Jefferson believed capable of filling the position. that every so often there should be a revolution in the country Now the opponents also claim that by electing the attorney so that there’d be progress. I’m surprised that nobody has general you would create competition within the executive dubbed him a “Red” for that statement. But that is true. department. I think that’s a very healthy position, because That was Jefferson’s feelings. He felt that every so often in manufacturing of merchandise if you have competition, we should search our souls and see where we’re going be you get better products; and in merchandising if you have cause only through that can you have progress. competition, you get lower prices; and in sports if you I imagine that the same argument will be made this have more teams, and better teams, that will give you morning as was made in prior sessions when we debated the better games. And the same thing with government depart question of election of the judiciary and of the post auditor, ments. If you have more elective officials you get better so he was called, and that argument is this. We are still running of government. giving the people the right to run the government because I don’t agree with Mr. Rice, saying that 70 per cent of we permit the people to elect the governor, and the governor, Honolulu votes here will elect the attorney general. I think being the representative of the people, will select all the you need more than that. When you have candidates, say boards and the commissions. He will also select his own three or four candidates, you certainly have to depend on attorney general. So that to a certain extent that argument votes from outside islands. is true, that the people still have a say, but only indirectly. By having the election of the attorney general, you will Why should we have direct government by the people? Why have more aggressive and younger candidates to run. By should we have the people - - give the people the right to appointment, you will note that the governor has a tendency elect those who shall run their government for them, a direct JUNE 21, 1950 • Morning Session 327 say by the ballot box? I see no objection to that. If there are know who is to blame. If the governor can blame the attor two conflicting philosophies in government, I certainly ney general or the attorney general blame the governor, it wouldn’t follow Alexander Hamilton. Jefferson is the man seems to me they have less representative government. It even today, the man of the hour for democracy. And I ask seems to me we’ve all of us shown we’re interested in the that all those who believe in popular government, in demo people, but some of us believe that the people will get cratic government, give thought to these things that I have better service by the appointive system than the elective mentioned. system. And it seems to me that’s the problem we’ve got, and I’m sure we have all of us thought about it for several TAVARES: I will try to be brief. I want to say this in months, and I’d just like to gently suggest to the orators my last talk, I hope, onthis~matter. I have held every job the old adage, “After the first five minutes, no opinion is in that attorney general’s office from the lowest to the changed.” highest, over a period with some spaces in between from 1927 to date. I have worked under four or five attorneys CHAIRMAN: If there’s no question, we’ll vote on the general and under four governors, and it is my opinion amendment. that the system of appointment has not prevented the FUKUSHIMA: I’d like to correct a statement just made attorneys general and their deputies from doing their duty by the delegate from the fourth district, saying that if an when they were asked by the governor whether they could attorney general runs for an election he may be obligated dr could not do a thing. If you will look at the opinions of simply because a fellow gives him a thousand dollars, and the attorneys general, you will find them replete with he gets in trouble and he comes to the attorney general and opinions that the governor can’t do this or some officer says, “Well, Joe, how about some help now.” I’ll tell this can’t do that. delegation here that the attorney general doesn’t handle One of my first jobs, and I was hardly dry behind the criminal cases. If he does, it may be one in ten thousand. ears as the lowest deputy in that office, was to tell Gover It’s seldom that he does under the system that we have in nor Farrington—and he was very angry at me for doing the territory now, and under the system that you find in the it—that he couldn’t veto a part of an item of an appropria states. He may be the chief law enforcement officer, but the tion bill, and I had to sit there for fifteen minutes and have actual prosecution is doled out to the prosecutors of the him bawl me out for telling him he couldn’t do it, but we counties. The attorney general doesn’t go to court and stuck to it because tj~at was the law. prosecute. It’s very seldom that he does. My opinion is that if you will look, around and ask your attorneys when they start in what job they’d like to hold ANTHONY: I’d like to have an explanation to this ques in this Territory best, they want to hold a deputy-ship in tion from the chairman of the committee. What has been the attorney general’s office. Why? Because the prestige the result of the experience of the elective system that has of that office, as it has been administered over the last prevailed generally throughout the states? Did the commit fifty years, is high enough so that they want to be - - they tee discuss that and have any views on that question? want the prestige of having been a deputy. And I say to OKINO: The committee did not make a research to that you, if you will look at the list of your supreme court extent. justices and other-lawyers today, you will find that they are among many of the leading lawyers of today, the men CHAIRMAN: The question - - Are you through with your who were in that office, all the way from Harry Irwin in question, Delegate Anthony? Hilo down to other people here. I say the system of appoint ANTHONY: I got the answer. I’d like to address the ment has produced very fine lawyers and that their opinions Convention. and the advice they have given the governor has been, in my opinion, outstanding. CHAIRMAN: You may. I feel that there has been very little of this weakness ANTHONY: I came to this Convention committed to the that people talk about they fear from because the governor idea that we should have a strong executive who should might appoint the attorney general. I feel that those weak appoint such officers as the attorney general. The way the nesses will be just as great, if not greater, from an elective Convention is shaping up, we are depositing more and more attorney general. What is an elective attorney general going power in the governor, and so I have a good deal of sympathy to do when a whole lot of cohorts out there have lent him with what has been said here this morning. I want to remind money or put up money for his campaign and then they get the Convention that the attorney general is the chief law into trouble and the come and ask him, “Now look, Joe, officer of the State. He’s not the private attorney for the ~ gave you a thousand dollars for your campaign, how about governor. He advises all branches of the government. In letting me off.” The instances are even greater against his fact, he even will act at the request of the Supreme Court, doing his duty where he has to run for election. And suppose that’s part of his job, to bring up proceeding at their instance. just before election when he has to run again, there is pre So I say there is a good deal to be said for an elective sys sented a case which could be sensational, but he knows in his tem. heart that there’s nothing to it. Isn’t he going to be tempted But turning the thing over in my own mind, I have finally to bring a suit for the sensation to get himself elected? The reached the conclusion, despite these arguments, that it emotional conflicts which are raised by the elective system would be a rather impossible situation for the chief execu are g~eat enough to offset all of the disadvantages that I have tive to endeavor to carry out his program if he had an heard against the appointive system. elected attorney general and who was not in sympathy with the governor’s program. Now if there is a division between LARSEN: I would just like to keep the record straight. the attorney general and the governor, then any attorney I’ve heard constantly this idea that if you believe in the general who is worth his salt would resign the office, tell appointive system, you don’t believe in popular government. the governor to go ahead and get somebody else. That would It seems to me we should straighten it to the fact. The ap be a public fact of great notoriety. pointive system gives people more justice because respon One other word. We’ve had a pretty good record in our sibility is fixed and when something goes wrong, the people attorney general’s office, beginning with John Ricord, such 328 EXECUTIVE POWERS AND FUNCTIONS persons like W. 0. Smith, Emil C. Peters, S. B. Kemp. you weaken it to the place where it cannot do the job that We’ve had a pretty good record in the office. I think, by and it’s supposed to do under the our American form of govern large, the history of the office warrants the continuance of ment. Those of us who supported the retention by the legis the present system. lature of its right to appropriate money and its responsibi lity for raising taxes to cover such appropriations indicated MAU: Point of information. I wonder if the chairman of by that that we believed in the people because the people the committee can tell the Convention how many states elect elect the legislators. I shall vote for the appointment, but their attorney general. I do not think that that implie~ any lack of confidence in the OKINO: I believe there are about 45 states. people. MAU: Forty-five? OKINO: When Delegate Anthon3i interposed that question OKINO: Yes. It’s on page - - you can refer to your to me as the committee chairman, I gave him a very simple Manual. and brief reply, thinking that it would answer his question. I should like to give an explanation on that point. I do not MAU: Thank you very much. want the delegates to feel that your committee simply de ARASHIRO: As I sit here and listen to the arguments I cided at one meeting whether or not the attorney general am getting more confused, and I’m going to be pretty popu of the future State of Hawaii is to be appointed or elected. lar kanaluaing. We had about - - at least three meetings debating on this Now, we have two factions here, who are one for the particular question. The majority of your committee mem appointive system and one for the elective system. The bers, after considering this problem which is now before appointive system to me has reasoned it out to the extent you for at least three or four meetings, and each meeting of drawing a line in trying to get efficient offices created took about an hour and a half, agreed that the attorney either by the elective or the appointive system, whichever general should be appointed by the governor of the State of Hawaii, subject to the confirmation of the Senate. Accord they feel is the most efficient method of creating that office. ingly, the committee proposal did not specifically enumerate Now, the elective group tells me that under the elective the clause that the attorney general shall be an elective system you can elect the people that the people want, and furthermore, they believe in the principle of not taking away officer. The committee felt that following the general language as set forth in Section 10, paragraphs one and two the right of the people to elect the people that they want. would suffice, would indicate that the attorne~ general We are coming to a stage to me, as they have presented to should be appointed by the governor subject to the confir me, that we cannot delegate any authority to anybody. If that is so, then I am assuming that we must elect our jani mation of the Senate. tors and right down the line, elect our school teachers and SMITH: I just want to make one point clear. I have been elect all people in government positions because we cannot for years fighting for good government in my own commu delegate any authority to anybody, to appoint anybody. nity and basically that was one of the reasons why I got But now, I want to sit here a little longer, and I still want elected as a delegate to this Convention. to hear more argument. That is, if under the appointive Now, I want to state one thing. You’ve been hearing a system, what are the abuses and what are the faults. Under lot about popular government. The popular government the elective system, what can be the danger if we should of our country is a representative government. We are initiate the elective system. based - - have a two-party system which we all enjoy. There are other factions, but mainly it’s two-party. Those two DOl: From the very excellent analysis of the duties of the parties are the ones that actually run the government for attorney general given this morning I gather that much of the duty of the attorney general concerns subjects other than the people. And I object thoroughly to the insinuations, in fact everything when individuals have come up and made being a legal advisor to the governor. Such being the case, statements to the fact that we are not for the people when I think the governor should remain independent of the - - the we vote for appointment. There was a chance here, a couple attorney general should remain independent of the governor of chances where individuals were able to get up and say, as well as the legislative branch. I think it’s a simple “Do you trust the people? Will you be able to look them in matter to allow the governor to appoint his own legal advisor the eye?” and when certain instanoes came up where they and set the attorney general’s department independent of both actually, under good American government, had the oppor the executive and the legislative. An attorney, I believe — tunity, there was no noise whatsoever. if I may say—is not under legal ethics to serve conflicting Now in a two-party system, you either are Republican or interests. We are, by appointing the attorney general’ and you are Democrat. When the people vote for their repre assigning the same duties as we know them to exist with sentatives, there is a platform or principles which are the attorney general, placing him, as pointed out this s followed. Irrespective whether I or any other one likes a morning, in a position where he has conflicting duties, con certain party, the popular vote of the representatives shows flicting duties in a sense that he owes not oaly duties to the inclination of the trend of thought in the community and the executive, but also the legislative branch. Also he owes they in turn will vote for that principle which they hope the duty to the people which conflicts with the executive as well representatives will lead them. Now in order to go ahead as the legislative. Therefore, I believe we should elect the and give the representatives complete free wheel to carry attorney general. out that proposition, they have to go ahead and have people LOPER: I don’t like the implication that those who vote behind them. You cannot go ahead and have factions digging for the appointment of the attorney general don’t believe in from the side, knocking down that policy. The opportunity the people. We have a typically American attitude against for the people in voting for representatives of the people to the all-powerful state, and for that reason we have a sepa knock down any policy is just what is happening and has ration of powers between the executive, the legislative and happened in the past 150 years. If they don’t like the princi the judicial. But I don’t think that it should go as far as pies and policies of a party and they think they should be separation of powers within the executive branch itself or checked, they knock ‘em out. The same way we have been JUNE 21, 1950 • Morning Session 329 voting for supervisors or senators. if we don’t like their can we find the solutions to these doubts? I have purposely policies, then we kick them out. But we’re going to be going not gone to any of the attorney generals of the Territory of one step further down here in Hawaii, and I know that it’s Hawaii because they have been all appointed, but I have gone hard for a lot of us, even me as a layman, to imagine what to the next class of people, your city and county attorneys, is going to come up in the future. But, there’s one thing, to ask for their advice. We say that experience is the best the governor has to be impartial if he wants to stay in. He teacher. I have gone to these men who have had experience has to have free reign, and I don’t believe that in electing in being elected to office and to others who have been ap the attorney general that he will be given that absolute free pointed to office. And those who have been elected to office reign. have said to me, “Doe, if I am going to be elected again, Thank you. you can have the job.” So, therefore, my mind is set that SERIZAWA: As a layman I have listened to the arguments I will oppose the amendment. brought forth by both the opponents and proponents of the election of the attorney general, and it seems to me that the NIELSEN: I think there’s one thing that we certainly opponents have emphasized the fact that the governor, or should not overlook, that we’re not referring to the United the administration’s policy, will be greatly hampered if the States, we’re referring to the sovereign states, of which attorney general is not appointed. I heartily concur with we intend to become one. if forty-five of those, or 93 per some previous speaker who has said that if the governor cent of them elect their attorney general, then we cannot wants a legal advisor he should get a private legal advisor. say that they all elect poor attorney generals. I think that Now the question that I have in my mind is, is the attorney certainly forty-five out of the forty-eight electing proves general a legal advisor or private legal advisor of the gover that that’s the policy we should follow, and that certainly nor? I believe the delegate from Oahu, Delegate Lee, has is a large majority and we’ll be right with the rest of them stated in his enumeration of the duties of the attorney if we do. general that the attorney general is responsible also for - - CHAIRMAN: The Chair would like to say that the ques or responsible to the people also, besides the governor, and tion of the number of states has been pretty well discussed also the legislature. I was more or less kanalua up to this last night and today. Do you wish to speak to that point? time, but now I am beginning to favor election and I will support the amendment. SMITH: I just wanted to ask the last speaker a question. New Jersey was the state that just had their Constitution LAI: I just want to clarify a point that was brought up amended, and so forth. They are appointed, arent’ they? by several speakers. The point was in electing the attorney general there would be the danger of the attorney general NIELSEN: They are appointed, but that doesn’t mean that opposing the project of the governor. I don’t think I agree if all the other states had Constitutional Conventions, they’d to that. if the projects of the governor are good, it would throw out the elective system. No one can kid me in that be foolish for the attorney general to oppose that, and if respect. the projects are not good and not for the benefit of the people, I think it’s a wise thing for the attorney general to HOLROYDE: I would just like to draw attention to the oppose. delegates here the committee report, page 3, the last para graph: CHAIRMAN: The Chair would like very much to put the question. There have been 20 speakers. In a majority of states today, the governor shares his executive authority with five or six other constitutional KAWAHARA: In voting on this amendment I suppose we officers for whose actions he is generally held publicly are going to vote on the basis of the arguments presented responsible, but over whom he has little control because on the floor so far. In looking over the material in this they are either elected by popular vote or by the legisla Legislative Reference Bureau Manual I find that in the great ture. In the early 1920’s leaders in many states realized State of Alabama the governor is elected, the lieutenant that state administrations were badly organized and could governor is elected, the state auditor is elected, the secre not cope with growing state problems. As a consequence, tary of state is elected, state treasurer is elected, superin reorganization plans were widely adopted. New Jersey, tendent of education is elected, commissioner of agriculture New York, and Virginia are the principle examples of and industry is elected, and the attorney general is also states which ratified constitutional amendments needed elected. In the State of Arizona the governor is elected, the to eliminate the long ballot of elected officials and open secretary of state elected, state auditor elected, treasurer the way for statewide reorganization. elected, superintendent of public instruction elected, and the The last sentence, attorney general is also elected. In forty-five of the states, the attorney general is elected. Four states, Massachusetts, Your committee, following the trend, agreed that in the New Hampshire, New Jersey, Pennsylvania, appoint the executive branch, there should be only two elected attorney general. On that basis, I think perhaps we are officials, namely, the governor and the lieutenant gover following some precedent by following these forty-five states nor. in electing our attorney general. FONG: May I ask the gentleman a question? CHAIRMAN: The question before the house is the amend CHAIRMAN: You may. ment proposed by Delegate Fong. I believe that you’re all - - FONG: From what political treatise are you reading APOLIONA: I have sat down here this morning and from? listened to the arguments pro and con for the election sys tem. I have said last night that my mind was still open. HOLRO’YDE: I’m reading from the report of the commit Besides listening to the debate on the question, I have gone tee. That question should be addressed to the committee to the source of the question debated. When we are in doubt, chairman. we try to find the possible solutions to our doubts, and where OKINO: Page 3 of the committee report, last paragraph. 330 EXECUTIVE POWERS AND FUNCTIONS HEEN: In considering the functions of the attorney CHAIRMAN: Will the Committee of the Whole please general, if you will look at the statute, those functions are come to order. The Chair would like to express appreciation in the way of duties. It says that he shall do this. He shall of the committee in the debate on the last amendment. There advise the governor, the legislature, and heads of depart were twenty-seven delegates who spoke a total of forty-three ments. They are all duties. And he is not a policy making times. However, very few spoke more than twice, the major official. We have to keep that in mind. When they speak ity spoke once, and I appreciate your consideration very about conflicts between the legislature today and the gover much. nor, what are those conflicts? The conflicts can only apply The motion before the house is the adoption of paragraph to the legal aspects with reference to any statutory enactments three as written, all amendments having been defeated. made. The legislature might say that, “We feel that this Paragraph two? I’ll number my paragraphs. special enactment is valid and constitutional.” The Governor LOPER: There is one minor correction, I believe, that will say, “I don’t know whether it’s so or not.” The practice should be made in the middle of that paragraph. It’s in line is for the governor to send over to the attorney general’s four where it says “unless otherwise provided by law.” I office every enactment made by the legislature. Then the think it should read, “unless otherwise provided herein or attorney general advises whether or not such an enactment by law.” I would, therefore, move an amendment to insert is valid or invalid. Whether it suggests one side or the two words “herein or,” between “provided” and “by.” other makes no difference so far as the attorney general is concerned. I want to repeat that he is not a policy making CHAIRMAN: We’re discussing Section 10, paragraph two official. of Section 10. PORTEUS: This has been a good firecracker bill. And DELEGATE: Second that motion. now rather than asking for the previous question, I wonder CHAIRMAN: The amendment has been moved to para if we could do it - - I’d like to do it indirectly by asking for graph two of Section 10 to include - - a roll call vote at this time. LOPER: I think perhaps better language would be, “other SAKAKIHARA: Addressing to the motion - - in favor of wise provided in this Constitution or by law.” But perhaps the motion, I wish to state that those who will vote “no” against that could be left to the Style Committee. the motion will vote for a commission form of government and those who will vote “aye” will vote for the people’s govern OKINO: I should like to call the attention of Delegate ment. Loper that that is an exact reproduction of the language as it appears in paragraph two, Article 4, New Jersey Consti SILVA: That’s not true. - tution. We have considered that, I believe. CHAIRMAN: The Chair is ready to put the question. LOPER: There is in this Constitution in sections already SHIMAMURA: May I state that I take exception to the tentatively adopted provisions other than those stated here, implication contained in the statement of one of the previous that is, the head of each principal depa:etment shall be a single speakers that an election of the attorney general means the executive unless otherwise provided by law. We have pro surrender or in effect the abrogation of the representative vided in this Constitution otherwise and it should be covered. government. I believe that the chief legal officer of the CHAIRMAN: Is there any further discussion of that State of Hawaii should be elected because we believe in re amendment? presentative government, that the people choose their chief legal officer as their legal representative. And I think we CROSSLEY: I have an amendment to the second paragraph are imposing too much power in the chief executive. of Section 10 and to the third paragraph. I’ve had my amend ment distributed. It’s the amendment which says “Amend CHAIRMAN: I believe any further expressions can be ment to Committee Proposal No. 22, amending Section 10, made by ballot. Roll call has been asked. I believe there paragraphs 2 and 3,” and begins: is sufficient request. The motion before the house is the amendment. Do you wish for me to read the amendment? Each principal department shall be under the super vision of the governor. The head of each principal de DELEGATE: No. partment shall be a single executive who shall be appoint CHAIRMAN: There are no calls for the amendment. I ed by the governor, subject to the confirmation of the think it’s clear enough. The Clerk will please call the roll. Senate, and who shall serve at the pleasure of the gover Use the mike, please. nor. For each principal department there hhall be an Ayes, 25. Noes, 35 (Anthony, Apoliona, Ashford, Castro, advisory board, consisting of such members as may be Cockett, Corbett, Crossley, Dowson, Fukushima, Hayes, provided by law. Heen, Holroyde, Kage, Kawakami, Kellerman, Larsen, Loper, Whenever the law provides for the adjudication of Lyman, Ohrt, Okino, Porteus, C. Rice, H. Rice, Richards, private rights, duties or privileges by any principal Roberts, Sakai, Silva, Smith, Tavares, A. rrask, White, department, there shall be established by law an adminis Wist, Woolaway, King, Bryan.) Absent, 3 (Mizuha, Phillips, trative adjudication board to determine such rights, duties Wirtz). and privileges. CHAIRMAN: The motion to amend is lost. CHAIRMAN: Delegate Crossley, is your amendment an J. TRASK: I move for a recess subject to the call of amendment of the amendment that’s before the house now the Chair. or a substitution to the paragraph? SAKAKIHARA: Second it. CROSSLEY: It’s a little, I believe - - well, mine would be a substitution of the paragraphs. CHAIRMAN: If there’s no objection, so ordered. HEEN: I second the amendment that was offered by (RECESS) Delegate Loper. JUNE 21, 1950 • Morning Session 331 CHAIRMAN: That has been duly seconded. I’m sorry, that paragraph, if then we could move on to the third para I may not have stated so. graph and I could offer my amendment there, which would FONG: May I ask the delegate a question? Did you say also incorporate the first. However, if the substance of the that your amendment says that he can be removed at the second paragraph is changed I would then have to put my pleasure of the governor? amendment in right now. CROSSLEY: That is correct. CHAIRMAN: The question it seems would be whether or not your amendment changes the substance of the para FONG: Just the governor alone? graph, and it would be up to the members of the committee CROSSLEY: That is correct, and then the amendment to decide. continues, “For each - -“ SHIMAMURA: May I ask the proposer of this amendment the reason for the second paragraph of his amendment, that KELLERMAN: A point of order. Don’t we have before is with respect to advisory boards? the house an amendment to one line - - the fourth line of the second paragraph? CROSSLEY: I’d be very happy to answer that. It was felt that there are two types of boards, one is an advisory CROSSLEY: Mr. Chairman, I’m offering a new amend board, the other would be a board with power of adjudication, ment. And I have not discussed it. I haven’t even read the that they should be separate. Now an advisory board - - amendment thereof. In my proposal I say that all departments shall be single KELLERMAN: It was my impression that Mr. Crossley’s executive departments, and where the duties of the office proposed amendment was a substitution for the entire para are quasi-judicial or legislative that there be a board to graph and not an amendment of the amendment proposed. deal with those powers. Now in the case of where there is Wouldn’t it clear the picture to vote on the amendment pro no need for such a board, the governor may appoint an posed — it’s merely a matter of language —and then go into advisory board to consult with the head of the department. the substance of Mr. Crossley’s amendment separately? We have advisory boards today. At the present time we have boards that have no power of adjudication, they are simply CHAIRMAN: The Chair would have to rule that while it advisory boards, and this would continue in effect what we would clear the picture to do it in the manner suggested by have today. However, where we do have boards with quasi- Delegate Kellerman, the amendment proposed is a proper judicial powers, such as the Utilities Commission, Board of amendment of the amendment that is before the house. I Agriculture and Forestry in some respects, that there - - don’t think there’s any doubt about that. It deletes the entire there would be an adjudication board set up for the single- thing and substitutes something therefor. headed department. And that would be what my amendment. CROSSLEY: If it will expedite it, I will hold my amend would seek to accomplish. ment if I can be recognized by the Chair - - CHAIRMAN: The Chair feels that further discussion of CHAIRMAN: You may. the question is out of order until we straighten out the parliamentary procedure. CROSSLEY: - - when we have voted on what’s before you now. WHITE: I don’t have any copy of that amendment, and I don’t know what they’re talking about. DELEGATE: Question. CHAIRMAN: Will the messenger - - CHAIRMAN: Question is Dr. Loper’s amendment. All those in favor - - Would you like it stated? ~ROSSLEY: The amendment was passed out yesterday afternoon and put on every desk. DELEGATE: Who seconded the motion? WHITE: I’d just like to ask one question just as a CHAIRMAN: Delegate Heen seconded. matter - - for the purpose of trying to clarify this. I might ask the proposer of this amendment whether that paragraph OKINO: May I speak to that amendment. two wouldn’t be directly in conflict with what we’ve already CHAIRMAN: Delegate Okino, yon may speak to the amend- done in the case of the University and the Board of Education ment. or whether he doesn’t consider them principal departments? OKINO: I believe the committee has no objection. Speak CHAIRMAN: I would like to leave that, Delegate White, ing for myself, I think it is an improvement consistent with until we discuss the amendment. I would ask the committee something which will appear in the following paragraph three. to make up its mind how they want to take this amendment up? Do you desire to continue with paragraph two and then CHAIRMAN: I’d like to state the amendment for the bene discuss whether the amendment is no substitution of sub fit of several delegates who have asked. In the fourth line stance? after the word “provided,” insert the words “in this Consti tution or,” so it would read “provided in this Constitution CROSSLEY: Let’s vote on paragraph two. I’ll take my or by law.” All those in favor of the amendment will say chances with my amendment in paragraph three. “aye.” Opposed. Carried. LEE: As I understand it, your proposed amendment is CROSSLEY: The only reason that I have to go into para in substitution of two and three, is that right? And you’re graph two with my amendment is because the amendment in now willing to vote on Section 2 [sic] before consideration itself combines those two paragraphs. That’s why I’ve of your amendment. If Section 2 [sic] passes, there’ll be hesitated just a little bit about the procedure on the thing. no necessity for considering your amendment, is that correct? If you’ll read my amendment, it doesn’t change the substance CROSSLEY: No. If Section 2 [sic] passes, my amendment of the second paragraph one bit. However, it does combine does not change the substance of paragraph two; therefore, it with the third paragraph. And I was wondering if it would it would fit in with the amendment. It simply combines para be proper to go ahead and adopt that - - tentatively adopt graphs two and three. 332 EXECUTIVE POWERS AND FUNCTIONS LEE: Well, then, wouldn’t your proper—if we act on Sec FONG: Now, what protection has the public in a situation tion 2 [sic], wouldn’t your proper action then later be to like this? Say we predicate a situation in which the governor amend Section 3 [sic]. appoints a certain individual to be public welfare director and the Senate is in session and the Senate confirms the CROSSLEY: I believe that is true. Yes. appointment. One month afterwards he fires him and for LEE: All right. the next two years he places another man in there. Now, could he do that under the situation? CHAIRMAN: I think the motion that should be made in order to do this is that we adopt paragraph two in substance OKINO: The governor could, under the provisions pro with it being clearly understood that - - Would someone care posed by this Section 10, but the second appointment is to make that motion? considered as a recess appointment. There must be confir mation before he is considered a permanent appointee for LEE: The motion has already been made by Delegate that particular office. The Senate may reject his appoint Loper that we - - Oh, no. I move that we adopt Section 2 [sic] ment when the Senate is in session. - - this paragraph tentatively. FONG: What is the reason for giving the governor such H. RICE: Second the motion. poweré? CHAIRMAN: It’s been moved and seconded that we tenta OKINO: The idea is to strengthen the executive depart tively adopt the substance of paragraph two. ment so that he shall be vested with the responsibilities, CROSSLEY: As amended. so that there will be better team work and harmony insofar as the executive department is concerned. CHAIRMAN: As amended. All those in favor will say FONG: If you did that, why do you still leave the confir “aye.” Opposed. Carried. mation power in the Senate? Why not eliminate that and let Paragraph three. Delegate Crossley. the governor run the whole show? FONG: Point of information. Now in adopting paragraph OKINO: Well, that was a compromise. A minority of the two, did we adopt the words “and shall serve at the pleasure committee members felt that the Senate power of confirma of the governor”? tion should also be taken away so the governor shall have an CROSSLEY: That’s correct. absolutely free hand, but the majority of the committee members felt that the Senate should retain the control, in CHAIRMAN: We did. other words, to pass judgment upon the qualifications of the FONG: Now I’d like to have an explanation of that phrase, appointees. what does it mean? FONG: Now that we have reconsidered this passage of this paragraph, I feel again we are concentrating power in LEE: In order to allow debate on the matter, I move that the hands of the executive to such an extent that he will we reconsider our action. build such a political machine in this territory that it is FONG: I second the motion. going to be difficult for the people to uproot it. Now I can forsee syndicates coming in from the mainland with millions CHAIRMAN: It has been moved and seconded that we of dollars, say half a million dollars, and pour it into the reconsider our action on paragraph two. All those in favor campaign of this territory and elect the governor. Now the will say “aye.” Opposed. Paragraph two is open. only man that they have to concentrate upon is the governor FONG: I would like to ask, do the words mean this, that ship. By concentrating upon the governorship they will run if the governor is dissatisfied with the department head he the whole territory. And it is easily conceivable that any can tell him, “You’re fired”? group with around $250,000 can easily capture the gover norship by pouring that money into the political campaign. CHAIRMAN: Delegate Okino, would you like to answer We know that the campaign in the territory is costly, that that question please? $20,000 to $30,000 probably would be the cost of campaigning for the governorship. Now what would prevent a group of OKINO: Mr. Chairman, what was your question? individuals pouring in 50,000, 100,000 or 150,000 to capture FONG: The words, “shall serve at the pleasure of the the governorship and to control all these departments? governor,” the last sentence in paragraph two, does that Again I say that we are creating here in this territory mean that the governor has unrestricted power to fire him? one of the most powerful machines that I know in the history of the 48 states of the United States. In no other state of the OKINO: Yes, that’s correct. The words, “at the pleasure Union is the concentration of power as potent as we have of the governor” has been so adjudicated. In other words, the here in this Constitution. We are going to give to this execu governor would have the absolute right to dismiss anyone of tive of our State of Hawaii the supreme power in everything his appointees. that is going to be done in this territory. He now has the power of appointing the individuals, subject however to the FONG: Now what is the present situation? Has he got confirmation of the Senate, and he can only remove these the unrestricted right to fire him? people subject to the approval of the Senate. We are now OKINO: Under the present situation, under Organic Act going one step further. We are saying that you can remove Section 80, the consent of the Senate is required. these individuals without the consent of the Senate. Now I ask you, are you giving the people whom you re FONG: Then this is a modification of that power at the present the protection that they need? You have already present time. given him the judiciary, lock, stock and barrel. He can OKINO: That is correct. To give the governor stronger appoint the judiciary. Now, giving him the judiciary - - power insofar as his right to dismiss and remove any of giving him control of the second branch of our government, his appointees. the judiciary, and having some control by the veto power JUNE 21, 1950 • Morning Session 333 over your legislature—and you need a two-thirds vote of the enough votes in the Senate to remove him from office.” This legislature to override his veto—and now giving him this does not grant the chief executive a great deal more power, absolute power to fire and remove the department heads, if any, than exists in that office today, and the chief execu you are placing in the hands of this executive the most tive is not responsible to the people. powerful instrument that I know of. And I can say that in I believe that no matter how the law is presently written no other state of the Union is there such a concentration of today that the chief executive would have no difficulty in power, and I am opposed to this phrase in which he shall removing anyone from office as the offices are set up to remove the department heads without the approval of the day. It was for that reason that I offered my amendment, Senate. and if this section is now going to be voted on to delete that, LEE: I’m convinced of the argument made by the repre I would like at this time to offer my amendment which com sentative from the fifth district and offer this amendment bines paragraphs two and three and which reads as follows: to that paragraph. Next to the last line after the word “and” Each principal department shall be under the super insert the words “may be removed by the governor with the vision of the governor. The head of- each principal de approval of the Senate,” in lieu of the phrase “shall serve partment shall be a single executive who shall be appoint at the pleasure of the governor.” ed by the governor, subject to the confirmation of the SILVA: Second the motion. Senate, and who shall serve at the pleasure of the gover nor. For each principal department, there shall be an CROSSLEY: I have no particular fight with that but I advisory board consisting of such members as may be do take exception to the remarks of the speaker before the provided by law. Whenever the law provides for the last that no state has given the chief executive such power, adjudication of private rights, duties, or privileges by because they have. Nor do I agree with him that we have any principal department, there shall be established by made this man so all-powerful, nor would I say that the law an administrative adjudication board to determine people of the Territory of Hawaii could be bought any more such rights, duties and privileges. now than they could at any other time by a half a million dollars or 250,000. OKINO: I am wondering if Delegate Crossley would not move the amendment a little later until we have decided on But I do think that there is validity in the principle that this very important question, whether the appointees of the we should shape up responsibility to where it belongs. The chief executive is responsible for the administration of the governor shall be removed by the governor only with the consent or confirmation of the Senate. The amendment government; he is responsible for appointing these depart ment heads and after he has appointed them they are con offered by Delegate Crossley will incorporate the third firmed by the Senate. In our committee when we discussed paragraph as well. It is purely a suggestion, Delegate this subject and read, not a 60 day report or a two or three Crossley. months’ study by anyone, but a five year study by most CHAIRMAN: I believe that his amendment is out of competent judges in the country—I do not mean that in the order in any event. Since the movant stated previously judicial sense, but people who are trained in the study of that his amendment was in substance the same as para government—and they came up with the recommendation as graph two as now written, he would in effect move to amend a result of their study that not only should department heads the amendment proposed by Delegate Fong by deleting it, serve without term, which means in simple language at the which I do not think is a proper amendment. pleasure of the governor, but they should also serve without confirmation. We were voted down in the committee on that. CROSSLEY: I would not move to amend the amendment. They felt that there should be confirmation. I would move to amend the section. Now you take the analogy of running a business, the head CHAJRMAN: The Chair understands by your previous of a department, or the head of a firm appointing his depart statement, however, that your amendment is in substance ment head, and something happens in the business. The de the same as the paragraph as previously written. Therefore, partment head isn’t the one who takes the responsibility as if you move to amend the amendment all you are doing is to whether or not the policy of the chief executive was deleting the amendment which is before the house. carried out or even the policy of the board. It’s the presi dent of the company, and the government, whether you like CROSSLEY: I’m not moving to amend the amendment. it or not, isn’t too much different from a business in that I am moving to amend Sections 2 and 3 [sicl. respect. It will not be the department head who will be taking CHAIRMAN: I still believe you are out of order. the responsibility, it will be an elective governor. Now I think the thing we lose sight of here is that we have LEE: I think - - in order to get the proper language I been operating for the last fifty years under an appointive have just been checking the Organic Act. I would like to governor, someone who is not responsible to the people, suggest this language instead of the language previously and it makes a big difference. It takes a lot of change of suggested by myself. Instead of the language, “may be thought to get the concept of a governor who is responsive removed by the governor with the approval of the Senate,” to the will of the people, a man who must go before the use these words, “may, by and with the advice and consent people and say, “This is my record for the past four years. of the Senate, remove from office any of such executives.” Will you elect me again on that record?” Now what you’re CHAIRMAN: Did your second accept that? asking him to do is going to the people and saying, “This is my record for the last four years. I don’t agree with what SILVA: I’m the second. I’ll accept it. these departments have done. I don’t agree with the ad KELLERMAN: If that change has been seconded, I would ministration of this department but I had no power to change like to speak in favor of the motion. that department head. I had to accept that man in office because in my first judgment he was good but he didn’t CHAIRMAN: You may. prove to be good, he didn’t prove to be efficient, but because KELLERMAN: I think it’s a well recognized fact that the he had a certain amount of political backing I could not get power over any executive is the power of removal, far 334 EXECUTIVE POWERS AND FUNCTIONS greater than the original power of appointment. It seems to fire them all, I think is just building up a lot of imaginary me that what we would face with a chief executive being re things that can never develop. I am opposed to this because movable only at the - - I mean the executives being removable I agree that the governor should have the power of removal. only at the pleasure of the governor, you have this possibility. A governor elected under such circumstances, or possibly FONG: I would like to offer an amendment to that amend with such financial support as the gentleman in the fifth dis ment proposed by Mr. Lee. At the end of his amendment, to trict has suggested, and it can happen—we’ve had Huey Longs add this sentence, “All such officers shall hold office for the in Louisiana who kept themselves in power through financial term of the governor and until their successors are appointed pressure and otherwise —such a governor could appoint and qualified unless sooner removed.” This is in the words persons who he considered and knew to be acceptable to the of the Organic Act except that I have added the words, “the Senate, and the Senate would confirm those appointees. The term of the governor.” The Organic Act says four years. day alter the legislature adjourned such a governor could It will place the term of the people appointed. remove those appointees, and appoint an entirely new slate. HEEN: May I suggest this as the form of the amendment? Until the legislature read) ourn - - reconvened in the next “Such single executive shall be nominated, and by and with session he would have the means at his disposal to use the advice and consent of the Senate, appointed by the gover public funds, as we have seen them used in our history—I’m nor, and he shall hold his office for a term to expire at the not speaking of this State but of the United States and in other end of the term for which the governor was elected. The states of the country—to build up a machine not only to sup governor may, by and with the advice and consent of the port himself, and his executives through himself, but to Senate, remove such single executive.” support a second leginlature that might come back in with the support of his regime. It seems to me that it’s giving FONG: I’ll accept that. an amazing amount of power to an executive to give him, LEE: Xhat’s agreeable to the maker of the motion, Mr. through this chance at expending public funds through his Chairman. department and his power of putting in any executive he sees fit once the legislature has adjourned, it gives him the kind SILVA: The second accepts that too. of power that I don’t think any community today can afford KING: My feeling is that with the changes that have to have placed In ohe person. occurred we may be a little bit confused. I would like to Yes, you have the concentration of responsibility with suggest a short recess and have the last form of the amend power. Your dictator has complete power and complete re ment typed and made available to all the delegates. I so sponsibility. It seems to me between the extremes we must move, Mr. Chairman. find a mean that will grant a reasonable amount of respon sibility and power to one executive to make his department SAKAKIHARA: Second it. function, and a limitation upon the extreme of that power by CHAIRMAN: If there is no objection, we’ll have a five granting the Senate the right to control to that degree the minute recess while these are prepared. executive appointments. The Senate also represents the people as well as the chief executive. We have checks and (RECESS) balances and I believe that is one of the ma) or checks upon the extreme power of any executive. CHAIRMAN: The amendment which was prepared during In the last twenty-five years the world has gone very far the recess is being distributed. I believe that before we go in the direction of a very powerful executive. We have seen to lunch it will be in order to vote on this amendment. it reach very bad results in a good many countries. We’ve ANTHONY: Is there a motion before the house to adopt seen it go very far in our own country, frankly very much the amendment? opposed to my own political philosophy and that of many others here at this Convention. I don’t see that there’s any CHAIRMAN: There is. great . . . [word not clear] in giving the executive too much ANTHONY: Well, this is a rather serious question. I power and there is certainly a great danger because one don’t think that we should hurry a vote through before lunch. never knows who will be elected. It can happen here as it I would like to have the speaker from Kauai who referred to has happened elsewhere. It seems the Constitution, the some eminent authority be given the opportunity to produce purpose of it, is to place those safeguards that may make it that authority. I’ve got one document here that’s just come $mpossible for such an elected officer to assume the power to my attention, the report of the - - the Connecticut report, that will make him a virtual dictator, as we have seen it in and I think that we ought to look into this pretty carefully. other states of the Union. I think the motion of Mr. Lee is Mind you, it is the federal system that the committee has excellent and I am very much in favor. reported, namely, the President can appoint his attorney general and remove him - - with the consent of the Senate WHITE: I’d just like to say that the type of situation that and remove him anytime he wants to. Now you’re going to some of these speakers have painted, where somebody is change that system if you adopt this amendment, so I don’t going to come in and buy the election of the governor for think it should be done hastily. 500,000 or 250,000 or whatever the amount it is, if they buy the governor, they’ll probably have control of the whole LEE: I don’t think we’re doing this hastily. I think we legislature anyway, so where is your check on it? I certain all have copies on our desk. Actually, it provides that the ly feel that it’s unsound to hold a man - - to vest executive executive can only remove with the advice and consent of responsibility in a man, hold him responsible for results, the Senate, and the appointment to expire at the end of the and then not give him the power of removal if he has some term to which the governor was elected. Now don’t forget, body that’s inefficient in his organization. The Senate still we face this realistic situation before this Convention, that has the right, some control over it by not - - by having to the attorney general is appointed by the governor of the confirm anybody that comes in subsequently. And to paint State, and the only two elective officers are the governor a picture where the governor is going to appoint people and and the lieutenant governor, and in order to keep the in have the Senate confirm him and then wait two days and then dependence of these department heads, particularly the JUNE 21, 1950 • Morning Session 335 Attorney General’s Department and some of the other very voted for the committee proposal will vote against this important departments, that there should be this clause inside amendment. of this amendment. However, if it’s the wish of this com mittee to recess over this matter, I don’t have any objection CHAIRMAN: The question before the house is the amend although it’s pretty clear. I’m ready to vote on it. ment which has been printed. FONG: I move that we recess to 1:30 p.m. It’s only a CROSSLEY: Just one point of order. matter of ten minutes now. CHAIRMAN: State your point, please. C. RICE: Second the motion. CROSSLEY: I believe you remarked the other amendment CHAIRMAN: Before I put that motion, I’d like to ask has been withdrawn. My previous amendment? President King if he would desire that we would rise or CHAIRMAN: No, the amendment withdrawn - - that we recess. CROSSLEY: Which amendment were you referring to? KING: Well, if some of the delegates want further time to consider this amendment, the natural thing would be to CHAIRMAN: The motion which was withdrawn was the rise and sit again this afternoon. I had hoped that most of motion to recess. their minds were made up and we could clear this particular ROBERTS: I haven’t spoken on this question. I’d like amendment, but Delegate Crossley has another amendment just to briefly state my views. I support the recommenda that would make this rather moot. So perhaps the best tions of the committee which to me are sound and provide thing would be for the committee to rise, report progress an adequate opportunity for the executive to carry out his and ask permission to sit again at 1:30 this afternoon. functions. It provides for a check in terms of specific PORTEUS: Can’t we recess? We did yesterday. confirmation by the Senate, but gives the executive the authority to see that the work is carried out once the indi KING: May I ask if the Clerk has anything on the table vidual is appointed. This amendment, it seems to me, goes that might be handled? Then a recess would be in order. to the very heart of th~ executive power. I recognize the CLERK: No. problem of the occasional need for care in the power of the executive. I have voted for shearing his powers on many of KING: Then a recess would be in order. the propositions that have come before the house. I think on this particular section, I cannot support the amendment CROSSLEY: Before you put the motion to recess, I would like to say that as far as I’m concerned I feel that I have had in this form. ample opportunity to present my arguments. I’ve quoted my I could support an amendment which would provide that, authorities. I don’t care to have a long debate. I wanted to with regard to the attorney general, that such a proposal point out that under the system that the majority of the com would be proper, because to me he is an individual who is mittee adopted, the serving at the pleasure of the governor, concerned with three different departments. He is an indi it’s more efficient. It wouldn’t cost anything to fire a man. vidual who is concerned not only with the carrying out of It may have some dangers. I don’t agree with the dangers. his advisory capacity to the governor, he is the legal officer I would like to point out, however, that if you take the of the State and therefore has got to support and got to prose amended language, it means that to fire a department head cute. With regard to the attorney general, I could support is going to cost you something like $25,000. You’re going an amendment which would provide that you’d have to get to have to call the Senate into special session. the consent of the Senate before the attorney general is re But I feel that there’s been ample time on that and I for moved. But with regard to operating heads of specific depart one am ready to vote on the amendment. I’d like to vote on ments, it seems to me that is undesirable as a matter of it before we go out to lunch if possible and come back in executive function. here at 1:30 and continue on with the next. This is the last ANTHONY: I would like to have one other thing clarified. amendment I have on this business. If this fails, why then We were debating the other day the proposition of having a that’s the will of the majority. If it passes, I carry on from comptroller for a long term. Now would he be subject to there. removal by the governor without the consent of anybody? DELEGATE: Question. OKINO: Are you referring to the post auditor? The office of auditor? CHAIRMAN: The question before the house is whether we recess or not. All those in favor - - Pardon. The motion ANTHONY: I guess it is auditor. fias been withdrawn. The motion before the house is for the adoption of the amendment proposed by Delegate Lee. OKINO: That was already voted on. He is to be appointed by the legislature, two-thirds of each house. C. RICE: May I have the amendment read? ANTHONY: Would he be subject to removal? [Objections from the floor.] OKINO: That is specifically provided in that section. C. RICE: Isn’t Mr. Crossley’s ameiidment in here too? KELLERMAN: May I answer one paint that Mr. Crossley CHAIRMAN: No. raised, that if you want to remove - - under this proposal, MAU: The committee itself has not given us their views if you want to remove an executive head it would cost on this new amendment. I’d like to hear from them because $25,000 to do it. You would have to call a special session if their report is a sound report and they cannot go for this and pay each member of the Senate $500. That, of course, amendment, I would like to hear how they stand. is not necessarily true. The legislative report has not reached the floor. It can be amended and I have discussed OKINO: Well, insofar as the committee is concerned, it the matter with several members of the committee. It seems has already filed its report and proposal consistent with the to us highly feasible that we introduce an amendment to pro report. Naturally, I take it that all committee members who vide that when the Senate is called in alone for a confirmation 336 EXECUTIVE POWERS AND FUNCTIONS or removal, that they shall be paid only traveling expenses in this way he can say, “The Senate was the one that stopped and a per diem. So that matter can well be cared for and it me from removing officer Jones.” And then on the confir is not precluded at all by this amendment. mation too, as well. I don’t know why because of past tradi tion in this Territory, the Senate having the power of confir KING: I have not spoken on this amendment and since mation, we should pursue that if we are going to carry to others have explained their stand, I’d like to be recognized a logical result this argument that has been so powerfully to speak in favor of the amendment. I do not visualize any made, that we should place sole responsibility on one execu practical difficulty. The governor appoints his department tive head of the government. heads and if he is dissatisfied with them, he will send for them and ask them to resign. Nine times out of ten or CROSSLEY: Believe me, it’s an honor and privilege and ninety-nine times out of a hundred the department head will a rarity when I can second the motion of the delegate from resign. if the department head is obdurate, the governor the fifth district, which I do most whole heartedly. I would may sideswipe him or side-step him and deal with the number say, however, that I think Delegate Roberts has raised a very two until the legislature comes into session. if it’s necessary good point. if you’re going to consider the adoption of an to call the Senate into session, it will be the Senate alone. amendment such as that made by Delegate Lee, that it should There’s only been once in Hawaiian history where a depart apply only to the office of the attorney general and perhaps to ment head was obdurate and it took a little time to remove. the head of the school department and that the rest should But in fifty years of legislative history, that has only occurred serve at the pleasure of the governor. However, I’ll second once, so I do not visualize any practical difficulty. Delegate the motion made by Delegate Mau. Ashford corrects me, itwas twice. So it seems to me the HOLROYDE: I move we recess to 1:30. question is merely one of whether the legislature, which con firms the appointment of that department head, or the Senate, KAGE: Second the motion. shall have an opportunity to decide whether he should or CHAIRMAN: It has been moved and seconded that we should not be dismissed if he refuses to resign. recess until 1:30. You speaking to that motion, Delegate AKAU: I think we’re already to go, but I just want to say Mau? one more word. if we pass this, which I think is a good idea, MAU: Point of special privilege. it v,ill make the governor exercise a great deal of care and precaution in getting his key people for his key departments. CHAIRMAN: You may. Let’s vote. MAU: if because of my action, we can’t get a vote on it MAU: I want to clear this in my own mind and know how before lunch, I withdraw my motion. to vote on this question. if this amendment passes, then it A. TRASK: The motion of Delegate Mau has been is against the arguments that have been made in favor of a seconded and I think that motion should be ready for us strong executive, and part of that argument is that the execu when we come back from lunch. tive should have the sole power and the sole responsibility for his conduct in office. Now you bring the Senate into the SILVA: He’s withdrawing that motion. picture. Where are you going to place the responsibility, A. TRASK: Are you withdrawing it, Mr. Mau? giving some responsibility to the Senate to confirm and to remove? Where will we put the responsibility, put the C. RICE: The motion to recess is not debatable. blame, for either misconduct in office or pursuing a policy CHAIRMAN: if there is no objection, we’ll declare a which is not agreeable to the people? You bring in the recess until 1:30. Senate. The governor says, “Why I wanted to remove this man, but the Senate refused.” Are you passing the buck? The argument also was made this morning which scares Afternoon Session me about my theory of election of public officials. Maybe I was wrong. if you can bring into the new State of Hawaii half a million or a million dollars to elect a governor, then CHAIRMAN: Does any one know the presence of Delegate maybe we ought to find ways and means to appoint the gover Mau, where he is? Delegate Crossley. nor. CROSSLEY: I understand that after he and I were together I don’t know whether I am in order but I’d like to move on an amendment, it was too much for him. I doubt that he’ll for an amendment, that we delete the amendment proposed recover this afternoon. and substitute in lieu thereof this language, “The governor shall have the power of appointment and removal of such CHAIRMAN: The question that I raise - - Delegate Fong. single executive.” and we bring it right down to the point FONG: What is this getting into, the chairman of Demo whether or not you want to place responsibility, sole re cratic Party left wing and the chairman of the Republican sponsibility, of the executive branch of the government in Party getting together? the governor or not. CHAIRMAN: The question that I raised was a serious CHAIRMAN: Delegate Mau, will you state your amend one. He rose to a point of personal privilege just before ment again, please. recess and said if his motion was going to prevent a vote MAU: My. amendment would delete the language suggested being taken before recess, he would withdraw it. It was on in this amendment and place in lieu thereof, “The governor that proviso, I wanted to find out from him whether he shall have the power of appointment and removal of such seriously intended it to be withdrawn at that time or not. single executive.” Then we are four square on this argument FONG: I gather that the remark was made facetiously that has been made in support of a strong executive, stating anyway. that the executive should have the sole responsibility for all of his actions. Then if the people don’t like how he conducts A. TRASK: I think Delegate Fong is correct. I had asked himself in office, then they can put the finger on him. But that the recess be taken with a view that Delegate Mau would JUNE 21, 1950 • Afternoon Session 337 have his motion printed and on that suggestion he withdrew CHAIRMAN: It’s been moved and seconded that paragraph it finally. five be tentatively a~dopted. Is there any discussion of that CHAIRMAN: He did withdraw it finally? Is that your motion? All those in favor please say “aye.” Opposed, understanding? if there is no complaint, I’ll rule that that “no.” Carried. motion was withdrawn. ROBERTS: I have a proposal to offer in the form of an CROSSLEY: Just to ease the Chair’s mind, if it would amendment as a new section, section or paragraph six. Is make it any better, I’ll withdraw my second, and therefore this the proper time - - there will be no doubt. Reluctantly. CHAIRMAN: Paragraph six is not before us yet. CHAIRMAN: That will be satisfactory. ROBERTS: I want a paragraph in between paragraph five The amendment before the house, in my understanding, and paragraph six. is the one printed under the name of Delegate Lee, which is an amendment to paragraph two of Section 10 and was rather CHAIRMAN: Proceed. widely discussed. Is there any further discussion on this ROBERTS: The amendment reads as follows. I have amendment? All those in favor of the amendment will say copies printed and they’ll be distributed to the delegates, “aye.” Opposed. I’ll call for a division of the house. All so there’s no need to write it down. those in favor of the amendment will please rise. The governor shall have power to make, from time to A. TRASK: Is this on the amendment of Delegate Lee? time, such changes in the administrative structure or in CHAIRMAN: That is correct. the assignment of functions of administrative departments as may, in his judgment, be necessary for efficient govern A. TRASK: Mr. Lee is not here. I think out of courtesy ment. Such changes shall be set forth in executive orders to him, I think we should defer this matter. which shall become effective at the close of the next legis CHAIRMAN: The vote is being taken. I believe the lative session, unless specifically modified or disapproved delegate is well out of order. by a joint resolution concurred in by two-thirds of the members to which each house is entitled. A. TRASK: It’s not concluded, Mr. Chairman. CHAIRMAN: Delegate Roberts, could you give me in CHAIRMAN: All those opposed to the amendment will formation as to when this amendment was passed out? please rise. ROBERTS: It’s going to be passed out now. KING: Before the vote is announced, may I say that I wanted to vote in the affirmative. CHAIRMAN: Thank you. CHAIRMAN: Recognized. The motion is carried in any KELLERMAN: I second that motion. event. I believe the count is 26 to 17. Is that correct? ROBERTS: May I speak to this? This proposal supple We now have paragraph two as amended before us. Any ments the previous sections that we have adopted and gives further discussion on that paragraph? the governor the opportunity, not to make the changes in the department, but to present a plan to the legislature which CROSSLEY: I move the adoption of paragraph two as the legislature has the opportunity and power to veto, if amended. we want to maintain efficient government, we have to on HOLROYDE: I’ll second that. occasion review of the operations and departments in the executive branch of the government. This gives the gover CHAIRMAN: It has been moved and seconded that para nor the opportunity to make such studies for efficient graph two as amended be adopted. All those in favor will government. It does not give him the power to put it into please say “aye.” Opposed. So carried. effect. It gives the legislature the proper and adequate Paragraph three is the next order of business. power to decide that it is undesirable or unnecessary, but KAM: I move that paragraph three of Section 10 be tenta at least it puts the question before them as to something tively approved. which the executive thinks is desirable in the efficient administration of government. I would like to have the dele HOLROYDE: Second the motion. gates support this amendment and have it in our Constitution. CHAIRMAN: It has been moved and seconded that para graph three of Section 10 be tentatively approved. Any dis CHAIRMAN: Is there any further discussion on this cussion on that motion? All those in favor will say “aye.” question? Opposed. Carried. FONG: May I ask the introducer of this amendment a Paragraph four is before us. question? Do you mean that the governor by executive KAM: I move that paragraph four of Section 10 be tenta order may consolidate departments as he desires? tively approved. ROBERPS: No. The Constitution sets forth the procedure LAI: I’ll second that. for the setting up of departments within a specified number. You have set that forth in a previous section of the Consti CHAIRMAN: It has been moved and seconded that para tution. This merely gives him the opportunity to make graph four of Section 10 be tentatively approved. Is there recommendations to the legislature, to suggest within the any discussion on that motion? All those in favor of the framework of the Constitution how he thinks more efficient motion, please say “aye.” Opposed, “no.” Carried. government could be obtained, if you set up your departments LAI: I move for tentative adoption of paragraph six - - and he finds that one department is lopsided, he could recom five, I mean. mend to the legislature where perhaps this function properly belongs, if you don’t think so, you vote him down, but at KAM: Second that motion. least you’ve had the opportunity to examine it. 338 EXECUTIVE POWERS AND FUNCTIONS FONG: Now what I’m asking you is this, that within the approved.” if it is modified, then it will not go into effect framework of this Constitution, we are saying that he could at all. Is that not correct, delegate from the fourth district? have twenty departments. Now that’s all we are saying about ROBERTS: It seems to me that if the legislature modi departments here. We are not naming the departments. As fies the recommendations of the governor in session, then I understand from your amendment, you are stating that at the proviso would go into effect, just as the legislature the first session of the legislature the legislature will set could normally establish action in legislative session. There forth these departments. Is that right? is nothing to prevent the legislature in session to pass such ROBERTS: The proposal - - May I answer the question, laws as they deem appropriate with regard to these depart Mr. Chairman? The proposal that we agreed to yesterday ments. I might say that this language is suggested as the indicates that the reorganization would take some time, and best language I knew of. I certainly have no pride of author therefore some procedure will be set forth in the article ship in this. if the able senator has some additional sugges dealing with ordinances to give the legislature the opportunity tions to make, I shall be very happy to consider them. to so reorganize the departments to conform to the twenty de CHAJRMAN: Delegate Heen, are you through? Delegate partments, as provided for in the Constitution. Once that is Loper. set up and goes into effect, it stays in effect. The legislature may from time to time create new branches or parts of that LOPER: I think the desired end could be accomplished as you go through. Now a time may come when you want by striking out “modified or” and just say “unless specifi to review that. This merely gives the governor the opportu cally disapproved,” because in the process of considering nity to call those to the attention of the legislature and suggest it, if they wish to modify it, it would then become law in that these. changes be put into effect. If you do not think that the usual manner. they ought to be put into effect, you then tell the governor A. TRASK: I am opposed to this amendment for several that they are not to go into effect and you veto his action. reasons. First, in the second sentence there is nothing set And as you notice, the executive orders that he issues do forth at what time and how many days before the legislature not become effective until the close of the next legislative meets that this executive order shall be made known to the session, which means that he cannot put it into effect until legislature. Secondly, obviously, these changes are to be the legislature meets and has the opportunity to examine it. made and to receive the notice of the legislature. Third, there is no tangible reason as far as I can see whereby such FONG: As I understand it, he will be able from time to changes, which will be included in the message by the gover time to change the administrative structure and assign nor to the legislature as provided in the taxation and finance functions to the various departments. He may take the provisions, that should not be ably taken care of by the gover function from one department and give it to the other. Is nor at that time. I see no reason for this amendment because that right? his suggested recommendations, which recommendations are piously and properly made as suggestions - - We have this ROBERTS: He may recommend to the legislature that powerful plenary power here under executive order which such be done. He gives the - - he issues the order. The by its mere issuance will make it or have it take such a order does not become effective until the end - - the close powerful positive position that you would require the legis of the next legislative session which gives the legislature lature by an extraordinary two-thirds vote to overcome such the opportunity by joint resolution to veto his action. It can executive order. Additionally, I see no reason why under not go into effect until the legislature reviews it. this suggested amendment that the entire administrative FONG: It seems to me that this is a back way or a back structure of the departments may not be changed, because handed way of passing legislation. The usual way of having the only test which would justify the change would be for legislation passed is to have the House consider it and the “efficient government.” Now, what is efficient and what is Senate consider it and send it to the governor. If he likes not efficient is a problem so vital, that’s why we have the it, he signs it. if he doesn’t like it, he vetoes it and sends legislature. What is efficient government at one time as it back to the House and the legislature, and the legislature against another time, but for the legislature to determine may by a two-thirds vote pass on it. Now here we have and not the executive. just the reverse of that. We have the governor, first, ANTHONY: I agree with one statement of the last speaker starting out as the legislative body, and have the legislative and I am sure it was inadvertant by the draftsman of this body use the veto on the governor. It doesn’t sound right. proposed amendment. It can be cured by requiring that the You have a system by which your legislature sets up your executive orders be issued between legislative sessions, administrative branches of the government, and then say then the legislature would have the executive order the first that this branch of government shall have these functions day of the legislative session. Therefore I would suggest and the other branch of government shall have the other an amendment in the second sentence, “Such changes shall function. Then here comes along this amendment that says be set forth in executive orders to be issued between legis that the governor may take one function and place it in the lative sessions.” In other words, insert the word “issued” hands of the other, and if the legislature in a session does or “to be issued between legislative sessions.” not veto the action of the governor, then it stands. Now this As to the other statement made by the last speaker and is a backhanded way of giving to the governor the right of the delegate from the fifth that this is reversing the legis legislation and gives to the legislature the right of veto. lative process, I’m not in accord with that. This is not Now the right of veto lies with the governor. The right of going to usurp the legislative process at all. This is simply legislation lies with the legislature. I think that this is not sayigg that you’ve got forty or fifty substantive programs correct. which are being carried out by various executive departments HEEN: The last sentence I think is entirely wrong. It of’ government, and the chief executive, whose duty it is to says here, “Such changes shall be set forth in executive make the executive department run, has reached after a orders which shall become effective at the close of the next careful study a conclusion that these departments should be legislative session, unless specifically modified or dis consolidated. I say he makes that study, he then finally JUNE 21, 1950 • Afternoon Session 339 culminates the results of his study in an executive order. ROBERTS: May I answer that, Mr. Chairman? This thing Full publicity is given to the executive order. It is in the was drafted long before we discussed this article. I’m cer hands of the legislators before they begin their deliberation tainly glad to have it conform to the others, or first part and they can do anything they want with it. I call the dele of the section of the article now before us. There was no gates’ attention to the fact that no substantive laws will be intention to provide any other language. But this thing was decreed by the governor. It will be simply an allocation drafted before this article and the language in that article and a rearrangement of administrative functions. I’m not was unavailable to me. so sure that I agree with the two-thirds vote in joint session, but I certainly think the principle of this proposed amendment ASHFORD: I suggest, in view of the remarks calling is a good one. attention to the use of the “administrative departments,” that Section 10 starts, “All executive and administrative ASHFORD: I move an amendment to the last sentence offices, departments and instrumentalities.” Would it not so that it shall read as follows—There’s no second, I think, be better to insert “such changes” - - “assignment of func to Mr. Anthony’s motion and my motion will incorporate tions of executive or administrative departments” and use his. “Such changes shall be set forth in executive orders the “executive or administrative structure” in both cases to be issued between legislative sessions which shall become to conform to the first paragraph of Section 10? effective at the close of the next legislative session, to the extent in which they shall not be specifically modified, or CHAIRMAN: Does the movant accept that? unless they be disapproved by a joint resolution adopted by ROBERTS: That’s acceptable. I think we could handle the legislature.” if there is a second to that, I’d like to that either in the Committee on Style or on the floor. speak for it. CHAIRMAN: Delegate Ashford, would you mind reading LOPER: I’d like to second that motion. the proposed paragraph, please. CHAIRMAN: The second is recognized. ASHFORD: (Reads amendment) “The governor shall ROBERTS: We’ll accept that as part of the original have power to make, from time to time, such changes in motion. the executive or administrative structure or in the assign ment of functions of executive or administrative departments KELLERMAN: But I would like to ask if the movant would as may, in his judgment, be necessary for efficient govern accept one more suggestion. “Which shall become effective ment. Such changes shall be set forth in executive orders at the dose of the next” - - general or regular, which is our to be issued between legislative sessions which shall be term, Mr. Heen? This would mean the next budget session come effective at the close of the next legislative session to also, it might mean [thati and our plan is not to have such the extent in which they shall not be specifically modified, matters, as I understand it, taken up at the budget session. or unless they be disapproved by a joint resolution adopted It seems to me that we have to clear this so it would be at by the legislature.” the close of the next regular legislative session. CHAIRMAN: Thank you. CHAIRMAN: Delegate Heen, would you like to answer that? KELLERMAN: May I propose another amendment. We have set up in the Constitution under the provision on edu KELLERMAN: Is the term “general” or “regular? cation, the Board of Education and the Board of Regents to HEEN: The regular sessions are provided for in the which we have assigned certain functions. I therefore would article on the legislature and the regular sessions are divi propose a proviso at the end of the first sentence, “provided ded into two types. One a budget session and the other a that such changes shall not be inconsistent with other provi general session. sions of this Constitution.” ROBERTS: The thought of that is acceptable. The lan KELLERMAN: This would have to be - - This word would guage I think could conform to the other sections where there have to be “general” then. “Effective at the close of the was no intention to modify action which we’ve already taken next general legislative session.” and which are going to be part of the Constitution. HEEN: No, it could be at any áession, whether budget, HEEN: The amendment is somewhat involved, and I’d special session or regular session or general session. Any rather trust my eyes in looking at it in writing than to trust session. The sooner you get to it, why it would be better. my hearing. Therefore I would suggest that that amendment KELLERMAN: I withdraw my suggestion. The present be written before any further action be taken on it. language will cover it. if we want to include the possibility of this coming up at a budget session, then the present lan CHAIRMAN: May the Chair suggest that instead of a guage makes that possible. I had assumed that we were recess, we go on to the next paragraph. trying to restrict the budget session, not to take up such RICHARDS: May I ask one question before we go on to matters, so that’s why I raised the point. The present the next paragraph? As I understand this proposal, this language would leave it open to any special, budget or amendment, the question comes up to my mind, after modi general session which apparently would be acceptable to fication by the legislature of any of these executive orders, the chairman of the Legislative Committee. they might modify them to such an extent that they would not be acceptable to the governor. Under those circumstances HEEN: I would like to ask the delegate who is sponsoring does the governor retain his veto power or not? this amendment this question. Why did he use the term “administrative departments” when in the first part of the ROBERTS: That was the question raised, I think first, bill you speak about departments as “executive departments” by Senator Heen. I’d like to suggest when this article is or “principal departments”? I was just wondering whether being prepared for re-submission, redrafted form, that there was some intention to differentiate an administrative perhaps it might be desirable to leave the word “modified” department from a principal department. out. if the legislature wants to take the governor’s proposal 340 EXECUTIVE POWERS AND FUNCTIONS and turn it down and then wants to draft one of its own in they held up. To me, a lot of this should be statutory so it’s such form as it cares, it would then be regular legislation? in the books and we know what it’s all about. HOLROYDE: I move we defer action on this amendment. ARASHIRO: May I ask the sponsor of this amendment to point out some specific incidents where the necessity PORTEUS: If people are going to take various matters of this amendment was proposed? into consideration in the redraft, may I point out this. As far as I can see under the Constitution, what you’re going to ROBERTS: I’d like to answer that question and then per do is leave to the legislature the determination over a period haps to touch on briefly what was said by the speaker just of years, perhaps four, what functions should be consolidated prior to that. The purpose of this thing is not to change under what departments. Once the legislature has said this what you have done before in your present proposal which is it, and you’re not leaving it to the governor in the first puts it in the hands of the legislature to set up the twenty instance, you’re reversing the situation. What you’re doing basic departments and their functions through a commission is, you’re giving the power of legislation to the governor perhaps of study and then have the legislature act. with the veto in the legislature. Now if you do it the other This thing provides - - this Constitution is not for next way around, you would have it the way we start. Our concept year or the year after. It’s for a long period of time. I can is that the legislature will determine the grouping, it will be very easily visualize where a whole series of functions are subject to veto by the governor. Now if that’s out and you established in one department whether they belong there or want to be consistent, then I think it’s necessary to say that don’t belong there. You may have an individual who is in these orders shall not become effective unless approved by terested in building up a little empire. Through piece-s of the legislature rather than disapproved. Because what legislation, he has a tremendous number of functions which you’re doing there is giving, as I say, power of legislation have no actual relationship in terms of the efficient operation to the governor, power of veto to the legislature. I think of your executive department. In other words, you have a it’s reversed. problem. It seems to me that you’ve got to give the execu tive —and we’re talking now not about the power of legislation CHAIRMAN: Delegate Loper has the floor. but about the operation of the executive department which LOPER: I have a question to put to the former speaker, the legislature has set up—the governor isn’t taking over the Mr. Secretary. If I followed your line of reasoning, it was functions of the legislature. This merely permits him to that it should be stated that these would become effective if present to the legislature a program which will provide for approved by the legislature. However, in Section 1 or para more efficient operation of his department, the executive graph one of Section 10, I believe we’ve amended it so that department. The legislature under this thing does act, and there would be a four year period in which to consolidate it acts in terms of what it conceives to be proper. If they government departments, and there is no automatic provi think that the governor’s recommendations are out of line, sion for that to happen, if the legislature chose not to con all they’ve got to do under this proposal is to say, “No soap. solidate. The fact that we write it into the Constitution We like it the way it is and that’s the way it stays.” There doesn’t necessarily bring it about, because we have the is no infringement on the power and the prerogatives of the reapportionment provision in the Organic Act and it has not legislature. happened. This would enable the chief executive to bring Now the prior speaker suggested that perhaps these that about even if the legislature did not act during the first executive-orders that will be issued would have some force four years. or effect. The proposal does not permit the governor to issue executive orders on reorganization. He merely issues PORTEUS: If you say that, that’s what will happen, but an executive order and submits it to the legislature. If the that’s not what’s said here. You want to say that if the legis lature, in the ordinance that you write, does not consolidate legislature approves it or doesn’t veto it, either form, then it takes power and effect, but it’s got to be first by a joint at the end of four years the governor will have the power to resolution of the two houses. It seems to me that that do so. That’s something else again. What I’m pointing out provides adequate opportunity for the legislature to decide is that you are relying in the first instance on the legislature whether the executive functions are properly set up or im to accomplish this by law. Having accomplished something properly set up. If they don’t think they’re proper, all by law, you then say the governor may change this setup, but they’ve got to do is to say, “That’s not a good reorganization with the power of veto in the legislature. I think you’ve got for the executive department,” and that’s the end of it. the functions reversed. H. RICE: I have always been against the rules and regu ARASHIRO: May I ask the sponsor a question? Do you lations by the different departments that are not presented think the deletion of this amendment would jeopardize the to the legislature for their approval. Now besides those governor from sponsoring such intention through his legis rules and regulations you are going to have executive orders. lation? To me, this is all wrong. If the governor wants that provi sion, and I can see he might make some wonderful sugges ROBERTS: The question of jeopardy, I think, is a very tions, let him put them in the form of a joint resolution to serious question. We’re writing a Constitution and we’re be presented to the legislature when it comes in session. trying to make provisions for it - - provisions for the three Then you have them in the books and it’s all right. Besides branches of government to operate effectively and to divide rules and regulations that govern the Board of Health, the those powers as we think most desirable. I think it’s ex Board of Agriculture and so forth, civil service, all of them, tremely desirable to permit the executive to present such and a lot of other - - and now they have some in the Highway a plan, just as it has been, for example, in the federal govern Department that the people don’t know. ment now. President Truman has made various proposals to We’ve got in a jam just lately on Maui on a new law put the Congress. Those that they thought desirable were ac into effect by the Territorial Highway Department on the cepted and those they thought undesirable were vetoed, they subdivisions. The people didn’t know that it was necessary were thrown out. It seems to me that this calls attention to to get a permit to join in the public - - the territorial high the fact that the executive should constantly keep in mind way and they practically had the project complete and then the need for efficient government which you have already JUNE 21, 1950 • Afternoon Session 341 recognized in the first part of your proposal. I think it’s a where at present the governor makes a recommendation to desirable section. the legislature and the legislature then passes legislation CROSSLEY: I would like to speak in favor of the amend by the request of the governor, and that’s how it’s done. ment as further amended. This in part accomplishes some Whether this should be spelled out or whether he will main other job that I had in mind when speaking earlier this tain the same authority and go through the same procedure morning and that is getting a more efficient department. I that we have at present. think that if we would lose sight of some of the arguments CHAIRMAN: If there are no more speakers on this sub that have been made that this is infringement on other de ject, Pd like to know if we can put the motion before having partments or other branches of government and keep in mind it printed. Oh, I see, we have the printed copy. The Chair only that thin is a device, a means of getting a more efficient will declare about a three minute recess while the copies department in itself, that this amendment would find much are passed out. more support. I wouldn’t attempt to answer my colleague’s question (RECESS) here as to jeopardy, but even if the answer were no, that wouldn’t be the final answer because it’s not what a person CHAIRMAN: Will the committee please come to order. may or may not be able to do but the fact that we are trying ASHFORD: May I call the attention of the Committee of to build a basic form of government here, a basis for govern the Whole to the fact that the Committee on Ordinances and ment, in which we are trying to spell out everything that we Continuity of Laws has been directed to prepare a provision can as clearly as we can, and this certainly would help the in the ordinances to care for the four year interim period, executive branch of the government to more fully participate and what shall happen thereafter in the consolidation of de in carrying out the very function that we have assigned to it. partments to bring them within the twenty - - the number of twenty included in an earlier paragraph of the section? A. TRASK: I would like to direct attention to two points I call this to the attention of the Committee of the Whole at raised here. First, what is an executive order? An execu this time because the language used in the draft that has so tive order, as I understand, is not something that is publish far been prepared runs somewhat to this point, but it would ed in the newspapers for the notoriety of even people over be strictly limited to that four-year period. May I read that. on Molokai to read, publication is given to an executive order The requirements of consolidation, grouping of func by mere filing with the Office of the Secretary. That’s how tions of government and limitations of the number of the Nuuanu tunnel was going to be built, whereby the city departments shall not be absolute for a period of four situation here, the master plan of the City and County of years after the effective date of this Constitution. During Hoaolulu was dumped without a hearing. You have an execu such period, the governor shall have power to make from tive order issued whereby the City of Honolulu and the legis time to time such changes in the administrative structure lature, which for a period of about six years had endorsed or the assignment of functions as may in his judgment be the Kalthi tunnel, and you have this situation by a mere over necessary to achieve such limitation and provide an effi night executive order coming out, throwing over the work cient administration. Such changes shall be set forth in of many sincere citizens over a long period of years. I think executive orders which shall become effective at the close it is wrong. of the next session of the legislature unless disapproved The next point. President Truman’s plan for reorgani by a resolution adopted by the legislature. The first gov zation came as a result of congressional legislation over a ernor of the State shall appoint a commission to study period of many years and former President Herbert Hoover such consolidation, grouping of functions, and limitation, worked on that situation. To me it is not altogether proper and report thereon to the governor and to the legislature. to say that this amendment is a mere reference to the legis lature whether or not they’ll accept or reject the proposition. This is merely an interim provision and it provides for It is not that. It is what more properly the Secretary men executive orders in that respect because if the legislature tioned, an act which if left and not acted upon has the force does not act, then those executive orders must take effect and effect of law which I think is bad, which doesn’t give in order to comply with the constitutional requirements of the people the time enough to consider, debate and talk about limitation to the twenty departments. and to see how this change would effect their own welfare. HAYES: Pm confused and suspicious at the same time. After all, the departments are created by the legislature. I want to know, and I stand to be corrected, I want to know Any modification of that should be left up to the legislature that when this, if provided - - if this amendment went through and the people who are affected. A person who is born on and the governor appoints this administrative manager and Oahu, reared on Oahu, whose interests are altogether on the legislature goes into session and creates the different Oahu, would not be concerned about governmental adminis departments as so provided in the Constitution, then this trative functions in Miolii, over on Molokai, over in Kauai, administrative manager comes in after we have adjourned, or over in some part on Maui. can he disorganize what the legislature has provided by law? Now, let us understand, we must give notoriety. Some places on Oahu, there are no newspapers, and certainly HEEN: It seems as if the delegate is looking at another when an order is filed with the Secretary’s Office you don’t amendment about the appointment of an administrator. see it in the newspapers, hardly ever. And that’s how Hono lulu was taken for a ride, as I consider, when the master CHAIRMAN: Has your question been answered, Delegate plan approved over many years was set aside by an execu Hayes? Delegate Roberts. tive order. ROBERTS: Pm sorry, I can’t answer that question. CHAIRMAN: Is there any further discussion of this CHAIRMAN: Is there any further discussion on this pro amendment? posed amendment? ARASHIRO: I’m not against this amendment, but the ROBERrS: I’d like to suggest that perhaps this proposal question in my mind is whether it should be spelled out, ought to be taken from the floor. The question doesn’t seem 342 EXECUTIVE POWERS AND FUNCTIONS to be fully understood on the floor, and rather than create “Proposal No. 6 relating to government office or employ feelings of dissatisfaction, or uncertainty or doubt or con ment has been adopted in part. No person shall be appointed fusion, I’ll withdraw the motion if the person who accepted an officer under the provisions of Section 10 of this commit it will do so. tee proposal unless such person is a citizen of this State and shall have resided in the State for at least three years.” ASHFORD: I’ll withdraw my amendment of his amend Your committee recommended that the remainder of this ment. Proposal No. 6 be referred to the Committee on Miscellaneous CHAIRMAN: I believe that if the motion is withdrawn to Matters for the reason that the subject matter is related to adopt the amendment, that’s sufficient, unless someone else civil service laws which are now under consideration of said would like to make it. Committee on Miscellaneous Matters. You will note as you refer to Section 72 of the Revised Laws of Hawaii 1945, simi HOLROYDE: I move that we tentatively approve the last lar provision is a statutory matter, and your committee felt paragraph of this article. that that portion of Proposal No. 6 may adequately be regu ASHFORD: I move that the last paragraph of this article lated by statute. be deleted and there be substituted for it a Section 11 which shall use the language of Proposal No. 6, to wit: LOPER: I would like to raise one question about the proposed amendment. If the language recommended for No person shall be eligible for office or employment inclusion in Committee Proposal 22, the last paragraph in or by the State or any of its political subdivisions other of Section 10, is the exact wording of Proposal No. 6, there’s than on the teaching staff of the University unless such no provision for bringing school teachers into the Hawaiian person shall have been a resident of Hawaii for a period Islands from outside, and we have during past years had of three years prior to assuming such office or employ to employ from a hundred to a hundred and fifty teachers ment, and no period of tenure of office in or employment from outside of the territory each year. During the period by any branch of government, whether federal or local of years, some years back, it went as high as 300 and we are prior to the expiration of three years’ residence in Hawaii, still understaffed. Of course, we always give preference shall be construed as a part or the whole of the require to local people but we do not get enough yet to fill all those ment for three years’ residence. positions. J. TRASK: I second that motion by the delegate from CHAIRMAN: As the Chair understood the proposal, it in Molokai. cluded that. Is that correct, Delegate Ashford? CHAIRMAN: Is that Section 6? Of what document? ASHFORD: That’s true, the oaly exception is the teaching ASHFORD: That language comes from Proposal No. 6 staff of the University. I was not aware that there was a and is a new section, Section 11 in Proposal 22 in substitu shortage of teachers. I knew a lot had been brought in from tion for the last paragraph of Section 10. I would like to the mainland and our experience was that the local teachers, speak to the proposal - - to the amendment. the locally trained teachers were better than the malihinis. CHAIRMAN: You may. HEEN: The paragraph as written in this Committee Pro ASHFORD: Everyone who is familiar with the operations posal No. 3 refers only to officers of the State, and the em of our territorial government knows how outrageously the ployees like those who teach in the University and those who three year residence provision has been evaded or flaunted. teach in the public schools are not officers, they are emplo This is a constitutional provision to prevent that and to pre yees. This section is limited to the appointment of officers vent it in the most effective way, because very often before under the provisions of this article. the legislature or any branch of interested citizens, any group of interested citizens, catches up with the violating OKINO: That is correct. That is the reason why we officers the person who has been employed has been em have said that it was adopted - - a portion of the Proposal ployed for three years and has therefore established resi No. 6 was adopted. With reference to employees, we thought dence. Now the provisions of this proposal which was sug it would be a statutory matter. gested as an amendment - - moved as an amendment to ANTHONY: I think that this is a very bad amendment. [Committee] Proposal No. 22 provides that no one who has What we’re going to do if we adopt this amendment is to been employed in violation of the section or by the federal have a sort of ingrowing situation here. In other words, we government here shall have that period of employment con can’t get - - draw on the vast resources of the United States strued as the necessary period of residence. This is a true for experienced personnel in fields in which possibly we do protection of the three year residence requirement. not have proper persons to fill the jobs here. A. TRASK: I wholeheartedly agree with the movant, the I’ll give you one specific example. You take in the courts. delegate from Molokai. This provision has been in the books We have a terrific job to get a court reporter and you can for a long time. It was fought for by my father vigorously in go up and down this land and you can’t find anybody who is the depression years, 1933, and I certainly think that it should a competent court reporter. The reason for it is, it’s a high be in the Constitution permanently, not only for the benefit ly skilled job. Most of the court reporters that are present of those in private employ - - in public employment., but that ly working in our courts have come from the mainland. the private employers in the territory may get wise and hire They have had years of experience there and they have come local people for local employment. down here. Now, this sort of an amendment to my way of thinking is HOLROYDE: I’d like to ask the committee why they did laudible in its design to protect our own people, but in not adopt this proposal. They evidently gave it a lot of consi reality it’s going to injure us because it’s going to prevent deration. us from drawing on resources from the rest of the forty OKINO: If you will refer to the committee report, page eight states. Leave this matter to legislation. The legis number 7, paragraph number 5, you will note the following: lature will take care of this all right. They will provide JUNE 21, 1950 • Afternoon Session 343 for residence requirements, but don’t freeze it in the Consti Teachers’ College, that they will be able to increase that tution so that we can’t get people outside of the territory - - number of teachers for at least eight years. outside of the State and we just would be left high and dry with no employees competent to do the work in a specific [A portion of the debates and the vote on Delegate Ash- case. ford’s amendment are not on the tape. Delegate Ashford’s amendment was defeated.} SMITH: May I ask the chairman of the committee if any other state constitutions have such an article in their consti CHAIRMAN: The question before the committee is the tution? last section of Committee Proposal No. 22 as it stands. If there is no further discussion, all those in favor of this OKINO: I believe not. section will say “aye.” AKAU: I would agree with the delegate from the fourth DELEGATE: Question. district if he had said this ten years ago when our boys and girls perhaps were not moving along as rapidly in the fields MAU: Are we considering the last paragraph now? of science and education, and sociology and law even, but I CHAIRMAN: That is correct. That’s what we have been think today we are arriving at a real good pace of getting considering for the last 30 minutes, I believe. trained people from our University who have had some ex perience. Now, the example of a court reporter may be MAU: I thought you had two or three amendments to it. one of the few exceptions. There may be others. Perhaps CHAIRMAN: The amendments have been lost. The amend some little clause might be added to make allowance, or ment lost. practical legislation might be able to make some allowance by adding a clause. But I don’t agree with the fact that we MAU: What are you voting on now? can’t always find people here. If we look hard enough we CHAIRMAN: I believe the Chair might have been out of can find them, teachers, workers in our pineapple experi order, but I don’t think so. All those in favor of the para mental labs and even in the courts. graph as moved will say “aye.” Opposed. The last para graph is carried. CROSSLEY: I know that the popular thing would probably be to get up here and agree that the amendment is good and HEEN: I move for a reconsideration of the fourth para that we can do what the last speaker and one of the previous graph of this Section 10. I think we went through that too speakers from the fifth district said, “Get wise to ourselves hurriedly. in business and hire local boys.” But I wonder just how much HOLROYDE: Second the motion. they know about what they are talking. How many people do I hire in my companies, for instance, who are not local? CHAIRMAN: It’s been moved and seconded that we re I don’t think they know or they wouldn’t have made the state consider paragraph four. All those in favor will say “aye.” ment because I am one of the coast haoles in my company, Opposed. All those in favor will please raise their right and I have been here over twenty years, and there is one hand. All those opposed. Motion to reconsider is carried. other. The rest are all local. But there does come a time HEEN: The paragraph reads: “The governor shall grant when you can’t find local people. On the one hand you tell commissions to all officers elected or appointed pursuant to us to go out and build new industries, employ more people, this Constitution.” Now the governor is elected under this and at the same time you condemn us if in doing such a thing Constitution. Is he to issue a commission to himself? Is we hire someone from outside the territory. that the intention of this particular paragraph? Now, what is so sacred about this territory? If we were one of the forty-eight states and had crossed a state line, CHAIRMAN: Delegate Okino, can you answer that ques there wouldn’t be a great deal of attention paid to it, but tion? because we have a body of water in between us, why that OKINO: I’m afraid not. I don’t think the committee gave seems to make us some sort of sacred ground, regardless any special attention to that very specific question. of whether we have qualified people or not. A court reporter is not an isolated instance. All you have to do is to start a LARSEN: Could I answer that? When the King of England new business here, for instance the flower business, and go abdicated he had to sign his own abdication. out and get a trained horticulturist and see how many have HEEN: That was with reference to his removal but this qualified, see how many people have had the experience. is in connection with the election of the governor. Now then, what should we do? Should we not build a new industry because of a restrictive clause? Should I sit in CHAIRMAN: Does the delegate have an amendment to here as an employer and hear twice in fifteen minutes the propose? condemnation that the present employers are not very wise HEEN: I don’t think you need that paragraph at all. If to themselves. I would venture to say that 99.44 per cent an executive officer is appointed by the governor and nomi of the employees in the pineapple industry are local, and nated, “and by with the consent of the Senate appointed by when that industry was singled out and called by name, I the governor,” all he has to do is to issue the commission took especial resentment because in my own company, in showing what he did in the way of appointment. You don’t over three hundred employees there were only two who were need any constitutional provision for that. There is nothing not born in these islands. like this in the Organic Act or, as stated by my colleague KELLERMAN: May I point out the fact that our present here, there is nothing like that in the Federal Constitution. Teachers’ College has a capacity of one hundred teachers CHAIRMAN: Any further discussion? a year. It now does not turn out, according to our statutory requirement of certification, enough teachers to man the OKINO: I might say that that particular paragraph is public schools with the vastly increasing number of children incorporated in some constitutions of some other states. coming into the schools in the next ten years. It seems very We got that. unlikely, as a statement made to me by the dean of the CHAIRMAN: Is there any further discussion. 344 EXECUTIVE POWERS AND FUNCTIONS ANTHONY: I move we delete it. CHAIRMAN: The adoption of paragraph four, Section 10 as amended has been moved. All those in favor say “aye.” MAU: I would be in favor of that motion but I was just Opposed. It is carried. wondering, before that motion is put, whether the committee Delegate Anthony is recognized. had considered whether or not this provision could not be carried out by the legislature itself. RICHARDS: I rise to a point of order. I should think that we should close off Section 10 and tentatively adopt OKINO: I think it could, and I don’t think the committee Section 10 before we proceed to the discussion of other members will too strenuously object to the deletion of that sections. I move that Section 10 be tentatively adopted. paragraph. DELEGATE: I second it. LARSEN: I second that, Delegate Anthony’s motion. OKINO: I rise to a point of information. Wasn’t Section HEEN: I move that that paragraph be deleted. wasn’t paragraph one of Section 10 deferred to consider - - DELEGATE: Second. whether or not the departments shall be limited to twenty? PORTEUS: As I understand it, we talked on the sentence, CHAIRMAN: I believe it was. not on the paragraph. Now the motioft is to delete the para OKINO: Yes, I believe that was deferred. graph. I have heard no discussion about the catch-all provi sion here, but if you don’t provide for the manner of appoint ASHFORD: Was it not adopted with instructions to pre ment of an officer and unless it is otherwise proposed by law, pare something in the ordinances that would delay its abso this is the way you pick them up right in here. So I would lute effectiveness for a period of four years? like some discussion on the second sentence before you start deleting that sentence itself. As I understand it, that second CROSSLEY: That is correct. sentence is a catch-all provision, if you don’t say in the CHAIRMAN: if that is the understanding of the committee Constitution how a necessary officer is selected either by we’ll let it go that way, as I recall it. Otherwise, I’ll ask appointment or election, and the legislature overlooks pro the Clerk to look back. Are there any objections? viding by law for his appointment or selection, then you have Delegate Richard’s motion is in order. a provision that says what will happen. RICHARDS: I now renew my motion. HEEN: I withdraw my amendment that was offered by HOLROYDE: if you’ll add the words “as amended,” I’ll me and make this motion to amend. Amend paragraph four second the motion. by deleting the first section of that paragraph - - first sentence of that paragraph. CHAIRMAN: It has been moved and seconded that Sec tion 10 in its entirety, as amended, be adopted. All those CHAIRMAN: I believe there’ll have to be one other in favor say “aye.” Opposed. Carried. change. HEEN: And change the word “he” in the second sentence ANTHONY: I wasn’t here when Section 5 was voted on to “The governor.” and I wish that somebody would make a motion for recon sideration. I’ve got a simple suggestion t9 make. DELEGATE: Second the motion. J. TRASK: I so move. CHAIRMAN: Is there any further discussion? All those SILVA: Second. in favor of the motion to amend will say “aye.” All those opposed, “no.” The amendment is carried. CHAIRMAN: It has been moved and seconded that Sec tion 5 of Proposal No. 22 be reconsidered. All those in ANTHONY: Has Section 5 been adopted - - agreed upon favor say “aye.” Opposed. Carried. by the Convention? ANTHONY: I suggest the substitution of the word “pro CHAIRMAN: It has. per” in the second line for the word “faithful.” I think it ANTHONY: I was not here when it was - - carries a little different connotation. Maybe the Style Com mittee would feel that that was a style matter, but I think CHAIRMAN: Did you say Section 5 or paragraph five? “faithful” is the appropriate word. ANTHONY: Section 5. SILVA: Second the motion. / CHAIRMAN: I believe that what would be properly be CHAIRMAN: It has been moved and seconded that the fore the house is the adoption of paragraph four as amended. word “proper” in Sec - - I understand that the word “proper” ANTHONY: Am I out of order to address myself to that is to be replaced by the word “faithful.” All those in favor now, Mr. Chairman? of the motion will say “aye.” Opposed. Carried. CHAIRMAN: Address yourself to Section 5, you mean? OHRT: I have an amendment that will add a new section ANTHONY: Yes. to Proposal 22. CHAIRMAN: You would be unless there is a motion to KING: Point of order. reconsider. CHAIRMAN: Will you hold it, please? LARSEN: I so move, Mr. Chairman. KING: if Delegate - - Mr. Chairman, if Delegate Ohrt CHAIRMAN: I would like to ask for the adoption of will reserve his motion, is it proper now to adopt Section 5, paragraph four, Section 10, as amended, first. as amended? CROSSLEY: I so move. My colleague will second. CHAIRMAN: Correct. HOLROYDE: I second it. KING: I so move. JUNE 21, 1950 • Afternoon Session 345 SAKAKIHARA: Second. J. TRASK: I am just wondering whether this amendment CHAIRMAN: It has been moved that Section 5, as amended, is not covered by the fourth paragraph in Section 10. It says, be adopted. All those in favor say “aye.” Contrary minded. “The governor shall appoint, subject to the confirmation of Carried. the Senate, all officers for whose election or appointment provision is not otherwise made by this Constitution or by OHRT: I have an amendment that will add a new section law.” I personally believe that this is a statutory matter and to [Committee] Proposal 22. I think it’s been circularized I do not believe that it should be written in, as this fourth and on all of the desks. It reads: section in Section 10 should cover it. So I want to move at Section 11. The governor shall appoint an adminis this time, Mr. Chairman - - no, I’ll withdraw my motion. trative manager of state affairs whose term shall be indefinite at the pleasure of the governor. The governor FUKUSHIMA: I would like to ask Mr. Ohrt a question. may delegate any or all of his administrative powers to CHAIRMAN: Proceed. the administrative manager. The administrative manager shall be assisted by such aides as may be provided by law. FUKUSHIMA: If this amendment passes, would the func tion of the administrative manager to the governor be simi I move that that amendment be adopted. lar to what Mr. Bassett does for the mayor of Honolulu? SAKAKIHARA: Second it. OHRT: Why, I thought that would come in, but you want OHRT: Speaking to that section, I think those of us who to remember that the governor has a newspaper man over have to administer government departments know that one of there at the present time. But that’s not my idea of an the essentials is that you have enough help around you. Now administrative assistant. My idea of an administrative assis most of you are familiar with the governor’s office. He tant is a man of the competence of say Ernest Kai who when sits up there in a little cubby hole, he has three or four he was over there as attorney general was doing administra people around him but he has about seventy-five different tive work for the governor instead of being the attorney units that he has got to keep in touch with, and in the time general. That’s the way it works. The governor calls in he has, why k’s just impossible for anyone to do that. I the department heads and they’re brought in and taken away think that if you really want to have the Territory properly from their work and the governor has no one to depend on. administered you have to give him the assistance. And I think if you want to see the governor’s office run properly, you better give him the help because that’s one of CROSSLEY: I would like to ask Mr. Ohrt, is this creating the essentials of proper administration, that you have plenty another Bassett department? of help. OHRT: No, it’s just to give the governor the assistants around him that he should have. I notice in the judiciary FONG: We have already cluttered our Constitution with section they provided for an administrative assistant. Ap a lot of things, and I think that we could forego this provision parently the chief justice recognizes that he’s got to have in our Constitution. We have a legislature that will be able some help, and without help I don’t see how the governor to provide for the proper help of the governor. The legisla can run that office. ture has provided for the help of all the various departments. In other words, there are seven thousand government emplo HAYES: I’d like to know what the lieutenant governor yees, I understand, and the legislature has provided for those is going to do. employees. Now I can’t see why the legislature, if the gover KAGE: May I partially answer that question? In Section nor can prove that he needs this administrative assistance, 2 of [Committee] Proposal 22 it says here, “The lieutenant why the legislature will not give it to him. Now the City and governor shall perform such duties as inay be prescribed County mayor has shown to his supervisors that he needed by law.” And in our report of the committee we find that, an administrative assistant, and he got it. Now why shouldn’t “Because the lieutenant governor has very little to do, your the governor be able to sell that to his legislators. I think committee recommends that the legislature by law allocate this is purely statutory. I don’t think that we should clutter the usual duties of the secretary, hereinabove mentioned, our Constitution with too many of these small items. to the office of lieutenant governor.” And I have a report here made out by the Legislative Reference Bureau and it LOPER: I’d like to speak briefly in favor of this by way outlines the duties of the Secretary of Hawaii and the powers of just simply asking the maker of the amendment one ques tion. Delegate Ohrt, would you object to the change in the of the lieutenant governor and I see that he has quite a bit first line, saying “The governor may” instead of saying to do. Government administration as is today is not a “hit or miss” affair. The governor has to do so many things “The governor shall”? If you have a governor who doesn’t that if you would like to have him do a good job, I think it’s want one, it wouldn’t be unconstitutional for him to forego it. absolutely necessary that he has an administrative assis tant to coordinate all of the administrative branches of the OHRT: I would be very glad to accept that amendment, government. But, answering Delegate Fong, I had a great deal to do with MAU: I wonder if the sponsor of the motion would agree trying to give the mayor an administrative assistant, and a to this amendment. “The governor may delegate any or all public relations man is not my idea of public - - of an of his administrative powers to the lieutenant governor.” administrative assistant. Somebody that knows just as much about these various departments as the department head OHRT: No, I don’t think that would work out. himself, or almost as much, is my idea of an administrative CHAIRMAN: Delegate Anthony has asked for the floor. assistant, but public relations and all the press releases, No? Delegate Kage. those are very different things. Now I don’t believe that the governor should have to ask KAGE: If we were to go back to Section 2 of Committee the legislature whether he can have this type of assistance. Proposal No. 22, we deleted that particular section that I think k’s so necessary that he ought to be permkted to says “or as may be delegated to him by the governor.” employ it without legislative approval. This is one little 346 EXECUTIVE POWERS AND FUNCTIONS shift in there where the governor, I think, should be separate one in government just as much~ I think this carries on the from the legislature. purpose of the delegate who made - - who proposed this amendment. I don’t believe the governor should delegate CHAIRMAN: Delegate Richards. his powers but he should have a chief of staff, he should have HEEN: Mr. Chairman, the legislature of course, could - - the assistants, an assistant manager, you might say, to go around and pick up certain information that the governor CHAIRMAN: Delegate Richards was recognized, Senator. should have and get it in shape for the governor, and I think RICHARDS: Mr. Chairman, I yield to the senator. that Delegate Roberts’ suggestion is a good one and I say that I’ll support this Section 11 as amended. CHAIRMAN: Delegate Heen. OHRT: I’ll accept the amendment. HEEN: Under this provision the legislature can nullify the provision by making no appropriation for the compensa SILVA: There’s a question in my mind. I think that the tion of the administrative manager. word “at” should be deleted and in lieu thereof insert the word “for.” Rather than “at his pleasure,” the words should OHRT: I’d be willing to take that chance because it would be “for his pleasure.” indicate that the Convention wanted to give the governor the help that he really needs. Now if you analyze the governor’s ASHFORD: I will support the latest amendment, but I wish office, how many hours has he got in a week and how much to call the attention of the delegates to the fact that there is night work has he got to do? How many of these extempo no comparison between the chief justice and the governor. raneous speeches does he have to devote some time to? I The chief justice has thrust down his throat certain necessi think - - according to Delegate Tavares, he said that the ties of administration. The great qualifications for his office attorney general’s office spends a great deal of time writing ar.e ~ sound judgment and good legal scholarship. Those speeches for the governor. Now there is so much miscel qualifications can exist without having any administrative laneous work going through the governor’s office and if you ability and therefore an administrator is vital. really want him to administer the department heads, then SHIMAMURA: May I ask the chairman of the Committee you must give him some help. on Executive Powers and Functions a question? RICHARDS: There is one question I would like to ask the attorneys here. That is, it says here in the second sentence, CHAIRMAN: You may. “The governor may delegate any or all of his administrative SHIMAMURA: I understand that this original proposal powers to the administrative manager.” Now as far as was considered in the committee and rejected. Is that true? creating the administrative manager is concerned, I can OKINO: Do you mean this amendment now offered? understand my cohort from the fifth district that the legislature could create such a position, but will the legis SHIMAMURA: No, the original amendment offered by lature have power to permit the governor to delegate any Delegate Ohrt. My understanding is that that was considered and all of his administrative powers witout having something and rejected. in the Constitution about it? I raise that question. OKINO: It wasn’t really rejected, but it was passed up. ROBERTS: I’d like to - - May I have order, Mr. Chairman? To be more exact, what I mean is that it was discussed but no vote was taken on it. Delegate Ohrt decided that he will CHAIRMAN: Will the committee please come to order? furnish that to the floor by way of suggested amendment. Is that satisfactory? CHAIRMAN: Is there any other question on the amend ROBERTS: Thank you, Mr. Chairman. ment? The amendment before the house now is the amend I’d like to speak in favor of the principles suggested by ment which reads, a new section, “The governor shall appoint the amendment to the section now before us. We adopted in an administrative director to serve at his pleasure.” our artk~le on the judiciary that there was need for adminis trative assistance and administrative help. It seems to me HEEN: Shouldn’t that word “shall,” shouldn’t it be read that there is as much urgency if not more for administrative “may”? assistance in the office of the governor. The fact that you CHAIRMAN: When the section was last amended, Dele may make no appropriation doesn’t answer your question gate Roberts put the word “shall” back in. because you make no provision for appropriation in the sec tion dealing with the judiciary. ROBERTS: I used the language which is in Section 8 of I do have some objection to the delegation of power which the judiciary article. The language there says, “He shall we discussed yesterday. I think if we adopted the identical appoint an administrative director to serve at his pleasure.” language which we used in the previous article dealing with SAKAKIRARA: I offer further amendment. Delete all the judiciary that we would accomplish the same purpose. the words “administrative” in Section 11 and insert in lieu I think there ought to be an administrative director similar thereof, “campaign.” to the one suggested before to serve at the pleasure of the governor. I will therefore move, Mr. Chairman, to amend CHAIRMAN: Beg your pardon? the proposal - - amend the amendment to provide: “The ANTHONY: I hope that the delegates don’t vote for or governor shall appoint an administrative direetor to serve against this motion, this amendment, having in mind what at his pleasure.” they’ve done with the judiciary article. That argument has Now that language is identical with the language that been advanced but to my way of thinking there is no compari we have already adopted in Section 8 of the article on the son at all, as the delegate from Molokai said. The judges judiciary and I would suggest that as much urgency exists are lawyers, learned in the law. They’re not supposed to for having it here as exists in having it in the other section. take care of the typewriters and the pencils and what not, I would therefore move that amendment. and this job is supposed to take away from the judge his H. RICE: I second the motion of Delegate Roberts. In administrative detail and put it in the hands of an aciminis the Army and the Navy you have a chief of staff, you need trator who will leave the judge free to do his judicial duties. JUNE 21, 1950 • Afternoon Session 347 So let’s vote on this thing on its merits, let’s not confuse it CROSSLEY: This amendment that I have on my desk, is with the judiciary article. I don’t feel seriously one way someone bringing it up? or other about it, but I don’t want the two things confused. HOLROYDE: I move the adoption of Committee Proposal MAU: With all due respect to my colleague from the fifth 22 as amended. district who is sponsoring this amendment, I think that it’s purely legislative. I think Delegate Anthony ought to realize FONG: I have an amendment, amendment to Committee that and vote accordingly. I don’t see why we should clutter Proposal No. 10. Add a new section to read as follows: up the Constitution with legislative matters. “Treasurer. The treasurer shall be elected by the duly qualified electors of the State and shall hold office for a CHAIRMAN: If it’s strictly not a constitutional matter, term of four years.” I move for the adoption of the amend- I think we should vote on it now. ment. LOPER: I’d like to ask Delegate Ohrt for his opinion SAKAKIHARA: Second the motion. of Delegate Roberts’ amendment. KING: That was an amendment to Proposal No. 10. The OHRT: I have accepted Delegate Roberts’ amendment. Committee of the Whole is still considering [Committee] And I think the approach to this - - we’ve had two attorneys Proposal No. 22. tell us that the attorney ‘s department or the judiciary is quite different from the governor’s. I think it depends on FONG: Section 10. which side of the fence you’re standing on. I see the gover CHAIRMAN: Is that an amendment to Section 10? nor as being responsible for the expenditures of some sixty- six million and unless he can cover those departments him FONG: Oh no, this will be a - - I delete that. I want to self and show some leadership, why millions can be spent withdraw that and add a new section to that [Committee] or misspent. From my point of view as a taxpayer, I think Proposal No. 22, reading as follows: “Treasurer: The the governor is probably much more important than the treasurer shall be elected by the duly qualified electors judges over there. of the state and shall hold office for a term of four years.” H. RICE: Isn’t the trouble that too many of our governors CHAIRMAN: It’s been moved and seconded that we add have been lawyers? another section. Has that amendment been passed around? Is there any discussion on that? CHAIRMAN: I believe that the conversation is getting a little out of hand. We’ll call for a vote. All those in favor FONG: I’d like to state that I have consulted the report of the amendment will say “aye.” Opposed. I think it would of the Legislative Holdover Committee [sic] on pages 189, be sufficient if we had a standing vote. All those in favor 187, and 186, and have looked at the appendix to see which of the amendment will please stand. states appoint their treasurer and which states have their treasurer elected. I find that out of the forty-eight juris DELEGATES: Roll call. dictions there is only one state which appoints their treasurer CHAIRMAN: How many want roll call? Roll call is or- and that is the sovereign State of Virginia. I feel that the dered. treasurer is the fiscal officer of the state, that he should be elected by the people and be free and independent of the chief KING: Point of information. May the proposed section be executive. read again in its final form? I have heretofore propounded the theory that the attorney CHAIRMAN: As the Chair understands it, the section is: general and the auditor should be elected. I do not go as far “The governor shall appoint an administrative director to as the others in trying to elect all the various officials of to serve at his pleasure.” government. I feel that we should have a governor, a lieuten The Clerk will call the roll. ant governor, an attorney general, an auditor and a treasurer who should all be elected by the people. I do not propose to Ayes, 36. Noes, 14 (Anthony, Apoliona, Ashford, Cockett, go any further than that. And I feel that the treasurer should Fong, Hayes, Kawahara, Lai, Nielsen, Sakai, Shimamura, be independent and free of the governor. St. Sure, J. Trask, Yamauchi.) Not voting, 13 (Arashiro, Dowson, Gilliland, Ihara, Kauhane, Lee, Luiz, Mizuha, Noda, CHAIRMAN: Any further discussion of the motion? All Phillips, Tavares, White, Wirtz.) those in favor will please say “aye.” Opposed. CHAIRMAN: The motion is carried. rhe Chair will DELEGATES: Roll call. declare a short recess while we consider the latest proposal. CHAIRMAN: Will a division of the house be sufficient? APOLIONA: Second the motion. Standing vote? Roll call was demanded. How many want roll call? It is sufficient. (RECESS) KING: Point of information. I would like to ask the sponsor of the last amendment. He remarked that he felt that the governor, lieutenant governor, attorney general, CHAIRMAN: Will the Committee of the Whole please auditor, and treasurer should all be elected, but the amend come to order? ment only provides for the election of the treasurer. Is it the intention of the sponsor to propose other amendments HOLROYDE: I move for the adoption of Section 11, as after this one? amended. FONG: No, I have been defeated in all the rest except WOOLAWAY: Second it. this one. The governor and the lieutenant governor have CHAIRMAN: It’s been moved and seconded that Section been provided for by - - 11, as amended, be adopted. All those in favor please say CHAIRMAN: Delegate King, I feel any further discussion “aye.” Opposed. Carried. is out of order since the vote has already started. We’re 348 EXECUTIVE POWERS AND FUNCTIONS going to have a roll call. The Chair did not rule on the vote Obviously his purpose is to make this conform to the Federal taken. The Clerk will please call the roll. There was suff i Constitution, and he has some doubt whether or not this cient number. language does it. I think that was a clear import of the sec tion. Couldn’t we get this report out and then before we Ayes, 16. Noes, 34 (Anthony, Apoliona, Castro, Cockett, vote on it, on the Committee of the Whole report, maybe we Corbett, Crossley, Doi, Fukushima, Heen, Holroyde, Kage, could iron out any difficulty that the delegate has with that Kanemaru, Kellerman, Lai, Larsen, Loper, Lyman, Mau, rather than take the time to debate it at this point. Ohrt, Okino, Porteus, C. Rice, H. Rice, Roberts, Sakai, Sakakihara, Shimamura, Silva, Smith, A. Trask, Wist, A. rRASK: Yes, with that proviso I would second the Woolaway, Yamauchi, Bryan.) Not voting, 13 (Arashiro, motion, and let it go at that. Dowson, Gilliland, Hayes, Ihara, Kometani, Lee, Luiz, Mizuha, Phillips, Tavares, White, Wirtz.) CHAIRMAN: That would not be a proper motion, however. CHAIRMAN: The motion is lost. J. TRASK: I think the proper motion would be to withdraw the motion to reconsider Section 4 - - paragraph four of A. TRASK: I’d like to move for reconsideration of para Section 10. I withdraw the motion for - - I so move, Mr. graph four of Section 10 which as amended upon reconsider Chairman, that we tentatively pass Section - - adopt Section ation reads as follows: “The governor shall appoint, subject 4 - - paragraph four of Section 10 tentatively. to the confirmation of the Senate, all officers for whose elec tion or appointment provision is not otherwise made by this CHAIRMAN: As amended? Constitution or by law.” J. TRASK: As amended. MAU: Second the motion. HOLROYDE: Second the motion. CHAIRMAN: It’s been moved and seconded that we re CHAIRMAN: It’s been moved and seconded that we consider paragraph four —is that correct? —of Section 10. again adopt paragraph four of Section 10, as amended. All those in favor will say “aye.” Opposed. Carried. A. TRASK: Yes, if you please. PORTEUS: May I have some statement as to why so I ROBERTS: Wouldn’t it be sufficient if you left that thing can vote intelligently upon it? to the Style Committee? The intent is clear. We can take care of the language on that. A. TRASK: A provision of this type appears to be in the Federal Constitution, but I think the wording here is such CHAIRMAN: I believe that it’s too late to discuss it very that it does not state the sense of the Federal Constitution, much further, although that is a good idea. namely, it appears to me here that the governor shall appoint HOLROYDE: I move we adopt Section 10 now as amended. without provision made by the Constitution or by law, appoint officers and so forth, only if he can induce the Senate to CHAIRMAN: We did. confirm them. Now, it seems to me that you are going to HOLROYDE: I move we adopt Committee Proposal 22 as therefore expend money for officers without payment. Now amended. I do know that the sense and the thought is that the gover nor shall appoint people confirmed by the Senate where there DELEGATE: Second the motion. are responsibilities or duties conferred, but no provision CHAIRMAN: It has been moved and seconded that we made for their appointment. That is the sense of that parti adopt Committee Proposal No. 22, as amended. All those cular provision, but this particular sentence, it seems to me, in favor will say “aye.” Opposed. Carried. does not state that particular sense. J. TRASK: I move that the committee rise and report J. TRASK: Point of order. I should think that that would progress and beg leave to sit again so that the chairman be sufficient cause to call for a vote on the reconsideration might be able to file his report. of the section. APOLIONA: I second the motion. CHAIRMAN: It may well be. All those in favor of the motion to reconsider will say “aye.” Opposed. The section CHAIRMAN: It has been moved and seconded that we is open for reconsideration. rise, report progress and beg leave to sit again. HEEN: I think there’s one word there, two words there KING: Will the sponsor of that motion authorize the that should be deleted, “election of “ — - “election or.” If chairman to file his written report at that time? he’s elected, he doesn’t have to be appointed by the governor. “He shall appoint, subject to the confirmation of the Senate, CHAIRMAN: I believe he did. all officers for whose election or appointment provision is All those in favor please say “aye.” Opposed. Carried. not otherwise made by this Constitution or by law.” CHAIRMAN: Delegate Heen, perhaps if we ask the dele JULY 5, 1950 • Morning Session gate who asked to reconsider this paragraph what his amend ment is, it would help. Does the delegate have an amendment CHAIRMAN: Will the Committee of the Whole please to offer? come to order. A. TRASK: Not immediately, Mr. Chairman. ROBERTS: Would it be in order to obtain a five minute ANTHONY: Will the speaker yield for a minute, please? recess so that we can read this report? A. TRASK: Yes. CHAIRMAN: I think so. ANTHONY: Mr. Trask has - the delegate has raised ROBERTS: May I so move? a question with me during the recess and I was wondering if the delegate would not be content to leave it this way. LAI: Second the motion. JULY 5, 1950 • Morning Session 349 CHAIRMAN: You may. if there’s no objection, a five CHAIRMAN: Is there any second to that motion? minute recess is declared. TAVARES: I don’t want to second the motion because I (RECESS) don’t think it’s necessary at all. We have a law now which, unless we repeal it in the Constitution, it will be in effect A. TRASK: With reference to second paragraph of Section when the Constitution goes into effect. Section 173 of our 1 of the Committee of the Whole Report No. 17, on page 2 - - Revised Laws which says, “In case of the failure of an election by reason of the equality of votes between two or CHAIRMAN: Would you like to hold that for just a second, more candidates, the ties shall forthwith be decided by lot please. under the supervision of the Secretary of the Territory” A. TRASK: Iwill. and so forth. Now, whoever takes over the Secretary’s duties will have to - - will decide the tie in that manner. There is CHAIRMAN: The business before the committee this a law providing for it which will be in effect. morning is the consideration of Committee of the Whole Re port No. 17 with attached recommendations to the Convention, CHAIRMAN: Will you hold just a minute, Delegate Trask? and I think in order to properly discuss this, it would be in order that we have a motion for the adoption of the report. DOl: On the discussion of the same question raised by OHRT: I move that Committee of the Whole Report No. Delegate Trask, it says on page 3, Committee of the Whole 17 be adopted. Report No. 17, that, “It was also agreed that provisions for the election of the first governor, who would probably be HOLROYDE: I’ll second the motion. elected at a special election, would be made in the section on ordinances and continuity of law,” and I think that could CHAIRMAN: It’s been moved and seconded that we adopt be extended to include ties and contested elections. So I Committee of the Whole Report No. 17. don’t think we need to amend nor to make any motion to carry A. TRASK: It’s an excellent report. I just want to call over suggestions to the Committee on Continuity and Ordi to the attention of the Convention, however, that on page 2, nances. paragraph two on Committee of the Whole Report No. 17, the third sentence with respect to the election of the governor SHIMAMURA: At the time Delegate Trask discussed the matter with me, I asked the query whether or not there was is this expression, “In case of a tie vote or a contested not a section in present Revised Laws providing for tie election, the selection of governor shall be determined in votes, and now I discover in our Revised Laws the section such manner as may be provided by law.” I have taken up this matter with Judge Shimamura of the Ordinance and adverted to by Delegate Tavares. Therefore I think it’s covered since under our sections on continuity of laws with Continuity of Laws Committee and with Delegate Heen. The Section 1 thereunder, or Section 2 rather, provides for the time that the State legislature will be elected will be the continuity of all existing laws of the Territory. same election that the governor and other officers will be elected. In case there is a tie vote for the governor or a A. TRASK: I wondered whether or not probably it could contested election, the contested election may be provided be said that this territorial statute contemplated the office for by the Supreme Court, but with reference to a tie vote, of governor. Now, certainly we’ve never had any elected the legislature would have at that time not made provisions governor and a person may very well contest the fact if he in law. So I think the report should suggest that - - or the is defeated. It’s a real problem and I’d like to pose the report have a notation that the continuity of laws section question because I do not believe, as I told Delegate Shima will make adequate provision for this tie vote. Now~ H. R. mura, that this law, this territorial law did not contemplate 49 does not provide for any such contingency and so I would such an office as governor. move that the report in that respect be amended and I will - - KING: I feel that either the Revised Laws would hold or CHAIRMAN: Delegate Trask, are you referring to a tie the chairman of the Committee on Ordinances and Continuity vote in case of the first election of the first governor? of Law can accept this discussion as a mandate to amplify A. TRASK: That is correct, and so in the discussion of the provision that he’s going to bring in in accordance with Section 2, paragraph two, that consideration should be in the paragraph on page 3. In other words, it doesn’t say cluded by a sentence perhaps in the last paragraph thereof explicitly that he shall provide in such a proposal for a tie, before the comment made on Section 1, of paragraph - - but it does say it shall provide for a special election of the third paragraph. governor prior to the final adoption of the Constitution. I think that Delegate Shimamura should take this discussion CHAIRMAN: I ask the delegate to refer to page 3 in the as instruction to include in there some provision regarding middle of the page where it starts, “It was also agreed that a tie vote if he doesn’t want to let the Revised Laws stand, provisions for the election of the first governor who would or his committee doesn’t want to. probably be elected at a special election would be made in the section on Ordinances and Continuity of Law.” Wouldn’t CHAIRMAN: Is that sufficient, Delegate Trask? Any that cover the tie vote on the first governor? further discussion on this report? A. TRASK: Not adequately, with the consideration in ASHFORD: On page 6 just about the middle where it mind perhaps with respect to my other statement. refers to “increases or decreases based upon reasonable HEEN: I don’t think it’s necessary to amend the written classifications so as not to constitute a discrimination report of this committee. What might be done is this. There against the governor or lieutenant governor as members might be a motion that it’s the sense of this committee that of the applicable class,” 1 think what was intended by the adequate provision be made in the article on continuity of Committee of the Whole was that it should not constitute a laws to take care of a tie vote. discrimination for or against, and I, therefore, move for the insertion of the words “for or” between “discrimination” A. TRASK: I would so move. and “against.” 350 EXECUTIVE POWERS AND FUNCTIONS TAVARES: I think the word “against” is broad enough in no event to be less than, then it seems to me that “unless to mean for or against. There’s certainly no intention by law” changes that basic thing in the section. there of making a distinction. I think that’s going a little CHAIRMAN: I think that - - Delegate Roberts, may I far. A discrimination for is a discrimination against in interrupt you for a moment. I think it refers to the words, some ways. I think that the intent is clear there. What it “and shall not be increased or decreased for the term unless means is that when a law is reasonably drawn which places by law.” In other words, the minimum of $18,000. The the governor in a reasonable classification with other mem salary might be set at 20,000 and then it might be increased bers of the same class, and there is a uniform cut for the or decreased from 20,000, but only by law applying equal members of that class and in a proper classification, that ly if k’s done within the term. the law will not be invalidated; and the same way with an increase, if it’s a uniformity increase with relation to the ROBERTS: Then you cannot change 18,000 and 12,000 in same class. I think that is clear enough from the context. any event. Is that correct? I have no objections to adding a few words but I really think CHAIRMAN: No, that is the minimum. that the intent is clear. ANTHONY: That is not - - that is obviously not correct. CHAIRMAN: There was no second to the motion to The purpose of this was to permit the governor to suffer amend. any general cut that every other officer including judicial NIELSEN: I’ll second the motion. officers would take. The language is perfectly clear to my way of thinking. CHAIRMAN: It’s been moved and seconded that we add the words “for or” between the word “discrimination” and ROBERTS: Well, I had the same recollection that this the word “against” in the middle of page 6 so that the intent was to be a minimum fixed and then permitted to change would read “so as not to constitute a discrimination for or depending upon the economic conditions in the community. against the governor or lieutenant governor as members If they happen to be going up or down, there would be general of the applicable class.” Is there any further discussion? adjustments made for the salaries of the governor and lieuten ant governor, but this language says that “in no event shall AKAU: Isn’t that really a question of style? Couldn’t It be less than.” If it says, “in no event,” then you can’t we leave that to the Style Committee? provide an event under which it does change. Am I wrong in the construction? CHAIRMAN: I think you’ll find, Delegate Akau, that the Committee on Style does not deal with the writings of the CHAIRMAN: Personally I am inclined to agree with you. report, just with the articles that are for inclusion into the TAVARES: I think that there is reason for the delegate’s Constitution. feeling of doubt about this, the meaning of this sentence, but AKAIJ: Well, discriminate means to be for or against a I think the history of it would make it clear that, at least as particular issue, it seems to me. It’s very obvious that we I interpret it, what it meant was that the initial salary fixed don’t need it. by the legislature must inno event be less than these parti cular amounts. However, if later there is a uniform pay ANTHONY: There’s a good deal in what Delegate Akau cut or uniform pay increase applicable to the same class, said. The Style Committee did take that very language, then such pay cut or pay increase may validly be granted “equal measure,” concluded that those words were not during the term. I think when you have in the same sentence workable, and in the article on judiciary changed it. I don’t as the words “in no event” the exception, “unless,” that they think that k’s necessary for us to amend this report. If you do qualify the “in no event,” That’s the way I read it. It’s will examine what we did with the article on the judiciary, a little bit awkward but I think that’s what it means. you will find that the words “apply in equal measure” were deleted and other language was used. So I don’t think it’s CHAIRMAN: Would it be satisfactory to Delegate Roberts necessary to amend this report. The intent is perfectly clear. if we let the Style Committee ponder that question as long ASHFORD: It is my view that the intent is not perfectly as the intent is clear? clear when the committee report construes it, and the com ROBERTS: I was thinking of the Style Committee because mittee report construes it as “discrimination against” only. I sit there, too, and I’d like to get the expression of feeling CHAIRMAN: Is there any further discussion? from the Committee of the Whole. My feeling would be that the words “in no event” should be eliminated and to say R0BERPS: I have a question on this same paragraph, on that the legislature shall set the salary at 18,000 and 12,000 compensation. unless by law applying otherwise. CHAIRMAN: Delegate Roberts, does it pertain to this CHAIRMAN: I think that was the intent of the Committee discrimination for or against the governor? of the Whole when it first came up. ROBERTS: No, it does not. ASHFORD: I think it should be made clear that it is the CHAIRMAN: Well, let’s withhold it, and let’s get a vote intent. I concur with Mr. Roberts. I think otherwise our on that. All those in favor of the motion to include the words Committee on Style might have to refer back to get the “for or” will say “aye.” Opposed. Carried. The words will expression of the committee. be included. CROSSLEY: It was my understanding that these figures ROBERTS: The language of the section as we adopted would apply as minimum figures, and that they could never it in the Committee of the Whole previously reads that, be cut by law except where there was a general cut in all “In no event shall the compensation be less than $18,000 or of the salaries of the territorial government. It could be $12,000 respectively,” and then three lines later it says raised and lowered above this figure at the will of the legis “unless by law” it can be changed. I have a little difficulty lature in a term not to apply in the term of the office, how there with the meaning. If it is to be a minimum fixed and ever. In other words you could go to 25,000, back to 20,000 JULY 5, 1950 • Morning Session 351 or play at any figure above these minimums, but these mini apologize to the members. I hope someone will second mums could never be cut unless there was a general cut each one for discussion. I was unfortunately absent the through all territorial salaries. Then it would apply in equal afternoon when there was further discussion on these sections, measure. and I did not bring them to the attention of the Convention. ROBERTS: May I suggest that we eliminate the difficulty I think they’re important. by deleting the words “in no event” and adding the word “not” Taking up the first one, the proposed amendment to Sec after “shall,” so that the sentence would read: “but shall not tion 8 of Committee Proposal No. 22, RD 1, I move to add be less than 18,000 unless by law” etc., and leave out the at the end of the section the following sentence: “The legis words “in no event.” lature may provide by general law for granting commutations and pardons by the governor before conviction and for the APOLIONA: I second that motion. granting of reprieves, commutations and pardons for im CROSSLEY: If you do that, what’s to prevent, then, the peachment and for the restoration by order of the governor legislature from lowering this ~alary by itself. of civil rights lost by reason of conviction of offenses by jurisdiction other than this state.” ROBERTS: The rest of the paragraph says, “unless by Mr. Chairman, I’m sorry, in my haste I left the word law applying in equal measure,” so they cannot change it “commutations” in the second line of my suggestion. I up or down unless k’s applied generally. think it has no place. May I reread that again? My amend ANTHONY: I’d like to speak to this motion. The Style ment is that we insert the sentence “The legislature may Committee had difficulty with that language, “equal measure,” provide by general law for granting” —and delete from my and I’m suggesting to Delegate Roberts that thin particular amendment the words “commutation and,” —“for granting section can be handled the same way it was done in the Style pardons” and so forth. Committee and in Section 3 in the article on the judiciary. This is what is now before the delegation referring to the judges’ salaries. “They shall receive for their services such WOOLAWAY: I will second the motion. compensation as may be provided by law which shall not be diminished during their respective terms of office unless TAVARES: The reason for my motion is this. The Con by general law applying to all salaried officers of the State.” vention decided not to delete the words “after conviction.” Now if that’s the sense of the body, as I understand it is, I still feel that the time may come when during the stress the Style Committee can dove-tail the provision that we’ve of heavy investigations or otherwise, the legislature may already adopted in the judiciary article and correct the diffi feel it desirable to give the governor some power to pardon culty that Delegate Roberts has —and I can see there is some before conviction in order to assist in investigations and difficulty with k—and make the two sections - - coordinate induce persons to testify. the two sections. I think the intent is perfectly clear that Secondly, I think that impeachment should not be subject the governor shall accept any general cut that anybody else to the untrammeled power of the governor. At one of my will take. suggestions, I believe the legislature deleted - - I mean this Convention deleted the exception on impeachment and, of CHAIRMAN: Delegate Anthony, one question. Would course, that would allow the governor to nullify an impeach that clear up the problem of the minimum being stated, which ment. I think that ought to be taken care of in this way, which was not stated in the other article? by implication at least —unless we amend another section or ANTHONY: That could be handled. You could still state another provision—show that commutations are subject to the minimum and still have the same proviso for the diminu regulation by the legislature and they should prescribe tion of the minimum in the event of a general decrease as a conditions under which a pardon from a - - rather, I’m sorry, result of change in economic conditions, applicable, of course, impeachment, rather, would be subject to pardon by the only in the event a general law applying to all State officers governor only under conditions laid down by the legislature. is passed. Finally there is a hiatus in this pardoning section which is also very serious, I think, at least for the individuals ROBERTS: That suggestion is acceptable if it is the sense concerned. We have had situations in which a man has been of this committee. We do not have to make any amendments convicted in a jurisdiction other than the state of a felony, to the section, and I will withdraw my motion. and he comes here and wants to vote. Now I raised the ques CHAIRMAN: Your motion has been withdrawn. Any tion, and it was not decided during the argument, and I have further discussion on this point? decisions here to show that the states, that is the authorities are divided on whether a disqualification to vote and hold ROBERTS: I’d like, however, to move that it be the sense office for felony applies only to felonies under convictions by of this committee that the expressions that we have placed the courts of the state, or whether it includes felonies, con on the floor would be applicable to the Committee on Style. victions by other jurisdictions. They are not evenly divided. CHAIRMAN: You may so move. I think there are - - in one situation there are two decisions one way, and one decision the other; but it is an open ques OKINO: I second the motion. tion and there is a conflict on whether that applies to foreign CHAIRMAN: It’s been moved and seconded that the senti convictions. Now I believe it should apply to foreign convic ment of the committee as presented here this morning be put tions, and this will make it clear by implication that it does. in the record for the use of the Style Committee. Is that the I don’t see why a man convicted of murder in the Federal intent, Delegate Roberts? All those in favor of that motion, Court here or in the State of California should have a greater please say “aye.” Opposed. Carried. right to vote here than a man convicted of murder in our Are there any other discussions? if not, the Chair will own courts. And, therefore, I think we should make if clear put the question. that it applies to convictions in all jurisdictions. Secondly, however, if it does, does the governor’s pardon TAVARE5: I have two amendments which I would like to ing power apply to those foreign convictions? Obviously, propose for the consideration of the Convention. I must we cannot go into that foreign jurisdiction and give a pardon EXECUTIVE POWERS AND FUNCTIONS 352 under the laws of that jurisdiction, and so there is another CHAIRMAN: Delegate Anthony, one question. Would your conflict of authority on that, or rather it’s rather uncertain. remarks be applicable in view of the words, “provide by I think there is only one decision on the point, directly in general law,” in the first line? point, which says the governor does have the power to pardon against foreign offenses. I think that’s very far-fetched and ANTHONY: They certainly would. We don’t want the I don’t think we should assume that power, but we should have legislature to provide by general law. There are three dis the power to grant restoration of civil rights notwithstanding tinct things that we’re talking about. We don’t want the such convictions in foreign jurisdictions, and my amendment legislature to provide by general law that a man can commit will take care of that in accordance with law. The legislature a crime, not be tried, not charged, and pardoned by some will have prescribedthe conditions under which the governor, benign friendly executive. I’m against that. If a man com presumably after a hearing before a board or after recom mits a crime, he ought to stand trial in the criminal courts mendation by the Parole Board or some other investigation, and let justice take its course. After conviction, if the gov that the legislature may provide that the governor may issue ernor wants to pardon him, that’s the responsibility of the an order restoring civil rights. governor; but this idea of having by lettres de cachet some Now that’s important for a number of reasons. For one secret blessing given to a criminal whose offense has not thing, our laws are not always the same as laws of other been made public I am against. jurisdictions, and what we call a felony is sometimes - - or Now as to impeachment, I don’t thiak we should have any rather what we call a misdemeanor here is sometimes a statute that would authorize the chief executive, in cases of felony in another jurisdiction. Some jurisdictions have very impeachment, to remove the effects of the impeachment. barbarous penalties for very slight offenses and, therefore, if a man is convicted of that offense in another jurisdiction TAVARES: I am a little surprised at the concern ex our governor ought to be able to restore him to civil rights pressed that the governor might violate his authority in the if it wasn’t a serious offense. It would be a misdemeanor case of pardoning before offenses were - - before conviction, under our laws. and apparently no worry at all about 999,999 cases out of lie other situation, if a man is convicted in a jurisdiction a million when he pardons after conviction, If the governor that doesn’t have due process of law, like some of these Iron is so low, if he is so poor in judgment that he would violate his discretion in pardoning before conviction, why do we Curtain countries, we might feel that he was unjustly convicted, trust him with the 999,999 other cases of after conviction? but to be on the safe side he should be disqualified and then restored to his civil rights in a regular process by order If he can be bought in the one case out of a million maybe, or one case out of a hundred thousand before conviction, of the governor after a hearing to determine whether he was given due process and so forth. he can certainly be bought after conviction too. So why the distinction? Why trust the governor with so much power Finally, there’s another situation where a country has for pardons after conviction and be so afraid to trust him convicted a man, perhaps properly, of a felony. The country with a few cases before conviction? That’s number one, has now been overrun and taken over by another country and Mr. Chairman, and I think that answers the argument. nobody is in position to grant a pardon from that offense, so Number two. I wonder where the last delegate - - the our governor could then restore civil rights. I think my delegate who last spoke was when we removed the exception amendment is necessary. for commutations [sici in this Convention. I mentioned the fact that unless we did what other constitutions did and al ANrH0NY: Delegate Tavares has spoken about three lowed for some kind of restoration of civil rights after im very distinct things. Number one, the power of the governor peachment, the result would be that an impeachment above to give some person his blessing before conviction. That all other crimes would be the kind of a case where a man amendment I am against. We don’t want the governor going never got any commutation or never got any pardon, and so around - - A man has committed a crime, he has not been unless we provided for it by special provision that we ought convicted. We don’t want any chief executive going around to have it left out. Now it was decided to leave it out. I am and saying, “Well, Joe, it’s all right with me. Here’s your now coming back to tie it up a little bit more and say, but the pardon even though you haven’t - - no case has been brought legislature is to provide by law for the conditions under against you, even though you have not been convicted.” That which impeachment shall be granted. Now, don’t you thiak was debated fully on the floor of this house and I am against the legislature is to be trusted under general law not to that amendment. give the governor too much leeway when they have acted? The other, the second question that he poses is whether I think that they can be trusted. or not conviction in a foreign jurisdiction would take away I think the other, the last point I suggest has been ad a person’s civil rights. By an appropriate statement in our mitted to be weil taken, so that evidently at least two of my Committee of the Whole report, we can construe this lan points are well taken. Either we ought to put in the excep guage to include that. Therefore, I think that amendment is tion about impeachment and then provide a method of re unnecessary. storing civil rights after a reasonable time and under reason The third suggestion that he makes is that he gives the able condition or we ought to leave my amendment here governor the power to pardon in cases of impeachment. and let the legislature take care of it. That, I think, is simply outrageous. Here if the legislature should impeach an officer or a judge, then the governor MAD: I say this smiling so that the movant won’t take could turn around and say, “What the legislature has done offense at what I am calling attention to. Many times it’s is a lot of hot air. I am going to undo it.” I’m against that. been said on the floor that when a certain issue has been Now if there is any doubt as to whether or not the governor decided that it would not be renewed. I thiak when we took can pardon in cases of impeachment or removal of officers up Section 8 before on the granting of pardons before con victions, that issue was lost and the Convention decided to by the state legislature, certainly we ought to go back to the words of the Federal Constitution and insert appropriate give the pardoning power only after conviction. language in Section 8 providing an exception, “except in Second, the movant has spoken the second time. The rule cases of impeachment.” is that he should close the debate. Although I won’t raise JULY 5, 1950 • Morning Session 353 the question, I’m sure that he would want to talk again on ANTHONY: Delegate Tavares has said, “Why do we trust the subject. the governor to pardon alter conviction and we don’t want Now on the second point he raises in his amendment, if him to go around spreading around immunity prior to convic it is limited to political refugees of foreign countries, and tion?” The answer is perfectly simple. After conviction I took it to mean that because he had that in mind in civil we have the notoriety of the press, a free press, and no rights, I am in hearty accord there. However, I think that governor would dare to exercise his pardoning powers alter Delegate Anthony is correct. Generally the constitutional conviction unless he could give a suitable accounting to the provisions read as they are in Section 8 and I don’t believe people. However, if you’re going to let him do it in the there are any provisions calling for pardon for convictions secrecy of his office without any publicity, without any notice in foreign jurisdictions, particularly foreign countries. to the press, before any suit has been filed, you may get a So that if the committee report would cover that phase on Mayor Hague in office and he may grant these immunities restoration of civil rights so far as political refugees are to his henchmen. That is the complete answer to that state concerned from foreign countries, I think it would cover the ment. point. As to the words, I agree with Delegate Roberts this has CHAIRMAN: Is there any further discussion? been fully debated. I would have preferred if we’d adhered to the Federal Constitutional provision and make an excep PHILLIPS: In regard to the first point that Delegate tion, “except in cases of impeachment.” But evidently it is Anthony brought up, I address the Convention rather the will of this body that we delete that particular section. timorously because I have a feeling here that this “before I do want to call attention to this fact, that the judgment in conviction,” I can’t see how you could pardon an individual cases of impeachment is very different than judgment in for something he hasn’t done, and I assume that in the cases of a felony. The judgment in cases of impeachment American court he hasn’t done anything until he’s been con— extends only to the holding of office, present or future, victed, or at least that’s what I thought. So I thought that any office of trust or profit under the State or the United if it was the intent of Delegate Tavares to remove charges States. In other words, it has nothing to do with the right from an individual who is being arraigned or has been in to vote. An officer that has been impeached can still vote, dicted, then that would be a different thing entirely, and I his civil rights are not taken away from him, he simply would suggest and I would wish he would answer why he may not hold office in the future. So I would favor a rein wouldn’t change it to have the power to remove charges, sertion of the words “except in cases of impeachment.” or some similar wording. Not that I’m encouraging him to do this, but I mean in order to understand the full intent of CHAIRMAN: Delegate Ashford, do you wish to speak? “before conviction,” which has a hidden meaning for we Is there any further discussion? laymen. I might further say that if he did such a thing, or if such a thing was voted on, that it would be, to my know TAVARES: It’s been mentioned that I have spoken twice. ledge, the first time in American history that they ever had I wonder how many times that rule has been applied during anything like that. It’s the power of the governor traditional this Convention. Since I am the proponent on this I am going ly to pardon alter conviction, but before an individual has to, unless further objection is made, assume that I will get done anything it’s almost impossible for the governor to do the same courtesy that has been extended to other proponents. anything about it. In the first place, the last speaker says that there will be no notoriety. That is the very purpose of saying, “The CHAIRMAN: I might say, Delegate Roberts, that this - - legislature shall provide.” The legislature can and should I mean Delegate Phillips, pardon to both gentlemen—that this provide that when the governor does such a thing, some subject was covered quite well in debate. However, it provision be made for reporting to the legislature or happened that Delegate Tavares was absent on that date otherwise providing notoriety. unavoidably and was unable to—I assume you were too, Delegate Phillips —to make himself known at that time. Now in this business of granting pardon before conviction, some members don’t seem to realize the President of the ROBERTS: I’d like to speak in opposition to this amend United States has had that power for 150 odd years and the ment. In the first place this was rather fully, I think, and only case I’ve been told about where it is alleged he abused carefully discussed on the floor of the Committee of the it was the Aaron Burr case, and I am not certain that all Whole and, as I recall, on the section dealing with “before authorities agree that Aaron Burr was improperly tried. conviction” and “alter conviction” Mr. Tavares took part Only one instance out of 150 years isn’t such bad abuse. in the debate. It seems to me that the language that we Secondly, the governor has had that power for 50 years. adopted in Section 8, which left the words “alter conviction” We’ve heard no instances of abuse by him. Now here’s what in there, was perfectly proper and perfectly Sound and ought can happen among other things. You have a conspiracy, not to be removed. perhaps of a lot of criminals, and you have one fellow willing On the second point, on offenses except treason and to talk but if he’s got a good lawyer he says, “Now look, cases of impeachment, that was discussed on the floor and unless I’m protected, I’m not going to talk.” Well, the we deleted, as I recall, that language on the ground that we prosecuting attorney says, “I won’t prosecute you.” Well, wanted to provide broader powers for the governor. In our if his attorney is good and tough he’ll say, “Well, look here report of the Committee of the Whole it clearly states that now, that’s not binding on your successor or either on you. under its general grant of legislative powers, the legislature What guarantee have we got that this man will be protected can enact general laws providing for immunity from prose if he testifies against his confederates?” So unless you can cution where persons are compelled to testify under certain give him a pardon, he can’t be made to testify and he proba circumstances. So it seems to me that we have taken care bly won’t. He’ll claim his privilege against self-incrimination of that problem and taken care of it adequately. against all the other criminals. There is a reason for that. On the question of political refugees, I think a general It can be abused but so can the pardoning power under every statement in the Committee of Whole report as to our intent other situation be abused and so has it been abused. would cover that. I believe Section 8 as we adopted it Now as to the statement that I was here part of the argu previously ought to stand as it is. ment. That is true, Mr. Chairman, but only half true. I 354 EXECUTIVE POWERS AND FUNCTIONS was here in the morning up to 11 o’clock and I had to go to HEEN: I would like to ask Delegate Tavares to illustrate Maui. I was excused. I spoke to a number of members here what type of legislation would be necessary in order to carry and they have said that if I would move to reconsider, they out the intent he has in mind here of pardoning a person be would support me. I was not here to move to reconsider fore he is charged. after lunch. That’s my excuse, Mr. Chairman, not my CHAIRMAN: Delegate Tavares, would you care to answer justification. that. Finally on the question of disqualification, is it proper even in impeachment to have a man forever disqualified HEEN: It looks to me, it can only apply in conspiracy from holding any office of profit or trust just because he’s cases where you need the testimony of one of those involved been impeached? The impeachment may be for reasons in the conspiracy in order to get the testimony of one of them not at all reflecting on his integrity. It may be that he did to testify against the others. something that the legislature didn’t like, the kind of thing TAVARES: I don’t believe it necessarily includes only that we don’t consider malum in se or even malum prohi conspiracy. There may be a crime committed in which, of bitum, just some improper act that they didn’t like, and course, conspiracy might or might not be involved, in which so he is to be disqualified forever and ever from holding this person was either an accessory before the fact or an any office. If the Convention wants to do that, okay, but I accessory after the fact and the persons could be charged think k’s barbarous. either with conspiracy or with the crime itself. Ordinarily SHIMAMURM May I ask the proponent of this amendment if it’s murder they don’t charge him with conspiracy to com a question? mit murder, they charge him with murder. I think there are a number of other instances where you can get a lesser CHAIRMAN: You may address the Chair. crook to testify about the other - - the bigger crooks in a SHIMAMURA: In his opinion would a person who has been whole crime syndicate, and have him expose a great deal of subjected to impeachment and convicted by the body impeach the criminality there, by giving him some immunity. ing him necessarily lose his civil rights? I’m wondering as Now, my idea of legislation would be this. A law could to that, it’s a question. be passed stating that before the governor grants a pardon before conviction, there must be a report by the prosecuting CHAIRMAN: Delegate Tavares, would you care to answer attorney to the attorney general, and an investigation by the that? attorney general, and a recommendation to the governor TAVARES: Well, isn’t the right to hold office one of the for that matter and that such report and recommendations civil rights? If it isn’t, k’s the first time I have heard of and the governor’s action must he reported at the next it. It certainly is a civil right, the right to hold office. succeeding legislature, or something like that to the legis lature. I believe that would insure proper action and proper ANTHONY: Mr. Chairman, that is not correct - - restrictions on the exercise of that power. Or they could CHAIRMAN: Delegate Shimamura still has the floor. provide that the parole board or some other board set up must first approve it as reasonably necessary under the SHIMAMURA: I understand that, but I’m wondering if circumstances before the governor could grant a pardon. conviction of impeachment per se deprives a person of the The legislature could lay down all of those condkions and I right to hold office. I don’t see any provision in our Consti think they would be your safeguard. tution or anywhere else that provides for that. If I’m mis ANTHONY: I’d like to ask the delegate a question also. taken, I would like to be informed. HEEN: In the legislative article, we have provision for CHAIRMAN: Delegate Anthony, just a moment please, if impeachment of elected officials, impeachment charges to you will. to be filed by the House of Representatives and the charge The Chair has been pondering the question of whether to be tried by the Senate. Now there is this provision in this entire discussion is not out of order. Actually any that article: “Judgment in cases of impeachment shall not amendments to the committee report would be proper. This extend further than through removal from office and dis is an amendment to the committee proposal which I think qualification to hold and enjoy any office of honor, trust would require a reconsideration before we could actually or profk, under the State.” So certain civil rights are taken talk on it. The Chair has been in error in allowing the away from the person convicted in impeachment to that debate to continue this long. I believe unless there is some extent that he can never hold any office of trust or honor appeal to that ruling - - under the State. It seems to me only the exercise of the ANTHONY: For purposes of discussion, I’ll move to pardoning power will restore that right to the person con reconsider that section. victed of impeachment. TAVARES: I’il second the motion. FUKUSHIMA: I believe we’ve gone through this on two CHAIRMAN: It has been moved and seconded that we re occasions. When the Committee of the Whole first met I was consider Section 8 of the committee proposal, Redraft No. 1. the movant of the amendment and I amended the section to All those in favor say “aye.” Opposed. The ayes have it. delete the words “after conviction.” I’m in sympathy, com plete sympathy with Delegate Tavares, but since that time ANTHONY: I’d like to ask the delegate at what stage in I’ve polled the delegates here and apparently that will not this immunity proceedings prior to conviction would the succeed. I only want to point out the fact that we should be public press know that the governor is about to pardon a little more practical and get down to work. This is cer Jelly Smith for his connection with the underworld. Just at tainly a fine amendment as far as I’m concerned, and I’d what stage? like to support Delegate Tavares but I know after polling the delegates here that we have no chance, like the election TAVARES: That question is as broad as the power of of judges. I’d like the Convention to be practical about this the legislature. At whatever stage the legislature choose to matter. Let’s get down to business and vote on it. set it, that’s my answer. JULY 5, 1950 • Morning Session 355 ANTHONY: That answer, of course, shows the inherent ANTHONY: I thiak there is a good deal in what Delegate weakness of the amendment. Now, either Jelly Smith is Roberts said. I accordingly move to defer action on this going to have his pardon in his pocket or he’s not going to section until after the discussion is had in connection with talk. Now at what stage of the proceeding is the press going the legislative powers and functions. to have access to the extraordinary power of the governor to give him that thing so he can stick it in his pocket? Is it PHILLIPS: I second the motion. before he gets it or after he gets it? Obviously if it’s before CHAIRMAN: It’s been moved and seconded that we defer. he gets it, he’s not going to talk. if k’s after he gets it, I’ll allow a discussion only on the motion to defer. then all the damage has been done. KING: I rise to speak against the motion to defer. As a KING: Well, all I was going to say is I think the two points matter of fact, there are very few absentees here. We have of view have been well explained, and the committee is ready a very good attendance. There’s no excuse for deferring to vote. I suggest that the question be put. action on this section, and if Delegate Roberts’ motion is CHAIRMAN: The question before the house is the amend carried, then it would be in order to adopt another Section 8. ment to Section 8 proposed by Delegate Tavares. All those We should get along with our business and report out the in favor of the amendment will say “aye.” Opposed. The proposal on executive powers this forenoon promptly, so Chair is in doubt and will call for a standing vote. All those we can take up the next order of business. So I am opposed in favor will please rise. All those opposed. The ayes have to the action to - - the motion to defer. it by one vote. CROSSLEY: I’d like to speak against the action to defer, The motion is in order for the adoption of Section 8 as and also I’d like to say that I take exception to the remarks - - amended. HAYES: I don’t know too much about these legal points ANTHONY: I’ll withdraw the motion. that have been argued on the floor this morning, but I feel FUKUSHIMA: I’d like to correct Delegate Roberts’ state that the governor should not have that privilege of doing ment that this thing was gone into very thoroughly. if you the things that were expressed by Governor Anthony - - will remember, after I made the amendment the debate was I mean—I first called him Savage Anthony, now I give him only for about twenty minutes participated in only by Arthur a title of Governor Anthony—Delegate Anthony, and I think Trask, Delegate Trask, and Delegate Tavares. It was not, the points that he pointed out are most dangerous for a as Delegate Roberts pointed out, that this was adequately governor to have. That’s my own expression and k’s my debated when the thing was fresh in the delegates’ minds. own feeling on the matter, and therefore, I shall vote against I don’t believe half of the delegates knew that there was such it. a thing as “pardon before conviction” and the thing, the CHAIRMAN: The vote as far as that question is concerned records will bear me out that the debate was not more has actually been taken. than twenty minutes, participated byonly three or four dele gates. CROSSLEY: I now move that Section 8 as amended be adopted. KING: I’d like to speak against the motion to strike out [Section] 8. The amendment we adopted says, “The legis TAVARE5: I second that motion. lature may provide by general law,” and then if goes on. ROBERTS: I would like to speak in opposition to that. Now, if the legislature doesn’t do it, then nothing we’ve done today will give the governor any more power. if the legis CHAIRMAN: Delegate Roberts, in speaking in opposition lature does grant it, if will be because the legislature after to this, you would infer that you have no Section 8. Is that quite full consideration has considered if necessary. correct? On the last feature of this particular amendment, the restoration of civil rights “lost by a reason of conviction of ROBERTS: Beg your pardon? offenses by jurisdiction other than this state,” seems to be CHAIRMAN: The amendment has been adopted. well in order, and there doesn’t seem to be too much objec tion to that. So I’m opposed to Delegate Roberts’ amendment. ROBERTS: That’s right. 1 speak in opposition to adopt I feel the action of the Committee of the Whole in adopting ing the motion as amended. Delegate Tavares’ amendment is quite in order, and does CHAIRMAN: That would mean that we would have no not expose the future State of Hawaii to any unusual danger. Section 8 when we finish. Is that correct? CHAIRMAN: The Chair would like to question Delegate ROBERTS: Or we then move for another section. It Roberts. Did you make a motion that this section be stricken, seems to me that this is a problem of quite vital concern, or did you threaten to make that motion? a problem that was given very serious and very careful ROBERTS: Mr. Chairman, I don’t make any threats; thought by the entire group: Coming back when we are not there’s no basis for making threats before this group. I fresh on one problem, after we had considered the entire merely said that if the amendment as proposed were not article in its context, to take the problem in and Cubmit an adopted there would be, as you pointed out, no Section 8. I amendment and to get it through, to me does not show good then would move for the substitution of language for Section S. sense and careful consideration. I believe that the words “before conviction” were fully and very adequately discussed CHAIRMAN: The motion before the house actually is before, and care taken by the entire group, and I believe adoption of Section 8 as amended, that’s what I wanted to we had a full vote at that time with a very few members clear up. I want - - didn’t want to accuse you of threatening. absent. The entire delegation is not present here this Roll call has been asked. How many in favor of roll call? morning. I would therefore suggest that this section be Sufficient. Those voting aye will be in favor of the adoption deleted and a new section substkuted for if. I will therefore as amended. Those voting no will not be in favor of this vote against the amendment. section. The Clerk will please call the roll. EXECUTIVE POWERS AND FUNCTIONS 356 AKAU: Mr. Chairman, excuse me, I thought we were where they think the governor ought to have immediate power voting on deferring. of suspension or immediate power of removal for cause. CHAIRMAN: The motion to defer was withdrawn. ANTHONY: We had a long debate about a week ago on whether or not we should concentrate all powers of the State AKAU: Oh, will you please repeat now then? in the governor. CHAIRMAN: The motion before the house is the adoption CHAIRMAN: That was two weeks ago, I believe. of Section 8 of Committee Proposal No. 22, RD 1, as amended. The amendment was adopted. Now the motion is the approval ANTHONY: Yes. It’s not very fresh in the minds of this as amended. The Clerk will please call the roll. body at the present time. It was pointed out by those of us Ayes, 36. Noes, 23 (Akau, Anthony, Arashiro, Ashford, who favored appointed officers that there was always a check Corbett, Gilliland, Hayes, Ihara, Kage, Kawahara, Kometani, upon the powers of the executive in the form of confirmation Luiz, Mau, Mizuha, Nielsen, Phillips, H. Rice, Roberts, and removal by the Senate. Now, if I could have the attention Shimamura, St. Sure, Wirtz, Yamamoto, Yamauchi). Not of the proponent of the motion for a moment, I’d like to pro voting, 4 (Kawakami, Lee, Sakai, White). ceed. CHAIRMAN: Section 8, as amended has been approved. CHAIRMAN: Proceed. TAVARES: I believe - - I may be out of order. I don’t ANTHONY: We have just adopted a section which will know whether - -. I haven’t read the rules as to whether, deposit in the governor further power, in other words the since I wasn’t present when Section 10 was voted on I believe, power to reprieve in advance persons who have committed I can move for the reconsideration, but I would like to ask crimes. That is the will of this body. Now we are going some person who voted for that section to move a reconsi further, and we’re going to say that a governor who may deration because I think a very important situation should possibly dominate a legislature may secure the enactment be covered. of a statute which will circumvent the very thing that we did about two weeks ago, namely, will deprive the Senate of its MAU: I move that Section 10 be reconsidered. right of advice and consent upon removal. I think that we’re SAKAKIHARA: I second it. going entirely too far in depositing this vast power in the governor, and I’m against the amendment. CHAIRMAN: It’s been moved and seconded that Section 10 be reconsidered. Delegate Tavares, you may speak. All IVIAU: I am of the impression that the power to appoint, those in favor, please say “aye.” Opposed. with that power goes the power of removal if nothing is said. If we’re correct on that premise, then I don’t know why TAVARES: I move to amend the fourth paragraph of this provision need to go in at all. Particularly do I address Section 10, RD 1, by adding thereto at the end the following that - - this point to those who want to see a brief Constitu sentence, “The legislature may provide by law for the tion, a concise Constitution. suspension or removal for cause by the governor of any officer for whose removal the consent of the Senate is re HOLROYDE: I’d like to ask Delegate Anthony whether quired by this Constitution.” May I have a second to that the governor could remove someone from office immediately so I can speak on it. after the legislature went out of session if there was just 5AKAKIRARA: Second it. cause? That’s the thing that worries me a little bit. CHAIRMAN: It’s been seconded. ANTHONY: If he’s been confirmed by the Senate, it re quires under the - - as we’ve adopted this article thus far, TAVARES: I’m not bringing this up for delay. I really it will require the consent of the Senate. In other words, the feel there’s a situation that needs to be covered. The legis Senate would have to reconvene, and we debated that, I lature has in the past, in spite of our Organic Act requiring might say, in great length. That could be done very ex consent of the governor [sici to removal, provided that if a peditiously. certain type of officer engages in political activities the gov ernor shall remove him forthwith, and I think that there is A. TRASK: I am for this amendment. It would seem to room for such a provision. If the legislature in addition me that we are not giving the governor any more power to the requirement that the Senate must consent to removal then he already has. He has nominated a person for the of an officer wants to give the governor the power to suspend office of the twenty departments. Certainly the person say, or remove for causes by requiring a hearing and so nominated is his friend. All we need is confirmation of the forth, it seems to me the legislature ought to be given that Senate, and if there is just cause for his removal, I think power. I can imagine a situation where the legislature would the governor should be empowered to do so. say that if the attorney general accepts a fee, instead of TAVARES: I’ve been asked by another delegate to ex waiting - - a fee for doing something that is his duty to do, plain that the word “cause” means the legislature would instead of waiting for the Senate to convene, the governor, prescribe or could prescribe the causes for which the after hearing, shall forthwith suspend him to the next governor could remove, and unless the legislature passed sessiOn of the Senate or remove him. Or for the legislature a law expressly stating the types of causes for which the to say if certain types of officers engaged in political activity, governor could remove, or that he could remove for just the governor shall forthwith remove them, or after a hearing. cause and prescribing the situation under which he could It seems to me that that would not be going too far. In the remove, the governor could not exercise such power. I Senate, which has the prerogative of consenting, if it doesn’t don’t think it’s giving to the governor all that power, and I want to give the governor that power, it can vote against think it’s assuming quite a bit to say the governor’s going the law, and thereby prevent the law from going into effect. to dominate fifty-one representatives and twenty-five So that it seems to me that here is a situation that isn’t covered by the existing Constitution, and that gives the legis senators. He must be a pretty powerful governor to do lature the power to allow for those situations, special ones, that. I don’t think he will to that extent. JULY 5, 1950 • Morning Session 357 CHAIRMAN: If there’s no further debate, the Chair will WOOLAWAY: I second the motion. put the question. The motion is for the adoption of the proposal to amend Section 10. AU those - - CHAIRMAN: It’s been moved and seconded that Section 10, as amended, be adopted. All those in favor say “aye.” HEEN: I rise to a point of information. Is this proposed Opposed. The Chair is in doubt. All those in favor say “aye.” amendment intended to be substituted for paragraph four Opposed. The ayes have it. of Section 10? The motion before the committee is for the - - There is CHAIRMAN: It’s an addition. Delegate Tavares, would no motion before the committee. you clarify the placement of this? CROSSLEY: If there are no further corrections, additions, TAVARES: It is an addition. I don’t know whether it’s in deletions, or substitutions, I move that the Committee of the the right place but the Style Committee could take care of Whole Report No. 17 be adopted as amended and pass second that. But this Section 10 in other paragraphs provides that reading and that we rise and report. in the case of single cabinet officers, the governor must APOLIONA: I second the motion. appoint with the advice and consent of the Senate, and it requires the advice and consent of the Senate to removal. CHAIRMAN: It’s been moved and seconded that the Com Then there is another section that says as to officers or mittee of the Whole report be adopted as amended. members of boards, provision for their removal shall be provided by law. Evidently we’re not afraid to give the ASHFORD: One of the difficulties of that is that the legislature power to tell the governor how to remove mem explanations will no longer apply. bers of boards of principal departments, but we’re afraid to TAVARES: I move to amend the motion to adopt, so that pass a law giving them power to remove single executives. it is a motion to adopt the Committee of the Whole report, as submitted, with leave to file a supplementary report CHAIRMAN: Does that answer your question, Delegate Heen? incorporating and explaining the amendments approved at this hearing of the Committee of the Whole. HEEN: It does. CHAIRMAN: The Chair will put a question. Delegate WOOLAWAY: I second the motion. Arashiro, did you - - CHAIRMAN: Delegate Cros sley, will you accept that HAYES: I have a question. amendment, please? The amendment is accepted. ARASHIRO: Another question I wish to ask the proposer HEEN: I think what might be done is this, that the report of the amendment. What are the causes that you are thinking of the Committee of the Whole be adopted recommending the of giving the governor the authority to remove for? What passage of the committee proposal which is incorporating kind of causes? and attached to the Committee of the Whole report, subject TAVARES: That’s pretty hard to explain, but I can think to the amendments which have been made today. of this. Supposing it should be found —heaven forbid and I KING: If Delegate Heen will make that as a motion, I’d know of no such situation—that the attorney general had re be glad to second that if the others will withdraw their ceived a bribe. I wouldn’t even want to wait till the Senate preceding motions. could be convened before the governor at least could suspend him, and the same would be true of any other officer. I’d HEEN: i so move, by way of an amendment. want to get him out of there just as fast as I could, at least suspend him, and the legislature could so provide. CHAIRMAN: Is that satisfactory to the various movants? All those in favor of the motion will please say “aye.” ARASHIRO: If the governor abuses this power and has Opposed. Motion is carried. the tendency of creating a political machine, then - - The motion before the house now in order, I think, will TAVARES: Then all the legislature has to do is repeal be to rise and report adoption of the committee report. the law. HOLROYDE: I so move. CHAIRMAN: 0. K. All those in favor of the amendment, SAKAKIHARA: I second it. please say “aye.” Opposed. The ayes have it. CHAIRMAN: It’s been moved and seconded that we rise CROSSLEY: I move the adoption of this Section 10. as and report adoption of the committee report. All those in amended. favor say “aye.” Opposed. Carried. Debates in Committee of the Whole on JUDICIARY (Article V) Chairman: kANDOLPH CROSSLEY recently had a supreme court, I believe, it was 15. And in JUNE 8, 1950 • Morning Session the early days, New York had a supreme court of like CHAIRMAN: The Committee of the Whole please come number on which there were certain lay judges. to order. At ease. The Chair recognizes Mr. Anthony. Section 3 is the one section - and I might state at the outset that your committee is unanimous in the recommen ANTHONY: For the convenience of the delegates I sug dation of the adoption of this article except for Section 3 gest that you have before you Standing Committee Report relative to appointment of judges. Section 3 makes the judges No. 37 in letter size, not the one that was inadvertently run appointed by the governor with confirmation by the Senate. off in full legal cap, so we’ll all be reading from the same I wish to make a correction. There was one dissent on document. And before proceeding, there is one error in the five judges. Yamauchi thought that there should be a court report which I’d like to correct at this time and that is of three, and so indicated on the report. on page 4, about the middle of the paragraph entitled “Section This was the chief bone of contention in your committee. 2,” the sentence, “Only two states,” that should read, “Only The majority of the committee feel very strongly that we three states,” and in the parenthesis, “Arizona, Nevada and should have a system of appointive rather than a system of Wyoming have a supreme court of three.” elective judges. In the first place, the idea of the judiciary I will briefly take up the sections. As stated in the com is to have an independent branch of government. It is to mittee report, the guiding principle in the drafting of this have judges who will be independent, who will not be swayed article has been an effort on the part of your committee to by partisan whims, will not be swayed by the mores of the erect a judiciary article which will attract the best caliber day but will interpret the law as the law should be interpreted of material to the bench, and in order to do that, the problem without regard to particular political pressures which may of selection and tenure and security in office has been upper from time to time be brought upon the judiciary. It is the most in the thinking of the committee. balance wheel, the conservative balance wheel of our govern Section 1 deposits the judicial power in the supreme court, ment. and therefore it is essential, your committee feels, the circuit courts and such inferior courts as the legislature that this should be an appointive system. may, from time to time, establish. That is an ample deposit I would like to point out that every single change that of the judicial power. It states that there will be two consti has been made in regard to state constitutions has been a tutional courts, namely a supreme court and circuit courts, change away from the system of popularly elected judges, but leaves to the legislature the designation of the number within the last 25 year. There has been an effort on the of circuit judges and leaves to the legislature the creation part of states to go back to the original system, come closer of inferior courts, such as the police courts or district to the present Federal system, which is life appointment of magistrates, which we now have. Similarly, the matter of judges by the executive. I might say, as stated in the report, jurisdiction is fully left with the legislature, that is both that the matter of popularly elected judges came up in the original jurisdiction and appellate jurisdiction. Jackson Era when many states departed from the system of The second section provides for a supreme court of five appointive judges and the western states, particularly, adopted justices. That is a departure from the existing system, and the system of elections. there was some debate in the committee whether or not there Now you simply do not get good judges in a popularity was need for a court of this size. The final consideration contest. If you were going to have your appendix taken out, and judgment, unanimous judgment of your committee was you wouldn’t put it up to a popular vote. What you’ve got to that a court of five is desirable. One of the reasons is an have is persons of skill, persons of integrity, persons who effort on the part of the draftsmen of the article to erect are good lawyers. and you don’t get persons of that character a supreme court that would have a minimum of disqualifi offering themselves on the political stump in a political cations in cases that came before it. partisan campaign to run for judicial office. It is extreme There is this to be pointed out, however, that our present ly distasteful to any lawyer to campaign for office - - for supreme court does not have too heavy a docket, some 80 judicial office. I accept the correct. or 90 cases per annum. But when we change from a Terri The reason for it is perfectly plain. This is a lawyer’s tory to a State, the supreme court will be passing final profession, and no lawyer who is worth his salt is going to judgment on constitutional questions that arise under the stump up and down the country and say, “What a fine lawyer State Constitution and, therefore, it is considered desirable am I.” It just isn’t done. As a matter of fact we are pro by the committee that that be done by a court of five, instead hibited by the canons of the American Bar Association from of three as we presently have. I might point out to the advertising, and certainly a political campaign is one ex members - - the delegates that the actual expense involved ception and not a very nice exception. is not very great because the whole judiciary department is So your committee has reached the conclusion, despite relatively small when you compare it with other departments the dissent of some seven members who favor some form of government. of an elective system, that there is no good reason that has There are three states, as noted in the report, that have been advanced why judges should be elected. a supreme court of three. All of the rest of them have any The minority has not filed a report. They have not stated number, varying from five to nine. New Jersey until just their reasons why they favor an elective system, and I can 358 JUNE 8, 1950 • Morning Session 359 assure the members of this Convention that all of the leaders office. We think that that is a wise safeguard against having in the field of jurisprudence favor an appointive system. So a judge on the bench who is not able to perform his duties. we hope that this Convention will adopt such a system. Section 6 authorizes the legislature to fix the compensation I would like to point out one further thing, that Hawaii of judges and provides that ii shall not be diminished during has enjoyed a long and rather fine tradition of an appointive their term of office. The reason for that is to strengthen the system. It goes all the way back to the Constitution of 1852 judiciary, make it independent. under the Monarchy, the Constitution of 1865, the Constitu We had considerable debate in regard to the matter of tion of 1887 and the Constitution of the Republic. As a matter pensions. Orginally the committee had in mind and discussed of fact, we had under those great documents, we had life whether or not we should attempt to fix in the Constitution tenure on the supreme court or tenure during good behavior. pension for full salary after a stated number of years of After the adoption of the Organic Act we again retained the service or a certain proportion of it. After turning that over appointive system but for a short term. But those early again and again, we decided that this was a matter of legis Constitutions of Hawaii contained very wise provisions re lation and that we felt - - even though we felt strongly that lating to the judiciary. And it would be a great step back it was essential there should be a pension system, we felt ward, in my judgment, if we were to go from that tradition equally strongly that this is a matter for the legislature to to the tradition of partisan, politically-elected judges. As decide and that is where it has been left. a leading authority on this subject has said, “This is an Section 7 prohibits a judge from holding any office of unfortunate legacy in the state judicial systems and they are trying to get away from them the best they can.” profit under the State or the United States. That means he can’t hold two jobs. It doesn’t prevent, for instance, the Section 4 deals with the removal of judges by the im judge from service - - a judge of the state court from serving peachment process. This follows the traditional pattern on the Board of Regents of the University or on the Public set up in the Federal Constitution. The House of Representa Welfare Advisory Board or any other board on which he does tives makes the charge. It is then referred - - it makes the not receive - - from which he does not receive compensation. charge by a simple majority vote. It is then referred to There was a question that arose in the committee discussion, the Senate which sits as a court under oath or affirmation namely, what effect this would have upon reserve officers and tries the case. And upon impeachment, the conviction who would be called into active duty, and that was finally must be with a concurrence of the members of the Senate decided in favor of leaving the provision as we have drafted present, two-thirds of the members of the Senate present. it, since it is important and essential that the civil power re That doesn’t mean the entire number. It means those that main supreme. In other words, we feel that there is ample are present and voting. That ties in directly with a proposal room by legislation or regulation in the military service that is pending before the Committee on Legislative Powers to provide for that situation, and rather than to make any and Functions. exception for military service, we have stated the provision There is one improvement upon that, we think, and that as it stands. is where a judge is impeached, this article provides—and Section 8 is a departure from the present system. We mind you, the impeachment is the charge, it is not the convic think it a wise one. The purpose of it is to make the chief tion—the judge is not permitted to exercise the powers of his justice the administrative and the responsible head of the office until his case has been disposed of. In other words, judicial system. In other words, it puts the burden of ad if the House of Representatives should charge an impeach ministrating the judiciary department right on the chief ment, that judge would no longer exercise the power of his justice. It provides him with an administrative arm in the office until the Senate had passed on his case and he was form of a director who will attend to the business of the acquitted, which we think is a distinct improvement on the court. We think it is a very necessary and wholesome pro Federal provision. vision. I neglected to state one thing. In the framing & this Section 9 preserves our existing system and authorizes article we have had before us as a pattern the New Jersey the chief justice to make assignments of circuit judges from plan. We have incorporated into the judiciary article what one circuit to another. That is a very convenient, very we consider a wise provision of the New Jersey plan which effective device. Witness - - there are two judges that are provides that the governor must give ample notice, public from here, you have seen them around this floor from time notice, before sending any name to the Senate for confirma to time, Judge Wirtz and also Judge Rice, who presently tion. This would avoid any hasty action upon the part of the from time to time are doing assignments in Honolulu, re executive. It would avoid any arrangement between the lieving the congested calendar due to congestion or absence executive and a majority of the Senate whereby we could of local judges in the First Circuit. have “midnight” judges and the public know nothing about Section 10 is an extremely important section, and that is it. In other words, there will be full publicity, full opportu the section which deposits in the supreme court the rule nity in the press and the radio and public debate to discuss making power, governing practice, procedure, appeals in all the qualifications of any man before he is confirmed. of the courts. That is one of the most needed provisions that Section 5 of this proposal is likewise taken from the we have and the way it will work is this. The supreme court, New Jersey Constitution. One of the ills of the judiciary following the pattern set by the Supreme Court of the United system is that sometimes judges get on the bench and they States, will call in a group of lawyers, have them draft rules, are decrepit and there is no way - - nothing you can do about then there will be publication of the rules for a stated number it, very much. This section will provide, where a judge is of months, and after everybody has had his say about it, the mentally or physically incapacitated, upon a certificate of rules will become effective. When they become effective, the supreme court to that effect—now that means a majority they will have the force and effect of law. It has the great of the supreme court and they could certify as to either the merit of this, if there is something awkward or inconvenient chief justice or one of the associate justices—the governor in any rule, that can be called to the attention of the court is obliged to appoint a commission of three who will examine and after full exploration can be promptly corrected. In into the matter and make their report, and upon that report, other words, you don’t have to wait for the next session of the chief executive may retire such incapacitated judge from the legislature. JUDICIARY 360 There is one other matter which the committee was CHAIRMAN: The Chair would like to ask the chairman divided on and that was the matter of the judicial council, of the Committee on Judiciary just how he would like to and I would like—that is not included in the article—but I take up the proposal. know that inasmuch as certain members have talked about ANTHONY: I would like to take it up section by section, it, I would like to briefly explain the position of both sides. if that’s agreeable to the Chair. I voted with the majority against the judicial council. I think my friend on my right here voted for a judicial council. The ASHFOBD: In that regard, the attitude of one of the dele judicial council program was devised in an effort to get away gates, and perhaps more, on Section 3 will depend somewhat from the ills of popularly elected judges. That was the reason upon Section 4. May we not discuss those together? for it. That was why the American Bar Association did not ANTHONY: I have a suggestion which I think will meet feel equal to going “whole hog” and asking for an appointive the delegate’s suggestion. The members will note that the judge system, such as the Federal system, such as has been committee is unanimous in every section with the exception clearly, by the best writers, said to be the one desirable of Section 3. We could, if the Convention and the chairman system, but felt that this was the easiest compromise and desires, we could discuss all sections but Section 3, and then transition from popularly elected judges to a system in which come back to Section 3. Will that accomplish the purpose of there is an executive appointment. Now, in that regard, we’re the delegate? a very small community here, and there are a number of us that feel that if we have a judicial council, that possibly MAU: I want to correct an impression that was given by might deposit too much power in the members of the council, the chairman of the committee. I believe he stated that there some of whom, probably a maj ority, would be members of would be no minority report filed. That is correct. Because the bar and thus they would have at least the accusation of of the persuasive powers of the chairman, we all agreed to seeking the appointment of a certain judge and then seeking the sentence reading, “A minority of your committee is not favors at his hands when they practice before him. On the in favor of Section 3 which provides for appointment of judges other hand, the members of the - - the other members will by the governor and confirmation by the Senate, and this speak for themselves on that. It does have the merit, if minority dissents from the reasons given in the report in you’re going to have any elections, to get away from partisan support of the executive appointment of the judiciary.” elections, but since it is my hope that this Convention will If I believed that a minorityreport would make any differ not favor election, I see no need for including the judicial ence insofar as the vote goes, we would file a minority re council. port, but it was with unanimous consent and, as I said, the We have examined a series of other proposals. They persuasive powers of the chairman, that we all signed this are all - - the disposition of them is referred to in the re with that provision in the report. For the - - port. The matter of advisory opinions, which is a departure CHAIRMAN: The Chair would like to ask, what pages are from our present system, the committee felt was inadvisable. you reading from in the committee report, Delegate Mau? I believe I am correct in saying that there are only three states, or four states, Maine, Massachusetts, New Hampshire MAU: Page 8, at the bottom, the last sentence, and it and Rhode Island, I believe, that have advisory opinions. goes on to page 9. It’s just a one sentence statement placing But that has never worked very well, the simple reason the position of the minority in this report. For the infor being that when the legislature sends over to the supreme mation of the Convention, I think it might be wise to state court a request for an opinion, naturally the legislative that the majority consisted of eight, as against the minority body or the executive can’t have all the facts that are of seven. We had a committee of 15, SO that it was a very necessary for a court to render an intelligent and enlight close vote. For the further information of the Convention, ened opinion. For that reason, the opinions of the justices I think it might be wise to name the delegates voting for the in the Massachusetts courts and in the Maine courts have appointment and those against. Those in favor: Garner not proved a very workable device. In our tradition of the Anthony, Nils Tavares, William Heen, Herbert Lee, Harold common law, we deal with cases and controversies. We Loper, Jack Mizuha, Harold Rice, Cable Wirtz. Those don’t deal with theoretical ideas, theoretical problems. We against: Nelson Doi, Hiram Fong, Y. Fukushima, Chuck have a method of handling that sort of thing, what is known Mau, Steere Noda, Thomas Sakakihara and T. Yamauchi. as a declaratory judgment statute which amply gives litigants I think that the chairman was correct that the minority the desired security of judicial opinion, if they have a real agreed to place their position merely on Section 3 but a case. comment on Proposal 7. In this article for judiciary, all In the matter of women on juries, we made our recom that would be sufficient would be Sections 1, 2, 3 and 10. The remainder could have been taken care of by legislative act. mendation; that has been adopted by the Committee on Bill However, we’re not making a contest about that, but that is of Rights. just a comment for those who believe in a concise Consti The question of the recall of judgeh, of course, was so tution. foreign to the views of the committee, I believe the entire committee, that that was rejected. You’ll never have an in CHAIRMAN: If there’s no objection, we’ll take up the dependent judiciary if you are going to have them subject Committee Proposal No. 7, section by section. It’s therefore to a popular election. That was the great hue and cry when in order for the adoption of - - moving to adopt Section 1 of Teddy Roosevelt conducted his Bull Moose campaign in 1916, Committee Proposal No. 7. I believe it was, in which he went for the recall of judges ASHFORD: Does that mean that Section 3 will be deferred and the recall of judicial decisions, a thing that would be until the end? utterly destructive to our doctrine of separation of powers, our doctrine of the supremacy - - the co-supremacy in their CHAIRMAN: Section 3 will be deferred until the end. respective spheres of the three departments of government. BRYAN: I would be very happy to move for the adoption Your committee is unanimously against any such proposal. of Section 1 of Committee Proposal No. 7. I would be very glad to answer any questions that may be asked in regard to the proposal. Thank you, gentlemen. DOWSON: I second the motion. JUNE 8, 1950 • Morning Session 361 CHAIRMAN: The Chair will be happy to recognize anyone MAU: I think that Mr. Gilliland’s - - Delegate Gilliland’s else. question should be answered. He stated that presently the MAU: I want to call attention to the fact that this is a court is constituted of a - - by a chief justice and two justices different team playing today. and they don’t have enough to do. ANTHONY: What was the motion? I didn’t hear - - CHAIRMAN: Do you wish to answer it? CHAIRMAN: The motion was to adopt Section 1 of Com MAU: Yes, I think that the true situation is this. I don’t mittee Proposal No. 7. Any discussion? All those in favor believe that there have been many, many years in which the say “aye.” Opposed. Carried unanimously. court has caught up with its calendar. They have always been Section 2. behind on their cases. And I think this is also true. Lawyers are reluctant to take an appeal to the supreme court because BRYAN: I move the adoption of Section 2 of Committee of the time element. It takes them quite a while to get a Proposal No. 7 as written. decision rendered, and the litigant’s interest must be con DOWSON: I second the motion to adopt Section 2 of sidered in that respect. But if you have five justices and Committee Proposal No. 7. they could process and do their work more readily and more quickly, the litigants would have better satisfaction in CHAIRMAN: Same motion, same second. Any discussion? their courts, and I believe that that would be one of the MIZUHA: There is one question that must be clarified. beneficial results in having a larger supreme court. What would constitute a quorum of the supreme court? TAVARES: One other reason, and the one which impelled CHAIRMAN: Would the chairman of the committee care me to decide in favor of five as against three, was this. At to answer that, or Delegate Tavares? the present time with our three-judge supreme court, if an act of our legislature is declared invalid under our Organic TAVARES: I think it is a universal rule that where nothing Act or under the Federal Constitution, we have an appeal to has been stated, a quorum is always a majority, and they the Ninth Circuit Court of Appeals and a possibility of an must always act by a majority of all the members. I don’t appeal to the United States Supreme Court. But once we believe that there will be any question in the court’s mind become a state, any question under the State Constitution is about that, but we can, in the Committee of the Whole report, going to be decided finally by this supreme court, and it reinforce that by a statement that a quorum would naturally seemed to me that I’d rather have three out of five declare be a majority and the court would have to act by a majority a law unconstitutional than just two out of three. of all its members. ASHFORD: I think a supreme court of five is desirable FUKUSHIMA: I don’t believe that’s the correct statement for just the opposite reason stated by Delegate Mau. In other of the facts. “The supreme court shall consist of a chief words, if you have a crowded calendar a lot of people appeal justice and four associate Justices.” There’s no such thing because they say, “Oh, well, that will give us another six as a quorum. A court is a court. It consists of a chief jus months, or another year.” And if you have a court that can tice and four associate justices. In order for a court to be keep up-to-date, the appeals will be fewer. legally functioning, it has to be by five. Isn’t that correct? MIZUHA: Following up my question, is it my understand ANTHONY: That statement is correct. ing that the supreme court cannot hear any appeal unless TAVARES: I want to correct my statement, Mr. Chair they have five members sitting there? There are other man. That’s correct, the first part. I meant that they would supreme courts in other states that hear appeals with a have to act by a majority. lesser number sitting on the court and their decision is final. ANTHONY: When the court acts, as stated by Delegate Tavares, it must act by a majority, not less than three. In ANTHONY: The delegate’s statement is càrrect. If you other words, if there is a vacancy for any reason, then there wanted to have a decision by a division of three, then an has to - - then that vacancy by reason of illness or absence amendment would have to be made to this article to permit or whatever it is has to be filled, and the mechanics of filling the court to sit in divisions of three. it are right in the article. MIZUHA: Maybe an amendment is in order because the MAU: Point of information. I got the impression that we criticism we hear now is that it takes so long to have an were to delay consideration of Section 3. appeal decided. If we are going to assign judges every time to fill a vacancy in case of illness or absence or disqualifi CHAIRMAN: This is Section 2. cation, it may slow up the process of appeal there in the supreme court. MAU: Oh, two, excuse me. GILLILAND: We have at the present time a chief justice TAVARES: There is a provision in this Constitution - - proposed article rather, that will take care of the situation and two associate justices and apparently they haven’t got enough work to do. Now in this proposed Section 2 we intend by, as the delegate who has just spoken says, by assignment to have a chief justice and four associate justices. What in of circuit judges. Now that only takes a five minute telephone the world are they going to be doing? I’d like to know why call and catching the first plane over here to hear the argu we want four associate justices and the supreme court [chief I ment. I don’t think it will hold up the writing of the opinions justice. at all, or substantially, to do that. Undoubtedly, in most cases there will always be a full - - there will be a full HAYES: I just wanted to inform the delegates here that, court, and in those rare instances where a judge is disquali if I remember correctly, when one of the judges passed fied or absent or ill, his place can be filled by circuit judges away—Judge Moore? —it was Cristy—that the court couldn’t under this article just as they are filled today in similar function until the appointment had been made. Is that situations, except recently, where a judge is absent and not correct? dead. JUDICIARY 362 By the way, that’s been taken care of, the law has passed ANTHONY: The Federal Constitution does not provide the Congress and is before the President to take care of that for the number of judges on the Supreme Court of the United situation at the present time, where a judge of the supreme States. It provides for a Supreme Court. The court origi court dies. nally started off, I believe, at seven. One time there were eleven; one time it was eight. That has been one of the CHAIRMAN: Any other discussion on this? rough spots in our Federal judiciary - - judicial history. TAVARES: Our article will take care of that situation For instance, during the Civil War there was a wrangle specifically, also. over the Reconstruction Acts and the court refused to - - the legislature - - the Congress refused to increase the ROBERTS: Which article is that? number from eight to nine simply because they didn’t like TAVARES: Section 2. the executive then in office, President Johnson. In one case, they denied the appellate jurisdiction of the Supreme Court. CHAIRMAN: Are you through, Delegate Anthony? For that reason, the committee felt it desirable to put TAVARES: I was just asked a question. Shall I - - that number beyond the realm of any tinkering by legislation. In other words, we want to know what the court is and CHAIRMAN: The question wasn’t addressed to the Chair whether or not we are going to have a full court. Most and I’d appreciate it if you would recognize the Chair. state constitutions, I will say, do have a stated number of HEEN: May I address the Chair? justices on the supreme court. The other matter, of course, judges of the circuit courts CHAIRMAN: I recognized Delegate Yamauchi. is, of course, leftto legislation as the business of the several circuits requires. YAMAUCHI: In the discussion that has been held here, I have signed this report favoring - - I mean against the CHAIRMAN: Delegate Ohrt, does that satisfy you? Is number of judges, that is the number of associate justices, your question answered? and I believe from the standpoint of the element of cost as well as to the area that we have comparable to many of the OHRT: Not quite. I’d like to know whether it’s statutory states, and also for the reason that the number of cases or not. We have been hearing so much about this consti that are being held In the supreme court at the present time, tutional law and statutory law. It is an exception, in my and also for that reason that the case stated in this report mind, and I think the chairman has admitted that. in regard to Justice Cristy’s appointment, I think that could ANTHONY: It could be enacted in statute. But I’ll say be taken care of by this section at the present time, and this, most state constitutions, I think, uniformly state the therefore I would like to amend Section 2 to read as follows: number. “The supreme court shall consist of the chief justice and not less then two associate justices.” TAVARES: I think the main reason why it is necessary to set the number in the Constitution is that it will prevent CHAIRMAN: Is there a second to that amendment? court-packing, and that is something that we very narrowly Delegate Heen, you are recognized. escaped, if the members will remember, in the last decade or so where there was an attempt to pack the Supreme Court HEEN: What I wanted to say was this. In reference by creating 15 justices so that they could put their own people to the question of quorum, the provision in our Organic Act in and get their own philosophy over. I think it’s a dangerous does not say anything at all about a quorum. It simply says thing to leave to the legislature and the governor, who, at this: one time may feel that they want to accomplish some results That the supreme court shall consist of a chief justice by simply packing the court. I think it’s very desirable and and two associate justices, who shall be citizens of the necessary to fix that number in the Constitution, so it can’t Territory of Hawaii and shall be appointed by the Presi be monkeyed with, the proper way. dent of the United States, by and with the advice and con KAUHANE: I’d like to ask a question. Under Section 2, sent of the Senate of the United States, and may be removed “The supreme court shall consist of the chief justice and by the President: Provided, however, that in case of the four associate justices,” as stated here before, if in open disqualification or absence of any justice thereof, in any court, a full quorum of the supreme court shall be present cause pending before the court, on the trial and determi to hear cases in open court, what number is then required nation of said cause his place shall be filled as provided when hearings are held in chambers? by law. ANTHONY: The supreme court does not hear cases in Now, with the absence of any provision relating to quorum, chambers. That is a single judge, Delegate Kauhane, in the supreme court of the Territory of Hawaii has rendered equity, under our present system. a decision by a majority of two and that has been the practice right along. However, the court must be a full court at all KAUHANE: I’m only thinking of other jurisdiction which times in order to hear a case, and that’s taken care of in - - or other states which have similar provisions in the this particular provision in Section 2. The second section formation of the supreme court, with certain businesses of Section 2 reads - - or rather the second sentence, “When delegated to a number of the associate justices to carry necessary, the chief justice shall assign a judge or judges out. If we feel the associate justices are to be given special of the circuit court to serve temporarily on the supreme powers and duties, and if, as stated here, in open court a court.” full quorum of the supreme court is necessary, and if dele gation or allocation of business is made to the two associate, OHRT: I’d like to ask the chairman of the committee a the four associate justices, then, I certainly believe that it question. I’d like to know, from all that I’ve been hearing will be a department doing one - - conducting one affair of here, whether or not the fixing of three or five is not the court, and another department conducting another affair statutory and should not be left to the legislature. of the court. That’s the reason why I ask if such matters CHAIRMAN: I recognize the chairman of the committee. are necessary and practical, and if it requires that hearings JUNE 8, 1950 • Morning Session 363 are to be held in chambers, I’d like to know what number is much of the cost as necessary on the poor man who wants to sufficient to allow such judgments if it is rendered in cham carry his case right through to the supreme court. bers. Maybe Section 2 needs to be amended to allow some thing of that nature. CHAIRMAN: The Chair will recognize the chairman of the committee to answer the question, then will recognize HEEN: It’s not an accepted practice at all that I know of, Delegate Gilliland. that cases are heard by the supreme court in chambers. The people who appeal their cases to the supreme court are ANTHONY: The State of California has some ten million entitled to have their cases heard by the supreme court people in it. I don’t know the exact figures. It has an appel sitting with a full membership. Now in the circuit courts, late court of 12. It has a vast volume of judicial business the legislature can provide for the hearing of various types that comes before that appellate court and in order to trans of proceedings before the judge sitting in chambers. For act the business of the highest court of California, they have instance, the probate cases are heard by the circuit court found it necessary to divide it up into departments. Some sitting in chambers, and there are cases in equity [whichJ cases are held - - heard before a department, others are may be heard by a judge sitting in chamber, and by statute heard before the full court, en banc. judges sitting in equity may assign certain type of work to That is a totally different situation than we have here. referees, or masters, rather. We are a small country of roughly a half million people. A court of five is ample, more than ample in the judgment of KAUHANE: I’m not lawyer but a common, ordinary lay some of us, to transact the appellate business of the Terri man. I want to read from the Constitution of California, tory, and the court will always be available to hear any “Supreme Court, Distribution and Conduct of Business.” litigant. Maybe California has the very thing that I feel is necessary There is no distinction, or comparison, rather, between for Hawaii to help the common people. what is done in a trial court and chambers. That expreEsion Section 2. The supreme court shall consist of a chief “in chambers” is simply some ancient lawyer’s lingo which justice and six associate justices. The court may sit in distinguishes trial in jury cases from other trials, such as departments and in bank, and shall always be open for probate, divorce, and receiverships and things of equitable the transaction of business. There shall be two depart nature, hence the expression “in chambers.” As a matter ments denominated, respectively, Department 1 and of fact, you go in the same courtroom, you hear your case Department 2. The chief justice shall assign three of before the same judge, you have the same clerks. You have the associate justices to each department and such a different number up at the top of the file, which is entitled, assignment may be changed by him from time to time. “Equity number so and so, in chambers.” So there is no The associate justices shall be competent to sit in de occasion for putting anything into the Constitution relative partment and may interchange with each other by agree to appearance or hearings in chambers. ment amongst themselves, or as ordered by the chief Each judge—if that’s what the question was addressing justice. Each of the departments shall have the power itself to—each judge could have - - would have the power to hear and determine causes and all questions arising under this article to issue a writ of habeas corpus, a single therein subject to the provisions hereinafter contained judge. In other words, if a litigant walked up to the supreme in relation to the court in bank. The presence of three court right now and found one judge in, he could get a writ justices shall be necessary to transact any business in of prohibition or writ of mandamus or writ of habeas corpus, either of the departments except such as may be done if he could persuade that single judge he was entitled to it. in chambers and the concurrence of three justices shall It would then be returnable before the court. It would not be necessary to pronounce a judgment. make for expediting the business of the court to divide it into departments, in my judgment. CHAIRMAN: May the Chair ask - - KAUHANE: That’s the thing I’d like to raise here. If GILLILAND: I know of only one restriction now that this provision, as contained in the Constitution of California, prevents a case being heard in chambers, and that is where is workable and has served the purpose to help the common a counsel demands a jury trial. In that case, the cases would man in getting the court to have his cases heard in the be heard - - have to be heard in the public courtroom. Under the Organic Act it provides that divorce cases shall be heard respective courts, certainly we should give some consider in the public courtroom, but I know, in my own experience, ation to this matter. That’s the reason why I raised the I’ve had cases where the court has asked counsel to stipulate, question as to a quorum. for the purpose of that particular divorce case, the judge’s CHAIRMAN: May the Chair ask Delegate Kauhane if he chambers shall be considered the public courtroom. So has any amendment to offer on this section? there, is only one restriction, Mr. Kauhane, on having cases heard in public courtroom, that is when you demand a jury KAUHANE: Well, Mr. Chairman, until the question is trial. I think I’m correct, if the delegate from the fourth answered as to - - As I stated in the first instance, the district will bear me out on that. statement was made, if in open court a full quorum is necessary with the supreme court, my understanding to A. TRASK: I just have one question I’d like to ask the that statement is, if the court is in session, both the supreme chairman. It’s not explained in the Section 2 on page 4 of - — the chief justice and the four associate justices shall the report. Namely, it has to do with, “In case of a vacancy sit to hear cases that comes before them. I’m concerned in the office of chief justice, or if he is ill, absent or other about cases, and if it is practical to have cases heard in wise unable to serve, an associate justice designated in chambers, how many of the five members shall constitute accordance with the rules of the supreme court shall serve a quorum to do business in chambers? temporarily in his stead.” Now, I’m concerned about the Certainly, if we allow in the lower court the hearing of question of whether or not the words “vacancy, ill, absent or cgses in chambers by the judge who presides in the lower otherwise unable to serve” would include death, because the court, we should then follow that practice up to the supreme language is different from the language in the second sentence, court, if necessary, with the express purpose to alleviate as “When necessary,” which would include any contingency, an JUDICIARY 364 associate justice may be appointed from circuit. I wonder month vacation during different months of the year. That why that tenor of language was not followed with respect to does not happen in practice. The practice adopted by this the absence of the chief justice. supreme court is like the practice in vogue in the Supreme Court of the United States. In the summer months, I think CHAIRMAN: Will the chairman of the committee answer? for a period of two months or so, there is no full hearing ANTHONY: I’d be very glad to answer that, Mr. Chair of the court. They don’t hear any cases. There is a justice man. The word “vacancy,” if the office is vacant that would remaining to administer the administrative affairs of the include death, in the first place. The reason we didn’t follow court, but at least nine, ten months out of the year, they sit the same language of the preceding sentence, “When necessary, as a full court. So that they don’t take their vacations during the chief justice shall assign a judge or judges of the circuit different months in the year. court to serve temporarily on the supreme court,” was this. KAUHANE: I’d like to ask another ~uestion of the chair That sentence gives full authority to assign a judge in any man. The word “absent” is used in Section 2. It also pro case that is necessary. Whether it’s death, absence, inability, vides that in the absence of the chief justice, an associate disqualification, or any reason, the court can assign a judge justice may serve in his place—absent from the state with from the cirucit court to sit on the supreme court. respect to official business. Does that - - has the committee Now when we came down to dealing with the powers of given any consideration as to how long a period of time must the chief justice, we had to take care of the situation where the chief justice be absent in order to allow the associate there was no chief justice. In other words, the chief justice justice to serve? Could he leave the state and be absent might have died, or the chief justice might have resigned, from the state on business other than that of the court’s work? and therefore, the difference in the language. “In case of a vacancy in the office of chief justice, or if he is ill, absent, CHAIRMAN: I believe the article says can fill any or otherwise unable” —that means otherwise, for any vacancy. reason—”unable to serve, an associate justice designated in accordance with the rules of the supreme court shall ANTHONY: That is correct. If the chief justice would serve temporarily in his stead.” Does that answer your go to San Francisco over the week end and any business question, Mr. Trask? would arise requiring an acting chief justice, then under this article, the person designated by the rules would serve. A. TRASK: Yes, if the word “vacancy” does include the word “death,” and the supreme court we know recently KAUHANE: Yes, but if he stays away for six months and struggled over the matter, well that satisfies me. doesn’t come back to the State to conduct or take his position CHAIRMAN: Any further discussion? in the supreme court, are we to grant him that long period of time to be absent from the State without cause? Or should HOLROYDE: I’d like to be a little further convinced why he be penalized if he absents himself from the State without the supreme court cannot be allowed to operate in the absence cause? of one or two members for the reason that we’ve had a three- ANTHONY: In my judgment, that would be grounds for man court for a long time and they have functioned pretty impeaching the chief justice or any other justice. well. Now you increase it to five. Five men, if they have a vacation of a month a year, they are gone for five months. CHAIRMAN: Is there any other - - any further discussion? In other words, for five months you have a man moved up from the lower courts where the greatest load of our courts NIELSEN: I would like to know if the committee has given is at the present time. Now I sort of sympathize with Dele any consideration to the expense of the five justices over gate Mizuha’s suggestion there that maybe that court ought three, as I understand that the State is going to have to pay to be allowed to operate with fewer members present. I’d the bill from now on out instead of having the Federal like to hear a little more discussion on that point, from the Government pay it. chairmen of the committee. CHAIRMAN: That was given in the chairman’s original ASHFORD: I would like to speak very briefly to that statement on the proposition. He covered that subject. Do point. I think it has been the sad experience of this Conven you wish any further answer from him, Delegate Nielsen? tion that where two lawyers are gathered together there is Will the chairman restate the position he stated on that? a difference of opinion and I think that the chairman of the ANTHONY: That’s covered in the report and I’ll briefly Committee on Style, who is cursed with eight attorneys on restate it. his committee, will bear that out. Now the great advantage The total cost of operating the judicial department of of having five rather than three is that you get all sides of government is relatively insignificant when you compare it the case presented in arguments among the judges before the to any one of the many departments of the executive branch. decision is determined, and they may agree for different So, if the considerations warrant a court of five, I do not reasons, all of them valid, or there may be a necessity of believe that the added expense o~ salaries of two judges dissenting opinions setting out a different theory. I think and secretaries for two judges and, of course, chambers for that that could be carried to an extent where you would be two judges, is an overwhelming consideration. If it is desir prevented from having a speedy administration of justice able to have five, I think we should have five. In other words, if you got too many, but I think five would certainly present the actual cost of i~. is relatively small as compared with all aspects of the case. other departments of government. MAU: Mr. Chairman, I concur heartily with the lady. ASHFORD: I am an example of disagreeing right here. CHAIRMAN: The Chair will recognize Delegate Mau. I I disagree with the gentleman’s statement that if a man recognize you now. remains away six months, that’s ground for impeachment. Where is that a high crime or misdemeanor within the pro MAU: I’m sorry. Speaking to the point raised by the visions of that section? delegate from the fifth district, he has the impression that the justices of the supreme court take their month or two CHAIRMAN: Delegate Anthony? JUNE 8, 1950 • Morning Session 365 ANTHONY: That would be a matter for the House of made in the House of Representatives, and I understand Representatives in the first instance to make a charge. If they’re going to have annual sessions, then he shall not a justice had no valid excuse, was just going up to look exercise his office until he has been acquitted. around the mountains of canada and letting the judicial business of the Territory go to pot, in my opinion an RICHARDS: That does not answer my question. A man argument could be made that that would be nonfeasance or can commit murder in office right after a session of the misfeasance in office. That would come before the House legislature and, even if there are annual sessions, he can of Representatives and ultimately before the Senate. still perform his office until impeached by the next session of the legislature. ASHFORD: The language of the section on impeachment refers to “high crimes and misdemeanors,” not malfeasance ASHFORD: I know that in the Constitution of the United or misfeasance in office. States the word “impeachment” alone is used. In the opinion of the committee, does the word “impeachment” carry with BRYAN: I think that subject can be aired properly when it the necessary connotation that it is upon charge by the we take up Section 4. House of Representatives to be tried by the Senate? CHAIRMAN: I didn’t understand, Delegate Bryan. Did CHAIRMAN: Will the chairman please answer that? you move for the previous question? ANTHONY: That is correct, and so referred in our re BRYAN: No, I didn’t move for the previous question. I port. This will tie into an impeachment proposal pending suggested that they withhold discussion of that matter until before the legislative powers and functions section. we took up Section 4. ASHFORD: May I make a further statement in that con CHAIRMAN: Oh, thank you. nection? If we have a unicameral legislature then there would be no means of impeachment. KAUHANE: I’d like, if I’m in order, to offer an amend ment, and I don’t know where to put it. I’d like to meet with HEEN: The Committee on Legislative Powers and Func the chairman of the Judiciary committee, to safeguard the tions have already decided for a bicameral legislature. abuse of being absent out of the State. And it has also approved the proposal relating to impeach ment following the language of the Federal Constitution. In CHAIRMAN: The chair would like to state that, if you’ll other words, impeachment must be made by the House, by suspend a moment, that the clerks have been taking down - - a majority vote, and then the charges in the impeachment KAUHANE: I move we take a short recess, subject to tried by the Senate, and that requires a concurrence of the call of the chair. two-thirds of the members present to convict. This provi sion goes one step further, however, that once the judicial CHAIRMAN: No objection? We’ll have a five minute recess. officer is impeached he shall not exercise his office until acquitted. (RECESS) BRYAN: I would like to ask the chairman of the commit HOLROYDE: I move the previous question. tee if he feels it would be necessary to make a change in this section in order to get around the question that was brought H. RICE: Second the motion. up by the delegate from the fifth district. CHAIRMAN: rhe previous question has been moved and ANTHONY: I’m sorry, Mr. Chairman, someone was seconded. All those in favor of the previous question say whispering to me when that question was - - “aye.” Opposed. Carried unanimously. The question is the adoption of Section 2 as it is written. CHAIRMAN: Would you repeat the question please? All those in favor will say “aye.” Opposed. Carried. BRYAN: Do you think it would be advisable, or is there BRYAN: I move the adoption of Section 4 as written. a possibility of making a change in this section to get around the question brought up by the delegate from the fifth? Also, DOWSON: I second the motion to approve Section 4. I might say that I believe it would be up to the Committee of CHAIRMAN: Same mover, same second. Adoption of Style that, should we have a unicameral legislature, to point Section 4. Any discussion? Are you ready for the question? this inconsistency out to the Convention. RICHARDS: I have a question that I would like to ask the ANTHONY: I think the case that the delegate from the chairman of the committee. In Section 4, in the chairman’s fifth district has put, namely, the justice of the supreme statement he seemed to be particularly exercised when dis court committing murder the day after the legislature cussing Section 10, that it was necessary to do a lot of things adjourns, is such a remote one that I don’t think it’s neces between sessions of the legislature. Now Section 4 providing sary to include such a remote contingency in the Constitution. for impeachment does not permit the removal of any judge I know of no state constitution that has such a provision in prior to the next meeting of the legislature regardless of it. Of course the governor could call the House and the what crime he may have committed. And I wonder of the Senate into session immediately if there was any public chairman of the committee if there is no way that could be demand for an impeachment, and that could be speedily done. provided to remove from the actual conducting of his office Otherwise, the judge would sit on the court but he would only any judge so accused. be one of five, in any event. CHAIRMAN: Ask the chairman of the committee to RICHARDS: This does not refer to just supreme court answer that, please. judges. It refers to circuit court judges as well. I know that there are a good many circuit court judges who use alcoholic ANTHONY: Section 4 accomplishes just that, only he is beverages. They drive automobiles, and negligent homicide not removed. The member will read the language of Section I imagine would be subject to impeachment. And can that 4: “Any judicial officer impeached shall not exercise his judge sit and judge other people for nine, ten or eleven office until acquitted.” In other words, once the charge is months? That’s the question I asked. JUDICIARY 366 ASHFORD: I would like to give notice that if the only Senate and asks them to drop -- to vote against the impeach method of removing a judge is hy impeachment for high ment proceedings against him? In other words, intimidating crimes and misdemeanors, I shall not vote for Section 3. the senators to gain their confidence. Is there some provi sions for penalty made to take care of cases like that? TAVARES: In the first place, I’d like to give notice that I am going to propose an amendment which will to a large CHAIRMAN: I’ll ask Chairman Anthony to answer that. extent take care of the situation, although not exactly what ANTHONY: Each house is the judge of its own rules, and the delegate from the fifth district has raised. that would be direct contempt of either house. And either There is a very remote possibility that some judge might house could promulgate any penalty it saw fit, depending on be accused of a crime and that the legislature might not be the character of the offense committed. in session for some time and that the governor might not want to call a special session and go through that expense KAUHANE: That rule only applies to members of the for removing him. However in the 50 years that this Terri legislature, not to a judge who has to escape from the pro tory has been in existence and the - - I don’t know, maybe ceeding of impeachment. The thing that I’m worried about 50 or 70, I don’t know how many years before that when we is when the impeachment proceedings is pending before the had a judiciary, I know of no instance where that has occurred. Senate, the Senate hasn’t held a hearing yet, and the accused Nor do I know of one on the Supreme Court of the United gives a party and invites the members of the Senate and gets States where they hold office for life. I think the possibility them to vote against an impeachment against him. is very remote., CHAIRMAN: Does the delegate have an amendment to I’d like to point this out also. If there is that kind of a offer? crime committed, it is probably in view of the care which, under any system, goes into selection of a judge. The crimes KAUHANE: Well, I’d like the Judiciary Committee to that are committed are more likely to be of that negligent think of that and prepare the necessary amendment to take type, and that negligent type does not, as a rule, disqualify care of that. We, the laymen, are penalized for almost any a man to sit fairly on most cases. It is usually not the type thing we do. We certainly would like to penalize them when that reflects on the morality and character of the judge, it’s they begin to interfere with the judicial proceedings of the perhaps—I mean his ability to judge fairly, which is the main Senate in relation to impeachment proceedings. thing. I think that we could manage to suffer along a little CHAIRMAN: May I ask the chairman of the Judiciary if while, before the next session of the legislature. any thought was given to the problem that Delegate Kauhane Finally, it seems to me that if a man is accused of crime, has raised? most of them will have the good grace to resign if they are ANTHONY: I confess that it has not, but I say this. There guilty, or they will be ‘put away within such a time that they is ample room for the legislature to pass any laws which will won’t do too much harm in the meantime. penalize anybody for interfering, whether it’s by way of I will offer an amendment at the proper time allowing the lobbying or giving luaus or whatever they are doing, in any legislature by a two-thirds vote after certain procedures, of the deliberative processes of either house. I don’t think rather than - - in addition to the impeachment procedure, to that the members of the House of Representatives, on a remove a judge for any cause showing unfitness to remain solemn occasion like an impeachment, I don’t think the in office. delegate and his associates on the House floor or in commit CHAIRIVIAN: Did the delegate offer that as an amendment tees, would pay any attention to any luau. In fact they’d now or would you like to defer this section until the end of probably vote for the impeachment quicker if anybody started the proposals? to do that sort of thing to him. TAVARES: In order to facilitate the discussion, I will CHAIRMAN~ The Chair would like to recognize Delegate offer it now as an amendment to go in as Section 4A. As Tavares on this motion. an addition, yes, to the article, to go in as Section 4A to KAUHANE: I have another question to ask. supplement Article [sic] 4. CHAIRMAN: The Chair will recognize you in just a Section 4-A. A justice of the supreme court or a judge moment. of a circuit court shall also be subject to removal from office for unfitness to continue in office, by resolution KAUHANE: I yielded only for distribution of this amend adopted by two-thirds of the membership of both houses ment, to the question from the delegate from the fifth district. of the legislature sitting in joint session, upon written TAVARES: I offer this amendment as an addition to charges made by a commission or agency established supplement Section 4 but for convenience, to be numbered by law, after notice and an opportunity to be heard be 4A, leaving the final numbering to the Style Committee, a fore a joint committee of both houses, and an opportunity section or an additional provision providing for a more to address such joint session in his defense. liberal method of removal of judges. CHAIRMAN: I’ll have the Clerk read the amendment. if CHAIRMAN: Is there a second? the messenger has enough copies to distribute, we’ll dis ROBERTS: I’il second that motion. tribute copies of the amendment. CHAIRMAN: It’s been moved and seconded. KAUHANE: I’d like to ask the learned attorneys the - - TRASK: I’d like to ask a question of Delegate Tavares. CHAIRMAN: We have 17 of them. Which one? CHAIRMAN: Well, before I can recognize you, do you KAUHANE: Any one who is a member of the Judiciary wish to speak any further on the motion, Delegate Tavares? Committee, relative to impeachment. If an impeachment proceeding is filed in the House against Garner Anthony TAVARES: I’ll speak later. I thought I’d have this be and the Senate is to hear the case, what penalty will be fore the members in the discussion and a little later I’li instituted if Anthony walks around to the members of the try to answer some of the questions. JUNE 8, 1950 • Morning Session 367 CHAIRMAN: I’ll have to recognize Delegate Kauhane, posed by me was the circuit judge. When he is under im who was asking a question before, then I’ll recognize Dele peachment, he cannot exercise his office. The chief justice gate Trask. is empowered to get a judge temporarily from one circuit KAUHANE: I realize the answer given by Anthony, Garner to have him double up on his duties on another island, or Anthpny, but I still say because of the fact that we have no circuit. It doesn’t provide for it. I think there should be prohibition against lobbying, I think it should be - - what I an inclusion so that the Section 4 be amended whereby while am attempting to safeguard should be made a part of the such officer - - judicial officer is incapacitated to exercise committee proposal. his duties, the executive shall have the power, in whatever Another thing relative to impeachment. if the Senate fails previous section we may refer to, for appointment, tempo to hold a hearing on the impeachment proceedings, and the rarily. legislature adjourns, I presume that the accused is still HEEN: I think Section 9 is broad enough in language suspended from office. Am I right or wrong, Mr. Chairman? whereby the chief justice may assign justices from one circuit to another for temporary service. CHAIRMAN: That is correct, I believe. That’s correct. KAIJHANE: Then if the legislature reconvenes two years A. TRASK: That is correct, but I do not think it is fair later, we go through the same process of filing the complaint for the people of one circuit to have only the part-time again in the House and then it’s submitted back to the Senate. service of a judge from another circuit when there is no Nothing is done in the next two years, so he is out four years. telling how long a period this impasse may last. So I think What provision is made so that the continuation of this thing the committee should seriously consider an amendment to could be protected to allow a man fair trial under a demo this, so that - - it’s not fair to the judge who is doubling up, cratic system, so that he can return to his office without it’s not fair to the people. any further jeopardy on the part of the impeachment proceed HEEN: Of course, if there is considerable work in the ing hanging before the Senate. particular circuit court, where the judge of that circuit is CHAIRMAN: Does some member of the committee wish unable to serve because he has been impeached, the chief to answer that? justice can assign one circuit judge from another circuit for, say, a few days or a few weeks; then relieve that circuit ANTHONY: The question propounded by the last speaker judge and take another circuit judge from another circuit to is a situation in which the Senate, the elected Senate of this do the temporary - - to serve temporarily. State, has flagrantly refused to do its duty, commanded by the Constitution, and there is no answer. if the legislatures BRYAN: I’d like to ask the chairman of this committee, - - legislators whether they are in the House or in the Senate, if many of the things that have been brought up here can’t or even the executive or judicial branches of the government, be taken care of by legislation, by the way of removing a if they are going to flagrantly disregard their clear duties, judge from the bench temporarily under certain circumstances then we might as well fold up and have no government at all. and so forth. I don’t think for a moment that any Senate of this State, ANTHONY: That’s precisely the basis that the committee having on its Clerk’s desk a charge of impeachment, would proceeded upon. The case that delegate from the fifth dis have the temerity to go back - - leave the capital and go back trict, Delegate Trask, referred to, if there is any danger, to their own districts and islands without disposing of that if that is any problem—and never in our judicial history has important business. it been a problem—that could be amply covered by legislation. A. ThASK: Just one question. Section 9, Delegate An In the meantime, under the mechanics of this article, the thony, seems to provide for the appointment of a circuit chief justice could assign a judge to take - - do the business judge to serve temporarily in the place of another circuit of any particular circuit, if something more need be done, judge, and during the time that the trial is on, the impeach it can be filled in by legislation. ment trial, the chief justice may appoint a circuit judge TAVARES: One more thought to be added to that, and that from Kauai to sit for a judge on Hawaii. That seems to be is, there is no limit in this article on the number of circuit so, but it seems to me there ought to be consideration in judges that may be appointed - - that may be created by the Section 4 of either the executive branch temporarily appoint legislature. And it would be quite feasible in my opinion for ing a judge to sit in a particular circuit, instead of taking the legislature by law to provide for appointment of acting one judge from one circuit and have him temporarily double circuit judges who could then be assigned to take up the load up on his work. I think some provision should be given. when the regular circuit judges were unable to handle it all. During the time when the impeached judge is not authorized to exercise his office, there should be some provision made MIZUHA: I would like to ask a question of the chairman for the appointment of a temporary judge by the executive. first. Is this amendment proposed by delegate from the Did you consider that? Because I don’t think Section 9 satis fourth district before the committee? factorily covers that situation when the people should have CHAIRMAN: The amendment 4A is before the committee. continuing judicial service. MIZUHA: I would like to ask the delegate from the fourth HEEN: Mr. Chairman, may I answer that question? if district who proposes this amendment the question as to the a justice, say, of the supreme court is unable to serve be “resolution adopted by two-thirds membership of both houses cause of charges of impeachment as provided in Section 4, of the legislature sitting in joint session.” Do you mean that then under Section 2, “When necessary, the chief justice the combined vote, two-thirds vote of both houses of the shall assign a judge or judges of the circuit court to serve legislature, or a separate two-thirds vote of the legislative temporarily on the supreme court.” branch and the Senate? A. TRASK: That doesn’t quite answer the situation, CHAIRMAN: Before the delegate answers that, may I Delegate Heen, because that is when a justice in the supreme remind the delegates here that we’re not in recess, we’re court is under impeachment. But where - - the question still in the Committee of the Whole, and there is a lot of JUDICIARY 368 extraneous noise going on that makes it very difficult to sift it through and see if it’s a charge serious enough to hear. bring before the legislature. Once they vote to bring that charge before the legislature, they are the accusers. Now MIZUHA: The question is two-thirds vote of the House the reason for a separate commission is this. We do not of Representatives or whatever they call it, and the Senate, want any legislator disqualifying himself from voting because separately or combined? he has to file a charge. So we provide for an outside agency TAVARES: I think from the words, “sitting in joint ses to do it so that the legislator will not be prosecutor and judge sion” it’s very clearly implied that the vote must be a vote and jury at the same time. of the combined houses sitting in session. Two-thirds of CHAIRMAN: Delegate Luiz, does that answer any further all the members sitting in session, not two-thirds of each question? He asked a question. He hadn’t yielded the floor. house. Are you through? MIZUHA: Then I’ll ask the further question. Don’t you GILLILAND: May I ask the delegate from the fourth think that perhaps it will be giving the House of Represent district a question? You have in here that he shall “be subject atives too much power inasmuch as the division of represen to removal from office for unfitness to continue in office, tation may be much greater in the House of Representatives by resolution adopted by two-thirds of the membership of than in the Senate? both houses of the legislature sitting in joint session.” Don’t TAVARES: I am thinking of the words in this article - - you think it should properly be sitting - - that the House of of this section, which says that the removal must be a “re Representatives should control this man’s dismissal? Since moval from office for unfitness to continue in office.” I am he was confirmed by the Senate, why should the Senate sit in assuming as I believe I have a right to assume, that when judgment on him. that body gets together, there will be enough good men in TAVARES: The thought was that here are all of the rep there to see that the majority does not act from such motives resentatives and senators of all of the people sitting in as to allow mere political or other improper influences to judgment on the removal of a member of a coordinate and result in removing a judge as unfit for office, unless he independent branch of government. It was felt that it was really is unfit for office. desirable to add to the geographical distribution on the one MIZUHA: The reason for - - Mr. Chalrman, I still have side, the population distribution on the other, and have both the floor. The reason for asking this question is, tradition elements consider the matter together as to whether this ally impeachments of public officers have been vested with person was unfit to continue in office. the Senate of any legislative branch of government. The Let me explain how this procedure works. A person reason for that is that the Senate usually has a proportionate having a grievance goes before whatever commission is set representation from smaller areas as compared with larger up by the legislature. They prepare the charges and file areas. If the recommendations of the Legislative Committee them in the legislature. The first thing the legislature does carry through with this Convention, we will find perhaps the under this section is to appoint a joint committee of both combined Oahu vote in the legislature will be much greater, houses, not both houses because you can’t get both houses if they sit in joint session, than the outlying islands. And to sit on a long trial. That has been the vice of impeachment. sometimes I wonder whether or not this combined vote may You can’t get the Senate. It’s very difficult to have a quorum work against the giving a judge from the outside circuit the sit day after day after day to have a trial. So they appoint kind of trial he deserves. a joint committee of a few members who will then have the trial, at which there will be written charges presented to the TAVARES: In the first place, the only situation under judge. He will be given a full dress trial. The committee which I can imagine there would be a possibility of the will then make a report, analyzing the evidence and making question other than unfitness coming up, would be if it were its recommendation of removal or non-removal, If they a pure political vote. There will always be a split even in recommend removal, then the charge goes before the Senate the Oahu delegation on political lines. In the first place, I like any committee report, and the accused has one more do not believe that where such a trial comes up, they will chance. Just as we lawyers have to go before a judge and split on political lines. argue against the .master’s report, the accused has one LUIZ: I would like to understand the mechanics on this more chance to address the joint session. He doesn’t waste Section 4A. It specifies here only “upon written charges their time with a long trial. He simply addresses the joint made by a commission or agency.” In other words, will it session to show why he thinks that report should not be only be the commission or agency that can apply to 4A or adopted, and then the joint session votes. [if] any other, like the group IMUA, would like to petition, SILVA: Is the amendment before the committee or has that they would petition one of the commissions - - the it just been presented? There’s no motion for adoption commission or the agencies, that they can bring it up in that of the amendment. I don’t see what they are discussing on. fashion. TAVARES: I move that the amendment be adopted. TAVARES: That provision was put in there advisably. It is neither - - it neither befits the dignity of a judge or SILVA: No. court nor is it advisable in the public interest to have any DELEGATE: I think there was a motion and a second. individual be able to run to the legislature and file a charge and force the legislature to have a hearing on any kind of PORTEUS: I second the motion. trumped-up charges. For that reason this provides that the SAKAKIIIAR-A: For the purpose of discussion I’ll second legislature by law must set up a commission—it can be a it. judicial council as is recommended in the Model Constitution CHAIRMAN: The Chair recognizes that a motion was and is provided in some other constitutions; it can be some other commission, perhaps a bipartisan commission made to amend this Section 4 by adding to it the section to created by the legislature, before which the person who be numbered, for convenience, 4A. Therefore, it was not wants to make a charge must bring his charge, and they felt necessary to move the adoption of that separately. JUNE 8, 1950 • Morning Session 369 GILLILAND: I’m not satisfied with the delegate from The chairman of the committee, Judicial Committee, has the fourth district’s explanation. Why should we have one prepared a very excellent paper which was read before the division of the legislature, the Senate, confirm a man and Social Science Club, which to me suggests that it would be require two divisions, the House and the Senate, to throw quite difficult and certainly extremely embarrassing for a him out. I don’t think it’s fair. member of the supreme court to suggest to another member ANTHONY: I move we take a short recess to the call of of the supreme court that he is no longer competent and the Chair. able to perform his duties. And he cites, I think, two very effective situations, where Justice Harlan, when he was CHAIRMAN: No objection? We’ll have a five minute asked to so retire, said that his previous action in connection recess. with the Grier case was one of the dirtiest day’s work that he had ever performed. (RECESS) Mr. Chairman, in a later section I plan to move a judicial council, not a council for the suggestion of a panel of names, ANTHONY: There have been a number of suggestions but one dealing with administrative matters. I would like in regard to this Section. Accordingly I move that we defer to reserve that if this Section 5 is adopted, that if a judicial consideration of it for the time being. council is set up, dealing with such administrative matters, A. TRASK: Second that motion. that such judicial council shall certify when a circuit court or supreme court justice is incapacitated. CHAIRMAN: You defer it until when, Delegate Anthony? Till the end of the section - - to be taken up after Section 10? HEEN: Inasmuch as there is so much controversy as to how a justice or a judge may be removed from office or ANTHONY: Yes, that’s correct. After we discuss suspended from office, I move that we defer further action Section 10. upon, or further considerätiön of Section 5. CHAIRMAN: Yes. I might - - The Chair would like to DOI: I second the motion. announce that any business that remains unfinished on this at 12:00 will be taken up at a continued session at 7:30 to HEEN: Maybe then we can combine all of these things night. in one short section. SJLVA: That will be the will of the Convention, Mr. MAU: Second the motion. Chairman. CHAIRMAN: There has been a motion to defer this CHAIRMAN: It has been the consensus of the opinion section until when? Until - - here, the group, that they would like to continue on that. DOI: Consideration of Section 4, I believe. We’ll take a vote at the proper time. CHAIRMAN: Will you plug in, please? ANTHONY: I move the adoption of Section 5. HEEN: Until we get through with Section 10. BRYAN: Point of order. CHAIRMAN: Section 4 and 4A have already been deferred APOLIONA: I move at this time that Delegate Bryan to that position. Would you like to take this up after Section be allowed to move for adoption of Section 5 and Delegate 4 and 4A or before? Dowson be allowed to second his motion. HEEN: All at the same time. DELEGATE: I second the motion. DOI: That’s right. BRYAN: Point of order. HEEN: All at the same time, maybe, as I said, combined CHAIRMAN: Will you state your point of order. into one section to cover all situations. That includes, I BRYAN: We have not voted on the deferment. suppose, the deferment of Section 4, or has that already been deferred? CHAIRMAN: I haven’t put the - - He was out of order, the deferment has not yet been put. All those in favor of CHAIRMAN: Section 4 and 4A have been deferred till deferring will say “aye.” Opposed. Deferred. the end of this section. APOLIONA: At this time, I move that Delegate Bryan DOl: I second the motion. be allowed the honor of moving for adoption of Section 5 and CHAIRMAN: It’s been moved and seconded that Section 5 Delegate - - be deferred. All those in favor say “aye.” Opposed. CHAIRMAN: You’re unplugged. Delegate Bryan. Carried. Section 6. BRYAN: I move the adoption of Section 5 as written. BRYAN: I move the adoption of Section 6 as written. DOWSON: I second that motion. DOWSON: I second the motion. CHAIRMAN: Moved and seconded by Delegate Dowson that Section 5 be adopted. CHAIRMAN: Same mover, same second. ROBERTS: Section 5 provides that when the supreme ASHFORD: I would like to ask a question. “Shall not court shall certify to the governor that a member of the be - -“ “The compensation shall not be diminished during supreme court or the circuit court is so incapacitated as term of office.” In my own opinion that includes a case substantially to prevent him from performing his judicial where the legislature has, after the inception of the term of duties, that the governor shall appoint a committee to in office, has raised the pay. It can then not diminish that vestigate and the governor may recommend the retirement raise. I would like to ask the committee if they agree with of the judge or justice from office. that interpretation of “diminish.” JUDICIARY 370 ANTHONY: That interpretation is correct. This is taken ASHFORD: In response to some of the arguments made directly from the Federal Constitution. In other words, what by the gentleman from the fourth, I would like to say that ever the salary is when the Constitution goes into effect, the there is no reason on earth why the judiciary should be ex legislature may not diminish it. And if the legislature there cepted from every other branch of government in suffering after increases it, again the legislature may not diminish the the results of a depression. salary during the term of office. CHAIRMAN: Was there a second to the motion? ASHFORD: I’m opposed to that provision then for this HEEN: The remark made by the last speaker is not reason, that we have seen raises made during times of germane to the amendment that she has offered. That is extraordinary inflation. Then when we collapse, the judges a different proposition altogether. But I do agree with her should take their cuts from that raise that has been made remark though, that if there is to be a diminution, I mean after the inception of their term, just as everybody else in a provision that the salaries shall not be diminished, that government should. there should be an exception there that the same may be CHAIRMAN: Does the delegate wish to propose an amend diminished when all other salaries are diminished. I recall ment on this section? that in 1932, the legislature was called into special session to effect - - to enact a piece of legislation which reduced ASHFORD: I will move to amend that section by inserting all compensation of government employees by ten per cent. after the word “diminish,” “shall not be diminished from that which existed at the inception of a term.” CHAIRMAN: Delegate Arashiro had seconded the motion to table. There’s a motion to table the amendment. CHAIRMAN: Is there a second to that? RICHARDS: May I - - a point of information. Does this KIDO: Second. mean in its present wording that if there were applied to CHAIRMAN: It’s been seconded by Mr. Kido. the judicial department the same type of cost of living bonus that is now in effect throughout the rest of the terri TAVARES: I do not believe that that is a sound amend tory, that if, at the time a judge takes office that bonus is ment. If there is to be one, it seems to me that the amend in effect, that that bonus cannot be removed? ment should read, “that it shall not be diminished unless as a proportionate part of a fair scheme of cutting all salaries.” DELEGATE: Right. It ought to be worded in that way, there shouldn’t be a picking RICHARDS: And we are suggesting here appointing the out of one particular group. I think it should stay as it is, but judges for 12 years? I think that is out of line. if they want to add a qualification, have a provision that if all salaries are cut generally, they may be cut at the same time. CHAIRMAN: The question is to table the amendment. All Just as when taxes are paid today under the most recent those in favor of tabling the oral amendment as proposed by rulings, that is not considered a diminution because every~ Delegate Ashford to say “aye.” Opposed. The noes have it. body has the same cut taken out of their salary proportion The motion is not tabled. ately. LEE: As one who has supported this proposal, there is ANTHONY: I’m opposed to the amendment, and the something - - I disagree with some of my colleagues in the reason I’m opposed to it is that this will strike right at the majority as to the merits of the arguments made by Miss heart of the judicial branch. It will permit the legislature Ashford. I wonder whether Miss Ashford had considered to pass a decent salary, then if a judge sits on the bench, this possibility of eliminating the words “which shall-not and he does something which the legislature doesn’t like, be diminished during their continuance in office,” leaving they could reduce the salary of the judge of the second cir it to the legislature to determine the matter. It’s a point of cuit, and at the same time! they could leave the salaries of information on my part as to whether or not that was her the judges of other circuits where they are. I think it would intention. be an inroad on the independence of the judiciary. It is a CHAIRMAN: Can Delegate Ashford answer the question, radical departure from the provision of the Federal Consti please? tution, and I’m opposed to the amendment. ASHFORD: I would like to have that rephrased. I don’t TAVARES: Mr. Chalrman, one - - get the meat of it. CHAIRMAN: Delegate Mau hasn’t spoken on this yet. LEE: Well, the last part of that sentence reads, “which MAU: I am in agreement with the chairman of the shall not be diminished during their continuance in office.” Judiciary. If we are to keep the three branches of govern That is the bone of contention, as I recall. ment separate and independent, then we’ve got to protect ASHFORD: Yes. the judicial branch of the government. If this amendment passes, the danger is too great that that independence will LEE: Now if that phrase were eliminated completely, be knocked out in our democratic form of government, and would that not accomplish the purpose that you seek to have, I’m opposed to that for that reason. or is it something else? TAVARES: One more factual thought, and that is, I doubt ASHFORD: Yes, that would accomplish the purpose, but very much whether for a long time to come all the combined I think there is a great deal to be said for the fact that com salaries of our judges will equal $200,000. Now we have a pensation of a judge should not be diminished over that which 40 million dollar a year budget. Those salaries come to existed at the inception of his term. And I would accept such less than one-half of one per cent. We’re arguing over ab an amendment as was offered by the delegate from the fourth, solutely infinitesimal microbes here. to read somewhat such as this, “unless by general law, all compensation of public officers were diminished, and to that MIZUHA: As one who had stood steadfast in the commit extent.” tee for the retirement of our judges at a full pay, I wish to move to table the amendment. TAVARES: I move - - JUNE 8, 1950 • Morning Session 371 CHAIRMAN: Delegate Bryan had the floor, requested the pecuniary interest and otherwise. And I think that that is floor. just as proper a matter to be left to the legislature as BRYAN: I would very gladly yield. Miss Ashford covered these other provisions for disqualification. what I wanted to say. CHAIRMAN: What is your pleasure on Section 7? TAVARES: In view of the necessity of rephrasing that SILVA: Put it in the Constitution. provision, I move to defer action until after consideration of Sections 4, 4A, and 5, so that we may have an opportunity LAI: In this section, do I understand that a judge or to reword the proposed amendment. justice can accept a position on a board or commission without pay? A. TRASK: I second it. CHAIRMAN: Would the chairman of the Judiciary answer CHAIRMAN: It’s been moved and seconded we defer action him? on Section 6 and the amendment in Section 6 until the end of the proposal. All those in favor say “aye.” Opposed. ANTHONY: That is correct. Without pay. Carried. LAI: if that is so, I am opposed to that for two reasons. Section 7. One is that when the judge or justice serves on the board or BRYAN: I move the adoption of Section 7 as written. commission, his time and effort would be divided. And I know for a fact that some of these commissions and boards DOWSON: I second the motion to adopt. spend lot of time, and they have lot of problems, and I don’t CHAIRMAN: It’s been moved and seconded, the adoption think a judge or justice should serve on the board or com of Section 7. Anyone wish to speak? mission. And the second reason is that we are here to write a Constitution to create a strong state government, ASHFORD: I would like to ask some questions. I would and this state government has three branches of - - three like to ask the chairman of the committee the question of departments, and I don’t think a member of one department whether or not the provision of the New Jersey Constitution, should pry into the business of the other. And I know the that “justices and judges shall not while in office engage in commission and boards are mostly of the executive depart the practice of law or other gainful pursuit” has been consid ment. I feel strongly against that for that two reasons. ered by the committee. CHAIRMAN: Any other discussion on this section? ANTHONY: That practice that has obtained in the State of New Jersey and was outlawed in the New Jersey Consti DELEGATE: Question. tution is unknown to our practice here. Judges of courts of WOOLAWAY: By this last sentence, prohibiting the judge record do not engage in any practice of law. They can’t under to run for an elective office, I take it we won’t have the serv our present system. If they want to go into real estate busi ices of Judge Wirtz in future constitutional conventions? Is ness on the side, that’s up to them, or play the stock market. that so? This provision prevents them from holding any other office of profit under the State or under the United States. TAVARES: I think that is probably correct. I’d like to call the attention of the members to Section 9574 ASHFORD: A further question. Is it the contention of of our Revised Laws which will be continued in effect by our the chairman of the committee that the practicing of law is Constitution. It says, “No justice of the supreme court nor an office of profit, or how is it excluded? any circuit judge shall exercise the profession or employ ment of counsel or attorney at law or be engaged in the ANTHONY: It is not an office within the definition of practice of law.” Now I can’t imagine any legislature ever this section. “Office” means an office under the State, or repealing that section. under the United States. They would not - - an attorney is a member of the court but he doesn’t hold office, within ASHFORD: if it is not necessary to write these things the meaning of this section. into the Constitution, why do we have this section at all? ASHFORD: Then under this section, is it not true that CHAIRMAN: Would any one on the committee care to a judge could practice law? answer that? ANTHONY: The answer is no. ANTHONY: The reason the section is drafted is to pre vent a judge from holding two jobs, drawing two salaries TAVARES: May I answer that further. We have a statute from the State, or one salary, a judicial salary from the which is still in effect and will be continued in effect by the State, and another salary from either the United States or Constitution I am sure, if my recollection serves me right, the State of Hawaii. Perfectly proper provision. which prohibits circuit judges and supreme court judges from practicing law while they are in office. That’s a leg CHAIRMAN: What is your pleasure on this section? islative matter which has been taken care of and can and You ready for the question? All those in favor will say “aye.” will continue in effect. Opposed. Ayes have it. Section 8. ASHFORD: I disagree entirely. I think this is wholly a BRYAN: I move the adoption of Section 8. constitutional matter, that judges should be forbidden by the Constitution to practice law. if it is necessary to pass DOWSON: I second the motion to adopt Section 8 of Pro a statute to that effect, then it is imperative that it be posal No. 7. written into the Constitution. CHAIRMAN: Any discussion? TAVARES: If that is correct, then we’ll have to write GILLILAND: May I have an explanation of this second every disqualification provision into the Constitution also. sentence under Section 8, “With the approval of the supreme It has been traditional that the legislature has power to court he shall appoint an administrative director to serve prescribe provisions for disqualification of judges from at his pleasure.” JUDICIARY 372 ANTHONY: The purpose of that sentence is to make the CHAIRMAN: What is your pleasure? judicial department an efficient department of government. H. RICE: I move that we adopt Section 8. It puts the chief justice as the head of a unified court system. It gives him an administrative director who will attend to CHAIRMAN: It’s already been moved. the administrative duties, the business of all of the courts. DELEGATE: Question. It is expressly made appointed by the court and serves at the pleasure of the chief justice for the simple reason that the CHAIRMAN: All those in favor of the adoption of Section court should have command of its administrative officer, and 8 will say “aye.” Opposed. Carried unanimously. if he’s no good he ought to be able to remove him. Section 9. ROBERTS: I indicated before that I planned to put a pro BRYAN: I’d like to move the adoption of Section 9. posal before the committee, in the form of an amendment, DOWSON: May I second that motion? providing for administrative machinery. I believe that that section could well be discussed when Section 10 is taken up. CHAIRMAN: It has been moved and seconded that we I move to defer that section to be treated together with Sec adopt Section 9. All those in favor say “aye.” Opposed. tion 10 and Section 4. Carried unanimously. Section 10. SAKAKIHARA: I second that motion. BRYAN: I move the adoption of Section 10. CHAIRMAN: It’s been moved and seconded that this sec tion be deferred, to be taken up with the other sections that DOWSON: I second the motion. have been deferred—most of the proposal. CHAIRMAN: It’s been moved and seconded that we adopt ROBERTS: I might say that I’m in full accord with the Section 10. proposal suggested by the chairman for administrative ROBERTS: Section 10 goes to the same problem of machinery and for such a person to assist in the operation. procedure, and I’d like, if k’s agreeable with the delegates, I’m in full accord with the principle of careful administration to move that the Committee of the Whole rise, and report and careful review of the work of the judiciary. progress, and then beg leave to sit tonight at 7:30 to continue CHAIRMAN: The question is for deferment. All those with this discussion. in favor - - CHAIRMAN: Is there a second? ANTHONY: I’d like to speak on the deferment, if I may. MIZUHA: I second that motion. Am I out of order speaking, Mr. Chairman, against defer ment? CHAIRMAN: It’s been moved and seconded that the Committee rise, report progress, beg leave to sit again CHAIRMAN: The Chair recognizes - - at 7:30 this evening. All those in favor will say “aye.” ANTHONY: It seems to me even those who desire to have Opposed. Carried. a judicial council still should be prepared to act on this. In DELEGATES: Roll call. other words, if we do have a judicial council, the duties of the director would be fitted into the council. As I gather the CHAIRMAN: All those demanding a roll call raise their way we’re moving here, we’re passing over a lot of things hand. that we are in agreement upon. If we are later going to BRYAN: May I suggest a show of hands? have a judicial council, then we can reconsider this and put this back in any section on judicial council. So I am against CHAIRMAN: It’s been suggested, a show of hands. Would deferring this at this time. that be sufficient? H. RICE: I’d like to say that I think that this is absolutely WOOLAWAY: Point of information. necessary, this section, because from my experience with the judge of the second circuit and the judge of the fifth circuit, CHAIRMAN: Point of information? State your point of they waste a lot of time going into the matter of the civil mi or mation. service classification of their employees and if they had an WOOLAWAY: Is there any reason why we can’t meet at administrator up here and the chief justice could let him take 1:30 this afternoon? care of such matters for them, they would save a lot of ex pensive time of the judges in caring for just such matters. CHAIRMAN: There are committee meetings all after I move that we table the motion to defer. noon that have been set up. MIZUHA: Second the motion. BRYAN: I don’t see how we can go ahead with these committee meetings and allow these committees to get CHAIRMAN: Is there a second? There’s a motion to their work done if we go ahead this afternoon and interrupt, table the motion to defer. All those in favor of tabling the and that’s why I favor this 7:30 meeting tonight. motion to defer say “aye.” Opposed. The motion to defer is lost. SILVA: Have the committee meetings at night. OHRT: I want to say I’m very much in favor of that PORTEUS: There seems to be some issues - - question section because I’m hoping that this Convention will give as to the number of committee meetings. The Committee the governor the same privilege of having an administrative on Executive Powers and Functions has asked to hold a assistant. meeting at 1:30; the Committee on Agriculture, Conserva ROBERTS: I indicated before that I’m in support of that tion and Public Lands also wishes a meeting at 1:30; the section, and if it’s understood that it could be worked into Committee on Legislative Powers and Functions wishes to the section later on the judicial council, I will support the meet at 3; and the Committee on Industry and Labor also motion. wishes to meet at 3 o’clock this afternoon. JUNE 8, 1950 • Afternoon Session 373 KING: I hope the members will agree to a night session BRYAN: Is that before the house? tonight, and I feel that we’ve got to have a night session al most every night hereafter, perhaps not Saturday, but next CHAIRMAN: Section 10 is before the Convention. week. The agenda is not going ahead as fast as it should and this particular proposal is one of the major proposals that LAI: The ten sections here in Proposal No. 7 cover the should be cleared up. Next week, we’ll have Legislative functions and personnel of the judicial department very well. Functions perhaps before us; we’ll have Executive Powers; But I think we forgot the biggest thing. How do we get the we’ll have Local Government; and we’ll have to be sitting money to run this department? There is no provision here both forenoons and evenings in order to complete our work. calling for appropriation of a budget to run the department. So I hope that the motion to recess until 7:30 will carry. Can somebody tell me that? HEEN: I note that both the Committee on Industry and CHAIRMAN: Can the Committee on Judiciary answer that Labor and the Committee on Legislative Powers and Func please? tions are sitting at 3 o’clock, at the same time. ANTHONY: That’s entirely a legislative function. It’s CHAIRMAN: if you’ll suspend a moment, when we re up to the legislature to appropriate funds for this department convene in regular session will be the time to take that up. just like every other department of government. We are still in the Committee of the Whole, and it would be the time to take up the committee assignments at that time. LAI: You mean they don’t have to submit - - SILVA: You just report progress. CHAIRMAN: Will the delegate please address the ques tions to the Chair. HAYES: I was going to say that the Hawaiian Homes Committee was going to - - intended to meet tonight. LAI: You mean that the judicial department doesn’t have to submit a budget? CHAIRMAN: That would be the same point. It would be true of that, that all committee announcements should ANTHONy: The executive will submit a budget which will be kept until we reconvene. include a budget for all branches of government, including the judiciary. ASHFORD: Any of us who have worked here or tried to work here at night are very conscious of the extremely CHAIRMAN: Are there any other questions on Section 10? bad lighting. Would it not be possible, if we are going to Any further discussion? meet tonight, to have spare bulbs or something put in? ROBERTS: I’d like to offer an amendment to Section 10. NIELSEN: I move that we report progress and recess In the last line - - next to the last line, after the words “and from the Committee of the Whole. appeals” insert the words, “which upon publication shall have the force and effect of law.” Delete the word - - add DELEGATE: Second the motion. the words “upon publication.” The purpose of this amend CHAIRMAN~ The motion is already before us to rise ment is to make provision for the publication of the rules of and report progress and beg leave to sit again. procedure adopted by the supreme court and promulgated by it. LEE: Suggestion. Would it not be in order to have com mittee meetings at night so that the Convention could meet CHAIRMAN: Is there a second to that? during the day? That’s to combat this lighting situation as YAMAMOTO: I second the motion. well as to be able to accomplish more work in committees during the evening. I know in my experience here in my CHAIRMAN: The amendment’s been moved and seconded. night meetings we were able to accomplish more during the ANTHONY: The amendment, in my judgment, is entirely committee than in the daytime. unnecessary. No court in the land would ever presume to CHAIRMAN: The Chair rules that the motion was to rise promulgate rules of practice and procedure without the and report progress, and beg leave to sit at 7:30. fullest sort of publicity. As a matter of fact, what they do is draft a set of rules and send it down to the bar, and the ANTHONY: I move to amend that motion, that we move bar are the people that are concerned with the rules of to rise, and beg leave to sit again - - report progress and practice and procedure. There is a complete discussion beg leave to sit again. of what the rules should contain, and after the rules have FUKUSHIMA: I second that motion. been approved by the bar, the supreme court promulgates them. They will always give ample notice and I see no CHAIRMAN: It’s been moved to amend the original reason to incorporate useless language in the Constitution motion. It would save time if - - Delegate Roberts, would for publication. you accept the amendment? CHAIRMAN: You ready for the question? The question ROBERTS: I’ll accept it. is on the amendment, which inserts the words “upon CHAIRMAN: The motion now is to rise, report progress publication” after “which” in next to the last line of Section and beg leave to sit again. All those in favor say “aye.” 10. You ready for the question? Opposed. Carried unanimously. ASHFORD: Doesn’t “promulgate” mean the same thing? I mean, doesn’t that include the essence of publication? Afternoon Session ROBERTS: if the answer of the chairman of the commit CHAIRMAN: Committee of the Whole please come to tee states that the word “promulgation” shall include publi order. Will you be at ease, please. We will continue with cation, I will withdraw. Committee Proposal No. 7. We were on Section 10. What ANTHONY: Of course, it includes that. Every lawyer is your pleasure? here knows that. JUDICIARY 374 ROBERTS: Well, I’m not a lawyer, Mr. Chairman, that’s ASHFORD: Mine was “may,” but I have no pride of why I asked for the clarification. opinion about that, and I’m perfectly willing to leave that to the seven other attorneys. CHAIRMAN: Does the Chair understand, Delegate Roberts, that you have withdrawn the motion? CHAIRMAN: Well, it has to be recorded as either being one or the other. ROBERTS: I have withdrawn the motion on the statement ASHFORD: It’s “may.” by the Chair, which I assume will be part of the committee report, that the word “promulgation” includes the publication CHAIRMAN: “May,” and was the second the same? of those rules and regulations, so that the laymen know the WIRTZ: Point of information. Is this proposed amend implication and meaning of that word. ment to substitute for both Sections 4 and 4A? DELEGATES: Question. ASHFORD: 4A was not adopted. It was just offered; CHAIRMAN: The question now is on the main motion, and so I therefore put on the amendment, “Substitute for the adoption of Section 10. All those in favor say “aye.” Section 4.” I think it would render the proposed Section 4A Opposed. Carried. unnecessary. WIRTZ: Well, I think we ought to have that clear, if it BRYAN: I rise to a point of information. In deferring will take the place of the impeachment. several of these sections, we deferred them after Section 10. However, this morning we skipped over Section 3. Is the CHAIRMAN: If the movant of Section 4A will withdraw proper order of business now to go to Section 3, then to 4, that motion, it would clear the way for this. 5, or do we still skip Section 3? TAVARES: I will withdraw my motion for the purpose CHAIRMAN: I believe the Chair stated this morning that of - - well, I’ll withdraw my motion. Section 3 would not be taken up until all of the other sections BRYAN: I think the point to clear up is, my motion for had been disposed of. the passage of Section 4 would be Section 4 as written by BRYAN: in that event, I rise to a point of personal privi the committee. That would clear that. lege. I wish to move the adoption of Section 4. CHAIRMAN: Well, the Chair would state that in consider DOWSON: May I also rise to a point of personal privilege ing Section 4, you would consider Section 4 and 4A because to second that motion. 4A was an amendment to this Section 4, and they were being considered together. So when you move to consider action CHAIRMAN: The Chair will rule that those are, neither on that section, it automatically brought up the two of them. one, a point of personal privilege, if you move the adoption Now then, Section 4A has been withdrawn; the only section of Section 4. before us is Section 4 and this is an amendment to Section 4. ASHFORD: I have discussed with the “Supreme Court” A. ThASK: I would like to ask the movant here, the lady the proposed substitution for Sections 4 and 4A, which I had delegate from Molokai, her reason for this substitute amend mimeographed and, I think, is now on the desks of all the ment to Section 4. delegates. To substitute for Section 4, the following language, 4 and 4A, “The justices of the supreme court and the judges ASHFORD: I think the provision for impeachment is of the circuit courts shall be subject to removal from office non-essential. It almost never takes place, it is the most upon the concurrence of two-thirds of the membership of crushing insult that can ever be offered any officer, and each house of the legislature sitting in joint session, for such the provisions of Section 4 for impeachment and the usual causes and in such manner as may be provided by law.” I provisions for impeachment are so strict that it is practical move the amendment. ly impossible to prove the charges, even if you make them. Now, this section provides for removal, it safeguards the CHAIRMAN: May the Chair ask if that amendment has judicial office by requiring the concurrence of two-thirds been circulated? of the membership of each house sitting in joint session, and it also safeguards them by the requirement of the ANTHONY: They are in the process of circulating it at passage of legislation by the legislature in a time of peace the moment. and quiet when there are no charges lying on the table. MIZUHA: I second the motion. ANTHONY: I’d like to speak to the proposed amendment. CHAIRMAN: May I have a copy of that, please. It is quite true that impeachment is a cumbersome, and therefore a little used device. This will - - this proposed BRYAN: I would like to ask a question. As the delegate amendment will go. far to make it a workable device, rather from Molokai read this, she used the word “will” in the last than a cumbersome device, and it will not restrict the causes line, and I see the printed copy says “shall.” Was that an of removal to treason, bribery, and high crimes and mis intended deviation? demeanors. In other words, it will be an enlargement. And speaking for myself alone, and not for members of the CHAIRMAN: “May.” My copy reads “may.” committee, I would have no objection to the acceptance of ASHFORD: Some of them were written one way and some this amendment. the other, apparently. Mine reads “may,” and that was the SHIMAMUItA: I understood the chairman of the Judiciary intent. rye had a little discussion on whether it should be Committee to say this morning, rather the Legislative Com “may” or “shall,” and that is one thing which I think the mittee, Judge Heen, to say this morning that there was a seven other attorneys on the Committee on Style might de provision in the legislative section concerning impeachment cide, Your Honor. and that it was to be brought by not the two-thirds majority CHAIRMAN: May the Chair ask, as to your amendment, of the full house, of the membership, but two-thirds of those was it “may” or “shall”? present. Am I mistaken about that? 375 JUNE 8, 1950 • Afternoon Session HEEN: That is correct, and if the proposed action is to MIZUHA: I’d like to speak in opposition to the amend-j ment also. A judicial council presupposes having probably be taken at this time, deleting impeachment as a process of removal of judges, then that particular proposal before a majority of lawyers sitting on the judicial council, and they the Legislative Committee will have to be amended in order would be getting into the hair of a judge who decides against to conform with what the Convention decides upon finally them all the time. in this matter. WIRTZ: I’d like to echo the sentiments of the delegate DOI: To further protect the rights of the one subject to from Kauai. As a judge sitting on the bench, I would be being removed, and to further set up more definite methods much concerned about the membership of the judicial coun by which one could be removed—and I say at this time that cil which, as he states, presupposes at least an equal rep should we leave it entirely to the legislature we will find resentation on the judicial council and they would be the probably that they will not pass laws until the occasion arises, ones active in pressing any charges. It puts the judge in an and that might be a little too late, and that has been shown, unfortunate position, in my opinion, so I’m voting against I understand, by history. And therefore I would like to move the amendment. for the adoption - - move to amend the substituted proposal. ROBERTS: I’d like to speak in favor of the motion to The amendment would read thus—I think a form is already amend. As I read the amendment the purpose is - - on your desk, with minor corrections —“A justice of the supreme court or a judge of a circuit court shall also be CHAIRMAN: The motion is in favor of the amendment, subject to removal from office for unfitness to continue in to amend the amendment. office, by concurrent resolution adopted by two-thirds of ROBERTS: I’ll accept the Chair’s statement of the issue. the membership of each house of the legislature, upon written charges made by a judicial council, after notice and As I read the purpose of this section, it is to protect the an opportunity to be heard before a joint committee of both judges and not to get in their hair. It seems to me that the houses, and an opportunity to address a joint session of substitute for Section 4 previously submitted does not actual both houses in his defense.” ly provide for any protection. It merely states that the leg islature may provide by law. The legislature may never CHAIRMAN: Is that offered - - Delegate Doi, is that provide by law. They may provide when the person is offered as an amendment to Delegate Ashford’s amendment? actually up for charges, at which time the issue may be so difficult and warm that the legislation may possibly reflect DOL Yes. that attitude. It seems to me that the draft proposed by the ROBERTS: I’ll second that. delegate from the fourth in Section 4A more nearly accom plishes the protection both for a proper hearing and an ASHFORD: I haven’t got that, Mr. Chairman. May we opportunity to speak in his defense. It seems to me that have the language again? this section goes to protect the judges rather than to remove CHAIRMAN: Would Delegate Doi please read the - - such protection. CHAIRMAN: I’ll recognize Delegate Trask. He has not TAVARES: I think I can clarify this. That amendment talked on this subject yet. is my old Section 4A with some changes, and if they take the old 4A and follow Mr. Doi, I think they’ll be able to get A. TRASK: I rise to speak against the offered amend most of it. ment, Section 4. I’m inclined to think that the general impeachment feature of letting the justices and the circuit DOI: Shall I read it slowly again? “A justice of the court judges be removed from office by legislative action supreme court or a judge of a circuit court shall also be is outmoded and archaic. It seems to me that we proceeded subject to removal from office for unfitness to continue in here in the Convention in the Frank Silva case on the princi office, by concurrent resolution adopted by two-thirds of ple that the members of the body should determine the fitness the membership of each house of the legislature, upon of their own members. Now the judiciary is a distinctive written charges made by a judicial council after notice and branch of the government. It seems we have come a long an opportunity to be heard before a joint committee of both way since the impeachment days, and this substitute section houses, and an opportunity to address a joint session of of the lady delegate from Molokai is really, in fact, a both houses in his defense.” streamlined impeachment process nevertheless. ANTHONY: I’d like to speak in opposition to the amend It seems to me that we should venture the thought that the judiciary, being as independent as we would want it to ment. In the first place, that presupposes the existence of be, strong as we would want it to be, it would seem to me a judicial council. This Convention has not agreed upon a judicial council. likewise to follow that its members would be most acutely Moreover, it sets up rather cumbersome mechanics, which concerned about the fitness or unfitness of its members. to my way of thinking is much less desirable than the simple And inasmuch as the Section 9 provides, I believe, that the amendment proposed by the delegate from Molokai. In other chief justice shall, of course, appoint judges and so forth, words, we can simply have, if the amendment suggested by and the associate justice may, by rule of court, select their the delegate from Molokai is adopted, a provision whereby own chief justice, that we should go along with the principle judges shall be subject to removal from office upon concur already established, because I don’t see any particular rence of two-thirds of the membership—and incidentally I merit in delay if a judge is unfit. think it should be membership present, not the total mem Why delay the process, awaiting the legislature to meet bership, because the action of the combined houses should when you have probably many, many members, and being not be defeated by an absence of any particular member— that we are separated by water, most of our counties, many sitting in joint session. This other provision gets into the of the members would not be concerned, one way or another. realm of legislation which I think is unnecessary, and the And they may be too influenced by friends who are advocating proposed amendment provides for just that sort of thing if the cause one way or another of the person under scrutiny the legislature desires that kind of action. or under charge for unfitness. 376 JUDICIARY So it does seem to me and I venture the suggestion that CASTRO: May we have the whole amendment as offered we should have a simple amendment to this, which is - - by Delegate Ashford reread? someone has circulated around which I think should be amended, but as submitted, here—I think it’s on the desk of CHAIRMAN: Well, the amendment before the house, as all of us—”Any judge accused of treason, bribery, or high has just been pointed out, is Delegate Doi’s amendment to crimes and misdemeanors may be suspended by a majority Delegate Ashford’s amendment to the section. Which part of the supreme court.” Now that should be amended with of this would you like read? the word “treason,” of course, stricken, and maybe the words “or removed” after the word “suspended.” CASTRO: I would like to have Delegate Ashford’s amend ment, original amendment read, so that I may get the correct RICHARDS: May I say something to the delegate here wording of it in order to understand the changes of Delegate from the fifth district. Doi’s amendment. A. TRASK: I yield to the - - CHAIRMAN: The section as amended by Delegate Ashford reads as follows: “The justices of the supreme court and CHAIRMAN: Does the delegate yield? the judges of the circuit courts shall be subject to removal A. TRASK: I do. from office upon the concurrence of two-thirds of the mem bership present of each house of the legislature sitting in RICHARDS: There is an amendment of that amendment that is at present being worked out in the printing depart joint session, for such causes and in such manner as may ment and will be on the table shortly. be provided by law.” PORTEU5: I don’t like to refer to points of order, but I A. TRASK: Well, in view of that, Your Honor - - I mean, do have an objection to the word “present.” I would like an Mr. Chairman. occasion where I could get at that word, and prevent it from CHAIRMAN: Thank you. being included. The result of that amendment is this, that you can leave to a small minority of the Senate and the House A. TRASK: I would like to move for a recess until the call the privilege of determining whether or not a judge is to be of the Chair until this thing is looked at, that particular removed from office, by use of the word “present.” Other suggested amendment. Or let’s defer action on this matter wise, what is the meaning? pending receipt of that printed amendment. CHAIRMAN: I believe that in order to keep this in the ASHFORD: If it is proper at this time, I’d like to say proper sequence we will have to proceed with Delegate Doi’s that I would accept the suggestion that the word “present” amendment first, and then take up that if it’s still in order should be inserted in the amendment that I offered. to do so. WIRTZ: I’d like once again to address my remarks DOl: I would like to further add to my amendment this against the proposed amendment to the amendment that has sentence. “Any judicial officer so charged shall not exer been offered by the delegate from Molokai, by pointing out cise his office until acquitted.” The reason for that addition that in the original Section 4 and the amendment offered by is to take care of the point raised by Delegate Arthur Trask the delegate from Molokai, there is sufficient latitude this morning, and that is, there might be a long elapse of allowed the legislature to take care of the situation that was time between the time the offense is committed and the time brought up by my good friend, the delegate from the fifth the legislature might meet. And as to that particular prob district, to take care of situations that arise between ses lem, I again point to history and say that there have been sions of the legislature, whereas the proposed amendment times in the past where the legislature has failed to provide referring to a judicial council is restrictive in that it for the detailed method of removing an officer. And this provides only one method and that still requires the meet would take care of this - - that particular situation auto ing of a legislature to consider the matter. That is in addi matically. tion to what I’ve already had to say on the subject. CHAIRMAN: Before - - Delegate Roberts, you seconded Delegate Doi’s original motion. Do you accept that addition? CHAIRMAN: The Chair would like to state that there are two amendments to Section 4 before us at the present ROBERTS: May I have him read it again? I think I do; time, the first amendment was offered by Delegate Ashford, I want to get the full language. the second amendment by Delegate Doi. What is your pleasure DOl: The addition was at the end of the proposed section, now? a new sentence to read, “Any judicial officer so impeached,” - - no, “so charged,” rather, “shall not exercise his office ANTHONY: I believe - - I don’t believe it’s been recorded, but Delegate Ashford accepted a suggestion that after the until acquitted.” word “legislature” in her proposed amendment to Section 4 ROBERTS: I’ll accept that. CHAIRMAN: That’s next to the last line? RICHARDS: There is being circulated at present a pro posed amendment in - - by adding a second sentence that uses ANTHONY: Next to the last line, the word “present” be approximately the same wording that the delegate just spoke inserted. I think there should be an acceptance of that about. It reads, “Any justice of the supreme court or any amendment before we vote on this. judge of a circuit court held to answer for any high crime or misdemeanor may be suspended by the supreme court CHAIRMAN: I think that it should be in the third line, until he has been acquitted.” Delegate Anthony, after “membership.” CHAIRMAN: The Chair feels that there have been so ANTHONY: I think the Chair is correct. many amendments to this that it would be well if we recessed CHAIRMAN: Is that correct, Delegate Ashford? Is that long enough to - - acceptable to the second? DELEGATE: No. 377 JUNE 8, 1950 • Afternoon Session CHAIRMAN: - - gather them all together so that we FUKUSHIMA: I believe what Dr. Roberts said is true. A would know which ones we are talking about. motion to amend is a subsidiary motion. A motion to table is also a subsidiary motion. If you will read Cushing, which we HEEN: There was no motion to adopt the last amendment. follow here, a subsidiary motion cannot be attached to a CHAIRMAN: That is right. subsidiary motion unless it fails within an exception. And a motion to table an amendment is not an exception, and I be HEEN: That was suggested. That was just simply pre lieve Dr. Roberts is right. sented so as to be - - enable the delegates to be thinking about what they might have to do next. If the discussion on HEEN: I’d like to have them point out that rule. Delegate Doi’s motion to amend has been completed, I would CHAIRMAN: Would either of the gentleman who raised the move to table the motion that was made by Delegate Doi and point of order care to point out the rule? seconded by Delegate Roberts, and I so move. LEE: I just heard a good suggestion you made for a short SMITH: I’ll second it. recess. I wonder if it might be in order to move for a recess CHAIRMAN: It’s been moved and seconded that the to clear these matters. motion to amend as put by Delegate Doi, seconded by Dele DELEGATE: Second the motion. gate Roberts, be tabled. That would also include the added sentence that had been added, in making up that motion. CHAIRMAN: If there’s no objection, we’ll have a five minute recess. ROBERTS: Point of information. I’d like to ask the Chair whether or not the motion to table carries with it all of the (RECESS) pending amendments and the original motion? HEEN: I will now withdraw my motion to table the motion CHAIRMAN: No, it is only on the one amendment that that was made by Delegate Doi and seconded by Delegate we are voting now, that is the last amendment that was made by Delegate Doi, seconded by yourself. Roberts. And I now move the previous question. WJRTZ: I second that. ROBERTS: I’d like to point out that the general procedure with regard to tabling a motion tables the substance and all CHAIRMAN: It’s been moved - - the previous question that goes along with it. been moved and seconded. All those in favor say “aye.” Opposed. Carried. DELEGATE: Point of order. The previous question is the adoption of the amendment ROBERTS: Point of order. as proposed by Delegate Doi and seconded by Delegate Roberts. All those in favor say “aye.” Opposed. The amendment is CHAIRMAN: Delegate Roberts has the floor. lost. ANTHONY: The delegate is out of order. We now have before us the one amendment as proposed by Delegate Ashford. ROBERTS: I raised the question of a point of order. May I speak to it? RICHARDS: I would like to move at this time that that amendment be further amended by adding the sentence, “Any CHAIRMAN: Please proceed. justice of the supreme court or any judge of a circuit court ROBERTS: We have been going along on the supposition held to answer for any high crime or misdemeanor may be in our general proceedings that the way to get rid of a pro suspended by the supreme court until he has been acquitted.” posal is to move to table. It seems to me that there are CHAIRMAN: Is there a second to that? Hearing no second, proper procedures whereby the delegates of this Convention what is your pleasure on the - - can state their position for or against a specific proposal, and that is to vote on the language and on the merits. It TAVARES: I’ll second it for purposes of allowing dis seems to me that the use of the procedure to table does not cussion. permit the Convention to express its opinion on the question. RICHARDS: This I feel, in conjunction with the amend The general purpose of a motion to table is to put the ques ment already before the - - on the floor, will take care of tion aside until such time as the pending materials are pro the interim situation that I was exercised about earlier in perly handled. It’s something which comes up which has no this meeting. In other words, it will leave up to the supreme immediate relevance or bearing on the question. It seems court the opportunity of suspending any judge in between to me that there has been too much procedure with regard meetings of these sessions of the legislature. to tabling of amendments. As I read my rules of procedure, a motion to table carries with it everything that deals with WIRTZ: I’d like to point out that in the amendment that particular motion and so it seems to me that if the motion that has been offered by the delegate from Molokai which is to table, the motion goes to table all of the section. is now before us, there is the general clause, “for such FUKUSHIMA: Mr. Chairman. causes and in such manner as may be provided by law.” The question of suspension, in my opinion, could be pro HEEN: Now, Mr. Chairman - - vided by law, and that would take care of the situation that CHAIRMAN: You’re addressing this Chair on a point of the delegate from the fifth district has in mind. order? TAVARES: If I were sure of that, I would be very happy FUKUSHIMA: Point of order, yes. to leave that amendment out, but I ani not satisfied that that would necessarily be implied. The proposal, or the amend HEEN: No, it’s not on the point of order, but upon the ment, only talks of removal, it says nothing about suspension. argument made by the last speaker. And if the word “suspension” is included in “removal,” then CROSSLEY: I recognize Delegate Fukushima on the point it seems to me the suspension would have to be done in the of order. Will you state your point of order? same manner, and that would mean you would just go round 378 JUDICIARY and round. You would still h ave to wait for the next session KELLERMAN: May I ask the gentleman from the fifth to have the suspension. district if he would explain what is meant by the words “held BRYAN: I’d like to ask the delegate from the fifth that to answer.” To just what proceeding does he refer, the proposed the last amendment if he should not specify, or at “held to answer”? least the record should not show, “suspended by a majority CHAIRMAN: Can the Delegate Richards answer that? of the supreme court” or “unanimous decision.” RICHARDS: I understood, also, from members of the CHAIRMAN: Would Delegate Richards care to answer “Supreme Court,” that “held to answer” would be charged that? in one shape or another, possibly indicted, or formerly or RICHARDS: In answer to the question of the delegate legally charged. from the fifth district, I discussed this with our local HEEN: rhat language was copied from Section 9 of the “Supreme Court” who stated that the mention of the supreme Bill of Rights. “No person shall be held to answer for a court automatically meant a majority of the supreme court, capital or otherwise infamous crime unless on a present so that three members of the supreme court would be able ment or indictment of a grand jury,” which is a good section to suspend one of their own members. of the Bill of Rights. WIRTZ: rhere is one other thing I’d like to point out CHAIRMAN: What is your pleasure with this amendment? about this amendment, this second amendment that is offered, Ready for the question? The question is on the adoption and that is that suspension is limited to high crime or mis of the amendment to the amendment. All those in favor - - demeanor, whereas your removal is “for such causes and in such manner as may be prescribed by law.” Now is it the LEE: How does it read? Will you read the - - intention of the delegate from the fifth district that the CHAIRMAN: - - of the amendment to the amendment, and question of suspension should be limited only to high crimes the one under question at the present time is as follows: “An3 or misdemeanors? justice of the supreme court or any judge of a circuit court CHAIRMAN: Would the - - Delegate Richards, would you held to answer for any high crime or misdemeanor may be answer that, please? suspended by the supreme court until he has been acquitted.” I might state that this is an amendment to the amendment RICHARDS: I am again mentally handicapped when it proposed. All those in favor say “aye.” Opposed. The comes to dealing with legal language. But I understand as amendment is lost. a mere layman that a misdemeanor covers practically We are now back to the Delegate Ashford’s amendment everything that is not a high crime. to Section 4. SAKAKIHARA: Will the delegate from the fifth district ROBERTS: As a matter of future procedure, I would yield, delegate who offered the amendment? suggest that since we have microphones, which do not give CHAIRMAN: Proceed. the proper indication of the feeling of the Convention, that a show of hands be substituted for the microphones. SAKAKIHARA: In the event of an insurrection and the machinery of these courts has failed, and it. involves the RICHARDS: Second the motion. supreme court, which might betray the public, then who is CHAIRMAN: I believe the Chair would like to state that to remove the supreme court? The justices of the supreme despite the volume produced by the microphones he was able court? to see the open mouths easily. CHAIRMAN: Are you asking the question of - - TAVARE5: I would like to know whether the motion now includes the word “present” after the word “membership.” SAKAKIHARA: I am asking the question of the introducer of the amendment. CHAIRMAN: The motion as it now stands includes the word “present.” CHAIRMAN: Delegate Richards. TAVARES: Then I move to strike that word. I think it’s RICHARDS: I did not get the question. utterly dangerous to subject the removal - - CHAIRMAN: Perhaps Delegate Tavares heard it and could answer it~ PORTEUS Second the motion TAVARES: I think I could answer that with another CHAIRMAN: It’s been moved and seconded to strike the question. If the whole legislature revolts, who is going word “present” from that amendment. Any discussion? to remove the legislature? A. TRASK: The word “present” - - SAKAKIHARA: That is not the question, Mr. Chairman, ANTHONY: Point of order. I never heard of a motion not parallel to the question. In the case - - to strike in a parliamentary body. CHAIRMAN: Delegate Sakakihara, would you please state CHAIRMAN: That’s probably - - the question again? ANrHONY: I’ve heard of it in civil cases and equity cases. SAKAKIRARA: In the event of an insurrection, and if the justices of the court, supreme court in this case, should TAVARES: All right, I’ll move to amend the amendment betray the people, who is to remove the supreme court? by deleting the word “present.” The five justices or three justices? CHAIRMAN: All right, that’s what the Chair understood. TAVARES If there is an insurrection and the supreme A. TRASK: Question, please, of Mr. Tavares. The word court members join the insurrection, they will be put down “present” - — by the militia and the United States Army and Navy. PORTEU5: Point of order. That motion has not been CHAIRMAN: Thank you. seconded. If I may be recognized, I’ll second the motion. 379 JUNE 8, 1950 • Afternoon Session CHAIRMAN: I recognize Delegate Porteus for the second. Federal Constitution is used at all, because the net result has been that that machinery for impeachment is so cumbersome PORTEUS: Thank you, Mr. Chairman, I now second the it’s only been used a few times in our entire history, just motion. because of that situation. And I think the amendment by TRASK: Is the word “present” after the word “two-thirds”? Delegate Tavares is very good. TAVARES: No, “the membership present.” This means, SILVA: The Senate in itself, our Senate takes two-thirds the word “present” means that you can wait until - - to remove each member. We have the qualification of our own membership and it takes two-thirds of the total mem CHAIRMAN: The Chair will be glad to recognize the bership to remove a senator, and in the House of Represent delegate. atives the same thing, and I feel that this is much more im TAVARES: Mr. Chairman, I’m sorry. portant, and I think that two-thirds of both houses, of the That word “present” means that you can wait till half of entire membership of both houses should be used for the the house or almost half goes out on a holiday, pull a sneak removal of a judge. And I just want to state my position. meeting, and bring the question up unknown and vote some SHIMAMURA: I was just about to call the members’ body out of office with two-thirds of those present. I think attention to the provision of our Federal Constitution. “And it’s utterly dangerous. I think everybody ought to be forced no person shall be convicted without the concurrence of to be present and if they are not there, they ought to send the two-thirds of the members present.” sergeant at arms after them. Everybody ought to be made to do his duty on this kind of a dirty job. ANTHONY: If the Convention wants to facilitate the pro cess of removal, as evidently Delegate Trask would like to ANTHONY: I don’t agree with the last speaker. The pur do, the way to do it is not to have two-thirds of the member pose of inserting the word “present” is not to have any half ship of the house, but two-thirds of those present, and there a dozen people meet in a covert session and act on the re fore, in line with his suggestion that we get rid of the cum moval of a judge. Obviously, they have got to have a quorum bersome procedure of impeachment, I think we ought to of both houses. But it is a very salutary provision which will adhere to the language of the Federal Constitution, namely prevent a dissatisfied minority absenting themselves from two-thirds of those present. You would first have to have a session of the legislature, thereby reducing the number of a quorum, then you would have to have two-thirds of both those present. And if you’ve got to have two-thirds of all houses. members, then you would have to have possibly a maj ority SILVA: Move the previous question. or a unanimous vote of all present. I call attention of this Convention to the fact that this is KING: Will you just suspend a moment? Two-thirds of the very language used in the Federal Constitution, and that’s a half or two-thirds of a quorum, would be two-sixths or one why it was put in there. “Those present,” “two-thirds of third. In other words, there is a possibility that a judge could those present” is the language of the Federal Constitution. be removed on a vote of one-third of the membership of the It.should not be two-thirds of the membership, otherwise a two houses. At first I thought the word “present” was desir dissatisfied minority could absent themselves and thereby able. I’m now convinced by the arguments of both Delegate defeat the - - Porteus and Delegate Tavares that it ought to be two-thirds of the full membership. PORTEUS: I’m afraid that I disagree with my colleague from the fourth district most emphatically. A dissatisfied SILVA: Previous question. minority cannot absent themselves and prevent action. I CHAIRMAN: Ready for the question? The motion is to think the vote ought to be two-thirds of the membership. I delete the word “present.” All those in favor say “aye.” understand that’s what it’s supposed to be. I think in a Opposed. Ayes have it. “Present” is deleted. matter as serious as this, it should take two-thirds of the membership. If a minority wishes to absent itself, it does MIZUHA: I’d like to ask the movant of the original not interfere with the power of those that remain to compel amendment whether or not she meant two-thirds of each their attendance. It does prevent, however, in a legislature, house separately or in joint session. I want that clear, people from absenting themselves and thus trying to avoid although it indicates of each house, but Iwant it clear. taking a position on a question, and leaving it to a bare CHAIRMAN: Delegate Ashford, will you answer the majority of one of the houses to determine what should be question, please? done. And of the bare majority present it only takes, under the scheme outlined, a two-thirds vote. ASHFORD: The language was changed from “two-thirds Now I believe that it would be much better to omit the of both houses” to “two-thirds of each house” so as to make word “present,” to require a two-thirds vote of the full it perfectly clear, and give the other islands a chance to house and leave it to the others present to compel the attend protect themselves. ance of the members, as may be done in connection with CHAIRMAN: The motion before us now is to amend other legislation. Section 4 by the substitution of a new Section 4, which you BRYAN: I am in support of the previous speaker. I be all have before you. Ready for the question? lieve that anyone who would stay away from the meeting A. TRASK: I’d like to address myself to the original would be no different than just voting “no” on the question. thought that I had a moment ago, namely to amend the That’s all it amounts to. As a practical matter, I don’t substitute for Section 4 offered by the lady delegate from think it makes any difference. Therefore, I believe the Molokai and to adopt the language in the amended sentence language with the word “present” removed would be proper. submitted by Delegate Monte Richards. If they are going to stay away, it means that if they came they would vote “no,” that’s all. CHAIRMAN: That sentence was submitted and lost. A. TRASK: I agree altogether with Delegate Tavares, A. TRASK: Was defeated. That’s correct. Well, I’m because I see no merit in the fact that the language in the offering this particular amendment to substitute for the sub- 380 JUDICIARY stitute for Section 4 as offered, namely, reading as follows — court itself and the justices would feel compelled, even thoug and if you’d follow the amendment offered by Mr. Richards, th~y would probably vacillate. The question always of public why it would read as follows —and this is to take the place of opinion rules both the legislature certainly which would bring the entire Section 4 and 4A—namely as follows: “Any justice up this question of presentment for a charge and will go on of the supreme court or any judge of the circuit court, held its two-thirds membership to oust or seek the removal of a to answer for any high crime or misdemeanor may be re judge. Certainly the courts, when one judge is amiss or any moved or suspended by the supreme court.” Now I feel that other situation, the entire judicial system is under question. this method would hold - - So it seems to me that consistent with every attribute of CHAIRMAN: Would the delegate read that again a little independence that we are seeking to make the three branches slower so that our clerks will be sure and get the motion have, we should consider seriously this amendment to have inasmuch as it has not been circulated. Thank you. the court itself be the judge, as we are here, of the fitness of our own members. A. TRASK: .“The supreme court or any judge of a circuit court held to answer for any high crime or misdemeanor BRYAN: I think that my colleague from the fifth has may be removed or suspended by the supreme court.” given a very good argument why his amendment is not required. He proposes putting - - among other things he CHAIRMAN: And that is in place of the amended Section proposes putting the word “unfit” into the third line of 4? Section 5. That would take care of his particular problem A. TRASK: That is correct, as offered by the lady dele with respect to Section 4, and Section 4 as proposed by the gate from Molokai, and I so move. delegate from Molokai would be in order. J. TRASK: Second the motion. CHAIRMAN: Do you offer that as an amendment? A. TRASK: To correlate my argument here—I’m a HEEN: I move the previous question. little shocked by the reaction near me—I realize that the SMITH: Second the motion. lady delegate this morning said she objected highly to the CHAIRMAN: The previous question has been moved. All expression “high crime or misdemeanors,” but I’d like to those in favor say “aye.” Opposed. say in anticipation of the objection that Section 5 in the pro The Chair is a little in doubt and wants to be fair. The posal, Committee Proposal No. 7, I have suggested an amend previous question would be a vote on whether or not we shall ment to that. After the word “incapacitated” in the middle take up immediately and without further debate the amend of the third line of Section 5, to have the words “or unfit” ment that has just been made. All those in favor of the which would be grounds for negligence and so forth, for a previous question say “aye.” Opposed. Ayes have it. justice to be removed. Question now is the amendment made by Delegates Crask So addressing myself directly to what may be considered and Trask for the adoption of the amendment as a substitute a novel section to the question of removal or suspension of for the amendment for Section 4. All those in favor say “aye.’ justices or judges, I feel that a strong judiciary should be Opposed. The noes have it. The amendment is lost. strong enough to clean out itself when the occasion arises. All those in favor of the amendment offered by Delegate I have - - I cannot go along with Delegate Sakakihara who Ashford which now remains unchanged - - talks only about rebellion in one branch of the government and leaves the other two branches spotless. I feel that the KAM: I would like to ask one of the three judges of our goveinor having the power of appointment and the judiciary “Supreme Court” in this Convention a question. What, in thereby being composed, it, probably more than any other this proposed amendment by Delegate Ashford, “for such branch of the government, is acutely aware not only of the causes,” what are the causes for impeachment? legal aspects of proper judicial conduct but the high ethics CHAIRMAN: Delegate Anthony, would you care to answer that are required of judicial conduct. that? The court makes its own rules and regulations. It regu lates itself. It is so tenacious with respect to its own ANTHONY: That would be left as a matter of legislation, conduct that there comes clashes now and then, as was for determination of the legislature. In other words, it would brought to the attention of the Convention some time ago, be included - - I believe either in the committee or in the convention hall, SILVA: I rise to a point of order, Mr. Chairman. Is that where it was suggested that if the legislature by a law sought an admittance that you are a member of the “Supreme Court” to say that anyone that was born on October 4 would be given of this Convention? a license to practice, such a law would be obviously unconsti CHAIRMAN: The question is out of order. Will you pro tutional because it would attack the very individual character ceed, Mr. Anthony~ Are you satisfied, Delegate Kam? The and dignity and all the attibutes that are given and attributed Chair will put the question. to the judiciary, and its independence and its power to make its own inherent rules. There are many inherent powers in KAM: Is it the same as the original Section 4, “treason, the judiciary, in the self-determination with respect to this bribery or other high crimes and misdemeanors”? business of justice. CHAIRMAN: The motion for adoption now is on the amend So it seems to me, even though the suggestion may be ment to Section 4 which was offered by Delegate Ashford. adventuresome here, I do think that this business of letting this matter rest in the hands of the legislature when only ANTHONY: In further response to - - May I speak in one part of the legislature has power to advise and consent answer to the question? This is a broadening of those causes to the appointment of any judge or justice, that we should for which an impeachment would lie. In other words, it goes leave this matter altogether with the court. The first and beyond high crimes and misdemeanors. That’s the purpose immediate reaction is this: if any person is answerable of the movant. for any high crime or misdemeanor, the public reaction CHAIRMAN: Ready for the question? All those in favor would be such that they would want immediate action. The of the amendment will say “aye.” Opposed. Ayes have it. courts would be put under a cloud, and immediately the Section 4 has been adopted as amended. 381 JUNE 8, 1950 • Afternoon Session DELEGATE: Is that the ruling of the Chair or do we have BRYAN: I believe it’s necessary to move passage of this. to act on Section 4 as amended? ROBERTS: That has already been done. I can’t - - CHAIRMAN: The amendment was offered as a substi tution for Section 4. The Chair would rule that that passed CHAIRMAN: The motion to adopt Section 5 was made Section 4 as amended. earlier this morning, and it was deferred until this after Section 5. noon. Delegate Roberts. HOLROYDE: I have the unique privilege of moving the ROBERTS: Is it in order to speak to the question of adoption of Section 5. the - - CHAIRMAN: It’s the consideration. It has been deferred. CHAIRMAN: It’s in order to speak to the question of your amendment and to the section. Do you wish to speak A. TRASK: May I have also the unexpected pleasure of at this time? seconding the motion for the adoption of Section 5. ROBERTS: Just a moment. I think there was a question CHAIRMAN: It’s been moved and seconded that we recon raised as to what the amendment is. The amendment is to sider Section 5 which was deferred to the end of the calendar. delete the words “supreme court” and to substitute the words Any discussion? All in favor say “aye.” Opposed. We will “judicial council.” discuss Section 5. HEEN: Mr. Chairman. ROBERTS: I raised the question this morning on Section CHAIRMAN: Does Delegate Roberts yield? 5 on whether or not the members of the supreme court are the individuals who are to determine and suggest to the ROBERTS: I yield for a question. governor the appointment of a commission to inquire into HEEN: There is no provision in the article as it stands the ability or inability of another judge of the supreme court or the cirucit court to sit in office. I indicated this morning now for the establishment of a judicial council. Perhaps this suggestion might appeal to Delegate Roberts. Have that that I would move the adoption of a proposal in the form of part of Section 5 read this way: “Whenever a commission an amendment either to this section or Section 10, for the or agency established by law shall certify to the governor,” creation of a judicial council. I recognize that it is difficult and so forth. In other words, that will then permit the legis to move an amendment substituting the word “judicial coun lature to, say, establish a judicial council to take care of cil” for the “supreme court” in Section 5 without first getting this situation. before the Convention the question as to whether or not a judicial council should be included in the Constitution. If it ROBERTS: That would be agreeable to me, Senator, if is agreeable, we might defer this Section 5 and take it up at you would add the words “or in accordance with such other the same time as Section 10. agency as established by the Constitution” so that would permit me - - I indicated that I intended to move the inclu BRYAN: Point of order. sion of a section dealing with a judicial council in the Consti CHAIRMAN: State your point of order, please. tution. BRYAN: I believe we have already voted on Section 5 and KING: Mr. Chairman. passed it, just a moment ago. If not, I’d like to know what CHAIRMAN: Do you yield for a question? we were voting on. ROBERTS: I yield. CHAIRMAN: We voted on Section 4. KING: It is my understanding that you propose to intro BRYAN: Following that, my colleague from the fifth dis duce another amendment that would establish a judicial trict, from Kahuku made a motion - - council. It seems to me we would best defer Section 5 and ROBERTS: That is correct. We have passed Section 10. go down to that amendment, vote it up or down, then come back to Section 5. Would it be agreeable to defer action on BRYAN: It was seconded and then we voted on something. Section 5 at this time and proceed to the subject matter where your amendment would come in? CHAIRMAN: We voted on reco nsideration, on taking Section 5 up at the present time. It had been deferred and ROBERTS: That will be agreeable. moved to take up Section 5 at this time. KING: Would you not prefer to move then that action be TRASK: I move to amend Section 5 - - deferred on Section 5 at this time? CHAIRMAN: I’m sorry. Delegate Roberts has the floor. H. RICE: I think what is in dispute is a judicial council, I yielded only for a point of order. Delegate Roberts. and we could go down there and make a new section, Section 11, and establish a judicial council and then see how the ROBERTS: I’d like at this time to move that the words delegates feel on a judicial council. Is that all right? That “supreme court” be deleted from Section 5, and Section 5 seems to meet with approval, and I would suggest then that be amended to add the words “judicial council,” so that the we take up the matter - - section would read: “Whenever the judicial council shall certify to the governor.” The language thereafter would CHAIRMAN: That we defer Section 5? remain the same. H. RICE: Defer Section 5 and have Section 11. We take ARASHIRO: I second that motion. up now a new section, Section 11, the establishment of a BRYAN: In order - - point of order. judicial council. CHAIRMAN: Delegate Roberts, have you finished? CHAIRMAN: Is there a second to that? ROBERTS: I’ll yield to a point of order. ROBERTS: I’ll second that. 382 JUDICIARY CHAIRMAN: It’s been moved and seconded we defer rules and methods of administration, and operation of each action on Section 5, and consider a new section to be known and all the courts of the State. as Section 11 dealing with a judicial council. All in favor The proposal is basically in conformity with other coun say “aye.” Opposed. Ayes have it. cils established by some 33 states. The practice and proce ROBERTS: I have an amendment which I’d like to place dure of those councils has indicated a valid and proper use on the desk and have distributed to the delegates. and has resulted, at least on the basis of information avail able, in the better practice of the judiciary in eliminating CHAIRMAN: Will the messengers distribute them and certain abuses that have arisen, and providing the lay please give the clerks and the Chair a copy immediately? people of the community a better understanding and appreci ROBERTS: Would it be in order to move for a short ation of the functions of the law. It is sometimes assumed recess so the delegates have an opportunity to read the that the mere statement ofrules of procedures and practices, proposal. because they have been laid down by the judiciary, are there fore understood and accepted by the public. It has been CHAIRMAN: There’ll be a five minute. recess, hearing found as a matter of practice that the better understood the no objection. lay people are in connection with the practices and proce (RECESS) dures of the court and their function, the better the adminis tration of justice and the greater the regard for the courts. CHAIRMAN: The Chair will recognize Delegate Rice. The committee that has reported out to us has indicated Delegate Harold Rice, do you have the amended section or - - that they want a strong court, that they want the best quali fied people to perform the job. It seems to me that the H. RICE: The amendment given to me was an amendment formation of a judicial council would go toward that end. to Section 7. I think, although it isn’t in order, it should be I’d like to point out in the support of the section dealing a new section, Section 11, as I understand it. with the appointment of lay individuals as part of this CHAIRMAN Well, we defer - - the motion to defer the judicial council, a statement made by the president of the other one was made and the motion to take up a new section American Bar Association on this question. He stated, and to be known as Section 11. Does someone have a proposal I’m quoting, to make on Section 11? I asked an informed individual which kind of group gets the best results. His answer was, “Those councils which ROBERTS: I’d like to move that the new Section 11 be have laymen on them. Where either lawyers or judges accepted by the Committee of the Whole. serve alone they seem to lack energy for sustained attack. Section 11. There shall be a judicial council consist Where judges and lawyers serve together each group ing of the chief justice, who shall be its chairman, and seems to have a diffidence about imposing its views upon eight additional members, of whom two shall be judges the other, which stultifies action. Where, however, lay of courts having appellate jurisdiction who shall be men are included, their presence seems to act as an appointed by the chief justice, for terms of four years; ‘ice-breaker’ and to stir activity among the professional two shall be practicing attorneys; and four laymen citi members of the council. Laymen’s criticisms are sharper. zens of the state, who shall be appointed by the governor I might state that I am perfectly willing to modify so far for overlapping terms of three years. as the proportions are concerned, as between the members It shall be the duty of the council, and it shall have of the bar, the judges and laymen. As long as there are the power, in addition to other duties and powers which some representatives of the lay citizens on that group, I may be conferred upon it by law, to make a continuous have no objection to an amendment to make such provision. study of the administration of justice in this state, and of the organization, procedure, practice, rules and CHAIRMAN: Do you move the adoption of this? methods of administration and operation of each and all of the courts of the state, to receive and consider, and ROBERTS: I plan to move the adoption of this. in its discretion, investigate criticisms and suggestions CASTRO: I second the motion to adopt the proposed pertaining to the administration of justice in the state; section. to collect and publish statistical and other information concerning the work of the courts of the State; and to ROBERTS: If it is agreeable with the committee, I’d like to suggest that we amend the proposal before you to elimi make or alter the rules relating to pleading, practice, or procedure in all the courts of the State, including rules nate the last paragraph, and in the sentence immediately prescribing the duties of all administrative personnel preceding, which is in the second paragraph, after the semi and agents of the courts. colon, and which now reads, “and to make or alter the rules,” Rules of pleading, practice or procedure shall be to read “and to recommend the making or altering of the rules.” The purpose of that amendment would be to indicate effective only when published as provided by law, and that the council acts in an advisory capacity and does not in the legislature may repeal, alter or supplement any rule itself promulgate such rules. So the sentence would read, by a law limited to that specific purpose “and to recommend the making or altering of the rules re CHAIRMAN: What is Section 11? lating to pleading,” etc. I move the - - ROBERTS: Section 11 comprises a proposal creating the HEEN: Mr. Chalrman. establishment of a judicial council which shall consist of ROBERTS: - - appropriate amendments. nine members to be appointed in part by the chief justice of the supreme court and in part by the governor, to consist CASTRO: I second the motion to amend. of judges of the supreme court, practicing attorneys, and lay citizens. The. purpose of the judicial council would be HEEN: Mr. Chairman. to make continuous studies of the administration of justice CHAIRMAN: The Chair would like to put the motion to in the new State, and the organization, procedure, practice, make this amendment. Delegate Heen. JUNE 8, 1950 • Afternoon Session 383 HEEN: In order to expedite matters I call for the pre were agencies performing similar duties in other - - three vious question on that last motion. other states. California is the only state which authorizes a judicial council by constitutional provision. cHAIRMAN: On the altering of the amendment before us? CHAIRMAN: Any further discussion? HEEN: That’s correct. To delete those - - the last para graph and last clause alter the semicolon - - KELLERMAN: I think we deferred considering Section 5 in order to consider Section 11 - - WOOLAWAY: I second that motion. CHAIRMAN: Correct. HEEN: - - in the paragraph before last. KELLERMAN: - - to create judicial council. I wonder CHAIRMAN: The motion for the previous question has if I might ask the movant of Section 11, if he would consider been put and seconded. That would be on the - - if that accepting, in lieu of the creation of a judicial council by carries, we would then vote on deleting the last paragraph Section 11, the recommendation of the Committee of the of this Section 11 and making the other changes that have Whole that the judicial council be established by legislation, been suggested. and supplement that or augment that by amending Section 5 to read, “Whenever the judicial council as established by HEEN: Deleting the last paragraph, but also the last law shall certify to the governor.” clause alter the semicolon of the second paragraph. In other words, we shall be referring to the judicial coun CHAIRMAN: All those in favor of the previous question cil in the Constitution indicating that it is to be established say “aye.” Opposed. The previous question has been by law, and then setting forth in as much detail as desired called for. I’ll now put the amendment to the new Section 11. by this committee the entire Section 11, possibly, as recom mendation to the legislature to be included. Would he consi ROBERTS: Is the purpose to forestall any discussion to der that favorably in lieu of creating the judicial council in this question? detail, as this seems to be pretty much a legislative matter? CHAIRMAN: Any discussion is now forestalled. The CHAIRMAN: Delegate Roberts, you have been asked a question is on the acceptance of the amendment. question. Would you care to answer? ROBERTS: Well, the amendment, as I gather, is the ROBERTS: My main purpose in putting this section before amendment as we proposed it. I thought I heard the state the committee is to bring forth the presentation of a problem ment to delete the entire section alter the semicolon. It’s dealing with the total question of the judiciary and law en all right. forcement. It seems to me that the broader the base you CHAIRMAN: All those in favor of the amendment to have for understanding the action of the courts, the greater Section 11 - - No, all those in favor of the amendment - - the possibility of support of courts and their actions. To Yes, all those in favor of the amendment would say “aye.” those, and this goes for the majority of the people who are All those opposed. Amendment carried. not lawyers, the more information that you get to them as to the administration and function of justice, the greater the ANTHONY: As I understand it, that motion was carried possibility that the judiciary will be supported and under and now we are open for debate on the proposal of Delegate stood. Roberts as has been amended by the last motion. Is that The reason for suggesting its inclusion in the Constitu correct? tion is to give cognizance to the fact that some 33 states have CHAIRMAN: That is correct. adopted it since 1920. The reason why they have not been inäluded in their constitutions, I think, is in part indicative ANTHONY: I would like to speak in opposition to the of the fact that there have been no constitutional conventions amendment offered by Delegate Roberts. in those states, and when constitutional conventions had CHAIRMAN: That is to the entire Section 11 as now been held, those actions in those groups are - - have already amended. been in effect and are functioning. Therefore, there isn’t any need to incorporate those sections in the Constitution. ANTHONY: To the entire section. This proposal, this We do not have a judicial council and, therefore, my own amendment offered by Delegate Roberts is statutory, pure preference would be for its inclusion in the Constitution. and simple. In every state in the union, with but one excep If, however, it is the feeling of this delegation, this body— tion, namely California, judicial councils that have been and I would like to urge other members of the Convention erected—and there are some 35 in number—have been by to express their opinions on this —if it is their feeling that legislation. Now there is nothing to prevent the legislature this matter is best left to the legislature and they would of the State of Hawaii from creating a judicial council. The prefer a general statement to the effect that the legislature debate which will ultimately come before this Convention, shall establish such a judicial council, then, of course, I I assume, will be whether or not there should be a judicial would wholeheartedly support such a position. council having to do with the selection and tenure of judges, I might point out to some of the delegates that this judi quite a different thing than we have before us. This seems cial council has nothing to do with their discussion and debate to me to incorporate a great mass of statutory material, in the Judiciary Committee, which concerned itself primarily entirely unnecessary in a Constitution, which should be a with a judicial council for the purpose of selecting and nomi simple frame of government, and therefore I object, I am nating judges. The purpose of this council is merely for the opposed to the adoption of this amendment. purpose of studying the administration of justice in the new HEEN: I also rise in opposition to the amendment that State and the making of recommendations for its better use has been proposed. The first state to establish a judicial in the State. I think that we ought to divide our previous council was Ohio in 1923. Then in 1924 Massachusetts thinking of a judicial council which was concerned with the followed with a similar statute, meaning thereby that Ohio problem of making recommendation of slates of nominees created a judicial council by statute. By 1948, 33 states in [from] this council which is concerned primarily with the the Union has created judicial councils and in addition there study and the administration of justice in the State. 384 JUDICIARY ANTHONY: The Judiciary Committee has struggled to the legislature can do that. If we were to put the eight addi keep in two simple pages, an entire branch of government. tional members, and two of whom shall be judges, then it It has been our earnest effort to keep out a lot of statutory will stand. There may come a time that the legislature may material. This is statutory, pure and simple, and I think feel that we should have a greater representation of laymen it would be very unwise to set the precedence in the judi with the judicial council, and we couldn’t do anything about cial branch of government that we are going to incorporate it if it’s fixed in the Constitution, but if it was left to the [rest of speech not on tape.] legislature, then the legislature can easily see fit that there KAUHANE: The producer of this proposal has made a shall be a greater proportion of laymen within the council very careful study of the judicial proceedings relative to a or a smaller council or a larger council from time to time. setting up of a judicial council in California. I think if it Therefore, I think that the only thing that is pertinent is that works well for California, it is oaly proper that we should there shall be a judicial council. give it some consideration. I’d like to ask the chairman LOPER: I rise to a point of information in the form of of the Judiciary Committee whether this proposal as sub a question to the chairman of the Judiciary Committee. It mitted is a step forward or backward in our judicial setup. is claimed that this matter is statutory and that under the State of Hawaii there would be nothing in the Constitution to ANTHONY: So far as the Constitution is concerned, it’s prevent such a judicial council from being organized. My a distinct step backward. We have already got a supreme question is, is there anything in the Organic Act at the court chief justice who is the administrative head; we have present time which prevents the organization of such a an administrative director. If that need be implemented by council, and if there is a recognized need for it, why haven’t further legislation, there is ample legislative power to do it. we had it? What we will be doing here will be cluttering up the Constitu tion with matters obviously legislative in their character. ANTHONY: There is nothing in the Organic Act that prevents it any more than there is anything in the Organic KAUHANE: I’d like to ask the chairman again. The state Act that either authorizes or prevents the creation of the ment that he has made, is that a statement of his own opinion? Board of Education. But the legislature in its wisdom has Because of the wide differences of opinions among some mem created certain agencies. The legislature in its wisdom has bers of this Constitutional Convention - - not passed on this question of whether or not there should CHAIRMAN: I believe you asked his opinion in the first be a judicial council. instance. CHAIRMAN: I don’t think that the last speaker was en ANTHONY: I would say that my opinion is borne out by tirely correct in stating that there was no place in the - - other state constitutions. It says there shall be a Department of Education, I believe. MIZUHA: The delegate from the fourth district did mention ROBERTS: I’d like to correct the statement made by the that there weren’t any new constitutional conventions in the delegate, I think, from the first district with regard to the various states in the Union to give those states the authority establishment of judicial councils. I have before me the to write it within their state constitutions. But I would like official report prepared for the use of the delegates, and on to point out to the members of this Convention that within the page 215 there is a tabulation on the formation of judicial last seven years, there were three major states of the Union councils, the year in which they were founded and by whom that held constitutional conventions —Georgia, I believe, in authorized. The State of Georgia provided by statute for ‘43 or ‘44, Missouri in ‘45, and New Jersey in ‘47. And in the formation of such a council in the year 1945. The State those three revisions of the state constitutions, although they of Missouri in the year 1941 provided for an executive com had some system of judicial council, it was not written into mittee of the Missouri Judicial Conference Forum. The the state constitution. State of New Jersey in 1930 adopted such action by a statute, and the State of New York in 1934. All of those states CHAIRMAN: Any further discussion? Ready for the - - mentioned by the speaker before have provision for a judicial council. NIELSEN: So far as making this brietsection in our Consti tution, ~ don’t think we should consider that seriously. In the MIZUHA: My point was that it wasn’t written into their Florida Constitution which was written in 1949, they have state constitution, and I believe I’m right. I may be wrong 11 pages to cover judiciary. They even say what the justices, that it wasn’t — — it is there but I have to see the state the circuit court justices, shall get in the way of salary. They constitutions first, but according to this tabulation, it says state what the constables’ duty shall be, and on and on and on. it’s provided for by statute. So I think that we should put this in here verbatim as the LEE: I believe that the - - with the other speakers who amendment stands. have spoken before me that this is a statutory matter. I SMITH: In answering Mr. Nielsen, I believe maybe also believe that the - - as set up in this proposal as I read Florida - - persons who wrote up that constitution didn’t it, for this judicial council to deal with a continuous study trust the legislature. They had to write out something really of the administration of justice. It’s a continuous thing long, most likely they didn’t trust them. This is an adminis dealing with the organization, procedure, practice, rules trative — - legislative matter, I fully believe. and methods, and the membership is - - may be shifted as the amount of laymen as versus the amount of lawyers and ROBERTS: May I answer the - - the amount of judges. Those matters could be well thrashed CHAIRMAN: Delegate Silva. out and debated after the system of the judiciary is set forth in the Constitution as contained in the majority report. SILVA: I personally believe that this is a legislative matter in its entirety. The only thing that is necessary in CHAIRMAN: Any further discussion? the Constitution is that there shall be a legislative - - I mean A. TRASK: I am opposed to this amendment for this one a judicial council because the amount of the - - the member reason. I think it would certainly create nothing else but ship may be expanded or contracted from time to time and another hierarchy of the Hawaii Bar Association, and I’m 385 JUNE 8, 1950 • Afternoon Session a member of the Hawaii Bar Association. I say it because question? All those in favor say “aye.” Opposed. I think here we have predominance of a chief justice, four lawyers we should have a hand vote. All those in favor of the amend and four laymen, and as the laymen are silent here in these ment will raise their hand, please. Opposed. The motion discussions, I think they will be as silent in the judicial is lost. The vote was 29 to 26. council. So all you are going to have is an Olympian - - ASHFORD: May I ask a question of the movant of the - - Olympian Bar Association, and I’m against it. of Judge Heen. What commissioit or agency? Any commis WOOLAWAY: In order to silence the attorneys, I move sion or agency? the previous question. HEEN: Any commission or agency established by law. FUKUSHIMA: I second that motion. ASHFORD: Are there not many commissions? CHAIRMAN: The previous question has been moved and CHAIRMAN: Will you please address the questions to seconded. All those in favor of the previous question say the Chair? Thank you.. “aye.” Opposed. Previous question is carried. The question before the house is the adoption of Section ASHFORD: Mr. Chairman, will you be kind enough to 11 as amended. All those in favor will say “aye.” Opposed. ask the senator and delegate if there are not many commis The noes have it. The section does not carry. sions and agencies established by law which would be wholly inappropriate for this purpose? MIZUHA: Inasmuch as time is running out, and there are many delegates who have other business this afternoon, CHAIRMAN: Would the delegate care to answer? I move for the adoption of Section 3. HEEN: Of course, this one will be a special commission CHAIRMAN: That is out of order. I’m sorry. We have or agency established by law for this purpose. still before us Sections 5 and 6, unless you want to recon CHAIRMAN: And how - - I believe the question was how sider our actions. is it so designated? HEEN: We are, I think, considering Section 5, and I have HEEN: As may be provided by law. an amendment to offer, I think which will appeal to the dele gates and that is to delete the words, “the supreme court” CHAIRMAN: Delegate Porteus, did you wish to speak? in the first line and inserting in lieu thereof the words, “a PORTEUS: Ido. commission or agency established by law.” So that that first clause there will read, “When a commission or agency CHAIRMAN: You are recognized. established by law shall certify to the governor that it appears PORTEUS: I wonder whether we might get at that any justice” and so on. problem by use of the words, “authorized by law.” TAVARES: I second the motion. CHAIRMAN: Do you wish to continue? HEEN: It seems to appeal to someone here, so therefore PORTEUS: It seems to me that there is a point that has I make that in the form of a motion. been made by the delegate from Molokai. I don’t think this CHAIRMAN: Apparently the second had already thought wording is artistic wording by any means to carry this at you had. Delegate Heen, are you through? the moment. And it seems to me that we ought to have a further amendment to this subject, possibly we can go on HEEN: Through. to - - I move that the language utilized be, “When a com CHAIRMAN: Delegate Roberts. mission or agency, designated by law, shall certify to the” — - I don’t think that does the trick either. I move that this ROBERTS: I wonder whether the mover of the motion section be deferred. would be agreeable to substitute the words “commission” and put in its place the term “judicial council” which would RICHARDS: I move that we take a five minute recess so achieve the same purpose but would indicate the nature of the attorneys can get together again. the commission to be set up for this purpose. CHAIRMAN: No objection, we’ll take a five minute recess. HEEN: I think that the use of a broad term would be ANTHONY: Just a second, Mr. Chairman. I don’t think preferable. They can create a judicial council. Maybe they we - - there was no second to that, was there? will call it something else in order to take care of the situa tion. DELEGATE: Second the motion. TAVARES: I second that motion now. CHAIRMAN: Five minute recess. CHAIRMAN: Thank you. HEEN: Mr. Chairman, there was a motion to defer, and I seconded that motion. ASHFORD: May I ask a question? CHAIRMAN: The Chair is sorry it didn’t recognize the CHAIRMAN: Pardon me, just a moment. I’d say that, second. And there was a motion to recess)which is in order, Delegate Roberts, that the movant did not accept your sub and we are in recess. stitution of words. ROBERTS: In that case, Mr. Chairman, I move to amend (RECESS) the amendment to substitute the words “judicial council” for the word “commission.” KAUHANE: I second that motion. ANTHONY: I move we defer action on Section 5 until after we have discussed Section 3. CHAIRMAN: The question before us now is an amendment to the amendment substituting the word “judicial council” for CHAIRMAN: Is there a second? All those in favor say the word “commission.” Any discussion? Ready for the “aye.” Opposed. Carried. 386 JUDICIARY WIRTZ: I’d like to move at this time we reconsider the does, but this is certain. If dire trouble strikes, they, like established order that we had before, and that we now con thousands of others before them, will turn quickly and hope sider Section 3. fully to the courts to save their homes, their businesses, and MIZUHA: I second the motion. perhaps the future of their children. With their hearts in their mouths and everything they hold dear to them, they’ll CHAIRMAN: It’s been moved and seconded we take up find themselves looking up at this stranger on the bench, the Section 3. All in favor say “aye.” Opposed. Section 3 is judge in whose integrity and ability to administer justice now before the Committee of the Whole. their fate now depends. As they study him, tormenting ques MIZUHA: I move for the adoption of Section 3. tions will of necessity flood to their mind. Who is this man? Why did they select him? How are these judges appointed HOLROYDE: I’ll second that motion. anyhow? Had this man actually proved his legal ability, honesty, and impartial justice before being appointed or CHAIRMAN: It’s been moved and seconded Section 3 be adopted. Any discussion? was he just somebody’s friend? These are the questions one will of necessity ask if we have an appointive system. FONG: Mr. Chairman. If we had an elective system, this will automatically take FUKU5HIMA: Mr. Chairman. care of itself. The candidates will appear before the public and state their qualifications, and state to the public what CHAIRMAN: Delegate Fong. sort of man they are. They know who these judges will be FONG: I’ll yield to Mr. Fukushima first. and these questions will never be asked. I, like all of you here, believe that a judge should not be CHAIRMAN: Well, you can’t do it first, but if you do selected on popular will. I am making this contention that yield to Mr. Fukushima, why Delegate Fukushima has the they should be elected because I believe sincerely in the floor. complete separation of the three branches of government. FUKUSHIMA: I’d like to speak in opposition to Section 3 Under the proposal as submitted, we have an appointment of Committee Proposal No. 7. I have here an amendment by the executive. That certainly is not a separation of gov to offer, and the amendment is printed for circulation to ernment. We also have further the confirmation by the the entire Convention. legislature, that is one of the houses, the Senate. That again The courts of the future State of Hawaii should be symbols is certainly contrary to the principle of separation of govern of justice for all. That they may not be, will be entirely our ment. The proponents will have you believe that an elected own fault, the fault of the delegates assembled here to write judge will spend one half of his time in office eying the into our Constitution the type of judiciary we are to have. next election. Well, this can easily be remedied, gentlemen There is no question as the debate has gone on this and ladies. All we have to do is to lengthen the tenure, and morning that we favor a judiciary article providing for long therefore, I have in my proposal, in my amendment, a tenure tenure, providing for adequate compensation, and providing of eight years. for retirement benefits. In order that we may attract good The appointive system is a system full of politics. This lawyers for judgeships, we must necessarily provide for is only natural. Judges should be selected from lawyer these things. candidates irrespective of the party they belong to. Can The only thing that we are not in agreement apparently you think even for a moment that a Republican governor at this time is the method of selecting these judges. The will have the audacity to select and appoint Democratic bare majority of eight of this committee, Judiciary Com attorneys on the bench? Contrarywise, do you feel even for mittee, sincerely and honestly feel that the appointive a moment that a Democratic governor will have the audacity system is the best system of the judiciary. We likewise, to select and appoint Republican attorneys as judges under a minority of seven, a very strong minority, feel in our a Democratic regime? Let us not be too naive. It’s just considered judgment that the elective system is the best impossible. system under our form of government. I am one of the Another point in reference to politics under the system minority. I am for the election of all supreme court justices as proposed. You will have confirmation by the Senate. and all circuit court judges. Now, that’s the tenor of my Here we have a political football. It happens all the time amendment which I have just submitted. when you get to the confirmation by the Senate, one individual The arguments advanced for the appointment of judges who may be qualified can easily be bargained off for another can be refuted by the proponents of the elective system, because his political thinkings may be contrary to what the and the arguments presented for the elective system can senators have in mind. He may be bargained off with just also be refuted by the proponents of the appointive system. so much dirt and debris. When one says that the appointive system is the best system, let us for a moment leave our small pond here and re it is merely an expression of opinion. And when I say here move ourselves to Washington. There, many years ago, a that the electve system is the best form of the judiciary, it very able attorney was nominated as one of the associate is also an expression of opinion. We cannot pigeon-hole the justices of the Supreme Court but failed of confirmation appointive system as being the best and we cannot pigeon-hole simply because his political thinking was not in accord with the elective system as being the best. The question is not that the Senate and thereby the nation lost a very able jurist. easy. We must, therefore, in deliberating and in determining Let’s take the case of Associate Justice - - former Associate what sort of judiciary we should have combine both theoretical Justice Louis Brandeis. He had a whale of a time getting acuteness with practical good sense. confirmation. It was just about impossible. He worked for If anyone today should ask a man or a woman on the street, his confirmation, an able man as he was. who are our supreme court justices, who are our circuit If you should believe in the complete separation of the court judges, what would the answer be? The answer might three branches of government, you believe in the independent well be, “I don’t know” and they may even add, “and I don’t judiciary, and if you believe in taking politics out of the care. I’ve never been in court and I never expect to be in judiciary, I cannot see how you can come to any other court.” Naturally, they don’t expect to go to court. No one conclusion but vote for the elective system. JUNE 9, 1950 • Morning Session 387 I’d like to read, in conclusion, from the January issue rupt him. But I think the Chair should give sufficient time of “The Nation’s Business,” speaking of our Federal Court for a second. In fact, I think it is incumbent on the Chair to appointments, which has been upheld in the committee report. call for a second. Here Harold J. Gallagher, President of the American Bar CHAIRMAN: The question before the Convention at this Association says bluntly, “Appointments to the district bench time is to rise, report progress - - are far too political. Often the man’s qualifications for the job are shockingly lost sight of. For one thing too many FONG: Mr. Chairman. judges are appointed out of government service rather than CHAIRMAN: - - ask leave to sit at - - from the ranks of qualified lawyers engaged in general practice. Let’s hope in the future the appointing power will FONG: Mr. Chairman. search more thoroughly~ Many men of fine caliber and broad CHAIRMAN: - - at 9:30 tomorrow morning. experience want the job, would make monetary sacrifices to accept it, yet seldom is a superior man appointed. Why? FONG: I move that that motion be tabled. Because politicians use these appointments to award party KAUHANE: Second that motion. henchmen for their services.” I’d like to move at this time for the adoption of the CHAIRMAN: It’s been moved and seconded that the amendment. motion be tabled. All those in favor say “aye.” Opposed. We’ll ask for a show of hands. All those in favor of tabling CHAIRMAN: May the Chair inquire? We - - each of the the motion. delegates, I believe has had at least three amendments referred to him. Is yours the pink amendment? KELLERMAN: What is the motion? FUKUSHIMA: I shall read the amendment. “The justices CHAIRMAN: Just one hand - - of the supreme court shall be elected by the electorate of this TAVARES: That’s the point, Mr. Chairman. I don’t know state, and the judges of the several circuits shall be elected what the motion is. by the electorate of the respective circuit, both in a non partisan election. No person shall be eligible to such office KELLERMAN: What is the motion we’re voting on, please? who shall not have been admitted to practice law before the CHAIRMAN: Just vote with one hand please, it would supreme court of this state for at least ten years. The help the Chalr to count. The motion was to table the motion justices of the supreme court and the judges of the circuit to rise, report progress. The motion before us was to rise, courts shall hold office for a term of eight years.” report progress, and beg leave to sit tomorrow. There was H. RICE: I think that the committee should rise and a motion to table that motion. All those in favor of tabling report progress and ask leave to sit again tomorrow morn that motion will raise your right hand. ing at 9:30 and have these amendments before them at that [The motion to table was defeated. The motion to rise time to study them. I understand the second hasn’t been was thereupon put by the Chair and carried.] made, so it’s perfectly in order that the committee rise and report progress and ask leave to sit again. JUNE 9, 1950 • Morning Session MIZUHA: I second the motion. CHAIRMAN: It’s been moved and seconded the commit CHAIRMAN: Committee of the Whole, please come to tee rise - — order. The Chair would like to state that when we rose yesterday that Delegate Fukushima had the floor. He was KAUHANE: I rise to a point of order. speaking on his motion which had been made and seconded CHAIRMAN: What is the point of order, please? to amend Section 3. The Chair would also like to state that while it does not feel that it is incumbent upon the KAUHANE: There is a motion made to adopt the amend Chair to recognize a second as such, it will endeavor to ment offered by Fukushima. There is a motion made to do so, but will recognize people as the Chair sees them. defer action until tomorrow. Delegate Fukushima, had you concluded your case? H. RICE: It wasn’t second - - - FUKUSHIMA: I had, and I believe the motion that I made KAUHANE: The second - - to amend has been seconded. CHAIRMAN: The motion - - CHAIRMAN: The record so states. KAUHANE: The motion to - - CASTRO: I would like to speak in opposition to the proposed amendment, and in doing so answer some of the CHAIRMAN: The first motion was not seconded. statements made by its author, the delegate from the fifth KAUHANE: Yes, but the last - - district. There are several points which I believe are matters of not complete statement. CHAIRMAN: And the motion to rise was seconded and One, first of all, the charge that the appointive system will be put without debate. in opposition to the system of electing judges opens the DOl: I think out of ethics and basic parliamentary door to political maneuver. I think we would be unreal if rule - - we were to deny that the appointive system is free of politics in the baser sense of the word, but I cannot see that the CHAIRMAN: Are you speaking to a point of order? elective system, having recently had my own baptism of DOl: - - the Chairman should give time for a second. fire, is free of politics in the popular sense of the word. Yes, I do rise to a point of order. I think that on the basis In fact, the two systems both have their shortcomings in of ethics, the base of good parliamentary rule, the Chairman this regard. It occurs to me that the difference is in the should give time to second the motion made by the movant. amount of time that is spent and the money that is spent by I stood up but Mr. Rice had already risen, so I did not inter- the candidates, a great deal more time and money in the 388 JUDICIARY ease of the elective system than the appointive, and also of the appointments are Federal appointments, from Wash money that has to put out by the State in running an election. ington, D. C., where we know this racial ban does exist. I am very concerned over the amount of money that we spend And we know that it does not exist here. I feel that strongly, in our new State. We are authorizing certain new procedures and I don’t think it’s double talk. which we have not had to pay for in the past, and we have not It is also an historical point that it has only been in the yet found new revenues. last decade or so that there have been a number of able and Another point that I’d like to bring to the attention of the well-trained gentlemen of oriental ancestry who would be delegates from the islands other than Oahu. if I were a proper applicants for the bench, and we cannot take the long delegate from an island other than Oahu I would fight very backlog of Caucasian appointments and place it against a violently to see that the elective system amendment were situation where we actually have our first generation of defeated. This morning’s paper indicates that the island of well-trained lawyers who are proper applicants for the Oahu has 70 per cent of the population. It is the only island bench. Today there have been considered several, and I whose population has grown in the last decade, the population don’t want to go into personalities and names, but you can of the other islands have decreased. That is by census, not review the facts. I know, ladies and gentlemen, that the a matter of opinion. That means that the outer island areas charge that an appointive system would continue an over would possibly be shut off from voting one of their favorite whelming number of Caucasians for the reason that they are sons into the supreme court. Caucasian or haole, is fallacious. There is no man who Now the argument against that of course is the one that would attain the position of governor of this State who would we received yesterday informally that the delegates from dare, even if he had it in his heart, to turn down the proper the outer islands would like to elect their native sons to man because of his racial descendency. their local circuit benches. I think that that is an argument I think that it’s unfair to place upon the populace the bur of pride and not of logic, and it breaks down by a very simple den of choosing judges. As much as we occasionally take statement, and I don’t say this unkindly, that the island of joy in sniping at our brothers, the attorneys here, and make Oahu has the large reservoir of talent and it is perfectly little remarkn about the “Supreme Court,” this is true, that possible in my mind, as a lay citizen, that in one of these the profession of law is an esoteric one in which the stand more remote areas where a circuit bench position must be ards can be judged only by those who themselves have filled, it is possible that an applicant will not come forward knowledge and the average voter has no knowledge of what from that particular local population. Are the people there the basic concepts are. to be made subject to inferior applicants when there is a In arguing against the elective system I am not neces reservoir of capable men in another area? This is what you sarily arguing for the appointive system because it was I would have in the elective system. who threw in as a proposal, the Missouri Plan. That brings The delegate from the fifth district yesterday discussed us this other point, that in all of the judicial reforms of the the joy that a person before the bar would have in seeing a last decade throughout the United States, the vigorous at familiar face behind the bench. That familiar face argument tempts at reform have come from those states which are is fallacious. I’d give you a half a dozen familiar faces for presently burdened down with the elective system. if you’ll one that I’d never seen before if I knew that behind that face turn to page 201 of the Manual, the first full paragraph~ was a well-trained and capable mind. And it’s the intelli “Within the past decade a new method of choosing judges has gence and ability of the judge and not your own personal been vigorously advocated by those interested in legal re acquaintance or familiarity that is most important. form. As a result, both California and Missouri have The separation of departments has been pointed out by adopted a procedure for judicial selection which alms to the delegates from the fifth district as a compelling argument combine features of both the appointive and the elective in favor of the elective system, the indication being that tnethods. In both states, this method developed from an judges who were appointed by the governor would be in some elective system of selecting judges. In 1946 the adoption of manner which was not explained attached to the executive. this plan was considered in Oklahoma, Utah and Washing I present to the delegates that the separation comes not by ton.” if you turn to the table on page 219, you’ll find that reason of the appointive power, but by reason of the security those three states are presently burdened with the elective of long tenure. That is an historical concept and I don’t system. “During the same period, the bar studied the plan believe that there is any argument on that point. in Michigan and Pennsylvania” —two more states that have The very capable paper of our delegate from the fourth the elective system of judicial selection—” and the Texas district, Mr. Anthony, points out a somewhat humorous Civil Judicial Council recommended the plan in its overall incident in the career of the late Justice Holmes where constitutional revision.” A committee of the Florida bar in shortly after his appointment to the Supreme Court by 1948, another state that has the elective system, and Kansas, President Roosevelt he partook in a vigorous dissent in the and they are all moving away from the elective system. Northern Securities case much to the consternation of the The question, finally, is not whether or not there is poli executive who appointed him, who was making his stand in tics, or whether or not the devil in man will break down the those days as a trust buster. institution, but it is what is the system that produces the Now this next point I feel we have to look at. It’s touchy better judge, or the best judges, and the elective system, and I hesitate to bring it up, but it was pointed out to me generally acknowledged and proven by the attempts of the last afternoon in this hall informally that one of the reasons bar associations and the legislatures and the state consti that some of the delegates would like to see the elective sys tutional conventions in the last 10 and 15 years, indicate tem is that they fear that the capable and well-trained law that there is nothing but dissatisfaction with the elective yers of oriental ancestry would never attain to the benches, system. particularly of the superior court, if we were to rely upon the appointive system. That argument is lacking in logic. Let me point out a couple of items, a matter of observation. CHAIRMAN: The Chair would like to point out before In the first place the appointive system, if it has in the recognizing anyone else that debate on this subject is lim past in Hawaii chosen an overwhelming number of Caucasian ited to 15 minutes under the rules of the Convention, and to the bench, has done so possibly on the excuse that most the last speaker spoke just one minute under that, but I will JUNE 9, 1950 • Morning Session 389 have to warn you at this time so that I don’t have to inter and what’s good for the Federal government, I believe is fere with your speeches. good enough for the State of Hawaii. MIZUHA: I’m going to be brief. I believe that debate on CHAIRMAN: Any other discussion on this? Are you this subject should not go into backgrounds of personalities ready for - - or anything else. We are all Americans here and we will ANTHONY: This question that ~s for decision is one of decide the question as citizens of the future State of Hawaii the most important ones which will be resolved by this Con and not the background we come from. I believe - - I am in vention, in my judgment. The question whether or not we favor of the appointive system because I believe it is a bet are going to have popularly elected judges or going to have ter system. It will give us better judges to sit on our courts, a strong judiciary based upon an executive appointment under and I have faith in the leadership of the people in the future a merit system goes to the very core of the judiciary article, State of Hawaii, that they will select citizens of the State of and for that reason I have very strong feelings against the Hawaii regardless of background, in the positions in our proposed amendment. circuit courts and supreme court. I believe it is well at this time that we forget the question of ancestral background. Now, what was said yesterday in that lengthy discussion by Mr. Fukushima? First place, he said that this is a mat That’s all I got to say. ter of opinion. We will concede that it is a matter of opinion. LARSEN: I agree fully with the last speaker, I would like Your committee has studied this question very - - with to speak against the elective system. It seems to me the one great care. We have sought the best opinions in the United thing that endangers our democracy are the political ma States. We have not just relied on our own predilection on chines that are built in our big centers. These political this matter. We have consulted the great authorities on the machines, if they have to have every judge as part of that whole system of selection and tenure of judges, and the sig machine, I believe endangers this judicial system of ours nificant thing is that those authorities are against a system that we want to keep so independent. I think the only argu of popularly elected judges. Now the reason for it is clear, ment we are making here is, have we a better chance of that you will not attract the best men to the bench if you are getting more justice with the appointive system or the elec going to have them chosen by a popular election. tive system, and I believe the evidence points toward the We have also consulted other phases of local opinion and appointive system as giving us a sounder justice. there has been distributed among the delegates —and I would like to have it filed with the Clerk—a letter from the Hio KAWAKAMI: As a layman, may I say a few words in con Bar Association voting ten to one in favor of an appointive nection with our problem of selecting our judges. Under our system. If the messenger would pick this letter up and de system of government we have three branches. First, the liver it to the Clerk’s desk, I would like to have it made legislative which is the policy-making body of our govern part of the records. ment; then, administration -— CHAIRMAN: It will be so received. DELEGATE: Louder, louder please. WOOLAWAY: Mr. Chairman. I’d just like to make -- CHAIRMAN: If you’ll hold the microphone directly in front of your mouth. CHAIRMAN: Delegate Anthony still has the floor. KAWAKAMI: - - then the executive. As the name implies, ANTHONY: In addition to this, the Bar Association of his duty is to administer these policies which have been set Hawaii has voted overwhelmingly in favor of an appointive by the legislators. Naturally these two branches are elected system. by the people. Now, are we going to abandon a tradition that we have had Now comes the judiciary, or the judges. Their duty is to in this Territory for almost a hundred years? Are we going interpret these policies so that the decision may be fair and to fly in the face of the experience and the wisdom of the just to the people at all times. Normally I’m a strong be Federal system? Are we going to take a step backward in liever in electing our public officials, because I believe that face of the strong movement of every state in the union away is the fundamental basis of our democracy, but in everything from popularly elected judges, and get our judicial system else we have exceptions and appointive judges is one of those into the morass of politics? That is the question for deci exceptions, I believe. sion. I believe the judges should be free, as far away as possi I would like to address myself to one thing which I think ble from direct influence of politics. They should be put causes some of the dissent here on the floor, and that is the away in the position so that they can render their decision question which some of the delegates have stated to me that on the merits or demerits of the case, so that the people they, during their campaign for office as delegates to this would be given the maximum amount of justice. Constitutional Convention, told the voters that they were in On the battlefront, the privates are the first ones to re favor of popularly elected judges, and that therefore they ceive fire, and in the courtroom battle there too, the private, wished to keep the faith. May I point this out to those dele I mean the private citizen, would be the first one to receive gates who have made statements along that line. Those the fire. And I feel that the people should not be divided into delegates and you gentlemen who made those statements to two warring factions in choosing the judges. I believe the the electorate were elected to write a Constitution for the judges should act in the capacity of umpire and we should not State of Hawaii. The people in electing you expected that mia up in that particular fight. When we face a court, we you would attend to this Convention, do the necessary work, can face it with clear conscience that we had nothing to do listen to the debate and then exercise your own informed in direct choosing of the judges. judgment. They did never intend you to come to this Con For the past 160 years, the Federal government has had vention with a crystallized mind on any subject. They never appointive systems, and if their system was radically wrong, intended any such thing like that, and so I say that there is I believe the people of the United States would have made no breech of faith. All you are doing is saying that in the changes. But, till today we have the same old system and light of a comprehensive survey of this thing, in light of the it has been working out pretty good according to my feelings, evidence that is brought before the floor of this Convention 390 JUDICIARY the system of popularly elected judges is no good and we the chief justice is a method which I want each delegate to don’t want it in Hawaii. Now if that is breaking faith with the Convention to seriously consider with open mind. the people, in the light of all the evidences before the com This method is the joint committee of the legislature, mittee, I don’t see how that can be urged. with equal representation from each island to be represented Now one further thing, and I would like to impress this in the committee, and this committee through a secret ballot upon the Convention here. If you are going to have popularly will elect our chief justice, whose name will be submitted elected judges, those judges are going to campaign. In other to the legislature 30 days prior to the election. After he is words, it would take them six months of wasting their judi elected, he there and then will appoint his subordinates and cial office to campaign for election. It would be costly. other judges of the territory. Judicial salaries being small as they are, the campaign money would have to be put up by somebody. Now I don’t MAU: I don’t believe that I could add any further argu think we want our judges sitting on the bench who have any ment or put in any more vigorous way than the sponsor of favors that they have accepted from any citizen. We want the amendment did yesterday afternoon. I want to congratu a strong and independent judiciary, and you don’t get that if late him for his able presentation of the motion that he has you are going to have them in a partisan campaign. Even made to amend. Several points have been raised this morn though they may be friendly with the litigants that appear ing, and it is a repetition of the arguments in favor of the before the bar of justice, query whether or not that is what appointive system. One is that in the elective system, poli you want in your courts. I don’t want a judge sitting on the tics would be involved., if the delegates will recall that ar bench that is friendly to me because I voted for him. I want gument was ably answered yesterday afternoon. In the a judge who will sit on the bench and render equal justice judicial system, you cannot remove it from politics no mat under the law, and this article will destroy that system, and ter how you select your judges. There can be no question I am against the proposed amendment. about that. It was pointed out yesterday that if the executive or if CHAIRMAN: Delegate Arashiro rose prior - - at the you had a judicial council involved in the selection of judges — same time as Delegate Anthony. and the present Section 3 of this proposal calls for appoint ARASHIRO: Thank you, Mr. Chairman. ment by the executive and confirmation by the Senate of the CHAIRMAN: Proceed. State —can anybody have any doubts in their minds that the appointee might have to perform certain favors in behalf of ARASHIRO: As I sit here this morning and listen to all the executive or those who had confirmed him in the Senate? the arguments, it reminds me of a little story. A minister That’s human nature. if you say that that is less likely to be came along and wrote on the blackboard, “I pray for all”; involved in favors, political favors, than that of the elective and a lawyer came along and wrote, “I plead for all “; and a system, that perhaps might be true. But to say that because a doctor came along and said, “I prescribe for all.” Then you have an elective system, it would ruin your judicial came the politician to say, “I promise all.” Then came the system, I think is a lot of poppycock. Three-fourths of the delegate to the Constitutional Convention who said, “I pro states have by some method or another the system of elec tect you all.” Then came the layman who said, “I pay for tion of judges. all.” It is also true that the trend and great effort is being Now we are discussing a very complicated and confusing made by the various bar associations of each of the respec subject in reference to the structure of our government, and tive states who have the elective system, or which have the I’m just wondering to myself whether I Should go for the elective system, are trying to change that system to one of elective, appointive, Missouri system, or other system that appointment in one or more ways. But the fact remains they are thinking. But to me, I want to submit a proposal that today even though that trend has started for the last 12 which is the Hawaii method, the forty-ninth state method, or 15 years, up to today, 36 of the 48 states still operate un a new method. But before submitting it, what we are trying der the elective system. And it has never been pointed out to get is a judicial system that is a separate, a complete to me that under that elective system in each of the 36 states, separate setup from the legislative and executive branch they have not had honest judges, judges who sit there without of our government, and we want to have an impartial judi prejudice, judges who were not fair and impartial. There cial system. has been no scandal of any kind which would be to such an Now the argument raised, the elective system has a ten extent that we could say that system should go out of the dency—of course I’m going to make my speech short so I window. will not elaborate on arguments that were brought up —they I submit to you, Mr. Chairman, ladies and gentlemen of said the elective system had a tendency of leaning toward the committee - - of the Convention, that to retain the great politics. The appointment system has a tendency of sepa principle that we are here gathered to put into this Consti rating from politics, but may become subject to or obligated tution, the separation of the three branches of government, to the appointer, and by that they might not have, or the de you must leave that ultimately in the hands of the people. cisions might not be always~ made in favor of the man that is The people elect your executive, the people elect your legis going to be affected by the decision. And right down the line, lative branch, is it not well to say that the people can be there have been different arguments that are sound and every trusted to elect their judges. I have no fear, and this last argument that was brought needs careful consideration. election in the Constitutional Convention brought that out. Now I’ve been thinking of a proposal where it is not an I call your attention to the delegates from the fourth district, elective system, it is not a completely appointive system, the elder statesman, Delegate William Heen, who led the but a system that we might say is a compromise method of ticket in the fourth district; the able and distinguished lawyer, all the matters that have been submitted, and that is where Delegate Anthony, for the first time running for public office we have the chief justice of the State of Hawaii be elected received an enormous and tremendous vote for a first time. indirectly. There was a suggestion about having the chief If either of those gentlemen should run for chief justice of justice run for election at large, but that method also was the State of Hawaii, I would give them my wholehearted sup convinced to me might have a tendency of creating a judicial port and so would the people of the Territory of Hawaii. Can political machine. But now this indirect method of electing you say that the people will not elect able, high-calibered JUNE 9, 1950 • Afternoon Session 391 judges? lam willing to trust the people. For alter all, all all, which would be best. I think that it is a matter of either the power of the government in each of the three branches politics or policy, therefore I am strongly in favor of Section of the government, those powers stem from the people. Are 3 as it stands. we afraid to trust the people to elect these judges? I am LOPER: I hesitate to speak on this subject surrounded not. as I am by legal talent, but to remain silent is to run the Now, Mr. Chairman, I want it for the record that when I risk of being misunderstood because I believe that those cast my vote on this, on this important question, I do so be who are for the election of judges would justify it on the cause of an honest opinion, not because of my racial descent. basis of democracy, and I am for democracy. And I will do so on every important question, or any ques I would like to have some philosopher of government an tion that is raised here or in any public forum when I cast swer this kind of question. Is this analogy a fair one or is my vote, it is because in my candid and considered judgment it over-simplified? The people in a democratic state vote that is the right thing to do, and for no other reason, racial for taxes, they vote for the men who make their laws, and or otherwise. they have the right to decide whether they do want to pay for a new road or a bridge, but they wouldn’t begin to think TAVARES: I will be brief. First of all, this debate re of electing the engineer to design that bridge. They have the minds me of what I, in the course of my reading, learned authority to appropriate money to control epidemics, but Benjamin Franklin said when the question of appointment or they wouldn’t attempt to elect the doctors or the scientists election of judges came up before the Constitutional Conven to handle the scientific end of it. They appropriate money tion. He said that he preferred the Scotch system which for the construction of airports, but they wouldn’t elect the was appointive. He says, “You know, whenever there is a pilots for the planes that go and come. It would be absurd vacancy, all the lawyers get together and they pick out the to think of having our legislators appointed. There we want lawyer that is the ablest and got the biggest practice, and people who are close to the people, who have the confidence get him appointed and then they divide his practice among of the people, who have the social judgment to speak for the the rest of them.” people. My question then is this. Is the judicial function a But all joking aside, I’d like to read to this Convention specialized function in the sense of the engineer or the sci something that I think indicates that Hawaii has a noble tra entist who does a job for those who speak for the people? dition of appointive judges. We have heard a great deal here When I first attempted to deal with this question in my about preserving the old Hawaiian traditions, and I am for it. own thinking, I was in favor of the Missouri Plan because it And Pd like to read to you what was said in the Senate of the occurred to me that this was possibly something superior United States when they gave this territory the distinction to either appointment or election. However, it has been of being the first territory with a separate system of its own pointed out—and I have no grounds for questioning this—that judges, the first territory, and even Alaska today has a sys the Missouri Plan, the Missouri Compromise, came about tem of where the Federal judge handles everything and all in an effort to get away from the election of judges. It was circuit judges do, too. But they paid us the compliment of necessary because it was the best that could be had in mov giving us a separate system of appointive judges and one ing from election toward appointment. I would like to be reason they did it was this. corrected on that if Pm wrong. Senator Collum, who was one of the commissioners that To summarize my brief remarks, although I am for the drew up our Organic Act and came down here to the terri appointment of judges, I think that it needs to be remembered tory, to the Hawaiian Islands to examine the situation, said that that in no sense curtails the democratic quality of our this about our system. That was way back before 1900. He government. said, “So we found the supreme court there doing business with just as much dignity, with just as much sense of honor A. TRASK: We all acknowledge that the proponents for and duty and apparently with just as much intelligence as the this amendment, the two eloquent speakers, Fukushima and supreme court of the State of illinois or of Connecticut or Chuck Mau, believe this sincerely. In my conversation with of any other state. There was nothing in the establishment them many years back they believed in the principle of the there in any way that the commission could see would jus elected judges. For myself, it’s been one of the most diffi tify us in uprooting the supreme court or the circuit courts cult questions that I’ve had to consider, and only recently of the islands and requiring the government of the United have I definitely made up my mind with respect to how I States to meddle with them. So it was the conclusion of the should vote, either for or against the election of judges. I commission and of the committee that as far as that was am for the appointment of judges. concerned, we ought to leave that alone at present.” I think there is a complete answer to the question posed I say Hawaii has a noble tradition, and I say we should by both gentlemen, namely, do we or do we not trust the perpetuate it. people. That question is almost unfair, but let us answer it. I say we do trust the people, and the people certainly trusted SMITH: Listening to both sides this morning and hearing us when they elected us, and it is our obligation to give them a lot of good speeches, if you will go and read this Section 3 not trust in return, but to give them service. It’s the ques that, “Justices of the supreme court and the judges of the tion of providing a framework of government which - - where circuit court shall be appointed by the governor by and with by the people may get the best possible service for all their the advice and consent of the Senate,” that first sentence to taxes paid. And that’s what Pm interested in, and I’m sure me means a great deal. For one fact—we will be electing that’s what the proponents for the election of judges are. a governor by popular vote. He will have the responsibility The question is insulation. The question is that we have of judging, with the consent of the Senate, who will be our a government of politics. To say that any branch of the gov judges. Sure, I grant you that there is politics there, but ernment or any person is not affected by government is over it’s not politics that can be detrimental to the State. I at all looking the realities of life. But the question with respect times would trust the voters, but I also realize one thing, to the judiciary is to make it as far as is humanly possible, that when - - as being even elected here as a delegate, we consistent with our traditions, in a manner whereby they may are carrying a responsibility to the people who elected us be removed and render the best service. Dr. Loper has and who didn’t elect us, to really judge in the interests of suggested that idea when he said with respect to engineers, 392 JUDICIARY doctors and other professional people. You want the service, being would be subjected to would be so great that he could you want the best possible service that’s available. The not withstand the human pressure, being the sensitive human governor will be an elected person, he will visit and cam being as he is. So you have a tremendous confusion of emo paign on all the islands of the territory, he will be certainly tional life going on which is not good for what we would want subjected as he is not now. to be considered deliberation of the courts. Certainly we who are close to the subject of how judges So even though there is a division in my own family—my are appointed have risen in the Bar Association and have influence is quite limited—I say to all of my colleagues who argued this thing long and vigorously. Just recently during are fair—minded, and my brother is fair-minded, that I think the campaign, as a matter of fact, I accused the Bar Asso the appointive system under every consideration is the best ciation of meddling in politics when a certain committee we have and I see no cause for change. sent a certain situation back to Washington. But that is what is before us now. We are projecting a program for the BRYAN: I would like to say that I am very much in ac future, and however it is, we are working out this matter, I cord with the sympathies and beliefs of the previous speaker. think, successfully. I’d like to say further that the little history that was pointed out by our friend from the fifth district, Delegate Mau, as to What question bothers me is this. What facts indeed have the proponents for this amendment brought forth that would the states that have the appointive system and the ones that have any of us in our minds point to the present system of are trying to get away from it, I think that I’d be derelict appointive judges and say it looks bad, there is time for a in my duty if I did not vote in favor of the appointive system. change? There is no evidence, there is not a scintilla of To say that Hawaii should step backward and throw away at evidence given here on this floor to persuasively move any least 75 years of good and fine upright judiciary and wait for the rest of the 33 states to keep up with us, I think it’s reasonable mind that there is need for a change. However, we have criticized the present situation whereby an appoin foolishness. I’m very much in favor of the appointive sys tive governor has himself in fact for long been the principle tem. person who has appointed these judges. We know it, we APOLIONA: I submit to you, Mr. Chairman and the mem dislike it, but is it only his fault? Or is it the fault also of bers of this honorable body, a point which I have, which I the Bar Association of Hawaii which as we know has been hold very important and has not been discussed on this floor. ruled by a certain group. But I will say for this Bar Asso A candidate in any political campaign is elected or defeated ciation, to which I am a member, that we are coming out of on the stand which he takes on certain issues. A candidate this medieval status and under the able leadership of Nils for judgeship in his campaign cannot speak on issues. He Tavares, past president here, it is being democratized. So cannot speak of his thinking, cannot speak of his opinion, it is a question of growing up, and we are growing up, and because if he does, he will automatically disqualify himself there isn’t too much that can be said. from the bench because he will then associate himself with As a practicing lawyer for the courts, I am interested certain issues and thus become prejudiced. Then I say,what first in, not my friendship for a judge. I would be afraid of will a candidate for judge campaign on? On his record. close friendship with a judge. Indeed afraid, because if he And may I ask what record? A record of how many cases would want to be kind to me as a friend, a better friend may he has won or lost in court? Or the record of his becoming come along the next time and then I’ll be sold down the a modern Robin Hood? river. lam concerned about the best services that my cli I submit to you, Mr. Chairman and members of this hon ents can receive at the bar of justice, and familiarity with orable body, that I do trust the people, not willingly trust a face, as I see, means nothing. We are concerned about the people, but I trust the people. The people elected - - will service, the best service possible, the most competent ser elect its chief executive, and as long as that chief executive vice possible, the best mind and heart beating together to is in office, they should sustain the judgment of the chief render what we consider is justice. executive. I am opposed to the amendment as introduced by My second point is this. Let us not forget that a person my good friend from the fifth district, and I shall vote for an who is a judge is certainly a very human person; he is a appointment system of judges. cultured person, he is a person that is aware of our cultural In his remarks yesterday afternoon, the delegate from the history, of poetry, of the best thoughts that have been ex fifth district said that the judicial should be free from poli pressed in music, in song, and in literature. As such, he is tics. In any campaign, any election campaign, I have yet to a sensitive soul, and to think for a moment that a person see that an election is not politics. You can’t help but make qualified and competent —and his competence is built from it into a political campaign. study and not from going around from corner to corner, and So therefore, my brothers of this honorable body, and from bar to occasional cocktail party making friends and sisters, may I say, will you consider that the appointment influencing people—he is a person —and there is no reflec system of judges is far superior and better than any other tion cast upon anyone, there is only one disqualified person system that is known on this face of this world. Thank you here that I know of. We are concerned with the humanity of very kindly. this judge, and to have a qualified person as sensitive as he SAKAKIHARA: I believe I’m about the first to have of would be because of his literary pursuits. fered an elective system of our judiciary, although it’s limi He would have on Oahu 71 precincts, and in each precinct ted to the supreme court. It is a compromise measure from he would have necessarily one worker, political worker. that offered by the gentleman from the fifth district, asking He would not under most circumstances have the money to that all of the judges from the inferior courts to the circuit expend for an intensive political campaign because a cam courts and the supreme court shall be elected by the voters paign for judge would be on Oahu similar to a campaign for of this territory. The compOsition of our State Constitution, the Senate, which I can assure you is a tremendous under and the Federal Constitution, definitely separates three taking. Who is going to pay for his campaign other than branches of the government. On one hand the delegates, in people who are interested in the decisions to be rendered? voting for a State Constitution, say that we firmly believe And as a person who is most concerned about the humanity in these three branches of the government and that of the of a judge, I say that the pressure that this ordinary human two you shall submit to the electorate so that the people can JUNE 9, 1950 • Morning Session 393 vote them into office. But in another breath when it comes of the Senate that by majority vote that they shall be con to the judiciary branch of the government, they want the firmed, it may be by nine or ten men who will say who shall people to say that you are not competent, that you are not or who shall not be the supreme court, or circuit judges of able to judge good men on judiciary positions, that you are the State of Hawaii. Therefore I submit that the elective incompetent, that you are not fit to judge your neighbors. system is the answer to the question. The question has been raised here that in a progressive CHAIRMAN: May the Chair ask, did I understand from state they have gotten away from the elective system to you, Delegate Sakakihara, that you had another amendment? that of appointive systems. In 21 states of the Union, all judges are elected by popular vote; in 14 others, all but in SAKAKIHARA: I had a proposal here, No. 88, which was ferior court judges are elected. The remaining 13 have an filed by the committee which would have required five men appointive system. The proponents of the appointive system of the supreme court - - come before this Convention and say the minority group of CHAIRIVIAN: It does not relate to this section? 13 states over the 34 states have the proper system of se lecting the judiciary. I beg to disagree with their line of SAKAKIHARA: It does relate in this question, Mr. Chair argument, but if it is true that a system adopted by 13 states man. We are touching upon elective system here under the is so effective that they are immune from politics, undoubt terms of the amendment offered by Delegate Fukushima, edly the 34 states would follow the pattern and it would have selection of — — election of all judges. become unanimous. CHAIRMAN: Do you wish to submit that amendment now? Under Section 3, the appointive power under the appoin tive system, as already has been pointed out, is vested in SAKAKIHARA: There will be another amendment to be the executive and to confirm by the legislature. A governor offered later on after this present amendment now before the in office is a human. In order to perpetuate himself into of Convention. fice, our governor will have political machines. Whenever WOOLAWAY: It is interesting to note that in 1940 the the appointment is to be effected, it will no doubt make - - voters of Missouri voted against the elective system by a refer his recommendation to that particular area in order majority vote of 90,000. The politicians were amazed be to sustain that political machine. Judges who are selected cause they had been certain people would not relinquish the by the governor under this system will become subservient right to nominate the judges in the primary elections and to the executive and the legislature because he has obtained would not approve of the proposed plan. The politicians that confirmation from the Senate. were then confident that the people did not know what they I don’t believe that the answer to the question before the had done, so through the legislature a constitutional amend Convention is the appointive system. We can still trust the ment was proposed to repeal the plan. This put the issue American people. We are not dominated in a community back again to the voters. Apparently the people had known overrun by a totalitarian form of government. You who have what they were doing because when they voted again, at the been elected and serving here as a delegate certainly weren’t 1942 election, the plan was retained by more than 108,000 elected by a political machine. We all ran as non-party - - votes against the elective system. I favor the appointive nonpartisan politics. The people were able to exercise in system. telligently to select this group of people to represent us, and I have an abiding faith in the judgment of the people of DOl: I want to first make clear that I am not in favor of this territory, that they are capable of selecting from among the amendment proposed, but since there have been so many their neighbors, from among their fellow citizens, upright, speakers expressing their views on the question of whether honest, fearless and capable lawyers to be a judge. I submit they are for or against the elective or the appointive system, I would like to make a few expressions about my own ideas. to you that that is an American way, and if it is not so, 34 Much has been said about the independence of the judi states will not adopt that system. ciary system. When we speak of independence of the judi Flowery speeches has been made here by the proponents ciary system, we mean that the judiciary must be indepen of appointive system to the effect that the judiciary will be dent of the executive branch as well as the legislative wrapped up in politics, that the judges - - competent men branch, as well as from politics. If we examine the ap will not run for judges. I cannot subscribe to that principle. pointive system, we find that it is not independent of the Who has a bigger responsibility than one man under the executive branch and as proposed it is not independent of terms of our proposed State Constitution, than the governor the legislative body. On those two points I submit the elec who is to be elected by the people. He is vested with the tive system is independent. power to reprieve, giving pardons to those who have been On the question of politics I want to start from this pre convicted, and yet you say to the people, we trust you insofar mise, that I believe there is as much politics in an appoin as the executive is concerned, we trust you to elect one man tive system as there is in an elective system. The only in whom the enforcement powers are vested; but when you difference is in the kind of politics played. In the appoin— come to the selection of five men, the judiciary, the highest tive system, there is participation by a few and then the ap office of the judiciary, the supreme court, we do not trust pointee only looks to a few after he is appointed. Then also you. You are unfit, you are not capable of selecting five men in the appointive system, the kind of politics played is on a to serve on the supreme court as your interpreters or trans higher plane. While on the other hand, we find that the kind lators of law. Why, certainly we trust you to select one man, of politics played in the elective system is the kind of poli the chief executive of the State of Hawaii. tics that a democratic government would want to see played, I submit to you, Mr. Chairman and members of this Con and that is submission of ideas and election - - submission vention, that it is not consistent with the arguments that of ideas and officers to the will of the public at large. have been advanced here by the proponents of the appointive It has been raised, by one of the delegates, this question, system. I submit that the elective system is a democratic and an analogy has been drawn, that on questions of health process. It is more American than an appointive system we call in the doctor. The elective system admits in the by vesting the power to one man. And depending on the size question of deciding a judicial decision a lawyer must be 394 JUDICIARY called in. The only question is how. And as to that, I want meeting was an exploratory meeting. We explored the think to submit that a doctor’s profession, his work, is more of ing of all the committee members present and that was about a technical nature. In case of a jurist, it is not only techni all. At one time, if I remember correctly, I moved that we cal skill, but it is important that we find out and subscribe have a public hearing on this matter. That was seconded probably to the kind of social thinking, political thinking, and carried, but I’ve never heard of that public hearing. I economic thinking that that jurist might have. made that suggestion because I felt that there are many at In that regard, I want to say that most of the law business torneys in this territory here that would have attended a are not given to the lawyers by the common man. They sel public hearing to voice their views. dom have litigation, or legal problems to offer as business Now the Bar Association has voted, as the learned chair to lawyers. Naturally, the predominance of subject matter man says, overwhelmingly for the appointive system. I’d dealt with by most lawyers have to do with matters which like to remind the delegates that the vote was 50 to 4, and concern a special type of thinking, and I think I am not un I’d also like to remind that the entire bar of this territory fair if I submit at that point that these lawyers who work in is about 200 lawyers. That represents just one third of the that special field would quite often get to think more or less entire bar. I could go on and on and discuss the failings of the way that their clients want them to think. this committee, because I felt there was not an adequate Therefore in the appointive system, where a lesser group expression except by the delegates. There was nothing else than the majority does the selecting and where much is re that was brought in. We had no speakers, except Mr. Cades, lied upon the opinion of the Bar Association, it is very likely who was the chairman of the committee of the whole study that those few with this peculiar type of thinking might be ing this proposition, and all he reported was the overwhelm selected, and that is not desirable. The jurist in interpret ing vote of 50 to 4. ing the laws: might decide only on one case, but that case I’d like to close now, but I’d like to state this. It’s very lays down the law in many instances and it has very far unfortunate, in fact it pains me that one of the delegates here reaching effects. It might not have been the common man mentioned that the proponents of this measure here, which that went to court, but that decision does effect the common includes me as I am the proposer, that the reason perhaps man. For example, acts like A.A.A. Therefore, I think we why this amendment was proposed was because the oriental must give some consideration to the expression of desires attorneys did not have the opportunity to become judges un from the common man group. der the appointive system. I’d like to point out that the re CHAIRMAN: The Chair would like to point out that there sults of the elections on Oahu will definitely show that the have been 17 speakers on this section so far, covering an orientals will have less of a chance to become judges than hour and 15 minutes without recess. Does anyone else wish if you were under the appointive system. If I felt that this to be heard? Are you ready to vote on the amendment? amendment would give the orientals more chance than the I’ll recognize Delegate Fukushima, if no one else wishes appointive system, I’d be the first one to withdraw this to speak; he has already spoken once. Delegate Fukushima. amendment, but I leave it in here because I feel very defi nitely in the complete separation with the three branches of FUKUSHIMA: As the movant of this proposed amendment, government which I explored in yesterday afternoon’s ses I’d like to make a few observations. I will not be long; Pd sion. With that Pd like to close. like to, but I will not. Whether the learned chairman of the Judiciary Commit KAUHANE: I believe that a serious statement or charge, tee had reference to me when he stated that some of the if I may put it, has been placed here before this Convention. candidates who ran for office stumped on the proposition If it is true, what has been stated to us, then certainly the that he favored an electIve system; well, I was one of them, committee should recall this report and go back into a com and I did not stump for the elective without first considering mittee session and take care of the matter of the charges that the advantages and disadvantages of both systems. I made have been made. Certainly we are willing to vote on a com a thorough study, I’ve read Haynes, which was constantly mittee report that is fair and has been given equal treatment. referred to in the committee, and I came to a considered The fact that the statement was made that the committee judgment, in fact as far back as three years ago when I had failed to bring in opinions or bring in facts concerning an a long discussion with our delegate from the fifth district, election system within the judicial system and because of Arthur Trask. the failure of the committee, as charged, in calling for a I’ve come to this Convention still with an open mind, how public hearing so that other attorneys who are licensed in ever, that if the proponents of the appointive system could the Territory of Hawaii to practice law be given an oppor show me that the appointive system was the better system tunity to express their views for or against an elective sys I would have gladly changed my mind, irrespective of what tem or an appointive system, I am somewhat confused now. I stood for when I ran for office as delegate. We’ve had six I’m confused because of the fact that I believe the committee or seven committee meetings and I believe it was merely an report has not submitted a fair and impartial opinion on the expression of opinion of a few committee members that were judicial system, as they are now advocating and requesting present at the meeting. this committee - - this Convention to adopt. The chairman speaks of “great authorities.” I can’t re Upon that premise, I now move that the committee report call, sitting in the committee meeting, of ever listening to and proposal be recommitted back to the Judiciary Commit any expression of opinion by great authorities. The only tee and that the Judiciary Committee be instructed by you one that I can remember is Dean Vanderbilt. The chairman or by the Convention to carry out or else to make good the of Judiciary Committee wrote to Dean Vanderbilt to get his charges that have been made here in open Convention. expression of opinion, and that is about all we got. At the same time, a suggestion was made by Delegate Fong that CHAIRMAN: Is there a second to that? the chairman or the committee write to other authorities YAMAMOTO: I second the motion. in other states having the elective system, and we were told that this would be done, but it was never done. All we had CHAIRMAN: Will you state the motion again please so was Dean Vanderbilt’s letter. We talked about the same that everyone understands the motion? As the Chair under thing in the six meetings; there was nothing new. The first stands the motion, the motion is to rise and report to the 395 JUNE 9, 1950 • Morning Session Convention that you believe that the subject matter should Chair properly, “Mr. Chairman,” and somewhere on my be recommitted to the Committee on Judiciary. right came a cannon shot of “Second the motion.” KAUHANE: I move that the committee proposal and the CHAIRMAN: I recognized the second. committee report be recommitted to the Committee on Ju LEE: Did you recognize the second? I didn’t hear you diciary - - call his name. I stand corrected. CHAIRMAN: And how do you propose that be done? CHAIRMAN: The motion is to table the motion to re KAUHANE: - - and that the Chair instruct the chairman commit. All those in favor say “aye.” Opposed. [Carried.] of that committee to carry out, or in other words, to do KAUHANE: I rise to a point of special privilege. away with the charge or to carry out the charges that have been made here upon their - of their failure to bring to CHAIRMAN: Will you state the special privilege. this Convention a complete report of the - - KAUHANE: The delegate from Maui - - I believe I would CHAIRMAN: If the delegate would state the motion - - rather rely upon the statement that he made and have the Clerk read the statement made by the delegate from Maui KAUHANE: The Clerk has the motion. I ask you to tell with reference to my statement. the Clerk to read the motion. A.TRASK: Point of order. CHAIRMAN: Will the Clerk read the motion, please? KAUHANE: I feel, Mr. Chairman - - CLERK: That the committee report and proposal be re committed back to the Judiciary Committee, and that the Ju A. TRASK: Point of order. diciary Committee be instructed to report to the Convention CHAIRMAN: A point of order has been raised. Will you to carry out the laws - - to make the Act - - the charges that state your point of order, Delegate Trask? have been made for the information of - - A. TRASK: I object to any special privilege being ex CHAIRMAN: I believe — — The Chair feels that the mo tended the speaker from the fifth district - - combination, tion was not clearly stated, and if we could get it down to a whatever it is. few simple statements, we would know on what grounds we were voting. CHAIRMAN: What is the - - KAUHANE: I move therefore, to make it very simple and KAUHANE: I rise to the point of order - - I mean ques understandable, that the committee proposal and the report tion of personal privilege. be recommitted to the Committee on Judiciary. CHAIRMAN: Will you state the personal privilege. CHAIRMAN: Does the second accept that? KAUHANE: My integrity or my position has been some YAMAMOTO: I accept that motion. what challenged in the statement made by the delegate from Maui. Certainly I’m entitled to defend myself, even if the H. RICE: As a member of the Judiciary Committee, I opinion of the member from the fifth district does not agree resent Mr. Kauhane’s remarks because I don’t think he at with me. The reason - - tended the Judiciary Committee. I sent the report of the chairman, which I think is one of the outstanding reports of MIZUHA: I cannot understand the speaker, Mr. Chairman this Convention, back to the lawyers on Maui and to my KAUHANE: I’m trying to say this, Mr. Chairman - - brother on Kauai and asked them if they had any comments to send those comments to me. As a member of the Judi CHAIRMAN: The Chair rules you’re out of order. Will ciary Committee representing Maui I’d like to hear from you please take your seat. the lawyers. They were satisfied with the report and they KAUHANE: Mr. Chairman, I still rise - - believed - - I think the decision of the Convention is what they’d like to hear now. ANTHONY: Mr. Chairman. FUKUSHIMA: I don’t believe that it is necessary that the CHAIRMAN: Delegate Anthony. committee proposal and the committee report be referred ANTHONY: I would like to rise to a point of special privi back to the Committee on Judiciary. I feel that adequate lege. The delegate from the fifth district has made some expressions have been made on the floor already. I for my serious charges against the Committee on Judiciary, and self feel and know that the report of the learned chairman they are unfounded and I want to assure the Convention of of this committee is an excellent report. that right here and now. It is true that at the initial meeting The reason why I made those statements is this: we of the Judiciary Committee I advised the committee that I could have filed a minority report but we did not, which is had written to the foremost authority in the United States, largely our fault. And in not filing our minority report, I Dean Arthur Vanderbilt, presently chief justice of the sup felt that I could orally state the position of the minority reme court of New Jersey, asking him his views on the ju speaking for myself before this Convention. There’s no ne diciary article, and a nice reply was received which was cessity of sending this report and proposal back; we’ve had read to the committee. At that time, in a facetious gesture, enough discussion; we know where we stand. Even if it was either one member or two members of the committee said sent back, the vote would still be the same. It will not change how about writing to those states where they have elective at all, so I move to table at this time the motion to recommit. systems. And it was well understood by all that any mem SILVA: Second the motion. ber of the committee could write to anybody he wanted to. Now, as to the matter of the public hearing. That was CHAIRMAN: The motion has been made and seconded to discussed and nobody ever pressed a public hearing for the table the motion to recommit. All those - - simple reason that the real persons of interest in the judici LEE: A point of order. I notice that you recognize the ary article on the matter of appointment and selection of mover of the motion to table; then I rose and addressed the judges and tenure is the bar. The bar was furnished with 396 JUDICIARY mimeographed copies of the proposal. Every member of KING: I rise to make it a point of order. As I understood the bar received in the mail the proposal that was the draft the delegate from the fifth district, Delegate Kauhane, he of the proposal upon which this committee worked. At least wished to discuss the election of the chief justice. That’s two meetings of the Bar Association were held and there not the pending amendment, which is the election of all judges. was ample notice to every member of the bar. I don’t know Is that correct? whether Delegate Fukushima was present or not, but all law yers who were interested in that problem were there, and a CHAIRMAN: Well, he was speaking to the amendment. full and complete debate was had in the Bar Association. We haven’t limited it to whether they were talking on the Thereafter we had a meeting of the Judiciary Committee, chief justice or all of them. and the chairman of the special committee of the bar ap FUKUSHIMA: I also have a point of order, Mr. Chairman. peared and reported the views of the Bar Association. Now there was nothing to prevent Mr. Fukushima or anybody else CHAIRMAN: Will you state your point of order please, who could have produced any authorities, and they were unani Mr. Fukushima. mous in favor of the appointive system, to do that before the FUKUSHIMA: Prior to my making my closing argument, committee. The authority was produced, the leading authori if you can call it such, the Chair put the question whether ties in this country, and every member of the committee anyone here would care to speak further on the subject mat knows that and as I say, the very fact that they were unable ter, and hearing none, the Chair recognized me as a pro to state in writing any reason for an elective, popularly ponent of the amendment to close the debate. elective system of the judiciary is ample proof to my mind why this thing should be voted down. CHAIRMAN: That is correct. MAU: Mr. Chairman. KAUHANE: I rise to a point of order. It is certainly approved by any parliamentary procedure - - CHAIRMAN: The Chair would like to rule that in its opinion there was no intent, and certainly the Chair did not CHAIRMAN: The Chair has recognized that you have a hear any castigation on Delegate Kauhane by Delegate Rice, right to speak and so rules. and therefore ruled that the personal privilege was out of KAUHANE~ Well if the Convention is taking an arbitrary order. Delegate Mau. stand as to my expression of views, I’d like to state this. MAD: I speak now to a point of personal privilege. I’m That certainly the Chair is right in recognizing Fukushima a member of the Judiciary Committee. I had stated in the to make the closing statement in support of his amendment. committee meetings, and I state so now, that this report by That is a practice that has been recognized throughout in the able chairman of the Judiciary Committee is one of the parliamentary - - most excellent reports yet filed with this Convention. I want CHAIRMAN: May the Chair ask if you wish to speak to to state to the Convention that no point was ever raised or the amendment. The other subject has been fully covered. discussed which gave rise to a subsequent motion made by the delegate to the fifth district, and the sooner we forget KAUHANE: Mr. Chairman. that, the better it is. Of course it was unfortunate that one CHAIRMAN: Proceed. of the earlier speakers this morning, one of the delegates from the fourth district, raised the point as an illustration, KAUHANE: When I came to this Constitutional Conven I believe. But if it had not been done, the feelings would tion, I came here with an open mind to decide whether or not not have run so high. I submit to the Convention that we the judicial system should be an elective one or an appointive forget that and go on with our business. one. —Mr. Chairman, I ask that you tell my friend who sits in the ba’ck of me trying to interfere with my speech to keep CHAIRMAN: The motion before the house is the adop quiet. —So much so when this matter was discussed before tion of the amendment Are you ready for the question? this Convention and when I ran for the office of delegate I made no promises to support either an elective or appointive KAUHANE: I’d like to be given the opportunity to express system. my views on the subject matter whether the chief jUstice Now I am convinced more so in the expression of ideas should be elected or appointed. that was made before the Convention that I believe the elec CHAIRMAN: That is proper. tive system is the proper system for the protection of the small man who has to go to court. We have been told that the KAUHANE: Mr. Chairman, and members - - elective system is a corrupt system, politics plays a great MAU: Point of order. part in that type of system. Politics plays a great part as far as pressure is concerned on both the elective and ap CHAIRMAN: Will you state the point of order, please. pointive systems. We see that in an appointive system with MAU: I thought there was a motion to table and it was in our government, namely in the Police Department, when seconded. I know that foreclosed me from debating. before the enactment of the law repealing the election of sheriff, that there were less corruption within the Police CHAIRMAN: I believe that is correct. There was a mo Department as was exhibited during an appointive system, tion to - - which corruption was publicized in the daily newspapers. So much so that the people are now clamoring for a change MAU: May I finish that for you. There was a motion to from a system which they thought would make the necessary table the motion to recommit. corrections in an elective system by an appointive system. CHAIRMAN: That’s right, and that carried. That mo They now have appeared before the legislature in a formal tion was put and carried. Therefore the Chair is correct petition by legislation requesting that that legislature revert in stating that the only motion before the house at the present back to an election system for the Police Department. time is the amendment, and as I understand it, Delegate Kau We have heard arguments pro and con as to the system hane is speaking to that point. that we should decide upon. If we believe that an elective JUNE 9, 1950 • Afternoon Session 397 system is the most democratic system throughout our elec CHAIRMAN: The previous question has been called for. tion system, then I say that the judges should run for office. SILVA: How about giving a couple of laymen just one The fact that politics or campaigns cost money is immaterial little say. in this matter, immaterial because those who run for public office to run the affairs of the government have to bear the CHAIRMAN: Pardon? cost of election. We bear the cost of election because we SILVA: If he will remove his, motion, I’m just a little feel that we can contribute towards forming or attempt to layman and I’d like to say just about two sentences in show form a good sound and fair governmental system. The ing my thinking on the election and the - - election of judges should be on those basis that your judicial system shall be on a sound and fair and impartial basis. J. TRASK: I withdraw my motion. Men who run for office, they certainly present themselves, CHAIRMAN: The gentleman has yielded. they present their qualification and irxte~ritv for the office they run, or they seek for. Certainly, we will have capable SILVA: Two sentences, that’s all. Speaking as a layman, men running for the office of judge as much as we will have if I was to be tried before a judge, and knowing politics like capable men submitting themselves for appointment. I do, I’d rather have him appointed. Thank you. Let us take the case that has been raised here on the H. RICE: I’m not going to talk on the question. I ask question of races, and because on that question they feel that we take an “aye” and “no” vote. that we should totally disregard the racial question. We know and we have seen that in all the appointments, acknow CHAIRMAN: We’re voting now on the previous question. ledging the fact to be that certain groups - - certain race Do you want an “aye”? The motion before the assembly is groups should be recognized. Have we given that certain the previous question. All those in favor say “aye.” Op group the recognition as we attempt to say in our Bill of posed. Carried unanimously. Rights that such recognition shall be given? We find that Motion now is on the amendment. there is a need for such representation. We find that that ANTHONY: Roll call. need can only be accomplished if and when we adopt an elective system; an elective system so that they will be on CHAIRMAN: All those desiring roll call will please raise comparable basis in presenting themselves to the voters of your hand. Sufficient number; there will be roll call. this Territory whether or not they are qualified and are men of integrity to seek the office as judges. Certainly the people, APOLIONA: Will you state the motion and the position to who after all makes up your government, should be given that the delegates. freedom of selection,the freedom to exercise its conscience CHAIRMAN: The motion that is before us now is an in selecting the men who run its judicial system as well as amendment to Section 3, proposed by Delegate Fukushima, selecting the men who run the affairs of its government. reads as follows: Section 3 to be amended as follows: As a layman, I feel that is the only fair means of an elimi nation process and the selection of capable and qualified men The justices of the supreme court shall be elected by to run the affairs of our government, be it in the judicial the electorate of this State and the judges of the several system, the legislative branch, in both the Territory and circuits shall be elected by the electorate of the respec county branches. I therefore am heartily in favor of an tive circuit both in a nonpartisan election. No person elective system in the judicial setup. shall be eligible to such office who shall not have been admitted to practice law before the supreme court of SMITH: Mr. Chairman. this State for at least ten years. The justices of the sup CHAIRMAN: Delegate Smith, you have already spoken reme court and the judges of the circuit courts shall hold on this subject. Delegate James Trask has not yet spoken office for a term of eight years. on the subject, therefore I will recognize - - NIELSEN: That means then that we vote “aye” if we J. TRASK: I move for the previous question. want the elective system? A. TRASK: Point of order please. Just one question be- CHAIRMAN: You vote “aye” if you want this amendment. fore - - You vote “no” if you do not wish the amendment. The Clerk CHAIRMAN: Point of order. Will you state your point of will please call the roll. order. APOLIONA: Mr. Chairman, will you clarify that again. A. TRASK: I’d like to ask a very important piece of in An “aye” vote is for the amendment or “aye” vote is to formation of the chairman of the committee. Was any - - table the amendment? CHAIRMAN: Will Brother Trask yield for a question? CHAIRMAN: No, the “aye” vote would be to accept the amendment. Therefore, if you want the amendment, you J. TRASK: I do. would vote “aye”; if you do not want the amendment, you A. TRASK: Was any - - did the Judiciary Committee re would vote “no.” ceive any petition from any source whatsoever opposing the CLERK: Mr. Chairman, might I suggest that they use appointive system? the mike so that we can hear when they vote. CHAIRMAN: Will you answer the question, please, Dele CHAIRMAN: It’s requested that when you cast your vote, gate Anthony. you use your mike so that the Clerk can hear the vote. Will ANTHONY: The answer is “no.” the Clerk please call the roll. CHAIRMAN: I’ll recognize Delegate Trask, James Trask. Ayes, 11. Noes, 50 (Anthony, Apoliona, Arashiro, Ash ford, Bryan, Castro, Cockett, Corbett, Doi, Dowson, Fong, J. TRASK: I redo my motion. Gilliland, Hayes, Heen, Holroyde, Kage, Kawahara, Kawa A. TRASK: I second that. kami, Kellerman, King, Kometani, Lai, Larsen, Lee, Loper, 398 JUDICIARY Lyman, Mizuha, Noda, Ohrt, Okino, Phillips, Porteus, C. This is an amendment to Section 3, Committee Proposal Rice, H. Rice, Richards, Roberts, Sakakthara, Serizawa, No. 7. Delegate Fong. Shimamura, Silva, Smith, St. Sure, Tavares, A. Trask, White, Wirtz, Wist, Woolaway, Yamauchi, Crossley). Not voting, FONG:. This amendment reads as follows: 2 (Kanemaru, Sakai). Section 3. The chief justice shall be elected by the CHAiRMAN: The amendment has failed. qualified voters of the state on a nonpartisan designation at a regular election in an odd-numbered year in which ANTHONY: I move the previous question on the vote on a governor is not elected. He shall hold office for a term Section 3 as reported on by the committee. of eight years beginning on the first day of January next APOLIONA~ I second it. following his election. The associate justices of the supreme court and the FONG: I have an amendment. judges of the circuit court shall be appointed by the chief CHAIRIvIAN: I have the motion to - - for the previous justice by and with the consent of the Senate. No nomina question was asked on the original motion. I recognized tion to such office shall be sent to the Senate until alter1 the second. We’ll have to take a vote on the previous ques ten days’ public notice by the governor. No person shall tion unless the gentleman yields. be eligible to such office who shall not have been ad mitted to practice law before the supreme court of this ANTHONY: I’ll withdraw if there is an amendment to be state for at least ten years. offered. I withdraw, Mr. Chairman. The justices of the supreme court and the judges of APOLIONA: Likewise. the circuit courts shall hold office for initial terms of six years and upon reappointment shall hold office CHAIRMAN: It’s been withdrawn. You are recognized, for a term of twelve years. Delegate Fong. FONG: Here is the amendment. Will you read that, Miss This section differs from Section 3 of the proposal which Clerk? was submitted by the committee to this extent, that instead of having the governor appoint the associate justices and CLERK: the chief justices, this proposal intends to make the chief Section 3. The chief justice shall be elected by the justice run for office, and alter the chief justice is elected qualified voters of the state on a nonpartisan designation to office, then the chief justice shall select his associate at a regular election in an odd-numbered year in which a justices and he shall select the circuit court judges, and governor is not elected. He shall hold office for a term these will be in turn confirmed by the Senate. I am merely of eight years beginning on the first day of January next substituting here the chief justice for the governor. following his election. The reason for having the chief justice run for office is The associate justices of the Supreme Court and the due to the fact that traditionally we have had separation of judges of the circuit court shall be appointed by the chief powers. At the present time - - this proposal, may I say, justice by and with the consent of the Senate. No nomi is a half-way measure. It is a proposal in which we keep nation to such office shall be sent to the Senate until alter the circuit court judges away from the people who they are ten days’ public notice by the governor. No person shall going to pass judgment upon. The circuit court judges will be eligible to such office who shall not have been admitted not be elected by the people, and I believe that they should to practice law before the supreme court of this State for not be elected by the people , because they will have to pass at least ten years. judgment on the people and they are too close to the people. The justices of the supreme court and the judges of The only man to be elected here is the chief justice and he’s the circuit courts shall hold office for initial terms of far removed from the people. six years and upon reappointment shall hold office for a At the present time, we have three branches of govern term of twelve years. ment. The governor is appointed by the President of the United States, he’s confirmed by the Senate of the United FONG: I move for the adoption of the amendment. States, he is separate and distinct from the judiciary, and J. TRASK: I second the motion. he is separate and distinct from the legislature. The judges of our courts are appointed by the President of the United CHAIRMAN: It’s been moved and seconded that this States, and they are confirmed by the Senate of the United amendment be adopted in Section 3. States; therefore, they are distinct and separate from the executive branch as well as the legislative branch. The C. RICE: Now that the amendment is in, I move the com mittee rise, report progress and ask leave to sit again at legislature is elected by the people. The work of the legis 1:30. lature is reviewable by the Congress of the United States and by the President of the United States. Therefore, at the CHAIRMAN: Do I hear a second to that motion? present time, we have a complete separation of powers, that is, a complete - - a separate judiciary, a separate executive H. RICE: Second. branch, and a separate judicial branch. CHAIRMAN: All those in favor please say “ay&” Opposed. Let us see what we are trying to do when we say: “When So ordered. we become a State, we will have the governor appoint the judges and let the Senate of the state legislature confirm the appointments.” Section 3, as proposed by the committee Afternoon Session says this, that the governor will appoint the justices of the supreme court and the judges of the supreme court, and a CHAIRMAN: The Committee of the Whole please come Senate of the state legislature will confirm the appointments. to order. When we rose to report progress at 12:00, we had We will be destroying the present complete separation of before us a new amendment which had been introduced by powers of the three branches of our government. We are Delegate Fong and seconded by Delegate James Trask. saying to our judiciary, “You are subservient to the governor, JUNE 9, 1950 • Afternoon Session 399 the executive branch of our government. Being under the vote for the appointive system when 36 of the 48 states elect thumb of the governor, we want to shove you down further, their judges? Let me quote the words of the distinguished and instead of only being subservient to the governor, we member of our delegation here, Delegate Garner Anthony, tell you that you are subservient to the legislature.” It is in replying to the question as to why - - what is the argument the intention of those who voted or who will vote - - who against an appointive judiciary. This is read from Delegate voted for the majority report to have Section 3 as it stands, Anthony’s paper to the Social Science Club on “The Judici to subserve the third branch of our government to the whims ary,” by J. Garner Anthony. and machinations of politicians, that is, men who will be “What are the criticisms against an appointive system? elected to the Senate, men who are elected by partisan poli The stock argument against an appointive judiciary is that tics. it deprives the people of the right to choose judges. The You will note that this amendment eliminates partisan answer, however, is that in selecting a person for the bench, politics. It eliminates the fact that a man has to rue on the judgment of the electorate is not apt to be good .“ the Republican ticket or on a Democratic ticket or on a non Let me rephrase it and strip it, strip that of all of its partisan ticket. He runs in an odd year, aside from the year verbiage. It comes down to this: we do not trust the people, when the governor is not running, and he is running on a non we do not trust the voters, we have no faith in the people, partisan ticket. we have no confidence in the voters. Isn’t that the basic And I’d like to say, ladies and gentlemen, and I say it with philosophy back of all of those who vote for the appointive a great deal of emphasis, that you are reducing that third system? Isn’t this the philosophy? The people are fools, branch of our government, which has the dignity of being a they are apt to vote for fools, they usually exercise very bad branch of government, to a commission; you are reducing judgment, and fools get into office. Isn’t that the basic phi it to the level of the Liquor Commission; you are reducing losophy? As a corollary to that philosophical thought: we it to the level of the Utilities Commission. The reason is who are the chosen few, we who belong in the upper strata the governor appoints members of the Liquor Commission, of society, we who call ourselves intelligentsia, we know the governor appoints members of the Utility Commission, how to vote. You on the other side of the street do aot know and the members of the Utilities Commission and the Liquor how to vote. Commission are confirmed by the Senate. Now when you say CHAIRMAN: if the speaker will suspend a moment, I’d that the governor will appoint the chief justice and appoint the like to remind him he has just a little over one minute left. associate justices and appoint the judges of the supreme [sic] court, you are saying that the governor of the Territory will FONG: May I ask the indulgence of the delegates here to do the same thing here as he is doing with the members of give me a little more time? the Liquor Commission and members of the Utilities Com SAKAKIHARA: I move that we suspend the rules. mission who must be confirmed by the Senate. The commis sions, the Welfare Department, the Police Commission, the ANTHONY: I think that the speaker should have unani Utilities Commission, are mere functionaries of the execu mous consent to express his views. tive department. They are just the extension of the execu DOl: I second the motion. tive powers. Now in saying that the governor will have the power to CHAIRMAN: It’s been moved and seconded that the speak appoint the judges of your supreme court and the judges of er have unanimous consent to express his views. All those your circuit court and to have them confirmed by the Senate, in favor say “ay&” Any opposed? you are in other words saying that we are extending the ex FONG: Thank you. ecutive functions to the judiciary. in the corollary to that philosophical thought that if the After subserving your judicial branch of government to vote was given to us alone, that probably we’ll have an elec the legislative and the executive powers, you do not even tive system, but it’s just too bad that that vote is insured to give it the dignity of some of the other elective offices of the other man also. if only I and mine can exercise that in this city. The judiciary, if elected by - - if appointed by the herent right to vote, then it’s all right for us to vote; but as governor and confirmed by the Senate, does not even have long as there are many on the other side and probably, proba the dignity of the city and county attorney’s office, of the bly, they are all voters, I think we should not give them the county attorney’s office of the County of Maui, the County of right to vote, if I and my class, whether it be the social Kauai, or the County of Hawaii, which officers are elected group, the economic group, the acquired-learning group, ex by the people and are independent of the other branches of ercise the right of ballot and no one else, then it is all right government. You are not giving to your judiciary that inde for us to elect the judges, but as long as it’s going to be given pendence which that branch of government deserves. In the to the other person, I don’t think that we will give it to him. City and County of Honolulu, we elect the sheriff. The sher I have talked to a few of you about this appointive system iff exercises his powers free and independent of the board of and elective system. Some of you who have stated that you supervisors. In the City and County of Honolulu, we elect have gone on the stump and advocated the appointive system, the clerk, and he is free and independent of the board of and to those of you who have stated that to me, I’d like to say supervisors. In the City and County of Honolulu, we elect I would like to use the same argument advanced by Delegate the auditor, and we elect the City and County treasurer, and Garner Anthony this morning, that you are here to listen to in the outside islands, we elect the city and county - - the the arguments made pro and con and then to vote accordingly. county attorneys who are all independent of the executive. Some of you told me that you have been approached by mem Are we going to reduce this third branch of our government bers who have advocated the appointive system and you have below the dignity of a city and county attorney’s office, below promised them that you will vote for the appointive system. the dignity of a sheriff’s office, below the dignity of a clerk’s Are you willing to go back to your electorate and tell them office? I am not willing to reduce it to that subservient and look them straight in the eye and say, “John, I would position. have voted for the election of judges if the other man hadn’t Now, let us see what is the philosophy back of the appoin seen me first and I had promised him.” Regardless of what tive idea. What is the impelling reason that make delegates kind of argument you may give him, even if Delegate Anthony 400 JUDICIARY were to phrase it for you, you will not be able to convince criminal law, cases in common law including land court mat him that you voted against the election of judges because you ters, cases in equity, cases in probate, cases in divorce, thought that he was not able to exercise his judgment. cases in guardianship and adoption. The judge of the crimi Can you go back to your electorate and look him straight nal court is bound by the decision of the jury, a jury com in the eye and say, “John, I would have voted for the election posed of 12 laymen, a jury selected from the resident voters of judges if I believed you knew how to vote, but knowing that of the city. He is bound by law, after the jury comes into you don’t know how to vote, that you are a fool when you vote, court and finds a man guilty, to give him a fine, give him that you don’t exercise good judgment and discretion when probation, and if it’s a felony, he has to give him the limit. you vote, I have in your interest taken away that inherent Now what discretion, what bias can a judge show in a case right from you to vote.” Are you willing to go back to your like this? In common law cases and in most of the contro electorate and tell them that? versial points in land court, you can get a trial by jury of Are you willing to tell John, “John, in the Bill of Rights laymen. In probate, in the great bulk of cases in divorces, we start off and say that all men are by nature free and in guardianship and adoption, the trial is ex-parte, that is, equal, and have certain inalienable rights. John, that is all there is no opposing counsel, there is nobody on the other poppycock. That is all rot. We don’t mean what we say. side, you present your case to the court. We only want to put it down so it sounds good, so that the men The only place that I can see where there can be some in Congress after they read it probably will give us statehood. showing of bias is in the equity court where the judge sits We don’t mean that all men have inherent rights and that they there as judge and jury, and that can be easily changed by are by nature free and equal in their inherent rights.” the legislature passing a bill to provide for jury trials in I’d like to say that I am casting my vote here because I equity cases. believe in the people. I believe that they know how to vote. You leave the judgment of whether a man is guilty of Delegate Anthony said yesterday, “We will be guing back murder, whether he is guilty of rape—and those cases carry wards if we elect our judges.” I would say if we appoint our capital punishment —to the decision of 12 laymen. Whether judges, we will be going backwards. We might as well fold he is guilty or not, the layman goes out and finds him as to up shop today just because if we elect our officials we are whether he is guilty or not. The judge has nothing to say in going backwards. Our governor is appointed. If we become the matter. If the jury goes out and finds him guilty of mur a state, we must elect our governor, and he will be the head der, they judge murder in the first degree, any judge will of a billion dollar corporation, and he will be the head of not give him a fine, any judge will not give him probation, 500,000 people. Are we going backwards if we vote for the they’ll send him to the gallows. So what is all this talk about chief executive? the judge being biased? I would like to say that the idea advanced that we are go I would like to state that my amendment is not as abhor ing backwards is quite reactionary. Usually on a political rent as some of you would like to make it seem. Some of you stump, the Republicans are being accused of being reaction abhor the idea that we elect our judges. You seem to like ary, that they are throwing stumbling blocks in the way of the word “appoint,” “appoint the judges.” Now there are all the inherent right of the people to stop the right - - to stop kinds of ways of appointing your judges and there are all the people from exercising what is inherently theirs. We kinds ways of electing your judges. The proposal here which all abhor the welfare state. We feel that we shouldn’t go into I have presented is a proposal in which you only - - you elect socialism, but this is not the way to stop it. We don’t erect the chief justice, he will in turn appoint the associate jus stumbling blocks along the road to stop this welfai~ state, tices to be confirmed by members of the Senate. You will this hand-out state. We do it by education, by co-operation, note that I have not differed very much from the report of by electing little men to office, men who are willing to grant the majority here. I have just substituted the chief justice the inherent rights to those that have been guaranteed those for the governor. rights, and men who believe in free enterprise, who believe in initiative. That is the only way we can sell them the idea The idea came to me when I was reading the Model State that a welfare state is not the best state for them. Constitution. The Model State Constitution was first written Delegate Anthony stated yesterday that if you had an ap in 1921, and those that have participated in the writing of the pendix operation you would not have a popular election over Model State Constitution are men of great judicial learning, it. I say to you, if you had an appendix operation, you would and this is what the Model State Constitution say~. The go to a doctor, a doctor who has passed the medical examina Model State Constitution is revised from time to time and tions, who has come from a credited school, who has gone the last revision was in 1948. Section 602 of the Model into internship, who has gone into the Queen’s hos State Constitution reads as follows: “Selection of judges, justices, and judges. The chief justice shall be elected by pital where they have supervised him, and after supervising him, they tell him that he has the right to operate. And I the qualified voters of the state at a regular election in an say to you that if you went to a doctor who had a degree that odd-numbered year, in which a governor is not elected. He your appendectomy will be all right. shall hold office for a term of eight years, beginning on the So it is with the lawyers. To become a judge, he must first day of December, next following his election.” My first become a lawyer; to become a lawyer, he must first amendment almost in total reflects the thought of this Model go through 19 years of schooling, he must go to an accred State Constitution. ited class A law school before he is allowed to take the bar The Model State Constitution, however, goes further in examination. After you finish 19 years of schooling, and which it prpvides for the selection of the other appointees after you finish the bar examination, then you would practice according to the judicial council system. I have not taken ten years according to this amendment before you will be that up because the majority report seems to give a lot of eligible to the bench. Isn’t that sufficient safeguard for the credit to the confirmation power of the Senate. judiciary? In allowing the people to vote for the chief justice, we are Now let us look at the courts. There has been a lot of giving to them what is inherently theirs. We are telling the talk about corrupting the judiciary, about bias of the judi people, “This is your kuleana. You have a right to exercise ciary, about a judiciary leaning towards one litigant as your opinion as to who the members of your judiciary will against the other. Our courtwork is divided in the main into be.” JUNE 9, 1950 • Afternoon Session 401 The governor, if he appoints the members of the judiciary, give a strong judiciary. Now in complying with that thought, will be given the power over the judiciary as well as power I am now speaking definitely in opposition to this amendment, over all the other appointees. In making the chief justice run because this is a worse proposal than the one that I intro for office, we will make one man and one man alone responsi duced yesterday. ble to the people. He will be responsible for the good admin Thank you. instration of justice. If the administration of justice is bad CHAIRMAN: Before I recognize Delegate Heen—I will under an appointive system by the governor, we may not want recognize you, Delegate Heen, as the next speaker —I’d like to throw the governor out because he may be a good executive to. point out that a number of the delegates before I took the in all the other functions of government. If, under an election Chair asked me to please state that they had plane reser system, if the administration of justice is bad, we can go af vations to catch this afternoon, later on this afternoon, in ter the chief justice. asmuch as this will be a long week-end for some of them I have in this amendment preserved the security of ten and reservations are very difficult to get. So if that will be ure, only one man runs for office, and he runs for eight years. kept in mind a little later on, it will be appreciated by those. He appoints his associates to run for six years according to I’m not saying that anyone is going to cut off debate or any the report of the majority committee. thing like that, but they wish - - made their wishes known Now another statement has been made by Mr. Anthony earlier. that lawyers loathe to run for office. Running for office is very distasteful to lawyers. As I look around here, and as MAU: On this point that you raised. May I ask - - I talk to the laymen on the street, many of them feel that we CHAIRMAN: What is the point, Delegate Mau? got too many lawyers running for office, and I doubt if we will deter the lawyers running for office if we only have one MAD: You were saying, Mr. Chairman, that some of the man running for office. delegates have to catch a plane. I say to you, delegates, that you should give back to the people what rightfully belongs to them; and if you do, you can CHAIRMAN: That’s correct. go back to them and look John Citizen square in the eye and MAD: Well, I’m wondering when we are going to get this say, “I trust you, I have faith in you, I have confidence in you, work for the Convention done. It’s a terrifically long week and I know you will give us a good judiciary.” end, I know that - - Thank you. CHAIRMAN: Well, I simply stated it as a matter of in- FUKUSHIMA: Perhaps if I yielded yesterday to Delegate formation; that’s all that I stated, as a matter of information Fong, the result this morning may have been different after and consideration and that is all. We have not taken any ac the eloquent speech which he has just made for the elective tion on it, and so, Delegate Heen, if you’ll continue, please. system. At this point, perhaps it may be proper that I should move for a reconsideration of the vote taken this morning, HEEN: The proponent of this amendment is not consistent but I will not because I have been in my propounding - - ad in his argument. When I go back to my constituents and I face vocating the elective system, I was defeated overwhelmingly. John Voter, I say to him, “I had great faith and confidence I have no fear in going back to my electorate and saying to in you to elect us a chief justice, but when it came to the as the people, “John, I did a good job for you as far as the ju sociate justices and the judges of the circuit court, I didn’t diciary was concerned.” trust you, because you don’t know how to vote for an associ I’d like to be consistent, however, this afternoon in cast ate justice or a judge of a circuit court. Therefore I didn’t ing my vote when the vote is taken. As I read Proposal No. give you that right, and I placed that right in the hands of the 3, the amendment thereto, “The chief justice shall be elec chief justice.” Where does the consistency come in on this ted by the qualified voters of the state on a nonpartisan line of argument? So, gentlemen, I believe that we still designation at a regular election,” I’m for that thing and for have - - should have an appointive system as provided for in all election as I’ve pointed out earlier this morning and late Section 3. yesterday afternoon, but this amendment goes one step fur ASHFORD: I was one of the few delegates who did not ther. It provides for the appointment of the associate jus speak this morning. I would like to say that in my opinion tices and the circuit judges by the chief justice. Certainly there is a great deal to be said for an elective judiciary, and I believe in the complete separation of the three branches it has been admirably said, but I think there is absolutely of government, but this proposal does not show that. You nothing to be said for the election of a chief justice who shall have the legislature coming into the picture again by a con appoint the other members of the bench. Is anyone so naive firmation of the Senate, which is certainly not a complete as to believe that the man running for chief justice will not separation of the three branches of government. promise every single appointment when he runs? That’s only one of the yields of this amendment. If we read further, between the lines, what does it indicate? Your RICHARDS: I was really surprised and shocked at the chief justice who selects the associate justice will somehow implications of my worthy colleague from the fifth district prevail his judicial thinking among the associate justices in his remarks that a procedure established by the Constitu which he will select. Coming down to the circuit judges, the tion of the United States in its appointment of its chief jus - - same thing will hold true again, and we must always bear in its Supreme Court was a matter of class legislation. We mind the circuit judges are those that try the facts in many have already adopted the Constitution of the United States as cases when the jury is not called in, and his decision, if part of this Constitution, and that implication I feel is abhor appealed, will go to the supreme court, of which the chief rent. justice is the appointee of the circuit judge - - appointer of Regarding some of the other remarks of the proponent, the circuit judge. That certainly weakens the judiciary. when a body is emp owered, as has been already accepted by All I’m advocating here is for a strong judiciary, and in this Convention temporarily passing Section 10 of this pro my opinion, I still feel that the elective system is the best, posal or article, where they may set up their own rules with but in the considered opinion of all of the delegates here, out appeal to anybody, and the chief justice may appoint the some 50 delegates, they feel that the appointive system will associate justices who set up those rules, where do we have 402 JUDICIARY anything except a very dictatorial court? I still feel that the had been performed by the different actors. The blame of procedure established in the Constitution of the United States a bad nomination would fall upon the President singly and of having the elected President appoint the Supreme Court absolutely. The censure of rejecting a good one would lie and having it con firmed by the Senate is definitely proper. entirely at the door of the Senate; aggravated by the con sideration of their having counteracted the good intentions ANTHONY: First, I should like to address myself to the of the Executive. If an ill appointment should be made, the doctrine of the separation of powers. That has been misstated Executive for nominating, and the Senate for approving, this afternoon and was misstated this morning. The doctrine would participate, though in different degree, in the opprobri of the separation of powers is simply this: that we under the um and the disgrace.” American system have three co-ordinate branches of govern I say, ladies and gentlemen of the Convention, that the sys ment, co-equal in their respective spheres. Now the applica tem that has been proposed by this amendment is a worse tion of that doctrine comes after a judge ascends the bench, system than that which was voted down this morning. I be and after a judge ascends the bench, he is not responsive or lieve this proposed amendment should be voted down by the responsible to the executive or anybody else. He is respon Convention. sive and responsible only to his own conscience to do justice according to law. In other words, once you get a judge on the FUKUSHIMA: I rise to a point of personal privilege. bench, then the doctrine of separation of powers operates. Now, Mr. Fong has made the statement, which has the CHAIRMAN: State the point of personal privilege, please. superficiality of validity, that if the people elect the judges, FUKUSHIMA: I’d like to correct the delegate from the they will select good judges, and that comes down to this. fourth district. I was physically present at least at all of the In the old Dialogues of Plato, the question was raised, why meetings that he had, and I also believe that I was mentally not any man being a judge, any good man, whether he is present, and no such article was read. learned in the law or not? The answer to that is simply this, that a person does not become a good judge simply be ANTHONY: Mr. Chairman, if the delegate who last spoke cause he is a good man any more than a person will become will examine the minutes, he will find out that the very book a good judge simply because he is a popular candidate. He that I’ve read from was before the committee and read to - - has got to possess the qualifications of the judiciary before in the committee meeting. he is able to render truly the office to which he has been SMITH: I wish I had the ability of some individuals - - appointed. that some individuals have of being so eloquent in their speech I would like to read from one of the authorities, which I have noticed one thing that predominated in this morning’s apparently Mr. Fukushima was absent when it was read in session and is predominating this afternoon’s session is the committee, and that is by - - in the latest work on this sub same approach, same attack that is being carried on, and ect, Minimum Standards of Judicial Administration. “The that is, do you, each delegate, are you willing to go back to system of direct election of judges is an unhappy legacy John the voter and look him square in the eye, and ask him from the popular revolt of a century ago often called the if what he thinks, because I did not vote for an elective - - Jacksonian Revolution. Judges were subjected to another and electing judges, that you could possible look him straight in more fatal line of reasoning. If all men are equal, all law the eye. yers, being men, are equal; so, one lawyer was as much Now it is amazing that individuals can take this approach entitled to be a judge as another if the public so willed.” and use it as a battle or an argument. I took the opportunity Now the vice of the whole thing is that you will never get in going back and asking my different voters, not only on the qualified men to run for office. That is the vice of the whole appointment of judges and election of judges but initiative thing, and this proposal is even more iniquitous than the one and referendum and recall, and you’d be surprised that if that was voted down this morning, in my judgment, because some of you will go and ask the average person, you will this would make a political machine in the chief justice, a find that they say, “Look, we’re not so dumb. We voted to political machine which would have much more ramifications get you in. We are not the only persons voting, and there are than the direct election, popular election of judges. a lot of others who can’t vote. You are supposed to represent The statement has also been made that this system is an everybody as a whole, and if your opinion, whether you think improvement on that which was voted down this morning, right now it should be elective or whether it should be ap and the implication is that it’s predicated on the English pointive, changes for the good of the whole, not on a policy system. The delegates, if they have examined the recommen of politics or personal reasons, but a policy of running a dations of the Statehood Commission, will see that I, as one good government, that is entirely up to you.” of the members of that sub-committee of the Statehood Com Now I would like to state that in answering John, if I were mission, recommended a consideration of the English sy~ thinking of myself and not thinking of politics, would I have tem. But let me assure you, ladies and gentlemen of the voted for elective judges and why didn’t I? I would say, Convention, that the English system does not provide for the “But you know that in all votes of the people, there are many, election of anybody. The Lord Chancellor in England is ap many more who aren’t able to vote, and considering the peo pointed by the cabinet, and the Lord Chancellor in turn ap ple as a whole, it is impossible for me not to consider the points the remainder of the judges during good behavior, so government of, for, and by the people as a whole. if the op this is not the English system at all. ponents of our democracy could get into our judiciary sys Now when the statement is made that this is grounds for tem, they would be at the very base of our democracy. political machinations between the executive and the Senate, Through electing judges, they have that much more oppor I would like to read from another historic document, and tunity.” I’m reading from the Federalist Papers, number 77. “And Now the confirmation power of the Senate has pretty well as there would be a necessity for submitting each nomination been proven throughout the years. We have not been tested to the judgment of an entire branch of the legislature, the as far as being governed by an elected governor, but we circumstances attending an appointment, from the mode of have been - - pretty well been - - by tradition, the appointive conducting it, would naturally become matters of notoriety; system in Hawaii has proven out pretty well. I can’t help and the public would be at no loss to determine what part but feel that there are some good points to electing judges JUNE 9, 1950 • Afternoon Session 403 that have been brought up, but I dare not go ahead and throw politics. I believe that there is sufficient evidence available away something which we haven’t really given a fair trial in to prove that this system would work much better than to the minds of the people, because I know that it is harder, leave this in the hands of one man, that it should go down - - very, very - - pardon me, it’s very easy to take away, but first, for the associate justices, should submit the three it’s very, very hard to give back. names, and among them he would then select one of those. If it pleases the Convention, I would like to make that PHILLIPS: I might say that I believe, ever since I gave motion. the judiciary any thought at all, that I’ve been for the appoint ment of judges. I feel very much, as I know that a great many CHAIRMAN: Is there a second to that motion? of us do, that the election of judges with their long periods TAVARES: I have many pages of notes, but I will not read of training and the great group of people who are not familiar them all, but I think there are some statements that have with the technicalities involved in the judiciary would by been made here about our courts that cannot go unchallenged. their very nature not be as capable of selecting a judge that If any attorney who has the low idea of the importance and would serve the people in the same manner that they would powers and duties of our courts that was given by the first be capable of selecting a legislature - - a legislator or an speaker, certainly has no idea of what a judiciary should be. executive. In the first place, any judge, as we all know, even the lay Just now there has come to my desk for my signature, a man knows it, has a right to make rulings on evidence, which committee report from the Miscellaneous Matters which can mean the difference between reversal and affirmation reads in part, and I feel confident that this will get into our in the supreme court. He has the right to set aside a ver Constitution in regards to the distribution of powers. “Sec dict, a very tremendous, vital righL He has the right in tion 1. It is traditional and basic that the three branches equity cases to make decisions affecting any amount of prop of government have separate powers.” Well I’m sure that erties. He has the right to rule on questions of law of the everybody - - I won’t bore you with going on because it would deepest significance, and remember, the jury must accept be pretty much the same type thing that we’ve done before, from the judge what the law is. Now if that is a perfunctory but it boils down to this, that we will have in another part of function, I’d like to know what we go to law school for. our Constitution that very basic doctrine which as it states Now, the first speaker mentioned the Model Constitution. is traditional. Since it’s traditional, I cannot understand Let me read from this great authority that he relies upon. why the judges themselves and the jurors will come and ask In the first place, he has so changed the child of the Model that their particular profession will be tampered with, will Constitution that I don’t think it would recognize its parents. be handled by an individual who himself is the chief of a po On page 24, we find this statement by the proponents of the litical machine and permits him to appoint them to the bench. Model Constitution. “Having the chief justice, elected by The judiciary is the third major branch of government, the people, appoint the other judges after nomination by a and to my knowledge, the chief executive is to carry out the judicial council” —which he hasn’t put in, and which this as word and letter of the law as laid down by the legislature. sembly has voted down—”and having them subject to popular Now, in doing so, he is required to delegate down through recall “—which we haven’t adopted—” makes the judicial de appointment of certain administrative offices. His power partment as independent as can be of the other branches” — of appointment, I believe should be confined to those admin and this is the crucial payoff —“at the same time that it re istrative offices, and not - - should not necessarily be car jects the extremely questionable system of direct election ried over into this great branch of government. He should of all judges.” “Extremely questionable system of direct not be permitted to disturb and violate as I can - - as it seems election of all judges.” plain to me, this traditional doctrine of the separation of Now, this reminds me of the story entitled, “Go easy on powers. As I already said, it does prove and it does show Uncle Ben.” There was a man who got wealthy, we’ll call that the chief executive is the chief of a political machine, him Jones, Bill Jones, and he wanted to work out a family therefore he is the essence of politics. Whether they let tree, and so he hired one of these professional researchers, the electorate handle it or not, it wouldn’t make much dif but he said, “Now, go easy on Uncle Ben,” because you see, ference, because he is more powerful than all the electorate Uncle Ben had been electrocuted for murder. So when it to select on the basis of politics rather than on the basis of came back, this is what it said, after telling about all the the ability and merit of the judiciary. nice things of all the other members of the family, it said, I might say that due to this, and many others, I would like “Uncle Ben occupied the chair on electricity in one of our to - - I would not go along, though, with the delegate from the large state institutions.” fifth district to the extent that he would permit the chief ex Now, the point of this is this, no matter how you dress it ecutive, after having been elected, he would permit the chief up, it’s still murder. If election of all the judges is bad, executive to - - I mean the chief justice to appoint and have very bad, I don’t see how the election of one judge can be any the power of appointment. Therefore, I would like and won better. der if he would consider an amendment to his motion that would read in the second paragraph, the third line which says ROBERTS: I haven’t spoken to the question today. I’d - -from—the word is split there —“justice,” and then inserted like to make one or two general observations, and then I’d in there - - I will read the whole second paragraph. “The as like to indicate how I intend voting. I’d like to suggest that sociate justices of the supreme court and the judges of the perhaps it might be a good idea that we get around to voting circuit court shall be appointed by the chief justice,” and then on the question. I’m not moving the previous question, Mr. I would have inserted in there, “from a list of three nominees Silva. submitted from a”—and then I put this in because of no better I think that there is a desire on the part of the entire Con place to put it right now, but that could be worked out later — vention to get a strong judiciary, to get good, sound, strong, “a judicial commission composed of laymen and judges,” and and independent judges. I think the question raised basically if necessary “and with the consent of the Senate,” and then is how do you go about getting it? I agree with one of the continue on. speakers this morning that you cannot, either under the I believe that this would solve the possibility of the chief elective system or under the appointive system, completely justice himself having - - getting tangled up with any kind of remove the concept of politics. There’s going to be politics 404 JUDICIARY in both systems. I think the basic question is how little can CHAIRMAN: That would be correct. You would be unable you get, and then how long a tenure can you give to the judges to - - we’d have to vote on the motion. if you have an amend so that they can be independent and at the same time have ment to offer - - some basic regard and understanding of the needs of the people when these cases come before them. SAKAKIHARA: Will the seconder withdraw his second? I do not believe that any judge examines and rules on a I have an amendment being printed. case in the abstract. He rules on specific facts, on circum APOLIONA: I withdraw my second. stances, on the basis of the law. But there is a substantial amount of latitude in the decision of a judge which reflects CHAIRMAN: The second has been withdrawn, therefore, his own thinking and his own environment, and it seems to if you have an amendment to make to Section 3, would you me that that has a very definite bearing on the soundness offer it. and on the independence of the judges. SAKAKIHARA: May I ask five minutes recess. I have examined a lot of literature dealing with the sub ject, and there seems to be some agreement that neither CHAIRMAN: May the Chair ask if the amendment has system offers the best answer, that perhaps a combination been put on the Clerk’s desk yet? of these systems gives us a little better approach to the SAKAKIHARA: No. It’s being typed out. I sent it to the problem. I, therefore, if I had a choice, would support a Clerk’s office to be typed. I want to have it in proper shape. proposal similar to the Missouri Plan which combines, it I ask for five minutes recess, subject to the call of the Chair. seems to me, the best features of both systems. However, I am not being given the choice to vote on such a proposal. MIZUHA: I move that the committee rise and report pro It was removed by the committee. It seems to me, therefore, gress, and beg leave to sit again on Tuesday morning at 9:30. that I have to get the next best choice. It seems to me on ASHFORD: I second the motion. that basis, I would vote for the appointment of judges. if I am given the opportunity subsequently to amend, I will do so, CHAIRMAN: It’s been moved and seconded that the com Mr. Chairman. mittee rise, report progress, beg leave to sit again Tuesday at 9:00. DELEGATE: Question. DELEGATE: I move to table the motion made by delegate CHAIRMAN: Are you ready for the question? The ques from Kauai. tion is on the amendment. APOLIONA: I second the motion. HEEN: I move the previous question. SILVA: Before that’s put through, I think that some dis WOOLAWAY: I’ll second it. courtesy has been shown the second of the previous question. He removed his second for the - - just for courtesy of Mr. CHAIRMAN: Then the previous question’s been moved Sakakthara. And all these other motions are not pertinent and seconded. All those in favor say “aye.” Opposed. Car to the subject. It’s not fair to the seconder of that motion. ried. The question is on the amendment proposed by Delegate CHAIRMAN: The question is, shall we table the motion Fong. to rise and report progress. DELEGATE: Roll call. ANTHONY: In order to clear the parliamentary situation, I would suggest that the mover of the motion to table with CHAIRMAN: All those who would like roll call, please draw his motion to permit the delegate from Hio to prepare raise their hand. Sufficient number. All those voting in the his amendment. affirmative would be voting for the amendment. Those vot ing in the negative will be voting against the amendment. MAU: Mr. Chairman, I don’t think that would clear it up. The Clerk will please call the roll. if Delegate Mizuha from Kauai would withdraw his motion, I think then it would clear it. Ayes, 20. Noes, 37 (Anthony, Apoliona, Ashford, Bryan, Castro, Cockett, Corbett, Dowson, Fukushima, Hayes, Heen, MIZUHA: I shall be glad to withdraw my motion. I did Holroyde, Kage, Kawakami, Kelierman, Kometani, Larsen, not intend to kill the amendment offered by the delegate from Lee, Loper, Mizuha, Okino, Phillips, Porteus, C. Rice, H. Hawaii. However, I asked - - I think I did inform the chair Rice, Richards, Roberts, Serizawa, Silva, Smith, St. Sure, man on behalf of myself and another fellow delegate from Tavares, White, Wirtz, Wist, Woolaway, Crossley). Not vot Kauai that we shall be leaving at 3:00, but would like to par ing, 6. (Arashiro, Gilliland, Kanemaru, Sakai, A. Trask, ticpiate in the voting on Section 3, and inasmuch as we have King). given unanimous consent to a speaker on this floor to continue extension of debate here, and we have been rather CHAIRMAN: The motion is lost. generous with absent delegates while they did go to Wash ington, I believe on an important question like this, on the ANTHONY: At this time I move the adoption of Section 3. question of voting for the judicial - - on the type of the ju CHAIRMANt The adoption of Section 3 has already been diciary we shall have, that courtesy should be extended when made. It’s the section before it - - asked by some delegates. ANTHONY: I then move the previous question. CHAIRMAN: Inasmuch as Delegate Mizuha has with drawn the previous motion, the motion to table is no longer APOLIONA: I second the motion for the previous question. before us. There’ll be a - - we now have the amendment CHAIRMAN: The previous question has been called for before us. Therefore there is no need of a recess. The on a vote on Section 3 without amendment. All those in Chair would like to ask Delegate Sakakihara ~, in offering favor - - this amendment, he intends to take considerable time. SAKAKIHARA: I intended to offer an amendment to this SAKAKIHARA: I move that we agree to the amendment section. Will the previous question shut me off? to Section 3. JUNE 13, 1950 • Morning Session 405 PHILLIPS: I second the motion. When we rose on Friday to report progress and beg leave CHAIRMAN: It’s been moved and seconded the amend to sit again, we had before us an amendment to Section 3, ment to Section 3 be adopted. Committee Proposal No. 7, introduced by Delegate Sakaki hara. The Chair stated at that time that he felt the amend SAKAKIHARA: The amendment reads as follows: ment might not be in order inasmuch as the first section The chief justice and four associate justices shall be dealt with an amendment previously voted down that had elected by the qualified voters of this state on a nonpar been introduced by Delegate Fukiishima, and the second sec tisan designation at a regular election in any odd-numbered tion is one covered at least in part by Delegate Fong. How year in which a governor is not elected. They shall hold ever, there is a slight variation and it’s the feeling of the office for a term of eight years, beginning on the first day Chair that perhaps the amendment itself should be debated of January following their election. No person shall be and the wishes of the Convention followed. eligible to such office who shall not have been admitted to practice law before the supreme court of this state for ANTHONY: I think that’s a correct ruling of the Chair. The statement is from the Judiciary Committee, Mr. Chair at least ten years. Judges of the circuit courts shall be appointed by the man. chief justice of the supreme court with the concurrence CHAIRMAN: Thank you for the vote of confidence. The of two of the justices thereof, for terms of six years and Chair will recognize Delegate Sakakihara if he wishes to until their successors are appointed and qualified. They speak on his motion. shall have resided in this state for not less than three years immediately preceding their appointment, be quali SAKAKIHARA: I submitted the amendment to Section 3 fied to vote and be licensed to practice law in all of the of Committee Proposal No. 7 feeling very strongly as I do, courts of this state. They shall be subject to removal believing in the separation of our government into three for cause by the chief justice with the concurrence of two branches. I’m opposed to making the judiciary subservient justices. to the executive department and the legislative branch of our government. Under the terms of Section 3 of Committee CHAIRMAN: It would seem to the Chair that this incor porates the two amendments that have been defeated. It in Proposal No. 7, you will precisely do that, vesting the power corporates in one section the first amendment that was of of appointment of the judiciary to the governor of the Terri fered, and in the second section, the second amendment. tory and that appointment is subject to the confirmation of the Senate of the State of Hawaii. SAKAKIHARA: If the Chair will recall, during my state The judiciary is a body which is separate, distinct and ment this morning, I proposed to offer an amendment, apart from the executive and legislative branch of the gov and this is the amendment I had in mind this morning to ernment, and as a branch of the government should be solely present to this Committee of the Whole at this afternoon independent and made answerable to the people of the State session. of Hawaii, not to be made answerable to the executive branch HEEN: I move that the committee rise, report progress, of the government or to the legislative branch of the govern and ask leave to sit again. ment. I submitted the amendment so that the people of the State of Hawaii may by their ballot exercise their franchise CHAIRMAN: The specified time that Delegate Mizuha had and say who shall head the judiciary branch of our govern requested was 9:00 Thesday morning. Is that agreeable to ment. you, Delegate Heen? You allow under Section 3 the appointments, and under HEEN: All right, I’ll withdraw my motion. the terms of our supposed Bill of Rights and the report of the CHAIRMAN: Well, no, your motion will have to stand. Committee on Executive Powers and Functions that the gov The other motion was withdrawn. The only thing is that he ernor of the Territory of Hawaii shall be elected by the peo had specified a time. I asked if you would please specify a ple of this state, and one of the recommendations to be filed time. Withdraw the motion altogether? by the Committee on Legislative Powers and Functions that the people of this state - - qualified voters of the State of SAKAKIHARA: Would the motion made by Delegate Mizuha, Hawaii, shall elect the legislature. But when it comes to the would it now be in order? judiciary branch of our government, by the precise language CHAIRMAN: No, he has withdrawn that motion. contained in Section 3 of Proposal No. 7, you say to the peo ple of the State of Hawaii, “You are incompetent, you are not SAKAKIHARA: That will not preclude me or any delegate fit to select your judiciary branch of the government.” to make a similar motion, does it? Under the terms of the amendment the qualified voters of CHAIRMAN: Any delegate may make a similar motion. this state will say at the polls by their respective ballots who shall be the chief justice of the supreme court, who shall be SAKAKIHARA: In that case I make a motion at this time the four associate judtices of the supreme court. And in that the Committee of the Whole rise and report progress order to divorce politics—if any politics is to be connected and beg leave to sit at 9:00 Thesday morning. as pointed out by the chairman of the Judiciary Committee — CHAIRMAN: Is there a second? the courts which come in direct contact with the public will MIZUHA: I second the motion. be appointed by the chief justice with the concurrence of two associate justices of the supreme court under the terms CHAIRMAN: All those in favor please say “aye.” Op of the amendment, thereby divorcing the judiciary from the posed. So carried. executive and the legislative branch of our government. My amendment differs from that one offered by the dele gate from the fifth district, the honorable Speaker Fong. JUNE 13, 1950 • Morning Session His amendment would have required the election of a chief justice, who will name his judges with the confirmation of CHAIRMAN: Committee of the Whole, please come to the Senate. I am divorcing entirely the judiciary from the order. executive and the legislative branch of the government. 406 JUDICIARY I am sure the people of the State of Hawaii will be com of the group. Now, how much do you estimate it would cost petent, will be very careful, in the selection of their branch the chief justice and the four associate justices to campaign of government, whether it be the judiciary, the executive or for an election? the legislative, and it has been proven by some 34 states in the Union that such is the case. They still elect their judges. SAKAKIHARA: I believe that the campaign expenses could I’m sure the people of the State of Hawaii will be men and be kept to a minimum, compared to that of the campaign ex women who do understand their neighbors, who do understand penses heretofore involved by the delegate to Congress —I’m their people, who do understand the judges and the character serious about it, it’s not a laughing matter—because the cam of the lawyers who will offer themselves as chief justice or paign will be carried on at a high level. Fm sure that the associate justices of the supreme court of this State. campaign for the office of the supreme court justice differs I’m suze it is not necessary for these candidates running from that of the office of the, governor or the legislature. I for chief justice or associate justices to campaign on par believe there will be candidates, men and women of high in tisan politics. They could carry on a dignified campaign of tegrity and character, that they will not reduce themselves fering themselves to the offices of the supreme court because to the level of ordinary political campaigns as ordinary poli they are men and women who would have been tried in the ticians do. eyes of the public, their standing in the community, their record as lawyers speaks for itself. The finest example is A. TRASK: We’re not getting into the merits of whether the intelligence and the ability of the people of the fourth dis or not - - trict who have demonstrated in the February and March CHAIRMAN: The Chair will be glad to recognize you, elections for delegate to this Constitutional Convention. They Delegate Trask. went out and selected the best available candidates, men of integrity, men who have been tried as competent lawyers A. TRASK: Thank you, Mr. Chairman. and judges, as delegates to the Constitutional Convention Without going into the merits about the level, high or low, from the fourth district. of politics and politicians, would the delegate give an esti I submit, Mr. Chairman and members of the Committee mate in money, how much it would cost the individual justice, of the Whole, that it is the American way and the democratic because I might be interested in running for this office, and way to allow the people, free-thinking American people, to I would like to know in dollars how much it is. go to the polls and exercise their franchise to the fullest ex tent and by their ballots express as to who shall be elected SAKAKIHARA: Your guess is as good as mine. as chief justice and associate justices of the supreme court CHAIRMAN: Will you please keep order. of the State of Hawaii, to entrust the interpretation of the laws of the State of Hawaii, to construe the Constitution of BRYAN: I’d like to point out, while the Chair rules this the State of Hawaii and of the United States of America. I’m amendment is in order and covers a slightly different sub sure these people will by their ballots say to the candidates ject than the amendments that were proposed when the sub aspiring for these offices that you are the men and women in ject came up before, that the proposer has by his own words whom we repose our confidence and entrust the destinies of brought this back to the same thing we talked about Friday, our supreme court. that we voted on. I respectfully submit that the amendment is a good one. It limits the term of office to eight years for the supreme TAVARES: I’ll be very brief. I’m getting a little tired court justices, long enough so that the supreme court justices about this argument about not trusting the people. The very will not play politics. They are far removed from the public, requirement that we have to have a written constitution in only cases of appeal nature will go to the supreme court. The this country is a requirement which shows that we don’t trust term of office for the circuit court justices are made long, the people’s hasty actions. If we can trust the people in six year terms. They will be removed from politics because every respect, all the time, then why do we even need to have they will be made answerable to the supreme court of the a written constitution. I say that the very existence of a State of Hawaii in their conduct, in their integrity, and en written constitution presupposes a lack of confidence in the lightened public opinion will not allow them to serve as judges people’s actions which may be hasty at some times. of the circuit courts without bringing the matter before the at Secondly, why do we have to have a Bill of Rights. The tention of the appointing officer, the chief justice of the su very people here who are most vociferously in favor of ar preme court. guing for trusting the people are the ones just as strong in I submit that the amendment deserves the serious con favor of a strong Bill of Rights. Now, what does the Bill of sideration of this committee. I say to you with all sincerity Rights mean? It means that it must protect the minority that if the people of the State of Hawaii could be entrusted because we don’t trust the majority. Therefore, I submit with election of the governor of the State of Hawaii, who is that the argument that in arguing for an appointive system vested with extra-ordinary power, far more than those vested we don’t trust the people, is just as unsound or just as sound presently to governors of various states of the Union, then as it would be against the Bill of Rights, and I think it ought I can say truthfully to every voter of this territory that the to be dropped. people could be trusted in the exercise of their ballots and There are some things in which we know that the people election of the supreme court justices of the State of Hawaii, are not able at the time to act always with full knowledge and I ask you delegates to support the amendment. and full understanding of the situation. And that is the reason why, among other things, we require and we ask that judges A. TRASK: Will the delegate yield to a question? be appointed. CHAIRMAN: The question was, will the delegate yield to There is one more thing, and that is, that when we were a question? Will Delegate Sakakihara answer a question? in committee, at the request of the proponent of this measure, we held up a vote on the elective and appointive system so he SAKAKIHARA: I’ll be glad to, Mr. Chairman. could hear from the bar of Hio. He was very much concern A. TRASK: The chief justice and the four associate jus ed about hearing from it. The bar of Hilo voted ten to one tices will naturally be obliged to campaign over the islands for appointive judges but he didn’t change his mind. JUNE 13, 1950 • Morning Session 407 FUKUSHIMA: As I have already said, all I’m interested portant document? I think you’ll agree, Mr. Tavares, we in is a strong judiciary. I feel, still feel, that the election have come a long way, let us say since 10 or 15 years ago, of judges is it. In fact, I argued it so strenuously as perhaps so there is much more hope for our people here. I would like to incur the wrath of our learned chairman of the Judiciary to have the delegates please say a word on that. Committee. But at this time I’d like to state that any judici CHAIRMAN: Did you have a question? Is it on the amend ary to be strong cannot be one of compromise. Here this is ment? exactly what we have, the election of our supreme court and the appointment of circuit court by the chiei justice with the AKAU: Mr. Chairman, it’s not directly on the amendment. concurrence of two of the associate justices, which meets the CHAIRMAN: if it’s not on the section - - on the amend same ill which I pointed out with the second amendment pro ment, the Chair feels that we ought to go on and discuss posed by. the delegate from the fifth district. In such a thing things relative to the business before us. as a constitution, there should not be a compromise. We compromise certain things. if I came to a legislature and LEE: I notice that Delegate Gilliland wanted to speak. asked for an appropriation of $1,000 and I could get $500, Unless there were other speakers, I was going to move the I’d take that $500, yes. But for a constitution which sets up previous question. a fundamental basic law, we should not compromise, just as we will not compromise our principles. GILLILAND: I have been in politics since 1925. I have run for the office of city and county attorney some years ago We should not have a scrambled judiciary, which this and served two terms and I think I know what I’m talking amendment is, or an omelet judiciary or a chop suey judici about. if a man is a candidate - - if a lawyer who is a can ary. I am for the election of judges, period, paragraph, full didate for judgeship must depend on the electorate to vote stop, nothing else, but I will not let the electorate say that him into office, I’m certainly opposed to any election of any I did not provide in our Constitution a judiciary article. judge. I want to say that in my experience in running for Since the appointment system will be carried overwhelm the office of city and county attorney, I received donations ingly I will now go with the appointment system, but I also from friends, and I want to say this, that some of these have another amendment which I’d like to offer on the ques friends, when it came to handling some of their cases, ex tion of tenure. I’d like to make this statement right now so pected me to return the favor and have the case dismissed. that I will not be foreclosed from presenting my amendment I want to say also that the man who runs for office, the by a motion for previous question after I finish. office of judge—if this Constitutional Convention is going to My amendment merely amends the second paragraph of provide for election of judges —he’s got to look forward to Section 3 of Committee Proposal No. 7. It reads, “The jus the question of how much money it will cost him to run for tices of the supreme court shall hold office for a term of that particular office, how many favors he will have to dish eight years and the judges of the circuit court shall hold out to the electorate, how many political factions he will office for a term of six years.” have to deal with, and he will have to worry about finding his I feel that the original, proposal, the committee proposal, expenses for the next election. calling for the six year and twelve year tenure is a little too I say that in our Constitution, we should provide for the long. I am mindful of the fact that the tenure should be long election of judge - - for the appointment of judges and not to attract good attorney candidates, but, however, a long ten for the election of judges. ure for judges may tend toward judicial stagnation, due to lack of incentive. Here I have also provided for the longer CHAIRMAN: State your question. tenure for supreme court justices and a shorter one for the PHILLIPS: if you say you don’t approve of election of circuit court judges. In all the states - - most of the states judges —- LEE: Will the speaker yield to a point? It might be wise CHAIRMAN: Will you speak to the Chair, please. to speak on the subject after we vote on the amendment pro posed by Delegate Sakakihara. PHILLIPS: I would like to talk directly to him because the question is to him. CHAIRMAN: I think that’s proper. CHAIRMAN: The Chair will put the question. PHILLIPS: I rose to a point of information. As a result of Delegate Bryan’s inquiry, I’m confused now as to whether PHILLIPS: I would like to know then, if he is not in favor there is actually a motion and a second on the floor of Dele of the election of judges, would he have the chief executive gate Salcakihara’s amendment. have complete control over the appointment of judges with out any kind of a check on his appointment, and he generally CHAIRMAN: As the Chair stated at the beginning of the gets his recommendation for appointments from a political session, Sakakthara’s motion is now on the floor; it has been party or political adviser? I would like to know then, would moved and seconded; it was the other day before we closed he approve of the chief executive, the chief of patronage in debate. The debate is now on the motion to Section 3. the state, would he have him be solely responsible for the PHILLIPS: Thaak you, Mr. Chairman. appointment of judges, which I feel is comparable to the election of judges? AKAU: I do not wish to speak directly to the amended motion by Delegate Sakakthara, but I do want to say a word CHAIRMAN: Would you care to answer that, Delegate regarding Delegate Tavares’ statement. I think we all thor Gilliland? . oughly agree that there are many things regarding the judi GILLILAND: The governor will be elected by the people, ciary as well as other sections which will not be very clear and any appointment he makes he will certainly take the to John Q. Public. It’s not within his grasp, we agree. But advice of the judiciary, members of the Bar Association, the I would like to ask Mr. Tavares, if I may, Mr. Chairman, people at large, and any appointment he makes will be sub isn’t it up to you and me and all the rest of us to help, to ject to the confirmation of the Senate. explain, shall we say, even to educate slowly but surely, so that the people will grasp the significance of this very im LEE: I move the previous question. 408 JUDICIARY PHILLIPS: Then along that same line of reasoning, I and then appointed for a term of 12 years, a period of 18 would like to ask the delegate from the fifth district why years, is a long period. It’s a question of drawing the line certain states have found it necessary to create commissions as to the dangers of having short term appointments as weil which would involve laymen and all other complicated machin as having judges appointed so that they develop corns in their ery to prevent this very thing which he felt sure that he had posterior. I believe that the amendment is in order. I spoke precluded. Why is it that Missouri and other states, Cali to the chairman of the committee of one of these things that fornia, would care to create a commission who would certify I felt the tenure was a little too long, but I’d like to say that three names to the chief executive, and through that com I am in support of the amendment. mission be able to cut out this patronage which everybody is aware of? A. TRASK: I am in favor of the amendment offered by Delegate Fukushima. The amendment seeks to make the ten ANTHONY: I think the question addressed by the last ure of office for justices of the supreme court eight years speaker is not germane to the amendment. It may be a good and for circuit court judges six years. The second section question later on, but I suggest we confine ourselves to the - - the second paragraph of Section 3, which this amendment amendment. seeks to modify, provides that the judges of the supreme and HOLROYDE: I second Senator Lee’s move for the previous circuit courts shall hold office for a term of six years and question. upon their reappointment shall hold office for a term of 12 years. CHAIRMAN: The motion before us is, shall the previous I am reminded of a great jurist, Albert Moses Cristy. question be put? All those in favor say”aye.” Opposed. He was appointed by - - for a term of at least 20 years. He Carried. was appointed by five presidents, having i9 mind terms of The question now is on the adoption of the amendment of four years each. He said that a judge should be sought, the fered by Delegate Sakakihara. All those voting in favor will man should not seek the office. And I think if we put that be voting in favor of the amendment; those voting in the nega and use that as a yardstick of measurement for office with tive would be voting against the amendment. All those in out the reappointment for a term of 12 years, I think we favor say “aye.” Opposed. Amendment is lost. would make the judges more acutely aware of what is going We are now back on Section 3, as it stands. The Chair on in the community. will recognize Delegate Fukushima. We are concerned about judges, some of them who limit FUKUSHIMA: I don’t have very much to say, but I have their activities merely to the fourth district. Very few judge~ the amendment already circulated. I believe it’s on the dele go into the fifth district, see what’s going along in the slums, gates’ desks. If you will note - - the alleys, byways. Judge - - Associate Justice Peters made a remark some time ago in tribute to the district courts, CHAIRMAN: The Chair would like to state, Delegate Fuku that because you appeal to the supreme court, it doesn’t mean shima, that the amendment you offered was not seconded so the supreme court has superior knowledge of social condition that we can get it before - - existing in the community. I do feel strongly, therefore, that there should be some etching, needling incentive, and that the SAKAKIHARA: Second that. shorter term as provided by the amendment I think would CHAIRMAN: Will you make the motion, then I’ll recognize help make our judges acutely aware of conditions, have them the second. get down and mix around and increase their humanity, as Judge Cristy had. He mixed with the people, he talked with FUKUSHIMA: I move at this time that the amendment the jurymen, he was out in the lobby of the court constantly which I have distributed be adopted. talking with everybody. That’s the kind of judge we would The justices of the supreme court shall hold office for want to have, and although I sympathize with the elective a term of eight years and the judges of the circuit courts system, I feel that the humanity of judges will be better shall hold office for a term of six years. maintained with a shorter tenure. SAKAKIHARA: Seconded. CHAIRMAN: Before the Chair recognizes any other speaker, I’d like to state that we have in the audience one CHAIRMAN: The amendment to Section 3, Proposal 7, has of our distinguished members of our legislature, also a been.made and seconded and is before you now. fellow Kauaian. I wouJ,d ask the Sergeant at Arms if you FUKUSHIMA: As you will note, in the amendment I have would please escort Delegate Marcelino to the rostrum - - provided for two categories; that is, the supreme court jus Representative, pardon me. He should have been a delegate. tices will serve a term 01 eight years, and the judges of the There’ll be a short recess. circuit court for a period of six. I made this distinction be cause I believe in most of the states it is customary that the (RECESS) judges in the upper court have a longer tenure. I believe that the proposal as submitted, calling for a period of six ANTHONY: [Beginning of speech not recorded.J . . . on years, does not make the differentiation between the circuit the committee proposal which provides for long tenure and court judges and the supreme court justices, and the re upon reappointment a term of 12 years. Now in the first appointment portion which gives the judges or the justices place there is no valid reason for making any distinction a period of 12 years is a little too long. I feel that even for between the tenure of a judge on the circuit court and the a re’appointment the original tenure should prevail. tenure of a judge of the supreme court. It is equally im LEE: At this time those who have supported the com portant that both courts have long tenure, and had I obtained mittee report, the majority of us, there were some phases the support of the majority of the committee, I would have of it which - - some of us didn’t give as much attention as been addressing you on the subject of life tenure. possible to this particular question. For myself, I’d like to Now what is the purpose and purport of this amendment? say that I’m in favor of this amendment. I do believe that the It is simply an attempt to stir up recurrently, every six or tendency of having a judge appointed for a term of six years eight years, the appointment of the judiciary. Now if you will JUNE 13, 1950 • Morning Session 409 examine the list of states, you will find the strongest juris CHAIRMAN: Chairman of the Judiciary care to answer dictions have longer tenure as provided in the committee that? proposal. The federal system, as you all know, is life tenure; ANTHONY: Upon the making of a new appointment, the the State of Pennsylvania is 21 years for the supreme court; appointee will get the terms specified in the provision, the and you can go on down the line. Every state that has a full term. There is no attempt, in fact it is not even desira - strong judicial system has a long tenure. Now the reason I ble, to stagger the terms. You stagger the terms when ap opposed this amendment—and I opposed the other one which pointing or electing a public utilities commission in which is equally, if not worse, more obnoxious, that is currently you want a continuous - - a body that is more or less continu being circulated —is, it is going to make the judiciary some ous. That has no application to the judicial system, in my kind of a political football. judgment. Now I think that we have reached a happy medium here between life tenure and long tenure. All competent authori A. TRASK: The statement was made by Delegate Tavares ties on the judiciary agree that in order to have a good judi that he saw no difference—and apparently in Section - - para ciary you have got to have security in office and long tenure, graph 2 there is no difference—with respect to the tenure of and the proposed amendment will be an inroad on that basic the supreme court justices and the circuit court judges, principle. Therefore, I think the Convention should vote namely just six years. I was just wondering whether or not against it. this reappointment refers only to that particular supreme court or circuit court. I’m having in mind this situation. CHAIRMAN: Anyone else wish to be heard? Say if a circuit judge has been on the bench and at the con clusion of his six years, he is appointed to the supreme court. TAVARES: Just one more thought. If anyone takes the Now, if the thought that there is no distinction and there should trouble to read the newspapers he will find that the one court not be and it is the sense that there is no distinction, a judge that people like to get into if they can, where liberal attitude is a judge, should - - would there be opportunity for the con is desired, is the federal courts, and they have life tenure. tention that upon his elevation to the supreme court it would The most liberal court in the United States today is the court be in the nature of an reappointment, and therefore be en - - the Supreme Court of the United States and the lower titled to 12 years? courts who hold office for life. As I say, if you will read the papers you will find that the first place that people want to ANTHONY: I think the language of the article and the go when they want the most liberal court possible is to get clear intention of it, as well as the understanding of the com into the federal courts. mittee, is that that case would be a new appointment. In other words, a circuit judge elevated by appointment to the Now, when New Jersey adopted its split term system of supreme court would then have a new appointment as justice seven years and then life, the American Bar Association of the supreme court, and upon his reappointment he would Journal, which I think represents the thinking of the Ameri then serve for an additional term for 12 years. can Bar Assodiation, had an editorial which was entitled, “New Jersey Goes to the Head of the Class.” ROBERTS: I’d like to speak to the amendment which pro True separation of power lies not so much although some vides for a term of eight years for judges of the circuit - - what, in the method of appointment -- well not so much. As excuse me, for the supreme court and six for the circuit a matter of fact, I don’t think it lies in there at all. It lies court. As I got the objection by the chairman of the Judiciary in the security of tenure given to the judges after they get Committee, that objection is to the differing lengths of the into office. The members have cited here examples of terms, as the circuit court and the supreme court should where presidents have put in jud~es who they thought would have the same length of term. Now the committee proposal follow their views, and as soon as those judges had security provides for only six years. I’m in favor of longer tenure. of tenure they used their own judgment and they were inde I could support a proposal which would provide for eight pendent. I say that giving these judges short terms will tend years initial term of the supreme court, but I’d like to have to reduce their independence below what it would be if you the terms identical with the circuit court. I therefore would gave them long tenure. amend the proposal - - amend the amendment to have a uni Now one more thing. Something was said about removing form eight years for both the supreme court and for the cir judges if they got too tired, they became too much kamaaina. cuit court. Some people know the definition of “kamaaina,” about how CHAIRMAN: Is there a second to that amendment? the blood in your veins turns to lead in the lower part of the anatomy. The provisions of this article for liberal removal TAVARES: Mr. Chairman, I - - will tend to take care of that. We have provided liberal re CHAIRMAN: Is there a second to that amendment? moval provisions, and that is the thing that will take care of that situation. PHILLIPS: I second it. I hope that the members of this delegation vote against CHAIRMAN: The amendment’s been seconded. the amendment. Will you state now, Delegate Roberts, will you please state your amendment as it would read? CHAIRMAN: Anyone else wish to be heard? ROBERTS: The amendment would read that, “The justices RICHARDS: There’s something that isn’t quite clear in of the supreme court and the judges of the circuit courts shall my mind and I would like to ask the chairman of the commit hold office for an initial term of eight years and upon re tee. I notice that in all of the proposals for a lengthy term appointment shall hold office for a term of 12 years.” It of office, there is nothing regarding any staggered term. provides for a longer term, but uniform term. Is it the expectation that each time there is a resignation or CHAIRMAN: Did you say for “an additional term of eight a removal and a new judge is appointed, he will receive ap years”? pointment for the full term and in that way obtain the stag gered possibility, or do they merely fill out for the balance ROBERTS: I assumed that the amendment covered the of the term? That is not clear. reappointment in paragraph 2 of Proposal No. S - - Section 3. 410 JUDICIARY FUKUSHIMA: In proposing my amendment, it does not in favor of longer tenure and I could support a proposal whici foreclose the justices of the supreme court and the judges of would provide for eight years for initial terms but I would hR the circuit court for reappointment, but the period - - the to have the terms identical for circuit courts also. Now, I tenure of the reappointment remains the same as the initial would therefore amend the amendment to have a uniform eigi period; in other words, eight for the supreme court justices years for both the supreme court and for the circuit courts.” and six for the circuit court judges. ANTHONY: I took down the amendment, I can read it if TAVARES: Before vote is brought on any of these pro the Chair would like to have me read it. posed amendments, I would like to make one more suggestion; and that is, if it is the sense of the maj ority of this Convention CHAIRMAN: Would you, please? that the term should be, at least for the moment say six or ANTHONY: Delegate Fukushima’s amendment as amendec eight years, then it should be provided that they should be for by the motion of “Justice” Roberts. “The justices of the su not less than those periods so that the legislature might be preme court shall hold office for a term of eight years, and able to lengthen the terms, because I sincerely believe, and the judges of the circuit court shall hold office for a term of I think your authorities that have studied this question uni eight years, and upon reappointment, shall hold office for a versally agree, that longer terms produce a better judiciary. term of 12 years.” KAGE: I am in favor of a long tenure for the judges and CHAIRMAN: Does Delegate Roberts agree that that was so I should vote for the eight years tenure instead of the six the motion the way he stated it? years, and make the amendment that when he is reappointed, ROBERTS: That’s substantially correct, Mr. Chairman. he should be reappointed for 12 years, but I shall not make the amendment. We believe - - PORTEUS: I’m much in sympathy with the point that one of my colleagues from the fourth district made this morning CHAIRMAN: I believe that amendment has already been about a way of getting at particular motions by votes. As I made. understand the amendment that was offered by the delegate TAVARES: I’ll second Mr. Roberts’ motion. from the fifth district, he offered it on the theory that he wanted some difference in term between the circuit court KAGE: Then I would like to speak against the motion - - judges and the supreme court judges. That he accomplished. the amendment. We believe in three distinct departments. However, his amendment had two - - was twofold in purpose. If our appoint - - the term of office is for eight years, then It was also designed to eliminate the 12 year reappointment. the appointment will fall upon the year that the governor is My colleague from the fourth district very delicately has in elected, and therefore the judiciary will become dependent serted back into the amendment, in order to nullify one of upon the executive. I would rather see six years because the purposes of that amendment, the reappointment for 12 the governor is already in office. years. MIZUHA: We have heard a great deal about the indepen Now if that’s a fair parliamentary maneuver, then it is als dence of the judiciary. What more could we want, if we had a fair parliamentary maneuver to move that that amendment a long term for our judges, to give them that independence be further amended, and unless we get a straight vote on the and give us that basis of the separation of powers in gov delegate from the fifth district’s amendment with an amend ernment between the judicial department and executive and ment to that only for eight years and not for reappointment, the legislative branch. And as the proposal now stands, the I’m going to move that we amend that amendment further to initial appointment of six years, if the governor or the peo knock out the 12 year reappointment, because it is striking ple or the bar feel that that judge should not be reappointed down part of the purpose of this other amendment. If you for a long term of 12 years, then that is the time, through want the 12 years, let’s get a separate vote on the 12 years. their representatives in the legislature, in the Senate, to But in this way, it’s being maneuvered in such fashion that fight confirmation of the judge whose initial term has not been you have to take two things at once, and I am in agreement so proper as to indicate a need for his reappointment. And that we want to separate these matters out so that we can if we are to follow the doctrine of separation of powers, then ascertain the will of the delegates. the second appointment of our judges should be for a longer term to give them the independence they need. HEEN: Then as I understand Delegate Roberts’ amend ment, it’s simply this: substitute the word eight for six in CHAIRMAN: Ready for the question? line two. In other words - - BRYAN: I’d like very much to know what the question is. CHAIRMAN: Of the original Section 3, that would be cor rect. CHAIRMAN: The Chair is about to state the question. We are dealing with Section 3. To Section 3, the following ROBERTS: The purpose of my motion was not to frustrat amendment was offered by Delegate Fukushima: “The jus the proposal put in the form of an amendment by the delegate tices of the supreme court shall hold office for a term of from the fifth district. As I understood the discussion, the eight years, and the judges of the circuit courts shall hold objection raised by the Judiciary Committee was for unequal office for a term of six years.” To that amendment, another terms, and since the amendment provided for an eight and amendment was offered by Delegate Roberts; that amend six, I merely moved the amendment to provide for uniform ment reads - - The Clerk will read the amendment, please. eight year terms, which provides for a longer tenure on first appointment. The original proposal provides for re CLERK: “I would like to speak for the amendment which appointment, and therefore my motion did not repeat that. provides for a term of eight years for judges of the supreme If the delegate from the fifth uould like to get a vote on his court and six for the circuit court. As I get the objection of proposal, I’d be very happy to withdraw my amendment to the chairman to the Judiciary Committee, that objection is permit his presentation. Now my assumption was, and ap to the differing lengths of the term, that the circuit court parently it’s an incorrect one, that the author of the motion and the supreme court should have the same length of term. wanted a longer tenure for the supreme court justice for The committee proposal provides for only six years. I am eight years and a six year term for the circuit court. JUNE 13, 1950 • Morning Session 411 CHAIRMAN: The Chair asked a while ago if Delegate amendment; the negative will be voting against the amend Fukushima’s amendment was one on reappointment and was ment. Will the Clerk please call the roll. informed that it was, rather than on the original tenure of office. Is that correct, Delegate Fukushima? Or is this to KAWAHARA: As I understand it, if we vote once, does it replace that paragraph of Section 3? mean that we’re voting for the whole amendment? CHAIRMAN: Will you speak into the microphone, please. FUKUSHIMA: This amendment which I have proposed I couldn’t hear you. would substitute this wording here for the second paragraph in Committee Proposal No. 7. KAWAHARA: Do we have two separate amendments? CHAIRMAN: Thank you, then the Chair was in error. CHAIRMAN: No, there is only one amendment now before us. That is the amendment on tenure of office, original ten LEE: And in order to get a straight vote on that, Mr. ure of office of seven and six years as proposed by Delegate Chairman, I suggest that Delegate Roberts withdraw his Fukushima, amended by Shimamura, and accepted by Dele motion. gate Fukushima. Those voting “aye” will be voting for the CHAIRMAN: Before he does that, the Chair would like to amendment. Those voting “no” will be voting against it. recognize Delegate Nielsen who had asked to speak. HEEN: The Chair has just stated that the amendment was on the original appointment. That contemplates another term NIELSEN: Well, I had a point of order but as long as we’ve for reappointment, but this is a period of tenure that will con gone along, I’ll skip it. I think we had about three amendments tinue all along the line, whether it’s the original appointment on there and we can’t stack them that high. or a subsequent reappointment. CHAIRMAN: I realize that we can’t stack them that high, CHAIRMAN: That’s correct. The Clerk will please call but we haven’t gotten that high. There have only been threats the roll. of amendments. Ayes, 32. Noes, 29 (Anthony, Apoliona, Arashiro, Bryan, ROBERTS: I had previously offered to withdraw the Castro, Cockett, Corbett, Dowson, Hayes, Heen, Holroyde, amendment. In light of the statement made that the purpose Kage, Kanemaru, Kawakami, Kellerman, King, Larsen, Loper, was to replace the sentence in the second paragraph of Sec Mizuha, H. Rice, Richards, Roberts, Smith, Tavares, White, tion 3, I will withdraw the amendment. Wirtz, Wist, Woolaway, Crossley). Not voting, 2 (Sakai, CHAIRMAN: The question then is on the amendment as Sakakihara). proposed by Delegate Fukushima. CHAIRMAN: The amendment has carried. ANTHONY: Just one point that should be borne in mind. NIELSEN: I’d like to ask a question of the chairman of One of the purposes of having seven years in the New Jersey the Judiciary; it comes from the New Jersey Constitution. Constitution for the initial term, and our committee proposal agreeing on six years, was to avoid an appointment in a year I’d like to know what discussion they had on that phase of in which the governor runs for election. Now if you are the New Jersey Constitution which reads, “No nomination going to put in eight, then you are going to run into periods to such office shall be sent to the Senate for confirmation until after seven days’ public notice by the governor.” of appointment when the governor is running for election. We thought that undesirable. CHAIRMAN: What section are you speaking on, please? CHAIRMAN: That was the point raised by Delegate Kage; there was no second to either his motion or suggestion. NIELSEN: Well, it’s in the same - - it would be in the The question now is on the amendment. The amendment same section of our Constitution. If they have the proper as proposed to substitute for the last paragraph of Section 3, explanation, I won’t make it as an amendment, but I wish proposed by Delegate Fukushima, reads: “The justices of to make an amendment. the supreme court shall hold office for a term of eight years, ANTHONY: That’s in the committee proposal, Mr. Chair and the judges of the circuit courts shall hold office for a man. term of six years.” Ready for the question? All those - - CHAIRMAN: Would you care to answer, Delegate Anthony? SHIMAMURA: I move that the amendment be further amended by striking out the figure “eight” in the second line ANTHONY: Section 3. “No nomination to such office shall and insert in lieu thereof the figure “seven.” be sent to the Senate until after ten day&’ public notice by the Governor.” Section 3. KAM: I second that motion. NIELSEN: Thank you. CHAIRMAN: It’s been moved and seconded that this amendment be further amended. ASHFORD: I was a little bit concerned, and I still am, over this language in the last sentence of the first paragraph FUKUSHIMA: I’ll accept that amendment. of Section 3. “No persons shall be eligible to such office who shall not have been admitted to practice law before the su CHAIRMAN: He has accepted the amendment. The sec preme court of this state for at least ten years.” I am in tion now reads - - The amendment now reads, “The justices formed by the chairman of the committee that it is proposed of the supreme court shall hold office for a term of seven that some provision shall be made to cover service as a years, and the judges of the circuit courts shall hold office member of the bar of the Territory; otherwise, we would have for a term of six years.” Are you ready for tin question? no one eligible to serve as judges, and that is before another SILVA: Roll call. committee. I’d like to check on that if the Chair would be kind enough to do so. CHAIRMAN: All those desiring roll call, please raise your right hand. Sufficient number. The Clerk will please CHAIRMAN: Would the chairman of Judiciary please call the roll. All those voting “aye” will be voting for the answer that? 412 JUDICIARY ANTHONY: We debated that in committee and the techni CHAIRMAN: On a judicial council. cal difficulty was in using the expression “State and Terri tory” and we concluded the simplest thing to do was to see PHILLIPS: J’m talking about a judicial commission. to it that in the miscellaneous section of the Constitution, CHAIRMAN: Are you proposing an amendment to Section where this problem will come up not only with the judiciary 3? but elsewhere, that an appropriate section be incorporated in the Constitution to take care of the delegate from Mob PHILLIPS: I’m asking a question of the committee chair kai’s question. man as to why a judicial commission was not considered. I wondered if he could answer us as to why a judicial com CHAIRMAN: Is that satisfactory? mission is not in there. What is your pleasure on Section 3? CHAIRMAN: The Chair will put the question, but before AKAU: In the first section - - in Section 3, between the putting the question, what is your point, Delegate Arashiro? first and second sentence. In explaining the other day, the chairman of the Judiciary said that there would be hearings ARASHIRO: I had an amendment that I wanted to submit. for people who wish to come, regarding this statement. Now CHAIRMAN: It will be - - P11 recognize you next. Some - then, I’d like to ask him a qaestion, if I may, Mr. Chairman. one had the floor; they were speaking on the section; they CHAIRMAN: Proceed. have asked a question of the chairman of the Judiciary. Would you care to answer that, Mr. Anthony? / AKAU: Would the public hearing, since they would be provided, what would happen if the citizenry didn’t approve ANTHONY: The delegate that last spoke said, why wasn’t of the nominees that had been already suggested? Is there the matter of a commission or a council considered. As a any provision for that sort of thing or it just doesn’t have matter of fact, it was considered and written into the report, any effect? the reasons why. In fact there was a division seven to eight whether or not there should be a judicial council, and inci CHAIRMAN: Delegate Anthony, would you care to answer? dentally, the expression “council” is no different than “com ANTHONY: I think the Chair could answer it better than mission.” If the Convention wants a council, they can vote I. That’s simply a question whether or not the citizenry on it, but the reasons are stated in the report why we didn’t can make their voice heard and felt in the vote in the Senate recommend it in the proposal. on confirmation. If they’ve got good arguments, they can ARASHIRO: I have an amendment to offer at this time, satisfy the Senate that the confirmation should not be approved. an amendment to read as follows, and - - CHAIRMAN: I might point out to Delegate Akau that it’s CHAIRMAN: Has this amendment been circulated? not a public hearing, it’s “public notice.” ARASHIRO: Circulated. PHILLIPS: I feel at this time that there is little doubt in our mind about whether we should have appointment or Section 3. The chief justice of the supreme court shall election of judges, and I think due to that fact, and I believe be elected by secret ballot of the joint committee of both that the reason why we are chiefly concerned with why we houses of the legislature with equal representation from should appoint judges is to see if we can eliminate any poli each county, the names to be submitted to the legislature tics or partisanism from the appointment of judges. Now, 30 days prior to the election as provided by law. The due to that, I’d like to ask the chairman of the committee if other justices and judges of the circuit courts shall be he - - or why that committee hasn’t taken into consideration appointed by the chief justice by and with the advice and the value of a commission, a judicial commission, as is consent of the Senate. demonstrated in the constitutions of California - - The reason for this amendment is that it seems like that CHAIRMAN: The Chair would like to point out that the there was much argument and discussion on the elective sys question of the judicial commission has been voted on. Also, tem - - the elective or appointive system has been voted on, I believe, HEEN: Point of order, Mr. Chairman, point of order. four times - - DELEGATE: Mr. Chairman. CHAIRMAN: What is the point of order-? CHAIRMAN: - - and has been defeated each time; so un HEEN: As I understand it, the delegate is offering an less you have an amendment to offer that is different than amendment and I take it he is moving for the adoption of the the amendment - - amendment. And it’s out of order for him to talk about it unless it’s seconded. DELEGATE: Mr. Chairman. CHAIRMAN: Your point of order is well taken. Is there PHILLIPS: I’m sorry, Mr. Chairman, I don’t yield the a second to - - have you made this in the form of - - floor yet. ARASHIRO: Just a minute then. CHAIRMAN: The Chair will be through in just a moment. Unless you have an amendment to offer, why I would feel No person shall be eligible to such office who shall not that you’re out of order at this time. have been admitted to practice law before the supreme court of this state for at least five years. The chief jus PHILLIPS: I rise to a point of information. tice’s term of office shall be for six years and the other CHAIRMAN: Point of what? justices and judges terms of office shall be for eight years PHILLIPS: A point of information. CHAIRMAN: Is there a second? CHAIRMAN: A point of information? State your point. NIELSEN: P11 second the motion. PHILLIPS: Has the Convention voted or acted upon a CHAIRMAN: The motion is now before us. P11 recognize commission or upon a council? Delegate Arashiro. JUNE 13, 1950 • Morning Session 413 ARASHIRO: The reason for the amendment is that we didn’t, I yield the floor to any speaker that may desire the have discussed and argued on this section for the last two floor at this time. days and we haven’t reached agreement. It seems like we CHAIRMAN: Are you through, Delegate Silva? have quite an opposition for the original section which is the appointive system, and then the amendment that was HEEN: Supposing the legislature adjourns and there is submitted was on the elective basis and also there was quite a vacancy in the judgeship. How are you going to appoint a an opposition, and not only quite an opposition, but it was judge during the interim period between the session that had defeated. just adjourned and the next session of the legislature? So now, I’m offering this amendment which is an amend CHAIRMAN: Delegate Arashiro, will you care to answer ment away from the elective system and away from the ap that? pointive system by the governor. This is an indirect elective system in which the chief ARASHIR~ If the introducer of this amendment has over justice of the supreme court will be elected by the legisla looked those things, we invite some suggestion and idea, ture, whose names will be submitted to the legislature 30 but we are probably going to have an annual session, and if days prior to the election in order to give the legislature not, we’ll have a hold-over committee. time enough to go over the names, the names to be submitted MAD: I was just going to point out that problem which by some body which will be created by the legislature through was raised by the delegate from the fourth district. I think some legislation. this is - - would make it very, very impractical. I want to And then, in this method, I feel that it will iron out all the state to the Convention that the idea of election of judges has points that were brought up by the different delegates in ar been licked on this floor three separate times, and I think guing against the appointive system and the elective system. that those of us who are in the minority ought to bow to the The term of office being six years for the chief justice and majority and let’s get on with our work. eight years for the other appointed judges was to make the appointed judges independent from the chief justice, and LEE: Kokua. I move the previous question. under this system I feel that it will be an independent judi CHAIRMAN: The question is before us, I think. Are you cial department or branch of the government. ready? Without the previous question, I think we can vote on the amendment before us. All those voting “aye” would C. RICE: I’d like to ask a question of the introducer of be voting for the amendment; voting “no” would be voting this. “With equal representation from each county.” He against the amendment. Are you ready for the question? means if the legislature was apportioned the same as it is All those in favor say “aye.” Opposed. The amendment now, Kauai would sit with - - would have as much right with is defeated. two senators and four representatives as the 18 from Oahu. We are now back to Section 3 as amended. Are you ready Is that right? for the - - ARASHIRO: That’s right. FUKUSHIMA: Is there a motion to that effect? C. RICE: There would be four counties. How about if we CHAIRMAN: There has been no motion now to adopt Sec had a tie, two-two? tion 3 as amended. ARASHIRO: The intent of this proposal was that we have FUKUSHIMA: In that event, I move at this time for the equal numbers of representatives from each county. In other adoption of Section 3 as amended. words, if we were to have two senators from - - if we were to decide on two senators, that meant that we will have two R0BERrS: I spoke yesterday and I voted with the majority senators from each of the four counties and then if we would on the question of appointment versus election. I indicated decide on having two House members in this committee, then at that time that my own personal preference was for a com it will be two representatives from each of the counties. mission to nominate names of individuals and for the gover nor to appoint from that panel. The persons so nominated SILVA: Personally I’d like to offer an amendment if it and confirmed by the Senate would then serve in office for would be acceptable. I see no reason to put Oahu in. Just a period of time and then stand for election on a nonpar make it simple and leave Hawaii, Maui, and Kauai, and leave tisan ballot - - Oahu out of it, because the primary purpose, as I see it, would be that the outside counties would really have the power SILVA: I rise to a point of order. I don’t think there is of appointing - - nominating all the judges. That’s what it anything before the Convention now. The motion was made really means; it simmers down to that. to adopt the proposal as amended. There’s no second to that proposal and there’s really nothing before the - - ASHFORD: Mr. Chairman. CHAIRMAN: Section 3 is still before the committee and CHAIRMAN: Delegate Ashford - - oh, sorry. the floor is still open on Section 3. SILVA: I still have the floor. ROBERTS: I plan to move an amendment when I’ve pre CHAIRMAN: Delegate Ashford had asked for the floor sented it. next. CHAIRMAN: Delegate Roberts has the floor. SILVA: I’ll yield to Miss Ashford for a question. Is that ROBERTS: I indicated at that time that I would submit a what you want? proposal providing in part the general language of the Mis ASHFORD: I was just going to suggest that the possibility souri Plan. I have such a proposal, and I plan to offer it in of a tie was just one more argument for the County of Lanai. the form of an amendment. I’d like to point out that the pro posal is not the proposal I submitted yesterday, the last CHAIRMAN: Delegate Silva, will you carry on? day of our meeting, on the question of a study group dealing SILVA: Well, I was under the impression that Miss Ash with the judiciary process. That council had nothing to do ford was probably going to ask me a question, but since she with the selection of names from a panel and the question 414 JUDICIARY that I’m proposing today in the form of an amendment goes division of opinion, on the question of an elective versus an to that question. appointive system. This proposal was a proposal which was I’d like, if it’s agreeable with the Convention, after I move adopted in the State of Missouri after a similar discussion the amendment and if I’m - - if I have a second, to provide and consideration of the pros and cons of an elective versus for a short recess for two purposes: one to read the amend an appointive system. It seems to me that this provides som ment, and second, togiv~ the delegates a chance to get over of the better features of the appointive system and some of the feeling of amendments. I recognize that you are all pretty the better features of the elective system. tired and not in the mood for amendments. I’d like to get On the appointive system, it provides a check, it provides you back in the mood to consider this particular amendment an opportunity for the community, in the form of judges, in that I plan to offer. the form of the Bar Association and attorneys, and the lay The first sentence of the first paragraph of Section 3 of people of the community to nominate those best able to per Committee Proposal No. 7 is hereby amended to read as form the function of judges in our new State. It provides an follows: opportunity, then, for these men to get together and to pre Section 3. The justices of the supreme court and the sent a panel of names to the governor from which to choose judges of the several courts of the state shall be appointed the members of the court. by the governor subject to confirmation by the Senate. The lt also provides, it seems to me, the better features of chief justice and associate justices of the supreme court an elective system since it does not require that a person and the judges of the circuit courts shall each be appointed run for office in competition with other individuals or to from panels of five names submitted to the governor by a ask favors of individuals to provide enough funds with which commission to be created by the legislature and to be com to run. This proposal provides a nonpartisan ballot: it posed of judges, members of the bar and laymen. provides that the individual does not run against anyone; Each appointed justice and judge shall hold office for a his name is presented to the people in the form of a confir term ending December 31 following the next general mation. The people then have the opportunity to vote yes election after the expiration of twelve months in office. or no. There is no pr’oblem of partisan politics; there is At the general election next preceding the expiration of no problem of a competitive position with regard to present his term in office, the name of such justice or judge shall ing the question to the electorate. appear, unopposed, on a separate nonpartisan ballot which It seems to me that so far as the basic tenure is con shall read as follows: cerned, the tenure is already set forth in other sections of the committee proposal. This proposal, this amendment, “Shall judge for justice] goes only to the question as to how the judges of the supreme (Here insert the name of the judge court and the circuit court are to receive their office. It _______ of the ________________________ provides for a careful review in the form of a panel, appoint or justice) (Here insert the title of the court) ment by the governor, and confirmation by the Senate, and be retained in office? Yes ______ No ______ “ provides a review at the end of a one to two-year period, de pending on the date of appointment, to give the judge the op If a majority of those voting on the question shall vote in portunity to serve, and then give the people an opportunity the affirmative, the justice or judge shall remain in office to vote on the question, yes or no. for the number of years after December 31 following such I don’t think we ought to take too much time discussing election as is provided for the full term of such office, and the proposal. I think the basic questions have been consid at the expiration of each such term shall be eligible for ered in detail. If there are any additional comments, I per retention in office by election in the manner here pres sonally would like to hear them. I don’t want the debate cribed. If at any such election, a majority shall vote drawn out on this thing if we can get to an early vote. against retention in office, a vacancy shall then exist upon the expiration of the appointive term. Should any justice ANTHONY: Has there been any second to this? or judge not desire to continue in office beyond the origi CHAIRMAN: Yes, it’s been moved and seconded. nal term provided for in his appointment, he shall, at least 60 days prior to the said general election, give notice ANTHONY: This is a rehash of what this Convention has thereof to the governor and his name shall not be placed voted on at least three or four times, namely the central upon said ballot. issue, whether we are going to have an elective system of judges. Now, no matter how thin you slice it, it’s still an CHAIRMAN: Has the amendment been distributed? election. Now, if the delegate did what he - - what I under ARASHIRO: I second that motion. stood him to be doing, namely, propose a panel from which the executive should make the executive appointment, that ROBERTS: I have copies of the amendment which I will would be one thing. That has not been done. We are right have distributed now. back again to the old debate, whether or not we are going ARASHIRO: Mr. Chairman, I will second that. to have our judges stumping the country, and for that reason, I am against this amendment. CHAIRMAN: The motion has been moved and seconded. It’s been suggested we take about a five minute recess. ASHFORD: May I call attention to a further matter in Hearing no objection, why we stand at recess for five this? We have already adopted Section 4 as amended which minutes. provides for removal of judges. Now this would be in abso lute conflict, as I read it, with Section 4, and if Section 4 is (RECESS) going to be repealed, I want the vote on election of judges to be had again. CHAIRMAN: The Chair will recognize Delegate Roberts. PHILLIPS: I disagree with Delegate Anthony insofar as ROBERTS: I’d like to speak in favor of the amendment stating generally that this is a rehash of the election of proposed. I think it provides an effective and fair method judges. This election of judges comes after the appointment of dealing with a problem on which there is a division, strong has been made by the governor and has been approved by JUNE 13, 1950 • Morning Session 415 this commission consisting of laymen, which is a check on favorably was the one offered by Delegate Fukushima and it the patronage tendencies of the chief executive. Now, I would read, “The justices of the supreme court shall hold office say that unfortunately Missouri has in their last election - - for a term of seven years and the judges of the circuit court was not successful with this placing the judges on the list. shall hold office for a term of six years.” They got more, considerably more noes and a very small My amendment is in this form. “The justices of the su vote. I do not believe that this election system here has preme court shall hold office for an initial term of seven proven successful, but I would say that the first part of the years and the judges of the circuit court shall hold office for commission, as I said before, does have its value and it does an initial term of six years. Upon reappointment, the justices remove or provide this check and balance, this separation of the supreme court shall hold office for a term of twelve of powers which is, I believe, what the entire Convention is years, and the judges of the circuit court shall hold office for making every effort to strive for. a term of ten years.” I move the adoption of the amendment. CHAIRMAN: Anyone else wish to discuss this? CHAIRMAN: The Chair is just a little bit in doubt as to ROBERTS: I don’t think anyone answered Miss Ashford’s whether or not this is a proper motion because the section question. As I get the question, the suggestion is made that was adopted and it was the Chair’s understanding, upon ques Section 4 of the committee proposal is negated by the amend tion, that that was not only the initial term, but was the term ment. Section 4 reads that “The justices of the supreme of the reappointment as well. There was a continuing term. court and the judges of the circuit courts shall be removed Therefore unless someone who voted in the affirmative, or from office on impeachment for, and conviction of, treason voted on the adoption, would vote - - move for reconsidera tion, this motion would not be in order. CHAIRMAN: No, that section has been amended. You are SILVA: I rose to a question. reading from the original text. HEEN: This leaves the number of years of the first ap ROBERTS: What does the amendment now provide, Mr. pointment the same as was adopted by the Convention, and Chairman? the amendment is to have that tenure be the tenure of the initial appointment, and that the reappointment shall be for CHAIRMAN: I do not have the amendment before me at a longer term of years. the present. CHAIRMAN: Well, you made the point, Delegate Heen, ROBERTS: Oh, I think I have it. The proposal as amended at the time the vote was taken, that the Chair had stated the provides, “The justices of the supreme court and the judges motion in error, and that it was not only the original tenure,! of the circuit courts shall be subject to removal from office but it was also the continuing tenure of office. upon the concurrence of two-thirds of the membership of each house of the legislature sitting in joint session for such HEEN: That is correct. causes and in such manner as may be provided by law.” CHAIRMAN: Therefore that was the motion on which we It seems to me that that particular proposal is still ap voted, that was adopted. Therefore, this motion would be plicable. The purpose of that section, as I recall, was to out of order unless we reconsider our actions. provide some method of removal from office because of treason, bribery or other high crimes or misdemeanors, HEEN: I don’t think that is correct. The Convention has and that such a procedure is still possible if the amendment acted along certain lines. Now, I take it there’s nothing to were adopted. stop the Convention from amending the action that was taken CHAIRMAN: Any further discussion on the amendment? in that connection. The question is the adoption of the amendment proposed by ANTHONY: In regard to the Chair’s tentative ruling, were Delegate Roberts. All those voting - - we not focusing our attention on the question whether there ROBERTS: May I have a show of hands on that or a roll should be a different term for judges of the supreme court call? and judges - - justices of the supreme court and judges of the circuit courts? It seems to me that’s what the delegates CHAIRMAN: Roll call has been requested. All those de had in mind when we voted on that amendment of Mr. Fuku siring roll call will raise your right hand. Sufficient num shima now. ber. Those voting “aye” will be voting for the amendment. Those voting “no” will be voting against the amendment. CHAIRMAN: The amendment was that “The justices of The Clerk will please call the roll. Will you please answer the supreme court shall hold office for a term of seven years with your microphones. It’s very hard for the clerks to and the judges of the circuit court shall hold office for a term hear the vote. of six years.” The Chair stated that it understood the motion to be that this was on the reappointment. The Chair was Ayes, 24. Noes, 37 (Anthony, Apoliona, Ashford, Bryan, corrected by Delegate Heen to say that this was the original Cockett, Corbett, Crossley, Dowson, Fukushima, Gilliland, tenure of office and reappointment thereafter. And there Hayes, Heen, Holroyde, Kage, Kawakami, Kellerman, Kido, fore, that was, as the Chair sees it, that’s what we voted on. Kometani, Lai, Larsen, Lee, Mizuha, Okino, Porteus, C. Rice, This is now an amendment to something that we have adopted, H. Rice, Richards, Silva, Smith, St. Sure, Tavares, A. Trask, and therefore, unless there can be reconsideration of our White, Wirtz, Wist, Woolaway, King). Not voting, 2 (Sakai, action, wjiy it will have to stand that way. Sakakihara). CHAIRMAN: The amendment is lost. ANTHONY: It doesn’t change one iota the original vote. There was a motion made that Section 3 be adopted as All it says is upon a reappointment what the term shall be. amended. That was made by Delegate Fukushima; it was I think the Chair’s in error in the ruling. not seconded. SERIZAWA: I believe the Chair called on the mover, Mr. HEEN: I now offer an amend ment to the second paragraph Fukushima, to clarify whether or not the reappointment term of Section 3 as amended. The amendment that was voted upon was also a part of his amendment and the delegate from the 416 JUDICIARY fifth district stated definithly that it was not. And we voted that it would add to the other seven years that he had already on that, I believe. served as a judge by appointment? SILVA: Point of order: You’ve ruled on the question and CHAIRMAN: It would be a new term of 12 years? it’s your right to rule, unless the Convention so decides it Isn’t your right. HAYES: His new term, of the same man, will be 12 years CHAIRMAN: It’s been pointed out that this amendment CHAIRMAN: That is correct. has the word “initial term,” whereas the previous amend HAYES: And the circuit court shall hold office for a term ment that we adopted did not have the “initial term” in it, of 10 years on reappointment? Now the legislature can im simply said what the term should be, which was the reason peach the judges, remove them? that I queried as to whether or not the - - it was a continuing term. Therefore it’s the Chair’s ruling that we have already CHAIRMAN: That’s correct. They can be removed for voted on the motion, that this motion is out of order unless trial. we move for reconsideration. HAYES: Now, he’s in for a much longer term. ST. SURE: I so move for reconsideration. CHAIRMAN: That is correct. CHAIRMAN: It’s been moved. Is there a second? HAYES: These judges would be in much longer term. CHAIRMAN: The only difference from this and the pro JUDO: Second, I second the motion. posal adopted a few moments ago is on the reappointment CHAIRMAN: I believe that both Delegate St. Sure and portion of it. Kido voted with the majority and therefore it’s proper that ANTHONY: The committee, I believe, was unanimous in they move for reconsideration. All those in favor will say one thing, that is, the Judiciary Committee. They favored “aye.” Opposed. I think we should have a show of hands. long terms for judges. Now, the proposal as recommended All of those in favor of reconsideration will raise their right by the majority would have an initial term and then a longer hand. Opposed. 26 ayes, 22 noes. The motion to reconsider term upon reappointment. What some of the delegates do is carried, so the amendment is now properly - - can proper not fully appreciate, I think, is the fact that we have liberal ly be introduced. ized the method of removal of judges. Under the Section 4 HEEN: I move the adoption of the amendment which I as it presently stands, any judge can be removed from office have offered, the same one that I spoke about a moment ago. at any time upon concurrence of two-thirds of the member ship of each house. CHAIRMAN: Is there a second? Now, the essential thing in a judiciary is to have long ten ure. That is the way you get good judges on the bench. I RICE: I second it. think we ought to adopt the amendment proposed by the dele CHAIRMAN: It’s been moved and seconded, this amend gate from the fourth district because it will make for long ment which would not be an amendment to Delegate Fuku tenure; it will make for better judges on the bench; and you shima’s amendment. can still remove them if you’ve got a bad one easily. HEEN: I’m speaking in support of the amendment. I be CHAIRMAN: Are you ready for the question? lieve that after - - we’ll call it the short, initial term, the term on reappointment should be long so that these judges TAVARES: Perhaps we could compromise a little more will be removed from politics to a greater extent. by reducing that 12 years to 10 years and having the second term be 10 years for both, and I move, therefore, that the CHAIRMANt Any further discussion? amendment be amended so that the second sentence will read LEE: I believe this is a rehash of the previous vote that “Upon reappointment such justices and judges shall hold of was taken, 32 - 29. At that time I spoke in favor of the fice for a term of 10 years.” amendment to have it eight years and six years and then later WOOLAWAY: I’ll second that amendment. it was amended from eight to seven, and then six. That was on a continuing term. Now, I still believe that there should CHAIRMAN: Would the introducer accept the amendment? be an adequate check upon the judges who come up for ap HEEN: I’ll accept the amendment. pointment. If you have such a term upon reappointment of 12 years, you are actually putting it for a period that he’s CHAIRMAN: Fine. Delegate, would the second accept the going to develop those things that I mentioned, and I feel that amendment? Would the second? the original amendment which was passed is proper, and I OKINO: I rise to a point of information. To me, it is not am opposed to this amendment. clear whether or not upon reappointment of justices of the supreme court or the circuit court judges, the confirmation HAYES: I just wanted to clarify some questions that I of the Senate is required? have in my mind. I have been standing - - I mean voting for the appointment of judges for eight years and then it was ANTHONY: That’s the - - first sentence in Section 3 amended and has been amended and amended and amended. would require that. Now, “The justices of the supreme court shall hold office CHAIRMAN: The first sentence in Section 3. for an initial term of seven years.” That would mean, I suppose, his first term. Correct? OKINO: Am I to understand from the chairman of the Committee on Judiciary that upon reappointment, the first CHAIRMAN: Correct. sentence of Section 3 will apply, namely, in that confirma HAYES: “And the judges of the circuit court shall hold tion is necessary. Is that correct? office for an initial term of six years. Upon reappointment, ANTHONY: That is correct. the justices of the supreme court shall hold office for a term of twelve years.” Now, that 12 years, does it mean DELEGATE: Question. JUNE 13, 1950 • Morning Session 417 MIZUHA: I would like to amend the section to reduce the CHAIRMAN: All those desiring roll call raise their term upon reappointment from ten years to eight years. If hands. Sufficient number. Those voting “aye” will be voting you reduce the justices of the supreme court to ten, then I for the amendment. Those voting “no” will be voting against think the circuit court judges should be lowered to eight the amendment. The Clerk will please call the roll. years. So I so move. C. RICE: Which amendment? ARASHIRO: Second the motion. CHAIRMAN: The amendment proposed that I just read, CHAIRMAN: It’s been moved and seconded that the term proposed by Delegate Heen which calls for reappointment of reappointment be - - of the circuit court judges be reduced of ten and eight years, respectively. to eight years. C. RICE: Only on the reappointment? HEEN: If that proposal to amend the section appeals to the CHAIRMAN: Well, the first part of that amendment is the delegates, then that last sentence there or the second sen same as we have previously adopted. The only change is on tence of this paragraph would read “Upon reappointment, the the reappointment. justices of the supreme court shall hold office for a term of The Clerk will please call the roll. ten years and the judges of the circuit court shall hold office for a term of eight years.” Is that correct? I’ll accept that Ayes, 30. Noes, 32 (Akau, Arashiro, Ashford, Cockett, amendment. Doi, Fong, Fukushima, Ihara, Kam, Kauhane, Kawahara, Kawakami, Kido, Lee, Luiz, Lyman, Mau, Nielsen, Noda, CHAIRMAN: The amendment’s been accepted. Ohrt, Okino, Phillips, C. Rice, Sakakthara, Serizawa, Shima H. RICE: The amendment is on amendments, so I think mura, Silva, Smith, A. Trask, J. Trask, Yamamoto, Yamauchi). it’s in order that I make another amendment. After they Not voting, 1 (Sakai). have served their apprenticeship, six and seven years, give CHAIRMAN: The amendment has lost. them life tenure or until they are seventy. LEE: I second the motion to adopt Section 3 as amended. CHAIRMAN: Is there a second to that? There are no amendments on amendments at the present CHAIRMAN: The motion has been made and seconded time. In each case the amendment proposed has been ac that we adopt Section 3 as amended. It is the Chair’s under cepted by the original movant so that we have only one amend standing that the - - by the adoption of that - The amendment ment before us, and the amendment now reads, “The justices should be considered as an amendment to the last paragraph of the supreme court shall hold office for an initial term of which previously had been voted on separately and is now seven years and the judges of the circuit courts shall hold simply offered as an amendment on the whole Section 3. office for an initial term of six years. Upon reappointment LEE: I believe that amendment passed. the justices of the supreme court shall hold office for a term of ten years and the judges of the circuit court shall hold CHAIRMAN: We reconsidered our action. office for a term of eight years.” Are you ready for the LEE: Well, I move for the adoption of the amendment. question? C. RICE: Second the motion. FUKUSHIMA: When I proposed my amendment for seven CHAIRMAN: We’re now talking about the amendment years - - eight, and six, I did this deliberately after much proposed by Delegate Fukushima which we reconsidered. study. Now we have many, many amendments, acceptance of amendments, and what do you find? Just taking arbitrary HEEN: There was a motion to reconsider the action that figures. I think the Convention should not be confused in was taken on the amendment offered by Delegate Fukushima. this manner. I think the original amendment which we voted Now, that being so, I would amend that amendment by chang on is proper, and now the delegates are just bringing this up ing the figure “seven” to “eight,”so that will be the same to confuse the Convention here with no reason for making as what Delegate Fukushima put in originally. these changes. Twelve to ten, ten to eight, is utterly ridicu CHAIRMAN: I didn’t get the - - the Chair didn’t get the lous. amendment, Delegate Heen. DELEGATE: Question. HEEN: The amendment would be to change the figure CHAIRMAN: Are you ready for the question? “seven,” in line two, to read “eight.” “The justices of the supreme court shall hold office for a term of eight years DELEGATE: Question. and the judges of the circuit court shall hold office for a term of six years.” Same as the original amendment that CHAIRMAN: All those voting “aye” will be voting in favor was offered by Mr. Fukushima. of the amendment as I have just stated it. “Noes” will be opposing it. All those in favor say “aye.” Opposed. The CHAIRMAN: Would Delegate Fukushima - - motion is lost. SILVA: I’m afraid that we’re beginning to lose sight of PORTEUS: There seemed to be a volume of sound and the fact that the purpose of this portion in the Constitution it was a little confusing to some of us here as to what is was. is to dispense justice to the people rather than for continua May I suggest that the Chair call for a division of the house tion of office in the courts. It seems that those who are in either by standing or by raising of the hand? tending or hoping to become appointed to these positions are trying to prolong themselves in office. And if more at TAVARES: I move that we have a showing of hands. I tention will be given to the - - for the reasons why these was caught unprepared on this matter myself. I didn’t vote longer tenures should be granted, then perhaps we would at all. come to a point, rather than for the personal interest of holding themselves longer in office. I see no reason at all, CHAIRMAN: Do you want roll call? unless sufficient reason is given, for the elongation of the DELEGATES: Roll call. term in office, rather an arbitrary figure. I think that the 418 JUDICIARY previous question - - the previous motion put by Fukushima ent moment is unnecessary. Therefore, I move that that is very much in order, and if it isn’t, I’ll be glad to put it, section be eliminated from the proposal. that the justices of the supreme court shall hold office for an initial term of seven years and the judges of the circuit CHAIRMAN: Would you restate the motion? court shall hold office for an initial term of six years, upon ANTHONY: I move that Section 5 of Committee Proposal reappointment, and that is all. No. 7 be deleted. CHAIRMAN: The Chair would like to point out to Dele HEEN: Second the motion. gate Silva that Delegate Fukushima’s original proposal called for - - CHAIRMAN: It’s been moved and seconded that Section 5 be deleted. Any debate? Any discussion? Are you ready SILVA: We’ll leave the “initial” out. for the question? All those in favor say “aye.” Opposed. CHAIRMAN: - - the term of eight years and six years; Carried. he accepted a floor amendment of seven and six. HEEN: I move that Section 6 be adopted. SILVA: Well, I’d like to move the amendment to seven DOWSON: I second the motion. and six. CHAIRMAN: Thank you. LEE: I believe I made a motion to adopt the amendment of Delegate Fukushima which required seven and six. That ASHFORD: I move an amendment to Section 6. The motion was seconded. amendment was distributed the other day; I think it was - - I’ve lost count of the days we’ve spent on this article, Mr. CHAIRMAN: That’s correct. Chairman, but when we were working on it last week I had LEE: So that if Delegate Silva would want to move the distributed to all the delegates a proposed amendment to previous question on that, I would be glad to second the motion. Section 6, Committee Proposal No. 7. Insert alter “dimin ish” and that - - the word should be “diminished,” not “dim CHAIRMAN: Well, Delegate Heen had moved to amend inish,” the following—beginning with a small “u,” not a capi that back to eight and six again. tal “U” —“ unless by law applying in equal measure to all LEE: But there was no second. officers of the State.” I move the adoption of the amendment. SAKAKIHARA: I’ll second, Mr. Chairman. CHAIRMAN: Is there a second? CHAIRMAN: Do you second that, Delegate Sakakihara? BRYAN: I’ll second the motion. SAKAKIHARA: I’ll make a motion for the previous ques CHAIRMAN: It’s been moved and seconded that Section tion. 6 be amended. DELEGATE: Second the motion. WHITE: I also have a proposed amendment to this which I think would help to clarify it. It’s now in the process of CHAIRMAN: The previous question has been called for. being typed. Would you like me to read it in the meantime? All those in favor of putting the previous question say “aye.” Opposed. The question is the adoption of the amended sec CHAIRMAN: Please. tion which reads, “The justices of the supreme court shall hold office for a term of seven years and the judges of the WHITE: “The compensation for the justices of the su circuit court shall hold officefor a term of six years.” All preme court and the judges of the circuit court shall be es tablished by law, and shall not be decreased for the term for those in favor say “aye.” Opposed. Carried. which they shall have been appointed. They shall retire upon LEE: I now move for the adoption of Section 3 as amended. attaining the age of 70 years and shall receive pensions as provided by law.” I think the question of establishing the SAKAKIHARA: I second that. salary for the term for which they are appointed will not CHAIRMAN: It’s been moved and seconded we adopt Sec preclude any increment adjustments to take care of cost of tion 3 as amended. All those in favor will say “aye.” Op living or anything of that nature. posed. Carried. Section 3 is adopted as amended. The Chair notes that it’s 12 o’clock. What is your pleas ASHFORD: Speaking on my amendment, and may I also ure? refer to Delegate White’s amendment - - HOLROYDE: I move we rise and report progress and CHAIRMAN: Would you second his, so we could speak on beg leave to sit again at 1:30. it too, please. SILVA: Second the motion. ASHFORD: I don’t -- I don’t - - CHAIRMAN: It’s been moved and seconded the Committee WOOLAWAY: Mr. Chairman, I’ll second Mr. White’s of the Whole rise, report progress, and beg leave to sit again. amendment. All those in favor say “aye.” Opposed. So ordered. ASHFORD: We have two amendments in there that I don’t - - I think my amendment should apply to his as well as to Afternoon Session the original. In other words, Mr. White’s amendment uses the word “decrease” instead of “diminished.” My purpose CHAIRMAN: At ease. The Committee of the Whole will in adding “unless by law applying in equal measure to all please come to order. When we recessed, we had completed officers of State,” is that if a bonus were given in good times, the adoption of Section 3. We are now on Section 5. that would be increasing the compensation of the judge, and ANTHONY: In view of the action of the Convention on if we then have a depression and everybody else was taking Section 4 liberalizing the method of removal of judges, it now a cut, under the provisions of the section as it now exists strikes me that Section 5 that is before the house at the pres the compensation of the judge could not be cut. I think that JUNE 13, 1950 • Afternoon Session 419 judges should be no more immune to the slings and arrows WHITE: It was a substitute; in other words, it was an of outrageous fortune than other men. amendment of her amendment, to take the place of hers. CHAIRMAN: To take the place of hers? TAVARES: I see no objection to the amendment proposed by Delegate Ashford. I’ve lost my copy, but subject to Style OHRT: My amendment would only affect the last sentence. I think it’s a good amendment. In other words, I agree with CHAIRMAN: Would you - - the delegate from Molokai that in a period of stress when all salaries are cut, the judges ought to be willing to take OHRT: Can we wait until this present motion is taken their cut with the others, and I’m sure they will. care of ? This also might tend to prevent the courts or anyone else CHAIRMAN: Let’s get these out of the way and then I’ll from later raising the point that taxes which are applicable recognize you. to all persons of the same class, if they are increased, it might be interpreted as a decrease of compensation. It’s WHITE: Could I ask Mr. Anthony a question? As I read my understanding that after some shilly-shallying, the the provision that he has there, it would under no circum United States Supreme Court has finally okayed the proposi stances ever permit any reduction in the salary of one of tion that the income tax law is not a diminution of salary. the justices. I don’t think that, at the time that they had the However, this would make that doubly clear and for that rea provision in the Constitution, I don’t think they had these son, whether this amendment by Delegate Ashford is adopted temporary adjustments made to take care of the cost of living, alone or as a part - - an addition to the amendment by Dele and so forth, and I don’t think it was ever intended. The pur gate White, I see no objections. pose of the wording that I submitted would provide that you would establish the compensation for the justices and you WHITE: I beg to differ with the delegate from the fourth never could, for the term for which they were elected, re district. I think there is a considerable difference between duce their compensation below that amount, but if temporary a man that is prevailed upon to take office for a period of adjustments were made they could be made without any dif eight years, and he takes it with an understanding that his ficulty. compensation is going to be a certain amount of money, as against some appointive officer that takes it and serves at CHAIRMAN: Delegate Anthony, would you care to answer the will of the governor. I think there is a considerable that? difference, and I think that any man that leaves his law prac ANTHONY: I don’t know that it was in the form of a ques tice to take on a job of that kind is entitled to that protection. tion, but if I understand the speaker, he would like to make ANTHONY: I am opposed to both amendments. The lan sure that the salary of a judge will remain constant for the guage as drafted is taken from the Federal Constitution, term during which he has been appointed, as distinguished and the purpose of adopting the language, and with it goes from Delegate Ashford’s amendment which would permit the interpretations of the Supreme Court—the judges like the legislature to raise it or lower it from year to year. everybody else have to pay taxes out of their salary—the The second - - the first amendment, Miss Ashford’s amend purpose of adopting the provision of the Federal Constitution ment, would be a direct violation of what we are trying to is to make a certain and definite provision for the salary, preserve here, the independence of the judiciary. The second the compensation of judges. amendment by Mr. White would permit a reduction in salary Now, if you want to get good men on the bench, you’ve got or a temporary raise that had been put into effect by the to have long tenure and you’ve got to have security in office, legislature after the judge received his appointment, but it and they ought to know what they are going to get. We all could not go below, the reduction could not go below the salary know that the legislature notoriously fixes rather low sala as initially fixed as I understand it. ries for our judges. ~Jf you’re going to superimpose on that CHAIRMAN: The Chair would like to state that these the possiblility that a judge may have his salary diminished amendments are now being passed out, that perhaps a re after he has severed all his connections at the bar, then cess of about five minutes so that everyone can get it would you’re going to have one further obstacle against getting good be in order. No objections? So ruled. judges on the bench. Therefore, I think that the section as drafted originally (RECESS) should stand. SHIMAMURA: I agree with the last speaker for the addi CHAIRMAN: The committee will please come to order. tional reason that the proposed amendment loses sight of Is there anyone now that has not received copies of each the theory and spirit back of the constitutional provision of the amendments, the two amendments that had been of against diminution of the judges’ salary, namely,the preser fered so far and one that is anticipated? vation of the independence of the judiciary and the theory of the three separate branches of the government. For that ad OHRT: My amendment is to Section 6. I move the adop ditional reason, I am opposed to the amendment. tion of that amendment. A. TRASK: Second the motion. CHAIRMAN: Are you speaking as being opposed to both amendments or - - Any further discussion? CHAIRMAN: The amendment offered by Delegate Ohrt has been distributed and it’s been - - OHRT: I have an amendment to that last sentence, “Pro DELEGATE: We have so many amendments here that~ vision for pensioning them shall be made by law.” Is this we’d like to know - - the proper time to bring that in or - - CHAIRMAN: I’m trying to identify it for you right now. CHAIRMAN: There are already two amendments on the The amendment is section I would like to straighten out. Delegate White, was your amendment an amendment on the section or on Delegate amendment to Section 6 of Committee Proposal No. 7 Ashford’s amendment? by deleting therefrom the last sentence thereof reading, 420 JUDICIARY “Provision for pensioning them shall be made by law,” term of office of six years. It should not be diminished dur and inserting in lieu thereof the following sentence: “Pro ing that term, but there might come a time when the legis visions shall be made by law for the inclusion of such lature might diminish the salary of all circuit judges from justices and judges in any retirement law of the State.” $10,000 to $9,000 so that if this particular judge receiving $10,000 is reappointed, then upon his reappointment, he will This has been moved by Delegate Ohrt and seconded. receive only $9,000; whereas the word “continues” might TAVARES: I rise to a point of order. I submit that this mean the continuing or holding of office by appointment and entire series of amendments is now hopelessly confusing, reappointnient. Therefore, the reduction, I mean the provi and I submit that we should take them up in regular order. sion as to prohibiting the reduction of compensation should First, Delegate Ashford’s amendment should be either con apply to the term of office of the particular judge. So in sidered as being moved to be amended further or we should connection with this amendment, I think the language should vote on it. I submit that this is so confusing now we can’t be, “which shall not be diminished during their respective vote on anything. terms of office, unless by law applying in equal measure to all officers of the State.” CHAIRMAN: The amendments that now are in are amend ments to the section rather than amendments to one another. ASHFORD: I’ll accept that. Therefore, it would be perfectly in order to take the amend - ments up in the sequence that they were given. The Chair BRYAN: The two amendments offered, the one we are would, therefore, like to state that the first amendment to speaking on now by the delegate from Molokai and the one be considered will be Delegate Ashford’s amendment which by Delegate Ohrt, would seem to me would apply equally to has how been distributed. either the section as written or the other amendment pro posed by Delegate White, and I would ask either that we ASHFORD: In reply to what the chairman of the Judiciary take up Delegate White’s proposal first or that he be willing Committee had to say, may I say this. He said that this was to accept these amendments to his amendment if they are a blow at the independence of the judiciary. It is not because passed. no dimunition of salary can be made except by a general law applying to all officers of State. Now, if we -- our state CHAIRMAN: Delegate White. goes into a serious depression, is there anyone who really WHITE: If the intention is to have the judges participate believes the judges should he immune to the effects of that in any reductions below the amount initially fixed for the of depression and have their salaries stand unchanged while fice, I’m perfectly willing to withdraw my amendment. everyone else has a cut? CHAIRMAN: The question is now the adoption of the CHAIRMAN: The question is the adoption of the amend amendment as proposed by Miss Ashford - - Delegate Ash- ment to Section 6. Does everyone understand the amendment ford, amended by Delegate Heen, and the amendment accepted or do you wish it read again? by the original movant. That means that the section will NIELSEN: Will you please read it. read as follows: “The justices of the supreme court and the judges of the circuit courts shall receive for their services HEEN: I note in the written amendment, it reads, “insert such compensation as may be provided by law, which shall alter diminish.” The word is “diminished” and not “dimin not be diminished during their respective terms of office, ish.” unless by law applying in equal measure to all officers of ASHFORD: I made that correction when I - - the State. They shall retire upon attaining the age of 70 years. Provisions for pensioning them shall be made by CHAIRMAN: That correction was made from the floor. law.” ASHFORD: And the big “U” should be a small “u.” Are you ready for the question? CHAIRMAN: That’s correct. That correction was made, WHITE: Will that preclude the amendment of that last that the word should be “diminished” and the “U” should be section to mine? a small “u.” The section would then read: “The justices of CHAIRMAN: We’re voting only on the amendment now. the supreme court and the judges of the circuit courts shall We’re not voting on the section as amended. You would still receive for their services such compensation as may be have time to make further amendments to the section. provided by law, which shall not be diminished unless by law applying in equal measure to all officers of the State.” And HEEN: The amendment applies only to the first sentence then continuing on with the last two sentences. “They shall of that section, so that the other two sentences will still be retire upon attaining the age of 70 years. Provisions for subject to amendment. pensioning them shall be made by law.” CHAIRMAN: That is correct. All those in favor of this HEEN: It seems to me the period alter the word “office” amendment say “aye.” Opposed. Carried. The amendment should be changed to a comma and then insert the clause, is carried. “unless by law applying in equal measure to all officers of I’ll recognize Delegate White now. Do you still wish - - the State.” WHITE: I’ll withdraw my amendment. ASHFORD: I accept that suggestion. CHAIRMAN: Your amendment has been withdrawn. CHAIRMAN: That would seem to be in order. Delegate Ohrt now has an amendment on the floor which changes the last sentence. HEEN: While we are dealing with the amendment of - - with amendments to this particular sentence, I think the word OHRT: Speaking to that amendment, the last sentence “continues in” should be changed to read “their respective reads, “Provision for pensioning them shall be made by law.” terms of office,” “shall not be diminished during their re I’d like to see that changed because it, if left alone, it will spective terms of office.” In other words, if you set a salary provide the means by which the judges will be given special of $10,000 for a circuit judge, that should hold during his pensions, which I think will be discriminatory. JUNE 13, 1950 • Afternoon Session 421 We now have in terms of a retirement system, one of the serves a stated number of years on the bench may retire most liberal retirement systems in the country. There are without having to go back into practice. Most of the states now 16,000 members with reserves of some $45,000,000. have provisions by statute which enable the judges to retire It is on a reserve basis; it is a contributory plan in which any place from one-half to full salary, and none of them, the employee contributes his share and when he retires, he to my knowledge, have them in the uniform retirement sys gets a retirement allowance. A retirement allowance con tem because of the fact that they are in a different category sists of two parts, a pension which is the part that the Ter than other employees that spend their whole lives, from the minute they graduate from college till the time they die in ritory gives him, as well as an annuity which is made up the public service - - die or retire in the public service. from his own contributions. It requires a little individual And it is for that reason, in order to mnke the position on effort on the part of the employee to keep up his own con the bench attractive, there should be provision for their tributions and the law as drafted permits anyone who comes retirement. in late in life to look it over and decide what he wants when This is wholly a matter of legislation. The debate in the he retires. He can build up his annuities by contributing committee was whether or not we should mnke it retirement more money. on full salary or half salary or three-quarters salary. We I think he ought to be - - or the judges ought to be given finally decided to leave it up to the legislature entirely. the same rules as the other 16,000 employees of the govern ment. Otherwise, we are setting up some discrimination and I think our attorneys don’t want to see any discrimina TAVARES: I spenk against the amendment. I realize tion go into this Constitution. If left to the legislature their that the delegate who proposed it has his heart and soul so prior service in the event that they have served as attorneys much in this retirement system which he helped so much to for the government might be given them as prior service, build. I think it is destroying his perspective a little bit. and I think the whole thing will work out better if my amend For one thing, our legislature now has provided for several types of pension systems. One is the county pension system ment is adopted. I move for the adoption of the amendment. which is based on no contributions at all. Another one is CHAIRMAN: That’s already been moved and seconded. the police and firemen system which is a carry-over from the old system, and they mnke no contributions. And the HEEN: I’m wondering if the delegate from Maui who is third one is this retirement system. a judge of the circuit court there might yield to the question Now, it seems to me that if we look around as Dele as to how they are treated with respect to retirement benefits. gate Anthony has said, to the other systems, we will find that, for instance, the federal government today after ten CHAIRMAN: Delegate Wirtz. years allows retirement of judges of the Circuit Courts of Appeal and the United States Supreme Court at full salary WIRTZ: You mean presently? The present circuit after ten years. And now they have - - the district judges judges, being under the federal system, for some unknown have been given that privilege also, after ten years. We reason, the circuit judges are considered members of the have now pending in the Congress, which we hope to get Federal retirement system. Five per cent of our pay is through, a bill that will give our circuit and supreme court deducted towards that fund. The supreme court judges and justices here in Hawaii the same privilege of retiring on justices are covered by a special act of Congress providing federal pensions after ten years instead of sixteen, or, say, for their retirement on pay. I think it’s on ratios of 1/16 the way they have it now. If you serve ten years, when for each year of service, is it not? That is the present you retire, you get ten-sixteenths, and if you serve sixteen system. years, then you get all of that full salary as your pension. It seems to me that we should not foreclose our legislature CHAIRMAN: Thank you. Delegate Heen asked a question. from examining all of the other systems. He had the floor to - - I think it is very important that we bear in mind this. Your lawyers today, as they have always been, are some of HEEN: Yes. I was going to ask another question based the highest earners in the business, and every time you tnke on what the delegate has just stated, and that is whether or a really good lawyer out of private practice and put him on not the justices of the supreme court mnke any contributions. the bench, you are going to ask him to mnke a substantial sacrifice in salary. You are also going to tnke him, as has WIRTZ: To my knowledge, the members of the supreme been said, later in life than most people go into the terri court mnke no contribution, but five per cent from the cir torial service. When they go into the territorial service, cuit judges is deducted from their pay. they first of all usually go when young, they have opportuni ANTHON~Y: I think the movant of the amendment has lost ties for promotion all the way through and they have incre sight of the difference in the character of the employees that ments, an increase of salary every year for five years. he is dealing with. In the case of the Board of Water Supply They have civil service which prevents them from being or the public school system or any number of the other ex fired except for cause, but a judge under the system ecutive departments of government, you will have the em which this Convention has just adopted is going to have to ployees who will go into the public service and remain there tnke his chances on reappointment every six years. There for a long period of time. Now, in the first place, a judge is no merit in that situation. He doesn’t even have that pro has to be a member of the bar for ten years before he can tection. - even be appointed. He then has a term, if he’s on the su Now, if these - - if the members of this Convention really preme court of eight years - - seven years, or on the cir want to give security enough to these judgeships to attract cuit court, six years. the best men, I submit they should leave it to the legislature Now, the difference in the two kinds of employment is to experiment and to mnke up its mind to which system of simply this. A person who is of sufficient capacity and pensions will help attract the best men, and should not tie ability and notoriety in the profession to be appointed to the their hands by forcing them to go into a retirement system bench has got to have wide experience at the bar. Now, if which maybe our legislature will abolish someday if the fed he’s going on the bench, he will then brenk off all his con eral social security, for instance, should be extended to nections. The effort on the part of the states generally and territorial - - to our state officials, as it might be. I, there the federal government is to mnke sure that a judge who fore, hope that the delegates will vote against this amendment. 422 JUDICIARY OHRT: I was quite interested in listening to the delegate Lai, Larsen, Mizuha, Porteus, C. Rice, H. Rice, Richards, from the fourth district. He’s mentioned the county pension Shimamura, Tavares, White, Wirtz, Woolaway, King). Not plan which we know is all wrong. He’s mentioned the police voting, 10 (Fong, Gilliland, Lee, Loper, Mau, Sakai, and firemen’s plan, which we also know is all wrong, and Silva, Smith, A. Trask, Wist). that we should treat everybody alike when it comes to pen sions. CHAIRMAN: The motion has carried. The amendment Now, as I have sat through this Constitutional Convention, has carried. I’ve heard a great deal about this use of this word “discrim ination” and I think that if the lawyers or the attorneys in MIZUHA: Now for the record, do I take it that the dele sist on passing this, that they are just encouraging discrim gate from the fourth - - fifth district who proposed this ination. We all know that it’s statutory again. We shouldn’t amendment and which passed, will mean only one retirement put anything statutory into this Constitution, but we’re doing law, or will it be any other retirement law that we may have it. for judges separately? How can you bind our legislature? Now, Delegate Wirtz from Maui said he was paying five What retirement law are we going to deal with? per cent, he’s probably - - OHRT: Well, the only one - - CHAIRMAN: Will the delegate suspend a moment. If you’ll hold your microphone a little closer, we can all hear CHAIRMAN: Would the delegate from the fifth district a little better. care to answer? OURT: Delegate Wirtz said that he was paying five per cent. He’s probably a member of the federal plan that’s OHRT: The only one that we now have 16, 000 members applied to everybody, and they are getting the same treat in. ment, and, I think, that is rather important. Now, Delegate Tavares said we were talking about mi MIZUHA: Can our legislature get another retirement crobes the other day when we were talking about a few dol law? lars. As a matter of fact, we are really talking dollars and cents. Let’s take an example of a judge who is retiring and CHAIRMAN: Will you address the Chair please, Mr. he is given ten thousand dollars, and he lives ten years. Mizuha. He is being given ten times ten thousand dollars or a hundred thousand dollars when he retires. MIZIffiA: Mr. Chairman, may I ask another question? Now, I want to give you my own example. I’ve been in the service 35 years. I’ve made my contributions and I’ve CHAIRMAN: Yes. gotten my share of prior service and I can retire anytime now, and alter 35 years I would get about 40 per cent of my MIZUHA: Can our legislature pass another retirement salary, half of which I have taken care of in my own annuity. law? Now, the lawyers who insist on a hundred per cent pen sion, I think are just discriminating in favor of themselves. OHRT: The legislature may, but I’m sure that they won’t They are different, apparently a different type of human discriminate as much as this will appear to be. being; therefore, they should get all this - - these favors, and I hope that this Convention votes for this amendment. MIZUHA: And there’s another question that I would like to ask, Mr. Chairman. Does the delegate from the fifth ANTHONY: There’s one statement by the movant which district intend that we will eliminate our policemen’s and I can’t allow to go unnoticed. He says that the lawyers are firemen’s pension law and the county pension system under trying to put statutory provisions in the Constitution. That’s a separate article in the Constitution or section in the precisely what we do not want, and that’s why we have left Constitution? it to future legislation. What Mr. Ohrt wants to do is to put legislation in the Constitution to tie the hands of a future CHAIRMAN: Would you care to answer that? legislature. And I’m opposed to that. OHRT: Those that are now in the police system already have a contract, and I’m sure the legislature is not going CHAIRMAN: Are you ready for the question? to repeal that. But everybody that’s been in - - that has joined the police department since nineteen hundred and OHRT: That clause could be easily eliminated entirely twenty six are now in the standard system. That applies and then the legislature could take care of it in its own way, but when it’s tied up to pensions, that means a non-contribu to the firemen; that applies to every other government em ployee, and that’s what we would like to see. Everybody tory plan and the lawyers may not realize it, but that’s what given the same treatment, which is, I think, one of the basic they are trying to put into this Constitution. tenets that I have heard the attorneys arguing on here for the CHAIRMAN: Ready for the question? All those in favor last 40 days. of the amendment say “aye.” Opposed. I think we should have a showing of hands. All those in favor of the amend HEEN: I’d like to point out that the pension system for ment will raise their right hands. Will all those in favor firemen, policemen and bandsmen will eventually become raise their right hand, please. functus alter the last fireman, alter the last bandsman, and alter the last policeman dies who are entitled to the bene DELEGATE; Roll cail. fits under that system. And as to the county system, the same thing applies. When the last county pension person CHAIRMAN: All those favoring roll call raise their hand. entitled to pension dies that system will also become functus. Roll Call. All those in favor of the amendment will vote “aye.” Opposed will vote “no.” The Clerk will please call CHAIRMAN: The question now before us is the adoption the roll. of the proposal of the section as amended. Ayes, 30. Noes, 23 (Anthony, Apoliona, Cockett, Cor HAYES: I have a question in my mind. Supposing the bett, Crossley, Doi, Fukushima, Hayes, Heen, Kellerman, judge is not reappointed at the end of his second term. How JUNE 13, 1950 • Afternoon Session 423 would he continue, does he - - he doesn’t continue to put his BRYAN: I think that further discussion on this might be retirement in there, would he? ruled out of order. CHAIRMAN: Delegate Ohrt, would you like to, care to CHAIRMAN: The section has not been adopted yet, there answer that. fore, the question is still open. The Section 6 should be - - now they should move for the adoption of Section 6 as amended. OHRT:, He could leave the service, leave his funds within the system, and at the age of 55, go in and get whatever TAVARES: Because I think this thing is so important, I the formula gives him. Again like everybody else. am going to move to defer action on this matter. The ques tion is not whether any lawyer is going to get a break in a CHAIRMAN: That’s correct. pension. The question is, if you adopt this section as it now stands, do you want to get the best possible caliber for PORTEUS: I don’t think we need to get too excited about your judges, the people who are going to have the right of this, but on the other hand I think that we can all perceive power of life and death over those accused of capital offenses, that the judge is not going to be treated as the ordinary gov the people who are going to determine, perhaps, whether ernment employee is. So far as I can see, the judge is not people are going to get large judgments or going to lose going to have the protection of civil service. He’s going to very important cases, who are going to decide the constitu have a six-year term only. There are a number of other tionality of your statutes, and all those very, very absolutely aspects in the position of the judge that is different from the vital things that a judge must do. government employee. He is one of the living representatives It seems to me that the attitude here at this Convention of the judiciary department as distinguished from the execu is that we lawyers are trying to do something selfish for tive. So far as I can see, under the particular clause, we ourselves as lawyers. As a matter of fact, that is furtli- - now have the word “retirement.” If the legislature deter est from our minds. We know and believe that the function mines that if such a small amount would be given to a judge of a judge is so important that the public, not just the law after six years service as to render it almost next to nothing yers —and the public are the ones that suffer from the mis as compared to someone who may have been able to acquire takes of judges—that the public is entitled not to just any after 35 years service some 40 per cent of his pay, then it ordinary lawyer being appointed judge but to the best possible will rest with the legislature to determine whether or not men and women that they can attract to that bench. And to perhaps the higher contribution, a higher percentage might the extent to which they fail to achieve that goal, they are well be required for the judges and in turn, in the long run, being to that extent unjust to the public. those judges given higher benefits for the number of years that they are in service. As far as I can see, this matter CHAIRMAN: Did the delegate wish to move to defer? leaves it for the legislature to provide. Even under a re tirement system, there is a pension that’s involved in that TAVARES: I therefore move to defer until further - - we because the Territory is making a contribution. It’s not can think this matter a little more - - over a little longer. just the contribution of the employee. So it seems to me that this leaves the matter at such CHAIRMAN: I’d like to point out to Delegate Tavares that a position that if the legislature does not wish to make spe this is the last section to be adopted. We have completed cial provision for judges, and a retirement bill, they will all other sections of this, and this is the third day of almost go in with the other 16, 000. If, however, the attorneys and continuous debate. judges are able to persuade the legislature that this is not the best system, and that another system should be set up PHILLIPS: I second the motion for a deferral. that would be equitable, and would not discriminate against other employees, that course would be open. I’m satisfied PORTEUS: Mr. Chairman, is it in order for me to speak to leave that decision, now that the delegates have spoken, to the matter of deferral? in the hands of the future legislatures of the State of Hawaii. CHAIRMAN: That’s correct. HEEN: I’d like to find out if the delegate from the fifth district will yield to a question. PORTEUS: May I point out that under a provision re quiring a pension system, you are waiting the pleasure of CHAIRMAN: Will you state the question, please. the legislature as to how much that will be. The same legis lature that will provide a 50 per cent of salary after ten years HEEN: The question is this. Are the district magistrates time can surely see its way clear to providing a 50 per cent who are now appointed for terms of two years, are they - - retirement after ten years based on some contribution, so have they joined the retirement system? I can’t see that the thing - - the fight is won or lost depend ing on the words that are used here. So long as the Com CHAIRMAN: Would the delegate care to answer that? mittee on Judiciary has not brought a provision in that says it will have to be 50 per cent of salary, you are going to OHRT: If they are government employees, they must have to turn to the legislature and find out what it’s willing become members of the system. to give you, and it ought to be able to - - it ought to be will ing to give you just as much under the wording “retirement” HEEN: Well, do you know as a matter of fact that they as it will give you under the word “pension.” The same are? factors, the same arguments will have to be presented, and I am against deferring this matter. OHRT: I don’t know, but the law is that any government employee on a permanent job must become a member of the TAVARES: Under the understanding that that is the mean system. ing of this provision, the legislature does have some dis cretion, I’ll withdraw my motion to defer. ASHFORD: I can answer that question. I was appointed magistrate for a short period of time and I was a member SAKAKIHARA: I move that the amendment as agreed be of that system and without particular election either. adopted. 424 JUDICIARY CHAIRMAN: Delegate Phillips, you had seconded the or agency authorized by law for such purpose shall certify motion. Is that satisfactory with you? to the governor that it appears any justice” and so forth and so on. If that appeals to the delegates, I will change that PHILLIPS: I’ll withdraw my second. into a motion. SAKAKIHARA: Now, I move that the amendment as ROBERTS: I’ll accept that amendment. agreed be adopted. HEEN: I move that the words the “supreme court” be NIELSEN: I second the motion. deleted and in lieu thereof insert the words “a commission or agency authorized by law for such purpose.” CHAIRMAN: The motion is the adoption of Section 6 as amended. ASHFORD: I second the motion. ROBERTS: It is acceptable. MIZUHA: In connection with this question of retirement of judges, I’d like to point out one fact, and I believe we have CHAIRMAN: The amendment has been accepted. a jurist here who is serving under the federal government on the circuit bench on Maui. Now, he makes his contribu HOLROYDE: I understand the original reason for re tions to the federal government for his retirement system. moving Section 5 was because Section 4 had been liberalized. I’d like it to be made clear in the record that it was the in I wonder if you could have somebody read the new Section 4. tent of this body that in the event we become a State of the I don’t seem to have the amended version of it here. Union, that those years of service that he served on the bench on Maui will be considered by our legislature as though ANTHONY: I have it. they were years of service with the State or the Territory of Hawaii in the computation of his retirement income. CHAIRMAN: Delegate Anthony, would you read Section 4 as amended, please? CHAIRMAN: I don’t know that it would be in order for that to be anything more than the statement of the discussion ANTHONY: “The justices of the supreme court and judges on the floor. of the circuit courts shall be subject to removal from office The question now is the adoption of Section 6. You ready upon the concurrence of two-thirds of the membership of for the question? each house of the legislature, sitting in joint session, for such causes and in such manner as may be provided by law.” SAKAKIHARA: Question. That’s the substitute for the impeachment section. CHAIRMAN: All those in favor of the adoption of Section CHAIRMAN: That’s correct. Any further questions on 6 as amended will say “aye.” Opposed. Carried. that? The Chair was in order in stating that the amendment offered by Delegate Heen could be accepted by Delegate ROBERTS: I’m going to move that we reconsider Section Roberts, inasmuch as Delegate Roberts had moved for the 5 which was acted on by the Convention on the motion of the adoption of the section as such. Therefore, we would have delegate from the fourth to delete. Section 5 provides for to vote on the amendment first. a separate machinery for the handling of judges who are in capacitated and are unable to perform their judicial functions. HEEN: Correct. Section 4 as amended, provides for removal on the basis of a law to be established by the legislature which carries cer CHAIRMAN: And if you would be good enough to restate thin stigma attached to it, mere in the form of an impeach the amendment, we can vote on the amendment and then on ment. I think the original purpose of the committee in Sec the section as amended. tion 5, as set out in their report, indicates a very useful function and it seems to me that that section should be left HEEN: My motion was this. Delete the words “the su in the proposal. I will therefore move that we reconsider preme court” in the first line of Section 5 and insert in lieu our action on Section 5. thereof the words “a commission or agency authorized by law for such purpose.” That motion I understand was sec CHAIRMAN: Is there a second to that? onded. KELLERMAN: I second that motion. CHAIRMAN: That motion was seconded. I’d like to have another second just for the record. Delegate Ashford, I CHAIRMAN: It’s been moved and seconded that we re believe seconded it. consider our action in the deletion of Section 5. All those in favor will say “aye.” Opposed. The section is now ASHFORD: I second the motion. open for debate. CHAIRMAN: Thank you. ROBERTS: I now move the adoption of Section 5. RICHARDS: As I have understood frequently in discus sions here in this Convention that where there is a question CHAIRMAN: Is there a second to that? of interpretation, the action of. the Convention is used as a KELLERMAN: I second it. basis for determination. There were two different amend - ments presented to this Convention, both of which were CHAIRMAN: It’s been moved and seconded that Section voted down, which provided for interim suspension of judges 5 be adopted. between the meetings of the legislature. Now, if I under stand previous interpretations, if this Convention takes no HEEN: I have a suggestion to make, that is, instead of further action, it will automatically mean that the judges having the supreme court certify to the governor, have a will have absolute power to remain in office between meet commission or agency as may be authorized by law certify ings of the legislature.. And I ask, is it the wish of this to the governor. In other words, “Whenever a commission Convention that that interpretation shall stand on the record? 425 JUNE 13, 1950 • Afternoon Session PORTEUS: May I point out that under Section 5 that we Section 7 and Section 7 as a whole, it was the intention of now have under consideration that on the certification by this body that tn the writing of any retirement law for the this agency or commission to the governor, the governor judges of the future State of Hawaii that the prior service of himself is given the power to retire the particular judge in our circuit judges and supreme court justices would be con question, and will not need the attendance of the legislature sidered as though they were officers of the Territory of in order to accomplish - - to carry out this particular sec Hawaii in the transition period. tion. Now, this does give you the alternative of providing one of several ways in order to achieve the same end. ARASHIRO: I second the motion. RICHARDS: In answer to that, it says that this can only CHAIRMAN: Is there a second to that? You’ve all heard operate if a judge is so incapacitated as substantially to the motion. Delegate Woolaway. prevent him from performing his duties. That is the only reason why this commission can certify. Now I don’t know WOOLAWAY: Point of order. I imagine he means [Sec if a man accused of a crime - - of a high crime is incapaci tionl 6. tated or not. CHAIRMAN: That’s not Section 7, he’s talking to Section ANTHONY: The original purpose of keeping these two 6. Ready for the question? sections separate was to have separated in the judiciary article a removal when a judge has done something bad from OHRT: I have no particular objection to that. That was the situation in which you remove a judge simply because of one of the real reasons why it should go to the legislature. decrepitude or incapacitated, and I think that they should be If the legislature decided that they wanted to give these peo kept separate. If Delegate Richards wants to offer further ple prior service, either on a contributory plan or a non- amendment to remove judges who have committed murder contributory plan, it could be decided at that time. during their time of office, we could then debate that. But While I’m on my feet, I’d also like to point out to the dele I don’t think we ought to confuse it with this particular sec gate from the fourth district that he said we were all under tion. civil service. I want to comment that I serve at the pleasure of my own board. Most of the department heads in the gov CHAIRMAN: In the previous discussion of this section, ernment will serve at the pleasure of their boards. So we many amendments were made along that line. It seemed to haven’t got that protection that the delegate from the fourth the Chair that the two subjects are quite widely removed, district thinks we have. one dealing with Section 4 and one with Section 5; that amend ments were already made along this line, I believe by Dele CHAIRMAN: Well, I think that the subject is no longer gate Richards; and unless the amendments offered now are germane to the discussion before us and the question is now totally different, why the Chair will rule them out of order. on another motion. Unless you wish to speak to that motion RICHARDS: The amendments were offered as with re spect with Section 4, not Section 5. I merely brought up TAVARES: I just want to say, we don’t have staggered the subject to Section 5 as to whether or not such an amend term boards to protect our judges, either. ment could be included or if it was the wish of the Conven tion to grant judges absolute immunity during the interim CHAIRMAN: I said that that is out of order. period of the meetings of the legislature. That’s up to the Convention. HEEN: I now move that this article be - - CHAIRMAN: Do you have an amendment, Delegate Rich CHAIRMAN: We have a motion before the Committee of ards? the Whole at the present time that prior service be counted in the new state pensioning system, if and when. All those RICHARDS: I do not. Since my amendment was voted in favor say “aye.” Opposed. Carried. down, I leave it entirely up to the Convention and to the mem bers of the bar if they wish to propose such an amendment. HEEN: I move that this Convention adopt Committee Pro posal No. 7 as amended. CHAIRMAN: Are you ready for the question? All those in favor of the amendment will say “aye.” Opposed. Car WOOLAWAY: I second that motion. ried. The motion now is to adopt Section 5 as amended. CHAIRMAN: It has been moved and seconded that we ROBERTS: I move that we adopt Section 5 as amended. adopt Committee - - we are sitting as Committee of the Whole, we don’t adopt it, we rise and make the recommen J. TRASK: I second the motion. dation. If you will restate the motion - - CHAIRMAN: It’s been moved and seconded that we adopt HEEN: No, I was going to say this, that we adopt it as Section 5 as amended. All those in favor please say “aye.” a matter of form. Then the next motion should be to rise Opposed. Carried. and report progress so that the chairman of the committee, That completes all sections. this committee may prepare his written report. LAI: If there’s no further question on this proposal No. CHAIRMAN: And will you please state that the Chair 7, I move that we rise and recommend passage of No. 7. will need quite a few days. CHAIRMAN: We have completed all other sections. All HEEN: Right. sections of the proposals are now complete. CHAIRMAN: Motion is on the adoption of Committee MIZUHA: At this time for the purposes of the record, I Proposal 7. All those in favor say ‘kye.” Opposed. Car would like to move that in the passage of the amendment to ried. I think that there is some question. All those In 426 JUDICIARY favor of adopting Committee Proposal No. 7 as amended CHAIRMAN: That is in order. It’s the adoption of the say “aye.” Opposed. It’s carried. committee report with a recommendation that the proposal It is now proper to make the motion that we rise and attached thereto pass second reading. report. PORTEUS: I’ll second the motion, if no one else has. HEEN: I now move that this committee rise, report prog ress and ask leave to sit again in order to consider the writ CHAIRMAN: It’s been moved and seconded. All those ten report of the chairman of this committee. in - - WOOLAWAY: I second that. TAVARES: I am very sorry to confess that I have not yet fully studied this report, and I wonder if we could - - I CHAIRMAN: All those in favor say “aye.” Opposed. don’t want to hold up the adoption of the report, but if the Carried. gentlemen wouldn’t feel too hurt if later on I moved to re consideration, if I find any grave error which I don’t think I will. But not having gone through this, and this being one JUNE 23, 1950 • Afternoon Session of the major departments of government—I’ve been on a few other reports and things—I’ll vote for it with that warning, and I hope that the delegates wouldn’t be offended later on CHAIRMAN: Committee of the Whole please come to if I did do that. order. PORTEUS: May we do what the captain of the ship did to HOLROYDE: Point of information. Could somebody the gunner’s mate who failed to strap down the gun? After please interpret the top part of this for me? the gun broke loose and the man at the risk of his own life got it together again, first he gave him a medal and then he CHAIRMAN: I might say that the chairman of the com shot him. I’d be very happy if the delegate from the fourth mittee apologizes for the fly sheet. That was supposed only district finds a grave error in this, to join with him In a to go to those listed, so it will please be detached from motion to reconsider, and then I’ll shoot him. the report. It means by royal order, etc. You have had distributed to you the entire report, and CHAIRMAN: I would like to state - - The Chair would today two corrections on the proposal itself, pages 2 and 3 like to state that I spent all of last weekend and quite some of the proposal, the last two pages. You’ll note RD 1 on hours, about 18 hours, writing this up. I did present it to page 2, RD 1 on page 3. That is no change in what took everyone, and I know how busy they have all been. We have place. It was simply an error in copying the report and delayed it day by day and I have promised the President that having left out in one case, in the case cf Section 5, the today was the absolute deadiine. words in the first line beginning with “authorized by law I’ll put the motion. All those in favor will say “aye.” for such purpose.” I reviewed this with Delegate Wirtz; I Opposed. Unanimously carried. showed him the original minutes that I had and those words were there. DOWSON: I move that the committee rise and report the In Section 6, the next to the last sentence, “They shall adoption - - recommend the adoption of the committee pro retire upon attaining the age of 70 years,” I did the same posal and the report - - thing. Delegate Anthony had also checked it and both of those corrections were in my notes and in the actidn that CHAIRMAN: On second reading. we took. The committee report, therefore, having been circulated, WOOLAWAY: I second the motion. is now ready for action. I’ll recognize the chairman of the Committee on Judiciary. CHAIRMAN: It’s been moved and seconded that the com mitteè rise and report the adoption of the committee report ANTHONY: I move the adoption of the committee report, and the recommendation that Committee Proposal No. 7 in and that the proposal attached pass second reading, if that’s Committee of the Whole Report No. 8 pass second reading. in order. All in favor say “aye.” Opposed. Carried. Debates in Committee of the Whole on TAXATION AND FINANCE (Article VI) Chairman: NELSON K. DOl JUNE 6, 1950 • Afternoon Session emption is intended to encourage home ownership, in actual practice it plays a minor part in influencing people to own CHAIRMAN: Will the Committee of the Whole please their own homes. Second, home exemption is both unsound come into session. and discriminatory in its application. Third, it weakens We have before us the consideration of Standing Com the tax structure and complicates the job of financing the mittee Report No. 41. I believe it has been already circu cost of government. If we had no home exemption, that l~ted, and you will find it in one of your folders. At this limitation to the state and county could be set at 18 per cent time I would like to call on Mr. White to point out the is of assessed value of taxed property, in order to justify lim sues before this committee. its of 75 million dollars, the minimum that the committee believes will be needed in order to take care of the present WHITE: If the question that we’re to consider now is situation. the recommendation of the Committee on Finance and Taxa tion that the Committee on Ordinances and Continuity of ANTHONY: Could the speaker ask us - - tell us the date Law draft an ordinance which would provide in effect, that of that memorandum that he has referred to? I don’t seem home exemption would continue until December 31, 1949 to have it here. [I. e. 1959], that for the reason that in the proposal of the Committee on Finance and Taxation, no provision has been WHITE: The date of it is May 22, i950. It wasn’t printed made for home exemptions, in order to bring this matter by the Convention; it was printed by the committee and cir before the committee, I’d like to move the adoption of the culated to all delegates. I have a few extra copies here. committee report. CROSSLEY: May 23 is the date. CHAIRMAN: Is there a second to it? WHITE: As I said a minute ago, in order to support a DELEGATE: Second that motion. debt limit of 75 million dollars, that would require a ratio of 18 per cent. Now, if home exemption continues, that CHAIRMAN: It has been moved and seconded that com percentage would have to be increased to 22 1/2 per cent. mittee - - Standing Committee Re port No. 41 be adopted. Now, in extending this concession to a limited group of Discussion. people, the net result is to transfer the burden to other tax payers, including a great number who would be unable to WHITE: Now, in support of this motion, I’d like to give own homes under any circumstances. Further than that, you a little information that I think has a bearing on it. In because you, by extending the home exemption, cut down the the first place, in starting off I think it might be well to taxable value to an extent where you are in effect at present refer to the action taken by the committee, and I’ll read it. rates, making exemptions of about two million dollars, that “The chairman suggested that the question of home ex will mean that that amount of money will have to be made emption be discussed and drew attention to the memorandum up from other sources, in which event the home owners will on this subject. Several of the members were in favor of be required to pay some of it, although it may not be pro abolishing home exemption but it was pointed out that this portionate to the amount of their exemption. would probably not be acceptable to the public. The chair Exhibits - - attached to the memorandum of May 22, there man, Mr. Castro, and Mr. Tavares were in favor of immedi are a group of exhibits which I might summarize as follows: ate abolition and Mr. Yamamoto was in favor of retaining (a) only 12 states permit home exemption; (b) the Territory home exemption but making it a flat $1500. Mr. Tavares will lose over two million dollars in revenue in 1950 because stated: ‘Is the strength of our country only in home owner of home exemption, or, if home exemption is eliminated it ship or is it in the strength of industries?’ After consid is estimated that the average tax rate could be reduced erable discussion pro and con, the members compromised $5.76 per thousand, and yet raise the same amount of money. on the principle of no home exemption with the understanding Now, if you apply it - - if you break it down into classes of that an ordinance be written that it would not take effect until homes, of homes having an assessed value of ~l500 or less, January 1, 1960.” $1500 to $3000, $3001 to $5000, and over $5000, the ex Now, in starting it might be well to say that Mr. Mizuha hibits show this: that 7, 359 home owners pay no real prop was not present at the meeting, although a member of the erty taxes at all and yet receive all the benefits of govern committee, and that in the filing of the report both Mr. Mi ment, such as fire, and police protection, schools, and so zuha and Mr. Yamamoto were opposed, or did not concur in forth; 9,839 home owners pay taxes on an aggregate assessed the action taken by the committee. value of $3, 576, 000 or an average assessed value of $363 Now, subsequently, copies of this memorandum or of a per home, which at a tax rate of $30 per thousand amounts to memorandum entitled “Spreading the burden of property only a tax of $11 per year; 8,681 home owners pay taxes taxes on all property through the elimination of home exemp on an aggregate assessed value of $10, 295, 000, or an aver tion” was distributed to all delegates and I would suggest age assessed value of $1186, which at a tax rate of $30 per that each of you get a copy of this memorandum before you thousand amounts to but $35 a year. Now, 5,996 home for reference. I might summarize the memoranthim brief owners pay taxes on an aggregate value of $30,000,880, or ly. First of all, it points out that while in theory home ex an average assessed value of $5, 150, which at a tax rate 427 428 TAXATION AND FINANCE of $30 per thousand amounts to $155 per year. Thus, there the majority report, but I feel that on this matter I’ve changec are 31, 875 home owners who would have been granted home my mind, and so far as I’m concerned I’d rather leave the exemptions. The average assessed value of all their homes home exemption up to the legislature, and leave all exemp is $1404 which at $30 per thousand would produce an aver tions intact as they are at the present time. So, so far as age tax of but $42 per year. I’m concerned, I’m against the inclusion of the home ex The discrimination also exists as between counties. For emptions in the Constitution. instance, in the County of Honolulu, 57.76 per cent of the assessed value of all real property occupied as homes is MIZUHA: As one of the members of the Committee of exempted from property taxes. The percentage in the Taxation and Finance that signed his name to the report and other counties is as follows: Maui, 72. 69 per cent; Hawaii, added the phrase, “I do not concur,” I wish to state this 75.45 per cent; Kauai, 72.89 per cent. The range on lease fact: that the subject of exemption from taxation is a matter property runs from 58. 82 per cent in the case of Oahu to for the State legislature to decide in future sessions, and it 95. 82 per cent on the Island of Maui. In free property, is - - it should not be written into the Constitution. And the range is from 57. 71 on the Island of Oahu to 75. 34 per examination of the various state constitutions on the main cent on the Island of Hawaii. Home exemption also affects land would indicate that there is no such provision placing the over-all assessed value as between the counties and the just homes in the Constitution, eliminating home exemptions, amount of the debt each can incur, as the following compari but they might provide for other types of exemption, but son shows: the percentage of assessed value of taxes to just to single out the homes itself is something that is going real property in the City and County of Honolulu to the total against the traditions of constitutional provisions. And I assessed value is 76.02 per cent prior to home exemptions, may be wrong in that statement, but maybe in a great ma and 74. 83 if you have home exemption; for Maui, the per jority of the states they do not specifically state in the con centages are 8. 5 as against 9.08; Hawaii, 10.24 as against stitution that there shall be no home exemption. 10. 43; and for Kauai 54.24 as against 5.66. I should like to emphasize that there are approximately 32, 000 owners of homes appraised at 112 million receiving LARSEN: [Beginning of statement not on tapej ... the home exemption of $67, 500, 000, so, as a matter of fact, Finance Committee, I imagine it’s been considered, but it they’re getting - — about 60 per cent of the assessed value is seems to me that one thing that makes a state strong is to eliminated. And there are over 60, 000 taxpayers who do have homes and the one thing that some countries have tried not receive the benefit of such exemptions. is even to endow each infant. I’m in favor of - - anybody In all my discussions on the subject, no one has submit who is willing to marry and have a home and have children ted a valid argument for continuing this type of exemption. should be given some recognition. It seems to me the one All of the reluctance to prohibit the granting of homestead thing that we want is to have more people buy homes, and exemptions in the Constitution is influenced by political or if this is merely a little come-on, I just wondered what the emotional consideration& In my judgment, we delegates thinking was in not trying to stimulate more home-buying, were sent to the Convention to draft a Constitution which rather than less. was in the best interests of the State of Hawaii and its peo ple, and I do not feel that our judgment should be influenced by political - - by personal, political, or emotional consid ANTHONY: I have a great deal of sympathy with the erations. chairman of the Taxation Committee in endeavoring in a That’s all I have to say, Mr. Chairman, but I’d be very constitutional article to eliminate exemptions. Several years happy to answer any questions that anybody has, and I have ago, when I was attorney general, I think it was Senator some other committee members here who are willing to Rice called at my office and posed to me the problem, the assist. mounting problem of exemptions. If you will examine Sec tion 51-51 of the Revised Laws of Hawaii, you will find there CHAIRMAN: Anyone who wishes to be recognized? 20 or 30 specific exemptions, some of which are for re ligious and charitable purposes, others are not; some of which are within the provisions of the Organic Act which H. RICE: Originally in the Senate of the Territory of prohibit the legislature from granting any special privileges Hawaii I did not vote for home exemption. I thought that, or immunities, and some do not. This is an effort, as I just what the speaker said, our chairman said that the same understand it, on the part of the Taxation Committee to get people that had home exemption believed in - - should have rid of this bad system of particular exemptions and addres the policing, the fire protection and so forth. But it’s on the sing itself to one question alone, namely home exemptions. books now, and even the last legislature went further and I think the question whether or not we should incorporate gave those who were interested in leaseholds an exemption. this in the Constitution should devolve about whether or not As I say, so far as I’m concerned, I think of the people there will be a greater burden placed upon individuals. If that are getting homes on the understanding that they have we are satisfied that the individual home owner in the last home exemptions at the present time. The average home analysis will not pay any more in taxes, then it seems to me that’s being built in the so-called Dream City on Maui costs that this is a constructive step to eliminate a very bad legis around $7500, the lot costs only $100, and in amortizing lative practice that we’ve gotten into, namely a number of this loan over a period of 20 years, it will cost them, I exemptions from real property taxes. Exemptions, as I understand, the average home-owner, $46. Now, if we view it, should be confined to religious and charitable - - charge them with $32. 50, at the present county rate on educational and charitable institutions, not such as we have Maui it would increase this amount by $8 per month per under 51-51 of the present Revised Laws. If the chairman year or instead of $46, which I claim is high enough for could explain that further, I think it would be of some assist those people to pay, there’d be an average of $54 per month. ance to the Convention. To me—and that’s just one part of Maui. Pioneer and Wai luku Sugar Company are encouraging their people in good WHITE: To answer Dr. Larsen’s question first, sure, faith. They are all building with the understanding that they I’m heartily in favor of encouraging home exemption, but I will get this exemption from taxation up to the $32. 50. don’t think that you should favor home exemption to a certain I say that you’ll find that a state like New Jersey who has group at the expense of all the other residents of this Terri just drawn a model Constitution has left the exemption from tory. And that’s what you’re actually doing is to pass two taxation entirely in the hands of the legislature. I signed million dollars of tax burden from 30, 000 people on the other 429 JUNE 6, 1950 • Afternoon Session 60, 000 people because the amount of taxes to be raised is not list homestead, so that it would automatically be elimi proportionately increased. nated. But the reason for the meeting today is because of To talk to Mr. Anthony, to Mr. Rice also, I’ll agree the feeling on the part of a large part of the committee that that this in normal times is a legislative proposition, but to terminate it immediately Hawaii became a State would be in my opinion the legislature has fallen down on its job for unfair, and in order to give the people who had bought homes a great many years in allowing this thing to continue on the figuring on home exemption, a period of ten years in which way it’s been going because it’s going from bad to worse. to adjust their finances. That’s the reason for this report. Now, If we’re - - we sit around here and talk about the Bill of Rights and all the rest of the things and eliminating HEEN: May I rise to a point of information. I’d like to discrimination and then we allow rank discrimination in get this from those who have been attached to the attorney taxation to go on. general’s office. We have homesteads under the homestead law belonging to various persons. Now, I believe under the BRYAN: I’d like to ask Mr. White if they considered in law relating to public lands which have been set aside for the committee a proposal to the effect that there should be homesteads that these homesteaders have to pay the real no tax exemptions except by general law and if that would’nt property taxes on those lands whenever they may not hold clear up some of the points that Mr. Anthony mentioned. the title, and if that is so, they wouldn’t have the benefit of this tax exemption because under the present statute the WHITE: As the proposal is now written, any - - the pro tax exemption on homes was made for the benefit of those visions that have to do with tax exemptions are written on who have fee simple title or those who hold leases for a a permissive basis to try to protect the wide range of ex certain term and have the right - - and who have, under the emptions that are presently in effect, but that doesn’t mean terms of the lease, the ownership of the improvements. that they have to be continued by the legislature. If you were to go over the number of exemptions, probably the largest TAVARES: I’ll try to answer that question. It’s been - - the longest provision I think that we have in the proposal some time now since I left the office of the attorney general, is on home - - on tax exemptions to take care of the present and I left before this new-fangled leasehold exemption was situation. Now, it’s drawn in a way that it’s permissive, put into effect. It’s my recollection that there is a provision it’s not mandatory so that the legislature can change them at in the land laws that where persons take a general lease of any time. public lands, they shall be subject to taxation. I think the reason for that was that this is public land and the Congress ASHFORD: I would like to ask the chairman a question. didn’t want it to be felt that because it was public land, even Is it not true that iii a very substantial measure the home though under lease, it couldn’t be taxed. I don’t believe that tax exemption is an equalizer in values? That is, when a man owns a large area of a thousand acres it’s usually as that would prevent It from being taxed in an equitable manner sessed at about $100 an acre, and when ha sells a half acre or exempted in an equitable manner in the same way as other for a home that’s immediately assessed at about $10, 000. similar property, similarly used, is exempted. I think that would be the proper interpretation, and furthermore, if we became a State, I think we would - - that problem would WHITE: Well, I think that that is more opinion. I doubt probably not exist any longer. We could change those laws whether that could be [inaudible]. There may be instances to a - - I think, to a substantial extent, depending on what of it, but nevertheless I don’t think that any attempt should be made to equalize taxes by home exemption, I think that’s we put in our Constitution, so as to eliminate that as far as highly unsound. If there’s something wrong with the basis~ the problem of taxation is concerned, in my opinion. of assessment that should be corrected. KING: In the first place, may I ask the chairman of the committee a question. The purpose of this meeting, as I HEEN: I would like to ask the chairman of the Taxation understand it, in Committee of the Whole on Committee Re Committee this question. Does that committee have in mind the recommending of the adoption of the proposal relating port No. 41, is to get the consensus of the Convention with to the exemption of real property and personal property in regard to the home exemption. If the committee report is certain classification, then end up by saying, “All laws ex voted down, the chairman of the Committee on Taxation and empting from taxation property other than property enu Finance would take it as the judgment of this Convention that merated in th at proposal shall be void”? In other words, the Constitution should not include a ban on home exemption, there is a provision in the Constitution of Missouri which is but leave it to the judgment of the legislature in the future I think quite appropriate, without mentioning home exemption. and leave the existing law. That’s the purpose for which this It’s a short proposal - - provision, and I may read it: Committee of the Whole is meeting. Now, is that right? Exemption from taxation: All property, real and per WHITE: I’d say that the practical effect of the decision sonal, of the State, counties and other political subdivi on whether or not this goes to the Committee of Ordinance sions, and non-profit cemeteries, shall be exempt from really Is a decision as to whether you want to continue home taxation; and all property, real and personal, not held exemption or whether you want to ban it by the Constitution. for private or corporate profit, and used exclusively for religious worship, for schools and colleges, for pur ANTHONY: Mr. Chairman. poses purely charitable, or for agricultural and horti CHAIRMAN: Delegate Anthony, what are you rising to? cultural societies may be exempted from taxation by gen President King has the floor. eral law. All laws exempting from taxation property other than the property enumerated in this article, shall ANTHONY: Well, I’m rising to straighten out the state be void. ment which I think is erroneous, that we do not - - Then you don’t have to deal with the question of home ex KING: I appeal for a point of order, but - - emption itself, you deal with it in a general statute. ANTHONY: No, I just wanted to straighten out one state WHITE: Well, that’s just what we’ve endeavored to do, ment, President King, If I may. Senator Heen, in listing the exemptions. We list the proper ties that are - - that can be granted exemption, and it does KING: I yield, Mr. Chairman. 430 TAXATION AND FINANCE ANTHONY: There’s no doubt there will be incorporated taxable homes, 67 million are exempt, about 60 per cent, in the Constitution a provision, either in the legislative and leaving 40 per cent. But the taxable real property of the branch or some place else, against special privileges or Territory of Hawaii is 401 million dollars —that’s homes and immunities. Now, unless there is some exception made to land that is not used for homes—so that the home exemption that in favor of the special immunity which we’re talking is 67 million out of 401 million, a very much smaller per about, then I think there would have to be an affirmative centage of the sum total of all the real property owned in this statement in the Constitution granting the legislative ex territory. emption, or constitutional exemption, for home ownership. And now, there’s another point to consider. It was not In other words, I don’t think you’ve got to deny home owner only to increase the home ownership in the territory but in ship, but you’ve got to affirmatively vote for it in the Consti creased improvement of land. A man may build a home, and tution, otherwise you won’t have it. up to a certain limit get 100 per cent exemption and up to another limit get a 50-50 exemption. Now, I don’t consider KING: Well, the point that I wanted to make was this, that the exemptions in this day and age are very generous. that the purpose of this discussion on this particular com The maximum total exemption is $3,250, at the current rate, mittee report was to clear the air for the Committee on k’s approximately $100 a year. It does not increase with Taxation and Finance. Delegate White, as chairman of that increase in value. A man who has a home that’s worth 15, committee, wanted the judgment of this Convention whether 25, or $50,000 gets no greater exemption than a man who he should incorporate into the report of the Committee on has a home which is assessed at only $5,000; so the grant Taxation and Finance a ban against home exemption. I have is not a very great grant. It was given with the idea of in here the draft of that committee report and it lists the prop creasing home ownership, promoting the improvement of erties that may be exempt and does not include homes. property, and getting wider distribution of land into the Therefore, if we approve of this committee report, under possession of the individual. It has accomplished its pur some modified form, not as an order or an instruction to the pose, and to abolish it at this time would, in my opinion, be Committee on Ordinances and Continuity of Laws, but in a mistake. some other form, the chairman of the Committee on Taxation Nevertheless, I feel that the point that we should consider and Finance would take that as the go-ahead signal to include is not whether it should or should not be abolished, but a ban on home exemption in his report, or the report of his whether we should leave it to the judgment of the legislature committee. Is that correct? - in the future. WHITE: That’s correct. There’s another point I’d like to point out, although the parallel isn’t exactly the same. Nevertheless, on the ex KING: On the other hand, if we table this committee re emptions from real property taxes in this proposed draft of port, the chairman of the committee would take that as the the proposal from the Committee on Taxation on exemption, judgment of this Convention that no such ban should be they listed all kinds of properties that are going to be exempt. incorporated in his committee’s report. Now, I’m not going Homes are to be barred, but property dedicated to a forest into the question of whether there should be some provision reserve may be exempt by law. In other words, if I were the in the Constitution that explicitly permits home exemption. owner of 2,000 acres of land and didn’t want to use 1500 Now, I would like to speak in favor of the - - in opposition acres of it, I’d put it in a forest reserve and escape taxation to the motion to adopt the committee report, and later may until such time as I wanted to withdraw and put it to some second or may initiate a motion to table that report. other use. Property set aside for reconstruction, redevelop I was a member of the Tax Commission that went into ment, rehabilitation is to be exempt. For a limited period, this quite thoroughly some years ago, when we organized that’s true, but nevertheless it’s permissible to exempt it. our whole system of taxation. At that time the home ex Property essential to the conduct of a business, together emption was already on the statute books of the Territory with the improvements thereon, may be exempted from tax of Hawaii, and the Tax Commission argued the problem to ation. There again for a limited period, but nevertheless, and fro, and finally decided that it was a desirable piece of the principle of subsidizing, if you want to use that word, of legislation and would not recommend its abolition; so it giving a grant-in-aid to people who own real property and remained on the statute books. Even had the Tax Commis are going to use it in the public benefit or in the general sion recommended its abolition, the legislature might not interest is accepted by this document which is a tentative have followed out our advice. draft of the committee report. So I feel - - Now, we’re constantly criticized for the lack of general home ownership in the Territory of Hawaii. That is one of SILVA: I second the motion we file it. the points that’s been made by many congressional visitors KING: Well, I am coming to that. I feel quite strongly that have come here to the islands. We have tried over the that it would be a mistake for this Convention to incorporate years. You can go back into Hawaiian history and find that in the Constitution any ban on the extension of home exemption over a hundred years ago the kings of Hawaii made recom I think that’s a question that we could leave open to the legis mendations to the legislature to secure a wider distribution lature, with a probability that the legislature will not ban it. of land and a wider home ownership among the people, and Thank you. right down to the time of President Dole, who made such a recommendation to the legislature of the Republic of Hawaii. RICHARDS: I would like to ask a question of Mr. White My feeling is that this home exemption is an indirect subsidy to make sure that I heard his statement correctly. Do I to a man that is going to buy a home. Nevertheless, it’s understand that you state that there are approximately 30,000 considered to be in the public interest, and in the general home owners who have exemption as against 60,000 renters welfare. that have to pay the tax in their - - as part of their rent? The comparison made by the chairman with regard to the tax situation is not exactly correct, at least the figures are WHITE: I don’t have the exact figures, but the best figure correct but they are limited in their use. The chairman of that the Tax Office could give us was that there were approxi the Committee on Taxation and Finance has called attention mately a thousand - - I mean a hundred thousand home units, to the fact that out of some millions of dollars worth of of which 30,000 are exempt. JUNE 6, 1950 • Afternoon Session 431 RICHARDS: Well then, in other words, there are about up in various legislatures, various sessions, for the last 70,000 home units where the individuals will have to carry eight to ten years. It has consistently been ice-boxed be the load, the tax load of the people who own their homes. In cause there were many who did not wish it to be known how other words those who cannot afford their homes. they stood on such a controversial matter. It seems to me that the delegates of this Convention were KING: If the gentleman would yield. elected to do a job, that which they thought would be best for CHAIRMAN: Mr. Richards, will you yield for an expla the Territory regardless of any political consequences to nation from President King? themselves. And it seems to me that we should judge this matter on its financial merits. We all know that when you RICHARDS: I yield. reduce the amount of a tax base, you necessarily impose to KING: That doesn’t put the situation fairly at all. There that degree the extra load of tax upon those who are not - - may be a hundred thousand family units in Hawaii, of whom who are included in the tax base. If we have home exemp 32,000 are exempt, but that doesn’t mean that the 70,000 tions for 30,000 home owners to the degree that we have it, carry the load. The whole real property of the territory we necessarily are increasing to that degree taxes on the carries the load, including the land that is owned by busi properties that are rented, and the renters then must pay nesses, corporations, and large estates. The renters don’t increased tax. carry the load. If you took the home exemption on a piece of It seems to me that if we view at large those persons rental property and allocated it to the tenants, their rent who own their homes and those who do not own their homes, wouldn’t go up or down fifty cents a month. The landlord we will find that the greatest majority of the home owners would absorb the home exemption and pocket the difference. are persons of greater wealth and therefore more able to That’s about the size of it. pay the tax than those who are renting, and those who rent pay it just the same through the rent that they pay to the RICHARDS: I question our worthy President’s last landlord. We are, as I see it, subsidizing those better able statement; I have yet to hear of any landlord that’s absorbed to pay a tax by relieving them of the obligation of paying a any tax. tax. I want to also point out to this Convention that this morning In the second place, the question was raised that our leg the Committee on Agriculture, Conservation and Lands adopt islature indicated an extension of home exemption by includ ed as one of its proposals - - one section of its proposal, “The ing leaseholds. I happen to live in a leasehold area. I was public lands shall be used for the development of farm and a member of a community association which went into the home ownership on as widespread a basis as possible.” This matter, and over my vote went to the legislature—not that refers to approximately 180,000 acres that, according to I could control, but I mean that I voted against the action— HR 49, is to be returned to the Territory at this time. Now, went to the legislature and attempted and pressurized through if this - - rather this land now for the most part is under leasehold exemptions. I may state, and I think I can prove, lease and full taxes are paid on this land. 1.1 this land is that the entire argument in that association was that if home sold into farm and home ownership, it will further decrease owners get exemption, we should get it. If home owners the tax base on which taxes can be collected, if home owner don’t, we’re willing not to have it, but what we are opposed ship does give a tax exemption. Therefore, it will further to is the discrimination between home owners and those increase the load on renters. who pay for a leasehold and own the improvements and yet KING: The point to remember there [is] 10,000 acres of get no exemption for it. Their argument was not to extend ranch land leased to one landlord, to one tenant, at valuation the principle of exemptions, but to receive fairer and equal that’s fair for that purpose, cut into homesteads with homes treatment with those who already had the exemption. So I built on it, the home exemptions if applied would pay a larger hold that that argument is without merit. tax than the original undeveloped land. There’s no question It seems to me that we will be perfectly justified, in fact about that. We see that in Honolulu all the time. A man buys more than justified, in using the positions and responsibility 20 acres of land up here for 11 cents a square foot at Pablo which we hold to the people of this Territory to write into Valley; he puts in roads and water, and builds houses on it the Constitution a ban against the exemption of property held and sells it for 50, 60, and 75 cents a foot. Even with the for homes, not written out in so many words, it doesn’t have home exemption applied to that improved property occupied to be, but simply by elimination, because we are giving that by home owners, the total tax revenue will be greater than group of people a subsidy and they are the people most able that land was paying to the Territory of Hawaii before it was to pay the tax. sold and developed as a subdivision. Any part of the home In addition, when it comes to the debt limit which we can stead lands of the Territory of Hawaii that are now occupied set up for the State of Hawaii, we are relieving 66 million by homesteaders is paying more revenue into the treasury dollars, as I understand it, from the tax base. And every of the Territory of Hawaii than it did when it wasn’t so used. time we remove more from the tax base, the more difficult I live in a homestead area that is now—Delegate Ashford has the financing of our State government and necessary improve a lot in the same area—that was under lease at two bits an ments becomes. For those reasons I am very much in favor acre years ago and was opened up to homesteads and sold of the report of the committee. for $50 an acre, now valued at something like 50 cents a SAKAKIHARA: Speaking in opposition to Standing Com square foot. The tax value has gone up by leaps and bounds, mittee Report No. 411 have been deliberating here since even with a home exemption in that particular area. That’s reading the report. How many of us campaigned in February true of every single area in the Territory that has been in seeking nomination or election before the people of this opened up for development for small farms and homes, even Territory that if we are elected we will go to the State Consti with the tax exemption applied to it. tutional Convention and write into the basic law of the future KELLERMAN: I would like to speak on several points State of Hawaii, a prohibition against home exemption? I that have been made. In the first place, I’m speaking in favor don’t think any one of the delegates here had the audacity to of the committee report. We all know that home exemption tell the people in all sincerity and all truth that if you elect is a so-called “hot potato.” The question has been brought me, I will go to the State Constitutional Convention of Hawaii 432 TAXATION AND FINANCE and I will write a prohibition in the Constitution denying home bers ought to be willing to hear all of the story. There have owners home exemption, including the proponents of Stand been some statements and mis-statements made here, not ing Committee Report No. 41. - - I say, not exactly correct, that ought be corrected before If the proponents of the prohibition against home exemp you vote on this situation. tion will go back and check up the original home exemption act, they will find that the purpose of granting home ex CHAIRMAN: Will the movant - - emptions was for the reason that Hawaii believed in having HEEN: It seems to me that we are dealing with this contented citizens, to have good American citizens, so that problem in the wrong way. We ought to have before us first people can own homes and enjoy certain exemptions so that the main proposal as to tax exemptions. If there is a - - if they may bring up children who will be contented good that proposal is finally adopted with home exemptions being Americans against foreign ideologies. We all believe today allowed, then - - we have certain elements in our midst who are trying to undermine the American way of life, trying to arouse dis SILVA: Mr. Chairman, I rise to a point of order. content among the citizens [by saying] that only a certain CHAIRMAN: Delegate Silva, state your point of order. few, so-called Big Five, are the only ones able to provide homes and certain privileges, so that you should subscribe SILVA: The point of order is that motion has been made to these ideas that we possess, namely communism. Here and duly seconded to table, unless the motion is withdrawn, we are, through the national administration and through the then we can proceed with the arguments pro or con or what present administration of this Territory, advocating and ever you want to do. I would suggest that the Chair ask the promoting better citizens, and one method advanced by the courtesy of having the motion withdrawn first to table it. present administration of this Territory is to open up more CHAIRMAN: Will the movant - - homes and farmlands so that we will have contented Ameri can citizens who will be so satisfied with the American way SAKAKIHARA: In fairness to those who desire to further of life that they will not be influenced by the so-called com participate in this important question, I’m willing to yield - - munists. withdraw my motion to table for the time being. In looking at the report submitted, memorandums, “State ment spreading the burden of property taxes on all property, HEEN: If the main proposal has a provision allowing tax through elimination of the present home exemption,” they exemption, then this report of the committee at the present also state some 32,000 families, less than one-third of the time would be unnecessary. If tax exemption is to be allowed total 100,000 family units in Hawaii, benefit by this exemption. for homes, this committee report then would be in order in Granted that is true, the fact nevertheless remains that these order to have that exemption allowed for a certain number 32,000 people who own their homes, who have brought forth of years before going into effect finally. Therefore, we in this community families, have some definite securities should proceed with the main proposal first, and not with compared to some less fortunate people, but the fact never this one. theless remains that this Territory has not gone bankrupt RICHARDS: I would like to answer the delegate from the because of these exemptions. On the contrary, Section 51-51 fourth district that many of the members of the committee carries some 62 items giving specific tax exemptions to who signed this report signed it only on the basis that there eleemosynary corporations and religious societies and some would be a continuation of tax exemption for a ten year homes, homes to support aged and indigents. I don’t see period. That is the reason why this is placed before the where this denial of tax exemption will in any way help to Convention in this order. [It] is because of the fact that if improve the so-called financial situation. We are here - - this ten year period were not granted for financial readjust or I can say with all sincerity to the 63 delegates here that ment to home owners and home purchasers that probably I was one of those who voted to give the leaseholders tax the committee would not submit a majority report out in exemption during the 1949 Special Session which became favor of the matter of taking off home exemption. Act 51 - - Act 64. I believe that the committee report should be tabled, so LARSEN: Could I ask a question from the committee? I move that the committee report be tabled. Do you have any figures on how many families are living in leaseholds and not getting exemptions? CROSSLEY: Mr. Chairman. WHITE: As near as we can figure out it runs between 60 MAU: Mr. Chairman, Mr. Chairman. and 70 thousand. TAVARES: Mr. Chairman, Mr. Chairman. SILVA: Under new law they got an exemption on lease- CHAIRMAN: Do I hear a second to it? holds. DELEGATE: Second the motion. WHITE: This is the 1950 - — these are the 1950 figures that they figure out of approximately 100,000 family dwellings~ DELEGATE: I second the motion. there are - - CHAIRMAN: It has been moved and seconded the com SILVA: Those are rental units, not leaseholds. mittee report No. 41 be tabled. WHITE: Family~units. There are 32,000 exempt, that CROSSLEY: Mr. Chairman, if you would recognize the would leave approximately over 60,000 non-exempt. people who are on their feet and not look for a second - - LARSEN: In other words, you have for each family that’s CHAIRMAN: The Chair ~eels it’s proper that after a paying this tax, you have - - I mean who were exempted, you motion is made, a few seconds should be allowed for anyone have two families who do not pay it. That right? interested who wants to second the motion, and that is what the Chair did. WHITE: For every one family that is exempt you have two families not exempt. TAVARES: Well, Mr. Chairman, in fairness to this com mittee whose report is about to be tabled, I think the mem LARSEN: Yes. JUNE 6, 1950 • Afternoon Session 433 AKAU: Mr. White, along that same line would you clarify The point is that I think that if the home exemption is this so that we could know why it may be a legislative matter. pointed to be the thing which has encouraged home ownership, It still enters into our thinking regarding this exemption pro the argument falls because in Hawaii today we have only or con. We know that many of our religious institutions here, 24,000, 25,000 at the most, home owners, yet on the Island as well as other organizations, do own and lease and rent a of Oahu alone you have 60,000 rental units. In the days when great deal of property to others on which to live; that is, the home exemption was granted and put through for the purposes income is to the religious organizations. Now, in view of of granting or encouraging home ownership, we did not have that situation, what happens from the point of view of exemp available to the populace the tremendous government aids tion of land and property and real estate and income to those in financing. The FHA was not known then. The Veterans’ religious organizations over and above the question of Bill of Rights was not known. The 4 per cent mortgage, eleemosynary institutions? while known, in some cases had no federal insurance. Today we have these emoluments that aid people who want to own WHITE: Any property that is for profit-making purposes their own homes. The problem is still a shortage of land. cannot be exempted, and is not exempted. And you - - this cannot be solved by the process of granting home exemption. SILVA: I am really amazed at some of the remarks Now, I would like to look at this home exemption thing, passed here about the person who uses the tenement is the not on the basis of who is paying the tax, who is paying the taxpayer in all instances. In a lot of instances some of real property tax, but upon a straight basis of who is going these units are not rented and sometimes they’re vacant to finance this State. We have gross assessments of our and the tax goes on just the same, and the landlord will have land of 770 millions of dollars. We have exemptions amount to pay it. To say that the land - - that the tenant is the sole ing to 437 millions of dollars, leaving us a net taxable land taxpayer in that instance would be an admittance upon the area - - land assessed at 333 millions of dollars. Now, if fact that American Factors, Davies and Co., and any people we take out the United States lands and the territorial lands in business pay no taxes because the consumer is the ultimate and the county lands, if we take out the charitable lands, if taxpayer, and I know surely that no one would care to admit we take out the utilities, we still have not even four hundred that. They’d all say, “Well, we’re in business and we pay thousand - - four hundred million dollars of assessed - - in our taxes,” but there would never be an admittance that no assessments that can be taxed for real property taxation. one pays taxes but the consumer. We grant that that’s quite I present that the matter of exemptions is actually dangerous true, but we would like to say that we do pay our taxes. when we are trying to finance our State. The point I’d like to say is this, is that in true Ameri How far can they go? if you’re going to encourage home canism, which we intend to build within this territory and ownership, you’re going to grant more exemptions. I fore to carry on, is that the average home owner, especially on see the time that it is possible that a State like Hawaii, the Island of Hawaii—I was thinking about Hawaii—where limited as it is to land and income, may have to withdraw the tendency among the corporations themselves, plantations, some of the exceptions to charitable organizations. I do not is to eventually give these homes to the people. Well, when think that we can go on and on granting exemptions forever. I say give, I mean sell, within a reasonable rate, about the We must stop somewhere; perhaps this is a good time, this cost. For us to now, just at that point, to invoke in our is an historical moment, to look this business of exemptions Constitution that those of. that class shall not receive an in the eye. Here is 66-67 million dollars assessed land that exemption, will surely put those people, that class of people can be taxed for which the government presently would get who intend to own these homes, in a very, very bad position, two million dollars more in taxation. It will create no burden, and in a position where they would have a doubt in even buy unsurmountable burden, uncarryable burden, on the part of ing the home because the moment they would care to put in the people who will pay the tax. This has been indicated by an improvement, we say for a bathhouse which would cost the facts. I see no sentimental reasons other than that $500, they would have to pay a tax on it, but if it had an where a man can use as a political drum this business of exemption of $1,500, they could put in this improvement and fighting for home exemption.. But looking at the facts of not pay the tax at all. And that in itself would be something paying the bills for the State, I feel that we should look at it for the Territory, which eventually brings in revenue, paint, on the basis of a balance sheet and I think we can find fair employment and that would offset what we lose. I just want enough reasons to abolish the home exemption. to say that as far as the Island of Hawaii is concerned, the tendency is that there will be a greater proportion of home FUKUSHIMA: As I sit here and listen to the arguments owners than there are tenants. day alter day, I’m just wondering what kind of a Constitution we’re going to have. For weeks on end we have been talking CASTRO: I would like to speak in favor of the committee about the philosophy of certain types of governments, philo report, briefly. First, to contradict a statement that has sophy of the Bill of Rights, philosophy on public welfare. been made, that is, a conclusion that has been made. When It seems to me that we will all be authors of a book on the home exemption law was passed some number of years philosophy. ago, the stated reason was mercly to encourage home owner Now, we are arguing something which is strictly statutory, ship. It is, however, a fact that many of the proponents of there is no question about it. They try - - the proponents home exemption felt that it would discourage the tendency say that this is a “hot potato” for the legislators. What if it on the part of large landlords to rent land and would force is? We came here to write a Constitution, a basic law; now them to sell the fee. Now, this has not happened, and the we’re going and delving into the realm of legislative enact best proof of that is the fact that some of the must substan ments, statutes. To me, it seems awfully ridiculous to have tial landowners are people who have refused to buy the fee people stand up and talk about statutes when it should not be when they have been given an opportunity. In 1948, out of so, or else also going to have the Hawaiian Homes Act in our 112 leaseholders in the new section of Ama Haina leasing Constitution, something which is very different from the from the Robert Hind, Ltd. who were offered the chance to constitutions of the other states. I’m not saying that I’m buy the fee, some two dozen accepted. However, this isn’t against that, but when we come here and talk about statutory my argument. enactments in our basic law, I think we’re going far afield. 434 TAXATION AND FINANCE People who get up and say that it is not statutory I know are tions of real property whatsoever, church schools, forest wrong, because it is statutory. If they say so, they are reserves, business property, then you are putting in a ban varnishing nonsense with the charms of sound. that is of general application. Once you admit that there is I feel, also, that we should not be the grand marshals in any justice or any merit in any exemption, then you can’t the parade of government. This is not the time that we stop at home exemption as a necessary point. should make changes. We should be here writing a Consti Now, while I’m on my feet, I would also like to refer to tution and nothing else. I am of the inclination and I definite the inference of politics. The only office for which I’ve run ly feel that this is purely statutory; it has no place in our myself is delegate to this Convention, in the last ten years. Constitution. That’s no promise for the future, but nevertheless, there’s no question of politics in it; it’s a question of justice, a TAVARES: I’m going to be brief. I think that the prime following out of policy that this Territory’s had for about problem here is equalization and equity, and you can’t prove 25 years on the statute book. I’m in entire sympathy with any equalization or equity in this iniquitous tax exemption. Delegate Crossley and Delegate Fukushima that it’s a You’ve already been shown how 60,000 or two-thirds of the statutory matter. people don’t get it. Now, as we get down to the finances, this Territory isn’t There’s another angle. Even among the people who do, going to stop at 400 million. The legislatures of the future who are, who have, who own homes, you have an iniquitous will have different sums to work on. The assessed values lack of equality, If a man has a home and he’s built in such are going to go up, right today they lag behind current market a way that he can draw a wall straight down to the ground he value, and the tax burden will be prorated at those higher can get an exemption on half of it or any part of it that he evaluations. uses. But if he happens to have a little basement or some The problem that the Taxation and Finance Committee thing on top and rents it out, he can’t get an exemption. And wants to settle now—that’s why they’re putting the cart be that’s just one of the many, many iniquities that you have fore the horse, as Delegate Heen has pointed out, and want to have when you have a home exemption. And you’re going a decision on this particular issue before they bring in their to continue that as long as you have it. There’s no way, it final proposal—their problem is to fix a tax limit for the seems to me, of changing that lack of equity. And it seems ensuing ten or twenty years. But this Constitution that we’re to me that since one of the problems of this Convention is writing today is going to be amended in ten or 15 or 20 years. to provide for equalization, at least in the same class, you The last one was 50 years ago, the Organic Act. That’s been are not getting it by your home exemption. amended repeatedly by Acts of Congress. The one before that only lasted for six years, so we’re not writing a Consti CROSSLEY: In 1943, when I served in the legislature, I introduced such a measure as is before us today except that tution in perpetuity, and the land values of this territory are it was more inclusive. I introduced it at that time because going to increase in assessed values, and the tax burden I feel — — I felt then as I’m sure the proponents of this would be distributed accordingly. measure do today that it was the equitable thing to do. I Now, to get back to the point that Delegate Castro made, still think that is true, though I would be against including he said there was 700 million dollars worth of taxable it in the Constitution because I feel, as some of the previous property here, but there is 400 million dollars of home speakers have felt, that this is statutory, that this is some owners’ property. Where is the other 300 million? Why thing for the legislature to handle, whether it’s hot or cold. not put that on the tax roll? That’s exempt for schools, They are really the people who are elected to go in and churches, other public benefits. And if that’s true, well, change the statutory laws of the Territory. I think our then, home exemption isn’t so far off, 67 million dollars to purpose here is a different purpose, and I do not think that promote home ownership and 300 million dollars to promote we are here to take the “hot potatoes” out of the legislature, other general welfare projects. and if I were in the legislature I wouldn’t hesitate for a CROSSLEY: There was one point that I - - one other moment to vote for such a bill, but in a Constitutional Con point I’d like to speak to. That is, the Committee on Sub vention I think it’s a totally different thing and I do not think mission and Information is going to have a very difficult it has any place here. job, I believe, in presenting a Constitution to the people that is going to be well understood in all of its implications, if WHITE: Could I just talk a moment? In the first place you take and add to that measures that could be considered there are constitutions that do prohibit - - I haven’t seen to be purely legislative or statutory in nature, I think the any constitutions that prohibit home exemption, but they job is going to be doubly hard, especially when you get into prohibit the imposition of income taxes, so I don’t think such controversial issues as the one on home exemptions. that this is so far afield that it can’t be put in the thing. I’m reminded again in 1943 of the hundreds of letters that The reason why it is of serious concern to the committee I received against the proposal that I made at that time. at this time is that it has a bearing and a very definite Those are the same people that we’re going to go to and ask bearing on the debt limitation that we fix for the State, and to understand in a short time, in a relatively short time, a an answer to the thing, one way or the other, is important document that has taken us just hours and hours, and days to the committee. And, for that reason, I think that it and days, weeks and weeks, and how many months no one could well, very well go into the Constitution. knows, to complete. And I think it would be very difficult Now, I’d like to ask a couple of the opponents to this to go and have to defend issues that the people themselves measure that have talked about all the good it does and how feel that they should have the right to speak on, and I would unfair it would be, whether, and I’d like to ask Mr. King in hate to see an otherwise perfect Constitution defeated on just particular, whether he feels that it’s right that 7,350 tax one issue alone, and yet I feel so strongly that on an issue payers pay no real property tax at all, and that another such as this the entire Constitution could be defeated. 9,839 pay on the average about $11 per year for the benefits of government? CHAIRMAN: The Chair would like to state that the previous movant of the motion to table has been very anxious KING: I would like to answer that question in this way. to be recognized. But none the less in fairness, the Chair If we would put in the Constitution a ban against all exemp would like to state and ask that we should give those who have JUNE 6, 1950 • Afternoon Session 435 as yet not had the chance to speak, and after that give the SAKAKIHARA: It is purely a statutory matter which could chairman of the committee the last chance to say his few be taken care of by legislative acts. We are about to write words. Unless Delegate Heen has - - into the basic law a statutory provision, and if the gentleman from Kauai has any doubts that it is not a statutory matter, HEEN: I have a contribution to make, Mr. Chairman. All then it should be in the Constitution. But if it is purely a of the arguments this afternoon have been pointed to one statutory matter, we are here to write a Constitution, and not question, whether we are to have home exemption or not. a statutory provision. That’s the argument. There are those who favor home ex emption; there are those who do not favor home exemption. ARASHIRO: I’m trying to get my mind clear whether this Therefore, we should decide that question first before we - will affect the setting up of our government, the kind of basic act upon this report. if we have the main proposal written law that we have, and whether it will have anything to do in such a manner as to allow home exemption, then this re with the operation of the government. port here would be out of order - - CHAIRMAN: The Chair would like to at this time to recog KING: Mr. Chair man, will the gentleman yield? nize the chairman of the Committee on Taxation and Finance. HEEN: - - but if this were adopted, the Committee on WHITE: Well, I don’t have much to add to what I’ve al Continuity of Law might write a long report and submit ready said. Answering to the point of these people that a proposal that might be thrown out of the window, if the talk about all the voters wanting the home exemption con main provision provides for home exemption. if it provides tinued, I think you were all furnished with a committee - - for no home exemption, then it would be in order for that with a report that came in from Mr. McDonough in which he committee to act. attached a report of the Joint Tax Study Committee in which KING: Will the gentleman yield? they said that all their membership was wholeheartedly in favor of banning home exemption. I think that that represents CHAIRMAN: Delegate Heen, do you yield? a large number of voters in this community as well. As far HEEN: Yes. as I’m concerned, I’m primarily interested in seeing a very flagrant discrimination cleared up. I have no wish to deprive KING: The point at issue is not whether we shall have home owners of anything that they are rightfully entitled to, home exemption or not, it is whether we shall ask the Com but in this particular instance I think that they are getting mittee on Ordinances and Continuity of Law to draw a law something at the expense of a great many other people. that would extend it for ten years, and then the Committee on Taxation would bring in a proposal that would ban it. The SAKAKIHARA: I desire to renew my motion. Before I Committee on Taxation brought this up by request, in order renew my motion, I would like to say this. It is not because to have some instruction regarding its proposal. Now, if of political issues. Whether this committee report is adopted, we follow Delegate Heen’s suggestion, which I recognize as we will have for the next ten years a guarantee of tax exemp being the more proper order and procedure, nevertheless tion but it seems to me that this Convention will dictate to we would first have to have a proposal before us with the the legislature ten years from now on a basic law when we home exemption in it—that’s the way that committee report have a proviso that all home exemptions shall be wiped out. has been done —with the home exemption banned, I think; I’m sure we will have just as intelligent or more intelligent and then this other instruction to extend it for nine years. people aspiring for legislative office under a State govern While before that proposal is submitted, the chairman of ment. We have more and more young men and women the committee, I think very promptly, wants the judgment graduating from schools, coming forth, and I’m sure we can of the Convention whether he shall draft it that way or not. entrust to these future citizens the destiny of our State, and Delegate Richards said that many of them signed it with the I wish to state this is purely a legislative matter and has understanding that it would be continued for ten years. So no place in the basic law. it isn’t whether we shall or shall not have home exemption. I now move, Mr. Chairman, that the committee report It’s whether the Committee on Taxation shall at this time be tabled - - ban home exemption. DELEGATE: Second the motion. Mr. Chairman, I second CHAIRMAN: Is there anyone who hasn’t yet spoken who that motion, Mr. Chairman. would like to be recognized? SAKAKIHARA: - - and that there be instruction to the Com ARASHIRO: I’ve been listening this whole afternoon, and mittee on Taxation and Finance that this Convention instructs the question in my mind is whether this should be a consti them to leave the basic law - - home exemption alone, and tutional matter or a statutory matter. if it’s a matter that explore the other field of taxation. can be written into the Constitution and a matter that we do not have to worry for the next 10 to 20 years, and not a APOLIONA: I second that motion. matter of controversy, then maybe it should be in the Consti CHAIRMAN: It has been moved by Delegate Sakakihara tution. But as it has been debated on the floor, there is a and seconded by Delegate Apoliona that the Standing Commit doubt in my mind whether it should be written into the Consti tee Report No. 41 be tabled. All those in favor of the motion tution, and again if it should be written into the Constitution - - to table Committee Report No. 41 - - or if it’s not written into the Constitution, can this matter be taken care of? if it can be taken care of without being WHITE: Could we have roll call? written into the Constitution, then should we leave it out? CHAIRMAN: All those - - how many desire roll call? SAKAKIHARA: Mr. Chairman. SAKAKIHARA: I second the motion for roll call. CHAIRMAN: Are you through, Mr. Arashiro, or do you CHAIRMAN: We shall have a roll call. All those in favor yield? will answer “aye.” Opposed, “no.” ARASHIRO: Well, I’ll hear that gentleman from the first TAVARES: I take it that that latter part of the movant’s district. motion should not be included in this motion. I think it should 436 TAXATION AND FINANCE be a separate one. I think it’s a little bit mixed up to vote ANTHONY: In view of the statement of the chairman of on two things at the same time. the Committee on Taxation and Finance - - SILVA: There’s only one question. The question was put CHAIRMAN: Will you - - just a second, Mr. Anthony. to table, as put by the Chair. Would you be willing to yield for one speaker? TAVARES: All right, if that’s the understanding. ANTHONY: I would like to withdraw the motion. CHAIRMAN: The understanding is that the motion is to CHAIRMAN: In that event, there is no business before table Commktee Report No. 41. Will the Clerk please call this Committee of the Whole. Motion in order to rise. the roll. C. RICE: I move the committee rise and report recom [Roll call not on record] mending that this proposal be tabled. Clerk please read the results of the vote. SAKAKIHARA: I second that motion. CLERK: Forty-three ayes, 13 noes, 7 not voting. CHAIRMAN: All in favor of the motion, please say “aye.” Opposed, “no.” Carried. Committee will rise. ANTHONY: Mr. Chairman. CHAIRMAN: The ayes have it. ANTHONY: I move that we reconsider that and defer Chairman: HERBERT K. H. LEE action until the report of the Committee on Taxation and Finance is brought in. I think a great many of us - - on the JUNE 19, 1950 • Morning Session general question of tax exemption, a great many of us who voted to table, voted that way because we would like to see CHAIRMAN: The meeting will come to order. the article first, before we dealt with the minutia of home exemptions. CROS5LEY: I move that we have a five minute recess at the pleasure of the Chair. CHAIRMAN: Do I hear a second to the motion to recon sider? CHAIRMAN: I see that there is no objection to a five HEEN: I second the motion. minute recess. A five minute recess is declared. CHAIRMAN: It has been moved and seconded that—just (RECESS) a second—k has been moved and seconded that we recon sider the motion to table. SAKAKIHARA: Mr. Chairman. WHITE: In preparing its report, the Committee on Finance and Taxation has gone into considerable detail and HEEN: And in support of that motion - - it has done so believing that it was advisable in the interest of clarity. In presenting the views and recommendations CHAIRMAN: Delegate Heen still has the floor. of the committee at this time, I’ll endeavor to brief them, HEEN: - - in support of that motion, if the report on the as I assume the delegates have read the report a half a main provision as to tax exemption is written in such a dozen times, so it won’t be necessary to - - they have manner as to provide for home exemption, then you don’t probably memorized a lot of the sections. In any event, we need this action on this report at all. I voted to table the can refer to any section as and when necessary. At such motion to adopt the report for that reason. If the provision, time as we take up consideration of the proposal, it is my the main provision provides for the elimination of home suggestion each individual section be acted upon separately. exemption, then it would be in order to have some provision Before proceeding to consider the proposal itself, I be written into the law to postpone the final effect of this event, lieve that a brief outline of the principles which guided the provision to some future date. Otherwise you wouldn’t have committee in its deliberations and conclusions would be in to act on it at all. If home exemption is to be allowed, then order. These are: (1) That an essential requirement of it would become statutory matter. good state government is a strong chief executive, and WHITE: It’s quite apparent from the expressions that accordingly he should be supported by a strong financial were made here today, that the vast majority of the delegates organization. (2) That adequate checks and balance should here are very strong for continuing home exemption, and be provided between the legislative and executive branches as far as the Committee on Taxation is concerned, the vote of the State, without the encroachment of one on the pre is ample notice to them that they don’t want - - that the Con rogatives of the other. (3) That means for the early con vention does not want home exemption discontinued. So that sideration and passage of the general appropriations bill the simple thing - - it makes our job a whole lot simplier should be provided so that the overall requirements of the because we then do not have to come in with any lengthy and State ôan be more readily determined and thus obviate detailed description of properties that are entitled to home confusion and uncertainty with respect thereto. (4) That exemption, that is left to the discretion of the legislature in effective control over expenditures is essential, as are also, its entirety. So that I would much prefer to have this vote when the legislature is not in session, means of curtailing stand and have it taken as an expression of this Convention expenditures when it is apparent that anticipated revenues that they are opposed to discontinuing home exemption, and will not be realized. (5) That the tax structure, the types we will then write our final report accordingly. of taxes, and the granting of exemptions therefrom should be left to the discretion of the legislature. (6) That safe SAKAKIHARA: I make a motion at this time that we guards to protect the credit of the State and its ability to table the motion for reconsideration. issue bonds at favorable rates of interest are vital require CHAIRMAN: Do I hear a second to the motion? ments. (7) That positive separation of pre-audit and post audit functions is a prerequisite to effective financial con SILVA: If k’s going to be withdrawn, I won’t second k. trol. JUNE 19, 1950 • Morning Session 437 Now, turning to the subject of organization, the proposed the exception of the examination of vouchers and the estab offices and the duties of each are set forth on this chart. lishing of accounting policies and procedures, which are We divided this into the duties of the three officers that are handled by the present auditor. Also, the collection of bank proposed in the committee report, commissioner of finance, and estate taxes that are presently handled by the treasurer, the treasurer and the commissioner of taxes, who would be under this proposal would be transferred over to the com missioner of taxes. That also applies to the audit of the in the executive organization. Now, there is a line drawn counties which is presently handled by the bank examiner. there to show that the auditor as proposed in this commit tee report is considered a part of the legislative branch of the government. CHAIRMAN: In other words, Delegate White, those Under the commissioner of finance, here, all of the duties three offices there correspond to offices of the present Ter ritory; that is, the commissioner of finance represents the shown in black are those that are presently administered by budget director, and the treasurer, the treasurer, and the the Bureau of the Budget: that is, analysing budget estimates commissioner of taxes, our tax commissioner. Is that of departments and so forth, except the public service cor right? porations such as the department - - I mean, the Board of Harbor Commissioners and boards of that kind; consulting with department heads; submitting findings and recommen WHITE: That’s right. The only major difference there is a change in title as far as the budget director is concerned dations to the governor; compiling the budgets for the gover and separating the post-audit functions from the pre-audit nor; effecting periodic allocations of appropriations as di-~ functions. rected by the governor. Now, as stated in the report, it is not proposed that the Now, the examination of vouchers, or what is sometimes respective functions be enumerated in the Constitution, but termed as pre-audit to make sure that the payments are ac it is hoped that the description set forth therein will be a cording to law or authorized by law, and the establishment help to and used by the legislature in defining their duties. of accounting policies and procedures are now functions of Inaccordance with the recommendations the Committee on the State auditor and under this proposed setup would be Executive Powers and Functions, it is proposed three of transferred from the auditor to the commissioner of finance ficials be appointed by the governor with the advice and con so that the auditor’s functions would be confined solely sent of the Senate to serve at the pleasure of the governor. to post-audit. Also, there is one other item here, the es There is some support for the belief that because of the tablishment of purchasing policies and procedures. Then specialized character of his work and the dependence of the there’s an over-all provision under the job description to governor upon him in connection with fiscal affairs of the provide for all other functions prescribed by law. State that the appointment of the commissioner of finance Now, under the treasurer’s duties, the same duties are should not require Senate confirmation. covered that he presently handles with two exceptions. He Now, to get to the proposal itself. The first five sections would still continue to carry on or be responsible for the re cover the budget and appropriations. These provisions con ceipt of State funds, custody of State funds, disbursement of template that the governor will be responsible for develop ing an over-all financial program either annually or every State funds, and also for the sale of State bonds. The func two years and it will be submitted in two parts, accompanied tions that have been transferred are the collection of bank by bills to cover appropriations, new taxes or borrowings and estate taxes which he prdsently handles and, as stated as may be required. A full chart has been developed to in the report, in order for him to assess the taxes it is ne illustrate the course of action required under these proposals cessary for him to get all the basic information from the and I would like to refer to that even before we get to the tax commissioner, so that it would be better to leave the proposal itself because there are a number of different sec collection of those taxes with the tax commissioner rather tions of the proposal involved and I think it might bring about than with the treasurer. And, as you will see in A under a clearer understanding of what is proposed. the auditor, the audit of the public subdivisions is pre Now, under the recommendations of the committee, as I ently handled by the bank examiner’s office and should, in stated a minute ago, the governor would be required eventu our opinion, the opinion of the committee, be handled by the ally to develop an over-all financial program for the Terri State auditor, if that office is set up. tory. Initially, the departments—I just mentioned a few of Now, below the office of treasurer here, you see in A, the departments—the regents of the University, Department B, C, there are duties of fire marshal, insurance commis of Public Instruction, and other administrative departments, sioner and the bank examiner. Now, those are presently would be required to prepare a budget in two parts: one, duties or responsibilities of the treasurer’s department. covering their ordinary operating expenses which, inciden There is some question in the minds of the committee tally, would also include any incidental equipment require whether all of those functions should be continued under the ment for all of the departments, and then a capital budget. treasurer’s department. The nature of the work as well, as And those two budgets then would clear over to the com the responsibilities of the job are such that it is felt that missioner of finance who would analyse them and, after full they might be better placed in some other department. How analysis, would then consult with all of the department heads ever, that is just put there as a matter of calling the subject concerning any of the recommendations made. After, that to your attention and that, naturally, would be left to the dis work had been completed, he would then develop his findings cretion of the legislature. and recommendations and that would serve as a basis for the Are there any questions that anybody would like to ask general appropriation budget and also for the capital ex about the chart? penditure budget. Now, those bills then would then clear over to - - He ANTHONY: I think it would be well if we could have a would also have to determine what the anticipated revenue statement from the chairman of the committee as to the was and also determine whether other additional means of relationship of the chart to the existing territorial govern providing revenue would be necessary, that is, the form of ment. I assume it is allocated on some such basis. Is it additional taxes. Then the budget would then go to the gov not, Mr. Chairman? ernor for consideration and, if it met with his approval, it would then pass on to the legislature for consideration. It WHITE: Well, that’s what I was explaining. These du is being proposed that the general appropriation bill be given ties here are presently handled by the budget director with first priority and that action on other bills other than special 438 TAXATION AND FINANCE bills, for instance the deficiency appropriation or the bill to the executive department to practice the austerity program cover the expenses of the legislature, beyond those two bills that they have now in force? no other bills would take - - would be considered until alter the bills had passed final reading by both houses of the leg WHITE: You mean to alter it? islature. Now, you see there that it’s proposed that on the general SAKAKIHARA: No. If this Convention should incorporate appropriation bill that any changes in the general appropria in the Constitution to hold an annual session of the legisla tion bill would be limited to adjustments as between items ture, one known as a budgetary session and the other during within the bill and that the legislature could not exceed the the even years a general session, wouldn’t it eliminate many amount - - the over-all amount recommended by the gov of these things which the present administration is doing ernor, but they could make switches in between departments. along the line that you pointed out? Any other bills - - any increases over that amount would have to be covered by separate bills, each bill applying to WHITE: No, I wouldn’t say altogether. What you would a particular project or purpose, and thereafter the bills do is to - - you’d cut down the period over which you have would then go through the legislature as well as any bills to work your estimates, but even on an annual session, your that were introduced by members of the legislature, then estimates would still be prepared a year and a haif in ad go back to the governor for approval and under the sections vance and things can change very radically within the period of this proposal as provided, the governor would also be of a year and a half. I think that the number of times that vested with the authority to make item vetoes, that is, by the governor might have to exercise that power would be reducing or deleting amounts. And in those instances it materially reduced by your annual session, but I don’t think would have the same effect as a veto of a whole bill and the that it would be entirely eliminated. legislature could override the veto by a two-thirds vote of both houses. And, thereafter, it’s provided that in the han SAKAKIHARA: I noticed from column 3 on the chart there dling of the - - or the control of the expenses, that the gov Mr. Chairman, “Executive departments,” you are taking ernor, under two particular situations, would be vested with away the policy-making power from the duly elected officials, the power to reduce appropriations, that is to reduce ex namely the legislature, and investing it to the governor. Is penses below the amounts appropriated: One, if the revenues that correct? fall below the estimates on which the appropriations were based, and two, if such authority is given to them - - given WHITE: Taking away what power? to the governor specifically by statute. As far as the allocation of funds is concerned, the pur SAKAKIHARA: The appropriations there. pose of that is to provide that there be periodic allocations of funds because, as pointed out in the report, under the WHITE: No, no. He passes it on for the legislature to present system the budget is really developed about three act on. In other words, he approves the general appro years in advance and the purpose of making these periodic priation bill and the capital - - general appropriation budget allocations is not necessarily to interfere with the actual and the capital expenditure budget as prepared by the com operation of any of the departments of government, but more missioner of finance. It goes to the governor for approval, to require that the governor can make allocations on a quar who thereafter sends it on to the legislature for action. terly or some other basis to take care of work programs that are developed by each of the respective department heads. SAKAKUIARA: It’s still there under the caption of “Leg Now, the advantage of that is quite obvious in that if the gov islative Functions,” “amendments, decrease or change but ernor didn’t have the power to make these allocations, why no over-all increase.” Is that right? it could conceivably develop that any one department could spend a very substantial part of their budget in the first WHITE: No over-all increase on the general appropria quarter, and therefore it would be very difficult to cut down tion bill but the legislature can increase by initiating sep on expenses if it became necessary due to a falling off in arate bills. revenues. It’s not proposed in here, and I think it’s covered quite SAKAKIHARA: But won’t that be the general function, clearly in the report, that whatever legislation is enacted the policy of the legislature rather than to spell it out and to implement this procedure could require that in making say you cannot increase the budget as submitted by the any reductions under those situations where the revenue budget director or the commissioner of finance to the leg falls below estimate that the governor would be limited in islature without introducing a separate bill? Isn’t that ma4dng those reductions to making them by amounts instead policy-making a privilege of the legislature without the of by being able to tell a department head that he shouldn’t approval or limitations on the legislature? be able to employ this man for this particular purpose or that he shouldn’t buy this desk or that he shouldn’t - - he WHITE: I don’t think that it encroaches on the powers ought to put off the purchase of a typewriter until the follow of the legislature at all because they still have the right to ing quarter, or something like that. handle it by a separate bill. I think that one thing that it I know that there has been some criticism of the present will do will assure the early passage of the general appro system due in part, in my humble opinion, to ineffective priation bill instead of having it heid up by the legislature administration when the budget director goes to the extent until the dying hours of the session. of instructing the department head what items he should have and what items he shouldn’t have, and I thiak the report SAKAKIHARA: It won’t necessarily hold it up to dying is quite explicit on that. And, of course, it should be very night of the session. I think the legislature can pass general - - the legislation should be very carefully drafted to make appropriation bills first without these prohibitions in the sure that that idea is carried out in the law. Constitution. I think it’s a policy of the legislature. They should be left free—they are elected officials answerable to the people provided they make adequate provisions for SAKAKIHARA: May I ask the chairman of the Finance revenues. Committee a question? With the holding of budgetary ses sions during the odd years, Mr. White, won’t we be elim WHITE: I don’t think that there’s anything unreasonable inating a lot of those powers, or the necessity on the part of about that because, after all, we’re talking about a strong JUNE 19, 1950 • Morning Session 439 executive and he spends a considerable amount of time de WHITE: Well, as you see here, if we take the D. P.1. veloping this program and he comes in with a program. budget, the D. P.1. budget would be developed - - would be prepared in two parts, the operating budget and the capital SAKAKIHARA: That is true. budget. Thereafter, that budget would go to the commis sioner of finance who would analyze the budget and if there WHITE: Now it’s quite possible that the legislature may were differences of opinion—and I can’t imagine that there not agree with him and they have the right to disagree with wouldn’t be between what is recommended and what the him. The only requirement there is that if they do disagree commissioner of finance may not believe is advisable—in with him and they are going to exceed - - if the general any event, he may want clarification on some of the items. appropriation bill provided for $50, 000 and they are going Then he would go back and consult with the head of the D. P. to exceed that amount, whatever the excess was would have I., and once having satisfied himseif on that particular to be covered by a separate bill. thing, he would then develop his findings and his recommen dations to the governor and the D. P. I. general operating SAKAKIHARA: Provided the legislature would enact a expenses and capital budget expenditures would then be in sufficient revenue measure to provide the additional increase corporated as part of these two bills, the general appro without a separate bill. priations budget and the capital expenditure budget. Now, that would then go to the governor for his approval. As a CROSSLEY: Point of order. related activity of that, there would have to be revenue bills, appropriation and revenue bills drawn up to support whatever CHAIRMAN: State your point. this - - the recommendations developed by the commissioner of finance, and those would go to the governor who would CROSSLEY: It seems to be that we’re beginning to de then send them on to the legislature for submission. bate sections of this proposal without having any part of the The general appropriations bill, that would receive prior - - preferred action, come down and be handied here. As proposal before us. We are taking out a certain section and debating it without that section yet being before us. you see, the general appropriation then would come down here and would come over to the governor to review any CHAIRMAN: The Chair feels that your point is well taken. changes that had been made up here. If we assume that the It has allowed the questions to be put by Delegate Sakakihara total of the general appropriations budget was $40 million, in the point of allowing it to go in as far as possible, but I the legislature could make changes in between items there, think your - - but it could not exceed over-all $40 million. Now,when it comes down here, the governor would then have the right SAKAKIHARA: I want to clarify - - to reduce or to strike out or reduce items, after which, then, the general appropriations bill would go back to the CHAIRMAN: Your points are merely points of clarifica legislature who would then be in a position to override the tion. governor if they did not agree with the changes that he made. Now, the same procedure would follow on your capital SAKAKIHARA: That’s right. improvement budget except that the capital improvement budget might come through with a number of bills, because CHAIRMAN: So that’s a matter of debate. they’d all be separate bills on each project and the legis lature wouldn’t necessarily have to consider all of them and SAKAKIHARA: In view of the fact that we have a chart act on all of them at one time. here, the chairman of the Taxation and Finance Committee CROSSLEY: I had one more question along the highway is trying to explain to this Committee of the Whole from here. The broken line from the governor back to the “Find this chart here. [Facsimile of chart on page 440.1 ings and recommendations” wasn’t explained as to just what that function was and how it worked or the relationship CHAIRMAN: Delegate Sakakihara, I believe the points between the “Determination of anticipated revenues” and have been clarified, so that there are differences of policies, the “General appropriation bill.” so that if Mr. White will proceed in his explanation. WHITE: The only difference in the broken line is that it indicates contact but no actual working or line arrangement. CROSSLEY: I wonder if Mr. White would be willing to That’s all. follow out, say, on his tn-borough bridge here along the solid highway lines and the broken highway lines an item DOl: I have two questions. The first is in regard to the beginning with the D. P.1., say, and going clear through to legislative column there, headed “Amendments.” That the governor, back, and how it gets into the legislature, would mean that the legislature can refuse to appropriate following one course all the way through and what the various anything for a specific item. Is that right? “Decrease or lines, solid and broken, mean on just one item. change but no over-all increase.” Now, suppose the legis lature does refuse to appropriate any money for a specific CHAIRMAN: Well, the Chair hasn’t thought to direct item. When that particular item comes down to the “Execu Delegate White how to present this matter, but I believe tive” column on the bottom where it says “Authority to he prefaced his remarks that he was proceeding on a cer strike out or reduce items,” the governor does not have tain basis, showing the procedure. He’s at this point of stat the power or even the power of suggestion to say that that ing the procedure. Do you want to follow the suggestion item is necessary, it should be - - some appropriation made by - - should be made so that if the item was unduly reduced by the legislature that an increase should be made. Is that WHITE: Well, I would be very glad to do whatever is correct? going to help bring about a clear understanding of the pro posal. WHITE: Well, the governor would have the right to make the adjustments in the general appropriation bill to conform CHAIRMAN: If that is the desire of the committee, I with the amount that he originally proposed and if he deleted guess you do that then, Delegate White. some items, it might result in increasing other items. STATE BUDGET PROCEDURE 0 (P~ee.nted t~ The Coestit~tio~1 Coe.eetion by Coemitt.e on TaxeUon .nd Fineno. Jon., 1950) CO~FDINATING UEGUTWB t~ISL.&TIVE OP~ATING REGENTS D P I C0~~(ISSIOWUB 0~WUBN~I ~ UofH ~FINA?H~E I IM~~4E QUARTUBLY QUARTUBLT -I r W(SIK PROGRAM WCNI!c PROGRAM WUBK PROGRAM -e 0 AUThIIe!TY z — — I TO UBUBRIDE G~~Iff~’S ACTION za AUTHORITY TO SPEND * NO APPROPRIATION TO B! MAD! EXCEPT PUB z PUBLIC PURPOGE zn JUNE 19, 1950 • Morning Session 441 DOl: I’m referring to a specific item. mendations of the finance commissioner, but that doesn’t preclude a department head going to the governor. WRITE: Well, a specific bill or a specific item? KELLERMAN: May I ask a question? If your general DOl: Specific item in the general appropriation bill. appropriation bill, say, runs to $40 million, and the legis lature by special bill increases the appropriation for, say, WHITE: Well, he would - - if a bill came back to him the D. P. I, —we’ll just take a department there for example after the adjustments had been made by the legislature, he —and suppose the revenues, estimated revenues, after the would have the opportunity to reinstate the items that he legislature has adjourned, the estimated revenues appear originally proposed to be - - to be less than those originally anticipated and so the gov DOl: No, no, Section 5 doesn’t say that. ernor then starts reducing or controlling the rate of ex penditures, is he allowed to actually reduce? For instance, WRITE: That’s right, he wouldn’t have the right. If the you’ve got a quarterly program. If you divide the two years legislature reduced it, he wouldn’t have the right to increase into eight quarters, is he allowed to reduce the special ap it. I was confused. propriation bill at a greater rate than the general? Is there any priority of whether the appropriation bill items shall DOl: I don’t want to get into a debate, but would you take precedent as to rate or as to volume over the special state the reasons why he shouldn’t have the power? appropriation bill which may have been passed by the leg islature for the same executive department? WRITE: Well, because the legislature has considered WRITE: No, because your regular - - In other words, the appropriation and that’s the amount of money that they’ve any capital expenditure bill would be for specific purposes. appropriated. Now, if he doesn’t think it’s right, he can veto the bill. KELLERMAN: I don’t mean the capital, I mean the spe cial appropriation bill to grant an extra general operating DOl: If I say what I want to say I’ll be getting into a de budget appropriation to the department. I am foreseeing bate, so I won’t. that, say, that the legislature reaches the maximum per LOPER: Would the chairman of the committee point out mitted by the governor’s general appropriation recommen the answer to this question? If we are talking about a $40 dation for the department and sees fit to enact in addition million budget and the legislature should decide to cut that a special appropriation bill for that same department for to 35 or raise it to 45, can you show us on the chart where operating budget. Do they stand on the same footing when that action would originate and where it would be traced it comes to rate of expenditure or reduction, or does the through from the commissioner of finance to the governor general bill take priority over the special bill on any re to the legislature? I’m speaking of revenue rather than ex duction in case of failure of anticipated revenue to reach the penditures in budget. amount anticipated? WRITE: You mean if the governor cuts the general - - WRITE: I’d say that they both fall into the same category. Are you talking about the general appropriation bill, now? KELLERMAN: They go into the same category. LOPER: I’m not sure that I know. I’m talking about the Now, there’s one more point I’d like to ask. Does - - is question of whether we’re going to raise more or less money there any provision in your proposal, or is there a contra in taxes. Where does that originate? How do you trace it diction in the proposal to the possible power of the legisla through? ture to decide that certain departments, if cuts are neces sary in the operation of the government because of deficiency WRITE: Well, the over-all financial program submitted of funds, that certain departments or certain items shall not by the governor to fund the general appropriations bill and be cut at all because the legislature may consider those de the capital expenditures may either require borrowings or partments or items to be essential to the public weifare in additional taxes, and if they do, then at the time that the the amounts appropriated, rather than any over-all cut or budget is submitted by the governor, it will include those any decision on that point by the governor? Do you make two items. In other words, it will be a complete financial room for that possible exercise of power by the legislature, program for funding the program that he recommends. to designate certain specific departments or specific phases of governmental operations that shall not be reduced at all? LOPER: If the recommended budget then went over the It seems to me that would be a very worthwhile power in the amount that existing taxes might raise, it would be an ob legislature. Does your proposal permit that? As I see it, ligation on the part of the governor to suggest additional it allows only a general across-the-board cut and possibly taxes to cover it. Is that your intention? would not allow the legislature to have the power to designate items that shall not be reduced at all. WRITE: Yes. In other words, in making his recommen WRITE: The proposal doesn’t provide that it has to be a dations he will have to show what the anticipated State reve uniform cut in every department. But whatever cuts are nues are, and if they aren’t adequate to take care of your made by departments would be made by dollar amount, that’s general appropriation bill and your capital improvement all. There’s no specific requirement that if revenues fall budget, he’ll have to submit other bills to take care of the off ten per cent or if a cut in expenses of ten per cent is additional revenue that is necessary. necessary, that he has to cut everybody across the board ten per cent. HOLROYDE: In case the finance commissioner and de KELLERMAN: Then the governor is allowed the freedom partment head can’t get together, I imagine they would both of cutting one department and not another department. Is go to the governor to settle their difficulties. The finance the legislature given the power then to designate which de commissioner doesn’t have the power, does he, to make partment shall not be cut? the final decision on the departmental budget? WRITE: No. WRITE: Well, the governor has the final decision, but KELLERMAN: Well, it seems that’s a matter we should the governor may be influenced by the findings and recom take up. / 442 TAXATION AND FINANCE LOPER: Will the chairman of the committee assist us in HEEN: Now, is there anything in the committee proposal our thinking by answering a specific question? If the gross to prevent the appropriation of public funds for the purpose income tax is two and one-half per cent, and the legislature of the Hawaii Tourist - - Visitors Bureau? should decide to change that to two and one-quarter per cent or to two and three-quarters per cent are they free to do so WHITE: No. In the initial proposal that we drew up for under this plan of yours, and where would that act originate? items that were permitted we endeavored to cover that as well as grants to hospitals, and were advised positively, as WHITE: You mean if they change the taxes? you will see by the letter attached to your proposal - - to the LOPER: Yes. committee report, that the attorney general says that it’s unnecessary to mention those specifically for the reason WHITE: This wouldn’t provide for that at all. All that that they are covered by the doctrine of public purposes. this is, is to cover the budget procedure and has nothing to There is a letter in there attached to the committee report. do with taxes, as such. LOPER: In other words, Delegate White, what you’re ASHFORD: To go back to that question, the determinatioi saying is that the legislature still has the power to raise of anticipated revenue. In effect, have you not frozen the taxes. power of the legislature to make its guess when you say, in Section 3, that, “The legislature may make any amendments WHITE: Yes, it’s still the responsibility of the legislature to the general appropriations bill, provided such amend to raise taxes. ments shall not result in increasing the total amount in the ASHFORD: May I ask a question? You provide for the bills recommended by the governor.” In other words, isn’t determination of anticipated revenue by the, what is it, the that total amount based on the determination of anticipated financial commissioner? Is that - - Do you consider that as revenue? binding upon the legislature, or can they just say, “Well, we WHITE: Well, they would be frozen here, but they have think we’re going to have $2 million more and so we’ll ap the right to put in a separate bill for a particular purpose, propriate that much more.” so that they can exceed the general appropriation bill by WHITE: Well, they can say that and, of course, if they separate bills. make the appropriations it makes the cuts that are neces ASHFORD: And your proposal does not require them to sary even more severe. provide methods of financing that special appropriation? Now, I think that - - my experience with budgets has been that when it comes to anticipating revenue, as a rule, they WHITE: Well, I think that that would necessarily follow are on the low side, and when it comes to anticipating ex when it came back to the governor, if he vetoed the items penses, they are generally on the high side. So I think there because of the inadequacy of revenue. is a certain amount of cushion in there under any budgetary I think that if there are no other questions, it might be procedure. well to get this thing under way if I move the adoption of The legislature, on the other hand, may disagree with Section 1 of this Committee Proposal No. 10. the governor’s recommendations and say, “Well, we’re CROSSLEY: I second the motion. going to get a million more in revenue than you anticipate,” and they may go ahead and appropriate on that basis. But, WHITE: I think that there has been enough discussion on if they do, it would be necessary - - and the revenues didn’t it. It doesn’t require any further explanation, but if there materialize, it would be necessary for the governor to make are any of the other members of the committee would like to more severe reduction. talk on it, why I’d be very - - Nils, would you like to? HEEN: As I understand it, the general appropriation H. RICE: We have always taken the procedure that to ad bill is designed to cover all operating expenses of the State. journ we have to go into general session. I think the com Is that correct? mittee itself could take a recess ‘til half past one, at this time, ten minutes to twelve—and I don’t think - - WHITE: Yes, all operating expenses plus equipment nec essary for the respective departments. DELEGATE: Second the motion. HEEN: Now, I take it then that an appropriation such as APOLIONA: I so move that we recess until half past one has been made in the general appropriation bill, in the past, this afternoon. appropriation to the Hawaii Visitors Bureau, would have no HEEN: Point of order. I think that what we should do is place in that general appropriation bill because that is not rise, report progress and ask leave to sit again. designed for operating expenses of the government. Is that correct? CHAIRMAN: In other words, you state your point of or der, Delegate Heen. Unless under suspension - - well, I WHITE: That’s right. I’d say that would be a special don’t know whether you can suspend the rules. I think Dele purpose bill. gate Heen’s point of order is well taken, so the motion is CHAIRMAN: Unless you establish a Territorial Visitor’s ruled out of order, for the present time. Council as proposed by your chairman in the last session. HEEN: I so move that this committee rise and report HEEN: You mean to make that a department of govern progress and ask leave to sit again at half past one. ment? DELEGATE: Second. CHAIRMAN: That’s correct. CHAIRMAN: All those in favor of the motion please sig HEEN: That might get around that. nify by saying “aye.” Carried. Unanimous. Now, the other question is this. I take it that the item of contingency fund allotted to the governor would have no place Afternoon Session in the general appropriation bill where you would find it now. WHITE: Oh, I would think that you could - - the legisla CHAIRMAN: Committee of the Whole is now meeting. ture could still give him - - As I recall, the motion before the committee was the adopth of Section 1 of Committee Proposal No. 10. Any discussion HEEN: By a special appropriation bill. Is that correct? If there is no discussion, the Chair will be glad to put the WHITE: That’s right. motion to a question. All those in favor - - 443 JUNE 19, 1950 • Afternoon Session DOl: I have something to say on this. I’m not very clear CHAIRMAN: Will the chairman of the committee or Mr. on the section here. To me, it appears that the first sen Tavares - - tence in Section 1 and the last sentence in Section 1 deal with TAVARES: I think the delegate who spoke last has a point the same question. Therefore, they are repetitious. It there. It may not be clear on the face of it, but actually speaks about - - both sentences speak about the duty of the what that section is intended to do is this, to prevent the of the governor to submit a budget to the legislature and the legislature from passing any other appropriation bill except last sentence - - the only dff erence is that the last sentence the appropriation bill, until the appropriation bill has been speaks in a little more detail. That’s about the only dif passed and sent to the governor, except for such special or ference. I would like to ask the chairman if that is not cor emergency appropriation bills which the governor may rec rect. ommend to be passed before the general appropriation bill CHAIRMAN: One is the budget and the other is submit is passed, or bills for the legislative appropriations. That ting the budget together with the bill to the legislature. One is the intent of this section. In other words, the words “un deals with the preparation of a budget and the other deals less the governor has recommended the immediate passage with the preparation and submission of the bill to the legis of such appropriation bill,” doesn’t refer to the general ap lature. propriation bill, but to the first type of appropriation bill mentioned in the first line of this section. DOI: In other words, if you have the budget and the bill together, the last sentence you are referring to, it is not HEEN: Then what does this mean? That that bill “shall necessary to have the first sentence because that covers it. continue in force only until the general appropriations bill shall by its terms become effective.” CHAIRMAN: Well, the first one provides that - - the first part of it provides that at such time as the legislature shall TAVARES: The explanation for that is this. As a rule, prescribe, the governor shall submit to the legislature a as we know, the legislature meets before the end of a bien budget. nium, or if we have annual sessions, it will meet before June 30th of each fiscal year. And generally the appropria DOl: And the last sentence on that point says, “shall be tion bul takes effect the subsequent July 1st. Now ordi submitted by the governor to the legislature and shall be narily, the type of appropriation bill the governor will rec introduced therein as soon as practicable.” ommend to be passed before the general appropriations bill TAVARES: Perhaps I can help clarify that. It’s my un will be deficiency appropriations bills which have to take derstanding that the legislature generally likes to have the care of the remaining fiscal period before the beginning of governor submit the budget to the members of the legisla the next fiscal period, and therefore there will be no trouble ture some time before the session opens so that they can there because the deficiency period will end when the effec study it before the session opens, and that first sentence tive date of the new appropriation bill is reached. requires that whatever time the legislature fixes, the gov ernor shall submit the budget that period before the session ANTHONY: Mr. Chairman. so they can study it. The last sentence, as I understand it, CHAIRMAN: Are you through, Delegate Heen? provides that when the legislature meets, the governor must submit a bill or bills for the appropriations to implement HEEN: Not through yet, Mr. Chairman. Why should it his budget, and I think that you do have separate functions, be limited that it shall remain effective, that is remain in and it isn’t necessary for the governor to submit the bill as force, only until the general appropriations bill shall by early as it is to submit the budget. itself become effective? U you pass the deficiency appro priations bill, it remains in force until it works itseif out. CHAIRMAN: Any other questions? It should not be terminated when the general appropriations NIELSEN: Isn’t this legislative? I don’t see where this bill goes into force. has any point of being in the Constitution. It’s strictly leg TAVARES: This is not intended to change the general islative and it’s always been handled that way. It’s certainly extending the wordage of our Constitution. I’d like to know law which is in existence under similar provisions which whether we should have it in the Constitution or not. are followed all the time that if, under a deficiency appro priation bill there has been a what we call - - what’s the WHITE: I think it sets forth a basis on which this shall word now, a commitment? No, if there’s been a commit be done, that’s all. It’s a customary provision in a Constitu ment or the amount or obligation has been incurred, then tion. naturally the appropriation bill will carry over. We have CHAIRMAN: U there are no other questions, the Chair that all the time under appropriation bills that say that in will put the question. All those in favor of the adoption of appropriations for the fiscal period from July 1st of one Section 1, please say ~aye.” Opposed. Carried. That was year to June 30th of two years from that date, every item Section 1. on which there is a commitment before that period is car ried over by the auditor automatically, and there will be LAI: I move for the adoption of Section 2. no harm in doing this. All that has to be done is to let a CROSSLEY: I second the motion. contract or make an order or do something that starts the obligation to expend the appropriation and the appropriation CHAIRMAN: Any discussion? U not, the Chair will put automatically carries over beyond the fiscal period. That the question. is just common ordinary financing and it’s done today. HEEN: There is a part of that bill - - I mean section which I don’t understand. It says that, “No appropriation ANTHONY: I’d like to ask the chairman or Mr. Tavares bill, other than bills to cover the expenses of the legislature, a question. The third line from the bottom of the section, shall be passed on final reading by either house until the “such bill.” What does that refer to? general appropriations bill shall have been transmitted to TAVARES: That “such bill” refers to the special type of the governor, unless the governor has recommended the appropriation bill, such as deficiency bill, which might be immediate passage of such appropriation bill, in which case, passed before the general appropriation bill is passed. such a bill, if enacted, shall continue in force only until the appropriation bill shall by its terms become effective.” ANTHONY: I don’t find that in the language. Does it re Just what does that last part mean? I don’t quite understand fer to “such appropriations bill” in the sentence immediately before it? 444 TAXATION AND FINANCE TAVARES: Yes, and the words,”such appropriation bill,” SILVA: I don’t know, I think that some of the members refer to the first use of that word in the section. You no of this committee, if we were not to meet annually, we tice the general appropriations bill is capitalized. probably wouldn’t act favorably on this section. If we were ANTHONY: That’s the point, and I think that being so, to meet annually, there may be a different story. “such bill,” referring to “such appropriation bill” in the NIELSEN: It seems to me this is going to make it very sentence immediately preceding it, and “such appropriations difficult to move things along in the House, and if we have bill” referring to the “general appropriations bill,” the same a 40 day session it’s going to create further difficulty be thing will be accomplished if you put a period after “gover cause it says here that, “No appropriation bill,” and then nor” and delete the remainder of the section. - you can skip the next few words, “shall be passed on final TAVARES: I do not think so. I don’t think that will be reading by either house until the general appropriations the result. It may be that that section is ambiguous, but I bill is passed.” Well, that means that if the House passes don’t think that that’s the way to resolve the ambiguity. the appropriation bill and sends it over to the Senate, then CHAIRMAN: Delegate Crossley is recognized. their Finance Committee and the entire delegation have to stand by on all appropriation bills until that has gone to the HEEN: As I understand it - - governor from the Senate. They could waste two or three CHAIRMAN: Delegate Crossley is recognized. weeks in that way. There would be conferences and every CROSSLEY: As I read this section, this has to do with thing else before it gets to the governor and meantime the legislative appropriations procedure and not the general Finance Committee and the House couldn’t pass any appro appropriations bill. It simply says that before the general priations or do anything about them. appropriations bill shall have been passed or even trans WHITE: The purpose of this is, of course, Mr. Nielsen, mitted to the governor there can be emergency bills passed, to speed the enactment of the general appropriations bill atid they would go for the balance of the biennium. In other before you consider other appropriations. Now the legis words, they couldn’t pass an emergency bill beyond the end lature can provide to accelerate that any way that they want, of the fiscal period. to be considered simultaneous by both houses if necessary, TAVARES: That’s correct. If it were to go beyond that, and then meet in conference. it should be included for the period beyond that in the appro HAYES: There’s a question I want to ask. Point of in priation - - in the general appropriations bill for the suc formation. ceeding fiscal period. CHAIRMAN: State your point of information. CROSSLEY: And therefore it would seem to me that the last portion of that sentence would be necessary because HAYES: That supposing it camefrom the House, the that does spell out exactly that. It says, “shall by its term appropriation bill, then went over to the Senate, and after it become effective” - — “and shall continue in force only until passed the Senate it went to governor, and then, if the House the general appropriations bill shall by its terms become is not satisfied with it after it has gone to the Senate and up effective.” Well, the general appropriation bill does not be to the governor, can they still override the governor’s veto? come effective before the beginning of the next fiscal period, CHAIRMAN: Are you referring to the general appropria the next biennium. Therefore what they are providing for tions bill or the special? here is the deficiency spending that has taken place; they are providing the funds for that and any other emergency, such HAYES: Yes, to the general appropriations. as the legislative cost itself, up until the time the general CHAIRMAN: The general appropriations bill? appropriation can go into effect. Therefore I think all of the language is necessary, and as I read “such bill” it refers HAYES: Yes. back to the special legislation. CHAIRMAN: Will you answer the question, Mr. White? TAVARES: That is correct, and if there is any ambiguity WHITE: There’s nothing to prevent the - - otherwise it it can either be resolved here by amendment or the Com goes through the regular course. If the House or the Senate mittee on Style can take care of it. aren’t satisfied with it, they can override the governor’s SHIMAMURA: I would suggest the insertion of the word veto. “special” after the first word, “No special appropriation CROSSLEY: I read nothing in this section that would pro bill.” And also in the fourth line from the bottom, “immedi hibit the Finance Committee of the House or the Ways and ate passage of such special appropriations bill,” to clarify Means of the Senate from doing their work and acting on the situation. other appropriation bills. There’s nothing to foreclose them TAVARES: I’m not quite sure that would do. That is a from continuing the consideration. It simply sets up a pri suggestion that might be considered and I would suggest that ority in getting the appropriations bill out, and to that point if this section otherwise finds approval that we tentatively I think it has a great deal of merit. But there’s nothing in approve it and I will try to prepare an amendment before we here that would stop the work of either of those two commit are through going over this article to try to bring that out. tees except in their final enactment of such legislation. SILVA: I assume that the intent here is provided that we CHAIRMAN: Mr. Crossley, may I direct your attention are going to meet annually, and we have not decided yet as to the fact that unless a special appropriation bill has been to the membership of the House nor the Senate and the ap recommended by the governor, doesn’t the language there portionment. This proviso, I believe, was with the intent prohibit the legislature from considering any special appro that we were going to meet annually, and we could probably priation bill? work it this way. I think we should defer action until the CROSSLEY: As I read—and perhaps the chairman or one Legislative Committee comes out with the picture, whether of the members of the committee should answer—but as I we’re going to meet annually or we’re not going to meet read that, if the governor disapproves of the appropriations annually and how big or how small our Senate is going to be. bill as it comes up to him through the machinery that has al I move that we defer action on this section till later on. ready been set up, the House or the legislature can override WHITE: May I answer that, Mr. Chairman. That pro any recommendations or veto that he might make and con vision would apply whether you have annual or semi-annual, tinue on from that point. If they override his veto, then I I mean biennial sessions. would say that there is no question because he has no further 445 JUNE 19, 1950 • Afternoon Session consideration of it after they have gone over his veto, and it I want to call the attention of the delegates to the situation would have been an appropriation bill that would have passed. which faced Wyoming in 1949 in January. They had a snow That’s correct, Mr. Tavares? storm which killed thousands of cattle. Senator O’Mahoney got an appropriation for Wyoming in two days of three million TAVARES: Yes, that’s correct. I’d like to point out that dollars for the State of Wyoming. Now if they had a re words used in this section are that “No appropriation bill, strictive section like that, Congress could not have made other than hills to cover the expenses of the legislature, the money available. shall be passed on final reading by either house.” The way I read that word “final reading,” it means what we call the WHITE: There is provision in there. The latter part of sixth reading; that is, whatever reading in either house the provision takes care of that very thing. The governor makes the bill final shall not be done until the general ap can recommend the passage of a special bill. propriations bill passes, so that a house could pass the bill HEEN: The trouble with that is if they appropriated, say, on third reading and it wouldn’t be final reading. But when three million dollars to take care of the cattle on Parker it gets to the second house, it might be third reading in that Ranch and it takes about six months to take care of that situ house, or if it was amended, it would be the final reading ation there, but that money will not be available to the full in the house in which it originated which would be the final amount if under the terms of this bill the special bill goes reading. That’s the way I interpret that section, and there out of effect on June 30. fore the word “final” does not prevent either house from WHITE: That’s true, unless it is encumbered. passing a bill. It prevents either house from making the final passage of a bill. C. RICE: The legislature is meeting in February until sometime in the end of April or first of May and that’s when WIRTZ: I’d like to call to the last speaker’s attention the the current appropriation bill is in effect, and they make an language that “No appropriation shall be passed on final additional appropriation for a deficiency. It runs to June 30, reading by either house.” and all items that are not contracted for expire as of June 30 TAVARES: That is correct, but either house might have and the money lapses to the treasury. But anything that’s the particular final reading. In case the bill originates in contracted for and if some of the bills in the last legislature - - the additional appropriation bills lapsed last June 30 but the House, it goes to the Senate, is amended, it comes back to the House, the final reading is in the House. But in case they’ve been contracted for and not paid, but the budget of it isn’t amended, the final reading is in the Senate. There ficer finds out they are contracted for, they are still in ef is your definition of “either,” as I understand it. fect. The claims bill was always a different bill, I think the senator will remember, than the additional appropriation HEEN: My point is this, though. Supposing a bill, a de bill. I see nothing wrong with this for the additional appro ficiency appropriation bill is introduced by the House and priation bill. the governor approves the immediate passage of that bill and WHITE: It seems to me on that particular thing, that it provides for the paymei)t of various claims, now the lan guage here used is that that act or that bill if enacted shall you are bringing up a very unusual type of situation which could be handied by a bill, a special bill that would lapse on not continue in force - - shall continue in force only until the general appropriations bill becomes effective. That’s cor June 30th, but while the legislature is still in session, they could consider this subject, and if it wasn’t necessary to rect, is it not, as far as I’ve gone? appropriate additional funds, that could be done after the WHITE: Yes. general appropriation bill is passed. This is only to accel HE EN: Then these claims are not paid by the end of June erate or expedite the passage of the general appropriation 30, or before July 1 when the general appropriations gener bill, and would not prevent the legislature from taking care ally goes into effect, then those claims that are not pre of the situation that Judge Heen brings up. sented before that time can never be paid because that ap CROSSLEY: I would like to point out to the previous propriation bill is no longer in force. speaker from the fifth district that these are State funds that WHITE: If there is no commitment against the funds at we are talking about. The funds that Senator O’Makoney got that time, then they would lapse, but they will be covered on the cattle relief —O’Mahoney—got on the cattle relief were by the new general appropriations bill. federal funds for the most part because I followed along about that time trying to get a few hundred thousand dollars HEEN: I don’t think that’s true. The new appropriations of fruit fly funds. We found it very difficult, whereas Wy bill is supposed to take care of all operating expenses start oming, because it already was a state, had no particular ing from July 1, and is not intended to take care of any past problem in getting federal funds for quick relief from that, claims. What I have in mind is this. If you say that the bill whereas we had an invasion of fruit fly here and found it which has become law is no longer in effect on June 30 of very difficult to get federal aid because we weren’t a state, the particular year, then claims which have not been paid or but these funds that he refers to were primarily federal supposed to have been paid under that deficiency act cannot funds. be paid because the act has gone out of effect. What I think MAU: That’s correct. I was just using that as an exam they have in mind is this, that the funds available under the ple. If the Congress itself had a restrictive clause like that deficiency bill shall be available only up to the time the gen they couldn’t make emergency appropriations. Now the an eral appropriations bill goes into effect. The law remains swer to that as I understand it is that the governor must in force nevertheless. consent to it. As I read the whole proposal it makes the MAU: As I read this section, it is rather restrictive. governor the most powerful individual in the State. It will It does not give the opportunity to the legislature to pass create him and his commissar of finance dictator. They emergency appropriations. Say that along the Hamakua could, in my judgment, throttle the whole State if they coast they would have a plague and we have to wait a month wanted to. I’ve never seen any provision like that in any for the general appropriation bill to pass, I don’t think the constitution in which the governor is given so much power legislature could appropriate emergency money to take care over the finances. Now, historically speaking, finances are of that area. Likewise, if we have another eruption of always in the hands of the legislature, and that’s where it Mauna Loa and the legislature wants to do something about should rest. I think we should go back to fundamental prin it, it wouldn’t be able to do so until this general appropria ciples and leave the financing of the State to the State legis tion bill is passed. lature. 446 TAXATION AND FINANCE H. RICE: I reply to the last speaker. I’m in great sym CHAIRMAN: Any discussion? If not, all those in favor pathy with the appropriations bill [being] passed before any of Section 2 as amended please signify by saying “aye.” other bill up to the governor, but I agree with Mr. Anthony Opposed, Carried. that probably we should have a period alter “transmitted to the governor” period. LAI: I move for the adoption of Section 3. TAVARES: I think that is a matter of policy for this Con WHITE: I’ll second that, vention to decide. I disagreed with Mr. Anthony because I SAKAK[HARA: I move that Section 3 be deleted. didn’t think it had the same meaning if you cut that out. That DOI: I second the motion. is where I disagreed. Now it is true, and I think there will be nobody here, not even the members of the legislature, CHAIRMAN: Any discussion? who will deny that there have been great abuses in holding SAKAKIHARA: May I speak on my motion to delete? up the general appropriations bill until the last day some times, and we want to prevent that. And if it is the sense CHAIRMAN: Proceed. of this Convention that we’ve gone too far in providing that SAKAKIHARA: Section 3 as drafted by the Committee on a special bill, if enacted with the approval of the governor, Taxation and Finance provides thus: “Power of legislature shall cease to be effective when the general appropriations to amend the general appropriations bill,” I believe that the bill become effective, why that seems to me a matter of policy-making body of our government should be free to de policy which might well be decided adversely to our commit termine the appropriations, being responsible to the people tee. But I do believe that the rest of the section is necessary to provide revenue adequate for the appropriations. I don’t in the light of past proven and frequent abuses by the legis see why the governor should have this tremendous power. lature. I am in accord with the statement made earlier by the dele HEEN: Following that expression, I would suggest that gate from the fifth district, the honorable Chuck Mau. The we put a period alter the word “bill” in the third line from power of taxation, power to make appropriations, is vested the end of that section. “Unless the governor has recom in the legislature and under the provisions of Section 3 of mended immediate passage of such appropriation bill,” the proposal you are hamstringing your legislature. Now, period, and then delete the rest. That would take care of I’m against it. deficiency appropriations and emergency appropriations DOI: I would also like to speak in favor of the motion. which may take more than a year to carry out. I believe appropriations are the basis of the legislative pow LOPER: If that is made as an amendment, I’ll be glad er. In this section here we are giving too much power to to second it. the executive body. By doing so we presuppose this fact, that the executive, which is one man, can be trusted more HEEN: I so move. than the legislative body which is composed of many men. LOPER: I second it. I think we have to admit that there are honest and fair- minded men in the legislature. The question is shall we CHAIRMAN: In other words the motion is, as the Chair take our chances with one man or with a number of men, understands it, that a period be put alter the word “such and I am willing to take my chances to rest with many men. appropriation bill” at the end of line five. Is that correct? For another reason also. The executive has been given HEEN: That’s correct, Mr. Chairman. much power and we have to admit that it is much easier for ANTHONY: Do I understand it that we are adopting these the executive to build up a political machine through the sections tentatively, or is this the final vote on each one? spoils system than it is for the legislature because it is com posed of many men. For example, we have given the execu CHAIRMAN: That’s the understanding of the Chair. Al tive the power of appointing judges. Now, to subject the though the motion has been to adopt, the procedure in the judiciary again to the whim or the will of the executive by other Committees of the Whole has been to tentatively agree going to the executive and bowing and begging him to give so in principle to the provisions. much money so the judiciary can efficiently function, I think ANTHONY: Thank you, Mr. Chairman. is going a little too far. And therefore I would like to urge that we vote in favor of the motion to delete. CHAIRMAN: All in favor of the amendment please signify by saying “aye.” Opposed. Carried. MAU: Speaking in favor of the motion. I want to ask where are those who in all of the Convention said that they NIELSEN: One other thing regarding that first sentence, want a concise Constitution? Where are those who say that and that is the fact that sometimes the University budget and legislative matters should be left to the legislature? Aren’t other budgets ask for 32 specialists instead of 20 as the leg we cluttering up this Constitution with a lot of legislative islature agrees to, and unless you know what bills both matters? Go to each of the sections; they’ve got a section houses are more or less agreed on are important bills, why on purchasing methods, they’ve got a section on uniformity they can’t give really fair thought to the general appropria of taxation, they’ve got a section on expenditure of funds. tions bill. Now, I think this matter ought to be deferred for Aren’t they all legislative matters? Why can’t we have a further study because we are going to tie them down to where simple provision like that of the New Jersey Constitution. they, alter they pass the general appropriations bill and the I speak in favor of this motion to delete because I think that deficiency bill, then a lot of important bills that should be many other sections ought to be deleted. I think we ought to passed and maybe cut down the number of extra specialists come to our senses and realize that we’re writing a Con at the University, why there’s no money for them, for these stitution, not passing legislation in this Convention. special appropriations for vital things throughout the terri LOPER: I believe the purpose back of this and some of tory. So I don’t see how you can pass the budget bill with these other provisions is perfectly worthy and that is to out considering all the other appropriation bills that are in come out of the legislative session with a balanced budget, troduced, I move for deferment, so that we have enough money in the treasury to cover our CHAIRMAN: Well, if the - - expenditures. However, if I understand the matter correctly the appropriation of funds is a legislative function. One of CROSSLEY: I move now that we tentatively adopt Section the provisions here that the appropriation - - the general 2 as amended, appropriations bill shall pass before other special appro WHITE: I’ll second it, priation acts will help bring the legislature to carry its JUNE 19, 1950 • Afternoon Session 447 proper responsibility. Another provision that may come result by adding this language to Section 3. It reads as fol in from another committee for an annual session of the leg lows: “The legislature may make any amendments to the islature will be another step in that direction. Still a third general appropriations bill, provided such amendment shall would be to call a special session of the legislature if the not result in increasing the total amount in the bill as recom revenues are not sufficient to cover the appropriations. mended by the governor unless it also makes provisions for I’m speaking then in favor of the motion, although I’m in such additional revenues that may be necessary to fund such sympathy with what I understand to be the basic purpose expenditures.” back of it, namely that we shall have a budget that is bal Now, it seems to me that is what we are trying to drive anced but balanced by the legislature rather than by the ex at. What we want to have is if the governor proposes a rev ecutive by [inaudible) funds. enue bill and proposes an appropriation to match those rev enues, those two are to be studied and regarded by the leg SHIMAMURA: I agree with the sentiments expressed by islature as a unit proposal. If the legislature wishes to in the gentleman from Hawaii. However, if you delete the en crease expenditures, then it’s the legislature’s responsi tire portion of Section 3, it may be the legislature won’t bility to increase the taxes which the governor has proposed. have any power of amendment of any of the general appro It seems to me that we are saving the governor’s function, priations bills because as we have passed the first section, we are saving the degree of his responsibility to the people as I read that section, the first section there the governor —and remember he is an elected governor. His responsi has the authority and the power and the function to introduce bility to the people is being protected, if we provide that the a general appropriations bill, and I think that Section 3 is legislature can increase the appropriation bill, but if it does to take care of the situation where the executive, the chief it has got to provide right then and there for such additional executive, submits the appropriation bill, and Section 3 revenues as shall be necessary to meet and fund these ad restricts that somewhat by giving the legislature the power ditional expenditures. On that basis I see no reason why to amend. But if you delete the entire Section 3 the legis the general appropriations bill could not be increased by the lature in effect won’t have any power to amend the bill. I legislature and we’d get away from this idea of all these ex think, therefore, if that reading is correct—I’ve just read it tra or special appropriations bills subsequent to the general now, Mr. Chairman —Section 3 should be amended only to bill, which we may run into trouble on which one shall have the extent of putting a period after the words “appropriations priority in case there are not sufficient revenues to fund bill” in the second line, to conserve the power of the legisla them all. ture to have power to amend the appropriations bill submit If it is agreeable I would propose as an amendment to the ted by the governor. amendment introduced by the gentleman from the second N district that in lieu of deleting Section 3 we add the following WHITE: I’d like to speak in opposition to this motion. I don’t think that they’ve read this thing correctly if they language. After the word “governor,” change the period to say it restricts the power of the legislature. It doesn’t a comma and add: “unless it makes provisions for such ad restrict the power of the legislature. The legislature ditional revenues as may be necessary to fund such addi can by separate bill appropriate additional amounts and tional expenditures.” there is nothing unusual about this procedure. In fact, 19 HEEN: I think in reading that Section 3, we ought to read states now have a constitutional provision requiring appro also Section 4. If I understand 4 correctly, instead of in priations supplementing the general appropriations bill creasing the items in the general appropriations bill so as be made in separate bill for a single object and purpose. to increase the total in that bill, you may make those in And that’s all that 3 and 4 does in this particular instance. creases by way of separate bills. Is that correct? I don’t see where you are taking away any power from the legislature at all. WHITE: That’s correct. SAKAKIHARA: Mr. Chairman, I - - HEEN: All right. Then, but in introducing separate bills, appropriation bills, those bills must specify one object or CHAIRMAN: Just a moment, I believe Delegate Keller- purpose. Is that also correct? man wished to be recognized. Unless you waive your right WHITE: That’s correct. SAKAKIHARA: I yield to Delegate Kellerman. HEEN: All right. Then supposing the legislature passes a bill with the purpose or object of augmenting the appro KELLERMAN: Thank you. I agree with the last speaker, priations made for the various departments of the State, Mr. White, that this only requires the legislature to enact augmenting the appropriations made in the general appropri additional appropriations by special bill. But because I am ations bill to take care of several of these same departments. rather concerned with the priorities against revenues which Would that be one object or purpose? those additional bills are going to carry with relation to the WHITE: No, they would have to be done by separate bills to the general appropriation bill, it seems to me that we under this wording. can effectuate the same result of preserving - - As I gathered it, the proponents of this proposal had in mind the executive HEEN: But it seems to me that the one purpose of such responsibility for tax program and the executive responsi a bill is to augment the appropriations for various depart bility for an appropriations bill. The legislature may vary ments, that’s the one purpose. Otherwise you’d have to either, but insofar as the proposals of the governor, the have separate bills that you have in mind, one department appropriations bill and the proposals for revenue to be de at a time. rived should be allowed to remain co-terminus. But if the ASHFORD: Speaking to Mrs. Kellerman’s remarks, may governor’s revenue bill is to go through and he is to be re I say that that brings us right back to the question that I sponsible for that, then the appropriations made against that asked the chairman before lunch. Wouldn’t the legislature revenue bill should be left intact. Conversely, if the ap in that case have to accept the predetermination of the an propriation bill is to be increased, the revenues would have ticipated revenue even though their own figures and experi to be increased. But since the executive is to assume the ence determined it to be larger or less? responsibility for the initial proposal of balancing a revenue tax proposal with a general appropriations proposal and CROSS LEY: I would like to speak against the deletion of leaving it to the legislature if it varies one to necessarily this section, but recognizing fully that the power should rest vary the other, it seems to me that we could arrive at that with the legislature. But inasmuch as the legislature has 448 TAXATION AND FINANCE that power, it should also have the full responsibility along be, I feel that will in large measure be corrected when you with it, and that full responsibility is better spelled out I have the type of auditor setup that we are proposing under think in an amendment to that section as proposed by the this setup, because the auditor then will be under the di delegate from the fourth district than it is by Section 4. rection of the legislature and he will be in a position to pass In other words, we have had a great deal of deficiency and to advise the legislature on the validity ot the figures spending. Now, deficiency spending doesn’t go on so much used by the executive department, so that you will have a in times of increasing prosperity as it does during the time check and balance in that regard. of decreasing revenues, and at that time it’s a favorite HEEN: I rise to the point of information. I would like stunt to make estimates knowing that they can’t be met and to have that amendment proposed by Delegate Kellerman go into deficiency spending. The idea of this section, as I read again. Read it slowly. read it, is to stop deficiency spending of government, which is certainly a bad practice. It’s a thing that we all wish CLERK: “That we add the following language: after the could be stopped in our federal government. Therefore, it word ‘governor,’ change the period to comma and add, ‘un would seem to me that rather than delete this section that less it makes provision for such additional revenues as may it should be amended, and I would like at this time to second be necessary to fund such additional expenditure.’ the amendment proposed by Delegate Kellerman. HEEN: Now according to that language, in order to in CHAIRMAN: Will the Clerk please read the amendment crease the amount of the general appropriations bill, the offered by Delegate Kellerman—just a moment, Delegate legislature would have to enact legislation to produce addi Fong—in order to understand what the amendment is. tional revenue. I think that is wrong because the legislature might find that the over-all estimated revenue may be suf CLERK: “Unless it makes provisions for such additional ficient without any additional taxation law to take care of any revenues as may be necessary to fund such additional ex additional amount to be added to the general appropriations penditures.” bill. FONG: The amendment proposed by Delegate Kellerman is meaningless. When I say meaningless, I want to point to TAVARES: May I point out, simply for the information the fact that there has always been divergent opinion as to of the delegates, what I think induced our committee to sug how much we will receive in revenue. Now, in the time gest Section 3? Whether that reasoning is right or wrong that I have been in the legislature the Budget Bureau director is up to the members of the delegation to decide. But I always tells us that we will be three to five million dollars think it was felt that by eliminating increases over the total in the hole. In 1947 session they told us that we were in the over-all amount of the governor’s budget, there would be a hole three million dollars. When we ended, we were ten tendency to minimize some of the points of difference so million dollars above. that it would help them to get through a little earlier than Now the question comes up, who has the last word as to otherwise with the general appropriations bill. In other how much revenue we can expect? The budget director, the words, by cutting down somewhat the area of disagreement members of the legislature, the governor, each has his own by the legislators, it was thought you would expedite. Now idea - - have their own ideas as to how much money can be that may or may not be sound in the opinion of the delegates, realized. If you put that amendment to this section here, I but it did have an influence on the members of the committee think it’s meaningless. The legislature will say, “As far I feel this way very strongly. I would rather see this sec as we are concerned, we will be three or four million dol tion deleted than the amendment proposed go through. I lars above deck,” and the budget director will naturally hold think that a provision like that has a tendency to force throug hue and cry in all of these budget meetings that we will not hasty, ill considered tax measures, piece-meal tax measure meet the expenditure. In all the years that I have been in which are always wrong. A tax should be passed only after the legislature I have found that the budget director has been you have an all-around, all-over view of all of your require off at least five million dollars; he was ten million dollars ments. And I think it’s wrong to do that. off in 1947. How many million dollars will he be off in next We had before the committee for consideration a proposal session of the legislature? Now who is going to tell us that that we must balance the budget every time, and we gave it we can only expect the revenue-producing measures to bring up for several reasons. One was the reason brought out by in 100 million dollars a biennium? Who is going to tell us some legislators to the effect that they never can agree on that the revenue will not exceed 100 million dollars in the appropriations. Secondly, it was pointed out that some biennium? times it’s not too unhealthy to go into a legislative session So I say that where you have guesswork—of course it is with a deficit, rather than a surplus. It makes the legisla intelligent guesswork, guesswork by people who are sup tors more economy-minded. So on the whole I would rather posed to know and they differ so widely—then you won’t have see the whole section go out than to have it tied down in this a yardstick by which you can gauge these things, and the manner. legislature can very well say, “We have provided for the ap CROSSLEY: I’d like to withdraw my second. As I re propriation and the money is available, the only thing is that read this and listen to the arguments, I think they are valid. the budget director is too pessimistic.” I would like to As I look at Section 4 again, it’s there perhaps where there leave that forethought here and I think that is one of the very should be an amendment. I would at this time like to with serious things we have in the legislature now, the difference draw my second to the previous amendment. of opinion as to how much could be raised. CHAIRMAN: Delegate Wirtz. WHITE: Could I talk to that, too? I think it has one fur WIRTZ: I would be out of order speaking now. I was ther disadvantage if you have that provision in. The legis going to speak against the amendment but the second has lature would be recommending the passage or making addi been withdrawn. tional tax laws when it didn’t know what the over-all needs were because we are only talking about the general appro SILVA: I was going to speak against the section for the priations bill. Before the legislature could be in a position reason that, as an example, during the last session of the to know what the financial needs were, you’d have to wait legislature in which the governor made certain recommenda until you get through with the capital budget and other appro tions through the Bureau of the Budget or vice-versa and the priations in the session. appropriations bill was presented to the legislature, in the To speak to the point that Mr. Delegate Fong made on opinion of the department heads —Department of Public In this, on the difference of opinion on what the revenue may struction, the Board of Health—they appeared before the JUNE 19, 1950 • Afternoon Session 449 committee and they asked that certain items be re-inserted CHAIRMAN: Delegate Fong, Section 3 has been deleted. into the appropriations bill, as an example, mosquito con The only way to have discussion on Section 3 is to move tc trol and additional kindergarten teachers. In the opinion of reconsider. the legislators, we felt that during the next biennium there FONG: I was going to ask you this question, by the time would be sufficient revenues raised throughout the Territory you put it to a vote as to what would be the import of de to cover the additions requested by the department heads. leting Section 3? Will that mean that the legislature will We re-inserted mosquito control and plague control for Ha have the right to amend? Now if that’s the understanding, waii, and the Department of Public Instruction requests it’s perfectly all right. were inserted again. Now, all of that would have increased the appropriations bill. If it wasn’t for the power of the HEEN: I don’t think there is any question about it that legislature to increase the appropriation bill, then the pub the legislature may amend without any restriction because lic of the territory with the whole state would have been de in the first section there’s no limitation on the power of prived of government that they requested themselves. And the legislature to amend any general appropriations bill. by doing that, I can’t see how you are going to put the power When the governor sends the bill down for introduction in in the hands of the bureau of the Budget and the governor, the legislature, that bill is not law until acted upon and that rightly belongs to the members of the legislature. passed by the legislature, and the legislature has the power to amend. ARASHIRO: I have a question for the chairman of the Taxation and Finance Committee. Doesn’t this section limit FONG: If that is the spirit and the thought, it’s fine. the power of the legislature of introducing new tax meas CHAIRMAN: May we proceed to Section 4? ures? HEEN: I move that that section be deleted. Number 3 TAVARES: No. has been deleted, number 4 has no place here. ARASHIRO: Because I feel this way, that when the gov DELEGATE: Second the motion. ernor makes his recommendation or submits his proposed CHAIRMAN: Motion has been made to delete Section 4. budget, he naturally has all the methods of raising the rev Any discussion? enue, and as far as the legislature is concerned, we don’t have to think about raising the revenue, because as far as LOPER: I wonder if there isn’t going to be a provision raising the revenues are concerned it has been restricted somewhere else in our Constitution providing that any bill by the last section of the sentence where it says, “provided shall deal with only one subject and it shall be reflected in such a method shall not result in an increase in the total the title, the subject. amount in the bill recommended by the governor.” Then HEEN: That provision is in the article relating to the naturally if we are not going to increase the revenue, we legislature. are not going to think of new methods of taxation. TAVARES: Before there’s a vote on this section, I think WHITE: This increases the - - this is a prohibition on the delegate ought to hear a little of the other side. There increasing the total amount of the expenses provided by the is a place, it seems to me, for a provision like this. Al general appropriations bill and has nothing to do with the though ordinarily we are going to have provision limiting revenue. bills to one object or purpose, but you can get one object and ARASHIRO: Well, if we cannot increase the expenditure, purpose by an appropriation bill by just making the title then we don’t have to think about raising money and new broad enough. You can cover any number of subjects. It methods. Is that right? seems to the that even though Section 3 has been deleted and the latter part of Section 2, there could be some point WHITE: I don’t understand your point. to this by amending Section 4 to read: “Appropriation ARASHIRO: If we cannot - - if we do not find the need of bills other than the general appropriations bill and other increasing the expenditures, then we don’t need the necessity than the deficiency appropriation bills shall not appropriate of finding, exploring new field of raising revenue. money for more than one object or purpose.” I think it might prevent a little too much log-rolling on some of the WHITE: Of course this is only a part, this is only one other types of appropriation. I think general appropriations item of the program that the governor submits at the legis bills and deficiency appropriation bills need to cover a large lative session. There is also the capital budget that still has number of subjects, but there isn’t so much necessity for to be considered or any other bills that the legislature may other bills to do that. introduce that have not cleared through the governor. CHAIRMAN: Any other discussion? KELLERMAN: I want to withdraw my amendment because TAVARES: I move that the motion to delete be amended I think the result that I was trying to achieve can be accom to a motion to amend in the manner I have stated. plished better in a further provision - - amendment of a further one that’s coming up. ROBERTS: I didn’t get any specific language on the amendment. I think if the delegate from the fourth would AKAU: I feel we had free and full discussion on this issue draft some language and present it to us, I think we could and most of us have made up our minds. I move the pre consider it at that time. May we have a five minute recess vious question. for that? FUKUSHIMA: I’ll second the motion. CHAIRMAN: Shall we defer it, or are you making a mo CHAIRMAN: For the previous question? tion to recess? FUKUSHIMA: Yes. ROBERTS: I move we defer to give the gentleman oppor tunity to prepare a proper amendment. CHAIRMAN: All those in favor of the previous question please say “aye.” Opposed. Carried. DELEGATE: I’ll second the motion. The question then to be put before this committee is CHAIRMAN: Motion’s been made to defer consideration whether or not Section 3 should be deleted. All those in of Section 4. All those in favor please signify by saying favor say “aye.” Opposed. Carried. “aye.” Opposed. Carried. FONG: If Section 3 is deleted - - We will proceed to Section 5. 450 TAXATION AND FINANCE WOOLAWAY: I move that we approve tentatively Section favor of Section 5. Mr. Tavares and Mr. White represented 5. the committee. RICHARDS: Second the motion. ANTHONY: I’m sorry, I didn’t know there was a motion CHAIRMAN: Any discussion? to adopt. SAKAKIHARA: I move to delete Section 5. CHAIRMAN: Yes, there was. CHAIRMAN: Does Delegate Mau second the motion to HEEN: For the information of the committee I might delete Section 5? state this. The Committee on Legislative Powers have ten tatively agreed upon this provision: “Every bill which shall HEEN: I rise to a point of information. May I ask those have passed the legislature shall be certified by the presid who are familiar with the enactment of general appropria ing officers and clerks of both houses and shall thereupon tions bills whether or not there is something in the statutes be presented to the governor. If he approves it, he shall now which provides for the same thing that is designed here sign it and it shall become law. If the governor does not in this particular provision? approve such bill, he may return it with his objections to WHITE: As I understand it, the governor has this power the legislature. He may veto any specific item or items in at the present time. any bill which appropriates money for specific purposes by striking out or reducing the same but he shall veto other HEEN: By statute? bills, if at all, only as a whole.” That is taken from the WHITE: Yes. Organic Act except that we have put in there the power to PORTEUS: I think there is a provision in the Organic reduce. Act which lets the governor veto items in an appropriation WHITE: Well, I would accept that if you have covered it bill, but there is nothing which permits him to reduce ap in the legislative section and I think it’s something that propriations. should be done. I think the reasons for it are well set forth TAVARES: That is correct. in the explanation of Section 5 in our report. CHAIRMAN: May I state that it was DelegaW Porteus HEEN: If that is accepted, I take it there will be no ob who spoke without recognition by the Chair. jections to that going into the article on the legislature. Then this committee proposal can be reduced in length. PORTEUS: I apologize to the Chairman and I withdraw my information. WHITE: That’s right. HEEN: It should be expunged from the record. CROSSLEY: On that specific understanding, then, I would vote to delete this section with the complete under CHAIRMAN: Any further discussion? standing that it is going to be included in the legislative TAVARES: That is correct about the Organic Act. Sec bill which undoubtediy will be the very last bill to be con tion 49 of the Organic Act provides that the governor “may sidered by this body—with emphasis on “the very last.” veto any specific item or items in any bill which appropriates We would have no chance to come back in on this one, so I money for specific purposes, but shall veto other bills if at would like to be sure that the gate isn’t closed to such an in all only as a whole.” Now that type of provision can be clusion at some later time. abused and it has been abused. The legislature, by lumping WHITE: We reserve the right to bring it up at that par a lot of items together into one big item and then putting a ticular time, particularly as it applies to the reduction of lot of water in it, can force the governor to take it or leave items. it as a whole. It seems to me it would be a healthy thing to allow the governor to not only veto a whole item but to take CHAIRMAN: With that understanding, is the committee some of the water out of an item without eliminating it en ready to vote on the motion to delete? tirely. And remember that since we have provided here FONG: I think the deletion of Section 5 is a little too that the legislature - - we have provided means which will drastic. I would like to amend that motion to delete just to give an incentive to the legislature to pass the appropriation delete the words “or reduce” in the first line of the sentence. bill early, they are now going to have an opportunity to pass “The governor may strike out items in the appropriation on the governor’s veto. We are encouraging them to pass it bills passed by the legislature.” This would restore it back early so that if the governor does wring too much of the to what the Organic Act is at the present time. The reduc water out, they can still put it back. tion is an addition here. ANTHONY: I don’t think we’re adopting exactly the cor SAKAKIHARA: I was the original movant of the motion to rect procedure. Presumably this committee has done a lot delete Section 5 and precisely because of the fact that we’ve of work on the proposal and I think we ought to hear from already taken care of this provision in the legislative com the committee chairman before we start to vote on a motion mittee, I don’t see the necessity of duplication of the right to delete. We have had no discussion of that. The basis of the governor in Section 5 when it’s already taken care of of the proposal, as I understand it, is to get away from the by the legislative committee. And that is a question to be difficulty that pertains in the Federal Constitution. As you taken - - subject matter taken care of by the legislative com know, there the appropriation bill, the President must mittee. either accept it or veto it, and no President in our entire ARASHIRO: With the understanding suggested by my col history has ever had the nerve to veto an appropriation bill, league from Kauai and the suggestion made by the delegate even though he disapproves heartily of some items in it. I from the fourth district, I now move to the previous question. should think our appropriate procedure here would have the - - if the movant would withdraw his motion, get this section DOI: Before I’m shut off, I would like to say that this before the house and let ‘the committee explain it. Section 5 here is not the same as that just read by Delegate Heen. Section 5 not only includes the power to strike out CHAIRMAN: May I correct the speaker’s last remarks. but also includes the power to reduce, and I think that’s bet A motion was made to adopt Section 5 in principle, it was ter. The power to strike out of the governor is only a right seconded; and then there was a motion made to delete Sec - - his right to suggest to the legislature that this and this tion 5, that was seconded; and then Mr. Tavares spoke in should be done. Should we. include the power to reduce, I JUNE 19, 1950 • Afternoon Session 451 think we should also include the power to increase. That by authorizing the governor to reduce expenditures when would suggest to the legislature that this be completely conditions warrant such action. This would not be construed stricken out, reduced or increased, and the legislature as an encroachment by the governor on the power of the leg could do what they want with it. And should they find that islature since the appropriations made were based on esti this Section 5 passes here, then when the Legislative Com mated revenues submitted by him. Such a delegation of pow mittee proposal comes up to this particular point, we can er must be provided in the Constitution in order to be effec just incorporate this, and leave it up to the Style Committee. tive. You will note that it is only in situations where anti cipated revenues fall below the estimates upon which the ap BEEN: I don’t think the last speaker understood the lan propriations were based or whenever the governor is author guage that I presented at a moment ago. This states that ized by law to affect economy that he has the power to the governor “may veto any specific item or items in any reduce expenditures below the amounts appropriated. bill which appropriates money for specific purposes by It is the belief of your committee that any statute grant striking out or reducing the same.” “Reducing the same” ing such power to the governor should stipulate that any re is an addition to what we now have in the Organic Act. ductions in appropriations should be limited to lump sums FUKUSHIMA: I second the motion for the previous ques by departments, thus leaving to the discretion of the de tion. partment head the means of effecting such reductions. The governor is also authorized to make periodic allo CHAIRMAN: All those in favor of the previous question, cation of funds to take care of operations programmed by please signify by saying “aye.” Opposed. Carried. each of the departments which are submitted to him for All those in favor of deleting Section 5 with the under approval. standing that the subject matter will be covered by the leg islative proposal please signify by saying “aye.” Opposed. LOPER: May I ask the chairman of the committee if the Carried. second word in that section should not be eliminated, “an RICHARDS: I now move that we approve tentatively Sec ticipated” revenues? Aren’t you referring to the actual rev tion 6. enues falling below estimates? WOOLAWAY: I second the motion. CHAIRMAN: I believe Delegate Loper addressed his question to the chairman of the committee. CHAIRMAN: Any discussion? TAVARES: I think some explanation should go into the WHITE: I think the difficulty there is that you may - - record here. The blank section, the section blank of arti it isn’t always actual because on the basis of receipts up to cle - - Section 5 of Article blank is intended to refer to the a particular time, it may develop that your anticipated rev enues for the future are still not adequate. And so I think section of the Bill of Rights which provides for the separa the word “anticipated” should stay in. tion of church and state. I don’t know whether it’s still Section 5, but I should like to have that understanding so that LOPER: Then I would like to speak again on that. It when we vote on it, the proper section can be inserted. seems to me that when the government is actually going in the red because the revenues are not adequate, certainly CHAIRMAN: Are you through, Delegate Tavares? then the power must be somewhere to balance the budget SAKAKIHARA: At this time I move that we defer action and keep expenditures below income. But to do that in ad on Section 6 until we have disposed of the proposal as a vance seems to be unnecessary. whole - - defer action on Section 6 until we have acted on CHAIRMAN: Delegate Fong sought to be recognized, I the rest of the proposal, so we may make proper reference believe. to the section, due to thefact that Section 5 was deleted. WHITE: As I recall, the Style Committee had already FONG: I’d like to ask a question. In the latter part of the given article numbers to these things and we could refer to section, “that the legislature, by resolution concurred in the article numbers that the Style Committee has provided by a majority of the members of each house, may exempt for that section. specific appropriations” from this legislative - - this execu tive reduction. Now do I understand that this resolution CHAIRMAN: U there is no further discussion, are we must be concurred in by majority of members of the House ready for the question? All those in favor of the adoption in and the Senate at a session? principle of Section 6, please signify by saying “aye.” Opposed. Carried. WHITE: What was the question now, Mr. Fong? Section 7. FONG: The question is, the resolution, must it be adopted WOOLAWAY: I move that we now adopt Section 7 tenta during the session or shall it in adopted or may be adopted tively. outside of the session? RICHARDS: Second the motion. WHITE: It would have to be adopted at the session. SAKAKIHARA: At this time I wish to move to amend FONG: At the session? Section 7 by deleting the first clause so as to read, “The WHITE: Yes. governor shall have the authority through allotments or otherwise, to control the rate at which appropriations are FONG: Then when the legislature anticipates that there expended.” may be a drop in the revenues, they may by resolution ex empt certain provisions from this governor’s veto? CHAIRMAN: I didn’t understand the motion. Will you please repeat it in clear and unmistakable language. WHITE: The purpose of this would be that if the legis SAKAEIHARA: Delete the first clause, so as to read - - lature wanted to set up some special legislative committee to operate in between sessions of the legislature that they CHAIRMAN: While we’re having time out, do you want could appropriate the money for that purpose and the gover - to have Mr. White explain this section? nor wouldn’t have any power to cut it down as he would in SAKAKIHARA: All right. the case of other departments. WHITE: As previously stated, the committee believes that FONG: And that is by special resolution, accompanying means should be provided for preserving financial stability the appropriation probably? 452 TAXATION AND FINANCE WHITE: That’s right. much more essential to the carrying of the State, the gen HEEN: I rise to a point of information. eral welfare, than other departments. It would be much more logical to refuse the less necessary departments than CHAIRMAN: Is Delegate Fong through? Delegate Heen. to reduce the more essential departments. This would make HEEN: Point of information. Is there not some statute it possible for the legislature, if we’re going to have such on the books now that is similar to what is written here in provision as this in the Constitution, to designate the cer this section, so far as the general appropriations bill is tain departments which - - the functions of which it consid concerned? ers so vital that they are not to be reduced at all, or others to be reduced only in part, and then it is the legislative dis WHITE: We’ll look that up. I think there is in creating cretion being exercised and not the executive in cutting in the Budget Bureau. to general appropriations. HEEN: If that is the case, why have it written into the SAKAKIHARA: I rise to a point of order. The lady Kel Constitution and have it a fixed basic law when in the future lerman wanted to offer an amendment to the motion to delete, you might want to have to change some of the provisions that being a proper motion to talk on. I think there is a mo that are written here? tion before the Committee of the Whole to delete this section, FONG: I could anticipate - - isn’t it? CHAIRMAN: Just a moment, Delegate Loper desires to CHAIRMAN: The only motion before the committee at speak. the present time is to adopt Section 7. FONG: I was just yielding to Senator Heen a little while SAKAKIHARA: I make a motion at this time to delete ago. Section 7. ANTHONY: I would like to ask a question of the chairman CHAIRMAN: Well, this Chair when it rules —when you of the committee. Under this Section 7, would it be possible yield you yield for all purposes contrary - - for the governor to eliminate from the funds allocated to the FONG: I bow to the ruling of the Chair. judicial department of the government the necessary funds CHAIRMAN: However, I’ll call - - since Delegate Loper that had been appropriated by the legislature for the running has asked you to speak, I’ll call on Delegate Fong to speak. of the courts? Would it be possible under any circumstance? WHITE: You mean to cut them out entirely? Well, I LOPER: I wish to ask another question about the second don’t think that - - Under the provision here he’d be permit line in this Section 7., It reads as follows: “revenue esti ted to make reductions. I can’t imagine any executive ever mates upon which appropriations were based.” Are those taking such action. It would permit the governor to speci estimates the ones made by the commissioner of finance fy, say, that the judicial department had to cut down their and the governor, or are they the estimates made by the expenses by $50, 000, and enable the judicial department legislature in passing the appropriations bill? to work within that reduced appropriation. WHITE: They are the ones made by the governor and HEEN: I second the motion to delete this section. It submitted to the legislature, Assuming - - I can imagine contains a lot of legislative material which should not be the situation might arise where there might be some ad written into basic law. justment of those after conference. CHAIRMAN: A motion has been made to delete Section LOPER: It seems to me then that the revenues might 7. well drop below the estimates made prior to the legislative session and still be well within the appropriations. In other TAVARES: A question was asked a few mintues ago by words, if the tax returns are higher than anticipated, the Delegate Heen and I simply rise to answer it. Section 1634 government would not in any sense be heading into the red, of our Revised Laws now gives very drastic powers to the and yet the revenues would be less than the original estimates. governor. “No head of a department shall expend or be allowed to expend any sum for any purpose whatsoever not WHITE: If you run into a situation where revenues are specifically authorized by the legislature, and where dis running ahead of it, then you don’t have - - the governor has tribution or expenditures are made under lump sum appro no power to reduce expenses. priations the head of each department shall be governed KELLERMAN: I am not particularly in favor of Section in making such distribution or expenditures by any authority 7, but in case the majority of this body is in favor of putting of the legislature, and in the absence of such legislative it in, I should like in the interim to propose an amendment, authority shall be governed by the authority and approval of which I think would clarify one picture. the governor.” Under that section it has been customary We’ve heard much about the executive department cutting for the governor through the budget officer many, many appropriations during the period of anticipated deficiency times to refuse to expend the appropriations made by the of revenues, and cutting them using discretion which rightly legislature. belongs to the legislature and interfering with the activities of the executive department, that it made it very difficult RICHARDS: I think there is one point that this Conven for them to carry on the work which apparently the legisla tion is overlooking in its discussion. We hear from a great ture had intended them to carry on. It seems to me that it many of the legislators regarding the difficulty they have would be a very logical solution to such an impasse if this had with an appointed governor. We are now talking about next to the last line were amended. Where it says “pro an elected governor and I think you will find that the elected vided, that legislature, by resolution concurred in by a governor will be a lot more in sympathy with the legislature majority of the members of each house, may exempt specific than, necessarily, an appointed governor. appropriations,” delete “for the legislative department” and WOOLAWAY: I haven’t spoken on this matter yet. I’d insert in lieu thereof “in whole or in part.” That would like to speak in the affirmative before we take a vote on it. give the legislature the power to state in the appropriation Such a system has been in effect in Hawaii since 1925. It bill as errata that such appropriations are not to be reduced has been the means of carrying the territory through the at all, and if so, only to what percentage. periods of financial conditions. Dr. Harley Lutz of Prince It seems to me it’s quite logical to assume that we have ton University cites some of the advantages of the allotment certain departments of governmental function that are very system. (1) It establishes the responsibility for efficient JUNE 19, 1950 • Afternoon Session 453 administrative operation of departments definitely on the ANTHONY: It is on a permanent basis? governor and provides him with definite executive control SILVA: To be on the safe side, I see nothing wrong over the performances of services and the expenditure of public funds, (2) It affords the means of maintaining budg about leaving this section in. The Committee on Style can properly place it and I’d like to leave it in in the meantime, etary balance. If revenues are declining, allotments can be correspondingly reduced to avert a deficit. (3) Throunh anyway, to take care of my friend, Francis Brown, in San Francisco. the allotment system, the executive may exert pressure to obtain increase in efficiency—which we certainly need—in HEEN: This article is one on taxation and I believe that the administration of government functions and services. this section properly belongs to this article. I would like The territory has used the allotment system for the control to point out, in one place it speaks about “citizens” and of expenditures for several years. The proposed provision another place about “residents.” Is there any reason for neither adds to nor detracts from the authority now exer using the two words there? cised by the governor. I would vote against deleting this provision. WHITE: Well, it’s not our wording; the wording is taken fromH.R. 49, so- ASHFORD: I call attention of the delegates to the fact that this section gives the governor power to act by allot HEEN: It would seem to me that that ought to read, “The ment or otherwise. lands”—instead of singular, it should be plural—”The lands and other property belonging to residents of the United CHAIRMAN: Are we ready for the question? States residing without this state shall never be taxed at a DELEGATE: Question. higher rate than the lands and other property belonging to the residents thereof.” CHAIRMAN: The motion is to delete Section 7. All those in favor of deleting Section 7 please signify by saying “aye.” WHITE: Well, all that we did is to take this out from Opposed. Carried. H.R. 49. That removes the motion for adoption, so we proceed to Section 8. HEEN: Well, that’s not a safe thing to do all the time. TAVARES: In that form, I think it would be unconstitu RICHARDS: I move for the tentative adoption of Section 8. tional. We have United States citizens residing in foreign YAMAMOTO: Second the motion. countries. This is to protect non-resident United States citizens from discrimination against residents. We can’t CHAIRMAN: Any discussion? discriminate against residents in taxation inside the terri DELEGATE: Questiori. tory, so automatically the word “residents” includes both CHAIRMAN: All those in favor of adopting Section S in citizens and non-citizens in the territory. principle, please signify by saying “aye.” Opposed. Car NIELSEN: I want to differ with that because we do dis ried. criminate against citizens right here in the territory, and LAI: I move for the adoption of Section 9 tentatively. I think this is where possibly an amendment should be made, or adding on to it. At the present time, and I’m one of them. • WOOLAWAY: I second the motion. My placement burnt down a year and half ago and I built WRITE: I ‘d like to suggest an amendment that that be a store and my living quarters is in the back of the store deleted since it’s covered by one of the provisions in the building. And I’m assessed full commercial value on the section on ordinances, arId I think it really belongs there real estate, land and building, although I should have home rather than in this section. exemption. But if you have a store and your living quarters are in back of it, why you get no home exemption, and that CHAIRMAN: Do you move for that deletion? certainly isn’t equal taxation. WRITE: I move for its deletion. So we do have that discrimination right here in the terri tory. It’s contained in the Section 5149 which says, “A SHIMAMURA: Second the motion. person living on premises, a portion of which is used for CHAIRMAN: A motion has now been made to delete Sec commercial purposes, shall not be entitled to an exemption tion 9 from Committee Proposal Number 10. Any discus - with respect to such portion, but shall be entitled to an ex - sion? emption with respect to the portion thereof used exclusively as a home; provided, however, that this exemption shall C. RICE: Is this in H.R. 49? not apply to any building or structure, including the land WHITE: Yes, it is in H. R. 49 and the Committee on Or thereunder, a portion of which is used for commercial pur dinances has drafted an ordinance to take care of it. I think poses.” it’s better taken care of in that section. So anyone living in the back of their store is discrimi nated against in home exemption, and I’d like to see an CHAIRMAN: If there’s no further discussion - - amendment in this taxation structure that will take care of ANTHONY: I’m not so sure. I’d like to ask the chair that so that the part that is used for a home, why I don’t man of either the Finance Committee or the Ordinances, know why anyone that is willing to put up with living in back it is my understanding that an ordinance is of an ephemeral of a store they should really be entitled to an exemption nature, and this provision that the Finance Committee has more than a person who has a separate home. brought in is something permanent, not to disappear after TAVARES: I think that that question has been settled by the ordinance has run its course. this Convention in voting against any elimination of the home CHAIRMAN: Delegate Shimamura, do you care to an exemptions. All of these inequalities were pointed out at swer that question? the time. They are not inequalities of the type that are un constitutional, they are inequalities of classification. All SHIMAMURA: H. R. 49 provides for two types of ordin residents in the same class as the delegate who has just ances, one that may be included in the Constitution and spoken are treated the same way, and that is the kind of uni another type which may be separately submitted to the peo formity that the Constitution and H. R. 49, this provision ple. The type of ordinance we have provided for, pursuant requires. All people in the same class must be treated the to H. R. 49, is of the permanent nature. same way. 454 TAXATION AND FINANCE WHITE: If somebody would like to move for reconsidera FONG: May we ask for the reason for deletion of that tion of that home exemption thing, we’d be glad to discuss section? Looks like a pretty good section. it again. FUKTJSHIMA: I believe this is purely statutory and CHAIRMAN: The motion before the Committee of the nothing else. Whole is for the deletion of Section 9 at the present time. TAVARES: I think the delegation ought to know that in WHITE: In view of the feeling on the part of some of the past we have had counties that had centralized purchases them that it probably belongs in here and that we can leave and counties that didn’t, or counties that put in centralized that to later determination by the Style Committee, I’ll purchasing and then took it out again. And this is sort of withdraw my motion to delete and then the motion to adopt a finger, at least,, pointing the way to the legislature that will be the only motion before the house. they ought to make every county have centralized purchasing. CHAIRMAN: The motion has been withdrawn. The second While I was in government service, the residents of one withdraws too. of the counties tried to get action in the courts to stop some of the abuses that were caused by lack of centralized pur CROSSLEY: Inasmuch as there is no motion on this sec chasing. In one county, for instance, they were buying from tion before the house at the present time, the only motion certain people at much higher prices than they could get was to delete - - from somebody else, because they didn’t have this central CHAIRMAN: No, there was a motion to adopt, then there ized purchasing bureau. was a motion to amend by deleting Section 9. The motion SAKAKIHARA: Would you assure the Convention that the still stands to adopt Section 9. Any questions? U not, all subject matter Is now under the consideration of the hold those in favor of adopting Section 9 in principle please sig over committee of the legislature? That is now being con nify by saying “aye.” Opposed. Carried. sidered by the subcommittee on government efficiency, and SAKAKIHARA: Was that as amended? it will recommend to the next session of the legislature for purchasing methods, centralized purchasing methods. Pure CHAIRMAN: There has been no amendment. ly statutory matter. SAKAKIHARA: Oh yes. Delegate Heen amended by add CHAIRMAN: Any further discussion? If not, all those ing “s” to “land” in Section 9. in favor of the motion to delete Section 11 from Proposal CHAIRMAN: He may have suggested it, but there was Number 10, please signify by saying “aye.” Opposed. no motion, no second. Carried. SAKAKIHARA: In view of the fact that I voted in the af WOOLAWAY: I now move that we rise, report progress firmative to adopt Section 9, I offer to add the word - - and ask leav,e to sit again. CHAIRMAN: Isn’t that a matter of style, anyway? CROSSLEY: I don’t think that we have to go through that formality. I think if we can recess for five minutes, we WOOLAWAY: When this body of learned individuals met can certainly recess for a couple of hours. Therefore, I at 1:30, it was the decision of the body by a majority vote move that we recess until 7 o’clock. that we rise at 3:30 and go into recess, so that we can con vene again at 7 o’clock tonight which will allow the Commit APOLIONA: Second the motion. tee on Legislative Powers to finish their work. It is now KING: I agree with Delegate Crossley as to that pro 25 after. I would move at this time that we defer Section 10 cedure, but there are some things on the desk that have to until 7 o’clock tonight and move on to Section ii. It’s been be taken up in the Convention, so I hoped we would follow a hot and lengthy matter to discuss. the normal procedure. ANTHONY: I would like to amend that motion to make it CROSSLEY: I respectfully submit to the elder statesman. 7:30. That’s a little early, 7:00. APOLIONA: I now move that this committee rise and WOOLAWAY: Is that an order, Mr. Chairman? beg leave to sit again. CHAIRMAN: Well, Delegate Woolaway, as I understand CHAIRMAN: You second the motion of Delegate Woola it your motion is to defer action on Section 10 and to con way? All those in favor of the motion, please signify by sider action at this time on Section ii. Is that correct? saying “aye.” Opposed. Carried. WOOLAWAY: Correct. Evening Session CHAIRMAN: Has that been seconded? CROSSLEY: Second the motion. WOOLAWAY: At this time, I’d like to move that we pass CHAIRMAN: All those in favor of the motion to defer tentatively Section 10. action on Section 10 at this time, please signify by saying DOI: Second the motion. “aye.” Opposed. Carried. Section 11 is now before the committee. WHITE: I’d like to make a few comments on Section 10. First of all, I’d like to - - all of the delegates have been WOOLAWAY: I now move that we tentatively approve furnished with a new draft to Section 10, and I would like to Section ii. offer that as an amendment to replace the draft that was at CROSSLEY: I second the motion. tached to the committee proposal or that was incorporated in the committee proposal. Now the substance of this FUKUSHIMA: I move at this time that Section 11 be de amendment - - leted. Section 10. Debt Limitations. HEEN: Second the motion. No bonds or other instruments of public indebtedness CHAIRMAN: Motion has been made to delete Section 11. shall be issued except by or on the behalf of the State or Any discussion? a county. All such State bonds and other State instruments of indebtedness must be authorized by the legislature. DELEGATE: Question. All such county bonds and other county instruments of CHAIRMAN: U there’s no discussion - indebtedness must be authorized by the governing body JUNE 19, 1950 • Evening Session 455 of the county issuing same, and the legislature shall have the debt limit will not apply to bonds issued by a public enter no control over their authorization or issue; provided prise or a public corporation where the only security is the that no county bonds or other county instruments of in revenues thereof, or to bonds issued under improvement dis debtedness shall be deemed to be authorized until the is trict statutes when the only security for such indebtedness sue thereof is approved by a majority of the registered is the assessment upon benefited or improved property. voters whose votes are tallied on the subject at an elec I have been in communication with the legal firm of Wood, tion in the county concerned. King and Dawson who have represented the Territory and Fifty million dollars is hereby established as the limit counties over a period of years and this proposal incorpo - of State debt at any one time. Bonds and other instru rates changes suggested by that firm. It has also been re ments of indebtedness in excess of this State debt limit viewed by the attorney general and has his approval as to may be issued, provided such excess debt of the State form. is authorized by a two-thirds vote of all the members of In order to assist the delegates in considering this im each house of the legislature, and such excess debt, at the portant subject, the debt limits of the State and the counties, time of authorization, would not cause the total of and the situation of each with respect to outstanding bonds State indebtedness to exceed a sum equal to fifteen per as well as those authorized but unissued. is shown on this cent of the total of assessed values of taxed real property chart. [Facsimile of chart on following page.] All support in the State, as determined by the then last tax assess ing data are set forth in exhibits attached to the committee ment rolls of the State, pursuant to law. report. If you’ll look at the chart here, at the top set of Bonds or other instruments of indebtedness to fund figures are shown the assessed value of the Territory as a appropriations for any fiscal period in anticipation of the whole and then for each of the individual counties: 249 mil collection of revenues for such period or to meet casual lion for the City and County of Honolulu, 30 million for deficits or failures of revenue, which debts shall be pay Maui, 34 million for Hawaii, and 18 million for Kauai. On able within a period of one year, and bonds or other in the basis of this seven and one-hall per cent for those coun struments of indebtedness to suppress insurrection, to ties, Honolulu would have a debt limit of 18, 750, 000; Maui repel invasion, to defend the State in war, or to meet 2,275,000; Hawaii 2,600, 000; and Kauai 1,400,000. emergencies caused by disaster or act of God, may be To give you an idea of how each of the individual counties issued by the State under legislative authorization without stand, in the case of the island of Oahu, City and County of regard to the limits on debt and excess debt hereinabove Honolulu, their bond limit is now - - I mean their outstanding provided. bonds now amount to $13, 982, 000. They have bonds that A sum equal to seven and one-hall per cent of the total have been authorized but unissued of $6, 200, 000, so that of the assessed values of taxed real property in the county, the total outstanding and authorized but unissued would as determined by the then last tax assessment rolls of the amount to 20, 182, 000, which would be in excess of their State pursuant to law, is hereby established as the debt 18, 750, 000 bond limit. limit of such county at any one time. In the case of the island of Maui, they had 652, 000 out All bonds or other instruments of indebtedness for a standing, and they have authorized but unissued 1, 150, 000, term exceeding one year shall be in serial form matur making a total of 1, 802, 000 which would be well below the ing in substantially equal annual installments, the first debt limit. installment to mature not later than five years from the In the case of the island of Hawaii, 689, 000 outstanding, date of the issue of such series, and the last installment 795, 000 authorized but unissued, or a total of 1,485, 000 not later than thirty-five years from the date of such issue. against the bond limit of 2, 600, 000. Interest and principal payments shall be a first charge When we get to the island of Kauai, where we run into on the general revenues of the state or county, as the some difficulty because their bond limit would be one case may be. million four, they already have - - the 725, 000 that are The provisions of this Section shall not be applicable shown on the chart here have now been issued, so they would to indebtedness incurred under revenue bond statutes by have 1, 874, 000 outstanding, which would be in excess of a public enterprise of the State, county or other political their bond limit. On the other hand, if an ordinance were subdivision, or by a public corporation, when the only adopted approving of the present borrowings, why the bonds security for such indebtedness is the revenues of such of the County of Kauai would not be effected except that they enterprise or public corporation, or to indebtedness in would not be permitted to make further borrowings until curred under improvement district statutes when the they got down to the debt limit or unless the assessed value, only security for such indebtedness is the assessments in the case of the County of Kauai, would permit them to upon properties benefited or improved. increase that figure of one million four. Nothing in this section shall prevent the refunding of Now, in the case of the Territory, the Territory at 15 any indebtedness at any time. per cent would work out 50, 050, 000, which is the present bond limit, the present limit on their bonds. In the case of CHAIRMAN: Just a moment, Mr. White. the Territory, they have a 50 million debt limit now, but NIELSEN: Mr. Chairman, so Mr. White can talk on outstanding and authorized but unissued bonds amount to the amendment, I’ll second it. about 56 million. However there are a number of those issues that I understand that there is not much chance that WHITE: Thank you, Mr. Nielsen. they will be sold. That’s all I have to offer. If there are The substance to the amendment differs primarily from some questions, why - - the original in eliminating any dollar limitation on county indebtedness, this being governed solely by the percentage LOPER: May I ask the chairman of the committee a of assessed value of taxed real property. The percentage question? Is it your intention, Delegate White, to hold on is recommended, 15 per cent for the State and seven and one- to both the 50 million limit and the 15 per cent limit? Are half per cent for the counties compared with ten and five per they both to be written in? cent prescribed in the Organic Act. These limits you will note cannot be exceeded except by the State in periods of WHITE: Well, in the case of the Territory, it was felt emergency. All bonds issued under this provision must be that it would be advisable to have a value limitation because in serial form with the requirement that the first installment under the provision the legislature by two-thirds vote can shall not mature later than five years from the date of issue increase that up to a limit of 15 per cent. There’s nothing and the last not later than 35 years. Under this provision, so sacred about the 50 million dollars that the limit couldn’t U’ 0’ PRESENT DEBT AND PROPOSED BOND LIMITATIONS All Territory Counties Honolulu Maui Hawaii Kauai Net assessed valuation Jan. 1, 1950 333,643,~99 333,643,~99 249,670,074 3O,2~9,6O9 34,~l3,295 l~,~7O,92l Territory 15% — 50,050,000 Counties 7~% - 25,025,000 l~,75O,OOO 2,275,000 2,600,000 1,400,000 INDEBTEDNESS Outstanding (2) 14,936,000 17,197,000 l3,9~2,OOO 652,000 6~9,OOO l,~’74,OOO Authorized but unissued (3) 41,076,220 8,145,736 6,200,000 1,150,000 795,736 Total (1) 56,012,220 25,342,736 20,1~2,000 l,~02,000 l,4~4,736 1,~74,000 Proposed bond limitations 50,000,000 (1) Authorized territorial debt limitation by Act of Congress set at 50,000,000 (2) Less outstanding territorial bonds as of June 6, 1950 (includes recent issue) 19,393,000 (3) Leaving unissued available for territory 30,607,000 -4 0 z0 z III JUNE 19, 1950 • Evening Session 457 be carried solely to the 15 per cent except you would have a NIELSEN: I can’t recall the figures because I wasn’t on fluctuating figure all the time, and I don’t think we will al the Finance Committee of the last session, but it seemed ways be in a period where the assessed values are just going to me that we raised or got Congress to raise the authoriza to continue to rise. So having a dollar debt limit may actu tion to 50 million, but we had already authorized the sale of ally prove to be an advantage. that many million dollars worth of bonds, so on this basis WIRTZ: I understand the chairman of the committee has we couldn’t issue any more or authorize the issue of any more bonds. We would be locked at 50 million which we have stated that they corresponded with the firm of Wood, King already authorized. and Dawson. I should like to know if this question was put up to them, and how do they feel? MIZUHA: I believe there was a significant section writ WHITE: You mean on the question of the percentage? ten into the education article some time ago, in the past few days, which would transfer to the future State of Hawaii WIRTZ: That’s correct, and also the fixed figure. My the obligation for, the building of our schools. Now in the experience as city and county attorney in the past has made past, the bulk of the bonds that were issued by the various these firms who underwrite bonds or issue bonds very wary counties were for building of public schools. If the future of any problem of fixing out - - determining the debt limita State of Hawaii is to assume the Obligation for the building tions. And I wondered if this proposition as stated in your of our public schools, then it seems to me there must be proposal had been submitted to this firm for their opinion. some revision in the percentages as far as county obligations WHITE: Yes, it has been, and while I haven’t had any are concerned, and perhaps lowering the percentages allowed positive opinion from them that they would advise very to the various counties and increasing the percentage for the strongly against a combined debt limit exceeding 22 1/2 per future State of Hawaii. cent, I think their thinking is that way, that they should be. WHITE: May I answer that? If you look at the exhibits When you go above 20 per cent, why you’re getting into a that are attached to your reports, you will find that the situation where you have to watch it because the people that school bonds are territorial bonds. ~ true that the in buy the bonds are interested in the ratio of your debts to terest is charged to the county, but they are territorial your assessed value because while all of the tax revenues of bonds and are included in this figure that we have for the the State or the counties naturally are available for the pay Territory. They’re not county bonds. ment of the debt, it’s been customary for bondholders to look to the real property taxes as their real collateral. AKAU: In the new Section 10 which has just been sub mitted this evening, I’m wondering if I understand this CROSSLEY: I’d like to ask the chairman of the Commit correctly. According to the first paragraph, we don’t limit tee on Finance a question. If you tied the debt limit to dol but then we go on into the second paragraph which starts lars rather than to percentage in dollars, what would you do “Fifty million,” and it seems to me that we establish a in inflationary times? How would you get beyond your 50 limit. Am I correct, to the chairman or Mr. Tavares over million dollar limit then? there, am I correct in my interpretation or is that - - clari WHITE: Well, in the case of the Territory, it’s 50 mil fy this statement. I don’t know. lion dollars. The Territory can raise that above 50 million WHITE: Well, the first part of the paragraph has nothing dollars up to 15 per cent of the assessed value, so that to do with the limit. It only has to do with the method of is the legislature can by two-thirds vote increase the debt limit suance. It says, “No bonds or other instruments of public so long as they don’t exceed the 15 per cent. For the county, indebtedness shall be issued except by or on behalf of the we’ve tnken out - - if you read the new proposal, there’s no State or a county. All such State bonds and other State in dollar debt limit on the county. it’s all seven and one-hall struments of indebtedness must be authorized by the legis per cent. lature. All such county bonds and other county instruments There is one thing that I think we must consider on this of indebtedness must be authorized by the governing body too, is that during the war values have increased substanti of the county issuing same, and the legislature shall have ally, and the tax assessments, the assessments on real no control over their authorization or issue; provided that property are still far below a reasonable value as compared no county bonds or other county instruments of indebted with market values. There was a 20 per cent increase made ness shall be deemed to be authorized until the issue there this year, and I think there is a further increase contem of is approved by a majority of the registered voters whose plated for next year, which will tend to narrow the present votes are tallied on the subject at an election in the county margin. concerned.” That has to do with the method of issuing. NIELSEN: I would like to ask the chairman of the Taxa AKAU: Well, where it says, “The legislature,” in the tion Committee a question. In the unissued No. 3 [referring first paragraph, “shall have no control over their author to chart] there under Territory, 41 million dollars, isn’t ization or issue,” that is about issue. Now in the second a considerable sum of that unissued amount authorized but paragraph, “Fifty million dollars is hereby established as just hasn’t been issued? In the 41, 076, 220. All of it’s a limit of the state debt.” That doesn’t have to do with the been authorized, so that today on this basis we couldn’t same thing? borrow anything. We couldn’t anyway. WHITE: The legislature will have nothing to do with the WHITE: We couldn’t anyway because Cnngress has author issuance of bonds by the county. ized an increase in the territorial debt limit to 50 thousand - - WIRTZ: I noticed from the committee report that you NIELSEN: 50 million. were in communication with Wood, King and Dawson, which WHITE: - - you’ve already authorized 56 mfllion, if you is a firm that has for many years financed most of the ter ritorial bonds and most of the municipal bonds, and I’m just issued all of those bonds. But there are lot of those bonds wondering whether this proposition of debt limitation was if you go back over—I’ve got the details here—there are submitted to them, because I do know in the past that they some of the bonds that there is little possibility that they’ll have raised many, many questions on this very question of be issued, so I think it’s safe to say that they will stay with debt limitation. in that limit. It’s my understanding that since this time five million of that 41 million in the last few days have been WRITE: This provision has - - this last provision was sold so that this has gone up to 19 million and this down to sent back to them again on Thursday or Friday, but this 36 million. provision incorporates all of the ideas and suggestions that 458 TAXATION AND FINANCE have been submitted by Wood, King and Dawson, with one lars is the first limitation of the State; and it does not in possible exception, and that had to do with the payment, clude county bonds. There is a question about that with where we provide that the serial bonds shall be paid in ap the 15 per cent so far as State bonds are concerned. Then proximately equal installments. They made some suggestion the county operates independently on a seven and a half per that the installment in any year would not be more than 50 cent limitation. per cent of the preceding year, but to me it would be a very cumbersome provision and would add nothing to it. But CHAIRMAN: Mr. Porteus, the Chair would like to ask that is only a detail that they don’t place too much weight on a question on a point of clarification on your statement there. in any event, but the provisions of this section incorporate You picked out a figure of twenty-two and a half per cent all of the~ suggestions and ideas of Wood, King and Dawson. whereby the legislature by two-thirds vote could - - WIRTZ: Do I understand that it’s the amendment that’s AKAU: Mr. Chairman, please use the mike. We can’t now before the house, or the original section? hear your question. I’m sorry. WHITE: No, the amendment that’s now before the house, CHAIRMAN: Is it your meaning that the legislature could Number 10. raise the assessed values of the real property or merely Well, I don’t know whether it might be helpful if we to say how much shall be derived from the assessments of would take this Section 10—there’s a lot in it—and take it real property, in that way get around the - - over the 50 paragraph by paragraph and act on each paragraph. I think million? we might get further. PORTEUS: No, what I was pointing out was that this has PORTEUS: I think there is some confusion in the minds first a 50 million limitation. You have the 15 per cent of of some of the delegates on this subject which is very com assessed value. It may be very considerably in excess of plicated, that of bonded indebtedness. When the committee that. It may go up to 70 million. Now that 20 million cush talks about the number in dollar signs of bonds authorized, ion, you might call it, if that’s the right figure - - the committee does not include what is known usually as CHAIRMAN: But under that 15 per cent there, you only revenue bonds. In other words, the Board of Harbor Com reach 50 million. missioners might in a proposition issue bonds for certain public improvement of a nature that brings in revenues and PORTEUS: Well, if the values keep going up—and we from those revenues the interest and the principal would be know that the Tax Office has put up values this last year paid off. I think there is a distinction to be made there and and they intend to increase their assessments the following if the delegates will give their minds to that for the moment, year—if in the next few years we get more money, In order that thought, they will find that the 50 million dollar limita to get into that additional point beyond 50 million, it takes tion is not the limitation of the total bonded indebtedness of a two-thirds vote. Now my twenty-two and a half per cent the Territory. It will not include, I believe, improvement that I referred to is a limitation on indebtedness throughout district bonds unless the improvement district bonds are an these islands, not on a State basis. Fifteen per cent is your obligation on the general revenues, if they are only out of top maximum limit from the point of view of the State op specified revenues, and being revenue bonds, they won’t erating as a legislature of the State and borrowing in the be in the total of the 50 million. name of the State. Now, as I understand the committee, too, the 50 million The counties have a right if the voters of the particular isn’t the top total. The 50 million is the total to which the counties approve, to borrow up to seven and a hail per cent. legislature cannot exceed as far as the State itself is con So if every county borrowed its maximum andif the State cerned, not counting the counties, until you can get a two- borrowed its maximum, I’m pointing out that you would have thirds vote in each house. That’s to enable something less a total maximum of twenty-two and a half per cent. So that than a majority of the members of each house to agree that those that were saying, “Well, is 15 right, perhaps 20 per in the future, for instance, that we will need to spend money cent wouldn’t do any harm,” that as this has been written for school buildings, and that we shouldn’t spend all the by the committee, you have a prospective limit of twenty- money we can borrow now and that we ought to wait awhile two and a hail per cent. and keep a little cushion. Now, the fifteen per cent, as I WIRTZ: There is one thing that I think that we ought to understand it, is to give the cushion between the 50 million consider very, very gravely at this point and that is the dollars and that higher figure, so that if you run into de words “assessed value.” We have the same language ap pression days or if you want to schedule out that you write pearing in the Organic Act, Section 55, where the total in bonds for a program for the school department, for instance, debtedness for the Territory is ten per cent of the assessed you could schedule out that you were going to support a pro value and five per cent for subdivisions. Now, although we gram that would involve say ten million dollars in bonds for use the artificial—and I say artificial because I mean it, it school building spread over a number of years. is artificial—SO million dollars or 25 million dollars, and There would be the tendency on the part of some legisla then we provide for the other formula of 15 per cent, we tors to try to spend all the money the session they were in, still tie it up to the assessed value. But we’ve had trouble and let the future take care of itself. But I think the scheme in the past and we’ll have trouble in the future unless we of the committee is sound because it lets less than a majority clarify that term as to what is meant by the “assessed value.” say to the others, “You can’t go beyond this first limit be cause there may be more needy times ahead of us. There TAVARES: I think - - Shall I answer that question? may be other programs we need to support.” WIRTZ: I haven’t finished yet, I don’t know. Do we Now, there also seems to be some question on the fifteen mean by that term “assessed value,” the net assessed value per cent. I’d like to point out that the fifteen per cent is not without home exemptions, without other exemptions, or do the true limitation insofar as these islands are concerned. we mean the total assessed value? The fifteen per cent is a limitation on the State. The county has a limitation of seven and a hail per cent, so that the real WHITE: Have you got the new Section 10? total here could well be, if the counties go up to their seven WIRTZ: I believe I have. and a hail and the Territory to its fifteen, really twenty-two and a hail per cent. WHITE: The new Section 10 reads, “The total of assessed So that you have a number of steps in this proposition. values of taxed real property,” which would make It the net One, this excludes revenue bonds; two, the 50 million dol assessed values. JUNE 19, 1950 • Evening Session 459 WIRTZ: Well, that’s still not clear in my mind. I think fixing the tax rate. In other words it is a net assessed if it’s not clarified here, it ought to be clarified in the re value, after deducting exemptions and including the adjust port. Are we talking about the net or are we talking about ments made under our laws to take care of tax appeals which the total assessed values? are pending and not yet determined, and I think our report WHITE: We are talking about net assessed values, which should so state. That is the way, as I understand it, it is is the taxed value, “the assessed value of taxed real prop done now and I think we should follow that interpretation. erty.” If it isn’t taxed, why then it wouldn’t be included, AKAU: The delegate from the fourth district and Mr. so that any exemptions under home exemption or for other Nielsen from Hawaii mentioned the necessity of both houses purposes would not be included. passing it by a two-thirds vote. Now, then, I raise the WIRTZ: I see. question, is it within the power of the governor to veto such vote after it’s been passed by two-thirds of both houses, and NIELSEN: I’d still like to have an answer to the fact, and if it is within the power, maybe Mr. Porteus could answer, I’ll change the putting of it, isn’t it true right now that under what happens then? this setup where we specify that the State maximum limits shall be 50 million dollars, that for any future borrowings, PORTEUS: I would take it that the usual legislative pro we have to get a two-thirds vote of both houses because we cedure would have to be followed. If you provide that it is are authorized over the 50 million now? So for any further necessary to have a two-thirds vote in the first instance, increase we have to get a two-thirds vote of both houses. you would have to accumulate that vote in order to get the measure through from a constitutional point of view. It WHITE: That’s right, because your fifteen per cent would have to run the gauntlet of regular legislation and go would only bring you 50, 050, 000, so the fifteen per cent just to the governor. If the governor should choose to veto it, happens to hit the 50 million right on the nose. That was if it were in a pocket veto period after the legislature could one of the reasons ~hy I was so - - that was one of the rea no longer get at it, it would be dead. If, however, the gov sons I was working on the elimination of the home exemp ernor had to act on it within the time, he would have to tion because that meant a great deal of difference in the write a veto message and it well might be that while two- borrowing capacity on the basis of these percentages. thirds ordinarily would be the vote to override a governor’s NIELSEN: Well, on that basis then we are not to - - our veto, if his message was well taken, there might be a num hands are tied by the legislature to two-thirds vote of each ber of those of the two-thirds that would pay attention to that house before we can borrow any more money. message and decide that perhaps their earlier opinion had not been correct and refrain from overriding his veto. So WHITE: That’s correct. that the two-thirds vote in the first instance still doesn’t NIELSEN: I think that is rather a high limitation to assure - - tell the governor that no matter what he does it place on this. I’d like to hear from some of the others on will be useless. that. WIRTZ: I noticed at the end of the first paragraph of the ASHFORD: I would like to ask the chairman of the com redraft, “provided that no county bonds or other county in mittee a question that carries on Delegate Wirtz’ question. struments of indebtedness shall be deemed to be authorized The language used is the “total of assessed values of taxed until the issue thereof is approved by a majority of the reg real property in the State.” Now, suppose there is a $5, 000 istered voters whose votes are tallied on the subject at an home which has an exemption but it is still taxed because election in the county concerned.” Now, is that not a—I’m it runs over the exemption, and that is assessed taxed real addressing my question now to the chairman of the commit property, is it not? And is not the assessment the $5, 000? tee or any member thereof who wishes to answer — is that WHITE: No, I’d say that the taxed value would be the not a new idea as far as the Territory of Hawaii is con five thousand less whatever the exemption was. In other cerned? And secondly, is that not placing the referendum words, the net value as shown on the tax - - it says as on financial matters in the hands of the people? shown on “the assessment rolls of the State, pursuant to WHITE: Well, I’d say it is, it’s new. In both instances, law.” the answer is yes. This is recommended very strongly by BRYAN: I’d like to ask Delegate White if he’d consider Wood, King and Dawson, and while I don’t see a great deal changing the wording so that it would read “taxed value in of strength to it, they say it has a lot of psychological value stead of “assessed value of taxed property.” in dealing with the sale of bonds. In other words, people WHITE: Well, there’s no pride of authorship as far as are more inclined to buy bonds where the requirement is the words are concerned. This section has been reviewed that the voters have to vote on the bond issues. by the Attorney General’s Office, who have to advise the SHIMAMURA: May I ask a question of the chairman of tax people, and this is the language that they suggested as the Finance Committee, please? Doesn’t the present statute being the clearest language that they could think up to take provide for election of people of the county for issuance of care of this unless you wanted to write a statute on it to county bonds, requiring a 65 per cent majority? explain what items weren’t included in it. I understand the difficulty there. I’d like to ask Mr. CHAIRMAN: Say that again. Tavares if he thinks the committee report along with this SHIMAMURA: Under the present Revised Laws, isn’t would be sufficient. an election required and an approval of 65 per cent of the TAVARES: Yes. I think that can and should be clarified voters for issuance of county bonds, except where the leg by the committee report. It isn’t even as simple as it has islature shall provide otherwise? been said so far. At the beginning of an assessment year, WHITE: Let me get that. We’ll have to check that. I you have two values, the value assessed by the government, didn’t know there was - - and in tax appeal cases the value claimed by the taxpayer. The law now provides that for purposes of fixing the rate SHIMAMURA: I so understand it. And may I ask another we take half the difference and add it. In other words, we question? Why is it that the authority of the legislature take hail way between the tax value claimed by the govern was entirely omitted in the case of the issuance of county ment and the tax value claimed by the taxpayer. In my bonds, whereas in the present Revised Laws, the legislature opinion this means that you will take, as of the date you de is given certain powers concerning issuance of county bonds termine the limit, whatever rule the statute lays down for by counties? 460 TAXATION AND FINANCE WHITE: Well, under this program, all of your school WHITE: Delegate Rice, what I wanted you to talk on was bonds would be taken care of; that is, the bonds for school this question of having the voters of the county approve the buildings would be taken care of as Territorial obligations, bond issue. and it was felt that it was advisable to leave to the discre H. RICE: Well, personally I feel that we should limit tion of the people of the respective counties whether or not the borrowing of each county for a certain period, but I they wanted to issue additional bonds. could see that when we become the State of Hawaii, if you SHIMAMURA: In other words, you have given the coun have to go through that procedure the minute we become a ties, the various counties entire autonomy as far as the State, it will take almost two years before you can float a issuance of county bonds go. There is no control from the bond issue. So I think in a way the simpler this is the better. legislature. Isn’t that right? Was that your purpose? I know that it’s going to be a lot harder if you are going to submit these bond improvements to the electorate each time, WHITE: As far as the issuance of the bond, yes, with but say we become a State, the first election - - you will the approval by the voters. have to wait until the second election before you can approve SHIMAMURA: Whereas, under the present Revised Laws those bonds, even if the legislature authorizes them. So I the legislature had certain discretionary powers. don’t claim that my amendment would do away with it, but It will do away with the fact that you set up - - I allowed: WHITE: To mandate. “Twenty per cent of the total assessed value of real prop TAVARES: Since that is a technical question, I think erty in the State as determined by the tax assessment rolls perhaps I could try to answer it. It is true that under of the State is hereby established as a debt limit of the Chapter 117 of our Revised Laws today, the subject of is State,” and 15 per cent for the counties, and go right along suance of county bonds is covered by statute, and there are and the provision down there, the large chapter at the bot two ways. One is under legislative authorization and the tom allows for the revenue bonds and improvement bonds. other permitted by the statute is at an election at which 65 This section seems to have worked all right in the Organic per cent of the registered voters of the county vote affirma Act. As I say, I don’t think I’m in order in making this tively. To my knowledge, as far as I know, that’s never amendment now. It’s just getting It before thç delegates. been used. I think it’s almost a dead letter in use. But, I was called on to talk. I might say that this last amendment, I don’t believe ASHFORD: I’d like to say that this suggested amendment came in time for the committee to discuss it fully. Is that that is coming afterwards appeals to me more than the first correct, Mr. Chairman? And so I may be a little weak on amendment that was passed around. I can just see what that myself, the last amendment of Section 10. But it is true would happen to the islands of Molokai and Lanai if the elec that we must bear in mind that if this provision is approved, torate had to pass on bond issues. There would be about we are departing from the present method of authorizing $400,000 available on Maui and it would all be spent on county bonds because we have at the present time required Maui, and if anything was for Molokal, it wouldn’t be passed. that the legislature first authorize the county to issue bonds by statute. This allows a county, in spite of the legislature, ROBERTS: I’d like to raise a few questions on the prob without any legislation, to issue bonds but only after an elec lem that is before us which removes us a little bit from the tion. I think that should be borne In mind so that the dele present consideration of assessed valuations as a basis for gates understand what the effect will be on county bond issues. the credit of the State. It seems to me that the delegates In other words, it takes away the power of the legislature to ought to consider seriously some of the basic problems in authorize county bonds. They are authorized directly under volved in this question. We are taking bodily a section from the Constitution by this proposed article. the Organic Act which has used assessed valuations and has provided a limitation, a debt limitation.. When we are wards SHIMAMURA: There is a point I wish to raise. In the of the Federal government, there is perfectly ample reason past there was no election necessary for the issuance of why someone should control the child. When we needed county bonds because in most cases the legislature provided something, as we have in the past two sessions, we have otherwise. But the legislature had discretionary power so gone to Congress and asked Congress to raise our debt limits to provide under our Revised Laws. But under this proposed and the Congress has so done. It seems to me that when we amendment - - rather proposed constitutional provision, are a State, we’ve got to stand on our own feet, and in doing there is no such authority vested In the legislature, and the so we ought to see to it that our credit is sound, that our county boards are entirely autonomous. Furthermore, finance is adequate, but that credit and that finance is based not only that, the county boards themselves don’t have the on the operation of the Territory and its economy. full authority, but they must rely upon the electorate, and When we are considering, as we are now, putting a each time you issue a county bond, you must have an elec debt limit on the State ourselves and that debt limit, in tion. terms of a fixed amount, is close to being identical or per WHITE: I think it might be well to hear from Mr. Charles haps a little bit smaller than the actual total indebtedness, Rice and Mr. Harold Rice. They were very much interested we are making no provision whatsoever for the possibility in that particular part of it. of additional increases and issuance of bonds. The proposal suggests that we have some flexibility by providing a base H. RICE: Mr. Chairman, and fellow delegates. It seems of 15 per cent, or the suggestion perhaps for raising It, to me we’ve come a long way under the Organic Act the way which would provide an opportunity for us to meet conditions it is in the Territory. I feel that I’d like to see us on a pay- as they arise. That 15 per cent on the basis of existing as-you-go basis but I don’t see how it’s possible for prob evaluation, taxable evaluation or net base, gives us identi ably many years under the conditions as they are. There is cally the figure that we have as a debt limit, 50 million dol no question in my mind that they have inflation in the East, lars, so that you have no possibility even within the 15 per and I believe that we ought to follow the Organic Act and make cent of providing for any opportunity for expansion along it a percentage basis on the real property, and I’ll offer that that line. amendment as it is I’ve prepared on that but I didn’t think I’d like to raise questions, too, as to whether or not as that this was the time for me to Introduce it. I thought that sessed valuation is a proper base for basing our credit. they were working on this other amendment, but if you’d Now, when we issue bonds we say In fact to the people who like to see this amendment, I’ll offer it. Where’s the mes buy them that we are going to pay you a rate of interest senger? over a period of years, and at the maturity of that bond, we JUNE 19, 1950 • Evening Session 461 are going to give you the actual money that you put in. Now, Another consideration that we have is the sale of the how do we know whether we are going to pay that or not? bonds which we are going to put on the market. At the pres In other words, on what grounds do we issue it? What credit ent time a good part of our bond issues are supported be do we have? It seems to me that the credit that we have is cause they are authorized by the Federal government and the income, the earning capacity of the territory, the tax therefore are tax exempt bonds. For that reason they capacity of the territory. What we are planning to do with receive a ready market in many quarters of the United an assessed valuation, it seems to me, limits the basis of States. I feel, therefore, that as we become a State we our payments to only a very small portion of the total revenue may not be afforded that same privilege. I feel, therefore, of the State. If you take a look at the total revenue published that we should proceed cautiously and be sure that whatever last year you’ll find in actuality that the total income from foundation that we pick as a base for our debt limit should property is approximately 13 per cent of the total revenue. be done soundly and with as much security as we possibly That is a relatively small part. As we grant additonal ex can, if we’re going to continue to have a market for these emptions, of whatever kind, that base becomes constantly bonds. narrower, so that actually what you are doing is placing a MAU: I was just going to - - wanted to ask the delegate proposal for the credit of the Territory on an extremely from the fourth district if he would include in his base for small base. What you pay is in terms of what you have, and the debt limit the real property together with revenues what you have is in terms of income from the things that you over a period of years. produce. It seems to me that you ought to provide, if you CHAIRMAN: That question was addressed to Delegate provide a base limitation, something that goes basically to Roberts. the revenue of the Territory which covers all of the islands. Let me give you an illustration as to what I have in mind. ROBERTS: The total revenue obviously has to include If you take a look at the assessed valuation figures from revenue which comes from taxes on real property, so that 1930 to 1949, you’ll find that in two years, in the year 1932 you have as a base for financing the property plus other and in the year 1949—I think the same thing would show for revenues. Now, the question was suggested previously that 1950—your assessed valuation has changed by some 16 per this is a fluctuating base. Of course, income is fluctuating, cent, in 1950 I understand close to 20 per cent. Now, how but I suggest that we use a base which is sufficiently broad, do you base your credit on a fluctuation of that type? It a ten year period, a ten year average, which will provide doesn’t seem to me that sound finances of the Territory can a situation that you do have a more level opportunity to in properly be based on a fluctuation as wide as 16 or 20 per dicate what the total possibilities of financing are of the State. cent in one year, and you are basing your bonded indebted I indicated in my previous statement that a 16 per cent ness on that ground. That to me is an awfully slim ground. fluctuation in one year certainly doesn’t provide a proper It seems to me also that if you are going to tie the hands of base for issuing bonds, and the fluctuations run from one the future State and if you~get individuals who are not terri to 16 to 20 per cent. I’m sure that if you take your total bly concerned about how they are tied, assessed valuations revenue over a ten year period, including your property can be changed, and they have been changed very drastically, taxes, that you won’t find that much variation. so if you want to avoid your constitutional limitations, then CHAIRMAN: Does that answer your question, Delegate you get around it by providing a change in the assessment. Mau? It seems to me that that is not basically sound, that if MAU: Yes, I have another question. May I ask the other we are going to provide a debt limitation, it should be on question? actual revenue, actual income that the Territory has year CHAIRMAN: Proceed. by year. Now Isay perhaps one year would not constitute a proper base. I think it ought to be averaged over a period MAU: I wonder if the delegate from the fourth district of years, and that base then becomes a proper area in has any figures as to revenues of the Territory, even a which we can issue bonds and which will give the prospective rough estimate. I’d like to compare the amount of revenue buyer an idea as to what we can pay. Now I grant that lands he speaks of. I imagine he limits that to revenue of the look good. That is the basis upon which bonds have been State. It doesn’t include revenues of other kinds, the assets issued in the past, but the lands become a smaller and of the community, revenues in private industry for instance. smaller base in terms of actual income, and I would suggest I don’t believe he includes that. I want to compare the to the delegates that we give a little additional thought to amount of revenues of the State to the value of the - - rather looking for some other base than assessed valuations. the assessed value of real property. I recognize, and I don’t know in detail, that some corre CHAIRMAN: I believe a question has been addressed to spondence has gone on with regard to that, and that does Delegate Roberts. If it has, he can answer it. not apparently satisfy some areas where we may look to get assistance in the issuance of future bonds. The way this ROBERTS: I don’t have the total revenue figures. I had section is drafted there are no future bonds unless your them this afternoon. assessed valuations increase substantially within the next CHAIRMAN: Delegate White, can you answer that. few years. Even though our present valuations alone—I understand they were 30 per cent a few years ago and per WHITE: I don’t have the figures handy. I’d like to -— haps close to 50 per cent now; perhaps they may get up ROBERTS: I could give you some overall, total overall finally to close to what the market value of the properties figures. Well, of course, this is revenue, tax revenue that are—but assessed valuation, I still suggest to the delegates, comes in to the State. is not a sound base for future financing of the Territory. CHAIRMAN: Well, will the speaker address his remarks And I would suggest that we give a little additional thought to the chair? Delegate Roberts, are you through? to revenue, actual income for a period of time, to more properly base the finances of the Territory and the future ROBERTS: I’m not through. I haven’t answered - - State of Hawaii. CHAIRMAN: Delegate Smith has been seeking recognition. HOLROYDE: The delegate from the fourth district sug SMITH: Just to give the clerks a little rest, I move for gests revenue as a basis for getting a base or debt limit. a five minute recess. I can’t think of anything that fluctuates more than revenue to the Territory. It can be upset by so many things that I CHAIRMAN: Moved for a five minute recess. Any ob don’t think it is a very sound approach. jections? If not, recess is ordered. 462 TAXATION AND FINANCE (RECESS) and the chairman guidance, that there were certain questions which the Finance Committee would appreciate getting the CHAIRMAN: The meeting please come to order. ideas of this Convention on. Is that not correct? WHITE: I’d like to move that we defer action on this WHITE: That’s right. section. RICHARDS: It’s similar to the same proposition that the CASTRO: I second the motion to defer action on Section Finance Committee came forward with to ask the ideas of 10 to a later date. the Convention regarding home exemptions. This is what the Finance Committee is asking. We would like some WHITE: In order to assist us in giving further considera indication from this Convention as to how they feel on cer tion to this particular section, in my opinion it would be tain specific matters, and then the Finance Committee can very helpful if we could get the answer to three questions draft a proper amendment after having received the guidance by the delegates here. Number one, is it their wish that of the Convention. the authority for the issuance of county bonds be retained by the legislature? ARASHIRO: In reference to that questioning, did you recognize that motion that was made by the delegate from BRYAN: I move that it be the consensus of this body for the fifth district and seconded by the delegate from the the purpose of committee study that the authority for issuance fourth district -- of county bonds be left with the counties. CHAIRMAN: As I understand it, Delegate Arashiro - - CASTRO: I second the motion of Mr. Bryan. ARASHIRO: - - in reference to the authorization of is CHAIRMAN: Any discussion? suing bonds that would be approved by the county board of supervisors? TAVARES: Just one matter I’d like to call to your atten tion before the vote and that is that we must bear in mind CHAIRMAN: I did recognize the maker of the motion, that this provision limits the issuance of bonds, the general yes. obligation bonds, only to a county or the State. In other ARASHIRO: In reference to that may I ask a question, words, we are not authorizing any other type of political sub then. What happens then? There are some times that the division to issue bonds. There is one other matter and that Territory may be able to match federal funds but the counties is, if you are going to leave it that way, it just occurred to do not have that authority. Now what happens if we should me, maybe it is an oversight, ive have the County of Kalawao, adopt that motion? which is not a true county. We had better be careful in our explanation or somewhere to make sure that we are not giving CASTRO: Point of order. The motion before the house them the power to issue bonds. is to defer Section 10. CHAIRMAN: I understand that that is the motion. How HEEN: Would it not be better to use the term “political ever, on a point of information, there was requested by the subdivision” instead of county? chairman of the Taxation and Finance Committee, they WHITE: Well, that was what was intended, whatever is wanted an expression from this committee.as to their par shown on this chart here. Honolulu, Maui, Hawaii and ticular questions, before the motion to defer was put. Kauai. TAVARES: I think on second thought we ought to just HEEN: I don’t quite get the idea of deferring action on defer this, period, and let the committee work up some this section. U we deferred - - Of course the duty of this alternative proposals. I think we’ll save time. Committee of the Whole is to finally determine what should KING: Technically, Delegate Heen is right that the whole be done in this connection. If it’s to be referred to the proposal is before the Convention and if we defer Section 10, Committee on Taxation and Finance, then the whole bill will anybody can bring in a proposed amendment that would be have to be returned to it. That bill now is before this Con acceptable, except for the fact that meanwhile we go on with vention, and in order for that committee, that particular the rest of the bill. However, the chairman of the Committee committee to further consider the matter, the whole bill on Taxation and Finance did want an expression from the will have to be - - rather the whole proposal will have to be delegates as to their feeling on three matters, and he might referred back to that committee. propound these questions and then get the answers on them CROSSLEY: It was my understanding in the motion to individually or any other way he can. It’s a little hard to defer, to defer to the end of the calendar of the Committee have a vote on a request for information without going througi of the Whole sitting on this. Is that correct? the parliamentary procedure of referring it back to com mittee with instructions. So I’d like to move the previous CHAIRMAN: That is my understanding. question on the motion to defer action on - - CROSSLEY: Now, the second question I have, if the mov DELEGATE: Before you put that could I - - ant of the last motion would tell me, that when he moved WOOLAWAY: Point of order. that the consensus of this group be that the power to issue county bonds be invested in the county, did he mean as pro CHAIRMAN: Just a moment. Delegate King, are you posed by the Committee on Taxation and Finance, that is, through? with confirmation by the electorate? KING: I did not make the motion for the previous question H. RICE: I think you ought to defer the whole matter, WOOLAWAY: Point of order. and if it would expedite matters, I think the whole of Section 10 could be referred to the Taxation Committee. CHAIRMAN: State your point of order. WOOLAWAY: Wouldn’t it be proper, after getting ex HEEN: That cannot be done without referring back the pressions of this assembly, to recommit Proposal No. 10 whole proposal. back to committee instead of deferring it? RICHARDS: My understanding of this particular proposal CHAIRMAN: That isn’t the motion. was that the matter of Section 10 be deferred so that the Finance Committee would be able to submit a proper amend KING: I hope no one makes a motion to recommit the ment; but meantime, in order to give the Finance Committee whole proposal because then the rules of our procedure JUNE 19, 1950 • Evening Session 463 would delay consideration of this for quite a long time. We ence are indispensable; and, thirdiy, it would serve to re can defer action on Section 10, go on to the next section, move the auditor from undue pressure of any one legislature. and bring it up in a Committee of the Whole meeting tomor The requirement that he be a certified public accountant row perhaps. is consistent with those governing the eligibility of the at torney general and judges. It is possible that there are MAU: If I understood President King correctly, after the motion to defer is passed, anyone could bring in an others not holding certificates of certified public account amendment thereafter, even this evening. ants who might be capable of filling the job, but to eliminate this requirement would increase the hazard of having an CHAIRMAN: That’s correct. incompetent individual appointed. You may be interested MAU: There is no time limit on this deferment. If that to know that at the present time there are approximately is so, I’m wondering whether or not the two possible pro 56 known certified public accountants in the territory, so posed proposals, one by Delegate Rice and the other by that the ratio on the certified public accountant would be 1 to Delegate Roberts, couldn’t be taken up at this stage rather 56 as compared to 1 to 20 for the judges. Furthermore, than deferment because we’ve called a special meeting this there is no reason why a person should not become a certi evening. We ought to meet until 11, 11:30 or 12 o’clock, fied public accountant for the requirements are not too if necessary, to get through with this proposal. demanding. If anybody is interested in the requirements of the C.P.A., I could read them to you, but all that it requires SILVA: I think the question of counties issuing bonds could is a high school education. be easily settled here. I think the board of supervisors would prefer in any county to have the legislature earmark FUKUSRIMA: I have an amendment to offer. The amend bonds for certain projects, so that situations like the one ment reads as follows: “The auditor shall be elected by the pointed out by Miss Ashford could well be taken care of, so electorate of the State and shall hold office for a term of that small communities could receive the benefits of bond four years. No person shall be eligible to such office who issues by having them earmarked; but through the legisla shall not hold a certificate as a certified public accountant.” ture for the board of supervisors, rather than have an elec Following that, the language is the same as Section 12, Com tion every time there’s a little school building to be built mittee Proposal No. 10. I’m making this amendment because that an election will be put out for the amoint of bonds to be I feel, as does the chairman of the Committee on Taxation issued by that county. There is no question in my mind that and Finance, that the auditor’s position, the auditor’s office, as far as issuance of bonds for the county, it should be a is a most important one. Before proceeding, I’d like to legislative matter rather than the county. move for the adoption of my amendment. DELEGATE: Second the motion. ARASHIRO: Is the motion for deferment in order now? FUKUSRIMA: I believe the auditor should be removed CHAIRMAN: The motion for deferment has been made not only from the executive whose book the auditor checks. and seconded. This Section 12, the auditor is not a pre-auditor. It’s a ARASHIRO: I now, therefore, move the previous question. post-auditor, and as such, there can be no question thathis CROSSLEY: Second the motion. position should not be one that is appointed by the governor. This proposal here makes his office appointed by the legis BRYAN: Point of order. I made a motion which I had lature. This same auditor, the post-auditor that we are not withdrawn. Upon instruction from the chairman of the speaking of, checks the account of the legislature—I believe committee, if he wishes, I will withdraw that motion. that is a correct statement—and if he is to check the ac WHITE: I was about to ask him to withdraw the motion counts of the legislature, that officer should not be appointed and let’s defer it, and I want to ask for the expressions on by the legislature. Re should be removed from the execu those three points and we’ll have an amendment drawn up. tive and from the legislature, and I believe with the saf e guard that he be a certified public accountant, that under the BRYAN: I withdraw. elective system you will find you will get an auditor who will CHAIRMAN: There’s a motion for the previous question. be free and independent both of the legislative department All those in favor of the previous question please say “aye.” and the executive department. Opposed. CHAIRMAN: Any further discussion. Now let’s put the motion. The motion is to defer action on Section 10. All those in favor of deferring action on Sec ANTHONY: I’m opposed to this amendment. I assume tion 10, please signify by saying “aye.” Opposed. Carried. it was seconded. Was it, Mr. Chairman. Then we may proceed to Section 12. CHAIRMAN: It was seconded. RICHARDS: I move that we tentatively approve Section 12. ANTHONY: The purpose of having an auditor for a long term is to follow in line with the federal practice. There, WOOLAWAY: I second that motion. as you know, we have a comptroller who is answerable WHITE: In support of that motion, I’d like to say that only to the will of Congress, not to the executive. He holds the auditor is one of the most important positions in the office for a period of fifteen years, I believe, and he is not field of financial management and government. The com subject to reappointment. Now, if we were going to have bination of a competent state auditor and commissioner of an elective auditor, you would do just exactly what the pur finance can go a long way toward eliminating waste and in pose of the committee is set out to defeat and avoid. You efficiency in government operation. It is proposed that the would have an auditor who would be periodically engaged in auditor be appointed by the legislature, not because we be political campaigns. We don’t want any politically cam lieve the electorate incompetent but because we believe that paigning auditor. We want an auditor who is going to audit they are not afforded the means of investigating the qualifi and keep the fiscal affairs of this State of Hawaii in good cations of an individual who might run for office if it were an shape. We want him to possess qualifications of the office, elected position. and the way to do that is not to subject him to partisan politi Furthermore, we are recommending an eight year term cal campaigns. Give him a long tenure, give him security because, as in the case of judges, long tenure will attract in office, and make him independent of the executive once more competent individuals. Secondly, the government he is appointed. Therefore, I would vote against this pro would profit from long tenure since background and experi posed amendment. 464 TAXATION AND FINANCE AKAU: I will vote for this amendment - - for this motion, independent above politics and above every other influence yes, the amendment, but I would like to amend further be except as their representatives to see monies are properly cause i feel that after the word in the fourth line, “account spent. Now, if we elected an auditor, he would be inde ant,” that following until the next to the last line is statu pendent of the legislature that he is supposed to serve to a tory. It’s spelling it out quite a bit. I would move to amend, certain extent. He may find opinions and pass on expendi therefore, by striking out from, beginning with “It shall be tures without any reference to the will of the legislature the duty,” as far down as “at such time or times as shall whom he is supposed to represent in the matter of public be prescribed by law,” because in the last sentence we are expenditures. So I’m opposed to the amendment. saying that, as directed by the legislature, and the middle of that part is all spelled out, which I think is unnecessary. HEEN: I’m opposed to this amendment, also, but there I, therefore, move that we amend it that way by striking is one feature I like about it, and that is if this auditor is out those lines that I’ve just mentioned, stated, to read as elected, he can check the appropriations made for the ex follows: “The auditor shall be elected by the electorate penses of the legislature to see whether or not those appro of the State and shall hold office for a term of four years. priations have been properly expended. That’s a feature I No person shall be eligible for such office who shall not like about it. hold a certificate as a certified public accountant.” Then RICHARDS: I can agree with the delegate from the fourth down below. “He shall also make such additional reports district regarding the appropriations of the legislature, and conduct such other investigations of the State or its but when one looks over the amount of money appropriated political subdivisions as may be directed by the legislature.” and spent by the legislature for its own use in connection with the amount of money that the legislature appropriates HOLROYDE: I’d like to ask one of the members of the for the balance of the operation of the State, it is compara committee if it’s not true that the fundamental job of this tively small. The legislature and the members of the legis post-auditor is to see that the legislation, specifically lature so far in the discussion of this particular proposal monies that have been appropriated for a specific item are have been very jealous of the position of the legislature, carried out. In other words, he is the agent of the legis feeling that certain proposals - - certain sections in this lature when they’re not in session to see that their appro proposal delegate to the governor too much power, and I priations are carried out the way they intended them to be. can agree with certain of those feelings if there were not If that is correct, he should I feel, then, be appointed by a proper check. Now, this auditor that is appointed by the the legislature. legislature will be the proper check to make sure that the TAVARES: I agree with that theory. That’s the com governor does not usurp his powers. mittee’s theory that primarily the legislature makes the laws and therefore the legislature is primarily the one to NIELSEN: I don’t see why every time anything comes up which the auditor should report to see that the laws had here where the people might elect someone, there’s always been carried out. the same opposition to it, every time. Now, if we would I’d like to say one more thing about this elective proposal. just look over there in Ohio which has been put out as a I think that if you have the auditor elected, he will be using splendid example. This fall, Auditor Ferguson is going to this or tempted to use it as a stepping stone to the gover give Robert Taft a good licking, I think, and I think that norship. You have today a number of jurisdictions where the maybe it’s a good idea to get a good auditor in there, elect attorney general is elected. He will run and he will do him, and then let him run against the governor or run against everything he can, not necessarily to just follow along the our senators, and we’ll have some real material. But this lines of duty, but pick everything he can to find fault with, fellow Ferguson is really red-hot and he’s going to go to perhaps, the governor, if he wants to run against the gov town against Bob Taft of Ohio. So I think we should start ernor the next time. Instead of having unification, you are electing some of our people and taking our government to going to have disunity. Whereas if you have him responsible the people where it belongs. to at least one of the great branches of the government, the MAU: It seems very, very odd to me that every time an legislature, I don’t think you will have that disunity. He will officer of the State is proposed, they fear that the people at least be kept to his job. I don’t think he will be tempted would contaminate him. They want to remove him far above to play politics the way he will when he is independent of the poor common mass. I’m wondering whether they really everybody and out to make a name for himseif. believe in representative government. They argued very, KING: Point of information. There was no second to the very strenuously on the judiciary. The judiciary is so sanc proposed amendment to the amendment? timonious, you can’t touch it with a twenty-foot pole. Then you come to an auditor. He is so sacred you can’t give the CHAIRMAN: That’s correct. people the right to choose him. If that is so, we’d better KING: And there is no amendment to the pending amend change some of our county government auditors. They ment then? should be above suspicion. You should have the mayor ap point him rather than have the people elect him. CHAIRMAN: That’s correct. I’m wondering whether or not these delegates who have KING: I’d like to speak in opposition to the pending said that the members of the Board of Education should be amendment. The whole purpose of it is to get an officer appointed, the attorney general and all the other officers who will be the servant of the legislature. He should carry who are to be appointed, whether they, too, stand in such out the obligations and responsibilities that the legislature sacred ground that the people should have nothing to do with laid on him to see that the money they appropriated is prop their selection. I think that if you are going to have the erly spent. Now, the Federal Government for many years government belong to the people, the people ought to have had no such offices and they finally created the Office of the some say as to who shall govern them, and if they believe Comptroller-General. As Delegate Anthony has just told that this auditor should be elected for long tenure, let’s you, he is appointed for 15 years. It is true he is appointed have him elected for eight years. If they are afraid that by the President of the United States and confirmed by the he may be part of a political machine and play politics, so Senate of the United States, but once in office, he is inde they say, I understand that politics is the science of govern pendent of the executive, answerable only to the Congress, ment. I heard Senator Anderson from New Mexico make not eligible for reappointment, and only can be removed the statement in the statehood hearing. He said, “I’m glad for cause. So Congress has made every effort to set him to be a politician. I’m glad to be in politics. Every citizen JUNE 19, 1950 • Evening Session 465 in the United States should be interested in politics.” Why I think we should give more than ordinary heed to his ob are you afraid of the people? Why are you afraid to allow servation, and really if the auditor is going to be subjected the auditor to be elected by the people of the State of Hawaii? to the will of the legislature which has the power of appoint ment, I say that let’s indeed make him an elected officer, MIZUHA: I would like to speak in support of the delegate’s amendment, delegate from the fifth district. Every state in elected by all the people and if he should - - and his cam the Union from Alabama on down the line of the 48 states in paigning will be extensive and probably cost much, it would the Union, elects the state auditor. Now, there must be seem to me that he should have a minimum of eight years something to it, bringing representative government back and I’m for the amendment. to the people, and some of our administrative officers in FONG: May I ask the chairman of the committee a ques the future State of Hawaii shouldn’t be afraid of going to the tion. Is the Comptroller of the United States a certified people to campaign, not only on this island but on the other public accountant? islands of the group to tell them what kind of a man they are. WHITE: I don’t - - I couldn’t answer that question, Mr. If we have a good auditor, surely he will be elected to public Fong. office and give the people of Hawaii the kind of protection they need in expenditures of their money. ANTHONY: No, he’s a lawyer. CASTRO: Point of information. FONG: Could you answer this question? Did you take into consideration the budget director? Did you put the CHAIRMAN: State your point. qualifications of a certified public accountant to that office? CASTRO: I’d like to know where the delegate from Kauai WRITE: No, I didn’t. gets his information. FONG: Why didn’t you? MIZUHA: It’s in the Legislative Reference Manual begin ning from 162. WHITE: Well, I think that the job is quite different than - - the budget director or the commissioner of finance is CASTRO: Page 162. Thank you. an entirely different type of individual than an auditor. CROSSLEY: I would like to speak in opposition to the There are certain technical requirements, there is certain amendment, and also I would like to answer the delegate technical education that you have to have when you are an from the fifth district who just delivered the fine political auditor that you might not have to have when you are a com address, by saying that if the auditor is selected by the missioner of finance. legislature, he then is being selected by the representative FONG: You feel that the budget director is a man who choosings of the people. In the new State as now proposed should have less qualifications than the auditor? in the legislative section; there are 51 members in the House of Representatives, 25 members of the Senate, a total WHITE: No, but I think - - of 76 people who have gone before the electors, the elector FONG: And he sets up your budget of say, 100 million ate of the State of Hawaii, and they have said, “One of our dollars a biennium. jobs, one of the things that we are going to do, is appoint an auditor, a man who will come back and say that the job WHITE: I think that his responsibilities might be even greater, but that doesn’t necessarily mean that he would that we did for the people was properly done; the monies have to be a certified public accountant because his work we appropriated were properly spent. The State has car ried out the functions, the duties, the mandates that you wouldn’t be in that field. imposed upon them. All of those things have been done. I FONG: Now I want to ask the question of Delegate MizM am responsible to see that they were carried out. You are ha as to all the auditors who are elected by the other 48 responsible to the people; the legislators are responsible states. Are they all public accountants? to the people. I am simply certifying that the things that MIZUHA: I believe there is no qualification listed with you have promised the people would be done are being done reference to being a certified public accountant in each of properly. My responsibility is simply that of an auditor, those states, as far as I can recollect. a very simple function by a specialized man. All I have to do is, not report to the people as to whether your laws FONG: Thank you, Mr. Mizuha. I’d like to say that in are good or not, [but] all I have to do is to say, were they the City and County we have a comptroller, and we got a correctly carried out and do the books balance.” pretty good comptroller in the person of Mr. Keppeler. Mr. A. TRASK: I’d like to offer an amendment to the amend Keppeler is sitting in the back here. I understand that he ment offered by Delegate Fukushima, the end of the second is not a certified public accountant. Is that right? That’s line, “for a term of four,” to insert therefor, “eight correct. And the auditor of City and County is not a cer years.” tified public accountant and I think that you people will all say that he has been a pretty good auditor. FUKUSHIMA: I second the amendment. I accept the amendment. DELEGATE: What’s his name? CHAIRMAN: You agree to the amendment. FONG: The treasurer of the City and County has to do A. TRASK: If you please, speaking briefly for the amend a lot with finances. He is not a certified public accountant. ment of Delegate Fukushima, I want to say that I am a mem The auditor of the County of Kauai, the County of Maui, and ber of the committee of Delegate White, but I reserved my the County of Hawaii are not certified public accountants, right to object to this particular section. I’m in favor of and as I understand, the treasurers of the various counties an elected auditor because I feel he should be free. He is are not certified public accountants. The budget director a minor officer in the three divisions of government. He is of the Territory of Hawaii at the present time, Mr. Thurston, set apart from them all with the right to look after the whom we all have a lot of confidence and faith in, is not a people’s money. I think in line with that, the observation public accountant. by Delegate Heen that he would like the idea of the audit of Now, if this committee is going to impose a qualification the legislative processes, and he probably had reference to of certified public accountant license to this auditor, I think the hold-over committee, I think it would be a very good idea we should place that definition, that restriction on the budget that the auditor, particularly with that very, very shrewd director because the budget director has a position which I observation smilingly made by the able Delegate Heen, that believe is far more serious and more difficult and one that 466 TAXATION AND FINANCE is more important than the auditor of the Territory of Ha ascertain or verify and to report upon the facts regarding waii. its financial operation~ and the results thereof.” In speaking for the. amendment as proposed by Delegate Governmental auditing entails duties beyond mere veri Fukushima that the auditor should be elected, I have in mind fication of records and subsequent recording of facts con that there are many times that the auditor of the Territory nected therewith. It should review all steps which have of Hawaii will bave to go contrary to the legislature of the been taken from the initial preparation of estimates as set Territory. The legislature may at times overstep its bounds forth in the budget to the payment of expenditures, to deter in the appropriation of money, and it is the job of the auditor mine whether they have been legally and regularly followed. to stop the appropriation if he feels that it is illegal. I In addition, it should be able to provide recommendation know of several instances in which the treasurer and the as to means and methods for improving financial manage auditor of the Territory of Hawaii, that is, Auditor Treadway ment. The duties of the governmental officer can never be has exercised that power of stopping the legislature in its completely divorced from either budget making, expenditure appropriation of money. The legislature has on many oc control, or financial planning. His report must provide casion appropriated money for various specific things and the public as well as the legislative body with the assurance treasurer and Auditor Treadway in his position as auditor that all public funds have been properly accounted for. of the Territory of Hawaii has stopped the appropriations The arguments in Tavor of requiring the state auditor to and has held that the law was illegal to the extent that he be a certified public accountant are as follows, gentlemen, could not certify to the sufficiency of the bill and the bills I have ten of them. One: a provision in the Constitution at the end. The suit was taken to the Supreme Court and requiring that the position of state auditor be filled by a Auditor Treadway was upheld in many instances. certified public accountant would greatly reduce the oppor - I feel that the auditor of the Territory of Hawaii should be tunity for the appointment of a less qualified individual. The an elected official. He should be entirely divorced from legislative body could be highly political and in consequence the governor, and he should be entirely divorced from the the position of auditor might be given to a person politically legislative branch of government. In listening to the debates strong but possessing few or no qualifications for this im on this floor, I’m beginning to feel a little bad about the portant post. governor. I’m beginning to hate the governor a little because Two: restricting appointment to a certified public accountS every time we try to do anything, we impose and give more ant would materially assist in attaining a fully qualified per power to the governor. Now, it seems to me we are building son. A person who has successfully passed an examination a superman in this territory here in the man in the position for certified public accountancy would normally be better of the governor. We are giving to him a lot of powers and qualified than a person unable to pass an examination. While we are taking it away from the people. there is never a guarantee that a well qualified man will be A friend of mine in this territory the other day, high in selected, the chances are that by fixing qualifications some the office of the government told me, “Hiram” he says, mistakes will be eliminated. “your Convention is anti-people. Every time there is a Three: at present there are a number of auditors em chance to vote against the people, your Convention has voted ployed in the public service. Very few are public account against the people.” ants. An individual other than the certified public account Now, this is one time where I feel that we should let the ant may meet the requirements of these positions. Those people speak up, the people who will have - - in whom the with an adequate background of experience and training in power rests inherently with, and I feel that the people auditing would be able to take the examination for certified should have a voice in whom the auditor should be, and I public accountant, and if passed, would be eligible for ap would like to make an amendment to this proposed amend pointment. ment that the words, “No person shall be eligible to such Four: most large businesses employ certified public office who shall not hold a certificate as a certified public accountants for final verification of their records and report accountant” be stricken out. I so move. ing on facts regarding financial operation. DELEGATE: I second that motion. CHAIRMAN: I’d like to remind the speaker that you have two and a haif minutes more. WOOLAWAY: Mr. Chairman. WOOLAWAY: Fine. It is only reasonable therefore that CHAIRMAN: A second has been recognized. a governmental unit with a volume of business much larger WOOLAWAY: I’ m speaking against that amendment. than a majority of commercial firms should also require an individual of the highest caliber of background and training NIELSEN: Point of order. That’s two amendments on to occupy the position as auditor. an amendment. I don’t thiak we can go that far. Five: Section 707 of the Model State Constitution states CHAIRMAN: The first amendment was agreed to, so ac that the auditor should be a certified public accountant. tually there was only one amendment that Delegate Fong Six: it may be argued that fixing the qualifications for has sought to amend. the auditor infringes upon the power of the legislature. While in a certain sense it may be true, it must be remem NIELSEN: Don’t we have the eight years as an amend bered that the legislature is vested with the responsibility ment? of determining state policies as well as what monies are to CHAIRMAN: That was agreed to by the maker of the mo be spent. Consequently it must be able to rely on the re tion. ports and findings of the auditor. The legislature as well as the public must be provided with the true financial picture WOOLAWAY: May I be recognized now? First of all, an at all times, and it is believed that a certified public ac argument used by Mr. Fong, Delegate Fong, about the won countant would provide an additional safeguard in the public derful qualifications of Mr. Keppeler, which I don’t doubt interest. An audit made by a person not fully qualified may he has. Everybody realizes that. That’s no criterion why prove to be worse than no audit at all. anybody else would be of the same quality. If it’s all right, I’ll continue. Mr. Chairman, can I have I’d like to state one of the most important positions in more time? the field of financial management is held by the auditor, both in the commercial field and in government. Auditing CHAIRMAN: Proceed. You.have one minute more. has been defined as “a systemic examination of the books WOOLAWAY: The present auditor of the Territory is a and records of a business or other organization in order to certified public accountant. It is believed that there is in JUNE 19, 1950 • Evening Session 467 the territory an adequate number of certified public ac CHAIRMAN: Very well, Delegate White, will you please countants interested in this position so that a good auditor state the qualifications of a C. P. A. could be elected. At present there are approximately 55 certified public accountants licensed in the territory. WHITE: Well, these are the qualifications and there are Mr. Chairman, I ask for some decorum here, if you six of them. don’t mind. Any citizen of the United States or anyone who in good CHAIRMAN: Your point is well taken, Delegate Woolaway. faith has declared his intention to become a citizen, in Proceed. which case he must become a citizen within two years after time allowed by law or the certificate shall be re WOOLAWAY: If I don’t have any more time, I hope that voked by the board; (2) Over the age of 21 years; (3) Of sunk in. Thank you very much. good moral character; (4) A graduate of a high school of CROSSLEY: Point of information. recognized standing with a four years’ course or pre senting an education fully equivalent thereto; (5) Who has CHAIRMAN: Point of information has been asked by a had at least five years’ accounting experience, three of delegate. Delegate Crossley. which shall have been in public practice on his own ac CROSSLEY: The point of information is simply this. I count, or in the office of a public accountant in active would like to ask the speaker from the fifth district two ques - practice or its equivalent; (6) And has passed the satis tions. One is, is it his—I’m asking Delegate Fong—is it his factory examination; shall receive a certificate of his understanding, in hating the governor so, that this was an qualifications to practice as a professional accountant. appointive office of the governor? Because if it is, he’s No other persons and no corporations shall assume or reading a different bill than I have, as mine reads that it is use the title or the abbreviation of C. P. A. or any other an appointive office of the legislature. words, letters, or figures to indicate that the person is a certified public accountant. FONG: No, I’m making a point that we are trying to ap point everybody. I understand that this will be appointed by So that you can see the requirements are not very great at the legislature, the first time that the House of Representa all. tives will have some say in it. CASTRO: I believe that under all of the debate of the last CROSSLEY: I understand. The second question is, he ten minutes is the fundamental point that we are - - inferred that all of our public officials who deal with finance are not certified public accountants and that is not true in KING: Point of order. If too many of us do that blowing the case of the territorial auditor, as I understand it. Is into the mike, which I believe the speaker started a moment that correct? ago, we won’t have any loudspeaker left. FONG: That I do not know. CHAIRMAN: Yes. Proceed, Delegate Castro, with that reminder. CROSSLEY: Well, then, let me inform the Speaker of the House, the delegate from the fifth district, that the au CASTRO: Your point is well taken, Mr. Chairman. ditor of the Territory of Hawaii is a C.P.A. CHAIRMAN: I’m glad you recognize that. FONG: Can you swear to that? BRYAN: Mr. Chairman, I don’t think it’s - - WOOLAWAY: Point of personal privilege. CASTRO: Mr. Chairman, I believe I have the floor. CHAIRMAN: Point of personal privilege has been asked. Delegate Woolaway. CHAIRMAN: That’s correct. WOOLAWAY: I would like to state that if my colleague CASTRO: I believe the underlying question is the amend from the sixth district was listening, I made that point here. ment as proposed by Delegate Fukushima as opposed to the It didn’t have to be made again. committee proposal, in which I find that the question of the certified public accountant is agreed to in both. So I would CHAIRMAN: The Chair would like to state that he can’t like to suggest that for the purposes of expediting this ar see anything about personal privilege in the matter. gument, we call for the previous question on the last amend A. TRASK: I have another amendment to offer which I ment to the proposed amendment having to do with whether understand the movant for this amendment will accept, under or not we want a certified public accountant. As I understand this elected anmendment provision for the auditor. If you will it, the amendment was that we delete the words in the com please direct your attention to the committee’s Section i2. mittee proposal in the second line. CHAIRMAN: Delegate Trask, I believe in order that we CHAIRMAN: In the amendment to the committee propos may proceed properly there has been an amendment made al? to the proposed amendment. I think we should dispense CASTRO: In the amendment to the committee proposal, with that before any other amendment be made to the amend who shall not hold a certificate as a certified public - - ment, if you please. accountant.” I call for the previous question. A. TRASK: Pardon me. CHAIRMAN: The previous question - - WHITE: Just in order to dispell the delegates’ fear that TAVARES: To correct one point of misinformation. We this requirement of a C. P. A. is placing an unreasonable have been told here on good authority apparently that no state requirement and cutting down the selection of people, would in the union fails to elect its auditor, I want to correct that you mind if I read the qualifications of a C.P.A.? It’s only statement. I’ve just taken the trouble to go over this book four or five paragraphs, short paragraphs. and the States of Maine, New Hampshire, New Jersey, New CHAIRMAN: Well, if the committee desires to hear it, York, Oregon, Rhode Island, Tennessee and Virginia don’t although I believe we all know that the C. P. A. ‘s qualifica elect their auditors. I want the members of this Convention tions. to know that that statement is not correct. RICHARDS: Personally, I do not know and I would appre KING: Point of order. I’d like to raise a point of order ciate that information. that the statement by Delegate Castro is in error. The 468 TAXATION AND FINANCE amendment offered by Delegate Fong is to the amendment BRYAN: And therefore, I think that the second amend offered by Delegate Fukushima. ment made is amendment to both proposals and not amend ment to this amendment alone. CHAIRMAN: The Chair stated that. CHAIRMAN: The Chair would like to rule that your point KING: So that if we voted on that amendment, we’re not is not well taken. deleting it from the original committee proposal but only BRYAN: I appeal. from Delegate Fukushima’s amendment. I wish to speak in favor of the amendment to the amendment. If we are CHAIRMAN: The amendment before the Committee of going to elect the auditor, then I believe he should not be a the Whole is the amendment offered by Delegate Fong to the certified public accountant. I’m not even too sure that he amendment proposed by Delegate Fukushima, and if the mo ought to be a certified public accountant if he were appointed. tion carries, it need not carry if the amendment offered by I’d like to make three small points. Delegate Fukushima fails to carry. It would still have to Delegate Tavares has just called our attention to the fact be acted on in the original proposal. Delegate Silva. that Delegate Mizuha was In error when he said that all the SILVA: Thank you, very much. It’s the second time auditors were elected. He talked about a different kind of I’ve been recognized without saying anything. an auditor. The auditor we are talking about it is the man I would like to speak in favor of the auditor being appointe who makes post-audits primarily as the agent of the legis After all, the main purpose of this position is the auditor lature. His nearest parallel in public life is the Comptrol shall be a servant of the legislature. That is the primary ler General of the United States, the man who outlaws illegal purpose of this auditor. There is a difference between an expenditures after they have been made, and surcharges the elective auditor for the entire State - — department and the officers who made those expenditures. Now, two of the gentlemen whom Delegate Fong has NIELSEN: Point of order. Is he speaking on the amend praised, and rightly so, are both appointive officers. Mr. ment or something else? Keppeler was an appointive officer or Is an appointive offi SILVA: I’m speaking against the amendment. I’m trying cer and so is Mr. Thurston, so that question about election to speak against the amendment. or appointment doesn’t seem to affect their excellency and NIELSEN: Point. Are you - - their efficiency. The business of electing an auditor for the Territory to HEEN: I rise to a point of disorder. make post-audits as an agent of the legislature puts the NIELSEN: Is he speaking on the amendment to the amend legislature in a difficult position with the man who gets his ment or the original amendment? It sounds like he’s speak mandate right from the people and not from the legislature ing on the original amendment. itself. If we want to elect an auditor of the Territory as a member of the executive staff of the government, and not CHAIRMAN: That is the understanding of the Chair, and have the governor appoint him, why then we are talking about I think, Delegate Silva, you should address your remarks another officer entirely. So I feel that the amendment to to the amendment proposed by Delegate Fong. That is the the amendment should carry, but certainly I do not believe only thing before the Committee of the Whole at the present the amendment itself should carry. time. You may speak on the amendment in toto after the question is put concerning the certified public accountant. SILVA: Mr. Chairman. SILVA: In whom did you say? CHAIRMAN: Delegate Silva. CHAIRMAN: The Chair has ruled. BRYAN: I have a point of order. APOLIONA: I second the motion for the previous question SILVA: Mr. Chairman. CHAIRMAN: The previous question has been asked. All BRYAN: Point of order, Mr. Chairman. those in favor of the previous question, please signify by CHAIRMAN: Point of order. State your point. saying “aye.” Opposed. Carried. BRYAN: Yes, Mr. Chairman. I believe there’s some Now the question to be put before the committee is the confusion here about what the - - deletion of the phrase, “No person shall be eligible to such office who shall not hold a certificate as a certified public SILVA: Mr. Chairman, I would like to know if the point accountant” from the amendment proposed by Delegate of order should be directed at me. I have the floor, so if Fukushima. All those in favor of the amendment, please I’m out of order I request that Mr. Bryan address his re signify by saying “aye.” Opposed. The Chair is in doubt. marks to me. Am I out of order? I ask a standing vote, if that’s agreeable. All those in CHAIRMAN: Will you state your point of order? favor of the amendment, please signify by standing. Thirty- one. All those opposed. Twenty-seven. The motion car BRYAN: My point of order is that the amendment offered ries. The phrase is deleted. by Delegate Fukushima - - Now, Mr., Delegate Silva, if you desire to speak to the SILVA: I have the floor. It’s not in effect with me. I amendment, you may be recognized. still have the floor. I got the floor before you stated your SILVA: Thank you, thank you very much, sir. The pur point. pose that I pointed out a moment ago, and may I keep my CHAIRMAN: Will the Delegate Silva please let the dele remarks to that point, that this auditor, as I get it, is to be gate finish his point before making any further remarks? a servant of the legislature so that the legislature can check Delegate Bryan, will you please state your point of order? on the administrative branch of our government. That is the main purpose of having this auditor. Surely if he is to BRYAN: The amendment offered by Delegate Fukushima become elected, then haif of the legislature, that is the actually only consists of a very small part of the circulated Senate, will lose jurisdiction over this appointee because amendment. Actually, the bulk of his amendment is identical the Senate will be controlled by the so-called outside islands to the original proposal. I think that his amendment con and the House of Representatives will be controlled by Oahu. stitutes only the matter of election and the matter of the If he is elected, then in all probability in 90 per cent of the term. cases he’ll be elected from the electorate of the City and SILVA: Mr. Chairman, I rise to a point of order. County of Honolulu, having that population. That would not JUNE 19, 1950 • Evening Session 469 be the purpose of having the position as a cheek between the vision - - contingency, I would not withdraw my - - or a Senate and the House and the administrative branch of our special election. In view of that consideration, I withdraw government. And I say that if he is appointed, then all the my offered amendment. outside islands will have half to say of this auditor and HEEN: I rise to a point of information. In the proposed Oahu will have the other half to say. That was my main amendment, the second sentence provides, “It shall be the purpose that I’m very much for the appointive rather than duty of the auditor to conduct post-audits of all transactions the elective. and of all accounts kept by or for all departments.” Would A. TRASK: I’d like to move for an amendment to the that word “departments” include the legislature? amendment of Delegate Fukushima. I’d like to have inserted FUKIJSHIMA: That wording was taken directly from the the second sentence of the original Section 12 which reads committee proposal and I believe the chairman of the as follows, quote, “The legislature by two-thirds majority Committee on Taxation can well explain that sentence. vote of the members in joint session may remove the auditor from office at any time for cause.” HEEN: As I read it in the original Section 10, or rather CHAIRMAN: Delegate Trask, you are speaking on the Section 12, that was, of course, designed to take care of all proposal of the committee? That’s the one you’re referring departments other than the legislature itself. That was my to? understanding of it. A. TRASK: Yes, the proposal of the committee, second WHITE: No, the intent was that he would audit the legis sentence. lature as well. CHAIRMAN: Well, at the present time we are discussing CASTRO: It seems to me as an unskilled parliamentarian the proposal offered by Delegate Fukushima. that the underlying question here is not this last amendment A. TRASK: Well, I haven’t concluded, Mr. Chairman. nor the amendment that has gone before, but the question of whether the auditor shall be appointed, as brought out by CHAIRMAN: Excuse me. the committee proposal, or elected, as brought out by the A. TRASK: I~m referring to the insertion of the second amendment offered by Delegate Fukushima. I would like sentence in the committee’s Section 12 proposal to be in to ask the aid of the Chair to expedite this matter. Mr. serted after the first sentence of Mr. Fukushima’s - - Dele Chairman, as a matter of information, would it be correct gate Fukushima’s amendment. In other words, after the to ask for a consensus of the committee as to whether or not first sentence which ends “eight years” you would have this the committee prefers the idea of an election or the idea of sentence, which is the second sentence of Section 12 of the an appointment by the legislature. Question of the informa original committee’s proposal, “The legislature by two- tion from the Chair. thirds majority vote of the members in joint session may CHAIRMAN: Well, since the Chair’s been asked, I’d remove the auditor from office at any time for cause.” like to state to the delegate that the Chair would do anything FUKUSHIMA: I will agree to the amendment. to expedite matters but that the proposal you made could be easily answered by putting the question - - A. TRASK: Speaking briefly on that, there is no pro DELEGATE: Question. vision in the proposals from any of the committees, and I’ve conferred with the chairman, Judge Shimamura, who CHAIRMAN: — - of the amendment, the adoption of the says there is no provision in ordinances and continuity of amendment which calls for the election. law which would have - - some general provision which CASTRO: I, therefore, call for the previous question. would take care of the rejection for cause of the auditor. So I think it becomes a necessary provision to insert an NIELSEN: I second the motion. amendment [which I] offer at this time. CHAIRMAN: The previous question has been asked. CHAIRMAN: That amendment has been agreed to by the FONG: Of all the states that have appointive auditors, maker of the motion. how many states have appointive auditors? RICHARDS: May I ask the movant and the delegate who CASTRO: A point of order. Previous question was made the original motion, assuming that the legislature did called for. remove such an elected auditor, would the State be without an auditor until the next general election, or what is their FONG: Just a point of information. proposal regarding that? CHAIRMAN: Point of order has been called for. I be A. TRASK: Well, I think there would be some general lieve the delegate has a right to ask for a point of information law with reference under suffrage and election to cover such if the information is available. a vacancy. Would there be, Delegate Heen? FONG: How many states? HEEN: No, I don’t thiak there is any article now that TAVARES: I think it’s eight. I thought it was nine. I provides for any such contingency. counted again leaving out some questions where they call a TAVARES: There is a general territorial statute that person a comptroller. I don’t know whether that’s the auditor now provides for appointment of acting heads of departments. or not, but those states that I am certain from the Manual I don’t know whether that covers the exact situation, but I that apparently don’t elect their auditor are Maine, page 169; know it has been held under the federal system that the leg New Hampshire, page 173; New Jersey, page uS; New York, islature can provide for acting officers where there is a page 174; Oregon, page 177; Rhode Island, page 178; Tennes vacancy, even though the Constitution is silent. So I think see, page i79; Virginia, page 180. our legislature would have power to make a special provision IVIIZUHA: I stand correctecL for that by statute. FONG: There’s only 40, out of 48 states. HEEN: Right. DELEGATE: Point of order. A. TRASK: There seems to be some question here with reference to my amendment that the impeachment provision HEEN: Point of information. under the Legislative Committee may be offered whereby CHAIRMAN: Just a moment. Your point of information this matter may be taken care of, and in view of that pro- has been answered, Delegate Fong. 470 TAXATION AND FINANCE HEEN: Point of information. These auditors that we’ve SAKAKIHARA: I would like to make further amendment been talking about, those who are elected, those who are to that section, so that it would read, including the amend appointed, are they post-auditors? ment just made by Delegate Doi, “The legislature shall by a majority vote of each house in joint session appoint an TAVARES: It’s not clear from this very brief account auditor,” and then delete the following, “who shall hold a in the Manual as to what they are. They call some of them certificate as a certified public accountant and.” comptrollers. BEEN: Well, is the comptroller a post-comptroller? DOI: It is acceptable to the movant of the first motion to amend. CHAIRMAN: Now, are we ready to put the previous CHAIRMAN: In other words, your proposed amendment question? All those in favor of the previous question, please would read as follows, “The legislature shall by a majority signify by saying “aye.” Opposed. Carried. vote of each house in joint session appoint an auditor who Now the question before the committee is this: Shall the shall serve for a period of eight years and thereafter until amendment offered by Delegate Fukushima to Section 12 as a successor shall have been appointed.” Is that correct? proposed by the committee be adopted? All those in - - SAKAKIHARA: Correct. FUKIJSHIMA: May I request a roll calL CHAIRMAN: Any discussion? CHAIRMAN: Roll call has been demanded. All those in favor of the roll call, please raise your right hand. Suffi TAVARES: I move an amendment to the amendment. AIter the words “appoint an auditor” insert, “who shall cient number. Roll Call. have passed a civil service examination for said office.” DELEGATE: How about repeating that motion? RICHARDS: We seem to be getting into a little bit of CHAIRMAN: For the point of information of the com difficulty here. We are bringing in two different subjects mittee, the motion is this: Shall the amendment offered by into an amendment. Let’s take one subject up at a time. Delegate Fukushima be adopted - - We first bring up the point of whether it shall be a majority CROSSLEY: Point of order. vote of all the members in joint session and the second point involved is to whether or not the auditor shall hold a CHAIRMAN: - - as amended. certificate of a certified public accountant. Let’s vote on CROSSLEY: I do not recall that there has been any mo one point at a time. tion to adopt this amendment as amended. CROSSLEY: I’d like to move at this time, inasmuch as CHAIRMAN: That’s correct. a number of us have been toppling over here from exhaustion that we rise, report progress and beg leave to sit again CROSSLEY: We voted on an amendment and since that tomorrow. time there has been no motion to adopt the section as amended. Is that correct? NIELSEN: Second the motion. CHAIRMAN: That is correct. DELEGATES: No. FUKUSHIMA: In order to bring this up to date, I move CHAIRMAN: All those in favor of the motion to rise and at this time that the amendment which I proposed be adopted report progress and beg leave to sit again please signify by as amended. saying “aye.” Opposed. The noes have it. DELEGATE: Second the motion. ARASHIRO: Do I understand that now as the motion stands that in joint session that both houses need the major NIELSEN: I move for the previous question. ity in order to appoint a - - elect a post-auditor? CHAIRMAN: It’s been passed, it’s agreed, and a roll CHAIRMAN: The amendment states that “by a majority call has been demanded. Madam Clerk, please call the roll. vote of each house in joint session.” RICHARDS: I rise to a point of information.. Exactly what ARASHIRO: That means that they must be separately de is the amendment? cided? CHAIRMAN: May the Chair state the amendment as fol CHAIRMAN: That’s correct, but sifting in joint session, lows: “The auditor shall be elected by the electorate of the as the amendment reads. State and shall hold office for a term of eight years. It shall KING: Following the suggestion made by Delegate Rich be the duty of the auditors to conduct post-audits of all trans ards, may I suggest the Chair ask those who have made actions,” etc. down to the end of the page. Madam Clerk, amendments to the amendment to withdraw theirs and let please call the roll. us vote on the amendment offered by Delegate Doi, get that Ayes, 27. Noes, 33 (Anthony, Ashford, Bryan, Castro, out of the way, and then consider the next one. Cockett, Corbett, Crossley, Dowson, Hayes, Been, Hol CHAIRMAN: That is the suggestion made by Delegate royde, Kage, Kanemaru, Kellerman, Larsen, Loper, Lyman, King, However, the Chair has only one motion to put. Un Ohrt, Porteus, C. Rice, H. Rice, Richards, Roberts, Sakai, less the person who made the subsequent amendment, which Shimamura, Silva, Smith, Tavares, White, Wirtz, Wist, was agreed to by the maker of the first motion, the motion Woolaway, King). Absent, 3 (Gilliland, Phillips, St. Sure). still stands, unless Delegate Sakakthara decides to do that. CHAIRMAN: Motion failed. KING: May I suggest to Delegate Sakakihara that some who might want to vote for or against him could be involved DOl: I would like to move to amend the Section 12, the in this other question. As Delegate Richards pointed out, first line, by deleting the words at the end of the first line, there are two points there involved, a liftle bit conflicting. “all the,” and also deleting the word “members” in the beginning of the second line, inserting in lieu thereof two DOl: I agree with Delegate Richards and President King. words, “each house.” The first clause there would r.ead, Therefore, I would like to refuse to consent. after amended, “The legislature shall by a majority vote SAKAKIHARA: I withdraw my amendment. of each house in joint session.” CHAIRMAN: Thank you, thank you. That clears the air, SERIZAWA: I second that motion. so the only amendment at this time before the committee is, JUNE 22, 1950 • Morning Session 471 “shall by a majority vote of each house in joint session.” question open then as to what you are talking about when you All those in favor of the amendment, please signify by say refer to net assessed value or just plain assessed value. ing “aye.” Opposed. Carried. Now in the case of the counties, the debt limit has been in SAKAK1HARA: May I offer the amendment by deleting creased to 10 per cent and there has been an added proviso after the word “auditor, “who shall hold a certificate as that “the aggregate of the debts contracted by or on behalf a public accountant and.” of any political subdivision during any fiscal year shall not exceed two per cent of the total of such assessed value in CHAIRMAN: “As a certified public accountant and.” said political subdivisions.” SILVA: I second the motion. I’ve had the statement corrected to show the new figures, and you can see that the debt limitation of the State has been CHAIRMAN: I believe we had enough discussion on it to increased to 60 million. At the present time there are out vote. All those in favor of the amendment, please signify standing 14,000,936; unissued 41, 076, 220; for a total author by saying “aye.” Opposed. The ayes seem to have it. ized and unissued of 56 million. However, in this 41 million, Roll call has been demanded. All those in favor of - - How there are a number of bonds that it is highly questionable about a show of hands. All those in favor of show of hands. whether they actually will be sold. In any event, the differ Okay. All those in favor of the amendment proposed by ence between the 14 million now outstanding and the 60 mil Sakakihara please signify by raising your right hand. lion that Is authorized as a debt limit would leave plenty of Please raise your right hand, those who are in favor. That room for the State to go ahead with improvements. It is the one that is proposed by Sakakihara. Thirty-two in wouldn’t hamstring the State in any way. favor. Those opposed. Twenty-four. The amendment I think the same applies to all of the counties as well with carried. the possible exception of the County of Kauai, where, you Now we are on Section 12. see, with their recent issue of 725, 000, they are just about FUKUSHIMA: I move the adoption of Section 12 as amended. up to their debt limit. There is one thing about the County of Kauai that I think has had an adverse effect on it, and FONG: Second the motion. that is in that recent sale of $725, 000, there was $300,000 CHAIRMAN: The motion has been made to adopt Section of school bonds. Now if you’ll refer to the schedules that 12 as amended. are attached to the report, you will find that most of the HEEN: I move that the whole section be deleted as school bonds are carried as territorial obligations and not amended, the section as amended be deleted altogether. as county obligations, and that 300, 000, of course, has had a very adverse effect on the County of Kauai. Now in pro NIELSEN: I second the motion. posing this 10 per cent, even though in the case of Kauai the CHAIRMAN: Any discussion? debt limit is pretty close to what their outstanding bonds are at the present time, we feel that with the trend that is taking DELEGATE: Can’t take a beating. place in the assessed values for tax purposes, that it’s only ROBERTS: I think the section now, the auditor has a a matter of a short period of time before the county will very useful purpose, I think we ought to retain it. I don’t have, the County of Hawaii [sic] will have some leeway there. think that because it has been amended, that is adequate Because according to the statements that we have reviewed, reason for deleting it entirely unless it serves no function; the assessed value, the territorial assessed value anyway, and if it doesn’t, I’d like to hear from the chairman of the over a period since 1940 has just about doubled. It’s gone committee. from 183 million to 333 million at the present time, and I HEEN: I withdraw my motion. think with the adjustments that are now under consideration by the tax authority, to try to get the tax value of improve CHAIRMAN: The only thing before the committee is the ments more in line with their present replacement cost less adoption of Section 12 as amended. Any discussion? If not, depreciation, I think it will have the effect of increasing the all those in favor please signify by saying “aye.” Opposed. value. Now we feel that in the case of the Territory, although Carried. the present 15 per cent on the 333 would bring a value of ARASHIRO: I now move that the chairman report progress only 50 million, within 3 years time the assessed value and ask leave to sit again. would probably be up to 400 million, so that the 15 per cent would start to operate above that if the need arose for further CROSSLEY: I’d like to second that motion. borrowing. CHAIRMAN: You’ve heard the motion. All those in I think that’s all I have to say, Mr. Chairman, I’d be favor please signify by saying “aye.” Opposed. Carried. glad to try to answer any questions that they have. I’ve got my legal counsel here to help me. JUNE 22, 1950 • Morning Session H. RICE: I move for the adoption of the final draft of the amendment proposed by the Committee on Finance. CHAIRMAN: Will the meeting please come to order. I Section 10. Debt Limitations. believe we were discussing Section 10 of Proposal No. 10 regarding debt limitation. All bonds and other instruments of indebtedness issued by or on behalf of the State or a political subdivision WHITE: That’s right. All delegates have been provided thereof must be authorized by the legislature, provided with a copy of the new provision which is headed “Final that bonds and other instruments of indebtedness of a draft.” Now the changes that are incorporated in this new political subdivision must also be authorized by its draft are that it leaves off the requirements for approval by governing body. the voters of the various counties; it increases the debt limit Sixty million dollars is hereby established as the limit of the state to $60, 000, 000 with a proviso that it can be in of the funded debt of the State at any time outstanding and creased above that amount provided the increase does not unpaid. Bonds anti other instruments of indebtedness in have the effect of increasing the debt limit above 15 per cent excess of this State debt limit may be issued, provided of the assessed value used for tax-rate purposes. Now we such excess debt of the State is authorized by a two-thirds have used this “tax-rate purposes” because that is the term vote of all the members of each house of the legislature, that is used in the statement that is prepared by the Tax and such excess debt, at the time of authorization, would Office to show what the value is, and it doesn’t leave the not cause the total of State indebtedness to exceed a sum 472 TAXATION AND FINANCE equal to fifteen per cent of the total of assessed values are establishing various limitations, they may want to know for tax rate purposes of real property in the State, as what the limitations are with respect to these other bonds determined by the then last tax assessment rolls pursuant which basically are not long-term indentures at all. But to law. this other is really a specialized forth of short-term bor Bonds or other instruments of indebtedness to fund rowing, just as though it were a note of the Territory for appropriations for any fiscal period in anticipation of the the time being rather than a bond. collection of revenues for such period or to meet casual TAVARES: Yes, at the present time we fund our indebt deficits or failures of revenue, which debts shall be pay edness in anticipation of fiscal, current fiscal revenues by able within a period of one year, and bonds or other in what we call “treasury warrant notes.” When we are short struments of indebtedness to suppress insurrection, to of cash, we pay by a check that is entitled “treasury war repel invasion, to defend the State in war, or to meet rant notes” which bears interest, and the people take it dowr emergencies caused by disaster or act of God, may be to the bank and the bank takes it over and gives you the mon issued by the State under legislative authorization without ey and later on the Territory pays the bank back. That is regard to the limits on debt and excess debt hereinabove the usual form now of funding indebtedness for current fis- provided. cal needs within the estimated or within the resources or A sum equal to ten per cent of the total of the assessed income of the fiscal period, and I didn’t think leaving the values for tax rate purposes of real property in the politi word “bonds” in would do any harm. “Bonds and other in cal subdivision as determined by the then last tax assess struments of indebtedness” would include those, but there Ment rolls pursuant to law, is hereby established as the might be some time in the future where we would change limit of the funded debt of such political subdivision at from treasury warrant notes to some other kind of a docu any time outstanding and unpaid; provided that the aggre ment, and rather than have a question arise whether it is an gate of the debts contracted by or on behalf of any politi instrument of indebtedness as opposed to a bond and a draw cal subdivision during any fiscal year shall not exceed a distinction between the two, we thought we would just leave two per cent of the total of such assessed values in said them in. political subdivision. All bonds or other instruments of indebtedness for a DOl: I would like to move we amend the proposed final term exceeding one year shall be in serial form maturing draft in paragraph two on line six after the clause, “of the in substantially equal annual installments, the first in- legislature,” and deleting all that follows after that comma staliment to mature not later than five years from the to the end of the paragraph. date of the issue of such series, and the last installment CHAIRMAN: The Chair would like to inquire of the movej not later than thirty-five years from the date of such of the motion to adopt the Section 10. In the other discus issue. sions of other proposals of committees where there are one Interest and principal payments shall be a first charge or more paragraphs we followed the practice of moving for on the general revenues of the State or political subdivi tentative approval of each paragraph. sion, as the case may be. The provisions of this Section shall not be applicable H. RICE: I should have made the motion to tentatively to indebtedness incurred under revenue bond statutes by approve paragraph one. If the second agrees, I so move. a public enterprise of the State or political subdivision, WOOLAWAY: I accept. or by a public corporation, when the only security for such indebtedness is the revenues of such enterprise or CHAIRMAN: Is there any discussion as to paragraph one public corporation, or to indebtedness incurred under first? No further discussion? All those in favor of adopting special improvement statutes when the only security for in principle paragraph one of the Section 10 as amended, such indebtedness is the properties benefited or Improved please signify by saying “aye.” Opposed. Carried. or the assessments thereon. H. RICE: I make the motion in paragraph two that that Nothing in this section shall prevent the refunding of tentatively be agreed to. any indebtedness at any time. WOOLAWAY: I second the motion. WOOLAWAY: I second that motion. CHAIRMAN: You have heard the motion. Now, Delegate CHAIRMAN: Any discussion? Doi, we’re considering paragraph two of the Section iO. PORTEUS: I would like to hear from the committee. DOI: I would like to move to amend paragraph two by There was a suggestion that was made the other day with deleting all that follows in the sixth line after the phrase, respect to discussions that possibly insofar as the third “of the legislature” comma, to the end of the paragraph. paragraph is concerned that where you are borrowing money SILVA: Second the motion. in anticipation of collection of revenues for a fiscal period DOl: Period after the word “legislature.” or to meet casual deficits or failures of revenue, and you have to pay these back within a year, you don’t have to write CHAIRMAN: And eliminate - - as I understand your mo a bond to do that, do you? Won’t you - - tion would eliminate the phrase beginning “and äuch excess debt, etc.” down to the word “law.” Is that right? WHITE: I think that’s quite correct, that if we had just DOI: That is correct. “instruments of indebtedness” it would say the same thing. We left the word “bonds” in to make it uniform with what CHAIRMAN: The motion has been seconded. Would you we had up above, but I believe that it could be left out. like to explain the reason for your amendment? You want to talk on that? DOl: Yes. I moved to delete the last portion of paragrap] TAVARES: I was the one that objected to taking the word two. The reason was that the 15 per cent provided, in my “bonds” out, because I think the definition of “bonds,” one opinion, is meaningless and purposeless. In time of de of the dnfinitions, is so broad that it would cover almost any pression real estate values go down. The result is, the kind of writien obligation to pay. So that I don’t think there practical effect of providing IS per cent is meaningless in is any harm in leaving it in. that it will also go down and very likely go below the $60, 000, 000 provided. The 15 per cent, I. understand PORTEUS: The only question we had really was that if here, is provided for purposes to exceed S60, 000, 000. you have to submit this to various bond attorneys, and you Might I add also that during times of depression especially, JUNE 22, 1950 • Morning Session 473 we do need money - - we do need to borrow money, and I It seems to me that if we work it under that proposition, believe the only time we will resort to using the 15 per cent even at 20 per cent, that the legislature can be trusted to clause is during time of depression, and that is when this permit the issuance of bonds only to the extent that will pro 15 per cent becomes meaningless and there is - - and for tect the financial position of the State of Hawaii, and that is that reason there is no purpose for having this particular the reason why I offer that amendment. It would also, I provision in this Constitution. think, in good times, give more money to the State with Might I also add that the Joint Tax Study Committee had which to operate the State government. some time ago circulated their findings on the question of OHRT: I’d like to speak against the amendment. I think whether we should even have a tax - - a debt limit, and their that we get into the very heart of the finances of our munici findings show that in the several states, Connecticut, Mary palities when we begin discussing bond limits. If I were to land, Mississippi, New Hampshire, Tennessee, and Ver say anything, I think I would be criticizing the Committee mont, they don’t have any debt limitation and that they do on Finance for setting up too high a limit. I think 60 million not find that their credit has been impaired. is a fixed limit, and you must have the variable limit. ROBERTS: I spoke the other day on Section 10 on debt Now, when you begin judging the credit of municipalities, limitations, and I indicated that I had some doubts as to the I’d like to just read one paragraph as to what the bond at soundness of using assessed values for setting a debt limit. torneys and the bond buyers think of this subject. “When However, I’d like to speak in opposition to the amendment you find a state with low debt limits, with few if any ex proposed on the ground that you have, by the first part of ceptions from these limits, preferably they are constitution that paragraph, set a $60,000,000 debt limit. The purpose al limits, and a scheme for the issuance of bonds which of the second sentence, I gather, is to provide some flexi makes it a little difficult to incur the debt, where there are bility for excess debts above the 60 million. If you delete few if any limits to the taxing power for the payment of the that section, you provide for no flexibility whatsoever, and debt once it is incurred, and the laws for the enforcement you place a top debt limit of $60,000, 000, with no possibility of those levies are adequate, I would say that those things whatsoever to change that debt limit, except by a constitu indicate that in that state the people are focusing their at tional amendment. I will therefore suggest that that section tention upon the necessity of paying the debts which they be retained if we retain a debt limit. I don’t favor a debt are going to incur. Also, where the converse is true and limit, I don’t like assessed valuations, but if you are going where there are high debt limits or no limits and the crea to provide some flexibility, and if you have agreed to a debt tion of debt was a matter of great ease, and the provisions limit; I think this section ought to stand the way it is. for the payment of obligations were restricted by tax limita DOl: In answer to the previous speaker, I believe the tions, it indicated a desire merely to obtain money. Nat portion retained of paragraph two does permit the legislature urally investors take these things into account.” to go beyond the $60, 000, 000 debt limit and they could do so Now, I think this is very important. The Finance Com by a two-thirds vote of the legislature. At least that is my mittee has raised the limit from ten per cent in the case of impression. the Territory to iS per cent, and I think that that is very liberal. Now, there is a liberalness in that which you may BRYAN: I’d like to speak against the proposed amend not find now, but you could easily raise assessed values and ment. If I had my way, we would have no bonds. I think that will give you higher limits at some future date. that this is a very serious question. In my own mind I can Now the city and county limit has been raised from five visualize putting the State on a pay-as-you-go basis. The per cent to seven and one-haif per cent, and I think that’s money which we would pay as interest on $60, 000, 000 in a rather high because you can get around that later. That is, period of 15 years, if that money were put into a sinking fund all the highway bonds can be put over into revenue bonds or if it were invested in bonds of other states, it would pro and let the gas tax pay for it, and after awhile, we will have vide this Territory with sufficient income from the interest very heavy fixed charges against the city and county and our alone to take care of this whole problem. I think for sure whole credit will be affected. At the present time I think we should have a limit, and I would go further. the Territory sold its last issue at the rate of one and six- tenths per cent yield, which is a very low rate, and that is HOLROYDE: I agree with - - partly with the previous because of the limits that are now in the Organic Act, and speaker, and I disagree with the amendment. If the amend I would vote against these two amendments. ment carries, you might just as well eliminate any debt limit as far as the Constitution is concerned and leave it up SHIMAIVIURA: I favor the retention of this paragraph as to the legislature, the way it’s worded, if that amendment contained in the final draft for various reasons. As the is carried. I am in favor of a debt limit, and I am in favor previous speaker pointed out, it specifies and provides for of the committee proposal. a definite limitation in dollars and cents, which is a good thing. And then in times of prosperity where the assessed MATh Speaking against the amendment because I’m not valuation of property presumably may be greater than in favor of paragraph two, I would like to amend by strik $60,000, 000, we may increase the debt to iS per cent of ing out all of paragraph two and inserting in lieu there the assessed values as determined by the assessment rolls. of this simple language. “Twenty per cent of the total as Therefore it will give a greater flexibility, and also it will sessed values of real property in the State as determined insure our credit. When a bonding company would wish by the tax assessment rolls of the State is hereby established to underwrite our bonds they know that there is a definite as the debt limit of the State.” Do I get a second to dis:cuss limit of $60,000,000, and yet the limitation is 15 per cent of this? assessed valuation. I think we would be sustaining our cred NIELSEN: I’ll second that. it under such a provision. MAU: If we are to place a debt limitation—and I’m not FONG: May I ask the chairman of the committee a ques against the idea of a debt limitation, although I would be tion? Your $60, 000, 000 is what percentage of your assessed Willing to leave it up to the legislature not to bankrupt the value now, Mr. White? State, and I don’t think the legislature will bankrupt the WHITE: Well, it’s—I would say it’s about 18 per cent. State —but if we are to have a debt limitation, it should not FONG: Now it’s 18 per cent? Sixty million is 18 per be stated in dollars and cents. It should be on a percentage cent of your assessed value now? basis on the assessed value of real property, then you can go up or down according to the circumstances in the times. WHITE: Yes. 474 TAXATION AND FINANCE FONG: Now your 15 per cent, will that be over your shoved it up to $56,000,000. Now you will find that when $60,000,000? it comes to appropriation of money which is going to be WHITE: Well, in other words, I think probably if the - - floated by bonds it doesn’t get as careful scrutiny as the supposing that the tax - - the assessed values for tax pur appropriation of the present money has. I think that some poses went up to 450 million, within your debt limit you limitation should be placed here, and I think the final draft could borrow an additional six and a half million dollars or of the committee is a very good one. six and three-quarters million dollars. WHITE: I’d just like to add that if you’ll notice, we have FONG: You said $60, 000, 000 is 18 per cent. used the expression in there, “used for tax-rate purposes,” WHITE: Yes, it happens to work out 18 per cent as of so that there’s no question about what we’re talking about the present time, and the purpose of putting in the sixty mil because the Territorial Tax Office makes a compilation lion at this time is not to freeze the Territory. showing what all the gross assessments are and the exemp tions therefrom. They get down to this figure or this term FONG: Now, if you had 15 per cent of your assessed “valuation for tax-rate purposes” and that is why we have value over $60,000, 000, would that give you around another endeavored to tie it to some figure or some term so that $50, 000, 000, or is it your intention to limit your borrowing there would be no question about it. power to 15 per cent? I’d like to make one comment on Mr. Mau’s motion which WHITE: No, your borrowing power would be - - your I oppose strenuously. It’s fine to have some objective and debt limit would be 60 million at all times, but at such time I think that all of us would like to see the State and the as the result of taking 15 per cent of the assessed value counties in a position where they could carry on all the pro would produce a higher figure than 60 million, then you jects that they want to. But I think we have to bear in mind would be authorized to incur that additional debt. that we can’t do all those things without running the risk of prejudicing the credit risk of the Territory, and I think that FONG: Then why do you set $60, 000, 000 when it’s over is something that we have to keep in mind very definitely, 15 per cent now? and particularly right now. We have a situation in the Tern WHITE: Well, we set it at $60,000,000 so that we didn’t tory at the present time where the industrial securities of hamstring - - it wouldn’t have the effect of hamstringing the the Territory do not enjoy a very high reputation as evidencE Territory in the next two or three years. by both prices and the interest on the part of mainland pur chasers, and if there is one thing that we should guard very FONG: I see, so you anticipate that if the assessed value jealously, it is the credit of the State because we are going t did not depreciate, then $60, 000, 000 probably would not be need it. the limit. MAU: The chairman of the committee has stated that WHITE: That’s right. We anticipate that the - - on the presently percentage-wise, $60, 000, 000 comes to 18 per basis of the trend that there has been in the increase in net cent of the present assessed values. I’m quite agreeable assessed values, that within three years time that your as to knocking down that percentage of 20 which I suggested to sessed values would be up to 400 mfllion, which would then, 18. But the point is this. When you have a dollar and cents 15 per cent would give you $60, 000, 000. Now, if they con limit, that limit stands until the Constitution is amended. tinue on at that same rate, why then the 15 per cent would We don’t know whether this Constitution will be amended also apply to the increase over the 400 million and increase in the next 20 or 50 years, and if you don’t have a flexibility your debt limit by that amount. there, it seems to me that that would not be proper. If 18 FONG: Now, in your report you stated that financial per cent does not endanger the credit of the State, then we writers feel that that debt limit should be lower in percentage. ought to put it on the percentage basis so that it can go up Could you give us an idea as to what these writers think is or down. If that percentage today, 18, reaches $60, 000, 00C a safe percentage. there should be no objection to that because in the county section, the original county section gave it a dollar-and- WHITE: Well, the expressions of the bond attorneys are cents limit. In the amendment, it does not give it a dollar- not altogether clear because they talk about a debt limit not and-cents limit but says ten per cent of the total assessed exceeding 18 per cent. Now that in many instances may be value. So in the one instance, on the State you give it a influenced by the way in which the county handles its bonded limitation in dollars and cents, in the county one you don’t. indebtedness. In other words, where the county takes care Now, it seems to me if it doesn’t make any difference, we of all the school bonds and all that type of expenditure and ought to leave it flexible if that is possible through the per makes the borrowing for those purposes, why they feel centage basis. that an 18 per cent over—all limit is as high as it should go. Now we have, on the other hand, submitted this pro WHITE: Can I answer that? I thought I made that clear, posal back to them, and they do not feel that the way in which Mr. Mau, that as you know during the war period the tax we have set it off will impair the credit of the State. They assessments have not been able to keep up with the increase~ have, on the other hand, cautioned us that the policy now in in value, and they are now in process of correcting that effect in the Territory of granting exemptions of all kinds differential that exists between present assessed values and can have an effect on the acceptability of the State bonds. what might be considered fair assessed values based on present replacement cost, less depreciation. Now last FONG: I feel that this certain amount of $60, 000, 000— year they made an adjustment of - - by increasing improve that is a gross figure—is a good thing. Your legislators - - ments by 20 per cent. It will probably take two or three you will find that many legislators come to the legislature years to get those adjustments ironed out, and I am sure thai with very little experience or very little knowledge of finance, by that time that your assessed values then will, by applying and if you did not set an amount like that, it would be very 15 per cent to it, will produce the 60 million. This was to difficult for them to find out what the taxable - - what the take care of an interim situation which we hoped, after that, debt limit should be. I know when I first went to the legis would iron itself out. lature I was quite confused as to what - - how much we Now, when we talk about the 18 per cent, that isn’t lim could go in the matter of having tax - - debt limit, and I ited to state debt, Mr. Mau. The 18 per cent in many in think that $60, 000, 000 is a pretty generous figure. During stances, that was supposed to include the combined county the war the Territory was able to cut its debt down to and State. In other words some of these states don’t have $8, 000, 000, but within two sessions of the legislature we any percentage debts, but they have a low debt limit, and JUNE 22, 1950 • Morning Session 475 in those cases the bond attorneys advise that the 18 per cent still have the State and the county bonds enjoy a good rating was a high figure for the counties. Now you take the 15 from a credit standpoint. per cent plus the ten per cent, you are getting up to 25 per MAU: That’s true, but you have a limitation in dollars. cent and you are getting up to a very high percentage of If we use the percentage, what would be a safe percentage assessed value. to use? MAU: Mr. Chairman, may I answer that question? If WHITE: Well, you mean looking always to the long-range that is so, are you giving preferential treatment to the future? counties? Because under the county provision their debt limitation is on the percentage basis, ten of the total of the MAU: Yes. assessed values of the tax rate. Then there is no limitation WHITE: Well, it might get down to a point where you on the amount of money involved. If seven per cent or seven could - - where ten per cent would provide for it. Now, and a half is enough for the counties, as your studies have there is another thing that this provision provides, that the shown, you have given the counties ten per cent, which is bonds are going to be serial bonds. In other words, they very generous of you. Then you limit the State to are going to be paid off in fairly equal installments over a $60, 000, 000. That might be ten per cent or that might be period of 35 years, so that as you go along you are paying 15 per cent depending on the assessed values. Are you off some of your debt, and you always have that additional being niggardly with the State there? borrowing power because this provides that the limit is the limit on the bonds outstanding at any one particular time. WHITE: There was no intention to be niggardly with In other words, you can exceed these figures on outstanding the State, but I think that if you think of the county problem bonds and authorized but unissued bonds, but they can’t actu as such, you can appreciate the problem that we ran into ally be sold if it has the effect of exceeding this limit. when we made our first draft. We got onto the assessed values and tried to fix the dollar limit. We would either MAU: Well, you have a percentage limitation in the last have to fix it by each particular county in the Constitution part of that paragraph of 15 per cent. Now, if that is a or we would have to fix an over-all limit and then provide reasonable limitation upon two-thirds vote of the legislature, for a proration over counties, and because it did make a would it be a reasonable limitation in the original instance very complicated provision, we went back to the simplified rather than use the dollars and say 60 million is all that provision of ten per cent. you can go? Now, if you refer to the initial provision, it provided RICHARDS: May I answer that particular question as I seven and a half per cent for, the counties. When we applied understand it? At present, the authorized debt is approxi the seven and a hall though, we found that Kauai then was mately 56 million, which is roughly 16.8 per cent of the over their debt limit, and there are some - - there is one assessed value of 330 million. Now if the - - under this thing about that that affected the county of Kauai and that is particular provision, if we leave it at 15 per cent until the that she has issued $300,000 worth of bonds for school present assessed value goes to $400, 000, 000, the bond purposes, which in most instances is a Territorial obliga limit will be $60, 000, 000. If that assessed valuation goes tion for the other counties. So it was in an effort to not up to $500, 000, 000, then the debt limit will be $75, 000, 000, hamstring the counties at this particular time that we estab but at no time will it go below $60,000,000. lished the ten per cent. But you will notice there that the - in’ the initial provision it requires approval by the legis WHITE: Mr. Mau, could I answer that one another way? laturé and also by the county governing board. I think that if we assumed that we knew what the situation was going to be in the next two or three years, why we MAU: One more question. Do you visualize the possi could eliminate the 60 thousand [sic] and rely on our belief bility of increase in real property values so that, in order that the assessed value is going to go up to a point where to reach the $60, 000, 000 limitation, the percentage could they take care of that. But in fixing the 60 million we were possibly come up to five or seven and one-hall per cent of trying to take care of the situation that prevails today where assessed property in the State to reach that $60, 000, 000? you have a debt limit of 50 thousand [sic] but you’ve got It could be possible? authorized - - outstanding plus authorized and unissued WHITE: Do I think that assessed values will increase to bonds that bring the total up to 56 million. So in other a point where you could cut the 15 per cent in half? words we were trying to take care of the situation that exists at the present time until such time as we ceuld catch MAU: That’s right. up with it. WHITE: No. I doubt whether we’d ever reach that thing, MAU: Well, I’m in agreement with you about taking care and I think that that would be dangerous in that you could of the present day situation. It’s good as it is for the present have fluctuations for a period of one or two years which day, but what happens five years, ten years from now, might seriously prejudice it. I think the long range trend twenty years? When the Constitution is unamended, it re is going to be upward, but when you do have periods of de mains as is, 60 million. pression you may have downward adjustments on assessed values to reflect the condition of the real estate market. CHAIRMAN: Well, Mr. Mau, I might recall that I think there has been the point of view expressed by you and Mr. MAU: So that it is possible, though, to have a percentage White. I think your point is brought out in the discussion. equal to say seven and a hall or eight per cent of the real Are you satisfied that it is brought out? property taxes or assessed value of the property in the State to reach 60 million. It is possible where there is a MAU: Yes. May I amend my own motion to change the rising scale in the value of property. 20 per cent to 18 per cent? WHITE: I think it’s possible, but I don’t think it’s too H. RICE: I think Delegate Mau from the fifth district probable. would agree, if the 60 million is 18 per cent, why not write 18 per cent down where you have the 15 per cent? Then in MAU: What, in your judgment, would be a safe percent any increased valuation you have increased borrowing pow age to use if we use the percentage, without endangering er, because it shows that you have to go up to 400 million the credit of the State? to get to 60 million. So I think that that was - - I had quite WHITE: Well, I think that the way we’ve got it set up a discussion with our Secretary the other day on that point, now should enable the State and the counties to operate and if in one case it’s 60 million. 476 TAXATION AND FINANCE I want to continue to say that this committee, the Joint BRYAN: In that case, I’d like to speak to that amend Committee on Tax StudS’ has made some - - has got some ment again. I think that the legislators are in a pretty letters here that would help the Territory. You take on tough spot on this. They come to the legislature and they Oahu, you got 1, 900, 000, Oahu; Maui has 908, 000; Hawaii, are expected by their constituents to bring home the bacon, 1, 488, 000; and Kauai, 207, 000, making a total of four and and it’s very hard sometimes for them to vote against a a half million that the interest and sinking fund is all pro limitation of debt. I think that this would actually, the sec vided for by gasoline tax. They should form a corporation tion as written, be a service to the legislature, and at the and have that revenue bond and that wodld decrease the same time keep our credit ratings sound. That’s all I have limits some because this section - - in the following section to say. you will find that revenue bonds stand on their own. But I’d rather think that - - I think Mr. Mau’s suggestion may KELLERMAN: May I make a - - I am in favor of the pro be all right if we write 18 per cent which we have now writ posal of the committee, but I’d like to have one point brought ten in as 60 million, then any increase in valuation - - up for discussion and clarified to the committee. Mr. Ohrt Personally I’d like to agree with Delegate Bryan and mentioned it indirectly when he referred to the fact that as Holroyde. I’d like to go without any indebtedness. When values rose, the debt limit could increase under the 15 per we got down to eight million, if we could have gotten rid cent provision. He referred to the fact that there was of the whole debt we would have been better off. But the another open end, so to speak, in a possible increase in the Territory isn’t in that condition to be without any bonds be proportion of assessment value to real value. Mr. White, cause of the employment problem, and it’s times like this will you answer this question, please? You said that the when you have employment problems that you have to got bond attorneys who had served in the past with respect to bond proceedings of the Territory had approved, as being to borrow. You’ve got to put the money into work and get reasonable or rather not excessive, the present proposal projects out to take care of your employment. of the committee for a $60, 000, 000 limit with this 15 per CHAIRMAN: Mr. Mau, you made a motion to amend cent additional proviso. Is that correct? your motion from 20 per cent to 18 per cent. Is that agree able to the second, whoever seconded it? WHITE: That’s correct, with the 10 per cent for the counties. NIELSEN: I second it for purposes of debate. KELLERMAN: Did they not approve that on the basis of CHAIRMAN: It was agreeable? Now Delegate Bryan our present rather low proportion of assessment value to has been seeking recognition. I recognize Delegate Bryan. real value. I understand our present assessment rate is BRYAN: I’d like to speak against the second amendment about 50 per cent of market value. Is that true? of raising that figure from 15 per cent to 18 per cent very WHITE: I would say it was about 40, and I think with the much on the basis of what I said a little while ago. I think adjustment that they made this year it would be close to 50. that the committee proposal is more than generous. I’d like to point out one or two things in that connection. I KELLERMAN: Then it seems to me that they have ap think one reason for raising it was so that in times of pros proved your present proposal based upon the present fair perity when the assessed value would increase, the debt limit or comparatively low assessment proportion to market could increase. Those are not the times when we need an value. It is within the power of the legislature, alter we increase in the debt limit. approve this provision, if it should see fit to increase the base on which that 15 per cent would apply, to simply pass MAU: I wonder if the gentleman will yield for a second? a statute which would increase the rate of assessment to We might be able to cut out part of the discussion. some 60 per cent, 70 per cent or 80 per cent of market CHAIRMAN: Well, if you yield, you yield for all pur value. poses. WHITE: That’s not - - I mean, that’s not necessarily so BRYAN: I won’t yield. Well, I had two or three other that they’ve done it, that they’ve approved this on that with points I wanted to speak to, if I could. that understanding. The thing that worries me is we are very conscious of CHAIRMAN: I believe Delegate Tavares might clear that. our balance of trade here in the territory, and I think the Delegate Tavares. interest on $60, 000, 000 would actually have an effect on that balance of trade. I don’t know what it would be on these TAVARES: I might say that our present law today re bonds that are issued, but I’ve heard two and a half million quires assessment at market value, and even with that law, to three million a year quoted. we are only going 50 per cent. Even in those jurisdictions that actually mandate full value, you will not find them at CHAIRMAN: Excuse me a minute. Perhaps the Chair full value because of the problem of equalization. Tax as didn’t express his mind correctly. When you stood up, Mr. sessors are afraid to go to a 100 per cent of actual market Mau, did you intend to ask Mr. Bryan to yield to a question, value on every piece, because they are afraid that because or rather to yield to speak? of the differences of opinion between people as to value, MAU: Yes, I think I could have covered it in that form. they will overvalue one piece of land too much and knock off CHAIRMAN: Do you desire to yield to a question? their tax rate or knock off the assessment, and therefore they always stay below 100 per cent in order to be sale be MAU: I believe that my amendment will not get the support cause of that problem of equalization. So I say, I don’t of this house, and in order to avoid it, I will offer an amend think that’s a real danger because even today under a law ment later to other sections of paragraph two. At this time requiring market value, you only have 50 per cent or less. I withdraw the amendment that I had offered. KELLERMAN: I did not mention the potentiality of going CHAIRMAN: You desire to withdraw your amendment? to 100 per cent of market value for the very circumstances MAU: That’s correct. that - - facts that Mr. Tavares has mentioned and which I fully realize, but it seems to me it’s quite possible that BRYAN: Do I understand the amendment before the under the direction of the legislature, an assessment is house now is the amendment to delete the words after “leg made on a territorial-wide basis under its direction, that islature”? assessments could be increased to 80 per cent of market CHAIRMAN: That is correct. value. Had we had an 80 per cent market value assessment JUNE 22, 1950 • Morning Session 477 today, I would like to ask Mr. White if he feels that the WHITE: Well, our reason for - - in reply to that, our bond attorneys would have considered this rate reasonable. reason for providing the 60 million was to allow some elbow It’s my feeling that what we are doing is approving only one room in the first three or four years that the State may be side of a proposition. We are putting on a $60,000,000 in operation before it might attain that 400 million dollar limit, which I consider highly advisable, but we are leaving assess value appropriation, I mean assess value figure. an open end that the legislature can increase the 15 per cent CHAIRMAN: If there is no further discussion, the mo rate by increasing the rate of assessments. They can re tion before the house is the - - value the property on a higher ratio and jump it to 450 mil lion, 475 million, 500 million. I think it should be rather ROBERTS: I still believe that we have the statement in the understanding of this group that when we approve 60 the record to the effect that the evaluation - - assessed valu million, we are approving it on the assumption that the ation is based on the recommendations of somewhere ap assessment rate as compared with market value will be proximately 60 per cent of actual values. around 50 or certainly not to exceed 60 per cent of actual market value. CHAIRMAN: I do not believe that is so, Delegate Roberts. WHITE: I think there are two replies to that question. ROBERTS: I just want the record to show that. In the first place, I don’t think that you could get the bond CHAIRMAN: Delegate Kellerman stated that it was her attorneys to rule on that without looking at other factors, belief that if that was the intention of the committee, it should and the other factor is, what are the revenues of the Terri be in the record. There was no statement made by the tory, because that in the final analysis determines what sup chairman of the committee on that basis. ports the bonds. Now, if over a period of years, it looks to the bond attorneys as if you were just raising the asses SHIMAMURA: I believe Delegate Kellerman has a very sed values and without any corresponding increase in the good point. However, the only danger I see in such a con taxes that were raised from that, I think that it would have sensus of opinion is that we may run into a constitutional an effect on the credit of the bonds. question in the future. If the legislature should otherwise Now secondly, when you talk about the assessor just provide and enlarge the assessment rate, I believe that we being able to do that willy-nilly, I think you’ve got a lot of may run into a constitutional question, that is, the constitu safeguards on that because at the present time you have tionality of the bond issue which exceeds the 60 per cent 15, 000 odd taxpayers who are paying little if any taxes in basis. / the way of real property taxes, and the minute you get up MAU: I wonder if I may ask another question. In the to an 80 per cent or 85 per cent ratio, you’ll drag 15 or 20 last part of paragraph two, they spenk of assessed values thousand people in, and I don’t think the legislature would for tax-rate purposes of real property in the State. Did ever run the risk of incurring the wrath of that group. the committee consider the possibility that in the future the SMITH: I move that the committee recess till i:30. legislature may tax personal property, and whether or not assessed values on~personal property also should be in ROBERTS: I’d like to mnke one statement for the record. cluded, and if not, why not? Mrs. Kellerman indicated that it be the sense of the Con vention or the sense of the committee that the assessed WHITE: Well, I can only express a personal opinion, and valuations be maintained at the present base. I think that I hope that we never ever get back to the personal property if such a feeling is left unanswered, it might presumably because I think it was the most ridiculous tax we ever had tie the hands of the future legislature. The purpose, I and the most expensive to administer. But regardless of gather, of providing for a percentage figure is to provide that, this wouldn’t - - it wouldn’t be included in this because for some flexibility and to permit a possible base in excess we are tying it back to real property. of $60,000,000 if and when assessed valuations increase. MAU: And it is the committee’s feeling to limit the as We aren’t discussing the desirability or undesirability of sessed value to real property taxes only? increases or changes in assessed valuation. I want it to be understood and made quite clear in the record that there Is WHITE: That’s correct. no such intent in drafting this proposal. CHAIRMAN: That’s what it says in the proposal, Mr. KELLERMAN: I don’t think - - either I misunderstand Mau. the last spenker or he has misunderstood me. I was not MAU: Would there be any advantage in including all spenking with reference to changing the 15 per cent in the properties that may be assessed for taxation? committee proposal, and I know that was put in for flexibil ity, which I approve. I was wondering if it was the sense of WHITE: Well, there’s nothing - - I think it should be the Finance Committee and of this committee that these understood by this Convention that there is nothing scien figures of the 60 million and the 15 per cent were based tific - - there is no scientific way of developing any per upon the assumption that the present tax assessment evalu centage. All that we can hope to do is to try to select a ation of properties In the territory would remain within a percentage that is realistic and that is going to tnke care 60 per cent limit of market value, certainly which will be of the situation that we think might confront the State. higher than we now have, and would not run up to a possible There is no scientific way of putting in real property or 80 per cent of market value. any other property. This is only a yardstick, only a guide, that’s all. GILLILAND: I ask the chairman of the Committee on Finance whether or not the committee has tnken into con KING: May I ask the chairman of the committee a ques sideration that at the present time under territorial status tion? As I understand it, the limit of $60, 000, 000 does we are receiving a lot money from the federal government not bar the counties from borrowing up to ten per cent of and our salaries and all are being paid by the federal govern the assessed value of each county. ment. When we become a state, we will have all that extra WHITE: That is correct. load on our own shoulders, besides a lot more expenses of KING: If every county uses the full limit of their borrow the government that the United States government won’t have ing capacity, that would amount to, at present valuation, to meet. Has the committee tnken that fact into considera about $3,300,000. tion on the question of Increase assessments of property for taxes? WHITE: That’s right. 478 TAXATION AND FINANCE KING: That’s on a total assessed value for tax purposes Afternoon Session of $330,000,000. WHITE: No, it will amount to 33 million. CHAIRMAN: I believe, Delegate King, you have an an nouncement to make before we start on the regular order of KING: Pardon? business. WHITE: Thirty-three million for the counties. KING: It’s been generally agreed, subject to the Con vention’s approval, that we would sit in Committee of the KING: That’s right, 33 million. So then the maximum Whole until five and then adjourn and not have a night meet debt of the Territory could conceivably be - - or the State, ing. Then the Committee on Legislative Functions and 60 million plus 33 million, 93 million dollars. Now it Powers wants to have an evening meeting after dinner, as I seems to me that’s a pretty liberal amount of leeway in understand it, Delegate Heen. Now when we rise, rather which to finance the public improvements and to meet emer than recess—we have to adjourn anyhow—there is a little gency needs as time goes on. Now, I’m one of those who business on the Clerk’s table that I’d like to complete as believes that the assessed value will go up in the next few soon as the Committee of the Whole rises. If we finish the years, perhaps not in the next two years, but over a period pending committee report on time, we’ll go ahead with the of five or six years, the total assessed values will go up report of the Committee on Agriculture. If not, we’ll work from 330 million to some figure very close to $400, 000,000, right up to five on the report of the Committee on Taxation. so that the 15 per cent on the 60 million will be invalid, and I’m very anxious to have a caucus in executive session of then in a later period, the 15 per cent will exceed the members to discuss our program hereafter, especially $60, 000, 000, let’s say in ten years from now. In the mean after June 30. So that when we do adjourn at five o’clock, time, is it not true that we are paying off a considerable if the members will just give me about 15 minutes, we’ll amount of our present bonded indebtedness? Now the total go right into the committee room used by the Committee of the bonded indebtedness at this time of the Territory is on Legislative Powers and Functions and I’ll make our little about 56 million. Is that correct? caucus very brief. That’s all I have to say, Mr. Chairman. WHITE: Total what? HEEN: I’d like to make it clear that there will be a KING: The bonded indebtedness of the Territory at this meeting of the Committee on Legislative Powers and Func time. tions at 7:30 this evening. All the members are urged to be present. This may be the final meeting on the report1 WHITE: Well, the outstanding is about 15 million and the the final report upon the complete article relating to the authorized but unissued 41 million, so that we have a total legislature. of 56 million. However, the bond limit of the Territory is SAKAKIHARA: May I ask the chairman of the Committee 50 million. on Legislative Powers and Functions, how long does he KING: Well, what I mean is, what is the leeway that we expect this meeting to last? could borrow immediately in case we had need for a five or [Answer not on tape. six million dollar bond issue within the next two years? CHAIRMAN: The motion before the house is Delegate WHITE: Well, I would say that it would probably run Doi’s motion that all the part from “and such excess debt” from 10 to 15 million, because there are a lot of the bonds to the end of the paragraph, “to law,” be deleted from para that are authorized. It’s highly questionable whether they graph two of the proposed Section 10. Is that clear? All would ever be issued. those in favor of the motion to delete that particular sentence KING: In other words, if it were necessary by legisla say “aye.” Opposed. The noes have it. The motion failed. tion to meet the problem of unemployment, the legislature The motion before the committee therefore is whether could borrow money up to about $15, 000, 000 within the or not paragraph two of Section 10 should be adopted. All next two or three years? those in favor of the adopting tentatively of paragraph two WHITE: I would say that there would be 10 or 15 million of Section 10 please signify by saying “aye.” Opposed. dollars available. The motion is carried. HOLROYDE: I move we tentatively adopt paragraph KING: It seems to me that is a very liberal provision, three. and I would like to express my opposition to the pending amendment and to express my approval of the paragraph APOLIONA: I second that motion. as recommended by the committee. WHITE: I would like to propose that we make an amend SHIMAMURA: Do I understand “assessed values” to ment to that paragraph by deleting the first three words and mean “net assessed values,” that is net after deduction of changing the “i” in “instrument” to a capital “I,” so that exemptions that may be allowed by law? Then shouldn’t the thing would read: “Instruments of indebtedness,” leav we say so? ing off “bonds or other.” WHITE: Well, I tried to explain, Delegate Shimamura, CROSSLEY: I second that motion. that the reason we use this “value used for rate purposes” CHAIRMAN: The Chair did not fully understand your is that that is the value that produces the taxes. Now, it motion, Mr. White. Would you please repeat it? isn’t net value because it’s affected to this extent, that any of the amounts that are on appeal in any year, 50 per cent of WHITE: I moved an amendment to delete the first three words of that paragraph. those amounts are added back. So that’s why we are using this as against the net value, because the net value is low CHAIRMAN: Oh, “bonds or other.” Your motion is made er than this. Any discussion? If not, all those in favor of deleting the words, “bonds or other,” will you please - - FUKUSHIMA: I’m one of those that cannot think on an empty stomach. I move that we take a recess until 1:30. KELLERMAN: Does the chairman also want to delete the same words that appear in line five of that paragraph, RICHARDS: Second the motion. or was it intended to leave a difference? CHAIRMAN: All those in favor of recessing say “aye.” WHITE: No, no. This is only to apply to short-term Opposed. Carried. debts. 479 JUNE 22, 1950 • Morning Session KELLERMAN: You intended that to be a difference be CHAIRMAN: Is there any further discussion? If not, tween those two? all those in favor of the adoption - - WHITE: Yes. ARASHIRO: Point of information. A little explanation on this, “which debts shall be payable within a period of CHAIRMAN: All those in favor of the motion please sig one year.” nify by saying “aye.” Opposed. Carried. CHAIRMAN: Well, what do you want to know about that? MAU: I propose another amendment on the next page, after the word “State” add the words “or its political sub ARASHIHO: What does that mean? divisions.” Second page, top line. TAVARES: All that means is this, that if the State bor CHAIRMAN: Any second? Delegate Trask seconds the rows money, makes a temporary loan to fund appropriations motion. Any discussion? for a fiscal period in anticipation of collection of revenues, that is, they need the money in advance, they haven’t got it WHITE: It seems to me that that is unnecessary, and not yet, but they expect it to be a little later in the fiscal period only unnecessary but dangerous. How many people are you and they want to borrow to anticipate those revenues, or if going to have taking care of an emergency within the State? they have a casual deficit and they need money temporarily I think that that is something, that when you talk about to cover that, or the revenue falls below estimates, which raising the State debt to take care of emergencies that might amounts to the same thing as the casual deficit, they can be authorized by a political subdivision, you are going borrow money to the extent necessary to cover those things pretty far. but the money must be payable back within a period of one year. H. RICE: The comptroller of the City and County and I spent the lunch studying over this matter and he felt that CHAIRMAN: If the committee please, then the only thing if it was good for the territory - - the state, it was good before the committee is the adoption of the amendment pro for the county. They might be in the same position. posed by Delegate Mau inserting the words “or its political subdivision” on page 2 after the word “State.” If there is CHAIRMAN: Any further discussion? no further discussion, are we ready for the question? TAVARES: May I point out that this a very wide open SAKAKIHARA: Did I understand Delegate Mau to have section. The provisions of this paragraph mean this, that said that he had withdrawn that amendment or does that in time - - that for the purposes of suppressing insurrection, amendment still stand? repelling invasion, defending the State in time of war or to meet emergencies caused by disaster or act of God, there CHAIRMAN: The amendment still stands. is no limit on the amount of bonds you can issue. Now as SAKAKIHARA: Question. long as the State has that power, I see no reason why you have to give it to the counties too. It’s a wide-open power. CHAIRMAN: All those in favor of the adoption of the pro posed amendment, please signify by saying “aye.” Opposed. LARSEN: I just want to tell Delegate Mau that the County The noes have it. The motion failed. of Honolulu will be part of the State of Hawaii. SAKAKIHARA: I would like to pose a question to the MAU: Thank you, Doctor, for the information. chairman of the committee, if he will kindly define this I don’t suppose that any county will take care of invasions phrase. What does it mean? “To meet emergencies caused or defend the State in war. I am sure the State will do that. by disasters.” What kind of disaster? Economic disaster But up above, it says, “to meet casual deficits or failures which brings about unemployment in the State of Hawaii, or of revenue.” I think that the counties might well do that. what? Now, I don’t visualize that any counties are going to put the CHAIRMAN: Will the chairman answer the question? counties into bankruptcy, as I don’t visualize the legislature will put the State into bankruptcy. WHITE: I think I’d better leave that to one of the attorneys to answer. ARASHIRO: A question directed to the last speaker. By addition of such a phrase, wouldn’t that in the future raise SAKAKIHARA: We have a situation now which might con some complication by the State trying to pass the buck to tinue to be in existence for some time. There is some 25 the political subdivisions? to 30 thousand unemployed in this territory. Is that an emergency caused by economic disaster or what, or is it an CHAIRMAN: I noticed Delegate Mau smiled. Perhaps act of God? Will you kindly define that? the point is well taken. TAVARES: In my opinion that would not be either a dis MAU: That point is absolutely well taken. They always aster or act of God within the meaning of this provision. do that. The word “disaster” is not absolutely definite, but I think TAVARES: May I point out one more thing. There is it implies something more than this type of financial emer nothing in this Constitution, in this article to prevent the gency. I would say it would include something like a severe legislature by passing a law to have the Territory aid thu explosion or a tidal wave. They are very similar, the two counties in times of emergency, and today we have a law words. I think they overlap; “disaster” and “act of God” that allows the Territory to make loans to the counties, so are very similar in their meaning. that the legislature has ample power to take care of those SMITH: Wouldn’t that be left up to the legislature as to emergencies in the counties, and if they are big enough so determining whether it should be - - what it should be de that isn’t enough, then a special session can be called to fined? take care of it. TAVARES: I think that within reason that probably is MAli: If that argument is good. then certainly why put true because there is always a presumption when the legiS it in for the State, because the legislature by rightful sub lature acts that it is acting constitutionally, and if there is ject of legislation can take care of emergencies like that. some doubt, but not too great a doubt, the courts will un WHITE: I’d like to point out one further thing. That doubtedly resolve the doubt in favor of the validity of the paragraph there, in my opinion, would be inconsistent with legislation if the situation to be covered can come some the first paragraph. where near the definition of “disaster.” 480 TAXATION AND FINANCE SAKAKIHARA: There are numerous disasters. We have CROSS LEY: I move that we adopt the fourth paragraph financial disasters, we have economic disasters, and we as amended. have an unemployment situation here in the territory. I think we should provide in this provision so as to enable the DOWSON: I second the motion. legislature for the State of Hawaii to have a clear under CHAIRMAN: Any discussion? U not, are we ready for standing now, in this phrase of the amendment, to take care the question? All those in favor of the passage of paragraph of such a situation. The proposed amendment merely four of the proposed Section 3 [sic] please signify by saying states, “to meet emergencies caused by disaster or act of “aye.” Opposed. Carried. God may be issued by the State” in an emergency bond, redeemable within one year. I think it is very important CROSS LEY: I now move that we adopt paragraph five, to make it clear so thatthe future legislature would know Section 10. what is the purport and intent of that phrase and wording. CHAIRMAN: Any second? CHAIRMAN: Has this been made clear to you yet? LAI: I second that motion. ARASHIRO: Maybe that can be clarified by inserting a ROBERTS: I have a question to ask the committee. The comma after “emergency,” and then by adding two words - - language in paragraph three provides for instruments of adding a comma after “emergency,” then adding the words indebtedness to fund appropriations for any fiscal period. “and emergencies caused by disaster.” That’s a short-term proviso to meet needs for a particular TAVARES: If a more definite definition is asked for, I period of time, usually one year or less. Paragraph five suggest we defer and go on to the next paragraph, and I will says that “all bonds or other instruments of indebtedness” - - Oh, excuse me, “for a term exceeding one year.” I’ll get the dictionary and try to resolve that question a little more definitely. I’ve sent for a law dictionary. withdraw that question. SAKAKIHARA: I move, therefore, we defer action on CHAIRMAN: Is there any further discussion? U not, are that paragraph. we ready for the question? YAMAMOTO: Second the motion. DELEGATES: Question. CHAIRMAN: Moved and seconded that we defer paragraph H. RICE: Just one question. I was wondering if - - as three of the proposed Section No. 10. All those in favor of you know, in the Organic Act, we were allowed to float deferring, please say “aye.” Opposed. The Chair is in bonds and so forth—I address this to Mr. Tavares—and we doubt 3nd will call for the raising of hands. All those in changed from regular long-term bonds to serial bonds, and favor of deferral, please signify by raising your right hand. I was wondering if this paragraph could be left out altogether~ All those opposed. The motion is lost. or do you want to tie it in? WHITE: It seemed to me that the representative’s - - I TAVARES: It is my recollection that the reason why we mean the delegate’s question was directed to the intent of the changed in the Organic Act from term to serial bonds was committee. that term bonds are bonds which are payable all at once after a long period of time, for instance, if we borrow a CHAIRMAN: That’s correct. million dollars payable 30 years after date. Now in order WHITE: The intent of the committee was not that it to build up enough money to pay that back at the end of 30 would include such a thing as an unemployment problem or years, the custom was in the past to build up a sinking fund, things of that character. That would be taken care of, and the theory being that you put so much money each year into that was the reason for providing for the $60, 000, 000 debt the sinking fund and you invest it, and it will draw interest, limit. and at the end of 30 years, there would be enough money in CHAIRMAN: Are you ready for the question? All those the sinking fund to pay back. Well, it didn’t always work in favor of the motion to pass paragraph three of the pro that way. Sometimes you lost money in your investments posed Section No. 10 as amended, please signify by saying of the sinking fund, so when the 30 years came up, you “aye.” Opposed. Carried. didn’t have the money anyhow. So it was felt better to re Ready for the next section? The motion is in order. quire every - - us to pay back in installments, so much a year in substantially equal installments and not build up KAM: I move that Section - - paragraph four of Section the sinking fund with its great dangers, because the bigger 10 be tentatively approved. your sinking fund and the bigger loss you take in some in HOLROYDE: I second that. vestments, the harder it is to pay it back later. So con sidering every angle pro and con, it was felt that it was CHAIRMAN: Any discussion? If not, are we ready for better for the Territory and the counties to try to pay back the question? their debts in annual installments than to try to build up a WHITE: I have one amendment I would like to propose huge slush fund to pay back at the end of a long period. to that on the one, two, three, four, five, six, on the sev Have I made myself clear? enth line. To delete the words “on behalf of, “ so that it H. RICE: That’s quite clear, very clear. would read: “provided that the aggregate of the debts con tracted by any political subdivision during any fiscal year CHAIRMAN: Are you ready for the question? All those shall not exceed two per cent.” in favor of the motion, please signify by saying “aye.” CHAIRMAN: Do you make that in the form of a motion? Opposed. Carried. WHITE: I make that in the form of a motion. CROSS LEY: I now move that we adopt paragraph six of Section 10. CHAIRMAN: Is there any second? WOOLAWAY: I second that motion. CROSSLEY: Second the motion. CHAIRMAN: Any discussion? CHAIRMAN: Any discussion on the proposed amendment to paragraph four? U not, are we ready for the question? DELEGATE: Question. All those in favor of the proposed amendment suggested by CHAIRMAN: Are you ready for the question? All those Delegate White please signify by saying “aye.” Opposed. in favor of the motion, please signify by saying “aye.” Carried. Opposed. Carried. June 22, 1950 • Morning Session 481 WOOLAWAY: I move that we tentatively adopt paragraph CROSSLEY: I believe the proper procedure would be to seven. adopt the original Section 7 first and then offer an amend ment. CROSSLEY: I second the motion. CHAIRMAN: That’s correct. CHAIRMAN: Any discussion? Are you ready for the question? All those in favor of the motion please signify by CROSS LEY: I so move. saying “aye.” Opposed. Carried. ANTHONY: Second the motion: CROSSLEY: I move for adoption of paragraph eight. CHAIRMAN: And now you, Delegate White. WOOLAWAY: I second that motion. WHITE: Then I move to adopt it - - I move to amend it CHAIRMAN: Any discussion? If not, are you ready for so that it reads as per this copy. the question? DELEGATE: I second that motion. DELEGATE: Question. CHAIRMAN: Any discussion? CHAIRMAN: All those in favor of the passage of para ANThONY: Perhaps the section as amended should be graph eight, please signify by saying “aye.” Opposed. read by the chairman of the committee. Carried. CHAIRMAN: I believe it should be done; yes, Mr. White, CROSSLEY: I believe this completes the section. I now will you please read that? move for the adoption of Section 10 in its entirety, as amended. WHITE: Well it reads here, “Section 7, Expenditure of WOOLAWAY: I second that motion. money. The legislature shall provide means for the control of the rate of expenditures of appropriated State moneys, and CHAIRMAN: Any discussion? for the reduction of such expenditures in such manner and NIELSEN: Before that is moved on, I think we should under such conditions as it may prescribe.” have in our tax structure something to this effect, that real SAKAKIHARA: May I ask the chairman a question? I’m property shall be assessed for taxation under general laws in accord with this amendment, but is it necessary to have and by uniform rules. At present, that is not being done. this section incorporated in this Constitution? DELEGATE: Not in this section. WHITE: We feel that it is, to provide that the legislature NIELSEN: Well, where would we put it? will have and should make provision for the control of ex DELEGATE: At the first. penditures during the period when the legislature is not in session, because I feel that that may be a very necessary NIELSEN: Well, somewhere in this before we adopt this thing in those periods. All that this permits them to do, entire setup. Delegate Sakakihara, is what is now done under the present CHAIRMAN: Any further discussion? Are we ready for Budget Bureau, only by not spelling it out the way we did the question? in our original thing, it gives the legislature the opportunity to change it from time to time to meet changing conditions. DELEGATE: Question. SAKAKIHARA: I’m in accord with the assumptions set CHAIRMAN: All those in favor of the motion please out in your amendment, Delegate White, but I thought it signify by saying “aye.” Opposed. Carried. might be within the province of the legislature, rather than WHITE: I would just like to call attention to one thing. to instruct the legislature what to do. We have made some revisions in the section, so after we ANTHONY: I think this does not attempt to instruct the cover a couple of other points, I think we would have to go legislature. It just sets the framework within which this back and renumber this particular section. Convention thinks that the legislature should operate. I CHAIRMAN: Well, that can be done later. think it’s a very good amendment. WHITE: All right. TAVARES: May I add one other further note of explana In our action the other night, Section 7 was eliminated. tion. As we all know, a provision like this is not seif-exe - In reviewing the thing further, I am willing to admit that cuting until after the legislature has acted. As I interpret there was a lot in Section 7 which was really statutory in this section, if the legislature had not passed a budget law, nature, but I do feel that we should make some provision for as it already has, we couldn’t force the legislature to do it the allocation of funds and the control of expenditures when by mandamus; but once the legislature has passed a budget the legislature is not in session, and I have discussed this law, as I interpret this, they could not repeal it without with the chairman of the Legislative Committee, and he putting a substitute in its place that would reasonably take agrees. So if I could get some good-hearted soul to move care of the situation of budgeting, and that is therefore for - - some safeguard against an entire repeal of the budget law ANTHONY: Mr. Chairman. someday. CHAIRMAN: Are you through, Delegate White? ROBERTS: Would the chairman of the committee please explain the words, “shall provide.” I construe that language ANTHONY: Will the delegate yield? I move that we re to be a mandate to the legislature. consider Section 7 in order for the chairman of the com mittee to present his problem. WHITE: I thought Mr. Tavares just explained that, that if the legislature didn’t take any action to provide for a meth CROSSLEY: I second it. od of controlling those, there’s nothing that could be done CHAIRMAN: All those in favor of the motion to recon to force them to do it. On the other hand, if they once sider our action taken on Section 7, please signify by saying adopted an act, well then it would be necessary for them to “aye.” Opposed. Carried. Section 7 is now before the always make provision for it. committee. MAU: As I view it, this is purely legislative. Whenever WHITE: I’ve furnished all of the delegates with a copy the legislature makes appropriations, it can say how that of the proposed Section 7, and I would like to move the money shall be spent and at what rate. This goes to merely adoption of it. a further prescription limiting the power of the legislature. 482 TAXATION AND FINANCE Just like the original Section 7, it is purely legislative and Within such period of time prior to the opening of each takes - - usurps part of the legislative powers. regular session of the legislature as may be prescribed WRITE: As I mentioned in the beginning, I have re by law, the governor shall submit to the legislature a viewed this with the chairman of the Legislative Committee, budget setting forth a complete plan of proposed general and he thinks that it’s very much on order. fund expenditures and receipts of the State for the next ensuing fiscal period, together with such other informa CHAIRMAN: Are there any further discussions? tion as the legislature may require. The budget shall ROBERTS: May I ask a question - - further question? U be compiled in two parts, one of which shall set forth all it’s a matter of legislative power, why doesn’t it go in the operating expenditures proposed for the ensuing fiscal legislative article? period and the other shall set forth all capital improve CHAIRMAN: Delegate White. ments expenditures proposed to be undertaken during said period. The governor shall also submit bills to WRITE: The only reason it is, it ties in with the pro authorize such proposed expenditures and for new or ad visions that we have here on budgetary procedure. ditional revenues or for borrowings by which the pro CHAIRMAN: Well, I’d like to ask a question. What dif posed expenditures are to be funded, which bills shall be ference is there between the Section 7 which was deleted introduced in the legislature as soon as practicable after and this section, outside of it being shorter? the opening of each session during which the budget is to b considered. HEEN: In the original draft, it spells out the method which is contained in this amendment, and that method CHAIRMAN: I think the proper motion - - should not be spelled out in the Constitution, because the CROSS LEY: I move the adoption of the original Section 1. time may come where you want to modify the method, so this one is a broad general provision which can be complied with TAVARES: Second the motion. this way or that way or any other way. SAKAKIHARA: May I ask for a recess so that we can intelligently study the amendment, the long amendment. CHAIRMAN: Are we ready for the question or is there further discussion? All those in favor of the motion to CHAIRMAN: Before putting the question, I think there adopt the amended Section 7 please signify by saying “aye.” should be a motion for the adoption of the amendment. Opposed. The motion carries. There has been no motion as yet. CROSSLEY: I now move that we adopt Section 7 as CROSSLEY: I move we adopt the amendment as proposed amended. by Mr. White, Delegate White. LAI: Second it. NIELSEN: Second that motion. CHAIRMAN: U there is no further discussion, the Chair CHAIRMAN: Now, Delegate Sakakihara, did you make a will put the question. All those in favor of the motion, motion? please signify by saying “aye.” Opposed. Carried. SAKAKIHARA: Yes, I ask at this time we take a brief recess subject to the call of the Chair so as to enable the WHITE: In the meeting the other night, also, we deferred delegates to study the amendments - - the long amendment. consideration of Section 4. I’d now like to move that Section 4 be deleted in its entirety. NIELSEN: May I call the attention of the Chair to the fact that we have two amendments now, and during this re CHAIRMAN: Any second? cess we study both the amendments to 1 and 2. CROSSLEY: I second the motion. CHAIRMAN: With that understanding, the Chair will de TAVARES: As the person whcr asked for deferment, I clare a short recess subject to the call of the Chair. also agree to the deletion. CHAIRMAN: U there is no further discussion, the Chair (RECESS) will put the question. All those in favor of the motion of deletion, please signify by saying “aye.” Opposed. Car CHAIRMAN: The amendment before the committee is at ried. your desk. There has been a motion made to amend Section I believe that takes care of all the sections, but, Dele 1 according to the page on your desk. Any discussion? gate White, you wanted to speak concerning 1 and 2? ROBERTS: An article dealing with the finance and tan WHITE: Yes. In the interest of eliminating unnecessary tion section was submitted yesterday. We had a statement wording in Section 1, that has been redrafted, and I’ve re from the committee that full and adequate consideration was viewed that with the chairman of the Legislative Committee, given to it. I think the article was well drafted and, as I and he believes it’s a decided improvement over the Sec recall, I supported the committee on the general idea that tion 1 that was adopted the other night. In the case of Sec there ought to be a budget presented by the governor, that tion 2, Section 2 has been worded to be consistent with the it ought to set forth the expenditures as well as develop new Section 1. ments of a capital budget. I also supported the idea that such appropriation bills shall be acted on first before addi LAI: I move to reconsider Section 1. tional appropriations were to be made. I think the language CROSSLEY: I second the motion. as we had it originally is good language, with the possible exception of one sentence. That sentence starts with line CHAIRMAN: All those in favor of the motion to recon seven - - eight, “For the preparation of the budget the vari sider action taken on Section i, please signify by saying ous departments, offices,” and so on to the end of that sen “aye.” Opposed. Carried. Section 1 is now before the tence. I don’t think that is necessary. I would therefore committee. suggest that we leave the section as it is, and I would pro WRITE: I’d like - - now like to move the adoption of the pose an amendment after this substitute proposal is sub new Section 1. mitted to delete that one sentence. I would therefore sug Section 1. The Budget - Operating and Capital Ex gest that the amendment proposed not be adopted. penditures. CHAIRMAN: Any further discussion? June 22, 1950 • Morning Session 483 HEEN: The amendment that has just been offered to FONG: Now, could you tell us as to how many jurisdic Section 1 does that very thing, to eliminate that paragraph tions have such a budget divided in this manner? that’s really not necessary in that section; and then there’s WHITE: No, I can’t answer that question offhand, Mr. been a little refinement of language used there in the rest Fong, but it’s a similar type of provision that is incorporated of the section. I think it is an improvement on the section in the Model Constitution. They haven’t spelled it out in as it was first drafted. two parts. They have dealt with the general appropriations ROBERTS: I may agree with the senator that it’s an im bill in the same way and have also dealt with submitting an provement. I think if it’s an improvement merely in lan over-all financing program. guage and style, I think that should be left to the Style Com mittee. It seems to me, after we have acted on an article FONG: Then is it the intent of the committee that this which was carefully prepared and presented, which we have budget divided into two parts, the operating budget and a given thought and consideration to and studied, to submit an capital expenditure budget, that the bills for these two additional changed article on the floor which requires addi items shall be passed first before any other expenditure - - tional time and study and is a matter only of language, it any other bill may be passed dealing with appropriations? should be left to the Style Committee. I agree that that one WHITE: No, only the general appropriation bill. sentence “For the preparation of the budget” to the end of that sentence is unnecessary and I think should be deleted. FONG: It’s all included in one? I would favor its deletion and leave it to the Style Committee WHITE: No. They are separate bills. That is the reason to see whether the proposed language is or is not preferable. for submitting them in two parts. If you’ll read paragraph ROLROYDE: I agree that fundamentally all this does is two, it only refers to the bill covering operating expenses exclude one sentence, but as the delegate said, it is an im which will be - - to be known as the general appropriations provement in the language and if it’s an improvement, let’s bill. vote for it. FONG: Thank you. CHAIRMAN: Any further discussion? ARASHIRO: It is my understanding that the way that the ROBERTS: May I make one further observation? We thing is worded here, “The budget shall be compiled in two are dealing with a finance section, a pretty technical pro parts, one of which shall set forth all operating expendi position. I don’t believe that all the delegates are sure tures,” and then it continues saying that, as we go down the that this is merely a matter of style. I agree generally it line it says, “set forth all capital improvements.” Does that appears that way. It seems to me a five or ten minute re “all” have something to do with restricting the legislature? cess on a matter of a finance article is pretty slim time. TAVARES: That is in the original section; the wording DELEGATE: Question. is changed for that - - the wording is practically identical FONG: I notice that this departs somewhat from the pre to what we approved in the original section, that part of it. sent operations of the legislature. I notice that in this There is nothing in here to restore any of the provisions budget there shall be two budgets, one is known as the op which were knocked out in the debate which prohibits the erating and the other is known as the capital expenditure legislature from changing any item in the - - in either - - budget. Now may I ask, why is the capital expenditure in any of those bills. There is nothing to restore that. The budget submitted? For what purpose, may I ask? only purpose was to refine the language a little bit, and not change the sense in any way. WHITE: Is it what? ARASHIRO: What I’m referring to is that - - of course FONG: Why are you cutting this budget into two? we have the power to change the figure from one fund to the WHITE: Well, because the purpose of it is to separate the other, but the thing is, when it says “all operating” that capital from the general appropriations bill so that under means we cannot appropriate new - - Section 2, which was passed the other night, you can act TAVARES: The word “all” means all that the governor immediately on the general appropriations bill. can think of, but it doesn’t mean all that the legislature can FONG: Now, is it for the purpose of probably retarding think of or that they want to put in. When we eliminated the legislature from asking for capital expenditures other Section 3, which we are not trying to restore, we gave the than that proposed by the governor? legislature full power to do what it does today, disregard WHITE: Oh, no, not at all. all or any part of what the governor has recommended and add anything they want to. FONG: Would this tend to deter a legislator from asking for capital expenditures which may not be included in a gov ARASHIRO: Will the committee have any objection in ernor’s budget? deleting the word “all” then? WHITE: All that this does is to require the governor to TAVARES: Don’t you want the governor to tell the leg submit an over-all program, the budget being made up in islature all of the things he wants to have them authorize two parts, one your general appropriation budget and the spending? That is to give the legislature the information other your capital improvement budget. The purpose of needed. They don’t want the governor to send the budget the thing is to have it divided into two parts so that the gen in piecemeal. They want it all in. eral appropriations bill will be acted on first. HAYES: A point of information. It doesn’t mean that the FONG: And in this capital expenditure budget, the gov legislature has to pass everything the governor wants to do, ernor will propose as to how that money - - where the money does it? I think that is a question, that maybe he is - - is coming from, whether it’s from sale of bonds or whether it is from the revenues of the territory. Is that right? WHITE: The governor submits the general appropriations bill and the legislature may amend it in any way that it wants WHITE: That’s right, or whether new taxes will be re by deleting items or adding items. The only requirement quired in order to fund it. In other words, he submits a is that it pass the general appropriations bill first. program together with the plan of financing it. Now it’s up to the legislature to either approve or disapprove of that MAU: Much of this is purely legislative, like most of the plan or adopt any other appropriations that they want. It proposals and - - but I think my voice is like a voice in the doesn’t tie the hands of the legislature in any way. wilderness, but I just want to make that observation. 484 TAXATION AND FINANCE ROBERTS: I think we acted on this thing yesterday. We ginning, “The budget shall be compiled in two parts” until indicated our support for a submission of a budget which the end of the paragraph. Any second? If not, the only mo provides both operating and capital expenditures. We have tion before the committee is the adoption of the amendment supported that and I think it was good. There may be some proposed by Delegate White to Section 1. Are you ready legislative matters in there. I think it’s good policy, how for the question? ever, and if we want it in the Constitution, we should have it in, and we so voted. I’m not against the proposal. I’m MAU: I second the motion. merely suggesting if it is a matter of style and drafting of CHAIRMAN: You second the motion? The motion has language on a technical financial section, we have a number been seconded that the phrase beginning, “The budget shall of the members who worked on this thing in the Style Corn be compiled in two parts” until the end of the sentence be mittee~ It will give us a little additional time to look it deleted. Is there any discussion? Question? All right. over and see if it is just a matter of style as is claimed, All those in favor - - and I have no reason to doubt it. It seems to me, however, that the only action, in substance, is for the deletion of the HOLROYDE: It seems to me the deletion of that elim words, “For the preparation of the budget, various depart inates or is ineffective as far as the Section 2 is concerned. ments, offices, and agencies shall furnish the governor The idea for dividing that budget into two parts is so that such information in such form as he may require.” I be the appropriation operating expenditure bill can be handled lieve it should go out of that section. expeditiously. This way you have to combine both of them and it makes it a much more difficult problem. HEEN: If we adopt this refinement of language here, it will save the Committee on Style a lot of trouble. CHAIRMAN: Are you ready for the question? All those in favor of the proposed amendment to the amendment, CHAIRMAN: Are you ready for the question? please signify by saying “aye.” Opposed. The motion SAKAKIHARA: Question. failed. The motion before the committee is the adoption of the CHAIRMAN: The question is the adoption of the pro amendment. Are we ready for the question? posed amendment to Section 1. NELSEN: I have an amendment that I’d like to introduce FONG: I notice that in this redraft of Section 1, the at this time. It will probably have to head the section of redraft does not state specifically that there will be two the proposal, so there might be renumbering necessary or bills, although it says the budget shall be submitted in two something like that. I’ll leave that to someone else. But parts. It also - - in Section 2 you will note that it refers to the amendment is, “Property shall be assessed for taxation the general appropriations bill. Now, nothing in Section 1 under general laws and by uniform rules.” differentiates between the operating budget and the capital expenditure budget. Now, how are you going to tie that in? TAVARES: Point of order. What is the explanation? CHAIRMAN: State your point of order. WHITE: Delegate Fong, Section 1 reads that, “The governor shall also submit bills to authorize such proposed TAVARES: It’s not germane to the subject. expenditures and for new or additional revenues or for bor CHAIRMAN: Delegate Nielsen, will you finish reading rowings by which the proposed expenditures are to be your proposed amendment. funded.” NIELSEN: “Property shall be assessed for taxation FONG: That’s very true. Now, in Section 2 you talk under general laws and by uniform rules. All real prop about a general appropriations bill. erty assessed and taxed locally or by the State for allot WHITE: That’s because the bill covering all operating ment and payment to taxing districts shall be assessed expenditures will be known as the general appropriations according to the same standard of value.” I so move. bill. SAKAKIHARA: Second. FONG: Where do you say that? TAVARES: I submit the point of order that the amend WHITE: Well, that’s why we put it in Section 2, to make ment - — sure. We can insert in here - - you can insert it in Section CHAIRMAN: Just one moment, Delegate Tavares. Did 1 if you think it’s necessary. “The budget shall be com you make a motion for the adoption of that thing that you read piled in two parts, one of which will set forth all operating expenditures proposed for the ensuing fiscal period to be NIELSEN: Well, I don’t want this Section 1 to be adopted known as the general appropriations bill.” and then be told that Section 1 is already adopted and I can’t introduce it. FONG: Well, I have your amendment to Section 2, I think that explains it all right. CHAIRMAN: Well, perhaps the point of order may be now stated. What is your point of order? CHAIRMAN: Are you ready for the question? SAKAKIHARA: I wish to offer an amendment to the TAVARES: I submit that this is an entirely new matter amendment. In the first paragraph, ending with line nine, and should be submitted as an amendment to the entire commencing with the paragraph - - sentence, “The budget proposal at any time before the entire proposal is adopted, shall be compiled,” I move that the same be deleted right and there is perfectly good opportunity after these sections down to “considered.” are considered for the gentleman to offer that as amendment to the article. CHAIRMAN: Down to where, Delegate Sakakthara? Oh, to the end of the sentence, is that it? CHAIRMAN: I believe the point is well taken, Delegate Nielsen. In other words the Chair feels, as stated by Dele SAKAKIHARA: End of the paragraph. gate Tavares, that after we have considered the entire pro CHAIRMAN: I can’t hear you, Delegate Sakakihara. posal, then if you desire to make that as an amendment to SAKAKIHARA: End of the paragraph. the proposal as Section 1—as I understand it, you want it before the beginning of this section—then all remaining sec CHAIRMAN: End of the paragraph. Is there any second tions will be numbered differently should the committee to that motion? The motion is to delete the sentence be- adopt your suggestion. 485 June 22, 1950 • Morning Session NIELSEN: All right, I’ll withdraw the motion at this your general appropriation bilL There is a lot of bickering. time. There is a lot of work to your general appropriation bill. Your appropriation bill carries a sum of around ninety to a CHAIRMAN: Therefore, the only motion before the hundred million dollars. I can foresee that within the next committee at this time is the adoption of the amendment biennium probably your appropriation bill will be around a proposed by Delegate White. Are we ready for the question? hundred million dollars. Now, you have various depart All those in favor of the amendment please signify by saying ments. You have all these departments. You have to call “aye.” Opposed. The motion is carried. the department heads before you and the department heads HOLROYDE: I move Section 1 be adopted as amended. come to the House of Representative and tell the House of WOOLAWAY: I second that motion. Representative one story. The House passes it, it goes - - the same department head may go to the Senate, tell the CHAIRMAN: Any discussion? Senate a story, and the Senate may have a different idea on the whole situation. NIELSEN: I move that Section 1 be amended as follows: Now, in our legislative history we have found that sixty “Property shall be assessed for taxation under general days are insufficient for us to really get down and work on laws and by uniform rules. All real property assessed an appropriation bill so that within the sixtieth day we could and taxed locally or by the State for allotment and payment very well say we all agree to it. We have found out within to taxing districts shall be assessed according to the same the past few sessions that the appropriation bill has always standard of value.” I so move. been the last measure, and has always been the first meas DELEGATE: Second the motion. ure which has been taken up by the Finance Committee of CROSSLEY: Point of order. the House and the Ways and Means Committee of the Senate. Now you will note, for those of you who have been in the CHAIRMAN: Point of order. legislature, that the Finance Committee as its first project CROSS LEY: I believe the same point of order as stated works on the appropriation bill. It keeps on working on the before now applies. This amendment that Delegate Nielsen appropriation bill till almost the fortieth day of the session. is trying to make to Section 1 is not germane to that section The members of the Senate Finance Committee also work at all. on their Ways and Means Committee bill, and they consume a lot of time, probably another thirty to forty days. Now CHAIRMAN: Delegate Nielsen, it was the understanding that means that for thirty to forty days your whole session of the Chair that you had withdrawn your amendment and will be tied up. that, pending the final adoption of the proposal, you would This here, this section is put into the Constitution only make your amendment. This present motion is now to for the purpose of holding down appropriations for some adopt Section 1 as amended. It is still the same section. other project. The practical working of this section, if en NIELSEN: All right, I’ll withdraw it at this time. acted, will mean that no other bill will be considered deal ing with appropriations. No bill could be passed that car CHAIRMAN: Then are we ready for the question? All ries an appropriation unless the governor says that he wants those in favor of the motion please signify by saying “aye.” it. That means that you will only have probably ten days or Opposed. Carried. twenty days out of a sixty day session to consider appro CROSSLEY: I now move that we reconsider our action priation bills for other worthwhile projects, and I submit to on Section 2, Proposal 10. this Convention that ten or twenty days for the discussion APOLIONA: I second that motion. of other bills carrying appropriation for this whole Terri tory for a biennium is insufficient. CHAIRMAN: All those in favor of the motion to recon Our Legislative Committee will bring forth a provision sider action taken on Section 2, please signify by saying stating that the session will be sixty days and that the ap “aye.” Opposed. Carried. propriation session - - that the budget session will be only Section 2 is before the committee. for thirty days. Now with the sixty day session, I cannot CROSSLEY: I now move the adoption of Section 2. conceive of any legislature having sufficient time to pass other appropriation bills after they get through the appro YAMAMOTO: I second the motion. priation bill of - - the general budget bill. So the only reason WHITE: I would like to propose an amendment which has why this is put in that I can see in my experience in the leg been presented to the various delegates reading: “Section 2, islature is to hog-tie your legislature so that they will not Legislative appropriation procedure. No appropriation bill, be able to pass any other bill dealing with appropriations. other than bills to cover the expenses of the legislature, If they are able to pass any bill dealing with appropriations, shall be passed on final reading by either house until the bill the bills will be very, very few. authorizing operating expenditures for the ensuing fiscal peri TAVARES: We have been all through this before and k’s od, to be known as the general appropriations bill, shall have the same old argument. The argument is not correct, and been transmitted to the governor, unless the governor has I think we all understand that. There is nothing to prevent recommended the immediate passage of such appropriation one house passing appropriations of - - other appropriation bill.” bills on third reading. The only thing is, whichever house CROSSLEY: I second that motion for the adoption of the has the final reading can’t pass those bills on final reading, amendment. as was explained before, until this appropriations bill has gone through. We all know that the big fight on the appro CHAIRMAN: We are discussing this amendment. priations blll comes on second reading when the committee FONG: I move that the whole Section 2 be deleted from reports come out. There is nothing to prevent any house this proposal. from passing any bill on second reading and even on third reading so long as it is not the final reading. I submit that SAKAKIHARA: I second the motion. the reasons given originally for this section, which has not FONG: The reason for asking the deletion of this Section been changed except to add a definition of “appropriations 2 is that I feel that this section encroaches upon the preroga bill” because we took it out of Section 1, the same argument tive of your legislature. Now all of you who have been in that justified this delegation passing it the first time justi the legislature know that it takes from 40 to 50 days to pass fies it passing it this time. 486 TAXATION AND FINANCE MAU: In addition to the arguments made by the delegate Now, nor will it hold up the work of the other finance from the fifth district in support of his motion, I repeat my bills. There is nothing at all, as Delegate Tavares pointed same objections, Your Honor - - Mr. Chairman- - out awhile ago, to hold up the work on other finance bills. CHAIRMAN: Thank you. They can go ahead, they can even pass one house. The only thing they can’t do is they can’t pass final reading, can’t be MAU: - - that this is purely legislative; this is an at adopted by both houses, and the work can progress, and as tempt to usurp some of the powers of the legislature; it is a matter of fact, in my estimation and from my experience, dictation to the legislature. It attempts to circumscribe the it will progress much faster. legislature within the sphere of financing the Territory - - the State. It seems to me that the methods of financing the H. RICE: In 1947 we had a House 15-is. It didn’t hold State should be left entirely in the hands of the legislature. back the appropriation bill because we introduced the ap propriation bill in the Senate at that time knowing that they SAKAKIHARA: As we have stated here the other night in were deadlocked in the House and we went along. There Committee of the Whole and strenuously opposed Section 2 is no reason the appropriation bill shouldn’t be introduced in its original form, Section 2 is a mere duplication of that in both houses at the same time. I think we want to be section. I am strongly in opposition to Section 2 as worded fair with our new chief executive, whoever he is, as the here. We are having the Committee on Legislative Powers governor of the fifthieth State of Hawaii. He shouldn’t have and Functions reporting out a committee proposal providing a lot of bills coming up with cash and have a run against for an annual budgetary session, confining its work prima the treasury before the departments are well cared for, rily to budgetary session. Now comes the Committee on and I know from my past experience. In the twenty-four Taxation and Finance and says to the legislative branch of years I was in the Senate I always sat on the Ways and the government, “You shall pass no appropriation bill other Means Committee, and I want to tell you they could have than that submitted to you by the governor in two parts.” put that bill out in thirty days if they had put their shoulders I [wonder] whether many of the delegates here who have to it. And we would have been in better financial shape not had experience in the legislature [realize] what hardship maybe today if they had done it that way. it means to the members of the legislature to work on a budget. Oftentimes it takes between 30 and 45 days for the CHAIRMAN: Are we ready for the question or is there appropriation bill to pass the legislature. And yet the ex any further discussion? All those in favor of the motion to ecutive branch of the government will tell the legislature, delete the proposed amendment please signify by saying “You shall pass no law pertaining to appropriations unless “aye.” Opposed. I believe the - - you have passed and transmitted to this department a gen eral appropriations bill and capital expenditure bill.” Who FONG: We ask for a show of - - ask for a roll call. elects the legislature? The people who elected - - the same CHAIRMAN: Is there a sufficient number for roll call? people who elected the governor of Hawaii. Certainly it is It’s sufficient. Roll call is demanded. Madam Clerk, an encroachment upon the privilege and the prerogatives of please call the roll. The amendment is - - the motion is the legislature. to delete Section 2 as proposed in this amendment. I wonder, and I am getting very suspicious of the movants, why they are so concerned to see that the general appro Ayes, 22. Noes, 35 (Akau, Anthony, Apoliona, Arashiro, priations bill and the capital expenditure bills pass the leg Bryan, Castro, Cockett, Corbett, Crossley, Dowson, Heen, islature first. Certainly, the movants must be prompted by Holroyde, Kage, Kam, Kanemaru, Kawakami, Kellerman, King, Kometani, Lai, Larsen, Mau, Mizuha, Porteus, some reason unknown to those who stand between centralized government and the people’s in this Constitutional Convention. H. Rice, Richards, Roberts, Shimamura, Smith, Tavares, A. Trask, White, Wist, Woolaway, and .Lee). Not voting, There has been moved here time and again, when the Com 6 (Gilliland, Loper, Phillips, C. Rice, Sakai, Wirtz). mittee of the Whole tried to elect officers, “No, no, we want you to centralize the power in one man, this great CHAIRMAN: The motion failed. governor, whoever he may be, the governor of the State of The question before the committee is the adoption of the Hawaii. We do not trust you to select the department heads amendment. Is there any further discussion? Are you or the principal department executives who shall be appointed ready for the question? All those in favor of the adoption by the governor with the confirmation of the Senate.” of Section 2 signify by saying “aye?’ Opposed. The ayes I submit that this Section 2, which encroaches upon the have it. rights of the legislative branch of government, should not CROSSLEY: I now move the adoption of Section 2 as be enacted. And I urge upon you, some of you who may be amended. aspiring for legislative offices in the future years to come, when we are a state, you will regret to say that you have WOOLAWAY: I second that motion. taken part in this Convention, that you have taken part in this Convention to incorportate this section, a very vicious CHAIRMAN: The motion is to adopt Section 2 as amended. section, in your Constitution by mandating your legislature Is there any further discussion? Are you ready for the that you shall do this and you cannot do that unless you have question? All those in favor of the motion please signify by first passed the appropriation bills as submitted to you by saying “aye.” Opposed. Motion is carried. Section 2 as this great dictator, the governor of Hawaii. amended is now &pproved. CROSSLEY: I’d like to speak only briefly to this point. KING: I would like to make the pro forma motion that I am one of those who has had some experience in the leg we now adopt the proposal as amended and then give Mr. islature and I am speaking in favor of the amendment. I do Nielsen an opportunity to make his proposal. not see any place in here a centralization of power. It CHAIRMAN: Any second? doesn’t say that the governor !has any special powers under this section. It simply says that the appropriation bill, as KING: I so move. I read this section, will no longer be the political football NIELSEN: I wish to make the following amendment to that it has always been, that is, held up until the last day, Section 1 - - no, Section 9 would be a better place for it, the last hours until everything also has been squeezed out I believe, Section 9 “Property shall be assessed for taxa that those who want to squeeze can do. It would help a tion under general laws and by uniform rules. All real great deal if this bill could be expedited and pushed out property assessed and taxed locally or by the State for allot ahead. ment and payment to taxing districts shall be assessed ac 487 June 22, 1950 • Morning Session cording to the same standard of values.” Constitution, placed that article as the first paragraph in May I speak on this? its article on taxation and finance. They thought it was important. They gave very careful consideration and study CHAIRMAN: Wait, there has to be a motion. to those problems as well. I thiak we ought to consider this. SILVA: I second that motion. Since, however, it is a new idea thrust upon the Conven CROSSLEY: Point of order. tion, I would suggest that we have a little further discussion on this problem and see where the merits lie. On first HOLROYDE: Point of order. look at this thing, it conforms fairly well to some other CHAIRMAN: Delegate Crossley, state your point. state constitutions. It deals with a very specific problem with regard to the general laws and application by uniform CROSSLEY: Section 9 had already been voted upon. rules which is protected now, which has been the practice. Therefore, if this new amendment is to be added to Section In writing a constitution, you want to put certain good prac 9, I suggest to the movant that we vote on the section, then tice, if it is fundamental, into our Constitution. I can per find the place for it. sonally see no objection to putting it in, unless I hear some NIELSEN: That’s all right to do that. further argument to the contrary. CHAIRMAN: I believe the point is well taken. You could NIELSEN: May I answer? I want to take exception to call it 9A if you desire or something along that line, to pro Delegate Tavares’ remark that things have been perfect pose a new section called 9A. under the Organic Act. I come from the small district of NIELSEN: I agree to that. Kona, but I can show you coffee land where there is simply a street between it or a highway, the same value of land both CHAIRMAN: It’s been moved and seconded that a new sides of the highway, and one is assessed at $50 an acre section called Section 9A be added to the proposal. Now and the other at $100. I can show you plenty of instances I’m not sure whether the members of the committee under where things are not equal and the standard value is not stand the proposed amendment. Have the members re maintained. ceived copies of the amendment? TAVARES: In answer to that I have only to say this. Our NIELSEN: The amendment is on everyone’s desk. May present laws require equalization, and if those properties I talk on it for a minute or two? are not equalized, the only reason for it is that the owners CHAIRMAN: I’d like to have one of those amendments so are too lazy or unwilling to go into the Tax Appeal Court that I might follow. The Chair doesn’t have a copy. Please and the court and get justice. The only reason for that is proceed, Delegate Nielsen. Go ahead. not the defect of thd law but the defect of enforcement, which can’t be taken care of anyway even under a Constitu NIELSEN: The reason for introducing this is that this is tion unless people are willing to go in andprotect their a taxation bill and I don’t see anywhere a thing to protect the rights. taxpayer or that the taxation assessments shall be equal or And furthermore, I’d like to say one more thing. There the same standards of values shall be used in making these isn’t one state in the United States that has the state-wide assessments. I think that that is certainly a constitutional system of assessment that we have and that is the real jus provision that we should have in the Constitution. tification of requiring that in the State Constitution. New Jersey has counties, I’m sure, that have separate assess TAVARES: When the committee originally was discussing ment setups. We have a state-wide setup that comes from the proposal, it had a tentative provision along the same the very operation of things. The same group making the line. However, it was called to the attention of the commit assessment must come a lot closer to an equalized assess tee by the Attorney General’s Office that there is no such ment that any state can, and that is another reason why it provision in our Hawaiian Organic Act. And yet I can say, isn’t necessary. I believe, without fear of successful contradiction that the Territory of Hawaii today has the finest and most equitable H. RICE: I would just like to ask the last speaker a state-wide assessment law for real property in the United question. Don’t you think, Delegate Tavares, if you had States without exception, and we didn’t have to have it in something like this it might have helped you get the values our Organic Act to ntãke us do that. of the ranch lands on Hawaii on an equal basis with Maui? In the first place, we have in the United States Constitu TAVARES: I don’t think so because it was just a matter tion and in the Bill of Rights, which we have already adopted, of going into court and getting it settled. And if that had been a provision requiring equal protection of the laws, and if any sufficiently unequal to require such a uniformity, it could assessment system goes very much out of line - - substan have been held unconstitutional under the equal protection tially out of line so as to produce an inequality, it will be of the laws clause. knocked out as most - - many tax laws have been knocked out But actually a clause like this might actually cause on the basis of violating the equal protection of the laws trouble between counties. I think if we draw a clause like clause of the Constitution. You can have reasonable classi this, we may have to draw some exceptions to it, and it fication, but the classification must be backed up by sound will take a lot more study, as I think Delegate Roberts grounds which absolutely justify any discrimination, and pointed out, to study the impact of that on our own laws. attempts to unduly discriminate in that respect don’t need I say this, and as I say I’ve been associated with the tax such a clause other than the equal protection clauses of our laws for some time, I don’t contend that they are perfect. own Bill of Rights and the United States Constitution. And, I don’t contend they operate perfectly. I do contend that the therefore, I consider it unnecessary and it was finally left out for that reason. system is a system which can be made to operate more nearly perfectly and does operate more nearly perfectly than ROBERTS: I’d like to suggest that we give very serious any state of the Union because of our state-wide system of consideration to this article. The only argument so far assessment by one centralized assessing group which can’t presented against it is that we don’t need it, that we have be done in the various states because they have an assessor been well taken care of under the Organic Act. We are for every county or an assessor for every district under writing a new Constitution. We are writing a Constitution separate control, and they try to get equalization by a state to protect the State of Hawaii and its people. This section board of equalization which must take appeals up first. But is not a section unfounded in state constitutions. I suggest here we do the equalization in the first instance by having that the State of New Jersey, which recently revised its the same people do it all over the territory. 488 TAXATION AND FINANCE WHITE: I would just like to add that the problem that I ANTHONY: That is correct. think Mr. Nielsen - - that Delegate Nielsen raises here is one of administration and there isn’t anything that you could NIELSEN: Well, I’d be glad to accept that amendment. put in the Constitution that would correct that. Any provi ANTHONY: If that’s acceptable to the Convention, I’ll siop that you put in here would still require good adminis make it in the form of a motion, that Committee Proposal tration to make sure that you are having equitable assess No. 1 [i. e. 101, Section 1 be amended to read as follows. ment. Nine, is it 9, Mr. Chairman? NIELSEN: May I answer that? This will require that LARSEN: 9A. the legislature pass laws regarding taxation that are equita CHAIRMAN: It’s a new section called 9A. ble to all the people. WHITE: Better call it 9A and let the Style Committee SHIMAMURA: The only argument so far I’ve heard work it out. against this section is the fact that it’s not necessary. Is there any objection to that section itself as such? ANTHONY: Let Section 9A be added to read as follows: “9A. All property shall be assessed for taxation under gen FONG: This morning we argued a lot about the general eral laws and by uniform rules and standards.” laws. I noticed Mr. Tavares arguing like anything that we should have a general law dealing with public lands. Now CHAIRMAN: Did you make that in the form of a motion, here we have the same situation, general laws of taxation. Mr. Anthony? Did you second it, Delegate Nielsen? What’s the difference? NIELSEN: I’ll second the motion. CHAIRMAN: That’s correct. The Chair might say TAVARES: I am sorry that I cannot say that I am sat “touche.” isfied as yet with this provision. It may be that the gentle SAKAKIHARA: I don’t see any harm in adopting this men proposing the amendment have in mind the questions resolution. It gives a constitutional guarantee to every in my mind and they are settled in their minds. But unfor property owner in the future State of Hawaii. tunately I am not sure of the effect of this clause on taxing of incomes and various other types of, in a sense, property, TAVARES: There is a further defect in this proposition, and I think it deserves a little study. What effect does a and that is, “taxed locally” seems to imply that we have a provision like this, without something on income taxes, have local taxing power, which we don’t have, and until and un on our right to have different rates of income taxes on dif less we insert that in the county or local government section, ferent amounts of income and various other things? I think this might be an implied recognition of taxing power ANTHONY: May I answer that question? This does not by local jurisdictions. That is why I say we can’t adopt this relate to the income tax. This relates to property taxes thing. If the delegates here want to adopt it, it calls for only. little more careful study. TAVARES: I’ll ask the gentleman if the first income SHIMAMURA: I’m wondering as to the meaning of “tax tax law passed by the United States was not thrown out be ing districts” and also as to “the same standard of value.” cause it wasn’t apportioned according to population. I am in favor of this proposed section in principle, but I’m wondering as to the meaning of certain words, as I’ve said. ANTHONY: That is right. That’s because of the pro hibition in the Federal Constitution, all taxes shall be ap WHITE: I would just like to say that I think I express the portioned among several states. It required the Sixteenth views of the committee that we wouldn’t have any objection Amendment. We have no such prohibition. This amend to the insertion of a clause that carried out the intent of ment relates only to property taxes. It has nothing to do Delegate Nielsen’s amendment here, or proposal, except with either income or gross income. that I think that it would have to be corrected. We had a TAVARES: Well, I can’t vote for this without more provision almost identical with this, but left it out because study. I’m sorry but I can’t without looking that provision we were advised that it was unnecessary and we were try up myself know whether it means that. ing to save some space in the Constitution. If this section were amended to read, “Property shall be assessed for MIZUHA: Under this proposal it is well that several taxation under general laws and by uniform rules. All real questions be settled in order to avoid litigation in the future. property assessed and taxed shall be assessed according to First of all, will the provision for general laws provide for the same standard of value,” I would see no objection to in a different system of taxation of the properties of our public cluding it in the proposal. utilities? I would like to ask the proponent of that amend ment that question. Will the phrase, “general laws” and NIELSEN: I would be glad to accept - - “uniform rules and standards” permit a different rate of CHAIRMAN: You are willing to accept the - - taxation for the properties of our public utilities? NIELSEN: I’d be glad to accept that amendment. ANTHONY: Under existing law, as the delegate probably knows, property taxes are not assessed against public utility. ANTHONY: I’ve got an amendment here which I’d like to However, to answer his hypothetical question, there cer suggest, if it’s satisfactory to the committee and Delegate tainly could be a reasonable classification putting all prop Nielsen. The change is to reduce the proposed amendment erty of a utility in one classification and taxing that upon to one sentence. Insert the word “all” before the word a particular standard which should apply to every utility in “property,” and then at the end of the word “rules” in the the territory. At the present time, they are not subject to first sentence, insert the words “and standards.” That real property taxes. They pay five per cent on the gross sentence would then read as follows: “All property shall income, in lieu of property taxes. be assessed for taxation under general laws and by uniform rules and standards.” I don’t see how the chairman on taxa MIZUHA: Under the present taxation laws of this terri tion would have any objection to it. It seems to me it ac tory, various counties are allotted a certain amount that they complishes what Delegate Nielsen is talking about and cer could raise from real property taxation. And the value - - tainly is fair and equitable to everybody. assessed valuation of those properties in the various counties may differ, and as a result, the amounts allotted by the NIELSEN: Can I ask you a question? Would the “stan Territorial legislature by statute. In order for the various dards” mean “standards of value”? counties to raise the money or the ceiling they are allotted, June 22, 1950 • Morning Session 489 when they compute the rate per thousand, some counties have same regardless of who owns it. The little fellow can’t go to pay $28 per thousand on assessed valuation, other coun to the Tax Appeal Court when he owns five acres of coffee ties may have to pay $36 per thousand. Will this provision land, so he just pays through the nose. in the Constitution prevent that system of assessment? TAVARES: One more statement and I’m going to be si CHAIRMAN: Wouldyou care to answer that, Delegate lent. I am still not satisfied that what the delegate from Shimamura? the fourth district has said is necessarily correct. I have a great deal of respect for his learning and judgment, but SHIMAMURA: Well, that’s the same query I had. What I am not satisfied as to the result of the effect of this pro does the word “standard” exactly mean? Does it include vision on real property of a public utility. I am not satis rates? fied that we won’t be held to require - - to be required to CHAIRMAN: Well, there was one question that was put tax public utilities on an ad valorem basis instead of as we by Delegate Mizuha. Perhaps Delegate Anthony might an do now on a combined tax which takes care of and is in lieu swer that. of property taxes. It’s a gross income tax in lieu of prop ANTHONY: This proposed amendment does not go to the erty taxes, and real property of utilities is not taxed at all subject of rates. In other words, I think under this proposed today. I am not satisfied that this amendment won’t have some effect on that. amendment, there still could be a general rate established for the Island of Kauai in which the uniform standard and A. TRASK: We also have great respect for the learning regulation for assessments would be applicable. In other of Delegate Tavares and I second his motion for deferment. words, they would still have the same degree of flexibility I think if he, of all people, has any doubt about it, I think as to rates, in my judgment. we should accede to him. MIZUHA: Then it is contemplated that the phrase “uni CHAIRMAN: The motion has been made to defer action form rules and standards” are not applicable to rates for on the new section, entitled Section 9A. the various counties. KING: I request a short recess of about five minutes or CHAIRMAN: That is correct. ten minutes. TAVARES: I think the delegates can see that there are CHAIRMAN: Before the putting the motion to defer? questions here. As a matter of fact, other states, I be ANTHONY: Will the President yield for a moment? I lieve, are under the impression—I haven’t had time to was wondering if we could tentatively agree upon that. Then check it—have declared the income taxes unconstitutional. if the lawyers can settle the question in the meantime, well A note that I read here in one of the books I just hastily and good, and if in the meantime we have not agreed upon looked at says that the first federal income tax law was it, let’s all agree that we will move to reconsider it. Would declared unconstitutional because the Court held that a tax that be satisfactory to the delegate? on the income from land was a tax on the land. And I think it’s well worth studying, if we are going to take up this new KING: If we take a recess then the lawyers could dis point, before we pass it. I therefore move to defer this cuss it and withdraw the motion to defer. I request a short section until - - recess from five to ten minutes at the order of the Chair. CHAIRMAN: Later on? CHAIRMAN: Short recess, subject to call of the Chair. TAVARES: Later on. (RECESS) ANTHONY: This has nothing to do with income taxes. If the delegate thinks that It does, insert the word, “real CHAIRMAN: The question before the committee is 9A. property” in front - - “real” in front of “property.” The There is a motion to adopt 9A. difficulty with the income tax act of 1895 was that it was a direct tax not apportioned among the several states and it DELEGATE: Question. ran squarely afoul of the prohibition in the Federal Con CHAIRMAN: In fairness - - Are we ready? In fairness stitution, thus requiring the Sixteenth Amendment to vali to Mr. Tavares - - date the income tax. Now we needn’t get bogged down on SAKAKIHARA: Mr. Chairman. whether or not we are dealing with income taxes. We are not, here. CHAIRMAN: Well, I recognize Mr. Tavares. CHAIRMAN: In other words, Delegate Anthony, in order TAVARES: One more short statement and I’ll be through, to obviate that possible doubt, you are willing to amend and if the gentlemen want to vote on this sight unseen, it’s your proposed amendment to read, “All real properties - -“ all right with me. There is one provision here. On page 234 of the Legislative Manual, there is this statement: “In ANTHONY: “All real properties.” Illinois, Michigan, Pennsylvania, Tennessee, and Wash CHAIRMAN: “- - shall be assessed for taxation under ington, however, court decisions have prohibited graduated general laws and by uniform rules and standards.” Is that income taxes or classification of property, holding that agreeable to you, Delegate Nielsen? Delegate Nielsen, such measures violated the uniformity clause.” Until I Delegate Anthony has proposed the amendment to obiviate have read those decisions and know what this means, I can a possible doubt as to the construction of what “property” not vote for this provision. means, to add the word “real” before “property.” SAKAKIHARA: In all fairness to the delegate from the fourth district, I move that we defer action on proposal - - NIELSEN: Well, that’s what I had in mind, was real amendment offered by Delegate Nielsen. property. DELEGATE: Second the motion. CHAIRMAN: Well, that’s agreeable to you then? CHAIRMAN: Motion is made for deferral of this thing. NIELSEN: If you want it spelled out, that’s agreeable to Any discussion? All in favor of the motion please signify me. And I might say further that so far as the rates of the by saying “aye.” Opposed. Carried. different counties, the rate has nothing to do with this. This is so that the property will be assessed uniformly in the H. RICE: I move the committee rise now and report counties and according to rules and standards that are the progress and ask leave to sit again. 490 TAXATION AND FINANCE SAKAKIHARA: Second it. therefore cannot grant any exemptions unless the power to CHAIRMAN: Before putting that motion, I might say to do so is expressly reserved in the constitution, but this the Committee of the Whole that deciding this question of rule is not enforced with literal exactness.” Then there is 9A will probably settle this proposal. You heard the motion. another line of state decisions that says you can have limited All those in favor of - - exemptions and you can classify. But the point I make is that in the textbooks themselves, it indicates the courts are not BRYAN: I wonder if it wouldn’t be wise to change that uniform and one line of decisions actually says that that motion to authorize the chairman to begin preparation of kind of a provision might prevent you from leaving out of his Committee of the Whole report. taxation, and I say here it might prevent you from leaving CHAIRMAN: Well, your chairman will begin working on out of assessment for taxation under this provision one it without any authorization. All those in favor of the motion class of property, such as, as I pointed out, the public utili please signify by saying “aye.” Opposed. Carried. ty lands which are not taxed now under real property tax law because there is a tax in lieu of property taxes on their JUNE 23, 1950 • Afternoon Session gross income. And in view of that lack of uniformity, I think it would be very dangerous. CHAIRMAN: Committee of the Whole come to order. I We’ve got a house here; we have built on the firm rock believe we were discussing a proposed amendment offered of the provision of the Federal Constitution requiring equal by Delegate Nielsen entitled Section 9A. Delegate Tavares protection of the laws. The foundation is firm. We are was discussing the amendment, and I believe the committee going to now cut that foundation and stick a new foundation had deferred the action on Section 9A, and I wonder whether under it and we don’t know whether it will fit or not. Delegate Tavares would like to report to the committee at Now, Cooley on Taxation has substantially the same thing. this time on his finding. If the gentlemen would like me to read it, I will also read the citation from Cooley. But Cooley again points out this TAVARES: While some of the members were enjoying themselves at cocktails yesterday, I spent between two and lack of uniformity in the interpretation of this section and three hours, which is all the time I had available, looking the danger that some courts hold. The court might hold that you can’t classify. up as much law on this subject as I could find. This was the result of my studies. I found that there is no unanimity ANTHONY: I wonder if the speaker would yield to a in the state courts as to the meaning of clauses of this type question. providing for equality in assessment or taxation. I did not have time to do what a lawyer should do to give a final opin CHAIRMAN: I believe you will yield to a question, Dele ion and that is read every decision interpreting the various gate Tavares? constitutional provisions. I was only able to read general TAVARES: Certainly. texts like Cooley on Taxation, which all lawyers recognize ANTHONY: Has there been any decision discovered in as a leading authority, and American Jurisprudence which which the provision of uniformity is clearly designated and is one of the two great law encyclopedias. The result of refers to real property and the court has held that that pre my study was this. vents a graduated income tax? What I have in mind is, I Under the Federal Constitution, the provision requiring think those statutes do not differentiate between taxes gen equal protection of the laws, it is uniformly held that tax erally and taxes against real property. I think that is the payers are protected both against a statute which in its first thing to clarify here. terms unduly discriminates against any class or group of taxpayers without a reasonable ground for classification and TAVARES: That is the trouble, Mr. Chairman. I think, against an improper administration of a good law which is I think, I think, I don’t know, so I’m not saying I know. I so unequally administered as to produce a gross inequality don’t think this committee - - this delegation ought to go on, between people in the same class. It seems to me, there I think, I think. I haven’t had time to go into the decisions, fore, that the Federal Constitution, upon which by the way but I do say that under a general tax law, they have held this. we have built our entire tax structure, is ample to cover And, therefore, I say under a special tax law, you may not both of the angles which Delegate Nielsen wanted covered, be able to have exemptions from the real property tax as you namely, an unconstitutional law on its face or an unconstitu have today, unless you make these specific exemptions in tional unequal application of a good law, and putting such a your statutes, which was what we had to start with. And provision in our Constitution would not obviate the necessity we deleted it because we got so bogged down with exceptions, of going to court anyhow to see that it was properly admin “except that we can have exemptions for this and exemptions istered. But I’d like to read, if I may, from two of the for that.” We finally took the whole thing out on the theory, texts. as the Attorney General’s Office advised us, that there was CHAIRMAN: As a point of information, Delegate Tavares, ample protection in the Federal Constitution. you are pointing to the clause assessing real property, “un CHAIRMAN: Does that answer your question, Delegate der general laws.” Do you object to the phrase “under gen Anthony? eral laws” or the phrase, “by uniform rules and standards” ANTHONY: No, that does not. I just wanted an answer or to the entire - - to a simple question as to whether that sort of provision TAVARES: “According to uniform rules and standards” applied where there is a constitutional requirement of uni is a dangerous provision. Here is what American Juris formity relating to assessment of real property taxes. prudence says—I’ll give you the citation, Volume Si of TAVARES: I have found none that particularly have that American Jurisprudence, pp. 522-523—in Section 520 under specific language. But in two hours I couldn’t find it, and the heading, “Equality and uniformity,” under the title I don’t know whether there is one or not. “Taxation.” After saying that it is a universally accepted principle of taxation that taxes should be levied with equality CHAIRMAN: Any questions from the committee? Any further discussion? and uniformity and so forth, it goes on to say this, and I quote: “Many of the state constitutions contain express ROBERTS: I was one of the individuals yesterday who requirements of equality and uniformity or proportionality. asked to defer discussion on this. I think there are some In these states, according to one view, the legislature is doubts as to whether or not the uniformity section might bound to tax all property within its jurisdiction, and later prevent us from putting in certain types of taxes which June 23, 1950 • Afternoon Session 491 the courts might construe as being improper because they reason for that. It was Mr. Anthony who suggested it, I were not uniform in application, such as, possibly an in believe, and I think the interpretation is all right. heritance tax or graduated income tax. I believe unless we SHIMAMURA: I realize what Mr. Anthony feels. Does feel pretty sure that the article is safe, I would suggest he mean that he consents to the deletion of the words “and that we not have it in our Constitution. standards”? TAVARES: One more thought. I noticed in the Model CHAIRMAN: No, the answer was that the words “and Constitution they have no provision whatsoever of this type standards” were added. It was acceptable to him because of unifori~iity because I think they have had too much trouble he didn’t see anything wrong with the addition. That was his with it. answer. NIELSEN: In the judicial interpretation of this tax clause, which is taken from the New Jersey Constitution, SHIMAMURA: If I may speak a few moments longer. I the statement is made [The Governor’ s Committee on think the deletion of the words “and standards” makes it Preparatory Research for the New Jersey Constitution ambiguous. If you leave it as now approved, I think it makes Convention]: it less ambiguous. Even under the present Constitution, class taxation WHITE~ I’d like to ask Mr. Anthony a question, seeing is valid so long as there is compliance with the classifi that he favors this amendment. The words, “Real property cation rule that all reasonably within the class are in shall be assessed for taxation under general laws,” wouldn’t cluded; that uniformity prevails throughout the whole that be mandatory, that the real property of public utilities class; and that the property is taxed at true value. would have to be assessed unless you specifically exempt it? I think that answers the question of Mr. Anthony. ANTHONY: The way that could be handled is to recast Also I would like to quote this from it: this sentence and say: But classification must be of property according to its characteristics, or the use to which it is put, and not Such real property which is assessed for taxation according to the status of the owner, or the mere inci purposes shall be assessed according to general laws. dence of location of the property. Consistent with the That would accomplish what Delegate Nielsen has in mind right of classification is the Legislature’s power to and would very specifically and clearly permit the classifi prescribe different rates of tax for different classes of cation of such real property according to general laws, property, provided, always, that there is rate uniformity general classifications such as real estate of charitable within each class. Because real and personal property, institutions, real estate of public utilities. What the dele in legal contemplation, belong to different classes, a gate is trying to get in the Constitution, and I see no harm tax law may constitutionally affect one without affecting in it, is a simple, clear statement that there shall be equal the other. ity of assessment as to that real property which is in fact So it could be very easily interpreted by the legislature, being assessed. It certainly poses no difficulty as to net and uniform rules and standards can be maintained. [Tape income or gross income tax. I don’t feel seriously one inaudible. He said he was willing that the provision should way or another about it but apparently the delegate from apply only to real property, but he wanted to have it in Hawaii seems to think there has been some abuse and I can cluded in the taxation structure so that there would be some see no harm to it. thing said about taxation to the effect that it would be fair to all.] WHITE: I don’t think anybody has any fault with the in tention of the thing. Our concern revolves around the ques ANTHONY: I don’t think that we should arbitrarily re tion of whether it is going to be possible to operate under ject Mr. Nielsen’s amendment because of some general it. I had one further question that I wanted to ask Mr. An statement by Cooley on Taxation, that this might possibly thony and that is whether our present system of taxation on present a constitutional difficulty. We have to see the real property, under which we use the Somers System statute that he refers to and see whether or not it is the where the corner piece of property is taxed at a different kind of a statute that we are talking about here. Now we rate than the piece right next door, would fall within the can make this perfectly clear, that it applies only to real definition of the “same standard of value.” I think that is estate. That being so, it cannot apply to the income tax, a very serious question as to whether that would fall within either gross or net, and the report can so state. It can that. also be made abundantly clear in the report that there can be reasonable classifications so that when there is a public CHAIRMAN: Well, didn’t Delegate Anthony say it was utilities gross income tax which imposes a five per cent on just a question of reasonable classification? the net in lieu’of property taxes, you will take the public WHITE: No, he said according to uniform rules and utilities off the tax rolls for purpose of assessment. The according to the same standard of value. My own - - I’d principle is perfectly clear. All we have to do is to make just like to say that this committee started working with this up our mind whether or not we want to put a provision in in the first week of April and we struggled with it until about the Constitution for equality of assessment with respect to the fifteenth of May and we finally threw up our hands and real property. If we do, let us vote on it. Let’s not be decided we couldn’t write a provision that was going to cover fearful about the thing because of some possible state in every situation that we had in the territory here today, and terpretations of statutes whose text we do not have and that we therefore better leave it out of the Constitution and which it is not the intention of this body to be bound by. leave it to our legislature to pass necessary statutory laws. SHIMAMURA: The New Jersey Constitution doesn’t have CHAIRMAN: Delegate Mau has been seeking recognition, the words “and standards.” May I ask the proposer of this unless you are yielding to Delegate Anthony. amendment, the delegate from Hawaii, if he has any serious objection to the deletion of the words, “and standards” and MAU: I was just wondering how the amendment now reads. have it as the New Jersey Constitution has it and end with CHAIRMAN: The amendment as it now stands before the the words, “general law and uniform rule”? committee reads as follows: “All real property shall be NIELSEN: No, I accepted that amendment because Mr. assessed for taxation under general laws and by uniform White said he would go along with that change. That’s the rules and standards.” 492 TAXATION AND FINANCE MAU: One question as to the amendment. As I under Continuity of Laws, Section 4 reads that “The debts and lia stood it, Delegate Anthony interpreted it to read that under bilities of the Territory of Hawaii shall be assumed and that section, the legislature may make reasonable classifi - paid by the State of Hawaii and all debts owed to said Terri cation. tory of Hawaii shall be collected by said State.” Now, it CHAIRMAN: That’s what I - - the Chair understood. seems to me that that ought to be expanded to include any acts of the legislature of the Territory of Hawaii authorizing MAIl: That’s correct. the issuance of bonds by the Territory or its several NIELSEN: Could Mr. Anthony read that suggested counties also, because there are acts of the legislature change a little slower so I can get it down. that have already been taken and there may be bonds al ready printed and ready for issuance, and I would like to CHAIRMAN: Well, the only thing before the committee suggest that this addition be incorporated in the committee is this amendment that has been proposed, and you - - report for the purpose of calling it to the attention of the Delegate Anthony did not make it as a motion. All right. Committee on Ordinances and Continuity of Law. I could ANTHONY: I think we are wasting a lot of time here. turn this over to the Clerk to incorporate in the record or I don’t thing that with this proposed amendment the dele I could read the whole thing. gate from Hawaii will accomplish anything different than Ordinance Regarding Debts. All acts of the legisla under existing law, and I was wondering if he wouldn’t be ture of the Territory of Hawaii authorizing the issuance content to withdraw the proposed amendment so we could of bonds by the Territory, or its several counties, are go on. I think under existing law the thing he is driving at hereby approved, subject, however, to amendment or is mandated under the statutes. It’s just a question of en repeal by the legislature, and bonds may be issued by the forcement. Apparently the committee feels rather strongly State of Hawaii and its several counties, pursuant to about this. I’m not persuaded that their fears are well- said acts. Whenever in said acts the approval of the founded, but I would suggest to the delegate, even though I President of the United States or of the Congress of the supported him, that he withdraw his amendment. United States is required, the approval of the governor CHAIRMAN: Well, your point is this that under the of the State of Hawaii shall suffice. equal protection of the laws, that same interpretation of equal protection of the laws would be applied in this section. IDOl: I move that it be incorporated into the record. Is that your point, Delegate Anthony? CHAIRMAN: If there is no objection, will you turn that ANTHONY: That’s correct. [one sentence inaudible] over to the messenger to have it incorporated. All the objectives can be accomplished under the present Delegate Arashiro, did you seek recognition or didn’t Bill of Rights and under the existing statutes. you seek recognition? You are recognized if you seek recognition. NIELSEN: The existing statutes are unfair. You take the statute on exemption where part of the building is used ARASHIRO: I move that the committee reconsider the to live in, that part is charged to you in taxes the same as action taken in adopting the amended form of Section 2 of the commercial end of your building. I don’t think that Committee Proposal No. 10. is fair. If you have home exemption, it shouldn’t make any CHAIRMAN: Your motion is made to reconsider action difference whether you live upstairs, downstairs, in back taken on Section 2 of Committee Proposal No. 10. of your store, or where you live. You are entitled to home SAKAKIHARA: I second the motion. exemption the same as anyone else. I think that we could get a short sentence included in the Constitution. It would CHAIRMAN: All those in favor of reconsideration of the then be up to the tax commissioner and the legislature to action taken on Section 2 say “aye.” Opposed. The Chair maintain uniformly the standard value of tax assessment is in doubt. Perhaps if you might - - and also exemptions. That is the reason I would like to see ARASHIRO: The change won’t be much except that the something in the Constitution to this effect. last — — TAVARES: I want to say that the Attorney General’s WHITE: Point of order. As I recall, Mr. Arashiro Office is sincerely disturbed over this proposed provision. voted in the negative on this. Furthermore, I want to say that if the proposed addition by Delegate Nielsen has the effect he claims for it, its effect ARASHIRO: I voted for it. I am for it in principle, and will be to prevent classification rather than permit it, and I want this, except that I do not believe in the principle of actually, all exemptions are likely to go out and all other the last sentence where it reads “unless the governor has classifications. If it means what he says it means, then I recommended the immediate passage of such appropriation say let’s not have it because the legislature won’t even be bill.” I don’t think the governor should have this power over able to classify the way it does today. It goes too far if the legislature, and that is the reason I want to make a that is what it means. change to that so it will read, “unless the legislature by two-thirds vote of both houses shall recommend such appro CHAIRMAN: Well, are we ready for the question or priation bills.” This will not change the main thinking, only ready for discussion? All right. The question before the a matter of principle. committee i~ whether or not Section 9A shall be added to the proposal, Section 9A reading as follows: “All real property H. RICE: I went over this with Delegate Arashiro this shall be assessed for taxation under general laws and by morning. If you are the business manager of a concern, uniform rules and standards.” All those in favor of the mo you are the one that is supposed to suggest the changes tion please signify by saying “aye.” Opposed. The noes that are necessary, and in this case it is our chief execu have it. The motion failed. tive who suggests changes, and I think it ought to stand the The matter before the committee is the adoption of the way it is. proposal as amended. CHAIRMAN: Well, the Chair finds itself in this position. WHITE: This isn’t an amendment to the proposal, but A motion has been made to reconsider and the Chair is in I think it is something that should go into our committee doubt as to the vote, so in order to resolve that doubt, I report and I’d just like to explain it because I think it has ask all those in favor of the motion to reconsider, please some importance. On page 2 of Committee Report No. 24, raise your right hand. Will someone count? Opposed. which is the report of the Committee on Ordinances and The motion failed. June 23, 1950 • Afternoon Session 493 I have here Miscellaneous Communication No. 106 which CHAIRMAN: Just a moment. You have raised a point was referred to the Committee of the Whole considering of order, did you not? Taxation and Finance. This is a letter from Stanley Miya HEEN: That is correct. What I have in mind is this, that moto, Chairman of Joint Tax Study Committee, addressed I’m in agreement with this proposal in principle, but I think to Mr. King, which was referred to this committee. “En it ought to be put in as an amendment to - - No, I don’t know closed please find a statement relative to the debt limitation whether there is going to be an article on general provisions. clause in our proposed Constitution. Your consideration of If there is an article along that line, it could be placed there. the enclosed statement will be greatly appreciated. We have made enough copies to be distributed to the Convention CHAIRMAN: Delegate White sought recognition. By the delegates.” Have all the delegates received the communi way, Mr. Trask, you had the floor. The point of order cation? raised by Delegate Heen does not seem to me to be well taken, particularly in view of the fact that that proposal KING: Copies were delivered at the beginning of the dis was referred to the committee. However, the Chair, if cussion on the amendment to Section 10 of the current pro anyone desires to speak on that point of order, the Chair posal, and the communication will be acknowledged and be would like to be enlightened or corrected on this presump placed in the files with the discussion on this particular tion. proposal. MAU: Ido. CHAIRMAN: If there is no further discussion then, are we ready for the main question? The question is the adop SAKAKIHARA: Mr. Chairman. tion of Proposal No. 10 as amended. All those in - - MAU: I do, Mr. Chairman. S. TRASK: I have an amendment, and I do not know CHAIRMAN: Delegate White, were you seeking - - whether this is an amendment to a section or if it is a new section. I’m inclined to think it is a new section and it’s WHITE: No, no. in regard to the retirement system. I believe the delegates CHAIRMAN: Delegate Mau. MAU: I think it is germane to this subject matter. It DELEGATE: Mr. Chairman, the amendment is on your deals - - this proposal deals with taxation and finance. Now, desk. under the retirement system, as I understand it, the gov CHAIRMAN: Yes, I noticed this, but I didn’t notice ernment has a direct responsibility in its financial obliga anyone standing up to propose it. tions to the system, and I see no reason why it can’t come under this provision. J. TRASK: Well, I didn’t think you were ready to put the question, Mr. Chairman. CHAIRMAN: Well, Delegate Mau, will you please cease? You have bulwarked the Chair’s conviction and, Delegate CHAIRMAN: You are in order, Delegate Trask. Trask, if you desire to continue with your arguments, J. TRASK: I move that we tentatively adopt this amend please proceed. ment. Whether it should be a new section or added to KAM: Point of order. another section, that could be left entirely up to Style. CHAIRMAN: State your point of order. APOLIONA: I second that motion. S. TRASK: I would yield the floor to Delegate Mau, Mr. CHAIRMAN: Any discussion? Chairman. SAKAKIHARA: What is the amendment? KAM: Mr. Chairman, has the Chair put the question to J. TRASK: An amendment to Committee Proposal No. Section 9, to adopt the Section 9 as amended? 10, that, “There shall be a retirement system, subject to CHAIRMAN: No. The section that we have just voted regulation by the legislature, for the employees of the on, Delegate Kam, was a new section entitled Section 9A State and its political subdivisions.” which was voted down. Section 9 has already passed. So As it now stands, it’s purely a matter of - - now there is a new amendment proposed by Delegate Trask HEEN: Point of order. No second to that motion. which is before the committee, and Delegate Trask has finished discussing the proposal. Am I right? CHAIRMAN: The motion was seconded. S. TRASK: Yes. J. TRASK.: May I proceed then, Mr. Chairman? I be lieve that the government employees are entitled to a con CHAIRMAN: And Delegate Ohrt is now seeking recogni stitutional protection of a system that has gone a long way tion. Delegate Ohrt, you are recognized. in contributing to the welfare of our community. There OHRT: I was interested in Proposal 129 which I think might be some who might raise the question that is is purely is the type of proposal that this Convention should adopt. statutory, but I have noticed that all during our deliberations The retirement system really gives protection to some here for the last 60 days we have included quite a few things 16, 000 employees and fixes the benefits through a trust that I myself consider to be statutory. fund. That is, the retirement system has been set up as HEEN: Point of order. I don’t think this subject is ger a trust fund, and as I understand it, there is a statutory mane to the purpose contained in the article on finance and contractual relationship at the present time, and I think taxation. the employees would like to see it as a constitutional con tractual relationship. J. TRASK: As a matter of fact, I believe a proposal was I was sorry that the Finance Committee commented as introduced and I think it was placed on file by the committee. they did in their report on the retirement system. You APOLIONA: That proposal the delegate from the fifth will find that in their report, “It is the opinion of your com district is referring to is Proposal 129, which was referred mittee that to include such a provision in the Constitution to the Committee on Taxation and Finance on May 16, 1950. would be unwise and unsound for it would be committing the State forever, practically speaking, to continue the HEEN: Therefore, I take it that that has been rejected. present benefits and it is conceivable that some adjustments I suggest therefore that it is not germane at this time. may become necessary at some future time. Further, it WHITE: Mr. Chairman, this - appears to be unsound as class legislation. Government 494 TAXATION AND FINANCE employees are protected by law and it is the belief of your the system, which means that the legislature at the present committee that no provision should be placed in the Con time is not by a contract bound to put in money in the future, stitution which would interfere with the free action of the but if they stop doing it, then the courts can take it over legislature who can take necessary action as times may in receivership and liquidate it or administer it for the warrant after they have had an opportunity to complete a benefit of those members at that time who have interest in capital review and analysis of the system and of the then the fund. But at the present time there is no blank check financial condition of the State.” for the system. If you put this through, this amendment The present system is patterned on the New York system by Delegate Ohrt, you are writing a blank check for the and the New York Constitution has what is in Proposal No. system. I want you to understand that, saying that the leg 129. Now, government employees haven’t the right to strike islature contracts now always to put up all the money nec and I think we ought to give them protection such as is in essary to maintain the present benefits of the system with corporated in Proposal No. 129. This proposal that Dele out any change. Now, if you want to tie that hind of mill gate Trask has submitted, I would like to amend the wording stone around the neck of your legislature, that is your that is in Proposal No. 129, which would read as follows: prerogative. For my part, although I am a member of the “Membership in the employees’ retirement system, bene system, I cannot see how we can for one group of our people fits not to be diminished or impaired. Membership in the tie that kind of a tight millstone around our necks. employees’ retirement system of the State shall be a con One more thing and that is, social security is being ex tractual relationship, the benefits of which shall not be tended today. The time may come when either by constitu diminished or impaired.” tional amendment or otherwise it will be extended to gov ASHFORD: If that is a motion, I would like to second it. ernment employees of the states and territories and so forth. At that time will we still want to be - - if we are compelled J. TRASK: I’m willing to accept the amendment. to contribute to a federal system, do we still want to be OHRT: Now, speaking to that amendment. It’s the bene compelled to contribute to the same system with the same fits in the system that really mean something and here in benefits at the same rates as we do now? If we put this Hawaii we have a contributory system that really reduces the through we are saying until this and unless this Constitution cost to the taxpayer, and I think the only criticism that you is amended, we can’t do anything else but keep it up. hear of the system is that the benefits are too low. That is MAIl: Of course, there have been other millstones the general criticism, but anyone who knows anything about around the necks of the genteel - - or rather the genteel pensions knows that it’s a very expensive operation. If a necks of the legislators. I don’t think that is an argument person were to try to provide a pension for an individual in itself. My distinguished colleague from the fourth dis and he was in an individual business, in order to furnish the trict, of course, has come a long way from the time when benefits that the retirement system of Hawaii furnishes the he was a lowly deputy and so maybe his viewpoint does employee, if he were to do that on his own he would have change. to set aside practically 20 per cent of his salary each month. But I have here a copy of a letter written by Mr. Buck, That would more or less assure him of hail pay at the age George B. Buck, the actuary. I understand that he is the of 60 provided he has had 35 years of service. The con advisor of the retirement system. He wrote to a Mr. F. tribution that the Territory has to make runs about 7 per B. Holmes, Director, New York State Employees’ Retire cent, so that the retirement system itself is probably one ment System, and in it he agreed that such a provision should of the cheapest things that the taxpayer pays for. go into the New York Constitution and it was made part of the Now, pensions are in the limelight and they are part - - New York Constitution. Likewise, it was incorporated in becoming a part of the personnel. We now have civil ser sofar as the municipal employees were concerned, together vice and I myself would like to see the benefits more or with the state employees. I won’t take the time to read that, less assured. We now have $45, 000, 000 in the trust fund but that is an actual fact. Now, if we do it, we will not be and it is the trustees who are required now to see that violating any precedents; as a matter of fact, we would be these benefits are paid. That fund is increasing at the following the great State of New York. rate of about five million a year, and I think this is most important to 16, 000 employees who are in a different cate CHAIRMAN: Any further discussion? gory from people in other walks of life. They have no right HEEN: Point of information. to strike, and accordingly I move that this amendment be adopted. CHAIRMAN: Point of information. State your point. SAKAKIHARA: I second that. HEEN: This language proposed by Delegate Ohrt is similar to the language employed in the New York Con TAVARES: I am sorry that although I am a member of stitution? the retirement system and I am looking forward to the day when I can draw a pension from it for some of my years OHRT: Yes, I think it’s taken from the New York Con of past service, I have to oppose this proposed amendment. stitution. I want the delegates here before they vote for it to under HEEN: Verbatim, the same? stand what they are getting into. Once upon a time I had the same idea. I made the same proposal and it was OHRT: As far as I know, yes. pointed out to me that by making it a contractual relation CHAIRMAN: Can you answer the question, Delegate - - ship, we would be sewing up every future legislature to guarantee to put up enough money for this system forever MAIl: No, Mr. Chairman, it is not verbatim. I would and ever and ever. Gentlemen, if you do that you might like to have an opportunity to read the New York provision. as well put in a provision that the salaries shall never be “Membership in a pension or retirement system of the diminished of government employees. state or civil division thereof shall constitute a contractual I am for the system. I want to see it continued, but I relationship, provided however, that in systems which do want to point out that the time may come when our legis not have reserves sufficient to cover benefits accrued on lature will feel, and sincerely so, that it is too heavy a account of previous service, members’ claim on retirement burden. Insofar as those members who are in the system shall be limited to the benefits which could have been pro at that time and who have contributed, there is a contractual duced from an employer’s contribution not exceeding five relationship. And I want to correct the statement made. per cent of the member’s salary during such service, and The contractual relationship applies only to the money in a like contribution from the member. In systems providing 495 June 23, 1950 • Afternoon Session for the accumulation of reserves, such reserves shall be CHAIRMAN: Are we ready for the question? maintained without impairment for the purpose for which MAU: I just want to read the latest provision in the New created.” York Constitution. I read from an old one. This is very much shorter. “After July 1, 1940, membership in any NIELSEN: Well, I’m in favor of this, but I think that pension or retirement system of the state or a civil division something should be done so every citizen in this State can thereof shall be a contractual relationship, the benefits of come in on the same basis as government employees. I which shall not be diminished or impaired.” don’t know why we are any different than government em ployees, and if the territory is, or the State is willing to TAVARES: I don’t know why I have to stick my neck out put up seven and a half per cent against our seven and a all the time, but I am sincerely worried about this. I half per cent, why shouldn’t we come in on it? Then we think there is a difference between benefits of members who will all get that retirement when we get through. are already members at a given time and the reserve they have put in and the changes that can be made for future em MAU: Welfare state. ployees. For instance, it seems to me it ought to be pos SAKAKIHARA: Mr. Chairman and members of the Con sible for the legislature to say, “0. K., for all those who vention. I recall some iS years ago when the legislature are now members, we won’t change the benefits, but for of the Territory of Hawaii absolutely defaulted on their all new members coming in, we are going to reduce the share of the contribution towards this obligation. As we all pension a little bit.” I think that ought to be left within the know, the retirement system is a sacred trust by the gov power of the legislature. ernment of funds entrusted by the employees of this Terri Now, If that is what this means and if it doesn’t mean tory and the counties. Unwise investments were then made that the legislature has to - - is making a contract to put up by the then trustees of the retirement systems. I remem the necessary money forever and ever and ever in the future, ber very, very much, because I was a member of the finance that’s one thing. I think that we need an interpretation of committee of that session of the legislature. that and perhaps Mr. Buck has written one. It may be it I say to you, that the employees of the county, City and doesn’t mean as much as I think it does. And if so, I might County and the Territory today are by law required to be vote for it. But the way it stands now, if it means fully come members of the retirement system as long as they that the legislature guarantees that no employee in the are employed by the government. They have no choice. future will ever be given less benefits proportionately than They have no alternative but to become a member of the the employees today and that the legislature guarantees to retirement system. I feel very strongly that there should put up all the money necessary from now to forever to cover be a contractual relationship, there should be between the whatever the benefits may be, then I think it’s a little - - government, if the government desires to maintain this it’s rather dangerous. And it seems to me therefore that system in good faith with the employees of the government. it is worth looking into as to that meaning. Has Mr. Buck As presented here by Delegate Ohrt, there are some 16, 000 written an interpretation of that section? employees of the county, City and County and the Territory. CHAIRMAN: Well, the language says, “The benefits of What protection do these employees have? What assurance which shall not be diminished or impaired.” do they have after having been employed in the service of the government that this fund will be secure? What assur TAVARES: Is that benefits of old members or the bene ance do they have that the government will continue to put fit of members now and any members that may come in in up its share toward this retirement fund? the future? If so, I think that again is a very, very grave I recall the day when the actuary, Mr. Buck, was in restriction. vited by the legislature and appeared before the legislature OHRT: I think it applies to all those that are now mem in joint session and actually advocated that that security bers of the system. They have made their contributions should be given to the employees of this government who and the benefits are a fixed benefit plan. And it’s just such are members of the retirement system. This fund has a reduction or the impairment of those benefits that the em grown to the extent of $45, 000, 000 and I feel very strongly, ployees should be concerned with. Now, before Congress ladies and gentlemen, that this amendment should be adopted today or a few days ago, we have the social security bill. and that the government should in good faith keep their ob That has just been passed and the government employees ligation with the employees of the territory. I am there are exempted from that. I think that is the answer to Dele fore very strongly in favor of incorporating this amend gate Nielsen. If he wants to get in under this, he can get ment in the Constitution. in under social security, probably is there already. ASHFORD: I think the gentlemen from the legislature TAVARES: Well, one more question of the very able will recall that about four years ago someone from Mr. delegate from the fifth district and that is, does the dele Buck’s office, the actuary looking after the system, appeared gate interpret this provision to mean that it is also a con and recommended further deposits in the fund by the Terri tract by the legislature guaranteeing to put up every bit of tory, holding up as a horrible example the complete break money necessary in the future to make good these proposed down of the system of New York, and I have no doubt at all benefits set forth in the present law? that that constitutional provision was written into the Con stitution of New York because it had broken down under the OHRT: That would be my interpretation of it. Yes, I old system. think the government employees should have that. SAKAKIHARA: For the information of the delegate from NIELSEN: I would like to ask Mr. Ohrt one question. Molokai, I wish to state that it was Mr. Buck, the actuary Has the government so far in the Territory put up all the himself, who was invited to appear before the legislature money they should have put up? in joint session. OHRT: The answer to that would be yes. LARSEN: I was rather interested in Mr. Nielsen’s com NIELSEN: It seems to me in the ‘47 session, they didn’t ments and it reminded me, and I want to tell all of the dele want to give you the funds to keep the security sound. gates about a certain politician who was talking to his crowd and he said, “Lathes and gentlemen, when I get into that OHRT: Well, that’s correct. There was an effort to legislature, I’m going to do away with all the taxes because delete certain funds but the legislature finally appropriated I’m going to make the government pay for it.” them. 496 TAXATION AND FINANCE TAVARES: Is it not true that we have some considerable HEEN: And if the political subdivision does that it amount yet that we owe that we haven’t paid up for the re should have the same protection. serves because we started in in 1925 with Territorial em OHRT: I’d be very glad to accept that amendment. ployees and had to make up all the back years ourselves without any contributions from the employees? J. TRASK: I’m willing to accept the amendment made by Delegate Heen. OHRT: That covers the amount that covers prior service. CHAIRMAN: In other words, the proposed amendment - - TAVARES: Prior service credit? proposal would read as follows: “Membership in any em OHRT: Prior service credit. ployees’ retirement system of the State or a political sub TAVARES: What is the balance now? division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.” OHRT: About $4, 000, 000, but that is funded. The Territory is paying that. I don’t recall what the rate is but HEEN: Correct. a certain percentage each year is being paid. CHAIRMAN: Is that correct? TAVARES: We have extended it once already, haven’t TAVARES: May I ask one more question? These are we? very important things because this is going to run into mil lions of dollars. I would like to ask the proponents of this OHRT: Yes, and those are just the things that we are trying to avoid. amendment if this means that if the legislature in the future should raise the benefits, that thereafter they couldn’t re TAVARES: In other words, we are not up to date then in duce them? Because that might be a deterrent in the future our obligations. against your legislature ever, ever raising the benefits, OHRT: No, insofar as prior service, we are not. That’s because every benefit they give is a blank check forever for right. the future. Is that correct? That is my question - - I’d like to ask - - my question as to whether the future benefits TAVARES: But the legislature is putting up the money in will be covered. Will that question be answered, please? installments and hopes within a reasonable time to cover that prior service credit. CHAIRMAN: I think Delegate Ohrt understands the ques tion. Are you ready to answer it? OHRT: But it’s being funded so it’s being taken care OHRT: I think if the benefits are increased, there will of, Delegate Tavares. also be an increase in the members’ contributions and if TAVARES: Well, I wanted the delegates to understand the Territory does want to increase the benefits, then the that. contractual relation would start from then on as to the new H. RICE: It seems to me that the way the Congress benefits. may pass the statehood bill would be to review our Con TAVARES: Well, then one more question, and that is, stitution. I think Delegate Ohrt and others here will agree I think the delegate will agree that if the legislature, for with me the Territory has a fine retirement system, in instance, in the future brings in a new class of employees fact, one of the best of any state, and I think if the Congress who have not contributed and covers them into the system is going to review our Constitution that in the section of as they have done several times in the past, that that auto ordinances somewhere we should have some sentence just matically pledges the funds of the system to cover those like this: “The retirement system of the Territory should new benefits, does it not? be continued under the State.” It shows then that we have OHRT: I don’t think they can bring in any new employees a good system, we believe in it and it should be carried on. under the present statute without providing the reserves I think that is sufficient. that would go for those particular employees. CHAIRMAN: In other words, you are opposed to the in sertion of this in the taxation and finance article. TAVARES: Nevertheless, we brought in the counties after we brought in the territory. H. RICE: That’s right. OHRT: But when you did that you provided the reserves CHAIRMAN: Any other discussion? Are we ready for to cover it. the question? TAVARES: But is it not true, I’d like to ask the delegate, HEEN: I noticed that the amendment suggested and ac that under the retirement system law all of the assets of the cepted by Delegate Trask reads as follows: “Membership funds are pledged for every benefit, not divided for a cer in the employees’ retirement system of the State shall be tain amount for each member. a contractual relationship, the benefits of which shall not OHRT: Well, they are in one fund, but when a person be diminished or impaired.” I believe that this language once retires, then it’s set up for that particular individual. refers to the retirement system as it exists now. It seems to me that it should be more general. “Membership in TAVARES: Well, what I’m worried about is that this pro any employee retirement system of the State or of any polit vision might not prevent the legislature in the future from ical subdivision” would be much more preferable so that it bringing in new members unless they put up right away a might take care of any system that the counties may wish separate fund to cover those new members’ benefits, rather to establish. than pledging the old assets for the new members. OHRT: I would be very glad to accept that amendment. OHRT: Well, they couldn’t touch the old because that I think it’s the understanding that the present system is a would be absolutely wrong. state system. TAVARES: That might then freeze the legislature’s HEEN: That is correct, but that means that you would power to bring in to some extent new classes as they do have always under the Constitution a state system. But today. there would be nothing I suppose to prevent a political sub OHRT: No, the legislature brings in - - is bringing in division from establishing its own retirement system. new members, but providing the funds that went with that OHRT: That is possible. liability. June 23, 1950 • Afternoon Session 497 TAVARES: That’s not my understanding of what has WHITE: But it’s a corporate trustee? been done. It’s my understanding when you join the system OHRT: Yes, so are we as I understand it. Is that right? and are given membership, all of the assets of the system immediately are pledged to protect you as well as other CHAIRMAN: No, you are individual trustees. beneficiaries of the system. The legislature does put up WHITE: The trustees are individuals in this case, aren’t additional money, but it goes into the same pot. they? OHRT: If you have no prior service it doesn’t make a OHRT: The fund is set up as a trust fund and then the bit of difference because your obligations start from the trustees are - - day you join the system. So you begin making your con tributions at that time, WHITE: Yes, but it’s administered by individuals as trustees of the fund. You made the - - the delegate from SHIMAMURA: I am in favor of this amendment in prin the fifth district made the statement that in the event that ciple, but I see certain legal difficulties. First, does this the value of the fund should shrink five million dollars, it mean the continuation as a contract of the present mem would then be an obligation of the Territory to make up that bership in the system? If that’s true, I think there is no deficit. Is that right? legal difficulty as to that. Continuance of the present mem bership on a contractual basis. But what about future mem OHRT: That is written into the statute today. That is a bership? Are we going to write in at the present time be contract that the Territory has made with the employees. fore such a contract is formed that it shall be a contract? In these days when we are talking about the sanctity of con tracts, I hope the Territory lives up to its contract. CHAIRMAN: Do you care to answer that, Delegate Ohrt? WHITE: I think that’s quite true, but I think the one dif OHRT: I would think that every employee that comes in ference is that in this particular instance, even though the would be given that same contractual right. I see no reason Territory might have a bad experience and decide that it why not. might be a better thing to give up the retirement system RICHARDS: I would like to ask one question of Mr. Ohrt, because of the risks involved, this would obligate them to Delegate Ohrt, if I may? Who is at present responsible if keep it on indefinitely and make up deficits as long as defi there is diminution of the assets? In other words, if one of cits are accrued, which I think is highly unsound. the companies whose bonds are held by the retirement sys OHRT: I think that that’s unfair to the system. As far as tem fails and the bond becomes worthless, is it incumbent the contract is concerned, if the system earns more than upon the Territory at present to make up that deficit? 12 per cent they give the Territory and the taxpayers credit for it. Now, I tried to tell the Convention that this was the OHRT: Yes, it is. cheapest thing that the taxpayers were paying for because MAU: The discussion on the New York provision throws you are making the employees pay their own pensions or at some light on the questions raised by Delegate Tavares. least half of them. Part of it reads as follows: ANTHONY: May I ask the proponent of this amendment The bill protects taxpayers because it does not at a question? I’d like to know whether or not he is satisfied tempt to force them to continue unsound costly systems with the existing retirement system? And if he is, why which never would have been approved if the real cost does he want to put a piece of legislation into the Constitu had been known. On the other hand, it does give mem tion? bers of such system contractual rights to reasonable CHAIRMAN: Would you yield to that question, Delegate accrued benefits. Taxpayers are not obligated to assume Ohrt? I believe it’s addressed to you although it was pro further burdens under any system because of service posed originally by Delegate Trask. not yet rendered, but they cannot take away what the em ployee may be considered to have earned by reason of OHRT: I’ve seen a great deal of work here on the Con his previous service. vention floor. New York State has taken the leadership in this -- in pensions, trying to save the taxpayers some And again, money. This was done in 1938 in New York. It’s function ing well and we think that we are entitled to the same pro The amendment should have the support of taxpayers tection. Now, our system is practically the same as the because it clearly defines the contractual rights of em ployees in sound systems, which definitions add no New York system. It’s based on the same formula, one- greater rights than many believe are now possessed by seventieth for each year of service. It’s a formula plan. such employees, and it does not give any basis to require It varies with the number of years of service. There is the public to assume the unlimited liabilities which some nothing as sound as the Territorial Employees’ Retirement of the unsound pension funds may be assumed to have System at the present time. undertaken with no basis for meeting them. HEEN: Whether or not the system here was the corpora tion or corporate entity, it is, under this language, the re Now it seems to me that this system is a sound one, par tirement system established and placed “under the manage ticularly for those who pay more taxes that I do. If we ment of the Board for the purpose of providing retirement didn’t have such a system, if we don’t protect that system, allowances for employees. It shall have the powers and whenever the government employee ceases employment with privileges of a corporation.” the government, somebody is going to have to take care of him, and eventually you may have a welfare state. But it TAVARES: A point of information. It seems to me that is better that the government employees help themselves the answers given by Delegate Ohrt and what was just read by contributing to the retirement system and helping their by Delegate Mau are directly contradictory. As I under retirement and their pension for later years. stand it, Delegate Mau’s explanation now, apparently I im agine written by Mr. Buck, is that the taxpayers do not WHITE: I’d like to ask a couple of questions. Is the assume liability for service not yet performed, which would New York system administered by individual trustees or seem to me to be that the legislature could cut off benefits by a corporate trustee? for earnings of the future - - for service of the future. As OHRT: By a corporate trustee. That is, they have trus I understood Delegate Ohrt, it meant we had to continue tees appointed just as we have. this forever, and I think that ought to be cleared up. I 498 TAXATION AND FINANCE might go along with Delegate Mau’s explanation, but I don’t KING: Under that interpretation I see no particular ob think I would go along with Delegate Ohrt’s. jection to incorporating it in the Constitution if a substantial number of people feel it protects their equity as employees OHRT: That would only apply to those people who be of the government. come members of the system. As far as those that were not in the system yet, I don’t see how you can extend any RICHARDS: I still don’t think that it’s quite clear. At contractual obligation to them. least it isn’t clear to me that if the legislature changes the form of their retirement system, does it mean that em TAVARES: I think Mr. Mau ought to read that again. ployees already under the present system may continue I don’t think that’s what Mr. Mau said. along as far as their future earnings are concerned under OHRT: As I heard that, he is making a comparison be the old system, or does it merely mean that all the benefits tween the contributory system which saves the taxpayers accrued up to the time of change will definitely be a contract millions of dollars, and the non-contributory system where There is a distinct difference. the obligation gets to be such large figures that nobody J. TRASK: I believe Mr. King has just stated that - - wants to pay them. reiterated the question that Mr. Richards has just asked. CHAIRMAN: Any further discussion, or does Delegate I think we have had enough debate on the matter. We have Mau desire to clarify a confused and muddled situation on had any number of explanations on different points. I see this point? no reason why we shouldn’t take a vote at this time. MAU: I was reading a discussion of the measure that WHITE: I don’t agree with the delegate from the fifth was introduced in New York, and the discussion states that district, because I’m more confused than ever as a result the State has no obligation to continue any unsound system. of Mr. King’s explanation of it. As I understand the ex That’s what it says. But my view is on the point raised planation that Mr. Mau made, it differentiated between past that the State can any time cut out that retirement system, service and future service. Now if it means that as of the but those who belong to the system before it is terminated, time any retirement system is terminated that there can be their rights and the benefits accrued to them still remain no impairment of past benefits but that the future benefits under this provision. can be changed by the legislature, well then I think that this thing ought to say that. I’d like that question answered. CHAIRMAN: In other words - - Mr. King’s explanation carried the past benefits for the TAVARES: If that’s what this means, I have no objection present employees into the future. Now Mr. Mau made it to it, but I was afraid it wasn’t and that’s not what Delegate clear-cutbetween the two. Ohrt says it means. That’s why I’m worried about it. KING: I wasn’t making an explanation. I don’t dare to CHAIRMAN: In other words, your point, Delegate Mau, get involved in these legal intricate questions. I was ask is that the state could abolish the system. ing a question of Mr. Ohrt. In view of the little confusion, I would like to move for a five minute recess. MAU: Yes, but all the rights that have been accrued - - CHAIRMAN: The Chair was just going to declare a CHAIRMAN: Vested rights? short recess. MAU: - - by the: employees before the termination of the system, remain intact. That’s my interpretation of the (RECESS) language. CHAIRMAN: Any further discussion? Ready for the ANTHONY: I would suggest that the word “accrued” be question? inserted before the word “benefits.” KELLERMAN: I would move that we defer this then un HEEN: The language in the amendment reads: “Mem til the language can be worded to mean what we say. Cer bership in any employees’ retirement system of the State tainly the way it’s written it sounds like it’s an absolutely or any political subdivision thereof shall be a contractual open and unqualified statement. Now, I’m perfectly willing relationship.” Using that as the basis, the amendment also to go along with the explanation as Mr. Mau has given proposed by the last speaker is to insert before the word it, but that is not what the language says to me. It seems “benefits,” the word “accrued.” to me it can be - - if it can be made clear we might better CHAIRMAN: The Chair understands this to be before pass upon an amendment that says what we mean. the committee,before the amendment was proposed. “Mem KING: I hope we do not defer it but settle it this after bership in any employees’ retirement system of the State noon and perhaps with less discussion. or its political subdivisions thereof shall be a contractual relationship, the benefits of which shall not be diminished CHAIRMAN: You expressed the wish of the Chairman. or impaired.” Is it the mover’s amendment that the only KING: I’d like to ask Delegate Ohrt a question. Assum change would be the word “accrued” before “benefits” or ing the legislature changes the form of the retirement sys is it to eliminate also the phrases that were formerly pro tem for future employees at some date five or ten years posed? from now, sets up what is in effect a different system, then ANTHONY: I was trying to get rid of the impasse and it’s not obligated under this provision of the Constitution I think the insertion of the word “accrued” will do it. Now to retain the same contractual relation, but can establish if there has been some other amendment that has been lost a new one. Is that so? on me, I was engaged in conversation when the amendment OHRT: That is correct. was made. KING: Well then, that agrees with Mr. Mau. In other CHAIRMAN: Well, the amendment was just changing the words this provision only protects those who are in the word “the,” “membership in the system,” to “any system,” system as it now exists, and if the legislature reorganized and then adding after the word “State,” “or its political sub the system it could apply to all new employees. But the divisions thereof,” and that was accepted by the mover orig contract would remain in existence for all of those who had inally. entered prior to that change. ANTHONY: Well then, I request the movant of the orig CHAIRMAN: Are we ready - - inal amendment, if he will accept the insertion of the word July 6, 1950 • Morning Session 499 “accrued” in his amendment before the word “benefits.” FONG: As I understand it, there is quite a lot of senti Then if he will state that, I would be glad to second it. ment now for an elective auditor. I notice that quite a few people have told me that they would now vote for an elective CHAIRMAN: It’s been accepted, so the amendment be auditor feeling that the auditor shouldn’t be appointed. Un fore the committee reads as follows: “Membership in any der those circumstances I would like to ask for a reconsider employees’ retirement system of the State or its political ation of Section 12 at this time of Committee Proposal No. subdivisions thereof shall be a contractual relationship, the 10. accrued benefits of which shall not be diminished or im - paired.” CHAIRMAN: Well, Delegate Fong, do you recall whether or not you voted against the present proposal? HEEN: Mr. Chairman, may I ask what word did you use before “political subdivision”? FONG: Ithinkldid. CHAIRMAN: “Political.” CHAIRMAN: You might, if you could, get someone else to move the action. HEEN: No, “any political subdivision.” SILVA: I move to reconsider the action taken on Proposal CHAIRMAN: “Or any political subdivision “? No. 10. HEEN: That is correct. RICHARDS: I’ll second the motion. ANTHONY: The purpose of the amendment will be to preserve the accrued benefits but still leave the legislature CASTRO: Just so that we all know what we are discus free as to the future. In other words, the fears that Dele sing, I think we should have Redraft One in front of us, gate White and Delegate Tavares had, I think, are met by should we not? In which case, the section on the auditor this insertion. is numbered Section 8. If we go to the original draft it would be 12, but these redrafts are placed in here in front of the DELEGATE: Question. original draft. TAVARES: That is correct, and it agrees with Mr. Mau’s CHAIRMAN: Well, you mean you find it in either Pro interpretation. I accept that and I think that is entirely all posal 10 or in the - - I suggest that you look at the pro right. posal attached to the Committee of the Whole report, Re CHAIRMAN: All those in favor of the motion to adopt the draft One. provision just read by the Chair please signify by saying CASTRO: That is correct. “aye.” Opposed. Carried. CHAIRMAN: Well, you heard the motion. As this mat J. TRASK: This particular section that was just carried ter was thoroughly debated, as I recall, and - - What is the will be put where the Style Committee sees fit in this pro pleasure of the body? Are you ready for the question? posal? DELEGATES: Question. CHAIRMAN: That was the understanding when the dis cussion took place. CORBETT: Mr. Chairman. J. TRASK: So I move at this time that we tentatively CHAIRMAN: The question is whether the auditor shall approve Committee Proposal No. iO as amended. be elected - - Oh, reconsideration first. WOOLAWAY: I second the motion. CORBETT: You have already answered my question. CHAIRMAN: All those in favor of the motion, please CHAIRMAN: All those in favor of reconsideration, signify by saying “aye.” Opposed. Carried. please signify by saying “aye.” Opposed. The Chair is in doubt. Roll call is demanded. Madam Clerk, call the H. RICE: I move the committee rise and report progress. roll. WOOLAWAY: I second the motion. Ayes, 26. Noes, 30 (Anthony, Arashiro, Ashford, Cas CHAIRMAN: Any objections? If not the Committee of tro, Corbett, Crossley, Doi, Fukushima, Gilliland, Heen, the Whole stands recessed until adjourned. lhara, Kanemaru, Kawahara, Kellerman, Larsen, Mau, Mizuha, Nielsen, Ohrt, C. Rice, H. Rice, Roberts, Seri zawa, Shimamura, Smith, Tavares, J. Trask, Wist, Yama moto and Lee). Not voting, 7 (Kawakami, Luiz, Phillips, JULY 6, 1950 • Morning Session Sakakthara, Sakai, White, Wirtz). CHAIRMAN: Motion failed. The motion before the CHAIRMAN: Will the committee please come to order. Committee is still the adoption of the report. Are you ready for the question? RICE: I move that the committee rise and report recom mending the passage of Committee Proposal No. 10 on DELEGATES: Question. second reading. CHAIRMAN: All those in favor of the motion, please LAI: I second the motion. signify by saying “aye.” Opposed. The motion carried. Debates in Committee of the Whole on LOCAL GOVERNMENT (Article VII) Chairman: ARTHUR K. TRASK JUNE 23, 1950 • Afternoon Session tentative adoption of Committee Proposal No. 26 in its entirety. CHAIRMAN: Committee of the Whole meeting on local government, that’s Standing Committee Report No. 74, CORBETT: I second the motion. Committee Proposal No. 26. What order does the chairman, CHAIRMAN: The motion is made and seconded that we Delegate Kauhane, want to follow? adopt Section 1. Any discussion? KAUHANE: The first order of procedure as far as the committee and the chairman are concerned is that we take HOLROYDE: I don’t think that was the motion. a short recess so that we be prepared to come back and CHAIRMAN: Pardon me, Delegate Monte Richards, will sit until we finish. you please state that again? CHAIRMAN: If no objections, so ordered. Five minutes. RICHARDS: I understood the chairman of the committee, he felt that to speed up proceedings it would be better to (RECESS) discuss the amendments to the proposal as a whole rather than attempt to take it section by section, inasmuch as CHAIRMAN: The Chair will now recognize the chairman these amendments cover the whole proposal. Therefore, of the Local Government Committee, Delegate Kauhane. I made the motion to adopt the whole proposal to permit the KAUHANE: Mr. Chairman, and members and delegates amendments of the proposal as a whole. of this Convention, your Local Government Committee in KAUHANE: That’s right. its honest endeavor tried to put together what we felt was an honest proposal to be submitted for consideration by this CHAIRMAN: And that has been seconded by Delegate Convention on matters relating to local government. We Corbett. took into consideration the various problems and the dif PHILLIPS: I believe that would be an improper course ferent problems that confronted in the matters of local gov insofar as local government is - - consists of more than one ernment with respect to the various counties. We have sub function and requires sections - - individual sections which mitted here a proposal which we felt and which, .1 would would require the individual consideration of the Convention. say, the committee in all sincerity felt was the best possible I don’t believe that would accomplish our purpose at all, provision to be incorporated in the Constitution for the fu if we were to accept it in its entirety, because we would ture State of Hawaii relating to local government. The com still have to go through it item by item. I would be against mittee feels that if there is any amendment to be made to that motion. the proposal as submitted by the committee, that such CHAIRMAN: Any further discussion on the motion pend amendments should be offered now before we go into the ing, that is to consider the entire proposal? proposal either by section, paragraph after paragraph, or sentence after sentence. We - - the committee is now RICHARDS: I do not know what the proposal of Delegate ready to accept any amendments to the proposal that the Phillips is or what his amendments, but I understand that committee has offered. there is one amendment by Delegate Sakakihara which covers SAKAKIHARA: May I offer an amendment? the whole proposal and does not go section by section. CHAIRMAN: Delegate Holroyde is recognized. CHAIRMAN: Any further discussion on the motion to HOLROYDE: Just a point of information. How can we consider the entire proposal? Ready for the question? All offer amendments when there’s nothing before the Conven those in favor of proceeding by considering the entire pro tion? posal say “aye.” Those opposed. The ayes have it. DOT: We believe that there are two minority reports sub HAYES: Not standing up very often, I have a little time mitted. and those two minority reports go not to the specific trying to plug this [microphonel in. sections of the committee proposal, rather it goes to the CHAIRMAN: The committee can stand a lot of charm. amendment of the whole idea of the proposal. Therefore, we felt that it might be little more time saving to first HAYES: Do you mean to tell me that you’re going to present the idea of the committee as stated in the whole adopt this Section 1 and Section 2 and Section 3 and Section article on local government; and then, if tbere is any 4? Is that the motion? amendment to be offered as to the whole article, then let’s CHAIRMAN: The motion which you voted for—there have it first before we go into the specific sections. was no opposition - - CHAIRMAN: Is it the desire of the committee to hear, HAYES: No, I didn’t vote. therefore, from Delegate Sakakihara, who has presented CHAIRMAN: - - that we consider the entire proposal. a minority report? Please note that there is another minor ity report filed by Delegate Phillips that is being printed HAYES: Oh, “consider,” thank you. Just a point of in and will be submitted to the committee soon. formation. RICHARDS: To make the proceedings proper, since CHAIRMAN: So that all the dissidents may come out with there is nothing at present before this committee, I move their amendments. 500 JUNE 23, 1950 • Afternoon Session 501 KAUHANE: By the motion just adopted, the committee been first requested by the board of supervisors or other feels that the minority report as submitted by Delegate governing body of the local unit. Every one of us will Sakaldhara will be considered together with the committee recognize that the individual citizen is frequently unable proposal. to obtain a satisfactory solution to particular problems presented to his local governing body. It is in recogni SAKAKIHARA: That is my desire. tion of this that the members of your territorial legis KAUHANE: That being the case, Mr. Chairman - - lature have for many years constituted an agency which SAKAKIHARA: I offer the minority’s amendment to not only listens to requests of individual citizens but Committee Proposal 26. I think it has been distributed to furnishes in many respects the only solution to such the members of the committee. problems. The majority report would have the citizen’s only recourse against his local government’s failure to CHAIRMAN: Have all the members of the committee take action on the vote that he casts at election time. received copies of Sakakihara’s - - Delegate Sakakihara’s There are many who would say that this recourse is suf Standing Committee Report No. 84. ficient. In practice, and without depreciating in the least SAKAKIHARA: My minority committee report is No. 84, the intelligence of the voter, it just does not work that along with the majority report. I believe the majority re way. We feel very strongly that there must be an alterna port - - committee report is No. 74 and my minority report tive available to the individual citizen, and I feel equally is Standing Committee Report No. 84. strongly that the legislature has, as that alternative, efficiently performed that function in the past and should CHAIRMAN: That is correct. not be limited in the future. SAKAKIHARA: My amendment is proposed precisely in In our territory, which is, after all, substantially a the language of the present Organic Act except the opening state-type of government (excepting for the presidential word, “that,” of Section 56 is eliminated; “State” is sub appointment of the governor, secretary, and judges) the stituted for “Territory of Hawaii”; the words “governor present division of functions and responsibilities of gov and” are eliminated from just prior to the last word, “leg ernment between the Territory and the counties is the islature,” in the above. The words “of the Territory” are result of steady development since 1905 when county gov eliminated after the last “legislature.” So that the amend ernment was first instituted. Such development by acts ment will read: of the legislature has given us a system of government in which the details of operation of the following functions Section i. The legislature may create counties and and activities which are often considered of a “local gov town and city municipalities within the State and provide ernment” character are conducted basically under terri for the government thereof, and all officials thereof torial statutes and not under county ordinances: airports, shall be appointed or elected, as the case may be, in principal highways, libraries, civil service, fixing of such manner as shall be provided by the legislature. public salaries, retirement system, police department, CHAIRMAN: This amendment that you have just pro liquor control, public housing, public parks and recrea posed for Section i appears on page 5 of your report No. 84? tion (City and County of Honolulu), public waterworks SAKAKIHARA: Correct. (excepting rural Oahu and Kauai), property taxes, schools and public welfare. CHAIRMAN: Proceed. Some might even argue that certain of the functions SAKAKIHARA: for which the Board of Health and the Board of Commis sioners of Agriculture and Forestry are now responsible [Reads SCR 84.1 are properly within the scope of county or town govern The report of the majority of your Committee on ment. Local Government states that the committee has been guided by its belief that “the people have the ability and At the time of writing this minority report, the report have a right to manage their own affairs” and that is was of the Committee on Legislative Powers and Functions the consensus of the members that the committee should had not been released. The report of the majority of the “allow as much independent local sell-government as Committee on Local Government includes a proposal with the welfare of the State would permit.” Although the respect to taxes (to be a state matter) and the reports of committee’s proposal is drafted upon strong “home rule” other committees have provided, or are understood to lines, it does reserve to the legislature the power “to provide, for state control of schools and public welfare. enact laws of state-wide concern.” Proposals with respect to health and agriculture and I am in full accord with the principle of increased forestry activities may or may not be in sufficient detail self-government. to fix the functions of those departments so definitely as to leave no question as to whether or not certain of the CHAIRMAN: Delegate Sakakihara, there wasn’t a second. present activities thereof may, under the Committee on - Will you yield - - Local Government’s proposal, be considered “local” in SAKAKIHARA: I move - - Yes. character. With respect to most of the functions above listed, it CHAIRMAN: Will you yield until that—your motion is seems to be the present concensus of this Convention seconded? that details ought not to be “spelled out” in the Constitu HOLROYDE: I’ll second that. tion; thus, it seems clear that if the report of the major CHAIRMAN: Seconded by Delegate Holroyde. Proceed. ity of the Committee on Local Government is adopted, there will be a perpetual invitation to local governments SAKAKIHARA: to assume control of many of the functions which are now either operated by the territorial government or boards I am in full accord with the principle of increased or commissions under territorial statutes, or operated local self-government, but unable to agree with the man by the county governments or boards or commissions in ner in which the majority would achieve this end. The a manner prescribed by territory statutes. majority report would prohibit the legislature from en The Committee’s proposal that each political subdivi acting any law, beneficial or not, respecting the activities sion “shall have power to provide for . . . the form and of an individual unit of government unless that action has management of its own affairs” and that the article “shall 502 LOCAL GOVERNMENT not limit the power of the legislature to enact laws of HOLROYDE: In signing the report of the committee, the statewide concern” is most impracticable. The indefinite majority report of the committee, I stated that I did not ness of the line that would be established between the concur completely with paragraph 2. The committee worked constitutional scopes of the State and local governments, diligently and hard trying to set up for the local governments respectively, would give the courts and attorneys a of the territory a degree of home rule. However, during perpetual field day. the committee hearings and during the progress of the com mittee, it was never clear to me the full effect that Section The Chairman knows that. 2 would have on the progress that we made in the govern It is the belief of the undersigned that the entire sec ment locally. tion under discussion should be delegated to the legisla CHAIRMAN: Delegate Holroyde, point of order here. ture which, according to present indications, will be The motion before the committee at this time is directed comprised of a House in which the City and County of to amending Section 1, according to Sakakihara’s amend Honolulu or Island of Oahu will have a majority, and a ment, so would you confine your remarks to the section Senate in which the outer islands would have a majority. for amendment, please. Such a plan should assure well-considered legislation be cause it would mean that fundamental governmental pol SAKAKIHARA: My amendment - - point of order. My icies and organizations (other than as fully set forth in amendment - - When I offered my amendment, I offered it the Constitution) would be determined by the people of all with the understanding that the Committee of the Whole was counties jointly, rather than by the people of Oahu alone. to consider the entire article of Committee Proposal No. This Convention will be remiss if it adopts a Constitu 26, not specifically limiting it in my amendment to Section tion worded in a manner to make it possible for Oahu 1 alone. alone to bring about drastic changes in presently effec KAUHANE: That’s right. tive laws under the claim that “its own affairs” include HOLROYDE: I’m coming to his amendment. I’m just this or that function heretof or within the scope of the giving a little background for a. suggestion that I’m going territorial government. to make about this amendment. The several functions and activities listed herein are actually “of statewide concern.” If they were otherwise CHAIRMAN: Well, with that clarification made by Dele the laws would not be in effect. The adoption of Com gate Sakakihara, proceed. mittee Proposal No. 26, as presented, however, would SAKAKIHARA: May I ask the delegate to allow me one result in continuous questioning by chartered areas as more sentence to make here. to the classification of function - - CHAIRMAN: Delegate Holroyde, will you yield? DOl: I rise to a point of order. HOLROYDE: I yield. CHAIRMAN: Delegate Doi on a point of order. Please state it. SAKAKIHARA: I believe it’s a healthy thing to have the legislature in the control of local government. - I, as a DOl: I believe these minority reports and the majority member of the Committee on Local Government, considered reports were required to be printed and circulated so the the requests of the residents of Lanai. Oftentimes the leg members of this Convention could read those reports. I islature is called upon by the residents of Molokai for re don’t see why it’s necessary to read those reports verbatim lief; and that requests or petitions submitted to your legis into the recording machine. I understand Mr. Phillips lature by the residents of Molokai is because their requests here who has another minority report is anticipating reading have been ignored by the Board of Supervisors of the County the whole report into the record, also. of Maui. Numerous requests of that nature will come and will continue to come before the legislature if the entire SAKAKIHARA: My understanding is some of the members matter of a local nature is left to local government. of the Committee of Whole have not received this minority report. They have come to me for the report. CHAIRMAN: I don’t think Delegate Hoiroyde yielded so that you would bring Lanai in at this time. So I think CHAIRMAN: I’d like to say to Delegate Doi the observa we’ll have Delegate Holroyde continue. You might keep it tion is made quite late. I think Delegate Sakakihara is down under wrap, however. to the last sentence of his report. Under the circumstances, you may proceed. HOLROYDE: As I stated, I could not vote for Section 2 until I am fully aware of all the complications and effects SAKAKIHARA: That is right. that might have on our local government. For that reason CHAIRMAN: There might be another question later on. I’m inclined at the present time to support the amendment suggested by Delegate Sakakihara. However, before voting SAKAKIHARA: on that, I would like to hear the full debate on the floor on It is recommended that there be substituted for the four Section 2. For that reason, I would like at this time to movc sections of Committee Proposal No. 26 the following deferment on the action on the amendment of Delegate Saka (one section only). kihara. That’s the amendment which I have presented, and I ask SAKAKIHARA: I accept your motion for deferment. the Committee of the Whole to give this amendment your CHAIRMAN: You have heard - - very serious consideration. I’m in fear that under the setup KAUHANE: You going to put the question? proposed by the majority [Committee) Proposal No. 26 that in the event any area is set aside as a city or a county under CHAIRMAN: Do you desire to say anything further? separate charter, some of the bond issues now outstanding KAUHANE: No, we’d like - - would be in a serious situation where they may have to be altered or may have to be provided otherwise. I submit that DOI: I believe there will be, after all the minority re the majority committee report, therefore, is not in line ports are in, there will be three different theories of local with the best interest under the presumption and the guise government. One that is recommended by Mr. Sakakihara, that they are advocating strong home-rule for local govern the other by the committee, the other, the third, by Mr. ment. Phillips. Therefore, we wanted to first get an agreement JUNE 23, 1950 • Afternoon Session 503 from this group here as to what theory we would subscribe consider Section 2; and then after the minorities have had to, and after that we can go into the specific sections and a chance to speak, we can move to either amend or so forth. work it out. Up to now, Mr. Sakakthara has presented his But I think it should be taken up on a consideration basis. theory of local government and I believe we should give the Is the chairman of the committee willing to accept that or chairman of the Local Government Committee a chance to answer it? present the theories of the committee report, and maybe APOLIONA: I think the reason why this local government after that, Mr. Phillips. It seems that the chairman of the has two minority reports is that if you checked the atten committee wants to yield, to yield first to Mr. Phillips. dance roll that the two majority reports came from - - I PHILLIPS: I would like - - mean minority reports came from delegates who did not attend the meetings regularly. CHAIRMAN: Pardon me, Delegate Phillips, is your - - do you know, is your minority report circulated as yet? CHAIRMAN: Delegate Apoliona, I think those remarks are on the edge of being out of order. I think you should PHILLIPS: That is what I rose to. get down - - PORTEUS: Just a point of information. The committee APOLIONA: Well, I just want to show, Mr. Chairman - - seems to be - - the rest of the Convention is able to deter mine who the members of the committee are, but what I’d CHAIRMAN: Let’s get down to merits. Confine your- like to know is, are they together on this matter? It seems sell to the immediate thing before us, which I believe is a to me the only people we’ve heard arguing so far are the consideration of the adoption of Section 1, and there’s been members of the committee. Is that right? no second to it. HOLROYDE: I’ll second that. CHAIRMAN: That is correct. CHAIRMAN: You may proceed, Delegate Apoliona. SAKAKIHARA: We are not in accord. I waited 60 days for this. APOLIONA: As I was interrupted by your honor, I mean, Mr. Chairman, the reason I say that we have these two CHAIRMAN: The report shows that there are 15 mem major - - minority reports is that we couldn’t get the mem bers of this committee, and Delegates Sakakihara and bers of the committee together at all times in our thinking. Phillips did not concur with the majority report. J. TRASK: Point of order. The delegate is not confining PHILLIPS: I’d like to ask the indulgence of the Chair to himseif to the question at hand. We are discussing Section permit me to get my report which is now, right now in the 1 and not the minority report. Printing Committee. I’d like to have an opportunity to get it out and into the hands of the Convention before I make CHAIRMAN: I am forced to agree with the delegate from any statement on it. the fifth district, Delegate Apoliona. J. TRASK: In order to save a lot of time, I believe that APOLIONA: Well, then I’ll wait for the time to come and both minority reports should be made a part of the Conven argue against the minority report. I’ll wait. tion, a part of the record, and let the original committee KAUHANE: I believe when the motion was put by Dele go ahead with their original proposal. Then the members gate Richards, who is also a member of the Committee of the - - that have filed minority reports can bring in their on Local Government, that we consider the committee pro arguments against the proposal of the committee. I think posal in its entirety, it was to allow the minority, or to that way we will save a lot of time instead of considering give the minority a right to support their minority report. individual minority reports. And if an amendment made by Delegate Bryan that we CHAIRMAN: Well, the question before this committee accept the amendment that he has offered that we take the right now is the adoption of the entire [Committee] Pro proposal section by section, the committee here would be posal No. 26. So, we can very well proceed with the glad to abide by whatever amendment he is making. chairman. Delegate Kauhane can proceed and let’s not ANTHONY: As I understand it, we are discussing the have any further delay, and when Mr. Roberts [sic] has motion which was duly seconded by Delegate Richards to his report ready it can be circulated. consider this proposal as a whole. KAUHANE: The intent of the committee is not to delay CHAIRMAN: That is correct. deliberation or consideration of the proposals relative to ANTHONY: Possibly, if we could solve the central local government. We feel under the republican form of question whether or not we want true local home rule, and government that those in a minority should be given the by that I mean with the taxing power in the local units, then right to express their opinions so that the whole Convention we can decide whether we want to go to Delegate Sakakihara’s may ably consider the matter of the majority report when it amendment or to the committee proposal. It seems to me comes up for them for consideration and vote, and I’m sure in the first order, to get at this logically if we could clear we’re just trying to abide by such a form of government. the decks on that central issue, we could then narrow our But if the Chair insists, I will now move that Section 1 of activities to the difference between the committee’s proposal Committee Proposal No. 26 be adopted. and that of Delegate Sakakihara. J. TRASK: Is that tentatively adopted, Mr. Chairman? I don’t see how under our system of laws, our system of government, we can go ahead and have true local sell- KAUHANE: Everything is tentatively adopted. government, and by that expression I mean with the taxing J. TRASK: I just wanted to be sure. power in the several political subdivisions. It would des HOLROYDE: I’ll second the motion. troy our present uniform system of taxation for one thing and we’d have a series of varied taxing authorities. We’d CHAIRMAN: Is there a second to the motion, which is have school districts, we’d have the great morass of vary in the nature more or less of an amendment of the pending ing taxing units which has plagued the states on the main motion by Delegate Richards, namely that we consider the land. I think if we could get the sentiment of the body as to entire proposal? that central issue, we could move from there to the question BRYAN: Perhaps that motion should be amended since we whether or not we should adopt Delegate Sakakihara’s sim have so many minority reports, that Section 1 of the pro ple amendment or the modified form of home rule as recom posal be considered, and when we iEun down on that, we can mended by the committee. 504 LOCAL GOVERNMENT CORBETT: I agree with the last speaker. We of the The question before the committee was to determine majority group in the committee felt that we, could not give the kind and extent of such sell-government. In arriving taxing palwer to political subdivisions for the very reasons at an answer different theories and philosophies of local that he has mentioned, and as you notice, none of us raised government were considered. any objection to any of the articles in the section on taxation. The committee realized that theories alone were in We feel that our particular form of government, the diver conclusive. Therefore, careful study was given to per sion of our factors and our plantations on the different is tinent matters as they now exist or may exist in the fu lands, makes it extremely difficult to have a breakdown in ture in Hawaii. Theories and local conditions were com the different counties for tax purposes. We also felt that pared and the proposal offered by your committee was taxing and collection of taxes is a very expensive procedure tailored to obtain a workable form of local sell-govern and should not be diversified. We state that very particu ment. larly in Section 3 of our proposal, that the taxing power The committee felt very strongly that a local govern shall be reserved to the State and only such portions of it ment unit should have strong powers of sell-government as the legislature feels should be delegated to the political with minimum interference from the legislature. Thus, subdivisions may be so delegated. Now, that I think is the we find the provision that, once defined, the political sub stand of the majority group of the committee. division of the State shall have full authority to provide While I’m on my feet, since I seem to find it very diffi for its form of government and management of its own cult to get to my feet in this Convention, I’d like to say a few affairs. more things. The committee, of course, in its first delib It may fairly be said that the consensus of the com erations looked at the article in the Organic Act and delib mittee members was to allow as much independent local erated as to whether it had contributed to the proper devel sell-government as the wellare of the State would per opment of the county governments. We find in the history mit. For example, it was felt that local taxing power is of the community that there have been many objections a desirable feature of sell-government, but that in Ha raised by various counties to the lack of home rule that waii, if this were permitted without limitation, it would they have had. We find in 1939 a memorial sent to the Con be injurious to other local governments and to the State. gress of the United States after a meeting of members of Such being the case, the taxing power was left to the leg the boards of supervisors from the different counties, re islature, the legislature to delegate portions of that questing a change in the Organic Act. This was only one power to local governments and to apportion State rev thing we found. More recently we have had letters from enues in such manner and in such amounts as the legis the local mayor and board of supervisors requesting this lature in its discretion might consider proper. Dis Committee on Local Government to consider very seriously crimination as to particular locality is consequently the matter of giving more home rule to local units. We prohibited. have tried to give as much home rule as we felt was com The problem of who should be entitled to local gov patible with the local situation. As we say in our report, ernment was studied and the legislature was given the we tried to tailor our proposal to fit the needs. power to set up uniform qualifications, and any area or Some of us are firm believers in the principle of local local unit meeting these qualifications would then be en government as strengthening all government. At the local titled to draft and submit to the people a charter for level, people can take an interest in their immediate needs. local sell-government without further legislative action. They assume a responsibility and feel an identification with That spells out the intent of the committee in providing their government which people do not feel for a centralized the proposal as submitted, Proposal No. 26. government. A centralized government which has been developing over the last two decades brings about the feeling CHAIRMAN: May I state, to remind the committee, that that is so current today, that the government is somebody the immediate question before the Convention is Delegate else. He’s a rich uncle, let him worry about our problems. Richard’s motion, seconded, to consider the proposal. The But as soon as we ourselves assume the burdens for seeing mate, Delegate Kauhane’s motion, seconded by Delegate that things are done and done properly and that the proper Bryan, is that there should be a subdivision of that question people are elected to carry out our wishes, then he is not by taking up Section 1 and to tentatively approve Section 1. our rich uncle, he is ourselves. His moneybags are not That’s the question. somebody elses’ moneybags, they are the dollars that come out of our pockets. And we would like to see government BRYAN: Mr. Chairman. return to the people, to strengthen their responsibility, to CHAIRMAN: Delegate Phillips has the floor. increase their interest, and to educate them in government. BRYAN: I think you misstated my motion. Now that answers in part our objection to adopting in toto the Organic Act clause. We feel that the legislature, in CHAIRMAN: The motion was made by Delegate Kauhane, terested as it is in territorial government, has done little seconded by you, for a consifieration of Section 1 tentatively. for county government. We are afraid that the same situ Is that your understanding? All right, correction. ation will hold when we become a State. Their duties are primarily to the State. It is for that that they are chosen PHILLIPS: Then I’m to assume that we are now consid to sit in their House of Representatives and in the Senate ering Section 1 of Standing Committee Proposal No. 26? of their State. Their duties and their responsibilities and CHAIRMAN: That is correct. their burdens should not be for the local unit. PHILLIPS: Then I would like to have this to say about KAUHANE: The Committee on Local Government felt number 1 that, “The legislature shall define political sub this: divisions of the State,” is at best a very confusing state ment. “The political subdivisions of the State” aren’t [Reads from Committee Report No. 74] necessarily - - I mean is not a proper designation. In none The urge for sell -government is inherent in every of the constitutions that I was able - - that came to my hand American. This country has been made great by an abid was I able to find comparable nomenclature, nor was I able ing faith in the principle that the people have the ability to find an actual statement that would support the fact that and have a right to manage their own affairs. It is the a political subdivision is necessarily a county. purpose of the committee to give form and life to this There is some doubt in my mind now that there is - - that urge in the Constitution. the political subdivision is a county at all because the county JUNE 23, 1950 • Afternoon Session 505 is a primary division of the State, and that the so-called sub but which there are not either the proper kinds of words or divisions are, to call them properly, would be called civil sufficient words to properly define it. divisions of the State. Now to call them and to say - - to de CHAIRMAN: Are you referring to your page 9 of your fine political subdivisions is to put into the Constitution a report, the first section, entitled “Organization of local simple section, I mean a section which the legislature would government”? not have any alternative but to break the State up into its various lower administrative districts. Now all this section DOl: Point of order again. I think Mr. Richards made does and all it accomplishes by the word “define” is to mark the motion to consider the proposal as a whole with this in or limit the boundaries of the various political subdivisions. mind, that there are three different theories. Let’s con But a political subdivision, when you really check it over, sider those three different theories and agree on one and you find out it’s nothing more than a district that has been then work out the detailed provision. Otherwise, we’ll set off in order to establish a base for representation in the have to go back and forth, back and forth. I had thought that legislature. So if we are only to define political subdivisions, that motion to adopt Section 1 was out of order because of then we are confining ourselves to - - we are confining the the previous motion to consider the whole theory. If it’s legislature, and under the strict construction of the courts not out of order, I would suggest that we have the mover of the State we would not be able to break them down into of that motion withdraw the motion. their administrative, their judicial, their election, their CHAIRMAN: The movant for - - It was really a division military significance. So it’s imperative that that wording of the question as proposed by Delegate Richards, namely be worked out. consider the entire proposal, and the division was moved - - I believe that in the report that I - - that is coming out, is on the floor now and is coming to the attention of the DOI: I don’t believe we can divide the question and save Convention - - I believe that the section, the first section time. in there will provide for the incorporation of the various NIELSEN: Mr. Chairman. civil divisions of the State, or if they care to call them, the civil subdivisions of the State, or, as would be more proper, PHILLIPS: I believe I still have the floor. the local government of the State; that in permitting them CHAIRMAN: Well the committee certainly is disposed to be incorporated would be to establish them; and in in to carry the ball and to suggest whatever manner it desires. corporating them, it is essential that in an incorporation KAUHANE: You’re right in the exercise of your duties, charter that you specify the boundaries. Those boundaries Mr. Chairman, but Mr. Bryan made a statement. Whether would be set by the people who have to live in them. That’s he was amending Richards’ motion or not it was not clearly where sell-government really comes from. To have the leg understood by the chairman of the committee, and I felt that islature define all the political subdivisions or any of the he had requested the amendment so that we take up section administrative subdivisions which is essentially what a by section. That being the case, I move to support his county or a city is for—I shouldn’t say a city there, I’ll take amendment, if the statement was to the effect that we were that back, I mean a city has other functions and more pri to consider the committee’s proposal section by section. mary functions than just that of administration of the state’s affairs, but a county’s primary - - its basic function, the BRYAN: If my request is confusing, I’d be very glad to reason for it being created at all is contained in the fact withdraw it. The intent was that instead of moving the that the State has created it for that purpose. adoption of these sections, since there were sometimes two Therefore, now that the committee report is on the floor, or three sections covered by one of the minority proposals, if it pleases the chairman, I would like to find out just what I moved that we consider the sections rather than adopt them. the logic is in putting these minority reports out. I have Then after they were considered, then the Convention could now - - I mean the thing has moved around in such a manner decide whether they wanted to adopt those sections or to I really am confused myself. I know that I would like to consider the minority proposal. So I’d be very glad to present my minority report, but I feel that it should be withdraw my request as far as that goes, if you wish. presented after the majority report has completely been con PHILLIPS: If I’m not mistaken, Mr. Chairman, I still sideyed, and then any additions to or subtractions from have the floor. I didn’t yield the floor when Delegate Doi would be either covered by my minority report or at least rose to a point of order. would have the proper consideration on the floor. Could you inform me on that, Mr. Chairman. CHAIRMAN: That is correct. CHAIRMAN: You are being given every consideration, NIELSEN: Point of order. As long as there has been Delegate Phillips. The immediate motion, of course, is - - a move to adopt Section 1, why can’t - - wouldn’t the next the question before us is the adoption tentatively of Section move be for Mr. Phillips to suggest his Section 1 as an 1 of the Committee Proposal 26. Now the Standing Com amendment to it and then we vote on it? mittee Report No. 91, your minority report, is before the PHILLIPS: That is what I would like to find out. group. You have the floor. You may proceed in whatever legitimate manner you may. KAUHANE: I rise to a point of information. I think it was expressed here that the theory of local government PHILLIPS: Well, that’s why I rose to a point of infor was first to be considered, whether we are delegating the mation. Now I am not at all in accord nor do I care to power of taxation to local government or not, as raised by think that there’s any necessity for discussing this business Delegate Anthony and Delegate Doi. If we can settle that of defining political subdivisions. Because of that, I would question first, I think we can go on with the complete pro like to replace Section 1 with - - we’ll say Section 1 of the posal. The main question can be put. minority report No. 91. But I don’t believe that would be proper at this time because it should - - I believe that it CHAIRMAN: Well, the Chair is faced, and I think the would be more courteous and more judicial to have the Com committee is faced with this decision to make. We have mittee Proposal No. 26, Section 1, be considered by the before us a concrete proposalby the committee and con Convention. At the same time, I believe that they would crete proposals by the two other members of the committee have to reconsider the minority report, the first section who have filed minority reports. Now, as far as the chair of the minority report, which I feel establishes or is at man can see, we must have something concretely before us. tempting to establish - - I mean establishes the same thing If it is the desire of the committee to talk about the prin that is attempting to be established in this first section here, ciple of local government as against considering directly 506 LOCAL GOVERNMENT the immediate concrete proposals, the Chair would be nat PHILLIPS: I feel that - - I can’t understand why these urally faced with the situation, what is the immediate ques - committee reports came out and onto the floor and are tion? covered section by section and then all of a sudden we have J. TR,ASK: May we answer it? one come out and we don’t seem to be able to organize our selves in order to consider it in the same manner that the CHAIRMAN: What is the inquiry, Delegate Trask? rest have gone through. I prepared myself. I prepared J. TRASK: There was a motion duly made and seconded my report on the basis of the habits that have been carried by Delegate Richards that the four sections of Proposal No. through on the Convention. Now I come before the Conven 26 be adopted. The Chair should have put the motion at tion and I find out that they aren’t going to consider the sec that particular time, but did not do so. So the point of order tions at all, but are going to consider some theory or some raised by Delegate Doi at this particular time is wholly out hypothesis or some major part of a section. That I believe, of order because the Chair has recognized the motion and Mr. Chairman, is not either fair nor do I believe it would a second to consider Section 1 and that has already been permit of the proper deliberative debate. carried. And Section 1 is before the committee at this par Therefore, I asked the Convention to vote against the ticular time. motion to pull out the taxing power only and to try to spread it out and straighten it out before we settle the basic thing DOl: To consider Section 1 properly, we will have to which is involved here, which is local self-government. consider the whole theory of government as recommended by That is our problem, not taxation. Taxation is something the Local Government Committee because that Is only a part that you append to - - that you give later alter you give the of the whole theory. And should we also consider the Sec people sell-government, but first we must consider sell- tion 1 of Mr. Phillips’, we’ll also have to consider the whole government. The title of the committee was Local Govern theory back of his Section 1. Therefore, I submit we are ment, and to bring out taxation at this time is only to pre wasting time if we do that. Why don’t we agree on one of clude any individual showing that this would be the best the three theories first. method of taxatickn at a later time. I feel that we should continue to handie this report in the CHAIRMAN: And what is therefore - - Mr. Doi, Dele same manner that all reports that came out on the floor gate Doi, what therefore is your motion or suggestion? and section by section. Give us an opportunity. Give the DOl: Then your problem was that we didn’t have any majority report an opportunity to be heard and to be care concrete matter before us. To get a concrete matter before fully gone through. Then the minority report. We can this group, I submit that they should read the committee hold up our action on them and our voting on them until it’s report; also that they listen attentively to this discussion. through and then the Convention will have an opportunity witi clear minds to see what has been presented to them. DOl: I believe the committee chairman will present the theory of the committee in brief; and then let’s hear the CORBETT: I think that we are managing to waste a great theory of Mr. Phillips; then let’s hear the theory of Mr. deal of very valuable time. The committee seems to have Sakalcihara; and then let’s decide. agreed among themselves that there are three different, diverse opinions about home rule. One is that there should CHAIRMAN: I believe the chairman of the committee did be none, that the local government should be entirely de- - read his report in full, Delegate Doi. And Delegate Sakaki pendent upon the legislature; the second is a modified ver hara did so also and now we are with Delegate Phillips’. sion of home rule without the power of taxation; and the third is total home rule. Now I agree with the committee HOLROYDE: Could I clear this up a little bit? Over members that we must decide on one of these three theories here. I’ll withdraw my second to Delegate Richards’ orig and then fit our proposal into the theory that we adopt. inal motion, so there’s nothing before the house. Delegate Mau has proposed, and his suggestion has been PHILLIPS: Therefore I move that the majority report - - seconded, that we give the city and counties the power Of that we continue with the majority report and proceed to taxation. Now that seems to me to go to the heart of total debate on each section, one by one. home rule, Possibly we could continue to discuss that and that alone until we have put it to a vote and then go CHAIRMAN: There’s no second. backwards. If that meets with the approval of the body, I would like to suggest that we proceed and don’t waste any MAll: You will notice that there are various groups more time, which our President yesterday urged us not to carrying on conversations, some of them outside of the rails. do. I’m going to move a bomb shell so that they will be inter ested. I move that the delegates - - that the Committee of DELEGATE: Question. the Whole now consider whether or not the counties shall CHAIRMAN: Ready for the question? have the taxing power. That is the crux to the whole things If you once vote it down, then we can go into the other de LOPER: I rise to a point of information. Mr. Chairman tails. I so move and I wish I could get a second so we can would you review for us the motions and the amendments th2 decide that. That will take it out of the picture and then are pending before the committee at the present time? we can go on. CHAIRMAN: The only question before the committee is this, whether or not we should consider giving the counties NIELSEN: I’ll second that. taxation power or not. CHAIRMAN: The motion has been made and seconded DELEGATE: Question. that we consider the question, are the taxing powers for CHAIRMAN: Ready for the question? All those in favor the counties or for the State? of considering that question, whether or not the county shall have the taxing power or not, say “aye.” Those opposed, HOLROYDE: Point of order. “no.” The noes seem to have it. CHAIRMAN: Point of order. LOPER: Do I understand that the Committee Proposal HOLROYDE: I think we’ll have to reconsider the taxation No. 26 and the amendment proposed by Delegate Sakakihara and finance section to do that. are now before the committee for discussion? MAU: Not necessarily, not necessarily so. CHAIRMAN: Yes. JUNE 23, 1950 • Afternoon Session 507 LOPER: In my analysis of the provisions of the majority the other problems. With that in mind, I move, therefore, and the minority reports, I note that Committee Proposal that we tentatively adopt Section 2 of the committee pro No. 26 says something about general laws and about no posal. special legislation affecting finances and property. I think PHILLIPS: I rise again to a point of information. I don’t that perhaps both provisions are alike on that, the majority believe this satisfies how we are going to proceed with the and the minority. Neither of them provide taxing power rest of the report then. I feel that we need a plan on which for the counties; the difference then seems to be only in the we’re going to attack the proposals; therefore, again I fact that Committee Proposal No. 26 provides for a charter move that we consider Proposal 26. for the local subdivisions and for the selection of officials in accordance with law. That is the only point on which they HEEN: Point of order. Point of order. are different. In one case the minority report says that the HOLROYDE: I yield to the delegate. selection of officials shall be as provided by the legislature and the other, majority report, says that it shall be as HEEN: The delegate was asking for information; instead determined by the political subdivisions. of that he’s making a statement. I’m concerned in this matter because of the financing of CHAIRMAN: Was there a second to - - public schools. I would like to ask any member of the com KAUHANE: I’d like to second the motion by Delegate mittee, the chairman, vice-chairman, or any of the others, Holroyde. if they can answer how will public schools be financed if we adopt Committee Proposal No. 26? CHAIRMAN: Delegate Holroyde’s motion is properly seconded, that we consider and tentatively approve Section KAUHANE: If I may attempt to answer the question, I’ll 2 of Committee Proposal No. 26. Ready for the question? answer it this way. That the Committee on Taxation yes terday and today took care of the matter of finances of J. TRASK: I should think we should hear some debate county government with relation to the maintenance of school on this section before we proceed with the vote. buildings. FUKUSHIMA: I don’t know how many hours we’ve wasted, CHAIRMAN: Does that answer your question, Dr. Loper? but this proceeding this afternoon reminded me of my bank Does any one else desire to further answer the question account, it’s not making any progress. But I would think posedbyDr. Loper? that we can take care of Delegate Phillips’ amendment right now, and if we - - if the Convention wants his proposal, WHITE: May I ask Delegate Kauhane to repeat what he we’ll adopt it; if not, we can go on with the majority and the just said. other minority amendment. So at this time I move that we KAUHANE: The question asked by Doctor Loper was adopt Delegate Phillips’ amendment to the committee pro settled by the Committee on Finances. When the question posal. was asked of the school buildings, the maintenance cost of school buildings, who was to bear the cost of that, I PHILLIPS: I second the motion. think your committee here went on record as stating that CHAIRMAN: Delegate Phillips’, which part? that would be considered as part of the financial setup FUKUSHIMA: I believe he has an amendment, does he with respect to the bond and revenues that is to be raised not? for the respective counties. CHAIRMAN: Well, he basn’t proposed that as yet. You RICHARDS: The question of maintenance of school build mean his entire proposal or Section 1 of his proposal, ings has nothing to do with the - - The only statement that please? we made was that bonds issued for the construction of schools, with the exemption of one item of $300,000 that FUKUSHIMA: His entire proposal, and we can vote on had recently been issued by Kauai, was considered state his proposal; then go ahead. obligation - - would be considered state obligations and not NIELSEN: Point of order. county obligation. We didn’t get into the question of main J. TRASK: Point of order. We are - - have tentatively tenance of schools at all. adopted Section 2. Now the gentleman should confine his - - H. RICE: I think that the whole proposal hinges on Sec CHAIRMAN: Pardon me. It has not been adopted as yet. tion 2, the matter of finance is in Section 3, and that re serves the right to the State on finances. In Section 2, if J. TRASK: Tentatively, Section 2? we adopt Section 2 as it is, we’ll put the police department CHAIRMAN: It’s been moved and seconded to tentatively and the liquor boards all under the county. In most states, adopt Section 2 of Committee Proposal No. 26. I think—I haven’t checked the number on this—but I under stand in most states the liquor is controlled by the state, and CROSSLEY: My point of order - - May I bave the floor? the police is controlled by their subdivisions. In other U they would like to follow the procedure suggested by words, if we adopt Section 2, and it becomes part of our Delegate Fukushima, it would then be necessary for Dele Constitution - - gate Holroyde to withdraw his motion. Otherwise the mo tion before us is to adopt Section 2. We have not acted on PHILLIPS: I rise to a point of information. it yet. CHAIRMAN: Please state it. KING: I feel that Delegate Fukushima has brought out a PHILLIPS: I’m still confused as to just how we’re at point that we might decide. In other w&ds, if we’ll forget tacking this proposal. I don’t believe that was ever settled the majority report tentatively or if Delegate Phillips had and until it is, I want to know exactly what we’re talking moved to delete everything in the majority report, outside about. of the enacting clause, and substitute his, he has submitted a complete proposal. Then we can consider his or not as CHAIRMAN: Well, there is - - the case may be. Until we straighten out the parliamentary HOLROYDE: Actually as Delegate Rice said the real situation, I move for a short recess. crux of this proposal by the committee is Section 2. If we PHILLIPS: Second the motion. debate Section 2 and come to a conclusion of adoption or re jection of that section, I think we could reconcile some of HOLROYDE: I second the motion for a short recess. 508 LOCAL GOVERNMENT (RECESS) CHAIRMAN: - - except Delegate Sakakihara’s amend ment as circulated which reads - - which begins “Section 1.” CHAIRMAN: The question before the house is Section 2 WIRTZ: And the motion - - of Committee Proposal No. 26. CHAIRMAN: And that the intention is to supplant, of HOLROYDE: I withdraw that motion. course, Committee Proposal 26. CHAIRMAN: Delegate Holroyde withdraws. There is WIRTZ: As I understand it, he has moved to adopt the nothing before the Committee at this time. President King amendment which is not an amendment only to Section i, is recognized, who’s just been standing, waiting. but an amendment to the entire article. KING: I yield to the delegate from - - CHAIRMAN: The entire proposal of the committee, No. SAKAKIHARA: In order to expedite the matter, at this 26, that is correct. time I move that the amendment proposed by me to the Com For the benefit of the delegates who have just now seated, mittee Proposal No. 26 be adopted. the motion before the Committee of the Whole at this time is the proposal by Delegate Sakaklhara which seeks to sup J. TRASK: Second the motion. plant the majority Committee Proposal No. 26 reading as CHAIRMAN: It’s been moved and seconded that the follows: amendment of Delegate Sakakthara submitted to the com Section 1. The legislature may create counties and mittee, reading as follows: towns and city municipalities within the state and provide Section i. The legislature may create counties and for the government thereof, and all officials thereof shall town and city municipalities within the state and provide be appointed or elected, as the case may be, in such for the government thereof, and all officials thereof manner as shall be provided by the legislature. shall be appointed or elected, as the case may be, in ANTHONY: I’ve an amendment. May I read the amend such manner as shall be provided by the legislature. ment? I move that this proposal - - amendment be amended and the same shall be adopted. to read as follows: KING: There is some discussion whether the minority The legislature shall create counties and city munici reports should be discussed first or the majority report. palities within the state and provide for the government I feel that if the Convention or the committee adopts the thereof by the registered voters therein, and all officials minority report then it serves no useful purpose to discuss thereof shall be appointed or elected, as the case may be, the several sections of the majority report. Of course, in such manner as shall be provided by the legislature alter the adoption of the minority report, additional amend to confer upon such political subdivisions local self- ments might be offered. I, therefore, feel that a decision government insofar as may be consistent with this Con on this minority report should precede the discussion of the stitution. separate sections of the majority report. I have suggested If I can get a second to that, I’d like to explain the pur to Mr. Phillips that pending action on this particular amend pose of the amendment. ment he may offer the same sort of amendment, that his seven sections be substituted as an amendment to the entire CROSSLEY: I’ll second that. article offered by the Committee on Local Government. I CHAIRMAN: You second that? Thank you, Delegate therefore favor the vote on the amendment offered by Dele Crossley. gate Sakakihara at this time. CHAIRMAN: There’s no - - Any further discussion on ANTHONY: The reason I’m tendering this amendment the - - is, if we adopt Delegate Sakakihara’s motion, that will be a complete elimination of the committee proposal and the SAKAKIHARA: Question. committee report, and as I understand it there was an ef ANTHONY: What’s the question before the house. Is the fort—I think a desirable effort—on the part of the committee vote on - - to secure local self-government, which the present Organic Act provision does not secure. CHAIRMAN: The question before the house is the motion For instance, when I was attorney general I recall the by Delegate Sakakihara with reference to his minority legislature started to pass such laws. Delegate Wirtz came amendment to Committee Proposal No. 26, Section i, which to my office one time and said, “How about this? Here’s is on all the desks. the legislature passing a law about the tennis court down ANTHONY: Well, I think we’d better have the members at Ala Moana.” In other words, they were telling the of the body on the floor when we are going to take an impor Board of Supervisors to put a new surface on the tennis sur tant vote like that. They’re not here. face. Well, now it’s that sort of nonsense, as I imagine, is one of the purposes of this committee, and I think ft’s a KING: I was going to suggest that the Sergeant-at-Arms and the messengers ask the members of the Legislative very desirable purpose, and therefore 11 we just adopt Dele Committee to please come in. gate Sakakihara’s motion - - amendment, you’ll be preserv ing that same situation, and I think that can be improved CHAIRMAN: Will the messengers and Sergeant-at- upon. I’m not particularly fond of this amendment of mine, Arms and everybody employed by this Convention please but I still think that something should be done with the Or get all the members off the floor or off the streets. ganic Act provision to prevent such instances as I’ve just WIRTZ: Point of information. I don’t know whether in discussed. your statement of the question before the house, you tied PORTEUS: Such instances didn’t eventuate in legisla it down to Section 1. My understanding was that Mr. Saka tion, did they? kihara’s amendment was to supplant the entire four sections that are contained in Committee Proposal No. 26. ANTHONY: Well, if the question is addressed to me, the answer is yes. The money was - - the mandate was CHAIRMAN: Well, in direct reply there is nothing be actually passed, and it came to the governor’s office and fore the committee - - came over to my office and at that point the county attorney WIRTZ~ There’s a motion. intervened. I’ve forgotten whether I persuaded Governor JUNE 24, 1950 • Morning Session 509 Stainback to veto it or not, but it passed both houses of the ask permission to sit again. I do not want to deny Delegate legislature. That’s the point. Phillips the time that he has. CHAIRMAN: Does Delegate Phillips desire to be heard? CHAIRMAN: Delegate Phillips, Delegate Phillips, the President has asked, without prejudice to your continuing PHILLIPS: I would not like to see that motion passed for later on, to conclude your remarks temporarily so that the various definite reasons. That the legislature shall create committee may rise and report progress and some attention a local government and take it away from the people, that given to the report so that later on you may proceed further. the legislature should prevent the people from having the sell-government for which the country itself is based on is PHILUPS: I’ll do that, Mr. Chairman. to me - - I mean I could hardly believe my ears. Perhaps CROSSLEY: I move that we rise, report progress, beg the delegate from the fourth district is versed in law but I leave to sit again. doubt now since he proposes an amendment like this that he is versed in municipal law. I have great doubt. SAKAKIHARA: Before that motion is made, before I I would like to read you that right down through the per second that motion, I will withdraw my amendment at this iods as set forth in Hawaiian history that they’ve had the time. same difficulty. The 1907 Act of Congress which finally CHAIRMAN: The motion is made and seconded that the got through was the result of a Congressional Board being committee rise - - sent down here to investigate the difficulties that existed between the highly centralized type of Hawaiian government KING: Before the Chair puts the motion, it is our under that we had and the lack of local government completely. standing, then, that the committee report and the two mi The reason for that highly centralized type of government nority reports are before the Committee of the Whole, and was to keep the people or the natives completely under the there’s no motion pending at this time. Is that correct? thumb of the..local population - - I mean of the Territory. CHAIRMAN: That is correct. The motion before the There was no desire at any time to let them have the kind house is that the committee rise and report progress and of sell-government for which America is famous. ask leave to sit again. All in favor say “aye.” Opposed, I quote directly from that history.* “The major prob “no.” Carried. lems,” at that time, “in setting up these local governments centered about the division of the functions of government JUNE 24, 1950 • Morning Session between the territorial and county organizations and the adjustment of their financial requirements. The arrange CHAIRMAN: The committee will please come to order. ments first made were not entirely satisfactory and these The committee shall consider Standing Committee Report problems became a continuing source of controversy.” It No. 74, Committee Proposal No. 26 on local government. goes on to say that, “Nearly every legislature has dealt with We were considering Standing Committee Report 74 with them in some way, and it does not seem likely that the con the attached Committee Proposal No. 26 on local govern troversy will cease until the existence of the local govern ment. There is nothing before the committee at this time, ments, the sources and limits of their revenues, and the Delegate Sakakthara yesterday having withdrawn his motion scope of their authority are defined in the Organic Act.” and Delegate Phillips decided also to forego whatever mat And then it had in parentheses, “(or in the Constitution of ters he had to say, and then we declared adjournment. the State of Hawaii) and are thus made independent of the territorial (or state) legislature.” The sources of irrita CORBETT: I move for the tentative adoption of Section tion were chiefly that they were legislative mandates that 1 of Committee Proposal No. 26. were handed down to the counties. That continued and will PHILUPS: I second the motion. continue unless we take this into consideration and do CHAIRMAN: Motion made and seconded for tentative something about it here in this Constitution. As it said adoption of Section 1 of Committee proposal 26. there, every legislature since 1907 has made an attempt, but a weak attempt, to give the counties what they deserve, SAKA.KIHARA: I withdrew my amendment yesterday local sell-government. hoping that it would give the Committee of the Whole and I would like to quote further from some of the special the Committee on Local Government an opportunity to be legislation that has existed in the Territory. heard on the majority committee report and on the Com mittee Proposal No. 28 [i.e. 26]. Later on, however, I ANTHONY: I at this time would like to withdraw my intend to offer my amendment, alter full deliberations on amendment, but I still think this question should be ser the proposal. iously considered before we adopt the delegate from Ra wail’s simple incorporation of the Hawaiian Act - - Hawaiian CHAIRMAN: Will you please state that question again. Organic Act provision. SAKAKIHARA: I’m serving notice to the Committee of PHILUPS: I believe I still have the floor. the Whole that I propose to offer my amendment later on. KING: Will the delegate yield - - CHAIRMAN: The discussion now is on the tentative adoption of Section 1 of Committee Proposal 26. PHILUPS: I’ll yield. CORBETT: The purpose pf Section 1 and this committee KING: - - for a brief statement. I think we’re all sym proposal is to mandate the legislature to set up boundaries pathetic toward what the Committee on Local Government and to define the part that will go into the constitution of is trying to obtain, a larger degree of sell-government for a political subdivision. They may be counties; they may the counties and any municipalities that might be created. be city and counties; they may be municipal corporations; However, I think there is a good deal of confusion whether they may be anything, as the legislature sees fit. But the the majority report goes too far or doesn’t gofar enough. committee felt that this was the first step toward the crea I would like to ask Delegate Phillips if he’ll complete his tion of political subdivisions, and they felt that they would remarks, and then I want to make a motion to rise and like to insure the legislature enacting laws so that any political subdivision wishing to adopt a charter, which we have set out in Section 2 of our proposal, will be able to *Kuykendall, Ralph, and Day, A. Grove. Hawaii, a his fit themselves into a certain properly defined group or tory. 1948. unit; either a county, a city and county, or a city. 510 LOCAL GOVERNMENT KAUHANE: [Reads from Committee Report No. 74.] place that wants to be a town secedes, so to speak, and sets The first section is strictly confined to the definition up ks own little government and leaves the rest of the place of political subdivisions. It does not empower the leg flat, islature to go beyond the definition, that is, no provision DOl: I would like to again attempt to answer the state shall be made by the legislature as to the form and de ments and questions raised by Delegate Tavares. I gather tailed management of the local subdivisions, except as from his statements that he is in agreement with at least provided in Section 2 in action on special requests and having counties as they exist today, four counties, five Section 3 on taxing power. The legislature is limited to rather. Then probably - - but he’s against the creation of defining standards, and that power may be exercised smaller subdivisions such as to superimpose upon the only by laws general and uniform in their application. counties. I feel the same way as Mr. Tavares does and I The political effect of this limitation is that there will stated my opinion in the committee. be no discrimination between localities. No locality Now, I think we can take care of this problem that Mr. meeting such standards will be precluded from becoming Tavares stated by changing the wording to read, “The leg a political subdivision. The legislature will adopt by islature shall have power to define,” instead of making it uniform laws, the conditions that a locality will have to mandatory that they must define these several different meet before it can become a political subdivision. After political subdivisions. So that they will have the power and the locality meets such conditions, it will be automatic it’s in their discretion if in the future they feel that they ally entitled to a status as a political subdivision, with- should create smaller subdivisions to superimpose on the out further action by the legislature. larger counties. In the continuity section we could have a TAVARES: I find difficulty in seeing how a provision provision to provide that the present setup shall continue like this will work. Don’t you have to fix boundaries, and until such time that the legislature shall provide, or the how can you fix boundaries if each subdivision is,by general different localkies shall come under the general and uniform laws? I don’t - - I’m a little afraid this provision isn’t laws. fully workable. If you mean the powers or the governmental CHAIRMAN: Do you move for the adoption of those organization or something like that, yes; but one of the words “have power to” after the word “shall”? things you have to have is boundaries, and I don’t see how those can be by general and uniform laws. DOl: No, I just raised that as a possible answer, and I would appreciate it very much if Delegate Tavares would PHILLIPS: May I attempt to answer that? In the event answer it. - the municipality or the local unit was incorporated, the charter would have specified it. The charter sets forth, TAVARES: I think that of course it’s very difficult to right at the beginning the charter would have specified just discuss one section like this alone. We had that same what the boundaries were of that particular unit. trouble yesterday, so I’ll have to go into some other sections DOl: I would like to attempt to answer the question raised incidentally. I think that pure home rule is not feasible un by Delegate Tavares. The general and uniform laws would less you’re going to give your home rule municipalities be something like this, that “Any island or combination of some share of the taxing power. Otherwise, you’re going islands having a population of maybe 3,000 people or over to have trouble. In practically all of the states that have are hereby authorized to form a local government known as the pure home rule, they give some taxing power to those a county government.” Then you might have another general municipalities, so that then there is an incentive for them law reading, “Any island or combination of islands having a to sort of set up their own little kuleana. In other words, population of 500 or more but less than 3, 000 will be entitled here’s a little hamlet in a middie of a wide, sparsely pop to a local government known as townships.” ulated area and they want to set up their own fire department and various other things. So they, by local option or what - TAVARES: I do think we should consider that, in this connection, such a requirement is going to increase rather ever you call k, form this little municipality and set up than decrease your cost of government. I believe in this their own lktle local government wkh their own little powers of raising money and so forth. As long as the taxing power Territory today, with all the kicks we’ve had, we have on is not going to be given to the county—and I’m for not giving the whole the most economically functioning government of any state as far as our local governments are concerned. it to them—I don’t believe that the home rule in any sub stantial sense is feasible. Therefore, I’d rather see some The moment you have general laws authorizing this sort of general law authorizing the legislature to create counties thing, you’re going to have the municipality of Wahiawa, the than do it piece-meal here. municipality of Kahuku, the municipality of Hilo, the muni cipality of Lanai, and - - but take Oahu, for instance. You PHILLIPS: I wonder if the last speaker would yield to a could have Kailua and Lanikai one little municipality, and question. remember, every time you have one of those, you have a CHAIRMAN: He apparently will. Proceed. new mayor and a new set of officers to do that, and new taxes have to be levied to cover those extra salaries. I think we PHILLIPS: I don’t mean k to be impertinent at all, only ought to be very sure we want this before we adopt such a that I believe that - - I mean the committee itseif, the provision. standing committee had a tendency to look at home rule I think in a large state, as most of the states in the from the standpoint of taxation. Taxation is a very difficult mainland are, where you have a very large number of thing. It would have to be worked out. I believe that the counties, k’s impossible for a legislature to administer delegate that last spoke is very fond and is on record as the private affairs or the local affairs of the many munici having said that the tax system of Hawaii is one of the finest palities. But in this small territory, we probably will in the Unked States. I’m afraid that I have to agree with never have more than eight counties at the most. By that him. We do have a very fine system of taxation, but I feel I mean one for each of the islands including Lanai and that he’s overlooking a series of questions. Isn’t the dele Molokai and maybe two on Hawaii, and so you’ve got a very, gate overlooking the fact that seif-government, that is, a very small number of counties and you have a very economi given small unit of people, should have the right to govern cal set of government now. themselves, should have the right to choose their officers, I think we should be very careful before we allow a super should have the right to decide and plan the particular area imposition of these pyramided governments that they are that they live in, never forgetting the agency of the state having so much trouble with on the mainland where each little relationship? JUNE 24, 1950 • Morning Session 511 TAVARES: May I be allowed later on to answer this? create counties and city municipalities within the state, and I see it’s time for me to leave with the delegation to see the method of establishing the same.” That would permit the Acting Governor. I would be glad to try to answer that. and in part meet the defect which has been suggested; and when we get to Section 2, it seems to me that Section 1, if CORBETT: May I move for a recess at this time? adopted as amended, would meet that particular difficulty. DELEGATE: Second the motion for a recess. CORBETT: I second that motion. CHAIRMAN: Hearing no objections, so ordered. CHAIRMAN: The motion is seconded by Delegate Corbett. (RECESS) The motion as seconded reads as follows - - KAUHANE: Is there a motion for the adoption of Section KAUHANE: Your Committee on Local Government ac 1 of the committee proposal? cepts the amendment. CHAIRMAN: There is nàw pending adoption, tentatively, CHAIRMAN: The amendment made and accepted by the of Section 1. committee reads as follows: “The legislature shall create KAUHANE: I would like to second Delegate Apoliona’s counties and city municipalities within the state, and the motion for the previous question. method of establishing the same.” PORTEUS: I had understood that the representative from TAVARES: Is it still the understanding that even if this the first representative district, the delegate from that dis is adopted, that does not foreclose an amendment to the trict, had offered an amendment, but that amendment has whole article later by an alternative provision? incorporated portions of both one and two, so that if we CHAIRMAN: That is the ruling and our understanding. adopt this on a tentative basis, it would not foreclose, would it, the presentation of the amendment at a later time? KAUHANE: The committee would like to go on record as approving any further amendments - - any reconsideration KAUHANE: That’s right. Everything is being adopted that we adopt Section 1 - - it’s accepted by the committee on on a tentative basis. tentative basis, everything here is on a tentative basis. PORTEUS: It wouldn’t be necessary to reconsider, in Then there can be any consideration of further amendment other words, in order to consider the - - later. KAUHANE: At a later time, if it is so desired. HEEN: Did I understand the last speaker to say that the committee will approve any amendment that might be sub CHAIRMAN: Will the Delegate Kauhane restate the mitted later? question? KAUHANE: We’ll accept - - will consider any further KAUHANE: The motion was made by Delegate Apoliona amendment. It was expressed here that Delegate Sakaki f or the previous question and I seconded his motion. hara be given the right to submit his amendment. CHAIRMAN: Ready for the previous question? Adopt HEEN: Oh, I see. Section 1, tentatively. CHAIRMAN: The committee will not be obdurant to any ROBERTS: I’m in complete sympathy with the recom suggested amendment later on. mendations of the Committee on Local Government. I be lieve that we ought to give serious consideration to the desire BRYAN: Speaking to the amendment proposed by Dr. and request for local government consistent with those in Roberts, do you think that the word “city” is required? stitutions that we have established on a state-wide basis. ROBERTS: I merely followed the language of the Organic I think as a democratic country, we have got to get people Act as a matter of convenience. I don’t think it is necessary. interested in government on a local basis and as close to their home communities as possible. We have established CHAIRMAN: Any further debate on the amended Section by state action certain things in the field of education and 1? finance which are wholly commendable and probably should PHILLIPS: It’s very difficult for me to get up and say remain on a state-wide basis. There are, however, areas anything against this because my teacher, Doctor Roberts, in which local self-government ought to be aided, and people would put me in a bad light. I would like to say this though, should become more interested in the operation of their that for the legislature to create a county or municipality, government, and the only way to do it is to create greater no legislature ever creates a municipality. It doesn’t responsibility on the local level as close to the grass roots create a city; it can very definitely and would, whether we as possible. put it here or not, create a county. A county is a defined I am in sympathy with the proposal, but certain suggestions area, as brought out by Delegate Tavares, is an area have been made which indicate that there may be some dif whose boundaries have been established to establish it as ficulties in carrying it out. It has been pointed out, for an administrative, a political . example, that in the first section which is now before us [Part of the speech was not recorded. for consideration, that the word “define,” “the legislature Congress will pick that out as one of the basic things shall define the political subdivision,” merely means that wrong with the Constitution. the areas are to be set out, and the question has well been It seems local government doesn’t have so very much raised as to how the charter is actually to be put into effect. meaning, just pass it right along, it doesn’t mean much. Shouldn’t the legislature be permitted to indicate the method But it is the grass-roots, the very fundamental of the kind, by which that charter is to be created? I would therefore type, quality of government at the top of the ladder. The move an amendment to Section 1. That the word “define”- - legislature itself, the special legislation that the legislature APOLIONA: On a point of order. I now withdraw my has been dealing in all these years is not a healthy thing. motion for the previous question so that Delegate Roberts They’ve done a good job as best they can, but it’s still could give his amendment. special legislation; and because it’s special legislation, any individual who is familiar with simple municipal corpora CHAIRMAN: Thank you. Proceed, Delegate Roberts. tions or muncipal law would tell you that it is not—and we ROBERTS: I would therefore move to amend Section 1, can find it in all our manuals —that it is not a healthy thing which incorporates in part the first part of the present to let the State create something when the desire for seif Organic Act, and it would read, “The legislature shall government, the pride of ownership, the pride of planning, 512 LOCAL GOVERNMENT beautifying, keeping clean and establishing efficiency, so that the section as amended would read “The legislature rests in the local unit. shall create political subdivisions within the state, etc.” Therefore, I think that this is not a necessary section if KAUHANE: That’s acceptable. all it’s going to do is just create a county. They would do that for the admininstrative purposes. Therefore, I feel CHAIRMAN: Is that accepted? Will the committee chair that we should establish in our first section an opportunity man accept that amendment, to substitute the words “politi for those individuals who are going to run, who are going cal subdivisions” for the words “counties and city munici to live in that community and not be dictated down from palities”? above, which has always been obnoxious to Americans. I KAUHANE: We’ll accept it. believe that we should permit them, through a charter and a commission established by them or by the legislature, to PHILLIPS: The words “cities” and “municipalities” are put this thing into being through this charter and establish identical. They are a repeat of one another. Then second their right to self-government, limit them and let them ly, that would preclude any of your small cities or your discover and find out about their government on the bottom. so-called townships or if someone wanted to call it a village Now to do it that way rather than to let the almighty legis or something like that, or a district, or any other division lative tyrannical body over there tell them how to, what of the future. We don’t know exactly how transportation their government is going to be, who - - how they are going is going to change within even the next five years. So I to select their officers, what their boundaries are going to feel that if we were to follow the accepted - - the generally be and do it arbitrarily, is obnoxious to American demo accepted terminology as incorporated in all the other con tracy fundamentally. stitutions which I had an opportunity to go through, “the civil divisions,” would encompass everything. Cities and CHAIRMAN: Thank you, Delegate Phillips. It is the counties as we know here, we have - - right now there are rule, of course, I believe, that as communicated yesterday no such things as cities. We only have counties, excepting by Delegate Rice, we shall follow the idea of five minutes in the city and county which is a consolidation in Honolulu. to each and not have any repeats until the other delegates Therefore, to just say “cities and counties” would be to es have all spoken. Then, you may then consider speaking tablish for all time no opportunity for anybody living in a on the matter. city which, we’ll say, originally was a village, then all of ROBERTS: On a matter of personal privilege. a sudden due to technology it thrives and becomes a very large group, but it was never considered a city, so there CHAIRMAN: Dr. Roberts, you may answer. fore it never will be considered a city and it will be right ROBERTS: First, let me say that I do not accept Dele down into the future subservient just as New York City is gate Phillips as a student in the Convention. He is my today subservient to Albany. equal as a delegate, with the power to vote and the power I would say - - I would move to amend that, instead of to express his opinion and his position. Further, I might the terminology as suggested by Delegate Castro, that the point out that Mr. Phillips has already graduated from the term “civil divisions,” which would be sufficiently inclusive, University and therefore nothing that I may say and do will sufficiently flexible, and definitely understood by the courts in any way affect his future. because they have a great deal of interpretation on that. CHAIRMAN: We are aware that we are all peers. CHAIRMAN: I hear no second to the motion. ROBERTS: I might state on the matter of the problem SAKAKIHARA: Second it. before us that the creation of the counties is not a creation CHAIRMAN: Seconded by Delegate Sakakihara, namely in the sense of doing something which establishes some that the words “political subdivision” which has been ac thing which has not existed in terms of property. It’s an cepted by the committee, the amendment made by Delegate area which is recognized. If you don’t create it in some Castro shall be stricken and in lieu thereof the words “civii form and establish the area, you may have so-called juris divisions” supplied by Delegate Phillips, seconded by Dele dictional disputes. One area decides it wants this, one area gate Sakakihara. Ready for the question? decides it wants the same thing. Those problems, of course, can be resolved. The word “create,” as I’ve used it, I HEEN: You’ll find in the articles already approved by don’t thing can be objected to by the Congress of the United this Convention the use of the term “political subdivisions States. It is the word that they themselves put into our or agency thereof” in several places. This might create Organic Act. Now maybe the present Congress will think a situation where you’d have to interpret the difference be differently; that may be. I can see no serious objection to tween “civil divisions” and “political subdivisions.” I think leaving the word “create.” I think the problem that Dele inasmuch as we’ve used the term “political subdivision or gate Phillips presents, I think is basically a problem of agencies thereof” in the articles which already have been difference in terms as to what should ultimately go into approved, we ought to follow that same language throughout. the basic article. APOLIONA: Your committee is not in favor of that word “civil” and I hope that the Delegate Phillips’ amendment will APOLIONA: If all the delegates here assembled are sat be voted down, and now I move for the previous question. isfied with the section and have no further debate, I now move for the previous question. NIELSEN: Point of order. CHAIRMAN: Ready for the question? The question is CHAIRMAN: Point of order. on the accepted amendment to Section 1 of Committee Pro NEILSEN: We have an amendment and we have an amend posal No. 26, the amendment having been accepted by the ment to the amendment and now we have another amendment committee, reading as follows: “Section 1. The legislature to that amendment. shall create counties and city municipalities within the state, and the method of establishing the same.” CHAIRMAN: All the amendments have been accepted, except the last. CASTRO: I do believe that the words “political suddivi NIELSEN: Well, you can’t have three amendments. sions” is better and more al] -encompassing than “counties and city municipalities”; sol would move to amend the CHAIRMAN: These are not amendments. They are ac amendment to delete “counties and city municipalities” and cepted by the committee and they are not considered amend substitute in lieu thereof the words “political subdivisions,” ments as such. JUNE 24, 1950 • Morning Session 513 PHILLIPS: I really regret taking any more time of this DELEGATE: Question. Convention than is necessary, but I’d like to say to Delegate MAU: Before you put the question, I have no objections Heen that that word “political subdivision,” I wrestled with to the words “political subdivision” being substituted, but it for about three solid days, and it’s an elusive term. I I think the Convention ought to know that that is a very, very would say this though, that the word “political” attempts much broader term than “counties or city municipalities to establish an adjective which would define the fact that a or towns,” so that in the creation of these political subdivi county or a subdivision or individual of a state is broken sions throughout the various counties we could have town down into that division for this purpose, for basing the ships, villages. We could have education districts, irriga representation in the State legislature, and therefore if tion districts. They are all political subdivisions. Now, you were to say “political,” then you would mean that that of course, that would be left to the legislature, but I just is the chief purpose for which that subdivision was estab want to point out that that term is so broad that you can lished. Now the word “civil” includes administration, elec have more than merely county governments and city govern tion—which is your political—the various other things such ments. as, you have your elections - - you have more, and espe cially ahd primarily you have a . . . [Not recorded. 1 APOLIONA: In the language of H.R. 49 as amended the phrase “political subdivision” is used throughout, and I BRYAN: I think that it would be entirely adequate to use think if Congress uses that word throughout in its language the word “political subdivisions.” in H. R. 49, it’s not wrong to use it in our Constitution. PHILLIPS: I have the floor. If I - - ROBERTS: May I suggest, since the statements made CHAIRMAN: Unless you’d like to state a point of order. by Mr. Mau and Mr. Phillips do raise some question, that the Committee of the Whole report show that the adoption of BRYAN: I’m sorry, I thought you were finished. I’m this language does not preclude the creation of counties, very sorry. cities, and other civil divisions. If the Committee of the PHILLIPS: No, my mike went dead. Whole report will show that, then I think our problem can BRYAN: Well, would it be acceptable to you if the Com be met. mittee of the Whole report was to show that that would in CHAIRMAN: The question before the house is this, as clude towns and cities? the amendment recently made by Delegate Rice was accepted, PHILLIPS: I would say that we could, simply, just a to read as follows: “The legislature shall create political matter of clarity, and I would like to support it by this, that subdivisions or any agencies thereof within the state, and the Dillon’s Rule, which is applicable in municipal law is - - method of establishing the same.” just one second, I have it here. It’s one of the most impor ROBERTS: I understand that “other divisions” were tant reasons why we should carefully say what we mean in left out. this particular section. There has been massive, great APOLIONA: “Or agencies” was left out. stacks of cases come out of litigation between municipalities and counties and states, and out of that has been established CHAIRMAN: So that it reads as follows: “The legislature what has been known as Dillon’s Rule. If you’ll bear with shall create political subdivisions within the state, and the me just a minute, I’ll read it. Dillon’s Rule essentially is method of establishing the same.” Ready for the question? this: Those in favor say “aye.” Opposed, “no.” Motion carried. It is a general and undisputed proposition of law that PORTEUS: May I point out that it’s now five minutes a municipal corporation possesses and can exercise the after ii or 10 past 11. Unless we move along today, we’re following powers and no others: First, those granted in not going to finish this article. I think it is highly desirable, express words. if we can. So I suggest that we limit the speakers to five minutes on each point, and that the Chair insist that all CHAIRMAN: Well, Delegate Phillips, our attention is directed to your suggested amendment, to the term and people speak before the person who has spoken speaks a definition of the words “civil division.” Now you’re talking second time. I’d be very happy to assist the Chair in being about municipalities and city municipalities. I’ll have to the unmentionable that gets up and directs attention to rule you out of order unless you confine yourself specifically the fact that the person has spoken more than once before to the definition of “civil division,” whether it includes or the others have spoken, or that they have spoken more than excludes “political subdivision” or whether it’s a broader five minutes, if that procedure is acceptable. term which would include “political subdivision.” HEEN: I move then, that it is the sense of this committee SAKAKIHARA: In order to expedite the matter, I with that speakers be limited to not more than five minutes dis draw my second to that motion. cussing any issue; and in connection with that I move that the Secretary be timekeeper and referee. CHAIRMAN: The question before the house, therefore - - NIELSEN: I second that motion. H. RICE: I’d ask the chairman of the committee and the committee to accept Senator - - Delegate Heen’s amendment, CHAIRMAN: Ready for the question? All those in favor “political subdivision or the creation thereof - - or any say “aye.” Opposed, “no.” [Carried.] agency therof,” because I can see that the Water Board on CORBETT: I move for the tentative adoption of Section Maui would be an agency of the county, and I think that that 2. would be agreeable to the committee. HOLROYDE: Second the motion. KAUHANE: Mr. Rice being a member of the committee, the full committee will accept that amendment made by CHAIRMAN: Delegate Holroyde seconds. Delegate Heen. KAUHANE: [Reads from Committee Report No. 74.] HEEN: I did not make that motion to have agencies in The first sentence of Section 2 deposits a constitutional cluded in that definition. I think if you use “political sub right with each political subdivision to adopt a charter division” it would include any agencies that might be created of its own choosing. The committee feels that the leg afterwards. I think the amendment proposed by Delegate islature should establish mechanics for this including Roberts and accepted by the committee is the one that should the manner of electing a charter commission, the com- - be adopted. position of this group, their method of procedure and 514 LOCAL GOVERNMENT the means for referring the charter to the people and that reason I believe that all officials, whether appointive should also provide the funds therefor. This does not or elective, should be decided by the local subdivision. For give the legislature authority to detail what shall be con that reason, I am against the phrase in the last two lines tained in a charter or to interfere in any way with the that say — — the last three lines which says, “All officials self-determination of each political subdivision. If a thereof shall be appointed or elected, as the case may be, political subdivision has the power to frame and adopt in such manner as shall be provided by the legislature.” its own charter, even in the absence of complete taxing I think that should be the prerogative of the local subdivi power, it is considered to have at least some degree of sion. home rule. This is the political philosophy strongly en dorsed by your committee. RICHARDS: I have been sitting here day alter day after day listening to this discussion on the point of whether of The committee feels that any board, commission or ficials of State government should be appointed by the gov department of the local government should be a con ernor or handied in such manner. And there has been stituent part of such local government and that all ap pointments to such boards, commissions or departments continual talk about not having faith in the people. Now, apparently, the legislature doesn’t have faith in the people should be made by the duly constituted authorities of either because they wish to retain - - or rather certain dele such local government. gates wish to make the legislature all-powerful over the CHAIRMAN: Any further debate on the tentative approval rights of the people. I don’t quite understand that particular of Section 2? way of thinking. SAKAKIHARA: I, at this time, desire to offer an amend We of the committee felt that the people should have the ment to Section 2 of the proposed amendment, Committee say in how they should be governed at the local level. It Proposal No. 26. I think my amendment has been circulated was brought up yesterday and remarked that citizens of and distributed to the members of the committee. I think Molokal had to go to the legislature to get redress from the this is the appropriate time to take up the amendment. My County of Maui. Now, if the County of Maui was able to amendment reads as follows: form its own government, probably that would not be neces sary. The government has been thrown at the County of Section 1. The legislature shall create counties, and Maui by the legislature. My feeling is that we should trust may create town and city municipalities within the state, the people and permit them to have their own form of local and provide for the government thereof, and all officials government of their own choosing. thereof shall be appointed or elected, as the case may be, in such manner as shall be provided by legislation. APOLIONA: I am speaking against the amendment. Your Committee on Local Government is trying to get for the HEEN: It seems to me that amendment should be offered people of the several counties exactly what we delegates to Section 1 of the article proposed by the majority of the in the Convention here assembled is trying to get for the Committee on Local Government - - people of the State of Hawaii. CHAIRMAN: I might indicate that - - CHAIRMAN: Would you yield for a moment, please? HEEN: - - or it may be substituted for one and two; and There is some doubt in the Chair’s mind whether or not the if that is so, then of course - - and if it is adopted, then motion made by Delegate Sakakihara, the amendment, was we don’t have to do anything more. seconded. I don’t believe it was seconded. CHAIRMAN: That’s correct. Delegate Sakakihara yes WOOLAWAY: I’ll second the motion. terday indicated, and it was the sense of the committee, CHAIRMAN: Seconded by Delegate Woolaway. Proceed. that his amendment would apply to practically the entire proposal. Any further discussion? APOLIONA: As I have said, we delegates here assem bled in this Convention are trying to get for the State of CORBETT: I would like to point out to the members of Hawaii the type of government which we in committee here the Convention that this proposal leaves out two points in our are trying to get for the people of the several counties, and Section 2 which the committee feels are of importance. that is home rule as much as possible. We recognize the One, the formation of any local group of their own charter, supremacy of the State just as much as the State recognizes the choosing of the method by which they wish to be gov the supremacy of the Congress. The Congress of the United erned. U it is a city, do they want to be governed by a States has in the past fifty years put Hawaii on probation, mayor and a board; do they want to be governed by a com yes, on probation., before she could be welcomed and taken mission form of government; do they want a city manager, in to the states as one of the states of our Union. Congress or what? We feel that local people should have this choice. has sent congressional committees after committees down Now, there is nothing said about that in the amendment to Hawaii to investigate. offered. The next thing which is completely omitted in the amend PHILLIPS: I rise to a point of personal privilege. I be ment is any reference to the legislature not interfering with lieve that the delegate has made a misstatement there. I local government. Now, I don’t wish my good friends to think that just as the states are under or subordinate to the jump on me and say that I don’t have faith in the legislature. Congress, I don’t feel that that is the real difference - - I’ve always been a very strong backer and an ardent ad CHAIRMAN: That’s part of debate. Proceed. mirer of legislators individually and collectively, but I do feel that the burden of local government for people who are APOLIONA: I prefaced my argument on that—home elected to govern the state is too much, and they should not rule as much as possible. interfere with local government. The officials elected at The Congress of the United States has sent committees a local level should take care of the burden that their people after committees down to these islands of ours to ascertain lay on their shoulders. for themselves whether Hawaii has met with the qualifying requirements and needs to become a state. Congress has SERIZAWA: I believe the amendment as offered by defined to the people of Hawaii the definition of a state and Delegate Sakakihara leaves it up to the legislature to de today Hawaii has answered to Congress that she has what is cide as to whether or not the local subdivision will appoint needed to be a state. In this section we are exactly saying or elect its officials. I believe the consensus of the Com what the Congress has been saying to the people of Hawaii, mittee on Local Government was that as much home rule and that is, “Here are your qualifications, go and meet as feasible should be given to the local subdivision, and for them.” Here we are asking the State legislature to set the 515 JUNE 24, 1950 • Morning Session qualifications for county self-government, and if and when TAVARES: Well, I - - the word I had was “any county, a political subdivision qualifies itself to be self-governing, town or municipality,” to fit in with Delegate Sakakihara’s then the State legislature should grant the deserving politi amendment which reads, “The legislature shall create cal subdivisions self-government, not detrimental to its counties, and may create town and city municipalities.” cause. I think there’s some virtue in retaining the Organic Act Now, we ask ourselves, what constitutes a political sub provision. I’d like to point out that the Organic Act says division? For our purpose here we can say each island is “may” as to all. We are mandating county creation and a potential political subdivision. Having determined this making it permissive for other types, and I think that’s all factor as one of the qualifications of a political subdivision, right. That’s to recognize our existing counties’ status, so we now say to the legislature, provide for that farm of gov it can never be taken away, but with that addition, I think ernment thereof, whether county or city and county or city a great deal of the trouble that the counties have might be municipality, reserving to the several political subdivisions taken away. the form of government it desires. We agree that complete I’d like to read that sentence again. First of all, change home rule is an impossibility, just as a complete home rule the words, “the legislature” in the last two lines of Dele for the State of Hawaii is a complete impossibility. But we gate Sakakihara’s amendment to read “law.” Then add the do say, and we say with emphasis, that out of respect to the following sentence: “No law shall be passed mandating any lowest level of government for, of and by the people, we county, town or municipality to pay any previously accrued should encourage and not discourage our local government claim.” I move the amendment. to have as much home rule as possible. How we are going WOOLAWAY: I second the motion and on behaif of the to do it is up to each and every one of the delegates here movant, we accept the amendment. assembled to help us in this problem and we so request it. TAVARES: I think a little information here is in order. SAKAKIHARA: My attorney-in-fact has expressed my Under the Organic Act, contrary to Delegate Phillips’ re opinion. port, Congress did not create counties. Congress author TAVARES: Now, the meaning of this is this. Where a ized our legislature to create them and under that author claim is already accrued against the county, even if in ization our legislature has created them and there has been favor of the State, we shall not mandate the county by law quite a measure of self-government. If you listen to the to pay it. We go into court or do it some other way. How arguments here, you’d think there had been no self -govern ever, that will not prevent the legislature, in making ap ment. There has been a great deal of it. propriations, to put conditions on those appropriations; but Secondly, Congress didn’t see fit to put a mandate on the it will prevent the legislature from saying to a county, legislature. It left the legislature to make cutting and try “You shall pay this claim which was previously accrued.” ing here and there, to work out the best possible adjustment. And I think that is one of the greatest sore spots about man Thirdiy, it is my understanding that a large number of dates. states, perhaps a majority, do not have mandatory provi sions in their constitutions for home rule, according to RICHARDS: I think that is one point that the counties the Manual as I read it. object to, but having served on the counties, there are a Another point, we are a very small territory, as I said lot of other mandates that are just as obnoxious. There before. Our legislature has, can and does pay more atten is a great habit on the part of the legislature of mandating tion to local problems than a legislature of a large state. the construction of certain things without providing the And for that reason, we are justified in burdening it, as we funds. That is a mandate for the future, and it’s swell to wouldn’t be in a large state, with more local problems than pay a political debt by getting something through the legis we otherwise would. lature that merely mandates the county to do something Another point I’d like to bring out. I make no criticism without providing any money for it. That is very obnoxious of this, of the county committee. I think if all the lawyers to members who have served on any county government. in this Convention had worked for 60 days on this problem, There is another matter, too, and that is when local they probably couldn’t have brought in any more satisfactory functions are involved and not State functions. Why is it solution than this. My own feeling is, I’d like to see more that the governor appoints various boards to handle just lo home rule, but I don’t think it’s been worked out carefully cal functions, such as the liquor commission, police com enough and I don’t think we can, in the time we have, to mission and other commissions of that nature that are pure make - - to see what is going to happen to the presently ly local in their functions? existing government, some of these elements of which we ASHFORD: Speaking for the forgotten island of Molokai, would like to see preserved. I am not satisfied, from the we very much approve legislative mandates. language given in the committee majority’s report, as to just what would happen, I don’t think we can, in the time SHIMAMURA: May I ask the proposer of this amend we have, make such a satisfactory working out of a pro ment a question? Will you yield to a question, Delegate gram or plan to show just what will happen. Now, there is Tavares? no agreement among the various states as to what home rule TAVARES: I’m always glad to yield. should be, or how much home rule is to be, or just how it should be done. So it’s no wonder that we can’t agree here. SHIMAMURA: You have here “pay any previously ac Now, I think one of the greatest objections the counties crued claim.” Is there any special reason for “previously have had, has been to the mandates which have been placed accrued”? Couldn’t you just say “pay any claims”? on the counties at times to pay certain claims. I think that’s TAVARES: Yes, there is this difference. I think that very bad practice. I would like to ask the sponsor of the after a claim has accrued, the legislature should leave it amendment if he would accept the following amendment to to the courts to decide who should pay that claim. The be added - - First of all, an amendment. Instead of the last legislature shouldn’t move in there and be judge, jury and two words “the legislature,” insert the word “law,” “as shall prosecutor. But as to future claims, I think the legislature be provided by law.” And then add the following sentence: ought to have some leeway to say that if certain types of “No law shall be passed mandating any county, town or claims accrue in the future, they shall be handled a certain municipality to pay any previously accrued claim.” way or certain things shall be done. I’m not sure if we CHAIRMAN: “No law shall be passed mandating any made it all claims, whether we would be foreclosing the leg political subdivision - - ? islature too much. But I do think that as to accrued claims, 516 LOCAL GOVERNMENT there has been a definite abuse in the past about the legis APOLIONA: Will the Delegate Tavares yield to a ques lature taking on these claims and acting as judge and jury. tion? Delegate Tavares, if this amendment passes, does SHIMAMURA: Do I understand from the speaker that the it mean that the governor could appoint your police com meaning of the term “previously accrued” means accrued missioners and your liquor commissioners? at the time of the adoption of this Constitution, or accrued TAVARES: That is correct, if the legislature so pro at any future date? vides. TAVARES: I think it means accrued at the time the law ROBERTS: I’m wondering whether the movants would is passed. Already accrued at the time the law is passed. accept a further suggestion in the following form. Let me We don’t want the legislature acting as a court. state first the purpose and then I’ll read the language. This provides that the government of the political subdivisions SRIMAMURA: That was my understanding at first. is to be established by the State. I think that we ought to CHAIRMAN: Any further discussion? make some provision to give the people who are to be gov erned some opportunity in the creation, structure and op BRYAN: I’d like to ask the joint council of movants of eration of that government. Just as, for example, we as this amendment if they would consider another amendment a State now are setting up our own form of government. I to the first line and also in the last line. “The legislature would suggest the inclusion after the words “for the gov shall create counties and may create other political sub ernment thereof,” the inclusion of the following phrase, divisions.” Then use the word “political subdivision” in “when approved by a majority of the voters registered the last sentence as well. Would that be satisfactory? therein in the political subdivision,” which would give the TAVARES: Speaking for myself, I think that would be local government - - the group that is to be governed the all right. opportunity to pass on whether or not the legislature - - the political subdivision created by the legislature and the form CHAIRMAN: Will you please restate that? of government was acceptable to them. SAKAKIHARA: I understand the motion. In lieu of “town TAVARES: May I, in answering that, ask another ques and city municipalities,” the amendment proposed by Dele tion? Is it not true that in many states, without a mandate gate Bryan is to insert “other political subdivisions.” Is in the Constitution, the legislature has by law provided for that correct? such types of home rule? CHAIRMAN: At what particular place? ROBERTS: Oh, there’s no question that such procedure SAKAKIHARA: On line two of my amendment, after the has been followed, but I gather that what we are trying to word “create.” do is to give as much local self-government as possible, and this would, it seems to me, give that opportunity. CHAIRMAN: Insert the word “political subdivisions”? TAVARES: I see the gentleman’s point, but it seems to TAVARES: No, I think the amendment was to have the me that the counties - - the voters of the counties are going first few words read, “The legislature shall create counties, to elect the members of their legislature, and if they want and may create other political subdivisions.” such provisions, it seems to me that it’s within the province SAKAKIHARA: That’s right. of the legislature to authorize such types of adoption by the voters. It can be done under this provision. TAVARES: Well, is that acceptable to the movant? CHAIRMAN: Before we proceed any further, will there SAKAKIHARA: It is acceptable to me. be a second to this suggested amendment by Delegate Rob TAVARES: We all accept it, Mr. Chairman. erts? In that case, I ask that we accept another amendment to PHILLIPS: I second that motion. my amendment, namely where it says “mandating any county, town or municipality,” substitute the words, “mandating any CHAIRMAN: Proceed, Delegate Tavares. political subdivisions.” TAVARES: Sorry, Mr. Chairman, I’ve spoken more SAKAKIHARA: I second that motion. I’ll accept the than once. I just want to say that I am opposed to this amendment. amendment. I don’t think it can be worked out properly in the time we have. CHAIRMAN: That’s to be inserted between the words “any” and “county,” is that correct, Delegate Tavares? CHAIRMAN: Any further discussion on the suggested amendment seconded by both Phillips and Delegate Corbett? TAVARES: That is correct, and then delete the words “county, town or municipality.” BRYAN: Speaking to the last amendment proposed by Delegate Roberts, I believe that that could be provided by CHAIRMAN: The consolidated amendment offered by the legislature. Delegate Sakakihara reads as follows: “The legislature CORBETT: I’m of the opinion a great deal of material shall create counties, and may create other political sub that has been written into the Constitution could be provided divisions,” striking the words “town and city municipali by the legislature but my courage was stirred the other night ties. by one of my fellow lady delegates when she got up and said, TAVARES: May I read the whole section as proposed to “What are we doing here if we are not writing constitutional be - - as it is now that the amendments have been accepted. law? If it all can be done by the legislature, why have we CHAIRMAN: Proceed. been elected? Why are we sitting here?” We certainly are putting some legislative law into the Constitution, but TAVARES: I’ll read slowly. It will read as follows: we are affirming certain beliefs when we do that. We be “The legislature shall create counties, and may create lieve the people of the counties should have a great deal of other political subdivisions within the state and provide say in governing themselves at their own local level. In for the government thereof, and all officials thereof shall order to insure that, this clause, or phrase rather, added be appointed or elected, as the case may be, in such man to the amendment would insure legislation being passed. ner as shall be prcvided by law. No law shall be passed If it can be passed, if it has been passed in many states, mandating any political subdivision to pay any previously where is the harm of writing it into the Constitution? It accrued claim.” will serve notice to the people who have to vote on this that JUNE 26, 1950 • Morning Session 517 they are going to have control of government at the local H. RICE: I think they ought to mimeograph this section level which is the place that immediately interests them. as it is being proposed at this time, and let it go over until Monday because I don’t think that they have touched on the CHAIRMAN: Question before the committee - - two main topics that the counties are interested in, and that DOl: I would like to move to amend the amendment of is the liquor commission control and the police control. Delegate Sakakihara and Tavares by deleting on the fourth PHILLIPS: I second that motion. line after the word “thereof,” instead of a comma, inserting a period, all that follows after the comma down to the end CHAIRMAN: You’ve heard the motion, seconded, that of the sentence before the new sentence as recommended we recess, or the committee - - by Delegate Tavares, and inserting a new sentence thereof H. RICE: The committee rise and report progress, and to read, “All officials of the several political subdivisions in the meantime have this amendment presented to the staff shall be elected by the electors of the said subdivisions or and have it circulated and put on our desks on Monday morn- appointed by the authorities thereof.” ing. CHAIRMAN: I’ll have to rule that particular motion out WOOLAWAY: I second the motion. of order as not being germane to the motion made by Dele gate Roberts at this time where our attention is to the mo CHAIRMAN: It has been moved and seconded. Those tion, “when approved by a majority of the voters therein.” in favor vote “aye.” Those opposed, “no.” Motion car So if you’ll hold that up, Delegate Doi, for a moment, let ried for the committee to rise and report progress. us dispose of this matter. Are you ready for the question? JUNE 26, 1950 • Morning Session SERIZAWA: Point of information. Would it be possible to have Doctor - - Delegate Roberts’ amendment restated? CHAIRMAN: Committee of the Whole will now consider CHAIRMAN: Delegate Roberts’ amendment as seconded, Standing Committee Report No. 74 on the Committee Pro is on the fourth line after the first word “thereof” comma, posal [No. J 26, and also - - insert “when approved by a majority of the voters therein.” H. RICE: I move that we have a five minute recess. SERIZAWA: “Therein registered” or - - CHAIRMAN: No objection, so ordered. Sakakihara, CHAIRMAN: The amendment is, after the word “thereof” the movant of the pending motion, is not present. on the fourth line, “when approved by a majority of the registered voters therein.” (RECESS) ROBERTS: I might suggest a slight technical change in language, “when approved by a majority of the registered CHAIRMAN: We are considering Standing Committee voters voting thereon,” in conformity with our previous Report 74 and Committee Proposal No. 26. For purposes discussion on the people who actually vote on the question. of continuity, the matters before the committee are these, “When approved by a majority of those voting thereon.” two in number. You have on the desk the amendment of fered by Delegate Sakakihara with reference to the tentative CHAIRMAN: Is there any further - - adoption of Section 2 of the Committee Proposal No. 26, PHILLIPS: I’ll accept that. I’ll second that. which reads as follows: HOLROYDE: I’m a little confused as to the full effect of Section 2. The legislature shall create counties and that suggestion by the delegate from the fourth district. may create other political subdivisions within the State, For example, if the legislature wished to provide Lanai with and provide for the government thereof and all officials a separate county, what voters would have to approve that thereof shall be appointed or elected, as the case may be, legislative action? All of the present County of Maui would in such manner as shall be provided by law. No law shall be affected. Would they all vote to approve that or just be passed mandating any political subdivision to pay any Lanai, for example? previously accrued claim. ROBERTS: That would apply only to the political sub At the close of the session on Saturday, Delegate Roberts division that is being considered. offered the following amendment, in the fourth line after the word “thereof,” to insert “when approved by a majority of HOLROYDE: The one to be formed, not the one that - - those voting thereon.” So the question before the committee not all that are affected by that formation, then? is for the - - on the amendment to the amendment of Dele ROBERTS: The political subdivision created by the leg gate Sakakihara, “when approved by a majority of those islature under the section. The people there covered and voting thereon.” What is your pleasure? the government provided by the legislature would be voted on by the people who are to be governed by that area. CORBETT: I have an amendment which I think has been put on the desks of all the delegates. Would the proper PHILLIPS: I am not sure, but I don’t think that - - I’m thing be to offer that as an amendment to Delegate Sakaki not sure. I don’t think that’s quite right. The political hara’s amendment or not? subdivision would be the county there, so the entire county CHAIRMAN: You may do so. would vote on whether Lanai got segregated or separated apart. CORBETT: Well, my new proposal is in five sections and I believe property only the first two sections would be HOLROYDE: Point of information. an amendment to Delegate Sakakihara’s. The others go APOLIONA: If Delegate Phillips will read his amendment, further into the other sections of the original committee it says “other political,” “may create other political sub proposal. However, I would like to offer the entire five divisions.” sections at this time as an amendment, and may I have a second? CIIAIRMAN: The question before the house is, after the word “thereof” on the first line insert “when approved by Section 1. The legislature shall provide by general a majority of the voters voting thereon.” We are 15 min law for the incorporation, by locally framed and adopted utes to 12, ladies and gentlemen. Can we dispose of this charters, of political subdivisions. matter before noon? Ready for the question? The question Section 2. The legislature shall also provide by gen as stated. Those in favor say “aye.” eral law (which may provide optional plans of organization 518 LOCAL GOVERNMENT and government) for the organization of political sub same trouble we got into the other day, unless it is under divisions which do not secure such locally framed and stood that in tentatively approving this we do not waive the adopted charters. right to put in one section for the whole article, or for Section 3. Any such law may make provision for the the whole proper amended proposal later on. alteration of boundaries, the consolidation of neighbor H. RICE: I think that ought to be agreed to. ing political subdivisions and the dissolution of any such political subdivisions; but no such law hereafter enacted CHAIRMAN: That has been the sense of the committee shall become operative in any political subdivision until from the beginning, Delegate Tavares. Is that the under submitted to the qualified voters thereof and approved by standing of the movant and the second? All those in favor a majority of those voting thereon. of proceeding as outlined, tentatively approving Delegate Section 4. Political subdivisions shall have and ex Corbett’s amended proposal to the Committee Proposal 26 ercise such powers as shall be conferred under the pro in five parts, say “aye.” Those in favor say “aye.” Op visions of such general laws, and unless the governing posed. Carried unanimously. Proceed, Delegate Corbett. body of any such political subdivision shall so request CORBETT: Is it understood that you want to take it sec no special or local law shall be enacted which shall re tion by section? This first section is intended very ob strict or direct the exercise of such powers by political viously to empower the legislature to set up the laws by subdivision. which political subdivisions may become incorporated, may Section 5. This article shall not be construed to limit adopt charters of their own framing, and that is to be done or restrict the power of the legislature to enact laws of only by the general law. Now, there maybe some question statewide concern and uniform application. as to whether there is to be one law under which all counties, H. RICE: I second the motion. or all city and counties will have to incorporate, but we felt that as is the accepted practice that there will be a number CHAIRMAN: The motion made and seconded. Delegates of different methods, a number of different ways by which Corbett and Rice and Yamamoto offering an amendment to the different types of subdivisions may be empowered to the pending amendment. frame and adopt their charters. I don’t really believe there CORBETT: I hoped by drafting this proposal to answer is anything particularly controversial in this, so I won’t some of the questions and doubts that were expressed on go on any further. the floor and also in conversation with some of the delegates. ASHFORD: May I ask a question? Let me explain briefly what the intention of each section is. In Section 1 - - CHAIRMAN: You may proceed. Of the last speaker, I take it. CHAIRMAN: One moment, please. The delegates all have the amendment that’s being referred to? I believe so. ASHFORD: If you please. Is it your idea that a charter might be locally framed and adopted that would prevent a Proceed. legislative mandate for the expenditure of funds? H. RICE: I suggest we take now this new amendment, section by section, and start with Section 1. CORBETT: We have said in Section 4 that the legisla ture is to give only such powers, that is, it says definitely, CHAIRMAN: Hearing no objection - - “The political subdivision shall have . . . such power as H. RICE: I move the adoption of Section 1 of this new shall be conferred under the provision of such general law.” amendment. Now, we feel that that is going to protect many of the things that seem to be in a debatable area right now, the Board CHAIRMAN: That’s the tentative adoption of this new of Water Supply possibly—though I have never had any wor amendment by Delegate Corbett in five sections? ries about it—the police commission, and so forth. If the NIELSEN: I’ll second the motion. legislature feel that those are functions that should not be bestowed upon the county governments, they will exclude CHAIRMAN: You’ve heard the question. All those in them in these laws which are to be passed by the legislature. favor say “aye.” ASHFORD: May I carry the question just a little blt TAVARES: We are rushing into this thing again. Is it further. Without regard to Section 4, is it your idea that to be understood that we are having the same understanding a locally framed and adopted charter might, under the pro as yesterday, that the complete amendment to the whole visions of Section 1, prevent the mandating of funds by the thing can still be substituted if we tentatively approve this? legislature? We are again going at it piecemeal. CORBETT: I would think that the legislature under gen CHAIRMAN: The entire understanding of the committee eral laws would be empowered to give them such authority from the commencement was that we shall all consider these as they wish to give them. sections, if adopted, tentative. So far we have one section, Section 1, that has been approved. Section 1, tentatively ASHFORD: But if that were given in one legislature, approved, reads as follows: it could be withdrawn in the next, could it not? The legislature shall create political subdivisions CORBETT: Not after the subdivision had adopted a char within the State and the method of establishing the same. ter, had framed and adopted the charter in accordance with the laws that were set up by this coming legislature. It’s That is our Section 1, tentatively approved. hard to do so. TAVARES: Well, for the purposes of argument I have ASHFORD: So that if no specific reference were made no objection to any number of amendments being argued, in the law providing for the locally framed and adopted but it seems to me that taking this up section by section con charter, that charter might have a provision in it forbidding flicts with the proposition of those who may want to have the mandating of funds. just one section for everything. Now, I want to hear all the arguments pro and con for any amendments, but I CHAIRMAN: Do you desire to say anything furthermore? don’t like to vote on it because it sort of confuses the situ Delegate Corbett still has the floor. Proceed, Delegate ation. May we just argue the matter of Delegate Corbett’s Corbett. motion, rather than at the moment vote on any separate CORBETT: I believe only the powers that the legislature Section, because otherwise we are going to get into the lays upon the shoulders of the political subdivision and JUNE 26, 1950 • Morning Session 519 which appear in their charter would hold good. Is that an ASHFORD: May I ask a question? Wasn’t the intention answer to your question? really of the first section to provide for incorporation of such political subdivisions as may properly be incorporated, CHAIRMAN: The question was with reference to man and the section - - the second section refers to those which date under the first section, I believe. would not be properly incorporated? ASHFORD: I think you answered it just before this last CORBETT: That explanation is very acceptable. one. I think the two are somewhat conflicting in the absence of legislative provision on the subject. It is your view, I CHAIRMAN: May I bring to the attention and inquire of understand, that the locally adopted charter - - locally the delegate, whether or not in submitting this amendment, framed and adopted charter could prevent the mandating of Delegate Corbett, you had accepted the principle of the funds by the legislature. tentatively passed Section 1, which reads: “That the legis lature shall create political subdivisions within the State KELLERMAN: Will the speaker yield to a question? Do and the method of establishing the same.” That your amend I understand that Section 1 relates or is intended to relate ment follows, and assuming the acceptance, tentatively, of to counties as well as municipal corporations? this approved Section 1, and if so, probably the question CHAIRMAN: The words “political subdivision” have been posed by Delegate Kellerman is answered. understood by everyone to refer to any type of division un LARSEN: Could I ask a question? I am wondering, Dele der the state government, or agencies. gate Corbett, say that in this charter the city wanted the CORBETT: That is correct, in my interpretation. I election of the police chief. That was in their charter. originally had the “counties, cities and counties, and cities,” Would the legislature have to allow that? and so forth. CORBETT: In Section 4, we have very specifically KELLERMAN: Well, I would like to be corrected if I am stated that the legislature shall confer such powers, well - - mistaken, but I’m under the very definite impression that it says, “Political subdivisions shall have and exercise counties are not incorporated under charters in any state such powers as shall be conferred.” In other words, if in the Union. The chartered governments are townships, the police department should be kept out of the clutches, towns and cities or possibly incorporated villages. Some shall I say—because that seems to be the general feeling states permit incorporated villages, where the population about the local government —it can be kept out by general exceeds two thousand, sometimes they go down even as law. In other words, the legislature couldn’t pass a law low as fifteen hundred. But I have never heard of an incor saying that on the island of Oahu the police depart porated county, and counties do not operate on charters in ment should be under the State rule, and on Maui the coun any state that I have ever heard of. In my work with mu ties can take care of State rule. It should be by general nicipal bond law for the federal government, to my know law, we feel, so that all the counties shall have a like chance. ledge I never ran across such a thing as a county with a But that is taken care of in Section 4. separate charter of government. I would like for someone BRYAN: I’d like to ask—it refers back to Section 1 actu who has had possibly more experience in municipal law than ally—but in Section 3 and Section 4, you refer to “such laws.” myself to correct me if I’m wrong on that, but I think that Are those the general laws that are mentioned in Sections is a very serious question under your Section 1. If the 1 and 2? committee is attempting to incorporate counties, I think CORBETT: That is correct. they better clear that point of general municipal law. BRYAN: If that is the interpretation, unless I misread CORBETT: I think that can be very easily cleared up. the other sections, they will have to be amended so that the Probably your suggestion would be simply to delete the legislature actually will have some power over these sub words “for the incorporation,” and “The legislature shall divisions, because it looks to me as if any general laws provide by general law for the framing and adopting of passed could be more or less vetoed within the subdivisions charters by political subdivisions,” or something of that if the people there don’t accept them. sort. CORBETT: May I ask where you read that, Delegate KELLERMAN: No, that would not achieve the result. Bryan? My point is that counties are not bases of charter govern ment that I know anything about. The charters are given - - BRYAN: Two places where it’s questionable in my mind. charters are charters of incorporation. That’s what it The consolidation - - means, and they are given only to cities, towns and villages CORBETT: In Section 3? under general laws of the different states. Now, if I’m mis taken, I would like to be shown. I don’t mean to be argu BRYAN: In Section 3, “But no such law hereafter en mentative, but I think it’s quite a serious point of munici acted shall become operative in any political subdivision.” pal law in state organization. To my knowledge counties “No such law,” is that referring back to your general laws are not chartered governments that I’ve ever heard of any applying to all - - the general outline of all subdivisions? where else. CORBETT: Well, it refers back to the laws that make CHAIRMAN: Would you like to try to answer that ques provision for the alteration of boundaries and so forth and tion? so forth. In other words, no county can be chopped up into five parts without a majority vote of the, of voters in that CORBETT: I am afraid I can’t answer the question. I county. bow to the definitely superior knowledge of my fellow dele gate, but I believe that the - - while the wording may be in BRYAN: Well, I think the answer to your question would correct, it could be altered to fit our purpose very easily. be that Section 3 would have to be amended so that the laws Our purpose in this first section is very obviously to em mentioned in the second part of that sentence - - second part power the legislature to set up general laws whereby any of that paragraph would be the laws considering boundaries, political subdivision may adopt some specific form of gov consolidation and so forth, and not just the general laws ernment of its own choosing; that is the intent. Now, I’m pertaining to subdivisions, I mean political subdivisions. sorry if I don’t have the background. If they shouldn’t have CORBETT: Yes, that is correct. charters, we won’t give them charters; if they shouldn’t be incorporated, we won’t have them incorporated. BRYAN: Then in Section 4. 520 LOCAL GOVERNMENT NIELSEN: Point of order. Aren’t we discussing Section and then possibly a question as to villages, I don’t think the 2? We are never going to get anywhere if we just keep on word “establish” would achieve that. reading into the record everything beyond that. CHAIRMAN: Mr. Castro, I think your offer is denied. CHAIRMAN: The delegate is right except that - - HEEN: Point of information. How many amendments BRYAN: I asked when I started speaking, before we have we got before this committee? could really consider Sections 1 and 2, I wanted to know if all these other sections referred to the words “general laws” CHAIRMAN: We have the pending amendment of Dele in Section 1. That was all. Thank you very much. gate Sakakihara and a pending amendment to that by Dele gate Roberts, namely that alter the word “thereof,” insert CHAIRMAN: Are you ready tentatively, therefore, to “when approved by a majority of those voting thereon,” vote on Section 1 of the amendments submitted by Delegate and this proposed amendment from Delegate Corbett sub Corbett? Any further debate? mitting five sections which goes to amend the entire Pro KELLERMAN: May I offer an amendment then to Section posal 26. 1 to clarify that language? At least it does make it clearer HEEN: As I understand the rules of parliamentary pro to me. “The legislature shall provide by general law for cedure, you can have an amendment upon an amendment; the incorporation, by locally framed and adopted charters, you cannot go beyond that then having an amendment upon of municipal corporations.” an amendment that designs to amend another amendment. CHAIRMAN: AIter where, please? That’s why we are getting bogged down here. We don’t know where we are. If we abide by the rules, there can only be KELLERMAN: In lieu of the words “political subdivi one amendment to an amendment; then we can proceed, I sions,” use the words “municipal corporations.” Or if it think, much faster. would be preferable, say “city, town and village,” “Qf cities, towns and villages.” The term “municipal corpora CASTRO: In that case this amendment of Delegate Cor tions” includes all three of those, so I was being brief using bett’s would be out of order because there was already an that term instead of “political subdivisions.” “Political amendment to Delegate Sakakthara’s amendment. Is that subdivisions “ includes counties. what Delegate Heen referring to? CHAIRMAN: Will you please give me your precise CHAIRMAN: That is a point well taken. The immediate amendment, Delegate Kellerman? question therefore is the amendment to Delegate Saknkthara’s motion - - amendment by Roberts namely: “when approved KELLERMAN: In lieu of the words “political subdivi by a majority of those voting thereon.” Are you ready for sions,” the last two words of the paragraph, insert the the question? Those in favor of voting for Delegate Rob words “municipal corporations.” No, Mr. Chairman, on erts’ amendment wherein alter the word “thereof” in the second reading that is not accurate because you’ve got - - fourth line insert “when approved by a majority of those if you read back you’ve got to provide for the incorporation voting thereon.” All of those in favor of the amendment say of municipal corporations. It would probably be better to “aye.” enumerate and say “cities, towns and villages,” if that’s the intention of the committee, to include villages. They TAVARES: May we have the whole thing read now with might not want to include villages at all. the proposed amendment in it? I’m kind of out of order. CHAIRMAN: The amendment offered to be incorporated CASTRO: I was under the same impression as Delegate Kellerman that there had been no chartered counties, but in the submitted amendment of Delegate Saknkihara will I see that in the California State Constitution provision is therefore read as follows: made for the framing of county charters. Section 2. The legislature shall create counties, and CHAIRMAN: Will you yield for a moment? Was there may create other political subdivisions, within the state a second to Delegate Kellerman’s motion? I did not hear and provide for the government thereof when approved by any. Oh, seconded by Judge Wirtz. Proceed. a majority of those voting thereon, and all officials there of shall be appointed or elected, as the case may be, in CASTRO: It seems to me that the word that is misleading such manner as shall be provided by law. No law shall in this particular section is the word “incorporation,” be be passed mandating any political subdivision to pay any cause a charter need not necessarily incorporate a political previously accrued claim. subdivision; it might establish the definition of it, but not necessarily an incorporation under the technical sense of CORBETT: At the top of this amendment it says that the word, and I suspect that the word “incorporation” here this is the amendment by Delegate Saknkihara and that he is used in a rather liberal sense. I would suggest that the has accepted the further amendments by Delegates Tavares word “establishment” be submitted for “incorporation” and and Shimamura. Now, doesn’t that mean that it is just one I wonder whether Delegate Kellerman would be willing to amendment, or does it mean that it is three amendments? include that in her amendment. CHAIRMAN: No, I beg your pardon. The pending amend CHAIRMAN: Substitute the word “establishment” instead ment is the Committee PropoSal, Section 2; that’s the pri of the word “incorporation.” mary question before the committee. Delegate Sakakthara’s is an amendment; Delegate Roberts’ is an amendment to the KELLERMAN: If my amendment is to remain as “cities, pending amendment to the question of adoption of Committee towns and villages,” I think the word “incorporation” is Proposal, Section 2. more apt because they must be - - they do become corpora tions if they are established in this sense, and I think the LOPER: I note that in the reading of the Sakakthara— committee intends to have city, town or village government. Tavares —Shimamura amendment as amended by Delegate There is such a thing as an unincorporated village, and that Roberts, you have put new wording in line three alter “thereof.” There is a “thereof” in line three and also in has very different powers from an incorporated village. line four, and I can’t make it read - - make sense in either So if we just use the term “establish,” that also might be case. I’d like to ask Delegate Roberts to read it as he intended to extend to an unincorporated town or unincor wishes to amend it. porated city, which would then definitely limit its powers. My impression is that, if the committee wants the incorpor ROBERTS: The purpose of the amendment was to insure ation or the possibility of incorporation of the city and town and give an opportunity to the political subdivision that is JUNE 26, 1950 • Morning Session 521 either being created or whose charter is being modified CHAIRMAN: The answer made by Delegate Roberts, or whose form of government is being changed, to give them Delegate Heen, is that it will appear in the fourth line. the opportunity to pass on such change by a vote of the in After the third word, “thereof,” insert “when approvcd by dividuals in the political sub division. If a majority of those a majority of those voting thereon.” approve the change, then that goes into effect; if it does not, BRYAN: I have a suggestion for Delegate Roberts, if he then the previous form of government stays in effect. That, would like to consider it. That would read, “within the state I presume, will be taken care of under the ordinances. and provide for the government thereof, and which shall be Now - - approved by a majority of the voters of the subdivision vot CHAIRMAN.: Will you answer the immediate question ing thereon.” first, Delegate? CHAIRMAN: Will you please restate that? Where does ROBERTS: I wanted to explain that so that the placing it appear? of this parenthetical phrase may be put somewhere else by BRYAN: “And which shall be approved by a majority of the Style Committee to achieve the purpose that I have in the voters of the subdivision voting thereon.” Does that mind. The language that I had provided was, “when ap help the question? proved by a majority of those voting thereon,” and the question was raised the other day whether or not that meant CHAIRMAN: Delegate Bryan, I have difficulty in finding a majority of those in the political subdivision, and the out where you would want to insert this. Please - - answer to that for the record was “yes.” Now, you do have BRYAN: Wherever Delegate Roberts wants to insert his a little difficulty in language, but I believe that if the intent amendment. of the Committee of the Whole is clear, I think the Style Committee can take care of that problem. CHAIRMAN: I think you had better get together. ROBERTS: We have two drafts before us, as Senator ASHFORD: May I ask a question of Delegate Roberts? Heen pointed out. The draft that I was reading from is the Is it not true that the legislature in creating counties could draft which was submitted by Delegate Sakakihara on Sat very easily provide that no vote be made thereon? Because urday, and I am reading from the fourth line on that. Now the language of your amendment is “when approved by a apparently some are reading the fourth line on that in the majority of those voting thereon,” Unless the legislature new redraft of the proposal. The language that I have is provides for a putting to a vote, there will be no people vot inserted, “within the state and provide for the government ing thereon, and therefore, no majority. thereof, when approved by a majority of those voting there ROBERTS: Well, that is certainly not the intent of the on, and all officials thereof shall be” and so on. proposal, and it would seem to me that if the provision does CHAIRMAN: I think that is clear. state that this requires the approval of the voters in the political subdivision, that the legislature would be going HAYES: Just a point of information. We are now on beyond its bounds in setting up the charter to state that the Roberts’ amendment, and he is trying to get this last word individual shall not have the right to vote. That would be, into Sakakihara’s amendment? to my mind, in conflict with the intent of the section that CHAIRMAN: That is correct. we are now drafting. HAYES: Now, what has happened to the Corbett amend CHAIRMAN: So, to the precise question made by Dele ment? gate Loper, you cannot say where the amendment will go, CHAIRMAN: That will have to be - - that is out of order. either after the word “thereof” in the third line or after the HAYES: It hasn’t been - - I see, Thank you. word “thereof” in the fourth line. You want to leave it to the Style Committee. That is the answer. Is that correct, ASHFORD: May I ask a question? I would like to ask Delegate Roberts? Delegate Roberts a question. When he refers to a “majority of those voting thereon, “does he mean a majority of those ROBERTS: I suggest that as a matter of procedure and within the proposed subdivision created by Section 2, or the as a matter of moving the thing along on the floor, that it subdivisions that now exist and will be carried on under the be left to the Style Committee to place as long as the intent provisions of the ordinances and continuity of law? of the Committee of the Whole is clear. ROBERTS: It applies only to new political subdivisions PORTEUS: Unfortunately - - Am I recognized? or any subdivisions later created by the legislature. There CHAIRMAN: Yes, you are, Delegate Porteus. is no intention of requiring the present political subdivisions to pass on their present form of government. I assume PORTEUS: In offering an amendment, the person who that the section dealing with the ordinances and continuity makes the amendment has got to pick the place. would retain the existing form and setup. CHAIRMAN: I’m afraid so. ASHFORD: I think that doesn’t quite answer my question. For example, suppose some provision is made whereby the PORTEUS: Now all we want to know is what place does island of Lanai could be set up as a separate county, does he pick? May I have an answer to the question as to what that require all the voters of the present County of Maui to place has been chosen? approve it, or does it require, under Mr. Roberts’ amend ROBERTS: The place that has been chosen is in the ment, only the voters of the island of Lanai? fourth line after the word “thereof.” That’s the place. ROBERTS: Just the island of Lanai. CHAIRMAN: The fourth line, after the word “thereof.” KELLERMAN: May I ask a question, too? “The majority HEEN: In this draft that I have in my hand there are two of the voters voting thereon,” does that mean the voters words “thereof” appearing in the fourth line. Now, Dr. within the political subdivision, or simply a majority of Loper asks the question whether it was “thereof” in the those who have cast their votes? “The majority of the third line or “thereof” in the fourth line. So it looks to me voters voting thereon” can certainly be construed to mean that we have all kinds of drafts of the proposed amendments simply a majority of those who have cast votes which would - - it might be very much less even than the majority of the in the hands of the delegates. We don’t know which one to use, political subdivision. 522 LOCAL GOVERNMENT ROBERTS: Those voting thereon are the individuals who in favor of it are still left with a new political subdivision actually cast their votes. of their own, if you grant the wishes of the majority of the KELLERMAN: I understand that means then only the voters in the other subdivisions. Now what is the intention majority of those who actually vote. to get around that sort of thing? I don’t think that this is ROBERTS: That’s right, but the vote is confined to too practical. I have no qualms about the referendum part those who are in the political subdivisions. of it, but I can see where in many cases it wouldn’t be prac tical. I’d like to know if there is any suggestion to get KELLERMAN: So there really are two interpretations around it. of “voting thereon.” ROBERTS: As I understand, the purpose is to permit ROBERTS: No, those voting thereon, as in any general the legislature to take the initial action. It would seem to election - - Take the general election, we have qualified me that the legislature should give sufficient and careful voters in the entire territory; those voting thereon would thought to what they are doing in the creating of new politi be only those who vote on that particular question. cal subdivisions or changing them, to meet that particular KELLERMAN: Then you intentionally would make it pos problem. The only point of the amendment is to provide sible for the people within a subdivision to approve a major those individuals who are going to receive the change to change in their form of government only by a vote of, say, give them the opportunity to vote on whether the proposal only one-third or twenty per cent of the entire registered submitted by the legislature meets their needs. That’s the voters of that - - only purpose of the amendment. I might state further, in reply to the previous observa ROBERTS: A majority of those voting on the question, tion made that this was merely a referendum. I don’t want just as our new Constitution is going to be put. the delegates to get the impression that there is something CASTRO: It seems to me that it’s a rather complicated ornery about a referendum, that there is something dirty procedure to set up a political subdivision of the state. about a referendum. We are submitting our own Constitu This amendment of Delegate Roberts is nothing more than tion, the one we’re drafting now, to a referendum. It’s a a referendum, which this Convention has already indicated perfectly proper and perfectly sensible procedure, and I it did not favor. It seems to me, although I am not a leg certainly can’t see anything wrong with it. islator, that if a group of people who were anticipating emergence as a political subdivision of the state wished FONG: Mr. Roberts, you don’t give an opportunity here such a condition upon themselves, that they could aid in for an expression of what the objection may be. For ex the drafting of the proper bill in the legislature, which upon ample, you are setting it for the people to vote, and there proper passage would become law, and the need for a ref is nothing here for an alternative proposal. Now, in our erendum would not be present. I feel that the amendment Constitution here the legislature will have alternative pro therefore should be defeated. posals to submit to the people. Now, you are just giving it to the people to either vote yes or no. There is nothing CHAIRMAN: Ready for the question? here to show what they disapprove of. Now, how is the LOPER: I would like to ask Delegate Roberts a further legislature to know as to what has been disapproved and what question, whether the following additional wording doesn’t is good in the proposal? Don’t you think that there should be express the thought he has even better. Instead of saying something here by which the people may express the ap “when approved by a majority of those voting thereon,” use proval of certain parts of the charter which is given to them this language, “when approved by a majority of the registered and disapproval on other parts? voters of such subdivisions voting thereon.” ROBERTS: I understand the question, but the question is ROBERTS: That’s perfectly all right. no different from the question we are going to have in our CHAIRMAN: The amended amendment which has been submission to the people of our own Constitution. We are accepted by Delegate Roberts will read therefore, “when not going to know whether they like part of it or don’t like approved by a majority of the registered voters of such part of it. They are going to vote on the question, I assume, political subdivisions and those voting thereon”? of whether they want the Constitution in the form we have drafted or not. Now actually the way to obtain whether they ROBERTS: “Voting thereon.” Comma, “voting thereon.” don’t like certain parts would be in the discussions that take CHAIRMAN: May I first get the amendment properly place before the ratification of the new Constitution, and agreed upon, Delegate Fong. The accepted amendment it’s up to the legislature, just as it will be up to us and the therefore incorporated would read as follows: “when ap legislature, to keep an ear to what is going on and to what proved by a majority of the registered voters of such politi people are thinking. Our own Act 334 provides that if the cal subdivisions, and those voting thereon.” people don’t accept the Constitution, then we have to draft another one. We don’t know actually what they are going ROBERTS: No, “of such political subdivisions,” comma, to disapprove of, but it is up to us to try and keep in touch “voting thereon.” to see what the thinking of the people is, and if it is dis CHAIRMAN: So that will reads as follows: “When ap approved—which I hope it isn’t—it would seem to me that proved by a majority of the registered voters of such politi we have to keep our ears to the ground and find out why cal subdivision, voting thereon.” Correct? they disapproved it. ROBERTS: Correct. FONG: In our case the legislature will have the oppor CHAIRMAN: Delegate Fong. Oh, pardon me. I beg tunity of submitting alternatives to the people. Now, the your pardon. Delegate Bryan had stood just after Loper. people may vote on the - - they will vote on the alternatives I’ll recognize Delegate Bryan. and they will vote as to whether they want to ratify the Con BRYAN: The question I had is that you may oftentimes stitution. In your plan here, there is nothing here for an have a case whereby creating one political subdivision, alternative and the people either vote yes or no. you create two. Take the island of Kauai and divide it in ROBERTS: But the alternative is that the legislature half, you have two political subdivisions. Now if the people creates this political subdivision or gives it the authority. on one-half of the island vote in favor of it, and those on Now, if you think that it’s necessary to have a constitutional the other half do not vote in favor of it, those who don’t vote convention of the political subdivision first, and then to JUNE 26, 1950 • Morning Session 523 submit to the legislature and then to the people, it seems favor say “aye.” Opposed. The noes seem to have it. to me that you are overcomplicating it. The amendment to the amendment is killed. PHILLIPS: I might answer Delegate Fong’s question by KAUHANE: The Committee feels that we’ve had some saying that in a great many of the constitutions they set what informal discussion on the amendments that were forth just exactly what will be said in this so-called refer submitted, and expression of ideas as to how the powers endum to the people. The reason that referendum goes ought to be granted. I think if we consider also the amend down is, do they want sell-government, that kind of sell- ment offered by Delegate Richards, I think it will take care government, under the conditions set forth in that so-called of the propositions that have been raised on the floor as to charter or not? And that charter, as you know, is a kind the granting of powers either to the State, to the legislature of constitution. Now, it would say we do or we do not want or to the county government, as were well expressed by self-government in this particular subdivision. As Dr. Delegate Richards’ proposal. Roberts has said, it would be black or white. You either HEEN: Point of information. I don’t understand that want it or you don’t want it. But in many constitutions it’s Delegate Richards has submitted any amendments. written out and the form of how it will be sent down to the people is set forth there. Now, I believe he has left it out CHAIRMAN: It’s not before - - because the tendency here is to leave out as much wordiness KAUHANE: He has. I think it’s been circulated, Dele in the Constitution as possible. gate Heen. CHAIRMAN: Ready for the question? HEEN: He may have circulated but he hasn’t moved HOLROYDE: I’d like to ask Dr. Roberts one question to any amendment. be sure that it’s clear in my mind. “When approved by a CHAIRMAN: The question before the committee, Dele majority of those voting” applies only to the creation of gate Heen, is the tentative approval of Section 2 of Com counties. If there is a change of the government within mittee Proposal No. 26, and the pending amendment there the county, a redistricting of districts for, say, the super to by Delegate Sakakihara. visors to be elected from, or an increase in the number of supervisors, that wouldn’t be returned to the people for ap PORTEUS: I wonder whether we can get at these various proval under this wording, would it? propositions in perhaps a little more simple fashion. I think the reason that Delegate Richards is unable to present ROBERTS: This deals with the creation, as I read it, of his amendment is that there have been so many amendments “political subdivisions.” Now, you might have a problem if pending, that this would have been out of order. There are you have a serious reorganization of the counties and a really before the house, this Convention, as a practical change in their government. You might want to submit that. matter, the following questions: whether or not we shall HOLROYDE: But it’s not required under this wording? take the provision on county government as brought in by majority of the committee on county government or whether ROBERTS: Not as I read the present proposal, no. we’ll follow the theory of the Organic Act as presented by HOLROYDE: That’s the point I wanted cleared up. the delegate from Hawaii, Delegate Sakakthara, with, as we know, further suggested amendments by the delegate LOPER: I think Delegate Bryan’s question deserves a from the fifth district with respect to mandates. Now those little fuller answer. He pointed out that if West Kauai questions are before us. wished to secede from the rest of the island, you might In addition, there is the question as to whether or not have, under this, the people of West Kauai voting and the the scheme as proposed by my fellow delegate from the rest of the people not. But is not the answer implied in the fburth district, Delegate Corbett. We have lost sight for question? That is, if by dividing the island you were niaking the moment, but not yet completely disposed of, the propo two political subdivisions, then by the wording here the sition as submitted by the delegate from the fourth district, people of both of those subdivisions would vote on it be Delegate Phillips, except that we have cut the heart out of cause you would be creating two new subdivisions. his proposal by saying that the counties shall not have un ASHFORD: But the answer was from Dr. Roberts that restricted power of taxation. if you set up the County of Lanai, the rest of the County of I think it would simplify our procedure if we could de Maui wouldn’t have to vote on it. cide first, do we take the Sakakihara amendment or the original committee proposal. If the Sakakihara amendment BRYAN: That’s why I put that question, because actually were to be chosen, then we could go on with the Phillips you are making two subdivisions. You are making a new amendment, with the Corbett amendment. If it’s turned subdivision of the County of Maui, and you are making a new down, it’s then out of sight and we don’t have to pay atten subdivision on the island of Lanai, and it looks to me as if tion to it any more. It would seem to me if we could or the whole works would have to vote on it. derly clear the decks, if there has been enough discussion, TAVARES: That’s the whole trouble with this county and decide which theory we are going to follow, then we government proposition. All of these new ideas and new could make the various amendments we need. amendments are not well worked out. I, myself, don’t know - - I am not sure that this amendment even accom CHAIRMAN: We have before us the amendment to the plishes what Dr. Roberts wants to do, and I think it’s con Committee Proposal 26, namely the Sakakihara amendment. fusing, and as I say, it’s just not well worked out. I think PORTEUS: Well, may I suggest then that we now vote on it’s going to just render this section very, very difficult the Sakakihara amendment, right now. And then with that to interpret if it’s adopted. determined, if that carries, then Delegate Phillips can - - CHAIRMAN: Are you ready for the question? Question I mean delegate from the fifth district Richards can offer is the amendment of Dr. Roberts, accepting the further his amendment and Delegate Corbett can adequately dis amendment by Dr. Loper, wherein alter the word “thereof” cuss hers. appearing on the fourth line of Delegate Sakakihara’s amend CHAIRMAN: Well, that’s the pending - - that’s the pend ment to the committee’s tentative approval of Section 2, ing question. reading as follows: inserting after the word “thereof,” “when approved by a majority of the registered voters of PORTEUS: Pending amendment. such political subdivision voting thereon.” All those in CHAIRMAN: The Sakakihara amendment. 524 LOCAL GOVERNMENT NIELSEN: If you’ll make that into a motion, I’ll second him down. He comes to the legislature and gets a law it. through, or tries to get it through, ordering the county or PORTEUS: I move then that we now proceed to vote on political subdivision to pay that claim that has already pre the adoption of whether we will adopt the Sakakihara amend - viously accrued before the legislature is asked to act upon ment now. it. In other words, the type of claim that makes the legis lature act as a judge of the merits of an already existing NIELSEN: I’ll second the motion. claim, which has been one of the, in my opinion, grave CHAIRMAN: Are you moving for the previous question? abuses of the legislature. Where, instead of leaving the matter to the courts and to the discretion of the political PORTEUS: In effect that’s it, but I wanted to explain subdivision, the legislature has assumed to pass upon the what the moving of the previous question would really be, merits of the claim and tell the subdivision, “You must pay and rather than use that word, I - - this claim.” CHAIRMAN: Moving of the previous question is the im CHAIRMAN: Question. All those in favor of the tentative mediate voting on and shutting off debate on the Sakakihara adoption of the Sakakihara amendment, will say “aye.” amendment. MAU: This motion is for the adoption of the Sakakihara PORTEUS: But then, as soon as - - if once the vote is amendment? taken - - I don’t want to foreclose further debate on the Sakakihara amendment. That’s my point. For further CHAIRMAN: That’s right, tentatively, without prejudice amendments, in other words. to any further amendment of it. MAU: If the delegates to this Constitution [sic] desire CHAIRMAN: Well, I’m afraid if we vote for your amend to retain the present status of county governments, then ment, we will shut off any debate.. they should vote for this amendment. It leaves the absolute PORTEUS: No, Mr. Chairman, let me put it this way. power with the legislature to do what they will with the I move that we now proceed to vote on the Sakakihara counties and the county government. There is no question amendment with the understanding that if that carries, it about that. I think that in view of the arguments made, not will then be open to further amendments. only in this Convention Hall, but throughout all the elections held in the past ten years, together with the platforms of CROSSLEY: Point of information. both major political parties in the Territory, this amend NEILSEN: I second the motion. ment should be voted down because it does not provide for what is popularly known as home rule; it does not provide for CROSSLEY: As I understand this, what we are voting autonomous county governments, local governments; and on is the theory behind the two. So, if we could dispose of if it is the desire of this Convention to provide autonomy what direction we are wanting to go, I believe what Dele or more autonomy to the county governments, then they gate - - the Secretary has to say would be worthwhile, If must vote against this amendment. We have heard argu we can decide on the course that we want to follow, then ments in previous sessions of this Committee of the Whole we shouldn’t be foreclosed from making amendments to and in the Convention that certain powers should not be taken that course of action, but we would be limited tc following away from the legislature with respect to the executive that course. powers; likewise, certain powers should not be taken away CHAIRMAN: Well, to resolve the question before the from the local government. I believe that we have pro committee, the sense of the motion is this, as I understand gressed far enough in this territory in the past fifty it: to continue the same theory of local self-government years to be willing to allow people living in localities as with relation to its creation or non-creation by the legis we have fixed them in the past, counties, county govern lature, or to adopt an altogether new theory of true so-called ments, that we should give them an opportunity to govern local government. Is that correct? So, by voting for your themselves. This amendment does not do so, and I ask motion now would be to consider in broad scope without that the delegation here vote this amendment down. embarrassment of further amendments the Sakakihara TAVARES: Speaking to the over-all picture, which I theory of the present situation continuing with respect to think is not exactly described with full accuracy by the pre counties, the creation of municipalities, and so forth. ceding speaker, I’d like to just point out a few things. First PORTEUS: I don’t want to foreclose Delegate Corbett of all, we must remember the small size of this territory, from being able to present her amendment, but I’d like to which as I have said enables our legislature to pass on local get a choice made between the proposition as made by the problems. Secondly, we must remember that the legisla County Government [Committee] and as suggested by Sakaki ture by general laws can provide more local self-government. hara. Let’s dispose of that so we don’t have too many Thirdly, we must also remember that history shows very questions. clearly that when the people of a county wanted something badly enough, the legislature, within a reasonable time, has NIELSEN: I second the motion then for this reason; that given it to them. I think history shows that. For instance, when we dispose of this amendment, then we can go back to you had a Board of Water Supply on Oahu for awhile to meet Section 2 as in Proposal 26, and other amendments can be a special problem. The other counties weren’t forced to submitted for discussion, and they can be amended anyway do that until they came and asked for it; and when they they -want to. asked for it, what happened? At the last session the legis ROBERTS: Point of information. Before I vote on Sec lature gave them Boards of Water Supply. In the old days, tion 2, I’d like to have an explanation as to the meaning of Kauai never elected its chairman of the Board of Super a “previously accrued claim.” I’m not quite sure that that visors separately as chairman. They elected a board and was discussed, as to what this intent is. the board elected their chairman. When the people of Kauai got around to wanting to change that and have the CHAIRMAN: Delegate Tavares will answer that. chairman run as chairman, the legislature gave it to them. TAVARES: It was intended to cover situations of the Our legislature has been very, very mindful of the de type of the Gamewell case, which we all remember, of the sires of the people of each local county as it was demon Medeiros claim and a number of other claims where some strated clearly to them that the people really wanted it. body has dealt with a political subdivision or one of the I submit that this proposal is in line with the historical county agencies, and has a claim and the agency has turned development of this territory, and that we have not failed JUNE 26, 1950 • Morning Session 525 to make progress and can still make progress under the this constitution than we have been allowed to put. Most system proposed by Mr. Sakakihara’s amendment. of us would like to put as much time as they have but that power has not been given. I would also like to call your CHAIRMAN: Let us be mindful of the motion made and attention to a recently redrafted constitution, that of the carried by Delegate Heen last Saturday that the speaking State of Missouri. In here, we find twenty pages on local shall be limited to five minutes, and if there are no other government. We have submitted four or five sections. speakers, I will call upon the movant, Delegate Sakakthara, I picked up a Saturday Evening Post of this current week to conclude this debate. last night and one of the first editorials is on the subject of SAKAKIHARA: Following up the able submission of the local government, in connection with taxation, it is true, statement here by Delegate Tavares, I recall some years which doesn’t interest us because we don’t feel it fits the back that the people of the City and County of Honolulu current situation, but it does express an interest in local requested of your legislature to restore the power of appoint government at the present time. ment of the police commissioners. The legislature yielded Now, it seems to me the issue is very plainly before us to the request of the people of City and County of Honolulu in the vote that is coming up. Do we want to stick with the and gave them the right to appoint the police commission. Organic Act? Do we want to say that what is good enough After that power was given to the City and County of Hono for grandpa, is good enough for us, or do we want to try to lulu, what happened? They were saturated in politics, there catch up with modern times and express the current think was disharmony among the police commissioners, and ing of truly modern government? it did not serve the best interest of the police commission of the City and County of Honolulu. Consequently, what PORTEUS: I rise to a point of order. happened? The public was dissatisfied, except for the CHAIRMAN: State it please, Delegate Porteus. politicians who craved power within the city government. PORTEUS: As I understood the motion, the motion on The legislature restored the power where it rests now, the sense of this Convention is that we’re just clearing the namely, the appointive power of the police commissioners decks. We are either taking the committee proposal or to the governor with the confirmation of the Senate. If we the Sakakihara proposal. If we take the Sakakihara pro are to follow the philosophy laid down here by the majority posal, it is only the vehicle for further amendment. It’s proposal, we are going to duplicate the very unpleasant not a question that we stay on this theory of the Organic situation which we have experienced when the legislature Act at all times. We are going to have the Corbett amend restored the power of appointment of the police commission ment, we are going to have the Richards amendment and we to the Board of Supervisors. To obviate that in the future are going to have the Phillips’. That’s what we understand as a state, I felt very strong in my heart that we have here. demonstrated during the last fifty years that the City and County of Honolulu and the counties throughout this terri CHAIRMAN: And Delegate Mau has also submitted an tory have enjoyed and progressed under Section 56 of the amendment. Organic Act, namely, vesting the power in the hands of PORTEUS: Well, and the Mau amendment. We’ll have your legislature, and as time progressed the legislature further amendments. So let’s move along. I warn any can meet the situation as requested by the people of the other speakers who attempt to speak that I’m going to rise various counties and City and County. to a point of order because I think it’s time we voted on I submit to you, Mr. Chairman and members of the Con this, so we know the vehicle that we are going to use to vention, that is the purpose which prompted me to introduce make amendments to. this report and the proposal. I say with all due sincerity, Mr. Chairman and members of this committee, that my CHAIRMAN: Are you agreeable with that, Delegate proposal in no way tends to curb the power which the Board Phillips? of Supervisors of City and County of Honolulu or the out PHILLIPS: I have this feeling, that at least three or lying counties would like to retain. The legislature, upon four speakers have had an opportunity to proclaim their the petition of a local unit, will from time to time yleid views on this thing. certain powers to the Board of Supervisors and restore a home rule to the people. But what assurance do we have CHAIRMAN: Proceed, proceed, proceed. here now, once this frame of government as proposed by PHILLIPS: I feel that if we were to put a gag rule on any the majority is set up, we are only going to be confused other individuals at this time - - deeper and deeper, further and further from the very object that we are trying to drive in. CHAIRMAN: There is no gag rule, and please don’t re fer to any such thing, will you, please? We want to ex CORBETT: There is always a great deal said about the peditiously go through this thing and nobody is being gagged. virtues of the Organic Act and how wonderfully well the territory has fared under the Organic Act. There is very PHILLIPS: I would like to prevent this being voted on at litue doubt in anybody’s mind about that. We agree. We this time for a very basic reason. However, I mçan I think the legislature has done a swell job for fifty years. wouldn’t want to force my words down the throats of the We don’t know whether they are going to continue to do as Convention and then have them turn a deaf ear to it. If it’s good a job for the next fifty years and we would like to in the feeling of the delegate from the fourth district that we sure the type of government that we want. should accept or not accept one or the other before we pro Now, the current trend is very plainly demonstrated in ceed with further amendments, then I will adhere to that; everything you read. As my fellow delegate from the fifth but I still feel that many ideas have already been proclaimed district mentioned, the political platforms of both the par and that we should continue until those run out. ties here are in favor of home rule. I submit that the CHAIRMAN: The question - - Are you ready for the Model State Constitution, which I’ve heard a good many question? people hoot at and call a professor’s constitution, and so forth, however it is very strongly in favor of local govern DOI: I think the issue before this committee here is as ment and goes to greater length than did your committee. to whether we are going to adhere to the theory of Sakaki This Model State Constitution was drawn up by profes hara’s amendment or to the theory as submitted by the sional men, students of government. They know their committee, and therefore, I think those in favor of the business. They put a great deal more time and thought on committee idea should have a chance to speak. 526 LOCAL GOVERNMENT CHAIRMAN: Proceed. within the State of Hawaii and provide for the government DOl: I would like to speak against the amendment offered thereof. The legislature shall provide sources of revenue by Delegate Sakakihara. The amendment gives full power for the operation of such government so created. The to the legislature. The amendment has this in mind, I be legislature shall not, subsequent to the creation of such lieve, efficient government, period. U the legislature is government, mandate expenditures from such sources interested in efficient government alone, why not set up a of revenue so provided without providing additional department in the several counties. I think the result inso sources of revenue or appropriation. All officials there far as efficiency goes is better. The amendment forgets of shall be appointed or elected by their respective and by-passes this very important Idea, and that is par counties or city and counties in such manner as shall be ticipation in government by the people. Probably, partici provided by law. pation does not bring about highest efficiency, but then I CHAIRMAN: No, it isn’t necessary. Is there any second? believe it brings about better government because it strength ens the government by education and participation. You SERIZAWA: I second the motion. will note that the amendment provides that all officials thereof shall be appointed or elected. Even as to that sub CHAIRMAN: Seconded by Delegate Serizawa. You may ject matter, there is no discretion left to the local unit. proceed in argument. The committee proposal, on the other hand, studied all RICHARDS: This particular amendment I grant you is a the facts as they existed in the Territory of Hawaii today with certain compromise in the theories that have been placed this desire, to give as much local participation as is pos before this Convention in that it does allow considerable sible without injuring the welfare of the State or the welfare legislative control but does place certain specific restric of other local units, and in that regard they came to the tions on the legislature, particularly in the matter of man conclusion that it is best to leave the taxing power to the dating the various county governments without providing the State, and as to other subject matters, leave it to the local funds for such purposes. It also does restrict somewhat the unit. Therefore, I submit and urge that the amendment matter of appointment and elections within the various countie~ should be voted down. or city and counties. I feel that this will give us a certain CHAIRMAN: Are you ready for the question? degree of home rule, and yet it is not as sudden a step per haps as is suggested by the majority committee report. KELLERMAN: May I make a correction in the interest Personally, I signed that committee report and I am in of the committee? I will precede my statement by saying favor of strong local government. But there does seem to that I am in favor of the Sakakihara amendment, but in all be considerable objection by other members of this Conven fairness to the committee and its proposal, I found that I tion to taking that step all at once at this time, and I offer was mistaken on the charter of counties. The new Missouri this amendment, as I feel that it does give additional control Constitution, in 1945, does provide for a charter and the within each county or political subdivision by the people of incorporation of a county with a population in excess of that political subdivision, and yet still does not too much eighty-five thousand. infringe upon the power of the legislature. CHAIRMAN: Are you ready for the question? The ques tion is on the adoption or rejection of Delegate Sakakihara’s TAVARES: I think in principle this amendment is unob amendment, Section 2, with reference to the main question jectionable but I think that it needs a little polishing and I which is the adoption tentatively of Committee Proposal suggest a short recess so we can get together and perhaps Section 2, which reads as follows—and this adoption is we can work something out here and save a lot of hot air on without prejudice according to the understanding of the com the floor. mittee—”The legislature shall create counties, and may CHAIRMAN: For the benefit of the clerks and also in create other political subdivisions, within the State, and line with the suggestion of the committee, we’ll have a re provide for the government thereof, and all officials there cess. There is no objection. of shall be appointed or elected, as the case may be, in such manner as shall be provided by law. No law shall be passed mandating any political subdivision to pay any pre (RECESS) viously accrued claim.” All those in favor will say “aye.” DELEGATES: Roll call. RICHARDS: May I now withdraw a previous amendment CHAIRMAN: How many in favor of roll call? Tentative that I made and substitute therefor the present amendment approval, that’s all. There’s not 10. Those in favor please that is placed on the desks of the members of the Convention? raise your right hands. Sufficient for roll call. Clerk will Section 2. That the legislature may create counties, please read roll call. Tentative adoption without prejudice. towns, cities and other political subdivisions within the Ayes, 26. Noes, 29 (Akau, Apoliona, Arashiro, Corbett, state and provide for the government thereof. The legis Dol, Dowson, Ihara, Kam, Kanemaru, Kauhane, Kawahara, lature shall provide sources of revenue for the operation Kawakami, Kido, Kometani, Luiz, Mau, Nielsen, Phillips, of each government so created. The legislature shall not H. Rice, Richards, Roberts, Serizawa, Silva, St. Sure, mandate, or increase the mandate of, expenditures from Wirtz, Wist, Yamamoto, Yamauchi, A. Trask). Not voting, any previously provided sources of revenue of a political 8 (Anthony, Lee, Mizuha, Okino, Sakai, J. Trask, White, subdivision, without providing sufficient additional funds King). or other sources of revenue therefor, unless the govern ing body of such political subdivisions shall approve CHAIRMAN; The amendment is killed. thereof. All officials of a political subdivision shall be We are now on the principal question before the commit appointed or elected locally in such manner as shall be tee, namely, the tentative adoption of the committee pro provided by law. Political subdivisions shall have and posal Section No. 2. exercise such powers as shall be conferred under the RICHARDS: I have an amendment which I believe has provisions of general laws. been placed on the desks of everyone here. Shall I read it? CHAIRMAN: The amendment to be substituted for the Section ______. That the legislature may create pending amendment to the committee’s amendment to Sec counties and city and counties and municipal corporations tion 2, which is on the desks of all the delegates. JUNE 26, 1950 • Morning Session 527 BRYAN: I’ll second the motion, if you’ll delete the first PHILUPS: As I said, we have had testimony from every word of this new amendment. expert official, conducted research into every phase of this subject and have come out with its considered and deliberated RICHARDS: I accept the amendment. Proposal No. 26. Now, we have a caucus which has just now, without any of the above work, has just gone in and decided CHAIRMAN: The first word “That” will be stricken and capitalize the word “The” so that it will be “The legislature.” arbitrarily a provision without any inclusion of the Conven tion’s methods. Are we going to let a three minute caucus APOLIONA: To make our work here a little easier, I or a five minute caucus dictate the fate of local government would like to ask Delegate Richards, who made the motion because they remember something or they are proud of their to adopt, to offer this entire amendment and that we proceed legislature? taking one sentence at a time. CHAIRMAN: Delegate Phillips, I will have to rule your CHAIRMAN: Well, we’ll proceed in the manner as remarks out of order. They are unseemly. You were pre amendments are made, Dr. Apoliona, if that’s agreeable sent in that so-called caucus and I think you should have to you. made those remarks when you were present. I rule those remarks are out of order. Let’s confine and make ourselves APOLIONA: I think it’s easier if we take sentence after germane. And address yourself to the pending question. sentence. SHIMAMURA: Mr. Chairman. CHAIRMAN: Well, I think it would be too restrictive a ruling. Let’s proceed as the amendments come in, Doctor. CHAIRMAN: Delegate Richards, I mean Roberts please. TAVARES: A typographical error, I see, has crept in, ROBERTS: I’ll yield. I think Mr. Shimamura hasn’t in spite of care. Under the tenth line, the last word “poli spoken on this subject. I’ll wait until he’s through. tical subdivisions” should be singular “political subdivision,” SHIMAMURA: May I ask the committee that drafted singular. this proposal as to the construction of the words “or increase the mandate of” in the third sentence of this new proposal, CHAIRMAN: Will Delegate Roberts accept the amendment “The legislature shall not mandate, or increase the man “subdivision” instead of “subdivisions”? date of.” Would those words add anything to that sentence? TAVARES: Delegate Richards accepts. TAVARES: I’ll try to answer that. The intent of that CHAIRMAN: All right, the amendment is accepted. Any was this. There are now existing laws which presumably further debate on the pending question as submitted by Dele will be carried into effect, at least for the time being, gate Richards? which do mandate certain county funds. Now, the burden ASHFORD: The second sentence would be most damaging of that mandate is not to be increased by mandating more to such places as Molokai, Lanai and the rural districts of than the existing proportions or amounts. That’s what it the county. I shall therefore vote against it. means to increase the mandate. Or in the future suppose the legislature passes a new law, putting a new tax into PORTEUS: Isn’t that the third sentence, the one with effect and saying it shall be spent in a certain way by the respect to mandates, that the delegate has reference to? various counties. After they pass that law, then they can’t ASHFORD: That’s right, Mr. Chairman. go back and increase that mandate without consent of the governing body or unless they provide enough additional CHAIRMAN: The third sentence reading, “All officials moneys to cover the increase of the mandate. That is what of a political subdivision shall be appointed or elected local it is intended to cover. ly in such manner as shall be provided - -“ ROBERTS: I’d like to offer two amendments to this ASHFORD: No. “The legislature shall not mandate, or proposal. In the first line, “The legislature may,” I’d increase the mandate of, expenditures from any previously like to offer an amendment to change the word “may” to provided source of revenue of a political subdivision, with “shall.” And in line three which reads “within the state and out providing sufficent additional funds or other sources of provide,” an amendment after the word “and” to read: revenue therefor, unless the governing body of such political “within the state and by general law provide for the govern subdivision shall approve thereof.” That means that if those ment thereof.” So that the first sentence would read, “The islands referred to or other rural areas aren’t getting their legislature shall create counties, towns, cities and other fair share and are being neglected, the legislature cannot political subdivisions within the state, and by general law provide for them without increasing the revenue, so they’ll provide for the government thereof.” have to pay again. CHAIRMAN: Delegate Richards, have you heard the PHILUPS: In speaking against this amendment, I would amendment? like to say that our committee has sweated hour after hour, received testimony from every expert official, conducted RICHARDS: A question that comes to my mind. By research into every phase of this subject - - changing the word “may” to “shall” because it then would practically force, under the other wording here, that we CHAIRMAN: Delegate Phillips, may I ask, we have might have a pyramiding of various forms of government, twenty minutes to go and I think the Secretary has his bell, inasmuch as they have to do all of these things. If the desire and if you could direct your remarks and make them, with of the movant is to make sure that the legislature creates a out feeling you are being gagged, and make them as pithy as single form of political government in a “political subdivision,” possible, I think it would be appreciated by all. the “shall” I agree with, but I’m afraid there will have to be other changes in wording to make it such that it won’t be PHILUPS: That’s precisely why I wrote them down, Mr. necessary to create all of these various and sundry sub Chairman, and they consist of no more than thirty-five words, divisions. so I’m really taking care of the Convention by assisting, rather than go into a long harangue. If it pleases the Chair, CHAIRMAN: Well, you do not accept the amendment as I will continue. offered by Delegate Roberts? CHAIRMAN: Proceed. RICHARDS: Not without further change. 528 LOCAL GOVERNMENT ROBERTS: I’d like to offer the same language of the ASHFORD: No, Mr. Chairman. If you are permitting first part, as was agreeable to the delegates who were pre amendments to this amendment, I wish to offer an amend paring this modification on the Sakakthara proposal, so that ment. it would read, “The legislature shall create counties and CHAIRMAN: To the first sentence, Delegate Ashford? other political subdivisions within the state and by general law” and so on. ASHFORD: No, to the third sentence. I wish - - CHAIRMAN: Well, could we hold that off until we direct CHAIRMAN: Eliminating the words “city, towns and.” ourselves to this first sentence? Is that agreeable? There has been no second to these. CORBETT: I second the motion. ASHFORD: In other words, you are permitting amend ments to the amendment. HEEN: I’m responsible for the use of the word “towns” and “cities” because those words appear in the Organic Act, CHAIRMAN: Just to the one sentence. and placing them in this particular section together with the ASHFORD: Well, if you are permitting it to one sentence words “and other political subdivisions” will show that they you should be willing to permit it to other sentences. have always been considered as “political subdivisions.” CHAIRMAN: Let’s confine - - say that amendments to the In other articles already adopted by this Convention, we pending Richards’ amendment shall be considered as being use the term “political subdivisions.” When we use those one class and not pyramiding. Is that - - that’s agreeable words in these other articles, they mean counties, towns with the committee? Seeing no objections, that’s ruled. and cities. BRYAN: I think if the delegate from Molokai has an CHAIRMAN: Are you ready for the question? amendment to the amendment made by Delegate Roberts, HAYES: Point of information. I just want to know her amendment would be in order. If it is to some other whether in the Richards’ amendment whether the legislature part of this proposal, I think it should be held in abeyance can - - whether this part of the Sakakthara amendment is until Delegate Roberts’ amendment is passed on. included that I think is very important, “No law shall be CHAIRMAN: Well, it’s agreed there would be no pyramid passed mandating any county, town or municipality to pay ing and that it will all be considered as one amendment any previously accrued claim.” designated Roberts, Ashford or others. Are you ready for CHAIRMAN: That is not in the proposed pending amend the question? ment. FONG: These words, “general law,” now I’m afraid that we are going to have a lot of pilikia over those words. TAVARES: I think that hasn’t been included, but I see Now, as I understand it, the legislature has reserved to no objection to including it. But going back to Delegate itself the power of appointing - - giving to the governor the Roberts’ amendment. As I recall the Sakakthara amend power of appointment of police commissioners in the City ment, it said something like this, “The legislature shall and County of Honolulu and also within the City of Hilo. create counties and may create towns, cities and other poli Now, does that mean that if we were to give powers to the tical subdivisions.” government or to - - that they can exercise their powers CHAIRMAN: That is correct, and that motion lost. only by general laws, that the legislature will not be able to say that as far as the City and County of Honolulu is con PHILLIPS: Mr. Chairman. cerned, the power of appointment of the commissioners of CHAIRMAN: Delegate Roberts, I mean Delegate Phillips. police shall vest in the governor and the powers in the appointment of chief of police in the county, say Hawaii, will TAVARES: Mr. Chairman, I’m not through yet. be with the supervisors? Does that mean that? CHAIRMAN: Pardon me. CORBETT: May I answer that? TAVARES: May I just add a - CHAIRMAN: Delegate Corbett will answer that. CHAIRMAN: Will you yield? CORBETT: I think that situation is taken care of in the last sentence of this proposal, “Political subdivisions shall PHILLIPS: I yield. have and exercise such powers as shall be conferred.” TAVARES: I want to point out that this mandates the legislature then not only to create counties but to create FONG: I am referring to that. What is the meaning of that? Does that prohibit the territorial legislature from say towns and cities and other political subdivisions. What does ing to the City and County of Honolulu, by special law, that that mean when you say they shall create other political your city and county police commissioners will be appointed subdivisions? It doesn’t make sense. You should say “may” by the territorial governor and the county police of the County after these others; maybe we don’t want “towns,” maybe we of Hawaii shall be appointed by the Board of Supervisors? only want a “city and county.” Why should we compel the legislature to create them all. CORBETT: That is the intention. However I - - ROBERTS: I agree with the previous speaker. What you CHAIRMAN: Delegate Heen will answer that. want is that “The legislature shall create counties, and may HEEN: I take it that under the language of the last sentenc~ create other political subdivisions, within the state by general there, the legislature “may by general law” provide that all law.” Delete the words “towns, cities” and substitute “and members of the police commission may be appointed by the may create other political subdivisions within the state.” governor, subject to the confirmation of the Senate, so long as that general law applies uniformly to all of the political TAVARES: I second the motion. subdivisions. That I take it would be a general law. Like CHAIRMAN: The amendment of Delegate Roberts reads wise, your legislature may provide that in its wisdom the as follows: “The legislature shall create counties, and may matter of liquor traffic shall be controlled on a statewide create other political subdivisions within the state, and by basis, so as to provide that all the members of the liquor general law provide for the government thereof.” Is that a commission shall be appointed by the governor, subject to correct statement, Delegate Roberts? Are you ready for’ the confirmation of the Senate, so long as that general the question? language applies to all of the political subdivisions. JUNE 26, 1950 • Morning Session 529 Now, I think this grant of power to the legislature to wording, “provide for the government thereof” is in essence provide by general laws for the exercise by the political exactly what we have in our Organic Act. If the legislature subdivision allows classification so long as those classifica is going to provide for the government of the local subdivi tions are based on some valid reasons. sions, then there isn’t really any necessity of any of the rest of this. If they provide for the government, then we’re FONG: Well, that answers my question. Now, another taking away from the local subdivisions the American doc question on this question of mandates. As I understand it, trine of sell-government, the basic thing that our forefathers the City and County Police of Honolulu, the commission laid the whole plan down for. This provides for the govern has - - ment. It’s a mandate from above in itseif. We are mandat PHILLIPS: Point of order. ing the legislature to determine just exactly how the counties and the cities will conduct their affairs; how they will elect CHAIRMAN: State it please, Delegate Phillips. their officials; how they will collect their taxes; how they PHILLIPS: I believe that the Chair has ruled that we will plan their cities. This is absolutely against and the would confine our talk to the first sentence, and now we are antithesis of the American doctrine of sell-government. talking about the third sentence or the second sentence or DOl: In calling for a vote on this, I would like to suggest something like that. I believe that we should confine our a division of the question. I think all of us or most of us at talk to the first sentence. least are in favor of the first part of the amendment. There CHAIRMAN: If you will confine it, Delegate Fong, I’d is some dIspute as to the last portion, “by general law.” like to put the question. Therefore, I suggest that we vote first on the first portion, and then take another vote on the second portion. Otherwise FONG: This is germane to the is sue, Mr. Chairman, it’s we are defeating the whole thing because we don’t like one about - - it still deals with general laws. thing. CHAIRMAN: Proceed. CHAIRMAN: That’s how we will proceed immediately FONG: Now, as far as the Police Commission of the City now. Thank you. and County of Honolulu is concerned, the legislature has SHIMAMURA: The City and County government of Hono seen fit to mandate certain amounts of money to the legis lulu was provided for by special legislation, as we all know. lature - - to the Police Commis sion and they have provided Is it the intention of the proponents of this proposed amend for the increase of the property tax from $6,000,000 to ment that such special charter shall not be granted by the $8,000,000. Now, as I understand the City and County Police legislature? Commission, their budget varies from year to year. Now, when it varies in the next biennium, now how will this law ROBERTS: There is no intention to take away the power affect that raise of the mandates? of the legislature to set up counties, but when they are set TAVARES: As I read this provision, it will mean that up, they ought to be set up along the same lines with the any increase over the previously existing mandates wili application of general law. So if we set up another county have to be either provided for by additional funds or they you ought to provide the same general application of proce will have to get the consent of the governing body of the City dures as was adopted by the City and County of Honolulu. and County in order for it to be effective, to increase the SHIMAMURA: That’s just the point. As I understand mandate. this wording, “by general law,” the legislature is prohibited FONG: Now, as far as the City and County of Honolulu from providIng for the city and county government of Hono is concerned we have given them the power of taxing pro lulu or any other county by special charter, or any other perty by increasing the taxation power of $2,000, 000. Now, municipality by special charter. That’s the result of this use that $2,000,000 certainly is far in excess of what the man of the words, “by general law.” date is to the commis sion. Now, if we provide for the in crease of $2, 000, 000 and then mandate them only for say CHAIRMAN: Are you ready for the question? The ques $250,000, will we be able to come back next year and say, tion is this - - “We have already increased you to give you the source of HEEN: Point of information. I’d like to ask Delegate revenue by which you can pay for the commission; we want Roberts as to whether he wanted the phrase, “by general to increase this mandate.” Now, does it provide for a situ law” to apply to both the counties and other political sub ation like that? divisions? TAVARES: I don’t think it would. The word “previous ly” means at any one time. When a new law is passed, ROBERTS: May I reply in part by a question to the sena whatever existed “previously” then can’t be increased with tor? Would the senator suggest that as to other political out either the legislature providing additional funds to cover subdivisions that the general law be applied; whereas to that increase or additional sources of revenue to cover that counties, they may set them up by special charter? increase, or without the consent of the governing body of HEEN: Well, that’s the way it reads to me. Whether the county concerned. your amendment or suggested amendment, by inserting the FONG: That seems to be a defect, but it isn’t a serious term “by general law” in the place where you have inserted defect at all. I presume the legislature could provide means that phrase, my question is whether you wanted that phrase, of circumventing it. “by general law,” you intended that to apply both to counties and other political subdivisions? Is that your intent, Dele TAVARES: There is one other thing that can be explained gate Roberts? later about appointments of police commiss ions which is covered especially by a sentence later on, which I think we ROBERTS: That was my intention, but I’m willing to be should discuss later. persuaded otherwise by the senator. CHAIRMAN: Is the committee ready to vote on the ques HEEN: In other words, counties may be created by tion? special statutes. Did you have that in mind? PHILLIPS: In speaking against the amendment for the ROBERTS: They might be, but they generally aren’t; first sentence, I’d like to point out to the Convention that the they are generally set up separately. 530 LOCAL GOVERNMENT TAVARES: As I read this, there is nothing to prevent PORTEUS: If you aren’t able to be back at that time, I the legislature by special statute originally to set up counties, think you could either ask or designate someone else to but alter they set them up, then they must provide for the take the Chair in the meantime. governing thereof by general law. That’s the way I read it. Otherwise you would have your counties static now, and CHAIRMAN: All right, if you want. Recess until 1:30. never could be changed in the future. CHAIRMAN: Well, would Delegate Roberts consider per Afternoon Session haps inserting the words “by general law” to be inserted alter the word “create” rather than - - so you would have [President Samuel W. King presided in the absence of the legislature creating more or less by mandates, and the Chairman.] then - - CORBETT: May I make a motion to the effect that on ROBERTS: I think it’s in a correct place, and I think this matter, that we rise and report progress and let the that Mr. Tavares’ statement of it was correct. committee work over these many amendments that have been suggested on the floor? CASTRO: If Delegate Doi would make his suggestion for division of the question in a form of a motion, I would be WOOLAWAY: I’ll second that motion. very happy to second it. PRESIDENT: Delegate Charles Rice made the same DOl: I so move. motion, so I’ll consider it made by Delegate Rice and seconded by Delegate Corbett. Ready for the question? CASTRO: I second the motion. The motion is that the committee rise, report progress and ARASHIRO: In the proposed proposal, I mean amend ask leave to sit again. ment, is that word “that” still there in the first word of the KOMETANI: What would be the reason for delaying this amendment? matter this afternoon? Why not go right through with it? CHAIRMAN: That is stricken. We’ll have to come back to it anyway. ARASHIRO: Oh, all right. Then, do I understand that PRESIDENT: The Chair has no conviction except that we are now voting as has been suggested by Delegate Doi, the time might permit the committee and those who have only on the-- various suggestions to make to agree on the common set of phrases or sections. CHAIRMAN: On the first sentence. PHILLIPS: I would like to further amend the motion to CROSSLEY: Wouldn’t it be that we could go back into the Committee of the Whole on Miscellaneous and continue our read, alter “provide for the,” to delete “government there work, without losing any time? of” and in its place include “adoption of local charter.” PRESIDENT: That is what the Chair had in mind. Now CASTRO: Point of order. the substantial number who prefer otherwise might vote CHAIRMAN: There is no second, Delegate Castro. May against the motion to rise and report progress. I get that amendment first, Delegate Castro? Will you APOLIONA: Before you put that motion to a vote, will yield for a moment? What is that amendment again? you please ask the chairman of Local Government if we PHILLIPS: AIter the word “the,” before “government” could meet tonight, the entire membership, and meet with in the third line, it would read “provide for the adoption of the different people who have different amendments so we local charters” in lieu of the words “government thereof.” can have a common solution to present to this Convention as a Committee of the Whole in the morning? CHAIRMAN: “Provide for the - -“ PRESIDENT: Delegate Kauhane, did the chairman of the PHILLIPS: “Adoption of local charter.” committee have that in mind, perhaps? HOLROYDE: Point of information. How are we going to vote on all these? KAUHANE: In that case I’m agreeable to the suggestion that has been made, but in order that the suggestion may CHAIRMAN: That’s been seconded. Are you ready for be carried out to its fullest extent, I think the Chair should the question? direct the committee to meet and to meet with any others HOLROYDE: Point of information. / What are we going who are willing to sit with the committee and offer proposals to vote on? You have about three amendments to this one or amendments to take care of the proposition of local govern thing. ment. CHAIRMAN: I’m afraid I’ll have to rule that out of order APOLIONA: That’s what I had in mind. If we’re going for the time being. to put over this matter for that reason, then it’s in good order. CASTRO: I believe the proper thing to do at the moment is to recess until 1:30. I so move. SAKAKEHARA: I thought that we had an understanding here that we could work on various proposals here pending SAKAKIHARA: I second the motion. before the committee, whether it be Miscellaneous Committee CHAIRMAN: Is there any objection to it? proposals or the Local Government; that we have agreed upon working until late in the afternoon and dispense with MELSEt’~: I think we have to rise and report progress the night meetings, so as to enable the Committee on Style and ask leave to sit again. to work on. SAKAKIHARA: No, Chair has the right to put direct PRESIDENT: Well, the Committee on Style will be having motion for recess. a meeting this evening, and perhaps the assistance of some CHAIRMAN: In as—just a moment please, I must make of their members could be obtained. this - - convey this bit of information. I have been called SAKAKIHARA: And I believe that if we should go into to the Supreme Court at 2 o’clock and perhaps, under the night sessions, I don’t think we’ll be able to give the Commit circumstances, it would be better that the committee rise tee on Style sufficient time to work on the proposals pending and report progress and ask - - beg leave to meet again. before it. JUNE 26, 1950 • Afternoon Session 531 CROSSLEY: I believe that Delegate Sakakthara misunder Now, the Chair was acting really as chairman of the stood. As I understood, the night meeting was only of the Committee of the Whole from the beginning of this issue committee itself, Local Government Committee, and such substituting for Delegate Arthur Trask, in the absence of other people as wanted to propose changes. It was not a his brother and his own absence. Delegate Charles Rice, Committee of the Whole meeting, because it’s true the Com would you like to take the Chair of the Committee of the mittee on Style is meeting tonight and has a full schedule. Whole? Delegate Arthur Trask said he would be back as soon as he can get clear of the court. The Chair will appoint SAKAKIHARA: I misunderstood; I thought the Committee Delegate Crossley temporarily. Delegate Arthur Trask is of the Whole would return here tonight. coming back from court and will take over the Chair, if you ASHFORD: Won’t we again be meeting with the same will just substitute for him in his absence. As a matter of difficulty? That is, there is a profound rift in opinion, and fact, the Chair had appointed Delegate James Trask, but for the committee apparently represents one theory and a sub some reason or other he has not returned on time. We are stantial number of, delegates don’t go along with that theory. still in Committee of the Whole and Delegate Crossley will Won’t we be faced with exactly the same situation tomorrow? act as chairman pro tem. CORBETT: I believe that the hope is that now that we have the sense of the Committee of the Whole, we will better be able to draft a proposal that would meet with their approval. Chairman: RANDOLPH CROSSLEY We really don’t want to stick to our own ideas in a pig-headed fashion. We wish to present something that will meet with CHAIRMAN: Will the Committee of the Whole please the approval of the group. We now have some notion of what come to order. Can the Clerk tell me where we were? the group wants, and we hope to expedite matters by this HEEN: What matter are we on, if I may ask, Mr. Acting procedure rather than delay them. Chairman? Is this on local government? PRESIDENT: The Chair understood that Delegate Kauhane CHAIRMAN: This is on local government. I’m only sitting suggested that together with the motion to rise, report pro temporarily here for the Honorable Senior Trask. gress and sit again would be instructions to the Committee on Local Government to review their own proposal and the HEEN: Are you an amended chairman? amendments that had been offered by various delegates with CHAIRMAN: I’m an amended chairman three times over. the view of perhaps bringing forth a proposal tomorrow that would represent the consensus of the Committee of the Whole. BRYAN: As I understood it, when we recessed the motion before the house was an amendment which was originally one, ASHFORD: One of the difficulties with that was that we broken then into two parts. The amendment of the proposal were limited to amendments; that is, we were considering came out of the caucus this morning and that was to put the the first sentence of a given amendment, and there were word “shall” in the place of “may” in the first line. That was very grievous complaints about the third sentence, to which the first part of that amendment. The second part of the no amendments had yet been presented. amendment was to add other words in the third line, “by APOLIONA: And further on that motion, that you will general law,” and also I think an amendment, “may create direct Committee on Local Government to meet tonight. other political subdivisions,” in the second line. But that amendment was broken down and the one that was before PRESIDENT: The Chair didn’t get that point. The Com the house when we recessed was for the change in the third mittee of the Whole will direct the Committee on Local word in the first line from “may” to “shall.” Government to reconsider its proposal in the various amend ments and be prepared tomorrow to make some recommen CHAIRMAN: And as I understand it, we are working on dations. the Richards amendment. Is that correct? KOMETANI: I feel like the delegate from Molokai. After CASTRO: I seconded a motion for the division of the all, the rest of the amendments that have been proposed on question. My understanding was that the first half was the the floor have not been given serious consideration by the statement, which is an amended statement, “The legislature Committee of the Whole. If it has already been done and shall create counties, and may create political subdivisions discussed, then the Committee on Local Government can within the state.” I believe that was what was contemplated go into session this evening and have the rest of the amend by the division of the question. ment discussed; but until otherwise, I think we’ll come CHAIRMAN: Well, the Chair might state that we have back - - revert back to the original place when we come since then - - Delegate Roberts amended the language in the back from the committee meeting. first part by deleting the words “towns, cities,” so that it PRESIDENT: Let the Chair put the question. Those who would read, “The legislature shall create counties and other feel we could go on this afternoon, vote against the motion. political subdivisions within the state, and by general law The motion is to rise, report progress and ask permission provide for the government thereof.” to sit again, with instruction to the Committee on Local Government to reconsider its own proposal and all of the ROBERTS: In order to keep the problem simple, I will amendments that have been offered thereto. ThoBe in favor withdraw the words, “by general law,” so that we can vote of that motion, please say “aye.” Those opposed. The on the entire sentence without having to divide the question. Chair feels the noes have it. Anyone desiring a different So the delegates would be voting on the proposal of the first vote? The Chair will decide the noes have it. The Commit sentence to read, “The legislature shall create counties, tee of the Whole will proceed to consider the - - and may create other political subdivisions within the state, and provide for the government thereof.” SAKAKIHARA: I so move that the Committee of the Whole proceed with the deliberation on Committee Proposal CHAIRMAN: Is there a second to that? That appears to No. 26, and amendments offered thereto. be a new motion. SMITH: I’ll second the motion. CORBETT: I’ll second that motion. PRESIDENT: It’s been moved and seconded that the Com CHAIRMAN: It has been moved and seconded that we mittee of the Whole proceed with the consideration of the vote on the following language: “The legislature shall create committee report from Local Government and the amend counties, and may create other political subdivisions within ments pending thereto. All in favor say “aye.” the state, and by law provide for the government thereof.” 532 LOCAL GOVERNMENT PHILLIPS: I believe that I had made a motion to amend CHAIRMAN: “Adoption of local charters”? the amendment, and that was seconded; so there is a motion PHILLIPS: Yes, sir, and it would read, “provide for to amend the amendment on the floor. the adoption of local charters.” CHAIRMAN: I might say, that doesn’t show on the record that I have here. CHAIRMAN: Is there a second to that? TAVARES: To simplify matters may we not vote only CORBETT: I’ll second that. on those - - only on the first two parts without prejudice to CHAIRMAN: All right. Would you like to speak on that Mr. Phillips and Mr. Roberts later adding further amend now, Delegate Phillips? ments to the rest of the sentence? PHILLIPS: I would like to speak very, very briefly on CHAIRMAN: I’m informed by the Clerk that the amend it. I would like to say this, that if the legislature provides ment offered by Mr. Phillips was ruled out of order. I the government, that is, provides who is to be elected; how wasn’t in the Chair, so I can’t say as to why, and it does the monies will be collected; how the city is to be planned; not appear at this time. I think that if the gentleman will how the individual local unit is to be planned; then you really suspend for a moment, we can get this out of the way without in truth have no measure of seif-government. If you permit prejudice to what amendments you would like to make. those in the local subdivisions to prepare a charter, to create Delegate Phillips still has the floor. a commission which will draw up a charter, and to set forth in that charter the things that will be of the local unit, then TAVARES: Point of information. you are really providing a measure of sell-government for CHAIRMAN: State the point of information. the local unit. This is a tested, proven fundamental princi ple, as I said before, and I hate to reiterate, principle or TAVARES: I think that there is a little error about what doctrine of American government, that the individuals who the Chair stated to be the amendment. As I understand it, constitute the government will not have somebody hundreds the amendment which is to be voted on now according to the of miles away telling them and dictating to them what to do agreement of Delegate Roberts was to leave out the words, by special legislation. Now, if they are permitted to pre “by general law,” or “by law” before the word “provide” pare their charter, the legislature will determine the means in the last line of that first sentence. by which the charter or the so-called local constitution is CHAIRMAN: I believe that’s the way the Chair read it, created; how it is drawn up; how it will be sent out to the “within the state.” local people to be ratified, much in the same manner that we are preparing this Constitution here. Then we will have TAVARES: “And provide for the government thereof.” a measure of local seif-government. To put in there to CHAIRMAN: “And provide for the government thereof.” have a higher authority provide government for somebody in a lower unit is absolutely anti-American and I plead with TAVARES: Yes, without prejudice to a further amend the Convention not to let such a thing go through. ment later of the latter part of the sentence. CHAIRMAN: Correct. CHAIRMAN: Any further discussion? PHILLIPS: That’s what I was worried about, that if we APOLIONA: The committee disagrees with the last vote on this sentence here up to the third line, then that’s amendment as provided - - as stated by the Delegate approved, well that will have already been accepted. Then Phillips. Maybe Delegate Phillips doesn’t know what he there will be no chance to amend it then. is trying to do. You are trying to make us go into the re vision of an entire financial and tax structure, if you ask CHAIRMAN: No, the Chair would rule that this is only for the passage of this amendment, and I ask this Conven tentative and this would not foreclose you from making further tion to vote this amendment down. amendments. PHILLIPS: I rise to a point of personal privilege. APOLIONA: Your committee is in agreement with amend ments made by Dr. Roberts changing the word “may” to CHAIRMAN: State the point of personal privilege. “shall” and deleting the words “town, cities” and in lieu of, PHILLIPS: It was said that I had advocated a financial insert “and may create other political subdivisions.” structure. At no time had I specified that at all, nor do I CHAIRMAN: I want to be absolutely certain, Delegate intend that to mean that in the local unit drawing up a charter. Phillips, that you feel that your rights are preserved in That does not imply that at all. The manner in which the this. Are you satisfied? sovereign power, the State, will delegate down to that local unit how taxes will be collected has nothing to do with it PHILLIPS: If we are only voting down to the end of the drawing up a charter, nor does it have any bearing on second line there will be no difficulty. whether that individual local unit will put into that local CHAIRMAN: That’s right. All in favor of the amendment constitution anything about the taxing power. So I would say “aye.” Opposed? Carried. like to say that I did not imply that we would change the financial structure. PHILLIPS: In regard to the third line, as I had already made the motion, and I’m sure it’s understood by this time, CHAIRMAN: I believe that the delegates understand that after - - from the word “provide,” I would include that your position on that. “by general law, “ but I particularly wanted in there “provide BRYAN: I would like to ask Delegate Phillips a question. for the” instead of “government thereof,” “for the adoption of Does that provide for the “adoption of the charter thereof”? charters,” “of local charters.” Now I would like to support CHAIRMAN: Would you address your question to the that if it’s - - that is the amendment. I move - - Chair, please? CHAIRMAN: Will you state the amendment now and where BRYAN: Yes, Mr. Chairman. Is that correct? you would - - PHILLIPS: The amendment would be that in lieu of the CHAIRMAN: That’s correct. word “government thereof,” these words would be substituted BRYAN: In that case, would the movant like to substitute instead, “adoption of local charters.” That’s at the end of the word “government” in place of “charter”? Counties don’t the third line. necessarily have a charter. JUNE 26, 1950 • Afternoon Session 533 CHAIRMAN: Delegate Phillips, do you care to answer? CHAIRMAN: Delegate Shimamura hasn’t spoken on this yet. PHILLIPS: I say, “provide for the adoption of a local charter” simply by the means that they would show how that SHIMAMURA: May I have that entire sentence read “local charter” will be adopted, but I would go along please, with the amendment in it? thoroughly with Delegate Bryan in saying that if you were to CHAIRMAN: The sentence would then read, “The legis place “charter” in there, you would take away the mechanics, lature shall create counties, and may create other political I mean, that the legislature could specify the mechanics of subdivisions within the State, and provide for the adoption how that charter would - - of a local government.” CHAIRMAN: As the Chair understood the question, it was PHILLIPS: I would like to withdraw my acceptance of the substitution of the word “government” for “charter.” Is that because I believe it would change the substance of it that correct? materially. However, it would be better than the way it BRYAN: For the “adoption of the government,” instead was before, but I would like to withdraw my acceptance of of “adoption of the charter.” that and have it read as I had previously wanted to amend it. CHAIRMAN: Fine, then the amendment reads now, “pro CHAIRMAN: Would you accept the amendment? vide for the adoption of a local charter.” Are you ready for PHILLIPS: I would accept that amendment. the question? Roll call’s been called for. Does anyone want CHAIRMAN: Then your language would read, “adoption roll call? No roll call. Ayes and noes. All those in favor of local government” instead of “adoption of local charter.” of the amendment will say “aye.” Opposed. The amend ment is lost. PHILLIPS: You are twisting it around. It would be, “provide for the “ - - Now, you couldn’t say “provide for APOLIONA: I now move for the tentative adoption of the the charter” because that’s what a charter is. A charter first sentence as amended. is a constitution - - CHAIRMAN: Is there a second? CHAIRMAN: Would you state the amendment then, please? HOLROYDE: Second the motion. PHILLIPS: I believe it’s being amended. I believe I was CHAIRMAN: It has been moved and seconded for the asked to amend my amendment, and I was asked to place the tentative adoption of that sentence we have all heard quite word, “charter” - - a few times. All in favor say “aye.” Opposed. Carried. Next sentence. CHAIRMAN: Would you repeat your amendment for me, ROBERTS: I have a sentence which I’d like to insert be please? fore the next sentence, sentence iA, to read as follows: PHILLIPS: I’d be delighted to. It says, “provide for “Each political subdivision shall have power to frame and the adoption of a local charter,” in lieu of the words “govern adopt a charter for its own sell-government within such ment thereof.” limits and under such procedures as may be prescribed by law.” If I have a second to that, I’d like to speak for it. CHAIRMAN: That’s the way the Chair understood it. As I understood the amendment, it was to substitute “govern WOOLAWAY: Could we have that read once again before ment” for “charter.” Is that correct? Therefore, it would he speaks on it? read, “provide for the adoption of a local government.” I CHAIRMAN: As I understood the motion, it’s “Each believe the Chair was correct in stating that the amendment political subdivision shall have power to frame and adopt offered by Mr. Bryan would make your amendment read, a charter for its own sell-government within such limits “provide for the adoption of a local government.” and under such procedure as may be prescribed by law.” PHILLIPS: I would like to speak about that and to show Is that correct, Delegate Roberts? why it should not be “government” instead of “charter.” ROBERTS: That’s correct. CHAIRMAN: Well, the question was asked - - CHAIRMAN: It’s been seconded. Any discussion? Dele BRYAN: Point of order. That wasn’t a motion. I just gate Roberts. asked him if he wanted to consider it because we - - ROBERTS: I’d like to speak in support of this sentence. I believe that it does provide some basic acceptance of the CHAIRMAN: The question that was asked, would you concept of local sell-government, but also recognizes that accept the amendment? Would you accept the word or not? we have in the State here certain operations which are That’s all I want at this particular point. statewide in character and which have functioned well and PHILLIPS: I’ll accept the wording. effectively in the past. This gives the political subdivision the opportunity to frame and adopt a charter for its own sell- MAU: Then it makes it unintelligible. It provides for the government, but recognizes that the legislature in establishing adoption of the - - As I understand now, the movant has the subdivision can prescribe and set the limits and the pro accepted the suggested wording which would mean, “provide cedures under which such local charter may be established. for the adoption of the local government.” It’s not full local sell-government or home rule, but it CHAIRMAN: “Or a local government.” provides an opportunity for the development of as much sell-government as is possible as our State develops. I, MAU: “Provides for the adoption of the local government.” therefore, urge that the delegates support this proposal. CHAIRMAN: “Of a local government.” CHAIRMAN: Anyone else wish to talk on this? Are you MAU: “Of a local government.” That doesn’t make sense ready for the question? at all. DELEGATE: Question. CHAIRMAN: Are you ready for the question? Question PHILLIPS: I call for a roll call vote. is on the - - CHAIRMAN: Anyone wishing a roll call will hold up their MAU: I suggest that the movant do not accept the suggested hands. That’s not enough, so it will be ayes and noes. All amendment. I will - - those - - 534 LOCAL GOVERNMENT SHIMAMURA: May I have that read once more, please? the legislature bound to find additional sources of revenue? I think this is a little ambiguous the way it’s written. CHAIRMAN: The motion made was for a new sentence to immediately follow the one we just adopted and to be known as CHAIRMAN: Delegate Tavares, can you answer that? 1A tentatively, and reads as follows: “Each political subdivi TAVARES: As I read Delegate Roberts’ sentence here sion shall have power to frame and adopt a charter for its as it was inserted, it says, “Each political subdivision shall own sell-government within such limits and under such pro have power to frame and adopt a charter for its own self- cedure as may be prescribed by law.” All those in favor government within such limits as may be prescribed by law.” say “aye.” Opposed. Carried. A new sentence has been I think that “within such limits” would allow the legislature adopted. to set limits to revenue. The next sentence. Are you ready - - PHILUPS: Now I’m worried about the wording of that NIELSEN: I’d like to amend the sentence, placing the last one because it is in direct opposition to what was stated word “sufficient” alter the word “revenue,” right near the just above that. Now, if the State is to provide for the govern end of the line, so it will read, “The legislature shall pro ment of the local unit, then on the next - - the next sentence vide sources of revenue sufficient for the operation of each why we permit them to provide for their own government, government so created.” I’d like to know how we are going to bring those two together. CHAIRMAN: Is there a second to that? Would they conflict so? TAVARES: Was that seconded? CHAIRMAN: Well, it would seem to the Chair that “as CHAIRMAN: No. Are you ready for the question on the prescribed by law,” is the thing that makes the second sentence? All those in favor say “aye.” sentence work with the first and I don’t believe that there is much confusion on that point. However, the sentence has FONG: Have we got an explanation on that? passed, and we are now concerned with the next line and I would like to move on to it. Is there a motion to adopt the CHAIRMAN: There was no explanation offered. Delegate next sentence? Richards, do you want to answer that? RICHARDS: I think that the intent is definitely there. SHIMAMURA: I so move. “The legislature shall provide sources of revenue for the RICHARDS: Second the motion. operation of each government.” If the legislature - - it should be assumed that if the government can’t operate, the CHAIRMAN: It has been moved and seconded that we legislature is not fulfilling its duty. It doesn’t mean that the adopt the next sentence. Mine reads, “The legislature shall government can go hog-wild, though, in what it seems to think provide sources of revenue for the operation of such govern is necessary for operation. I think that that’s a matter ment so created.” Is that correct? Ready for the question? where the legislature, by using common sense, that it C. RICE: We’ve got a new one in there that Delegate theoretically is going to have - - will be able to take care Roberts put in. Which is the one that the revenue is going of that. to be provided? FONG: We find many times that the City and County CHAIRMAN: How does yours read now? comes to the legislature and says they haven’t got enough revenue, and the legislature says, “Why, this is your C. RICE: It says, “The legislature shall provide sources of revenue for the operation of such government so created.” source of revenue and you operate within that budget.” Now, does this mean that the legislature is mandated to provide CHAIRMAN: Well, that’s the way my copy reads. Now, sufficient revenue? Now, if the answer is negative; if the is there a correction on that? answer is that the legislature shall only say where your C. RICE: We had two at beginning. revenue is coming from and not say that it must be sufficient, then that’s another thing. TAVARES: I think the original Richards’ amendment says “each” not “such.” DOl: Will Delegate Fong be satisfied should we amend that sentence by deleting the words, “sources of,” so that it will CHAIRMAN: Well, the one I’m reading says “such.” read, “The legislature shall provide revenue for the operation Has that been changed to “each”? of each government.” RICHARDS: It was my purpose to have “each government FONG: I think it remains about the same. so created.” CHAIRMAN: It would be my own opinion that you’d want CHAIRMAN: Will you change “such” to “each.” Then it “sources” rather than leaving it out, if the Chair can state will read, “The legislature shall provide sources of revenue an opinion. for the operation of each government so created.” Is that correct? C. RICE: At present they allow the county governments to have the real property tax, yet the legislature sets the C. RICE: Now, who is going to say if the legislature limits which - - how far they can go. The City and County provides enough revenue? They are supposed to give of Honolulu wants $8,000,000 now. The County of Kauai is enough, aren’t they? It seems to me the word “enough” $600,000. I just want to know whether they have to take belongs in there. “Sufficient”? I don’t think this means very off all those limits, or anything; or if the county wants to much. The legislature can ham-string one of these local be a spendthrift the legislature will have to provide the funds goternments. for them. CHAIRMAN: As I read this sentence, it says “The legis CHAIRMAN: Well, it seems to the Chair that this sentencE lature shall provide sources of revenue.” That has nothing would say that the same controls that now exist would be to do with how much. They have simply provided a source. continued. What is your pleasure? Anyone else? ASHFORD: It seems to me that that is surplusage. As FONG: What I want to know is this, suppose the legis a matter of fact, the sentence we just adopted seems to me lature says, “Well, this is your source of revenue,” and the to be surplusage because when you say, “under such pro budget of the City and County of Honolulu exceeds the amount cedures” - - “within such limits, and under such procedures which can be realized from that source of revenue. Now is as may be prescribed by law,” you make it purely a legis JUNE 26, 1950 • Afternoon Session 535 lative grant, and this again is pureiy a legislative grant. power of the legislature to mandate should not be destroyed. It seems to me that it doesn’t direct the legislature as to just If this sentence as proposed by Delegate Richards remains what shall be done. It still leaves it to the discretion of the in, the legislature can - - all the revenues from the urban - - I mean, the rural areas could be diverted to the benefit legislature, and therefore, in my opinion it’s unnecessary. of where the large part of the population is, and if the legis APOLIONA: If the movant will ask for a deletion of this lature mandates a just share to those rural areas, then the - -to amend this motion to delete this sentence, because if taxation increases and the rural areas have to pay twice. you read our first sentence, the last line, “provide for the government thereof,” then your State legislature must pro RICHARDS: I understand that there is a definite difference vide for the operation of your government that has been of opinion regarding the inclusion or deletion of this parti created. Doesn’t it seem so? cular sentence; but I would appreciate it if the delegate from Molokai would make a motion to that effect, and that we do CHAIRMAN: Of whom are you asking the question? The not have this other point of mandating for past claims con Chair? fused with this other issue. APOLIONA: Chair to ask Delegate Richards. CHAIRMAN: I think the delegate from Molokai has stated CHAIRMAN: Delegate Richards, would you like to answer her position quite clearly. that? SHIMAMURA: I don’t see why this aversion against man RICHARDS: Well, I see no particular objection if the first dating expenditure of funds should be limited to “previously sentence stands. In providing the government, part of what is accrued claims.” Why don’t we say, “to pay any claims.” necessary to provide is income for that government. So I May I have that explained, if there’s a special reason, from think the sentence could very well be deleted. the proponent of that amendment? CHAIRMAN: Would someone like to move to delete that ASHFORD: I thought that had been explained at some sentence? length on Saturday. Unfortunately, in a more or less re mote past, the legislature has undertaken to require counties FONG: I so move that that sentence be deleted. or the City and County to pay claims for which perhaps there NIELSEN: I’ll second the motion. was some moral obligation, but which were investigated and rejected by the counties. That is a true over-riding and CHAIRMAN: It’s been moved and seconded that the sentence most unfair as applied to indebtednesses already created. be deleted. All those in favor say “aye.” Opposed. Sentence That is, the indebtednesses were not created but were im deleted. posed. In other words, what in criminal law would be known The next sentence reads, “The legislature shall not man as an ex post facto law, and in civil law as a retroactive date, or increase the mandates, of expenditures from any law, and I think that that is most unfair. previously provided sources of revenue of political subdivi sion, without providing sufficient additional funds or other SHIMAMURA: In other words, as I understand this amend sources of revenue therefor, unless the governing body of ment, the legislature may still mandate the payment of such political subdivision shall approve thereof.” claims unaccrued. There may be an existing contract, and the payment of money, the claim, has not accrued under ASHFORD: I move to substitute for that sentence - - such a contract, and the legislature may mandate the pay CHAIRMAN: To keep our parliamentary procedure in ment of such unaccrued claims although it cannot mandate order, would you move for the adoption of the sentence previously accrued claims. first and then we’ll begin amendments. TAVARES: As a matter of practical feasibility, the HOLROYDE: I move for the adoption. legislature is hardiy likely to do such a thing. But I can imagine the legislature passing a law authorizing condemna CHAIRMAN: Seconded. tion of property by a city and saying the city shall pay for ASHFORD: I move to substitute for that sentence the these claims when they are incurred. That would be perfect following, which was discussed at some length on Saturday, ly all right. And if you say they shan’t mandate, then you I think it was. “No law shall be passed mandating any are tying up the legislature to even tell the City and County political subdivision to pay any previously accrued claim.” when they give them extra power, so that when they exercise it they must pay for the damage they do. That’s why we SAI~AKIHARA: Second it. have not brought in future claims, Mr. Chairman. CHAIRMAN: Delegate Ashford, would you read that CHAIRMAN: Could the Chair ask the last speaker, are again, and slower so that we’ll be sure and all be able to you speaking in answer to the question or in favor of the put it down? amendment by Delegate Ashford or opposed to it? ASHFORD: “No law shall be passed mandating any poli TAVARES: I’m only explaining this section. I have no tical subdivision to pay any previously accrued claim.” objection to it going into this amendment, either with or without the clause. I think if the other clause stays in, it HAYES: I second that motion. possibly covers the new one that’s been proposed. But I CHAIRMAN: It’s been moved and seconded that this don’t object to that clause going in. amended sentence be in place of the one on the copy before CHAIRMAN: The Chair would like to point out that Miss you. Are you ready for the question? Ashford’s - - Delegate Ashford’s amendment is in lieu of RICHARDS: I am in a peculiar position. I do not speak the present sentence on this - - dealing with this subject. against the inclusion of the amendment, but I do speak against FONG: In the last legislative session, the legislature the deleting of the present sentence. I feel that it’s perfectly mandated the City and County to float the sum of $2, 000, 000 proper to include that as an amendment to the section, but in bonds for the use of the Parks Board. Now, they mandated I think that there are two different points involved, and I the City and County to have that money for the Parks Board. feel that we can act on that as an amendment whether this Now, under this provision of the statute, nothing was pro other sentence be deleted or not, or changed. vided where the source of revenue would come from. That ASHFORD: The reason for moving for the deletion is bond will be liquidated probably in twenty, twenty-five years. that it is a major concern with every rural area that the Now, under those circumstances, what would we do with a 536 LOCAL GOVERNMENT provision like this? The Territory certainly couldn’t set the power to frame and adopt its own charter and set up up the source of revenue for $2,000,000 worth of bonds to its own form of self-government. If that is the intent of be paid during a period of say 25 years. Delegate Roberts’ amendment, then we certainly don’t RICHARDS: I believe that Is answered in the last part need this sentence in, could be deleted, which will be taken of the sentence. The legislature could perfectly well go care of by the charter and the government in setting up its ahead with authorizing the county to sell the bonds - - City form of local government. and County to sell the bonds for the benefit of the Parks CORBETT: Am I correct in assuming that it is not Board but without providing the necessary revenues to the necessary for every political subdivision to form its own paying off of those bonds, if the governing body of such charter? That is the interpretation I put on it. They may political subdivisions shall approve thereof. So that still if they want to but they don’t have to and if they don’t, then permks the county, the board of supervisors and the mayor this clause, this sentence here, will apply. If they do not to go ahead with it on the authorization of the legislature, adopt their own charter, then they must be in a position to but it does provide them with a veto power if the legislature have all their officials appointed and elected, or elected does not provide revenue—not necessarily to the $2,000,000 locally. That is my interpretation and my attempt to answer at one time but to take care of the gradual liquidation of the the delegate from Molokal. bond. APOLIONA: Just some information that I wanted to get CHAIRMAN: Ready for the question? Question is the from Delegate Roberts. In the first sentence that we adopted, adoption of Delegate Ashford’s amendment. All those in “the legislature shall create counties, and may create other favor will say “aye.” Opposed, “no.” Seems to be evenly political subdivisions within the State, and provide for the divided. All those in favor of the amendment - - Delegate government thereof,” now in 2A that section refers to the Ashford’s amendment which would substitute for this political subdivisions that “may” be created. Isn’t that sentence, will please raise your hand. No. Ayes have it. your thinking, Dr. Roberts, that each political subdivision The amendment we just adopted will substitute for the entire that “may” be created by the legislature may—I mean, shall sentence. have the power to frame and adopt a charter of its own? The next sentence begins, “All officials of a political sub division shall be appointed or elected locally in such manner CHAIRMAN: Are you asking a question? as shall be provided by law.” APOUONA: I’m asking that question of Dr. Roberts. APOUONA: I move for adoption of this sentence. CHAIRMAN: Delegate Roberts, would you like to answer CHAIRMAN: Is there a second? that? DELEGATE: I’ll second it. ROBERTS: I’ll try. It seems to me that the sentence, “All officials of a political subdivision shall be appointed or BRYAN: I move for the deletion of it. elected locally in such manner as shall be provided by law,” SAKAKIHARA: I second it. is identical in language with the proposal of the Organic Act with the exception of the word “locally.” Under the Organic RICHARDS: I will second the original motion. Act the provision is made that the “appointment or election, CHAIRMAN: The original motion was already seconded. as the case may be, shall be in such manner as provided by There is a motion now to delete. Is there a second to delete? law.” This merely emphasizes the fact that in the setting up of these political subdivisions the appointment or election SAKAKIHAR.A: I second that motion to delete. of the officers shall be locally; that’s the only advantage of BRYAN: May I speak to the motion? I think that this retaining it. Actually, of cours e, it could be covered in would not be necessary in view of the amendment - - the the previous section, but it throws it out a little more in additional sentence by Dr. Roberts which provides for a this sentence. charter or method of self-government, and I believe that those things would be covered in that manner. BRYAN: I’d like to speak in favor of my proposal to delete again. In any event, whether it refers to the ones PHILLIPS: I disagree with the delegate, with Delegate who “shall” be created, such as the counties, or those that Bryan, because as it says here, “under such procedures as “may” be created, it’s either covered by the sentence 1A or may be provided” - - “such limits and under such procedures by the last part of the sentence number 1 which says, “and as may be provided by law.” Now, if that’s the case, then provide for the government thereof.” I think k’s entirely it would be up to the legislature to prevent the local unit unnecessary. from specifying, that is, either elect or select its own officials, and the legislature could appoint or take over the FONG: By inserting the word “locally,” it gives you selection of local officials completely. So I don’t believe various meanings. Now, does it mean that the official that unless you expressly stated, as has been brought out must be locally appointed? Now, if he’s elected, he is before, it will not be carried into effect. elected locally. Now, if he is appointed he may be appointed by the mayor and the board of supervisors, or the chairman ASHFORD: A question. When you provide that, “All and the board, or appointed by the governor. Now, does it officials of a political subdivision shall be appointed locally mean that the governor can’t appoint him? When you say in such manner as may be provided by law,” does the appoint he must be “locally” appointed, does that mean that the ment by the governor of a police commission of local resi board of supervisors must appoint him? Now, what is the dence comply with such provision? meaning of this? It has several meanings. WOOLAWAY: I would just like to say that as it reads TAVARES: I’m afraid I’m to blame for that. If it’s that here, I’d say, no. ambiguous to a brother lawyer, then I must take the blame. Of course, the original wording of that was by the county, or CHAIRMAN: Any one else wish to answer this? Chair man of the committee? I was recognizing the committee city and county, and the word “locally” was put in there so here to see if they have any answer to this. as to apply to all political subdivisions. If it’s not clear, it should be clarified. I’m not now speaking in favor of KAUHANE: We are trying to deliberate here whether we leaving that sentence in, I am only speaking as to the ex should accept the motion which was made or Delegate planation of if. In discussing the matter in a group during Roberts’ theory wherein the local government shall have recess, there was controversy about that, so we simply JUNE 26, 1950 • Afternoon Session 537 agreed on the form and agreed to leave it to the floor to mind that unless this sentence remains in, the legislature decide whether we’d have it in or out. But the intent of it will have complete control over the selection of city or was to require that, as to those officials of a political sub county officials. It also seems to me that the last clause division, they should be appointed or elected either by the in the first sentence would provide for that, if this sentence electors of the subdivision or by the local government of the before us now is deleted. So I think that if we are to give subdivision. That was the intention of that sentence, and if some measure of seif -government to the counties and other that is not desired by a majority of the delegates, then they local governments which may be created by the legislature, should vote to delete the sentence. that this sentence ought to remain in. CHAIRMAN: The question now is for the deletion of the C. RICE: The liquor commission is a territorial board. sentence. Are you ready for the question? The employee of the liquor commission has to go through the territorial civil service. Their cars are all T. H. The FONG: In other words, Mr. Tavares, that means that only time they come in contact with the county is turning over if this is passed, the intent of the committee was to keep the the surplus. After they pay their expenses the surplus goes governor out of the appointment. Is that right? to the county and the county keeps the books. Police com TAVARES: That is correct unless of course - - for mission is entirely a local board. Everything is run by the instance the police, unless the Territory or the State, county except the appointments. I think the legislature could could avoid that situation by making all of the police com make the liquor commission a territorial, and keep it missions purely state commissions and taking over their territorial if they wanted to. I’ve been on the board of the support and expenses, in which case then it wouldn’t be a police commission. I don’t see that it makes much difference county organization any more. whether locally we appoint the chief of police - - I mean, the governor or the chairman of the board of supervisors. FONG: Now, your liquor commission, that is supposed Originally, you all remember, it was made by - - the appoint to be a county - - on a county level? Isn’t it? ment was made by the governor to keep it out of politics, TAVARES: Yes, those are what I would call “hybrid” but if you want to throw it into politics, throw it over to the boards where they are partially appointed by the governor mayor and the chairman of the board of supervisors. Then and yet considered as county boards. They are somewhat why have a police commission? Let’s elect our sheriff of an unusual type of board and I call them “hybrids” for again. lack of a better term. CHAIRMAN: Any further question? FONG: You say that if we raise it to the dignity of a ASHFORD: I’m not necessarily speaking in opposition territorial board, then the governor could appoint? to this sentence, but if it is to do what it is intended to do, TAVARES: Well, I wouldn’t say “dignity.” I think they I think it should be rephrased. The governor has one aspect both have dignity, but I say that if you made them purely of divinity. He is everywhere within the State, and if he territorial boards by law, then they would not come under should go, for instance, to Maui and there make his appoint this provision. As it now stands, I think either by construc ments, he would be appointing locally. tion or by the wording of the chapters themselves on these CORBETT: I just wanted to say in answer to the delegate particular commissions, they have been held to be county from Kauai that we have heard a very good many times on boards or commissions, even though the appointments may the floor that we mistrust the legislators. Now, it seems be made by the governor. Lo me we’re passing the buck on down and there is a good FONG: Can you see adyway by which the police commis deal of mistrust of the members of the board of supervisors. sion could be raised to the territorial level? If we are able to give the members of the board at the local level a little authority, a little responsibility, we will, un TAVARES: I think so. I think that the legislature could doubtedly, attract men of as high a caliber as those who provide that they were State boards and take over the ex now run for the legislature. pense of operation thereof, and in that case they would not SAKAKIHARA: I thought that when the government em be county boards. ployees were all placed under civil service law with job FONG: And the police then would be under the jurisdic security, that that was to accomplish attracting more tion of the Territory rather than the counties? competent and able government employees. It seems that, TAVARES: That’s right, under that situation. from the line of argument advanced here by the proponents of the retention of this sentence, saying one thing from what CHAIRMAN: May I ask the speakers to continue to direct was proposed when the civil service law was enacted into their questions to the Chair. It’s the only way on the tape law. recording that we can identify who is asking questions, who CHAIRMAN: The Chair would like to state that we have is answering. inthe audience today—inasmuch as we are in the Committee FONG: I am through. of the Whole and in informal session—Mr. Lane W. Lancas ter, visiting professor from the University of Nebraska, CHAIRMAN: Thank you, Delegate Fong. who is teaching this summer at the University of Hawaii, MAU: What has transpired just a second ago indicates state and local government. I wonder, if Mr. Lancaster the concern of those who are interested in local government. would be good enough to stand. Speaking on the police commission and the liquor commission, The Chair will declare a five minute recess so that we with certain of the senators sitting in this Convention ex can find out how to solve this problem. cepted, the senators in the territorial legislature have been quite jealous of their power of confirming these appointments. It seems to me that is the only reason why those two com (RECESS) missions, for instance, are not in the hands completely of the local government. CHAIRMAN: The pending motion before us is the deletion But on this motion to delete, the second sentence which of this sentence. Are you ready for the question? was added to this amendment to Proposal 26 would give TAVARES: I don’t think all of the members are back. the authority to the legislature to say how these county or city officials shall be selected. There is no question in my CHAIRMAN: I am going to wait just about 30 seconds. 538 LOCAL GOVERNMENT TAVARES: I see several delegates. May the Sergeant HOLROYDE: I’d like to second that. We amended and at Arms notify the delegates, Mr. Chairman? put in other sections. I’d like to see how it all fits together CHAIRMAN: The question is the deletion of the sentence, now. “All officials of a political subdivision shall be appointed or WIRTZ: I’d like to third that. elected locally in such manner as shall be provided by the law.” All those in favor of the deletion will say “aye.” CHAIRMAN: It’s been moved, seconded and thirded that Opposed. The Chair is in doubt. All those in favor will this all be printed so that all the delegates can consider raise their right hand, all those in favor of deletion. the final section before voting on it. Opposed. Deletion carries. The move to delete carried. ROBERTS: I’d like to withdraw the motion to tentatively That sentence is now deleted. adopt this section to give the delegates an opportunity to We’re now at the last sentence of this section, “Political see the draft as agreed to, even though we did consider it subdivisions shall have and exercise such powers as shall carefully in detail. Some of the delegates feel that they be conferred under the provisions of general laws.” are not yet able to see the whole thing. I think in all fair WOOLAWAY: I move for tentative adoption of that ness we should do so. sentence. CHAIRMAN: If the motion to defer and have it printed carries, why that will automatically do that. All those in CORBETT: I second that motion. favor say “aye.” Opposed. Carried. CHAIRMAN: It’s been moved and seconded. APOUONA: I now move that we rise and report progress SAKAKIHARA: I move to delete that sentence. and beg leave to meet - - sit again, rather. FONG: Second the motion. CHAIRMAN: May the Chair inquire whether or not we CHAIRMAN: It’s been moved and seconded that this have any unfinished sections to go on with? sentence be deleted. Are you ready for the question? ROBERTS: There are two more sections. I think they CORBETT: This last sentence leaves the power with are relatively brief, and I think that there need not be too the legislature to keep such things as the police department, much discussion on them on the floor and we can adopt them the water board and so forth under their jurisdiction. In and then come back to Section 2. other words, the political subdivisions shall only have such CHAIRMAN: While this is’nt my job, I have the feeling powers as are conferred under the provisions of the general that we should continue on. laws, which we have already discussed in the first sentence. PORTEUS: Since the clerks may be the only ones that CHAIRMAN: Any other discussion? Delegate Mau, did have this section as it has been amended, wouldn’t a very you wish to be recognized? Are you ready for the question? short recess be in order, in order that they may send it The question is the deletion of that last sentence. All those to the room for printing? in favor say “aye.” Opposed. The motion failed. Now, the CHAIRMAN: No objection, so ordered. question is the adoption of the last sentence. All in favor say “aye.” Opposed. Ayes have it. (RECESS) The question now is the adoption of this section, as amended. Is there a motion? ROBERTS: I move that we adopt this section, as amended. Chairman: ARTHUR K. TRASK SAKAKIHARA: Before that motion is adopted, I think in all fairness to the members of this committee that that CROSSLEY: I move for the adoption of Section 3. should be reduced to writing for the information of the mem CHAIRMAN: Any second? bers so we could vote intelligently on the amended section. DELEGATE: I second that motion. CHAIRMAN: Delegate Sakakihara, I’d like to point out that we have adopted this sentence by sentence. I believe CHAIRMAN: Section 3 to be tentatively adopted, of that - - Committee Proposal No. 26. Question called for. SAKAKIHARA: It was tentatively agreed, wasn’t it? BRYAN: I would either like to speak against the adoption or move the deletion. I’ll speak against the adoption. I CHAIRMAN: Yes, tentatively agreed. Now, we are think it would be the clearer way to do it. I think that this adopting this thing tentatively until the whole thing - - is covered pretty well by the outline of what the subdivisions CORBETT: Point of order. I believe there was no second. may and may not do, and how they shall be set up in Section I would like to second the motion. 2, which we don’t have before us but which I think most of the delegates will recall. Therefore, I don’t think we need CHAIRMAN: Second the motion to what? Section 3. CORBETT: To adopt this as amended. FONG: Second the motion. SAKAKIHARA: I renew my motion. While this section CHAIRMAN: Any further debate? Ready for the question was tentatively agreed, the motion now before the Commit Tentative adoption of Section 3. tee of the Whole is to adopt the section as amended. TAVARES: I should like it clearly understood ihat if the CHAIRMAN: That’s correct. motion to adopt fails or If this section is deleted, that that SAKAKIHARA: It’s only fair, therefore, to have these does not mean that the taxing power is not reserved to the amendments which were amended from time to time to be State. It means - - it still means that under the other written up so that we can vote intelligently. general powers, the State by general law can reserve the CHAIRMAN: What is your motion, Delegate Sakakihara? power of taxation to the State. That is correct, is it not? SAKAKIHARA: Therefore, I move that the amended sec CHAIRMAN: You are referring to what section of the tion be written out and distributed to the members of the taxation and finance proposal? Committee of the Whole so that we may vote intelligently TAVARES: No, as I understand it, an opponent spoke thereon. against adopting Section 3 on the ground that it was already 539 JUNE 26, 1950 • Afternoon Session covered by previously tentatively approved provisions, TAVARES: May I ask the last speaker a question? Is it with which I agree, but I should like the record to show that not true that under Section 56 of the Organic Act, the legis that does not mean that the taxing power cannot be reserved lature has allowed the counties to levy some license taxes to the State by the legislature under the other general pro or fees, and has also allowed them, of course, to receive visions that have been tentatively approved. I think it can, the benefits of the real property tax? and therefore, If Section 3 is not adopted, that power still KING: In reply to that question, I think it is true; but remains in the legislature to reserve the taxing power to the levying of real property tax is still reserved to the the State or to the legislature. territory under the Organic Act. All the counties do is SAKAKIHARA: I rise to a point of information. Wasn’t submit a budget. The territorial treasurer and the tax this power vested in the State according to the proposal assessor determine the rate and determine the assessment, submitted to this Convention by the Committee on Taxation but I don’t want to get involved in a technical argument of and Finance? that sort. There is a certain amount of duplication in this CHAIRMAN: That is correct. In a general sense, it section, yet it serves a useful purpose and I see no occasion shall not be contracted away, and so forth. to delete it. TAVARES: I agree that the taxing power is reserved to HEEN: I am in favor of deleting this section. I believe the legislature. it’s unnecessary. Without it, the legislature can do exact ly what it says it might do here, and I will support the SAKAKIHARA: Therefore, I’m in accord with the state motion to delete this section upon the ground that it is un ment of the gentleman from the fifth district, Delegate necessary. Bryan. I therefore move to delete Section 3 from this proposal. CHAIRMAN: Question? Are you ready for the question? CORBETT: I believe the committee report stated that The question is the deletion of Section 3. “The taxing power if this matter was sufficiently taken care of elsewhere in shall be reserved to the State except so much thereof as may the Constitution, we would be perfectly willing to have it be delegated by the legislature to the political subdivisions, deleted from this particular proposal. However we did and the legislature shall have the power to apportion state wish to express the committee’s views and to insure revenues among the several political subdivisions.” Those understanding of the fact that we did not intend in any way in favor say “aye.” Those opposed, “no.” I’m inclined to to have the taxing power taken over by the units of local think the noes have it. Show of hands. Those in favor of government. deleting Section 3, please raise your right hand. Twenty. Those opposed to the deletion. Twenty-five. Those not CHAIRMAN: For the sake of the record, will Delegate voting. The motion is lost, so the section is adopted tenta Crossley read that provision in the taxation and finance tively, Section 3. Those in favor of formal adoption tenta proposal with reference to the particular matter at hand? tively of Section 3 say “aye.” Those opposed, “no.” Ayes CROSSLEY: And I might say this is covered in the com have it, except for two noes. mittee report. KAUHANE: I move that Section 4 - - CHAIRMAN: You withdraw your prior motion? CHAIRMAN: Considering Section 4. CROSSLEY: No, we have to do both of these in order to KAUHANE: - - Section 4 be tentatively agreed to. do it. I now move that this be - - I second the motion that this be deleted, and that would be the prior motion at this CROSSLEY: I move that Section 4 tentatively be adopted. time. DELEGATE: Second that motion. ROBERTS: As I recall the section dealing with taxation CHAIRMAN: Ready for the question? Those in favor of and finance, that preserved the power of - - the taxing power Section 4 reading as follows: “This article shall not limit in the State. It is not the intent, as I gather, of the Commit the power of the legislature to enact laws of state-wide tee on Local Government to withdraw from that power, but concern,” vote “aye.” Opposed, “no.” Ayes have it. Carried. this proposal does state, however, that the taxing power of The committee’s attention is now called to Section 2, as the State stays there, but the State may delegate to the amended, for consideration. political subdivision some of those powers. It would seem to me to be a very valuable section to recognize that some CROSSLEY: We deferred action on Section 2 until we of those powers of the State which reside in the State may could have the section mimeographed for us; we now have be delegated to local subdivisions by actions of the legislature. these. I therefore move for the adoption of Section 2, as amended. SAKAKIHARA: Speaking to the motion, if you’ll read the first sentence of the amendment, “The legislature shall Section 2. The legislature shall create counties, and create counties, and may create other political subdivisions, may create other political subdivisions within the state within the State and provide for the government thereof.” and provide for the government thereof. Each political They may in that bill, when the government is set up, dele subdivision shall have power to frame and adopt a charter gate certain taxing powers, if they see fit to. for its own self-government within such limits and under such procedures as may be prescribed by law. No law CHAIRMAN: Are you ready for the question? The ques shall be passed mandating any political subdivision to tion is the adoption tentatively of Section 3. Pardon me. pay any previously accrued claim. Political subdivisions The deletion - - shall have and exercise such powers as shall be conferred under the provisions of general laws. KING: Before we vote on this—the motion now is to de lete Section 3—I’d like to speak in opposition to that motion. ROBERTS: Second. Section 3 does do a little more than reserve the taxing CHAIRMAN: There is a second to the motion. Any power in the State, which is already reserved. I want to consideration? support the remarks made by Delegate Roberts that it offers an authority for the State to delegate such part of the statutory SHIMAMURA: In my humble opinion, the second sentence power it may see fit to do so to the counties. So it seems to is inconsistent with the fourth and also with a portion of the me that this section has some value in order to be retained. first sentence. By that I mean that under second - - the I’m opposed to the motion to delete. second sentence says that any “political subdivision shall 540 LOCAL GOVERNMENT have the power to frame and adopt a charter for its own HEEN: What I stated was this. I am opposed at this sell-government,” and then in the fourth sentence we say that time to have written into the Constitution matters of detail the “Political subdivisions shall have . . . powers as shall with reference to the setting up of counties and other poli be conferred under . . . general laws.” The charter as we tical subdivisions. I say this, that there are not many dele all can see would provide for the government of that parti gates here who are well enough informed as to how these cular subdivision and would provide for its functions and counties and local units perform their functions, and how its powers, and it would not be by general laws but by they are set up. Therefore, it would seem to me that we special charter, by special legislation. Therefore those should use at this time some general language whereby the two sentences are inconsistent. legislature may, after a more careful study, provide for PORTEUS: I had an impression similar to that at first. the setting up of these various local subdivisions, counties, However, it would be quite possible for the legislature to cities, and so on, and I am somewhat in favor of some first create the counties and provide some sort of frame general language along the lines set forth in this last work of government. In the meantime, before the political proposed amendment. subdivisions actually as authorized get together to frame CHAIRMAN: Section 2, specifically? their form of government, you give them certain powers. You give them the power to handle zoning and the power to HEEN: Section 2, as amended. handle such matters as the senator from Hawaii and other TAVARES: Just to add further to the confusion, I would things. So that I think that under this, that If the county like to point out that we must bear in mind that we have one was authorized to have a convention or some such matter as county, the County of Kalawao, which is called a county by that, the convention could actually determine that they would law, but which I don’t think we want to be covered by this. have a board of managers with a city manager type of plan, Now, that’s just another one of the little problems that has rather than having an elective mayor, I believe, if the legis to be worked out when you adopt a new provision. Now, I lature in authorizing them would give them enough power so think maybe we can handle it by making it very clear in our that they could determine to have one or have the other. On Committee of the Whole report that the County of Kalawao the other hand, if the legislature were to say that they were is not a true county in the true sense of the word, and there to set up a city form of government with an elective mayor fore is not covered by this provision giving them authority and elective board of supervisors, of course those would be to frame and adopt a charter, unless that is what we mean. the limitations under which they would operate. But there is another point that ought to be clarified, and ASHFORD: Would it not be possible under this provision before we adopt this section, I think it should be clarified. for the legislature to do what the Congress of the United Now, if it is the sense of this Convention that the people of States, we hope, is going to do. I understand there is a the County of Kalawao, instead of being governed by the provision of H. R. 49. They are requiring our Constitution Board of Health, as they are now, should have a right to to be approved by the Senate first before we get statehood. adopt and frame their own charter, let’s make_that clear. And would it not be possible for the legislature, for instance, But otherwise let’s make it clear to the contrary that they to say that the island of Lanai should become a county and are not covered at all. should set up its own form of government, which should CHAIRMAN: Are you ready for the question? Question? first be submitted to the legislature for its approval before it became a county. I think that with the smaller subdivisions KING: I don’t see there is any conflict. That sentence which wish to become counties that would be very easily ends, “and under such procedures as may be prescribed by done and very satisfactorily done, and that is where that law,” so that it seems to me there will be no conflict in section would have real value. regard to Kalawao or any other county. CHAIRMAN: Delegate Shimamura, are you satisfied HEEN: It would seem to me that there should be a with the answer of Delegate Ashford? comma after the word, “subdivision.” SHIMAMURA: I can see the situation where a charter CHAIRMAN: On what line? may provide for the bare frame of a government, that is, the mayor and council plan or the city manager plan; but HEEN: So that the term - - the usual charters have included definite powers and functions CHAIRMAN: On what line, please? to be given the governing authority of that particular state - - particular subdivision, political subdivision, and that is the HEEN: Second line. So that the term “within the State reason I feel that there is an inconsistency between the and provide for the government thereof” shall apply not second sentence and the fourth. If the fourth sentence were only to the counties which shall be created, but also to to be amended to read, “shall be conferred under the provi those other political subdivisions which may be created. sions of laws,” instead of “general laws,” I think there won’t CHAIRMAN: So the sole amendment suggested is a com be any inconsistency. ma after the word, “subdivisions” at the end of the second CHAIRMAN: Well, Delegate Heen made a rather fine line? statement in the morning session in the committee room HEEN: That’s correct. here, the caucus that you referred to, and I would like very much if he would repeat that sage advice with respect to this TAVARES: I’ll second that motion to amend. provision. CHAIRMAN: Will the movant accept that? The movant HEEN: I don’t recall what it was in reference to, at the accepts the amendment so that no vote is necessary. present time. TAVARES: That there may be no mistake, since I ap CHAIRMAN: You had referred to the vast study that parently provoked no thought from this Convention on Kalawac would be involved in setting up the various intricate situa I move that before we vote on this, that it is the sense of this tions that confront the people here, and in our limited time Convention that the County of Kalawao is not covered by this here, to frame a broad constitutional provision would section as to counties. probably be wise, and you made some statement in favor of this—not this specific situation but your general attitude CROSSLEY: I would second that motion. towards this provision—which would answer in some way CHAIRMAN: Motion made and seconded that it is the the question posed by Delegate Shimamura. sense of this Convention that the County of Kalawao is not JULY 7, 1950 • Morning Session 541 included in the term used herein for the suggested Section 2 BRYAN: I second the motion. with respect to counties, that it is under the jurisdiction of the Board of Health, and for all purposes shall continue to CHAIRMAN: Specifically, that would be Section 2, as be considered as such. You ready for the question? amended? HEEN: In connection with that, the legislature might ROBERTS: Section 2, as amended which actually covers later on study instead of calling Kalawao a county, might Section 1 and 2, and Section iA, and Section 3 and 4. We call it a village, and to provide for the government of that can renumber it therefore, so Section 2 being Section 1, village. So I don’t think there is any problem there at all. Section 3 being Section 2, and Section 4 being Section 3. CHAIRMAN: Well, to obviate any - - the question, are CROSS LEY: And that the Chair be instructed to draw up you ready for the question? Those in favor say “aye.” Those a report for final adoption by this committee. opposed, “no.” The ayes have it, so the sense of the com mittee will be inserted in the Committee of the Whole re BRYAN: I would second that motion. port. We are on Section 2, as amended, with a comma after CHAIRMAN: Yes, but there is a suggestion of Delegate the word “subdivision” at the end of the second line. Are Ashford that we should adopt this - - these entire sections you ready for the question? All of those in favor of adopting as a whole. All of those in favor of the motion as made by tentatively Section 2 as submitted, the amended section of Delegate Ashford and seconded say “aye.” Those opposed. Delegate Richards, say “aye.” Those opposed, “no.” Unanimously adopted. Sections 2, 3, 4 to be renumbered Unanimously the ayes have it. 1, 2 and 3. HEEN: In view of the fact that this - - BRYAN: I move that we rise, report progress and ask leave to sit again. CHAIRMAN: Pardon me, will you yield a moment? Notice from Delegate Mau that it is not a unanimous adoption CHAIRMAN: Second it? of Section 2, as declared by the Chair. The Chair is in APOUONA: I second that motion. error. HEEN: In view of the fact that this last section which CHAIRMAN: All those in favor say “aye.” has just been adopted, I take it tentatively, Section 1 should BRYAN: I think that motion should include the fact that be deleted. I move that it be deleted. the various chairmen should prepare a report. ROBERTS: I move we reconsider our previous action on Section 1. CHAIRMAN: I accept the amendment. Those in favor say - - CHAIRMAN: Is that matter - - there has been no second to it. CROSSLEY: There is only one chairman in this commit tee, believe me. It’s you. APOLIONA: I will second Delegate Roberts’ motion to reconsider Section 1. CHAIRMAN: Thank you for the kokua. CHAIRMAN: Thank you, Delegate Apoliona. DELEGATE: I rise to a point of order. There has been ASHFORD: I thought it was agreed on Saturday that we no second to that. didn’t have to reconsider because we are just adopting SHIMAMURA: I second the motion. tentatively. CHAIRMAN: The motion is that this Committee of the HEEN: That is correct. Whole on Local Government will rise and report progress CHAIRMAN: That is correct. So the motion is for the and that the chairman will make a report that this entire deletion of - - section has been adopted. Those in favor say “aye.” Opposed, “no.” BRYAN: I’ll second that motion. CHAIRMAN: - - of Section 1, namely, “The legislature JULY 7, 1950 • Morning Session shall create political subdivisions within the State and the method of establishing the same.” Are you ready for the question? All those in favor of the deletion of this section CHAIRMAN: Committee of the Whole will come to order, as read say “aye.” Those opposed say “no.” Unanimous please. Anyone desiring to move for a recess at this time ly adopted. So the same is deleted. So that leaves standing to look over the report? Recess subject to the call of the this new Section 2. Section 3 has been adopted. Section 4 Chair. has been adopted. (RECESS) APOLIONA: I move that this committee rise, report progress and beg leave - - ask leave to sit again. CHAIRMAN: We are considering Committee of the Whole ASHFORD: Would it not - - I think we are almost there, report and the proposal as amended by the Committee of but would it not be better first to renumber the remaining the Whole. sections and adopt them all, and then rise, report progress H. R[CE: I move that the committee rise and report and beg leave to sit again to consider the report. recommending the passage of - - that Committee Proposal CHAIRMAN: Thank you. It’s been brought to my attention No. 26 pass second reading. by Delegate Crossley that there has been a Section 1A that has been tentatively adopted, and lA reads as follows - - DELEGATE: I second that motion. BRYAN: That was a sentence - - SAKAKIHARA: I have an amendment. After the first sentence and commencing with the words, “Each political ROBERTS: That’s covered in Section 2, so-called Sec subdivision,” strike out the remainder thereof, of Section 1. tion 2. I move that we tentatively adopt the proposed section on local government, as amended. CHAIRMAN: Section 1. What line, please? 542 LOCAL GOVERNMENT SAKAKIHARA: Third line, commencing with the words, CHAIRMAN: Altogether correct. Any debate on the “Each political.” motion made by Delegate Rice? CHAIRMAN: Is there any second to Delegate Sakakihara’s DELEGATE: I move for the previous question. determined motion? Hearing none - - ROBERTS: The motion is out of order. COCKETT: I second it. CHAIRMAN: Sakakihara’s motion is declared out of ordex CHAIRMAN: You heard the motion; the motion of Dele- Delegate Roberts. The pending question and motion here gate Sakakihara was seconded by Delegate Cockett from made by Delegate Rice is that we recommend - - the commit Maui. tee rise, recommend to the Convention the adoption of - - ROBERTS: This article has been adopted by the Commit- pass on second reading Committee Proposal No. 26 as tee of the Whole as amended. We can’t amend it without amended. Question. All those in favor say “aye.” Opposed reconsidering our previous action. Unanimously carried. Debates in Committee of the Whole on HEALTH AND PUBLIC WELFARE (Article VIII) Chairman: KATSUMI KOMETANI MAY 3, 1950 • Afternoon Session LARSEN: Did you want me answer it? CHAIRMAN: The delegates will have permission to re CHAIRMAN: Yes, Dr. Larsen. move their coats and smoke, if they wish to. The Chair LARSEN: We have two or three propositions before us, will ask Dr. Larsen, chairman of the Committee on Health one in which it’s suggested that a State Board of Health be and Welfare, to come forward and discuss with you his formed and that the head of the Board of Health shall be committee proposals. appointed by the governor and so on. I would feel very dis LARSEN: I also want to mention the fact that these are tinctly that that is limited. At the present time we have a not conclusions. The committee felt that they want your State Board of Health. It might be that within the next ten thinking, your collective thinking, with the hope that you’ll years there will be a different way of protecting and develop raise questions. You possibly will give us some new slants ing and promoting health. Although at the present time the or you might have certain objections that might - - you might detail is a State Board of Health, I can conceive of the wish to be deleted. I might say that the last word in the possibility of a different organization, and then we would have “Fellow Delegates” message is “deliberations” rather than it frozen. I think we all agree that the one thing we are trying “deletions,” if you would change that. to protect from is producing frozen legislation here that will I’ll rapidly go through this, and, of course, part of our prevent the evolvement toward something perhaps bigger and thinking here is that perhaps, as the committee chair better. man suggested, that this is an experiment to try to get us ASHFORD: Dr. Larsen, is it not true that everything that to move a little faster perhaps. We, all of us, I think, are conscious of the fact that time is getting short, and we want is referred to - - that some legislation on all the subjects referred to in this article except the preservation of natural to try every way possible to speed up without hurting the beauty and sightliness and good order, have already been deliberations and try to get off our desks as soon as possible done by our legislature under the provision of the Organic certain things that most of us agree on. Act that reads as follows: “That the legislative power of As a headline to this, we are suggesting a change. Rather the Territory shall extend to all rightful subjects of legis than “Health and Public Welfare,” we are suggesting “Health lation not inconsistent with the Constitution and laws of the and General Welfare” as the name of the article, the question United States locally applicable.” being public welfare has gotten to have a connotation that sometimes is not too good. LARSEN: I think that’s true. I mean, we could perhaps I’ll read the first section, which has to do with public end all our deliberations right here and say, let’s just adopt, health, and then we’ll raise any questions, objections or as we already have adopted, the Constitution of the United additions. After considerable debate, we got down to this. States; and as we know, for 150 years we’ve evolved very “A. Legislation for the protection and promotion of the well under that. As I see this, the State legislature is try public health, including preventive measures shall be made ing to define a little more detail for our local use and perhaps by the State in the interests of its inhabitants.” Are there —as will in some of these other sections—perhaps are try any questions on wording, or additions or the thought in ing to beat a pathway with the hope that further legislation volved? will enlarge the development of the protection and the re KANEMARU: I was just wondering whether the phrase habilitation of people that isn’t, I believe, or it certainly “including preventive measures” could be left out due to the wasn’t recognized at the time of the writing of the first fact that “promotion” - - “protection and promotion” might Constitution. And, therefore, as I understand it, my think cover all of that phrase there. Or does it have to be? ing is that our State Constitution should enlarge a little bit without hampering or without freezing our concept of LARSEN: The thought is - - I might say there was con the duties of the State to their people. Now, I say this be siderable discussion on that. So much of the present public cause as I read over these many other constitutions, that health department has to do with innoculations to prevent has been the general custom of the state constitutions. disease, sanitation, and things of that type that although they What we’re trying to do is limit it as to the number of words might be stretched into promotion of public health, we believe and still carry this broad concept of present-thy ideas re that perhaps “prevention” does cover a little broader field garding the care of our people. Does that answer - - than either “protection” or “promotion.” The objection, I think, is a good one, but alter considerable discussion we ASHFORD: I think not. My point was that under the thought perhaps it made it a little clearer with only the legislative - - the grant of legislative powers in the Organic addition of three words. Any other objections to that one? Act, all these various activities have been already cared for in a greater or less degree by the legislature, and that AKAU: I am wondering if we couldn’t start off with a they do not need specific mention. That in itself might be statement about the legislature since somehow, this has to a freezing operation. be mandated. In other words, “The legislature shall pro vide by law for the maintenance and efficiency of a State LARSEN: Well, we happen to disagree here. I feel 1± Board of Health.” While I don’t disagree with the statement isn’t freezing; and of course, since the Organic Act was that we have here, I’m wondering if it will be clarified a written, I think as we discuss some of these other sections, little bit more to say that the legislature shall provide for some of these concepts have developed even since our own a State Board of Health. Organic Act was put into use. I think it’s more, as I read 543 544 HEALTH AND WELFARE and interpret these, that we are trying to define the philo SMITH: Looking over these sections I cannot help but sophy of the care of the State for its members who are unable feel that we would be adding a lot of things to our Constitu to care for themselves. However, that’s one point of view. tion which, when you put it in your Constitution, right now I would be very happy to hear any others. might be perfectly O.K., but in the future they might be subject to some change. And always believing - - having FUKUSHIMA: As I read this section here and the follow faith in the people, I subscribe to a general provision in ing section, it is a mandate upon the legislature. I’d like to the Constitution giving the legislature full power to act ask the chairman of the Public Health Committee - - Public for the government, the good order of the State, the health, Welfare Committee, how does the committee propose to en safety and general welfare of its inhabitants, leaving the force the mandate? rest up to legislature. LARSEN: We feel it’s not a mandate for detail; it’s a NIELSEN: I’d like to know if the first sentence there, mandate for the philosophy of care such as already, it’s “Legislation for the protection and promotion of the public true, has been included through our Organic Act and health,” if any discussion was had regarding socialized through our various actions, but getting into our new Consti medicine being covered by that part of it. tution that same concept. As far as how to put it into oper ation, it seems to me we leave it wide-open for future legis LARSEN: There was considerable discussion. Of course, lation, even to the question of the other delegates here, I want to emphasize the fact that these are not conclusions. These are - - Just what we are getting is what we wanted. even to mentioning that a State Board of Health shall be appointed. We even leave that to the discretion and judgment We wanted to see how the other delegates felt on these va rious problems. As far as socialized medicine is concerned, of the legislature. As I see this, this is our concept. How the nearest approach was perhaps—I think the committee it’s to be done and the detail of its being done I think properly members will allow me to say this —was regarding subsidi should be left to legislation. zation of all hospitals. But some of the committee members FUKUSHIMA: Then isn’t it the delegate’s contention, the felt that was moving too far into specific fields and over delegate from Molokai, that the Organic Act provides what ruled me completely. The question I might ask the delegate you have provided here in five sections in two lines? Wouldn’t from Hawaii is—the thing I’d be interested in—what his that suffice? definition of socialized medicine is? LARSEN: I don’t agree, of course. I believe that we need NIELSEN: Well, I meant the often-termed “government to define it. With our present concept of health, I believe we taking over the medical care of all the people.” And that’s need to define it a little more than it’s defined in the Organic the way I would read that first part of that if the - - it would Act. And, of course, as you realize, this will take the place mean that the State is assuming the responsibility for public of the Organic Act. health, and necessary legislation will be enacted so that everyone will be taken care of on cough, colds, etc. MIZUHA: I would like to ask the chairman of the commit tee - - LARSEN: I would answer that as a - - I feel that the CHAIRMAN: WU1 you please use your mike? gentleman is trying to needle me here, but I think I can answer that. Our usual concept of public health I think is MIZUHA: Miss Ashford said that I was a subject of a so clear and, just as we’ve listened to many of these lawyers good cartoon holding the mike, so I would like to refrain certain terms [that] were used have been used so much from holding the mike. and have been clarified so many times that there won’t be I would like to ask the chairman of this committee for much danger of interpretation. I do have some clauses some information or explanation of the language here in the perhaps later on where you might well raise that question, first section as to whether the concept or philosophy ex but I think this one which is headed “Public Health” - - pressed in this section will include appropriations by our Public health has gotten to have a connotation of the things State - - proposed State legislature for the welfare and the that our Department of Public Health is now doing. It has taking care of unemployed people? to do with such things as protecting labor from, say, lead LARSEN: If by taking care of unemployed you mean by poisoning, protecting labor from abnormal dust or abnormal giving them jobs, I would say “no.” If the unemployed are injuries of all types, abnormal hazards. That’s all included sick and unable to care for themselves, they become de in our present concept of public health. That is an evolution, pendents who shall be cared for by the State. and I think from what I hear here, it might be well to leave some of these clauses simply to clarify some of these things MIZUHA: Then the phrase “protection and promotion that in our present day of thinking there has been consider of public health” would mean the taking care of all people able disturbance. I feel very distinctly that in our law who are unemployed and who have no source of income? courts or any other place that would not include our usual concept of socialized medicine, if by that we mean that type LARSEN: No, I think Section A is more general than of medicine that’s now going on in England. that. Section A doesn’t cover that at all. It covers the whole present organization of the Board of Health. If you will take SHIMAMURA: I asked what was the reason for the special Section E, I think we can answer your question for the use o the words “public health,” instead of the general word moment. “The legislature shall promote preventive “health. measures, treatment and care of dependents, delinquents, criminals and psychopathic personalities, when necessary, LARSEN: For much of the reason that I just gave, that in the interests of social welfare.” If your unemployed “public health” in this terminology has gotten to mean the became a problem of social welfare, I think legislation - - public health department, which has to do with sanitation, proper legislation could be passed to care for them. food control, protection of labor, preventive innoculations, tuberculosis, anti-tuberculosis work, etc. That is usually MIZUHA: Then it is my understanding that the legislature accepted as going under public health. Why we wanted to must make a determination under these sections as to when change it in our headline was that at the present time in the the unemployed will become dependents. philosophy of most states, we have gotten b~yond just public health, we have gotten beyond that thinking even since our LARSEN: I think so, and I think that’s as it should be. Organic Act was developed. Therefore, our first sentence MIZUHA: Thank you. does cover completely, I think, the present concepts of 545 MAY 3, 1950 • Afternoon Session public health, but doesn’t take the concepts in some of these before the Federal Congress. Now, my question is, does other sections on health and general welfare. this paragraph include or exclude the pending federal legis lation which has been labeled as socialized medicine by the SmMAMURA: The reason I raised the point is this. I Medical Association? think you are unduly restricting, under this particular clause and section, the province of the legislature. If you made it a LARSEN: I would say definitely it doesn’t exclude it nor general term and said, for example, “The legislation for the does it include it. I think the question brought from Hawaii protection and promotion of the health of the inhabitants of was that, could public health - - promotion of public health the state shall be provided by the State,” you would have a be interpreted as allowing a legislature the freedom to much more general term there, and I think the province of evolve along that path. If some lawyers interpret that to the legislature under this section - - if you’re going to have mean that, then it could. It’s wide enough so that in no way a special section away from the general clause on Health, would it inhibit, for instance, the Taft or the Wagner Act Safety and Morals, I think your purpose will be better served. or any one of these others that are up for legislation. The Taft Act is one right now. LARSEN: My answer to that would be, if we did that we’d come right down to the delegate from Hawaii’s angle, and A. TRASK: Well in the interest, therefore, of making it there it could be interpreted as meaning exactly what social certain that perhaps this will not exlude the pending federal ization in England is like. Now, if we got into that debate, legislation, without going across the Atlantic Ocean to Eng why I’m afraid I would be a little partisan. land, wouldn’t your committee consider this so-called amendment to read as follows: “Legislation for,” strike CASTRO: Dr. Larsen, I have a question about the lan out the words “the protection and promotion of,” so it would guage, the construction. The term, “legislation shall be read, “Legislation for the public health”; strike the next made by the State,” I doubt whether that is quite the correct clause “including preventive measures,” so that you read or the whole thought. I presume that you have examined on “shall be made”; and strike out the words “by the State,” the section on public health in the Model State Constitution, read on “in the interests of”; strike out “its inhabitants” and and if I may just read it to indicate the phraseology that I insert the words “the people.” So that you would have the would myself prefer: “Provision . . . shall be made by amendment to read as follows: “Legislation for the public the State and by such of its civil divisions and in such manner health shall be made in the interests of the people.” To me, and by such means as the legislature shall from time to time it would, therefore, have determinative for legislation the determine.” Now, I realize that that’s a little bit more two key words, namely, “interests of the people” shall verbose than the way you have it, but I think it would carry determine legislation for public health. It would seem to out the sense of the philosophy a little further; and that is me that would be a broader approach, a more permissive that the provisions shall be made by the State. While the elastic thing for the legislature to be gauged by rather than legislature shall have the right to pass laws, there will be be confronted with refinements as to the word “protection,” certain civil divisions of the government that from time to which seems somewhat inhibitory; the word “promotion,” time without legislation would have the right to act. Was also inhibitory; the word “inclusive” [sici to perhaps be a that discussed in committee? little elastic but still limited by the word “preventive.” LARSEN: Yes, the section you mentioned was discussed. LARSEN: May I answer him? I think this is bringing We discussed also this “from time to time.” We felt that is out exactly what we wanted, and I think it’s something we inferred here, that of course it would have to be “from time are going to have to face with every committee. It’s a ques to time” as laws are made. We felt it left it wider open to tion, how far are we going to define these? Are we going leave it out. “The provision shall be made,” I think there to limit it to the barest few words? I think the gentleman is was purely a question of styling and the question that - - correct that if we left “legislation for the public health in the Some of us felt this covered the thought just as well with interests of its inhabitants,” perhaps making the correction fewer words. Now there again, I think, that again would be that Mr. Castro made, [iti would cover this. I’ll certainly taken care of by the Committee on Style. I think that answers present it to the committee in its meeting tomorrow. you? KAWAHARA: May I ask the chairman a question here? In the first part of the provision for health and general wel HOLROYDE: I don’t go back to this subject with the idea fare, you have the statements, “health and general welfare.” of needling Dr. Larsen on it, because I have a great horror In Section A, you used the word “public health,” but in the of socialized medicine, as it is termed in England. I would provisions of the Model State Constitution as mentioned by like to ask if in your committee discussions whether you the delegate from the fifth district, “The protection and discussed at all any possible restrictions in the Constitu promotion of the health of the inhabitants of the state are tion as far as socialized medicine is concerned. I admit matters of public concern.” In this Model State Constitution, this is undoubtedly legislative but I’m rather interested the premise is first, that the health of the inhabitants is a in that program. matter of public concern. In this proposed section here, the LARSEN: I think I can answer that honestly. Much as wording “public health” is used first. I wonder if the in though I might interpret the comment, you must have put tention there in Section A to include the word “public health,” some restriction there. I’m sure my other hard-working and exclude the word “public health” in the heading of that committee members, even if I wanted to do it, they wouldn’t section, the intention was - - What was the intention? let me. LARSEN: The intention was that we were going beyond CHAIRMAN: If there is no other discussion, will the the usual concept of just public health. Public health, as I chairman move on to Section B? said again, covers the public health department. We feel A. TRASK: Dr. Larsen, I was just trying to sum up in the concept of State control has gone beyond that. Therefore, my own mind, having interpreted in your remarks to mean the heading we wanted was “Health and general welfare” be that this section on public health, “legislation for the pro cause some of these other sections are included in these tection and promotion of public health, including preventive other concepts. And I believe that that is understood as we measures, shall be made by the State in the interest of its go through. Personally, I believe that a number one neces inhabitants,” is to be interpreted in our present thinking, as sity of State control is this present concept of public health. you say, not to include but to exclude so-called socialized I think that should come first because that has been accepted medicine which is the type of legislation that is now pending for 150 years. 546 HEALTH AND WELFARE KAWAHARA: Does it mean that it will exclude other of the State to make adequate provision for the assistance provisions other than public health? and rehabilitation of mentally or physically handicapped LARSEN: You mean the State? What did you have in mind persons who are unable to provide the same.” there? KELLERMAN: Mr. Chairman - - Excuse me, did you KAWAHARA: Well, in reference to the provisions or the want to explain that first before I ask a question about it? statement in the Model State Constitution where it says, “The LARSEN: May I? Here the modern thinking, and re protection and promotion of the health of the inhabitants,” member again we are trying to indicate our trends. For in I think the word “public health” and the “health of the indivi stance today, if we actually applied everything that we know dual inhabitants,” I think you have there a distinction. to all our mentally ill, 90 per cent of them could again take LARSEN: May I say this. Now we are between two fires their place back into activity. The thought, therefore, is and again I think it’s bringing out certain things that we are that rehabilitation should come ahead of care. Prior to this, going to have to argue, and I think the sooner we get it clari most of our concepts and most of our state constitutions have fied the better perhaps. On one hand, I hear we should cut thought in terms of domiciliary care. I think we should take down these definitions. On the other hand, we want these one step ahead and think in terms of when we are providing. long, verbose things from the so-called Model. I say “so- Let’s try to get them back into normal activity; therefore, called” because remember, the Model Constitution has “assistance and rehabilitation.” never been a constitution. It’s an academic concept of a KELLERMAN: I’d like to ask, according to some recent certain group of men who have not been in public office and articles which I have read, if I’m not incorrect, it says that have not been running a state. I believe we should recognize about one out of 12 or 15 adults in the United States either is that this Model Constitution is not one we should cover be now a member of an institution because of mental illness cause certainly it is verbose. or should be. Does “mentally handicapped” mean all of those However, I think your meaning is the question of whether persons suffering from temporary psycho-neurosis which the total health of the people is protected, and I think as we make them for the time being incapable of carrying on a go down through the sections, if when we get to the last section, profession or living a normal life, or does it mean persons you still feel as you do, I would like to hear your comment who were born mentally deficient or who are actually insane? on it. I think if you take the broader definition of “mentally handi capped,” we are going to find a financial burden on the BRYAN: I’d like to ask Dr. Larsen if his committee felt community which may be impossible for us to meet. As I that this would leave the door open for the legislature to decide whether or not socialized medicine as such could be understand, a long range care and rehabilitation of those mentally handicapped can run to months and a great deal of provided. That’s the same question that you got in a different money, and a great many people would not be able to carry way. Did you intend here that the legislature could, if they that burden unaided, if they were given that complete hos so desired, pass a law? pitalization or care. LARSEN: I don’t feel there is anything here, as I said be LARSEN: May I answer? fore, that would inhibit them. I was sure my committee members wouldn’t allow it even if I had the intention. My KELLERMAN: Yes. feeling, of course, is very str9ng. When the legislature LARSEN: That’s correct, if we took our old concept, comes to the point where they feel we should have complete domiciliary care. If we take these people and just put them socialization of medicine and the community believes in it— on a farm and crowd them together in rooms as has been because I believe it’s going to come from the total public— done today in the territory, we will have a stupendous in why I believe we’re going to have it. I don’t think it’s any crease in burden. If we accept the new philosophy, “assis use arguing that from my standpoint because I know I’m not tance and rehabilitation,” we have the newer concept which going to be the one who will be able to say no. If the com we hope will prevent this over-burdening problem. How munity wants it, I’m going to be sure - - well, I’ll have to ever, I call to your attention the last few words, “who are agree with the community. That is a democracy. unable to provide the same.” And, I feel that any person BRYAN: Well, from that viewpoint, then, I would like who is mentally handicapped—and I would wish we can all to suggest a slight rewording or two. Striking the first two leave out the word insane, another word that’s obsolete; words, “Protection and promotion of the public health shall we shouldn’t use it, and it carries a certain amount of be provided for by the legislature.” stigma—where the mentally ill are just as ill as anybody else, they can be cured as anybody else if we give them LARSEN: Why did you want to define the “protection and promotion of public health”? proper treatment. And I feel even though they are only temporary—and remember, many of those who a hundred BRYAN: I didn’t define it. years ago or fifty years ago were considered hopeless and LARSEN: You mean you want to just leave those few kept hopeless, today are returned to their families, homes words? and activities in a relatively short time—if they are unable to provide the same, I feel it should be the duty of the State BRYAN: I want the legislature to define that because you to try to get these people back into normal activity. Now evidently have ceded to them that power already - - that would be my concept. LARSEN: Yes. HOLROYDE: Dr. Larsen, in your wording here, the word “adequate provision,” if the legislature determines BRYAN: - - in your discussion. I stated, “The protection that a certain care is “adequate,” having that word in the and promotion of the public health shall be provided for by Constitution, would it be possible for others to consider the legislature.” They can define it and provide for it. the legislative action “inadequate” and take action to have LARSEN: All right. Thank you. Any others? I think further - - this is just what we want. Shall we move on? LARSEN: I would consider that. I would certainly be lieve that the real power of the State is in the people. If the CHAIRMAN: That’s right. Will you continue? legislature doesn’t carry out their mandates I believe they LARSEN: May we go on then, if there are no other com should have the right to object. When we do, as we do, ments to the next question? “It shall be the responsibility crowd a thousand people into a room built for five hundred, MAY 3, 1950 • Afternoon Session 547 I believe that some of us should have a right to protest. I LARSEN: I don’t recall that exactly, but we can put it believe that we should ask our legislature to provide “ade down for discussion. You would like to see included in the quate provision.” That’s been one of the damages of the “public health,” “general welfare.” That’s why I thought past. It hasn’t been adequate. as long as it was covered in our wording at the top, “Health and general welfare,” it included that, but I’ll take it up ASHFORD: May I ask Dr. Larsen a question in regard with the members and discuss it. to his recent statement. Suppose someone who was mentally ill—and in my opinion the word insane means just that— A. TRASK: Learned Doctor, as a matter of fact, our only suppose someone who was mentally ill and violent were com institution today for the mentally and physically handicapped mitted to the Territorial Hospital, could not that commit is the Territorial Hospital in Kaneohe. ment be attacked under the language of this Constitutional LARSEN: Not the physically handicapped. We have the provision because the care there is not adequate? Shrine - - LARSEN: No, I don’t think so. They could put them in. A. TRASK: What I want is a little background as to that. We are going to have many times when we don’t have “ade There is Shrine, there is the Territorial Hospital and there quate provision,” but if we leave it to the legislature, give is Kula and Leahi Home? them the power to give us “adequate provision,” I think we LARSEN: Well, they come under our, I would say, our might save some of our poor sufferers. public health with - - They cover infectious diseases, that’s I would like to talk to the delegate from Molokai about the covered under public health. use of the word “insane.” I think that that would cover it. A. TRASK: In other words, there are other sections that are to follow this? KELLERMAN: Dr. Larsen, would it serve your same purpose then to have this provision a granting of power to LARSEN: No, I think legislation for the public health the legislature “to make adequate provision,” rather than in would cover that, “public health” designating any type of imposing by mandate upon the legislature the responsibility disease that, unless it’s cared for, might affect the total to make the provision? population. A. TRASK: Well, what I want - - I’m leading up to, of LARSEN: That’s a good thought, good thought, because course, is the Democratic Platform as described by the that covers this point just raised and prevents a certain other Waikiki wing of the Democratic Party. Here, I listened objection. the other evening to Mr. Vance, and he made a suggestion WIRTZ: Dr. Larsen, I was just going to raise a similar which I drafted in the platform of the party as follows: point. By making this a direct mandate, coupling that with “Institutional rehabilitation: to lift our public institutions the first section, the broadness of the first section, Section from a level of custody and detention and make them vital A, how can we possibly escape mandating the legislature into centers of treatment, training and rehabilitation.” Now, socialized medicine? Mr. Vance’s criticism of his present duties as the insti tutional welfare director is that they secure a person and LARSEN: That does come back. It shows it must be a just merely keep custodial charge over him. There is no present day time. Don’t you think that the power “to make” rehabilitation, no care, and I just wondered whether or not would cover that? Remember, what we are talking about now this section is in line with that thought. are institutions, institutional care, and I believe where you come back, the little sentence that I think prevents this LARSEN: Yes, Mr. Vance talked to us in committee, exploitive expense, which I consider the British system, I and one or two suggestions we have here, I think, came think it is covered, if at all, by the words “unable to provide directly from Mr. Vance. I think the “assistance and the same.” I believe in a free state wherever a person is rehabilitation” does cover that. I might say, I see we con able to care for himself, he should not demand care by stantly recur or go back to our Model Constitution which is public expense. verbose. We are trying to cover the same thoughts and ideas with fewer words, and I see a definite tendency here OKINO: Point of clarification. “Who are unable to pro of these two things that are in argument. vide the same.” Who is to decide who is able and who is not able to provide the same? SHIMAMURA: Mr. Chairman and Dr. Larsen. If you amend the words “public health” into the more general term LARSEN: General welfare will give you an excellent “health,” won’t you have the same provision in Section A? definition. They gave the committee a definition and I think Wouldn’t that make Section B unnecessary? that’s been worked out fairly well. We are giving them LARSEN: Section B, of course, has entirely to do with grants now. the rehabilitation of people who are sick. Section A has to WIRTZ: Dr. Larsen, apart from the other question, don’t do with the prevention of people so they won’t become sick. you think that this section - - or does your committee think The second one has to do with people who are handicapped and sick, and we are hoping eventually, lf our Section A this section would totally destroy any initiative on the part goes into proper fulfillment, that we will not have many of private institutions or organizations such as the Shriner’s Hospital from proceeding in their good work? people under B. SHIMAMURA: Dr. Larsen, I don’t read Section A to be LARSEN: No, I think, in other words, it would help them. merely preventive. You have there very general terminology, Just let’s take a little suggestion here that the Shrine Hos “legislation for the protection and promotion gf the health,” pital got to the point where they only were able to pay for and I say if you deleted the words “public health,” and in half. They were taking care of physically handicapped per serted the word “health” merely, a more general term, I sons who were “unable to provide the same.” This would think you’ll have adequate provision there. allow the legislature, as I see it, the opportunity to assist LARSEN: I think we’ll have adequate provision. The them to continue their good care. I don’t think it’s inhibitive. only thought is, perhaps we’ll have too much provision. SMITH: Was there any discussion with regard to Section Right away it opens it to this pet little phrase that I’ve heard A, having included there the wording “promote the health here now half a dozen times, “socialized medicine.” How and general welfare,” including “general welfare” in the ever, we’ll take it into consideration and I’ll discuss it with Section A? the committee. 548 HEALTH AND WELFARE PHILUPS: Dr. Larsen, I’m not particularly afraid of themselves, and to have us recognize that we do need a any of these things that you have in here or even in the little more than the statement, “general welfare, “ because manner which you have them, but what I am afraid of is the under general welfare they were allowed for the century to go fact that we have and we know that the biggest problem of on and suffer. However, I will take it up with my committee the whole - - of every one of the 48 states in their consti and ask them whether they would prefer three words or be tutions has been the verbosity that you refer to as being in able to shorten their 175. that State, I mean, in the Model State Constitution, on which I disagree with you, which is neither here nor there. But WIST: I’d like to comment with reference to the state my problem is this, that if we are going to include this 175 ment made by my colleague from the fourth. He used 645 words in the State Constitution, don’t you feel that the words to state that we were using 175. federal government, which has been able to adequately pro I’m a little disturbed about the talk here about a brief vide for the same and defend, under the General Welfare Constitution or a long Constitution. What difference does Clause, defend themselves even against other provisions it make whether our Constitution is so long or so brief? of the Constitution which restrict and hamper and complete After all, our Constitution is to provide a frame of reference ly take away the rights of the people, in the promulgation of so that our legislature can enact laws under which we can legislation which would conserve and promote public health. live. Now, if it is necessary in order that our legislature Now, I’ll make that a little more succinct because I would shall enact the kinds of laws under which we can live well to like to establish the fact that I’m dubious of the value of state that we are to have legislation with reference to public placing 175 extra words in here when we could say it in two health, with reference to general welfare, with reference words, “general welfare.” I would like very much to see to these other matters that are listed here, then why worry that in there, and we know we have confidence in the develop about the fact that it takes 175 words to do it? Why try to ment of government, we know how far state government has compress it into 30 words? That to me is not the significant advanced. We know that the legislators are very much thing at all. The significant thing is to get into our Consti aware and very sensitive to public health, that they have tution an adequate frame of reference for future legislation. provided very adequately in the past for us. There have PHILUPS: I’d like to answer this, Mr. Chairman. been recent reforms which have caused them to do it. We also know that we have in progress right now state constitu CHAIRMAN: I recognize Delegate Phillips. tional conventions which are reconvening for the purpose of PHILUPS: I’d like to answer this. I would say that I eliminating this superfluity, this verbosity, which you re may have spent an awful lot of words. I don’t believe there ferred to, out of their constitutions because it tends to were - - there might have been in there more than 600 words, hamper them. but I say that there are three words in the Constitution that I offer to you in evidence something that you said your- protect my right to say that and thank goodness for that. And sell in regard to this Section B. You said that in the next it only takes three words, “freedom of speech,” to permit ten years there may be a different way of promoting health, me to use as many words as I want. a different method, a different means. Now doesn’t that In any event, I would like to say this. In using all those itself prove that this is an ephemeral law which - - man is 600 words, I attempted to induce evidences that would prove constantly trying to solve and he does it best with the device the very premise on which he based his arguments. I would known as the legislative process. Wouldn’t it be better that say this, that there are at present many state reforms - - we leave it up to the legislature to take up these problems there are many state constitutions which are constantly going of public health and have them work them out as they have under reform simply because there was an individual among been doing anyway and which is absolutely necessary to let the group who thought that that particular provision could them do, because only they can set forth the standards that go in there with hundreds of words instead of having it con are in there? Wouldn’t it also be better - - and finally, fined down to two. wouldn’t it be better to have in there under the general wel fare clause that one thing, that “provide for the general wel LARSEN: May I answer that just a moment. I’d like to fare,” rather than all this 175 words? Wouldn’t it be better compliment the delegate from the fourth on the fact that it to let the State - — I mean let the future State of Hawaii have seems to me that what we are trying to do is not to find out an opportunity to change these institutions as the need arises? what other states have done. That always annoys me a little. We know that perhaps this problem as set forth in B may have We are a good cross-section of Hawaii. We want Hawaii to all manner of differences before the thing is over, I mean, do something. My answer is merely there are people who before ten years is over, as you referred to. haven’t been protected and we believe, in the philosophy of I’m trying to get down to this one final point which keeps today’s thinking, they should be protected and given consti eluding me, and that is that in the event you place 175 words tutional rights. in here and then the legislature chooses not to pay any atten tion to them, there’s nothing—unless we have an automatic MIZUHA: I move that we go on to the next section, C, clause in our Constitution—that would mean that they would and debate be limited to two minutes per person under the go ahead with this thing and carry it out in the manner that rules. you see fit. A. TRASK: I am seconding that motion made by Jackson LARSEN: May I answer? In the first place, I appreciate [Mizuhal from Kauai. I’d like to say with respect to the knowing that there are 175 words, thank you. splendid statement made by Dr. Larsen that we should re In answer to this, it’s so easy to start an argument on member also, that as brief as the Federal Constitution is, false premise; I think your premise was false, that they have that the development of the law and the understanding was been adequately cared for. The objection, and why so much largely a judicial review, judgment; that it wasn’t really has gotten in constitutions, is that whole groups of our the written word. Let us understand that the judiciary had people are not only suffering from inadequate care, but there a powerful shaping of this Constitution in the way it went, are no provisions that care for them. They are the nidus and John Marshall, who fought and was in the Revolutionary for much of our crime, our disease, many of our difficulties, Army, and these people had a great part in welding this juvenile delinquency. It’s the hope that this future State of language to mean it the way the country developed. So there Hawaii shall recognize the inadequacy that has actually been is no respect for words, and I would say, and join everybody flourishing under our past state constitutions and make in saying, that the delegate from the fourth district, Mr. corrections for this group of people who are unable to help Phillips, his conduct was not contumacious. MAY 3, 1950 • Afternoon Session 549 CHAIRMAN: Motion before the house and seconded by CHAIRMAN: All those in favor of that motion, signify Delegate Trask - - by raising your right hand. Contrary minded. Carried. CASTRO: Before the motion is put, is it my understand KAWAHARA: I rise to a point of order. In Cushing’s ing that the committee will reconsider the use of the word Manual here on page 182, Section 305, when we sit in the “responsibility,” Dr. Larsen? Committee of the Whole, under Section 305 I understand it’s unlimited debate and the person may rise any number LARSEN: The committee is reconsidering everything. of times to speak. Maybe my interpretation is not quite I’ve tried to emphasize the fact that nothing here is final, correct. that we opened this for exactly what we’re getting, the feel ing of a large number. This is just what we wanted. Now CHAIRMAN: Will the chairman proceed with his next we will reconvene, now we will reconsider all the matters section? that have been brought up. LARSEN: The second section, or rather the third section, “The State and its political subdivisions may, in CASTRO: But as to my question, have you noted the accordance with law, provide or assist in slum clearance point about the “responsibility of the State” to be reconsidered? and rehabilitation of substandard areas including housing LARSEN: Yes. for persons of low income.” May I just explain the thinking of the committee on this? CASTRO: Thank you. The source of much of our crime, juvenile delinquency and FUKUSHIMA: I’m not coming to the defense of Delegate disease, is in our slum areas. The reason for slum areas Phillips, but Dr. Larsen did suggest that Delegate Phillips are people of low income who are unable to provide better, proceeded on the wrong premise that the promotion of the tend to crowd in more and more into the poor areas where public health, etc. are adequately provided for. Now, if they can get shelter cheap. When we discussed this, it was they are not at the present time, what difference will it evident that today no private industry can actually clear out make, Doctor, whether we have all these provisions in if a slum area and build low cost income houses without assis you have nothing to enforce the mandate, which is exactly tance from the State. If we are going to help this particular what I brought forth when I spoke first. Now, if you don’t area of disease breeding, which is present in all our cities, have any mandates what’s the difference? the committee felt we have to assist that group of people who will continue to live in these disease-producing houses unless LARSEN: May I answer? the community helps them to build houses in which they can CHAIRMAN: Yes. live. That’s more or less the thinking. We put in the words “assist in or provide” with the thought that sometimes an LARSEN: Of course, I agree with the gentleman from the industry might be able to clear and build if the community fifth here. We really don’t need to do the job we are doing. perhaps would give them tax free for a certain length of time, We should have quit the first day and accepted the United or perhaps help them to provide, and we felt in all due re States Constitution. Let it go at that. Copy it down. But spect to private interest which we feel should not be inhibited, In the usage of time, in the various states of the United free enterprise, we left in the words “provide or assist. Any States, the constitutions have indicated the philosophy and questions? thinking of the people in that area. As I read these, and as we worked them out, I feel this is the line of thinking of FUKUSHIMA: Is that why the word “may” was used in most progressive states in the United States, that it wasn’t stead of “shall,” making it directory instead of mandatory? adequately provided. Why? Because there was no path of LARSEN: That’s right. philosophy along which the legislature could provide legis lation. It’s true they don’t have to do it, but I believe the SHIMAMURA: May I respectfully suggest that if we added Constitution very definitely indicates a pathway on which - - one small word in the second line there, after the word “pro along which we might march. And also, gives us, perhaps, vide,” the preposition “for,” it may be more accurate and a handle or a suggestion along which, if we are really more grammatically so. In other words, “in accordance interested and we find a group of people unprotected, where with law, provide for or assist in slum clearance.” we can ask for protection under the Constitution. LARSEN: Thank you, I think that’s a point well taken. PHILLIPS: I might say this, that in all deference to Any others? you, Dr. Larsen, that there are two things there that I CHAIRMAN: Will the chairman move to the next section, can’t help but bring out. On the one hand you said just D. previously that we do not need to look at other state consti LARSEN: Section D. “The natural beauty, parks and tutions in order to determine our course. Now I disagree objects and places of historic interest and the public sightli with that and I find - - ness and good order of all property adjoining public highways LARSEN: I agree with you. We should look at them but shall be conserved and protected by the State and its sub not follow them. divisions.” I grant you there is discussion in this paragraph. AKAU: I’m wondering if we might add at least one word MIZUHA: I rise to a point of order. There is a motion before subtracting some other words. We do have many on the floor. scenic points of interest here while they may not be exactly DELEGATE: Question. historical. I’m wondering if we might add the word “scenic.” CHAIRMAN: Ready for the question? The motion is that “The natural beauty, parks, objects and places of historic we move to the second - - the next section and the debate be and scenic interest.” That was one point. limited to two minutes. The second point I’d like to raise is, “and the public sightliness and good order of all property adjoining public MIZUHA: Per section. highways.” Is it absolutely necessary to put that in? I PHILLIPS: Mr. Chairman, I still have the floor. think there may be some confusion in the minds of some of us as to the word “sightliness” whether it means unsightly MIZUHA: The motion was debate be limited to two or whether it means the positive side of it. I wonder if you minutes per speaker per section. could explain that phrase and also the possibility of inserting PHILLIPS: I yield the floor, Mr. Chairman. “scenic.” Those two, please. 550 HEALTH AND WELFARE LARSEN: Number one, I would assume that “natural sent provision. If you will start with the words, “shall be beauty” includes scenic, and I think the one word would conserved and protected by the State and its subdivisions,” cover that. However, we’ll put it down for discussion. delete that part and insert in lieu thereof, “are matters of “Public sightliness and good order” was inserted alter public interest and as such are subject to reasonable regu meeting with a group representing the Architects Associa lation and control in the public interest.” tion, the Engineers Association, the Parks Board and the Outdoor Circle. They feel, and I think they feel rightly LARSEN: Very good. and I think they are to be complimented on the thought, that KELLERMAN: That doesn’t impose upon the State the we hope some day to produce the “Hawaii Beautiful.” Today obligation of paying the bill. we don’t do it. Public sightliness is something that does seem to be of public concern. In many of the cities, of course, HOLROYDE: Dr. Larsen, as a member of the Bill of it’s still operating. Rights Committee, which you and I are, aren’t we invading personal rights of some individuals when we can restrict BRYAN: Dr. Larsen, I noticed that you asked the opinions what they do in their own yard, what they grow? of many people except the property owners of “property ad joining public highways.” LARSEN: If it abuts on the public highway, I wonder if we shouldn’t. We tax all individuals to make a sidewalk in LARSEN: May I tell you, they were all heavy property front of their houses; we tax all individuals to pay for our owners. school taxes, for our garbage and our other disposals. Why BRYAN: Well, I just think that this provision might be shouldn’t we possibly begin thinking in terms of at what slightly out of order. In other words, the State is to protect point should the individual be helped to think for the total the sightliness of all property on public highways, private or good. otherwise? HOLROYDE: Idealogically I agree with you, but I’m LARSEN: Private or otherwise. wondering whether we’re constitutionally correct or not. BRYAN: I disagree with that. LARSEN: Well, you word it and we’ll consider it. LARSEN: 0. K. PHILLIPS: Dr. Larsen, I would like to ask one more BRYAN: Thank you. thing. Could you define the “public highway” for me. I mean, I have gotten into accidents myself and any little LARSEN: In this country we have the right to disagree parking area or even any little road that any person besides in any way we want. the owner travels on is considered a public highway, isn’t it? NIELSEN: I’d like to ask Dr. Larsen a question. Would LARSEN: That’s right, but I would expect the legislature this mean that the State would take care of the clean-up and my good friends, the lawyers, to interpret the meaning of vacant lots and various things along the highway at the of that. expense of all of the people? SHIMAMURA: May I ask Dr. Larsen what distinction was LARSEN: It might be - - No, it might be as is done in made between public sightliness and private sightliness? some states. If you are living in a very nice section and you LARSEN: Private sightliness, I think, is well indicated, own a lot there and it looks like the back end of somebody’s bringing up Holroyde’s objection, that certainly we don’t trash heap, the State can notify you that you shall take care want the State to go in and interfere with how you keep your of it; if not, then they send you the bill. back yard if it doesn’t bother anybody else. The public NIELSEN: But it says in here that “all property adjoin sightliness is that which affects the total public. ing public highways shall be conserved and protected by the State.” CHAIRMAN: If there’s no other discussion, we’ll move on to the final section. LARSEN: That’s a little diffuse. We’ll consider that. I see what you mean. PHILUPS: I have one question. I’m dubious as to whether this should actually go into the health provision in ASHFORD: Dr. Larsen, during the Victorian era, we had our provision - - I mean in our Constitution. a type of construction that is no longer regarded as the last word in beauty. I was very interested to hear you say that LARSEN: May I answer him? the architects advised on this. Suppose you had an Hawaiian PHILUPS: May I just finish it? I’ll make it very short. type of architecture on all the houses abutting on the public I assure you I won’t give you 600 words. highway except some Victorian monstrosity, does that mean I was wondering if you could make by a constitutional that the owner of that might be obliged to change his archi provision any of these things have a quality that would be tecture and do away with his house? indicative of the people. I mean, if you had a park, it LARSEN: That wasn’t intended. If you as a lawyer would would be a park and it would be as provided in the Consti interpret it that way, we’d have to consider it carefully. tution, but the quality of how that park is arranged, et cetera, et cetera, can you really provide for that, Dr. Larsen? SMITH: Dr. Larsen, I’d like to ask, in a democracy there are a lot of individuals and if each individual has a LARSEN: I don’t think we are arranging for the quality right to do as he sees fit, if he has his own idea as to here. Why this belongs in the Health System, I think we architecture or what he’d like to grow in his yard, would this accept health today as emotional health as well as physical prevent him from doing as he pleases? health. I think natural beauty, parks and the public sightli ness do affect health. I think people living in a community LARSEN: Well, again, we - - I would not interpret it in that looks like a trash heap are affected, both emotionally that way. I think the whole philosophy behind this is how and physically. I believe that these parks also include can we develop a more beautiful city or a more beautiful playgrounds. I would assume it also includes all the other state than we have; and I would remind you that in a areas for recreation, even the hunting grounds, if they are democracy individual rights are frequently submerged in put aside. the right of the greater number. KAWAHARA: In regards to the section over here, the KELLERMAN: Dr. Larsen, might I suggest that your last two lines, in the last two lines, you use the words committee consider the following wording in lieu of the pre “conserved and protected.” And in the other provisions, in MAY 3, 1950 • Afternoon Session 551 the first provision, A of the Health and General Welfare MIZUHA: I don’t have any particular place to go. If section, there is the word “promotion.” I wonder if by there is further debate on this subject, I would then like to using just the words “conserved and protected,” you would ask the Chair to declare a short recess. The clerks are kind limit the creation of new parks, new beach areas, and the of tired over here. setting up of historic sites that people might discover in time to come. J. TRASK: There has been no second, so may I ignore the remark of the - - LARSEN: I think that’s a good comment. I was inclined to lean toward the wording of the delegate from the fourth, MIZUHA: There is a second to my motion. “are matters of public interest and are subject to reasonable LARSEN: Let me remind you, we’re almost at the end control.” I think that perhaps would cover better and per here. We are on the last section. haps we can reword that. MIZUHA: I will withdraw my motion inasmuch as to CHAIRMAN: Will you move on to the last section. give Dr. Larsen his last one more chance. LARSEN: “The legislature shall promote preventive NIELSEN: I would appreciate Dr. Larsen indicating measures, treatment and care, of dependents, delinquents, what “preventive measures,” just what that would mean or criminals and psychopathic personalities, when necessary, could be construed in this section. in the interests of social welfare.” You might want to ask the definitions there. I’d be happy to try to give them. LARSEN: In talking to the men that we had before our committee, like Mr. Vance and several of the others who AKAU: In connection with “psychopathic personalities, are thinking in terms of today’s thinking, most of our when necessary, in the interests of social welfare,” have we criminals, for instance, delinquents and so on, should be left out dependents, physically handicapped? I’m speaking considered as sick people. They are produced by their en of sight conservation and that group. If we use the word vironment. They are curable. In the past thinking, it’s “dependents, physically handicapped,” wouldn’t that take been the question of putting them away. In this newer care of those people? thinking, we are trying to promote every way possible of keeping these suffering individuals from becoming handicapped LARSEN: In Clause B, we use “mentally and physically and returning them as well people to the community. handicapped” and that would take care of that. May I call to your attention the last one, “psychopathic CASTRO: Dr. Larsen, I have the same quarrel with personalities,” suggested by Mr. Vance. We have a group Section E as I do with B and D. There is a little bit too of people who today are not under any care; they cannot be much responsibility and mandate placed upon the State to declared mentally ill, but they are personalities who are the point where someone who might have at a later date not responsible under certain circumstances for their a quarrel with the manner in which the reasonable policing behavior. Many of our sex crimes, many of our murders, was being carried out, might point to the Constitution and are this type. Today, they cannot be taken care of in the indicate that the legislature must promote certain measures interests of social welfare. If they are definitely declared whether they be preventative or by way of treatment. as such, they - - society can be protected. That’s part of the thinking behind this. LARSEN: What is your suggestion? But I would like to call your attention, and I see the think CASTRO: Well, I really believe that the whole thing ing here, which I appreciate, is—and I hope I can have one could be encompassed under the general welfare provision, plea here—to think in terms of this newer concept, and it but the suggestion is to delete the words “shall promote,” is new, but it’s rising, it’s growing rapidly, that in all the and to possibly provide something that would allow the leg terms of general welfare, the usual connotation of our various islature - - laws of our various legislatures have not been along this line of prevention, treatment and then care. That whole section LARSEN: “May provide”? of our community, which has been actually a burden on the CASTRO: “May provide”? community, could, under certain ways which we hope the legislature may promote, be rehabilitated. So the LARSEN: “May provide”? thinking here is to interpret general welfare into the newer CASTRO: “May provide,” like the - - perhaps using the concept of prevention, treatment and care of many conditions word “may” instead of “shall” would be acceptable. that actually interfere with the public good and the general health. J. TRASK: Dr. Larsen, the words “preventive measures,” does that include birth control? Would it? BRYAN: I’d like to make a short statement for considera LARSEN: It might, but I don’t think so. I don’t consider tion by Dr. Larsen. I notice that he has included criminals, that preventive measures. psychopathic personalities, people who are mentally ill, in the category of - - very similar to those with which he speaks J. TRASK: But it could mean, couldn’t it? of people who are physically ill, and maybe by providing for LARSEN: It could, perhaps, if the community rises to them as he has here, he is getting socialized medicine the point where they feel that is a preventive measure. At through the back door. the present time we have laws in some 26 states along that LARSEN: Of course, I realize I am thinking of them in line where the legislature interpreted it, where they may. terms of illness. In most of those states it has not been carried out. I believe If that’s all, I want to express my appreciation, and I’m again we come back to interpretation and the will of the sure my committee does, for the excellent discussion and people. the breadth of thinking that our group gave us, and I think MIZUHA: I move that the committee rise, recommend it’s clarified the air considerably, and I think it was an ex that the tentative proposals be referred back to the Commit periment well worthwhile to see how we think. I must say, tee on the Public Health and Welfare for further study. if we are going to spend this long on each little section, we’ll have to speed up our thinking, and I hope we can, perhaps CHAIRMAN: Is there a second to that motion? with the next discussion, each one of us try to go over the J. TRASK: Has the delegate from Kauai some place to clauses to be discussed and make little notes so we go down through perhaps, with a little more speed. 552 HEALTH AND WELFARE NIELSEN: As a member of the Kaneohe Democratic field for a good many years, I tried as far as possible to Party, I want to thank Dr. Larsen. start from scratch, and I feel my committee members A. TRASK: I join in that great expression. We’re cer started from scratch. We tried to build up what is consti tainly very happy to have the Doctor, altogether. tutional, not what is it that a doctor might want into a document. We, of course, at all times had the help of the LARSEN: May I hope this augurs the great day when the Reference Bureau. Waikiki and the Kalihi will unite in happiness again. Only yesterday I heard from a number of these experts CHAIRMAN: If that is all, will someone move that the and I feel it’s only right that you should have the benefit Committee of the Whole report back to the Convention? of these on these propositions that were sent to them. Wilbar wrote of the Board of Health, and that has to do BRYAN: Iso move. with Section A, “I believe what has been written is excellent. CHAIRMAN: Any second to that motion? I think it adequately covers the subject and any more detail would be getting into the field of legislation.” The next one DELEGATE: I second the motion. was from the Department of Public Welfare, Mr. Fox. He CHAIRMAN: Seconded. All those in favor of that motion felt that his section as far as possible—and we agree with signify by raising your right hand. Contrary minded. him perfectly—as much as possible make them concise and Carried. put in, if the meaning is clear, as few words as possible. He writes, It is a rare privilege to help formulate a statement Chairman: EDWARD B. HOLROYDE expressing the responsibilities the people through their government should assume in advancing the health and well-being of all. I should be disappointed if this documeni MAY 24, 1950 • Morning Session fails to convey the great democratic concepts of human welfare which stand as achievements of government in CHAIRMAN: Committee may be at ease. the twentieth century. The statement which your commit The problem before this committee this morning is tee has adopted permits Hawaii, when it becomes a state, consideration of Committee Proposal No. 1 relating to to carry on the health and welfare activities it is now health and general welfare. I would like to suggest as a engaged in in the territory. procedure that we consider each section individually. How The Hawaii Housing Authority took our section on slum ever, in voting the approval in substance of each section, clearance and felt we didn’t say enough. They felt it should we do not preclude a later motion to combine in any way the be clarified. We have a communication from Mr. Guild and sections. If that meets with the approval of the committee, I would like to show you, and then I ask for your indulgence I would suggest that we proceed in that manner. The first if that particular section doesn’t combine—I think it does— section, section on public health. I recognize Dr. Larsen. what he suggests. He suggests that we make it Into three LARSEN: Fellow delegates, If you would bear with me, I sections. This is Section D on slum clearance. One, “To feel we should explain what we are. I’d like to have you all provide for public housing and housing undertakings by such feel, whatever prejudices or whatever feelings there might means and on such terms and conditions as the legislature be, to leave them out, that I’m not speaking as a doctor, I’m may prescribe.” And Section 2 of that particular section, speaking as a representative of 11 individuals who worked “To provide for the clearance, replanning, reconstruction, very hard. We’ve had in with us a great many different development, redevelopment and rehabilitation of blighted, authorities, and I feel that as I speak, it is with the idea substandard or insanitary areas in such manner and by such that I’m speaking for these 11, who have worked hard to try means and upon such terms and conditions as the legislature to do the thing that we are all interested in, to make a clear may prescribe.” And 3, “To provide recreational and other concise document that speaks well for Hawaii. I’ve often facilities incidental and pertinent to both of the above.” been told by my friends that when I talk to anybody, I sound Then he goes on to say if we adopt only one paragraph on as though I am trying to bludgeon them into agreeing. I want that particular section, then he suggests —and this I would you to all realize if it sounds that way, there’s no meaning like to read simply to get your thinking on a great deal of behind it, because what I feel I want you to do is lend me your this, and when we come to sections, I would like to ask your minds so that together the 63 of us can write this particular indulgence again, because we felt we wanted to save you as little section into something of which we can be proud. much time as possible. So in the course of the last four We first considered this question, and we have much days, we have talked to a good many and we have had a precedent on anyone of these, should it be a Constitution of good many suggestions; and my friends the lawyers—that five pages, of five paragraphs, of five sentences or five I frequently wonder as they talk about words, whether they words. Our five page one could well be illustrated by the are like the story of the old maid, they always see a burglar New York Constitution with its 72, 000 words. The five under the bed—but I’ve been convinced that a good many paragraphs could well be illustrated by the Model Constitu times I had to agree with them. I realize that the statements tion. I want to call your attention that ours - - that the some of them that we made, that they actually, when they Model has over one hundred per cent more words in des put It in their own legal language, it did clarify It and made cribing these functions than ours. The Federal might well it less possible to confuse the issue. However, and then be illustrated as the five word type. I’m wondering as I read this one whether It isn’t a great But what we were pondering was how can we make a deal of legislative language which we tried to avoid, when clear concise proposition that covers the fields that we they make this recommendation for D. “The State and its should express. We started off with ten fields, you might political subdivisions may provide for, engage in and assist say ten paragraphs. We kept working these down, and as in any manner public housing and housing undertakings, slum the experts came from these various fields, we considered clearance, development, redevelopment or rehabilitation of and weighed, is this statutory or is it constitutional, and we blighted, substandard or insanitary areas including recreatlo: came to the conclusion that we don’t want anything statu al and other facilities Incidental thereto.” tory here, we want it constitutional. We think our five I’m going to leave that to my friends the lawyers when we sentences are constitutional. Realizing, as a doctor, per get that. But what I wanted to bring out was if it’s a ques haps I had a little edge on some because I’d been in this tion of language—although I will present, as we take each MAY 24, 1950 • Morning Session 553 section, some of the language suggestions made by some of from tuberculosis was 350. Infant mortality was way up, our lawyer friends—that if it’s only a question of language maternal and so on. you have, remember we have our Committee on Style, and Now I want to also call to your attention, in the last 25 Committee on Style will decide for instance, whether the years there has developed in Hawaii, due to a great many “State shall have the power,” “the State shall be empowered” different people working at it, something that should be a and expressions of that type. It seems to me we can save beacon light and is a beacon light of health and welfare in a great deal of time if we accept the fact that perhaps our the Pacific area. We have become the pride of the Pacific. expression, which the 11 of us felt were as good as we could Now I thiak it’s a mistake when a State has accomplished come up with, isn’t what might go into the final. We still something as outstanding as has happened in the last 25 have our Committee on Style to correct that. years, in this total field of health and weifare, that we shouldn’t So, I also want - - I’ve heard from these various members. designate it, and that with this we feel we can designate it I’ve also heard from the architects and the engineers, the in these five fields. Outdoor Circle, the Parks Board, and the City Planning I might call to your attention for a moment that way back Commission, and the City Planning Commission sent one in in 1805, there was a certain Britisher here who wrote up, this morning which they recommend that we try. They also and he studied the Pacific fairly well, but he wrote and said recommend that we accept that longer article of Archie this, “The Hawaiians have a reputation throughout the whole Guild on slum clearance. In the field of the engineers, Pacific area for their amazing knowledge of herb lore.” To architects and so on, they are quite interested in making day, the Hawaiian Islands have an amazing standing in the something that is outstanding, and they would like to suggest field of health and welfare throughout, not only the whole that we at least keep this thought of sightliness and good Pacific area, but throughout the whole United States. order as part of the general health of the community. I I also want to tell you - - call to your attention, this is won’t read these other communications, but they are there. an indication of our advance in civilization. When we are Now I also want you to, just to illustrate that I had some knocking at the door in Washington and say, “Gentlemen, pet ideas—sure, I had some pet ideas, but the committee we are, and we have developed the right to become a State,” wouldn’t let me put them over—I just want to read you one there is nothing that those men will look at with more interest because it’s still a pet idea. Of course I’m not asking you and with more assurance that we have arrived than, “what to accept it, but I want you to realize how I was beaten down are you doing in the health work.” in committee. I want you to - - this is what I wanted, “The li we leave it with five sentences, let the State have the State shall, in such manner as the legislature may provide, responsibility to promote and advance health and welfare, subsidize all or part of the stand-by cost of standard needed we’re not telling those fellows anything. They look at that eleemosynary hospitals. Because of such subsidization, document and say, “Why these birds haven’t advanced in government may have a voice in, but not the control of the health any more than they did back in 1776,” and then condi governing board of these hospitals.” I felt there was a new tions were terrific. We want to indicate we have gone ahead. principle there that’s been more or less accepted, but I We want to be proud of our State, and when we knock at the assure you my committee dIdn’t even let me present it to door in Washington, we want to say, “This is an indication you. That’s why I shoved it in the back door here, but I’m that we really have advanced; we know what you are talking not asking for its acceptance. But I wanted to show you that about; we are giving our people the total health protection this is not my proposition. I want to assure you the eleven, up to the very maximum of the enlightment of today.” really everyone of them, took an active part. I’ve taken two trips around the world, looking at just this Then of course, the question is always should we enlarge, thing in the various countries, and I can assure you, I could and for the sake of clarity, we felt we should designate, and give you the level of civilization as soon as I went to the if you read the accompanying text with these articles you health offices of the doctor and said, “Give me the record of will realize that we tried to show why we decided on five your health; what are you doing on this, that, and the other sentences, for the sake of clarity. Well, the senator re thing,” and it always runs parallel. minds me we called them sections, but I want to remind So, I feel one other point why I’m anxious to have it in, you that when you read them, each section was reduced to and it’s not because I’m anxious—I’m like you are. We want one little sentence, with a subject, a predicate and a period. a Constitution that the people will accept. We want them to Those are the sections that I want to take up, the object I’m feel we have done a good job, but we want them to recognize trying to get over right now. that Hawaii does stand for something, and when we come So, for the sake of clarity then, I want to call to your to sell it to the people of Hawaii, I believe those five sen attention that this is five major fields of great attainment in tences that we are suggesting are going to be a better selling Hawaii. One, and each one of these five are separate dis point than almost anything else. tinct fields which have accomplished something in the protec Now, if we’re willing and if the lawyers and the others tion of health through the territory and are quite separate. are willing to stay by the Federa. Constitution and accept We have had called to attention that there is some overlapping six words to tell how everything shall be organized, that’s between 1 and 2. I accept that; there is a little overlapping one thing. But I’ve read these books on state constitutions in 1 and 2, the others are entirely separate. But why I felt and they tell me that doesni belong in a state constitution. it was still important to separate was, one is, it’s actually It should be an indication of our advance, it should be a prevention and the other is actually treatment. directional thing as to how we are traveling and on what road Now I just want to give you a little sketch because it’s we are traveling. And I believe we try to say it in the terribly important to keep in mind what’s happened. The clearest, the most concise and the shortest way in which other day, Delegate Hayes gave me a book from 1882. In we could say it. this book, I saw the analysis of Hawaii, the health of Hawaii Now just to show you, yesterday a doctor called me and in 1882, and I want to tell you it was something that was said, “Why do you write it so long? Why do you put so many terrific. The infant mortality was frightful. 155 people sentences?” died that year of smallpox. The maternal mortality was I said, “Okay, I’ll bite; what do you suggest?” frightful. And so on down through. Then I skipped up into “Well, there’s a Model Constitution, why don’t you copy 1900, and I call your attention to a book called “Hawaii, that.” Off-shore Territory” by Helen Pratt in which she describes “Well,” I said, “it just happens that the Model Constitu the conditions of health in Honolulu in 1900, and I want to tion, to express in less clear terms than we have expresse.d tell you they were something terrific. The death rate alone these five separate fields, they have taken more than 100 554 HEALTH AND WELFARE per cent more words to express it than we have in our five ANTHONY: The chairman took a half hour in making the sentences.” statement. I think it’s a wise thing that we have a full dis Gentlemen, we haven’t copied anything. We’ve tried to cussion like that, but I trust that other committees will have make it concise, clear, to the point and certainly something similar indulgence by the Convention. that Hawaii can be proud of. So, we feel, and we recognize there are 63 different ways in which you can say something. MIZUHA: I move that the Committee of the Whole - - I There are 63 different ideas on every question, and I know recommend to the Convention the passage of Section 1 of there are 63 objections to every question. I think the real Committee Proposal 1. $63 question is going to be, “How can we get through on DELEGATE: I second that motion. time and get a good Constitution.” That’s what I want you to be thinking of. Well, we are using 63, my dear colleagues, HEEN: I think we ought to have further debate upon this because we know there are 63 different ideas here, and I can proposal. I’d like to raise some questions here at the preseni assure you as I sat with the 11, there are 11 different ideas, time. and I’m sure there are just as many outside. PORTEUS: May I interrupt one moment for a matter of I want to also call to your attention that some of our convenience to the delegates? I think if you’ll turn, you will ancestors, and one of my good friend colleagues in the law find that you have a folder called “Committee Proposals.” gave me a most amazing book that gave me a great thrill to If you’ll turn to that folder rather than to the folder on read, that was the first constitution written by Massachusetts. committee reports, you will have the material before you. And a great deal of discussion came up, and I think this is There is a special file headed “Committee Proposals,” and going to hold right through. Shall we mandate the legislature, it’s the Number 1 proposal in that book. Thank you for shall we suggest to the legislature, shall we indicate to the yielding. legislature? Let me read you how the dear sweet things in HEEN: I take it that this article finally will be entitled Massachusetts in their first constitutional assembly suggest “General Welfare,” “Article on General Welfare,” and of ed it to the legislature about such an important thing as the course, included in that would be the matter of public edu liberty of the press. “The liberty of the press is essential cation. The first section there, the word “public health,” to the security of freedom in a state. It ought not, therefore, that is a matter of general welfare. I would like to point to be restrained in this commonwealth.” Did you ever hear this out. The section dealing with slum clearance, rehabi any more gentle language? litation and housing, “The State and its political subdivisions Now, we are trying not to mandate. We recognize that may provide for or assist in slum clearance and rehabilitatior in this whole thing, unless the people of the territory are of substandard areas including housing for persons of low with us, unless the people of the territory become one and income,” they wanted to leave the political subdivisions with all part of this government, nothing that we write will have - - out of handling the public health measure. any influence whatever. Remember, we had a Huey Long “The enumeration in this article of specified functions and a few other high-binders under the wonderful document shall not be construed as limitations upon the powers of the of the U.S. Constitution. So, we have to recognize, we State government for good order, health, safety and general believe and we will trust and we will have faith in our legis - welfare of the people.” I think if they had only that section, lature, and whether we put a word in, as one suggestion it would have been sufficient for all purposes. came in, that we should “vigorously” defend so and so, I I have an amendment to offer to this committee, to amend feel the wording isn’t the thing. this article reading as follows: Here we all are. I’m sure everyone of us are sacrificing Article ______ . Resolved that the following be agreed something for the sake of government. Why do we do it? upon as part of the State Constitution: Article ______ Because we believe in a strong state and we believe unless General Welfare. The legislature shall have full power the citizens take an active part, democracy dies, and we to provide for the good order of the State and for the don’t want democracy to die. I’m sure that everyone of health, safety and welfare of its people by all necessary you feel we want to maintain not only a democracy, we want and convenient means subject only to the limitations to maintain that type of democracy that has become recognized prescribed in this Constitution and in the Constitution in as the American form. the United States. So, we feel we are looking forward to a horizon here, and this horizon is something that we hope we’ll set it high. We CHAIRMAN: Delegate Heen, is that offered as an amend feel in the Health Committee that we have set a horizon. We ment to Section 1? hope you will accept it, because it is our best thinking, but we want your, naturally your kokua. HEEN: It is offered for the whole proposal. We have given you in our text the reasons for this. We CHAIRMAN: Well, Senator - - Delegate Heen, we have would like to carry on now, and take section by section, and a motion before the house and duly seconded that we act on I agree with the chairman, I think it’s a good idea if we Section 1 of this suggested committee proposal. could go through section by section as to content, not as to whether we should combine one or two or shorten a few words. MIZUHA: Mr. Chairman, inasmuch as I was the mover -. Then as we go through, I would like the privilege, alter the WIST: The speaker who has just spoken used these words, Secretary reads the item as we submitted it, I would then like “I take it that we will have a clause on general welfare which to read just the corrections, as we got it from many of our will include health and education.” I trust he realizes that he delegates, that seemed to clarify the intent. is speaking for himself and not for the entire delegation, be And may I in closing, read just one wonderful little cause I do not believe that we can, at this point, make any message from George Washington as he finished the Consti such assumptions. tutional Convention. He said, “It is too probable,” and listen, this is as if the Health Committee were talking to MIZUHA: [First part of speech not on tape~ . . . and that you, “It is too probable that no plan we propose will be adopt the committee recommend passage to the Convention as a ed, but if to please the people, and to please some of the whole that this whole article pass second reading. Then in comments of the delegates, we offer what we ourselves dis that event, the delegate of the fourth district can make his approve, how can we afterwards defend our work? Let us amendment as he has done previously. raise a standard to which the wise and honest can repair.” CHAIRMAN: Delegate Mizuha, the Chair suggested that — The event, gentlemen, is in the hands of the delegates. we consider each article individually and there was no ob MAY 24, 1950 • Morning Session 555 jection. So we shall consider - - we will continue in that these advances should be recorded in our Constitution, be manner. cause that is what a Constitution is for. That in all these MIZUHA: Then, Mr. Chairman, the amendment is out authorities on state constitutions, they recommend, and even of order. our local recommends, that we not just keep the Organic Act, but that the State Constitution should be a re-emphasis of CHAIRMAN: That’s correct. There’s no second to the basic principles plus the directional trend, plus the record amendment either. ing of advances we have made. LARSEN: In discussing this, I agree with Doctor - - Mr. Now, it’s true, these things have evolved without this in Mizuha, that we can do this article by article to evaluate con the Constitution, but so has everything else. We could leave tent and then the other can be discussed. I would like to out the Bill of Rights. As I said at one of our committee answer Delegate Heen, that the article is not entitled “General meetings, we really could go home; all we had to do was Welfare,” but the recommendation we are making is that it take the first day and pass the Federal ConstitutIon. That shall be “Health and General Welfare.” In other words, gives us a chance, but remember this, in these fields, when this whole health field has grown to a point where it is very we’re knocking at the door in Washington, and we have copied important. The first one, called “Public Health,” as I said the Federal Constitution, 1 think we just give them the right in my explanation, has only to do with the functions of the to believe what many of them do believe—we are just a bunch Board of Health, and therefore is something we have accom of natives with a few of these beachcombers who couldn’t plished. make good in America, and therefore came out here, and The Board of Health is, I might say, some objected to here we are, and we couldn’t even have enough originality, the word “preventive measures” —I want to assure you as the but we copied the Federal Constitution. explanation shows, there is no evil connotation there. For Therefore, I think this principle holds true, that we instance, if you innoculate people for small pox, you are should indicate that we really are advanced, and my feeling preventing a possible epidemic. If an epidemic breaks out, is, there is no field where anybody who knows—certainly then you may have to protect the rest of the citizens. “Pro any scientist, and most legislators —will get indication of mote “ does designate that we are advancing along these our advance quicker than in the field of health and general fields. I feel those three words, to explain what the present welfare, and we use the term advisedly. “Health and general Board of Health and which the president of the Board of welfare” connoting the physical, mental aijd happiness, health, Health felt did cover it without legislative content, is im emotional health, if you will, of the people of Hawaii, and portant. we think that these five sentences do that better than if we CHAIRMAN: Delegate Heen, as a matter of reference just use one. to your amendment before, I hope the Convention understands CROSSLEY: I’d like to ask the chairman of the Committee that there is nothing to keep an amendment such as this on Health and Public Welfare a question. He just stated that coming in, after we consider each individual article. it was his opinion, and apparently the opinion of the commit WHITE: Could I have the chairman of the committee ex tee, that those gains which have been made over the past plain to us the reason for the use of the word “responsible” half -century or quarter-century, that are recognized gains in the first section as against “conveying power” in all the should then be spelled out. I’d like to ask for a little other sections? clarity on that. Does he mean gains generally recognized in areas in which there are still no conflict, or areas in LARSEN: The question of wording of that type—I have which there may be still conflicts of thought? discussed it with a number of individuals—I think we should leave to Style Committee. We thought there was a slight LARSEN: In these five fields, we have advanced; we difference, and in some of Senator Heen’s comments, I feel are functioning; we are there. I think the principle we there is a very distinct difference. As we come to the sec are taiking about is, should our Constitution give an inch- tion, perhaps I can explain them. I realize, having lived in cation of our advance or should it merely repeat those words the field for more than 30 years, certain words mean a great of the beginning. Our committee feels that we should indicate deal to me that perhaps should be enlarged upon, and some the advance, that there is - - these are not controversial of my lawyer friends did say that we should enlarge on our points. The controversial point was the one I read aboot explanation. But the question, “The State shall be respon hospitals. My committee didn’t let me get away with any sible,” or “The State is hereby authorized” or, “The State controversial points. These five fields are already function shall have the power,” I would like to feel that they should ing in Hawaii. Now, we might use the one, but perhaps be, I think, straightened out perhaps into one style, if some legislature will come along and discontinue them. We necessary, by the Style Committee. After the Style Com believe it’s important to have in the Constitution our advance mittee has straightened that, as I understand it, we will and keep the advance. still have an opportunity to change it if we want. But I think CORBETT: It’s my belief that these advances have been that’s correct. won by the people of the territory over the past 50 years by ANTHONY: I’d like to ask the chairman of the Committee battles in court and in the legislature, and that if we don’t on Public Health a question, if I may. That is, does the reiterate and re-emphasize them at this time, we might committee consider that it is necessary to have articles such conceivably lose them at some future date. There are as are contained in this proposal to enable the legislature to people on the floor in this Convention who have taken part legislate in these fields? In other words, do they think it’s in those battles, and I feel quite sure that they want to essential that we have such an article? Or what is the pur insure to our people these social gains. We are dealing pose of it, if they do not think it’s necessary, as a deposit with people, human beings, who wish some assurance in of legislative power in the legislature. their document other than the bare bones of the three branches of the government. CHAIRMAN: Would the chairman of the committee like to answer that? CHAIRMAN: Delegate Tavares. LARSEN: Yes, Mr. Chairman. (Clapping) I realize I can’t use the clarity of langauge that is used TAVARES: Thank you. I didn’t know I had a claque by a lawyer, and therefore, apparently, I don’t make it clear. right in the Convention. I’m very happy. I hope they’ll - - I will try again. That, we believe, a State Constitution has a function; that function is to record certain advances, and CHAIRMAN: That was for the last speaker. 556 HEALTH AND WELFARE TAyARES: Pardon me because the applause was a little terms of the actual power of the State to act in those areas. late and I misunderstood. I believe, if you examine some of the literature in that field, It seems to me that the debate thus far boils down to this that in some states the question has arisen as to whether or one thing, which I believe for posterity and for the help of not the legislature could properly act in those areas without the courts in interpreting this Constitution, should be made a specific grant of power. Questions had come up in the crystal clear in the debates, and I hope and understand that courts with regard to the expenditures of funds. In those these debates are being recorded word for word. It is my two particular areas you need some specific safeguard in understanding that the gist of the arguments in favor of the the Constitution to permit the legislature to act in case of proposals - - proposal as worded in this manner is not that any question of constitutionality. the more inclusive and general language of our Organic Act In the other three areas, the public health, the social which does nothing practically but grant to the legislature security and the question of general welfare, which really power over all rightful subject of legislation, it’s not the gets down to the problem of the treatment of mentally and contention that that wouldn’t cover these things, but that they physically handicapped persons, in those particular areas, prefer to say it in this manner. In other words, I would want it was felt that sufficient progress had been made. The it very clearly understood that when in another section, as we areas have been pretty clearly and well-defined as a matter probably will, or in another article we grant to the legisla of receiving public support for the final adoption of the ture power over all rightful subjects of legislation, or words Constitution, and in terms of specifying these things direct to that effect, it will not be considered that those words ly that that be included in the total section. would not have carried anyway this interpretation and thereby I believe we can establish without much difficulty that by implication have these specific provisions limit the mean some states have gone to extreme lengths with regard to ing of the general power. spelling out these powers. We have felt they ought to be It’s my understanding that we are practically doing this specific, they ought to be simple, but they ought to indicate out of an abundance of caution, perhaps, or out of merely what the interests of the community are with regard to those a preference to restate in more specific terms some of the fields. I believe that for those reasons, we ought to adopt things included in the general grant of legislative power over the six sections proposed there. I believe we ought to contin all rightful subjects of legislation. That is one thing, it ue with our specific materials on each of the sections. seems to me, we must make clear as we go along. If we I might point out, for those who are arguing generally are going to be specific about some things that today we about the necessity for a specific one sentence grant of are doing already under a general grant of legislative power, power, that those particular areas can apply to any section let’s be very sure that we are not thereby by implication of this Constitution. I have in mind particularly the Federal limiting the meaning of the general grant of legislative Constitution with regard to the judiciary. It seems to me power. And if I vote for this, it will be with that under that all we have to say with regard to that problem, if we standing, and I believe, unless the members here contra adopt this general proposal, is that the legislature shall have dict me, that they will be doing that too. In other words, the power, after you establish your supreme court, to set we do not propose to limit a general grant of legislative up such inferior courts and set out their jurisdiction. I am power by all these specific enumerations of specific powers. sure that when that committee reports in to us properly that There are some areas where there i&doubt. For Instance, we will have specific language, perhaps on the number of in the slum clearance and public housing field, doubt has actual supreme court judges, in the Constitution, perhaps been expressed in our legislature as to whether under our on the specific grants of power and jurisdiction, perhaps on Organic Act in its general terms, we had all of the powers the question of tenure, perhaps on the question of retirement. needed, and for that reason, we got through Congress a We could just as well leave all those matters for the legis number of times, special acts practically ratifying what lature. It seems to me our Constitution ought to indicate our legislature had done. Those situations would justify, where we are, or to indicate the things that we believe in, perhaps, our being more specific in any event, whereas to and the things that are fairly fundamental both as to our form many of these other areas, my understanding is that if we of government and as to the accomplishments that we have adopt this, we are not doing it because the general legisla. already made. tive grant of powers is not sufficient, but because we want MAU: Before I discuss this proposal I’d like to ask two what the chairman of the committee says, directional em questions of previous speakers so as to clarify the matters phasis or the other types of emphasis which he has mentioned. discussed. The delegate from the fourth district who raised ROBERTS: Our section E or F, the last section in the some question as to whether the specific enumeration of committee proposal, states very specifically that “The enu powers in this proposal might act as a limitation upon the meration in this article of specified functions shall not be general legislative powers of the State, after having the construed as a limitation upon the powers of the State gov other delegate from the fourth district speak on the last ernment for the good order, health, safety and general section in this proposal, is he satisfied that that limitation weifare of the people.” I think that the point presented is does not exist? fairly important. CHAIRMAN: Delegate Tavares, would you like to answer I’d like to state that when I joined the Committee on Health that? and Welfare, I took the general position that we have one broad clause in the Constitution. The language was similar TAVARES: The answer is yes, but I wanted the record to the language presented by Senator Heen. After sitting to reinforce that very strongly. through with that committee for 16 meetings, after hearing MAU: I would agree with the delegate of the fourth dis the individuals who came in to testify before us on the trict; that would be my stand also. specific functions and problems of their particular areas, I would like to ask the chairman of the Health Committee I for one finally accepted the proposal that there be five with respect to his suggestion which did not get into this specific sections outlining fairly broad fields in the public proposal concerning subsidizing hospitals, now, is there any health and welfare areas, and then put a general proviso at record in the minutes or in the committee report which could the end that this does not limit the State in its general powers be used in interpreting this proposal, this proposed consti to perform its functions. tutional provision, which would limit the State from sub I believe that with regard to two of those sections, the sidizing hospitals? section on slum clearance and the section on public sightli ness, there was a very distinct and definite problem in MIZUHA: I rise to a point of order. MAY 24, 1950 • Morning Session 557 CHAIRMAN: State your point of order. pretation of several of the sections in this Proposal No. 1, these provisions being broad, reading these provisions MIZUHA: This movant for the recommendation of the alone, do not indicate any such prohibition against the State adoption by the Convention of the Whole of Section 1, asked or the future legislatures. the question as to whether we were speaking on Section 1 or on the whole articie. If we want to speak on the whole arti WHITE: May I state for the benefit of the delegate from cle, I’ll be willing to move that we are - - this Committee the fifth district that that subject is now included in the of the Whole recommend to the Convention the adoption of the proposal of the Committee on Finance and Taxation, so whole article, and then we can go into the whole shebang. that the delegates will have the opportunity to pass on that Now we are going from one section to the whole article and subject at that time. back and forth and we don’t know where we stand here. MAU: I would like at this time to amend the motion made, that this committee adopt Proposal No. 1. CHAIRMAN: Delegate Mizuha, I understand the meaning behind these questions or the reasons behind them. They CHAIRMAN: I believe that’s the motion before the house. want to get clarification so they can start through the differ Will the Clerk - - We’ll get clarification now, I think. ent sections. I think their questions relate to, not only MAU: No, Mr. Chairman, the motion is limited to Sec Section 1 maybe, but 1 or 2, but I think they are in order. tion 1 of the proposal, as I understand it. MIZUHA: But the question that was propounded by the CHAIRMAN: Do I understand you to be amending the previous speaker was on the subsidies to hospitals, as to motion to include the whole proposal? why it wasn’t included in the whole article here. I believe we are discussing the first section at the present time, and MAU: The whole proposal. in order to expedite business, if we consider the whole arti MIZUHA: I rise to a point of order. Again, that is what cle all at one time, then all these questions can properly I’ve been harping on for the past half an hour. If this Corn arise and we can go to bat and even consider the delegate of mittee of the Whole decides to consider the article as a the fourth district’s proposed amendment. whole, then we can expedite business; but you have limited us CHAIRMAN: I think the delegate is just seeking clarifi to just the consideration of the first section, and everybody cation. I think he’s in order. that has spoken heretofore has been speaking on the whole article and all its ramifications. BRYAN: Mr. Chairman. MAU: By that proposed amendment, I am asking the CHAIRMAN: Delegate Mau still has the floor. delegates to consider that; consider its action that they MAU: I wonder if the chairman of the committee on will consider only section by section and take the whole health could answer the question I raised. proposal together. LARSEN: I think it’s included in the minutes, without MIZUHA: The Chair had ruled that the Committee of the any question. It’s also noted in the minutes that it was Whole had decided that consideration shall be only on Section overwhelmingly defeated. 1. You cannot reconsider - - You must first reconsider the action of the committee before you can entertain the delegate MAU: Of course - from fifth district’s amendment. PHILLIPS: Mr. Chairman. HEEN: The Committee of the Whole did not go on record CHAIRMAN: Delegate Mau still has the floor. as to considering the proposal section by section. That was a suggestion made by the Chair. Now in order to clear the PORTEUS: May I ask Delegate Mau whether or not he decks, there is a motion pending to recommend the passage will not get a further clarification of that. To me, that is of this proposal in its present form as a whole. I move that not an answer that I am satisfied with. Members of the that motion be tabled. legislature confronted in the future with a question of whether or not this article on health and public welfare will authorize MIZUHA: I had agreed - - I had informed the committee or permit legislation whereby there will be either stand-by and the chairman that I was willing to restate my motion to costs or so much a day paid to hospitals that are part of include every - - the whole article - - our hospital system of this territory will not be able to know ASHFORD: Mr. Chairman. from that answer whether or not it is clearly intended by MIZUHA: - - and then if the committee wanted to con the chairman and that committee that there is such power, sider that, the whole article, they could do so. but that the failure to express it specifically is not a rejec tion of the power of the legislature. CHAIRMAN: To review the - - LARSEN: Mr. Chairman, I apologize for seeming to be ASHFORD: Mr. Chairman. facetious. The committee felt that this was such a new field MIZUHA: I withdraw my motion, Mr. Chairman. that it shouldn’t be in the Constitution. It was also expressed, and I think we had one of our legislative members in, who ASHFORD: I second the motion of the delegate from the said that they had already gone on record to do this. In other fourth district, Mr. Heen. words, they had accepted under the Constitution the idea that ROBERTS: Mr. Chairman, Mr. Chairman. Before that subsidization of hospitals could be done under our present motion to table - - - - that was a question raised, the question that I raised, I CHAIRMAN: May I ask clarification from Delegate Ash- wondered could they go that far, but they . . . [Not clear ford? on tape. I TAVARES: Mr. Chairman, I rise to a point of order. MAU: As I understand it, the record of the proceedings in that committee do not indicate that because the subsidizing CHAIRMAN: State your point of order. provision was not proposed in this Proposal No. 1 will create TAVARES: There was no second to the motion. There no prohibition against the State or its legislature from ap is nothing to table. propriating monies to subsidize hospitals. If that is correct, CHAIRMAN: That’s correct. I want that to be in the record, and if there is any objection to that, any of the delegates should now make those objections TAVARES: And may I say this. Let’s not be too techni known. I want the record to be clear on that. My inter- cal starting out. It seems to me that when we are £liscussing 558 HEALTH AND WELFARE Part 1 of this proposal and we mention, the other, doesn’t Now ft seems to me ft would be more appropriate if we’d it mean just this, later on when the others come up, we’ve get our legislative article in shape and then we could discover had our say, we’re not going to say It over again. So that after that how far we want a - - to make a declaration of we are really making progress. We illustrate our points, advances, and how far we want to express specific ftems in we bring out other things, we compare and so forth. But the legislative section of the Constftution. in the long run, I still think we are saving time even if we Now there is the danger, as a matter of constftutional jump the fence once in a while, and it seems to me, if we law, the minute you start to enumerate these things you do that, we are going to get ahead a little faster. have the questions raised whether or not by the very act I just want to make two explanations that I think need to of enumeration, are you not saying that in substance and be made. One is with reference to the explanation of the effect that these are the specific fields, and no further. chairman of the Committee on Taxation and Finance. It You express one and you exclude another. That’s the seems to me this really is the result - - this is the situation, danger, I think, in the enumeration. that the ability or the power to subsidize private hospftals As I said before at the outset, I don’t find any particular is implied in the general grant of legislative power, unless objection to any of these statements, but ft does seem to in our Committee on Taxation and Finance we place a limit me that we’ve sort of got the cart before the horse, where upon it, and that is what is now being considered in the we’re filling in without having the basic skeleton of the Committee on Taxation and Finance, whether we shall limit Constftution. the power to apply government funds or property to the aid BRYAN: I actually agree with what the previous speaker of other institutions. If we don’t put that in, then I think the has said as to the placement of this and the time of consid general grant of legislative power will include what we are eration, as far as the legislative section of the Constftu doing today probably, unless the Constitution of the United tion goes. I would like to heartily disagree wfth what he, States is later held to forbid ft. If we do place a limitation, and I think two or three others from the fifth district have that will answer the question. I wanted to make that clear. said, and that is that I don’t think the Constitution is to be That seems to me the situation. made a history book. I think the Constftution is to set forth The second point of explanation is this. In the Style permissive powers, restrictive powers and give authoriza Committee we have already tentatively decided that we are tions in these various fields; but I don’t think that ft’s the going to try to put subtitles to each section for convenience. place to put the history of the territory, or the history of Now putting a subtitle in is a very dangerous thing, because any philosophy, and I’d like to make my stand very clear it’s usually one word or two words or a few words, and k’s on that particular matter. I think, procedure-wise here, impossible to compress all of the meaning of a section into ft might clear up the debate a lfttle bft if we were to consid one short subtitle, unless you make the subtitle almost as er the substance of this report and ask that ft be referred long as the section. Therefore, it seems to me dangerous to the Legislative Commfttee. I won’t make a motion on if this committee, as I want to point out later, is including that, but I’ll throw that out in line with what Delegate An in its subtitle a word which is not included lower down with thony has said. the idea that it will explain that. I think it’s a little danger ous to do that and I’d like to have that borne in mind. I’m PHILUPS: I’d like to speak on this business of history jumping the fence again, with apologies to the delegate from and what the American Constitution meant to us, as was the fifth district, but those two explanations, it seems to me set forth by Dr. Larsen. Dr. Larsen warned us that we must be borne in mind. should be against being unoriginal—by following the Ameri MIZUHA: I wish to withdraw my motion. can Constitution. Therefore, I’d like to read here what another great legislator had to say about the American ANTHONY: I think that,the debate on this proposal is Constitution, and that is William Gladstone. going to set a very important precedence in this Convention. This Constftution will have three principal articles. As a The American Constftution is, so far as I can see, matter of constitutional law, whether as a matter of language, the most wonderful work ever struck off at a given time whether you are going to divide ft into more, plus a Bill of by the brain and purpose of man. It has had a century Rights, everything that is in this proposal properly is a of trial under the pressure of exigencies caused by an matter of a legislative grant of power. Now, I am not at expansion unparalleled in point of rapidity and range. And fts exemption from formal change, though not entire, this point opposed to any of the statements that are contained in here, but I’m just wondering whether or not we wouldn’t has entirely proved the sagacfty of the constructors and advance our work faster if we should have the report of the the stubborn strength of the fabric. Legislative Commfttee which will deposit a full grant of leg Now, therefore, I believe ft’s important for the record islative power. Adopt that, and then after we have that be that rather being unoriginal, we are actually being intelligent fore us, then after we have the executive and judicial enough to follow this document which has proven so well branches of government before us, we can then proceed to down through the ages. And I would like to say in support sort of fill in the interstices by these other proposals that of that that one of the commfttee members in his taik, Dr. relate principally to matters of legislation. Now under the Roberts, brought out the fact that it ought to be specific Organic Act, we’re got simple language. Section 5: “That and simple, and I don’t believe you can find anything more the legislative power of the Terrftory shall extend to all specific or more simple nor more advantageous than those rightful subjects of legislation not inconsistent with the - - the health provision that is contained in the Federal Con Constitution and laws of the Unfted States locally applicable.” stitution. DELEGATE: Section 55. KELLERMAN: I think we might all keep in mind with reference to Mr. Phillips, the gentleman from the fourth ANTHONY: Now there is no doubt about it that everything district’s statement and others, that in dealing with a state that’s stated in this article could be done as a matter of leg constftution as compared with the Federal Constftution, we islative grant, under the language - - the simple language of have two entirely different approaches. The Federal Consti the Organic Act. I have a great deal of sympathy wfth the tution is a grant of specified powers by otherwise sovereign chairman of the Health Commfttee that we should record our states, and the Federal Constftution limits the powers that advances, but what I want the Convention to fully appreciate can be expressed or exercised by the United States govern is that this is not adding anything, this is not adding anything ment to those powers specifically delegated. The Consti to a general grant of legislative power. tution of the Unfted States also contains certain restrictions MAY 24, 1950 • Morning Session 559 upon the powers of the state, which are binding upon all. having all these five äentences as the Chairman has stated But that is all the Federal Constitution is supposed to do. I think we haven’t had the presentation of the other four Now we are dealing with the Constitution of a sovereign sentences and I think that if we are going to discuss on the people limited only by those expressed grants of power or entirety of the proposal, then we should listen to the pre the limitations of power expressly given in the Federal. It sentation of the other members of that committee to give seems to me that we could very well say, “Since we are their views for the reasons of having the other five sentences. sovereign people, we do hereby grant or recognize that our But if not, and we are only going to discuss on the one sec legislature has all power within any reasonable subject of tion, then we should act upon that motion that is before the legislation that is not specifically prohibited by the Federal house. And if so, I refer to the previous question - - I Constitution,” and go home. We do have all the powers; we move to refer to the previous question. are not arguing about the full power in the legislature to deal CHAIRMAN: You move the previous question? with all rightful subjects of legislation not limited by the Federal Constitution. But it seems to me, we are here to TAVARES: Before that motion is seconded, may I just draw up more than an organization of government; we are say this. It is my understanding that when a matter is tnken here to express in our Constitution, the policies, the pur up in Committee of the Whole which includes several items poses and the hopes of our people within their State’s and we approve each item, that does not bind us even to sovereign power which no one denies them. For that reason, approve it on the final hearing. It is a tentative thing, and I do not believe in the concept of curtailing a state consti at the end, then we have to vote whether we adopt the whole tution to the three branches of government and general grants thing anyway, or recommend the adoption of the whole of power. matter. I hope the legislators will correct me if I am wrong. Now as to the matter of waiting until the legislative pro So that even if we tentatively approve each of these measures posal comes out to see what it grants, we know it will grant we are still reserving the right to have a reconsideration of full legislative powers. We don’t need for such a proposal everything as a whole when we get to the end. That might to appear on the floor to know that, and if we are going to expedite matters a little bit. wait for these proposals from the three branches of govern ment to appear on the floor before we discuss these other WIRTZ: Before we vote on any of these proposals either proposals, I don’t think we’ll leave here until September, individually or as a whole, I’d like to ask the chairman of because we know that some of these committees are not the Health Committee whether certain suggestions that were anywhere near ready to bring in their final proposals and made during informal discussion of this proposal have - - meanwhile we have to consider the reports of 14 different and amendments have been made or are going to be made? committees. So it’s my suggestion that we go ahead with Or put the question the other way, is the proposal in its final the proposal which has reached the floor first and discuss form now? it on the basis that I brought forth. LARSEN: No. We did have a meeting and I wonder if SILVA: As I get it, the only thing before this Committee you would turn to your pages, we can rapidly show the type of the Whole is Committee Proposal No. 1. of suggestions and perhaps it will save some discussion. CHAIRMAN: That’s right. For instance, Section A remains as is. Section B, our lawyer friends urgently asked us and we agreed to remove SILVA: And that we’re supposed to discuss this proposal the word “adequate” in the second line. We also suggested section by section, or all the whole matter as far as that’s to put a comma after “measures” and a comma after concerned. Now my way of thinking is, do we or do we not “rehabilitation” to mnke it clearer. We also suggested that in Committee of the Whole agree to the principle that “The instead of the word “care,” which seemed to be not quite State shall be responsible for the protection and promotion clear, we add the word “service.” Those are all suggestions of the public health including preventative measures for made by fellow delegates. In Section C, one of our lawyers all of its inhabitants.” That’s the only question before the suggested, and there seemed to be no disagreement, that committee now. Do we or do we not agree, and if we do, in the second to the last line, we cut out “in such manner we don’t have to vote on it. We can say we agreed to the and by such means” because he felt that was seif -understood. principle, then we go on to the next section and so forth. So that was eliminated. Could I just go through? I might Then if we care to refer this to some other committee, to say that this is merely suggestions that you can vote on the Committee on Legislative Powers, it can be referred to because we - - naturally we have to submit the committee that committee. But going all over the place and talking report as it was, but I’m giving you the thinking of a large about the rights of man and the Constitution and so forth is number of delegates and therefore as you vote you can mnke highly irregular and out of order at this time. those corrections if you want, but just to save discussion AHASHIRO: In line with the suggestion of the delegate I’m merely mentioning the changes that were suggested. from the second district, are we now discussing the pro In Section D, it remained as is except the Housing Author posal in its entirety? ity suggests this longer section which, if you come to it and feel it’s clear, why I would be glad to submit the two CHAIRMAN: The motion still before the house is relating of them. The committee report, as I say, stands as is. to Section 1, Public health. On the Section E of public sightliness, there are two ARASHIRO: And then, are we to act on that motion or suggestions made by delegates and not several of them. are we going to discuss it? If we are going to act on that In the reports that you have, we left out - - we left in the motion - - has that motion been acted upon? title “Public Sightliness and Good Order,” and left it out in the body. The suggestion is, unless we put it in, it shall CHAIRMAN: Motion has not been acted on. It’s been read something like this - and of course this is where - - seconded. I didn’t read it this way but I can see how it can be read that ARASHIRO: The reason why I ask this is that we have way — “The State shall have the power to conserve and develop Proposal No. 1 before us, and if we are to discuss on the public highways and beaches.” Well, that was not the intention entirety, I feel that the chairman of the Health Committee at all. The intention, of course, was to put in that last line, has only presented his view as to the actions and the work “parks, public highways and beaches in the interest of public that the Health Committee has tnken and they have carefully good order and sightliness.” Also one suggestion was made worked on this proposal. I think they have worked for over that “cultural interests” were so broad that “historic and a month now, and I think that there is all the reasons for cultural” should be “historic and cultural importance.” 560 HEALTH AND WELFARE If you make these notes, then when it comes to voting we copy the Federal Constitution, then we’d just as soon you can ask for such suggestions. And the final one in E have copied the entire thing and have gone home the very and F, if you would mark it down, this also was - - I forgot first thy. I don’t concur with that. The Federal Constitu who made this suggestion but I’m putting it down and it tion, as pointed out by Mrs. Kellerman, is entirely different, seemed to read a little more clearly as it was suggested. and for that reason, any section which has already stood the “The enumeration in this article in the fields specified shall test of time as far as interpretation and construction are not be construed as a limitation of possible future activities concerned certainly should have some bearing on this Consti in these areas.” tutional Convention here. I don’t believe that we should have in our Constitution merely a statement of principles. We’re SAKAKIHARA: Point of order. talking about directional trend and principle. Perhaps we CHAIRMAN: State your point of order. should have it in the Preamble and not in the framework of SAKAKIHARA: I don’t think the chairman of the commit our government. tee has answered the question propounded by the chairman LARSEN: I’d like to answer that because I feel we have of the Rules Committee. answered it. We considered very carefully these various - - WIRTZ: I’m concerned, not with all the suggestions that should it be six words, six sentences or six paragraphs? were offered, but the suggestions that were acceptable to the We have 200 constitutions, state constitutions to consider. Health Committee. Are those - - all those suggestions that We believe in good American practice that the state consti you have enumerated, Mr. Chairman, are suggestions tution does give directional trends, that the best authorities acceptable to the Health Committee? on state constitutions suggest we should note these advances. As far as this applause we heard about, I’d like to give - - LARSEN: No, they are not. We found out yesterthy that as we all know, six of us can look at one accident and will giv - - we questioned as many as possible, but we weren’t able six different interpretations. My idea of the applause was, to meet since some of these suggestions were made. That’s Mr. Fox is a very keen person and he gave a very good why I’m leaving them to those members who made them. If speech. The applause wasn’t to include six sentences, be they want to make amendments, they may do so. cause I’ve just read you here a series of letters that WLST: The question has been asked whether or not this I got from the experts who were at the meeting suggesting article on health and general welfare will be adding to the not only that we limit it to what we had, but they even want grant of legislative powers. Personally, I don’t think that more paragraphs to make sure that the legislature shall have that’s the purpose of this section. The purpose of this a full avenue of advance. article, the five sections in this article, is primarily to ROBERTS: I’d like to answer the statement made by the state principles, principles that we, the representative of speaker before the last on the question of the public hearing. the people, believe are sound. They are principles that are In addition to that public hearing, we had 16 meetings of the accepted. I think the issue really before this group this committee. At that public hearing, Mr. Fox spoke on the morning is not so much a question of the substantive matter general problem and there was tremendous applause, the of these various sections, because I think most of the dele only applause of the evening. I subsequently put the para gates would agree that all of these things are sound, whole graph, the one sentence which Mr. Fox had proposed, which some and good. I think the basic question is do we want to he was expounding, and as soon as I put that particular para streamline it, to telescope it into a single short paragraph graph the answer was “No,” and objections. It was his or do we want to state these principles in the order that the paragraph, the section that he had sold in his speech. Yet, committee has recommended. I, for one, believe that there when it came to actual specific language, that group would is certainly nothing wrong in stating them section by section. not support it. They would not support it because that If we are going to state the principles, why not, if we believe language and that speech was put concretely in terms of a in them? section of the Constitution. Each person there was looking FUKUSHIMA: I don’t believe any one of us here entertains to his own particular problems and his own particular needs. any doubt that the Committee on Health has done a lot of work, The second point raised as to whether or not the Federal put out a splendid piece of report, but I feel like some of the Constitution should be adequate for our needs, I find no delegates from the fourth district that we are not adding any section on initiative and referendum in that Constitution; thing to the Constitution or to the legislative grant of power I am sure that there are people going to be here who are by spelling out these five sections. Then we have a final going to argue for that. It seems to me that we’re writing section which says that the enumeration shall not be construed our State Constitution, and if we need to put things in there, as limitations. To me that doesn’t sound like a constitution then we write them in in terms of our own problems and our at all. It sounds more like some statutes, instead of a own concerns. constitution. There’s been some statements that this thing does not In that regard, I attended a hearing of the Health Com grant any power to the legislature. I suggested in my open mittee and the opinion was expressed by Mr. Fox that as ing speech this morning that there were two specific fields far as he was concerned, these articles on the health and where I believe that such grants have been given. One is welfare sections should be as concise as possible, and in in the public sightliness, on the question as to whether you fact stated that perhaps one sentence would do it. And at can or cannot pass legislation dealing with billboards. That’ that time he got a tremendous applause from the 100 people a legislative grant. That’s a grant of power to the legislatur that were gathered there. I was just wondering whether the The second one, it seems to me, is in the question of the committee took that into consideration. field of housing. That question is an open field. A number I also spoke to one of the other speakers, Mr. Tajima, of states have amended their constitutions— New York, for who appeared before the committee, and he had a proposal example, in 1938—specifically on that point that the legis in his hand which also had only one sentence for the entire lature be given that grant of power. So in those two areas thing. I believe the Health Committee relied somewhat you’ll have specific grants of power to the legislature. on the speakers, especially Mr. Fox and Mr. Tajima. In the other three, I indicated perhaps there is no need In that regard, I also have a~t amendment to offer which to spell that out. It doesn’t give them any power, but it I have here and I’ll offer it at the proper time. I’ll also have does indicate the areas in which the State is now functioning. the men here distribute the amendments which I have had It seems to me that this Constitution has to go to the people printed. This is in line with the provisions in the United for ratification. If there is sufficient support and concern States Constitution. It has been facetiously stated that if and need about those areas, we have a problem of recogniz MAY 24, 1950 • Morning Session 561 ing that need. It seems to me if no damage is done, it seems seconded by the other delegate from the fifth district, Mr. to me that we have a responsibility to consider those areas. Kauhane. The committee did and the committee suggested their inclu CHAIRMAN: That’s correct. sion. On the last question, on the question of enumeration of KING: It seems to me that’s the sensible approach. powers, we have stated before that enumeration of powers With reference to the last speaker, I’m not certain that in those five areas do not limit the State in such other areas we are granting additional powers, but we are defining or as they may deem necessary to go, provided they are not in subdividing the general grant. It seems to me that the violation of federal law. It seems to me that the legislative argument that’s already been made by the chairman of the grant is there; that was discussed at the opening part of committee and by the delegate.from the fourth district, our presentation this morning. Delegate Roberts, that in these fields a specific statement of principle and of policy is desired by the public interest BRYAN: Nearly everyone who spoke has intermingled the in those various areas, and that neither limits nor expands idea of the substance of this and the procedure and whether the general legislative powers. I feel that the committee or not it goes into the constitution. I think that to make any proposal is an excellent one and would like to see the motion progress we’ll have to divide that in some manner, and as prevail that is now pending on the floor of the Committee of I understand the motions that are pending—the motion to the the Whole that we go ahead and discuss the sections item by previous question was not seconded—the only motion that item as to substance, and then vote on the whole either by is pending is for the adoption of Section 1 - - approving it and requesting the Convention to approve it, CHAIRMAN: That’s right. or by voting it down, or by substituting one of these brief amendments that have been suggested, or by referring it BRYAN: I would like to amend that motion that the pro to the Legislative Committee. posal be considered in substance section by section and Now, the committees that are working on various pro when that is through we can discuss whether or not it goes visions of the legislature, their final work might be incor into the Constitution in that form, whether it goes in as a porated in major divisions of the Constitution, but if we are paragraph or whether it’s referred to the Legislative Com going to wait until the Legislative Powers and Functions mittee. I would like to state on that point that by consider Committee report or the Judiciary Committee report or the ing the substance only, we’ll clear up this presumption that’s Executive Powers and Functions report comes out, as another been made that everyone is in agreement with it. Several delegate has said, we’ll be here until September. These speakers have said everyone thinks the substance here is fine provisions that these specific jurisdiction - - committees but we don’t know what to do with it, and there is argument having a specific jurisdiction are going to make to us can on that point. Let’s clear up the point of substance first. be acted on, and can be coordinated in the Committee on I therefore repeat my motion that we consider the sub Style, and can be so revised as to language as to fit in the stance of this proposal section by section and when that is reports of the other committees as they come out. So I through we can consider further whether it’s going to be would certainly like to see the adoption of the motion made referred, adopted for the Constitution, modified or whatever by Delegate Bryan and seconded by Delegate Kauhane. else can be done with it. CHAIRMAN: To clear the record, the Chair would like ANTHONY: The delegate from the University has touched to state that he recognizes the withdrawal of the delegate’s on a point which I think is basic in this discussion. He stated motion, and the only motion before the house right now is the that this - - some of these sections constituted an affirmative one of Delegate Bryan. grant. Now I consider that that’s an erroneous statement. PHILLIPS: I move the previous question. I don’t think that a single one of these sections would add anything to the simple statement depositing the legislative KAUHANE: Second the motion. power to all rightful subjects of legislation. I don’t think CHAIRMAN: Who seconded the motion? that this Convention should be voting on this proposal under the mistaken view of the law that this is an affirmative grant KAUHANE: Second the motion. that goes beyond the existing power of the legislature. Now CHAIRMAN: Previous question is before the house. All certainly that expression, “rightful subjects of legislation” those in favor signify by saying “aye.” All opposed. The has been interpreted by the highest court of the land, and ayes have it. Would you restate the motion, Clerk, please, in Batzac against Puerto Rico where the very words were before the house? Mr. Bryan’s motion. interpreted, the Supreme Court said that that is a grant of power as broad as words can make it. Now let’s not be CLERK: “I would like to amend that motion that the misled by thinking that we’re adding anything to the grant, proposal be considered in substance section by section, and the general grant of legislative power. If we want a consti when that is through, we can discuss whether or not it goes tution that is going to declare certain objectives, certain into the Constitution in that form, or whether it is referred advances, then we’ll put this sort of thing in. But what I to the Legislative Committee.” want to make abundantly clear is that you are not adding HEEN: That motion is not in proper form at the present anything to a general grant of legislative power by enumerat time because the previous motion had been withdrawn; there ing these six sentences, however desirable they may be. fore the motion should be not one by way of amendment but KAUHANE: I’d like to second the motion made by Dele a straight motion. gate Bryan. CHAIRMAN: I think that’s correct. Renew the motion, please. CHAIRMAN: Ready for the question? BRYAN: I wish to declare that as an original motion. MIZUHA: I wish to withdraw my original motion. CHAIRMAN: Will the second accept that? All those in KING: I understood the delegate from Kauai said he favor please signify by raising their right hand. There is desired to withdraw his original motion that we consider enough. Motion is carried. Section 1 of this proposal. I believe the parliamentary situation would be then that the delegate from the fifth dis HEEN: Dealing with the section on public health, I would trict, Mr. Bryan’s motion would prevail as - - not as an like to ask the chairman of the Health Committee why it was amendment but as an original motion. That has now been that the committee decided to use the words “be responsible”? 562 HEALTH AND WELFARE “The State shall be responsible for the protection and pro of that section. Now, is it in the minds of the Committee motion of the public health.” In the very next section, by on Health and Public Welfare that the omission of the words way of explaining my statement, “The State shall have the “including preventive measures for all its inhabitants” is a power to make adequate provision.” Why didn’t they use change in substance? To me, it is not a change in substance, uniform language; in other words, the first section should and within the province of the Committee on Style. have read, “The State shall have the power to provide for the protection and promotion of the public health.” I’d like CHAIRMAN: Will the chairman answer that? to ask the chairman of the committee why there was that LARSEN: I gave the illustration. If, for instance, the difference in language. There must have been some pur people were vaccinated against smallpox, that’s preventive. pose for using different phraseology. If an epidemic suddenly strikes us, and then those people are isolated and put aside, that’s protection. When it comes LARSEN: I’m afraid unless we get Freud in here, we probably can’t quite explain why we made some changes. to the question of whether prevention could come under pro tection, it’s a question that in my own mind, I don’t believe I thought, as I look at it and as Senator Heen spoke of it - - I think we used “responsible” in the first section because it does. But, if the Style Committee would assure me that the State does have the responsibility. In the second one, there is no change in substance by leaving out that last “The State shall have power,” now we are dealing in fields sentence, I would agree. I don’t feel that’s an important where they might or might not function and therefore, they point. have the power to work in those fields. However, as I CHAIRMAN: If there’s no opposition, I would like to called attention before, if the Style Committee feels that declare a five minute recess. So moved. those reasons are not valid, they certainly shall change it. For instance, some feel that we shouldn’t use the words, (RECESS) “The State shall have power,” but “The State shall be em powered to,” and use it uniformly in all sections. I think CHAIRMAN: Committee will come to order. the committee has no objection to changes like that, but I think we feel it should go into Style. HEEN: As I understand it, we’re dealing with the first section entitled “Public Health.” Now, I would like to PORTEUS: I think that that matter can perhaps be brought suggest an amendment and if it seems agreeable, I will to a head. The Chairman has answered that question to a change that to a motion. Amend the first section by deleting certain degree. To make it more specific, does the chair from the first line the words “be responsible,” and insert man of the Health Committee agree that it is a matter of in lieu thereof the word “provide.” Then in the second line style whether or not the language of the first section provides and third line, delete all the words commencing “including,” “The State shall have power” or “The State shall be respon and the rest of that sentence; “including preventive measures sible”? If Style Committee were to come out with entirely for all its inhabitants.” So that with those amendments, the consistent language, would you feel that that made a difference section will read: “The State shall provide for the protection in substance? and promotion of the public health” period. In that form then LARSEN: We, of course, felt that “responsible” was - - it’s a mandate upon the State to provide for the public health had a little different connotation than “The State shall have and promotion of public health. power.” However, it seems to me - - BRYAN: I’d like to second the motion to amend. PORTEUS: Well, Mr. Chairman, may I get a specific LARSEN: I believe there is a definite difference here. answer to the question because - - Certainly in my connotation, prevention is quite different LARSEN: The specific answer is, if the Style Committee from promotion and protection. Now, maybe we could use comes back with it, we’ll probably be outvoted, but we did promotion for everything. But it seems to me that the three feel it was a little different. But our feeling is that such great fields of public health as it developed over the past 100 things probably would be for the Style to report back. years in America have been number one, promotion, that has to do with advertising, education and all that; then comes PORTE US: I wish to make a distinction under our rules. protection, which means that you have to protect the people Under our rules, after the Committee on Style has reported within the community from certain things; and the third back, or rather the Committee on Style may make changes great field is prevention, where you innoculate and so on. in style, not in substance. If this committee thinks that Now, the committee here is not too adamant about it, but that change is a matter of substance, then I want to get at it seems to me that it does carry a distinct meaning and a those words now. If the Committee on Health and Public recognition of the three great fields under which public Welfare wiU accept such amendments as being within the health now serves. province of Style, then I don’t have the concern with the particular language which is used. PORTEUS: I can appreciate the doctor’s point of view, although in dealing with sections with respect to the good LARSEN: I’m wrong on that. I agree that that’s correct. order of a community it’s always been to me the legislative I think the only two that we felt were different was number point of view that measures designed for the protection of 1 and 2. The others, “shall have the power” or “shall be a community included, of necessity, preventive measures. empowered to,” we felt were style. But “shall be respon When you are dealing with crime, it’s not necessary that sible,” it seems to me, is more of a mandate than “shall have you wait until the crime has happened and then attempt to the power”; and “shall be responsible” I would consider protect the community; the way you attempt to protect the substance. community is to try to prevent crime from happening. Con sequently I think that the word “protection” is one of the PORTEUS: I think that’s a very satisfactory answer. broadest words that you can use and I think certainly when There is only one more matter within that first section it’s used in a constitution it should receive a broad construc which I have some concern with, and that is, the utilization tion rather than narrow construction. To my mind the word of the words “including preventive measures for all its “protection” is all-inclusive. inhabitants.” It would appear to me that if the Committee on Style were to come forward with a report that “The State DELEGATE: Question, Mr. Chairman. shall have power to provide for the protection and promotion ANTHONY: I’d like to ask Doctor Larsen a question, and of the public health,” period, it would cover the substance that is, in my opinion - - In the first place, I agree with this MAY 24, 1950 • Morning Session 563 last speaker that prevention is included. If the matter was health officer who is familiar with what he had to do and was referred to the Committee on Style and that committee, we going before a legislature, to get that would state or would will say, eliminated that phrase on the basis that it was al be mindful of the fact that all those three are - - must be ready included within the word “protection,” would that considered in forming any legislation. Therefore, to put satisfy your committee, Dr. Larsen? it in, to keep on piling in even in this small section an enumeration of promotion, protection, prevention, you LARSEN: That would satisfy us perfectly. could go on forever, is only to make it more redundant. ANTHONY: I second Delegate Heen’s motion. It is my contention there and I move that - - I move to amend CHAIRMAN: It’s been seconded. the motion that the protection and promotion be deleted and therefore, it will then read: “The State shall provide for the KING: Well, merely a parliamentary point. The delegate general - - for the public health,” and leave it there for this from the fourth district, Delegate Heen, offered it as a section. Later on I would like to say, “and well-being or suggestion and would offer it as an amendment if it were welfare.” agreeable. I request that he now make the motion. CHAIRMAN: Hearing no second to that amendment, are HEEN: That’s correct; I made it as a suggestion. you ready for the question before the house? All those in CHAIRMAN: Is that correct? I understand it was an favor signify by raising their right hand. Motion is carried. amendment. Any opposed? HEEN: It seems to be agreeable to some of the delegates. ANTHONY: Section - - the next section - - I therefore move that the first section of this proposal he KING: Will the gentleman yield just for a minute. As a amended by striking from the first line, the words “be re matter of procedure, is it necessary to adopt the first section sponsible” and insert in lieu thereof the word “provide”; and as amended, or does the adoption of the amendment auto delete the worth “including preventive measures for all its matically adopt the first section as amended? I raise that inhabitants” appearing in the second and third line and in as a point of information. sert a period after the word “health.” So that as amended, if the amendment is accepted, the section will read, “The HEEN: I think the result of that motion carrying means State shall provide for the protection and promotion of the this, that that section has been amended. public health.” CHAIRMAN: That’s the question the Chairman considered BRYAN: I’d like to second that motion again. was before the House. I don’t know. CHAIRMAN: Motion is made and seconded. KING: The question I raised was, does that now adopt the first section as amended? TAVARES: Before that motion is voted on, I’d like to move an amendment, that we add at the end of the motion LARSEN: Wouldn’t it expedite matters to wait until all change the period to a comma, and add the following words: the sections with the amendments have gone through or not “upon the ground that this amendment does not change the gone through and then have one motion to adopt all? substance of the original provision.” So that if we adopt BRYAN: No. I’d like to speak to Dr. Larsen’s sugges it, it’ll be the sense of the Convention that that is the point. tion. That’s going to tie us up in a rather complex argument DELEGATE: I second the motion. about whether we agree with the substance of the whole thing or whether we agree with the form of having it in five sections. CHAIRMAN: Seconded. Therefore, I would like to move that we adopt Section 1 in HEEN: That might get into the records by my stating that substance as amended. the amendment proposed by me does not change the meaning ROBERTS: Second that motion. of that section. CHAIRMAN: I think that is in keeping with our earlier KAWAHARA: In the original phrasing, the word “inhabit motion that we were going to proceed in that manner. The ants” is included. As proposed in this amendment, the word motion is duly moved and seconded. All those in favor “inhabitants” is excluded. Does the amendment tend to signify by saying “aye.” Opposed. Motion is carried. change the intent or meaning of that section? ANTHONY: I’d like to speak to the second section, and PHILLIPS: The word “public,” I believe, covers that suggest this amendment: “The State shall have the power there. “Public health” would mean - - the public being to,” delete the words, “make adequate provision,” and in everybody, therefore you wouldn’t need to specify the people. sert the word “provide,” so that that section will then read: “The State shall have the power to provide for the develop TAVARES: In view of the clarification by the proponents, ment of preventive measures for treatment and rehabilita original proponent of the motion, I withdraw my motion to tion as well as domiciliary care for mentally and physically amend upon the understanding that if we vote in favor of this handicapped persons who are unable to provide such care.” motion, we will be accepting that interpretation of it. I make that in the form of a motion. CHAIRMAN: You withdraw your second? The amendment CHAIRMAN: Is that a motion to amend the present pro- is withdrawn. posal? ROBERTS: I’d like to talk in support of the proposal up WHITE: I’ll second that. for consideration now on the express understanding that when this matter is reported out from the Committee of the Whole, CROSS LEY: Point of order. that that committee report, on the floor, that the intention is CHAIRMAN: I recognize the second by Delegate White not to exclude preventive measures nor to eliminate the idea first. that it is applicable to all inhabitants. CROSSLEY: There’s no motion to amend; there has PHILLIPS: I can’t help but feel again that within this one to be a motion on the section itself before you can move small section there is an enumeration, the promotion, the to amend it. protection and the prevention. In showing that there are three CHAIRMAN: That’s correct. broad fields of health, it looks to me like it is a memo down to all health officers to remember that there are three broad LARSEN: I move it be adopted as is, and then have fields. “To provide for the general health,” would, to a the amendment come in. 564 HEALTH AND WELFARE DELEGATE: I second the motion. WIST: I think I can speak for the Committee on Health CHAIRMAN: Motion is duly made and seconded. Dele in saying that it is not our intention to exclude provision gate Anthony, would you repeat your amendment? for tuberculars; therefore, this problem is really a matter of style. Secondly, in my judgment, this question of sub ANTHONY: I have two amendments to that section. topics, or that titles - - subtitles is also a matter of style, First, I move that the title be deleted to get a new title and certainly that was recognized in the Health Committee. for that. I think the chairman of the commktee has a title. LEE: I’m not sure whether I agree with Delegate Wist Second, I move that the substance of the section, the as to the matter of style and the matter of substance. first sentence, be amended to read as follows: “The State • However, I want to ask Dr. Larsen this question, whether shall have the power to provide,” and delete the words or not in providing fot this section, entitled the “Care of “make adequate provision,” so it will then read: “The State shall have the power to provide for the development” Handicapped Persons,” and in view of the fact we’re running and so on, the rest of the section. into this problem raised by Delegate Tavares, whether or not the first sentence in its broader terms and its broader DELEGATE: I second that. aspects covers the care of the handicapped persons? It would seem to me that it does. I may be wrong on it. CHAIRMAN: The amendment is seconded. PORTEUS: May I ask the person making this motion TAVARES: Just one more thing and then I’ll try to sub whether or not he feels there is an addition to this - - an side. It seems to me that, perhaps in their laudable zeal important addition to this section, by the retention of the to see that this Constitution is not the Constitution of a so- words, “for the development of preventive measures”? called weifare state in its worse sense, they have put this Would it not cover his idea to say that “The State shall qualifying provision, and it seems to me this is one of those qualifying provisions that might be too dangerous. Perhaps have the power to provide for treatment and rehabilitation it would be better to take the chance that the legislature in as well as domiciliary care,” et cetera? this small field would err on the side of over-liberality and LARSEN: It seems to me again we come up to rather take out the qualification, “who are unable to provide such basic principles. If, and I might say this section is quite care,” so as to just leave it an empowering section. I won different from the first section, the first section provides der what the chairman or the members of the committee public health for everybody, this second section provides would think of that. Since the field is so limited—it’s only care for those who are unable to provide it themselves, the handicapped— you’re not going into too big a field in care, treatment. And we hope the program of prevention giving a legislature pretty broad powers, and not limiting it shall develop to the point where we will not need as much to only those who can’t provide. Otherwise you have the treatment and rehabilitation or domiciliary care as we question then of to what extent must a person be unable to now have. I feel it’s quite broad there. provide for himself before he falls under the constitutional I would also like to add to the amendment, if I may, that ban. That’s a pretty hard question. If he has two radios, the last line—this also comes from suggestions from dele does he have to sell ope? If he has a little home, does he gates—I’d like to add, “who are unable to obtain such serv have to sell a part of it? Or just how far do you have to go ice except at public expense.” And the title that we’re before you say he is unable to provide. suggesting is, “Care of the Handicapped.” I’d also like to LARSEN: May I answer that? Number one, of course explain that “physically handicapped” includes all those who our public welfare, our City and County emergency, is all are ill, and that will be made clear in the explanation. the time, every day, determining whether you can or cannot CHAIRMAN: That title is included in your amendment, I provide. That’s a standard procedure. take it? However, I’ve talked to a few of my committee members here. I’m inclined to go along with Delegate Tavares. I havE LARSEN: Yes, it was. a feeling it’s the one sentence that is perhaps closest to legislation that we have; I would accept that ü a second TAVARES: I think a clarifying question here is in order. one. However, I would like to make it clear what the inten Within the last four years, our legislature did a revolution tion of this committee was, and accept the fact that we did ary thing; if adopted the principle of caring 100 per cent for indicate that this State shall always stand for responsiblity tuberculosis patients, whether they were able to provide the to the State; that whatever rights are granted always go with expense or not, on the theory that it was a sickness that took responsibilities and therefore, if we make that clear, I think such long duration and it was so dangerous that we were this correction would probably eliminate much of the objec justified in incarcerating these people against thçir will in tion to this. sanatoriums. As a result of that, in order to prevent the contamination of the public or the - - whatever you want to TAVARES: To bring this matter then to a head, I move call it, infection of the public, we were justified in doing so; to amend the existing motion to amend, by adding thereto, and as a corollary to that, we said, “Since we are going to a further motion to delete the words, quote, “who are unable compel you to go through this long course of treatment, to provide such care,” unquote. since the rehabilitation takes a long time, the government LARSEN: May I ask, why not delete the whole section? is going to stand all the expense, whether you can pay for it That would be safer. or not.” I am wondering if this provision is too restrictive to take care of the tuberculosis question. I think it’s very DELEGATE: I’ll second that motion, Mr. Chairman. important that it be properly cared for. TAVARES: Well, if k’s the - - Wkh the understanding that by deleting that whole section we are not eliminating LARSEN: May I answer that? Under our present laws, the power to take care of this situation under the preceding tuberculosis is taken care of under Section A. Also, I think one which we have already adopted, I think I would - - the criticism is perhaps valid, but I want to call your atten I will second that motion. tion that a person who is well able to take care - - most people, at least 95 per cent, are unable to take care of one ROBERTS: I think that the deletion of that section raises and two years of hospitalization. At the present time, they a question which ought to be discussed on the floor. In com are allowed to pay what they wish. We have the same at the mktee, the intention was that those individuals who are able Territorial Hospital. However, I will accept the fact that to provide for their own care should do so; that those who that should be clarified, and we hadn’t clarified if. are unable to provide, then the State had some responsibility MAY 24, 1950 • Morning Session 565 toward it, if it is made sufficiently clear in our report as TAVARES: A point of order. Dr. Larsen has withdrawn we come out that that is the intention. The suggestion then his motion and I agreed to the withdrawal. made by the chairman was for its complete elimination. KING: Then that answers my question. Then the - - May Now I think it would be preferable to leave that section in, I ask as a point of information, the motion before the Con but make it quite clear that the intent is that those who are vention now, the Committee of the Whole, is on the amend able and can provide for themselves shall do so, but that ment to the amendment - - does not limit the kind of situation which was presented to us on the matter of tubercular care. CHAIRMAN: That’s correct. KING: - - to strike out the last few words, “who are ANTHONY: I think there is a great deal in what both Mr. unable to provide such care.” Is that correct? Tavares and Delegate Roberts have said, and I want to call the Convention’s attention to this fact. I stated earlier that CHAIRMAN: Is that correct, Clerk? the minute you start to enumerate things, you are going to KING: If the sponsor of the original amendment accepts get into trouble. Now here the gist of this trouble is that that amendment, then we have only the one motion before with the deletion - - the amendment proposed by the delegate the Committee of the Whole, that is, to change the title to on my right, there is a feeling apparently on the part of that “Care of the Handicapped,” and to have the section read, committee that that would open the way for socialized medi “The State shall have the power to provide for the develop cine. Now we know that that committee is not in favor of it, ment of preventive measures for treatment and rehabilitation but that’s the very point that I drove at earlier. The minute as well as domiciliary care for mentally and physically you start to enumerate these things, you are going to have handicapped persons,” period. Is that correct? some interpretation of that kind. Now I think it - - I agree with the chairman of the committee it might be well to delete DELEGATE: Question. the entire section on that ground. PHILLIPS: I would like to move that we further amend that section by - - in lieu of that section that we attach to CHAIRMAN: Is the motion amended before the house? Section 1 above, “and general welfare.” I repeat that, that Are you ready for the question? in lieu of Section 2 or B that all that be included in the two DELEGATE: Question. words by attaching to the “1” above, “and general welfare.” “Public health and general welfare.” Section above, our CHAIRMAN: Will you read the motion as it is now amended, Section 1, and just put “and welfare,” or “general welfare.” the amendment. CHAIRMAN: Hearing no second - - KING: The last motion, as I understand it, was to delete the whole section. Is that correct? That was the motion LARSEN: It seems to me we’ve gotten a little bit off the suggested by Dr. Larsen, and I believe seconded by Delegate beam here. As soon as we leave this wide open, it does Tavares. spell out no limit.gtion at all. The committee felt very keen CHAIRMAN: Yes. ly that there should be limitation here, that we believe that there is a very great danger to the feeling that a great mass TAVARES: I seconded it. If I didn’t, I thought I was of the people of a community shall have complete benefits seconding it. without working for them, actually. Now, perhaps if the KING: As a point of information, the motion that is committee members agree, as long as we make that clear pending before the Convention is, I believe, a motion to in our explanation, that the intention is merely to provide delete the whole section. such care for those who are unable to obtain such service except at public expense, that thought, I feel, is extremely CHAIRMAN: That’s correct. I just want to have it important, and I still feel it can be clarified. stated to clear up any misunderstanding. I may have - - CHAIRMAN: Hearing no - - HEEN: In deleting that whole section, then that problem included in that section can be taken care of under the general KAUHANE: I would like to be somewhat clarified on provision of the grant of full legislative power to the legisla some of the matters that were brought up in the discussion. ture. Well, this might not include public - - be included in I feel that the committee’s intention is to provide treatment the matter of public health, because you take a person who is or rehabilitation for people who are mentally and physically blind, I don’t think that is a matter of health; he’s a handi handicapped. I’m also wondering whether or not the com capped person. So therefore, this problem here can be mittee’s intention is to take care of people who qualify as taken care of under the broad general grant of power to the mentally ill, as well as those who are physically handicapped, legislature. as expressed by Delegate Heen when he said blind persons are classified as physically handicapped; or whether the LARSEN: I have to withdraw my suggestion, as I talk to words “mentally and physically handicapped” means that an my committee members here, and I’m reminded of the dis individual must meet such requirements, he must be physi cussions we had that this is an important section. It has cally handicapped and mentally ill before such provisions nothing to do with public health, as Senator Heen has sug shall be granted him by the State in this care, and also for gested, but it does have to do with treatment of a very treatment and rehabilitation. broad section of people. It’s a treatment proposition that’s only come in recently in to this whole field of health, but CHAIRMAN: Mr. Chairman, would you like to answer I feel we can cover without — - I don’t feel it’s spelling it that? out as long as we indicate this is what its intention is. And LARSEN: In our explanation, I had this added note under remember, we are doing this right now; we’re not limiting handicapped, because somebody raised the question, “which here, and our last section also makes it clear we don’t limit. includes all those who are incapacitated by illness or from I would like to merely amend it to include the section, that other cause.” As far as the “mentally and,” it could read would - - merely the word that makes it very clear it doesn’t perhaps “mentally or.” I think it would be perhaps clearer mean to limit legislation for certain people who are chroni to the delegate from fifth district. I think, perhaps that cally ill. would make the intention much clearer. KING: I would like to speak in opposition to the motion KAUHANE: I’m only trying to help those who may have to delete the section. I’m not sure if I understand Delegate - - to qualify under the requirements in order that they may be Dr. Larsen, the chairman of the committee - - given such aid by the State, and I think the word “and” is 566 HEALTH AND WELFARE rightfully used, but I think it should also read “or/and.” I think we should - - I would like to make the statement That will take care of the people and groups of people that [that] by the deletion of the words, “unable to provide such the committee intents to take care of. care” - - “who are unable to provide such care,” it is not TAVARES: The word “and/or,” although we lawyers are the sense of this Convention that we are therefore opening, using it, is one of the abortions of modern legal terminology, and thereby opening the door to socialized medicine, but and we want to get away from it as far as possible. I think we are simply not attempting to curtail the powers of the the word “or” will take care of the situation because it can legislature in certain specified fields. I think with that then mean “or/and” in itself. If one is either physically or explanation, it would satisfy the medical profession. mentally handicapped, he domes within the definition. If LARSEN: All right, we accept. he is both, he still comes within the definition. So I think the word “or” will cover the situation. DOWSON: Question. I’d like to ask Mr. Tavares to re Now to bring that to a final head, I move then that the peat the amendment, the clarification. section in question be amended to read as follows: “The TAVARES: By way of amendment to the original motion, State shall have the power to provide for the development of I move that Section B be amended to read as follows - - What preventive measures for treatment and rehabilitation as was the subtitle? “Care of Handicapped.” “Care of the well as domiciliary care for mentally or physically handi Handicapped,” that’s the subtitle. That the section itself capped persons.” be amended to read as follows, quote, “The State shall have And in that connection, I would like to say that if the the power to provide for the development of preventive chairman of the committee feels that by eliminating the measures for treatment and rehabilitation as well as domi provision about people unable to provide such care we ciliary care for mentally or physically handicapped persons,’ are doing something that we shouldn’t do, then the proper period, unquote. motion is to move that that section be referred back to the committee for further report and amendment. DELEGATE: Since it wasn’t seconded before, I now second that motion. SILVA: It would seem to me that about the only thing that’s necessary in that section would be this, it should read BRYAN: I’d like to ask the delegate from the fourth who thus: “The State shall have the power to provide for the just made that motion, if he would consider a further amend development, treatment, rehabilitation as well as domiciliary ment to specify “mentally ill or physically handicapped”? Is care for mental and physical,” without the words “preven that in there now? I beg your pardon. tive measures.” Seems to me that you’re going to buy a Mr. Tavares, I’d like to ask him a question. Would you man a pair of crutches before he breaks his leg; that’s what consider a further amendment to put the words “mentally you are going to do. ill” rather than “mentally or physically handicapped”? “Mentally ill or physically handicapped”? ASIIFORD: May I ask the chairman of the Health Commit tee a question? Isn’t it the contention of modern psychiatrists TAVARES: I would accept that. I’ll accept it. Will the and psychologists that we are all mentally handicapped? seconder accept that? LARSEN: I think the modern conception is that Democrats CHAIRMAN: Does Dr. Larsen- think that all Republicans are mentally handicapped and all TAVARES: I wonder what the chairman of the - - Republicans, Democrats are. But, Mr. Chairman, could I speak to this? LARSEN: Well, I feel it’s an extra word. When a per son is mentally ill, he’s certainly mentally handicapped, CHAIRMAN: Delegate Larsen still has the floor. even in the terms of - - LARSEN: Who has the floor? Do I have the floor? PHILLIPS: Mr. Chairman. CHAIRMAN: You do. CHAIRMAN: Delegate Tavares has the floor. LARSEN: It seems to me the question of preventive, TAVARES: Well, in view of the statement of the chair of course, is entire - - The new concept of today is, let’s man of the committee, who is also a physician, then I would prevent these things that have handicapped the State so much like to ask the person who suggested the word “mentally ill,” in the past. It has nothing to do with treatment and rehabili to withdraw that and delete from my motion. tation. We hope as we look forward, eventually, if we use enough of the preventive measures, we won’t need either CHAIRMAN: Delegate Bryan, will you withdraw that? treatment or rehabilitation. That’s really a sound concept, BRYAN: It wasn’t an amendment of your motion and I I believe. refuse to withdraw my suggestion. But when we leave out, “persons who are unable to obtain such care” except at public expense, now maybe the legis TAVARES: Well, then, may I withdraw my acceptance lators feel that that can’t be misinterpreted, but to me that of the motion - - of the suggestion. would be a very dangerous sentence in our present economic RICHARDS: I think there is considerable difference be stage. tween being “mentally handicapped” and “mentally ill.” HEEN: If you leave that provision in there, or rather Personally, I feel mentally handicapped in dealing with the that clause, “who are unable to provide such care,” then “Supreme Court” over here in some of the problems in the you might not be able to take care of tubercular people with discussions, but I certainly don’t think I’m mentally ill. out expense, without providing for their own care, because a tubercular person is a person who is physically handicapped. PHILUPS: The word “handicapped” has been bothering us a great deal and I had a chance to refer to Webster, and LARSEN: I think we answered that in that we added the he said that it was “any disadvantage that renders achieve provision, “shall not interfere with the care of the chronically ment more difficult.” Now I would like to ask the Conven ill. tion, wouldn’t that include colds, itch, arthritis, hangovers, SILVA: I move we defer action on this section, go on with or almost anything that would render us all a little bit less - the next section, and when proper corrections are made to more difficult of achievement? this section, we carry on. LARSEN: That’s okay. And if somebody has an itch that ANTHONY: I’d like to second Mr. Tavares’ motion. It handicaps him and he can’t pay for help, I think the State hasn’t been acted upon, and I second it. In seconding it, should help him and the State helps him right now. MAY 24, 1950 • Afternoon Session 567 CHAIRMAN: Question before the house. Are you ready KAUHANE: Will you yield the floor, Mr. Delegate? Mr. for the question? Chairman, he having yielded the floor, I think it is only proper then, upon the reading of the rule by the delegate CASTRO: I have a question about wording here, of the from the fifth district, that this proposal be recommitted to chairman. The second line, “preventive measures for the Committee on Health for further study. treatment and rehabilitation.” Does “preventive measures” refer to rehabilitation or should it be “for preventive PHILLIPS: Second that motion. measures” comma “for treatment and rehabilitation” comma TAVARES: Point of order. I don’t think the point of “as well as domiciliary care”? That’s not quite clear to order is well taken. We are sitting in Committee of the me. That’s - - it’s not a matter of style, I don’t think, be Whole. Everything we do here is advisory. There will be cause it could very well be a confusing point if someone no amendment of this section until we have come in - - back were to believe the “measure” referred to “rehabilitation.” in to the full meeting of the Convention, and at that time, LARSEN: We did have - - suggested rather, a comma there will be a written report of the Committee of the Whole after “development of preventive measures” comma “for which will have those written amendments. So that in my treatment and rehabilitation” comma “as well as domi opinion, and I submit that’s correct, there is no require ciliary care.” ment now that in Committee of the Whole we place these amendments in writing. CASTRO: Well, then, I suggest that that be added to the amendment, if that’s acceptable to the - - CHAIRMAN: That’s correct. MIZUHA: I rise to a point of information before the FUKUSHIMA: I believe when the rules were drafted question is put. There was a delegate in the fourth district specifically we did include Rules for the Constitutional who made a second to the motion with the understanding that Convention of Hawaii 1950. ~ am referring specifically to it was this; he was seconding the motion to exclude social Rule 59. ized medicine. Now I’m just wondering whether that is part CHAIRMAN: I think, Mr. Fukushima, Rule 23, “All of the record and the understanding of the - - in the accept amendments made to proposals, reports, resolutions and ance of the motion as originally put. Now, doesn’t - - I, as other matters submitted to the Committee of the Whole a delegate here, I believe that we cannot exclude that sort shall be noted and reported.” of thing when the first section is all inclusive. If in future generations we find that is the desirable thing to promote SILVA: To prevent the arguments over that point, I move the general health, the public health of the community and we suspend the rules and now that we go into Committee of the State, I believe just by that insertion of a remark in the the Whole - - record to foreclose legislation on the part of the State to promote the public health will be something that the future DELEGATE: I second the motion. State legislatures will be confronted with and will hamstring CHAIRMAN: The motion - - the legislature in promoting the first section of this article. CROSSLEY: I move that the committee now rise, report - - I want that clear before the delegates of the Convention, in accepting this second section that they are voting for some SILVA: Mr. Chairman, there is a motion before the thing that will permanently hamstring the legislature of the house. Motion has been made and seconded the rules be State of Hawaii as far as the first section is concerned in suspended and it’s been duly seconded. the promotion of public health, and it’s a point - - it’s a CHAIRMAN: I think the motion to rise is always in constitutional point which must be argued before we accept order. the second section, if that second and the condition to that second is inserted in the records. CROSSLEY: It’s always in order. Committee rise and report progress and beg leave to sit again. ANTHONY: The purpose of my making the statement that I did was in order to satisfy members of the medical profes MIZUHA: I second the motion. sion that by the deletion of the words, “who are unable to CHAIRMAN: All those in favor of the motion signify by care for themselves,” we were not thereby making an ex saying “aye.” pression, an affirmative expression that this Convention was authorizing any socialized medicine. In other words, I PHILLIPS: Point of information. wanted to put their fears at rest. If at some future date a CHAIRMAN: Opposed? So moved. legislature, a hundred years from now, would desire to go LARSEN: What’s the motion. into a socialized state and socialized medicine, then of course, under the general powers of legislation which will be incor CHAIRMAN: Pardon? porated in the Constitution, there would be ample power to~ PHILLIPS: What was the motion, Mr. Chairman? do just that. CHAIRMAN: -Motion was to rise, report progress, beg MIZUHA: Then it is my understanding that the first leave to sit again. Carried. section will grant - - will be the constitutional provision upon which that future State legislature may legislate for that type of a program, if the public health of the state so Afternoon Session deems it necessary. Thank you. CHAIRMAN: The Committee of the Whole will come to FUKUSHIMA: I believe we’ve been wasting a lot of time - - order. Please make yourselves comfortable. CHAIRMAN: I agree. To clarify the situation as it stands at the present moment, FUKUSHIMA: - - without following the rules. I believe there is a motion duly seconded before the committee to Mr. Heen and myself, in introducing or offering our amend adopt in substance the second section of the proposal. There ments, were the only two delegates who followed the rule is an amendment which has been seconded and that amend as to put in writing all amendments to any proposal. ment ràds - - it’s in two parts, the first part is that the title shall be changed to “Care of the Handicapped.” The KAUHANE: Mr. Chairman. Mr. Chairman. section shall read, “The State shall have the power tâ pro CHAIRMAN: Wait, he hasn’t finished. Fukushima still vide for the development of preventive measures, for treat has the floor. ment and rehabilitation, as well as domiciliary care for 568 HEALTH AND WELFARE mentally or physically handicapped persons.” That amend TAVARES: It seems to me that there might be this ment was made by Mr. Tavares and has been seconded. We difference. The word “resources” I think, is quite fre start from that point. quently used in connection with assistance to various groups of persons who are now being assisted either for health or LARSEN: I’m going to ask Mr. Anthony if perhaps he other reasons, and “resources” include the resources wouldn’t be willing to accept the amendment as it was re available from your relatives as well as yourseif, whereas worded during the recess lunch hour. The title, “The Care the other thing might be interpreted to mean that you your of the Handicapped,” and then it shall read as it was passed self can’t furnish the service. out to you: “The State shall have the power to provide for the development of preventive measures, and for treatment CROSSLEY: Then may I ask further—and this is not and rehabilitation as well as domiciliary care for mentally facetious—how do you determine? I mean, I was in favor or physically handicapped persons whose resources are of the deletion of the section because I thought that it was inadequate to provide the same.” The group who were talk something that was very difficult to determine. How do ing felt if we didn’t put that in, any small pressure group you determine this then; is it as determined by law or could demand sudden community expense that they otherwise does there have to be another statutory provision to go along couldn’t have. And it seemed to me it was so all-inclusive to make this operate? that it wasn’t restrictive in any way. LARSEN:. May I answer that for Mr. Tavares? This has I wanted to answer the delegate from Kauai, that we tried been done right along. There’s no difficulty about that. very hard not to put in a restrictive clause, that if sometime We have boards, we have people today getting all kinds of in the future, be it the legislature or the people, if they want assistance. We are merely - - that part I can assure you a medical-welfare state, they’re going to have it whether we has been done so many times that we don’t need any more write it here or not. I don’t think that’s the important statutes. This is actually recording progress and record point. The point is we’re trying to indicate here those ing our philosophy in the care of people who are sick and things that we believe in as a principle in the care of our unable - - who can’t find resources sufficient to take care sick people. of it themselves. May I clarify a little more, also clarifying Mr. Tavares’ point, that the question of the care of tuberculosis and so on ANTHONY: I think in answer to the delegate from Kauai’s comes under Section A. That’s a provision that takes care question, you’ve got to take a look at this section and see of everybody. The tuberculosis or infected people out in the what you are endeavoring to accomplish. As I read this community are - - the rest of the people have to be protected section, this does not deposit any grant of power in the leg against them. I didn’t make that clear. Section B takes islature. All this is, is a declaration, as Mr. Larsen - - Dr. care of those - - all those others who might be even tempo Larsen has put it, of a recorded advance in this specific rarily sick. If, may I ask - - we could expedite it perhaps field; and so whether we have this language or have not the if Mr. Anthony would accept that as an amendment. language in the section, it would not curtail the power of the legislature to provide legislative programs. Obviously, CHAIRMAN: The Chair would like to point out that it’s this is not a piece of legislation, and if anything is done in Delegate Tavares’ amendment. pursuance of this declared policy, it would require imple mentation by statutes. I think that’s basic in this discussion LARSEN: Well, as I understood it, you said there was here. an amendment that had been seconded on the floor regard In other words, we’re not dealing with an added grant ing this section and I think Mr. Anthony made that amend of power. We’re simply stating a position in the legislative ment. Now, either - - I’m not asking him to do anything, article, and the basic question is whether you want to state of course, against his desire, which I know he wouldn’t those things in the legislative article or do you want to leave do anyway, but I was just wondering if he agreed on this it general. I think we should make it clear that we are not second one, then perhaps he’d be willing to withdraw his endeavoring to restrict the legislature in any regard by this first. particular section. CHAIRMAN: The record shows that the amendment is CHAIRMAN: The Chair would like to point out that Dr. by Delegate Tavares and not Delegate Anthony. Larsen made an amendment to Mr Tavares’ former amend TAVARES: I accept the amendment to the motion which ment which has not been seconded. Mr. Tavares’ amend I originally made. I think as the last speaker read it, he ment is still before the house. didn’t read it exactly as stated in the written revision which ROBERTS: The motion is seconded. we have before us, but it was substantially correct. He put TAVARES: I thought that I had accepted the amendment, in one “the” where it doesn’t exist in the present draft. I which I think took care of the lack of a second. just want to make that clear because we are recording this argument along with the consideration of the written amend CHAIRMAN: Thank you. ment. PHILLIPS: In regard to the word “resources,” I wonder As I understand it now, it is the opinion of the chairman if we can be assured in the future that the future legislators of the Health Committee that under Section A, which we or the court will interpret the word “resources” in the same have already tentatively approved, the treatment of tuber manner that Delegate Tavares did. I have a feeling that they culosis patients would be taken care of, that it is a part wouldn’t do that. of the protection of the public health. I am willing to accept TAVARES: I can give the delegate the same assurance that; I think in the broadest sense of the term that is correct. of change or lack of change that I can give him about the Under those circumstances, it would not be necessary to interpretation of the meaning of “unlawful searches and remove the exception which I tried to remove from Section seizures.” It has changed over the years and it might B. change again as the United States Supreme Court or the courts decide it. There is no such thing as absolute certain CROSSLEY: May I ask one of the associates of the ty, but I do believe it lays down a standard which within “Supreme Court,” what difference is there in the language, certain reasonable limit the courts can follow in determining “who are unable to provide such care,” which the delegate whether a law complies with this provision or not. from the fourth district moved awhile ago to delete, and, “persons whose resources are inadequate to provide the PHILLIPS: Then I would like to ask the delegate from same,” which he now accepts. the fourth district if he believes that his analogy is good in MAY 24, 1950 • Afternoon Session 569 making the one word “tesources” analogous to the long PORTEUS: I had some question on that that was raised phrase that he gave, which is a whole doctrine of law. What by my colleague from the fourth district, the development I mean is that there are certain words that have been in of preventive measures for mentally handicapped persons. terpreted right straight down, such as the word “provide” If the person is mentally handicapped, it isn’t preventive which you have a great deal of [inaudiblel on it and you can measures, it’s treatment that they need. Preventive rest assured by using that term you will get a given effect measures, therefore, are designed, I thought, to stop out of it. If we confine ourselves to those terms, we can something from occurring. So it seems to me that that is assure that we will get what we want by putting it in here. an inappropriate modification, “preventive measures for If we don’t, then we’ll have to throw it open to the courts to mentally or physically handicapped persons.” If you want interpret in the future as they see fit. to say “preventive measures in order to prevent people from becoming mentally or physically handicapped,” I might LARSEN: I would accept very well both Anthony’s and agree with the good doctor; but it seems to me once those Tavares’ explanation here, and especially, I think, Mr. people are mentally or physically handicapped, then it’s Anthony made it very clear that this is actually recording treatment, not preventive care that’s necessary. here what we hope for; but notice, “The State shall have the power to provide.” We assume a legislature in the LARSEN: I think he is correct. The intent was there but future will now make statutes to cover this philosophy. I think he’s correct. I think that if you may, and since the intent was there, I think a very short rewording would cover PHILLIPS: And then in regard to that, I’d lilce to point that, and I think perhaps the Styles would correct it so as to out to Delegate Larsen that he further said that since it carry that meaning. only says that the legislators “will have the power to pro vide,” meaning that they - - it is entirely up to their dis DELEGATE: No. cretion to use it or not, and that therefore, he would have LARSEN: No? All right, then we’ll do it right here. much difficulty convincing them to use this because they CHAIRMAN: Five minute recess while they reword that. would not have to use it. And he also pointed out that be cause of that it would be ineffectual unless the legislators (RECESS) acted. Therefore, why put it into the Constitution at all because they have that power anyway if it isn’t in there? CHAIRMAN: The Committee of the Whole come to order. CHAIRMAN: The question before the house is the amend TAVARES: I wish to withdraw my motion for amendment ment which I’ll read. with the consent of the second. HEEN: I would like to ask the chairman of the Health LARSEN: I so do. Committee just what is meant by this language, “The State KING: In consultation with the chairman and other mem shall have power to provide for the development of preven bers of the Committee on Health and Public Weifare, and with tive measures for mentally or physically handicapped Delegate Tavares, we have agreed that the following language persons”? What is meant by that language, “preventive covers the purpose of this section and I offer it as an amend measures for mentally or physically handicapped persons”? ment to the existing language. LARSEN: Preventive measures are coming more and [Part of speech not on tape. I . . . and proposed in the more into vogue. We now, for instance, know that a great amendment offered by Delegate Tavares which has now been many people who are mentally handicapped and badly handi withdrawn. That is, it will be - - the section will be entitled capped so they cannot even earn a living, if we applied cer “Care of the Handicapped.” The section will read: “The tain preventive measures in their childhood, later on through State shall have power to provide for treatment and rehabili life, environmental and otherwise, much of this that we now tation, as well as domiciliary care, for mentally or physi keep in the hospitals could be prevented. It’s the idea that cally handicapped persons.” Now, in support of that lan we should emphasize the preventive program just as well as guage, I personally feel that the grant of this power to the the hospital care. That’s the intent. legislature carries with it the authority to engage in pre ventive measures and also carries with it, by implication HEEN: May I ask this pointed question? Rather, may I or even by the greater grant of power than other sections ask the speaker to illustrate one preventive measure for a of the Constitution, the authority to limit this care to those mentally handicapped person? who are unable to provide it for themselves. So I feel that the purpose of the committee is carried out by this briefer LARSEN: I would give you perhaps two or three. One, language, and would like to offer it for adoption in place of for instance, there are certain things that will blind the the existing language. child. If we put in certain preventive measures, we can prevent that blindness. CROSSLEY: I second the motion. From the standpoint of mental, for instance, we now CHAIRMAN: You have heard the motion and the second. know about certain repressive things in a child’s environ Is there any discussion? ment. They have in certain schools, for instance on the mainland, they have psychiatric help that they feel quite PHILLIPS: Would you repeat that motion, please? sure prevents mental breakdowns later on. The whole CHAIRMAN: Will the Clerk read the motion please, the preventive program is the hope of the future. amendment rather. But if some of the men wondered, does that mean sterilization program, I feel it has nothing to do with that. KING: The language would be “Care of the Handicapped. If sometime in the future, the community or the legislature The State shall have power to provide for treatment and feels that such a program would be important, perhaps it rehabilitation, as well as domiciliary care, for mentally could be worked in, but there’s nothing inhibitive here, and or physically handicapped persons.” there’s nothing suggestive to produce such a program. CHAIRMAN: You have heard the amendment. Are you That’s why I feel we’re leaving it so wide open that the ready for the question? All those in favor signify by saying legislature can go along this way, but it does give them the “aye.” All opposed. Passed. right to develop what is coming more and more into vogue, I will now entertain a motion - - a preventive program for these various conditions that formerly we kept endlessly in the hospitals. BRYAN: I move the adoption of Section 2 in substance. 570 HEALTH AND WELFARE CHAIRMAN: Section 2 as amended. very dangerous to depend on subtitles to determine meaning. They should not have a determining effect on the meaning of BRYAN: As amended. Correct. the provisions, and therefore, I think they are very im CROSSLEY: I second the motion. material. I think it should be left largely to the Committee CHAIRMAN: The motion is duly made and seconded. on Style, with the understanding that the subtitlçs should All those in favor signify by saying “aye,” Opposed. Passed. not control the interpretation. FONG: Under those circumstances I’ll withdraw my LAI: I would like to have a clarification on the words motion, but actually it is not social relief. It is social and “provisions” and “persons” in this section. Does the word economic relief rather than social relief, and I hope the “provisions” mean social security, mean old-age pensions, Committee on Style will consider that. or pension for the disabled veterans, or institutions who care for the same? And the word “persons,” does that CHAIRMAN: You withdraw your amendment? take in unemployed people, too? ASHFORD: What is the difference, if I may ask the ANTHONY: I’d like to move an amendment that will take chairman of the Health Committee, between “the legislature” care of delegate’s - - and “the State”? Does he mean by - - does the committee mean by “the State” more or less than the legislature? Can CROSSLEY: Which one is he on, C? other functionaries of the State aside from the legislature ANTHONY: They are on C. make these provisions, in the opinion of the Chairman? CHAIRMAN: Point of order. There’s no motion to LARSEN: Our thinking in that was that the State was a adopt C yet, so it can’t be amended. little broader, but we don’t know. Some time in the future ANTHONY: Well, for that purpose I’ll move for the perhaps the governor would be the State or somebody else. adoption of C. DELEGATE: Heaven forbid. LARSEN: I second the motion. LARSEN: Yes, I know. I’m not saying it will be, I’m CHAIRMAN: Thank you. just giving a very vague supposition. You see our response here. Well, that’s very healthy. LARSEN: And may I add the amendment. Have you got But the point was, and I will turn to them and just say, this amendment? isn’t it true that the term “the State” possibly has a little ANTHONY: I am now moving the amendment. I move broader connotation than “the legislature”? The committee that C be amended to read as follows: “The State shall is not adamant on either one. If the group prefers “legis have the power to provide,” and then we would delete the lature,” I’m sure we would go along. words “be authorized to make provisions,” and continuing, “The State shall have the power to provide for persons unable LEE: I think Delegate Ashford has raised a very good point. There should be only one branch of government who to maintain a standard of living compatible with decency would be able to provide for this clause, health and general and health” period, and delete the remainder of the sentence. weifare, and that’s the legislature. I think we are using BRYAN: I’ll second that motion to amend. the terms here instead of using “the State” in order to pre CHAIRMAN: Motion is seconded. clude Congress from construing our Constitution as meaning that we are implying a possibility of a dictatorship govern FONG: I want to further amend that by striking out the ment in a new State of Hawaii, that we’d better use the words “Social Security” and adding the word “Public Relief,” word “legislature.” I mean word - - A. TRASK: I think the chairman of the Committee on CHAIRMAN: You mean as the title? Health is correct. “The State” is the proper term. Obvious FONG: “Social Security” and add the words “Public ly, the State is composed of the legislature plus the gover Relief.” I think this is really public relief rather than nor. He has the right of veto. Now, this doesn’t leave him social security. out of the picture even though certain persons of us must have some certain ideas. It is the State, and it’s a cooper CHAIRMAN: You are referring to the title? ative situation that affects the passage of a bill, an act, FONG: The title, yes. which would provide public health for this purpose. LARSEN: May I suggest, we are trying to leave out words ASHFORD: I disagree with the delegate from the fifth. like “relief” and “handout,” “Lady Bountiful.” We’re trying I don’t think the State is composed of the governor and the to express it in terms, and why we left out “public relief” legislature. We have three branches of government in our was the feeling that relief has gotten the connotation of Lady government setup. And as a second point, I suggest that Bountiful throwing out a nickel, whereas what we wanted was the Constitution of the United States, which after all is the a sound policy of state that those who are handicapped, if form of all constitutions, provides that “the Congress shall they are helped, will again become good citizens. I mean have power” and so forth. that was the idea of “social security.” FUKUSHIMA: I believe the word “State” is correct be PHILUPS: I second Delegate Fong’s motion - - the cause we may still have the initiative. amendment to the motion. TAVARES: Again I think we’re straining at gnats. This AKAU: May I ask the delegate from the fourth district, is obviously a provision that has got to be given effect by the “Bar Association,” as to the difference between “have legislation. When the legislature provides that, then all the the power to provide” and “be authorized to make provisions”? agencies of the State will follow that law and the State will Delegate Anthony had made that change and I wonder if he be providing what this provision says it will do; and in that would clarify it because I just wonder if there is a difference. respect, I think it’s sufficient and definite enough. ANTHONY: The amendment is a little shorter and is in PHILUPS: I was reminded by another of my colleagues conformity with the section that immediately precedes it. from the fourth district that when you say “State,” you in clude all the branches of government; therefore, you include TAVARES: May I again add a word of caution that I added the executive. Then he, through his executive orders, could before and I think it’s being forgotten, and that is, it is issue out something, and then there would be a danger here, 571 MAY 24, 1950 • Afternoon Session in my mind, that a governor, being elected, might use this RICHARDS: I would like to ask a question of the chairman to make himself look a little good rather than really for the of the committee as to why this should now read, “The State purposes that we intended it to be provided for. may provide,” instead of following the language of the other sections, “The State shall have the power to provide”? CROSSLEY: I’d like to ask a question of the chairman on this committee. “The State shall be authorized to make AKAU: I think “may” is permissive. There may be a provisions for persons,” does that refer to those mentally time, either ten years hence or sooner than that, when we’ll or physically handicapped? If so, should it be repeated? have no slum areas and no substandard housing, so it gives a - - it doesn’t mean k’s mandatory with the “shall” and the LARSEN: This section is entirely different. The previous “must,” but a permissive thing which is a little bit different one, B, has to do with ill and handicapped. This group has since rehabilitation and substandard housing and that sort to do with those who are unable to live on the level of decency of thing Isn’t exactly like public health or general welfare capable of maintaining health. If we don’t give them care, or that sort of thing. they will undoubtedly slip into B, but we are hoping by these preventive measur•es to prevent them from becoming ill. I BRYAN: I think that the words, “The State shall have the think the two are two entirely different groups of people. power to provide” are equally as permissive as the word That’s our thinking. “may,” and in view of keeping these consistent, I would like to further amend the motion to include that wording. CHAIRMAN: There is an amendment before the house. Are you ready for the question? All those in - - ANTHONY: I accept that amendment. I might point out to the delegate from the fifth district that as amended that WIRTZ: Point of information. I don’t think all the dele is permissive. You compare that with Section A which we gates got the full amendment. Could we have the amendment have already adopted. That is mandatory. Now when you read again, please? say that “The State shall have the power to provide for,” CHAIRMAN: Will Delegate Anthony restate his amendment. then that is simply a direction to the legislature in its dis cretion in the future to provide or not to provide, but the ANTHONY: I’ll read it as it’s proposed to be amended. other is mandatory, Section A. “The State shall have power to provide for persons unable to maintain a standard of living compatible with decency and CHAIRMAN: Delegate Anthony, read the section as health.” amended now. Delegate Heen. CHAIRMAN: You ready for the question? All those in HEEN: I withdraw my motion. favor of the amendment say “aye.” All opposed. The ayes CHAIRMAN: So ordered. have it. The motion is in order to move the passage of this section. HEEN: Amend the section to read as follows: “The State shall have the power to provide for or assist in slum BRYAN: I move that we accept Section 3 in substance as clearance and rehabilitation of substandard areas, including amended. housing for persons of low income.” DOWSON: I second the motion. ROBERTS: Second the motion. CHAIRMAN: Moved and seconded that we accept Section CHAIRMAN: Who seconded that? Delegate Roberts, did 3 in substance. All those in favor indicate by saying “aye.” you second that amendment? All opposed. Passed. Ready to go to Section 4. ROBERTS: Yes. CASTRO: May I ask a question of the chairman of the DOWSON: I move for the adoption of Section 4. Committee on Health, the intent of the words, “assist in”? SAKAKIHARA: Second it. LARSEN: The reason for that was, and we gave it in an CHAIRMAN: Moved and seconded. explanation that we made, the interpretation of “provide for or assist in” would permit the legislature to make appro HEEN: I move that the words “its political subdivisions” priate laws allowing for, for instance, tax Immunity for a be deleted, “and” - - the word “and its political subdivisions” certain number of years to private corporations who may be be deleted. able to help in this work. A good example of this, for TAVARES: I second the motion. The reason for this - - instance, was in New York City when the Metropolitan Life SAKAKIHARA: Point of information. Will the Delegate Insurance Company cleared certain slums and built apartment from the fourth district at large explain the reason of the houses for low rental use available to people of moderate deletion of “its political subdivisions”? income. We believe that this section allows the legislature to pass appropriate enabling acts to cover such assistance. HEEN: If you have that in there, then by leaving that same phrase out from the other provisions, it might be CASTRO: I gather then that the intent is one regarding implied that no political subdivision can deal with health tax exemptions rather than outright grants and participation or other matters. in private enterprise through grants of money. Is that LARSEN: The committee members accepted that amend correct? ment. LARSEN: Could be either, as I read it. TAVARES: A further explanation. By the words “The AKAU: May I ask the gentleman from the fourth district State may provide for” and so forth “slum clearance,” that to - - ask him if he feels that “slum clearance” is not the leaves it open for the State through the legislature to author same as “substandard areas.” If we use the word “sub~ ize the subdivisions to do this. You don’t need to put them standard areas,” isn’t the implication that there are slums? in specifically. The reason I say that is that to some people the word “slums” SAKAKIHARA: I now move that Section 4 as amended be has a very peculiar sound. If this goes to many states in adopted. the Union and people read it, I’m wondering if they are going to feel that Hawaii is full of slums or that sort of thing. I CHAIRMAN: Wait, there’s an amendment before the just raise that question about the word “slums” as being also house. Will you - - the same as “substandard areas.” 572 HEALTH AND WELFARE LARSEN: I believe truth can never be put under the table. LARSEN: I’ll read the whole section. “The State shall I believe when we look at a thing, look it straight in the eye. have the power to conserve and develop objects and places We have slums. Let’s say we have come to the point where of historic and cultural interest and the natural beauty, park we’re going to get rid of them, and we also believe we can public highways and beaches, in the interest of public good assist people in low areas to live more decently and prevent order and sightliness.” “Public sightliness and good order, the development of future slums. I don’t feel that we should yes, that was it. I read it backwards. I’m probably left - - I don’t like the word pussy-foot, but I mean something handed. along that line. KELLERMAN: May I ask a question of Dr. Larsen? SAKAKIHARA: Correct. I wish to second the motion to CHAIRMAN: You may. adopt the amendment proposed by Senator Heen. KELLERMAN: This morning, did you not suggest to CHAIRMAN: It has been seconded. change the word “interest” to “importance”? MAU: I just want a point of information. In the deletion LARSEN: Yes, I did, and if you want to move that amend from this section of the words “political subdivisions,” there ment, why that’s O.K. is no understanding amongst the delegates that cities, even KELLERMAN: I move that amendment. though not mentioned here and even if not directly authorized by the legislature, would be prohibited from taking into the CHAIRMAN: Will you repeat - - field of activities including slum clearance, because all of KELLERMAN: I move to amend the motion made by Dr. the big mainland cities are doing it now. I want a clarifi Larsen. For further amendment, the word “interest” cation on that. appearing on the second line be deleted and in lieu thereof TAVARES: I think if that section stands, it will be up to the word “importance” used. “Historic” - - and it would the rest of the Constitution, in case there is a home rule read “historic and cultural importance” rather than “histork provision that’s broad enough, or else up to the legislature and cultural interest.” by general legislation or specific legislation, depending on CHAIRMAN: I understood the doctor to say that he ac what we decide to do about local government, to provide cepted that amendment. Is that correct? that. I don’t think it prohibits the legislature from allowing counties to do so. In fact, it permits the legislature to do HEEN: I’d like to make this contribution to this discus sion. Just wondering whether or not that section might read that, and unless and until we have laid down a policy of how much home rule we are going to give to the subdivisions, as follows: “The State shall have the power to conserve and which I think is a separate question, I think it would be in develop the natural beauty, historic associations, sightllnes~ advisable to try to decide it here. Otherwise, we’d be and physical good order of the state, and to that end private deciding home rule, it seems to me, through the back door. property shall be subject to reasonable regulation and contro LARSEN: I think that comes from the Model Constitution SAKAKIHARA: I move for the previous question. and the committee discussed that at length. We believe that DELEGATE: I second the motion. I also ask for the the legislature had the power to condemn and so on and so previous question. forth, and, therefore, didn’t need to be stated. After much discussion, we felt that it was better to put the clause which CHAIRMAN: All those in favor of the previous question, Senator Heen has suggested at the end rather than at the signify by saying “aye.” Opposed. beginning. We feel it’s largely a question of wording and All in favor of the amendment signify by saying “aye.” the one that Senator Heen just read is a little bit longer than All opposed. Passed. the one that we have. I think the intent is exactly the same. BRYAN: I move for the adoption of Section 4 in substance HEEN: As it now reads, that section does not extend to as amended. the regulation and control of private property. As I under stand, the idea was to prevent perhaps unsightly billboards CHAIRMAN: Any second? which are placed on private property. It’s not a question SAKAKIHARA: Second it. of eminent domain at all. CHAIRMAN: Second is recognized. All in favor signify LARSEN: Well, again, I would bow to - - if that isn’t the by saying “aye.” All opposed. Passed. meaning, the intent was there and the explantory notes show the intent was there. Our feeling was when “The State shall DOWSON: I move for the adoption of Section 5. have the power to conserve and develop,” that it seems to m IHARA: Second it. that gives the legislature full power, eminent domain or any other of the things that are necessary to control the thing CHAIRMAN: Moved and seconded. we are after. LARSEN: There is a very strong suggestion here of an TAVARES: I think that we can probably save a little time amendment, and the amendment is this. Again coming back if we take another little short recess and let these gentlemen to what’s been argued here that public sightliness and good talk it over among themselves. I move for a short recess order is the intent here, some of our lawyer friends again subject to the call of the Chair. showed if we left it as it was, we would say something like BRYAN: Before we recess, I want to give one thought this, “The State shall have power to conserve and develop out that you might dwell on while you recess, that is, the public highways and beaches.” That was not our intent at “power to conserve and develop . . . public highways and all. Our intent was, and it’s supported by a great deal of beaches in the interest of good order and sightliness,” I interest in this, that “The State shall have the power to don’t think conveys quite the thought. I think there’s a fine conserve and develop objects,” and so on, natural beauty, point. I think that “conserve and develop the order and parks, highways, beaches, in the interest of public good sightliness” should be inserted before the word “public order and sightliness. And I would like to move the amend highways and beaches.” ment, “in the interest of public good order and sightliness.” CHAIRMAN: I suggest that Mr. - - ROBERTS: Second the motion. BRYAN: Does the chairman of the committee get my CHAIRMAN: Delegate Roberts seconds the motion. point? MAY 24, 1950 • Afternoon Session 573 LARSEN: Yes, I think I did. to conserve and develop its natural beauty, objects and places of historic and cultural interest, sightliness and CHAIRMAN: I suggest that Mr. Bryan take that up with physical good order and for that purpose private property the committee during the recess. There’s no second for a shall be subject to reasonable regulation.” recess. SAKAKIHARA: I now second the motion to adopt the BRYAN: I second the motion to recess. amendment. CHAIRMAN: Five minute recess is declared. CHAIRMAN: Moved and seconded. I think the motion by (RECESS) Delegate Bryan was out of order. There is a motion before the house. The Chair so rules. Delegate Heen, you re CHAIRMAN: The committee will come to order. quested the floor? LARSEN: I withdraw my amendment and turn it over to SAKAKIHARA: I now move for the previous question. Senator Heen. DELEGATE: Second it. CHAIRMAN: I recognize Senator Heen. CHAIRMAN: Moved and seconded, the previous question. All those in favor signify by saying “aye.” All opposed. SAKAMHARA: I object. Carried. HEEN: I move that this section be amended to read as All those in favor of the amendment as read, signify by follows: saying “aye.” All opposed. Carried. The State shall have power to conserve and develop BRYAN: I move the - - Is that already pau? its natural beauty, objects and places of historic interest, CHAIRMAN: Yes. sightliness and physical good order, and for that purpose private property shall be subject to reasonable regulation BRYAN: Move the adoption in substance? and control. CHAIRMAN: Yes. Ready for the question? I move the adoption of the amendment. CROSSLEY: I move the adoption of that Section E, I believe it is, or 5, as amended. BRYAN: I suggest that that be printed for each delegate DOWSON: Second the motion. and in the meantime we consider Section 6. CHAIRMAN: Second. You ready for the motion? All LARSEN: Could I ask - - Senator Heen, a moment. those in favor signify by saying “aye.” All opposed. Ayes Senator Heen, would you mind, because it was suggested on have it. Passed. a number [of occasions] and it was shown that it might be We are ready to proceed with Section 6. important, that where you have “historic,” just add the word “historic and cultural interest”? We are thinking of ROBERTS: I’d like to talk to Section 6. There has been things, for instance, like the Academy of Arts, a very some suggestion made that perhaps this section might be marked cultural thing that we might want to assist. left out until all other sections are in, and then have a general statement on the question of the powers of the leg HEEN: I accept the amendment. islature. NIELSEN: I would like to ask Delegate Heen a question. BRYAN: In order that the delegate will not be out of Would that so regulate private property so that the legis order, I’ll move the adoption of Section 6 as written. lature would feel that they had an 0. K. to restrict you as to the type of sign or the size of the sign you put on your ROBERTS: Thank you. I second the motion. The section building? reads: “The enumeration in this article of specified functions shall not be construed as limitations upon the powers of the HEEN: I think it would. State government for the good order, health, safety and NIELSEN: Oh, I think that would be kind of invading general welfare of the people.” private rights, wouldn’t it, of the citizens? HEEN: May I ask the last speaker the question, why was HEEN: Well, if it is invading private rights, the court the word “government” put in there, “powers of the State would hold that invalid. There are things where private government”? Why put in the word “government”? right give way to public interest. ROBERTS: I believe we could eliminate the word “govern ANTHONY: I’d like to answer that further for the bene ment.” fit of the delegate from Hawaii. That if in the public interest, HEEN: I should think so, too. it is to the interests of this community, for instance, that ROBERTS: “Power of the State.” we have no billboards over in Kona; the legislature should pass such a statute; they would point to this section and say, SAKAKIHARA: May I offer an amendment? I desire to “There is an affirmative statement in the Constitution which offer an amendment at this time to delete the word “govern authorizes just this sort of thing.” Of course, it would be ment” and insert in lieu thereof the following: “in providing debated in the legislature whether or nor it was too great an for the good order.” invasion, and if it amounted to an actual taking of the prop CROSSLEY: I’d like to second the motion of the delegate erty, then there would have to be compensation paid. from the fourth district who, as I understand it, moved that ASHFORD: I’m in entire agreement with the gentleman this section be deleted for the time being, and that perhaps from the fourth who has just spoken. The purpose of writ an all inclusive section be drawn at a later date. ing this into the Constitution is to subordinate private pro ROBERTS: Well, perhaps I ought to clarify that. It was perty rights. suggested that that be done. My thought would be that to leave LOPER: I would like to second the motion made by the it in, and then the Style Committee, if that same section delegate from the fifth district that this be printed, but I’d appears in various other parts, may then have one section like to ask that it be read once more before we go on. to cover all of it. I believe the section ought to go in. HEEN: I withdraw my last motion and I now move that CHAIRMAN: The Chair might point out that there is a this section read as follows: “The State shall have power motion before the house and seconded to adopt this section. 574 HEALTH AND WELFARE SAKAKIHARA: I desire at this time to offer an amend In other words, I am fearful that in the enumeration of spe ment to Section 6. In the third line, insert the words “in cific functions we wind up with such a catch-all, apologetic providing.” As I understand, the word “government” has grab bag of power, I feel we are not doing the magnificent been deleted. job we are doing with the detailed attention given the pre CHAIRMAN: There is no second to that. vious sections. So I would want to know from the chairman whether or not - - why he has this section in. DELEGATE: I’ll second that. LARSEN: I assure you all, we are not grabbing power, HEEN: Mr. Chairman. we are not trying to limit function, but my worthy colleague, CHAIRMAN: Delegate Sakakinara has the floor. Dr. Roberts, felt that this was essential, and I’m going to let him explain it. HEEN: Mr. Chairman. ROBERTS: I think we discussed this problem in part SAKAKIHARA: I am very glad to yield the floor to this morning, that whenever you have an attempt made to Senator Heen. spell out and to list certain powers, the implication given CHAIRMAN: Senator Heen. in interpretation is that those powers are limited to those HEEN: I offer this amendment. Delete the word “gov specific areas spelled out. It was a purpose of this last ernment” appearing in the third line of the section, and in section to assure the power of the legislature to act in the sert in lieu thereof the words “to provide,” so that the sec interest of the health and general welfare of the people even tion will read as follows: “The enumeration in this article though in our enumeration of the five articles, we might of specified functions shall not be construed as limitations possibly have left something out which in the future the upon the powers of the State to provide for the good order, legislature may want to act on. It was, therefore, important health, safety and general welfare of the people.” to put a proviso in which would permit the legislature - - which would indicate that the legislature had that power. SAKAKIHARA: I second the motion. Therefore, we have stated that the enumeration in the PORTEIJS: I move that the amendment be further amended previous five sections of specified powers shall not be so that the section will read, “The enumeration in this arti construed as limiting the powers of the State. That was the cle of specified functions shall not be construed as limitation basic purpose. It was not to say that we have five sections upon powerè of the State” period. In my mind when you re and these are the only areas in which the legislature may act. fer to the enumeration in these articles and say that they I would like to, also, while I’m on the floor, to suggest are not to be construed as limitations, I think you’ve done that we retain the language, “for the good order, health the job. You don’t have to go further with descriptive words. and general weifare of the people.” We have no place in the previous five sections mentioned the general - - the DELEGATE: Second the amendment. concept of general welfare, and I believe in a section deal KELLERMAN: I would like to move a further amendment ing with this that we ought to retain the words “general to delete the word “functions” and insert the word “powers.” welfare.” It seems to me each of the sections has referred to a BRYAN: I think the records should show, and possibly it “power.” The word “function” has not been referred to at might clear the question raised by my colleague from the all. fifth district, that this paragraph which actually grants PORTEUS: I will accept that. license refers to this subject alone. Would that clear up your objection? CHAIRMAN: The amendment has been accepted by the movant. A. TRASK: No, it does not, Mr. Chairman, and my colleague from the fifth district. Who is to say what is a HEEN: I accept the amendments which have been pro limitation? Who is to say what is not a limitation? In posed, and with those amendments, my motion would be to other words, we are going into the realm of saying, “Well, amend this section to read, “The enumeration in this arti we have set these various things specifically in a very fine cle of specified powers shall not be construed as limitation manner and we think we have done a good job; but just to upon the powers of the State “period. excuse ourselves, we’re going to throw in this grab bag CHAIRMAN: Does that meet with the approval of those construction as to how it’s to be construed.” I don’t know, who amended? other than the Model Constitution, that such a provision as this is in any other constitution. I don’t remember having SAKAKIHARA: I accept the amendment and I desire at seen one. I know it is in this Model State Constitution, this time to second the motion to amend as proposed by but I am altogether fearful of something in a basic document Senator Heen. which is so indefinite as this. A. TRASK: Will the chairman of this committee explain Now construction. This language is more or less repe why this provision or section was deemed necessary? I ask titious in ordinary legislative work, and laws are drawn up the question because I am just afraid that this type of section with this type of clause and section, but in this Constitution, is just too hazy, indefinite and not specific. The Constitu I think consistent with the work done on the previous sections tion should be an embodiment of specific rights and restraints. I see no reason and cannot go along at all with the thought We have this situation that says it “shall not be construed as that the enumeration of these articles shall not be a restraint limitation. and limitation upon the full powers of the State. You have Now, specifically I have in mind this situation. In the outlined the powers of the State. There is such thing as the Taxation Finance Committee under Chairman White, we powers of the State being restrained, and that is all - - to me have the situation, and it was debated yesterday, that there altogether vital. It is the dignity of the Individual, and I go shall be no specific grants given to any organization in along with the delegate from Kona on the question of private particular reference to sectarian hospitals. That was the property and its limitations by sightliness and orderliness, immediate consideration. Now, you are dealing with a as Judge Heen’s amendment in the previous section provided. question of health in the previous sections; you are dealing We in Hawaii are probably the only jurisdiction under the with the question of slum clearance; you are dealing with gen United States flag which have extended our right to limit eral welfare; you are dealing with safety. Now, to what ex orderliness and sightliness by saying that there shall be a tent and how wide or how brief or how limited or how unlimit ban on signs, like that thing down here on Kapiolani, which ed is the supreme court to consider these previous sections? I think is a positive disgrace, this Kodak. I think it is. 575 MAY 24, 1950 • Afternoon Session We all subscribe to it, but it is not a part of the law. I des, that where it’s possible to do so, that this section will think it’s good that it’s in there, but we can certainly fore be used to cover all such articles? see that it is interfering with the rights of the individual. I ANTHONY: This is a - - this properly would go in the see no historical support for such a section. I see no - - sectionrelating to legislation, legislative powers and func I’m fearful of it because of its indefiniteness, and I think tions, and I believe it will be proper some place at the end our job here is to take something very definite and certainly of that section on the powers granted to the legislature to to restrain the power of the government where that is pos have this particular section which we are now debating, and sible and fair for the general weifare. it should be put in in such a way that it would apply not only ANTHONY: I don’t know whether Delegate Trask was to what is immediately before us but it would apply to public here this morning or not when we discussed this matter. health, labor, industry, education and everything else. We decided to enumerate, or at least tentatively had decided, CROSSLEY: That’s the point of my question and I don’t to enumerate certain recorded advances in the field of public believe that the motion, as it’s so stated, does that. health and general weifare. Now the reason - - the legal r~ason why this last section is put in here— it will probably PORTEUS: May I suggest that the motion does not do that, come at the end of the legislative section of the Constitution— but that we are not in a position to make amendments, or is a matter of law. When you start to enumerate all of the suggest other than matters that are concerned to this pro specific hems, the reason or the result that the courts might posal before us. Therefore, that will be the province of reach, as Mr. Trask as a lawyer knows, that by enumerating the Committee on Style in relating it over to all the other specified fields or areas, the intention of this Convention was sections when they have everything before it. to limit the powers of the legislature. Now presumably, we will have a general grant of legislative power in the legislative KING: It seems to me the explanation made by Delegate section, depositing legislative power to all rightful subjects Roberts at the beginning covered that point, that the sugges of legislation. Now, if we stop right there, the legislature tion that the committee wished to have this approved as a could do anything within the limits of the due process clause. part of its report with the understanding that the Committee Now we start to enumerate these things, and as a matter of on Style would incorporate it in a broader provision that constitutional law, if we don’t have some such section in that, would be applicable to other committee reports. I feel that then you’ll cut down the breadth of your initial grant of legis it would have a rather temporary value until such time as lative power. I think that’s the reason for it, Mr. Trask. other committee reports have been discussed with similar In addition to that, when we get to the actual restraints blanket powers so as not to limit the defined powers of such on the legislature —that will come in the Legislative Powers committee report. and Functions Committee—they will be specific. “The A. TRASK: If that’s the view - - legislature shall not do so and so,” enact no divorces. And CHAIRMAN: I recognize Delegate Doi. then the Bill of Rights, of course, will have specific re straints against State action in favor of individuals. A. TRASK: Oh, I’m sorry. KING: The language is very simple and I think—in ex DOl: I agree with Mr. King here that we should vote on planation to the delegate from the fifth district, Delegate this question here before us because it would be an expres Trask—is merely to safeguard the point raised by Delegate sion of this group here that, insofar as health and public Anthony. And as was explained in the original by Delegate weifare is concerned, we believe that these specific state Roberts, if a similar or stronger provision is incorporated ments of powers do not limit the broad powers on health and in some other committee report, it will replace this and general weifare. Then later, if the Style Committee wants the Committee on Style will be charged with the responsibi to combine that under the legislative powers, I see no lity of merging the two similar provisions. So, there seems reason why the Style Committee cannot do that. Therefore, no objection to adopting this as a further grant in order, to at this time I would like to move for the previous question. safeguard the possibility that the health and public weifare CROSSLEY: Second the motion. grants heretofore mentioned shall be considered as exclusive of any further grants. HEEN: Mr. Chairman. SHIMAMURA: I agree with Delegate Anthony that where CHAIRMAN: No debate on the previous question. there is an enumeration of specific powers, there should be HEEN: In order to clarify the situation - - a reservation of general or other powers, and this is in line with the Federal Constitution where reservation is made CHAIRMAN: You withdraw your second, Mr. Crossley? under the Bill of Rights, at the end there. The previous question has been moved and seconded. HEEN: This particular provision was taken out of the HEEN: Kindly withdraw that motion for a moment. Model Constitution where you find specific powers granted CHAIRMAN: Crossley or Doi. or made in this particular article on public weifare. Now, A. TRASK: Point of information. in an explanatory article on that particular article we find this. CHAIRMAN: Point of information. State the point. The Nebraska Constitution . . . specially authorized A. TRASK: “The enumeration in this article,” the speci certain types of schools and institutions for children fic word is “this article.” From the discussion here made, of a certain age. The State Supreme Court, on the basis what is the meaning of “this article”? Obviously, it means of established standards of constitutional construction, just to this health, weifare and safety situation. Doesn’t said that in the absence of any provision the state would it, Mr. Chairman? have had complete powers and that therefore the provi HEEN: This article deals with the problem of general sion itseif must be construed as forbidding the State to weifare. establish institutions for persons except those within the specified age group. Protection against such a con CHAIRMAN: Senator Heen, I’m afraid you are out of tingency is provided by Section 1007. order. They have not withdrawn their motion and the That is the section that is now being considered. second. CROSSLEY: Do I understand now that the adoption of this HEEN: He asked for a point of information. I gave the section would be on the basis that when we adopt other arti information. 576 HEALTH AND WELFARE CHAIRMAN: I call for the vote at this time on the pre KAUHANE: I think, according to rules of the Convention, vious question. Mr. Crossley has talked too many times. HEEN: If the mover of that motion will withdraw that CHAIRMAN: Your point is out of order. He can speak for a moment, I would like to make a little further amend any number of - - twice on each subject. Delegate Crossley. ment that will clarify the whole situation. CROSSLEY: This is the first time I’ve spoken on this CHAIRMAN: I recognize Delegate Crossley. subject. Inasmuch as it was only a suggestion, I now move CROSSLEY: I’ll withdraw my second. that the Committee of the Whole rise and report progress, and ask leave to sit again. SAKAKIHARA: I withdraw my third. DELEGATE: I second that motion. CHAIRMAN: Delegate Heen. KAUHANE: I rise to point of information. Section 3 of HEEN: As we all know this article deals with the problem the proposal is somewhat left hanging without any qualifying of general welfare, and certain sections have been agreed to statement. If we read Section 3 as amended, “The State dealing with the general subject, general welfare. Now, my shall have the power to provide for persons unable to main motion to amend this particular section is as follows: “The tain the standard of living compatible with decency and enumeration in this article of specified powers shall not be health,” that is what we have agreed upon as to the wording construed as limitations upon the powers of the State to of.Section 3. Now, what are we providing - - provide for the general welfare of the people.” Here you’ve got the whole thing. CROSS LEY: Point of order. ROBERTS: I’ll second that. CHAIRMAN: Point of order. LIJIZ: I would want to ask a few things here for my own CROSSLEY: Section 3 isn’t before this committee at clarific3tion. The word “good order,” if I understand this time. Delegate Garner [Anthony~ right, he said that this would KAUHANE: I’m raising Section 3 on a point of information cover the whole situation. Now, what bothers me is this. and I think I am proper in raising this question on a point of Will this take in or cover the grounds of strike? In other information. words, I would be clarified in this fashion. If the sugar industry should go on strike, can this portion of the Consti CHAIRMAN: I think Section 3 has been passed by the tution stop it from going on strike because it’s in good order Convention and I think you’re out of order at this time. for the welfare of the people? KAUHANE: Having agreed with that, Mr. Chairman, in HEEN: My amendment has left out the term “good order.” the movant’s hurry to move the previous question and the Chair’s ruling, and also recognition of the previous - - the LIJIZ: Was your amendment seconded? movant of the previous question was taken with sincerity HEEN: My amendment was that it’s not to be “construed and cutting out all other debates, those of us who have as limitation upon the powers of the State to provide for the never had the opportunity to answer or give any testimony general welfare of the people.” regarding Section 3 were cut off by the movant and the motion for the previous question. Certainly my rising to a point LTJIZ: Was it seconded? of information would also include the reconsideration of our ROBERTS: Yes, I seconded it. action taken on Section 3, so that we will clarify the matter. As it now stands,, we are not providing anything in Section 3 CHAIRMAN: It was. You ready for the previous ques to take care of the things that you yourself agreed upon tion? I mean, are you ready for the amendment? The that Section 3 is valid. previous question has been withdrawn. You ready for a vote on the amendment? All those in favor signify by say ANTHONY: I believe that is exactly the purpose of - - ing “aye.” All opposed. Carried. one of the purposes of Delegate - - the Secretary’s sugges tion that we have a clean print and vote on this tomorrow. BRYAN: I move for the adoption of Section 6 in substance We can certainly vote for or against any particular section as amended. when we get the full print before us. That’s my understandini WOOLAWAY: Second. KAIJHANE: Well, rather than do that and to expedite CHAIRMAN: Seconded by Delegate Woolaway. All those matters, my only feeling is this, that since much talk is in favor signify by saying “aye.” All opposed. Carried. being made that committee proposals and reports ought to be sumitted by the 26th of the month, and in order to help PORTEUS: I think I was recognized. It’s now six o’clock. get this issue out of the way so that other matters can be At seven thirty there are other committee meetings. There brought up for Committee of the Whole meeting, that if each has been the disposition on the part of some of the members of us look at Section 3 the way we have agreed, Section 3 of this Convention, as expressed to me, that they would like shall be reported out and accepted, and we leave Section 3 to have this article printed and on their desks before taking hanging without providing something. You say that you a final vote. I think there is also to be offered, at least shall “provide for persons unable to maintain a standard there was an announced intention by some of the delegates, of living compatible with decency and health.” Now what to offer other amendments which would make a combination are you providing for them? Some care, some aid, or of all these. In order that we might have everything before some support so that they will be able to live, in the very us, I suggest that we rise, report progress, ask leave to words that you now agree in adopting, the adoption of sit again, and in the meantime, have the article as amended Section 3? printed and placed on their desks. LARSEN: Mr. Chairman. I tried to answer that. DELEGATE: I second the motion. CHAIRMAN: I recognize Delegate King. KAUHANE: Mr. Chairman. KING: The delegate from the fifth district, I think, has CHAIRMAN: I recognize Delegate Crossley. made a point, and although he made it as a point of informa tion, I don’t believe we can go back and clarify it today I K~UHANE: Point of order. would like to suggest that the committee rise and when we CHAIRMAN: State your point of order. have the clean print tomorrow, the delegate from the fifth 577 MAY 25, 1950 • Morning Session district can remake that point. In amending that Section 3, LARSEN: I second the motion. we left it hanging in the air. It says they “shall have power PORTEUS: I now move, or I’m willing to second the to provide” without saying to provide what. Nevertheless, motion. Now, you move now that it be amended. it’s not a matter that I believe we can settle this late in the afternoon. And there was a motion, I believe, that the com LARSEN: All right, I move it be amended to insert the mittee do rise, report progress and request permission to word “assistance.” sit again, and by that time we’ll have clean print. Is that PORTEUS: I second the motion. motion pending? I’d like to second it. CHAIRMAN: You’ve heard the motion; is there any CHAIRMAN: The motion has not been seconded. discussion? All those in favor of the amendment signify by KING: I’ll second it. saying “aye.” All opposed. Motion is carried. CHAIRMAN: I recognize the second. All those in favor NIELSEN: I now move that the word “assistance” be of the motion, signify by saying “aye.” All opposed. inserted after the word “provide.” Carried. CHAIRMAN: That was just carried. NIELSEN: It wasn’t specified where it would be put. MAY 25, 1950 • Morning Session CHAIRMAN: I think it was. The Chair feels that the Doctor stated, “to provide assistance for” indicated where CHAIRMAN: Committee of the Whole will come to order. it was to go. I think we passed on the motion that - - At ease. When the Committee adjourned yesterday, we had BRYAN: I’ll move the adoption in substance of Section 3 approved in substance the several sections of the report on as amended. health and public welfare as contained in Proposal No. - - KAUHANE: So that the records and the motion be well Committee Proposal No. 1. There is called attention to the understood by the delegate who raised the question as to Convention that the first section was in error; and should where the word “assistance” was placed, I humbly request read, “The State shall provide for the protection and pro that we turn to the wire recording to satisfy the gentleman. motion of the public health” period. DELEGATE: I second the motion. I second Mr. Bryan’s BRYAN: In view of the remarks that were made at the motion. close of our Committee of the Whole yesterday, I would like to move that we reconsider our action on Section 3. CHAIRMAN: Mr. Bryan’s motion? LARSEN: I move we table that. CHAIRMAN: The Chair would like to state that - - or ask the delegate whether he intends to make a change in CHAIRMAN: Which motion are you moving is tabled? The substance or a change in wording. only motion before the house, moved and seconded, is Bryan’s motion. BRYAN: I believe it could be interpreted either way. The wording leaves us without any substance as it stands LARSEN: The one that Kauhane moved; I dida’t hear an now, if you want to look at it that way. Actually, what we other one. wish to do is to write in what we intended when we wrote KAUHANE: It wasn’t a motion, it was a suggestion. Section 3 yesterday. Does the Chair feel it would be unneces sary to reconsider our act? CHAIRMAN: The only motion before the house is the motion to approve in substance Section 2 - - LARSEN: I’ve gone over this with Mr. Bryan, and it’s just to clarify it. There was a point that Delegate Kauhane LARSEN: Three. brought up yesterday. It reads such as this: “The State CHAIRMAN: - - Section 3 as amended. All those in shall have the power to provide for persons.” The commit favor signify by saying “aye.” All opposed. The motion tee felt that that was rather all inclusive. is carried. DELEGATE: Point of order. A. TRASK: For clarity’s sake, will the Secretary please read both sections? CHAIRMAN: State the point of order. PORTEUS: May I have the Chief Clerk read it. DELEGATE: There was no second to the motion for reconsideration, so I second the motion. CHAIRMAN: The Chief Clerk read the section as amend ed now. Section 3 as amended. CHAIRMAN: The motion has - - CLERK: Third section as amended reads as follows: LARSEN: Thank you. Oh, I see. Better carry the “Section ______ . Social Security. The State shall have motion; otherwise I can’t go on. power to provide assistance for persons unable to maintain CHAIRMAN: Are you - - a standard of living compatible with decency and health.” LARSEN: I said you’d better carry the motion; other TAVARES: I now move that when this committee rise, it wise I can’t go on. recommend the passage of - - on second reading of Commit CHAIRMAN: All those in favor of the motion as made tee Proposal No. 1 with the amendments which have been and seconded signify by saying “aye.” Opposed. Carried. approved by this Committee of the Whole. LARSEN: It’s an insertion after “provide” of “assistance APOUONA: Will the good Dr. Larsen - - I mean Dele for.” “The State shall have power to provide assistance for gate Larsen move for the approval of Section 5, or anybody persons unable” - - else so I can put in a - - add an amendment to Section 5? HEEN: Point of order. There’s nothing before the com DOl: I second the motion. mittee. CHAIRMAN: Thank you. I think the Chair will rule that CHAIRMAN: That’s correct. a motion fnr reconsideration must be put first. PORTEUS: To get this before everyone then, I now move APOUONA: Then will the good doctor please move for that subsection or Section 3 of this proposal be adopted. that reconsideration? 578 HEALTH AND WELFARE LARSEN: Just to expedite things, could we just go right TAVARES: If the property is public, the government has down through 1, 2, 3, 4, 5, and then it’ll clarify it, because a right to regulate it anyway, so that all you need to do is right now, we’re confused as to what we’re talking about, I to have “private property.” That’s - - I believe that’s think. I am, at least. correct, and for that reason, I don’t believe the motion is BRYAN: I don’t understand the proposed procedure here. well taken. It seems to me that yesterday we amended each one of these APOLIONA: I believe that to be true, and I agree with sections and adopted in substance each section in this proposal. the delegate from the fourth district. But it seems to me There was a correction in Section 1 this morning because of that when your public - - when your property is private, an error in printing. Section 3 has been amended this morn everybody else has something to do with your private pro ing on the reconsideration of our actions yesterday. What perty, but when it becomes a government property, every the reference is to a change in Section 5, I have no idea, but body else is afraid tatouch it. I could see unsightliness in If that’s to be further amended, we should reconsider our lots of government property as far as the buildings and pro actions and make the changes apd then approve that in sub jects is concerned, but why they do not go after thQ govern stance. Then the whole committee proposal will be before ment property, I don’t know, but they pick on the small the house. fellows, they pick on private property. It is my wishes that what is good for private property, whatever regulations CHAIRMAN: That’s correct. Delegate Apoliona was should be made against private property, it should have the attempting to, I believe, add an amendment to Section 5, same effect as against public property. but so far nobody has moved to reconsider It. LYMAN: On the island of Hawaii, you have over in Kona APOLIONA: I understand if I - - believe that I understood one of the ancient heiaus that during the past six months - - the motion yesterday that these different proposals as was so amended and corrected yesterday to be printed, and left DELEGATE: We can’t hear, I’m sorry. before - - and placed before the delegates so that we can LYMAN: - - during the past six months has been used study it. I have studied - - as a rock pile for road building. Eighty per cent of this heiau has been torn up and conveyed to government rock TAVARES: Just to clarify the situation, I withdraw my crushers to be used as road surfacing material. During the motion, and I move to reconsider Section 5 In order that past two weeks, you have read articles on Kalapana Beach, Dr. Apoliona may have a chance to suggest his amendment. whereby the county has used such material for road purposes. DELEGATE: I second the motion. HEEN: I rise to a point of information. I’d like to ask CHAIRMAN: The motion to reconsider Section 5 has the delegate who spoke last whether that heiau is on public been made and seconded. All those in favor please indicate property or private property? by saying “aye.” All opposed. The ayes have it. CHAIRMAN: Delegate Lyman, would you like to answer APOUONA: I have an amendment to offer. the question? CHAIRMAN: I would like to point out to the delegate that LYMAN: That I could not answer, but I may be able to he is out of order. Somebody will have to move the adoption. get that information for you by noon. LAI: I move for the adoption of Section 5. HEEN: If it’s on public property, the legislature has power to prevent any further desecration of that heiau, or APOLIONA: I second the motion. even the Board of Supervisors may enforce some regulation in connection with it. CHAIRMAN: The motion for adoption of Section 5 has been made and seconded. Any discussion? CORBETT: I’d like to say that in our opinion that would be taken care of under the specified mention of the historic APOLIONA: In Section 5 I have the following amendment. monuments that we have in this same section that we are Between - - in the fourth line, between the words “private” discussing. and “property,” insert in their lieu, “and public” and change the word “property” to “properties,” so the section with this NIELSEN: I don’t think that this is in order, that we amendment shall read as follows: “The State shall have should regulate private property. It violates the Constitution power to conserve and develop its natural beauty, objects of the United States, and I don’t think we should start our and places of historic and cultural Interest, sightliness and Constitution in this manner. And furthermore, I’ve never physical good order, and for that purpose, private and heard a satisfactory definition to the word “reasonable.” public properties shall be subject to reasonable regulation.” “Reasonable” can be whatever the legislature wants to make it, and we’re simply mandating the legislature by this, that CHAIRMAN: I recognize Delegate Tavares. private interest can lobby bills through and directly violate TAVARES: There’s been no second to that - - the Constitution of the United States. CHAIRMAN: Correct. TAVARES: I hope my friend, the delegate from the fourth district, will forgive me if I, in order to bring this to a TAVARES: - - but in deference to the movant, I would head because of shortness of time, if I move to table his like to explain what I believe would indicate no necessity amendment. I so move. for that amendment. If it’s public property - - DELEGATE: Second it. KAUHANE: Point of order. CHAIRMAN: Motion to table the amendment has been CHAIRMAN: State the point of order. made and seconded. All those - - KAUHANE: If the motion is not seconded, there is NIELSEN: What is the amendment? nothing before the house, so - - CHAIRMAN: The amendment is to insert after the word CHAIRMAN: That’s correct. “private” and before the word “property,” “and public”— KAUHANE: In order to allow the delegate from the “and public properties.” There has been a motion made and fourth district an opportunity to explain his stand, I second seconded to table the amendment. All those in favor signify the motion. by saying “aye.” All opposed. Carried. CHAIRMAN: I recognize Delegate Tavares. DELEGATE: The noes carried. 579 MAY 25, 1950 • Morning Session CHAIRMAN: The motion before the - - CHAIRMAN: I believe that that will have to be - - TAVARES: I now move that when this committee rise - - SILVA: I couldn’t get the Secretary’s motion. It’s quite a long one. I prefer to have Mr. Crossley renew his motion CHAIRMAN: I think there’s a motion before the house in less words. Do you mind renewing your motion? now that has to be passed on before - - PORTEUS: Well, the advantage that I might point out of TAVARES: Oh, yes. Well, then I think there is a motion. making it In the long way, is you finally get everybody so I will move again. I move that Section 5 be adopted. confused, before long - - CROSSLEY: As amended. CHAIRMAN: Delegate Silva has the floor. CHAIRMAN: In substance. SILVA: I made that request and I hope the Chair will TAVARES: Yes, in the original form prior to the recent recognize Mr. Crossley so that he can renew his motion motion. in less words, please. PORTEUS: Point of order. The maker of the motion CHAIRMAN: Is there a second to that motion? does not yield on that matter. Thank you, Senator. DELEGATE: Second the motion. TAVARES: I move the previous question. CHAIRMAN: All those in favor of this motion, please signify by saying “aye.” All opposed. Motion is carried. CHAIRMAN: The question before the house - - DELEGATE: I second the motion. TAVARES: I now move that when this Committee of the Whole arises, it report recommending the passage on PORTEUS: The motion is that the Committee of the second reading of Committee Proposal No. 1, Redraft 1, Whole rise - - as amended. NIELSEN: Point of order. That was moved for the SMITH: I second that motion. previous question. CHAIRMAN: The motion is made and seconded. Is CHAIRMAN: Point of order? there any discussion? All in favor of the motion, please PORTEUS: The motion has not been made, nor has it signify by saying “aye.” All opposed. The motion is carried. been seconded. Until seconded, the motion is not - - CROSSLEY: I move that we now rise and report the CHAIRMAN: There’s been no second to the original findings of this committee. motion, so the motion for the previous question is out of CHAIRMAN: Any second to the motion? order. PORTEUS: I wonder whether this procedure would be PORTEUS: The question is as to what is before the satisfactory to the Committee of the Whole. I think it com house. The motion is, that this procedure be followed: the bines all these various ideas. That is, that when the com committee rise, report progress, recommend that as we mittee rise, that it ask leave of the Convention to present have adopted this proposal, that it be recommended for a written report the following day, tomorrow, because under passage; that the chairman of this committee be authorized our rules amendments have to be placed in writing. There to request the Convention for leave to make his report in fore, I think we have to give the chairman of the Committee writing on Friday; that at that time, in making his report of the Whole time in which to put this in proper form in in writing, he also recommend that the report of the Com writing and present it as an amendment. Then, at the time mittee on Health and Public Welfare be accepted and placed that he presents that, he can ask leave to, at a later time, on file. present a more complete report from the Committee of the DELEGATE: Second the motion. Whole. That is to say, he’ll place this in writing for to HEEN: I would make this suggestion, that when the com morrow, recommending passage, but then, for giving all mittee rises and reports upon this committee proposal, that the reasons, we could wait until next week and gain a little - - and makes the recommendation for the approval of the time within which to prepare it. proposal upon second reading, that action be deferred upon At the same time, I think it’s also necessary, since that report, the whole report, until the written report is there was referred to this Committee of the Whole the filed, so that all of the members of the Convention may report of the Committee on Health and Public Welfare, have the opportunity to see what is in that written report, that it would also be well for us to recommend to the Con and I so move. vention as a whole in that report that the report of the Committee on Health and Public Welfare be accepted and CHAIRMAN: There’s a motion before the house duly placed on file. If that is satisfactory, I’ll so move. made and seconded, I believe. CROSSLEY: I’ll second that. I was just trying to say PORTEUS: I think the suggestion that was made by it in a few hundred less words. the senator Is well taken. I think that that motion is in order, however, once we resolve ourselves back into CHAIRMAN: The motion is made and seconded. Convention. LARSEN: Before that’s passed, we had a subsequent CHAIRMAN: Question? You ready for the question? sheet here that made corrections in spelling, punctuation All in favor of the motion as made by Delegate Porteus and insertion of words to clarify, and if there are no objec signify by saying “aye.” All opposed. Motion is carried. tions, our report will contain those few additions. Committee of the Whole will now adjourn. Debates in Committee of the Whole on EDUCATION (Article IX) Chairman: YASUTAKA FUKUSHIMA June 16, 1950 • Afternoon Session the process of answering questions which may be raised in connection with Committee Proposal No. 9. At the outset CHAIRMAN: Will the Committee of the Whole please the Education Committee had a number of matters to come to order? consider on which there was little or no disagreement with We have for consideration this afternoon in this commit in the committee. For example, there was no serious effort tee Standing Committee Report No. 52 and Committee or none at all, I think, made to divide the present single, Proposal No. 11, relating to education. I shall now call centralized school system up into county school systems. upon Delegate Loper, the chairman of the Committee on We were unanimous in our support of a continuation of the Education, to briefly outline the procedure for this afternoon. present centralized control of the school system. However, there was a sharp difference of opinion on the LOPER: I would like to make my preliminary remarks question of the election of school board members versus the very brief, but would ask permission before considering - - appointment of school board members, and the minority has taking up of the various sections one by one of Committee considerable argument on their side of that question. That Proposal No. 11 to read the committee proposal through. question was resolved within the committee in accordance I can assure you that that can be done in a minute and a half with the proposal in Section 2. because I have just done it in less than that time. There There was also a difference of opinion within the commit are certain major matters to be called to the attention of tee on the question of dual control of school buildings. As the Convention, some of which were controversial in the the delegates know, the territorial school system is operated committee, which will be mentioned after the reading, but in buildings that are constructed by the counties and main I think it will be to our advantage to have before us the pro tained by the counties and that has been referred to as dual visions of not just one section at a time but all of the sections. control. If you will turn to Committee Proposal No. 11, submitted So that the issues that took a lot of our time in attempting by the Education Committee, you will find that there are five to come to the final point of being willing to sign this report, sections on two pages and that the first one reads as follows: and I call your attention to the fact that all members of the The State shall provide for the establishment, support committee have signed it although some did not concur in and control of a state-wide system of free, non-sectarian certain respects, were spent largely on those controversial public schools, a state university, public libraries, and matters and were resolved as indicated. such other educational institutions as may be deemed Now coming back then to Section 1, I would like to explain desirable, including all physical facilities theref or. There that the language in the fifth line, “including all physical shall -be no segregation in the public educational institu facilities therefor,” might appear to the casual reader as tions of this state because of race, color, or creed; nor being unnecessary, because if you say that “the State shall shall public funds be appropriated for the support or provide” for a school system it might be assumed without benefit of any sectarian, denominational or private educa saying that it should include all physical facilities therefor. tional institution. However, the inclusion of those five words is deliberate and Section 2. There shall be a board of education to be it appears in Section 1 instead of Section 2 in order to leave appointed by the governor, by and with the consent of the to the legislature the question of settling this matter of dual Senate, from a panel nominated by local school advisory control. committees to be established by law. I would wish to call your attention, also, to the fact that Section 3. The board of education shall be empowered many things that might appear in this Committee Proposal to establish policy and to exercise full control over the No. 11 have been left to the legislature and have been public school system through its executive officer, the mentioned in our report. For example, we haven’t said superintendent of public instruction, who shall be appoint how many members there should be on the board of education ed by the board and shall be ex officio a voting member or the board of regents. We haven’t said how many should thereof. come from each district, how their terms of office should - - how long their terms should be, that they should be Section 4. There shall be a board, to be known as the “Board of Regents of the University of Hawaii,” to be overlapping terms, and so forth. We have left a great deal appointed by the governor, by and with the consent of the of the material that was discussed in the Education Commit Senate. The president of the university and the superin tee to the legislature, and for that reason we do have a tendent of public instruction shall be ex officio voting relatively short committee proposal. However, we have members of the board. stated in our report, the first few pages of Standing Commit Section 5. The board of regents shall be empowered tee Report No. 52, the point of view of the Education Com to establish policy and to exerCise full control over the mittee on the matter of a separate article on education and University of Hawaii through its executive officer, the in support of a committee proposal at least this long, com president of the university, who shall be appointed by the posed of five sections. We are quite aware that H. R. 49 board. The board of regents of the University of Hawaii requires that provision shall be made for education and that shall constitute a body corporate and shall have title in possibly Section 1 of our committee proposal meets that fee simple to all of the lands of the university. requirement. However, it was the feeling of the committee that we should go a little further than that and to ask that The accompanying committee report is No. 52, and I we include in the Constitution the thinking of the people of believe we will save time if we refer to that report only in Hawaii on their public schools as of 1950. I would ask also 580 JUNE 16, 1950 • Afternoon Session 581 that as questions are raised, we be permitted to call on ASHFORD: I would like to express my opinion on the various members of the Education Committee who are matter of “free” not being applied to the university. Anyone specially prepared to speak on one or another of the sections. who has been around the legislative halls has seen the diffi In order to open the discussion, then, to delegates, I culty in finding money for all the functions of government, would move the adoption of Section 1 of Committee Proposal and if the university were wholly free, in the sense that no No. 11. tuition could ever be charged, I think the result would be that we simply couldn’t find enough money to run it as we J. TRAffiC: I second the motion. wish it to be run, and that it is solely for the benefit of the CHAIRMAN: It’s been moved and seconded that Section 1 students that the additional fees are charged. of Committee Proposal No. 11 be adopted. Ready for the WHITE: I question the inclusion of that phrase reading question? “all physical assets [sici therefor,” because it seems to me KAWAHARA: In signing the report and then signing the that that is a mandate to the legislature that they have to proppsal, I stated that I did not concur with Section 1. No provide all physical facilities. There is no qualification reason was stated. I would like to state my reasons now. there at all as to whether or not it’s a matter of judgment As I read the article, I get the inference that a free system, as to whether - - what facilities should be provided. And I a free educational system shall be guaranteed in the first also question the part of the section after the semicolon, instance up to the word “public schools”; and after “public “nor shall public funds be appropriated.” I don’t think that schools,” it seems to me the words “state university,” that belongs in this section because that’s contrary to the the words “public libraries,” that is, the word “free” does policy of public funds anyway. not include those words, a “state university,” “public libraries.” In other words, in reading that section I get YAMAMOTO: Being one of the members of the Education the idea that the common schools are free but the university Committee, I did not concur on this first section but I would is not free, and the public libraries are not free. In making like to ask the Chairman, Delegate Loper, to clarify “all phy the objection, I wanted a clarification on that point. I did sical faculties therefor.” I would like to put up this ques not get a satisfactory answer in the committee; for that tion because on the island of Hawaii the biggest problem is reason I objected. transportation and that transportation expense covers one- Furthermore, as we read along down to the section which third of the appropriation for the school department. Now, reads, “including all physical facilities therefor,” the if this committee particularly could clarify this “physical question of dual control comes in. Most of us were in favor facilities therefor,” does it include this matter? of a state-wide system of education. However, it was felt LOPER: In answer to the last speaker, it would seem by many of us that as to the details of handling and adminis to me that a school bus might be regarded as physical fad tering the educational system or the school system, that the lilies for public education. It might, on the other hand, be counties should have some participation in that matter. For regarded as a service to be hired or let out on contract. that reason some of us did not concur in that section. As a matter of fact, where transportation is provided at CHAIRMAN: Would the chairman of the Education Com public expense, it comes out of this special school fund which mitteewish to comment on what Delegate Kawahara just is managed by the counties. stated? In further comment on the previous speaker, “including all physical facilities,” you took exception, Delegate White, LOPER: I think it would be proper to restate here the to the word “all.” Do you mean that some of the physical answer, as I recall it, given in the committee to the use facilities should be provided by some other agency, other of the word “free” and then if there are others that can than the state? supplement these remarks, please do so. As I read the sentence, “a state-wide system of free, WHITE: No, I don’t mean that, but I do mean that you non-sectarian public schools,” it is true that the word say “all physical facilities.” There may be a question as “free” applies to the public schools, not beyond the comma to when faculties can go in. For instance, if you have a after “schools.” The paragraph does not say whether the high school, you might have an auditorium in one place. state university and the public libraries are free or not. Now does that make it mandatory on the legislature to provide We also noted in our discussion and study of this matter comparable facilities at each school? That’s a very broad that the word “free” may have two meanings. Free, his term, “including all physical facilities.” I don’t think It torically, at one time meant open to all; it has come recent adds anything to the paragraph as long as you are leaving it ly to mean tax-supported. I think that it is the opinion of the to the discretion of the legislature to provide it. I think committee, the majority of the committee, that it probably that that part of the sentence is better left off. belongs in that phrase modifying public schools and does not necessarily lead to confusion concerning the state uni LOPER: Well, as I explained at the outset, the reason versity and public libraries. for including them, these words, is related to the matter of On the matter of including “all physical facilities there- dual control, and I would like to ask the chairman to recog for,” if that appeared in the second section, it would be nize Delegate Kellerman on that point, but before doing so, deciding the question of dual control one way. It would be I’d like to speak further to Delegate White’s question con to eliminate dual control and place the full responsibility cerning the last part of the section, “nor shall public funds with the board of education. By putting it in the first section, be appropriated for the support or benefit of any sectarian, which is a mandate to the State to provide, it leaves it to the denominational or private educational institution.” We very legislature to deal with that problem and to delegate respon carefully said “educational institution” to get around the sibility for the physical facilities to the board of education question of hospitals and I would want to know whether you or to the counties, or to study and modify the present divi were arguing support for funds for private educational insti sion of responsibility there in one way or another. tutions. CHAIRMAN: Does that answer your question satisfactorily? WHITE: Well, they are prohibited anyway under the Constitution, so that I say it’s just superfluous to have it in KAWAHARA: Then by inference I get it that a state uni here. versity is not free. In other words, a citizen is not free to LOPER: You mean it’s unnecessary here? enter a state university as provided by this Constitution. I may be wrong on that. WHITE: YEs. 582 EDUCATION CHAIRMAN: Does Delegate Kellerman wish to be recog mittee Report 52 on page 2. “Provisions for establishment nized? and maintenance of a system of public schools which shall KELLERMAN: I would like to speak with reference to be open to all the children of the state.” It was our concern the phrase “including all physical facilities ther.efor.” In that the present program of the public schools includes the first place, it does not say “including all necessary adult education, and there’s a rapidly growing demand for facilities” or “including all adequate facilities,” it is not that and it is one of the newer aspects of the public school a mandate on the State to provide facilities, more at one system dating about five or six years ago. For that reason school than another or any that it cannot afford to provide. we didn’t use the word “children” in our statement. I think that’s only part of your question, Delegate Anthony. What It’s simply a statement of all those that there are now, or at any time belonging to the school system, or used in was the other part? the course of education, shall be considered a part of the HEEN: Another question I would like to ask, that in the state-wide system of the public schools. It is not a mandate system of adult education that you have now, do you charge on the legislature to provide any degree of facilities. There’s fees against these adults? no standard set as to how much has to be provided and that was certainly not the intention of the committee in writing LOPER: Yes. It’s supported in part by appropriations that in there. But it was my understanding that the phrase and in part by tuition fees. “all facilities” included those that at any one time are used HEEN: Then, is it intended that no charge shall be in the course of the public school system, which would in made hereafter against these adults, under the language clude the buses that are used in transportation for children used here? to public schools on the island of Hawaii. That’s why the term “all physical facilities” was used rather than “state LOPER: No, it is not. buildings and grounds,” which would by inference eliminate HEEN: Well, then you’ve got the word “free” in the the question of the buses, or would not cover the question wrong place. of buses used as transportion for public school children. HOLROYDE: I’d like to ask Delegate Kellerman whether The reason for writing it into the Constitution is this. this phrase, “including all physical facilities therefor,” is We have under Section 56 of the Organic Act simply a pro actually a mandate to eliminate the dual system or whether vision that the legislature shall establish such counties and it’ s a restatement of the philosophy that there should be other political subdivisions as it shall deem or desire and no dual control? give it such responsibilities and duties. It has been the practice for the last 19 years, or 18 years, for the counties KELLERMAN: As I see it, it is a restatement of the to draw up their own school budget and to prepare the re philosophy of State responsibility. The State has the author quests to the legislature for school buildings which they have ity to delegate such part of it as it sees fit, I gather under not felt able to finance out of their own school or county this language, “The State shall provide for.” But by provid funds. We have a system whereby the department of edu ing for, it can provide by the delegation of that. You have cation, as a State agency, is responsible for the teaching, the same language under the present Organic Act that the the curriculum and the school supplies. The county is State shall provide for a system of free public education, primarily responsible for the buildings, the grounds, the and under the language of the Organic Act, certain respon financing thereof, their maintenance and upkeep. The re sibility has been delegated to the counties, to take care sult is that under four different counties, we have four of the buildings. But we felt that the time was ripe to have entirely different standards of school construction, standards a restatement of the concept of State responsibility for all of facilities offered. phases of the school system because a contrary thinking has The reason for writing this into the Constitution was in a grown up in the community because of the fact of the dual sense a restatement of the basic responsbility of the State exercise of responsibility over the last 18 or 19 years. which it has at the moment delegated; a restatement of the I understand from our senior representative from Maui responsibility in the State to provide all phases of the school who was in the legislature in 1931 that up until that time system; at least a responsibility for how it is being provided, all state school budgets were prepared in the legislature. rather than the sense of dual responsibility which has grown It was not a matter of dual control, and buildings were up in our community. Had there been no such dual respon approved from the legislature first. They did not come sibility I would agree that there would be no reason for up as a matter of initiative or requests from the counties. writing this in, because it is a restatement of law, a state But since that time, after the system of mandated funds ment of the actual responsibility of the State. But it is in has grown up, there has also grown up this concept of a sense to counteract the concept of the existing practice, county responsibility from a legal standpoint, to the extent because dual responsibility in the opinion of many of us who that in the City and County of Honolulu in the last three or have been deeply involved in the last few years in studying four years, the City and County has been buying the land our school building picture, dual responsibility has resulted and taking title in the name of the City and County of Hono in a great many disadvantages and inequalities of opportuni lulu to school buildings, grounds, and presumably to the ties to the children of the territory. buildings erected on them in the sense of legal ownership ANTHONY: I’d like to ask a question of the chairman of and responsibility. Thus it was the intent to bring back the committee. The language of H. R. 49, the latest com into the forefront the sense of the state-wide responsibility mittee print, page 9, says that the Constitution shall contain and support and control of those schools. I gather it can provisions “for the establishment and maintenance of a sys delegate it if it sees fit. tem of public schools, which shall be open to all the children WHITE: May I ask Miss Kellerman another question, of said state and free from sectarian control.” I’d like to and that is, if she’s trying to get responsibility into the know why the departure from that, and why the use of the board of education as against the City and County, then word “free” in the place that it appears in the proposal has wouldn’t that be better covered under Section 2 and referred been incorporated. to as responsibility for the construction and maintenance of CHAIRMAN: Delegate Loper, will you answer that ques facilities, rather than to put it under Section 1 where you tion, please? are mandating the legislature? LOPER: I’m not sure that I understood your question. WIST: I think it belongs in Section 1 because in Section 1 I have the language of H.R. 49. It’s in our Standing Com we are stating a principle, namely that the State as a state 583 JUNE 16, 1950 • Afternoon Session shall provide these particular educational provisions. Now, so far as Maui was concerned, we built for instance, Paia we are stating that this responsibility for education shall School, Wailuku School, Puunene School, Kahulul School, include responsibility on a state-wide basis for the physical Kam III School, and all those schools were provided. Funds facilities. We’re not saying that the State shall or shall not were provided by the legislature. And they were in turn, delegate these responsibilities to one group, mainly the they were used by the county. They were used by the county board of education, or to the other group, namely the but the program was set by the legislature, and I think where counties. We’re leaving that for legislative consideration the funds were provided, there were more than adequate and action, but we are recognizing here a principle, name funds at that time provided, and we had a continuing program. ly, that the State is the responsible agency, we the people, If in those days we had left it to the county, they wouldn’t for providing a system of public education, including the have gone anywhere. And this is just returning to the days physical facilities thereof. Now, there is one thing that when we, in the legislature, provided the funds and set up we might do here to resolve part of this issue and that is the program so that we wouldn’t build these gymnasiums or to delete the word “all” and include the word “the.” Then, auditoriums If the ordinary facilities were not provided for. you’d have “including the physical facilities thereof,” I happened to go back to Lahalnaluna last week and they instead of “all physical facilities thereof,” and that might had an auditorium and gymnasium there that was quite clarify this issue a little bit. adequate for the school that only cost them $17,000. I wish you could all view that. It was made possible by the funds KELLERMAN: In answering Mr. White’s suggestion provided by the legislature. that we put it on the board of education: as to my personal You know nowadays we provide a lot of funds for the opinion, I frankly would like to have it there, with the counties to do with what they will under the gross income study that I have made of the question. But with deference tax. It’s no more than fair that we should have a state-wide to other members of the committee and the fact that we felt system of education where all the facilities were carried the legislature more able to go into all angles of the matter, on on a state-wide basis, not giving more than they should and there are various angles of the matter, we were willing, to any particular county but seeing that every county was as agreement among the members of the committee, to carefully provided for. I think you can do this better on a leave this to the legislature to make a final determination state-wide proposition than you can on a county basis. It’s as to certain delegation. You will find in the committee re just returning to the system we had prior to 1931. We have port that it has been so written that it recommends a cer tried this new system and I think it falls down in the fact tain degree of delegation, the delegation of the maintenance that some places you have requests for auditoriums and and the care of structures utilizing county facilities, for gymnasiums when in other parts of the territory you don’t various reasons, which I think are quite sound, which are have the actual necessary facilities. set forth therein. The State should be closer in touch with federal funds But that is my answer to Mr. White’s question. If it to take advantage of federal funds. A 1~t of people criticize were a matter of my own personal opinion, I would have it the amount expended for Baldwin High School on Maui, but a direct mandate that it be under State control. But I think when you think that we got $650,000 free federal money be the report makes clear the general feeling of the committee cause we took advantage of federal funds, that means a lot and that we at least have concurred. to the community. You have to, in the matter of education MAU: I want some information if I can get it. I under and facilities, study the needs of the future. You can’t wait. stood that representatives of the City and County government If we waited to build the high school three or four years appeared before the Education Committee to state their views. later, we couldn’t have provided the facilities for the people I’m wondering whether or not this is not true, that the legis in central Maui. It was looking ahead that did it, and I for lature in its biennial sessions places certain mandates upon one am very keen for this same system. Delegate Mau, the the City and County government—I don’t know about the other City and County should use those funds. Separate funds counties —to make certain expenditures on the facilities for should be provided by the territory for specific purposes education under the control of the City and County govern and a program lined up that will take care of all the territory. ment, and that, more often than not, the City and County MAU: I want to say that I’m in favor of a state-wide sys government is called upon by the board of education to tem of education. I’ m just calling attention to the present spend more than the mandate set up by the legislature. method of handling facilities for the school children, that Is that a fact? the schools have benefited greatly under the county regime CHAIRMAN: Delegate Loper, would you care to answer because it spent many more millions of dollars than have that? been called for under the legislative mandate. However, if the report—as looking at It you find the place in which it is LOPER: That is correct. The mandate stands at about so stated, as one of the speakers has said—recommends $950, 000 and the City and County spends about a million certain delegations to the county government, it may meet dollars a year more than that. There was a time, however, with the approval of the county officials. However, I state not so many years ago when the schools couldn’t get an again that I am in favor of the system of state-wide education, extra dollar without taking it from the fire department, the but it seems to me that the division of authority doesn’t rest police department or the roads. in the method of teaching or the real system of state educa MAU: My next question would be this. Those who support tion, it only goes to the facilities that are set up for the the state-wide theory, including the furnishing of facilities system. for the schools, if they really felt that the school department ANTHONY: I wanted to address myself to the question of or the school children would benefit more greatly through the the word “free,” but the debate has gone on to the next existing system, why do they ask that the legislature, which sentence and I will hold my peace until this is settled. has not placed enough money for school facilities, then to take away that power now from the various county govern KAUHANE: I feel that the State should provide for the ments, because they will have to call upon the county govern education of its children of the citizens of this state. In ments to assist them in the way of funds? providing such education, I feel that the State should pro H. RICE: In 1919 through to ‘31 every legislature pro vide for free basic textbooks. The State should also pro vided funds for new buildings, for maintenance, repairs and vide, if transportation Is provided for children attending provided for additional grounds and so forth. We set a public schools, that such transportation shall be provided program of work throughout the territory, and under this, for children attending sectarian or private schools. I be- 584 EDUCATION lieve also that those parents who send their children to the State shall provide for the schools including physical private schools are taking away from the State some of facilities. It doesn’t say the State shall control the physical the provisions by which the State should provide education facilities. The conflict, if any, comes in the second para for the children by establishment of private séhools. Cer graph where it gives - - or third paragraph where it gives tainly the educational system, the State should provide such, the board of education full control over the system. Now, then all accommodations should be made for parents who it depends on whether you include in your system the build are taxpayers and citizens of the state whose children attend ings or just the educational program and personnel. private schools. They should be compensated or some just return for their tax money that they pay to the public school HEEN: Mr. Chairman. educational system. They should be considered when they CHAIRMAN: Are you completed, Delegate Shimamura? make requests for the use of public school buildings. For instance, just recently St. Louis College, a private SHIMAMURA: Well I’ll yield for a moment to the dele school under the control of the Brothers of Mary, made an gate from the fourth district. I’d like to be recognized again. attempt to secure the McKinley High School auditorium for HEEN: I’d like to find out from the chairman of the graduation for the 1950 class. Because McKinley High committee what was intended when the word “free” was School had a graduation exercise which was to be held inserted in this sentence—free of charge or free from non on Sunday and the St. Louis College wanted to use it on sectarian [sic] control, or what? Saturday, it was impossible for them to secure the use of that auditorium. Yet, those graduates whose parents WIST: I’d like to answer that. I thiak that this word “free’ are taxpayers of the Territory of Hawaii have contributed to has become sort of standardized; we’re thinking of free public the public school system, the education system, and yet are schooling for our children. However, since public education being deprived of the use of public school buildings, even if has been extending itself into the level of adulthood, perhaps it’s for gratis. we could resolve this, and I would like to suggest that we do I bring you also the fact that they are assessed certain resolve it by stating “The State shall provide for the es fees by the public school system. I feel, Mr. Chairman, tablishment, support and control of a state-wide system of that there is some merit to requests that public aid out of public schools free from sectarian control.” public money be given to sectarian schools or private HEEN: Well, of course, that means free from that type schools. of control, but still it’s not free of charge so far as the We have before the Congress of the United States a leg children are concerned. islation requesting federal aid for the educational system. And what is holding that bill up? The fact that the Congress WOOLAWAY: I’d like to - - cannot agree to include such aids and benefits to sectarian CHAIRMAN: Just a moment. Delegate Wist, would you schools. That piece of legislation, which is much needed care to answer that question? for the Territory of Hawaii and other states who seek federal WIST: Yes. What I was trying to say was that the con aid for educational system is being held up in the Congress. cept of education free of charge to children at the support We must pay attention to the aid of those schools where of taxpayers has become so universally accepted that I the citizens contribute to the educational system in the way don’t think it’s a serious issue. of taxes in helping provide the public school system. I feel, therefore, Mr. Chairman, that any facilities, HEEN: Then if the language is changed as suggested by physical facilities that may be accorded to the public school the last speaker, then it would leave it up to the legislature system should as well be accorded to the private schools or to say whether or not there shall be any charge, tuition fees, sectarian schools. I feel, also, that the committee should book fees, and so forth and so on. Is that correct? take into consideration some means or some possible means WIST: That is correct. It’s inconceivable to me, how to include such aid to sectarian and private schools. ever, that a legislature would ever charge tuition of children AKAU: I’d like to speak just very briefly in opposition attending public school. to what the delegate from the fifth district has just said. I’d like to speak in favor of “nor shall the public funds be HEEN: I’m in agreement with you there. Then, I think appropriated for the support or benefit of any sectarian, that that should be the amendment, as suggested by the last denominational” school. Not primarily because I believe in speaker. “A state-wide system of public schools free from the separation of church and the state but for the very simple sectarian control”; and then we might as well go on and reason that those people who send their children to either make a further amendment by cutting out the word “all” be parochial schools or private schools send their children there fore the word “physical.” Just cut the word out, “all” out because they wish to send their children there. That is, it and then you’ve got it. i so move. I move that the first is a personal choice. By making a personal choice, sending sentence be amended by deleting the words “free, non-sec their children to private schools and having to pay tuition tarian” appearing in the third line and adding after the word and what goes with it, it is the prerogative of those people “schools,” before the comma, the words “free from sectarian to do as they wish; and therefore, when they make the de control.” mand or ask that these public funds shall be extended to CHAIRMAN: All right. private schools, I thiak they’re quite out of step. HEEN: Insert that before the comma, and delete the SHIMAMURA: May I seek clarification on one point that word “all” after the word “including” in line 5. seems somewhat indefinite? As I read Section 1, which provides for a state-wide system of public education, includ CHAIRMAN: Deleting what, Delegate Heen? ing State control of public facilities, and also read Section 3, HEEN: The word “all,” just the word “all.” which delegates to the board of education the function of for mulation of policy and full control of the public school system, WIST: I second the motion. it is fairly construable that the board of education under these CHAIRMAN: It’s been moved and seconded that the first two sections shall have the control of the facilities of public sentence of Section 1 be amended by deleting “free non education. I’d like to have that point clarified by the com sectarian” appearing in the third line and inserting after mittee. “schools” and before the comma “free from sectarian con LOPER: The speaker has a point. However, I should trol,” and also deleting the word “all” appearing in the fifth call his attention to the fact that the first section says that line of the first sentence. JUNE 16, 1950 • Afternoon Session 585 KAWAHARA: I’d like to speak again in reference to the groups of individuals, organizations, who are fighting the statement of the word “free.” When I made my remarks in passage of such free basic textbooks. Certainly, as I said, regard to that word, “free,” I did not have any serious that if the educational system is to be free, the public objection to incidental fees charged by the university or school system is to be free, then the State should make it incidental fees charged by the various public libraries. I free by providing that the basic textbooks for children was speaking in reference to what is stated on page 2 of the attending public schools should be free. Why should we Standing Committee Report No. 52 in which there is a state charge them? ment as follows—as already stated by the delegate from the Todgy we have charged those children - - we have collect fourth district, Delegate Anthony—that “provisions shall be ed from those children attending public schools a textbook made for the establishment and maintenance of a system of rental fee. We have been collecting that sum of money for public schools, which shall be open to all.” If the schools a period of the past 20 years, and what is the ultimate re - - public schools shall be open to all children, why shouldn’t sult? For a classroom of 30 children, each child has been a state university be open to all who are interested in going assessed a book rental fee. If the child has failed to pay, to the university even if they do have to pay incidental fees? the parents have been forced to pay. And what has been the And that is the point I’ve been wanting to be cleared. I don’t ultimate result in a free public school education system that understand. If it’s free for the children to go to public we have today? We read inthe Record, although the Record schools, why shouldn’t it be open, likewise, free for young is considered a subversive newspaper, and yet we find people to go to the state university? glaring headlines that reads a graduate is not given his diploma because he has failed to pay some fees that are ANTHONY: I thiak a proper interpretation of the section asked of him by the school which he’s graduating from, a as amended would make all the public schools and the uni sum of $20 and he is being deprived of the right of securing versity open to all students of this territory. It would sim his diploma. U that is a means of stopping a boy from getting ply remove any doubt that the university and the public his free education, then I say all fees that are now being school system could charge the incidental fees. Notwith collected by the public schools system, rather than having standing the fact that, as I understand it from one of the a continuation in the State of Hawaii, that such fees should delegates on the committee, that even with the word “free” be taken care and absorbed by the State. The basic text in there, it has been upheld by the New York Court of book fees that are now being collected, are fees that have Appeals that such fees could be charged. I thiak there is no been collected for a period of 20 years. problem there about everybody in the territory being eligible In 1945, a survey was asked, that the number of public to go to the university or attend the public schools. schools collecting such book rental fees and what basic KAUHANE: I believe that it is the intent of the commit textbooks were being furnished in schools. That report as tee in submitting the proposal that a free public school submitted to the 1945 legislature shows in a classroom of system is to be provided by the State. If it is that intent 30 or 40 children, basic textbooks - - you find only ten that the committee has, then I feel that no educational sys basic textbooks, and yet each child has paid for a basic tem is free if and when we charge children rental for text textbook so that he may receive a proper education under books. Therefore, I feel in all sincerity, that the State free public school system. And yet, they have collected shall provide such uniform service as basic textbooks free all of this money and what has happened? Instead of re to the children attending public schools so that we keep in ceiving 20 arithmetic books, they have only ten basic step with that intent of a free public school education system arithmetic books. So, we find a system which I feel it’s a for the children of the state. Certainly, as admitted here, spoil system as far as free education is concerned and I it is the universal intent to accept a free public school edu honestly feel that the government should provide the neces cation. Public school education is not free when we charge sary basic textbooks for all children attending public schools the children attending a free public school fees for textbooks free of charge. and other fees that are now being collected in the public SMITH: I would like to bring in the discussion right now schools. The State should provide for such textbooks and it should be a uniform service of basic textbooks, free of that as far as I can find out there is no such thing as any thing being really free, that with freedom goes responsibi charge, for the use of the children attending public schools, lities. U the last speaker can work out a system where the and no other fees for such educational system should be students will be responsible for books which would be com collected from children attending the public schools in a free system of public education. ing from the taxpayers’ money, I think that you’d find every body going along with him. LOPER: I am very sympathetic with the remarks of the last speaker. It is possible under the present Organic Act HAYES: I feel that we have discussed a long time on this to eliminate book rentals, fees for courses, by the mere paragraph and therefore, I’d like to move for the previous act of the legislature appropriating funds to do that. If we question. attempt to write in here that the public school shall be free J. TRASK: Second the motion. in the sense that the speaker intends, might it then not be SEBIZAWA: Mr. Chairman. considered unconstitutional to charge book rentals and fees CHAIRMAN: Delegate Hayes, will you kindly withdraw and, therefore, the net result would be a curtailment of the - - educational opportunity unless the necessary appropriations are made by the legislature? HAYES: I withdraw. I thought everybody had spoken. KAUHANE: I believe that is the intent of this Convention CHAIRMAN: Delegate Serizawa, did you wish to be when it sits here to draft a constitution and providing pro recognized? visions by which the educational system of the State shall SERIZAWA: In reply to the delegate from the fifth dis carry forth. I thiak it is with that intent that a free public trict, the section as proposed by the Committee of Education school system means free and that the basic textbooks leaves it open for the legislature; if they see fit to give should be provided by the State and appropriations shall be free books to the school children, they may do so at their made for such - - taking care of such incidentals. Certain discretion. This section does not tie it down; it leaves a ly, we have left it to the. legislature in the past, following great number of the decisions to be made by the legislature. the dictates and terms of the Organic Act. But we were For that reason the committee felt these matters are leg unable to secure such a legislation from the legislature. islative matters and it should be given - - the legislature We’ve never been able to pass it. Why? Because we have should be given the authority to do so. 586 EDUCATION YAMAMOTO: I’d like to make a statement in reference CHAIRMAN: I don’t believe there was a second. to this matter of dual control. I did not concur on the Standing [Committee] Report No. 52, with a note, “I do not WOOLAWAY: I second that motion. concur with section of report dealing with dual control.” CHAIRMAN: It’s been moved and seconded that the second On page 10, second paragraph, it reads, sentence appearing in Section 1 be deleted. Since the funds for new construction are, under our KAWAHARA: I move to amend the motion by inserting the present system, requested by the respective counties words, in lieu of the words deleted, “There shall be no dual from the Territory, the initiative lies with each county standard schools.” as to what and how much new construction, and where, KAUHANE: Second that motion. when and how the county plans to build. The result is that one county has utilized Territorial credit to build CHAIRMAN: Is that an amendment to the amendment, facilities other than classrooms for its school children or is that an amendment to the section? while in other counties the children have not sufficient KAWAHARA: That’s an amendment to the motion to delete classrooms in which to go to school, or in some instances the sentence. are going to school in fire-trap structures. CHAIRMAN: I don’t believe that’s an amendment to the The reason I object to this particular paragraph is this, amendment, and the Chair so rules. that on the County of Hawaii, as you know, there’s a joke, “You can forget your lunches but don’t forget your umbrellas.” KAWAHARA: It’s an amendment to the motion to delete Now, as far as the construction of the gymnasium, that’s a that section. very important factor because of the fact that during recess, CHAIRMAN: That’s out of order just at the moment, you don’t want your children to stay in your classroom and Delegate Kawahara. bicker around the desks. That is the reason why I objected SMITH: I’d like to make an amendment to that motion, to this statement - - to this paragraph. I wanted to have on leaving the first part of that sentence in and deleting only, record that is such. “nor shall public funds be appropriated to the support or OKINO: I move that we recess, subject to the call by the benefit of any sectarian, denominational or private education Chair. al institution.” This right, “There shall be no segregation in the public education institutions of this state because of SERIZAWA: Mr. Chairman. race, color or creed,” I believe that was left out of the Bill CHAIRMAN: I believe there was a motion for a previous of Rights provided that the Education Committee insert it question before I recognized Delegate Serizawa. Delegate in theirs. Hayes. KAUHANE: I understand the motion put by Mr. Smith. I HAYES: I so move. second his motion. SAKAKIHARA: A previous motion was put, but there was CHAIRMAN: Will you rephrase your motion, Delegate no second to that previous motion. Smith? CHAIRMAN: There was a second but he withdrew it. SMITH: That the sentence will be left in with the deletion, SAKAKIHARA: I second the motion. “nor shall public funds be appropriated for the support or benefit of any sectarian, denominational or private education CHAIRMAN: Ready for the question? al institution.” APOLIONA: Will you kindly state the previous question? TAVARES: I object to that deletion. I think that’s in CHAIRMAN: Question is shall the main question be now H. R. 49; it’s specifically prescribed. I think it should be put. All those in favor should signify by saying “aye.” stated there in those words. Contrary minded. Carried. KAUHANE: I move for the previous question and the Question is on Delegate Heen’s amendment which reads, motion made by Mr. Smith. amending the first sentence, the first sentence reads, as BRYAN: I’d like to talk to the motion made by Mr. Smith. amended, “The State shall provide for the establishment, support and control of a state-wide system of public schools, CHAIRMAN: Very well. free from sectarian control, a state university, public li BRYAN: And also to the remarks made by the delegate braries and such other educational institutions that may be from the fourth district, Anthony. I believe that in different deemed desirable, including physical facilities therefor.” states in the United States, segregation has not been claimed Ready for the question? All those in favor signify by saying to be discrimination. In other words, by providing equal “aye.” Contrary minded. Motion is carried. facilities they have claimed no discrimination and yet have LOPER: Is it now in order to ask for the approval of upheld segregation, and that - - Section 1 as amended? ANTHONY: May I interrupt, will the speaker yield? ANTHONY: The second sentence of Section 1 is a dupli That is not an accurate statement; in fact, as recently as cation of what we have already adopted in the Bill of Rights two weeks ago the Supreme Court of the United States out and, therefore, I would move to delete it. For the benefit lawed the time-honored segregation in the I. C. C. of separate of the delegates, I will read Section 6 of the Bill of Rights, diners, and the schools also. second sentence. KING: I’d like to speak against both the amendments, No person shall be denied the enjoyment of his civil both the amendment to the amendment and the original rights nor be discriminated against in the exercise of amendment. It seems to me there’s no harm done in re his civil rights because of religious principles, race, peating the language in this article that is partially repeated sex, ancestry or national origin. in the Bill of Rights, but this particular paragraph goes further than that, and puts in the ban that Delegate Smith A child is a person within the meaning of the Bill of is trying to accomplish by his amendment. Rights; therefore, this sentence is unnecessary. SMITH: To clear the atmosphere, I’ll withdraw upon the CHAIRMAN: Was there a second to the motion? understanding that if there is a duplication the Committee KAWAHARA: Is there no second to that motion? on Style will eliminate the duplication. JUNE 16, 1950 • Afternoon Session 587 DOWSON: In speaking to this point about eliminating LOPER: Yes, we still have it. amendments and amendments to the amendment, I think it’s HEEN: That would be a proper segregation there. highly important to recognize that one word in particular which was mentioned, the word “sex” should be left out of KING: I’d like to rise on a point of information. The this section because Kawailoa School and the Boys’ Industrial language as it exists, now that it has not been amended, School at Waialae have classes maintained by the public would not be satisfactory to cover the point Delegate Kawa school system. I don’t have to explain that segregation as hara has in mind, recollecting and noting that the additional far as sex is concerned is highly necessary in that case. language you proposed might work against the schools for backward children, schools for people who are ill or other SMITH: That is why the Bill of Rights [Committee] agreed types of handicapped children? This language plus what to leave that “no segregation” clause in the public schools, the legislature might do in the future should eliminate the leave it out of the Bill of Rights, because of sex and they difficulty that you have in mind. Is that not so? put it in here “because of race, color or creed.” TAVARES: I should like to refresh the memories of the CHAIRMAN: Do you withdraw your amendment, Delegate delegates here since Delegate Mizuha is not here. At the Smith? hearing on the Bill of Rights before the Committee of the WIST: Point of order. Whole, I’d like to read what the minutes state, which I think is substantially correct. CHAIRMAN: Delegate Wist, state your point. Delegate Mizuha said this: “Likewise the question of WIST: There’s nothing before us. The mover of the segregation in the public schools, k is proper at this time original amendment has withdrawn his motion. that the question be asked of the chairman of the Educa CHAIRMAN: Point is well taken. tion Committee whether that would be incorporated in tne HOLROYDE: I move for the adoption of Section 1 as education article of the Constitution.” amended. Delegate Loper stated: “The committee proposal in KAWAHARA: Mr. Chairman. its present form does include a sentence against such CHAIRMAN: Delegate Holroyde, will you withhold your discrimination, but it has not yet been passed in its final motion? I believe Delegate Kawahara wanted to make an form by the committee.” amendment. I believe he can do so now. Delegate Mizuha: “Then I believe that it is proper that KAWAHARA: Well, in the committee the question of the recommendation of the Commktee of the Whole will dual standards was discussed and nothing was actually done, include a provision for a clarification that that question partly because of the fact that we couldn’t arrive at some should be considered raised again in the event that the reasonable language. I don’t know that k’s very important education article doesn’t contain that provision of segre to include that item in the Constitution; however, I had in gation in the public schools, and I so move.” mind something like this. After the words, “because of race, color or creed,” I thought of something like this: And later, Delegate Mizuha withdrew his motion but stated “There shall be no segregation in the public educational that he would offer it if it is not included. institutions of this state because of race, color or creed, Now in fairness to Delegate Mizuha, if we are going to or because of other conditions not inconsistent with the exclude this, we ought to postpone this until he is here. provisions of the Constitution.” KAUHANE: I’d like to amend Section 1 in the following In other words, there may be other conditions, other than respect. After the words “a state university” - - race, color or creed on which discrimination may be based, and if we limit it to race, color and creed, it may leave the CHAIRMAN: We’ve already taken up the first sentence. way open for a type of segregation that might not be consist Would you kindly hold it up, Delegate Kauhane? ent with the letter or the provisions - - the general provi President King, do you wish to be recognized? sions of the whole Constitution. I have no objection to the KING: Well, I’d like to move we adopt Section 1 as provisions here, “No segregation on the basis of race, amended, leaving all the language of the second paragraph color or creed,” but, my question is, does it cover enough of that section. ground? ANTHONY: Second the motion. LOPER: In reference to the comments of the previous speaker, I’m very sympathetic with the purpose he has in CHAIRMAN: It’s been moved and seconded that Section mind, but he will recall that the committee felt that it was 1 be adopted as amended. Are you ready for the question? impossible to say that without making the section very long. NIELSEN: There’s just one little change I would like As a matter of fact, there is a law now which authorizes to see made. It says “a state university.” Couldn’t we and directs the department of public instruction to provide make that plural so that when we grow a little more we can for the gradual elimination of the dual standard, that is have another university? Is that taken care of somewhere English standard schools, and they are proceeding on that else? basis. But if you wrote in here that “There shall be no segregation because of race, color or creed, or ability in KING: May I clear that? There is a further clause, the English language,” or something of the kind, you would “and such other educational institutions as may be deemed make it illegal to section within a school on the basis of desirable.” I believe in the committee report there was some educational need and it would throw a block in the way of the discussion of junior colleges and other types of higher schools educational program. It seems to me that that can be safely that can be established by the legislature. left to legislation. The present law is rather general and HEEN: If the State of Hawaii - - loose but we are proceeding under it. It could be made more specific at another session of the legislature. CHAIRMAN: Delegate Kauhane is recognized. HEEN: I rise to a point of information. I’d like to ask KAUHANE: Am I proper now to request an amendment the last speaker whether or not you at one time had a school to the Section 1 of the proposal? I’d like to amend Section 1 especially established for backward children? Perhaps we of the proposal in the following respect. After the words, still have that down at Kakaako way. “a state university,” include “junior college or colleges.” 588 EDUCATION HEEN: I rise to point of order. Section 1 has already What is happening to a number of children graduating from been agreed upon. the high schools who are unable to get into the University CHAIRMAN: Delegate Heen, a motion was made to adopt of Hawaii? Section 1 as amended. I believe the motion to amend is pro HEEN: I rise to a point of order. per at this time. CHAIRMAN: The Chair was just going to put it. There KAUHANE: I further amend Section 1. is a motion to reconsider and I’d like to put the motion at HEEN: So far as the first sentence is concerned, that this time. Ready for the question? All those in favor of has already been agreed upon, there was an amendment to reconsidering Section 1 - - sentence 1 of Section 1 signify that sentence; and the only part that’s subject to amendment, by saying “aye.” Contrary minded. Motion is lost. further amendment is the second sentence. The motion pending is to adopt Section 1 as amended. CHAIRMAN: I believe the point is well taken, unless the SAKAKEHARA: I rise to a point of information. U the delegate asks for a reconsideration of the first sentence. remarks made here by the chairman of the Committee on Education is true, that “such other educational institutions KAUHANE: Although we have adopted Section 1, which is as may be deemed desirable” will be considered as a catch true, but I think that the delegate from the fourth district all phrase, then why did he specifically limit a state univer does realize that further amendments can be made. We have sity? done it in our legislative proceedings and I can’t see any dif ference if we do it there when it’s adopted and it’s further CHAIRMAN: Delegate Wist, would you care to answer amended that we can’t do it here. that question? SAKAKIHARA: Point of order. WIST: The committee considered that very carefully. There’s no disposition on the part of the committee to CHAIRMAN: State your point. oppose the establishment of junior colleges. We recognized SAKAKIHARA: I’m in accord with Delegate Heen, that the that the time is probably here when we’ll have to give serious first sentence of Section 1 has been agreed upon. consideration to the establishment of junior colleges. There was a question as to who should control junior colleges. We CHAIRMAN: The Chair has so ruled, Delegate Sakakthara. purposely left that out because that is a controversial ques SAKAKIHARA: In order to enable the delegate from the tion; we don’t know whether the control should be vested in fifth district, I now move that we reconsider our action on the board of regents or the department of public instruction. first sentence of Section 1. We’d rather leave that for future decision, because at the present time we just don’t know. Then, too, I think it’s KAUHANE: Second the motion. pertinent to point out that we specifically provided the CHAIRMAN: It’s been moved and seconded that the first phrase, “such other institutions as may be deemed desirable, sentence of Section 1 be reconsidered. to take care of this very problem that has been raised here by the two previous speakers. SERIZAWA: Does not the phrase “such other educational institutions” cover that? SAKAKIHARA: We’re not here to discuss who controls it. The question is, is there an immediate need for establishment CHAIRMAN: The Chair thinks it does. Delegate Loper, of a junior college or colleges and if we are to spell out canyou- specifically here to provide for a state university - - LOPER: Will you repeat the question, please? HEEN: I rise to a point of order. As I understand it, the SERIZAWA: I stated that does not the phrase “such other delegate rose for a point of information. He got the inf or educational institutions” cover the question that the delegate mation. There’s nothing to argue about now. He’s arguing from the fifth district raised? about further amending sentence one. SAKAKIHARA: Mr. Chairman, the delegate raised a LOPER: It seems so to me, yes. question that he didn’t realize and levied upon the question TAVARES: I’d like to answer that. It may be so, Dr. of who shall have the control, and admitted there was a Loper, but during the last session of the legislature we need for a junior college. attempted to have passed [by] the legislature a bill creating WIST: There was one part of the question that I did not or the establishment of junior colleges. Although one of answer that I intended to. The reason we mentioned univer your officials within your school department has agreed or sity specifically—because it is an existing institution. We was behind the establishment of junior colleges, we were might establish other institutions of higher learning, prob unable to pass that piece of legislation in the ‘49 session. In sessions prior to that, attempts were made to have ably shall in time, junior colleges or full-fledged colleges. junior colleges established and we were unable to pass it HEEN: Point of information. There was an inquiry made through the legislature. I agree with you that the language about whether or not we might have more than one univer here specifically takes care of that thing, but I would like sity. U we need two universities we can have one in Hilo to see the State provide such establishment of junior colleges, and call it University of Hawaii at Hilo, same as the Univer so that we definitely will have the establishment of junior sky of California at Los Angeles. That’s only one state colleges to take care of the number of children graduating university. from high school. CHAIRMAN: Are you ready for the question? CROSSLEY: I’d like to ask the last speaker this question. Does he want in the Constitution a mandate that we shall KAUHANE: I rise to a point of information. I’d like to have junior colleges whether we need them or not? know if the preamble of the Constitution for the State of Hawaii will read in substance, “We, the people of the State TAVARES: It is not a question of whether we need it. of Hawaii”? We do need junior colleges here. The people, the citizens CHAIRMAN: Will the chairman of the Committee on here have demanded establishment of junior colleges by Miscellaneous answer that? their requests of legislators to introduce such bills, not only the 1949 sessions [but] in sessions before 1949. There CASTRO: The Committee has agreed to include the is great need for the establishment of junior colleges here. words, “the State of Hawaii.” JUNE 17, 1950 • Morning Session 589 KAUHANE: Include “We, the people of the State of Hawaii”? and they are shaping up; they are working out. I think that it’s very important to let the chairman of that committee CASTRO: That’s right. have an opportunity to bring this matter to a head in the KAUHANE: If that is the preamble, then my point of in committee because you cannot expect a report to be written formation is this, that the people of the State of Hawaii do under several days’ time, and if he can get through most demand that the inclusion of junior college or colleges be of these questions this afternoon, it will give him the week made in this Section 1. end. Isn’t that right, Mr. Chairman? TAVARES: I again object on the grounds of point of HEEN: That’s correct, and after we resolve ourselves order, that this is entirely out of order. into the Committee of the Whole, I’ll give notice now that I’m going to ask for an extension of time for the filing of the CHAIRMAN: I am putting the question now, Delegate final report. Tavares. The question is, shall Section 1 be adopted as amended? Ready for the question? CHAIRMAN: Are you ready for the question? NIELSEN: Just a point of information. In this “including HEEN: It’s supposed to be filed today. physical facilities therefor,” that doesn’t keep the counties CHAIRMAN: Delegate Rice. from the maintenance and repairs of the school buildings? C. RICE: [Statement not recorded] LOPER: No. PORTEUS: Well, I’m sure that if the delegate from NIELSEN: Thank you. Kauai wants to sit around here that nobody would have any CHAIRMAN: Now, ready for the question? objection to it. I think it might be very instructional if he would care to attend the meeting of the Legislative Commit KAWAHARA: Do I understand that we are voting on this tee. I’m sure the chairman of that committee would be whole Section 1? delighted to have him. CHAIRMAN: Section 1 as amended. CHAIRMAN: All those in favor say “aye.” Contrary KAWAHARA: Including the second sentence? minded. Motion’s carried. CHAIRMAN: That’s right. JUNE 17, 1950 • Morning Session KAWAHARA: What is the disposition in regards to the question of dual standards? Is there going to be some re CHAIRMAN: Will the Committee of the Whole please mark made in the Committee of the Whole as to disposition come to order? When we rose to report progress yesterday of that question, made by delegate from the fourth district, afternoon, we had just completed Section 1 of [Committee] Mr. Tavares? Proposal No. 11. It is now in order that we take up Section CHAIRMAN: If the delegate wants that incorporated in 2. Dr. Loper. the report of the Committee of the Whole, I believe we can LOPER: The remaining four sections of this article or take care of that adequately. Committee Proposal No. 11, Sections 2 to 5 inclusive, each All those in favor of the question signify by saying “aye.” include one new idea or provision, except Section 4, which, Contrary minded. Carried. I believe reflects the present situation. We have been at this for a little over an hour. I believe Coming to Section 2, board of education, the new provision in fairness to the clerks, we should take a short recess. is contained in the last line following the comma, a provision for the governor to appoint members of the school board (RECESS) from a panel nominated by local school advisory councils to be established by law. Otherwise the appointment of school PORTEUS: As to the continuation of this article this board members is as it is at present. This provision is the afternoon, I do want to call attention to the delegates to the result of a long discussion of the pros and cons of an elected fact that the Legislative Committee has almost brought to a school board and the arguments on both sides of that question close some of its matters on reapportionment but they do are on page 5. have some troublesome problems on redistricting. Having KELLERMAN: A point of order. I don’t think we have examined some of the rest of the article and talked to some anything before the Convention. I move the adoption of of the people, I don’t think you are going to get through Section 2. education this afternoon, in any event, I’d like to see a NIELSEN: Second the motion. vote put now as to whether or not we rise, report progress and ask leave to sit again. I think we’re not going to be SAKAKEHARA: I second the motion. able to finish this afternoon in any event, and I’d like to CHAIRMAN: It’s been moved and seconded that Section see the Legislative Committee get to work early this after 2 of Proposal No. 11 be adopted. noon, so I now move that this committee rise, report LOPER: Thank you, Delegate Kellerman. progress and ask leave to sit again. Speaking to the motion, the arguments for an election BRYAN: Second the motion. of school board members include these: that is, that it’s CHAIRMAN: It has been moved and seconded that this more likely to be a representative board, sensitive to the committee rise and report progress and ask leave to sit will of the people; provide for closer participation in again. school matters; more in line with our democratic concepts of republican form of government; and 85 per cent of the H. RICE: I think the Secretary is an optimist. I’ve school boards on the mainland, that is local school boards, watched that Legislative Committee for quite a while. I are elected. Against this is the possibility of drawing the think we have a better chance getting through the educational school system into politics, and the belief on the part of proposal today. many members of the committee that persons that would PORTEUS: I’ve attended some of their meetings until otherwise be available for board service would be unwilling eleven and I left here at twelve o’clock last night. It seems to run - - spend the time and money to be elected to a non to me that in troublesome matters, as they have before that paid position, and at the same time run the risk of being committee, it takes a little time to shape these things up, defeated. Furthermore, it was pointed out that state 590 EDUCATION school boards on the mainland are typically, either appointed CHAIRMAN: Is that a satisfactory answer, Delegate or hold their positions ex officio. Kawahara? However, it is recognized that there is a need for more local participation in school matters, and this need was KAWAHARA: I believe that’s satisfactory. reflected in the report of a survey of education made thirty One more question with the wording “local school advi years ago in these islands by the U.S. Office of Education. sory councils.” The question was asked whether or not This provision for local advisory committees is not unlike the word “counties” should be included somewhere. I’m the recommendation in that report of that survey. In that not so sure that it should be included, the words “various counties.” However, I think the word. “local school” will case, the recommendation was that local school boards be appointed by the commissioners of public instruction. take care of that. In this case, we leave the matter of how the school advisory LOPER: We used the word “local” deliberately because committee in each locality should be set up to the legisla we didn’t know how many counties there would be or whether ture. We add, also, one function that was not provided in it might be advisable to have more than one council on the that report of the survey, namely, that they shall submit Big Island, for example, or perhaps on this island. names to the governor from which he would make his MAU: The motion that was put this morning was f or the appointments on the school board. adoption of Section 2. My understanding is that we only Now admittedly, this is new and has not been tried, but agree tentatively to the various sections and then go back I would call your attention to the fact that much of the pro again. Otherwise there would be no opportunity to deal vision for this is left to law. The committee discussed a with all of the remaining sections at one time. I have in number of ways in which these panels could be drawn up mind, for instance, an amendment for purposes of discus and the advisory committees or councils could be put in sion which might eliminate Sections 2, 3, and 4 and portions their positions. I think we might skip that unless there of 5. Now if we adopt Section 2, no opportunity would be are questions about it. given to make that type of a motion to amend or delete One more point. If it should turn out that the legislatures unless there was reconsideration. My understanding has in the future wish to give more local autonomy, the panel of always been that we just tentatively agree to it. Is that names could be very short. If they wish to go in the other correct? direction by providing for a long panel, several times as many names as there are board members to be appointed. CHAIRMAN: The Chair believes that that will be agree You can see that it would leave the matter relatively wide able with the chairman of the Committee on Education. Is open for the governor to appoint almost anyone available that correct? on a particular island. LOPER: The purpose of the Committee of the Whole is to I’m prepared to answer any further questions if there are get full and free discussion, as I understand it. The motion any on this Section 2. was to adopt, but on previous committee proposals we have KAWAHARA: While I’m in accord with the provisions of tentatively agreed to. I leave it to the Chair. the section as written, I have since then been wondering about MAU: Well if that is the understand - - the last phrase, “from a panel nominated by local school advisory councils to be established by law.” As I get it, if CHAIRMAN: The Chair believes that is the understanding the phrase is left as it is—I don’t know whether I am correct and we shall proceed along that line, Delegate Mau. in my interpretation or not—however, I get this implication MAU: May I ask a question on Section 2? Is it the intent that the law may dissolve such council. I don’t know if this of the Committee on Education to have panels from each of is a correct interpretation of the phrase or not. I would the islands or counties, and that the governor will have a suggest that the phrase read something like this, “from a free choice to choose from all of the panels from each of the panel nominated by local school advisory councils” period; islands, or did the committee intend to have - - to limit the and then the statement, “established by law,” be written governor in his selection from representatives in each is in a separate sentence. That is, “The legislature may land or each group? establish such laws to create such councils.” I don’t know LOPER: The intention of the committee is in line with what the delegate - - your second position, but we’re leaving that to be spelled LOPER: Does the delegate mean that you wish to remove out in the law. the possibility of such councils not being provided for by the MAU: Oh, I see. And does the - - is the intent covered legislature? in the committee report so that there is no question - - KAWARARA: No, this leaves the - - this gives the sole LOPER: Yes, it is. power to the legislature to create such councils, does MAU: - - how the legislature shall pass that law? it not? LOPER: Yes, it is. LOPER: Yes. KING: I would only like to comment that historically KAWAHARA: And likewise to do away with such councils. these local advisory boards are not new in Hawaiian history. If it can create, can it not do away with such council? In the very beginnings of education - - public education in Hawaii they had such school boards even in the smaller LOPER: Perhaps one of the lawyer delegates can tell districts, but transportation wasn’t as speedy as it is now, us. It seems to me there is at least a suggestion of a and they had a good deal of jurisdiction and authority over mandate in there when we say, “from panels nominated the school activities in their respective districts and worked by councils to be established by law.” in conjuction with school agents, they called them in those TAVARES: It’s my opinion that such a provision would old days. Is that not correct, Delegate Loper? So, this is be mandatory once a council is established. The legisla not a novel idea. It’s a return to an old idea that made the ture could not eliminate it without putting a substitute in jurisdiction over public schools localized and in touch with its place. The only trouble might come if the legislature the people whose children were going to those schools. didn’t initially pass the law. We might have a little trouble TAVARES: Perhaps I’m being a little technical, but the mandamusing the legislature, but once they did so, I don’t way I read this section it seems to me that this is the inter think they could remove it without a substitute in its place. pretation to which it is susceptible in its broadest impli JUNE 17, 1950 • Morning Session 591 cations. If a statute, or the laws providing for the school HEEN: Are you asking me the question, Delegate Nielsen? board, provides for a state-wide board without any particular My thought there was this, that the legislature may appoint - - provide for the appointment of an advisory council, say, residential requirements, it seems to me it would mean then that the local board would be a state-wide board to select the to represent West Hawaii, East Hawaii, Windward Oahu, panel. If, on the other hand, the legislature by law provides and Leeward Oahu, Kauai maybe two districts and so forth for members of a locality - - people to have residence in a and so on; and then each council would submit to the gover locality, then there would be advisory boards for those loca nor a panel from which the governor is to make his appoint lities to pick a panel. It seems to me that that would make ment to the board of education. the statute as broad as, I mean that is the broadest impli TAVARES: I am not sure that even that will hit the mark. cation I read into it. Now there is nothing here that neces It seems to me that if it is a good policy—and I see no ob sarily says that the members of the school board shall be jection to it, I’m for it—of having some geographidal re limited to localities. I am not sure that that was the inten quirement or geographical distribution of the members of tion. If it is, I’m not sure that that has been accomplished. the board, we ought to write that in pretty clearly into this section. For that reason, I suggest that we defer action on WIST: I’d like to answer that or speak to that. The this and let us think about it a little longer, and before the thought of the Education Committee was that undoubtedly day is up I would like to present some wording that would when the legislature sets up the board of education, which more definitely tie down the legislature to seeing that there we regard as a statutory matter, that the board would have is at least partial geographic distribution or there is leeway representation from the various islands. Our thought was in the legislature to give either entire geographic distribution that we would have a panel, and we have used the word in the to your board or part geographic distribution and part at singular there, that would represent the nominees from the large. various islands. The governor could select on a state-wide basis any individual recommended by any advisory commit SERIZAWA: I second the motion to defer. tee from any island; but where he is appointing a local re CHAIRMAN: It’s been moved and seconded that we defer presentative, he obviously would have to appoint somebody action on Section 2 until later in the morning. who represented the local district. Now if that is a county as set up by law, it would be a county. KAWAHARA: When Section 2 is to be reconsidered, I wonder if the following could be considered. Nothing in LOPER: In further reference to that point, it is spelled Section 2 at the present time states whether or not, as I out in considerable detail on pages 5 and 6 of our report can see it anyway, whether or not this board shall be non in which we indicate the recommended number, nine; that sectarian or non-partisan. This is a separate section; I they be for staggered or overlapping terms; and that they see nothing in there which definitely states that this board come two from the Big Island, one from Kauai, one from shall be non-sectarian or non-partisan. I wonder if those Maui, one from rural Oahu, one from Honolulu, and the two phrases could be incorporated in that particular section? others at large; and the local school council shall function CHAIRMAN: All ready for the question? as an advisory committee to meet with the local school board member and district superintendent; and that the ANTHONY: That would be absolutely impossible. You panel be a combined list made up of specified number of don’t want a bunch of eunuchs on the board. They’ve got to names submitted by each of the local school advisory coun have beliefs of some kind. cils, from which the governor would appoint both the local board member from each county or district, and the CHAIRMAN: Are you ready for the question to defer board members at large. action on Section 2? All those in favor say “aye.” Contrary minded. The ayes have it. NIELSEN: I think that this should be spelled out in some LOPER: If I’m not out of order, I’d like to call attention way so that the council in each district in which a board to the fact that the Education Committee made its article member is appointed is indicated in the Constitution. In so brief that it is now being asked along “Barristers’ row” other words, if a commissioner is to be appointed from that we make it longer. Kona, the panel from Kona is the one that would put in the CHAIRMAN: Shall we now proceed to Section 3? names of those they recommend. So that if after the word “counties” you insert, “in each district from which a board LOPER: I move for the adoption of Section 3. member is appointed as established by law,” I think it’ll take LARSEN: I second the motion. care of it. CHAIRMAN: Will you kindly change the motion to tenta HEEN: I was just about to speak along the same line, tively approve Section 3, Delegate Loper? and this may solve the problem. After the word “by” in the third line of the first page of this proposal, being the LOPER: I withdraw the motion and remake it to tenta last line on that page, after that word “by” insert the tively agree to Section 3. words “each of such.” Then in the first line of the following CHAIRMAN: It’s been moved and seconded that Section 3 page, substitute the words “as may” for the word “to,” so be tentatively approved. All those in favor - - that the section will read: WHITE: I have some question about the use of that word There shall be a board of education to be appointed “full” in there. According to the committee report, it’s not by the governor, by and with the consent of the Senate, intended to cover every phase of it. In other words, I am from a panel nominated by each of such local advisory concerned about whether that would cover full - - include all councils as may be established by law. financial control as well, and whether the statement wouldn’t be just as well - - the provision be just as well with the “full” If that sounds good to the delegates, I’d so move by way of out? amendment. DELEGATE: I second that motion. ASHFORD: I’m not in favor of the last clause of that section, “and shall be ex officio a voting member thereof.” NIELSEN: Will that take care of the situation where the I think when the members are drawn from the several board member that is to be nominated and appointed for the counties, the superintendent should be the executive officer county of Hawaii? of the board, but should not be a member. If he becomes 592 EDUCATION a member, then it is a constant source of embarrassment to HEEN: Either secret ballot or not. everyone concerned, in the event that the board and he dis agree upon policies; and I think it will diminish the true WIST: I’d like to refer to two things. In the first place, in practice, the executive officer who is a member of the control of the board over the education. I, therefore, move board never meets with the board when they are considering to insert a period instead of the comma after the word “board” his appointment or reappointment. That’s a common prac and delete the last clause. tice. Secondly, I’d like to point to the fact that our board H. RICE: I would have agreed with the delegate from of education is different from boards of education through Molokai, but past experience has shown that it’s a mistake - - out the mainland in this respect, that It combines the re sponsibilities of both the local board, which has the general HEEN: Point of order. That motion has not been second control, and the state board, which has oversight. Now, ed. Nothing before the - - in state boards it is commonly the practice for the executive officer to be a member of the board. In local boards, how MAU: Second the motion. ever, the practice is the other way. But we have the situa CHAIRMAN: It’s been moved and seconded that a period tion here where the executive officer, the superintendent, be inserted after the word “board” and the rest of the sentence is serving in the dual function. He’s working with the board striken. that has the function of control and oversight, and it’s in view of that, largely, that your Committee on Education H. RICE: I say I would have agreed with the delegate felt that the superintendent should be appointed by the board from Molokai, but past experience has shown us that without but remain on the board. It’s worked out very well in uni the member being a voting member of the board, the school versity practice and we believe it’s worked out well as far commission could go into executive session and go on on as the superintendent being a member of the board in local executive matters that really concern the school department practice. and the professional people would not have a voice. We know from past experience that was true on the - - in the Univer DOl: The fact that the present superintendent is a very sity of Hawaii. They got in a jam because the regents would excellent administrator, I believe, should not influence our - - the president and the executive officer was not a member thinking here. I think we should decide on principles. of the board of regents and they would go Into a huddle in Should we examine Section 2 we will find that the superinten different parts of Honolulu and then put through programs dent is appointed by the board. In other words, he is not that were detrimental to the University. I am a member of an equal with the members of the board of education. Also the Territorial Aeronautical Commission. I feel that even - at this point I would like to inject and say that he is not a in this case the director should have a voice so that he sits representative of the teaching profession as stated on page in and has a voice with the rest of the commissioners be 9. He is an administrator of the teachers. He was not cause in that way you keep the - - we could not go into exec elected by the teaching group, and therefore the argument utive session which they have done previously on that advanced on page 9, I think, is invalid. I believe the superb board, and it hasn’t helped them out. tendent, if made a member, at the most, should not have a Practically you are correct, but - - I mean theoretically voting - - should not have a right to vote. I am, therefore, you are correct, but practically I don’t think it works out. speaking in favor of the motion. It’s to the interest of the school department to have profes sional men represented at every meeting of the board and TAVARES: I have had occasion in the course of the last without his being a voting member of the board, as I see 20 years at least to observe the operations of two kinds of it, they could go into executive session and the professional boards, and I think those ought to be borne in mind very people would be ignored and they might steer the Territory clearly. One is the professional, well-paid board of personE wrong in educational matters. who are chosen because they are specially qualified to serve on that board and are paid adequate compensation to do their HEEN: Will the delegate yield to a question? job. For that kind of a board I am a hundred per cent with H. RICE: Yes. the proponents of this amendment. But for the type of non- HEEN: In the Aeronautical Commission you have, as paid, non-professional and sometimes ignorant members I understand it, an executive director, and is that director of the boards that run this type of a department, I am againsl a member of the commission? giving them absolute power. The only professional man many times upon the board of education is the superintendent H. RICE: No. I say it’s wrong. of public instruction himself. He is the man that should run HEEN: Oh, I see. that department and should be given almost a free hand. If he’s no good, he ought to be fired; but if he’s good, he ought H.’ RICE: I say it’s wrong but that’s the way the legis to be backed up almost 100 per cent. And what do you have lature set us up, and they could - - there’s no reason why - - running him? A bunch of laymen—and I’m not derogating the commission might meet on Maui and without the direc from their abilities—a bunch of laymen most of whom, if tor, and do something that was radically wrong. I, for one, not all of them, are not educators, who are not acquainted would have - - want him to sit in always, and I for one want with the theory of education, many of whom don’t know very the executive department in this case to sit in with the board much about education, as a matter of fact. And even when and have a vote. He does now and it’s worked out all right. you have local boards appointing them, you may be limited He’s never used it. In case of a tie or when there is not a in your area as to not - - so as not to have a really highly quorum present he has to vote. skilled, professional man to put on that board. And, there HEEN: I suppose that if the director were a member of fore, unless you put the superintendent of public instruction, the board and the board wanted to discharge the executive who is probably the only qualified man on education on that board and let him tell them what his policies - - what the officer, it would be very embarrassing, of course, to have policies should be; give him an opportunity to argue with that officer sit in with the rest of the members of that board. them every time before they make a decision; be sure that However, they can adopt what the political parties do—they he will be at those meetings, and they can’t exclude him; hold a caucus —and they can hold a caucus, and then have then I think you are going to have trouble running your de it all decided and when they have a meeting introduce your partment. resolution dismissing the officer. Furthermore, there is one other thing and that is the H. RICE: And secret ballot. matter of pay. If you make this head of the department JUNE 17, 1950 • Morning Session 593 subordinate entirely to a bo3rd, the classification commis CHAIRMAN: Delegate Anthony. sion will rate him one salary rating lower than any other ANTHONY: If you’ll examine the document published department head, and that is a very important thing in by the - - “Studies of State Departments of Education”— securing your superintendent of public instruction. That has that’s a United States publication—you will discover that been done in the past and it can happen again, where because they are broken down into three - - four categories, that a board is entirely over a man, they say, “Well, the board is the relationship of the chief officer of education to the fixes policies; therefore, part of your duties are purely board. The first is whether or not he is a member of the ministerial; therefore, you have a lower salary than the state board. There are 24 states that make him a member. superintendent of public works,” or the auditor or some The second is whether or not he is a secretary of the other person who may not have any more work and any more state board, and there are 21 states that make him the responsibility really than this superintendent of public instruc secretary. The third category is whether he is the chair tion. I urge the delegates here not to vote for this amend man, and there are 11 states that make him the chairman. ment. The last category is that he is the executive officer of the KAWAKAMI: In your first sentence, “The board of state board, and there are 26 states. So far as I can dis education shall be empowered to establish,” I’m not too cover from this pamphlet, there is no state where he is satisfied with that word. Maybe some other word such as not in some capacity a member of the board. “formulate” may be a better word. Now, it strikes me that we ought to follow our - - we ought to follow the best in education. You take a jurisdic MAU: I’d like to ask a couple of questions. I wonder if tion like Pennsylvania that has an outstanding school system, the committee would be satisfied to make the superintendent you’ll find that the chief commissioner of education is a an ex officio member without the right to vote? member of the board with full voting power. You find CHAIRIVIAN: Delegate Wist, will you care to answer that substantially the same thing in New York. The particular question? table that - - particular text does not state the voting power but it strikes me a very anomalous thing, if you are going WIST: We discussed that, but we didn’t think it was to put him on the board, not to give him the power to vote. too meaningful to have the superintendent a member without I certainly think he ought to have the power to vote if he is vote. In other words, if he’s to have any prestige in his going to be on the board, and it seems to me that this survey position—and certainly the superintendent as the executive clearly demonstrates that he should be, in the judgment of officer and a professional leader should have some prestige— the wisest states, be on the board. Therefore, I am against that prestige would come only if he also has the vote. In the motion. other words, putting him on the board without a vote is TAVARES: May I say just one more short sentence? almost the same as not putting him on the board at all. CHAIRMAN: I believe Delegate Mau wanted to be recog MAU: Another question. This goes back to what has nized. been expressed many, many times in the early days of the Convention that certain matters which are legislative should MAU: The delegate who attempted to answer my ques be left to the legislature, and those proponents of the idea tion merely stated that he wanted to see that the superin of a concise constitution and empowering the legislature to tendent of public instruction be made an ex officio member do many of the acts that we are trying to enact here in the with voting rights, and that is why they want to see it in the Constitution, whether or not they gave thought to that theory Constitution. But mine went to - - my question went a little in writing out Sections 2, 3, 4 and portions of 5 of this broader, not only to that but to the other sections which proposal? I wonder if the committee could answer that asked why they desired to spell it out so much in detail even question. In other words, why shouldn’t we leave these to the powers expressed in the board of education and the things to the legislature if you believe, as the delegates board of regents. Now, I understand that in the committee have often expressed, many of them have expressed, that report the statement is made that it is the desire of this certain matters should be left to the legislature to deal Committee on Education to write a peoples’ Constitution, with? Now, I’m wondering whether they had in mind a fear of the legislature. CHAIRMAN: Delegate Loper or any member of the com mittee care to answer that question? WIST: I think the answer is in the fact that we had geared these basic principles to the concept that the legislature does LOPER: I would like to have you recognize another member of the committee on that point, or another delegate. have the power. We have not spelled out how the board - - the number of the members of the board and a lot of other KAGE: This matter of having the superintendent a mem things that we want to be left to legislative action. All we ber of the board, that is a voting member, is a matter of have done is to express in principle certain things that we principle and we believe that it should not - - I mean, it think are s’ound. should be included in the Constitution and not be left to the MAU: May I at this time withdraw my second to the legislature. And while I’m standing, I would like to bring motion made by the delegate from Molokai. to the attention of the delegates that in 24 out of the 39 state boards on the mainland, the superintendent is a voting mem SHIMAMURA: May I just inquire of the gentleman from ber. That leaves nine; the nine other states do not have any the fourth district, Delegate Anthony, whether he said in state boards. the great Commonwealth of Pennsylvania the commissioner of education is a member of the board or not? He is? KAWAHARA: This argument that a certain number of Thank you. states has a certain accepted practice, therefore, we should embody such practice in our Constitution, may not be as CHAIRMAN: Any further discussion? sound as it looks on the surface because 85 per cent of the OHRT: I’m against the amendment. local boards, local school boards on the mainland, are elected. CHAIRMAN: There is no amendment. ASHFORD: I assume everyone else who wanted to has NIELSEN: Point of order. I’ll second that motion of spoken. I’d just like to reply on the matter. Miss Ashford. ANTHONY: I haven’t spoken. I’ve risen several times, OHRT: I think this is a very important decision that we Mr. Chairman. are about to make. I’d like to call your attention to the fact— 594 EDUCATION the university has already been mentioned—but we have the tendent of public instruction. But I think we should be con board of health that now operates in this way, and we also sistent. U they are appointed, all these department heads have the department of agriculture and forestry that acts in that are appointed should be appointed by the governor and this way, and I think they are functioning very well. Now upon confirmation of the Senate. I don’t see why they should the question of whether the executive should be the chair have the board appoint the superintendent. May I have man of the board is rather important, I think. In talking somebody from the committee answer me that? to Mr. Wilbar of the board of health, he doesn’t think that the executive should be the chairman because in presiding KELLERMAN: I’ll attempt to answer that. Our feeling at meetings he thinks the chairman is busy enough watching was quke strong that the board of education should be as the technicalities of the meOting then, and he should be independent a body as possible and should have the adminis given time to really present his own problems. I’m against trative control of the department of public instruction, as the amendment. well as the power to establish policy. If it does not also have the power to appoint the superintendent of public instruc TAVARES: Unless we write qualifications for member tion, if is giving if power in law but without power in fact. ship on this board into this article so as to be sure that Under the present circumstances—and, of course we are not people with a very broad background that are really quali discussing personalkies —but under the present law the fied to run a department all alone, are the only ones that superintendent of public instruction is appointed by the gov can be nominated and appointed to this board, as is done ernor. The board of education is appointed by the governor, for instance with the National Labor Relations Board or with or the commissioners of public instruction as they are now the Tax Appeal Court or some other boards that have full- called. Under the law, the commissioners have the respon paid employees or members, I think that it would be very sibility for establishing policy, and administering the school dangerous not to put the only man who is going to be quali system. However, they do not have direct power over the fied possibly on the board as a voting member. Remember superintendent. The result is possibilkies of conflict and the other members are non-paid, non-professional people who the actual fact of not having the degree of control which the who are not going to be giving full time to even studying the law pretended or intended to give them in the language set up problems of the school department, and I think they are go in the statutes. The power of control through an executive ing to need every bit of advice that they can get from the officer can be recognized and can be effectuated through the superintendent and they should be made to have him present power of appointment and the power of removal, and not at every meeting, and this is the only way you can be sure simply through the opportunity under the law to ask advice of that. or to give orders which they have no real effective power of LA!: I move the previous question. carrying out because they don’t have the power over the person who does the carrying out. This was intended to CHAIRMAN: Just a moment, I believe the movant of the give the board of education greater power in carrying out amendment should be given an opportunity to answer some of the policies and the administrative procedures which it the arguments. approves. ASHFORD: I think the arguments here have resolved them U I may say something further, somewhat in contradiction selves again into the same argument that has been brought to Mr. Tavares’ argument for highly trained or professional out here repeatedly. We say that all power resides in the people on the board of education. It is the opinion of most of people and we are afraid of them. We want to qualify some us, and also of the educators who have appeared before our exhalted persons or else the people are not to have a word Commiftee on Education, that the board of education should to say. Now, k’s perfectly obvious from the argument what be a lay board. The board of education should not be made the purpose of this is. It is to put a man in there that will up of professional educators. Its purpose is to correlate override the opinions of the various members of the board. the social and economic and political thinking of the com munky as parents of the children going to school with the KELLERMAN: May I talk on that point just a moment? professional group who carry out those policies, that if I, in committee, was opposed to the superintendent having - - should not be a board made up of professional educators who being a member of the board and having a vote, but it was on maybe have professional points of view to put into effect the basis of principle. It seemed to me that a man who was which may at some time run in conflict or not be in accord appointed by a board did not sit with or could not be in an with what the parents and the cifizens of the community feel equal position. He is employed under a contract or by ap they want their children to learn and how they want them to pointment and he would not be on an equal basis, as I could be taught. Education is essentially the developing of citizen see it, legally or psychologically with the board which ap ship and carrying on the social, polifical and economic think pointed him and had the power of removing him from office. ing of a people. It is basic, and in that sense a lay board is But I do not believe that there is any more opportunky for a protection to any communify as against any professionalizec the superintendent of public instruction, whether a member group, in any regard, who may be carrying out those policies of the board or not, to control the board. In other words, It is for that reason that we do not intend or have not intended I don’t think if comes down to his being a member or having that the board of education be made up of professional educa a vote. He only has one vote out of nine. He obviously, as tors, but all the more reason for having one professional the executive officer and the representative of the department educator there at all times, as I quife agree on that point, to of public instruction, will be the professional advisor of the present adequately and fully the professional point of view. board. if he is that strong a personality, even in his exec utive capacky, he can control the board. I don’t believe CHAIRMAN: Delegate Kam, does that answer your ques control of the board would come from his being a member tion? wkh a vote when that vote is one out of nine. I think that will come down entirely to his personalky and the personality of KAM: That was very good, but I don’t see if. We should those who are put on the board, and not to whether or not he be consistent in our appointment of department heads, and has a vote on the board. I was just talking to Dr. Loper. In the present setup now he is appointed by the governor. He has a much freer hand CHAIRMAN: Question now is, shall we adopt Delegate Ashford’s amendment. to do what he wants. But as if is, by appointment by the board, the board would control his actions. I believe that KAM: In Section 3, “The Powers of the Board of Educa we should - - something should be done with the appointment tion,” they have the power as I see if to appoint the superin-. of the superintendent of public instruction. .595 JUNE 17, 1950 • Morning Session KING: I raised a point of order, but it seems to me the WHITE: I’d just like to say for the benefit of Mr. Mau, delegate from the filth district, my colleague, is speaking there’s nothing novel about this. This happens in corpora to another subject entirely and not the pending amendment. tions quite often. They always seem to get by with it. What he has - - CHAIRMAN: The amendment before the committee now is CHAIRMAN: I believe it is - - President King, I believe this. The insertion of a period after “board” and the striking it is part of the section. It deals with the appointment of of all that follows the word “board.” The question is shall the superintendent of public instruction and it’s germane to the amendment be adopted. All those in favor say “aye.” Section 3. Contrary minded. The noes have it. The motion is lost. The question before the committee now is shall Section 3 WIST: I’d like to supplement what the delegate at my be tentatively approved. right has just said by making this statement. In the time that I’ve been in the islands, nearly 40 years, there has been WHITE: I’d like to propose an amendment to Section 3, several surveys. In 1920 there was a survey of education and that is, in the second line to eliminate the word “to” made by a commission representing federal government. and in the third line to eliminate the word “full,” so that the Then we had a survey of industry and education in 1930 sentence would then read: “The board of education shall be promoted, I believe, by our local industries. Then we had empowered to establish policy and exercise control over a survey in 1940 promoted by our own legislature, through the public school system through its executive officer,” and the holdover committee. Then we had a survey in 1943 so forth. I move that it be amended that way. conducted by Dr. Draper from the University of Washington. H. RICE: I second the amendment. Every single one of those surveys reported the recommen dation that the superintendent should be appointed by the CHAIRMAN: It’s been moved and seconded that the word board and should be the professional executive of the board. “to” in the second line following the word “and” be deleted, and the word “full” appearing before the word “control” in CHAIRMAN: If there’s no objection, the committee the third line be deleted. stands at recess. LOPER: I think that that amendment is a good one. I (RECESS) see no objection to it, and I believe that is the opinion of the committee. Some question has been raised about the use of the word “establish” and there may be a preference for the CHAIRMAN: At the time of the recess, DelegateMau word “formulate” before “policy.” If there is a feeling that wished to be recognized, and I now recognize him. that word should be changed, it might be incorporated in this MAU: I was going to propose an amendment in regard amendment or in a subsequent amendment. to the appointment of the superintendent, but after the recess, CHAIRMAN: That’s not in the form of a motion, Dr. I am convinced I should not make that amendment. But I Loper? have another question to raise on the motion. If this superintendent is given the power to vote, assuming you had LOPER: It might be left to the Style Committee. I’m a board of nine and the rest of the members of the board, not changing the amendment. the eight members, desired to remove this officer, what SAKAKIHARA: Following up that statement by the last would be his status? Would he have a right to vote still? speaker, I believe the question of establishing policy is the I think he would. Wouldn’t there be difficulty in the event power vested in the body which creates the board of education, that you had a man in there not like our distinguished exec and I believe the proper language for that would be to es utive officer of education now, and I think he’s an excellent tablish - - to administer policy or formulate policy rather than officer. You’d have a great deal of . . . [rest of sentence establish policy. I move that the amendment - - I move that not recorded.] we amend the word “establish” to read “administer.” AKAU: I’d like to answer the delegate from the filth NIELSEN: I second that motion. district’s question, if I can or may. It would be rather unethical for the member who’s being talked about to be HEEN: Point of order. there to vote for himself or against himself. It has been CHAIRMAN: Is there a second to that motion? the practice in the past, certainly at the university and I’m sure on the board of commissioners in the school department, HEEN: Point of order. I think we have an amendment if such a matter presented itself—and it has in the past at pending now, and it’s hardly germane to that amendment. the university—that the president is not there. It will be It can come afterwards, if necessary. unethical. And so, to answer your question, he would not SAKAKIHARA: I bow to the suggestion of Senator Heen. be there to vote either for himself or against himself just on general principles. CHAIRMAN: Are we ready for the amendment proposed by Delegate White? All those in favor say “aye.” Contrary MAU: I would agree with the last speaker that if Dr. minded. The ayes have it. The motion is carried. Loper were the individual involved that he would absent himself from such a meeting. But I’m not so sure that that SAKAKIHARA: I now move that the word “establish” in has happened in the past. You recall that there was a the second line of Section 3 be amended to read as “adminis great shake-up in recents years at the university. There ter.” was also a great deal of stew in the department of public CHAIRMAN: Is there a second to that motion? instruction about 10, 12 years ago. NIELSEN: I second it. AKAU: May I just pursue that one step further and answer CHAIRMAN: Moved and seconded that the word “establish” fully? The situation referred to at the university was just appearing in the second line of Section 3 be deleted and the exactly what Mr. Mau said. In other words his answer - - word “administer” substituted in lieu thereof. his question is the answer to the argument. The 10 or 12 years ago to which he refers was the time when the executive LOPER: I think I understand the thought back of that officer, that is, the president, did not have a vote. That was amendment, but I would like to call attention to the fact that the situation and since that time it has been changed and so the matter of formulating policy is primarily for the legis the president does have a vote now. That’s why the situation lature. But beyond that, the board - - the very purpose of was so smelly. the board is to establish further educational policy or formu 596 EDUCATION late it so long as it is not contrary to existing law. That is board or to the counties, as it is at the present time. I’m one of the provisions now and it is one of the functions of the not sure that I answered your question. school board of the State, I’m quite sure. We have, for example here, a policy manual in which the policies laid CHAIRMAN: Delegate Trask still has the floor. down by the school board as well as those by the legislature A. TRASK: The legislature, according to Section 1, will are printed for the use of the schools. If you say adminis make provisions with respect to physical facilities and so ter only, you don’t cover the whole thing. forth, and other matters. And the power of the board, it seems to me in this Section 3 II I understand it, is limited SAKAKIHARA: In that case I wish to withdraw my origi to the intellectual program of the school system, which may nal amendment and substitute the word “formulate” in place change from time to time. Is that what the words, “public of “establish.” school system” mean? It doesn’t include the physical faci CHAIRMAN: Is there a second to that motion? lities obviously because that is in Section 1, and is it not therefore true that the words “public school system” refers KAGE: I second the motion. to the intellectual program? CHAIRMAN: It’s been moved and seconded that the word CHAIRMAN: Delegate Wist, would you care to answer “establish” be deleted from the second line and the word that question? “formulate” be substituted in lieu thereof. WIST: Yes, I think Delegate Trask is quite right. The KAWAHARA: I wonder if it’s in order to ask a question intention here in this particular paragraph is to give to this here. We’re giving the board a lot of power, a lot of con board of education the responsibility for formulating inter trol, and also we have given the superintendent voting power nal policies and that would refer, of course, to any respon on the board, and yet we haven’t quite agreed on Section 2 as sibilities that had been given to it by the legislature. Now to the composition of the board, how many members shall if the legislature has not given to the board the responsibility the board be composed of or whether - - for the maintenance of school plants, which we have left CHAIRMAN: Are you speaking to the amendment, Dele entirely up to the legislature, then it would not include those. gate Kawahara? A. TRASK: Well, what I have in mind is this, more graphically stated perhaps. If the legislature, it seems to KAWAHARA: Yes, because of the fact that the word “formulate” policy or “establish” policy has a very serious me, pursuant to Section 1, sought to interfere with an in tellectual program for the public school system, it would implication in my opinion. When I asked the question, shall seem to me that it would violate the powers given to the clergymen or persons of holy orders be allowed to sit on board in Section 3, and therefore any legislation to that the board, I had the section here, Section 3, “establish effect would be unconstitutional. policy” in mind. If we empower the board to “establish Now, I am putting to me a very real question. Say the policy” in our Constitution, it’s going to mean that the board legislature would advocate, well, let’s say communism - - may establish such policy from time to time as guaranteed in this Constitution. If we are going to do that, I think it’s LOPER: May I rise to a point of personal privilege in necessary for us to establish the board first and find out connection with this inquiry? I think I see the point that what this board is going to be composed of: how many mem you are making. It certainly was the intention that this bers, who is going to serve on it, are we going to pay them, formulation of policy should be subordinate to policies laid so forth and so on. Where are they going to come from? down by the legislature. It was not intended that anything AKAU: I was going to raise the question of which comes enacted by the legislature should be unconstitutional be first, the chicken or the egg ? Do you establish something cause of this language. I think then that perhaps we should first and then formulate it afterwards or is it the other way say, “The board of education shall be empowered to formu around? I don’t know. I raise the question because there late policy not contrary to existing law,” or something of the may be a fine line of demarcation, but 1 don’t see it. kind. SAKAKIHARA: In reply to the inquiry or statement of HEEN: May I ask the speakers to yield a moment? the delegate from West Hawaii, I think Section 2 of the LOPER: I’ll yield. proposal takes care of that. That left it to the legislature. HEEN: I have an observation to make. This part of this CHAIRMAN: Delegate Trask, did you wish to be recog section might be amended to read as follows: nized? The board of education shall have control over the A. TRASK: Yes, if you please. I just wondered whether public school system. or not in Section 3 the question is to establish and to have - - exercise control. Those words “establish”—I’d like to ask When they have control, they certainly have the power to this of the chairman, perhaps—the word “establish” and the formulate policies and everything that goes with that control; word “control,” they have reference evidently to the public and if that is accepted, why we can eliminate all further school system. Now, doesn’t that refer altogether to the arguments. intellectual program and really not to facilities and other CHAIRMAN: Is that merely a suggestion, Delegate Heen? things which are connected apparently in Section 1? In other words, the word “establish” and the word “control” HEEN: Well, if it sounds good to the delegates, I so mov have, do they not, reference to the public school system that after the word “shall” in the second line, delete all the which refers to the intellectual program which may change words up to the word “control” appearing in the third line, from time to time, and that’s why you have people on the and insert for what is to be deleted the word “have.” board from every phase of life? My position is this, that if you give the control of the school system to the board of education, they certainly can LOPER: I’m not sure that I follow the question entirely decide and establish or formulate policies. but I agree with what I believe you mean. The laymen who are members of the board would establish or formulate WIST: As one member of the committee, but not speaking policy within the law for the control and governing of the for the committee, I would gladly accept that amendment schools. Now, the question of the control over the physical because I think it covers the problem without us encounter facilities is referred to in the first Section and can be dele ing the difficulty that the senator from the fifth district has gated by the State or the legislature either to the school raised. JUNE 17, 1950 • Morning Session 597 YAMAMOTO: I second the motion. KAWAHARA: I wonder if the word “empowered” could be left in there and a possible amendment like this: “The A. TRASK: Point of order, please. board of education shall be empowered to exercise control CHAIRMAN: Delegate Trask, state your point. over the public school system,” eliminating the word “full,” eliminating the words “establish policy.” If they are going A. TRASK: Will the delegate from the fourth district, to control, they are going to establish policy anyway. How Judge Heen, restate his amended section, please in full? ever, I think the word “empowered” should be in there. REEN: After the word “shall,” delete the words “be empowered to establish policy and to exercise full,” delete A. TRASK: I am very, very much concerned about this those words and substitute for them the word “have” so word “control” with reference to the power of the board of that that part of the sentence shall read: “The board of education over the public school system. I’m thinking about education shall have control over the public school system a concrete situation where the legislature would say, as a through its executive officer.” matter of policy, that the school system of Hawaii shall teach American history from a particular slant that may be SAKAKIHARA: I second that motion of the language as - agreed upon by the legislature, and then the school board proposed by the delegate at large from the fourth district. would be defiant of such a program. Now the concrete I would like to ask him this question. Won’t that give the question is whether or not the powers given to the board absolute control of the public schools to the board of edu in Section 3 are specifically broad so that the legislature cation? would be embarrassed and could not formulate such a pro REEN: I didn’t quite get the purport of that question. gram of intellectual planning. It seems to me that the words “control over the public school system”— and I take SAKAKIHARA: According to your amendment, you will the words “public school system” to mean an intellectual vest the entire power of the - - over the public school system program—that it would give the board power. The legis to the board of education - - lature might be embarrassed in telling the board what to do. HEEN: That’s correct. Now, of course, maybe it’s one of those words that Mr. Nils Tavares refers to, as to power and how far it can go and SAKAKIHARA: - - by constitutional mandate, and that how far it’s going to be limited. I’d like to think that the the legislature will have no power whatsoever other than to legislature would have some participating control over the make available funds for the public school system. establishment of policy since in the motion now pending, the REEN: No, I don’t think that follows. In order that that words “be empowered to establish policy and to exercise board may function, of course, the legislature will have to full” have reference really to legislative participation in appropriate the necessary funds. the policy of the school. So I am troubled. SAKAKIRARA: But you would deny the legislature the HEEN: May I relieve you of that trouble, Mr. Speaker? power to formulate any policy under the terms of your amendment? A. TRASK: Well, I’m just convalescing. HEEN: No, the legislature still has the power to formu HEEN: Another observation. That clause might read late - - form policies. this way: SAKAKIHARA: Or establish policy for the education The board of education shall have power to administer system? You say here, according to your amendment, the the affairs of the public school system. section will read, “The board of education shall have control How does that sound? over the public school system through its executive officer.” HEEN: That’s correct, and with that control, of course, KELLERMAN: May I go a little bit into the history of they will have the right to formulate policies. these two phrases? It was the discussion of the committee and its discussion in the committee records that to “formu SAKAKLHARA: I beg to differ with the gentleman. late policy” and to “exercise control” mean, in a sense, two It will be a paradise for the courts and lawyers to go to different things. That the board should have the power to court to struggle out and fight it out as to the interpretation formulate policy, to exercise control through the superin and intent of that amendment. When one - - perhaps you tendent of public instruction, the control being administra say the board of education shall have control over the public tion, control of administration through the superintendent [school] system, and I beg to differ with the delegate at large of public instruction, not to formulate policies through the from fourth district. In my opinion, I believe that we are superintendent of public instruction. There is a basic differ throwing the entire power of the policy to the public school ence in theory of power between the two terms. I’m not now system to the board of education. I think that should be discussing the inter-relationship of the power of the board reserved to the legislature and its duly elected representa with the power of the legislature. I’m speaking of the power tives of the people. of the board with the power of the superintendent of public LOPER: There can be no question about the soundness instruction now and the way the system works. We deliber of the position taken by the last speaker. One of the chief ately chose to “formulate policy” and “to exercise,” to draw functions of the State board of education is to carry out and a distinction between those two ideas. The formulation of to enact - - be responsible for carrying out the laws on policy is independent of the superintendent, other than in education enacted by the legislature, but I think that a slight his vote or in his relationship with the board, but the modification of the wording might take care of that. exercise of administrative control of the public school system is to be exercised through the superintendent. TAVARES: It seems to me this is one of that type of word Now, to make that clear—it may sound like just language which is sufficiently, shall we say, ambiguous so that by a to most of you—but the educators have this in mind, and report of the Committee of the Whole interpreting it in those of us who have been - - had some relationship in study accordance with what has been agreed to be the proper ing the school system, there has been criticism frankly of interpretation, that this does not prevent the legislature members of the board of school commissioners - - from passing laws to fix policy, that we can then accept the section now with the amendment suggested by Delegate HEEN: I rise to a point of personal privilege. I withdraw Heen. my motion. 598 EDUCATION SAKAKIHARA: May I make this suggestion? By amending CHAIRMAN: It’s been moved and seconded that Section 3 Section 3, alter the word “empowered” in line 2 thereof, and be amended by inserting, alter the word “empowered,” “as alter there insert, “as authorized by law to formulate and authorized by law,” and substituting the word “formulate” administer policy.” for the word “establish.” DOl: I second the motion. SHIMAMURA: May I speak to that amendment? I don’t CHAIRMAN: It’s been moved and seconded. think it’s wise, in my humble opinion, to make that “as authorized by law” because if you did that the board’s powen H. RICE: Mr. Chairman. would be considerably restricted. We should have it, I SAKAKIHARA: May I speak on the amendment? think, in the original wording of the delegate from Hawaii in CHAIRMAN: Delegate Rice. which he said “in accordance with law,” which would be a much happier and much more accurate, I think, wording. H. RICE: With the exception of the amendment made by If you have it “as authorized by law,” the construction may Delegate White, I’d like to have the section stand as is. I be poakible that—and I think it would be so construable— think the delegate from the filth is unduly exercised over that for every act of policy-making, the legislature must the reading of this section. The board of education has to have specifically authorized it. To make it “in accordance “play ball” with the legislature; the cash comes from the with law” wfll be more accurate. legislature. They look after the affairs that the legislature wants them to, they have to “play ball” and it’s been my WHITE: I feel the same way about it. To put in “as experience that they always bow to their wishes. Therefore, provided by law,” you might as well eliminate the whole I am against amending this section in any other way but by section. There’s no need for it. the original amendment by Delegate White. DOl: I have heard some discussion on this amendment SAKAKIHARA: I offered the amendment so that there will before we recessed, and I believe Delegate Wist did express be an expressed understanding. It says, in reading the some sentiment of the committee. I think this addition here, amendments, that the legislature - - the powers reserved to the amendment here, only makes clearer the intention of the legislature, it empowered in accordance with law or as the committee in the first instance. authorized by law. CHAIRMAN: Any further discussion? All those in CHAIRMAN: Delegate Sakakthara, will you withdraw your favor - - first amendment, then? HEEN: I think the suggestion made by Delegate Shima SAKAKIHARA: All right. I’ll withdraw my first amend mura is the better one. That is that “The board of education ment, with the consent of the second, to read “empowered shall have power to establish policy in accordance with law. in accordance with law.” That would give the legislature some measure of control over the policies that might be formulated by the board of WIST: May I say in answer to that particular point that education. that is exactly what the committee intended when it used the word “empowered.” Somebody has to empower the SAKAKIHARA: As movant of the amendment, I accept board, and the body that would empower the board is the the suggestion offered by Judge Shimamura. legislature. That’s why we used the word “empowered.” DOl: As second, I also accept the suggestion. SAKAKIHARA: To me - - I beg to differ with the last speaker. The wording as used here, “empowered,” is an CHAIRMAN: The amendment is now the insertion of the expressed power delegated to the board of education by this words, “in accordance with law” after the word “empowered Constitution, and is entirely different from that as delegated in the second sentence; and substituting the word “formulate’ to it by the legislature. I’m willing to lay those two amend for “establish.” Ready for the question? ments to the committees’ pleasure, either as “authorized LOPER: Is there any difference between inserting that by law” or “in accordance with law,” to establish policy after the word “empowered” or inserting it alter the word and so forth. “policy”? “The board of education shall be empowered to exercise or formulate policy in accordance with law.” KING: Some members have to leave to keep appointments between now and noon, and I was anxious to bring the Hawaiian CHAIRMAN: I believe that’s a matter of style, don’t you, Homes Commission Act up for third reading; so I move now Delegate Loper? that the Committee of the Whole rise, report progress and HEEN: I think the two words “be empowered” should be ask leave to sit again in order that we may take up the Ha changed to “have power.” “The board of education shall waiian Homes Act on third reading; then again resolve our have power to establish policy in accordance with law.” selves into the Committee of the Whole. CHAIRMAN: Hearing no second - - there is no second. PORTEUS: I second the motion. The question is on Delegate Sakakihara’s amendment. CHAIRMAN: It’s been moved and seconded that this LEE: Mr. Chairman, I believe - - committee rise and report progress and ask leave to sit again. All those in favor say “aye.” Contrary minded. CHAIRMAN: Delegate Kage. Motion is carried. LEE: Oh, Delegate Kage is recognized. CHAIRMAN: It’s been moved and seconded that the Second Morning Session amendment - - CHAIRMAN: Will the Committee of the Whole please LEE: Mr. Chairman, I thought you said you recognized come to order. Delegate Kage. SAKAKIHARA: I at this time make a motion to amend CHAIRMAN: He seconded the motion, Delegate Lee. the second sentence of Section 3 alter the word “empowered,” It’s been moved and seconded that Delegate Sakakthara’s insert the following: “as authorized by law”; and in lieu amendment be further amended to read as follows: of the word “establish,” the word “formulate.” The board of education shall have power to establish DOI: I second the motion. policy in accordance with law, and exercise control JUNE 17, 1950 • Second Morning Session 599 over the public school system through its executive a slight preference for the original wording, I see no serious officer, the superintendent of public instruction, who objection to this amendment. I think it goes to the matter shall be appointed by the board and shall be ex officio a of whether the Convention wishes to place pretty full re voting member thereof. sponsibility for the school system on the board of education or to indicate, specifically, as suggested by the amendment, SAKAKIHARA: May I speak to the amendment? that what we do is and must be in accordance with law. I HEEN: Will the gentleman please yield just a moment? assume that in either case, laws passed by the legislature Was it the idea that even in the matter of control that that affecting education become the responsibility of the board control shall be in accordance with law? If that is the intent, of education. then the amendment should be “The board of education shall SHIMAMURA: I believe that the words “in accordance be empowered in accordance with law to establish policy and with law” are certainly construable to mean also “not to exercise control.” In other words, the legislature will contrary to law,” so that in the event that there is no law, then have some measure of legislating in all matters con then the board may formulate policy in the absence of any cerning control and also concerning policy. law; and also, where there is law, not contrary to law. SAKAKIHARA: That’s what I was going to talk to, the amendment. WIST: I wonder if the mover and seconder of this motion to amend would accept that wording, “not contrary to law.” CHAIRMAN: Will all the movants of the amendment Perhaps that would clear this up. withdraw the amendments so we’ll have only one amendment on the floor then? TAVARES: I agree very heartily with Delegate Shima mura that in the absence of a law covering a specific area HEEN: My amendment would read this way: “The board on which decision has to be made by this board, they would of education shall have power, in accordance with law, to have the power to make that decision as long as it is not establish policy and exercise control over the public school contrary to law. That’s the implied power of every depart system,” et cetera. ment head or board, that where it’s within the area that he CHAIRMAN: Is that acceptable to Delegate Sakakihara? is authorized to act in and the legislature hasn’t specified a controlling policy, he exercises discretion. SAKAKIHARA: That is acceptable. DOI: As the seconder of the motion, I would not accept ASHFORD: Then the word “formulate” drops out? Is the suggestion made by Delegate Wist. I would rather see that it? It’s still “establish”? the suggestion in the committee report. CHAIRMAN: It’s still “establish.” CHAIRMAN: Are you ready for the question? SAKAKIHARA: Senator Heen, would you accept an KAWAHARA: I’d like some information on this statement amendment to that amendment? Instead of “establish,” here. Is there a great difference between the words “shall “formulate.” have power” and “shall be empowered”? The amendment, HEEN: In order to avoid any further argument, I’m “shall have power,” to the previous statement, “shall be willing to accept that amendment. empowered,” was made - - SAKAKIHARA: So that it would read “to formulate policy.” HEEN: May I answer that question? I did that because in the article on health and general welfare we used that CHAIRMAN: There is now only one amendment on this term throughout, “The State shall have power,” and “The floor. It reads, “The board of education shall have power, State shall have power” down all along the line. It’s just in accordance with law, to formulate policy and exercise for uniformity of language. control over the public school system through its executive officer,” et cetera. Ready for the question? KAWAHARA: That is what I had in mind, because in reading the sections in health and public welfare, each DELEGATE: Question. section starts out with “The State shall.” In the provisions KELLERMAN: Before we vote on that, may I ask a of this section on education, the first section starts out with question, information? What happens if no law has been “The State shall provide” and the second section does not passed on a policy? Is it understood by this Committee of say anything about the State. I wonder if some clarification the Whole that in that instance the board of education is could be made on that point there for not putting in the word free to adopt a policy? There may be many things that will “State,” or is it really necessary to put in the word “State” arise on which policy questions will have to be determined in each section when the word “State” was used in the various when the legislature is not in session and has not passed sections in the article on health and public weifare? upon it at all. It seems to me that you are restricting the board there. HEEN: If the delegate will look at that article on health It may feel under this authority that it must wait until the and welfare, he will find that in the first section of that legislature meets and formulates the policy and in accord article a phrase that reads, “The State shall provide for ance with that it can go ahead. It seems to me that you make the public health” and so on, instead of saying “shall have it very difficult for the board to operate unless we as a com power .“ So in this first section you use the same style, mittee make it very clear that the board in absence of any that is, “The State shall provide for the establishment,” law on the subject is entirely free to formulate policy. and so forth and so on. Otherwise we are putting them in a very difficult situation. CHAIRMAN: Are we now ready to vote on the amendment? All those in favor of the amendment signify by saying “aye.” LOPER: In answer to the last speaker, as I heard the Contrary minded. Hearing none, the motion is carried. amendment read, it said that “The board of education shall have power, in accordance with law.” It seems to me, TAVARES: I move that we take up Section 2 now. “in accordance with law” refers back to the power, not to CHAIRMAN: Just a moment. I think it is proper now policy in accordance with law. That was the point, I think, to have a motion for the adoption of Section 3 as amended. of Delegate Heen’s moving it back to its original position in that sentence. HEEN: I think that there should be another amendment Further commenting on this amendment, as one delegate to that Section 3. I will state it at this time and if it appeals not speaking necessaruy for the committee, although I have to the delegates of the Convention, I will move to reconsider 600 EDUCATION the action which has just been taken on that section. Going and until the legislature otherwise provides. And what’s down to the last clause, commencing with the word “who” wrong with that? in the fourth line, “who shall be appointed by the board,” I HEEN: All right, then, I’ll withdraw my motion. think there should be inserted there somewhere as to the power either of removal or as to the tenure of the superin CHAIRMAN: There is nothing before the house at the tendent. My suggestion would be that that phrase should present time except a motion to adopt Section 3 as amended. read as follows: “who shall be appointed by and serve at APOLIONA: I so move. the pleasure of the board and shall be ex officio a voting meffiber thereof.” LOPER: I second the motion. CHAIRMAN: There’s nothing before the - - SHIMAMURA: I think the use of the expression there, in the third line, “through its executive officer,” is not a ASHFORD: I would like to second that motion. happy one for this reason. You give the board of education, CHAIRMAN: It’s been moved and seconded - - in the first place, the power to establish policy and to have HEEN: I then move - - control of public education, and then you initially at the very beginning, delegate that power to the executive officer. SAKAKIHARA: Point of order. Therefore, I move to amend that section by inserting a CHAIRMAN: There’s no motion. I think it was only a period on the third line after the word “public school system’ suggestion. and then start a new sentence there as follows: HEEN: That was a suggestion, and if there is any merit The board shall appoint an executive officer, the super! in it, I would move now that we reconsider the action taken intendent of public instruction, who shall be ex officio a on Section 3. voting member thereof. CHAIRMAN: We’re still on Section 3, Delegate Heen. LOPER: The use of this particular language - - HEEN: Oh, I thought that that was approved. CHAIRMAN: There’s no second, Dr. Loper. CHAIRMAN: No. NIELSEN: I’ll second the motion. HEEN: Oh, very well. Then I will move that after the LOPER: The use of this particular language was deli word “by” appearing in the filth line of that section, the berate and for good and sufficient reason and it is in line following words be inserted: “and serve at the pleasure of.” with the Connecticut study of revision of constitutions, the I move that amendment. idea of centering the responsibility for the administration ASHFORD: I second that amendment. of policies established by the board in its executive officer. I think you will find the same language in a later section with CHAIRMAN: It’s been moved and seconded that we insert respect to the president of the university and the intention the words “and serve the pleasure of” after the word “by” is that the executive officer in each case will be responsible appearing in the filth line of Section 3. for carrying out the decisions and the policies made by the TAVARES: If there is one thing that’s certain in the majority vote of the board in each case. I, therefore, would common law, the decisions of the courts, it is that the power ask a very careful consideration for retaining the present of appointment includes the power of removal at will. It’s language. utterly unnecessary to put that in here. SHIMAMURA: May I ask the committee chairman, if I WHITE: I raise the same question. Are we going to do may, whether it is the intention of that committee to dele that with every officer or every executive officer of a gate outright at the beginning the function of establishing board? In the provision under, or in the article on executive policy and having control over the school system, to the powers and functions, this very problem comes up in connec superintendent, the executive officer, at the-outset? tion with every board appointment and the head of every LOPER: In answer to Delegate Shimamura, the answer executive department. It seems to me it’s lot better covered is no. The responsibility of an executive officer is to carry there than in each individual section. out the decision, to implement the decisions made by the HEEN: I’d like to ask the chairman, or rather the last board sitting as a committee of the whole and to carry out speaker, whether or not there is a general provision cover the policies of the board. He has no authority in his own ing this particular point? If there is, then you don’t need right except as he exercises the vote. it here. SHIMAMURA: I understand from many executive officers WHITE: There is a - - there are two types of - - there is that he does carry out the policy as established or formulatec a majority report and a minority report but both of them deal by any board, and that he does have administrative control with this particular situation. One recommends that the over the functions of any corporation or any board, as the removal of the - - I think both reports recommend the re case may be. But here, my objection to the terminology, moval or that they serve at the pleasure of the board. the phraseology, is that it delegates at the outset to the superintendent of public instruction, the executive officer, HE EN: I might state that this particular phrase, “at the these functions. In other words, you establish a board and pleasure of,” is found in the Organic Act in connection with give that board certain powers, and then in that same pro the appointment made by the President of certain officers vision you delegate it to an executive officer. It seems to - - appointments made by the President of the United States me it’s understood that when you establish a board which of certain officers in the Territory. has certain functions, that is, policy-making and control TAVARES: The effect of the amendment, if it is adopted, over its system, that the executive officer shall, as the administrative officer, carry out those policies. will be this : if the legislature, later on, would like to give the superintendent enough tenure so as to require his re TAVARES: I think the sense of this is clear. We don’t moval to be only for cause, you will prevent the legislature want non-paid, part-time members of a board to be running - - doing the administrative work. The biggest trouble that from inserting such a protection. In other words, you are cutting down the power of the legislature to regulate this the board of regents and the board of education in the past subject. And if you don’t say anything, then impliedly the has had is when some board member, instead of leaving power of appointment includes the power of removal unless the carrying out of the administrative policy to the executive JUNE 17, 1950 • Second Morning Session 601 officer, went around and tried to monkey with it himself, or thereafter all boards might be empowered to select their de herself. [Laughter] I’m trying to be impartial. It seems to partment heads or executive officers. me that this is designed to do exactly that, to serve notice LOPER: There is ample precedent for the appointment that we want these board members to fix policy and then we of the superintendent on the mainland in local school boards want them to let the administrative officers carry it out, and in some state boards. It is not nearly as common in and if he doesn’t, they should either - - they should fire him. state boards, but ft’s qufte common in local city and county If they can’t get a board member who has enough of their boards. confidence and who will carry out those policies properly, they should fire him; but they shouldn’t be monkeying in MAIJ: I’m sorry I didn’t make my question clear. I these administrative matters over which most of them are meant any other boards or commissions within the Terrftory. very unqualified to act. TAVARES: I think I can answer that question. Not many CHAIRMAN: Delegate Akau, did you wish to be recognized? years ago the board of heafth setup was created exactly that AKAU: I just want to - - pursuant to what Mr. Tavares way by the legislature and, in my opinion, very ill-advisedly, said, the executive officer, who is the superintendent, is on the request of Governor Stainback, was then restored to there every day. The people from the commission meet the present system. I think ft was a step backward, but it once every two weeks or once every four weeks; therefore, has been done in this terrftory wfth the board of health. the superintendent has to really be on the job and that’s why CHAIRMAN: We have now before the commfttee a motion it’s worded just as it is—throughthe executive officer. to adopt Section 3 as amended. Are you ready for the ques That’s just a clarification of what actually happens. You tion? All those in favor say “aye.” Contrary minded. The don’t have the people on the commission going every day motion is carried. and sitting in a meeting. We come now to Section 4. MAU: I think that the speaker from the fifth district is TAVARES: May we go back to Section 2? I have the correct in his analysis of the language. He is not against amendment ready that I was going to suggest. It’s on the the control through the executive officer, but he is speaking desks of all the members. A proposed amendment to to the formulation of policy through its executive officer. I’m Section 2 of Committee Proposal No. 11: insert after the wondering whether or not there shouldn’t be a comma after word “education” in the second line of the section the the word “policy” and then the words go on “and to.” In following, comma, “at least part of the membership of other words, reinsert the preposition “to,” which had been which shall represent geographical subdivisions of the stricken through a former amendment by Delegate White. state” comma. Then it would read, “The board of education shall have KELLERMAN: I’ll second. power to formulate policy, and to exercise control over TAVARES: I think this actually carries out what the the public school system through its executive officer.” I report of the commfttee wants to be done. I think ft rein think that would clarify it. forces their desire that there be at least in part a geogra WHITE: That’s correct. I think it would even be an phical distribution of the membership in various geographi improvement if you went back and - - Excuse me. cal areas throughout the state, so as to have local repre sentation. It gives body to the later requirement of the MAU: Well, if that has merit, I move the amendment. same sentence that there be a panel which nominates - - local school advisory councils which nominates the mem LOPER: I second the motion. bers of the panel. CHAIRMAN: Did Delegate Loper second the motion? LOPER: I would like to speak in support of that amend SAKAKIHARA: I rise to a point of order. ment. I think perhaps we were a little too brief in our statement. It’s fully covered in the report. It was the CHAIRMAN: Delegate Sakakthara, will you state your intention that geographical representation should be pro point? vided for. SAKAKIHARA: I believe this committee of the whole has CHAIRMAN: The amendment - - Are you ready to vote agreed to amend the second sentence of Section 3 after the on the amendment? word “shall,” to read, “have power in accordance with law.” A. TRASK: Just a question. Does the geographical sub CHAIRMAN: Delegate Mau, that was in the - - division, asking Delegate Tavares, refer to the island sftua tion or does ft - - would ft have reference to perhaps polit MAU: I didn’t - - The words are in my handwriting, but i~cal, representative, senatorial subdivisions? I couldn’t read ft. I agree with that and that should be in cluded. TAVARES: I purposely used the words “geographical subdivisions” to be broad enough to cover any kind of sub CHAIRMAN: It has now been moved and seconded that division the legislature saw fit to make. Section 3 be amended to read as follows: “The board of education shall have power, in accordance with law, to CHAIRMAN: The question is shall we vote to adopt the formulate policy, and exercise control over the public amendment as proposed by Delegate Tavares? school system, etc.” Is that correct? LOPER: One question. Does “polftical subdivision” MAU: “And to exercise.” mean counties or is ft broad enough to include or mean “school administrative districts”? CHAIRMAN: “And to exercise control.” Ready to vote on the amendment? All those in favor of the amendment say TAVARES: The word “geographical subdivision” is broad “aye.” Contrary minded. Hearing none, the amendment is enough to cover any kind of a subdivision, whether ft’s a carried. school district, representative district, senatorial district or any other type of district. MAU: One more question; I know we’ve been at this a long time. In, empowering the board of education to appoint CHAIRMAN: The amendment now reads: the superintendent of public education, I am wondering whether There shall be a board of education, at least part of or not there is an existing precedent for it; and if not, whether the membership of which shall represent geographical the creation of this will be a precedent, good or bad, so that subdivisions of the State, to be appointed by the governor, 602 EDUCATION by and with the consent of the Senate, from a panel nomi CHAIRMAN: All those in favor of the amendment, say nated by local school advisory councils to be established “aye.” Contrary minded. Hearing none, the motion is by law. carried. LEE: If the word “geographical subdivision” is as broad We will now proceed to Section 4. as I understand it to be, it doesn’t mean anything then. In HEEN: No, no, Mr. Chairman. I have another amend other words, we might just as well leave it out. What is there ment which I did propose at one time, but it didn’t seem to to be gained because the legislature, or the governor rather, appeal to the members. That was in the third line after could take them from every - - could take them from the the word “by,” insert the words “each of such”; and then City and County of Honolulu and say, “Well, one was from on the next page, change the word “to” to read “as may,” Nuuanu and the other from Waikiki; that’s a geographical I move that amendment. subdivision.” WHITE: I’ll second it. HEEN: In answer to that, I don’t think the legislature CHAIRMAN: It’s been moved and seconded - - would be that foolish, while my colleague is still in the HEEN: “From panel” - - Senate, to divide up Oahu, for instance, “All that part north - - west of Nuuanu shall constitute one district,” and CHAIRMAN: May I state the question, please? It’s so forth and so on. What the legislature would probably do been moved and seconded that the words, ~‘each of such” be is this, that one district would be the County of Hawaii, inserted after the word “by” in the third line of Section 2; another would be the County of Maui, the County of Oahu - - and the words, “as may” be substituted for the word “to” City and County of Honolulu, and the County of Kauai. That in the fourth line of Section 2. could be done under this general language, and I think the HEEN: That’s correct. legislature would be intelligent enough to do that. CASTRO: It seems to me that the amendment completely LEE: I’m sure the legislature would be intelligent enough changes the sense of the committee report. “A panel nomi to do that, but the governor would not be restricted, unless nated by each of such local advisory councils” would mean the legislature acted. to me that each local advisory council would have to nomi HEEN: The governor would be restricted if we passed a nate a complete panel to the board of education, and as I law stating so and so and he approves it, and if he doesn’t understand the committee from speaking with members of thc we override his veto. committee and reading the committee report, the idea is that the local school advisory council would submit names ASHFORD: May I call to the intelligence of the legislators as a representative of the geographical area which it rep present that possibly this language might provide for an resents. I think that the amendment is not well taken. appointment of someone from Molokal. LOPER: Speaking not for or against the amendment, be KELLERMAN: The committee had in mind two very cause I think it will work out the same either way, but definite concepts with reference to this board. We carefully speaking to the purpose of clarifying the language, we tried omitted all details for fear we would run afoul of the pre to decide whether to make the word “panel” plural and have scription against legislative matter. But Mr. Tavares has names submitted on four or five panels and then put them ably pointed out the need for calling to the attention of the together in one list, and we discussed that in our report, or legislature the committee report which spells out how we to leave it singular. The intention is that each local council would like the board of education to be appointed and from will submit names and from the names submitted by that what districts. council, the appointment of the board member from that On the same theory, I would like to propose a brief further particular district would be made. Then if there are two amendment to introduce, after the word “appointed,” “for or three board members to be appointed at large, those staggered terms.” We are very anxious to have the board appointments would be made from the remaining names on of education a continuous body. Now if that is legislative the combined list submitted by all of the committees. and the other is not, I am perfectly willing to accept it, but I want to bring to the attention of this body, and if necessary KAWAHARA: I’m inclined to agree with Delegate Trask have it in the report of the Committee of the Whole, that our in his interpretation of the word “made.” This whole phrase intention was a continuous body to give it a greater continuity from the words “from a panel” to “established by law” was of purpose and of policy and independence. inserted there because of the position taken by many mem bers of the committee, some members of the committee, HEEN: I don’t think you need that provision in the Consti that the local units, the local geographical units of people tution. That can be taken care of in the legislation itseif in the various localities should have some representation. and that has been done quite frequently in all of these - - If you are going to water that section down, I see no reason many of these boards. why we shouldn’t water the other section down, which has LEE: I agree with my learned colleague on that, that something to do with appointments. I think by inserting the legislature can provide that, but in the Committee of the the word “may,” it leaves it up to the legislature to establish Whole report we might mention it, and that goes for the such~ council. I think it should be stated so that the councils - - the panel shall be by this Constitution set up so that amendment. That same argument that my colleague, dis tinguished colleague sifting next to me, has argued could people may choose and nominate people on this board of certainly apply to the amendment because it’s in so broad education. a general term that the intention of the Constitution makers H. RICE: Originally when they drafted this section it could be incorporated in the committee report. That’s said, “from a panel nominated by the county school advisory where it belongs instead of lengthening the verbiage of the board,” and I objected to the word “county” because I wanted language in Section 2. to take in local school boards such as Molokai, Lanai. They would all be able to set up a panel and have some represent TAVARES: One more thing and that is, if, as I believe, you are going to have a Senate controlled by the non-Oahu atives on a panel, even if it was one or two names they may districts, they will jolly well take care so that the geogra suggest. Because, as you could see, if it were county-wide, phical subdivisions will adequately represent the different why Wailuku might absorb the entire panel. But I think the wording as it stands is O.K., and I agree with the other subdivisions. member of the Education Committee. I think we should LEE: Leave it out. leave this as it is. JUNE 17, 1950 • Second Morning Session 603 WIST: I’d like to speak in support of what Mr. Kawahara KAWAHARA: I’d like to second the motion. However, said. I think it was definitely the consensus of the committee before we second that motion I’d like to - - that this was to be a mandate upon the legislature to establish CHAIRMAN: Is there a second to that motion? or set up these advisory committees, and if we use the word “may” instead of “shall,” we would simply make it permis A. TRASK: Second it. sive rather than mandatory. CHAIRMAN: It’s been moved and seconded that Section 2 CHAIRMAN: Delegate Tavares. Delegate Heen, I’m try be tentatively agreed to. ing to get all the other speakers before recognizing the KAWAHARA: In setting up this board, or rather I should movant. say - - start by saying that in the various proposals proposed HEEN: No, I think I can clear this up now because it’s by various members of this Convention, in one of the pro been made clear to me that while you may have panels from posals at least, there was this statement, “that no clergy various localities where advisory councils are set up, that man or persons of holy order shall be members of the board.” you need not appoint from that particular district. There In looking over the report here, No. 52, I may be incorrect, fore, I withdraw my motion and suggest this - - make this however I fail to find an explanation of that provision. I suggestion. Delete the word “a” in the third line of that should think that some provision or some statement should section before the word “panel” and change the word “panel” be made in this Section 2 as to whether or not clergymen or to “panels.” “From panels nominated by local school persons of holy orders may serve on the board here for this advisory committees to be established by law.” I make that reason. In Section 3 we are giving the board power, in as a motion. The only change would be to delete the word accordance with law, to establish policy and to have control. “a” in the third line of the section and change the word If we have people, clergymen, persons of holy orders, while “panel” from singular to plural. I do not say that their judgment may be unsound, if we have such persons on a board of education, it may be that in some KAM: Second that motion. future time these people may formulate policy and exercise AKAU: Would that mean then that, say, the island of control over the intellectual pursuits of the children in the Oahu could suggest six panels or eight panels rather than public schools. For that reason I believe it’s necessary a panel? It seems to me that we are changing the sense of in our article on education that some statement be made to the thing when we eliminate the word “a” and make “panel” that effect in one of these various sections, and I think that plural, which might be interpreted to say that one island Section 2 is the logical place for that statement to be put in. could present any number of panels and the people could be Therefore, I would suggest that an additional amendment be chosen, rather than from each island. “Panels” I think made - - an additional statement be made after the words, could be misconstrued. “established by law” in Section 2 to read as follows: “No clergyman or person of holy oxders may serve on the board.” LOPER: On that point, it may be to the advantage of the I so move. school system to have an advisory council on the island of Lanai, another advisory council on the island of Molokai, BRYAN: Is there any second to that motion? and still another on the island of Maui, and yet not have C. RICE: I second it. that many board members from that county. So I think the change suggested by Delegate Heen is good, to say “panels BRYAN: I believe that that’s well covered elsewhere. nominated by local school advisory councils.” My question And I think that the fact that the “established by law” is in then goes to the point raised by Delegate Kawahara. “To here that that law would include the Constitution. I think we be established by law,” or, “which shall be established by have sufficient safeguards against what the delegate is law.” If the language, “to be established by law,” is a worried about in other sections of the Constitution. I also mandate, then it is all right as it stands. think that there are many localities where the people that he was mentioning might be very valuable members of the NIELSEN: Going back about an hour and a half, I made board. the suggestion that after the word “councils” we should insert “in each district from which a board member is to KAWAHARA: Certainly I agree with Delegate Bryan that be appointed.” This amendment that we agreed to awhile members of holy orders and clergymen may be valuable ago regarding geographical subdivisions to me doesn’t mean members who may serve on the board. I do not disagree with a thing, and I would like to see that the councils are from the that viewpoint. If I remember correctly in the Organic Act districts in which board members are to be appointed be there is some provision as to whether or not clergymen or cause that’s the sense of the whole thing and we might as persons of holy orders may serve on the board. I think this well spell it out so there can’t be any misunderstanding. provision is very important. For that reason, I move that Section 2 be amended to read as follows: “No clergyman or TAVARES: I think now we are going into too much detail. The legislature by law will take care of all of those details. We placed here a bare skeleton and pointed the way to which CHAIRMAN: Delegate Kawahara, it’s already - - you’ve they must go. I think you can safely leave it to the legis already made the motion and it’s been seconded. lature to take care of those other details, and I think the TAVARES: I rise to speak against that motion. I think amendment is proper. I think the amendment means exact that’s a matter of qualifications which can be fixed by the ly what the committee wanted it to mean as it stated in its legislature and is now fixed by Section 1703 of the Revised report. Laws of Hawaii, 1945, which says: “No person in holy CHAIRMAN: Ready for the question? Question is on orders nor a minister of religion shall be eligible as a the amendment proposed by Delegate Heen. The amend commissioner.” I think we’re going a little bit too much into detail in putting this provision in, and I submit that we ment is this: to delete the word “a” appearing in the third should leave it to the legislature, if it so chooses, to elim line before the word “panel,” and to substitute the word inate that, and I think the legislature can be left to take “panels” for the word “panel.” All those in favor of the care of that situation. amendment say “aye.” Contrary minded. The amendment is carried. CHAIRMAN: Ready to vote on the amendment? TAVARES: I now move that we tentatively approve LOPER: In answer to the first portion of Delegate Section 2 as amended. Kawahara’s remarks as to where the proposal appears, it is 604 EDUCATION in Proposal No. 10, Section 1, and it’s referred to in the PORTEUS: That’s correct. report on page 19 in the following words: “The board of education to be part appointed, part elected.” This was ASHFORD: Then that would be equally properly a method - - a matter for the legislature to care for. filed in view of the committee proposal on Section 2. That’s all that is said about that particular thing in our committee WIST: I think this has already been answered. In other report. I just wanted to clear up that point. words, we acted in terms of the positioq of the superintender CHAIRMAN: All those in favor of the amendment say to place him on the board as a voting member. Now we mad “aye.” Contrary minded. The noes have it. The motion a change there in terms of the position of- the superintendent, is lost. to conform with the practice that we now have with reference The question now is, shall we adopt Section 2 as amended? to the president of the University. In other words, what we Question? All those in favor say “aye.” Contrary minded. are stating here is that we would like to have in our basic law the same principle expressed with reference to the HEEN: That’s a tentative adoption. president, and I think that by all means he should remain CHAIRMAN: Section 2 is tentatively agreed to. a voting member of the board and that the superintendent should be also an ex officio voting member of the board in LOPER: Section 4 has to do with the board of regents of the University of Hawaii and provides nothing new. It pro order that there can be a tie-up between the public school system and the University. vides for a board to be known as the board of regents of the University of Hawaii and the manner of their appointment and KAM: In Section 4 we had talked about the superintendent two ex officio members of that board of regents as at present. of public instruction - - in Section 3, as being ex officio votin member. I think that should be left out in Section 4. KELLERMAN: I move for the adoption of Section 4. VOICE: It’s a different board. LOPER: I second the motion. KAM: I know but, “the president of the University shall CHAIRMAN: Moved and seconded that Section 4 be ten be an ex - - “ Just leave out the superintendent of public tatively agreed to. instruction. Just a suggestion, because you have it above BRYAN: I have one question. I didn’t see it in the com in Section 3. mittee report. Is it the recommendation or the intention of DOI: With the consent of the second, I would like to the committee that the board of regents shall appoint the change my motion so that it will provide for the deletion president of the University? of the last sentence in Section 4. LOPER: In answer to that question, the answer is yes. IHARA: I second that motion. It’s covered in the next section. CHAIRMAN: It’s been moved and seconded that the last - - CHAIRMAN: Are we ready for the question? the second sentence appearing in Section 4 be deleted. Dele C. RICE: Present law has it that regents shall be ap gate Rice. pointed from the different islands. Will this do away with H. RICE: It seems to me we ought to provide some liaisor it, unless the legislature reestablishes this section? between the public schools and the University. The public schools should know what is going on in the University be CHAIRMAN: Delegate Wist. cause after all the University is teaching the teachers who WIST: No, this would not do away with it. We certainly come out from the University to take positions iii the public do not want to do away with it, but we felt in the committee schools with the board of education. There should be a that that too is a matter that should be left to statutory law, liaison between them. that in all probability the same statute that is now on thE CHAIRMAN: Ready to vote on the amendment? books will be reenacted. CASTRO: Seems to me that when an amendment as far C. RICE: I think just leaving it here would do away with reaching as this is made, that the maker of the amendment the present law. should give his reasons therefor. I, therefore, rise to a PORTEUS: I think we will want to keep in mind that the point of information and ask the delegate from Hawaii why existing statutes of the Territory of Hawaii, except as they his amendment? are inconsistent with the Constitution and thereby ruled out CHAIRMAN: Delegate Doi, will you kindly supply the by the Constitution, will remain in force and effect. In information that Delegate Castro desires? other words, if there is a law on the books now that isn’t DOI: I’m sorry, I wasn’t listening to the question. inconsistent with any provision of this Constitution, it’s going to take action by the legislature and be subject to the CHAIRM4N: Delegate Castro desires to know the reason veto of the governor in order to remove that statute from for your amendment. the books. DOI: I think it’s best to leave the question as posed by CHAIRMAN: Delegate Doi, yoi~ wished to be recognized? the last sentence in Section 4 to the legislature. DOI: I would like to amend the section by inserting in the TAVARES: I think we’ve already established the princi iast line of the section, between the words “ex officio” and ple in our other vote on public instruction of having the “voting” the word, “non-voting members of the board.” executive officer also be a voting member of the board. It seems to me that if one is sound, the other is, and since SAKAKIHARA: Second. the majority of this Convention has established the principle CHAIRMAN: It’s been moved and seconded that Section 4 of allowing the superintendent of public instruction to be an be amended by inserting the word “non” a1te~ the word ex officio member of the commission of public instruction, “officio” appearing in line 5 of Section 4. we should permit the president to be a voting member of the regents. For liaison purposes, which is very necessary, ASHFORD: In regard to the remarks of the delegate from we should make sure that the superintendent of public instruc the fourth district about the law as it now stands relating to tion has a vote on the board of regents. It has not always representation from several islands or counties, does not been so. - the law also contain the provision that the president of the University and superintendent of public instruction shall be CHAIRMAN: Delegate Tavares, the amendment does not ex officio voting members of the board? go to the voting or non-voting of the president or the super- JUNE 17, 1950 • Second Morning Session 605 intendent of public instruction; it’s for the deletion of the er education, however, is in a different category. Relative entire sentence. ly few people have that experience with higher education. We feel, therefore, that If you are setting up machinery for TAVARES: Well, that accomplishes the result. It takes advisory boards or something of that sort which would pro away the power of the president to - - vide a panel restricting the governor in his selection of board CHAIRMAN: He will not even be a member, Delegate members on the one hand or regents on the other hand that Tavares. you do not have analogous situations. And when I say this, TAVARES: Well, that includes it. I don’t want to be challenged with the idea that I do not have faith in the people because that isn’t the point at all. I think SHIMAMURA: May I ask a question of the Committee we have expressed the idea that we do have faith in the peo on Education, especially its chairman? Wasn’t it the intent ple because we’ve insisted, and insisted rather vigorously, of the committee to include the last sentence so that the on the panel idea for the public school system. But when president of the University of Hawaii and the superintendent you get into higher education, the people have not had the of public instruction shall not be left to the whim of the same kind of experience. The experience throughout the legislature? country has been, not only in Hawaii, but elsewhere, we LOPER: It was the intention of the Education Committee get our best University, the university could develop and to provide for the appointment of a certain number of regents, grow and it can be a pride to our community when the board and the board of regents to include ex officio the president is selected in accordance with the method that is now pre of the University and the superintendent of public instruction, vailing in Hawaii. as at present. That was the intention, and if you leave that KAWAHARA: I would like to speak to Section 4 in re out, the members of the board of regents would then be ap gard to the statement made by Delegate Rice from Kauai. I pointed by the governor, and it would not be possible, it think we should be consistent in our various sections - - seems to me, for the legislature to provide otherwise. CHAIRMAN: Are you speaking to the amendment, Dele SHIMAMURA: In other words you want - - gate Kawahara? The amendment is simply this, the deletion CHAIRMAN: Ready to vote on the amendment? of the second sentence appearing in Section 4. SHIMAMURA: - - you wanted to be sure that the president KAWAHARA: Yes - - no, no. I’ll speak to that later. of the University and the superintendent of public instruction CHAIRMAN: Ready for the question? The question is on shall be members of the board of regents? the adoption of Delegate Doi’s proposed amendment. All LOPER: That’s right. those in favor of the amendment say “aye.” Contrary minded. The noes have it. The amendment is lost. SHIMAMURA: I think that’s a very good provision. OKINO: In response to the suggestion that was made by WIST: May I say that this practice is in conformity with Delegate Charlie Rice from Kauai, I should like at this time practice throughout the country. It is difficult for presidents to move an amendment to this particular Section 4. I move of boards of - - presidents of universities to be members at this time to insert the following words, after the word and voting members of boards of regents. We have had the “Hawaii” appearing in the second line, “at least part of experience in Hawaii where, when the president is a mem the membership of which shall represent geographical sub ber of the board of regents and a voting member, things divisions of the State.” I see no reason why this particular ran rather smoothly. We’ve had the experience that when phrase which has been incorporated - - he is not, they do not run as smoothly. Why should we de-• part from practice that is traditional in our country and CHAIRMAN: Delegate Okino, do we have a second to the which has worked out well here. motion? CHAIRMAN: Are you ready to vote on Delegate Doi’s YAMAMOTO: I second the motion. proposed amendment? OKINO: May I now speak to the amendment? I see no NIELSEN: As long as we have gone thoroughly into reason why this particular phrase or clause which has been Section 3 on the method of appointing the superintendent of incorporated into Section 2 of this article is intentionally— public Instruction, why don’t we follow the same on the that’s the way it appears to the speaker — left out from Sec president of the University? I think the arguments are tion 4. I believe there are competent and some capable very sound in Section 3 and I don’t - - I’d like to know from men to represent the outside islands to serve on the board the chairman of the committee why the same procedure of regents, and I believe the practice heretofore has been wasn’t followed with regard to the president of the Univer so. sity? LOPER: I’m in agreement with the last speaker. How LOPER: Delegate Nielsen, I think you must be referring ever, I’d like to point out that the omission was not inten to Section 2 because Section 4 and Section 2 are the similar tional because it was also omitted from the other section. sections providing for the establishment of the board of We left it in both cases to the legislature assuming, of education and the board of regents. I’d like to suggest that course, that they would provide for the membership from the Chair recognize Delegate Wist on that point, if he’s the other islands. I see no objection to the amendment; it willing to answer. makes it consistent with the other section. WIST: Just what was your point there? A. TRASK: I have no objection to the amendment as made, but I do object strenuously to the idea that if we don’t provide NIELSEN: The question was why wasn’t the same pro such geographical subdivisions, Oahu is going to take every cedure used in naming the president of the University as in thing. It seems to me there’s a campaign here to establish naming the superintendent of public instruction? the fact that Oahu is going to get everything, and the other WIST: In other words, you’re asking why we didn’t sug islands nothing. I don’t - - I’m not possessed of that think gest a panel for the selection of the board of regents? The ing and I think it’s awfully wrong and I’m certain the dele reason for that in the opinion of the majority of the commit gate from Hawaii doesn’t intend that. But constantly we tee was simply this, that we feel that public schools are hear that Oahu is ganging up on all the outside islands. I very, very close to the people. The people have all had don’t think - - I think that’s awfully provincial thinking; experience with elementary and secondary education. High- that’s thinking that belongs to the Territory of Hawaii days. 606 EDUCATION I like to think that we should have a forward thinking and BRYAN: - - he will be appointed. I will so move. that we are all united and that there are many people on Oahu that love the outside islands, and circumstances pre H. RICE: I second the motion. vent them from living on the outside island. CHAIRMAN: Moved and seconded that the report indicate that the commissioner of agriculture be - - whoever it is. CHAIRMAN: Delegate Okino, do you wish to rise to a point of personal privilege? NIELSEN: If that’s the situation, why don’t we include it OKLNO: I appreciate very much the suggestion that was in and if we don’t have a commissioner of agriculture, the made by Delegate Trask, hut I feel that a certain degree of Style Committee will certainly cut it out. trust should be reposed in our legislators. I think that CHAIRMAN: The amendment has already been voted on, thing - - that particular point has been quite adequately ex Delegate Nielsen. plained by the delegate, Judge Heen, and I hope that Dele gate Trask at this time will not insist upon the particular DELEGATE: Question. suggestion which he has made. CHAIRMAN: All those in favor of the motion made by SHIMAMURA: Speaking to what the delegate from the Delegate Bryan say “aye.” Contrary minded. The noes fifth district said a few moments ago, some of us are seem to have it. wondering if the outside islands, neighbor islands, aren’t HEEN: Mr. Chairman. ganging up on the island of Oahu. CHAIRMAN: I haven’t made a ruling yet, Delegate Heen. CHAIRMAN: Are you ready to vote on the amendment? The ayes have it. The motion is carried. All those in favor of the amendment - - proposed amendment say “aye.” Contrary minded. Amendment is carried. HEEN: I am going to propose an amendment to Section 4-- NIELSEN: I’d like to make an amendment due to the fact that the university is a land grant college and agriculture TAVARES: Mr. Chairman. is one of the most important things we have in the territory. ROBERTS: Mr. Chairman. Point of information. For that reason I’d like to amend the second sentence to CHAIRMAN: Delegate Roberts. read, after the word “president of the university,” put a comma and include “the commissioner of agriculture,” and TAVARES: Mr. Chairman, I appeal from the ruling of then go on “and the superintendent of public instruction.” I the Chair. I think the noes had it. so move. ROBERTS: Mr. Chairman. CHAIRMAN: I didn’t get the motion, Delegate Nielsen. CHAIRMAN: Delegate Roberts, will you state your point NIELSEN: The motion is to, after the word “university” of information. - - “president of the university,” place a comma and add ROBERTS: I didn’t hear the ruling of the Chair. Did the therein “commissioner of agriculture,” then go on, “and the Chair rule that the ayes had it? superintendent of public instruction.” As this is a land grant college, agriculture is foremost, and I think there has been CHAIRMAN: The Chair ruled that the ayes had it. quite a lack of cooperation that we can get into a workable ROBERTS: I would like to, therefore, to have a question situation on agriculture by including the commissioner of of show of hands. It seems to me that there is some doubt, agriculture. I so move. there was some doubt in the Chairman’s mind. I think we PHILUPS: I second that motion. ought to get this question clear. It’s fairly important. HEEN: I don’t think there is anywhere in the articles which CHAIRMAN: There is no doubt in the Chair’s mind, have been proposed for the appointment of a commissioner Delegate Roberts. of agriculture. So, therefore, it has no place here, where SAKAKIHARA: Then I second that motion. as, right in this particular article you provide for a super intendent of public instruction, you provide for a president TAVARES: Then I appeal the Chair’s ruling to the floor, of the University of Hawaii. then. NIELSEN: Well, it’s coming up. SAKAKIHARA: And I second the motion made by Dele gate Tavares. HEEN: You might leave that until later, then. However, that can be taken care of by legislation if it appears to be KAUHANE: I believe you have stated your position and wise. I do have - - I call for the previous question on that that you have stated your position in such a manner that it motion. is your opinion that the ayes have it and I, therefore, feel that there is no ruling from the Chair’s decision. DELEGATE: Second. CHAIRMAN: It’s been moved and seconded. The pre PORTEUS: I think it’s been customary where we’ve been vious question has been called for. Shall the main question voting by voice that sometimes there are some people who be now put? All those in favor say “aye.” Contrary minded. vote a little more loudly than others, and sometimes those Motion is carried. that have voted in the majority have voted in a little quieter Question is the proposed amendment by Delegate Nielsen, fashion. Up till now it has been the practice, if people which is this: the placing of a comma after “university” haven’t been very sure and some people haven’t voted at appearing in the fourth line and inserting “commissioner of all, to have a show of hands or some other division. I see agriculture,” comma, in the same line. All those in favor no particular harm in doing that at this time. I don’t think of the amendment say “aye.” Contrary minded. Amendment it’s a question of sustaining the Chair; after all he’s in the is lost. position of making his ruling as he hears the sound, and I think it’s the fault of the rest of us for not making our BRYAN: I would like to ask the Committee of the Whole desires fully known. But there may have been some who if they would include in their report a recommendation so didn’t express themselves and if the Chair would be willing that should the commissioner of agriculture be set as an to call for a show of hands, we can settle it without any officer in the government - - more debate. H. RICE: Do you make that as a motion? C. RICE: Mr. Chairman. JUNE 17, 1950 • Second Morning Session 607 CHAIRMAN: The Chair is certainly willing to do that PHILLIPS: I second that motion. if that is the wishes - - CHAIRMAN: It’s been moved and seconded that Section 4 C. RICE: Having voted in the affirmative, I move for be amended by including this sentence: “The University of reconsideration of the vote, so that we could have a show Hawaii is hereby established as the state university.” of hands. TAVARES: We have a whole chapter establishing the PORTEUS: I don’t think the motion is necessary, if the University of Hawaii which we are going to continue in effect Chairman is willing to call for a show of hands. I think it by a subsequent section of this Constitution. I think we again will dispose of the matter. are going needlessly into detail. This by implication fits CHAIRMAN: Vote by a show of hands. All those in - - right in with the existing state university and I think it’s not necessary to go that far. ROBERTS: I’d like a point of information, please. Do I get the intent of the motion that we include in our report HEEN: I just wanted to get away from that, not to depend a recommendation that a commissioner of agriculture, if upon implication; have a direct statement there, and you one is established, shall become a member of the board of don’t have to indulge in any implication. regents? Is that the question? BRYAN: I would ask the movant if you would consider CHAIRMAN: I believe that was the motion. Is that cor making a separate section of that, rather than have it go rect, Delegate Bryan? into~ - ROBERTS: Well, it seemed to me that we have already CHAIRMAN: Ready for the question? voted on that question and the question was put as to whether HEEN: It fits right into that same section. we should have one. This committee voted no. Unless they want to reconsider that question, it seems to me that that CHAIRMAN: Are you ready to vote on the amendment? question can then be properly put. We already voted on that All those in favor of Delegate Heen’s proposed amendment, problem once. signify by saying “aye.” Contrary minded. The amendment is carried. CHAIRMAN: Delegate Roberts, this is merely including in our committee report that such an officer be a part of the LOPER: I now move that we tentatively agree to Section board. It’s not part of the proposal. We have not voted upon 4 as amended. the question. Delegate Porteus. BRYAN: Second the motion. PORTEUS: I don’t think this matter should be subject to CHAIRMAN: It’s been moved and seconded that Section 4 debate just now. I have some feelings on the subject. The be tentatively approved. Chair is courteous enough to ask for a calling of the hands. I ,think that we will have to go through a motion to reconsider HEEN: I move an amendment to that section. Delete the if we want to debate it further, but I think that the thing words “be empowered to establish” appearing in the second should be disposed of now on the Chair calling for a show line and insert in place thereof - - of hands. CHAIRMAN: Just a minute, Delegate Heen. Is that on CHAIRMAN: All those in favor - - Section 5? HEEN: If the majority of the Convention is going to HEEN: Five, Section 5. vote upon this motion in the affirmative, that means that they wish to have a commissioner of agriculture or similar CHAIRMAN: We have not voted on Section 4. Will you officer to be a part of the board or a member of the board withhold it just for a moment? All those in favor of the of regents. If this is so, then we might as well do it now motion - - instead of leaving it to the legislature. SERIZAWA: Point of information. We took a vote on the PORTEUS: Let’s have the call on the vote on a showing assumption that if the commissioner of agriculture is es of hands. No more debate. If we’re going to debate this tablished, then he shall be a member of the board of regents. matter, we will have to move to reconsider. Now let’s Does that mean that Section 4 will automatically include the have the show of hands, please. commissioner of agriculture if such office is established? NIELSEN: This is a very important thing. Agriculture CHAIRMAN: That is not the understanding of the Chair, is the backbone of the Territory - - Delegate Serizawa. It’s merely to incorporate in our PORTEUS: Point of order. Committee of the Whole report that if such an office is created, then we shall recommend that the commissioner CHAIRMAN: I’ll now put the motion. All those in favor of agriculture be on the board of regents. of Delegate Bryan’s motion, please raise your right hand. All those in favor of the adoption of Section 4 please sig Contrary minded. 24 ayes and 22 noes. The motion is nify by raising - - by saying “aye.” Contrary minded. carried. Motion is carried. Section 4 is tentatively approved. HEEN: I have an amendment to propose to Section 4. Section 1 provides that the State shall provide a state uni LOPER: I now move for the adoption of Section 5. versity and now we might as well state here in Section 4 J. TRASK: I second it. that the University of Hawaii is hereby established as a state university. In other words, add a new sentence at HEEN: I move an amendment to that section. AIter the the beginning of that section reading, “The University of word “shall” in the second line, delete the words, “be Hawaii is hereby established as the state university.” I empowered to establish,” and insert in place thereof the move that as an amendment. words “have power, in accordance with law, to formulate”; and in the third line delete the word “full.” CHAIRMAN: Will you please restate your motion, Dele gate Heen. SAKAKIHARA: I second the motion. HEEN: I move that Section 4 be amended by inserting CHAIRMAN: It has been moved and seconded that Section the following sentence at the beginning of that section: “The 5 be amended by inserting the following after the word “shall,” University of Hawaii is hereby established as the state uni “have power, in accordance with law, to formulate policy and versity.” to exercise control.” 608 EDUCATION HEEN: Comma alter policy. make it necessary for the university in anything that H did CHAIRMAN: I’ll read the sentence over again. “The to have a - - it would make the university have to have a board of regents shall have power in accordance with law, legislative act in order to empower it to do anything. I to formulate policy, and to exercise control,” etc. Is that happen to know that the board of regents as they are now correct, Delegate Been? empowered, and as I have been able to determine by read ing other constitutions, that they can administer the land, BEEN: Except that there should be a comma after be responsible for the land, make improvements to the land, “power” - - over and above anything that does not involve legislative CHAIRMAN: And alter “law.” appropriation, such as the housing that they have on the agenda up there now. I feel that to take it away from the BEEN: - - and comma alter “law,” as you read H at first. board of regents would be to cut down the power of them to I move that amendment. give us a more progressive university. DELEGATE: Question. TAVARES: It seems to me k’s a matter of choice or KAWAHARA: May I ask a question? Is a comma preference here, what we want to do. It’s been done by necessary alter “control”? law both ways. The City and County of Honolulu is created under the name of City and County rather than the board of HEEN: No, I don’t think so. supervisors of the City and County of Honolulu by Section CHAIRMAN: Ready for the question? 6501 of the Revised Laws and 6503. The latter section says: DELEGATE: Question. “The City and County is created a municipal corporation under the name of the City and County of Honolulu.” Now, CHAIRMAN: All those in favor of the proposed amend in my humble opinion, the only difference between the presen ment say “aye.” Contrary minded. Amendment is carried. form of the section and the method - - amendment suggested BEEN: I have another amendment to offer. Line 5, alter by Delegate Been is in one case the name of the corporation the second “the” in that line, delete the words “board of wUl be board of regents and so forth, and the other case it regents of the” so that that sentence will read: “The Univer will be the University of Hawaii. sity of Hawaii shall constitute a body corporate” and not the KELLERMAN: I don’t think it makes any - - possibly regents be a body corporate. any difference at law, but historically it has been that the DO!: I second the motion. boards of regents or the boards of trustees of universities for hundreds of years have been the incorporated body. I CHAIRMAN: It’s been moved and seconded that the second have here the original constitution of the State of Massachu sentence of Section 5 be amended as follows: alter the word setts adopted in 1780 with respect to Harvard College and H “the,” the words appearing “board of regents of the” to be is declared—this is from the Constitution of the State of stricken. Massachusetts, 1780—”It is declared, that the PRESIDENT WIST: I personally have no objection to that. I just want AND FELLOWS OF HARVARD COLLEGE”-that’s set up in to point out that this phraseology is the typical phraseology double caps—”in their corporate capacity, and their succes of other constitutions and statutes that refer to this parti sors in that capacity,” and so forth and so forth, shall hold, cular matter, namely the corporate body, that is, the board have title, and so forth, H goes on. It dates back to the being a corporate body. But I think the meaning is the same English universities. The boards of trustees of the re in either case. spective colleges at Oxford and Cambridge are incorporated in the capacky as, I don’t want to use the word trustees, but BEEN: The meaning is not exactly the same or anywhere similar. The other constitutions may have that type of in the language of the governing body and not the language language; but the university itself is an entity and H is the of the university itself. I think it’s a matter of historical corporation, and the board of regents are what might be precedent. I don’t know that H makes any other difference. termed the directors of that corporation, and you don’t make A. TRASK: May I ask the last delegate, what university the directors a corporation. she was referring to? Harvard? But wasn’t that a private rather than a public state university? That’s the difference. KAWAHARA: Speaking to that amendment, in discussion in the Committee on Education, the word “body corporate” KELLERMAN: I don’t think that makes any difference. was discussed and it was stated very clearly by one of our It happened H may have started originally as private, but members that the interpretation of the words “body corporate” k’s set up in the constitution and it gives them full corporate would mean that a body corporate in so many words means powers. But you’ll find the same language in other univer an artificial person. I don’t know. If that is true, then the skies that are state universities, in the other constkutions. University of Hawaii may be liable to suit and so forth, A. TRASK: I speak in favor of the amendment by Dele and that we might place the whole university in liability to gate Heen. There is a question in my mind, in addressing suit. I’d like to know if we changed the wording from “board myself to Delegate Kawaharà’s inquiry. It would seem to of regents” to just the “University of Hawaii,” I’d like to me that if we left H the body corporate, namely, the Univer know what the effect of that change would be. sity of Hawaii, it would be more invitational to some people BEEN: If there is any suit to be brought, the board of who, looking at the responsibility of a board of regents of the regents as a corporation might be sued for any damage that universky, may say, “Well, I might have a personal liabilky the board might incur, or rather, that is, when a damage is to a suit at law.” Now H would seem to me if the “board of caused by it. If the university as a corporation does any regents of the Universky of Hawaii” means the same thing damage it might be sued also in a competent court of - - as the “Universky of Hawaii,” H would seem to me to be a court of competent jurisdiction. But I have in mind this. better and more invitational to people who are available to Generally speaking, you don’t constitute a board of directors, have the words “board of regents of the” stricken, since a corporation. A corporation is an entity created by law and there seems to be some doubt about it. I am particularly the university itself should be that corporation and that the concerned about this situation because the latter portion of board of regents could then be, well, be regarded as the the sentence says that this body corporate “shall have tHie board of directors of that corporation. in fee simple to all of the lands of the university.” Now referring - - addressing ourselves to Section 1943 of PHILLIPS: I don’t exactly know how wrong I am here, the Revised Laws, we have this concluding sentence at the but I have the feeling that changing it in this manner would end of that paragraph, quote, “All lands, buildings, appli JUNE 19, 1950 • Morning Session 609 ances and other property so purchased or acquired shall be the title of “University of Hawaii” that is not included under and remain the property of the Territory to be used in the “board of regents of the University of Hawaii”? You perpetuity for the benefit of the University,” unquote. Now are either talking about persons or groups of people or some under the present situation, therefore, at the University of legal fiction. The board of regents will be a group of men Hawaii it seems to me—and I’m addressing myself to the and women, eight or nine, as determined by law, and if inquiry by the delegate from Hawaii—the University of Ha you cut out board of regents and say the University of Hawaii, waii apparently cannot be sued because you would have to who are you including that are not regents? Are you includ have permission to sue the Territory or have - - get a ing the professors, the staff at the university? settlement from the legislature with respect to any claim. HEEN: Under my proposed amendment, the university With this sentence, it would seem to me when you give the itself would be the corporation. Then all of the adminis University of Hawaii a body corporate entity, and you give tration of the affairs of the corporation would be in the it the property; therefore, if a suit is filed successfully hands of the board of regents who would, if this were in against the university and a judgment is received, it may business, be the board of directors of that corporation. very well be that execution may be made upon the buildings When you prepare a document, a contract of any kind, you and properties of the university and then the university would would start with saying that this contract is entered into be closed down. by the University of Hawaii, a corporation, and so and so and I’m addressing myself to two situations here, and I feel so and so, instead of saying that the board of regents, that right off that the title to the property should continue in composed of the following members, a corporation, shall perpetuity in the name of the Territory for the benefit of the enter into this contract. It would be very much simpler to university. Otherwise, we might - - or I might or the dele say that this is - - the University of Hawaii is the corpora- gate from Molokai might execute against the property of tion. the university and pilikia. So I’d like the chairman or Dean Wist to clarify that or the Secretary, who is regent at the DELEGATES: Question. university. HOLROYDE: Move the previous question. PORTEUS: I think there is going to be, from what I’ve A. TRASK: Second. been informed by the various delegates, some extended CHAIRMAN: Question? Question is shall we adopt Dele discussion on the subject raised as to the title in fee simple. gate Heen’s proposed amendment. All those in favor say I think the motion before the Convention at the moment is “aye.” Contrary minded. Motion is carried. purely with respect to the name. Now, whether you want to vote on the name now or later, I think the disposition of TAVARES: I think the matter should be reconsidered. many of the delegates is for the moment to rise, report I have just read the section - - the chapter on the University progress and ask leave to sit again. It’s 20 minutes after of Hawaii, and I think there are some provisions about 12:00. trusteeships which ought to be studied before we do this. We are apparently reversing ourselves. SHIMAMURA: Before we do that, may I be permitted to correct an impression - - mis-impression that may have been CHAIRMAN: I’d like to - - Delegate Tavares, the Chair been given by the remarks of one of the previous speakers. would like to inform the delegate that we merely acted on I’m not necessarily speaking against the amendment, I the name alone. might say. Naming the board of regents as the body corpo TAVARES: I think then we should - - I move to recon rate would not make them liable individually and personally. sider and defer because there is a section which provides They would be liable merely in a representative capacity that the regents shall be trustees for gifts, and we may and they certainly would not be legally responsible personal have some gifts already held by the regents as trustees. ly or individually. DELEGATE: I second the motion to reconsider. C. RICE: I agree with Delegate Trask, and I want to point out to the members before we take a recess that you PORTEUS: If I can get the floor, there’s going to be - - should read page 17 and 18. This making the university a We can leave the reconsideration to another meeting and body corporate and having title to its lands, they want to let the attorneys look into this matter in the interim, and borrow a lot of money. Now I want to know how much has come back more fully informed than we are at the present. been invested in bonds for the university. I want to know The motion is - - will be in order at the next meeting. So how they are going to be self-liquidating. That’s what they I now move that we rise, report progress and ask leave are after. I’m seconding the motion to take a recess. to sit again. CHAIRMAN: It’s been moved - - NIELSEN: I second the motion. HEEN: I rise to a point of order there because we’re not CHAIRMAN: It’s been moved and seconded that we rise dealing with that particular phase of that sentence at the and report progress and ask leave to sit again. All those present time. We were dealing with the matter the name in favor say “aye.” Contrary minded. Motion is carried. of the - - as to whether the university itself should be the corporation or the regents should be a corporation. JUNE 19, 1950 • Morning Session CHAIRMAN: That is my understanding of the amendment. CHAIRMAN: When the Committee of the Whole rose to PORTEUS: I think there are some requests to act on the report progress Saturday noon, we had just concluded taking name now; let’s act on the name, then I’ll make the motion - - action on Delegate Heen’s amendment to Section 5, the last WIST: May I say, before we act on that that I don’t think sentence of Section 5. The Chair recalls that the section the committee has any strong preference either way. It was amended to read “The University of Hawaii shall consti chose this wording because that’s the historical wording, but tute a body corporate and shall have title in fee simple to all if it’s the feeling on the part of the majority here that the of the lands of the university.” The amendment was the word “university” be used instead of “board of regents,” striking out of the words, “board of regents of the.” I’m sure that we wouldn’t feel offended in any way. LOPER: Was there also a proposed amendment in the LOPER: I would like to rise to a point of information last line after the word “lands” to add “now or hereafter and ask the maker of this amendment who is included under assigned to,” striking out the word “of? In any event we 610 EDUCATION have over the weekend studied rather thoroughly the wording WIST: I’m not personally too concerned with where these of this last sentence, and have before the delegates now a two particular words come in the section. The thing that I think and a ha]! page mimeographed statement concerning new is a matter of concern before this Convention is the question wording for the last sentence, the second sentence of of how this provision with respect to land ownership shall be Section 5. set up in the Constitution. And as proposed in the amend In order to get this before the Convention, I would move ment which Delegate Loper has made, it has to do with the deletion of the second sentence in Section 5 and the sub granting the university legal title instead of all-inclusive or stitution therefor of the second paragraph in the mimeographed fee simple title to lands and then stating that the university statement which is before you in quotation marks, which shall hold this in public trust and administer it in accordance reads: with law. Now maybe that wording isn’t the exact, the best The University of Hawaii shall constitute a public wording, but I think it conveys the idea. And the mimeo corporation and shall have legal title to all the lands of graphed sheet, titled “The University and Land Ownership,” has been prepared to present the argument so that the posi the university, which it shall hold in public trust and tion of the university is more exactly stated and overcome administer in accordance with law. the objections that were made to this feature at the last time HEEN: The amendment that I offered just before the we met. close of the session of the Committee of the Whole, the last hearing, was one that is applied only to the first part LEE: As I understand now, the amendment to Section 5 of that sentence and did not extend to the matter of title. would read as follows: “The University of Hawaii shall And the amendment that I offered was upon motion made constitute a body corporate and shall have legal title to and seconded, carried; that motion carried. all the lands now or hereafter assigned to the university which it shall hold in public trust and administer in accord CHAIRMAN: That is correct. ance with law.” Is that it? HEEN: But I let alone the last part of that sentence. The last part of that sentence, as I understand, is now open for CHAIRMAN: That is correct. discussion and perhaps for amendment. LEE: That is the present amendment? CHAIRMAN: It’s been moved and seconded that the second CHAIRMAN: That is correct. sentence appearing in Section 5 should be now amended to LEE: There’s only one amendment then? read: CHAIRMAN: There’s only one amendment before the The University of Hawaii shall constitute a public committee. corporation and shall have legal title to all the lands of the university, which it shall hold in public trust and LEE: And that’s been moved and seconded? administer in accordance with law. CHAIRMAN: That is correct, Delegate. HEEN: That is a further amendment of the first part of LEE: All right, Question. that sentence, which would require a motion to reconsider. TAVARES: Mr. Chairman, I still am a little bit lost CHAIRMAN: As I understood it, the amendment on here. I’m sorry I got here late. As I understand it that Saturday was merely the changing of the name, “The board leaves the first sentence, as amended, unchanged, of Sec of regents of the University of Hawaii” to “The University tion 5. of Hawaii.” It was not taken up as a substance but merely the change in the name. Wasn’t that correct, Delegate Heen? CHAIRMAN: The first sentence in Section 5 as amended is still the same. HEEN: That’s correct. The amendment was that that sentence - - first part of that sentence read, “The University TAVARES: And that reads now, “The board of regents of Hawaii shall constitute a body corporate.” Now, this shall have power, in accordance with law, to formulate amendment says that “The University of Hawaii shall consti policy and to exercise full control over the University of tute a public corporation.” So that is an amendment of the Hawaii through its executive officer, the president of the wording which was employed in the amendment that I offered, university, who shall be appointed by the board.” Is that is to “constitute a body corporate” and not “a public corpo correct? ration.” So it seems to me if you want to change that lan guage you’d have to have a motion to reconsider. I think CHAIRMAN: The only difference is the word “full” has Doctor Loper is more concerned with the last part of that been deldted. sentence which relates to title. TAVARES: Yes. LOPER: I would be glad to accept the amendment going LOPER: I rise to a point of information. If it should be back to the wording as it was on Saturday as far as the first preferable to change the wording in the first part of the part of the sentence is concerned: “The University of Hawaii second sentence, instead of reading, “The University of shall constitute a body corporate and shall have legal title to Hawaii shall constftute a body corporate,” to read as follows: all of the lands.” And at that point I would like to suggest “The University of Hawaii is hereby constituted a body cor the additional wording formerly suggested by the previous porate,” would that change be permissible in the Committee speaker, after the word “lands” to add “now or hereafter on Style or should it be made here? assigned to,” striking out the word “of.” HEEN: I think that is not a change in substance at all, CHAIRMAN: Any second to the last amendment? just a matter of phraseology, and can be handled by the ROBERTS: Second. Committee on Style. ASHFORD: Is the word “assigned” correct? Is that what NIELSEN: Doesn’t this - - Can’t this be handled by the is intended? Wouldn’t it be “conveyed”? legislature, the transferring of legal title to the lands? I’d LOPER: I was using the language that I wrote down as like to have that answered. Delegate Heen proposed an amendment which I don’t think CHAIRMAN: Does anyone care to answer that? was put in the form of a motion on Friday or Saturday, and I got it “now or hereafter assigned to.” NIELSEN: Couldn’t this be a legislative matter? JUNE 19, 1950 • Morning Session 611 ANTHONY: The purpose is to secure to the university TAVARES: I think the only reason why today the univer the title to the lands which it now has, and those lands which sfty doesn’t have legal tftle to fts land is the Hawaiian Or are hereafter set apart by executive order or otherwise to ganic Act which says that the Terrftory has legal title to the university. In other words, that will then place the all public lands and that they may be set aside by executive university in a position where it can take advantage of order of the governor, which of course is revocable. That’s certain public enactments of Congress and borrow money, the whole trouble. So that a great deal depends on what for instance, on a bond issue, and without that we would we’re going to have in our public lands section. The univer require further legislation. It seems to me that this is a sfty should have the fullest possible power to acquire any highly desirable thing, to put the university in the situation kind of interest in land, not just fee simple. I am a little which it really should be so that it can take advantage of afraid that mentioning legal tftle or fee simple title is whatever program is offered by acts of Congress. actually limfting because the universfty may want easement sometime. They may want equftable interest or they may WIST: I would like to point out one other thing, namely, want to acquire all kinds of other interests and it should be that as a land grant institution, without this wording it would made as broad as possible. not be possible for us like other state universities to own Isn’t it true that what the university needs today is legal income-producing land which might be located outside of tftle to the land that ft is now using and the right to acquire Hawaii. Many state universities had lands which belong to title in the future in the manner provided by law? Wouldn’t the universities which are not located in the state where that be much more proper? I’suggest that we ought to get the university itself is located, and that to me is a rather the attorney general over here - - Assistant Attorney General significant thing. Lewis to give us the language that whatever land the univer SHIMAMURA: May I ask a question, please? This sfty now has under executive order or that has been acquired sentence speaks only of legal title to all lands. What is the under condemnations for the universfty shall - - is trans position as to personalty, that is, personal property? ferred now by way of legal tftle to the universfty. As to the future, leave ft wide open as to whether the ANTHONY: I think the situation as to personalty ought Terrftory by its laws will give tftle to lands in fee simple to be exactly the same as the personal property of any depart or on condftion or any other way that ft sees fft, because I ment of this state. There’s no need in my judgment to have think if you require legal tftle to be acquired to all the lands the title to the typewriters and the paper and pencils vested the universfty gets, ft will deter the Terrftory in the future in the body corporate. I don’t know whether Doctor Loper through its legislature from authorizing further lands to be has other views on that, but I should think the general transferred. Perhaps the legislature [sic] will want to have territorial law would apply there. just the right to use land for a limfted period. The Terrftory LOPER: Is it your position, Delegate Anthony, that will hesftate and say, “We can’t give you a lease; we’ve got lands is sufficient without saying “real and personal prop to give you fee simple tftle; we’ve got to give you legal erty”? There was some discussion over the weekend as title.” to the advisability of substituting for the word “lands,” Therefore, I think we should splft ft into two parts, one, “real and personal property.” I see no important problem a present grant of what the Universfty now has; and second, involved there. the right to acquire in the future in the manner provided by law. Then I think you’ll have the well-rounded system. SHIMAMURA: Perhaps I haven’t got a clear picture, but I thought the main reason for giving legal tftle to the LOPER: I have three suggestions to make. Perhaps university was so that it may be enabled to mortgage and they should be submftted as separate amendments if they hypothecate its property so that it may secure a loan. If meet wfth the approval of the delegates. One is to strike that’s the case, then what about personalty? out the word “legal”; the second is to change the word “lands” LOPER: As I understand it, if at any time the lending to “real and personal property”; and the third is to change agency should be in a position to foreclose, ft would not the word “assigned” to “conveyed.” I have no concern over be a foreclosure in the usual sense. It would be a matter the order in which those things are taken up, but ft seems of taking over and operating the property until it paid out, to me that that would cure the defects of this sentence. and then ft certainly would involve not only the land and buildings, but the equipment in ft if it happened to be a ANTHONY: I have a suggestion that may meet with the dormftory. So I personally have a preference for “real approval of the body. First, as to whether or not the use and personal property” in the language there. of the expression “title” will preclude the university from acquiring less than a fee, I think in law as well as in mathe SHIMAMURA: If there’s to be a mortgage or hypothe matics, the whole includes the parts. If the university has cation of this property, wouldn’t the university be in a better the right to acquire title, it can acquire any kind of a tftle. posftion to affect such loans by mortgage or hypothecation if Therefore, I would suggest this amendment, if ft meets with personally were included? That’s my only concern. And the approval of the body. “The universfty is hereby consti also presumably by construction, land will include buildings, tuted a body corporate - - Universfty of Hawaii is hereby but wouldn’t ft be clearer to say “real properties” instead constftuted a body corporate and shall have tftle to all of of just “lands. “~ the real and personal property now or hereafter set aside WIST: I think if the delegates would turn to this mimeo or conveyed to it, which shall be held in public trust for graphed statement, Item 3, “Legal title to its lands would its purposes and administered in accordance with law.” enable the university to avail ftseif to federal loans wfthout I can have that - - If the body would like to look at ft, I pledging the lands themselves.” The next sentence, “Mort could have that mimeographed and circulated in a few gages are so wrftten - - “ Now this isn’t speculation, this minutes. is the way they are actually wrftten by federal government. “Mortgages are so wrftten that if the university should fail to LOPER: I’d like to second that motion - - amendment. meet payments, federal government would take over the LEE: We don’t need to have ft printed. Read ft again. operation of the individual project (not the unlversfty) until such time as the obligation should have been met.” In ANTHONY: What are the wishes of the Chairman? Shall other words, that’s the way the federal government operates I read ft again or get ft printed? in these matters. All that is really pledged is income from the seif -liquidating project. CHAIRMAN: I think the reading of ft should suffice. 612 EDUCATION ANTHONY: I think it should also be made clear that the word “title” The University of Hawaii is hereby constituted a body includes this situation. If the university wants to get some corporate and shall have title to all of the real and per land from a city or a county or the Territory, and the Terri sonal property now or hereafter set aside or conveyed tory or county is only willing to give a limited interest to to it, which shall be held in public trust for its purposes the university, that will not prevent them from doing that. and administered in accordance with law. In other words, I wouldn’t want it to be - - appear that “title” means only the legal title. Any interest can be transferred CHAIRMAN: Delegate Loper, will you withdraw your in the future. And I think if that’s taken care of, then ex first amendment? cept for one thing, you’ve taken care of the situation. LOPER: Yes, I withdraw the first amendment, and I’d I think this still leaves it then up to the legislature to like to second the motion to amend as made by Delegate make an initial transfer of this land to the university be Anthony. cause I’m not sure that this language will itself convey the land now held by the university to the university in any CHAIRMAN: There is now just one amendment before particular kind of title. I wonder if the other delegates have the committee, and that amendment has just been read by any ideas on that last question? Delegate Anthony. ANTHONY: I think what Mr. Tavares said is correct. I NIELSEN: I didn’t get a direct answer, if this could not endeavored to accomplish one of his statements by insert be legislative action. I question very much the advisability ing the words, “shall be held in public trust for its purposes. of turning over the entire setup to the board of regents. In In other words, if one of its purposes includes the selling of the past we’ve had a lot of difficulty. In fact, the board of a typewriter, or disposing of anything, obviously they would regents have even ignored the legislature. In the 47th go ahead and dispose of it. I think the report also should Session we gave them $400,000 for a chemistry building, make clear that the use of the word “title” includes any kind they went ahead and put wings on it and spent another of a title: leasehold, easement, or anything. But after that $264,000 and then came in and asked for a deficiency ap you’ve got to - - if this is adopted there probably would have propriation of $264, 000. At present I’ve had to fight with to be an executive order or legislation confirming and im them for the last year trying to get a small building in Kona plementing the constitutional provision. That is the point built for $15, 000; and in the Special Session, having been that Delegate Tavares raised, and I think he’s quite accurate ignored by President Sinclair and the board of regents, I in that. had to put in another bill and make it exclusively for the extension service because they said that they didn’t think HEEN: I was just wondering whether or not personal that was the intent of the first appropriation. At the present property should be included in this proposed amendment. time, they went ahead and have drawn plans and they included We know there is a general statute which applies to disposal the experimental station in this building as to laboratories, of personal property. I think there is a disposal commission coffee drier and so forth, absolutely ignoring Act 39 of the which passes upon the disposal of personal property. In Special Session. So I think that we’ve got to give more other words, all personal property - - the title to all per power to the legislature to hold these fellows down out there. sonal property is now in the Territory of Hawaii so far as territorial departments are concerned, and when they are CHAIRMAN: The Chair feels that the answer -- the ques to be disposed of or destroyed, they must go through - - tion of Delegate Nielsen was amply. answered, but if Dele you must go through a certain procedure. Therefore, gate Anthony wishes to amplify on the matter - - personal property should be left out of this proposed amend ANTHONY: Just one statement. I don’t know the exact ment and they should be held and may be disposed of accord facts of the legislative history, but this is true; without ing to law. this kind of a provision in the Constitution of the State, our university will not be placed on a footing with other state ANTHONY: I think the last sentence - - I agree that we universities. In other words, it will be hamstrung. Cer don’t want to depart from the disposal provisions of existing law, but “administered in accordance with law,” means tainly this will not prevent the legislature in the future, if they want to have a wing on a coffee establishment in an just that, in my judgment. Does not that reach the question that the last speaker had in mind? experimental station at Kona, appropriating funds expressly for that purpose. The university couldn’t ‘do anything about HEEN: Well, I’m not so sure whether it does take care it. All this does is to put the university in a position where of that situation or not. Matter of administration may be it can, on a parity with other great state universities, take broad enough to do just that, but I’m not too sure. advantage of the right to borrow money on its property. In H. NICE: I agree with Senator Heen that you should other words, you are going to fetter them if you don’t have leave out the word “personal property” because real prop this kind of provision in the Constitution. erty takes the building and the land and so forth, and I think NIELSEN: May I ask a question? Doesn’t this allow the it is better that way. If you’ll accept the amendment taking university to hypothecate every bit of land they have and out personal property, I think it’s better. every bit that they’ll ever obtain title to? TAVARES: I think that you are running into the question WIST: It does not. of what the lawyers call expressio unius. That is, if you TAVARES: I think, after reading this over again, that are going to only express the power to take title to real it might fill the bill if the report of the Committee of the property, you are going to, by implication, run into the Whole makes clear a number of ambiguous situations. For danger of having the power to take personal property ex instance, if this property is to be held in public trust, cluded. As far as that board of disposal statute, Section. there may be some question about the right of the university 1661 of the Revised Laws, is concerned, it says that, “The to dispose of it. It should be made clear in the report that proceeds of such sales, where not otherwise provided by if, by law, the unive;sity is authorized to dispose of some law, shall be paid into the general fund of the Territory as of this property, which isn’t under some kind of a private territorial realizations.” Now what’s going to happen to trust that can’t be changed because of a matter of contracts, the personal property held in trust? Is it going to be turned that the law can authorize it to do that, and the words “public over to the Territory as general realization? I think we trust” will not make that inalienable. In other words, that should specifically cover them both. If we’re going to cover should be made clear in the report. one, I think we should cover both. JUNE 19, 1950 • Morning Session 613 FONG: I don’t think I necessarily concur with Delegate FONG: The only reason for asking the question is to Wist in his answer to Delegate Nielsen’s question. Delegate make it clear so that we know what we are voting on. Nielsen asked this question, “Does it mean that the univer BRYAN: I wonder if it would clear up part of the ques sity can hypothecate its lands?” Is that right? And Dean tion raised by Delegate Fong and Nielsen if we should clarify Wist said, “No.” Now, from my understanding of this, it the point. We are providing for conveying land to the univer seems that this is the purpose of making it a body corporate sity. Does that mean the legislature, in turn, will have and giving it title to the land. If the university can’t convey power to return the land elsewhere or to disenfranchise the its land, what’s the use of giving it fee simple title to all university from the use thereof? these lands? I understand that the purpose of this incorpo ration of the university and putting the title of the property ANTHONY: The answer to that is no. in its name is for the purpose of hypothecating some of its NIELSEN: One more question, and I’ll hold my peace. property so that it may build dormitories. The question is, doesn’t this make it so that the university Now, if it is going to be construed in the same position can go into the laundry and dry cleaning business or anything as a trust, and it needs the official sanction of a court or they all want to, according to the way a lot of universities on the legislature, then~ let us put it in. But let us not say that the mainland are doing these days? this does not mean that he will not be able to hypothecate his lands. ANTHONY: The answer to that is “administered in ac cordance with law,” and any statutory prohibition against the LOPER: In further reference to the objections raised laundry business - - and, incidentally, the Tax Court has by Delegate Nielsen and by the previous speaker, it was recently given NYU a kick in the teeth on that very business. the intention in this language, the last four or five words, It is no longer tax exempt for the macaroni business, I think “to be administered in accordance with law,” to establish it is. The legislature could prohibit or regulate any such definitely in this section that the university would be limit thing. ed in what it could do with its lands by laws passed by the TAVARES: I think it’s important that in this Committee legislature. of the Whole debate, we lay a broad foundation for the inter pretation of this section and, for that reason, I hope the FONG: Does that mean that everytime the university members will excuse me for just a few more statements. wants to hypothecate something that is not provided by law they would have to go to the legislature? One is that the answer of the last speaker, or one of the last speakers, that the legislature cannot take away land PORTEUS: I think the bill that we personally - - we sup from the university once given, I think needs to be qualified ported in the Legislature of 1947 would still be an appropriate to this extent. If, at the time of the conveyance to the univer piece of legislation whereby we authorize - - whereby the sity there is reserved a right to take back by law or other University was authorized under act to borrow for certain wise, of course that right can still be enforced. However, specified purposes provided that they were sell-liquidating if there is an unconditional grant to the university, of projects, such as dormitories. I have been interested in course then the legislature could not, under this section, this language, too, and I think that the new wording is de take it back without the university’s consent. I think that signed to spell out or to indicate that the power of the univer the speaker agrees with me in that. sity to borrow on land will be subject to such statutes as the Secondly, I think the report of the Committee of the Whole legislature may, from time to time pass, such as the Statute should show that if any provisions in this article relating of 1947, which gave this power of borrowing. And rather than to the university in any way alter an existing private trust, leave it that the university shall have legal title to land, and that that is not to be effective. I think that’s the rule, but putting a period after that, so that there might be cause to I think it should be made clear so that if property is now wonder whether or not the university could pledge, not only held by the regents in trust, and we say from now on the the liquidating project but the rest of the university resources, university shall hold title, as far as that property already the language was devised over the weekend to add, “adminis acquired is concerned, the regents will continue to hold it ter in accordance with law.” Then write into the report that in trust, if that is necessary to preserve the trust. I think the intent was to make it subject to legislative act. the minutes of the report of this committee should make that clear. FONG: Now that is the definition. Now, let us go one CHAIRMAN: Are we now ready to vote on this amendment? step further. It says that “real and personal property now or hereafter set aside or conveyed to it which shall be held.” MAU: I think that the concensus is to make the University Now the holding of it is in accordance to law. Does it pre of Hawaii as excellent a university as possible, particularly vent the university from going out and buying a piece of because of its situation in the Pacific; but the difference, I property? As I understand it here, the holding of it is think, is on the method of accomplishing that result. As I according - - will be in accordance with law. Now, nothing said on Saturday, dealing with the board of education, many here prohibits the university from going out and buying a of the delegates had mentioned the role that the legislature tract of land—say a thousand acres—and come to the legis should play in the government in the new State of Hawaii and lature and say, “Here, we’ve purchased this piece of prop those delegates who earlier in the session wanted to leave erty and we’re going to hold it according to law.” There’s much of the powers with the legislature now are taking a nothing here that prohibits the university from going out different tone. They are playing a different tune entirely. and buying a piece of property. Now I’d like to ask the I’m wondering whether or not all of this is not legislative. movant of this motion here as to whether that prohibits the Now if the university was not able to borrow in accordance university from going out and buying a thousand acres of with this explanation which was just handed us under the property, and still be within the provision of this motion. authority of Act 141, was it because of a defect in that act? Isn’t it better for these people who want to have such a ANTHONY: Obviously, there would be no prohibition. university to put their problems before the university - - If the university can get a donation from one of its dis before the legislature and accomplish that purpose? I’m tinguished alumnus, such as the last speaker, of $100,000 - - wondering whether or not all of these questions that have been raised are not questions that can be easily and readily FONG: Thank you. handled by the university. If not, is it because they are ANTHONY: - - it can go out and buy a fine piece of land afraid, again, I say, of the legislature? Really, shouldn’t with the $100,000. these problems be handled by the legislature? Are we to 614 EDUCATION sit here in this Convention writing a Constitution and say that if the university were to obtain money from private which one of the branches or agencies of the government shall sources giVen to the university for the purposes of acquiring or shall not have title to certain lands or personal property? land, that the university could legitimately expend that money Aren’t we going into details that should he left to the legisla for the purpose for which the money had been given. But ture? that if it were public money, the university would not have I want to call attention to the Convention that two or three the right to go out and, with no restraint on its discretion, years ago under the master plan for the Island of Oahu, buy such lands as it might determine it wished to purchase; certain lands near St. Louis Heights and adjoining, I think, but rather any public moneys would be expended under limi certain lands of the university now held by them in trust tations established by legislative act. Now that, as I under were set aside for park purposes for the community in that stand it, is the answer that the delegate from the fifth district area. The City and County condemned the land, and the and a strong supporter of the university wanted in the record, university, through the Territory, took the case to court. and I wanted that in the record, too. Now is it a case of wanting to say that the university shall I think that the language as has been suggested in the be free and independent of all other agencies of government amendment puts the university on a better status but does so that it is untouchable, not even by the legislature, be not remove it from control; does permit it to have the power cause you are going to detail its powers, its holdings and to borrow money, but it will be subject to legislative restraint everything else? Now, if that is the purpose, let us be frank about it. If you want to create an agency which is HEEN: It seems to me that the regents are concerned entirely free of the legislature, then why don’t we say so? about the matter of being able to borrow money for the pur I think that many, many things that are coming up in the pose of erecting dormitories on some piece of land. Now, next few days will be matters of legislative concern only. why not do this. Instead of giving the University of Hawaii title to personal property and real property, why not provide PORTEUS: To those of us who have attended the univer that the legislature may vest title in real property for the sity and have its interest at heart, we have been supporting purposes prescribed by it. So that if they need to borrow the university for many years, not only in the legislature, any money upon a mortgage of some real property, give but out of the legislature. We are concerned with putting the legislature the power to do that very thing. Vest the this university on the same standing as other land grant title in the University of Hawaii for the purpose of erecting universities on the mainland. The regents of the university their own dormitories and authorizing the university to and those that have gone to that school have the feeling that secure a loan, secured by such real property. All the as other land grant colleges have been established, univer rest of the property as set aside for the university, the sities, so should this one be put on the same basis. The title should remain in the Territory and not in the university. mainland universities in land grant areas, such as this The title to all personal property should remain in the university is, have provisions whereby they hold title to Territory and not transferred to the university. land. Now, with reference to the statute relating to the dis The questions that were raised with respect to the fee position of personal property, it says this: “No personal simple title were in large part raised on Saturday and the property belonging to the Territory shall be sold, exchanged days earlier by people who wished to support the university or otherwise disposed of except in accordance with the pro in its legitimate aims and ambitions. We raised questions visions of this chapter.” Then it describes the procedure as to whether legal title meant the power to borrow money. by which property may be exchanged, sold or destroyed. Was that power to borrow in anyways limited? If we in Now all personal property belonging to the University of tended to limit the Territory of Hawaii, why should we give Hawaii should be treated the same way that other personal unrestricted power of borrowing to one of its agencies? Was property in the hands of other departments are treated. it the intent to have this agency or this university subject to So it seems to me that the title to all property, personal no control by any other branch of the government? We also or real, shall remain in the Territory of Hawaii. Give the raised the question if they could borrow money, was it legislature the power to vest title in some particular real borrowing from government sources or from private sources property in the University of Hawaii with authorization on the as well? If it was from both public and private sources, part of the university to borrow money upon that real prop what of the capacity to place liens on the various projects? erty. Would those liens extend only to the projects which would be CHAIRMAN: All those in favor of the amendment - - self-liquidating or would they extend to all the lands and assets of the university? Those questions were the ones that FONG: Delegate Bryan asked a question in which - - were posed. Those are the questions to which we wish to whether there would be a possibility of reverter. Is that be able to give people a direct and flat answer, a “yes” and right, Mr. Bryan? And it was answered by Delegate “no” answer to a direct question. This amendment presented Tavares that the university - - that the legislature could this morning answers those questions. do that. Now, as I understand, upon the ratification of this It is clear from the distribution of the little write-up Constitution, this clause will be sell executing. The clause, entitled, “The University and land ownership, “ that there the motion made by Delegate Anthony, that “the university is no intent to put the university superior to all branches of is hereby constituted a body corporate and all real and government. The university, of necessity, will need to personal property now or hereafter set aside,” now as I come to the legislature and get its appropriations as any understand it, upon the ratification of the Constitution this other department of the government will be. It will however, clause will be seif executing and there will be no possibility like other state universities, possess title to its land, which of reverter unless we take care of it here. Now, if we wish will enable it to be on the same status as other universities to give the legislature the right to write into the conveyance on the coast. It will be able to approach the Federal Govern the possibility of a reverter there, we should strike out the ment for the purpose of borrowing money at low interest rates, word, “hereafter held” - - I mean, “now held.” under authority as may be passed by legislation of our State ANTHONY: Mr. Chairman, may I answer that question legislature. specifically? There are a number of ways that that situation There is no desire to put them all out in compartments by could be taken care of. We, of course, don’t have before us themselves where no one can reach it at all. In fact, I be in this Convention the several executive orders setting aside lieve Delegate Fong’s question with respect to the purchase territorial lands to the university. I gather the way to handle of the land was a question directed to the record only to this thing would be for the executive to make up a schedule amplify this record of the Committee of the Whole to indicate of lands before the Constitution actually goes into effect, JUNE 19, 1950 • Morning Session 615 and then do what the executive will have to do with any num good as any other state university and the way to do it is to ber of executive orders, rearrange those things. In other put it on the basis with other state universities. The object words, take those executive orders and put what conditions of - - the objection as to the personal property can be readily there need be put in the executive orders, so that if any taken care of by any statute. “Administered by law,” in my particular land should - - they would want to put any strings judgment, already takes care of it. But if that’s not enough, to it, they could put the strings to it, right in the executive then legislation can be added to the disposal statute. That order, before the Constitution goes into effect. takes care of the personal thing. I’d like to answer Delegate Heen’s statement in regard Now, as to the land that is actually now set aside, if to the disposal statute. Obviously, the university would anybody thinks too much has been set aside, or there should have to comply with the disposal statute, and any property be some string to that which has been, the time to do it is that it administered has to be administered in accordance when the executive reviews all the executive orders and put with law. That means disposal in accordance with law. it right in those executive orders. It couldn’t go ahead and ignore the disposal statutes. I CHAIRMAN: Are you ready for the question? think the amendment as proposed is all right. SAKAKIHARA: The amendments offered without - - H. RICE: I want to wholeheartedly support the amend ment. You can leave certain things to the legislature but [Microphone did not work.] sometimes the university has gone through on - - skimmed PORTEUS: I’d like to invite the representative from the through on pretty thin ice. I remember one time when the - - delegate from the first district to use my mike, provided, president of the university came to me and asked me however, he is going to support an extension where I’d like whether you wanted to have a University of Podunk or the to have support. University of Hawaii. That’s the way they were heading. SAKAKIHAHA: The amendment proposed by Delegate I think that we’ve got to be fair to the university, and I think Anthony in my mind is a very serious amendment. I have that they have vision of - - better vision of what they are served in the legislature for many sessions and it contains supposed to do at the university than the average legislator merit. The University of Hawaii is entitled to iand grant has. Fortunately, they were cared for, but I had the presi matters and yet it is not a land grant university. The legis dent talk to the Ways and Means Committee the same way lature hoids strings to the university. On the other hand, he talked to me when I was president of the Senate. I told I do subscribe to the argument advanced here by Senator him, “You go down there and tell them that you are going to Heen. He has offered another amendment to the amendment. be the University of Poduak if things don’t go better than they’re going now.” And they did. This is far-reaching. CHAIHMAN: There is no amendment, Delegate Sakakthara. The subject of this chemistry building, that’s been a must It was merely a suggestion. at the university for a long time. Delegate Ashford showed SAKAKIHARA: No, no. Senator Heen made a motion and me where we are going to be more and more in the control seconded by Delegate Nielsen. of chemical matter so far as land is concerned. They are going to inoculate the soil with nitrogen. CHAIRMAN: The Chair didn’t think it was a motion, Dele gate Sakakihara. HEEN: I was just going to say this, in reference to the problem of personal property. As I stated, the statute says SAKAKIHARA: All right. In that case I believe that in all that “No personal property belonging to the Territory.” fairness to the 63 or 62 delegates present here this morning When you say, “belonging to the Territory,” that means that the amendment offered by Delegate Anthony be printed the title is in the Territory; and here you say that the title before we act on the amendment. In my opinion, it’s a very is in the university. Where is the title, in the university serious amendment to the committee proposal; and I for one or in the Territory of Hawaii? would like to have a printed amendment so that we couid go over the amendment very carefully. I move at this time TAVARES: Mr. Chairman, may I answer that? The title that we take a short recess to have the amendment printed. is in the university, but under the words, “to be adminis tered in accordance with law,” the legislature can amend NIELSEN: I’ll second that motion. And can we have Miss this statute or pass another law saying that the university Rhoda Lewis over here to go into this? shall not dispose of personal property except in a certain CHAIRMAN: It has been moved and seconded that we take way. I see no danger in that. a short recess. All those in favor say “aye.” Contrary minded. Motion is carried. HEEN: That’s correct, if the Territory will expand the statute relating to territorial personal property. That’s correct. It can be taken care of that way. But as I said (RECESS) before, the Territory - - I mean, the University of Hawaii should not have title to all of the real property set aside to CHAIRMAN: Will the Committee of the Whole please it or to the personal property. All that they want as I under come to order. stand is this, they want to hold title to some real property for certain purposes. Why not, then, let the legislature have HEEN: I have had prepared an amendment to the last that authority, to vest title in that real property. Here is sentence and that amendment, I believe, is on the desk of the amendment that I would suggest. “The legislature is all the delegates at the present time. The amendment is - - rather, reads: authorized to vest in the University of Hawaii title to real property for such purpose as it may prescribe.” The University of Hawaii is hereby constituted a body NIELSEN: I’ll second that motion. corporate. The legislature is authorized to vest in the ANTHONY: The trouble with that is that the legislature University of Hawaii title to real property for such pur may never get around to doing it. Now the question is pose and with such power as it may prescribe. whether or not we want to make this university on a parity LARSEN: I would like to speak against this amendment. with the great state universities of this country. It’s a land CHAIHMAN: The motion has not yet been put, Delegate grant college without any land. Are you going to sit here Larsen. There is no motion yet. and write into this Constitution a perpetuation of that situa tion? I think not. I think you want this university to be as HEEN: I move that as an amendment. 616 EDUCATION SAKAKIHARA: I’ll second it. the right of the board to sue for some obligation that the CHAIRMAN: It’s been moved and seconded that we adopt board may feel just in collecting some money. Senator Heen’s amendment to Delegate Anthony’s amendment. The only question, I think, that is in the minds of those who are attempting to have this Convention adopt this amend LARSEN: The thing, it seems to me, that we’re arguing ment is because of the fact that the university has not re here is, shall we have faith in the men of the university so ceived the right of mortgaging the property. Certainly, I as to allow them to go ahead and develop a magnificent think the amendment offered by Judge Heen shows clearly university of the state as has been developed in many other that the legislature has never attempted to hamstring the states? It seems to me this amendment goes right back to university in its purposes, and that the legislature has done the fact where all the legislatures have been hamstrung. It all it can to grant the university all requests that they have is not with the men perhaps that we have here from our leg made to the legislature, in relation to its purposes as set islature, but the possibility that men who have not such forth. good will might be in there and then they would hamstring I move the previous question on the adoption of the it. It seems to me that if we accept and believe in the good amendment offered by Senator Heen. will of university men, which I think has been shown rather GILLILAND: I am entirely in accord with the statement generally throughout the country we can depend on, then I made by the delegate from the fourth district, Mr. Garner believe we should vote for the one that Anthony first proposed. Anthony. I think the University of Hawaii should be given KING: I’d like to speak in opposition to the amendment the opportunity to expand. We shouldn’t be thinking pennies offered by Delegate Heen. It seems to me that the previous when it comes to giving the university a chance to really suggestion safeguards the State and its interests and grants educate our youth in the territory. We want to be proud of sufficient power and authority over the University of Hawaii our people, bur children. In the - - Back in the old days as a body corporate because it reads, “shall hereby constitute when an education or college education wasn’t appreciated, the body corporate, have title to all of the real and personal we didn’t send all our children to a university at all. It was property now or hereafter set aside or conveyed to it, which only growing then. But now if we want to advance, we shall be held in public trust for its purposes and administered shouldn’t stop letting it advance. I’m in favor of Mr. in accordance with law.” That gives the legislature ample Anthony’s amendment and against Judge Heen’s amendment. supervisory power over the new corporation. The other CHAIRMAN: Are there any other delegates that wish to amendment, the one offered by Senator Heen, would make speak on this question before the Chair calls on the movant? the university dependent on the legislature conveying to it certain property which may take some time to do. ROBERTS: I haven’t spoken on the question, Mr. Chair Now, I was up at the university the other thy and have man. I’d like to express my views. I’d like to speak in realized that it’s grown into a tremendous plant and it will opposition to the amendment which was proposed to the pre be more important in our life, cultural and academic, as vious amendment offered by Mr. Anthony, Delegate Anthony. time goes on. We should not hamper the authority of the I think we are forgetting one very important problem in our board of regents in the administration of this university to discussion and that is the basic function of the university in fill the great purpose for which it was designed and which our community. I think that we’ve got to recognize that the it is beginning to fill more and more every thy. So I would university is not only a cultural and intellectual center. The speak in opposition to the amendment to the amendment. university serves as a basis for the advancement and develop ment, economically and agriculturally, of the entire commu ANTHONY: The only reason advanced for the proposed nity. Our future in the territory in large part rests on the amendment now before the assembly is that it may include kind of citizens that we develop, the kind of educational some lands which the university might not want to hypothe opportunities we afford and the kind of training that we give cate. That objection can be readily met by a change in an these individuals when they go out into the community. It executive order prior to the effective date of this Constitu seems to me that anything which will develop and help the tion. The word “now” in the proposed amendment offered by university, helps and develops the community. It’s not a myself refers to the date of the effective date of the Consti question of individuals. It’s a question of an institution and tution. So if there is any land presently assigned to the the function it plays in our society. Therefore, it seems to university which it does not require to have the title to, me that it is extremely important that the delegates view then an appropriate amendment can be made to the executive the problem in terms of the future of the State of Hawaii, and order. the training which they have to receive, and the university This particular amendment offered by Judge Heen will affords through its various avenues. put the university in the same morass that it’s in at the We do not know in the future what grants-in-aid the federal present time; namely, it will put it in an inferior status to government is going to provide, what type of laws are going other state universities and I am against that. The univer to be passed, what kinds of funds are going to be made avail sity is supposed to be the cultural and intellectual center able, which we could avail ourselves of. Putting the univer of this state and anything we can do to encourage that should sity on the same footing as other land grant colleges, on a be done right here and now. We shouldn’t make them come technical basis, it seems to me would provide the opportunity with their caps in their hands to the legislature every time in the future to permit us to develop at least as well as the they want to turn around. mainland universities. It seems to me that our problem here is a little more serious and, therefore, the university KAUHANE: I think much emphasis has been made here ought to be given every opportunity to develop for the bene that the legislature has not made an honest attempt to help fit of the entire community, because the university does not the university out in its purposes. If we looked at Act 141, exist apart from the community. They train the individuals the 1947 Session, we find that the legislature has been very for that basic purpose. liberal with the University of Hawaii, liberal to the extent I therefore hope the delegates will vote against the amend that they can borrow money for housing units under the ment. authorization of the adoption of a resolution by the board of regents. We also find that the legislature has been very HOLROYDE: I’d like to second the motion for the previous lenient with the university, when we write in the statute, question. Section 1945, “The board shall have the authority to sue in CHAIRMAN: The Chair would like to give the movant a its official name.” Here we have a proposal that takes away closing opportunity. Delegate Heen. ) 617 JUNE 19, 1950 • Morning Session HEEN: Those who are speaking in favor of the amend on the third line of the amended clause, “property now or ment offered by Delegate Anthony are using that to oppose the hereafter set aside.” I think Delegate Anthony several times amendment offered by myself. Look at the amendment offer referred to that word as meaning “on the effective date of the ed by Delegate Anthony. There is nothing in that amendment Constitution,” but it’s obviously subject to several different which authorizes the University of Hawaii to sell those lands constructions and when the Committee of the Whole makes a or to mortgage those lands, and they cannot expand the report, it should be made clear that “now” means the effec University of Hawaii except by legislation on the part of the tive date of the Constitution and not any other date. legislature, whereby the legislature may appropriate money CHAIRMAN: Ready for the question? All those in favor - - for the expansion of the university or perhaps whereby the The question is, shall Section 5 as amended be adopted? All legislature may authorize the university to mortgage some those in favor say “aye.” Contrary minded. Section 5 is of their lands in order to secure sufficient funds for improve tentatively approved. ments. There is nothing there whereby, as I said, the university itself can automatically expand the University of LOPER: If it is in order now, I would move that we Hawaii without the aid of the legislature. So when they talk adopt the Committee Proposal No. 11, as amended. about these land grant universities, I believe those were LARSEN: Second the motion. grants whereby these universities could sell and mortgage those lands and use the proceeds for the establishment and CHAIRMAN: It’s been moved and seconded that Commit the expansion of the universities. tee Proposal No. 11, as amended, be adopted. Now, what I have in mind is this: that the title, the legal title to all territorial land should remain in the Territory KAUHANE: I rise to a point of order. There is an and if legal title is to be transferred to any department of amendment to Proposal No. 11 on the Clerk’s desk which government, let the legislature do that. was submitted Saturday. You take the board of forestry. They control perhaps a PHILLIPS: I prepared the amendment to Proposal No. million acres of land for water resource purpos&s and they 11, which is an amendment to add another section to Pro don’t have the legal title to the land. It’s been set aside to posalNo. 11. be used for water resource purposes, and placed in the CHAIRMAN: Delegate Kauhane, is that the amendment control and possession of the board of forestry. Take the you are referring to? lands that are under the control of the superintendent of public works. He doesn’t have the title to the land. The KAUHANE: Yes, this and another one that I submitted title still remains in the Territory. Same with other de myself to the Clerk. I yield the floor - - partments of government. So I say this, that this amend CHAIRMAN: We shall first take up Delegate Kauhane’s ment proposed by Delegate Anthony does not give the univer amendment. Delegate Kauhane. There is nothing before sity the absolute right or any right at all to sell any land the committee at the present time except the adoption of or mortgage any land unless authorized by the legislature. Proposal No. 11, as amended. A. TRASK: Will the gentleman yield to a question? Is KAUHANE: I’d like the Clerk to read the amendment the title to the land in the board of water supply of Honolulu, that I offered whereby I request that a new section be in the name of the board as distinguised from being title in added to Proposal No. 11. the name of the City and County or of the Territory of Hawaii? CHAIRMAN: Kindly read it. HEEN: I don’t know exactly where the title is, but it’s somewhere and it’s being used for the benefit of the people CLERK: That Committee Proposal No. 11 be amended of the City and County of Honolulu. by adding thereto the following section: Section . The State shall provide and adopt OHHT: The title is in the City and County of Honolulu. a uniform series of basic textbooks for use in the e TAVARES: We should insist on the previous question, I public schools throughout the state. That such textbooks think. be furnished and distributed by the State free of cost CHAIRMAN: Delegate Holroyde is now recognized. and any charge whatever to children attending the public schools of the state. HOLROYDE: I second that motion for previous question. CHAIRMAN: Delegate Kauhane. Hearing no second, the CHAIRMAN: The previous question has been moved. Chair recognizes Delegate Phillips. Question is shall the main question now be put? All those in favor say “aye.” Contrary minded. Carried. PHILLIPS: I have on the Clerk’s desk an additional The question is shall we adopt Delegate Heen’s proposed section to amend Proposal No. 11. amendment to Delegate Anthony’s amendment? All those CHAIRMAN: Will you kindly read the amendment? in favor say “aye.” Contrary minded. Amendment is lost. Delegate Phillips, will you kindly read your amendment? Question before the committee now is, shall we adopt Delegate Anthony’s proposed amendment to Section 5, second PHILUPS: sentence of Section 5? There shall be no law denying or abridging the teach ANTHONY: I so move. ing of any language, the establishment of private schools for such purpose, or unreasonable interference with CHAIRMAN: It’s already been moved and seconded, their administration, curriculum or methods insofar as Delegate Anthony. All those in favor of the amendment their endeavor does not in any manner teach or advocate say “aye.” Contrary minded. Amendment is carried. the overthrow of the government of the United States. LOPER: I now move that we tentatively agree to Section I’d like to speak in support of this amendment. 5 as amended. HOLROYDE: I second the motion. CHAIRMAN: Delegate Phillips, there is no motion. There is nothing before the committee. CHAIRMAN: It’s been moved and seconded that Section 5 be tentatively approved. PHILLIPS: I move that this be adopted by the Convention. SHIMAMURA: Before that question is put, I think the SAKAKIHARA: To enable the delegate to talk on this record should be clear as to the meaning of the word “now” amendment, I’ll second the amendment. 618 EDUCATION CHAIRMAN: It’s been moved and seconded that Delegate endeavored to outlaw German, and that was upheld in the Phillips’ amendment be adopted. Supreme Court. Later, we had a case following World War PHILLIPS: The chief reason why I have submitted this I, Farrington vs. Tokushige,, which was a pretty rough piece amendment is that I had the good fortune of seeing the lan of legislation. That ultimately went to the Supreme Court guage teams that functioned in the last war in the South and that statute was declared invalid. The latest legislation Pacific and it is my firm belief that without the language which has been carefully drafted in an effort to require the that had been taught in the language schools before the war learning of the English language before a person attends a that there would not have been available to the national gov language school, has never been decided, as the chairman ernment this very valuable intelligence function. Those men has accurately stated, on the merits. It went to the Supreme performed well down there; their song is unsung. They Court and it was dismissed. have done a fine job. Now the reason I am against this is that I’m in favor of I might say that while they were down there, those same leaving to legislation as much as we can leave to legislation. language schools that taught them and made them available If it is in the public interest to regulate the attendance at to both the state and the nation, the legislature passed a law language schools, then the legislature should be free to do that closed all those language schools up. Nothing was done so within the limks of the Federal Constitution, and if we about it at the time, but when the war was over, litigation leave H out, we will have just that situation. We?ll have all was initiated—not carried through, but initiated— costing in the guarantees of the Bill of Rights plus guarantees of the the neighborhood of $25, 000. This litigation is one of the Federal Constitution. Therefore, I would vote against this chief reasons why I would like to see such a section be in this amendment. particular article. It is hard - - it is difficult on people to BRYAN: I’d like to speak against the incorporation of have to initiate legislation and start legislation against an this provision in the Constitution, not because I am not in act which is prima. facie unconstitutional. It is common sympathy with the thoughts expressed by the movant, but knowledge that when the legislature passed this bill it was because I have had some experience in this line myseif. unconstitutional at that time. There had been other Supreme I think that H would prevent the legislature from passing Court decisions handed down showing that it was an abridg necessary regulations in the public interest. ment of the civil rights of the individual to do so. The movant mentioned public welfare or general weifare I might also say that there are some who feel that this provisions in the Constitution. I think one of the laws on is covered in the civil rights or in the Bill of Rights. This, the books now is a limitation on the number of hours per I feel, is not true or if if is true, H would not have happened week that can be spent in such institutions and I think that during the war, I mean the legislature would not have passed that’s looking after the health and welfare of children in the such a bill during the war. This litigation works a great territory. I think there are many other reasons why this onus on the individual who has to prove that something is thing should be left to the legislature, although I am in unconstitutional just because of the stress and strain of a sympathy with the reasons for his asking that H be included period. in the Constitution. I would say now that this language has proven to be a great asset to the nation and especially to the state. It is one of CHAIRMAN: If there is no one else that would like to Hawaii’s assets. They are not - - I’m not only referring to speak for or against, I’ll call on Delegate Phillips. any particular language, I am referring to all the languages. PHILLIPS: I’d like to answer the delegate from the We do not know what the future holds. We only know that fourth district’s contention that it isn’t necessary because during the stress and strain of war, there are people who— k’s statutory material. I’d like to say this, that it’s been under duress, due to prejudice, due to various other of their my experience in this Convention and especially in regard own reasons, they are either grinding axes or what it might to the welfare clause, of which the education provision be, but in any event, they aren’t thinking—will cause preju which we are right in the middle of now, is an example of dice to become rife, thereby cutting out some of the basic statutory material being poured into the Constitution. There rights which are assured us in the national Constitution. are other examples of where they have choice pieces of I would say, then, that if the Convention - - if anyone in sightliness and other articles, such as health, and mental the Convention might feel that this is redundant and not incapacky have also been poured into it. pertinent at the time, that education, especially this parti Now, I would say this, that where this has an effect or cular asset to Hawaii, is just as valuable as any one of the will have an effect on in excess of 200, 000 people living here other weifare proposals which have been placed before the in the Territory, insuring them of their right; insuring Convention and been accepted. I thereby beg the Convention them not only of their rights, but insuring them against to consider this particular amendment and agree to place it litigation and the spending of east sums of money in order in our Constitution. to prove something which was unconstitutional and passed KAWAKAIVU: According to the old Chinese philosopher, by the legislature - - would be passed and th~en cause them Confucius, he say that you can say lots but not say anything to go through all this furor. An example of that was in this at all. I think this provision is not necessary in our Consti last case where the Chinese groups spent $25, 000 in liti tution. In the past, two groups, namely the Japanese and gation - - inkiating litigation. In the interim, the legislature the Chinese, brought up the test case on the constitutionality realized that the law was unconstitutional after H had been of this provision and decisions rendered were in their favor. on the books for three or four years and then they took H Therefore, I feel that it’s not necessary for us to incorporate off and H wasn’t necessary to press the indictment. such a section in our State Constitution. Now I think that on the one hand, this is statutory mate rial. I agree wHh that one hundred percent. But by the same CHAIRMAN: The Chair would like to correct the delegate token, every other article in this educational provision is from Kauai that the question was not decided on the merks. statutory material and every article and everything that has ANTHONY: I think, in the first place, this should be to - - pertains to the generic term, “general welfare.” Just rejected. Most of it is statutory. as the federal government saw fH to cover H in seven words, Turning to the constitutional issue, the challenge that the there is no necessky to having these others in here. This language schools would make to the establishment of any law is an important piece of legislation and I’d like very much regulating a language school would be either under the Four to see it in. teenth Amendment or under the First Amendment, freedom CHAIRMAN: The question is, shall we adopt Delegate of speech. In the early case, Meyer vs. Nebraska, Nebraska Phillips’ amendment? JUNE 24, 1950 • Morning Session 619 SHIMAMURA: May I ask the proposer of this amendment CHAIRMAN: It’s been moved and seconded that this if he would consent to the following amendment. On line committee rise and report progress and ask leave to sit four, on the last line, rather, after the word “through” in again. All those in favor - - President King. sert the words, “by force or violence”; and after the word “government of” - - no, pardon me, after the word “United KING: With the understanding that the chairman will States,” the words, “or of this State.” submit a written - - chairman of the Committee of the Whole will submit a written report of the committee as a PHILLIPS: May I answer that? I accept that amendment. whole, when the committee sits again. Is that the under CHAIRMAN: Is there a second to that? standing? NIELSEN: I think that it’d be better to put a clause in the CHAIRMAN: That is correct. Constitution where we urge that the Russian language be NIELSEN: A point of order. I didn’t know this is a studied in the schools rather than an amendment like this. debating society. That is the way the motion read. I don’t see where this belongs in the Constitution. PORTEUS: I don’t know where you’ve been, I might say. CHAIRMAN: Question is shall Delegate Phillips’ proposed I think the Chairman correctly stated the intent of the amendment as amended be adopted? All those in favor say motion. “aye.” Contrary minded. Amendment is lost. Question now before the floor is shall Committee Proposal CHAIRMAN: All those in favor say “aye.” Contrary No. 11, as amended, be adopted? minded. Motion is carried. OKINO: Before we vote on that motion, I should like to direct the attention of the committee to the expression, JUNE 24, 1950 • Morning Session “appointed by the Governor by and with the consent of the Senate,” appearing in Section 2 and Section 4 of this pro posed article. CHAIRMAN: The Committee of the Whole please come The proposal for the establishment of the judiciary, which to order. The Committee of the Whole has for consideration we have already considered, provides for the appointment Committee of the Whole Report No. 10 recommending the of justices by the Governor “by and with the advice and con passage of Committee Proposal No. 11 as amended and sent of the Senate.” There is a difference. In the United adoption of Committee Report No. 52. States Constitution, the expression covering this matter is expressed as follows: “He”— meaning the President—”shall LOPER: I move for the adoption of Committee of the nominate, and by and with the advice and consent of the Senate, Whole Report No. 10 on education. shall appoint.” This expression which appears in the Consti DELEGATE: I second the motion. tution of the United States is also set forth in our Organic Act in Section 80. Now, I have been wondering if all these CHAIRMAN: It’s been moved and seconded the Commit expressions mean the same thing, so that there is no differ tee of the Whole Report No. 10 be adopted. Ready for the ence in substance, so that this matter is simply a matter of question? form and style. If all these expressions mean the same thing, NIELSEN: In the powers of the board of regents I thought I think it would be for the benefit of the Style Committee to there was a different wording regarding the title of all real know it so that a uniform expression covering this matter and personal property. Wasn’t there a change in that? may be followed by the Style Committee. Would title be fee simple? PORTEUS: I agree with the delegate from the island of Hawaii thatit is a matter of style. CHAIRMAN: I don’t get the import of the delegate’s question. CHAIRMAN: The question is shall we adopt Committee Proposal No. 11, as amended? All those in favor signify NIELSEN: On page six under, about the sixth or eighth by saying “aye.” Contrary minded. Motion is carried. line, “The University of Hawaii is hereby constituted a body corporate and shall have title to all of the real and personal LOPER: I now move that the Committee of the Whole property.” Has that been changed? adopt Standing Committee Report No. 52, with the exception of the last sentence which recommends the adoption of CHAIRMAN: It formerly read “title in fee simple,” but Proposal No. 11, because Proposal No. 11 has been amended that has been changed and the amendment is as shown on the and that is not reflected in the language. The motion, then, Committee of the Whole report on page six. is to adopt Standing Committee Report No. 52, except for NIELSEN: Well, I just wondered if by having title, it is the last recommendation. supposed to be held in public trust; but if they have title PORTEUS: Would the delegate add to his motion, “and to it, the last part of that paragraph still applies? That they that the proposal, as amended, be adopted.” can only hold it in public trust? LOPER: Yes, that is correct. “And that Proposal No. CHAIRMAN: The Chair feels that it does. All those in 11, as amended, be adopted.” favor of the adoption of Committee of the Whole Report No. 10, please say “aye.” Contrary minded. Motion is PORTEUS: I think that’s the sense of the meeting but carried. would it not be correct for us to adopt that as the sense of the Committee of the Whole, but the motion be to rise, re LOPER: I move that the Committee of the Whole rise port progress and ask leave to sit again in order that the and report the adoption of the Committee of the Whole chairman may be able to submit his report? Report No. 10. LOPER: In that event I withdraw my motion. DELEGATE: I second the motion. PORTEUS: I move that the “Debating Society” rise, CHAIRMAN: Ready for the question? All those in favor report progress and ask leave to sit again. say “aye.” Contrary minded. Carried. Debates in Committee of the Whole on AGRICULTURE, CONSERVATION AND LAND (Article X) Chairman: NILS P. LARSEN JUNE 21, 1950 • Morning Session RICHARDS: In answer to that question, the committee felt that agricultural - - the term “agricultural” also in CHAIRMAN: Will the meeting kindly come to order. In cluded all of these bovines, and the pigs and chickens and my youth I was graduated from the Massachusetts Agricul the rest of it were also taken care of in that particular tural College, so you see why I’m here as chairman. I’d point. If we had wished to go to the extent of using Latin like to call on the committee chairman to open the discussion terms we should have referred to “piscis” instead of fish. of Committee Report, [i. e. Committee Proposal~ No. 27. CHAIRMAN: Is that agreeable, Senator Been? RICHARDS: I am not prepared to give a long speech recommending the adoption of this committee report. Prior BEEN: I move an amendment. I move that the words to going into the discussion, I would like to give this Conven “of agricultural” - - no, that the words “agricultural, tion a few of the highlights of what the committee has gone mineral, forest, water, land, fish, game and other” be into. The committee had a total of 16 proposals submitted deleted, and insert in lieu of those words the word “all,” to it and one resolution. It also received nine letters “of all,” so that that section will read: “The legislature covering the subject. Twenty-one citizens and five dele shall promote the conservation, development and utilization gates also appeared before the committee to support some of all natural resources.” And add at the end of that sen of the particular proposals in which they were interested or tence, “of the State.” which they differed with. We also had, in addition to the ANTHONY: Second the motion. attorney members of the Convention, the assistance of CHAIRMAN: Does the chairman want to explain why they Miss Rhoda Lewis, assistant attorney general, who gave spelled it out? us a great deal of advice. We had 25 committee meetings and they lasted for two hours or longer. In fact three of RICHARDS: There is some question in our minds as to them were evening committee meetings and they lasted for when we refer to a fish, not knowing what the boundaries of considerably longer than two hours. the State are, that unless we mention the word “fish” we I would like to suggest that we follow the pattern that has are somewhat uncertain. As far as natural resources the been adopted previously in this Convention and take up the chairman, without speaking for the committee, can agree proposal paragraph by paragraph in their respective sections. that possibly there could be some shortening of that parti I am assuming that the members of this Convention have cular paragraph. But we do feel that fish, without knowing read their committee report. If they have not and sufficient the boundaries of the State, is something that we are in of them wish the chairman of this committee to read the re terested in even if we have to go over to Japan to get those port, I would be very glad to read the report, but otherwise fish. The vice-chairman has something to say on that point. I will assume that they have read the committee report. I BRYAN: When the question came up of adding the words would therefore like to suggest that there be a motion to “of the State” at the end of that section, some of the mem consider Section No. 1 of the committee proposal. bers wondered what the boundaries of the State would be and whether, if that was in there, it would be possible for CROSSLEY: I move at this time that we tentatively the legislature to provide funds for exploration of fishing, adopt Section 1 of Committee Proposal No. 27. deep-sea fishing possibilities. For that reason the words, APOLIONA: I second that motion. “of the State,” were left out so that funds could be appro CHAIRMAN: Motion made and seconded on Section 1. priated to investigate deep-sea fishing outside of the three While you are thinking of possible checks, shall I just mile limit. read it? “The legislature shall promote the conservation, ASHFORD: I think there was another reason for leaving development and utilization of agricultural, mineral, forest, out the words, “of the State,” and that was that there is some land, water, fish, game and other natural resources.” question in putting in “of the State,” whether that referred to natural resources within the State or owned by the State. RICHARDS: May I speak on that for a moment? We The purpose of the committee was certainly not to restrict feel - - the committee feels that this is a general statement the promotion of conservation and development only to State- of principles and should be incorporated in the Constitution, owned resources. as it is a matter of philosophy which applies to all the natural assets of the territory. I would like to have it noted RICHARDS: I wish to also reiterate what the delegate that there is no restriction to just state-owned lands or state- from Molokai has stated. That point was definitely brought owned assets. That is the idea of the committee that for the up in the discussion in the committee. public good this general principle should apply to all natural CHAIRMAN: Any other discussion? resources of the territory. KAWAHARA: May I ask a question of the committee as! BEEN: I would like to ask the chairman of the Committee to why the word “legislature” was used at the beginning on Agriculture as to why we left out animals. He said, instead of probably the words, “The State shall promote.” “mineral, forest, water, land, fish, game and other I notice in all the sections - - the various sections you have natural resources.” Animals ought to be included there, “The legislature shall promote”; Section 2, “legislature domestic animals. You speak of wild game there. I take shall promote.” Is there any particular reason why you that to mean wild deer, wild goats or wild birds. You left use the term “legislature” instead of “The State shall pro out a very important item there of animals. mote”? 620 621 JUNE 21, 1950 • Morning Session ASHFORD: May I answer that? It is our opinion that CROSSLEY: - - in speaking to that point, I think Delegate the correct expression is the legislature and not the State. Lee has raised a very good point and I think that there is a We are following the very excellent example of the Consti feeling in the minds of the majority of the committee at tution of the United States which requires that the Congress least that these are something over and beyond natural shall promote. resources. That’s the reason that they were spelled out. CHAIRMAN: Could we leave discussions like that per Now some of these things undoubtedly could be classified as a natural resource, but when you begin to spell out for haps to Style Committee? Would that be agreeable? us fish and game, those are not natural resources in the RICHARDS: I don’t think it is a matter for the Style true sense. Committee. When you refer to the State, you have all com ponents of the government of the State. Now in this parti CHAIRMAN: May I ask, are pineapples natural resources? cular section we felt that it was a legislative matter. This CROSSLEY: Fortunately not. committee feels that much that we have proposed tonight is for the matter of the legislature and therefore we feel the LEE: The point that was previously raised also concern legislature has the power to promote these various things. ing the term, “The legislature” instead of “The State,” I remember that I argued that the term, “The legislature,” CHAIRMAN: Any other discussion? should have been used in the health and welfare section. SHIMAMURA: I see no very serious objection to the But the Convention by majority felt that the term, “The section as drafted by the committee. As a matter of fact State shall promote.” Now I’m questioning whether or not it follows very closely the language of the Model Constitution. that is a matter of substance to be dealt with by this commit tee or whether it should be left to Style to make it uniform, LEE: In determining how to vote on the amendment, I as far as the entire Constitution is concerned. believe the words, “of the State,” should be eliminated. On the other hand, the amendment which uses the words, CHAIRMAN: Well, the committee chairman here in this “all natural resources,” instead of enumerating the same, case felt it should be “legislature. “ the question is whether all of these subjects are natural ANTHONY: If you will read the language you will find resources. If they are, then the amendment seems to be that the items enumerated clearly indicate in the mind of well taken except for the words “of the State.” Can the the draftsman that he was enumerating natural resources. chairman answer that point? Just read it. “Agricultural, mineral, forest, water, land, RICHARDS: There is some question and that was one fish, game and other natural resources.” In other words reason why it was enumerated. The point is, is a forest a clear construction of those words is that they are referring necessarily a natural resource? Many of the forests here to all things which are natural resources. That being so, in this territory, state to be, are planted forests, and there the amendment should carry, I think. You don’t have to enu is some question as to whether it might be constituted a merate these items but adopt the amendment proposed by natural resource. I believe one of the members of the com the delegate from the fourth so that the section would read: mittee, Mr. Crossley, has something to say on this point. “The legislature shall promote the conservation, develop ment and utilization of all natural resources of the State.” AKAU: I was going to ask also the question about fish. Don’t we have certain fisheries that we really don’t have as BRYAN: May I answer that question please, or speak natural fisheries? We put the fish in there and raise the to that point? If you are going to assume that the amend fish. Now in this interpretation, could you call that a ment should pass just on the construction of this, or to natural resource? draw the intent of the committee from this construction, it could well be that the committee felt that none of those were~ RICHARDS: I think that point is covered in the committee natural resources except game, and the thing would read as proposals and also in the committee report. We provide for it is written now. There was some doubt in the committee’s the fact here in Section 3 regarding the rights of the citizens mind whether they were all or some natural resources. to fish. We also provide in Part 2 of this report, which I perhaps should have amplified on in my preliminary remarks, ASHFORD: I just wish to say this, that if that amendment a part of the Constitution which is put into the so-called is accepted, it seems to me it would be all right if the report schedule of ordinances, yet is still a part of the Constitution, of the Committee of the Whole referred to the fact that the that private fishing rights should be condemned by the State Committee of the Whole considered that the words deleted for public purposes. were within the term “natural resources.” LEE: I haven’t finished or released the floor at this time. CHAIRMAN: And your interpretation of “natural” would Then I am to conclude that it was the concensus of opinion be anything that grows on the land or in the water? of the committee that there is a distinction between the items ASHFORD: My interpretation is that all those things mentioned there and the term “natural resources.” Was that enumerated are natural resources, but I think that might be the feeiing - - the opinion of the committee? subject to construction; and, therefore, if they are to be RICHARDS: I doubt if that is the opinion of the committee. deleted, I would like very much to have put in the report the We wish to enumerate everything in which we could consider fact that the committee regards them as unnecessary because that there might be some doubt, and then also put in the repetitious. additional catch-all to get all the rest of the natural resources. RICHARDS: I agree heartily with the delegate from Mob LEE: Well, when I read the phrase, “and other natural kai. We have a particular problem that is now being dis resources,” I have the feeling that all of the items previous cussed in the papers at great length. That is the matter of ly mentioned are items of natural resources. That is the transporting deer from the island of Mobokai to the island reason why I raised the point. If it is, then the amendment of Hawaii. Now, it is not a natural resource on the island is proper. If, however, there is a distinction and a possible of Hawaii now, and yet if it is transported there as game, doubt on the thing, then I say that the possible enumeration should or should it not be considered a natural resource? would be proper. The point of the committee’s report was to make sure that it was all-inclusive. If this Convention - - this committee CROSSLEY: May I answer that? I’d like to answer Dele wishes to make certain that in the committee report it is so gate Lee - - stated, that all natural resources will include the items which CHAIRMAN: All right, fine. are going to be deleted, regardless of how they might have 622 AGRICULTURE, CONSERVATION AND LAND their original start, it is perfectly all right with the commit HEEN: I think that has the same meaning. tee, or at least with the chairman of the committee, to have these specific items eliminated from this report. CASTRO: I’m thinking now in terms of that second para graph in Section 2 which discusses the natural resources CHAIRMAN: 0. K. Any other discussion? under the control of a political subdivision. HEEN: That word “natural” might be deleted. “All the HEEN: I think that second paragraph in Section 2 is all resources of the State.” Or you might add after that, wrong. “natural or otherwise.” CASTRO: Well, that isn’t the point. The point is that I RICHARDS: May I answer that? There is some question. think “within the State” is a broader phrase than “of the Of course, the geologists tell us that there is no chance of State”; “of” indicating control directly by the State, and it finding oil or some other items that are not specifically is possible some of these natural resources would not be enumerated here, and yet I would still consider that a under the direct control “of the State,” but would be within possible natural resource as differentiated between pineapple the geographical boundaries. fields. CHAIRMAN: That would preclude deep-sea fishing. • DELEGATE: The committee - - several members of the committee have given the reasons for not putting the last CASTRO: We have no jurisdiction over anything outside three words “of the State,” in here. The movant of the of the State boundaries, so we are begging the question if amendment continues to read the amendment with that in it. we discuss anything outside. CHAIRMAN: Delegate Heen, do you want to take off those RICHARDS: I beg to differ with the last speaker of the three words, after the discussion? Well, just a question of fourth district. The point involved is whether we are per getting ft into one sentence. The question was whether you mftted as a State to promote fishing outside of the particular wanted to leave off “of the State.” three-mile limit. If anyone in this Convention did attend the commfttee meeting at which we had representatives of the HEEN: I’m not taking those three words out. They should be in there. All fish within the three-mile limit would be fishing industry; aside from bait, there is nothing within the three-mile limft that is of any commercial value at all. within the state; when they swim out of the three-mile limit, Now, if we are to promote the fishing industry of the State of they are out. Hawaii, we should permit the legislature—I don’t say this RICHARDS: In answer to the delegate from the fourth thing mandates the legislature, it merely permits the legis district, does he wish to preclude the legislature from lature—to appropriate funds when, as and if they see fft to appropriating any money to investigate the fishing resources investigate fishing possibilities in the Pacific Ocean close of the whole Pacific area, which could be a supplier of in enough to the State of Hawaii so that they can be of economic come to the State? value. HEEN: That would not prevent any legislation along that PORTEIJS: I don’t think that this section is the sole sourc line. The legislature - - or the legislative power extends to of legislative power. It certainly had better not be. The all rightful subjects of legislation, and this is not a limita words “all rightful subjects of legislation” are so broad tion on the power of the legislature. In fact, the whole sec that it would let us cover almost every purpose for which tion should be deleted. Under the legislative powers, the legislation may be rightfully written. Here, however, like provisions of the legislative powers extend to all rightful wfth other sections of the Constitution, there is a desire on subjects of legislation and would take care of all these things. the part of many to point out that agriculture plays a large CROSSLEY: I don’t know how the other delegates feel part in the life of the Terrftory, and as wfth health, some about this, but it seems to me that when a committee meets, recognftion should be given to that in the Constitution. week after week, and puts in the time that this committee I believe that the legislature, after this Constitution is put, to have a section taken and considered so facetiously— wrftten, can, as I believe ft has done in the past, provide to me ft sounded facetious—it’s like some of the amendments money to assist in research wfth respect to fish. That re that went - - one of the amendments that went around here search and the people that are hired do not - - the research today, to amend the Constftution. There has been an awful is not confined to Hawaii nor the attention of the people con lot of work go into this thing. Now, if there is a good reason fined purely to the Territory of Hawaii, because ft is recog this should be deleted, let’s have a good reason, and not, nized that in order to get the fish, that it’s necessary for the “I think the whole thing should be deleted. We don’t need fisherman to go far beyond the bounds of our terrftorial any of it.” jurisdiction. Once caught, however, the fish so captured LEE: I don’t think that’s called for. There should be a are returned to the terrftory and taken to canneries, canned, little humor now and then. I think we all appreciate ft. On put on the market, sold and eaten. the other hand, I feel that we appreciate the work of the Now, I think that as the Chairman has said here, that he committee, but apparently that is the treatment that is being sees - - does not believe that any great violence is done to this section if the wording that has been suggested in the given all commfttee reports. It is not prejudice to - - only to the Commfttee on Agriculture. amendment is made wfth a provision in our report that we believe that the words, “all natural resources,” cover this. CASTRO: Point of information. Would the movant state I prefer to see usually, speaking for myself, a broad word the amendment - - state the manner in which the section used rather than to get into the enumeration of a number of would read wfth the amendments that have been - - specific ones. It seems to me that when you say “all natural CHAIRMAN: I can read it off. “The legislature shall resources,” that ft covers all of these things. When you promote the conservation, development and utilization of speak of the natural resources of a country, if you were to all natural resources of the State.” Am I correct, Dele go to some unknown land to appraise and to report on them, gate Heen? you would report on the topography, you would report on the location, you would report on the climate, you would report HEEN: Yes, Mr. Chairman. on what animals were there, what the rainfall was, what the CASTRO: I would like to ask my colleague from the forests, what the cover was. You would report on the fourth district if he would accept the amendment to delete minerals, on the animal life; you would report on the water, the word “of” and substitute in lieu therefore the word the fish, the game; all the things that are specified here, “within” or “in”? and I think you might even go further into some other matters JUNE 21, 1950 • Morning Session 623 not here referred to, such as climate, and as I said, the RICHARDS: Point of information. I notice that they said, topography of the area. So, I think that this will do the trick, “promote the conservation and development,” and did not if we use the amendment. use the word “utilization.” Is “utilization” to be left out in I understand the concern of some when they say that they this amendment? object to the words, “of the State.” In the minds of some, CHAIRMAN: I think they meant to leave it in. That right? they prefer to, as I understand it, skip the use of that word I’ll read it as it will — — ing because it seems to imply owned by the State. “Of the State,” I think, is used in a more general fashion here, and H. RICE: If you develop something, you utilize it. what it means is resources found within the boundaries, HEEN: Have the section read, “The legislature shall those things possessed by the State and within this area. I promote the conservation, development and utilization of all think “of the State” is fairly accustomed language under such the resources of the State.” conditions. CHAIRMAN: Are we ready for the question? KELLERMAN: I wish to speak against the amendment. ROBERTS: I am in general accord with the idea that the It seems to me that we would like our Constitution to be self- State or the legislature, as they case may be, take appro explanatory, and I think it’s stretching the term “natural priate steps and action to protect the best interests of the resources” very far to say that it includes agriculture. I State, whether it be in natural resources or elsewhere. I notice that the speaker who just preceded me, in enumerat think we’re talking in this section, basically, about agricul ing what any foreigner visiting a country and reporting on ture and natural resources. If we put a very broad grant its natural resources, he did not use the term agriculture. of power in here and it goes beyond the natural resources, I Agriculture is not natural, it is the result of the work of think it could be very effectively argued that human resources, man. If we are going to adopt the provision and have to~ which to me are extremely important and vital, might also resort to a committee report for its interpretation, when we be the base for action in this section of the Constitution. admit that agriculture is possibly the most important factor Putting in very broad language, such as we suggested, “all in our economy, it seems to me that it’s quite foolish to of the resources of the State,” human resources are the delete the language that makes your intention clear, and most vital, in my mind, resources of the State. then say - - resort to a committee report to find out what Are you granting a general broad power to the legislature we intended. to take any action with regard to resources of any kind? I I think from that standpoint, also, “of the State,” as don’t think it’s the intention, certainly; I think that that long as that is ambiguous and can be construed in two differ language could be so construed. I think you want a confined ent ways, why not omit it, as the committee quite intention language dealing with the specific problem before you, which ally did omit it. We obviously are not going to develop and is the natural resources of the State. Now, other sections conserve the natural resources of any other state except have taken care of the health resources, and there will be Hawaii, and if we can aid - - if we can conserve, develop sections going beyond that within the legislative powers, or utilize or investigate the fish without the three-mile limit, which are quite broad. I certainly would be careful about it seems to me that does not need the enumeration of “of the putting such broad language in the section dealing with agri State” or limitation in any way. I think the original language culture. of the committee is quite clear and I don’t think the use of the term “other” makes it ambiguous, because there are RICHARDS: May I speak on that particular point? Where certainly some items in this enumeration that everyone as I as an individual have no particular objections to the uti will admit are natural resources. lization of all resources available, I feel that that is com pletely beyond the scope of this committee. This committee ANTHONY: The word “agriculture” is not used, that’s was dealing with agriculture, conservation and land, and if the trouble. There is an adjective used here, and the you try to write into this particular report the handling of all adjective defines natural resources. resources, I feel that that is completely without the scope H. RICE: It seems to me in this we ought to have an all- of this committee’s report. inclusive sentence here. “The legislature shall promote the The other point that I would like to bring out is, if it is conservation and development of all the resources of the definitely the feeling of the movant and the seconder and the State.” Because I can see in the future, if we want to have amender that “of the State” means within the State and not full employment, we should develop other things than natural confined to merely the ownership of the State, that is some resources. There are by-products in the sugar industry that thing that I think the committee would probably agree with; should be developed and other things. They are not natural but we do wish to make this section broad enough so that it resources; they are resources that we should promote, is not confined just to the assets owned by the State. though, to get our country into a better economic state. CHAIRMAN: Now, are there any other opinions? Are CHAIRMAN: Do you make that a recommendation to you ready for the question? change the amendment? CASTRO: No, Mr. Chairman. If we mean natural re sources, let’s say “natural resources.” If we mean within HEEN: No, delete the word “natural” from my amend- the State, let’s say “within the State.” I don’t see that this ment. deletion of the word “natural” gets to it at all. I would H. RICE: That would make it, wouldn’t it? move then to amend further and to place after the words “all the” the word “natural.” This is an amendment, adding HEEN: That’s right. the word “natural” before “resources” and deleting the H. RICE: It should read: “The legislature shall promote word “of,” and placing in lieu thereof the word “within,” conservation and development of all the resources of the State.” so that the section would read: “The legislature shall pro mote the conservation, development and utilization of all CHAIRMAN: Will you accept the “all,” Delegate Heen? the natural resources within the State,” HEEN: That’s correct. CHAIRMAN: Delegate Heep, will you - - are you willing CHAIRMAN: Are we ready for the question? to accept that as a - - HEEN: No, the word “utilization” in there, that should HEEN: No, I’m not. The word “natural” was deleted in remain. order to take care of agriculture and other resources that 624 AGRICULTURE, CONSERVATION AND LAND are not natural. The committee said it was intended to CHAIRMAN: May I ask Delegate Heen, would that then cover both. sort of infer that agriculture, mineral, land and so on are PORTEUS: I would like to see this matter brought to a not natural resources? vote. I second the amendment made by my fellow delegate HEEN: That’s correct. from the fourth district, because I believe that there is a disposition on the part of many of the delegates here who DELEGATE: Question. wish to retain - - disposition to retain the terminology CHAIRMAN: Are you ready for the question? The addi “natural resources.” Now, if the amendment doesn’t carry, tion of the word “the,” the elimination of the word “other.” we go on to the amendment as suggested. If it does carry, All those in favor - - Delegate Roberts, go ahead. we’ve got that question behind us. ROBERTS: I suggest that some of the items listed SAKAKIHARA: Second. obviously are natural resources. It seems to me that CHAIRMAN: The question is then, you want to move leaving the language as it is meets the problem. It covers first on Castro’s amendment. Do you all know what it is, those items and covers other natural resources as well as the difference between one and the other? Instead of - - those mentioned within the paragraph. I think we ought to what we are moving on now shall be: shall we include adopt Section 1 as proposed by the committee. “natural” and “within the State”? Are you ready? All those CHAIRMAN: Is there any discussion? in favor of this amendment say “aye.” All those opposed. Sounded like more ayes. Do you want to show hands? MAU: Point of information. I wonder if the committee would explain the word “agricultural” as it relates to DELEGATE: Is it a ruling of the Chair the ayes have it? natural resources. Could there be better language than that? I think maybe those who have been trying to amend CHAIRMAN: That’s what the ruling was. this are calling attention to the fact that agriculture is not DELEGATE: Well, that’s sufficient. We’ll abide by the considered a natural resource. How do you tie the two - - ruling of the Chair. those three words together? CHAIRMAN: Thank you. BRYAN: May I answer that? If the delegate would tell Then are you ready for the next amendment, Delegate me if there is no such thing as an agricultural natural re Heen’s amendment? source, I might agree with him. PORTEUS: That will be Delegate Heen’s amendment as CHAIRMAN: Satisfied? Any other questions? Are you amended? ready for the question? Ready for the question? The amendment is to leave out “other” and put in “the.” All CHAIRMAN: Yes, that’s right. Are you now ready for those in favor say “aye.” All those opposed? accepting Section 1 as amended? [Motion did not carry.] ROBERTS: Will the Chair please read the amendment? Are you ready for the question? Section 1 as submitted by the committee. All those in favor say “aye.” All those CHAIRMAN: The amendment as it stands now reads as opposed. Section 1 is carried. follows: “The legislature shall promote the conservation, development and utilization of all the natural resources with ARASHIRO: I now move tentatively for the adoption of in the State.” Are you ready for the question? All those in the first paragraph of Section 2. favor say “aye.” All those opposed. I’m afraid the noes have it. DELEGATE: Second the motion. Are you now ready for the question? The question is as CHAIRMAN: It has been moved and seconded. follows: “The legislature shall promote the conservation, LEE~ I move to delete Section 2. I don’t think it’s needed. development and utilization of agricultural, minerals, forest, The first paragraph anyway is not needed in this particular water, land, fish, game and other natural resources.” section about setting up executive boards. That’s all covered BEEN: I move an amendment by deleting the word “other,” in the article on executive powers and functions. and substitute for that word the word “the.” FUKIJSHIMA: I second that motion. CHAIRMAN: You get it? You take out - - RICHARDS: If we are to delete Section 2, we might as well delete the balance of the committee proposal. And if HEEN: The word “other” and substitute for that word that is the wish of this committee, the Committee on the word “the.” Agriculture, Conservation and Land must naturally expect CHAIRMAN: Did you all get it? The last line will then it to be deleted. read, “and the natural resources.” Are you ready for the SAKAKIHARA: I so move. question? CHAIRMAN: Wait till we hear a little discussion here. DELEGATE: A point of order, please. There’s no sec Delegate Roberts. ond to the motion to amend. RICHARDS: I still think I have the floor on this particular DELEGATE: I second the motion. point. CHAIRMAN: I think there was. CHAIRMAN: I thought you had finished. Go ahead. CROSSLEY: May I ask the movant a question? Delegate RICHARDS: The point, if the members have read the Been, what do you think that that will do that this language complete committee report, is’ that the committee feels doesn’t? that there is a definite feeling of trust that should be ex ercised regarding the natural assets of the State to be BEEN: Because all that is stated before that, all of the administered to the best interests of all of the people of the various items before that, ties up with the word “other.” State. In the committee report of Executive Powers and “Agricultural, mineral, forest, water, land, fish, game and Functions we noticed, as we passed on today, that it does other natural resources.” They are all supposed to be provide for executive boards. The department of education natural resources, what goes before those words, “other feels that it is essential to have a particular executive board, natural resources.” and there is a feeling that in dealing with the assets of the 625 JUNE 21, 1950 • Morning Session State which are expendable that there should be more minds port. I can’t see any need for the cluttering up of the Consti than just one in handling such a disposition. Naturally, it will tution by such language. be handled by law under the manner of - - by the legislature, RICHARDS: I thought - - the first point, I thought we were general laws passed by the legislature, as is taken care of discussing this paragraph by paragraph, and we are now in other sections in the proposals. This particular point cluttering up our discussion with entering into the second merely raises it before the Committee of the Whole to de paragraph. cide whether the disposition of the assets of the State and the administration of those assets —and by disposition I mean CHAIRMAN: Point is well taken. We will proceed. leasing, licensing and other problems to be handled by the State—should be handled by a board, an executive board, or LEE: Point of order, please. The motion was to delete should they be left to an executive official appointed by the Section 2. governor, confirmed by the Senate, who has no further CHAIRMAN: No, the first paragraph of Section 2, I think. responsibility thereafter. That was under discussion. Any other - - CHAIRMAN: Any more discussion? RICHARDS: As regards to the question raised by the ASHFORD: I think one of the reasons the committee delegate from the fourth district on the second sentence, felt that this should be boards or commissions was after hear namely, “The legislature need not commit to such boards ing particularly from the land board. I think we are pretty or commissions the jurisdiction over resources set aside well convinced that we, the committee certainly was, that for public purposes other than those of conservation,” that the land board over the course of years has done an excellent was to take care of the assets that were set aside for the job. Their complaint throughout was that they were ham Aeronautics Board; for the assets that were set aside for pered by not having full authority. One of the points that the buildings, public buildings; for the assets that were set they brought out was that, particularly in the matter of aside already for public parks. This merely gives the legis handling the public lands, there were immense pressures lature the opportunity not to put into a particular board assets brought to bear. And they felt, and we felt, that those already set aside for other public purposes. It’s merely a pressures could best be withstood by a board than by an clarification of the first sentence. And the “other than individual. conservation” means that land set aside for forest reserves, which are a conservation purpose, must be submitted to a CASTRO: As I understand it the reasons for the motion board. to delete this section had to do with the fact that a similar CHAIRMAN: Any other discussion? section or adequate provision is made in the proposal for legislative powers and functions. Now, this, of course, AKAU: I’d like to say that I think it’s not only redundant, we have not yet seen. but certainly inconsistent. The first sentence, as has al It is true that one of the most important items of interest ready been explain by the chairman, says something “shall” to any person in Hawaii is the land. I don’t think that this be committed, which is a positive statement; and then the statement can be made only of Hawaii, but in Hawaii parti second sentence, “The Legislature need not,” while it is a cularly, which is an island, the question of land utilization sort of proviso, it says yes and it says no. I would like to is so important that it becomes a matter that you cannot say that we vote on this because it doesn’t make sense even always deal with, with only direct reasoning and fact. It to me. becomes almost a sentimental thing, and we thought, after FONG: May I ask the committee a question? I want to going through all of Section 73 of the Organic Act and meet ask what is the purpose of Section 2? Is it primarily for the ing with the attorney general and with the members of the attorney general’s staff, I should say, and with Mr. Tavares purpose of restricting the power of legislature, or is it a reiteration of what has been done? and his vast experience with the public lands, that this first paragraph of Section 2 is a very minimum of provision. CHAIRMAN: Bryan, you want to answer that question? I call attention to the lines, the fourth line, “and such Or does Castro want to answer it? powers of disposition thereof as may be authorized by law.” Now the disposition of the public lands is something that will CASTRO: I’d like to answer that. The purpose of Section come up later this evening, or at least later in the discus 2 primarily is to insure that the boards or commissions which sion of this committee proposal, but to indicate that there are set up to oversee the natural resources of the State have must be proper powers of disposition of the public lands is full powers as opposed to the situation in the land board to very important. Now, whether or not this section stays as day where, as you know, the board of public lands does not it is in view of some coming proposals by the Legislative have full power over the management of the land under its, Committee is something that perhaps we can take up later quote, “control,” unquote. That is a prime purpose. So on. But I suggest to the delegates here that we consider long as that purpose remains in this section, I’m sure that the proposal before us, in the light of what has gone before, amendments to the wording are possibly in line. But that and not what we may anticipate as coming in the future. If is the main purpose. it develops that there is some inconsistency, some overlap FONG: In other words, you are telling us that, with this ping, I’m sure we can take care of it. Therefore, I think section, you will force the legislature to place all natural the motion to delete should be defeated. resources in a board. Is that right? LEE: Technically the sentence following the statement CASTRO: By “us,” you mean the legislature? that the legislature shall commit to one or more executive FONG: Beg your pardon? boards, which reads, “The legislature need not commit to such boards or commissions the jurisdiction over resources CASTRO: By “us”? set aside for public purposes other than those of conserva FONG: I mean the legislature. We here who are drawing tion,” doesn’t mean a thing. It’s purely redundant. The up the Constitution are now telling the legislature under legislature doesn’t have to do that anyway. Also the following Section 2 that they have to deal with natural resources in sentence, “Resources which by authority of the legislature this manner; that is, they must set up a board to take care are owned by or under the control of a political subdivision, of the natural resources. Is that right? or department or agency thereof, are not covered by this section,” things of that sort could be well covered in the re CASTRO: That is correct. 626 AGRICULTURE, CONSERVATION AND LAND FONG: Then it is a iimitation upon the powers of the DELEGATE: Correction, Mr. Chairman. There is no legislature, is that not right? “please” in the sentence. CASTRO: If you wish to interpret it that way, that is also RICHARDS: I feel that there are certain points which correct. have been raised which should be answered. I believe that FONG: Yes, then there’s another way of telling the legis the delegate from the fourth district who spoke last was lature, we don’t trust you; you’ve got to do it this way. considerably in order regarding the point of a constitution is a matter of restriction. However, I do want to assure CASTRO: That is incorrect. the delegate of the fifth district that this particular section FONG: I see, thank you. was not put in primarily to curb the hands of the legislature. He particularly pointed with pride to what the legislature has BRYAN: Delegate Fong, I think that this was put in here, done regarding natural resources. I grant they have done not primarily out of fear of the legislature, but more out of considerable regarding water and some of the others, but fear of the governor. Therefore, I should think you should they haven’t done a single thing regarding land because they be very much in sympathy with this. didn’t have the power to. It was handled entirely by the Con A. TRASK: Mr. Chairman. gress of the Unked States, wkh their land commissioner CHAIRMAN: Just a minute, Mr. Trask. Fong, want to and their setup of a land board. We are - - the committee answer that? was trying to make asetup which would give the legislature power to create boards to handle the natural resources. You will note that the commktee report does not say everything FONG: Fear of the governor, and yet it says, “The legis shall be committed to one board or another board or another lature shall commit.” Now, if you fear the governor, then board. That is entirely up to the legislature. you put - - insert in this section here something about the The feeling of the commktee was that it should be - - the governor, but here you start off by saying, “The legislature assets should be commkted to a board, so that no one ap shall.” Now when you say “The legislature shall,” the leg pointee of the governor, similar to the present commissioner islature must; and when the legislature must, the legislature of public lands, would have the exclusive power that the has taken away powers from itself. That’s what you are do commissioner of public lands now does hold under the terri ing. You are not reiterating what the legislature has done. If you are rekerating what the legislature has done by saying torial setup. We are interested in seeing that there is a that the legislature has done a good thing by putting the water control, but a control that can be exercised for the benefk resources on the water board, and the agriculture and fores of all the people of the State without having a single dictator. try under the board of forestry, then I say that it is redundant, CHAIRMAN: May I generally suggest that we leave out it need not be here. But if it is your purpose to tie the hands of our discussion the tone that the legislature is fighting the of your legislature and say that it must be done this way, then Constkution, and the Constkution is fighting the legislature. you have something here. the only thing I have to do is to Let’s work together on the idea, let’s make a Constkution vote against it. that is for the whole community. Are you ready for the question? The question is, k has KELLERMAN: It seems to me that that is one of the been moved and seconded that we delete Section 2. All those purposes of drafting a constitution. The Federal Constitu in favor of this say “aye.” tion so limks the hands of the Congress in many respects. If the legislature were deemed to be trusted in all circum DELEGATE: Point of order. stances for all things, there would be little need of writing CHAIRMAN: State your point of order. a constitution. It seems to be perfectly legitimate and reasonable, and k’s one of the purposes for which we are DELEGATE: Isn’t k paragraph one of Section 2? here, at times to restrict the powers of the legislature in CHAIRMAN: I stand corrected. Paragraph one of Sec whatever fields we feel that is essential for good government. tion 2. A. TRASK: I want to - - was quite attentive to the remarks ANTHONY: Isn’t k the first sentence? of the delegate from Molokal when she said that experts from CHAIRMAN: No, k’s the whole section. The whole para the department of agriculture and so forth came to the com graph, I’m sorry. mittee and made observations on how their work was being hampered. Well, that’s one viewpoint. I wonder how many ANTHONY: I’d like to speak to that last sentence. people of the legislature were called in to give their own CHAIRMAN: All right. particular viewpoints, and how other people from the other ANTHONY: It’s saying what the legislature need not do. sections of the island who are affected by this legislation or Now, the legislature need not do a great many things. They this grant of power are going to feel about this skuation. need not go out and set fire to the police station. Why put The viewpoint of the people who are attentively attending to this in the Constitution, that they need not do anything? That their own work will always complain about the lack of power, sentence is absolutely meaningless. that’s not strange at all; and the purpose of the Constkution is to restrain such things, rather than to give more expansive CHAIRMAN: If this motion passes, that goes out wkh - power. the other. It seems to me, if you agree—and this I address to the BRYAN: I’d like to answer that, clarify k. If we put in recent speaker from the fourth district—if you say that, the Constitution the legislature must set fire to every build “The legislature shall promote the conservation, develop ing in Honolulu, but we want to leave out the police station, ment and utilization of all natural resources,” you are say then we put in they need not set fire to the police station. ing to the legislature: “Rere, take k all, how and in what That should answer your question. It says here they shall manner you do from time to time, or how you may change commk to the board natural resources, but they need not the law from time to time, is your business.” But after commk certain ones as described in the second sentence. giving that full plenary power, you come to the second section that says, “But, legislature, please transfer this full power CHAIRMAN: Any other discussion? Are you ready for to boards and commissions who are not responsible to the the question? The question is the deletion of the first para people directly.” And I am against this second amendment, graph of Section 2. All those in favor of deleting this para and I am supporting its deletion. graph say “aye.” All those who want the paragraph remain- JUNE 21, 1950 • Morning Session 627 ing say “no.” The chairman is at a complete loss as to which of as may be authorized by law.” Are you ready for the side has the motion. question? PORTEUS: Can we test this by sight, and not by sound? ANTHONY: I wonder if the Convention appreciates the fact that this would abolish the superintendent of public works. CHAIRMAN: All right. All those who wish Section 2, Would the chairman want to answer that? paragraph one deleted, would you kindly stand. I get 23. All those - - would you kindly sit down? All those who favor CHAIRMAN: How? retention. I get 27. 27 to 23. The motion to keep the sec RICHARDS: I don’t see where the superintendent of tion in - - I mean the deletion motion is lost. public works goes out. We’re discussing natural resources. ANTHONY: I move to delete the last sentence of the first Now, I don’t suppose that a bridge, a street or a highway or paragraph. a building is a natural resource. DELEGATE: Second the motion. ANTHONY: I thought we had that all out when the Conven CHAIRMAN: Any discussion on this motion? Question? tion over-rode the objection to the first sentence. I was All those who want to delete the second sentence of Section endeavoring to confine it to natural resources, but the body 2, paragraph one, say “aye.” All those who wish to keep did not agree with that. it. The ayes have it. Is there any objection or do you want CHAIRMAN: I think you are wrong. I think natural re a show of hands? sources won out. APOLIONA: I now move for the adoption of Section 2, as ANTHONY: Yes, but the word “land” is in there. Land amended. is not a natural resource. DELEGATE: Second it. DELEGATE: What? CHAIRMAN: The motion has been seconded. All right. DELEGATE: What is it? ROBERTS: On line two of the first paragraph of Section RICHARDS: May I remind the delegate from the fourth 2, they have the words “full powers.” I suggest that the district that at his instigation the second sentence, which word “full” be deleted. “To one or more executive boards would cover his particular problem, at his motion was de or commissions powers for the management of.” leted from the first paragraph. CROSSLEY: I second that motion. ANTHONY: Well, Mr. Chairman, I thought I had the floor. RICHARDS: The committee will accept that amendment. CHAIRMAN: You have. CHAIRMAN: It’s accepted. ANTHONY: This sentence, if adopted, will do just exact FONG: You will note that Section 2 reads as follows: ly what I said it woulddo. Now, I don’t think we want to take “The legislature shall commit to one or more executive the jurisdiction away from the superintendent of public works boards or committees full powers for the management of all for instance, over land and put it in some board. I suggest natural resources.” Now, it seems to me that the English to the Convention we have already adopted an executive arti is not correct there. “The legislature shall commit to one cle this morning, it deals with the departments of govern or more executive boards full powers - - of all the natural ment. We don’t need this, in any respect. resources.” I think the meaning which is - - which the BRYAN: I think that the chairman of the committee on committee is trying to convey is this, that the legislature this article already answered the question. Delegate Anthony, shall commit to such boards such powers over such natural the reason that the proviso was put in in the form of the sec resources as it may deem necessary. ond sentence was to cover just the objections that you now BRYAN: Mr. Chairman. raise, and at the time that you raised that question and there CHAIRMAN: Do you want to make an amendment? was a motion to delete the section, the first reaction of the chairman of the committee was, “I wonder if he knows what FONG: Well, I just haven’t got my finger on it. he has done?” The next question we heard was, “Does the BRYAN: I think it would help the construction of this committee know what they have done?” thing if we took the word “all” out, with the committee re ANTHONY: Yes, but the difficulty is we have already port stating that the intention was that through these boards taken care of it in the executive section. Then this commit they would cover all natural resources. tee comes along and puts Into its proposal something that’s CHAIRMAN: Do you want to make that as a motion, Fong? already been adopted by this very Convention this morning, Remove “all” and “full”? creating executive departments of government. I think we ought to delete the entire section. FONG: Beg your pardon? RICHARDS: As I recall the action taken this morning, CHAIRMAN: The question is, do we want one amendment the action did provide, regardless of the various amendments to remove “full” and “all”? which were offered on the floor, that the legislature may FONG: Yes, I think that is better. I so move. create executive boards. We are merely committing to one of those executive boards which the legislature may DELEGATE: I second that motion. create certain assets and natural resources of the State. CHAIRMAN: Any more discussion? Are you ready for CHAIRMAN: Are you ready for the amendment? the question? All those who wish these two words - - PORTEUS: I’d like to ask a question. I don’t want to ANTHONY: What is the question, Mr. Chairman? be taken as trying to harass the committee, because that’s CHAIRMAN: The question is another amendment on certainly not my intent, but I would like to know whether Section 2, paragraph one, removing the two words “full” and or not we might not find language a little more suited to our “all.” Therefore, it will read, “The legislature shall com purpose than possibly that which is used now. The point I mit to one or more executive boards or commissions powers have in mind is this. “The legislature shall commit to for the management of the natural resources owned or one or more executive boards or commissions the full controlled by the State, and such powers of disposition there- powers”—but I think if you take out “full,” then if you give 628 AGRICULTURE, CONSERVATION AND LAND it to - - you can divide the powers apparently between more propose that there should be one or more executive boards than one board. As I understand it, however, it will be created to handle the assets of the State. We do feel in the necessary to have a board. You cannot use a department committee - - we discussed at great length the spelling out where you have a single department head that will adminis of a board or boards to handle these assets. We, however, ter one of these matters, but rather than that, the legislature felt, after full discussion—and by full discussion I mean must set up a board or a commission. Isn’t that so? many hours discussion—that it was a matter to be left to RICHARDS: That is correct. The idea of the committee the legislature as to whether these assets should be handled was that the legislature should commit to one or more boards. similar to the example that was brought up last night of the Constitution of the State of Connecticut, where the assets PORTEUS: In other words, it must be a board or a com were all under one board with departments or bureaus sub mission, not a department. Now, this morning when we servient to this one board, or whether they should be boards were concerned with that section which came from the Exe of equal standing. The committee feels that that is a matter cutive Powers Committee which is Proposal - - Committee for study by the legislature, and, therefore, is recommend Proposal No. 22—I think you’ll find it on page 4, page 3 ing that the legislature do place in one or more boards this and 4—it made it necessary that all executive and adminis particular function. trative offices, departments, and so forth, and their re spective functions, powers and duties, have to be allocated HOLROYDE: Could we have a short recess to see if we by law among and within not more than twenty principal could reconcile this problem a little bit? departments. Now, then, once the legislature allocates CHAIRMAN: All right, a short recess. Less than five one of these executive boards to a particular department, minutes. how is the legislature going to work out, do you have in mind, the question of who will regulate the activities? It (RECESS) seems to me that you have rather a pointless section if you say that you will have 22 divisions, but within those 22 divisions - - 20 divisions, you are going to have various CHAIRMAN: Meeting come to order. One minute more? executive boards and departments that will not be regulated Are you ready? Have you some new wording here that will either by the board that heads that department itself or by satisfy the rest of them, Delegate Richards? the administrative officer of that department. Therefore, you will have to try to find - - either you will have to put BRYAN: I would move to defer this paragraph. The this executive board under some department that’s handled intent of the committee was that these things should be by a single executive and say that this board doesn’t have to committed to an executive-type board. That was their listen to you, or you haye got to get some sort of classifi prime intent. Now, in the three-minute recess we didn’t cation where you can put all these boards that rule on the have time enough to work up any more suitable language. duties and powers that have been given them specifically. I therefore move that this paragraph be deferred. In other words, what I’m basically troubled with is, SAKAKIHARA: Second it. when you set up the 20 departments, how do you place in CHAIRMAN: Could you hold it a minute? There is a these various boards? Had you said, it must be left to a motion before the house to delete “full” and “all.” It has department, that would have left it open to the legislature been seconded. to have utilized this department head or made them subordi nate to someone else. But it seems to me that under this SAKAKIHARA: I move we defer everything. language the legislature, under your intent, would not be CHAIRMAN: Defer that as well? All those in favor say carrying out your intent unless it gave this executive board “aye.” All those opposed. Carried. or commission full power without being subject to regulation Go on to Section 3. by a head of a department in which it might be placed. RICHARDS: I assume that we also defer the second CHAIRMAN: Delegate Castro wants to answer that. paragraph of Section 2 because that does relate very close ly to the first paragraph. CASTRO: Referring the delegate to page 4 of the com mittee proposal, as I read that, there is a provision that a J. TRASK: I move we tentatively approve the first para board or commission may be the head of a principal depart graph of Section 3. ment, so that I don’t see that the point is well taken. CHAIRMAN: Second to that? PORTEUS: May I point out to the last speaker that it APOLIONA: I second that motion. says, “except as otherwise provided in this Constitution, when a board, commission or other body shall be the head CHAIRMAN: Any discussion? I’ll read it. “All fisheries of a principal department, the members,” it provides how in the sea waters of the State not included in any fish pond those members shall be appointed. That’s all it does. You or artificial enclosure shall be free to the public, subject could have a department headed by a board. Let us suppose to vested rights and the right of the State to regulate the we have a department that is headed by a board, but under same.” that department you have got to place one of these other executive boards. I’m not sure how you do it, with the MIZUHA: A question. I would like to ask the chairman of the committee what he means by that phrase, “subject to proper flow of authority and regulation. That’s my only vested rights”? concern. RICHARDS: In answer to Delegate Mizuha, the point is CHAIRMAN: Would you two neighbors get together and that there has been established by Hawaiian law the konohiki see if you can understand the language and then maybe rights of fisheries, and those are vested rights according present it later. to law. If you will note later in the report, under part two RICHARDS: May I answer that particular point that is of the committee proposal, Section 4, we are including or raised? If the delegate from the fourth district will remem suggest including in the Constitution the mandate already in ber, I raised that particular point last night during the the Organic Act that all private fishing rights be condemned, matter of the discussion of the limitation to 20 boards or so that eventually there will be no private fishing rights. departments, and debated that when this committee came FONG: I notice this is only restrictive to the fisheries forward with its report and its proposal it was going to in the sea. Now, as I understand, we will be utilizing, JUNE 21, 1950 • Morning Session 629 developing and conserving the fisheries in the streams. It ANTHONY: Mr. Chairman, I believe I still have the is conceivable that that is a natural resource. Now, did floor. I asked the chairman a question. U that’s a fact, the committee consider that? then there is no purpose to make any rights free; it’s a purpose to regulate vested rights, and the section should RICHARDS: The committee definitely did consider that, therefore be redrafted to say just that. Because, certainly, but that is tied up with water rights and is also tied up with if they are not vested rights then they are free to the public, the land on either side of the streams that govern those and if it is the intention of the section to make them subject particular areas for the propagation of fish; and the com to regulation, then it should be a simple statement that mittee felt that under Section 1 the legislature would be rights of fishery, even vested rights, are subject to regu empowered to condemn if it’s necessary, or to provide for lation for purposes of conservation. the proper regulations to permit the public to operate and fish in those areas. MIZUHA: I would like to ask the committee chairman a question. Isn’t fisheries a natural resource as mentioned CHAIRMAN: Thank you. Any other questions? in Section 1? A. TRAffiC: Pursuing that same inquiry by Delegate RICHARDS: May I answer that question, Mr. Chairman? Fong, in the first section you do not differentiate between sea and river waters, you just say “water,” and yet in CHAIRMAN: Go ahead. Section 3 you say “sea waters.” Now, when I first saw the RICHARDS: When one discusses fisheries, there are two expression “water” in Section 1, I thought it had reference particular parts of a fishery; one is where you catch your to all waters; ocean, sea and inlets and outlets and streams commercial size fish, and the other is where you secure and rivers and so forth. I had occasion some time ago to your bait. Now, in the matter of conservation, it is impor represent some people who had—I think it was the Coney tant that the bait reserve be regulated. That is, I believe, family in Nawiliwili Harbor, not the Coneys, but the other the point. Does that answer your question? people who were poaching on the Coneys, in Nawiliwili DELEGATE: Mr. Chairman. Stream entering into the harbor there—and I believe they do have konohilci rights, and vested rights, so-called. It MIZUHA: The point - - Mr. Chairman, I believe I still seemed to me, in view of that, I’d like to move if the com have the floor. The point I’m asking is, if fisheries are a mittee would consider it, striking the word “seas,” so that natural resource of the State, whether it is bait fish or eat —“seas,” Section 3—so that it would conform with the ex ing fish or some other kind of fish? pression in Section 1 to be all-inclusive, all bodies of water. CHAIRMAN: The Chairman rules they are a natural re RICHARDS: I feel that the committee discussed that source. particular point and it was felt by the committee that that MIZUHA: Then I believe that Section 3 is unnecessary, might be unconstitutional under the Federal Constitution, that it is covered under Section 1 inasmuch as the legislature as it might be depriving vested rights without due process will have the power to regulate whatever bait fishing or com of law and compensation therefore. That is the reason mercial fishing they would want to have; and as far as vest why we went ahead with Proposal No. 4 of Part 2, so that ed rights is concerned, it will be taken care of under existing in case of any particular right being involved that the legis - laws. lature would proceed with the proper condemnation thereof. SHIMAMURA: May I ask the chairman of this committee CHAIRMAN: Is that clear? a question? Doesn’t this language in Section 3 follow very ANTHONY: I’d like to ask the chairman a question. Are closely the language of the Organic Act? there any rights of fisheries that are not vested rights that DELEGATE: It does not. are not free to the public? Is that the idea of the committee? That there are some rights which the public may not enjoy? RICHARDS: In answering that question, I believe it does. There is one other point which I have neglected to mention RICHARDS: Oh, yes, as I recall - - for the inclusion of Section 3, and that is that whereas there ANTHONY: That are not vested rights? is a permissive part of this article to permit the leasing of RICHARDS: I beg your pardon, I didn’t get the question. the assets and the licensing of the assets of the State to private individuals, this particular section is in there for ANTHONY: That are not vested rights? the purpose of precluding any such licensing to any individual. RICHARDS: You mean rights that are not vested rights. In other words, it’s important that the fishing should be free to the public and should not be restricted by licensing to ANTHONY: Yes. any private individual. RICHARDS: Oh, no, no, no; there is only vested rights. HEEN: It’s quite apparent to me that the committee did ANTHONY: Well, then if that’s - endeavor to follow the language in the Organic Act. U you will read the section as proposed by the committee, I will RICHARDS: That’s been established by law. read what appears in the Organic Act. Section 95 has this ANTHONY: Well, then if that’s the case, this is just a language—it’s almost identical with that in the proposal— statement of the existing law. All it says is that the rights “All fisheries in the sea waters of the Territory of Hawaii to fish in the sea shall be free to the public, subject to vest not included in any fish pond or artificial enclosure shall ed rights. In other words, that’s a statement of the existing be free to all citizens of the United States, subject, however, law. to vested rights.” The only change there is change from “Territory of Hawaii” to “State” and change the term “citi RICHARDS: There is a slight difference. U the last zens of the United States” to the word “public.” speaker will read on to the end of the sentence, “and the right of the State to regulate same” is added because it is KING: There’s a further change, “and the right of the important in the matter of conservation, inasmuch as this State to regulate the same,” which I think is important. committee was charged with the matter of investigating ANTHONY: The purpose of Section 9—Delegate Heen conservation, that the right of the State to regulate such didn’t read the next sentence—the purpose of Section 95 of fishing within the State areas should be preserved. the Hawaiian Organic Act was to terminate vested rights in DELEGATES: Mr. Chairman. sea fisheries, because the next succeeding sentence of the 630 AGRICULTURE, CONSERVATION AND LAND Hawaiian Organic Act says that within three years unless to repeal the laws of the Republic of Hawaii, and it’s so they are established they shall be terminated. Now I think definitely stated in the first portion, which conferred ex that there’s a subsequent section in this article which deals clusive fishing rights upon any person or persons, and it with that, carries on the same mandate. But I see no says that those laws that conferred those rights “are hereby occasion for this unless k’s simply a matter to regulate the repealed and all,” and it went on to show what happened rights of fisheries, and if that’s the intention, it can be after they’d repealed those rights, that it should be wide stated very simply. open as fishing rights were throughout the rest of the LTJIZ: I want to ask a question of the chairman. The last United States. I think that’s the section. five words where you say, “State to regulate the same,” is KING: This section on fishing rights has been a “hot that referring to the laws of how you can fish, instead of potato” in the political arena for many years. The legisla using dynamite and lime and things of that sort? ture has deliberately, over the 50 year period, neglected RICHARDS: That does cover that, to avoid poison, dyna to extinguish those private fishing rights. There used to mite and all of those other cases. It’s a matter of regulation be a gentleman in my fifth district who used to run repeated also, catching fish and lobsters out of season, all of those ly for office on the issue of the fishing rights. It seems to matters of regulation. me that this section that will make the sea fisheries open to the public and the private sea fisheries subject to State ARASHIRO: It seems to me that this is to make all sea control is a desirable feature of the State Constitution. water fishes free to the public, and so under that intention Later, when we get to Part 2, we can act on Section 4. I I wish to make an amendment by putting a period after “public” have served on two appraisal boards appraising the value and deleting “subject to vested rights and the rights of the of the sea fisheries, turned in the reports to the attorney State to regulate the same.” general, and nothing has ever happened to it from that time DELEGATE: I second that motion. to this day. CHAIRMAN: A motion has been made and seconded. PORTEUS: I’d like to point out something in connection with those fishery rights. The legislature has been making KING: I was going to speak in favor of the section as It provisions and has on numerous occasions asked the attor is. If the delegate who offered that last amendment will ney general’s office to please report to the legislature the turn to the committee report and read Section 4 of Part 2, progress made. There was a report made within the last he’ll see there is a very direct mandate to extinguish those several years, naming which fishing rights, and naming the vested rights. Now, we can’t extinguish vested rights that order in which condemnation process would be proceeded have been established by law by striking those few words wkh. As the gentleman said, he was on an appraisal board out in this article or in this section of the Constitution. If and there has developed a situation, and I might inform him we are going to strike it out, there will have to be some that in at least one of those, the case has been watched further language directing the legislature to extinguish them. through the. courts and distribution of money made to the Well, that language is contained in Section 4 of Part 2 of owners, and in at least one instance that I know of, those the committee’s recommendations, so I really feel the last fishing rights have been opened on the island of Maui. I amendment is uncalled for. think the gentleman was on that appraisal board. I wanted to speak for the approval of this section as KING: I’m very happy to stand corrected as to the record written. It doesn’t seem to me that any argument has been of the legislature in the last seven years. But that still made against it. If it re-uses the language of the Organic leaves the preceding 43 years that haven’t been rather - - Act and establishes in the Constitution of the State of Hawaii KAWAHARA: In regard to this statement here as to the that same language, well, then, all the more reason why it fishing rights of persons, I’d like to ask the committee how should be retained. Then further on, the following section far the fishing rights are extended to, whether the right in in the Organic Act is embodied in Section 4, Part 2 of the cludes only fishermen who are out at deep sea, in deep water committee report. sitting, crouching or standing on a boat, or does it, the Now, while I’m on the floor I’d like to say further that fishing right, extend to those people who also fish from land’~ it seems to me rather unfortunate that we put a committee As we know there are two types of fishing, deep sea and through the hoops here. Alter all, they have spent many shallow water fishing, and those people who are going to fish weary hours and discussed this and have done the best they from land, I’m just wondering whether this section will covez could and they bring their report out here. We should accept those people or not, because some of us do come from com it as prima-facie in good faith, and merely attempt to munities where much fishing is done from land, I mean off amend or change it in a constructive way rather than in a shore fishing. critical way. As I look over the membership of this com mittee, I think they are very distinguished members of this RICHARDS: May I answer that question? The feeling of body, and entitled to have their efforts considered in entire the committee was that all the fisheries should be open to good faith and not be subject to such criticism and such the public subject to reasonable regulation by the legislature. questioning as to their reasons for doing this or doing that. The point that the committee was interested in is that the I’d like to, if the gentleman who made the last amendment, fisheries that are restricted at present, that do have vested I’d like to ask him if he read Section 4 of Part 2, and if he’s rights, are those shore fisheries which do not permit the prepared to withdraw his amendment. I make that sugges public to always go in and catch certain types of fish. As I tion. understand the law, k’s either a perpetual taboo on one type of fish or the taboo on all fish for one month out of the year. ARASHIRO: Your suggestion is for me to withdraw my The point is that we are interested, or rather the committee amendment? was interested in seeing that the public eventually secured CHAIRMAN: Yes. all fishing rights so that they could fish from shore as well as out away from the present vested rights. ARASHIRO: I’ll do so. KAWAHARA: Do you mean then, that this section does PORTEUS: May I point out that the section of the Organic take care of people traveling adjacent to the waters, that is, Act, for those who are interested in looking it up, Section within the high-water mark? Does this section take care of 95, and the heading of that is —I’d like to call the attention people wanting to travel wkhin those areas other than in of the last speaker—is, “Repeal of laws conferring exclu private ponds? I’m interested in that particular phase of sive fishing rights.” This was the section that was designed fishing. JUNE 21, 1950 • Morning Session 631 RICHARDS: There is a legal point involved there, that KELLERMAN: I wanted to suggest an amendment which most of the land titles where they are not by metes and I think will cut out some unnecessary language. It doesn’t bounds, do go to high-water mark. Now, there is a definite change the sense of the paragraph. problem that was brought up in the committee by, I believe, CHAIRMAN: The vote was tied, so we’ll have to have it Delegate Nielsen as to the difficulties that are occurred by over again, so go ahead. fishermen on the Kona coast, namely that property rights going to high-water mark means they go over the edge of a KELLERMAN: My suggestion would be to insert after cliff and that therefore there is no way of going from one the word “by” in the second line, “or under the control particular beach to the next beach. We realized - - the com of,” and then delete in its entirety the third line and the mittee realized that that is a definite problem, but it does word “subdivisions.” It provides exactly the same without involve the condemnation of property rights which are al repeating the language. It would then read, “The legislative ready vested in the individual, and that is a matter that the power of the State shall extend to lands owned by or under legislature for the public good could proceed to condemn a the control of the State and its political subdivisions, except pathway along the front of somebody’s property to permit as otherwise provided in this Constitution, but such legis the fishermen to go along. lative power” and so forth. It’s a matter of just deleting a sentence because of repetition. KAWAHARA: In connection with what the chairman has just said, we have a situation there where every once in a HEEN: I would like to find out what is intended by this - - every so often the boundaries adjacent to the waters language. “The legislative power of the State shall extend suddenly change by volcano and so that it’s a very difficult to lands owned by the State.” Does that mean that the legis situation there. We don’t know where the private property lature may authorize the condemnation of land belonging to ends and where the public property begins. the State? CHAIRMAN: Mr. Chairman, can you tell us where you RICHARDS: In answer to that, unfortunately we have a got that? strange bit of law—I’m not a lawyer and the lawyers may correct me—but as I understand it, having owned beach HE EN: If the land is owned by the State, you don’t have property, there are two types of title to beach properties, to condemn it in order to get it again. one specifically by metes and bounds, and the other by RICHARDS: The main purpose of this particular section metes and bounds and then the added phrase “and thence to was to provide for the exercise and control by the legislature high-water mark.” Now, we have on this island a particular by general law except for the matter of transfer to or for the example down at—it used to be Pierpoint, and then it went use of the State or various political subdivisions or depart to various and sundry hotel names, I forget what the name of ments thereof. It is put in so as to restrict possible special the hotel is now, Niumalu, I believe—where there was a title land exchange deals or things of that nature which as we know oL that particular kind. The legislature has provided that in the past have definitely caused a considerable loss to the where there is that type of a title, the land owner may go Territory. before—I think it’s the land board, although I do not know the details —and claim accretion under that particular law. CHAIRMAN: Does that answer you, Delegate Heen? Now, if on the coast of Hawaii where they do have lava flows HEEN: I still don’t understand the language. there is a title involved, which is “and thence to high-water mark,” then the owner of the property could go ahead and ANTHONY: I’ve got a suggested amendment. In lieu of claim accretion, I imagine under the law. But where there Section 4, I would suggest the following: is not that type of title and where it is a metes and bounds The legislative power over the lands of the State shall title, anything beyond those metes and bounds automatically be exercised only by general law, except in respect of becomes public property. I’m no lawyer, so if I’m wrong transfers to or for the use of the State or a political I’d appreciate the attorneys correcting me, but that is my subdivision or a department or agency of either. understanding. I think that accomplishes what the committee wanted to CHAIRMAN: Have you had enough fish stories, and are accomplish and eliminates part of Judge Heen’s objection. you ready for the question? I make that in the form of a motion. HEEN: I am in favor of the adoption of Section 3 as it is ARASHIRO: I second that motion. written. I’m in favor of that because of Section 4 of Part 2. RICHARDS: If I could hear that again, I think it might CHAIRMAN: Question? Are you ready? All those in satisfy the committee. favor of Section 3 say “aye.” All those opposed. Carried. CHAIRMAN: Could you read it a little slower. APOLIONA: I now move for tentative adoption of Section ANTHONY: This is a little rough. DELEGATE: I second that motion. The legislative power over the lands of the State shall be exercised only by general law, except in respect of CHAIRMAN: Open for discussion. Shall I read it? transfers to or for the use of the State or a political sub The legislative power of the State shall extend to lands division or a department or agency of either. owned by the State and its political subdivisions, and to Now, you’ll note that that eliminates the first part of Section lands under the control of the State and its political sub 4. I think it accomplishes what the committee had in mind divisions, except as otherwise provided in this Constitu and dissipates some of Judge Heen’s doubts as to the section. tion, but such legislative powers shall be exercised only I’d be glad to have that typed out if the body would like to by general order, except in respect of transfers to or see it. for the use of the State or a political subdivision or a department or agency of either. CHAIRMAN: We have had a motion to amend and a second, but before we have that, could we have some more discussion Any questions? Are you ready? All those in favor of in case there is something else you want to go in. Section 4 say “aye.” All those opposed. Well, it’s - - is there somebody who wants to discuss that? Delegate RICHARDS: I think the committee would be prepared to Kellerman, did you want to talk about that? accept that particular amendment. 632 AGRICULTURE, CONSERVATION AND LAND KELLERMAN: I would like to withdraw my motion to public lands shall be used for the development of farm and amend in favor of this one. home ownership on as widespread a basis as possible, in HEEN: I move that action on this section be deferred, accordance with procedures and limitations to be establishec so that the amendment proposed by the delegate from the by law,” feeling that the legislature, taking into consideratic fourth district may be put into writing. the remainder of the committee report, would provide for this proper distribution of the lands in accordance with LEE: In seconding the motion, I’d like to call attention H.R. 49. to the person who suggested the amendment, the phrases ROBERTS: I have a question with regard to the language “except as otherwise provided in the Constitution.” How on lines three and four of Section 5. The last part of that would that be reflected? So that I second the motion to section reads, “in accordance with procedures and limitatior defer. to be established by law.” Are you mandating the legislaturE CHAIRMAN: You mean adding that to Delegate Anthony’s - - to provide limitations on the use and development of farm and home ownership? The legislature may want to place LEE: No, I still don’t understand this language, but re limitations or may want to have no limitations. Wouldn’t the ferring to the amendment, I call that to his attention. same thing be accomplished by using the words “in accord CHAIRMAN: I have to compliment the committee when ance with law” and put a period there, and delete the sub they stumped three lawyers on language. Delegate Anthony, sequent language, “the procedures and limitations to be would you have that printed? established by law”? “In accordance with law” would take care of whatever action the legislature may take dealing ANTHONY: It’s not the lawyers’ language that is being with procedures, limitations or anything else. Would that stumped here; it’s the committee’s language. be satisfactory with the committee? RICHARDS: May I state that the language was drawn CASTRO: I think the delegate is correct insofar as he by an attorney. has gone. The committee went that far and went a little CHAIRMAN: The motion before the house is to move further. If you read the first phrase, “The public lands that it await the language of Anthony. Are you all ready shall be used for the development of farm and home owner for the motion? All those in favor say “aye.” All those ship on as widespread a basis as possible,” if you put a opposed. I think the voice was loud, but always remember, period there—I’m trying to develop a thought — if you should the louder the voice the less the thought. put a period there that would be a wide and sweeping author ization to the point where it might even become dangerous, WOOLAWAY: I move that we adopt - - approve Section with all due respect to the legislature that has been eulogized 5 tentatively. by the delegate from the filth district—and to say “in accord DELEGATE: Second the motion. ance with law” might also leave a wide open door. It must be remembered that Section 5 is the section which CHAIRMAN: Open for discussion, Section 5. I’ll read takes the place of all of those various articles and phrases if, while you are thinking about it. and sentences that might have gone in here, in this committe SILVA: Point of order, first. The results of the vote proposal, indicating bow the public lands were to be used for was not even mentioned by the Chair. If there is any doubt development, and how many areas per annum, and how many in the Chair’s mind as to how loud the voice can be, then acres in a homestead, and how many acres in a farm lot, perhaps the Chair should call for a show of hands. et cetera, et cetera, those things which Section 73 of the Organic Act deals with. But in discussing this with Miss CHAIRMAN: I’m sorry, there was no question about the Lewis of the attorney general’s department, we came to the chairman’s idea; he felt the number of voices that were conclusion that, in the first place, it would be improper soft outweighed the number who were loud. material for the Constitution; mid in the second place, it SILVA: Then I ask for a show of hands. would be a patch upon a patch, that the land laws of the Territory today represent 50 years of patchwork and that a CHAIRMAN: All those in favor raise their right hands. new set of procedures and limitations must be set down by This is for deferment of Section 4 while Anthony is typing. the legislature of the State to take care of the loopholes that It’s almost unanimous, which seems to infer the correctness might exist, to look into the future development, to set up of the louder the talk, the less the thought. a schedule of distribution of the lands; else a careless but Section 5 is open for discussion. I’ll read Section 5: nevertheless sincere legislature could dispose of the lands “The public lands shall be used for the development of farm to the point where mortgage values might be affected, to the and home ownership on as widespread a basis as possible, point where people might be induced to buy and develop long in accordance with procedures and limitations to be establish before the land could be used because of lack of water source ed by law.” Any discussion? Are you ready for the question? et cetera. SERIZAWA: I would like to have the chairman of the com So this mandates, and the answer to the delegate’s ques mittee explain a lktle more in detail what Section 5 means. tion is yes, it does mandate, it mandates that procedures of To me it doesn’t seem very much. disposition and development be set up, and that limitations as regards possibly - - the limitations which they see fit, RICHARDS: As the committee report states, Section 5 is but the committee reports indicate that there would be limi the result of telescoping approximately six or eight pages tations as to areas and number, those limitations would be of an original amended proposal that the committee discussed. set up. In other words, a system would be established by Originally, the committee went into the point of discussing the legislature after due study, of which if is very capable, many of the restrictions and regulations contained in Section and then by general law the lands would be disposed of. 73 of the Organic Act. Now, as I recall it, there are about I might also say for the benefk of those who may not have five or six pages in the Revised Laws, 1945, that cover looked into this question during the time the committee was Section 73—k may even be longer—and the committee dis studying, that there were several proposals brought before cussed all of these points wondering whether or not certain the committee asking for the condemnation of private lands of the features might not be constitutional matter. It was along the lines that have been publicized to some great ex finally decided by a majority of the committee that matters tent, along the lines of the mortmain statute, that famous of that nature should be provided for by law; and, therefore, statute of Puerto Rico. The point was brought out very the committee came forth with this particular section, “The clearly, we thought, that this Constitutional Convention 633 JUNE 21, 1950 • Morning Session should not appoint itself a policeman of private lands for really conveys the thought of - - conveys those three thoughts. private use when there is public land available to the people. I was wondering if this would be better wording, “The public This Section 5 is the attempt to make available as soon and lands shall be used for homesteading, for the development on as equitable a basis as possible, the public lands that of farm - - farming and housing on as widespread a basis as would be available to people for farm and home use, but on possible.” a systematic basis; and I hope that that answers the question ASHFORD: The first part of the language used, up to of the delegate. “as possible,” is the language from H.R. 49. CHAIRMAN: Delegate Roberts, are you satisfied? Dele FONG: It may be according to the language of H. R. 49, gate Ashford. but I’m just wondering as to whether this is conveying the ROBERTS: Mr. Chairman. thought of this Convention, that we have in our minds that there are various types of homesteading; fee simple home CHAIRMAN: Delegate Roberts, If you don’t mind. steading, and homesteading on a tenant basis, that is, on ROBERTS: May I continue for a moment. This section a leasehold basis which many of our homesteaders are now as I read it deals only with the public lands. I’m not talking holding their land, like the Molokai homesteaders. I under now about private lands. When we say that the legislature stand that they have a 99-year title, a 99-year lease to their shall act in accordance with law, it seems to me that you land, and that there is no possibility by which they may ob leave it to the legislature to prescribe the conditions, the tain fee simple title to these lands. Now, if those are the procedures and limitations or the nature of the limitations situations which we are now facing, let us write it very they care to put on it. Suppose, under the present language, plainly so that we do intend to carry on the three types of the legislature says these are the limitations, but in actuality ownership, that is tenant ownership, farm ownership in they may be very meager limitations. Now, it seems to me fee simple, and home ownership in fee simple. that if the committee doesn’t indicate the nature of the limi BRYAN: I think the answer to that is, that same question tations, or how far they are to go, I would therefore move came up in committee. The word “ownership” was left in that the words, “with procedures and limitations to be es in this manner because it takes care of those who want their tablished by law,” be deleted and the words, “with law,” land in fee. The word “development,” the committee thought, be inserted. So that the language of the section would read, would take care of long leases for both homes and farms. “The public lands shall be used for the development of farm Also, I believe this is partly a mandate from H. R. 49 and and home ownership on as widespread a basis as possible, that was the third reason for leaving the language the way in accordance with law.” it was. DELEGATE: Second the motion. FONG: In reading this language, it gives me the idea that CHAIRMAN: You have heard the question. the only thing you are saying here is that you are trying to develop it for farm and home ownership only, and that the ASHFORD: Speaking not for the committee but for my question of homesteading is left out entirely. Now there is self, I gladly accept that amendment. There has not been a very big section of our community here that have home unanimity at all in the committee upon the method or whether stead lands which are not granted to them in fee simple. any restraint should be put in the Convention here in the Constitution which we write upon that widespread settlement CHAIRMAN: Is there any further discussion? Senator of farms and homes, and certainly some of the members of Heen. the committee are not in the least interested whether mort HEEN: Mr. Chairman. gage values fall or not. RICHARDS: Mr. Chairman. KING: I’d like to speak in favor of the amendment. I’ve read the committee report and am not in accordance with CHAIRMAN: Wait, just one moment. You want to answer the philosophy or the discussion of the committee report. it? It seems to me that what we need to do is to provide out of RICHARDS: I would like to answer the delegate from the the public domain all suitable lands for small farms, house fifth district that the - - lots, ranches, as rapidly as possible; all the lands that are eligible for subdivision and homesteading. That was the CHAIRMAN: You want to wait, Delegate Heen? Let spirit of Section 73 of the Organic Act and that should be the Delegate Heen, maybe he’ll answer the same thing. spirit of the State Constitution. I hope that the legislature, HEEN: Delegate Bryan said that there might be persons when it provides the laws to implement this section, will who would like to own their own homesites in fee simple. bear that principle in mind and not the discussion of the Now, was it intended that while a person may own his home committee report. site in fee simple, that there should be some limitations on that ownership? The language here as to limitations seem FONG: In reading the sentence here, “The public lands to indicate that some limitation must be prescribed by law or shall be used for the development of farm and home owner established by law even for homesites owned in fee simple, ship,” now that conveys a thought as to what the committee and I was wondering what that limitation might be. is trying to do. As I understand, we have now the question of homesteading, the question of having some of the home RICHARDS: I can answer that and that question falls in steads broken up into farms and fee simple farms, and line with the delegate from the fifth district’s question. The some of the homesteads broken up into fee simple lots. idea of the committee was to provide fee simple ownership Now, there are three questions there. One is a question of for home sites and homesteads. The limitation suggested •the fee simple title resting in the State with a 99—year lease, was the question as to possible size of the homesteads and or whatever number of years lease, in the tenant. There possible size of home sites, as to how much could one indi are some homesteads that are built upon that basis, and vidual acquire of the public lands. There is also a prohibi many of the tenants prefer to remain upon the land for prob tion in the Section 73 regarding corporations acquiring public ably 99 years, not wishing to have a fee simple title for fear land, and that is a point that I feel is definitely a matter of that they will be able to alienate it. There are other people policy that the committee—some members felt it should be who are asking for fee simple land from the public domain, handled in the Constitution, and others felt it should be left that is, fee simple land for farming and fee simple land for up to the legislature—and the committee decided that matters home ownership. I was just wondering whether this sentence of that nature should be handled by the legislature. It was 634 AGRICULTURE, CONSERVATION AND LAND not a question of limitation of ownership. It was quantitative the fee of it. If it's his intention to provide small farms and rather than qualitative as far as it was concerned by the homesites under lease, then there's additional language committee. Does that answer the question? needed in the proposed amendment to the amendment. CHAIRMAN: Any questions? DOI: I think all this discussion here can be handled sim:- ply and directly by amending the first line there by deleting FONG: Have you any objections to the words, "shall be the word "use" and inserting in lieu therefor "shall be sold used for the development of farm and home ownership and or leased for the development of farm and home ownership," homesteading on as widespread a basis"? That would in- et cetera. clude those people that we will encourage on the homestead- ing where title will not be given in fee simple, but the lease- BRYAN: I'd like to speak to that point. hold on the land will be for a very long period. FUKUSHIMA: I was wondering if the delegate from the RICHARDS: I don't think that there was any particular fourth district would acceut this amendment. Delete the discussion on that point within the committee, Mr. Fong. words ''home ownership" and substitute the words "home- The committee was mainly carrying out the mandate for a sites." That I believe will take care of ownership in fee and complete fee simple ownership. The proposal is in such a also leasehold. So that it will read, "The public lands shall manner that there would be no restriction on the legislature be used for the development of farm and homesites," et if they wished to provide for these long term lease home- cetera. steads. That was one reason why the language was so broad. CASTRO: In answer to that and the previous suggestions, Now, I would like to speak to one other point. The matter it would considerably weaken Section 5 to make a direct of using the words "procedures and limitations" is that the reference to leasing. The intent of the committee, I believe committee had pointed out to it the matter of what occurred - - Now Miss Ashford points that this might not have been a at Waiakea and what also happened to occur to the Hawaiian very unified committee, but I believe that on this point the Homes Commission on Molokai. It was mainly felt that this intent of the committee unanimously was that the public lands was a cautionary measure to the legislature to fully develop should be used on as widespread a basis as possible for own- the land prior to its being cut up. In other words, making ership. Now, the question that Delegate Fong raised about sure that the purchasers or the homesteaders taking over leasing, in my humble opinion, is covered in the phrase "as the public lands were not going to be placed in a position possible." Now, if the government cannot find a market for where they would economically suffer. a particular tract in fee, then it can certainly turn around CHAIRMAN: I have a very serious request here, if we and lease that land. It may be impossible to sell it in fee, could just hold your discussion for a moment. I want the possibly because of the demand for the market, or the lack engineering department to put out these top lights here, be- of demand, but that would be the only time where it would be cause some of the delegates complain that their eyesight is acceptable because it is the understanding of the committee, being impaired by the reflections from the bald heads. after speaking with several people who have been mentioned in the report, that the demand is for the ownership in fee FONG: I was wondering why I was so confused; now I can of the land, and that the demand for lease is, as far as see why. quantity goes, is incidental in number. I don't think that I'd like to make a motion that we add the words "and this section as it is worded excludes leasing. It merely homesteading" to the word "ownership. " points to the opening up in the fee. CHAIRMAN: Second to that? CHAIRMAN: Does that answer you, Fong? All right? RICHARDS: The members of the committee would, I think, be willing to accept that amendment. DELEGATE: Question. KING: I cannot understand "homesteading" to mean leas- CHAIRMAN: Question. ing. Delegate Fang's idea is that the word "homesteading" A. TRASK: The report of the committee-and in all due carries with it the implication of a lease. If we're going to respect to the committee, I think it's done a fine job and I have leased homesteads I would be in perfect sympathy with don't think our inquiry is any way derogatory of the wonder- his idea, but it should be "developed homesteads under ful work of the committee-Section 5 is without doubt lifted lease" or "leased lands for homesteading." from H. R. 49, and the words "farm and home ownership" -and I'm addressing myself immediately to the suggested FONG: Well, what do we call the Hoolehua homesteads? amendment offered by Delegate Fukushima who wants to KING: Well, that's under a special act of the Hawaiian strike out the words "home ownership" and put in "home- Homes Commission, but when we open up government lands sites" -the expression on page 13 of H. R. 49 as of March for general settlement, they file on it a patent - - a preference 8, 1950, among other things, "The lands patented to the right of purchase and they acquire a fee, and they are the State of Hawaii from Congress" -that's referring to the homesteaders. All of those who acquired the fee simple 180,000, among other provisions made for the proceeds- title to the land at Kalaheo, Kapaa, Waiakea, or Halekou are "shall be held for the development of farm and home owner- all homesteaders. ship on as widespread a basis as possible and for the making of public improvements." Now, I think telescoping is a good FONG: What about Kalawahine up there? word, but we must not, as I see, get the impression that KING: That's again under the Hawaiian Homes Commis- all the 180,000 acres which we may be speaking about-which sion. Those homesteaders do get a 99-year lease. are, as I understand, the most tillable and usable and best agriculturable land-is to be devoted perhaps solely to home CHAIRMAN: It seems to me the discussion is getting out- development when the proceeds and so forth are to "be held side of this question here. Are we? by such State as a public trust for the support of public KING: No, no, Delegate Fong has suggested an amend- schools and other public educational institutions, for the ment that we include the word "homesteader" - - "homestead- betterment of the conditions of native Hawaiians, as defined ing" with the implication that that will be leased land, and I'm in the Hawaiian Homes Commission Act as amended, and for trying to point out to him that the use of the word "homestead- the development" and so forth of farms and homes. ing" will not automatically mean the land under lease. The So, I wanted to direct the attention of the Convention to homesteader, under our practice here, is a man who takes the situation that this particular section, this particular up a piece of government land on a right of purchase and buys expression, taken out of the context and its applicability 635 JUNE 21, 1950 • Morning Session with respect to lands patented to the Territory from the U.S., as far as homestead is concerned, as far as I know, that must be given its proper place inasmuch as Part 2, Section seemed to mean 99-year leases. Now, I’m afraid that if 2 refers and makes these other provisions with respect to we exclude it that the emphasis will be too much on home support of public schools, et cetera, subject to legislative ownership, excluding those people who have leased the land provisions. for long-term basis, and there are quite a number of our Now, in one place you have a mandatory situation, name Hawaiian people who prefer to have their land leased to them ly as suggested in that same page 13 of the draft of March on a 99-year basis, rather than have the fee simple title. 8, 1950, of H. R. 49. You have in there that the “foregoing CASTRO: Mr. Chairman. purposes with respect to the lands be handled in such manner as the Constitution and later the laws of said State may pro SILVA: Mr. Chairman. vide.” Now, I certainly feel, and I think that’s the general CHAIRMAN: I think Silva did rise first, so give him a tenor of everyone here, to have farm and home ownership chance. made immediately and as soon as possible and to be on as SILVA: I was going to say - - widespread a basis as possible, but at the same time, from a constitutional sense, should or should not, if you treat MAU: I’ve been standing here for ten minutes. one section as a direct constitutional mandatory provision, CHAIRMAN: Oh, I’m sorry I missed you. I apologize should you not also consider Section 2 with respect to public school purposes, and the Hawaiian Homes Commission Act? to my neighbor. I’ll get to you after Silva, here, if I may. Give it the same tenor and the same mandatory provision SILVA: - - in reference to the 99-year lease, it should and action, I mean I submit that respectfully as considera have come off under the Hawaiian Homes Commission Act tion with respect to this Section 5 as relation in Section 2 from - - As far as I’m concerned, Section 5 as written by in Part 2. the committee is, in my opinion, very much in order, and RICHARDS: May I answer the delegate from the fifth I would like to move that the Chair put the question on district? That was the particular point involved in the Section 5. matter of including the phrase at the end of Section 5, “in CHAIRMAN: We have two more requests. Chuck Mau. accordance with procedures and limitations to be established by law.” That was a caution to the legislature to make sure MAU: Mr. Chairman, it took you a long time to see me. that the other provisions were taken care of and that, how CHAIRMAN: I’m sorry, apologetic. ever the legislature is mandated, that as the demand devel oped, it shall make certain that the lands will be available MAU: I hope it isn’t the reflection of light. for homes and farms in fee simple ownership. CHAIRMAN: I’m afraid it is. It made me not see you. I4ow, with regard to the matter of homesteading, I’m advised that the last legislature petitioned Congress to MAU: I’d like to ask the committee whether they looked abolish the 99-year lease homesteads. I was not a mem into the subject of leases for farmers, and what is the de ber of that legislature, so I do not know, but I’m informed mand in that regard? that. Therefore, It would tend to further the idea of the BRYAN: You speaking to the term of leases for farmers? committee, we would like to see, for the best interests for the State of Hawaii, home owners and farm owners. MAU: No, whether or not in your investigations, any facts were brought out that farmers were interested, not so much CHAIRMAN: Any further discussion? Are we ready? in owning fee simple land, but rather in leasing land for farm purposes. FONG: Does the question include long term leases to homesteaders? BRYAN: As it was stated before, we felt that this would not prevent that. However, we did want to point the way to BRYAN: This section, I think Delegate Castro pointed home and farm ownership if the people were so inclined. If out, was not intended to prevent that. We felt that the words they wanted It in fee, they should have it that way. However, “on as widespread basis as possible” and the word “develop if they prefer to lease we felt that this did not prevent it. ment” would cover that. CHAIRMAN: Does that answer you? CHAIRMAN: Are we ready for the question? MAU: I don’t believe that the language unamended takes FONG: I’m afraid if we do not say anything about it, it care of that proposition, because your statement here is will be construed as excluding it, so I’d like to make an “the ownership of farms and homes.” As I listened to part amendment after the word “ownership,” “and for long term of the debate, one of the speakers was of the opinion that leases to homesteaders.” the words “as possible” could be construed to mean that DELEGATE: Second. leases would be possible under this provision. CHAIRMAN: A motion has been made and seconded for BRYAN: I think the word “developing” also covers that. an amendment. Are you ready for it? CHAIRMAN: That would be possible, as I understand it. BRYAN: I’d like to speak against that amendment. I CASTRO: I am in complete sympathy with the thoughts think that by putting that in there, you weaken, as has been of Mr. Fong and Mr. Mau on this that we must make sure stated before, you weaken the word “ownership.” That that leaseholds are allowed. Now in view of the hour, I means that the lands could be made available primarily for would like to suggest that we defer action with the thought leasehold and not primarily for home ownership, and it was that we will get to this thing and settle it amongst ourselves. the intent of Congress and it was the intent of this committee to point strongly to home and farm ownership. A. TRASK: I second that motion. CHAIRMAN: Could I clarify my mind by asking Fong, CHAIRMAN: I had a feeling we were almost ready to settle it. why do you want homesteads in there? FONG: The reason is that our public lands are now being CASTRO: Rather than have the wishes of Mr. Fong, put into various uses, and one of the primary uses is the which I, as I say, I sympathize, I would not like to see this leasing of it on long-term basis. Now, that is one of the section passed to the exclusion of a leasehold provision. primary uses of our homestead - - of our public lands, and But I am of the opinion that if you put this amendment in, 636 AGRICULTURE, CONSERVATION AND LAND you weaken the intent of this particular section. Which is which ends with “in accordance with law.” If that fails, why - - then we can pass on the whole section. CHAIRMAN: Shimamura. ARASHIRO: I now move to the previous question. SHIMAMURA: The words “farm and home ownership,” DELEGATE; Second the motion. “ownership” includes leaseholds. When you own land, an CHAIRMAN: Second the motion. owner of land and ownership of land includes a leasee, an owner of land. FONG: I don’t agree with the previous speaker saying that the Territory should get out of the landlord business. CHAIRMAN: Does it include homesteads? There are quite a few of the people of the community that SHIMAMURA: Legally it does include leases. we have to protect; there are quite a number of people in CHAIRMAN: Does that answer - - this community that do not want to have their lands in fee simple. They want to be sure that they will be able to hang SHIMAMURA: That can be so construed by the courts. on to their lands. And if the land is given to them in fee HOLROYDE: I’d like to call attention to the delegates simple - - who have been questioning this Section 5 as to leases, et CHAIRMAN: The chairman drders this is out of order. cetera, the committee report went into quite some length You are discussing something that I don’t think has to do on that, and it seems the sentiment of Judge Shimamura on with the present question. the legality of the verbiage there was also substantiated in the committee report. FONG: I’m afraid that this is going down in history and many a time later on when the supreme court will CHAIRMAN: I think what’s been very evident here is that look at this to see whether the home ownership is going to many delegates don’t read the reports. The chairman would be included here, whether the leases ard going to be in gently suggest that we all read them. cluded here, they are going to look at some of the debates SAKAKIHARA: I would like to be enlightened as to the here. status of Section 5. As I recall, Dr. Roberts offered an RICHARDS: May I answer the delegate from the fifth amendment to Section 5 to read, “in accordance with law district’s question? If he will notice the first paragraph period. of Section 2, the last sentence, it says, “and such powers CHAIRMAN: I don’t remember whether that was seconded. of disposition thereof as may be authorized by law.” And Was it? then if he will look at the bottom of page 9 of the committee SAKAKIHARA: Yes, it was seconded. report, “You will also note that provision is made for the sale or leasing of these assets as may be provided by law.” CHAIRMAN: O.K., then that’s the amendment, and sec I think the committee report covers that particular phase. onded. Ready for the question? CHAIRMAN: Are you ready for the question? SAKAKIHARA: Is that the amendment? FONG: I don’t want that statement to go unanswered, CHAIRMAN: That was the only amendment we have that this Convention is not in full accord with his statement, before the house that - - that the Territory of Hawaii, or the State of Hawaii should SAKAKIHARA: Then I ask for a previous question. go out of the landlord business. I for one feel that the Territory should remain as superlord over some of these DELEGATE: Point of order. lands, so some of these lands would not be alienated. CHAIRMAN: Go ahead. CHAIRMAN: I felt that was a private discussion that DELEGATE: There is a motion to defer, which has been didn’t have to do with this. seconded. That is what is before the house. FONG: I feel as of the moment - - CHAIRMAN: Was it seconded? DELEGATE: Mr. Chairman. DELEGATE: That’s correct. FONG: I still have the floor. CHAIRMAN: All right; question is to defer. Are you ready for the question? All those in favor say “aye.” All CHAIRMAN: AU right, I’m sorry, Fong, go ahead. those opposed. It was lost. FONG: Since our learned friend, Mr. Shimamura here, NIELSEN: I think that this Section 5, the quickest way stated that the word “ownership” includes “tenant,” and I to explain it is to take the Territory out of the category of think that he is correct, I’ll withdraw my motion with the being a landlord; in other words, let’s get the Territory understanding that that includes leasing of land. itself out of being a landlord, and in the rental and leasing PORTEUS: Mr. Chairman, may I be recognized? of lands, and then maybe we can attack the situations re garding the largest estates that are holding up land from CHAIRMAN: Go ahead. homesteads and for small farms and so forth. That will PORTEUS: It seems to me that the discussion has not probably occur in another 20 years, but the main thing is been completed and others want to talk. It’s now half past to get - - Now, in order not to just have the first legislature ten and so I now move that this committee rise, report that looks over this Section 5 proceed to just dump all the progress and ask leave to sit again. land that the Territory owns on the market and therefore in that way depreciate realty values, that is the reason for SAKAKIHARA: I second the motion. adding “in accordance with procedures and limitations.” CHAIRMAN: A motion - - I think the whole section is solid, sound and something that MAU: Point of personal privilege. It will just take a we should consider as a move in the right direction. Puerto moment. The other day when I asked a question on the Rico has passed a land law where the people have to sell hearing - - on the homestead - - Hawaiian Homes Act the land, private land. Now let’s get towards that, by say ing the Territory must get out of being a landlord. provision, I wanted to find out whether the committee had considered the public lands and the possibility of putting CHAIRMAN: All right, have we heard enough discussion? those lands into the market. I was cailed out of order by We have two questions; one, the first one is an amendment the President that day, but tonight I’m very happy to hear 637 June 22, 1950 • Morning Session him say that these lands ought to be put out for farm and ownership. I would hate to have that interpreted as the home ownership, and I appreciate that very much. sole use to which our public lands could be put. Is that understood? CHAIRMAN: Are you ready for the question? CHAIRMAN: I think Delegate Shimamura can answer KING: Also a point of personal privilege. The President that. That’s correct. has forgotten why he called him out of order, but if the President called him out of order, he evidently was out of HEEN: AIter listening to the discussion and conferring order. Nevertheless, the President as an individual dele with the chairman of the Committee on Agriculture, I don’t gate is very completely sold on the idea that the public do think that this section is exclusive, that it limits the dispo main should be homesteaded in fee simple. I’m in full sition of public lands only for farm and home ownership. In sympathy with the sentiments expressed by the delegate Section 2 is the provision that, “The legislature shall com from the second district of Hawaii, and Hawaii as a - - mit . . . such powers of disposition thereof “—that is refer ring to natural resources, which includes land—”as may be CHAIRMAN: All apologies accepted and recorded. authorized by law.” In other words, they then can, as I Are you ready for the question? All those in favor of - - understand it, can dispose of or lease other lands to those is it adjournment or deferment? who may want to take leases instead of tnking fee simple SAKAKIHARA: Rise, report progress, ask to sit again. title. CHAIRMAN: All those in favor say “aye.” All those SILVA: I personally believe that we’ve had enough dis opposed. The noes lost. cussion on this Section 5; we spent all night last night, now we’re starting all over again. Most of us, I believe, are under the opinion that as written, Section 5 seems to suit JUNE 22, 1950 • Morning Session the purpose which it was intended for. I now move the previous question. CHAIRMAN: Meeting come to order. That’s better. Is the chairman of the committee ready? We were discussing A. TRASK: I think the inquiry made by Delegate Tavares - - Is Mr. Anthony here? needs a full answer. The situation is this. This language in Section 4 is secured from H. R. 49. Now, it has specific VOICE: No. reference to the 180, 000 acres, and those 180, 000 acres, CHAIRMAN: Not here yet. Shall we continue on Section patents to be issued and income therefrom have four distinct 5? Let me read Section 5, so we’ll get our minds back on public purposes. That’s the answer to Delegate Tavares. the ball here. As it stands, “The public lands shall be used In other words, support of schools; betterment of native for the development of farm and home ownership on as Hawaiians, defined in the Hawaiian Homes Commission widespread a basis as possible, in accordance with proce Act; development of home ownership and the making of dures and limitations to be established by law.” public improvement. So I have - - ARASHIRO: Isn’t the pending motion to read as follows, CHAIRMAN: Such as an air field, would you assume? “in accordance with law”? A. TRASK: Pardon? CHAIRMAN: Well, that was one of the amendments. Is CHAIRMAN: There would be no inhibition to developing Dr. Roberts here? Was that amendment still in good stand an air field in that - - ing? ROBERTS: When we adjourned yesterday, to report on A. TRASK: No, no; that’s the situation and it has parti the Committee of the Whole, that proposal was still pending. cular reference to this section of H. R. 49. So, to obviate I assume when we go back into the Committee of the Whole at the same time the matter raised by Delegate Fong last that that proposal and the amendments are still on the table. night, I move for this amendment, that in Section 5, after the word - - the third word, namely, “the public lands, CHAIRMAN: Were there any other suggestions on that, insert, amend “patented to the State of Hawaii.” Now that or discussions? The way it would read would be as follows, language is taken from H.R. 49, Section 4, paragraph D. “on as widespread a basis as possible, in accordance with law,” leaving out, “with procedures and limitations to be CHAIRMAN: Would you mind telling us what would that established by law.” But as I remember it, the chairman accomplish? and I think Mr. Castro gave certain reasons why they felt A. TRASK: That would have specific reference - - “procedures and limitations” should be included. Do you want to just repeat that? Was that Mr. Castro? CHAIRMAN: We have one amendment before the house; so before yours is seconded, I think we ought to pass on the CASTRO: Yes. first one. HEEN: I think it should be left the way it is. AIter the debate and full discussion upon the subject, I believe this TAVARES: I wanted to say that the explanation has is the proper language to be used here. I was a little con satisfied me. fused at first. I thought that the word “limitation” was to CHAIRMAN: You want? be considered as limitations in the way of restrictions, and TAVARES: I’m satisfied with the explanation. I don’t think it means that. I think it means just as was ex plained last night, I think by Delegate Crossley. You may CHAIRMAN: 0. K. One lawyer down, about three to go or someone else—you may want to limit the area to be sold now. or set aside for farming purposes. So I think this language A. TRASK: There’s no other on the field. is - - CHAIRMAN: Leave as is. Any other discussion? ASHFORD: I think if the gentleman would look at Part 2, Section 2, his feelings may be a little relieved. TAVARES: As one who was not here last night, for which I apologize, I would just like to see if I’m correct in A. TRASK: Yes, I understand they are in there; but I understanding that this section does not mean that the public think the consideration of that should have reference to the lands cannot be used under proper legal authorization for specific items in H.R. 49. AndI do move this amendment, some other purposes than development of farm and home “public lands patented to the State of Hawaii.” 638 AGRICULTURE, CONSERVATION AND LAND CHAIRMAN: Would you mind waiting till we clear up this This one brings out the word “land,” whereas before I first amendment? We have one on the table. Delegate King, think H spoke of resources. did you want to say something? Now, the second paragraph reads: KING: In my opinion the language as is is quite all right. Resources which by authority of the legislature are It simply reaffirms the general policy that the Territory has owned by or under control of a political subdivision, or been carrying out under Section 73 of the Organic Act of a department or agency thereof, are not covered by this opening up certain areas of government land sukable for section. farming, ranching or for house lots, for sale, right of pur chase lease or special sales agreement. We’ve been doing There’s no change so far as that paragraph is concerned. it for 50 years; we’ve done it for about 10, 000 applicants CROSSLEY: So we don’t hold up work, how about defer to the extent of 116, 000 acres. Out of the remaining public ring this section until the end, go on with other sections, domain there are suitable areas for homesteading, for and get this typed up and printed in the meantime. So moved, cutting up into house lots, and this simply directs that the legislature shall continue that policy on as broad a basis as DELEGATE: Second it. possible. CHAIRMAN: All those in favor of deferring this section CHAIRMAN: Do you feel that the amendment by Mr. for a short time say “aye.” All opposed. Carried. Trask is necessary? Then we are on Section 4, I think. KING: I feel it’s unnecessary. I’m not out of sympathy FUKUSHIMA: I move that we adopt tentatively Section 4. with it. The delegate wishes to tie it down with little more APOLIONA: I second the motion. explicit language. But it seems to me, there’s no contest or conflict between this language and the language that’s CASTRO: Before he left last night, Mr. Anthony dic put into Part 2, Section 2. tated an amendment to the section. Now k’s my understand ing that this amendment, as I recall, this amendment was SAKAKIHARA: I move to second the previous question. read and seemed to have general approval, but the - - CHAIRMAN: That’s twice now. Hawaii is getting restless, CHAIRMAN: There’s a new one on the table this morning. so we better move before they get nervous. The motion be fore the house is an amendment by Dr. Roberts, which is as CASTRO: That is correct, and the section was deferred follows: “in accordance with law” in the last line. Are you to give Mr. Anthony a chance to make a final draft. So, in ready for the question? All those in favor of this amendment his absence, I would like to move now that the amendment say “aye.” All those opposed. The noes have it. which has been distributed, offered by Mr. Anthony, be adopted. ARASHIRO: I move for the adoption of Section 5. HAYES: I second that motion. CHAIRMAN: We have a motion that hasn’t been - - an amendment that hasn’t been seconded, by Mr. Trask. Do CHAIRMAN: May I read the amendment, so we are sure you want to withdraw? No second to it; we’ll go to the we know what we’re - - question. Are you ready for the question? All those in fa CASTRO: Yes, please. vor of Section 5 as it stands say “aye.” All those opposed. It’s carried. RICHARDS: If there is no objection on the part of any Do you want to go back to Section 4? We have two sections member of the committee, I think the commktee can accept here. We have Section 2 that wasn’t straightened out last this wording as a proposal rather than voting on H, if there’s night. no member of the commktee that has any particular objec tion to this. HEEN: I was just going to inquire what disposition was made of Section 2. I believe that action on that was deferred. CHAIRMAN: We would still have to vote on the section. RICHARDS: I’m saving voting on the amendment. CHAIRMAN: Section 2 was deferred, as I remember. We are to discuss that now, I think. KING: As a point of order, it would be simpler to just vote for the amendment to replace the language of the com HEEN: All right, Mr. Chairman. mittee report. WOOLAWAY: In order to expedite matters, I move that CHAIRMAN: I’ll read the amendment. we consider Section 2, bring it up this time for tentative approval. The legislative power over the lands of the State and its political subdivisions shall be exercised only by gener DELEGATE: Second that motion. al laws, except in respect to transfers to the State, a CHAIRMAN: Now open for discussion. political subdivision thereof, or any department or agency of government. HEEN: I have before me the first paragraph of Section 2, which has been rewritten by Miss Lewis of the attorney MAU: I move that Section 4 be adopted tentatively as general’s office. I think this will clarify~ the situation. amended. May I read H then? No, it hasn’t been printed yet. CHAIRMAN: Second to that? CHAIRMAN: Do you want to read it, and then have H CROSSLEY: Second the motion. printed? CHAIRMAN: You have heard the question. Is there any HEEN: discussion? The legislature shall commit to one or more executive CROSSLEY: Point of order. I think you first have to boards or commissions full powers for the management vote on the amendment itself and then vote on the adoption of all natural resources owned or controlled by the of the section. State, and such powers of disposition thereof as may be authorized by law; providing that lands set aside for a CHAIRMAN: We’ll assume that there was such a motion public use, other than for a reserve for conservation made. Are you ready for the amendment? purposes, need not be committed to the jurisdiction of HEEN: May I rise for information? What is the amend such a board or commission. ment, please? 639 June 22, 1950 • Morning Session CHAIRMAN: What? natatorium, which was formerly managed by public works, but is more suitable a county park. HEEN: The amendment. CHAIRMAN: Is that clear? Are we ready for the ques CHAIRMAN: You want me to read it again? tion? REEN: Or is this the one - - FONG: I’m still confused as to what this section proposes CHAIRMAN: This is the one I just read. to do. ASHFORD: I rise to a point of information. Is it the CHAIRMAN: Can Miss Lewis tell us that? opinion of those who are endorsing this amendment that SAKAKIHARA: It’s only fair that the introducer of this that would cover the iands which it is provided that the amendment, who is now here, be given the opportunity to University of Hawaii shall own? explain. CHAIRMAN: Would you answer that, Mr. Chairman. CHAIRMAN: Mr. Anthony, could you rise to defend - - RICHARDS: That matter was taken up with Miss Lewis SAKAKIHARA: I think he’s about the only man who under of the attorney general’s department last night, and it was stands this. felt that there was no conflict. FONG: I think that the thought is the thought of the com CHAIRMAN: Are you ready for the question? mittee, and not the thought of Delegate Anthony. I was wondering what the committee is trying to do here? H. RICE: I don’t quite understand this amendment, that “The legislative power over the lands of the State and its CHAIRMAN: Point well taken. political subdivisions shall be exercised only by general NIELSEN: In the fourth line, “laws, except in respect laws except in respect to transfer to the State.” What does to transfers to the State, If it is between the State, political the legislature have to do with lands transferred to the subdivisions thereof, or any department or agency,” would State? I don’t understand that. Maybe some of the lawyers that be more clear? I wonder if we could get something from can explain it to me, but to me that doesn’t make sense. Miss Lewis on that. ASHFORD: I disavow the baby, but I think I know the CHAIRMAN: Perhaps Mr. Anthony, who wrote this out, purpose. I think it was so that there could be exchanges might clahfy it. Could you? between the various subdivisions or the taking over of lands NIELSEN: Because I think this is made to work both ways, of subdivisions, and the interchange between various - - the not only to the State, but from the State to the political sub State and its various subsidiaries, of lands other than by divisions and departments. general law. SILVA: I’d like to make a correction. I don’t think the CHAIRMAN: But do I assume that even to you it’s not statement made by the Chair is correct or by Mr. Fong is clear? correct. The amendment was introduced by Mr. Anthony, HEEN: Could not there be a general law relating to ex a delegate to this Convention; it has nothing to do with the changes between the State and private individuals? Or be committee. The committee has in its report - - the commit tween the State and political subdivisions? You can still tee’s interpretation of the language in Section 4 is written have a general law to cover those acts. in their report and in Section 4. CHAIRMAN: Are, you satisfied with the wording as is? CHAIRMAN: That’s right, but the committee has accepted this amendment. HEEN: No, I’m not altogether satisfied. CROSSLEY: I move five minutes recess to enable Mr. SILVA: You have in Mr. Heen’s opinion, an authority on Anthony and Miss Lewis to get together and speak on the Territory laws in the audience here, Miss Ashford, I mean amendment. Rhoda Lewis. Maybe she could clarify that question for us here. CHAIRMAN: We’ll make it four minutes; it’s too early to have five. CHAIRMAN: Does the delegate wish to hear from the authority on this? All those in favor say “aye.” Miss Lewis, (RECESS) could you clarify? Would you kindly step up? I think when lawyers work all night, and they come in the morning, and they still can’t understand it, how can we ANTHONY: Is the amendment to Section 4, first para possibly understand it. graph, before the committee at this time? MAU: While we are waiting for Miss Lewis to get to CHAIRMAN: Correct. a mike, I’d like to speak on a point of personal privilege. I want to say for myself that you have been one of the best ANTHONY: I would move that the amendment which was chairmen yet. Last night when tempers were running high, offered by myself last night, the fourth line, read as follows— your-- I’ll read the entire line—”Respect of transfers to,” then in sert “or for the use of the State, a political - -“ In other CHAIRMAN: I blush very easily, so please don’t continue words, the words “or for the use of” are inserted after the word “to.” Then the entire section would read as follows - - MISS LEWIS: Well, the section I would construe as re the entire paragraph would read as follows: “The legislative ferring to a special law which made a transfer of land that power over the lands of the State and its political subdivisions was owned either by the State or a political division, and shall be exercised only by general laws, except in respect was transferred to any government body, for instance, of transfers to or for the use of the State, a political sub from the county to the State. That is, if the State took over division thereof, or any department or agency of government.” tubercular institutions as had happened in the past, it could Now that would simply accomplish this. It would permit transfer from the county the title to those particular insti the transfer of land only by general laws, and it would have tutions and transfer to the State at the time it took over the the saving clause that there would be an exception in the management of them. Similarly, it could pass a special case of governmental agencies, the State or any political law transferring to a county lands such as the Waikiki subdivision; and it would work both ways — either to the 640 AGRICULTURE, CONSERVATION AND LAND agency or from the agency, or to the political subdivision or its use - - for general use by other political subdivisions from it. of the State. For the type of lands that under executive I offer that as an amendment. order are given directly to the university without any con MIZUHA: I would like to ask the author of the amendment ditions attached thereto, in the event the legislature desires a question. Would he consider the lands of the State and its to take back those lands for use by other political subdivi political subdivisions, any lands held by the university fee sions of the State or for the State itself, then remuneration simple title as being lands of the State and its political sub must be made to the university on the appraised value, so division under the education article? to speak, of those lands. Is that my understanding, is that? DELEGATE: Mr. Chairman, first I’ll second the amend TAVARES: I will go as far as to say that the regents’ ment. consent would have to be given. I don’t know necessarily if remuneration would have to be given. I think that would CHAIRMAN: Mr. Anthony, do you want to answer that? probably amount to the same thing because I can’t imagine ANTHONY: They are lands of the State in this sense. the regents, after they become autonomous, giving up any The delegate will recall that we adopted a proposition whereby thing without some quid pro quo. the university should have title, upon trust, nevertheless. MIZUHA: Then it is my understanding that, according In other words, the beneficial owners of the university lands to the educational article as written with reference to the are the people. So in that sense it is lands of the State, but university and with this section as proposed, that the legis strictly the legal title would be in the university. Does that lature may have to pay $he university for certain types of answer your question? lands; and for other type of lands in which we have made MIZUHA: 0. K. I have another question. [Part of speech certain reservations or conditions in the deed or the patent, not on tape.] . . . this section, to take away certain lands or whatever it is, that on those lands the legislature need from the university, to transfer into another political sub not pay the university. If that is clear for the record, I division of the State, let us say the City and County, would would like to have the record so state; when the committee the university receive remuneration for those lands? rises and reports, that the committee report so state so that there will be no confusion with reference to land that ANTHONY: No, that wouldn’t be necessary. The way I may be turned over to the university when we become a see that this would work out as to university lands, before this Constitution goes into effect, the chief executive would state. make up a complete review of his executive orders setting SHIMAMURA: I didn’t rise for this purpose in the first apart lands, not only for the university, but to other agencies instance, but I think one statement of one of the previous of the government. Now as to those lands which the univer speakers should be cleared up, that is as to the possibility sity wants to have title to in order that it may encumber them, of reverter. Just because there is a possibility of reverter they would stand in one kind of an executive order. As to does not make the land necessarily less than a fee. other lands, strings could be put on those lands so that they I think this is a very good amendment. However, the wouldn’t have the full title, they would be subject to a Section 4, Section 4 rather, as originally drafted, was in reverted condition. I thInk what is troubling the last speaker respect to lands owned by the State or any of its political can be adequately met by a review of executive orders at the subdivisions, as the language shows. Now as I say, the time the - - just immediately prior to the effective date of amendment is a good one, but by abbreviating it I think we’ve the Constitution. left it with possible construction that “lands of the State” would be construable as meaning all lands in the State. TAVARES: May I try to answer that further, Mr. Chair Therefore, to take care of the original intent of this section man? As I interpret what we’ve done for the university, and the proposal and proponents of this section, I think to the result it seems to me would be this. If the legislature clarify it, it should be amended by inserting in the first wants to provide for a special transfer of lands that are line after the word, “over the,” the word “public”; so that unconditionally owned by the university, to which the univer it shall read in part, “The legislative power over the public sity has title after this Constitution goes into effect, the lands of the State.” I so move it. legislature can make a special law to that effect. However, since the regents, being a sell-governing body or autonomous CHAIRMAN: Wait a minute. Mr. Anthony, do you want body to that extent, have title to their lands, the legislature to accept that as part of your amendment? would have to provide for the consent of the regents to that TAVARES: The word “public lands” has a very technical transfer. In other words, it might be an exchange authorized definition in the Organic Act. I feel afraid to put that in. It by law, under which,, for one piece of land given to the univer doesn’t even cover all the lands owned by the State. I’d be sity, if the regents transfer another piece of land, the Terri very much afraid of putting that word, “public” in. tory or the State would give them another piece. As I under HEEN: I think the delegate will recall that when we dealt stand it, the autonomy given to the regents would prevent the with the lands controlled by the University of Hawaii, it was legislature from, without their consent, taking away a to have title to those lands for public purposes, for the pur piece of land, but it would permit a special law authorizing poses of the university and with the power to administer thosE a transfer of land from the university to the State, or from lands. I take the word “administer” to mean to manage and the State to the university, or an exchange. That’s the way control, and it does not include the power of disposition by I interpret this. fair sale or exchange. When that is in the Constitution, the MIZUHA: The reason why I’m raising the question is legislature will not be able to enact a law authorizing an ex because we have to have the record clear here in our adoption change or sale of those lands. I have in mind that a time of this section or it will result in continued litigation between may come when some of the university lands may not be the political subdivision of this State, including the university. needed for the purposes of the university, and they might As I understand it now, there are two types of lands that want to exchange that for other lands, lands belonging to the university would receive under executive order. One private individuals. It seems to me that some consideration which will not contain any conditions of reverter. They will should be given to that aspect of the disposition of lands that own it entirely in fee simple which they can encumber for might - - that come into the possession and control of the purposes of securing federal loans or other types of loans. university solely for the purpose of administration. And there will be other types of land in which there will be CHAIRMAN: Do you want to make an amendment, Sena conditions of revertal, that the Territory may reclaim for tor Heen? 641 June 22, 1950 • Morning Session HEEN: This is not the place for the amendment; it should FONG: If that is the intent, why should we couch in be the other place. language like this? “The legislative power over the lands of the State and fts political subdivision shall be exercised A. TRASK: Point of information. May the chairman of by general laws.” Why don’t we say, that if you alienate the Education Committee read the provision with respect to land, you should have a general law? But even then, I’m the title of land having been vested in the University of afraid that you run up against obstacles. Now, I have in Hawaii for - - to be held in trust. Now there were several mind, for example, the exchange of land by the Terrftory amendments made by Delegate Anthony and Delegate Heen. with a private individual in a manner of condemnation. Do Some were passed and some were not passed, and I’m a bit you say that if the law was passed, that the public lands concerned about which one it is. May the Secretary, if that commissioner could exchange private lands - - exchange is available, read that, because it is my view that this government lands with private individuals if the government matter is probably in conflict with the other provision. wishes the land for public use, and there were fair consid CHAIRMAN: Couldyoureadthat? Tavares, do you eration? Would you call that a general law, or would you happen to know what that is? call that a special law? TAVARES: No, Mr. Chairman. RICHARDS: As I understand ft, ft could be a general law. It could be done in the way of a general law. CHAIRMAN: The one of the Education Committee that has to do with land? FONG: Then what do you accomplish here when, if you call that kind of a law a general law, when the legislature TAVARES: No. could say to the land commissioner, “You exercise your A. TRASK: I have a section here, but I’m not certain discretion in the matter, and if you feel that we are getting that it is it. It reads as follows: Section 5, as amended. fair consideration, you can alienate the land.” Will that be “The University of Hawaii is hereby constituted a body general law or special law? corporate, and shall have title to all of the real and personal property now or hereafter set aside or conveyed to it, which RICHARDS: I feel that - - you see, this general law is to shall be held in public trust for its purposes and adminis - govern the commission or boards that handle the land. Now, tered in accordance with law.” Now if that is the provision - - if the legislature should pass the general law, as I believe is now in Section ?3, that the commissioner of public lands ANTHONY: That is the provision, and I don’t see any may exchange lands up to a value not exceeding $5,000, I conflict between that provision and the one we’re debating believe, or $10,000, or whatever the legislature wishes to here. put in, ft still will permit exchanges. But that would be a general law. At least, that was my understanding. FONG: I have no fear about the transfer of land between our political subdivisions because the primary purpose in FONG: That would be a general law, as far as you under this provision here is to prevent the alienation of lands to standing is concerned? private individuals. Now, as far as political subdivision RICHARDS: Yes. is concerned, whether It’s the university or the county, or the Territory, it still is for the public use. And as far as FONG: Then under those circumstances then, this sec the public is concerned, the public still is getting its consid tion is meaningless to the extent that the legislature - - you eration for ft. What puzzles me about this amendment here are trying to prevent the legislature from doing the very thing and this section here is, what is the purpose for which this which you say it could do by general law, that is, exchange provision is put in? As I construe the - - as I look over it wfth private individuals, the government lands. You feel the report of the committee, ft is for the purpose of prevent the section here is put in only for the purpose to deter the ing the alienation of the lands of the Territory to private public officials from exchanging land. If you say that that individuals without proper consideration. Isn’t that, Mr. could be embodied in a general law, giving to the public Chairman, correct? commissioner - - land commissioner the right to exchange land, then you haven’t got anything here. That’s the way CHAIRMAN: Richards, is that correct? I’ve concluded. RICHARDS: I didn’t get the full question. TAVARES: I don’t think that doesn’t mean anything. I CHAIRMAN: Is the real purpose of this section to pre don’t think the section of the Organic Act today that provides - - that limits exchanges to certain areas and values is vent alienation of lands into private hands? meaningless. It’s been very meaningful. It has stopped many RICHARDS: Yes, ft was; that was part of the purpose. a large exchange; and when we wanted to make specially - - It was to prevent transfers by special law, I mean exchanges exchanges larger, as we did for the Rib flood sufferers, by special law which would work to the disadvantage of the we had to get a special act of Congress to do ft. I don’t State. think ft’s meaningless. I think ft means this. Even private exchanges can be the subject of grave abuse, if a special FONG: Following that thought, I think this section and individual goes into the legislature and tries to get a special this amendment does not carry out that intent. The intent law to exchange a special piece of land for his special piece. here, which the commfttee is trying to convey to us, is Therefore ft seems proper, under safeguard laid down by a that the Territory or the polftical subdivision has certain general act of the legislature, to authorize the commissioner lands; therefore, they should not transfer ft to other people of public lands or some other department of government to by special law. Is that right? mnke the exchange under those conditions. That does not RICHARDS: I didn’t qufte get the meaning of that ques prevent the legislature from passing special laws as it tion. does today saying that the commissioner of public lands or some other public officer is authorized to acquire by con FONG: What I’m trying to say is this. That in the first demnation, exchange, purchase or otherwise, a certain Instance, the Terrftory has certain lands; then you are piece of land. Then the general law about disposing of trying to prevent the Terrftory from alienating these lands government lands in exchange would apply to the exchange. by special laws or by private exchanges. Now isn’t that But ft wouldn’t be a special law saying we are going to give the intent? this piece of public land for that piece of private land, RICHARDS: That is part of the intent, yes. which is what we want to avoid. And I think in that case, 642 AGRICULTURE, CONSERVATION AND LAND you have full effect to the provision about a general law, vision the exchange would have to be done by - - under a because you have a general law authorizing exchanges in general law previously made by the legislature, applying to general under certain conditions and then your officers all exchanges. follow that general law in making the exchange. FONG: And what would this general law be? CHAIRMAN: And you feel this section accomplishes that? TAVARES: Similar to Section 73 L of the Organic Act TAVARES: I do. which says - - which authorizes exchanges not exceeding $5, 000 in value, or 40 acres in area. Similar general FONG: Following that, Mr. Tavares, if the Territory laws could be passed by the legislature, laying down other of Hawaii desires to condemn a certain piece of property, restrictions for exchanges. and the land commissioner says - - desires to attain certain piece of property, and the land commissioner says that we FONG: But if you have such a law, why, then this is . could exchange land from Punchbowl for this piece of land, [inaudible]. will that be prohibited by this provision in the Constkution? ANTHONY: I think this debate is getting a little bk out TAVARES: It would not be prohibited if there is a general of hand. The general law that we are talking about, the law on the books authorizing an exchange, and if the legis kind of general law, is a statute such as this. “No sale of lature has not - - otherwise, if that particular land to be land,” and I’m reading from Section 73 L of the Organic Act, exchanged has not been set aside. As I see it, there is “No sale of lands for other than homestead purposes, except nothing to prevent the legislature from saying land in a as herein provided and no exchange by which the Terrkory certain area shall not be disposed of by exchange. That shall convey lands exceeding either 40 acres in area, or would not be a disposkion. It would be holding out from $5, 000 in value shall be made,” period. Now that is a disposition. general law. That will prevent any large exchanges, either large in area or large in value. Now, if they want to change FONG: You call that a general law, or you call it a those limits, the legislature could do it, but H still would special law? have to be a general law. TAVARES: That I think would not come within the mean FONG: As far as this amendment is concerned, the ing of this prohibkion against dispositions except by general exception in respect of transfers to or for the use of the law because that is setting aside to the State. State, now that exception need not be in this amendment, due FONG: Yes, but you are alienating government lands. to the fact that as far as transfers between political subdi visions, there is no - - we need not worry because H is for TAVARES: No, because as long as it’s set aside - - Let benefk of the public. And under those circumstances, why me explain, perhaps I haven’t made myself clear, that a law should the legislature be circumscribed in their powers? passed by the legislature, for instance, saying that the Punchbowl lands shall never be disposed of or exchanged TAVARES: I don’t think the question is well taken is not a disposition. It’s a retaining of natural resources; because this provision specifically authorizes the State - - it’s a retaining in the State; k’s not a disposition of the the legislature to provide by special law for transfers land. between polkical subdivisions. That’s exactly what this provision does do. Insofar, however, as providing for FONG: Now what I’m saying is this, that we have a piece acquiskion of lands not owned by the State and transferred of land and we must alienate that piece of land before we get to the State, that is covered by the general power of eminent another piece of land, which you are constantly doing, you domain, anyway. are exchanging one piece of property for another piece of property. Now will this provision prohibk that kind of ex MAU: I think the subject is getting so confusing that H change? might be wise to have the Convention appoint several of the individuals who feel that they can clarify this to work this ANTHONY: Will the speaker yield for a statement for problem out together wkh the committee. Involved also in just a moment? this proposal from this morning’s discussion, is another We have on the statute books, under the Organic Act, a confusion resulting from the article on education giving the statute which provides that there may be sales and exchanges, fee simple title to the universky regents. If the delegates this is the general law of public lands of the Territory, which feel that there is any way, after once they provide for the do not exceed the sum of $5, 000 nor 40 acres. Now wkhin fee simple title to the regents, that those lands can be that general provision, day after day, month after month, disposed of as easily and as plausibly as has been said this the land office engages in investigating and executing ex morning, they are mistaken, because once that title is in changes. Naturally they’re done with individuals, but that the regents, they don’t have to consent and those lands will is a general law; H has the framework whereby the Terri remain with the universky forever and ever, unless you tory can make exchanges. The valuations are passed on by change H by Constkutional Convention again. the land board, and if they are fair and just, they are accomplished. That is the present section of the - - Section CHAIRMAN: May I ask the delegate just a question? 73 L of the Hawaiian Organic Act. Now this section would MAIl: Yes. permk just this sort of general law. I think the commktee CHAIRMAN: Don’t we have to assume occasionally that will bear me out on that. Certainly the language would the regents of the universky are men of good will and they permk it. Does that answer your question? are not going to do something crooked on that? FONG: No, H doesn’t, Mr. Anthony. What I’m trying to MAU: No, I’m not saying that. I agree with you, but find out, as far as lands of the Territory are concerned, I’m wondering whether the delegates realize that the thought can you alienate the government lands by a special law if expressed this morning that the regents would have to consent! this provision goes into effect? and the explanation given was so plausible that H would be ANTHONY: No. easy. It won’t be easy. They must know that once that FONG: All right. Now if you can’t, then can you ex tHle is given to the universky, it stays with the universky change one piece of property for another piece of property? regents, regardless of whether k’s held in trust or not, regardless of whether it’s just a bare legal tHle. TAVARES: The words, “under a general law,” I tried But my point on this amendment proposed is this, H is to make that clear, H can be exchanged but under this pro- so confusing, particularly wkh Section - - the last clause 643 June 22, 1950 • Morning Session of the first sentence of Section 2 which we have deferred, SILVA: I would like to remind the delegates of this Con that it is either a repetition or a taking away of what is said vention that this Constitution is not to be written for attorneys, in one clause and repeated or pronounced in another clause. but to be written for the people of this territory, and the I submit it is confusing that we ought to appoint several of explanation given by the attorney general a moment ago - - these individuals who think they can clarify the situation to the assistant attorney general, Miss Rhoda Lewis, was very work it out together with the committee. Otherwise we’ll plain and satisfactory to me, and I don’t know whether the be here all morning. I don’t understand what they’ve been other delegates felt the same way. And I now move the trying to say. previous question. SAKAKIHARA: Second. CHAIRMAN: Just to encourage those non-legal minds, let me remind you that this problem has been going on CHAIRMAN: Are you satisfied, Mr. Mau? since 1700 when Montaigne said, “How is it that our ordi MAU: There is a motion that the Chair put - - nary language, so simple for every other purpose, becomes obscure and unintelligible in a contract and a testament.” CHAIRMAN: We have several motions here that we would It’s still a problem. What is the wish of the committee? have to dispose of. The first one is an amendment to the present section made by Mr. Anthony. AIter “transfers to,” PORTEUS: It’s the same problem that is encountered he added, “or for the use of the State.” where before man used to have an ache or pain, he now has any of 23 different hyphenated names which may be applied ANTHONY: Point of order. That being by the original to his malady. movant and I presume accepted by the second, does not have to be voted on. It’s part of the proposed amendment. CHAIRMAN: But a good diagnostician doesn’t take all CHAIRMAN: Is the second satisfied? morning to find out the cause of the pain. MAU: Then we have before us the amendment proposed by PORTEUS: I agree with that, Mr. Chairman; it sometimes Delegate Anthony, without any other amendments to it. Is takes them several months with different experts and then that correct? they don’t agree. At this time I’d like to amend the amendment by striking SHIMAMURA: May I suggest this amendment: “The leg out the words appearing in the second line, starting with “and islative powers shall extend over the lands owned or con its political subdivisions.” trolled by the State and its political subdivisions, except as CHAIRMAN: May we ask what you want to accomplish by otherwise provided in this Constitution, and shall be exer it? cised only by general laws,” and so forth. In other words, after the word “power” in the first line, I have inserted the MAU: This Convention is giving the fee simple lands - - word “shall extend over,” and in the second line, after the CASTRO: Point of order, Mr. Chairman. word “land” delete “all,” insert “owned or controlled by,” and after the word “subdivisions” in the second line, comma, DELEGATE: I’ll second the motion. insert the words “except as otherwise provided in this Consti CASTRO: Point of order. tution.” In my humble opinion, I think that will to a large extent meet the objections of some of the delegates. CHAIRMAN: Castro, what is it? CASTRO: There has been a motion duly seconded for the CHAIRMAN: Now I’m completely confused. I wonder previous question. I believe the delegate is out of order. if Mr. Mau’s suggestion wouldn’t be a good one. If we get the five lawyers who have been arguing, perhaps they can CHAIRMAN: I believe the delegate is discussing that get to one side and clarify the language and then we won’t motion, isn’t he? have to sit here and become more confused. CASTRO: No, sir, the - - A. TRASK: I second the motion. CHAIRMAN: All right, it wasn’t recognized. We now have CHAIRMAN: Second the motion that a committee of five the motion before the house. I’m sorry. be appointed to straighten out the language? DELEGATE: Mr. Chairman, I’d like a point of order. PORTEUS: Up until now we have avoided this appointment ANTHONY: Mr. Chairman, I don’t think we should - - I’m of special committees within the Committee of the Whole. If people want to get together in an informal fashion and then anxious as anybody to bring this matter to a head, but if the delegate has something to say, I suggest that the movant of submit something, let them do so. Otherwise we’re going to have our Committee of the Whole broken down into all sorts the previous question give him the opportunity to say it. of subcommittees. It may impede progress because we may SAKAKIHARA: Mr. Chairman, I withdraw my second. have to wait for them to make a report. I’d like to proceed CHAIRMAN: O.K. Go ahead, Delegate Mau, go ahead. with the matter at hand, if we possibly could. SILVA: He was trying to amend. Not having something LEE: At first, I was very confused on this matter, but to say. He’s trying to offer an amendment. I just wonder it seems to have been adequately explained by the two ex what - - is there an amendment to be offered, or something attorney generals what “a general law” meant, and this to say on the amendment, on the previous question? I don’t merely is conforming with what has occurred in the past. know. There is a constitutional restriction in our Organic Act similar in effect to what is now being proposed, and how the MAU: Well, I’m offering an amendment, Mr. Chairman. legislature may take care of that situation. It seems to me You would recognize me? Do I have - - we’ve had enough debate. I am opposed to the matter of a CHAIRMAN: Go ahead, Delegate Mau. special committee at this particular time because actually what might be done is that, if there are some doubts in the MAU: I understand that that amendment to delete these minds of the delegate of the fifth district, we might defer words has been seconded. Speaking on that motion, we have this matter and then during a particular recess we might in another article of this Constitution given the fee simple come over to the “supreme court” here and talk it over. titles to lands to the regents of the university. There are But I think a special committee will merely add to the con certain other agencies of the government, municipal and fusion. otherwise, which might hold fee simple titles. I don’t see 644 AGRICULTURE, CONSERVATION AND LAND why, if we can do that for the regents and make them auto dealing with university lands, we put the provision in relating nomous, why the county governments should not receive to the university. If it is the intent of this Convention later autonomy. Why should their lands not be held in fee simple on when we consider local government to put in a freeze by the respective counties? Why should the legislature have there so the legislature cannot touch any lands owned by a any control over those lands if they don’t want to control county, then let’s put it in the local government section and the lands of the university? It seems to me on the basis not here. Then it will control this, but as this stands it of autonomy to municipalities, on the principle of home rule would seem to me, it’s perfectly clear and properly worded. that we’ve been talking about so much, that this should go out of the Constitution and that the lands owned by the county SHIMAMURA: As I said formerly, this is an improve governments should remain with the county governments, ment in abbreviated form, but in the process of abbreviation and they can do with their lands what they will. It seems to I think we’ve changed the substance and sense of that original me that’s the only fair thing to do. section. As pointed out by a previous speaker, this original section provided for two things: first, the power of the leg CHAIRMAN: Mr. Anthony, do you want to answer that. islature over lands owned or controlled by the State; second, PORTEUS: Perhaps we can agree with the gentleman it provided for the transfer of such lands, as pointed out by from the fifth district. The removal of this will permit the Delegate Fong. legislators to pass special laws interfering with the county SILVA: I now move the previous question, again. land. Take the sentence, vote for his amendment, and you’ll open it up to the legislature to deal by special law with this. SHIMAMURA: I still have the floor and I think it’s not proper in the Committee of the Whole to move for the pre This is a protection to the county by leaving it in. It means vious question. that the legislature may only pass laws of general application and not special application. So if you take it out, unless SILVA: We have been acting out of order; we might as you can amend some other part of the Constitution forbidding well go all the way back. the legislature to have the power, the legislature then can CHAIRMAN: Mr. Shimamura has the floor. Go ahead. pass special acts. This is more protection. SHIMAMURA: Now in the process of amending it, we’ve MAU: I don’t agree with that reasoning, because if we made it to read, “The legislative power over the lands of can look into the history of legislative acts insofar as the the State,” which is construable as meaning all lands includ counties are concerned, they have not been responsive to ing private lands, because the word “of” is construable as the will of the people in the counties. They have not taken meaning “in.” In other words, the original purpose of this care of the counties in the way that the member of the House section was not to control all lands, public and private. But there has spoken of. I would prefer that they leave out any when I made my original suggestion to insert the word consideration about the counties insofar as the lands are “public,” Delegate Tavares had a point there that we should concerned, that their land should remain in fee simple with not use the word “public,” and I think he is correct as to the county government, and that’s the way it ought to be. that. But we have still left it up in the air, and we have in Here they have it within the power of the legislature to do effect included in this section control by the legislature of what the legislature wants with the county lands, in each of all lands, public or private. Therefore, the original the four separate counties. language of this section should be inserted, which is “owned LEE: Will the Delegate from the fifth district yield to a or controlled by the State.” I think that’s a serious matter question? Would you mind explaining to the delegates and here. for my information, what is the status now as to lands held In the second place, some of the delegates have made or administered by the county? Do they own the fee simple the point that there is no exception as to university lands title land? or as to county land. Therefore, we should insert back in this section the exception contained in the original Section MAU: There have been condemnations, exchanges of land, 4, which was as follows, “except as otherwise provided in and many other types of disposition of county lands without this Constitution.” Then if you do that, I think you will interference by the legislature, and I will assume that when substantially meet all the objections raised here. the legislature meets without all of this in the Constitution, Therefore, I respectfully move that this amendment be that the same laws will remain in effect. Highways, of made, that the word “over” be struck out, be deleted in the course, are, even though condemned by the county and in first line, and the words “shall extend to” be inserted in its the name of the Territory, all public highways. stead; and that in the second line, after the word “lands,” CHAIRMAN: Mr. Anthony, is that acceptable to you? the word “of” be deleted, and the words “owned or controlled by” be inserted; and that in the end of that line, after the ANTHONY: Well, from the standpoint of drafting the word “subdivisions” and the comma following the word “sub article, I have no feeling one way or the other. It is a divisions,” the words “except as otherwise provided in this substantial change in the intent. The way this thing is Constitution,” comma, be inserted. drafted, it would prevent the State or any county from deal ing, except by general law, wkh the public lands. I don’t PORTEUS: May I point out that that’s the language of the think that the problem of the public lands which are actually original section; and if you want that language, the best thing owned by the counties is a very large one, but I don’t have to do is to vote against the Anthony amendment. Following it the information that the last speaker has. I understood just then, it seems to me k’s the same thing that we had that their public lands were confined to the city hail and before. various sites for the offices of the county buildings. If that’s SHIMAMURA: As I’ve tried to point out, the original all that it is, nobody is going to take them away from them, section provided for two things; the power of the legislature and I don’t really see any vice to the proposed section. I over the land, and not over all lands in the State, private or don’t feel one way or the other, but it is a substantive change. public, but lands owned or controlled by the State. MAU: We might terminate this. If that is the understand PORTEUS: “Of” means “owned by.” I think there was ing, then I’m willing to withdraw my - - a long discussion on that earlier this morning. In substance, CHAIRMAN: We’ll wrke it into the report. you are making the replacement. There is the section, then the amendment, then you are going back to the original sec TAVARES: I don’t know whether that is all the understand tion. If you want the original section, vote down this amend ing, but I’d like to make this suggestion. When we were ment. 645 JUNE 22, 1950 • Morning Session DELEGATE: Mr. Chairman. you are, perhaps to some extent, whittling down your public lands. CHAIRMAN: Wait a minute, Mr. Shimamura still has the floor. CHAIRMAN: And you are not afraid of these fears that have been expressed here? DELEGATE: Point of order. I second this motion. TAVARES: Nd, Mr. Chairman, not a bit. CHAIRMAN: What was the motion? FONG: The only purpose for that question is to get this DELEGATE: Toadd- clear as to what we are voting for, and what we are not SILVA: Point of order, Mr. Chairman. I can’t see how voting for. Now I’m clear in my mind as to what we are a man can second someone else’s motion when he still has voting for. the floor. CHAIRMAN: Are we ready for the question? CHAIRMAN: I don’t either. Go ahead, Shimamura. HEEN: I think there is something in what Delegate Shima SHIMAMURA: One of the delegates pointed out, and I mura has said. Let’s clear it up. I would move this amend think correctly, that this section as rewritten only provides ment. AIter the word “lands,” second line, insert the words for transfers of land; whereas in the original Section 4, “owned by or under the control.” That will read “The legis there was definite provision of the power of the legislature lative power over the land owned by or under the control of over lands owned by the State. Now my first objection to the State and its political subdivisions.” Then there’s no this amendment is that we have not restricted this section more room for argument. to lands owned or controlled by the State, but we have CHAIRMAN: Mr. Anthony, are you willing to accept widened it and expanded to include all lands in the State. that? And I said “lands of the State” is subject to two constructions; first, owned or controlled by the State, and all lands in ANTHONY: That is exactly what it means, but I’ll accept the State; therefore there Is an ambiguity there. If it is the amendment. the - - HOLROYDE: Point of information. Don’t we have Dele ANTHONY: Can’t we just straighten that one point out? gate Shimamura’s amendment before us? If I am referring to the lands of Dr. Shimamura, I’m cer CHAIRMAN: I think it wasn’t seconded, was it? tainly not referring to the lands of Dr. Larsen. And it’s perfectly clear in this language, it’s lands owned by the HOLROYDE: It was seconded. State, nobody else. SHIMAMURA: I’ll withdraw it as far as amended. The SHIMAMURA: If you mean lands owned by the State, well only thing, I’m wondering if the good judge will also concur why don’t we say so? It was in the original section as such, with me that the words “except as otherwise provided in and I say “lands of the State” is construable in two ways, this Constitution” be included. lands owned by the State, and lands in the State. Therefore why have such an ambiguity in this Constitution? CHAIRMAN: Are you willing to accept Anthony’s compro mise here of leaving it out as they feel it’s not necessary? CHAIRMAN: The original section had “owned and con trolled by the State.” HOLROYDE: Mr. Chairman, will you then read what is before us at the present time? SHIMAMURA: Yes. CHAIRMAN: Are you ready to hear it? “Section 4. The CHAIRMAN: Mr. Anthony, did I infer that you don’t feel legislature shall have power over the lands owned by and that’s necessary? under the control of the State and its political subdivisions.” ANTHONY: I do not, Mr. Chairman. HEEN: That’s not the correct - - FUKUSHIMA: I believe Delegate Kellerman made that CHAIRMAN: All right, then, would you read it, Senator same amendment, and when she made it I thought it was a Heen? very good amendment. What Delegate Shimamura is doing HEEN: is merely doing what Delegate Kellerman tried to do and she - - when Delegate Anthony made his amendment, she The legislative power over the lands owned by or withdrew her amendment in favor of Delegate Anthony’s. under the control of the State and its political subdivisions shall be exercised only by general laws, except in respect CHAIRMAN: Have we had enough discussion on this? of transfers to or for the use of the State, a political sub FONG: One more question. I want to ask Mr. Tavares division thereof, or any department or agency of govern this one question. The land - - the State has a piece of land ment. known as land A. I have a piece of property known as land CHAIRMAN: Is it clear? B. Now say the value of these two pieces of property is such that no general law applies to it. Say it exceeds the sum of BRYAN: One question. What happened to the words $25,000. The legislature feels that it’s a good exchange, “except as otherwise provided in this Constitution”? and I’m willing to exchange with the Territory; the Territory HEEN: Those words evaporated. is willing to exchange with me, land A for land B. Will the legislature be able to pass such a law allowing the exchange, BRYAN: Thank you. and will that law be a special law or a general law? A. TRASK: Point of information of the chairman of the committee. The word “land,” does that include under the TAVARES: The first answer is no; the second answer sea, over the sea, and over the land, in the air? It’s not is yes. It will be a special law and the legislature can’t do as facetious as somebody might think. We’ve had a very it that way; it will have to be done under general law, if at great contested case in the Supreme Court over the question all. But there is still the power of condemnation by which of the oil lands under the sea of California and in Louisiana, the State can acquire lands; and if the legislature has fixed and I’d like to see this - - If we’re a deliberate body at all, a policy that, generally speaking, lands over a certain size I want to find that answer. and over a certain value shouldn’t be exchanged, then I think it’s perfectly all right to have it condemned, as we do RICHARDS: I should imagine that the term, at least as now instead of exchanging, because over a certain size, far as the committee is concerned, is the use of the word 646 AGRICULTURE, CONSERVATION AND LAND “land” as is normally understood. That if the State owns ized by law; provided that lands set aside for a public the land that’s under the sea, it owns the land under the use, other than for a reserve for conservation purposes, sea. need not be committed to the jurisdiction of such a board A. TRASK: Was any information given to the committee or commission. with respect to this situation? Because I’m concerned. We have now existing a situation with respect to coastal waters, The word “full” is not there in the mimeographed copy. That is the word “full” - - navigable waters; of course we know they are under the federal government. But there are many situations that CHAIRMAN: You mean under “full powers”? may arise in the future with respect to this matter, and I just wonder whether maybe Mr. Nils Tavares could say HE EN: No, no, omit “full.” something with respect to that situation. Resources which by authority of the legislature are owned by or under the control of the political subdivisions CHAIRMAN: Tavares, do you want to answer that? Seems to me if we had put in “owned by and under the con or a department or agency thereof, are not covered by trol of,” it covers that point. this section. TAVARES: In the first place, I don’t think the amend CHAIRMAN: Is that clear? We had a lot of discussion ment is necessary. In the second place, the word “lands” on that last night. Are we ready for the question? does mean lands whether under the sea or any other place. MIZUHA: I would like to ask a question of the movant of this amendment as to the construction of paragraph two. CHAIRMAN: Are you ready for the question? Now the question is that Section 4 as amended be accepted. Am I Does he presume that no political subdivision of this State right? Because the movant accepted all the amendments. can own resources by itself unless by authority of the legis Right? Are we ready for the question? lature? ARASHIRO: Aren’t we supposed to vote on the acceptance HEEN: This is the exact copy of that paragraph inSection of the amendment at present? 2 as submitted by the Committee on Lands. Perhaps some member of the committee can explain that. DELEGATE: That’s right. BRYAN: I think that Delegate Mizuha may have misunder CHAIRMAN: No, the movant of the motion accepted all stood this. It just means that those lands which are owned the amendments as part of the motion. or under the control of a political subdivision or a department ARASHIRO: But we have not voted on it. thereof need not be committed to the boards or commissions DELEGATE: Point of order. which are set forth in the first paragraph. That’s all. CHAIRMAN: Go ahead. MIZUHA: If that is the case, I have an amendment to mnke to the second paragraph. To strike out the words in CROSS LEY: The movant did accept all of the amendments. the second paragraph, “which by authority of the legislature,” CHAIRMAN: He did not? and to have the second paragraph read as follows: “Resources CROSSLEY: He did, but we are now voting on the amend owned by or under the control of a political subdivision or a ments, after which we will not - - In other words, the sec department or agency thereof are not covered by this section.’ tion offered by Mr. Anthony is an amendment. So that we ASHFORD: I don’t think that changes, the substance of are voting on Mr. Anthony’s amendment with all of the that paragraph. The political subdivision only has such other amendments pertaining to it included. authorities as are granted to it by the legislature in any CHAIRMAN: I think that’s understood. That is, what event. we are voting on is this paper with the additions. Are you MIZUHA: The reason for this amendment - - it wasn’t ready for the question? All those in favor say “aye.” All seconded, but I wish to point out very clearly that this those opposed. Carried. Convention already has given to the university the fee sim FUKUSHIMA: I now move that Section 4 as amended be ple title of certain lands as a body corporate. The political tentatively approved. subdivisions and counties of this State will be perhaps, and it is not known at the present time inasmuch as we have not CROSSLEY: I second the motion. considered the article on local government, whether the CHAIRMAN: The motion has been made and seconded. counties can own lands in fee simple title. And that is, Are you ready for the question. All those in favor of Section under this section, the second paragraph, it is presumed 4 as amended say “aye.” All those opposed. Carried. that they will not be able to own lands in fee simple title. If that is so, I believe we are giving to the university some WOOLAWAY: Now I move that we tentatively adopt Section 2, which has been deferred. thing that the counties are entitled to at the present time. Under a recent supreme court decision, it was made very DELEGATE: I second that motion. clear that a county does not have the fee simple title to the CHAIRMAN: Is there any debate? highways. The question as to whether other lands where the water tanks are and where the county seat is and where ARASHIRO: Before acting on Section 2, do we have the the county buildings are, there is some question as to who appropriate language for Section 2 at present? owns those lands, but a strong interpretation of this deci LEE: I believe there is an amendment that was proposed sion of the supreme court reveals that perhaps the Territory by Delegate Heen. of Hawaii owns all of the lands by the counties in fee simple title and that the counties do not hold a fee simple title. CHAIRMAN: Would you mind reading it? By adopting this section, the second paragraph, it presumes LEE: Delegate Heen, would you mind reading it? in the Constitution that our political subdivisions, those HEEN: counties, will never be able to own the fee simple title of their lands, and only by consent of the legislature. The legislature shall commit to one or more executive boards or commissions full powers for the management MAU: I second the motion. of all natural resources owned or controlled by the State, LEE: If that is true, Mr. Mizuha, wouldn’t it be better and such powers of disposition thereof as may be author- to delete the last sentence? Last paragraph? 647 JUNE 22, 1950 • Morning Session MIZUHA: I would like to withdraw my original motion executive board, which in turn could have subdivisions and move to delete the last paragraph of Section 2. where you would have advisory boards or commissions, and so forth. But the intent of the committee was that this sub LEE: Second the motion. ject should be headed up by an executive board. TAVARES: I was going to second that motion. I think MIZUHA: I wish to withdraw my motion for the deletion that’s what the first paragraph means anyhow. It sets of the entire second paragraph because upon further study aside; if a county has it, I think it’s set aside sufficiently of the second paragraph, it serves a definite purpose. But so that it’s not covered. I wish to move for my original motion which would delete CHAIRMAN: So you don’t feel this is necessary? Sena those words, “which by authority of the legislature,” and tor Heen, I think last night you made a statement that you have the second paragraph read as follows: “Resources thought possibly it was necessary. Are you willing to with owned by or under the control of a political subdivision or draw that? That last paragraph? a department or agency thereof are not covered by this HEEN: No, I think it can be withdrawn. It’s covered by section.” the language in the first paragraph. DELEGATE: Second the motion. ASHFORD: I call the attention of the delegates to the fact, OHRT: I’d like to pose a question. The board of water “other than for purposes of conservation.” supply in the last ten years has purchased about $250, 000 worth of land in the name of the City and County of Honolulu. CHAIRMAN: That’s in the first paragraph. That’s in connection with forest reserves. We can’t get BRYAN: I think that’s correct. The delegate from anybody else to look after the forest reserves back of Molokai has a good point there, that that would mean any Honolulu except ourselves; so we proceed to buy this land, lands of the county that are not set aside for conservation, and we bought it in the name of the City and County of Hono would not be included. Is that correct, Delegate Ashford? lulu. What is going to be the status of that particular land under all of this? CHAIRMAN: What did you want to add to it? CHAIRMAN: Mr. Bryan, could you answer that? TAVARES: I confess error. I think Miss Ashford is correct. BRYAN: I think the status will be the same as it is now. That’s the purpose of the last paragraph. CHAIRMAN: Now as we stand, Miss Ashford, it means we should retain this paragraph. Is that correct? TAVARES: In supporting the proposed amendment, it seems to me one understanding should be kept in mind—at ANTHONY: I was just going to remark that, doesn’t the least that’s my understanding—that if, for instance, the word “set apart for public use” include use of the counties? legislature should provide for the temporary transfer of “For public use”? It seems to me that meets it with the property to a county with a string on it, that so long as deletion of the last sentence. that control was in the county, this wouldn’t apply; but if CHAIRMAN: Bryan, do you want to answer that? by chance, that land got back into the hand of the State, then the section would then - - the first part of the section would BRYAN: I’m just a little bit confused, but I think that then apply again. That’s correct. “set aside for public use” is modified by the words “other than for a reserve or conservation purposes.” And I believe CHAIRMAN: That would protect you, Mizuha. Do you that the second paragraph is actually a protection for the want to withdraw it? counties. MIZUHA: No, that is correct. I think the amendment ASHFORD: That was what it was designed for. In other should stand but the understanding for the committee report words, it was the theory I think, of the committee that the I think is proper to avoid any confusion later on in inter counties might have conservation areas for water and other pretation. purposes as well as the State. CHAIRMAN: You withdraw the amendment? CHAIRMAN: And you feel it was necessary to protect MIZUHA: I’m not withdrawing the amendment, but I’m the county interests. accepting the remarks of the delegate from the fourth dis ARASHIRO: I have a question for the committee as to trict with reference to interpretation as to lands that may the reasons why the word “executive” is there before the be transferred to the political subdivisions and later trans word “board.” ferred back to the State. HEEN: That word can be well deleted, but the Style BRYAN: I can’t speak for all members of the committee, Committee can eliminate it. but I know that several have accepted the amendment as be ing O.K. I don’t know about the other members of the com BRYAN: In the opinion of the committee, I’m quite sure mittee. that word cannot be deleted without a change in substance. FUKUSHIMA: I move for the previous question. It was the intent of the committee that these boards should be executive boards in nature, that the boards should appoint CHAIRMAN: Are we ready for the question? The ques its executives. That was the prime purpose, actually, of tion is an amendment to the last paragraph. Mizuha, would this whole section. you read it as you got it? Slowly. ARASHIRO: Because to me, executive would then limit MIZUHA: The last paragraph would read as follows: the board to only executive boards, whereas there might be “Resources owned by or under the control of a political sub a possibility of creating some advisory board, instead of division or a department or agency thereof are not covered an administrative board. by this section.” BRYAN: That was the point that the committee wanted CHAIRMAN: Are you ready for the question? This is to make in this section. The committee felt that this sub an amendment to the last paragraph. ject should not be committed to a single executive. It MIZUHA: To delete the following words from the last should be committed to a board, that the board would appoint paragraph, “which by authority of the legislature are.” their executive, and the executive would be subservient to the board. Now, it is possible, under this section, I believe, CHAIRMAN: Question. All those in favor of this amend that this whole subject could be committed to one board, one ment say “aye.” All opposed. Carried. 648 AGRICULTURE, CONSERVATION AND LAND FUKUSHIMA: I now move that the second paragraph of CHAIRMAN: Wait a minute. Section 2 as amended be tentatively approved. A. TRASK: Point of order. There is nothing before WIRTZ: Point of order. The original amendment was the committee. Delegate Heen’s amendment which is supplemental one for Section 2 which he moved for the adoption of. We’ve BRYAN: Right. just passed on an amendment to that amendment; so that A. TRASK: Well I move, Mr. Chairman, that we ten amendment, I think, is still before the house. tatively approve - - CHAIRMAN: Delegate Heen, could you read that? ANTHONY: Mr. Chairman, I thought I had the floor. BRYAN: I move the adoption of this amendment as CHAIRMAN: You have the floor, I think, but - - amended. ANTHONY: I was interrupted by two speakers. CHAIRMAN: Well, cauld we get from Senator Heen, I don’t - - A. TRASK: Point of order, Mr. Chairman. WOOLAWAY: That’s right, I second that - - CHAIRMAN: Wait a minute. Point of order. State it. HEEN: I think that procedure is correct, Mr. Chairman. A. TRASK: There is nothing before the committee, so CHAIRMAN: Are we ready then for the paragraph? All I move at this time - - those in favor say “aye.” All opposed. Carried. ANTHONY: Mr. Chairman, the chairman called for Now can we have a motion for the whole section? debate on it. A. TRASK: I move that we tentatively approve Part I of CHAIRMAN: I think that’s correct. Committee Proposal No. 27 as amended. ANTHONY: But that is before the committee. CHAIRMAN: Section 2. CHAIRMAN: There’s no motion made on th’e first section. A. TRASK: Oh, Section 2 as amended. A. TRASK: Am I in order, Mr. Chairman? DELEGATE: Second. CHAIRMAN: Second the motion. Motion made and sec CHAIRMAN: I think he’s in order. All right. The onded that we tentatively accept Section 2 as amended. All motion has been made. Second it. those in favor say “aye.” All opposed. Carried. DELEGATE: Second the motion. A. TRASK: Now I move that Part I of Committee Pro CHAIRMAN: Seconded. All those in favor say “aye.” posal No. 27 be tentatively approved as amended. BRYAN: Mr. Chairman. DELEGATE: Second the motion. CHAIRMAN: Contrary,, “no.” Carried. CHAIRMAN: Any discussion? Otherwise we’ll go to the question. All those in favor of accepting Part I say “aye.” BRYAN: Mr. Chairman. Right here. Opposed. Carried. PORTEU5: Mr. Chairman. We’re now on Part II. BRYAN: I think I can clear up this trouble. RICHARDS: In explanation of Part II, this covers the requirements of H. R. 49, or at least it’s supposed to PORTEUS: Mr. Chairman. You don’t carry the motion. provide for the different requirements in obtaining state All you do is have the motion before the body in order that it hoodunderH.R. 49. may be discussed. So under this, we’ve already passed it. I think we’d better go back. CHAIRMAN: May I ask just one question? Does H. R. 49 require this many words? BRYAN: Mr. Chairman. RICHARDS: Well, in most instances, we have quoted ANTHONY: Mr. Chairman. verbatim. CHAIRMAN: Wait a minute! CHAIRMAN: Verbatim. Any discussion? Are we ANTHONY: Mr. Chairman, I think I had the floor. This ready for the question? question was put before the house. The Chair asked whether ANTHONY: I don’t see why this should go in the Consti or not there was any debate. tution. If it is a requirement of H. R. 49, then it’s one of CHAIRMAN: I think that’s correct. these things of a temporary nature. Let’s not put it in our DELEGATE: Point of order. Constitution. Let’s transfer it to the ordinance section and let them put it in there, or maybe the Style Committee can ANTHONY: Mr. Chairman. May I finish, Mr. Chairman? handle it. CHAIRMAN: Mr. Anthony, go ahead. TAVARES: One of the most important things that we had ANTHONY: I got up to debate on it. to do when we went to Washington was to take care of these public lands. If this represents the draft, I’m sure it must CHAIRMAN: Correct. have been prepared with the aid of the assistant attorney ANTHONY: The Chairman ruled me out of order and general. It’s something that I would very, very carefully permitted the motion to adopt the entire section. think over before I deleted it, and if there’s any disposition to that effect, I’d want a recess’ to discuss it for a few KING: Mr. Chairman, point of order, please. Delegate minutes. Anthony was out of order, because no motion had been made tentatively to adopt Section 1. BRYAN: I think I can clear up this question. CHAIRMAN: I think that’s correct. The Chairman was CHAIRMAN: Wait a minute. out of order. TAVARES: I thought I had the floor, Mr. Chairman. KING: It has now been seconded, and now the Chair can CHAIRMAN: Mr. Tavares, a - - recognize Delegate Anthony to debate it, but the section is A. TRASK: Point of order, point of order, Mr. Chair now before the Convention. man. CHAIRMAN: The motion was not - - 649 JUNE 22, 1950 • Morning Session LEE: In order to correct the present situation, I move A. TRASK: What Delegate Tavares had in mind, per that we reconsider our action on passing - - haps, is on page 13 of H.R. 49 which says, with respect to Part II, which does appear wordy, but it does provide in SAKAKIHARA: Second it. H. R. 49 that the foregoing purposes—and that’s the four ARASHIRO: I second that motion. purposes that I enumerated this morning—must be provided in, quote, “in such manner as the Constitution and laws of CHAIRMAN: All those in favor - - said state may provide.” Now the first word is “Constitution” SILVA: Point of order, Mr. Chairman, point of order. and the next word is “law.” Now whether or not that would CHAIRMAN: All those in favor - - be in the schedule, it may be so, it may be not; but I do think I should bring it to the attention of the assembly. SILVA: In the first place, the Chair did not correctly state the question after it was stated. The motion did not CHAIRMAN: Any other discussion? Are we ready for carry. There was not a vote taken. All you have to do the question? The question that we once passed, see if we is rescind your action in saying that the motion carried. can pass it again. Are you ready for the question on Section 2 going in the Constitution? All those in favor - - CHAIRMAN: The Chairman rules that the motion was Wait a minute. Mr. Anthony. not carried. Section I is open for debate. Mr. Anthony. ANTHONY: I don’t want the statement of the Chair to BRYAN: Mr. Chairman, Mr. Chairman. stand uncorrected. I don’t know; I myself have not checked this carefully with the provisions of the latest print of CHAIRMAN: Delegate Bryan. H.R. 49. BRYAN: I think that if we may consider what Mr. Antho ny did say was in order and before the house—at least we CHAIRMAN: Would you rather defer it? heard it—I can clear up some of his objections. It was the ANTHONY: It seems to me that we ought to get that be intention of the committee in dividing this into two parts fore us before we definitely - - unless we all pass it with that Part I would be in the Constitution and Part II would be the understanding that when that print comes in, we’ll be either in ordinances or in the schedule. free to reconsider the thing and redraft it, if necessary. CHAIRMAN: Will that be acceptable, Mr. Anthony? CHAIRMAN: Could we pass it tentatively? RICHARDS: Mr. Chairman. ANTHONY: That would be satisfactory to me. CHAIRMAN: Mr. Anthony has the floor. WHITE: I’d like to move a 15 minute recess while this ANTHONY: That’s what I was trying to get over while subject can be given some consideration, and during that the Convention adopted the whole section. With that ex period the Tax Committee can get together and complete planation and leave it up to the Style Committee to put it their work. where it belongs, why, that’s satisfactory to me. FUKUSHIMA: I’ll second Delegate White’s motion. RICHARDS: May I suggest that the delegate from the CHAIRMAN: All right. A motion has been made for a fourth district read page 7 of the committee report, in 15 minute recess. The Tax Committee wants to get together which it says: “We recommend that Part I be incorporated for 15 minutes; so we declare a 15 minute recess. in the main body of the Constitution as a separate article, KING: We are faced with this dilemma that we are try and that Part II be incorporated in the schedule or ordinances, ing to draw provisions in our schedule that will comply with nomenclature to be determined by the Style Committee, H. R~ 49. There have been amendments adopted by the which, although an integral part of the Constitution not committee that has H. R. 49 in consideration, and we have subject to change by the legislature, is placed at the end.” no present information as to what those amendments are. CHAIRMAN: Is that acceptable, Mr. Anthony? It would seem wise at this time to defer action on Part II and have the committee rise and report progress, and ask KING: Along the lines of the remarks made by Delegate permission to meet again. Tavares, it is most important that we have this in our Constitution, either in the schedule or in the body of the SAKAKIHARA: Will the President make that in a form Constitution. I believe the argument that it ought to be in of a motion? I’d be glad to second it. the schedule is correct. However, we have read in the KING: I was going to recite the little circumstances press just the other day that they have amended H. R. 49 briefly first. And then perhaps, even go to the extent of in committee, but it has not passed out of the committee instructing the chairman of the committee to bring in a yet, to require that the Constitution shall be presented to report on Part I, so that we can treat the two parts separate Congress as well as to the President; so that we should ly, if that’s agreeable. comply with the various provisions of H. R. 49 definitely In the Constitution that we submit to Congress if H. R. 49 CHAIRMAN: Mr. King, you don’t want to discuss Sec passes. tions 3 or 4 then? KING: No. Section - - HOLROYDE: This is a rather lengthy section, and it deals primarily with the transfer of the material from H. R. CHAIRMAN: All right. Motion made - - 49 to this section and it’s strictly for the legal minds to KING: - - one. I haven’t made a motion yet, Mr. Chair decide definitely whether this meets the requirements of man. Sections 1, 2 and 3 cover the same subject matter. H. R. 49. So I would like at this time to suggest a short Section 4 does stand by itself, but since it was proposed to recess while the attorneys go over this to make sure it put it in the schedule, it might be delayed until we consider does comply before we vote on it. the whole of Part II. I now move that we defer consideration CHAIRMAN: May I suggest this. We have had four days, of Section 1 of Part U and the remainder of Section 2 until the attorneys have gone over this, and it seems to me from some - - of Part II, I mean, until we’ve made - - the discussion that they agree that it did cover H.R. 49. CHAIRMAN: Motion made and seconded by Sakakthara. Are there any objections to that? Mr. Anthony agrees, the Are you ready for the question? others agree, this is part of H.R. 49, it’s supposed to be in the Constitution - - DELEGATES: Question. 650 AGRICULTURE, CONSERVATION AND LAND CHAIRMAN: We defer all of Part II. All those in favor MAU: I move that we adopt Section 2 tentatively. say “yes.” All those opposed. [Carried. BRYAN: I second that motion. BRYAN: I move that we rise, report progress and ask leave to sit again. CHAIRMAN: 0. K., go ahead, Delegate Anthony. PORTEUS: I’ll second the motion. ANTHONY: A proposed amendment which I now move has been distributed - - printed and distributed on the desks. CHAIRMAN: All those in favor - - I will read it. HOLROYDE: Before we vote on that, I’d like to amend Any trust provisions which Congress shall impose, that so that the chairman would be instructed to prepare a upon the admission of the State, with respect of lands report on Part I of the committee proposal, so that the patented to the State by the United States or the proceeds Convention could act on that if Section 2 is delayed for quite and income thereof, shall be complied with by appropriate some time. legislation. BRYAN: I accept the amendment. I move its adoption. CHAIRMAN: Accept the amendment. Are you ready for PORTEUS: Second the motion. the question? All those in favor say “aye.” So carried. ANTHONY: If I may speak to that. The section of the H. R. 49 which this is an effort to comply with is not a Afternoon Session mandate. I want the delegates to understand that. We do not have to have this particular section in the Constitution. However, in the minds of some of the legal fraternity, CHAIRMAN: The committee come to order. the act, H.R. 49, does require that the income from our ANTHONY: We are dealing with Committee Proposal No. school lands be held in a trust for certain purposes, as to 27, Part II. Two amendments have been distributed. They be established either by the Constitution or by the laws of the are on the desks of the delegates. The one has been errone State. This will be a clear acknowledgment that we are ously numbered as “Section 2, Amendment to Committee accepting and will perform the trust. It may look on first Proposal No. 27, Part II, RD 1.” That should be changed, instance that this is an open-ended matter, but the Congress that number to “Section 1” in two places where it appears. has been eminently fair with the Territory in regard to our If I may, I will read the proposed amendment which I public lands. Our difficulty has been only with the Depart offer. ment of the Interior. I would have no hesitancy in urging that the Convention adopt this, if they adopt anything, or Section 1. The United States shall be vested with or the other alternative would be to delete Section 2 in its retain title to or an interest in or shall hold the property entirety. in the Territory of Hawaii set aside for the use of the United States and remaining so set aside immediately ASHFORD: The matter of construction, should you prior to the admission of the State, in all respects as say “with respect of,” or should we say “in respect of” or provided in the act or resolution admitting this State to “with respect to”? “In respect of “ is better, I think. the Union. HEEN: That could be handled by the Style Committee. Now, what that accomplishes is this. I move that that be CHAIRMAN: Style Committee want to make any comment adopted. on that? Can we leave it to Style? PORTEUS: I second the motion. ANTHONY: It’s a matter of style, I think. It can be CHAIRMAN: All right, go ahead. corrected by the delegate. She’s a member of that commit tee. ANTHONY: What that accomplishes is this. Part U, Section 1 of the committee proposal is an effort, and prob ASHFORD: I’d like to say that I shall vote against this ably a pretty good effort, to paraphrase the requirements for the same reasons that I stated in my objection to the of H. R. 49. However, that is flexible and may change report. from time to time. This proposed amendment incorporates CHAIRMAN: Any other comments? all of the requirements of that act as it now exists or as it hereafter may be amended, and it preserves the flexibility RICHARDS: There is one point I think should be clari of that situation, which will require no further revision if fied a little bit. The language as originally or at one time H. R. 49 is revised. It will also take care of the situation proposed for the committee was somewhat similar to this if we are admitted to the Union by joint resolution. I have and at that time the committee feit that it was somewhat of submitted this to the chairman of the Committee on Agri a blank check in agreeing to terms and conditions which we culture, Conservation and Lands and also Deputy Attorney didn’t know might or might not be included in such an act. General Rhoda Lewis and it meets with their approval. I However, the chairman of the committee has been assured think this should be adopted. by the attorneys that we would have a reasonable chance of not having our pockets picked too much by Congress. There CHAIRMAN: Any further discussion? Are you ready fore, I’ll go along with it. for the question? All those in favor of Section 1, Part II, CHAIRMAN: Any other discussion? Otherwise, question. say “aye.” Opposed will say “no.” Carried. All those in favor of including this say “aye.” All those TAVARES: That was the adoption of the amendment. I opposed. Carried. move now that the section as amended be tentatively approved. CROSSLEY: I now move the adoption of Section 2, Part WOOLAWAY: I second that motion. II, as amended. CHAIRMAN: You’ve heard the question. All those in WOOLAWAY: I second that motion. favor say “aye.” Negative, “no.” Carried. CHAIRMAN: You have all heard the question. Amended Section 2. Section 2. All those in favor say “aye.” Opposed, “no.” ANTHONY: Addressing ourselves to Section 2 of Part - - Carried. of Proposal No. 27, Part II, Section 2. Another amendment CROSSLEY: I now move the adoption of Section 3 of had - - Part II, Proposal 27. 651 JULY 6, 1950 • Morning Session WOOLAWAY: I second that motion. PORTEUS: No. That would eliminate - - possibly the Committee on Style might eliminate Section 3 of Part I, and CHAIRMAN: The motion - - any comments? place the sense in Section 4 of Part II. ANTHONY: I move a simple amendment which likewise CHAIRMAN: And we’ll pass it with that understanding. has the approval of the lady from the attorney general’s de partment. In the third line after the word “Congress” de ANTHONY: I suggest we just vote on the section. If lete “of the United States.” There is only one Congress there is a style question here which the Style Committee that we are talking about. Everybody agrees to that, I be can wrestle with, the speaker will agree to that. lieve. CHAIRMAN: Question. Any more discussion? All those CROSSLEY: I second the motion. in favor of Section 4 say “aye.” All those opposed say “no.” CHAIRMAN: Do you want to carry it especially on that Carried. or will everybody - - APOLIONA: I now move tentatively for the approval of CROSSLEY: That’s an amendment. We will have to vote Part II of Proposal 2? as adopted as amended. on the amendment. DELEGATE: I second that motion. CHAIRMAN: All right; you know the amendment. Any CHAIRMAN: You have heard the question. Is there any other amendments? All those in favor - - debate? All those in favor of approving Committee Proposal No. 27, Part II, say “aye.” All those opposed say “no.” ASHFORD: That’s a matter of style, and I think the Carried. gentleman’s a member of the Style Committee and can look after it there. CROSSLEY: I now move that we adopt Proposal 2? as CHAIRMAN: I think the point is well taken. amended. APOLIONA: Anthony withdraws his amendment. WOOLAWAY: I second that motion. CHAIRMAN: All those in favor of adopting the whole of ANTHONY: I withdraw it. Proposal 2? say “aye.” All those opposed. CHAIRMAN: Now, we are ready then to vote on Section CROSSLEY: I move that we rise - - 3. Are there any other comments? All those in favor of including Section 3 say “aye.” Opposed. Carried. C. RICE: He didn’t give the announcement. CROSSLEY: I now move the adoption of Section 4, CROSS LEY: What? Part II, Proposal 27. CHAIRMAN: I announced “carried.” WOOLAWAY: I second the motion. CROSSLEY: I move that we now rise and - - CHAIRMAN: The motion has been made and seconded. CHAIRMAN: Report progress? PORTEUS: I’ll only take one moment on this. I’ve dis cussed this matter with the chairman of the Committee on CROSS LEY: No, I believe that what we should do now is Agriculture, Conservation, et cetera. Referring back to adopt the - - recommend that we rise and recommend the Section 1 [i.e. 3] of Part I, it stated there that “All fisheries adoption of this proposal. in the sea waters of the State not included in any fish pond WOOLAWAY: Second the motion. or artificial inclosure shall be free to the public, subject to vested rights and the right of the State to regulate the same.” PORTEUS: It has been customary for us not to rise and recommend ‘the adoption until the matter has been sub It seems to me that since Section 4 is the proviso which directs that the legislature have condemned and provide the mitted to the Convention in an amended form and a report money for the elimination of these various sea fisheries, that prepared. Therefore, I think the motion, to be correct, vested rights, rights in the sea fisheries, which under our should be to rise and report progress and ask leave to sit law are vested rights, konahiki rights and so forth, that the again. In the meantime, the chairman will write that report provision with respect to the regulation of vested rights in and submit it to the Committee of the Whole. that interim period could well appear in this Section 4 CROSSLEY: That’s what I started to say, but I thought rather than in Section 3. Following the elimination of those we’d save timeby - - vested rights, I think this is a matter which will - - this DELEGATE: I second the motion. portion will then become functus, except for the statement that fisheries shall be free to the public, and I think that as CHAIRMAN: The motion has been made and seconded with other public facilities, they’ll be free anyway. But I’m that we rise and report progress. All those in favor say satisfied, after talking to the chairman of the Committee on “aye.” Opposed, “no.” Carried. Agriculture, that if the Committee on Style concedes that this is unnecessary, that they can easily rewrite it and that would obviate having a discussion and reconsideration. But I did JULY 6, 1950 • Morning Session want to point out that there is the possibility that the Com mittee on Style may consider that to be adequately covered ASHFORD: That provision for regulation refers not [The first part of the debate was not recorded.] merely to regulation while there are vested interests, but RICHARDS: . . . the part that deals with H. R. 49. after the vested interests have been condemned. HEEN: Point of order. PORTEUS: May I add that the legislature will have the power to regulate in any event. They will, have the right SILVA: Second the motion we adopt the amendment. to regulate any of the resources, this in the interest of con CHAIRMAN: Mr. Castro made the second to that motion. servation, et cetera, and under the subject, rightful subjects of legislation. I deem it to be unnecessary but, as I say, HEEN: There was a motion to reconsider and that motion I’m satisfied to leave it to the Committee on Style. was seconded, but no action has been taken upon that motion. CHAIRMAN: Do I understand you, then? If Committee CHAIRMAN: Motion before the house to reconsider on Style feels they can incorporate the sense of this in Section. seconded by Senator Silva. Are you ready for the question? 2, do so, and then we would eliminate Section 4. All those in favor, “aye.” Carried. 652 AGRICULTURE, CONSERVATION AND LAND SILVA: To put the question before the floor, I move we then the amendment would read, “in all respects as and to adopt the amendment. the extent set forth in the act or resolution providing for the DOWSON: I’ll second the motion. admission of this State to the Union.” RICHARDS: The amendment is a minor amendment in CHAIRMAN: Any more questions? the last part of that section in which the words to be deleted MIZUHA: Is there anyone in this Convention here, partic are, “in all respects as provided in the act or resolution ularly those delegates that went to Washington advocating admitting this state to the Union” to read, “in all respects statehood for Hawaii, who could explain how subsection 7 as and to the extent set forth in the act or resolution provid of Section 3 was inserted into H. R. 49? ing for the admission of this state to the Union.” CHAIRMAN: Delegate Heen, could you tell us that? I CHAIRMAN: You have all heard the question? Any dis think it was a request by Congress. Delegate Anthony or cussion? Delegate Heen or President King. ASHFORD: Before the vote is called for, I’d like to KING: Delegate Heen is best versed in this and I’m explain my vote. I shall vote against it, not because I do perfectly willing to yield the floor to him, but let me say not think that this is an appropriate amendment, but because that when we left Washington it was with the understanding I do not recognize the right of the Congress of the United that H. R. 49 was to be amended to comply almost exactly States to dictate to us how we shall dispose of our lands or with what we were asking them to do with regard to the dis require us to cede any interest therein. position of public lands. We had convinced the Department CHAIRMAN: We will record that sentiment. of Interior that our contention was right and the Senate Committee on Interior and Insular Affairs was very sym HOLROYDE: I’d like to ask Delegate Anthony and Dele pathetic. The press reports we got was that several sena gate Heen on this. What would happen in case the present tors in discussing H. R. 49 had made it very clear that they bill didn’t come up before Congress? wished to be sure that Hawaii would retain title to practi ANTHONY: This amendment is designed to take care cally all of the public domain. of either admission pursuant to H. R. 49 or a joint resolution. Now the Committee Print C that arrived here the other As a matter of fact that’s one of the reasons for the changes. day, the form of H. R. 49 that was reported out of the com You will note the language is in “all respects as and to the mittee, had language in it that was quite a surprise to all extent set forth in the act or resolution providing for the of us, and did not carry out the understanding that we had admission.” Previously the language stated, “admitting at the time we left Washington. It looks as though some this state to the Union.” Now that would only be the act. legal advisor of the Department of Interior had a change of Therefore, this amendment will cure that particular defect. heart in our absence. However, we’re not in a position to I might state that the members, several members of the contest it at this late date. The bill is on the Senate calen bar in the Convention have reviewed this with care and in dar and may be acted upon within the next two or three consultation with the attorney general’s office. We are of weeks. It seems to me that all we can do is make our the view that this is an appropriate amendment. Constitution comply with it with enough leeway so that we ROBERTS: I’d like to second Miss Ashford’s sentiments. might be able to get a last minute amendment to H. H. 49 and still be in step with the enabling act. CHAIRMAN: There are times when you are caught over a barrel where you just have to take it. CHAIRMAN: Delegate Heen, do you want to say some thing? ANTHONY: It is also agreed by the lawyers that we are going to draft this Constitution, so far as the land provisions, HEEN: Mr. Chairman, that is correct. At the time we as we, the delegates, feel they should be drafted, and we’ll left Washington we thought everything had been cleared. fight out that subsidiary issue at a later date, if it becomes However, upon receipt of the last draft of H. R. 49 we found necessary. inserted something new. It’s on page 12 of that redraft and it’s paragraph seven which reads: “That said State and CHAIRMAN: May I call attention to both Ashford and its people do agree and declare that they forever disclaim Roberts that in our report, we say to Congress that they all right and title to all lands, title to which is held by the have always treated us fairly and we expect them to continue United States or subject to disposition by the United States.” in the same way. So that helps to cover it. There are some lands which have been set aside by act LOPER: Point of information. Is there a redraft of of Congress — referring particularly to the national park on Committee Proposal No. 27? Hawaii and Maui—set aside by executive order or procla mation of the President of the United States and the governor CHAIRMAN: It’s on your desk. It’s amendment to of the Territory of Hawaii to the United States or to the Committee Proposal No. 27 and was passed out this morning. Territory; and by executive order of President Wilson, he RICHARDS: I don’t know whether all the delegates may vested title in the Territory of Hawaii in lands such as public have the redraft. It was Redraft No. 1 that amended Section highways, public buildings, and so on and also forest areas. 2 that would pass before the committee - - passed by the Now those lands which have not been so set aside, the committee and then later Section 1 was deleted, of the title to those lands are still in the United States, but the committee proposal, and, therefore, it became Section 1. United States holds title only in trust, for in the Newlands Now there has not been a complete printing as yet because Resolution, we find language to the effect that these lands we were holding it up for the committee report. are ceded to the United States for the benefit of the inhabi CHAIRMAN: Could you read that? tants of the Hawaiian Islands. That is the way they hold title now to these lands which have not yet been set aside. RICHARDS: I could read the full section. Later on in this very same H. R. 49, you will find provi CHAIRMAN: Could you read the full section? Cion to the effect that the United States shall continue to hold title to these lands which have not been set aside for RICHARDS: The section is, “Section 1. The United a period of five years after the admission of Hawaii into States shall be vested with or retain title to or an interest the Union, and during that period of five years, a Joint Com in or shall hold the property in the Territory of Hawaii set mittee of the Senate and the House are to determine the final aside for the use of the United States and remaining so set disposition of these remaining lands. Meantime, the State aside immediately prior to the admission of the State.” And of Hawaii will have the right under the terms of this H. H. 49 653 JULY 6, 1950 • Morning Session to select 180, 000 acres, and those lands are to be vested in possible that the Interior Department may construe it another. the State of Hawaii. What remains over, if they are not dis However, so far as those of us who have examined the pro posed of within the period of five years, they’ll all become posed amendment, we have no doubt that when it comes down vested in the State of Hawaii. to brass tacks the Senate of the United States and the House Now it is our contention, those of us who have made a of Representatives will recognize this problem for what it study of this problem, that we can urge before that Joint is. The title of the United States is a title in trust for the Committee of Congress that these remaining lands, those use and benefits of the inhabitants of the Hawaiian Islands. remaining after the 180, 000 acres have been set aside, That is our position and we are going to stand by it. really belong to the people of Hawaii because the title, as CHAIRMAN: Satisfactory, Delegate Rice? I said, in the United States is one only in trust. Meantime, the laws, the land laws will continue under the terms of the RICHARDS: This particular section of the proposal still H. R. 49 and under the terms of the Constitution as we are ignores this new amendment that was In H. R. 49. It writing it today, and may be disposed of, exchanged, leased specifically states it’s only lands that are set aside for the and all the revenue, proceeds that arise from any disposition use of the United States and remaining there and does not of those lands or any leasing of those lands become the discuss the public domain at all. property or the revenue and proceeds of the State of Hawaii. KAUHANE: I believe that we should defer action on this Therefore it seems to me that we have a good thing to present amendment so that many of us would be familiarized as to to the Joint Committee of the Congress when the question its intent and purposes. I believe back in 1946 when the is brought to their - - considered by that Joint Committee. delegation was sent to Washington to appear before the public CHAIRMAN: Delegate Heen, couldn’t we incorporate that lands committee on the question of statehood for Hawaii, the thought of what you just expressed in our Committee of the same matter was brought to the attention of the delegation, Whole report? and Senator Heen at that time strenuously objected to its adoption or inclusion in H. R. 49. I again see the same HEEN: Could be. phrase or provision included in the present bill that is now CHAIRMAN: Are you ready for the question? pending before Congress and I think it is only proper that further time be had so that all of us would be satisfied and H. RICE: It seems to me that the point that we could bring would be clear in our minds when we vote for the adoption out—I’m sure that Delegate Heen would agree with me—is of this proposed amendment. the case of Texas where Texas was a republic and owned all their lands before they became a part of the United States. CHAIRMAN: Just to avoid any delays, we had our three There’s no question, there are no federal lands to speak of top men, who know more about this than any of us, consider in Texas. They are all Texas lands. The same would be it carefully over the weekend with Delegate King and this is true here in Hawaii. the mildest they could come from what came from 49. HEEN: That’s correct. When the Republic of Texas KAUHANE: I grant that is true; but at the same time, we submitted to the Union, they kept all the lands that the who are so close to the people and not up on the higher bracket republic owned except those that had been set aside for are concerned about this matter, so that when we vote we military purposes and other national purpose, and those want to know what we are voting for. lands did not become part of the public domain of the United KELLERMAN: I would like to ask a question. Does not States. And in that connection, it is our firm belief, firm this language in words renounce our interest as beneficiaries conviction, that public lands of the Territory of Hawaii or in the lands held in trust for the people of Hawaii? Is not the Republic of Hawaii did not become the public domain of that what the language says in spite of what we would like to the United States. They became public lands that were turned have it say? Isn’t that what it says? over to the United States for the benefit of the inhabitants of the Hawaiian Islands. CHAIRMAN: Well, that’s what Congress is asking us to do. ASHFORD: Since Texas has been mentioned, I mention BRYAN: I’d like that question to be clarified somewhat. also Alabama, the lands of which were given to the United Are you speaking of the amendment offered this morning or States to be held in trust pending the formation of a state. the amendment - - the last amendment to H. R. 49? CHAIRMAN: Any other addition? Are we ready for the KELLERMAN: I gather that the amendment offered this question? morning was to conform with the requirement of an amend C. RICE: In the hearings at Washington—most of you ment in House Bill 49. have this, turn to page .22—where Senator Heen addressed BRYAN: That is not correct, as I understand it. the committee, you note there that the senators there asked Senator Heen quite a few questions. I think it would be KELLERMAN: Well, what is this? What is this we are advisable for all of us to read this over again so that we renouncing? would know just where we stand. I don’t want to see lands BRYAN: This is actually a perfecting amendment. .1 given just to get statehood. I think it’s a pretty big price. think that Delegate Richards could probably explain the I want to be sure that this is enough in this proposed amend actual need for this change. As far as the last amendment ment so that we could argue it with the Department of in H. R. 49 appearing in Committee Redraft C or whatever Interior. I leave it to those attorneys that drew this. First they call it - - time I saw it, I read about it in the papers, the first time CHAIRMAN: We don’t disregard it and yet don’t accept it I’ve seen this amendment. BRYAN: That is not concerned with this at all. This ANTHONY: There Is no doubt about the attitude of either concerns the lands that are already set aside for the use of the Senate of the United States or the House of Representatives. the federal government, this particular amendment that we In the recent hearings, as in hearings of 1946, those respec have before us this morning. tive bodies have taken the position that it is not the Interior Department that’s going to answer this question. It is the KELLERMAN: I think this question is so serious that we Congress of the United States, and they were very encourag had better postpone it until we have the draft of what we are ing to the delegates who went forward in 1946 as well as those approving in full before us and where the amendment applies of us who went on recently. This amendment does have in and what it means. I don’t think we should pass on it in this it an inconsistency. We construe it one way, and it is form. 654 AGRICULTURE, CONSERVATION AND LAND ANTHONY: I agree we should not hurry into it, but just to decide whether it shall return to the State of Hawaii or in order that the delegates may see a little more clearly what remain in the United States. Is that not correct, Mr. Chair the problem is, the last reprint of H.R. 49—it’s entitled man? Committee Print C dated June 26, 1950— laid down a new condition. Now if the delegates can find that particular HEEN: That’s correct. reprint, if you’ll turn to page 12, and the material that is KING: So without arguing about too vital a matter, I would in the large caps is the new material - - go along with Senator Charles Rice’s remark that we don’t CHAIRMAN: That was also published in the paper, I want to pay too high a price for that. In the meantime, I re think. quest that Rhoda Lewis, the assistant attorney general, give me a synopsis of this new change in H. R. 49. We’ll discuss ANTHONY: - - and that says that “Said State and its it with those who are familiar with the subject, especially wit! people do agree and declare that they forever disclaim all Delegate Heen and Delegate Anthony and Delegate Tavares, right and title to all lands, title to which is held by the and then perhaps write to Senator O’Mahoney, Senator Cor United States or is subject to the disposition by the United don and our counsel in Washington, former Senator Burke, States.” and to Delegate Farrington, and express our point of view Now reading that section together with the subsequent with regard to this change in H.R. 49. There is a possibility sections of H. R. 49, setting up a joint committee which that it could be amended on the floor of the Senate or even in will make disposition of the lands after the five year period conference, as after the Senate has passed H. R. 49, it will and the other provisions to the effect that lands set apart have to go back to the House for agreement to the amendment. by executive order of the governor or the President to the So I feel that we shouldn’t delay action at this time on this United States shall remain in the United States, we come particular matter. upon an apparent conflict. Now we are not providing in this amendment precisely the broad proposition that we disclaim CHAIRMAN: And if any delegate, such as Kauhane, wants title to all lands subject to disposition by the United States. to change this language, there would be opportunity later on. We are not doing that. It is the view of the lawyers that ex KAUHANE: That’s what I’m afraid of, changing at a later amined it that this is an inconsistency in the draftsmanship, date; we may not be able to do so. This amendment, if and that we might, very well take the position that this partic accepted, is - - I think merits a serious consideration by the ular section has to do with lands that are set apart to the delegation. For instance, the question of our income-bear United States by executive order. It does not interfere with ing property which may be vested with the United States the operation of the joint committee and the five year provi government is the concern of the people of this State of Hawaii sion, pursuant to which we may get all of these lands back. If they are going to take away our income-bearing property, And, therefore, the proposed amendment has been watered then we should be concerned about it. If they are going to down, so to speak, not to comply with the inconsistency that give us the pahoehoe land, we also should be concerned about is found in Committee Print C. In other words, we wfll it, too. ultimately go to the Congress, present our case as to what CHAIRMAN: I think there have been - - the disposition of these public lands will be, and I feel sure that we’ll get a fair break before the Congress. KING: May I interrupt Delegate Kauhane to show him that This amendment probably was the work of the Interior the revenue from the domain would retain - - would be re Department. There has been in the solicitor’s office a tained by the State of Hawaii. Is that not correct? certain individual who is consistently putting provisions in CHAIRMAN: And I want Delegate Kauhane to realize there H. R. 49 which neither House nor the Senate of the United was a great deal of thought put on that over the weekend. States were ready to accept. This particular provision came The attorney general has been working on it for several days in after the delegation had left Washington, after we were and the committee has been concerned about it very much. assured that everything was agreed upon and nothing but certain minor perfecting amendments, so called, were to KAUHANE: I think we all are concerned. We all are be adopted. I think it’s the best we can do under the circum concerned because in 1946, again when this question came stances. I don’t think it’s going to jeopardize our case with up before the delegation that was sent by the legislature to the Congress. appear before the public lands committee, the question of our income-bearing properties were considered and were HEEN: What we are really doing here is to disregard thrown into the faces of those who appeared in behaif of this new provision in H. R. 49. Hawaii to request statehood. So much so that Senator Heen KING: The adoption of this amendment in Committee of in his statement uttered that he would not sacrifice statehood the Whole as an amendment to the original proposal will not by the giving up of our public lands, the income-bearing bind the Convention’s final action. The purpose of the chair properties. And that public lands committee forgot about man of the Committee on Agriculture, Conservation and this particular provision that is now embodied in the redraft Land is to request the Committee of the Whole to adopt this of H. R. 49. Certainly they had some gentleman’s agreement and then to rise and report progress and ask permission to in 1946, and when we went back there just recently, the same sit again. Then completed prints of Committee Proposal matter should have been brought to the attention of the dele No. 27 will be available to every delegate before final ap gation that appeared in Washington and the same request, proval of the committee report and the proposal is requested. immediate statehood for Hawaii. Why did they wait until I think that it is correct to say that the selection of the we left Washington and this matter was brought up? The 180, 000 acres out of the public domain, to be vested finally presentation of facts that was presented by the learned mem and completely in the State of Hawaii, remains unchanged. bers of the delegation that appeared in Washington certainly Is that not true—may I direct my question to Delegate Heen— were able to answer any question of this type that was brought that the selection of the 180, 000 acres is not changed? before their attention. I’m concerned about the taking of our income property HEEN: That’s correct. That provision is still in the by the United States government, whereby they will leave H.R. 49. us pahoehoe lands on the Territory of Hawaii. We certainly KING: May I akk another question, just to clarify it? It would be beggars when we give up our income-bearing prop is also true that the balance of the public domain outside erties to the United States government. Rather than con of the area that we select will remain in the name of the tinuing in that case, I think we should hang on to all our in United States for this period of five years for a committee come-bearing property, and we should take back all of the 655 JULY 6, 1950 • Morning Session properties that we have given them on the executive order, We want to know what we are agreeing to, so instead of either by the governor or by the. President. We should re saying “the act or resolution admitting this State to the Union,” quest the taking back of those properties. we mention “the act or resolution providing fnr the admission of this State to the Union.” That’s the only change. CHAIRMAN: I think that’s what Committee of the Whole It means, in other words, that it’s H. R. 49 we are talk report is going to indicate. ing about and not some new act or resolution that they may pass in the future admitting us to the Union. It’s simply a SHIMAMURA: I’m in agreement with the original amended perfecting amendment. As far as “interest” and “title” is Section 1, also with the proposed amendment to Section 1, concerned, I think if Delegate Shimamura were to study the Part il, but I see the argument of the last speaker and also matter a little further, he would agree with us that we don’t of the lady delegate from the fourth district, Mrs. Kellerman. want to give United States title to all land that is now being As she put it, she understands that the United States is hold set aside for them because, as Delegate Anthony has said, ing certain property in trust for the people of Hawaii. Now they may not have full title. They may have only a limited this Section 1 as proposed speaks of interest, not only title. title, which is an interest in the land, and not the full interest. I’m wondering if their objection would not to a large extent And Delegate Shimamura’s amendment will give them more be met if we would delete the word in the second line of than rather than less interest in the land at the present time. Section 1 of Proposal No. 27, “or an interest in.” If we deleted those words, I think we get around the objection that ANTHONY: There is one further thing I’d like to assure we are possibly surrendering our beneficial interests in Delegate Shimamura. The section of the amendment to H. these properties and not only the legal title. R. 49 that has caused the trouble, which is on page 12 of CHAIRMAN: I’ll let Senator Heen answer that. Committee Print C—it’s entitled “7 “—is a command that we put this disclaimer in the Constitution. Now, we have HEEN: Those words are necessary there because the not done that. We have not complied with the command of United States does have easement over some of these public Congress. In other words, we’re willing to take our lands. That’s an Interest In land, and does not have the chances. So, not having complied with that disclaimer, I absolute title in the land over which these easements lie. see no reason why we shouldn’t vote on this amendment. Therefore, those words must be retained. SHIMAMURA: I don’t quite agree with the learned pre SHIMAMURA: I see the learned judge’s point there, but vious speaker, Delegate Anthony - - Delegate Tavares. I see nowhere in H.R. 49 “in any interest” or “interests.” Judge Heen made it quite clear that under the Newlands They only refer to title. I think by putting in these words Resolution, the United States government is holding in trust “of interest,” we are surrendering much more than we ex for us~ It has the legal title to certain properties, and is pected to. holding in trust for the people of Hawaii certain lands. If ANTHONY: On page 14 - - I want to straighten out Dele that’s true, they have the legal title, the bare legal title, gate Shimamura. On page 14 of Committee Print C, “United but beneficial interest is in the people of Hawaii. Therefore, States or the State of Hawaii or, subject to the Constitution if you put in the word “interest, “ you will give it more than and laws of said state, such political subdivisions, as the bare legal title. case may be, shall retain or become vested with absolute interest thereto, or an interest therein,” that language is CHAIRMAN: Are there any other disturbing thoughts? perfectly proper and quite necessary because they may have less than a fee simple interest; they may have a leasehold TAVARES: I think the delegate is laboring under a mis interest; they may have an easement; and so on. The con apprehension of what this Section 1 applies to. I think it’s troversy centers about to what lands does this disclaimer already been said, but may I again repeat. Section 1 that apply. We say that it does not apply to the entire domain, we are amending applies only to lands, the legal and bene and we have not accepted in this particular redraft of the ficial title, both of which have now been transferred to the amended proposal the broad construction. We’re going to United States by executive order, and nothing else. It have to fight that out with Congress because if that had been doesn’t refer to the land we are going to choose from, and - - if we’d accepted that fully we would have surrendered to all the other provisions. It relates to land we have given the language that I read to the body previously. We have not for Pearl Harbor. Do you think the United States govern done that. We’ll fight it out with them. We’ll tell them we ment is going to give Pearl Harbor back to us, where they are not going to do that because the title of the United States built millions of dollars worth of docks? Of course not. is a technical title only, held in trust for the people of Hawaii. This Section 1 applies only to that kind of land where we have expressly practically quit claimed all our interest in SHIMAMURA: May I just point out to Delegate Anthony the land either through the presidential order, under act of that that section he refers to, “or interest in,” refers speci Congress or our governor’s order, and turned it over to the fically to the five year period after which title shall become United States in absolute title for the United States’ use and vested in the State of Hawaii or its own political subdivision purposes, not to other lands. or the United States. It doesn’t refer to the title of which we say is in the United States. That’s an altogether differ ASHFORD: I would like to ask the last speaker a question ent section. as to whether those lands at Pearl Harbor, such lands as those at Pearl Harbor, are not expressly excepted by the H. RICE: I think the President made a good suggestion, Newlands Resolution from the trust. that we rise and report, recommending the adoption of this amendment and have same printed. That’s a good Idea, so we have it before us. Is that your idea, Mr. President? CHAIRMAN: Delegate Tavares, can you answer that? While you’re looking that up, I’ll recognize Delegate Ara TAVARES: I agree with that suggestion. I think that if shiro. members had before them this Section 1 which we are amending and studied it, they would see that the amendment ARASHIRO: Do I understand that the amendment made we are making is a form or a perfecting amendment. There’s in H. R. 49 is an amendment made in the Committee on In no change in substance except this, that as it now stands, as sular Affairs in the Senate and that It has not been acted we have already approved it, it refers to an act or resolution upon by the Senate or the House? admitting this State to the Union. Now that may be the pres ent H. R. 49 or it may be some other act or resolution. CHAIRMAN: That’s right. 656 AGRICULTURE, CONSERVATION AND LAND HEEN: May I read from the Newlands Resolution briefly? CHAIRMAN: I think so, too, but I think it’s better to let The Republic of Hawaii agreed and transferred them air it out. to the United States the absolute fee and ownership of all SAKAKIHARA: May I ask the delegate from the fourth public, Government or Crown lands, public buildings or district, Delegate Anthony, that if we are to accept his edifices, ports, harbors, military equipment, and all views on the proposed amendment to Proposal No. 27 as other public property of every kind and description be offered by Delegate Richards, which will not conform with longing to the government of the Hawaiian Islands, together Section 7 of the Committee Redraft C of the 81st Congress, with every right and appurtenance theteunto appertaining by not specifically conforming with a disclaimer of the lands The existing laws of the United States relative to owned by the people of this Territory, and in the face of public lands shall not apply to such lands in the Hawaiian that requirement, namely Section 7 of H. R. 49, and the Islands, but the Congress of the United States shall enact further fact that the Congress of the United States and the special laws for their management and disposition; pro President of the United States, who will later review the vided, that all revenue from or proceeds of the same, ex Constitution of Hawaii, may reject or disapprove the Consti cept as regards such part thereof as may be used or tution which we may adopt here in Convention? occupied for the civil, military or naval purposes of the CHAIRMAN: Anthony, the answer is yes, isn’t it? United States, or may be assigned for use of the local government, shall be used solely for the benefit of the ANTHONY: The answer is no. The answer is no inhabitants of the Hawaiian Islands for educational and because this seventh section is in conflict with subsequent other public purposes. sections in H. R. 49. We as lawyers can construe that as applicable to those lands which are set apart by executive Not only do we have this document to sustain our position order to the United States. Of course, as to those lands, that we are the real owners of these lands, we have also we disclaim interest in Pearl Harbor. We have no use for committee reports of the Senate committee and the committee Pearl Harbor, and the post office or any of the other federal of the House dealing with the provisions of the Hawaiian Or army reservations. But the difficulty lies in the language ganic Act relating to public lands, where they speak of this that is used in the amendment. It is susceptible to two inter title as being a technical title, and the real title as being pretations. We are taking the one which is favorable to the in the people, the inhabitants of the Hawaiian Islands. people of Hawaii, and we’re going to stand by it, and we can ARASHIRO: May I. . . [part of speech not on tape] and then convince any Senate or any House of Representatives that we have here the amendment submitted by Delegate Richards, we are right about this. which is an amendment to conform with the amendment that CHAIRMAN: But technically we actually are not conform wasmadeinH.R. 49-- ing to this other construction. CHAIRMAN: Not to conform. ROBERTS: I haven’t spoken on this question. I’d like to make a few observations. I think our job in the Convention ARASHIRO: Anticipate such an amendment if there should here is to draft a Constitution for the sovereign State of be one in a resolution or an act passed by Congress. Hawaii. We get a Redrnft “C” or a Redrnft “D” or a Re ANTHONY: The answer to that is no. The real purpose draft “F.” Those are committee proposals. You don’t of this amendment was to provide for the disposition of the know what’s going to happen to them on the floor of the Senate. lands whether we were admitted by joint resolution or by the You don’t know what’s going to happen after they have adoption of H.R. 49. been adopted on the floor and when they go back to joint con ference of the House. I think we ought to pay no attention CHAIRMAN: Delegate Anthony, doesn’t it leave it wide open so that the lawyers could contest it if they tried to push to the redrnfts and drafts. I think we ought to write our the - - Constitution as we think it ought to be written. We think we’re entitled to statehood. We don’t have to beg for it. We ANTHONY: We have not complied with the mandate of don’t have to go around and ask them to tell us what they the seventh section of H. R. 49 and we don’t propose to. want us to put in. Let’s put in what we think belongs in CHAIRMAN: That answer your question? I also would there and let’s go in and say we are entitled to statehood like to call to your attention that Papa is always lenient to the and let’s get it. most recent child and particular if it comes in the old age, It seems to me that we ought to continue with our job and and I see no reason why we have to be too suspicious that we ought to complete it. We ought not to do anything which Congress is going to be too hard on Hawaii. would thwart the possibility of getting statehood, but let’s do the best we can with what we have before us. Let’s not ARASHIRO: Does that mean that we are ignoring this wait until we get all possible redrafts and try to conform section of H.R. 49, as far as conforming with H.R. 49 in our own language with something that may be incomplete the Convention? We are not - - and certainly may not be final. CHAIRMAN: Well, I think Anthony made it clear that we I have, for example, some objection to the present Re are not conforming. draft C. It says specifically that we have to submit our Constitution to the Congress of the United States for their ANTHONY: We are not. That particular section says approval. There is no precedent for that. I don’t see why that we shall put in the Constitution a provision that we we have to go to the Congress of the United States and have disclaim all title, and we’re not doing that. them check it over for us. Other procedures have been for CHAIRMAN: That’s what this amendment is refusing to the President to look over the Constitution and to adopt it. do. It seems to me that we ought to stick up for our rights and fight for them if we think we’re right, and not to give in on BRYAN: I think it should be pointed out that that is a every little point. separate subject entirely. This amendment is, as I said CHAIRMAN: You have no objection to the present amend before, and I think Delegate Tavares pointed out, a perfect ment? Any other questions? Are you ready for the ques ing amendment and nothing more nor less. The consideration tion? Would anybody want to make any other objections? of the latest revision of H. R. 49 could come at a later time Question. All those in favor of accepting this amendment when we have more information and have more time to study say “aye.” All those opposed. Carried., it. Therefore, I think that much of this discussion has been Shall we report progress? Will somebody make a more or less out of order. motion? 657 JULY 10, 1950 • Morning Session BRYAN: I move that the committee rise and report prog fair in its dealings with the Territory, and the members ress, and ask leave to sit again to consider the printed believed Congress would continue to deal in this way with copy of the amendment. the State of Hawaii.” In my opinion, if we go to the Congress with a Constitution that expresses our wishes and not a sub RICHARDS: I second the motion. mission to the ideas written in by some of the Department of CHAIRMAN: All those in favor say “aye.” Opposed. Interior or perhaps even one or two of the members of Con Carried. gress, we will be received as favorably as though we put in such a provision as this. JULY 10, 1950 • Morning Session RICHARDS: There was a great deal of discussion regard ing this provision in the committee. Also, if you remember, CHAIRMAN: The Committee of the Whole kindly come the Committee of the Whole in going into this matter spent a to attention. I recognize Delegate Richards. great deal of time. I forget how many pages of transcript. CHAIRMAN: 139. RICHARDS: I move that the Committee of the Whole Re port No. 22 be passed, and that Committee Proposal No. 27 RICHARDS: Well, 139 was the total amount of time pass second reading. spent by the Committee of the Whole in going into this thing. I don’t think there is a single member of the committee that HAYES: I second that motion. likes it, but it has been pointed out by the attorneys that it CHAIRMAN: Motion made and seconded. You have all was necessary to include some such statement; otherwise, had opportunity to read over the report. Are there any it would be in complete violation of H. R. 49, and therefore questions? it would be out. ASHFORD: Reluctant as I am to throw a monkey wrench FONG: I want to say as a member who went to Washington, into the works, I do feel obliged to express again my un speaking before the Senate Committee on Insular and Interior willingness to concur in any report or in any action that gives Affairs, we were more or less assured by the committee the United States a blank check to impose conditions upon the that they didn’t want to tackle the problem but would await return of our lands or recognizes the right of the United the entrance of the Territory of Hawaii into statehood, and States to determine how those lands shall be dealt with. after we have had our two senators in Washington, within Alaska is being given millions of acres by the United States that period of time which is allotted to us by the statute, which paid for Alaska and owned every square foot of public about five years, that they will be able to get together with land. All the public lands of Hawaii were owned by Hawaii our senators and then decide on the future of the lands. when we went into the Union and have been held by the There was no intention there of taking away our lands, but United States in trust for administration pending our becoming to leave it until we had our senators over there, and then a state. I shall therefore, as usual, vote against the report. at that time to decide on disposition of the lands. CHAIRMAN: I know we all have the same objections, AKAU: I wonder if Mr. Tavares would answer a question but is there anybody else who wants to express it? Are you for me, please. This point has been raised here several ready for the question? If not, all those - - times. May I ask, other states before they became states of the Union, did they have the same proposition regarding NIELSEN: I want to express the same objection. I don’t the land situation, like in Arizona, in Oklahoma, New see why we should say “statehood at any price” to Uncle Mexico? Sam. I think we should say, “This is what we want.” When we say it the other way, why, we are going to get whatever TAVARES: Most of the states that came into the Union they decide to give us. after the original 13 didn’t have any public lands. Congress retained them, and made a gift of certain public lands to TAVARES: I think the people that stand up and make the states. There wasn’t that same problem. They didn’t that objection owe it to this Convention to stand up and own their land before they came in. Now Texas, however, point out wherein we have written that blank check. I think did retain its public lands and ceded certain lands to the they owe it to this Convention. Where? What are the words United States, but it kept its own lands. But, except for that give that blank check to the United States, “statehood Texas, I believe that most of the other states, as I say, didn’t at any price”? have that problem, unless you say the original 13 colonies, ASHFORD: I’ll be glad to do so. Section 2 of Part II of and there they had some pacts about division of certain other this report. “Any trust provisions which Congress shall land in certain states in the future. But in this particular impose upon the admission of the State with respect of the case, of course, all of the lands were ours before we came lands patented to the State by the United States, or the in and they were impressed with the trust with certain proceeds or income thereof, shall be complied with by exceptions. Some of those exceptions - - one of those ex appropriate legislation.” ceptions being lands set aside to the use of the United States for purposes such as navy yard and so forth. TAVARES: That’s not the report. Is it Section 2? Page I think that this provision isn’t as dangerous as it sounds 2 of what? because it applies only to lands patented to the State by the ASHFORD: The committee - - Here it is. That’s the United States; in other words, land that the United States report that I have. is going to give to the Territory. As several drafts of H. R. 49 have - - previous drafts have shown, those trust TAVARES: But the delegate said report. provisions are usually of the nature that we shall use the ASHFORD: Well, that is - - I’ll point it out in the report. lands for the benefit of the people and so forth. I think previous to that time, this Part II as it originally read set TAVARES: What page of the report is that, Mr. Chairman, forth the type of provisions that are usually included or I’d like to ask? contemplated in H. R. 49. The income and so forth shall ASHFORD: That’s on page 9 of the committee report. be held or used for one or more of the following purposes And may I say further in regard to the committee report, as the legislature may provide, for the support of public reading from it, “Although this section seemed to put full schools or other public educational institutions, and so trust in the Congress of the United States, this was believed forth. We had such a provision in the Newlands Resolution justified since in the past Congress has always been very and in the Organic Act, and I don’t think they are going to 658 AGRICULTURE, CONSERVATION AND LAND be very different from that. I doubt very much, and I its lands. The Supreme Court has recently ruled apparently don’t think there has been any indication that insofar as the that the sovereignty carries ownership and that the Federal lands transferred to us are concerned, Congress is going government owns the submarginal oil lands of Texas. to put any undue strings on it except that we must use it I think it would do us well to think twice before we re for public purposes. nounce in general terms or agree in general terms to any CHAIRMAN: I think it’s amply clear that none of us are thing that might be imposed with respect to our Hawaiian willing to give away the lands, and I think we have to assume lands. the United States and men of good will are not going to cheat ANTHONY: There seems to be some misunderstanding us of any land. It’s on that basis, I believe, that all of us as to what is contained in this proposal. We have expressly accept the report. Now, is there any more discussion? not done what Delegate Kellerman says we should be careful Are we ready for the question? about. There is a provision in H.R. 49, Committee Print C, KELLERMAN: I’d like to raise a word of caution. I’ve which asks us to put into the Constitution this disclaimer, and worked in Washington in the same building with the Interior we have not done it. That’s why I’m in favor of the report. Department. I’ve seen standard government bureaus and We’ll tnke our chances with the committee on a proper con I’ve learned something of their psychology. Anything that struction of H.R. 49. they add to their jurisdiction or retain in their jurisdiction CHAIRMAN: I think we can, Delegate Kellerman. We builds up their offices. I say this in all sincerity. I think can also bank on the ability of our lawyers to mnke this it’s a dangerous thing to assume that you can declare away very clear if a fight comes up. your rights and expect support of a government office to Are there any other questions? If not, I’m going to put give them back to you. the question. All those in favor say “aye.” All those op I’d like to call to the attention of this body a recent posed. Very wenk no. Passed. Supreme Court decision which I do not put in the same cate gory, but to show how dangerous it is to renounce, a recent RICHARDS: I move that this committee rise and report progress and recommend to the Convention the passage of Supreme Court decision on the ruling of the Texas marginal Committee Report No. 22 and Committee Proposal No. 27. land oil properties. Texas was an independent country when it became a part of the United States, with complete sover HAYES: I second the motion. eignty. It gave up a degree of its sovereignty to become a CHAIRMAN: Motion made and seconded. All those in member of the Union. It did not give up the ownership of favor say “aye.” Opposed. Carried. Debates in Committee of the Whole on HAWAIIAN HOMES COMMISSION ACT (Article XI) Chairman: W. HAROLD LOPER JUNE 7, 1950 • Morning Session gress, there would be an extremely ambiguous legal situation leading to endless confusion. We could no CHAIRMAN: Committee of the Whole will come to order more adopt a Constitution from which all reference to for consideration of Committee Proposal 6 and Standing the Hawaiian Homes Commission Act was excluded, Committee Report No. 33. I recognize the chairman of the than we could adopt a Constitution from which all ref committee, Delegate Hayes. erence to the public debt of the Territory of Hawaii was HAYES: I hope you have your report with you this excluded. During some 30 years of operations under this morning, Standing Committee Report No. 33 on your desk act, very extensive rights, duties, privileges, immunities, and Proposal No. 6. Your committee considered a number powers and disabilities have arisen by way of leases, loans, of proposals, 51, 52, and 156, and also Resolutions 19, 21 contracts and various other legal relationships. and Petitions 4, 8, 9, 10, 11, 12, 13, 20, 21. We also According to the records of the Hawaiian Homes Com received many miscellaneous communications from indi mission, as of December 31, 1949 there were 1, 337 viduals and organizations, a number of them opposed to the lessees of Hawaiian Home lands, with leases covering inclusion of the Hawaiian Homes into the Constitution and 8, 064 acres and a total population on such lands of 6, 517 a large number for the inclusion of the Hawaiian Homes into people. 5,480 acres of these lands were planted in pine the Constitution. apples under contract to several corporations, domestic [Reads from Standing Committee Report No. 33] and foreign. In addition, 103, 150 acres were under lease through the Commissioner of Public Lands to private After careful consideration of all the above proposals, individuals. The Hawaiian Homes Commission had out resolutions, petitions and communications, your commit on loans to lessees the sum of $1,000,199.74 as of tee makes the following recommendations: December 31, 1949. Recalling of land from the Commis 1. That the committee favors the privisions of Propo sioner of Public Lands, subdivision and developing of lands sal No. 52, with certain amendments and submits here construction of improvements, and promotion of private with a committee proposal for introduction on the subject enterprises by lessees are all activities presently engaged matter contained in said proposal. The committee re in by the Hawaiian Homes Commission which are in various commends that Proposal No. 52 be placed on file. phases of completion and promotion. 2. That Proposal No. 156 be placed on file. It is therefore nonsense to propose, as some of the 3. That Resolution No. 19 and Resolution No. 21 be petitions referred to this committee have proposed, that placed on file. this Convention exclude from the proposed State Consti 4. That Petition No. 10 and Petition No. 11 be placed tution all reference to the Hawaiian Homes Commission on file. Act, 1920, as amended. Something must be said and done Your committee - - I’ve already repeated, I believe on about the Hawaiian Homes program in the transition from Number 4, 8, 9, 12, and so forth. Second page. a territory to a state. Your committee has held eight meetings on the matters In recognition of this problem, the Hawaii Statehood within its jurisdiction. It has had the active assistance Commission recommended, and H. R. 49, now pending of Miss Rhoda Lewis, deputy attorney general, Mr. Dan in the United States Senate, now contains a provision that Ainoa, executive secretary of the Hawaiian Homes any convention formed under the provisions of H. R. 49 Commission, and Mr. Victor Houston, chairman of the to draft a State Constitution shall provide in said consti Hawaiian Homes Commission. In addition, your com tution. mittee held public hearings on the proposals and reso And the next paragraph relates to the section that is in lutions before it at Keaukaha on May 11th, Honokaa on [H. R.] 49, and I don’t believe I shall read that section unless May 12th, Waimea on May 12th, Hoolehua on May 13th, the members of this Convention wish that I should read it. and Honolulu on May 18th. Your committee believes We turn to page 4 - - 5. that it has gone into the question before it thoroughly and with full opportunity for all interested persons to be H. R. 49 passed the United States House of Represent heard. The public hearings were all well attended and atives with the quoted language included. According to the committee has had the benefit of the views of almost recent news reports from Washington D.C., the Senate every person in the Territory of Hawaii who is informed Committee on Interior and Insular Affairs has already on the subject of the Hawaiian Homes project. considered amendments to H. R. 49 and has made certain The Hawaiian Homes Commission Act, 1920, as amendments, none of which change or affect the quoted amended, is presently part of the basic law of the Terri language. There is every reason to believe, therefore, tory of Hawaii on the same basis as the Hawaiian Organic that H. R. 49 as finally enacted will contain this require Act. It is an act of Congress and can only be amended ment. If for any reason H. R. 49 should fail to be enacted or repealed by Congress. If Hawaii were to remain a into law, we have before us nevertheless the clear intent territory, the Hawaiian Homes Commission Act would of Congress that any constitution for the proposed State remain in force. If Hawaii were to become a state with of Hawaii shall provide for the continuation of the Hawaii out any mention being made of the Hawaiian Homes an Homes program, and even the exact language which Commission Act or the Hawaiian Homes lands in the would be acceptable to the Congress in accomplishing this State Constitution, or in any enabling act passed by Con- purpose. 659 660 HAWAIIAN HOMES COMMISSION ACT Proposal No. 52 is a recognition of this anticipated causes of this evil was the complete change in the systems mandate by the Congress. As introduced, it comprised of land tenure whereby the Hawaiians were granted fee three sections. The first section adopts the Hawaiian titles to land which they promptly alienated to a large Homes Commission Act, 1920, as amended as a law of extent through a lack of knowledge and understanding of the State and the language of H. R. 49 with such paraphrases the new land laws. An additional cause was the fact that as were necessary to fit it into a state constitution and to the people did not actually receive one-third of the domain provide for the contingency that this language of H. R. 49 which was supposed to have been set aside for them at might be amended in some detail. The second section the time of the Mahele, so that many persons had no land accepted the compact with the United States as a compact of their own at all when the change from feudal land tenure or as a trust and agreed to carry out the spirit of the to common law land tenure was made. Hawaiian Homes project. The third section prohibited As a consequence of the agitation for this program, any legislation conflicting with the provisions or purposes the Congress finally enacted the Hawaiian Homes Com of the first two sections. mission Act in 1920. The original act provided for an Your committee amended the first two sections of the experimental period of five years on certain lands on proposal in certain technical aspects without changing Molokai. their basic purpose and deleted the third section as un necessary. The amended form of Proposal No. 52 I’d like you all to pay attention to this paragraph because submitted herewith will comply with any requirement of I believe it will clarify some of the criticisms that have the Congress as presently discernible and will accomplish been made. the purposes desired under H. R. 49 as that bill now reads. Proposal No. 156 seeks to accomplish the same pur No further lands were to be colonized unless the Con pose by way of an ordinance instead of by way of incor gress and the Secretary of the Interior of the United States poration directly into the State Constitution as a part there were satisfied that the first project was a success. This of. Your committee considered this alternative approach first project was pronounced a success and the program carefully and decided to adopt the method of\Proposal No. approved for continued operation. The Hawaiian Homes 52 instead. Commission and the Hawaiian Homes program have been Your committee’s task, therefore, has been clear-cut part of the life of Hawaii ever since. from the beginning. It has not even been a legitimate Until very recently, there has never been any sugges matter for debate whether the Hawaiian Homes Commis tion that the Hawaiian Homes program should be dis sion Act should be continued in force. Congress required continued. Then the use of certain Hawaiian Homes lands that this be done as a condition of achieving statehood, at Waimea, Hawaii came up for discussion, and in the and has supplied the outline of the language it will accept ensuing argument, some few persons brought into the in the accomplishment of this requirement. question the very existence of the Hawaiian Homes Com mission Act of 1920. The arguments raised against the Nevertheless, in view of the offering of Resolutions act have been as follows: 1. it is unconstitutional. 2. It Nos. 19 and 21 asking the Congress to permit the liqui is discriminatory. 3. The Hawaiian Homes program is dation of the Hawaiian Homes program, and of the receipt a failure. 4. It is time to liquidate the Hawaiian Homes • of several petitions obviously intending the same results program. 5. A majority of the people of Hawaii are if somewhat inartistically worded, your committee did opposed to this act. go into the history, purpose and philosophy of the Hawaii The question of the constitutionality of the act was an Homes project in order to determine the desirability considered at the time of its original introduction. The of its continuance on the remote possibility that Congress attorney general of Hawaii, the solicitor of the Depart might accept a State Constitution which provided for the ment of Interior, and the Congress were satisfied that termination of the Hawaiian Homes project. the act is constitutional. These opinions are as valid The Hawaiian Homes program was conceived in Hawaii today as they were then. and officially proposed to the United States Congress by The act is not discriminatory. It is a very progressive Senate Concurrent Resolution No. 2 of the regular session, piece of legislation designed to aid an aboriginal people 1919, Tenth Legislature, Territory of Hawaii. The reso to survive the sudden impact of the new and highly complex lution petitioned the Congress “to make such amendments civilization on their lives. It was passed to meet a very to the Organic Act of the Territory of Hawaii, or by other real problem and the fact that this problem is not apparent provisions deemed proper in the premises, that from time today is the best evidence that the act is succeeding in its to time there may be set aside suitable portions of the purpose. In some of the Polynesian areas, western gov public lands of the Territory of Hawaii by allotments to ernment that took control enacted laws that no land could or for associations, settlements or individuals of Hawaii be alienated, as a measure of protecting the native people. an blood in whole or in part, the fee simple title of such In Hawaii, the effect of the Hawaiian Homes Commission lands to remain in the government, but the use thereof Act is to preserve only a very small part (approximately to be available under such restrictions as to improvement, one per cent) of the domain for the Hawaiians, and to size of lot, occupation and otherwise as may be provided permit the ready transfer of other lands. It would be for said purposes by a commission duly authorized, or more discriminatory to repeal the act. otherwise given preference rights in such homestead Those who claim that the Hawaiian Homes program is leases for the purposes hereof as may be deemed just and a failure are uninformed. The growth of the program suitable by the Congress.” from its inception to the present day is a matter of public Senator John H. Wise of Hawaii was the principal record and is a sufficient answer to this claim. spokesman and advocate for this program. With him So long as there are eligible applicants endeavoring to were many other leaders of the community including obtain Hawaiian Homes land, there is every reason for Prince Kuhio, Delegate to Congress. Their purpose in continuing the program. When no lands are left and when promoting this program was to rehabilitate the Hawaiian no applicants remain unsatisfied, then it will be time to people by encouraging them to go back to the tilling of raise the question of whether the Hawaiians have been the son. The evll sought to be corrected was the de fully rehabilitated. parture of the Hawaiian people from the soil and the The hearings, petitions and communications before consequent weakening of their structure of society under this committee have demonstrated beyond any doubt the impact of Western civilization. One of the basic that a majority of the people of Hawaii favor the inclusion 661 JUNE 7, 1950 • Morning Session of the Hawaiian Homes Commission Act, 1920, in the A. TRASK: What page is that, please? Of the report. proposed State Constitution. ASHFORD: Three. Then you have your copy and it gives you the names of A. TRASK: Three? those who supported the inclusion of the Hawaiian Homes ASHFORD: I listened to the report of the chairman, Mr. and I’ve been asked to read them: Council of Hawaiian Chairman. Civic Clubs on Oahu; West Maui Hawaiian Civic Club; Hawaiian Civic Club, Hawaii; Ewa Hawaiian Civic Club; CHAIRMAN: Delegate Ashford, page three, what para Nanaikapono Hawaiian Civic Club; Hawaiian Civic Club, graph? Hilo, Hawaii; Republican Party Platform; Republican ASHFORD: Well, the second long paragraph. Precinct Club, 13th Precinct, 5th District; Republican Precinct Club, 13th Precinct, 4th District; We the Women CHAIRMAN: The portion referred to is almost exactly of Hawaii; Women’s Division, Oahu County Committee Demo in the center of the page. cratic Party of Hawaii; Imua; Honolulu Advertiser; Hono A. TRASK: Well, however the committee’s thinking may lulu Star Bulletin; Maui News; Hilo Tribune Herald; Native be, is the lady delegate suggesting that we can defy the Sons; International Longshoremen’s and Warehousemen’s Congress in not putting in this compact? The committee - - Union; Daughters and Sons of Hawaiian Warriors; Honolulu Let me say to the delegate, as I said before when the com Chamber of Commerce; Molokal Community Association; mittee chairlady suggested the public hearings on the other Molokai Homesteaders Association; Nanaikapono Home islands, my position was that, what purpose could be sub- steaders Assocation; Halau 0 Keliiahonui; Hale 0 Na Alii served by having such hearings which would go into the very o Hawaii, Helu 6, Kamuela, Hawaii; Council of Hawaiian question that the lady asks? We are mandated to do a simple Homesteaders; Waimanalo Homesteaders Community Club; legal job and that is to file in legal language a proposal Keaukaha Community Association; Kuliouou Lions Club. whereby the people of Hawaii - - of the State of Hawaii would Proposal No. 52 enter in a compact with the United States Congress. That is the job. However, the committee has gone beyond that and that is [Committee] Proposal No. 6 now and to put before the Convention and seek to answer many as amended by your committee and as contained in the questions in the minds of many delegates here, who were committee proposal attached preserves the present not completely acquainted with all the ramifications of this situation, complies with the apparent will of Congress, act. and continues the recognition by the people of Hawaii of ASHFORD: Then I assume that the committee does not the justice of the original enactment of the Hawaiian choose to answer that question. Homes Commission Act, 1920. SILVA: I just beg to differ with the chairman. I’m for Signed by all of the committee. the embodying of this part in the Constitution, but I don’t Shall we go into the proposal? I would like to - - think we are mandated by the act because the act hasn’t even MIZUHA: I move for the adoption of the committee re passed the Senate and the Congress of the United States as port. yet. They may even delete it up there. I don’t know. I don’t think we are mandated. COCKETT: I second that motion. CHAIRMAN: It has been moved and seconded that we A. TRASK: Well, maybe that’s an inartistic word just adopt the report of the committee. then, but we are aware that as late as May 22, about - - a little more than two weeks ago, the last amendments that ASHFORD: I would like to ask a few questions of the were included did not at all seek to delete from the section committee chairman or, if she chooses, some other member the compact that was necessary to be written in. of the committee. Is it the attitude of the committee that in the event the Hawaiian Homes Commission Act were not DELEGATE: Mr. Chairman. written into the Constitution that it would therefore be re CHAIRMAN: Delegate Ashford still has the floor. pealed? ASHFORD: On that matter, may I call the attention of HAYES: Will you be kind enough to repeat your question, the delegates to the fact that in the amendments proposed please? by the committee, the Senate Committee on Insular Affairs, that provision was made that in the event the Constitution ASHFORD: Is it your position that if this act were not adopted by this body did not contain all the requirements of written into the Constitution, the result of it would be its H.R. 49 as the same may pass, if it does pass, that we could repeal? then be reconvened to deal with that matter. That’s just HAYES: Mr. Trask. because - - I say that because the question has arisen. I have some other questions I’d like to ask. Was the A. TRASK: The question goes beyond the scope of the reason that this proposal reported by the committee is committee’s job. However personally we may feel about it, divided into two sections In the Constitution rather than we are mandated by Congress under H. R. 49 to write into composed in one compact a desire to prevent its submission this Constitution a compact with the United States with the as a separate ordinance to the vote of the people? Was that people of Hawaii. And however we may feel individually the reason it was written into the - - proposed to be written about the situation, I think the inquiry is immaterial. into the Constitution? ASHFORD: May I call the attention of the gentleman to CHAIRMAN: Do you understand the question? the fact that that matter was discussed by the chairman of the committee right here when she was reading the report. A. TRASK: The proposal is divided really into two sections. There was sought to have in addition to Proposal A. TRASK: What section is the lady delegate referring 6, which was divided into two sections—and at this time I to? Of the report? think that for convenience they be numbered one and two, ASHFORD: Here. “If Hawaii were to become a state Committee Proposal No. 6. There was suggested a ordi without any mention being made of the Hawaiian Homes nance to be written by the Committee on Ordinances and Commission Act or the Hawaiian Homes land in the State Continuity of Laws, as the lady delegate recognizes. That Constitution — — matter was left after discussion as a legislative matter. 662 HAWAIIAN HOMES COMMISSION ACT The first section was drafted by the attorney general’s de In other words, all we are concerned about is within the partment to fully conform with the purposes of the act and realm of reason. There should be a sense of equal treat Section 2 was to conform strictly with the sense of a compact, ment. which is a common draft included in, I think, about 11 other states in their constitutions with respect to the Indian lands, ASHFORD: Well, is that limited to the realm of reason? and a compact with the Congress of the United States. Is that not so wide that the Hawaiian Homes Commission without consultation with the legislature could immensely ASHFORD: May I call the attention of the gentleman to multiply its staff and come in and the legislature, without the fact that in the present status of H. R. 49, the compact inquiring into the budget or anything else, be obliged to itself requires the adoption of the Hawaiian Homes Commis appropriate the sums called for? sion Act, 1920, as a law and that is separated from the com HAYES: From my own knowledge, the provision of the pact by the provisions of this proposal. Hawaiian Homes office is that, I believe, the receipts I have another question, Mr. Chairman. What does the from all lands come up to about between $135, 000 and last sentence mean? Does that mean that the legislature shall not have control over the budget of the Hawaiian Homes $140, 000 biennium. Isn’t that correct, Charlie? And if and when we needed any more money we went to the legis Commission? Does that mean that the Hawaiian Homes lature and asked the legislature to appropriate extra funds Commission staff can be expanded to the - - without the to meet with our other expenses —that is very important— instructions of the legislature to an extent of any other de partment of the State? And what does it mean when it refers which the legislature has from time to time been very agree to “other departments of the State”? What other departments able. We have always been able to - - We have to present of the State? our budget to the budget bureau anyway like other depart ment heads and we just wanted to carry out that same pro A. TRASK: The lady delegate is referring to apparently tection. Section 1 of Committee Proposal No. 6, the last sentence HEEN: Mr. Chairman. thereof which reads as follows: “Such appropriations for administration expenses of the Hawaiian Homes Commission CHAIRMAN: Delegate Ashford has the floor. You yield? shall never be less than, after due consideration of the re HEEN: Yield just for one question. Just wondering ceipts applicable to such expenses from the Hawaiian Homes whether or not failure on the part of the legislature to Commission lands, will accord said commission equal treat appropriate the necessary funds for the administration ex ment with other departments of the State in the funds avail penses of the commission, that the legislature would be able for its administration expenses.” Unquote. That’s a subject to mandamus? good question. The other lady delegate from the fourth district also CHAIRMAN: Any member of the committee wish to asked the question. The purpose of this—and the committee attempt an answer? —the attorney general’s department has gone over and widely ANTHONY: As a matter of law, that couldn’t possibly into the matter, the fiscal policies of the Territory and so be done. You can’t mandamus the legislature and that’s forth—the question is with equal treatment with other de why I think the proponents of the bill are pushing the thing partments. The fear is real and it’s tangible, and certainly too far. A good many of us are in favor of preserving what the delegate is well aware of that and certainly my colleagues would otherwise be characterized as a clear discrimination. are aware of that, that there has been no other department It’s part of our history and I think a good many of us accept that has come under such scrutiny for having this act des it. We certainly don’t want to have a provision whereby we troyed than the Hawaiian Homes Commission Act. There is are going to treat this department of government differently no agitation to destroy the school department at this time. from other departments of government. There is no agitation to destroy the land department at this SHIMAMURA: May I be permitted to attempt to clarify time. There’s certainly no agitation to destroy the records a point raised by one of the previous speakers. The speaker department or the treasurer’s office or any other functionary inquired as to whether or not the provisions of H. R. 49 as department of the territorial government. But recently there to the provisions for the Hawaiian Homes Commission was is - - persistently there is of recent date an effort to destroy mandatory. I don’t think there is any question that it Is the Hawaiian Homes Commission Act. So faced with that mandatory. In the original bill, H. R. 49, it was imparted real and tangible situation, the committee, with its various in Section 3; in the amended form before the Senate Com aids, have considered the various avenues of attack by mittee on Interior and Insular Affairs, it is amended and agile people who are concerned over this destruction of the provided in Section 2. And the pertinent portion reads: Hawaiian Homes Commission Act. And one of the most “And said Convention shall provide in said Constitution... tangible ways in which the act could be destroyed would be sixth, that, as a compact with the United States relating to for the legislature to pass an appropriation for the Hawaiian the management and disposition of the Hawaiian Home lands, Homes Commission Act which would be merely nominal, the Hawaiian Homes Commission Act, 1920 as amended, is namely $100 or $10.00 or $1.00. In that case, you could adopted as a law of this State,” and so forth. destroy effectively whatever may be necessary in funds to be received from the legislature, as has been done for the C. RICE: I move the committee stand in recess, subject past 30 years. to the call of the Chair. So in other words, to obviate any clever, shrewd move SMITH: Second the motion. to destroy the Hawaiian Homes Commission Act, this tangi ble, this loose, flexible language was used. In other words, CHAIRMAN: Moved and seconded that we recess, sub should there be an effort passed by the legislature to appro ject to the call of the Chair. All those in favor say “aye.” priate just $100, whereas the previous years may show an Opposed. Carried. appropriation of 50 - - $100, 000, properly, third parties concerned would come into court with the proper remedy (RECESS) and action and seek to demand from the legislature, or any other appropriate means, equality of treatment consistent ASHFORD: I thought I yielded for one other speaker, with the circumstances then existent and at least consistent but apparently there are a lot of others. I don’t wish to with past appropriations for its administration funds, where assume too much of this, but I would like to ask some other we could show that the need was as great. questions. 663 JUNE 7, 1950 • Morning Session KING: I don’t know whether the question that the delegate great need for needed appropriations to carry out the work from Molokai had in mind is pertinent to this particular of the Hawaiian Homes Commission. point, but I did want to offer at this time an amendment to If it is the intent of the legislature to see that the work the motion to approve the committee report, which I am of the Hawaiian Homes Commission is certain, and to such informed automatically approves Committee Proposal No. 6. an extent that they are working, their work is comparable Amend that motion to adopt the committee report and com to other branches of government receiving a high appropria mittee proposal with the deletion of the last sentence of the tion to carry out its functions, then, therefore, the Hawaiian first section of the proposal. In other words, cutting out Homes Commission should be accorded the same consideration the language, “Such appropriations for administration ex and thought. That they also should receive the same amount penses of the Hawaiian Homes Commission shall never be of money to carry out its program. less than, alter due consideration of the receipts applicable This is only a fair request on the part of Hawaiian Homes to such expenses from the Hawaiian Homes lands, will accord Commission to ask that this sentence be left in the proposal. said commission equal treatment with other departments of I see no reason why the members of the committee at this the State in the funds available for its administration ex last instance, because of their failure to explain and to clari penses.” fy the sentence so that the delegates of this Convention can Before I ask for a second to the motion that - - amply grasp the idea of the inclusion of this sentence, now come and ask that it be excluded from its proposal. Certain YAMAMOTO: Mr. Chairman, second the motion. ly, we who sat in consideration of this proposal feel that this KING: That language was put in there by the attorney sentence is much needed. It’s a must as far as the proposal general’s office, I presume at the request of the Hawaiian that is to be considered by this Convention. It is a must on Homes Commission itself, and I feel that it has no particular the part of the Hawaiian Homes Commission to ask the legis value. It is an indirect order to the legislature which, as lature to give them sufficient funds to carry out this work. Delegate Heen has said, would have to be mandamus to — if Certainly the Hawaiian Homes Commission should not be left it’s possible to do so—to make them carry it out; and if they in the lurch, if the legislature can only see fit to grant them didn’t carry it out, there wouldn’t be anything we could do an appropriation less, or figuratively speaking, an appro about it. priation of $50,000 when they need a $100, 000 to carry on Now in the past the legislature has been very generous to its work. That is the reason why this sentence was included the Hawaiian Homes Commission program. It has not only so that in consideration of the allocation of the appropriation appropriated additional sums for administrative purposes, of funds for other comparable departments, that the Hawaiian but considerable sums for development, and I feel that with Homes Commission should be given the same consideration the adoption of the program as a part of our Constitution, we and the same amount as far as funds are concerned to carry can depend upon the legislature to do whatever is fair and out its work; and I see no reason why the request is made just in the future as they have in the past. I do not feel that to delete ft. I move that that motion be tabled. this particular provision destroyed the integrity of the pro CHAIRMAN: Hearing no second - - Delegate Hayes. posal and the intent of the proposal. Now I say that as one who has been a champion of the Hawaiian Homes program HAYES: I was going to say that in our commfttee we for many, many years. So I would move that the motion to have gone over this section very, very carefully and ft was adopt be amended to include the deletion of that last sentence just felt - - they just felt perhaps maybe some legislatures of the first section of the Committee Proposal No. 6. wouldn’t be kind enough to us and wouldn’t appropriate the amount of money we would need. Mr. King in making that HEEN: I rise to a point of information. motion feft that we were mandating the legislature to carry out that they must appropriate this money, and many of the CHAIRMAN: Delegate Yamamoto, do you second the members here on the floor felt that ft should be deleted. motion? Personally myself, I haven’t agreed on that. But, I feel YAMAMOTO: Second the motion. that I explained ft enough on the floor to say that we have gone as far as our administration’s fund is concerned, that HEEN: I rise to a point of information. I would like to the legislature has always appropriated enough money to inquire from the chairman of the committee, the Hawaiian carry out our work with our own lease money that we receive Homes Commfttee, as to whether or not this committee pro from our land. Except once in a great while we do get in posal has been scrutinized by Miss Rhoda Lewis of the an awful jam. attorney general’s office, whom I regard as one of the best Now for instance, this last legislature. What happened authorities on the Hawaiian [Homes] Commission law, as to us in the conference commfttee of the Senate? The re well as to the relationship of that proposal here to the volving fund passed both houses and in order for us to get provisions of H.R. 49. our revolving fund, we would have to vote for Waimea, and HAYES: It certainly has, Mr. Heen. The attorney general so we lost our revolving fund, lost the appropriation up here had drawn this up for the committee, Rhoda Lewis. We’ve at Kalawahine and defeated the Waimea interests. I feel had her assistance at every meeting. that your chairman is still worrying about whether ft would be proper for me to agree to this or not. KAUHANE: I’d like to speak against the motion that has been put for the deletion of the last sentence in Proposal MIZUHA: The last section under consideration, or the No. 6. The Committee on Hawaiian Homes Commission last sentence which is under consideration at the present Act went into this question and gave it due and careful time, is relative to appropriation for administration ex thought. The idea as expressed in the language which is penses. As I read the Hawaiian Homes Commission Act, now being asked to be deleted from this proposal carries which will be incorporated into the Constftution, a ceiling with it the intent, and sincere intent, on the part of Hawaiian is placed, or a method by which the appropriation - - money Homes Commission to secure sufficient appropriation from should be appropriated for the Hawaiian Homes Commission the legislature so that they can carry out fts work. This is defined in that act and if the legislature does not act, the sentence means that the Hawaiian Homes Commission will budget submitted by the Hawaiian Homes Commission will be treated and given the same consideration with respect to automatically be effective not in excess of $200,000. So It appropriations as to other branches of government and that seems as though ft is a guarantee to the Hawaiian Homes the Hawaiian Homes Commission should not be left out on Commission that they will get up to $200,000 in the event the limb, andit is to continue its work. Certainly there is the legislature does not act on their budget, and that is 664 HAWAIIAN HOMES COMMISSION ACT written into the Hawaiian Homes Commission Act. And hence, - - succeeding legislatures are going to be just as fair to it is felt that perhaps a provision like this in the Constitution this department as any other within their means. will be merely surplusage or redundant or whatever, you may want to term it; and hence it is not necessary, but the bare MAU: I’d like to ask another question. As I got the fact that we have accepted the Hawaiian Homes Commission discussion, the full amount, the biggest amount that the Act as a law of the State of Hawaii. And on that basis, per commission would get, even if this sentence were left in, haps, it is appropriate to delete this last sentence. would be something like $200,000. Am I correct in that? TAVARES: I think a slight correction of the implications TAVARES: No, I don’t think that is correct. Under of that statement might be in order. As I understand it, H. R. 49, our legislature can amend that section to change H. R. 49, if passed in the last form we’ve heard of, would that amount to any amount it sees fk. permk our legislature to amend Section 213 of the Hawaiian CHAIRMAN: Delegate Mau has the floor. Do you wish Homes Commission Act and change that. Now, if this arti to yield to an answer here? Delegate Mizyha. cle as proposed by the Committee on Hawaiian Homes Com mission is adopted as a part of our Constitution, it seems MAU: Yes, I’d like to get an answer from Delegate to me—and that is my opinion—that one portion of it will Mizuha. eliminate the situation where any of the proceeds or the in MIZUHA: I believe H. R. 49 does not give our Territory come from Hawaiian Home lands can be lapsed into the - - the State legislature the right to change any amount that general fund of the Territory, and I am for that. I think the Hawaiian Homes Commission should have as far as the lands are trust lands and as long as we observe the trust, appropriations go. It only refers to changes in administration the income from the trust lands should stay with the trust, but not in appropriations of money. and that to some extent will be a guarantee that the project TAVARES: I beg to correct the gentleman. The act of won’t die because, in my opinion, the income from those H. R. 49 very carefully mentions three funds, I believe, that lands is bound to increase in the future to some extent. the legislature cannot affect. It very carefully leaves out Therefore, even if the legislature neglects the commission any mention of the Hawaiian Homes administration account, somewhat, there will be some mitigating circumstances which is the account involved in this argument and thereby, in the increase of the income to the lands. I think that by implication, leaves that open to amendment by our legis perhaps will clarify the situation a little bit. lature. Now, I would like to say very sincerely to the - - I know the very sincere delegate who has moved to table this motion MIZUHA: I have before me H. R. 49 which says as follows: although it’s not been seconded. There are a great many of “Provided that, 1. Sections 202, 213,” which is under con us who are very friendly to this Hawaiian Homes Commis sideration at the present time, “and other provisions relating sion project, but if that motion Is seconded and it comes up, to administration only.” It does not refer to appropriations. many of us who are for the act will be forced to vote against CHAIRMAN: Delegate Mau, does that answer your ques tabling. I really think a great deal more damage would be tion? done to the project by trying to table this and I think the rest of us will unke to support the act with the sentence out MAU: Well, this last sentence does relate to adminis which the delegate from the fifth district has moved to delete. tration expenses. I’m very strongly for that. TAVARES: Yes, and I think somebody ought to get that ASHFORD: Point of information, Mr. Chairman. Who Section 213 and read it and I will demonstrate to the delegate moved to table what? from Kauai that I am correct in my statement, if someone CHAIRMAN: Mr. President moved to - - Pardon me, will produce that last amended section of Section 213. Delegate Kauhane moved to table the motion to amend. CHAIRMAN: Delegate Heen has asked for the floor. HEEN: But there was no second. Delegate Heen, you asked for the floor a moment ago. CHAIRMAN: That’s correct. Delegate Mau has the floor. Pardon me, Delegate Mau, were you through? MAU: No, I’m not through, Mr. Chairman. While MAU: I want to ask the last speaker if he felt that if this we’re waking, may I ask several other questions? last sentence on page 1 of Proposal - - Committee Proposal No. 6 were included, that the act might be declared uncon A. TRASK: Mr. Mau, if Delegate Mau will yield to a stitutional. Or what was the feeling? How would it jeo question with respect to this inquiry here - - padize the act itself? MAU: I yield for that purpose. TAVARES: I was not speaking of constitutionality. I A. TRASK: The latest H. R. 49, namely Commktee was speaking of the attitude of the members, as I believe, Print, Unked States Senate, May 23, 1950, is In line with of some members of this Convention who like myself believe the expression made by Delegate Tavares, namely, that that that sentence goes a little too far. It purports to give that $200,000 may be amended by the legislature ekher a guarantee of treatment to one department of the govern up or down. It says, in other words, that Section 213 in ment which we are not going to include for any other depart particular reference wkh respect to administration expenses, ment of government; and on the face of it, I believe sincere which is the matter in controversy as to the operational cost ly that it’s an unreasonable requirement, besides being of the administration of the Hawaiian Homes Commission Act, unenforceable in any practicable manner. may be amended by the local legislature and that is why the MAU: But no question of legalky or anything is raised reference from the Hawaiian Homes Commission Act that with reference to this last sentence? It would not endanger an ordinance in addition to Proposal - - Committee Proposal the act except from a matter of policy? No. 6 be adopted was not adopted, because the legislature TAVARES: I haven’t given that enough thought to say may properly amend the act as k now stands under H. R. 49. whether I think it would be invalid or not, but I do think it MAU: I just want to pose this question then to the Con would be utterly unenforceable in any event. And I think vention. So far as the discussion has gone, there seems to it’s wrong in principle to give one department of government be no particular danger in permitting this last sentence to a guarantee of treatment that you don’t give in the Consti remain. Also in the discussion there is a feeling that be tution to every other department. That is implied anyhow. cause of the present laws which will be reenacted or remain I sincerely believe that after this flurry of feeling the next in force, the funds of the commission would be sustained or 665 JUNE 7, 1950 • Morning Session will remain as they are today. Now, if that be so and haps they can receive full accord of this Committee of the there’s no harm in leaving this last sentence in, I certainly Whole. It would be nice if it would come from them them would favor its retention, unless it’s otherwise satisfactorily selves, if they would be glad to withdraw that rather than explained to me that it should go out and for a valid reason. put it through a motion and have it to wrangle all over the place. CHAIRMAN: If you are through, Delegate Mau, I’d like to recognize Delegate Heen at this time. MAU: I merely want to correct an Impression that was given both by the President of the Convention when he spoke MAU: I have other matters to talk about, but I - - last and the last speaker from the - - delegate from the fourth CHAIRMAN: We’ll recognize you again. Delegate Heen. district when he said that the legislatures in the past have been generous with the Hawaiian Homes Commission. That HEEN: You will note that the language used in the last might be true in the last few years, but since 1920 and up sentence is mandatory in form and it cannot serve any useful to a few years, I don’t believe that the Hawaiian Homes Com purpose because the legislature is not subject to mandamus. mission Acts have been carried out for the best interest ASHFORD: I demurred on the ground of uncertainty and and weifare of the Hawaiian people by the legislators them that hasn’t been answered yet. It is customary in the legis selves, because they have sent these people out, as an ex lature from time to time to cut the appropriations of one ample, to Nanakuli without money with which to develop department and to raise the appropriations of another de irrigation and domestic waters. How do they expect these partment. With which department should the Hawaiian Homes people to make a fairly good living and a good homestead? Commission be linked? I feel that there should be a guarantee that enough money will be made available to develop these lands if you expect CHAIRMAN: Delegate Anthony, you asked for the floor? these people to stay on their homesteads. I charge at this ANTHONY: Thank you. I think the proponents or the time that the administrations in the past years have not opponents of the present motion to delete are carrying this done their duty either in asking Congress for sufficient thing too far. In the first place, let’s all recognize what money to develop these lands or going before the legislature we are doing here. This enactment into the Constitution of with a strong enough case and say, “Look, if this act is to statutory material is a departure from what this Convention be administered fairly and for the benefit and the best in has tentatively accepted as a pattern of this Constitution. terests of the Hawaiian people, money must be made avail It is a departure which a good many of us feel is necessary able for the development of these lands.” by virtue of the historical setting that we find ourselves in. That’s why I want these questions answered, to be sure This particular act has become a symbol with the Hawaiian that there will be certain guarantees that enough money is people and even though it is discriminatory, in my opinion, available for the full development of these lands. Otherwise, it is not so obnoxious that this Constitutional Convention it’s a useless gesture to say set aside some of these lands should reject the incorporation of the act. Now when you and then don’t give them money to develop these lands. You go beyond that, go beyond what is mandated under H. R. 49 can’t live on these lands without having them have sufficient and attempt to insert language in there which must mean funds to build roads, to make water available, and to make something—it either means something or it means nothing— irrigation water available so that they can make these lands I say that we are going entirely too far, and I think we ought fertile. to leave the act just where it stands. Hawaiians have never KAUHANE: I rise to a point of information. I believe been injured under the administration of the act; they have been treated fairly and I think that the motion of the Presi the last speaker when he was first accorded the opportunity dent should carry. of the floor stated that he agreed that the last sentence should be left in the Constitution. If that statement is correct, then HAYES: Mr. Anthony - - Delegate Anthony, rather, I he has seconded the motion that I have made for the tabling appreciate what you said in some of the things, and some of of the motion to delete this last sentence. the things, of course you and I would never believe together. But I just want you to be very kind to us because we are taking MAU: Before I did that, I wanted the questions answered the instructions of the attorney who has drawn this for us; so that I would know how to vote on this last sentence. and so therefore, the committee is not responsible for com HEEN: Will the last speaker yield to a question? Suppos ing to this Convention and mandate this Convention to do this ing those who are in favor of the Hawaiian Homes Commission and that. Now, who do you think I’m going to look to for lawapproached the legislature, made out a strong case that help and guidance except - - I mean for any proposals that they should have $200,000 instead of $100,000 and the legis come to our committee. I certainly respect those who helped lature appropriated $100,000. How are you going to force us a great deal in the making of these proposals; and so, the legislature to give the other $100,000? therefore, I hope you don’t feel that the committee deliberate ly did this on their own feeling on this matter. MAU: I’m not saying that we are going to force them either by mandamus or what else, but I want to know what ANTHONY: I didn’t mean to convey the impression that guarantees have we that the commission will have sufficient the committee was trying to man9ate anybody. When I use money with which to operate these lands? the word “mandate” that is a mandate in the act of Congress. In other words, if we are going to have a Constitution pur KAUHANE: Will the speaker yield so that I can answer suant to H. R. 49, we must put in a safeguard which will Judge Heen? Mr. Speaker, Mr. Chairman? keep the Hawaiian Homes Commission Act as it stands un CHAIRMAN: Delegate Mau, you have the floor. Do you impaired. Now I think that the proponents of that measure yield to a question over here? should accept H. R. 49 and take their chances with other departments of the government. They have a minimum HEEN: I would like a direct answer to that question, guarantee with the trust fund and they have a minimum Mr. Chairman. I still have the floor. guarantee in the existing legislation, and there is no thought MAU: I thought I answered the delegate’s question, and in anybody’s mind, as I’ve been able to gather, to eliminate that is this. I know of no way in which you can force the those guarantees, and the trust fund will remain unimpaired. legislature to make the appropriations. Then, of course, SILVA: I think at this time it would probably be fitting the answer is no. What is the effect of this last sentence if to make a request of the committee itself, that if they would it remains? Does that guarantee the appropriations - - withdraw that last sentence that is in controversy, that per- necessary appropriations? 666 HAWAIIAN HOMES COMMISSION ACT CHAIRMAN: Do you yield, Delegate Kauhane? FONG: A little while ago, the delegate from the fifth MIZUHA: Mr. Chairman. district, Mr. Mau, my very good friend, stated that the legislature has been very derelict in ks duty towards the CHAIRMAN: Delegate Kauhane has the floor. Hawaiian Homes Commission. Now if I were to sit here MIZUHA: Mr. Chairman. without answering the charges made by the chairman of the Deomcratic Party, I would be giving his statements the KAUHANE: I’d like to answer the delegate from the fourth dignity of truth. Now I want to state to Mr. Mau - - but district. now Mr. Mau says except in recent years the legislature DELEGATE: Mr. Chairman. had been taking very good care of the Hawaiian Homes Commission. You mean in the past two years we have CHAIRMAN: Delegate Kauhane has the floor. been taking care of the Hawaiian Homes Commission? KAUHANE: I’d like to answer the question put by the delegate from the fourth district, namely, Senator Heen. MAU: Will you yield for a moment? In my original Certainly, all we ask as a guarantee from the legislature statement, I said “except in recent years.” I want to is a fair consideration as to administration funds for the call the attention to the Convention, however, that the Hawaiian Homes Commission. If you feel that $200, 000 is Hawaiian Homes Commission has come to the City and being requested, you can only give a hundred, but to other County government in the last four years for money with which, first to construct a water line to feed the Hawaiian departments you will give them the full amount, and we ask Homes Commission lands in Waimanalo. We appropriated you to be fair with the Hawaiian Homes Commission in your $35, 000 for that purpose. Again when they opened up consideration to give them the amount in comparable to Papakolea, they asked us to give them money for their other departments. roads and they are asking money to put in lights. The Cky MIZUHA: May I answer the question of the delegate of and County government has nothing to do with the Hawaiian the fourth district? As the Hawaiian Homes Commission Act Homes Commission Act or the Hawaiian Homes Commission is now wrkten, if the Hawaiian Homes Commission in its itseif. But you can see that when they needed money, they budget asked for anything over $200, 000 and the legislature came to the county government, instead of getting that fails to act, the $200, 000 appropriation is automatic under money either from the Congress of the United States or the present Hawaiian Homes Commission Act. That is why from the legislature of the Terrkory of Hawaii. I am raising the question at this time. There is a difference FONG: I just want to answer Mr. Mau to this exten~, between another delegate of the fourth district and myseif that as far as the legislature is concerned, the legislature as to what the provisions of H. R. 49 contain at the present has been very, very lenient and reasonable with the Hawaii time. It is my contention that H. R. 49 - - the provisions an Homes Commission. I want to state, within the past in H.R. 49 does not change Section 213 to give the legislature four years there has been a Hawaiian heading the Finance of the State of Hawaii the authority to reduce the appropri Committee of the House of Representatives, and Mr. ations below $200, 000. He contends that k does. If it does Joseph Andrews is one of the strongest backers of the and limits the Hawaiian Homes Commission only to the Hawaiian Homes Commission. I want to state that as far $149,000 of income they receive at the present time, and as the House of Representatives is concerned—the senators if his interpretation is correct, then I am not in favor of can answer for themselves—the House of Representatives the deletion of the last sentence in the committee proposal has been very reasonable to the Hawaiian Homes Commis at the present time. sion. KING: I feel that the argument revolving about the inter ANTHONY: I’d like to get Assistant Attorney General pretation of H. R. 49 and the proposal is not essential to Rhoda Lewis over here, and therefore I move for a five the point at issue. The Committee Proposal No. 6 was minute recess. drafted with the assistance of the attorney general’s office, DELEGATE: Mr. Chairman. Miss Rhoda Lewis, and with the assistance and recommen dations of the Hawaiian Homes Commission. And it does FONG: Mr. Chairman, I have the floor. include a provision which I do not feel is essential to the CHAIRMAN: Delegate Fong has the floor. Proceed. spirit of the bill. And then let H. R. 49 provisions fall FONG: I thought that Mr. Anthony was going to ask me where they may. If the income is less than $200, 000, and a question. it’s mandatory that it shall be $200, 000, let that be the answer. If k’s not mandatory, let the Hawaiian Homes CHAIRMAN: I thought you were, too. Pardon me. Commission live on the income derived from ks own land. FONG: I just want to state that sitting here as a delegate I’d like to point out in that regard that as these old from the fifth district, I had to answer Mr. Mau’s statement leases expire, the Hawaiian Homes land will be released that the legislature has not been fair. And I think the legis at higher rent so that the income in the future will be sub lature will always be fair to the Hawaiian Homes Commission stantially more than it has been in the past. Senator Rice We have in the - - As far as the legislature is concerned, interpolates here that it will be over $200, 000. So wkhout we have requests from various departments. Every depart trying to cut off debate, I don’t feel that we are making any ment naturally would like to have more money. It is up to progress and I would like to move the previous question on your legislature to distribute the money according to the the amendment, but I will not move it because others are needs and they can only distribute the amount of money seeking recognition. that they receive and I know as far as the Hawaiian Homes Commission, the Hawaiian Homes Commission has received CHAIRMAN: Delegate Tavares asked for recognition a its proportionate share of the Terrkory’s revenue. I think moment ago. there is no reason why we can’t expect as good a treatment TAVARES: Unless the members of this Convention want for the Hawaiian Homes Commission as they have received me to read that section, I won’t say any more. I think that in the past. if the section is read on the Hawaiian Homes administration SILVA: The Senate’s record speaks for itseif. I don’t account, it might clear up some questions. Does anybody need any political speeches, but I want to say I’d like to want to have that read? move this time for the previous question. DELEGATES: No. SMITH: I’ll second that motion. 667 JUNE 7, 1950 • Morning Session CHAIRMAN: We have been discussing the amendment, KING: The previous question was put by the Chair. which has been duly seconded, to delete the last sentence CHAIRMAN: I think I made a mistake and put the amend of Section 1 of Committee Proposal No. 6. ment, and as a matter of fact, is it not true that the pre vious question cannot be put in Committee of the Whole? DELEGATE: Roll call. KING: Well, then the motion for the previous question KAUHANE: Point of information. The previous question is still pending if the Chair did not put it. has been asked. I now raise a point which I raised previous HEEN: Point of order. A motion to recess is always ly. I believe that my colleague from the fifth district when in order. he was accorded the floor, namely Delegate Mau, that he expressed the retention of the last sentence which - - KING: My point of information was whether the motion to order the previous question had been put. Now, the SILVA: I’m afraid my motion is out of order. Chair put the wrong motion. I’m asking if the motion to KAUHANE: It is not out of order. The previous question order the previous question is still pending. If it is pend has been asked. He specifically stated that he favors the ing, then the gentleman’s request for a recess is in order. inclusion of this thing, which seconds my motion to table But I want the parliamentary situation to be clear that there the motion put by Delegate King. The previous question, is pending a motion for the previous question. what is the previous question? LEE: Still pending. That is part of the confusion, and CHAIRMAN: The Chair rules that there was no second it seems to me, therefore, that the motion for recess to that motion to table. should be put. It takes precedence of all - - NIELSEN: A point of order. I think that President King’s SILVA: I move that motion be tabled. That is always in motion was that we approve the committee proposal deleting order too, Mr. President. that last sentence. So I think that we had better refer to the notes on that. PHILLIPS: I second the motion. SAKAKIHARA: Second. CHAIRMAN: Will the Secretary refer - - CHAIRMAN: All those in favor of recess, please say KING: As I recollect my motion, it was an amendment “aye.” Those opposed. The noes have it. to the previous motion which was to adopt the committee report. I amended it to read to cut out the last sentence KING: The motion to table that motion to recess will of Section 1; which, if the amendment were adopted, then have to be put first. I request the Chair to put first the the original motion would still be before the Convention on motion to table the motion to recess. final action as amended. PORTEUS: Point of order. Am I correct in assuming CHAIRMAN: Shall we now put the motion to amend? that the Chair put the question for a recess and that recess lost? APOLIONA: May I ask for a short recess for the Hawaii an Homes Commission to get together. CHAIRMAN: That is correct. CHAIRMAN: The question has been called for. PORTEUS: Am I not correct in assuming then that the question now before the house is to whether or not the motion DELEGATE: Roll call. to the previous question shall carry? CHAIRMAN: How many are in favor of roll call? Seven. The required ten is not indicated. All those in favor of the CHAIRMAN: That is correct. amendment please say “aye.” Those opposed. Carried. PORTEUS: Will the Chairman please put that question ASHFORD: The motion was to put the previous question, to the house, please. and the Chair didn’t put that motion first. The motion was CHAIRMAN: The previous question - - not - - before the house was not for the amendment. It was whether the previous question should be put. HEEN: I note that Miss Rhoda Lewis is here and I think it’s proper and appropriate at this time that we ask her about CHAIRMAN: I stand corrected. her views upon this last sentence. ROBERTS: Point of information. I’d like to know whether SAKAKIHARA: Point of order. the chairman of the Hawaiian Homes Commission Committee favors the deletion of that sentence. CHAIRMAN: State your point. CHAIRMAN: Will the chairman answer the question? SAKAKIHARA: There is a motion before the Committee of the Whole, motion for previous question which was duly HAYES: Delegate Roberts, I believe I stated my situation, seconded. The Chair has failed to put the motion before that I was confused because of not being an attorney, in the the house. first place. In the second place we have had faith and trust in Rhoda Lewis, who has been very kind to us, and maybe the CHAIRMAN: The previous question, as I understand it, committee should get together again with Rhoda before I is for the adoption of Committee Proposal No. 6. could make up my mind as chairman of this committee. NIELSEN: The question is, shall we move for the pre LEE: In view of said confusion, I move that we recess vious question? You put whether the previous question for five minutes. I believe Mr. Anthony has called for shall be moved for. Miss Rhoda Lewis to be here and perhaps it might resolve CHAIRMAN: All those in favor of the previous question our differences. please say “aye.” Those opposed. It is carried. CHAIRMAN: Is there a second to that? SAKAKIHARA: Now the question is to delete the last HEEN: I second the motion for the recess. sentence of paragraph one. KING: A point of information. Has the previous ques KING: If those who desire a recess would like to make tion been ordered? such a motion now, I would have no objections. The previous SAKAKIHARA: The Chair would have to put the motion. question has been ordered now. 668 HAWAIIAN HOMES COMMISSION ACT LEE: Our feelings have been hurt, but we’ll move for a KING: May I speak briefly for the committee—the Madam recess just the same. Chairwoman has asked me to do it—that they approve of that SAKAKIHARA: I object. deletion and accept it as an amendment to their committee report. HEEN: I second the motion. ASHFORD: I’d like to ask another question concerning CHAIRMAN: It’s been moved and seconded for a recess. this section. In H.R. 49, the requirement is that the All those in favor say “aye.” Those opposed. The ayes have compact shall—what is that language? —adopt the Hawaiian it. Homes Commission as a law of said State subject only to amendment, repeal, so forth. Now the compact contained (RECESS) in Section 2 does not contain that provision and it has been separated into Section 1. What was the purpose of that? CHAIRMAN: Will the committee please come to order. CHAIRMAN: Would some member of the committee answer the question? Delegate Trask. KING: As I understand the parliamentary situation, the A. TRASK: That was legal convenience as drafted by previous question has been ordered. I voted in favor of the Rhoda Lewis of the attorney general’s department, to have previous question, and I move now to reconsider our action the adoption of the act in one section and the compact, as the on the previous question. May I state that if we reconsider word requires, in the next section and that is the usual form and cancel the previous question, the committee is about that is used in other constitutions—li of them—with respect to accept the amendment I proposed as part of their report. to these other lands. Only this had to be done with respect SMITH: Second the motion. to what we considered were funds, financial, the fiscal arrangement. In the other constitutional provisions in CHAIRMAN: It’s been moved and seconded that we re the other 11 states, they did not have, as we have in Hawaii consider the motion for the previous question. All those in favor say “aye.” Those opposed. Carried. with respect to the Hawaiian Homes Commission Act, the budgetary affairs, which may be secure from the legislature, MIZUHA: Inasmuch as the committee will submit another and that’s why that provision was made. With reference amended report, I wish to withdraw my motion for the also to the peculiar arrangement whereby in Hawaii Con adoption of the committee report. gress can only amend or repeal certain provisions of the act, whereas the legislature may have access to amend CHAIRMAN: The motion has been withdrawn. some other provision of the act; whereas in the compact with KING: If it’s necessary to clear the situation, Mr. respect to land, and these other states with respect to In Chairman, I withdraw the amendment I made to his motion. dian lands, there shall be no amendments whatsoever by The only thing pending before the Convention - - the com the state legislature. mittee at this time is the committee report with no motion, and, Madam Chairman, may I request an adoption or ap ASHFORD: Since the question of Indian lands has come up, I would like to address myself very briefly to that sub proval of the committee proposal. ject. The Indian lands referred to in the various constitu CHAIRMAN: Both the amendment and the motion for tions of the newly created states and compacts with the United adoption have now been withdrawn. States are an entirely different basis from the Hawaiian ASHFORD: In the reports of other committees we have Homes Commission lands. When we became a part of the not proceeded primarily upon the adoption of the report; United States, the United States had no public lands here we have proceeded upon the separate sections, and I wonder except those specifically designated for defense and so if that wouldn’t be a better procedure here. forth. The public lands were ceded to the United States and accepted under the Newlands Resolution subject to a SILVA: The best method is probably to move for the trust; that trust was recognized when we became an organ adoption of the first section of the proposal, of the first ized Territory. The lands were put under our adminis proposal, and then discuss that. The latter proposals, tration by the Organic Act. They remained our lands in we can report progress until it’s finished. I move that we the control of the United States pending the time we were approve the first section of the proposal on the Hawaiian to be admitted as a state. Homes Commission Act. Now, the Indian lands are upon a different basis entirely. DELEGATE: Deletion. Those were lands not for specific Indians, they were lands set aside either by treaty with the Indians or by an act of SILVA: No. No. No. Congress out of the public unappropriated lands of the KING: Well, the committee hasn’t deleted that last United States —none of which exists in Hawaii or have ever sentence. existed in Hawaii—and always under the control of the United States under the terms of the Constitution and under SILVA: No, the first section. The first section has — - their absolute title. The terms of the Constitution of the does not cover that. United States provide for the regulation of commerce with the Indian tribes. Those lands were set aside from the KING: Yes, it does. control of the state, retained in the United States, and CHAIRMAN: Yes, the sentence in question is in the subject to the control of the United States; therefore, there first section. was no infringement of the sovereignty of the state. In this SILVA: Well, we’ll take up the second section then. case, however, the trustee of our lands, in returning them to us, is attempting to attach to them terms of trust as CROSSLEY: I would move the adoption of the first sec though it were the full order. That distinguishes these tion of the committee report with the deletion of the last lands from the lands set aside in the various new states sentence. for Indian reservations. APOLIONA: I second Mr. Crossley’s motion. There is another reason for the action of the United States in that regard and one which I, for one, could never accept CHAIRMAN: We have then a motion for the adoption of as applying to the Hawaiian people who had a nation of their the first section of Committee Proposal No. 6 with the own and ran it beautifully for some 50 years. And that is, deletion of the last sentence. that the Indians are a simple, ignorant and inferior people. 669 JUNE 7, 1950 • Morning Session HAYES: I’d like to say at this minute, that, isn’t it true MAU: Mr. Chairman, I haven’t yielded yet. that the reason for the Hawaiian Homes Act as a basic law CHAIRMAN: Pardon me. Delegate Mau. is because to right a wrong that had been done to the Hawaii MAU: I’d like to ask the commfttee whether ft had before an people? Therefore, I would like to move the previous question. ft in ifs deliberations any members of the land board or the Commission of Public Land to get information as to the TAVARES: I think there is an answer to the argument possibilities of public lands of the territory being opened just made by the delegate from Molokal. I agree with the up for agriculture uses through leases to the members of the statement that ordinarily since the lands are trust lands, public? Was any information like that obtained by your Congress would not be reasonable ‘in putting a string on it committee? when it gives It back to us. Unfortunately, we, the benefi ciaries, have agreed to that change of the Hawaiian Homes HAYES: That’s not our kuleana. The public lands - - Commission Act through our legislature. Not once, but the commissioner has that right. many, many times. And in that respect therefore, we have MAU: I understand that, Madam Chairman, but you the situation of the beneficiary having consented to the trustee realize that one of the chief crfticisms against incorporation changing the terms of the trust and I think that the argument, of this act by the opponents is that certain lands ought to be therefore, is not sound. set aside in the terrftory for small farms. They have a point, TRASK: I yield to Mr. Holroyde before any further and I wondered whether or not the committee in protecting statement with respect to the statement by the Madam itself and in strengthening ifs case, dwelled on that subject Chairman. to report to this Convention that certain commftments or suggestions have been made by the members of the board of HOLROYDE: I was just going to second her motion for public lands. the previous question. ASHFORD: Point of personal privilege. SAKAKIHARA: Point of order. I think the previous question is out of order in Committee of the Whole. I think CHAIRMAN: Delegate Mau, did you ask a question and you pointed out to me this morning under Cushing. Both wafting for an answer? Roberts and Cushing. MAU: Yes. WOOLAWAY: Point of order. I think that under the HAYES: We have gone into that situation, Delegate Mau. rules of the Convention, it is in order. MAU: And what is the sftuation? SAKAKIHARA: But this is not a Convention; this is Committee of the Whole. HAYES: Well, the situation will be referred back to the public lands and it’s a program that we have to work out CHAIRMAN: May the Chair say that having learned some in the few years to come. of the rules of putting the previous question, there is still a difference of opinion among the delegates as to whether MAU: One other question. Has the Hawaiian Homes it’s appropriate in the Committee of the Whole. Commission ftself considered this possibility? Where much of ifs lands may not be developed for several years, MAU: I wonder if the committee will consider adding to whether they would agree to make such lands available so the list of organizations in support of inclusion of this act, that the income can be used by the Hawaiian Homes Com the Democratic Party of Hawaii. Now please don’t ask me mission to carry out ifs work. In other words, whether whether it’s the “stand fast” group or the “walk out” group. they have taken into consideration the possibilfty of making But two years ago a motion was made before the Central short term leases for agricultural purposes, until the time Committee of the Democratic Party, asking that this act when they are ready to make use of those lands and develop be incorporated in the Constitution when ft be drafted. I them. would ask that the report be amended to include the Demo cratic Party of Hawaii. Is the - - Will the commfttee agree KING: I rise to a point of order. I dislike to raise a to that, rather than my making a formal motion? point of order against thy colleague from the fifth district; TAVARES: Point of order. My understanding is that a but, nevertheless, he is not talking pertinent to the subject committee report cannot be amended in this manner. matter here, but the administrative jurisdiction of the Hawaiian Homes Commission and the administrative juris CHAIRMAN: Does that answer your question, Delegate diction of the Commission of Public Land, and that subject Mau? matter is more or less under the - - that latter part is under MAU: Well, I understand that there is a motion to adopt the jurisdiction of the Committee on Agricufture, Conser the commfttee report. vation and Land, and the question they are asking is not pertinent to the subject matter or to the motion that is A. TRASK: Without identifying myself with any particular pending before this Convention. group of the Democratic Party, the motion is to the adoption of Section 1 of Proposal No. 6. MAU: I might state - - CHAIRMAN: That is correct. The other motion may KING: We could go along and discuss the entire program have included the commfttee report, but this has not. of the homesteading and settlement and FHA and everything else and delay action on this particular proposal, which is MAU: If you’ll look at the records, the original motion simply a proposal to adopt into the Constitution of Hawaii the was made to adopt the commfttee report. substance of the Hawaiian Homes Commission Act of 1920. CHAIRMAN: That’s correct, but it was withdrawn. MAU: May I be given an opportunfty to clear what I’m MAU: Oh, ft was withdrawn. trying to get at? CHAIRMAN: Yes, sir. CHAIRMAN: Delegate Mau, you still have the floor. SAKAKIHARA: The reason I ask - - MAU: If an answer is given, there is no question that MAU: Mr. Chairman. the committee will strengthen its posifion and that’s the CHAIRMAN: Delegate Sakakihara has the floor. reason for asking these questions. 670 HAWAIIAN HOMES COMMISSION ACT ASHFORD: A point of personal privilege. The delegate opinion of the solicitor of the Department of Interior from the fifth district has said the opponents of writing this (see Hearings, pages 130-131.) law into the Constitution do so on the ground that the lands aren’t available to all the people. That is not my position I raised the question because I was in a serious doubt as at all. My position is twofold. First, that it writes into to whether incorporation of the Hawaiian Homes Commission our Constitution an adoption of the principle that classifi Act as a compact with the federal government will be class cation by the accident of race is appropriate, which seems legislation in the opinion of the Madam Delegate from Mob to me the most dangerous principle we could possibly accept kai. here. And, second, that the lands granted by the Republic of Hawaii and accepted by the United States, being ceded in ASHFORD: Mr. Chairman, may I further answer that trust cannot have trust strings tied to them when they are statement? In the first place, the opinions of a committee returned. or the opinions of a solicitor general or anything else are just opinions. The Supreme Court is the interpreter of the CHAIRMAN: Delegate Mau, I, as chairman, rule that law, and I think the Supreme Court has interpreted the law. this is not germane to the motion which is for the adoption In the second place, to me, there is no - - as I have said, of Section 1 of Committee Proposal No. 6, with the last there is no comparison between Hawaiians and Indians. The sentence deleted. Hawaiians are just like any other race and the Indians have SAKAKIHARA: I would like to ask! the delegate from been subject in tribal communities to the government of the Molokai a question. She has raised a twofold question here United States because of inferiority, that is the language of giving her reasons why she feels that this should not be the Supreme Court of the United States. written into the basic law. Does the delegate from Molokai In the second place, the specific grants by general law to feel that on those grounds that this proposal will be uncon soldiers and sailors is a classification that is based upon stitutional? In your opinion? service. ASHFORD: Like another attorney I almost said, “May it HAYES: Since a little - - I mean, since they talked about please the court.” the Constitution, I’d like to make my own statement in re I think that the requirement by H. R. 49 of entering into gard to that. Certainly we are here to draft a good consti a compact with the United States is absolutely invalid. This tution. It must be good in the eyes of God and men. A is land and this is a subject matter over which the United constitution which fails to provide rehabilitation provisions States, if we were a state, would have no control, and in for a native people who have lost the use of their land is requiring us to enter into such a compact, they diminish not a good constitution no matter in what land this consti our sovereign powers. They, therefore, infringe upon that tution may be devised. well settled interpretation of the provisions of the Consti tution that new states shall be admitted upon equal terms HOLROYDE: I’d like to second the motion for the pre with the old. vious question. Now, I’ll just read you some certain language from the SILVA: Point of information. I’d like to ask the delegate Supreme Court of the United States which in its essence from Molokai, the word “native” deriving from the word has been repeated often. “nativity,” I just wanted to know what the true definition of the word “native” is. Am I a native of the Hawaiian Is When a new state is admitted into the Union, it is so ad lands? Am I a native? mitted with all the powers of sovereignty and jurisdic tion which pertain to the original states, and such powers HAYES: I think unquestionably you are, but I do not may not be constitutionally diminished, impaired or shorn think you are of the race who was present here when Van away by any conditions, compacts or stipulations em couver and Cook arrived. braced in the act under which the new state came into SILVA: I’m talking about - - the Union which would not be valid and effectual if the subject of Congressional legislation after submission. CHAIRMAN: The Chair rules that this discussion is (COyle vs. Smith, 221 U.S. 559) out of order. The previous question has been moved and now seconded. CHAIRMAN: Does that answer your question, Delegate Sakakthara? FUKUSHIMA: I rise to a point of information. What is the motion now? SAKAKIHARA: Yes, yes. I have before me, Mr. Chair man, excerpt from Report No. 839, House of Representa CHAIRMAN: The motion is for the previous question. tives, 66th Congress, Second Session, Rehabilitation of FUKUSHIMA: I mean the original motion, the principal Native Hawaiians, to accompany House Resolution No. 13, 500, motion. dated April 15, 1920: CHAIRMAN: The principal motion is to adopt the first Constitutionality. In the opinion of your committee there section of Committee Proposal No. 6, deleting the last is no constitutional difficulty whatever involved in setting sentence thereof. aside and developing lands of the Territory for native Hawaiians only. The privileges and immunities clause FUKUSHIMA: Is that - - of the Constitution, and the due process and equal pro SILVA: The question was out of order. tection clauses of the 14th amendment thereto, are prohibitions having reference to state action only, but FUKU5HIMA: Is that a committee motion or is that the even without this defense the legislation is based upon motion by one of the delegates? a reasonable and not an arbitrary classification and is thus not unconstitutional class legislation. Further, A. TRASK: It’s the motion by - - there are numerous Congressional precedents for such CHAIRMAN: Delegate Crossley. legislation in previous enactments granting Indians and soldiers and sailors special privileges in obtaining and A. TRASK: - - Delegate Crossley of Kauai, seconded by Dr. Apoliona from the fourth district. using the public lands. Your committee’s opinion is further substantiated by the brief of the attorney general FUKUSHIMA: Isn’t that motion in the form of an amend of Hawaii (see Hearings, pages 162-164) and the written ment? 671 JUNE 7, 1950 • Morning Session CHAIRMAN: No, it is not. The other motions were with DELEGATE: I’ll second that. drawn and this is a new motion made. BRYAN: May I rise to a point of information? Is it not A. TRASK: The motion as made - - the committee intent that they actually amend their proposal, so that what is before the house now is the adoption of FUKUSHIMA: Yes, but this is a committee proposal, Section 1 as the committee proposes it? And as they pro Mr. Chairman, which has passed first reading. pose it, they leave off the last sentence. I think that’s the A. TRASK: The committee as the delegates should know, point that - - did meet and the motion as made by Delegate Crossley is a CHAIRMAN: In view of the technical points being raised, committee proposal as amended, deleting the last sentence Delegate Trask, will you withdraw your motion so that we of Committee Proposal No. 6. can get this before the committee? FUKUSHIMA: If that is so, that’s not a proper proce A. TRASK: Expeditiously, yes. dure because Committee Proposal No. 6 as drafted and as before us now has passed first reading. And this is upon CHAIRMAN: Delegate Anthony has moved that - - second reading and it’s before the Committee of the Whole. A. TRASK: And I second Delegate Anthony’s motion. If it’s an amendment, it should be an amendment to the committee proposal and not as a committee proposal - - a ANTHONY: I move that Section 1 of Committee Proposal committee amendment. No. 6 be adopted. CROSSLEY: For the delegate’s information, I made that A. TRASK: I second the motion. motion because I understood that they wanted to take this CHAIRMAN: It has been moved and seconded that Sec entire proposal up section by section, but if it’s caused any tion 1 of Committee Proposal No. 6 be adopted. All those confusion, I’ll withdraw my motion. In favor say “aye.” CHAIRMAN: Motion then to adopt this has been with KAUHANE: Mr. Chairman. drawn, and the second has withdrawn his second leaving nothing before the committee at the present moment. NIELSEN: Wait a minute. A. TRASK: At this time, on behalf of and at the sugges KING: Mr. Chairman. tion of Madam Chairman Flora Hayes, the committee desires CROSSLEY: Mr. Chairman, Mr. Chairman. to amend Committee Proposal No. 6 by deleting the last KING: That was merely to put the section before the sentence thereof of this first section reading as follows: Convention. “Such appropriations for administration expenses of the Hawaiian Homes Commission shall never be less than, after CROSSLEY: I move an amendment to the previous motion. due consideration of the receipts applicable to such expenses I move that it be amended to delete the last sentence. from the Hawaiian Homes lands, will accord said commis SAKAKIHARA: I second the motion. sion equal treatment with other departments of the State in the funds available for its administration expenses.” CHAIRMAN: We have now a motion to amend the original NIELSEN: Well, I thought the proper procedure was to motion by deleting the last sentence to the first section of vote on the amend - - make the motion to adopt the section; Committee Proposal No. 6. then let someone amend it deleting that; then vote on the DELEGATES: Question. amendment and then on the section. I think that’s the proper CHAIRMAN: Question has been called for. All those in procedure. favor of the motion to amend please say “aye.” Those CHAIRMAN: Will Delegate Trask withdraw his motion in opposed. It is carried. order to - - HAYES: I move Section 2. A. TRASK: That was my motion, that the last sentence SAKAKIHARA: Mr. Chairman. thereof be deleted, and I did name expressly that the - - BRYAN: Mr. Chairman. CHAIRMAN: Has that motion been seconded? CROSSLEY: I second the motion. APOLIONA: Mr. Chairman. CHAIRMAN: It has been moved and seconded that we DELEGATE: Second. amend Section 1 of Committee Proposal No. 6 by deleting CHAIRMAN: Delegate Hayes has the floor, unless you the last sentence thereof - - wish to relinquish it. A. TRASK: Of Section 1. HAYES: I believe that we go on with Section 2. CHAIRMAN: - - of Section 1. NIELSEN: Point of order. NIELSEN: There’s nothing before the house right now. SAKAKIHARA: Point of order, Mr. Chairman. Point TAVARES: In spite of all of this monkey business about of order. procedure, isn’t the question now this? That we move that APOLIONA: Mr. Chairman. when this committee rises, if it adopts Section 1, it recom mend that the sentence in question be deleted. Wouldn’t that SAKAKIHARA: Point of order. be the proper motion? CHAIRMAN: I believe we’ve already acted on the motion RAYES: Thank you. That’s just what I was going to say. to take them one at a time. ANTHONY: I think most of the delegates are in agree SAKAKIHARA: Now, therefore - - ment that the last sentence should be deleted. It seems to DELEGATE: Mr. Chairman. me that the appropriate procedure would be to move that the section be adopted. When that has been done, then there SAKAKIHARA: Point of order, Mr. Chairman. can be a motion to amend that motion to delete the last CHAIRMAN: Delegate Sakakihara. State your point. sentence; then you can vote on the amendment and the decks will be cleared. In order to make the - - clear the ground, SAKAKIHARA: Since the motion to amend carried, the therefore, I move that the section be adopted. Section 1. proposal as amended must be adopted. 672 HAWAIIAN HOMES COMMISSION ACT APOLIONA: At this time I move the adoption of Section 1 proviso: “Provided further that if the United States shall as amended. have provided or shall provide that particular provisions DOWSON: I second the motion. or types of provisions of said act may be amended in the manner required for ordinary state legislation, such pro CHAIRMAN: It has been moved and seconded for the visions or types of provisions may be so amended.” That adoption of Section 1 of this proposal as amended. takes all the pilikia out of the situation, because if Congress KELLERMAN: Am I correct in my interpretation of in the future consents to have us amend that act, then we these two sections, that Section 1 writes into the Constitu can amend it and we don’t need to amend our Constitution. tion the Hawaiian Homes Commission Act as a law and that Section 2 makes a compact with the United States to write HAYES: I was just going to say that that section complies it into the Constitution as a law? Is that correct? with the apparent will of Congress and continues the recog nition by the people of Hawaii of the justice of the original CHAIRMAN: Will some member of the committee answer? enactment of the Hawaiian Homes Commission Act as of Delegate Trask. 1920. That is my interpretation from the attorney general’s HAYES: It’s my understanding that that is correct, com office. pact with United States. Otherwise, we are making a treaty with the United States. The word “compact” would be a KELLERMAN: It seems to me that this first section is treaty. unnecessary and it may get us in trouble. It looks to me like an open-end agreement that even after we have become KELLERMAN: May I ask a second question then? Why a state and have entered into a compact as a condition pre is it necessary to adopt one section writing into the Consti cedent to becoming as a state, that we are agreeing that we tution the Hawaiian Homes Commission Act as a law and may still abide by and consent to, in advance, provisions making a - - then adopting a second section agreeing with that subsequent legislation of Congress may request us to the United States government under compact to write it in abide by under the terms of that compact. As I see it, that as a law? It seems to me that we’re doing the same thing would be clearly unconstitutional and not what we intend to twice and it would have the following consequences. Should do. As far as I can see we are getting in trouble in the there eventually be a change in the compact agreement, you first section and this matter would be entirely cleared up still have the Constitution to deal with and certain provisions if the provisions of the first section insofar as are required which are written ihto the Constitution which are not subject by Act 49, were incorporated in the second section, which to amendment. You therefore have to amend the Consti is the compact section. For that reason when the vote is tution in addition to altering your compact agreement. Now taken, I shall vote against Section 1, although I am not is that the understanding and desire of this Convention to opposed to the compact on the subject matter involved. adopt - - Is it the understanding of the Convention that we are adopting the act as a law in the Constitution, which then PHILLIPS: I might point out here that during one of the would require an amendment of the Constitution to change committee meetings in Public Lands it wad pointed out that it? Certainly this sentence just preceding the sentence that there is constitutional interpretation on this business of has just been deleted is an outright provision. It does not bringing - - of letting a state into the Union under terms that refer to amendment by the legislature or the Congress. In were unequal with other states as they entered the Union. I the second place, we are agreeing with the Congress to refer specifically to Coyie vs. Smith in which a compact enter into a compact to adopt it as a law, and that compact was made with the Congress whereby, I believe it was, the could be changed with the consent of the United States. Now capital was at Guthrie, and it was agreed that for the next it seems to me we’re getting unnecessarily involved in having ten years the capital would not be moved from Guthrie, it in the Constitution in one section and subject to the compact either ten or 20 years. Immediately after Oklahoma got its in the second section. I’d like to have that explained, any statehood, they proceeded to move the capital from Guthrie reason why that complicated procedure must be followed. It to Oklahoma City, where it is situated today. The decision seems to be totally unnecessary and restricting any possible on that in court was that there was no other state had been action that may be made, in some instances, even to amend permitted to enter the Union under such conditions, and the compact, because it’s in the Constitution. thereby they rendered it void. The same thing I believe CHAIRMAN: A question has been put to the Chair. applies here. I believe it’s an answer to Delegate Kellerman’s question, HAYES: Delegate King will answer that, Mr. Chairman. and that is that Section 2 is at best just redundant. It ANTHONY: The purpose of the proposal is twofold. One, wouldn’t assure anybody of anything. There is no way we the first section will embody the act in the Constitution. could insure a compact with the Congress to do something Standing alone, if that were just in the Constitution and on the condition that we let - — that on the one hand we let nothing more, then by a subsequent action of subsequent Hawaii into the Union; and then, secondly, the Congress, conventions that section could be repealed. As I understand because of the reserved powers, would not have any way of the draftsman, in order to remove that difficulty they have enforcing that after we did get into it. So it would be useless gone one step further and said, not only shall it be written to have this redundant section even attached here. Section into the Constitution, but there shall be a compact with the 1 covers everything. United States. Now, what Delegate Kellerman is concerned about is the necessity of the two sections. I as a lawyer MIZUHA: I move the previous question. don’t think that two sections are necessary; the compact CHAIRMAN: The motion has been made for the previous would be sufficient. But the purpose in having it in two question and seconded. All those in favor say “aye.” Those sections, as I understand it, is, one, to put it in the Consti opposed. Carried. tution, and that is not sufficient because a subsequent The question then before the committee is, as I under convention might change it. So they have added a second stand it, for the adoption of Section I of Committee Proposal section which would require the entry of a compact between 6 as amended. All those in favor say “aye.” Those opposed. the United States and the State providing that it could not Carried. be changed without the consent of the Congress. TAVARES: I think one further explanation will clear HAYES: I’d like to move for the adoption of Section 2. this up. If you will read Section 1 carefully, it has this HOLROYDE: I’ll second that. 673 JUNE 8, 1950 • Morning Session CHAIRMAN: Moved and seconded for the adoption of Sec JUNE 8, 1950 • Morning Session tion 2 of Committee Proposal 6. Question has been called for. CHAIRMAN: Committee of the Whole please come to order. You will find a copy of the report of the Committee TAVARES: I assume that since the committee members of the Whole, No. 3, attached to the agenda for the day. have agreed to numbering this section as Section 2, that the blank space in there should be filled in with a number one, HAYES: Many of the members don’t seem to have their and I so move. copies of the committee report and they are going over it now to try and locate it. CHAIRMAN: Moved and seconded to insert the number one in the fifth line of the second section. MAU: I move we take a recess, subject to the call of the Chair. CROSSLEY: It was my understanding that these sections were numbered one and two only for the convenience of CHAIRMAN: Is there a second to that motion? speaking on them today. Is that correct? DELEGATE: I second the motion. TAVARES: Then, for purposes of the record, let it be understood that that blank space refers to the preceding CHAIRMAN: Moved and seconded that we take a recess section. subject to the call of the Chair. All those in favor say “aye.” Opposed. It is carried. CHAIRMAN: Do you then withdraw your motion and leave it to the Committee on Style? (RECESS) TAVARES: I withdraw my motion. CHAIRMAN: The Chair would like to call your attention CHAIRMAN: And the second? to the need for a correction in the Committee of the Whole We have then before us the adoption of the second sec Report No. 3. Under numbered paragraph No. 1, which tion of Committee Proposal 6. All those in favor say “aye.” reads, “Begs leave to report that it has had the same under Those opposed. It is carried. consideration and recommends: (1) that Standing Committee HAYES: I move that the Committee of Whole report Report No. 33 be filed and its recommendations adopted,” progress on Proposal No. 6 and the committee report - - we should insert there, “with the exception of the recommen dation as to Committee Proposal No. 6.” CHAIRMAN: We have the committee report. PORTEUS: I think the announcement by the chairman, HAYES: I move for the adoption of the committee report since this is his report of that amendment, that no action and the Proposal No. 6 as amended. is necessary by the Committee of the Whole as to the APOLIONA: I second Madam Chairman’s motion. particular amendment and I think it’s now in order for the TAVARES: In speaking against that motion, I should chairman of the Committee on Hawaiian Homes Commission like to point out that it will be irregular. What we did Act to move the adoption or the approval of your report. with respect to the first health amendment was this. We HAYES: I so move, that we adopt the report of the prepared a Committee of the Whole report and we asked chairman. that the original report be filed and the Committee of the J. TRASK: Second the motion. Whole report be adopted. This way, you are amending the report and I don’t think that would be regular. I think CHAIRMAN: It has been moved and seconded that the that procedure should be followed and that the motion Committee of the Whole Report No. 3 on the Hawaiian should be that this committee rise, report progress, ask Homes Commission Act be adopted in accordance - - as leave to sit again; and in the meantime prepare a written amended by the Chair. Are you ready for the question? report. All those in favor of the motion say “aye.” Those opposed. It’s carried. HAYES: I accept that. Thank you very much. PORTEUS: I think under these circumstances that was CHAIRMAN: I understand you have withdrawn your equivalent to a motion that this committee now rise and the motion and the second and that we have Delegate Tavares’ chairman then report to the Convention that the committee motion. recommends the adoption of the committee report as pre SAKAKIHARA: I’ll second Delegate Tavares’ motion. sented by the chairman. I think it’s now time for the committee to rise, if there’s no objection. CHAIRMAN: That the Committee of the whole rise, report progress, and beg leave to sit again. Question. CHAIRMAN: Moved and seconded that the committee All those in favor of that motion please say “aye.” Those now rise, having finished its work. All those in favor say opposed. It’s carried. “aye.” Those opposed. Carried. Debates in Committee of the Whole on INDUSTRY AND LABOR (Article XI]) Chairman: HAROLD W. RICE JUNE 23, 1950 • Morning Session LARSEN: I’d like to speak against the amendment. The committee went into great deal of discussion - - CHAIRMAN: The committee sit at ease. What is the pleasure of the committee? HEEN: I rise to a point of information. SAKAKIHARA: Will the chairman remove his coat so CHAIRMAN: Point of information. we could feel at ease. HEEN: I’d like to find out whether the comma still CHAIRMAN: A little cold this morning. remains after “bargaining.” PORTEUS: May I suggest to the delegates that the pro CHAIRMAN: No, they took it out and put a period after posal number is 28, for their convenience, and that the the word “bargaining.” standing committee report is 79. HEEN: I didn’t hear that. CHAIRMAN: 79 and - - CHAIRMAN: Yes, it was amended that way. PORTEUS: And 81. LARSEN: Most of the members recognized that this was merely a principle of government under which we are now CHAIRMAN: That’s right. What is the pleasure of the serving, that labor does have a right to organize and labor committee? has been given the right to bargain collectively. There were MAU: Are we ready to proceed? two groups of labor, one who accepted the principle as in dicated here because they recognized that those neutral CHAIRMAN: We’re ready. citizens who spoke before us wanted to show the community MAU: I have the rather doubtful distinction of presenting by this, “as prescribed by law,” that neither industry nor the committee report. I think this committee report is labor should have full rights to go ahead on this principle unique in this Convention. The Committee on Industry and without recognizing they were controlled by law in such Labor is composed of 11 members. The majority report is a way that the neutral should not be abused. The neutrals signed by nine of the 11; there is a minority report thigned were willing to accept that. Industry members, who felt by one of the members; and one member has signed neither strongly that this did not belong in the Constitution, finally majority nor minority report. Of the nine signing the were also agreed because they wanted to go with the major majority report; four have filed an appendix stating their ity or with the other two groups. They were willing to reasons why the right to organize and to bargain collectively leave it in the Constitution if this little restrictive clause should be placed in the Constitution—four out of nine. Five was left there. out of the nine, however, have also filed an appendix giving Because these various groups were willing to sign if the the reasons why this right should hot be placed in the Consti clause were left in, I believe it should be left in, in recogniz tution. I think in order to proceed as rapidly as possible, ing the will of a large number of citizens who are concerned. I would like to read the language of Committee Propàsal No. This one small group, who have been an aggressive group, 28 as supported by the nine members of the committee. seemed to indicate during all their discussions that they weren’t so concerned with majority opinion as they were of Industry and Labor. Persons in private employment their own rights. And, therefore, they insisted and were not shall have the right to organize for the purpose of collec willing to reach this point of compromise. Doctor Roberts tive bargaining, as prescribed by law. Persons in public very well defined compromise as that small area where employment shall have the right to organize, to present two groups who are definitely opposed can find some area to and make known to the State, or any of its political of common agreement. The common agreement was reached subdivisions or agencies, their grievances and proposals. by this clause. To get along, I move at this time that Committee Pro However, this small aggressive group, who did not want posal No. 28 be tentatively agreed to. to work with the majority, they insisted on their way or not at all. Since this is a compromise and since it isn’t CROSS LEY: I second that motion. necessary actually, but since it was put in because it was a CHAIRMAN: You’ve heard the motion. Discussion? bow to a large group of citizens of the community who have worked hard and - - I think all the committee members MAU: We’d like to have the wolves get after this pro felt, that labor - - we are hoping that all elements of labor posal right now. will some day feel they are one and part of this same team, ARASHIRO: I wish to offer an amendment at this time that they are playing on the same team, that they are work to - - at this time offer an amendment to delete the last four ing together, that we don’t have chips on our shoulders. words of the proposal which read as follows, “as prescribed But we must recognize that unless labor and industry work by law.” together in harmony, even with disagreement, but willing to compromlse because they can find areai of agreement, DELEGATE: I second that motion. that unless we. find this spirit of harmony between labor and CHAIRMAN: That also would include a period after the industry, the community cannot progress well. And certain word “bargaining” I think. The motion has been made and groups of labor accepted this principle. Industry accepted seconded to take out the words “as prescribed by law” in the principle, and we are hoping some day that this small the third line and put a period after the word “bargaining.” group will also accept the principle, that they will play on 674 675 JUNE 23, 1950 • Morning Session the same team and not behave like the spoiled child who is tent because there might be some danger. But I don’t not willing to give and forgive and forget. And, therefore, think there is any danger if we should insert a period after since this was a compromise, I urge strongly that we leave “organize,” because that will leave a broad statement and the clause in, and the reasons for it have been given. Thank when we leave a broad statement that does not restrict our you. legislature from trying to regulate that right. In fact, Amendment One of our Federal Constitution reads, “The ARASHIRO: May I explain the reasons for my deletion Congress shall make no law respecting an establishment of that word, “as prescribed by law,” as has been submitted of religion, or prohibiting the free exercise thereof; or in Proposal 20. It says, “Persons in private employment abridging the freedom of speech, or of the press; or the shall have the right to organize for the purpose of collective right of the people peaceably to assemble, and to petititlon bargaining, as prescribed by law.” When we say that, the the government for the redress of grievances.” It says that right to organize and bargain collectively is recognized and the Congress will not abridge. Over here it only says that yet it is not recognized, or it is not given until it is pre “persons in private employment shall have the right to scribed by law. It is like saying that you have the right to organize for the purpose of collective bargaining.” It doesn’t cross the street, but the right does not exist there until say - - there is no such word as abridgment or abridging. we have written a law stating that or describing that you We still are only giving them that right to organize and now have the right to cross the street. But, if some other bargain collectively as long as they bargain within the laws. term can be used besides “prescribed by law,” I may agree I think there must be some sort of a law that will regulate that it is a compromise and the intention of trying to regulate these rights and I do not see any danger at this time. the right of collective bargaining; if it was written in huch Now in the committee it was pointed out that it might manner that the wording would be written that you have the discriminate the minority in the group. I do not see how it right to cross the street but that the regulation we may initiate can discriminate. You discriminate people when you do may be that you have to look on both sides of the street be not share with them, and you penalize them, but whatever fore crossing for your safety. But “as prescribed by law,” things that labor organizations gain in any negotiation goes to me does not mean that, and that that right does not exist for all the employees, and they are not discriminated. None until it is written in the law. of these non-union members who refuse to become union If you will look into Appendix No. 2, Minority Report, members have refused to accept any gains made by labor and on page 2, the report reads that “We oppose the inclusion organizations, and I do not think they are being discriminated of any such provision because we believe that it is apt to against in any way. In reference to the discrimination, in be construed by the courts to place limitations upon the freedom of religion, I do not think that the people who do regulatory power of the legislature to a degree adverse to not go to church are being discriminated because the right of the best interests of the public,” and . . . [part of statement freedom of religion has been given to the people. not recorded. I And another thing, freedom of the press. It says in this it was proposed to write into the Constitution a report that this should not be in the Constitution because provision that persons in private employment shall not have “persons in private employment’ constitute only a segre the right to organize and bargain collectively. If it was the gated group of the people for whom the Constitution is being intent of the now - - as it has been written in this report, written. Why should they be singled out for special treat it says the minority but as it now stands, it is a majority ment?” As far as collective bargaining goes, who are we report and I will refer to it as the majority report—that going to refer to? We cannot refer to lawyers’ associations this majority first was opposed to the insertion of the right or doctprs’ associations or any other group because collec to organize and bargain collectively, but they have finally tive bargaining only exists in this segregated group. When agreed that “as prescribed by law,” is a compromise and you say employees and employers, it only refers to em under that condition they were willing to have this section ployees, and that is - - in reference to that, when we say written into the Constitution. freedom of the press it only refers to people who operate It goes on further and it says that “as prescribed by law” the press and the people who want to use the press. But is meaningless. If it’s meaningless, then I do not think how about those people who do not use the press or are not there should be any objection as to the deletion of “as pre part of the press? scribed by law.” But, I’m quite definite and positively sure So I do not think that when we write in such a clause in that there is a meaning to “as prescribed by law.” To me, the Constitition, [it] is segregating any particular group, that is not just mere language to regulate but language to because when we refer to collective bargaining we are re restrict. And not only to restrict, but there might be a ferring to a specific group. danger in the future if and when the legislature may be Now the right to organize and bargain collectively is composed of a majority of labor representatives; then, if in the new constitutions of the states and those constitutions and when the labor representatives should write into our do not say that the right Is to organize and bargain collec statute that you have the right to strike, but strike shall be tively “as prescribed by law.” So I feel there is no need limited to 30 days, and after 30 days the parties in dispute for the words, “as prescribed by law,” but I probably might shall be forced to go into compulsory arbitration, then what compromise on some other word whose language will clarify would happen? Or other legislation that might hurt indus the issue to me that the right will exist and that right can be try. In that case, the constitutionality, I feel, cannot be regulated in some manner, but not that the right is not there challenged because the law in itseif is part of the Consti until it is written in the law. tution because of the language “as prescribed by law” will mean that it is part of the Constitution. LUTZ: I would like a definition from the “supreme court” Now, the part that says that the right to organize is a of the Convention here as to the definition of “as prescribed recognized issue and there need not be anything written into by law,” referring to this Committee [Proposal] No. 28 here, the Constitution to show that recognition; but, when our Industry and Labor. Just what does it mean? What does it Constitution of the United States was written, I do think that mean in this section? the freedom of speech, the freedom of the press, the free dom of religion were recognized then, and that did not mean LARSEN: While they are thinking that out, may I make that because they recognized those freedoms, that those one correction of the previous speaker and that is those freedoms did not have to be written into the Constitution. labor groups who were not unionized accepted certain gains Furthermore, in our committee meeting they said that but they also recognized certain losses. They recognized this collective bargaining should be regulated to some cx- the loss of freedom to choose a job wherever they wanted 676 INDUSTRY AND LABOR it; they recognized that they also lost their right to live that while the right existed there also existed the right of without fear; they also recognized that the minority no regulation, and, therefore, if we wrote into the Constitution longer had a right to speak up for themselves. These are such a clause, such a section, wfthout spelling it out even certain losses that certain people want. However, we still further, ft might be as though we were saying just that and feel ft should be included as a bow to that group of labor who that ft was an absolute right. Now, no rights are absolute, feels we should recognize they do play on this team of not even the right of free speech. Therefore, we felt that general communfty betterment. inasmuch as a very narrow majorfty, a six to five majorfty had said that there should be a provision included in the CHAIRMAN: Delegate Frank Silva has asked a question - - Frank Luiz, excuse me, I didn’t mean that. Dr. Roberts Constftution, that we would go along wfth the majority is recognized. providing our fears were also protected. Now on the one hand, these people had said that the only ROBERTS: I do not belong to the “supreme court,” but I’d way that they thought they can get the right to organize and like to venture an answer in part to that question. As we bargain collectively without going to the Supreme Court for discussed this problem in the Industry and Labor Committee, a test was to wrfte into the Constftution those words. If it certainly was not the intent of the committee, and it should they already existed, then we would save them a lot of not be construed by this Convention nor should the records time in proving their point. By the same token, we said to show, that “as pnscribed by law” means that the right to them that if the right is subject to regulation and that is organize and bargain collectively does not exist until the understood, then we want the same consideration that we legislature prescribes and recognizes that right. That was will give you and that will be that the right is subject to not the intent of the commfttee. The language as put in the regulation and that regulation is “as prescribed by law.” constitutional section proposed by the committee to the The next step was a definftion of those two terms, Convention means that there may be reasonable regulation “regulation in the public interest,” or “as prescribed by by the legislature, reasonable regulation by the legislature law.” It was the feeling, I believe, of a majority that “as and no more. It recognizes the right to organize for the prescribed by law” was a more simple mandate, a more purpose of collective bargaining as a matter of policy. It simple term; that in defining in the courts “as prescribed does not mean that the legislature can take that right away, by law” any regulation, ft would first be determined as to to remove that right. It means that when a problem arises whether or not - - or ft would be determined rather, in and when the term “collective bargaining” is defined, that making that determination, whether it was reasonable and the legislature has certain responsibilities and “by law” in the public interest. means that it must be reasonable legislation by law. On the other hand, if the section read “regulated in the public interest,” that would possibly be two definftions. LUTZ: Here again we run into the same trouble where One, was the law ftself constitutional; two, was it in the the word “reasonable” is mentioned. The Supreme Court public interest and reasonable regulation? Therefore, in today has not ruled on the word “reasonable.” Then we making a determination of only one thing, the law ftseif, are up the same tree, “as prescribed by law” and then the “as prescribed by law,” all of the other things would be word “reasonable.” accomplished at the same time. BRYAN: One of the previous speakers asked if the words Mr. Chairman, this morning we had read to us a letter “as prescribed by law” meant anything; and if it did not, why from the Central Labor Council asking that this be included should it be in there. Those words mean something to me. in the Committee of the Whole discussions and, to comply I agreed wfth some of the delegates in the committee that ft wfth their request, I would like at this time to introduce would be impossible in a constitutional provision to adequately the letter which they have offered to be made part of the rec define those words, “collective bargaining.” The meaning ord. that I attach to the words “prescribed by law” means that Now one of the previous speakers said the Constitution bargaining collectively or collective bargaining will be might say you have the right to cross the street, but if they defined by the statutes, because it’s very unreasonable to add “as prescribed by law,” you might be prohibfted from expect a constftutional provision to define collective bargain crossing the street. I can’t agree with that. The raw could ing. The definition is not static; it has changed many times only say, as ft does today, that you can’t jaywalk, that you in the last few years; it may change in the future; and those can’t endanger your own life as well as jeopardize the rights words are in there for that reason, and I think ft is not un and lives of others. To me, that’s what “as prescribed by reasonable to leave them there for that purpose. law” means. It means simply that you have the right to organize and bargain collectively, but you must do it in the ASHFORD: I’d like to call the attention of the delegates interests of all people. Not a small group, a minorfty group, to the fact that I think there is a real point being made here. a class group, or any selected group. It must be done in That is, “as prescribed by law” is a very much more intense the interest of a majorfty of the people. and mandatory expression than the clause we have used I believe that I have answered most of the questions frequently before in other articles, “in accordance with raised by one of the previous speakers. I have stated our law.” own posftion; and, therefore, I would ask that this Conven tion vote against the amendment to delete the four words, CROSS LEY: I would like to speak against the amendment so that the proposal as submftted by nine of the ii members to delete the last four words of the committee proposal. of this commfttee be adopted. When this committee first began its deliberations some weeks back, a number of us felt that there should be no inclusion NIELSEN: I’d just like to have Delegate Crossley read spelled out of such a right in the Constitution. Now we felt the part of the letter he submitted in evidence and quote this way because there already exists in the Constitution from ft where they say that “as provided by law,” they the right to make a contract. The freedom of contract is requested that that be included. a right to all the people. Bargaining is not now and never has been illegal. Therefore, collective bargaining is not SILVA: I don’t remember Mr. Crossley saying that. now and never has been illegal. If ft was not illegal, then I don’t remember Mr. Crossley saying anything to that why write ft in. The proponents of writing such a clause effect. But I would like to say this - - I still have the floor, in said that if it already exists, then what is the reason Mr. Nielsen, I have been recognized. for not restating ft. The debate went on that subject for a NIELSEN: Well, you were answering my question when considerable time, and the fears that were expressed were I—— JUNE 23, 1950 • Morning Session 677 SILVA: I have the floor, if you don’t mind. to any extent, and it will take years and years of litigation to determine how far the legislature could go in regulating NIElSEN: I’ll let the Chairman rule. collective bargaining. CHAIRMAN: Delegate Silva, Charles Silva, has the OKINO: I should like to ask the chairman of the Commit floor. tee on Labor and Industry two questions. I recognize in your SILVA: Thank you, Mr. Chairman. I want Mr. Nielsen committee report on page 7 the following statement: “The to take note. right to organize and to bargain collectively is recognized I would like to state at this moment that it would seem in national policy, both under the Wagner Act and under the to me that, as pointed out by Miss Ashlord, that the words Taft-Hartley Act. The right has been recognized by the “as prescribed by law” would give the impression that this decisions of the Supreme Court of the United States.” My Convention inserted those words with the idea of showing first question is, is there any similar provision in the con a little prejudice against any organization organizing for stitutions of any other of the 48 states? collective bargaining. It would seem to me that, even with MAU: The answer is no, insofar as those four little out those words, the legislature has the right to regulate. words are concerned. The constitutions of the states of It does not in any way prevent the legislature from creating New York, New Jersey and Missouri, on the right to laws to regulate labor, as long as they do not infringe on organize merely read, “Al! persons in private employment the right of collective bargaining. How they are to enter shall have the right to organize and to bargain collectively.” into collective bargaining can be prescribed by law. Personally the arguments for leaving the words “as OKINO: Mr. Chairman of the Labor and Industry Com prescribed by law” within the Constitution in a section on mittee, if the clause “as prescribed by law” is deleted from labor, in my opinion would give the impression that we this proposed section, would it, as a matter of law, deprive entered into these halls with the idea of deliberately point the legislature from enacting any regulatory legislation ing our finger at organized labor, which I believe is not the covering this? intent. I think the legislature will have the power. MAU: May I ask the speaker to restate his question? I I opposed this amendment - - this proposal in the Bill of couldn’t get the question. Rights. I thought that was not the place for it, and I at that time stated that it should be placed in another part of our OKINO: My second question is this, Delegate Mau. If Constitution. I see no reason why those words should be the clause “as prescribed by law” is deleted from this sec inserted unless It can be pointed out to me more clearly tion, would it, as a matter of law, deprive the legislature that it does not show that it is the intent of the committee from enacting any reasonable regulatory legislation? to specifically point to any organization that enters into MAU: The answer is obviously no, as has been covered collective bargaining that the Constitution shows that it by the debate and by the Supreme Court decision of the must be or almost “as prescribed by law.” I think the leg United States. Even the right to the press and free speech islature has that right as is, as pointed out by Central can be reasonably regulated. There’s no question about that. Labor Council’s letter this morning. CROSSLEY: Mr. Chairman. DOI: I would like to speak in favor of the motion. The proponents of the committee proposals have stated that MAU: Mr. Chairman, I rise to - - they recognize the principle of collective bargaining. An CHAIRMAN: The chairman has the floor. Mr. Mau. other proponent has also stated that there is no right in the MAU: I’ll let Delegate Crossley - - I yield to Delegate Constitution which is absolute. Yet the same speaker has Crossley. gone on to say that should we put in a clause for collective bargaining without limiting it, he is afraid that the courts CROSSLEY: As I understood the first question of the - - the legislature might construe it as being an absolute delegate from Hawaii, it was whether or not the right to right. I cannot see the reasoning, that type of reasoning. organize and bargain collectively was in any state constitution. The right of free speech, press, they all are subject to Is that right, Delegate Okino? reasonable regulation. They are rights, I believe some of us would say, are more fundamental than this right of OKINO: Yes, I merely wanted to know if there were - - collective bargaining, and much older and yet they are all CROSS LEY: Now, the answer from the Chair was not a subject to reasonable regulation. In our Bill of Rights “yes” or “no” on thai question, but the answer of the Chair article, we made no limitation as to these rights; we assume was, “not with those four little words.” Now it seems to that they are subject to reasonable regulation. I see no me that either we can play fair ball on this thing and answer reason for the limitation placed by the committee. In fact, the questions as they are put, or we can do our own inter the limitation as placed, I agree with the delegate from polation, in which case, why then I would have to get up on Molokhi, is too restrictive. a point of order and say that the question was not answered as it was asked. MIZUHA: I am in favor of the deletion of the four words, MAU: I’d like to ask Delegate Okino to restate again his “as prescribed by law.” In the statement, or in the article first question. on the Bill of Rights as noted by the previous speaker, we have listed some of the fundamental inherent rights of the OKINO: My first question was if there are any similar citizenry of our country, and nowhere in the Bill of Rights, provisions as your committee has proposed in the constitution as far as I can recall, have we limited those rights by the of any one of the 48. phraseology, “as prescribed by law.” If the Convention MAU: As proposed? delegates here assembled believe that the right to organize and bargain collectively has in the history of our country OKINO: As proposed. developed to such an extent as being part and parcel of the MAU: I want to speak on a point of personal privilege. philosophy of our industrial organizations and their relation The gentleman from Kaual came up here in private to talk ships with the working classes, now is the time for us to to me and in rather bitter tones and a cross face saying that recognize that right. I had misinterpreted that question and put in an answer - - Hence, I am in favor of the deletion of those words, “as words in my answer - - prescribed by law” because by the very insertion of those four words, the right will be limited by legislative action CROSSLEY: Point of order. 678 INDUSTRY AND LABOR MAU: This is a matter of personal privilege, Mr. Chair right to organize and bargain collectively”? We have ac man. cepted the fact that all people have a basic right to organize CROSS LEY: I am raising a point of order. for purposes not unlawful as being a right we were born with, an inherent right, but to bargain collectively is a right that CHAIRMAN: Mr. Mau is still recognized. He’s not has been - - is to be exercised by statute definition. The through. big Wagner Act, our own little Wagner Act, the Taft-Hartley MAU: And I assume that he came up here with that Act go into great detail to explain the method of collective attitude because I’m chairman of this committee. It is for bargaining. Collective bargaining is not a right; it’s a tool, that reason I have not as yet entered into any debate. I am and the tool has been defined by statute. supporting the proposal of the committee, but if anybody Now if you don’t have a definition of the tool, how can attempts to dictate to me they have a long ways to go. That you say that you will grant the “right to be exercised in means both sides of the fence. I don’t take any kind of accordance with law,” when the law, as I see it, must define threats, whether they be from the extreme left or the extreme what the right actually is. For instance, the Supreme Court right. I am going to conduct myself in what I consider the of the State - - the Court of Appeals of the State of New York best, in my best judgment, for the interest of the community and the Supreme Court of the State of Missouri, in both of and it will be that way always. which constitutions have the right to organize and bargain collectively without the four additional words, those courts CROSSLEY: Point of personal privilege. have both held that it was assumed there was no intention to CHAIRMAN: State it. render unconstitutional existing statutes and therefore, they would éonstrue the meaning of the language in the meaning CROSS LEY: I did not threaten the chairman or even try of the existing statutes of those states’ own labor regulation. to intimidate him, and the statement he has just made is That seems to me to point up a very pertinent question. absolutely wrong. I went up to him and I stated that the Suppose circumstances arise whereby it becomes definitely question was asked and I didn’t think he had answered it a matter necessary to the public interest to alter materially fairly. There was no bitterness; there was no heat; I wanted the meaning of the language, “right to bargain collectively.” to find out how this was going to be conducted. I would like Suppose labor in a certain group attains such a monopoly the Clerk to read the original question because I got the over a full industry that it becomes as harmful to the public words “collective bargaining” in the original question of as the public has decreed such monopolies to be harmful Delegate Okino. If he stated his original question, as he when held entirely by industry, by management. We have restated it to the chairman, I’ll apologize most humbly be restricted managements power to monopolize an industry cause. then I misunderstood the question; but as I understood against the public interests. To date there is no labor leg the first question, it was, “Do they have the right to or islation in the United States which forbids monopolistic con ganize and bargain collectively?” trol by a union over a full industry. However, we have been HEEN: According to the debate so far, all sides seem to faced repeatedly in the last few years with the ill effects of concede that there is a right to bargain collectively. Just such a monopoly in the hands of the coal union, being ex wondering whether or not this language might take care of ercised by Mr. Lewis, John L. Lewis. There is now before this situation. the Congress a restudy of the Taft-Hartley Act with the possibility and the direction of writing possibly into that CHAIRMAN: Take this down separately, Clerk. act, certainly altering the provisions to amend that act, to HEEN: After the word “bargaining,” insert “such right rule out the right of any labor organization to bargain to be exercised in accordance with law,” that phrase to be collectively, where that means bargain collectively for an substituted for the phrase, “as prescribed by law.” entire industry which would be a monopoly over that industry. I submit that such a change in the concept of the language CHAIRMAN: The Chair is keeping a roster of the speakers, of collective bargaining would be a material change,, a con and he expects to have all the members who want to be heard cept which is not now in existence in any labor legislation on this subject be heard before we enter into any debate. in the United States, and I think it goes to the definition of HEEN: That sentence was not - - the term “collective bargaining.” It does not go to the regulation of the method of exercising a pre-defined term, CHAIRMAN: That’s an amendment? Did you suggest - - “collective bargaining.” It actually changes its scope or its HEEN: I haven’t offered it as an amendment yet, but I concept materially. It is my opinion that if the Taft-Hartley don’t know whether or not it might clear up the situation. If Act were amended to declare illegal monopolistic control by that clause suggested by me is substituted for the clause collective bargaining of a full industry, if we adopted this reading, “as prescribed by law,” then that sentence would language in our Constitution without the four words added, read: and our Constitution were adopted before that change is made in the Taft-Hartley Act, it would be very likely, and I think Persons in private employment shall have the right to a court would be entirely consistent in ruling that such a organize for the purpose of collective bargaining, such change could nOt be made in our little Wagner Act to conform right to be exercised in accordance with law. with that material change of concept that would then be in I move that as an amendment. corporated in the Taft-Hartley law. CHAIRMAN: Delegate Heen has offered an amendment. I don’t think we want to preclude our legislature from Any second? Delegate Hayes has seconded the amendment. redefining the language of collective bargaining as the ever Do you want to talk on the original proposal or amendment? changing relationships of industry and labor present them selves. After all, we are here to write a Constitution, not KELLERMAN: I should like to speak against both the for industry, not for labor, but for the people of this terri amendments because I think what I have to say goes to both; tory and it has been proved time and time again that monopoly first, the amendment to delete the phrase as “prescribed is harmful to a free people. It was on that basis that Teddy by law”; second, the proposed amendment, to insert the Roosevelt got through his greatest, one of his greatest con words “such right to be exercised in accordance with law.” tributions to the peace and security and economy of the I think it essential to retain the original four words because United States in the anti-trust laws which controlled industry. I think the crux of the matter is in the definition rather than We now have no such limitation on labor and we know we regulatory power. What do you mean by the language “the are faced with the potentiality of labor monopoly that can be 679 JUNE 23, 1950 • Morning Session just as harmful as any industrial monopoly ever was, as far workers, the great bulk of our sugar and pineapple workers as the people of the state or country are concerned. Yet to in the territory will fall under the provisions of the law, as date we do not have that concept incorporated in any labor passed by Congress. legislation. However, we have many industries in Hawaii which are I submit that it is a matter of definition and the definition purely intrastate and that question was raised when the should be subject to growth, to change to fit the needs of Bill of Rights Committee considered this section. We had the people. I don’t think that it can be included entirely under representatives from industry here and it was agreed that the term “regulatory” or the method in which it, a predeter the bulk of our utilities like the Honolulu Gas Company, mined right by definition, shall be exercised. I think we Hawaiian Electric and some of the other utilities engaged need, to assure the safeguarding of the public and the changes in local transportation would be under the jurisdiction of which our legislature may find essential in the public interest, any kind of labor-management relations act that would be to include the words “as prescribed by law.” passed by the territorial or state legislature. CHAIRMAN: The Chair will declare a five minute recess TAVARES: In such a case, would there not be the situa as we have been working an hour on this problem already. tion where in the same union you would have members that We think we ought to have five minutes —that means five could be regulated by Congress to a greater extent, if their minutes, too. powers are different, than we could regulate our own local commerce? (RECESS) MIZUHA: Well, for the - - question was raised with reference to the Honolulu Gas Company who imported up to, CHAIRMAN: Ladies and gentlemen, take your seats. and still does, I think, a large amount of crude oil for the TAVARES: I have four questions that seem to me need manufacture of gas, cooking gas. It was said that those to be answered before I vote on the proposed amendment - - people associated with the handling of crude oil from the on the first proposed amendment, to delete the four words, ship to the wharf and so forth would be considered interstate “as prescribed by law.” I’d like to explain that since this commerce. There is that likeithood that employees in territory exports most of its products, we are therefore certain industries or in certain organizations will come un engaged in businesses which the federal courts have held der the scope of the federal law, others will be covered by are interstate commerce in character. If, therefore, Con the territorial or state law. It all depends. gress should extend the Taft-Hartley law or some other labor In other words, the idea back of the section as a whole law to cover agricultural labor, which it can do and may was not to interfere at all with those aspects of the federal do someday, would not most of our labor be covered by the law which covered collective bargaining. The right to federal law? And if so; would it be wise to give our legis organize and bargain collectively was the protection for lature less power to regulate business in local commerce these people who are working here in the future - - who will than Congress has to regulate interstate commerce labor, be working here in the future State of Hawaii, who would especially when the labor organizations do not make a dis not come under the scope of the federal law. tinction in recruiting members between people engaged in TAVARES: Then, I have the next question. Is it the interstate commerce work and people engaged in local opinion of the proponents of this amendment to delete these commerce work. I wonder if the proponents of that amend words that the section then, with the deletion, will give our ment would care to answer that question. I have three legislature the same powers over regulating local - - labor others. engaged in local commerce as the Congress has over labor MAU: That first part of the question—it’s such a long in interstate dommerce? question, I didn’t follow the second. The first part of the MIZUHA: I cannot speak for the rest of the members of question, if Congress should extend the Taft-Hartley law to the committee who believed in this section, but I can speak the State of Hawaii it would, of course, cover interstate for myself. I would believe that any legislative policy commerce. In that event, what is left to the state would adopted by the future state legislature of Hawaii should be merely be intrastate. closely fitted to the pattern of the federal law with reference TAVARES: That is correct. But then my next question to collective bargaining. was, under such circumstances, would it not be true that TAVARES: But my question has not been answered. I our industries are of such character that most of our labor am asking if it is the opinion of the proponents that the would be considered sufficiently interstate commerce in powers of our legislature will be substantially equal in their character so as to be subject to regulation by Congress? fields with the powers of Congress over the interstate field? MAU: Not being a member of industry, I don’t know; MIZUHA: If it is the desire of our state legislature—as that would be a factual question. I said, this is my own personal opinion—our future legisla TAVARES: Well, we export most of our sugar and tion with reference to workers in intrastate commerce pineapples. Would that not be the situation? should be the same type of labor legislation that the federal government sees fit to cover the employees who are engaged MAIl: Of course, as soon as it starts into the flow of in interstate commerce. interstate commerce, no question that the Taft-Hartley TAVARES: Then, I assume I can interpret the speaker’s Act would govern. answer as “yes.” They would be substantially the same in TAVARES: So then the next question is, would it be their respective fields. wise to give our legislature less power to regulate labor engaged in local commerce than Congress has to regulate MIZUHA: That’s my own personal opinion. labor in interstate commerce? TAVARES: If any of the other proponents have a different CHAIRMAN: Will Mr. Mizuha answer that question? idea, I think in fairness to this Convention they should so state, so that we will know what meaning they place on this MIZUHA: The delegate from the fourth district has raised amendment. a good question. Undoubtedily if Congress sees fit to extend the provisions of the Taft-Hartley law, and prior to that from CHAIRMAN: Mr. Arashiro, you introduced the amend whatever it saved from the Wagner Act, to agricultural ment. Would you like to reply? 680 INDUSTRY AND LABOR AR4SHIRO: I think I feel the same as the opinion as ex whether or not when federal legislation enters the field of pressed by Delegate Mizuha. interstate commerce with reference to the affairs within CHAIRMAN: He feels the same way as Delegate Mizuha. state, that the federal law is supreme. TAVARES: Well, then let me point out that under the CHAIRMAN: I wish to - - Taft-Hartley law today the closed shop is prohibited. I SHIMAMURA: I did not wish to take too much time. take it then that answer means that if this amendment goes through, our legislature would have the power—although it CHAIRMAN: Delegate Shimamura, you have the floor. may not be wise to exercise it, I’m not saying that if I hope you will not be interrupted again. would be—the same power that Congress has over that SHIMAMURA: That’s all right, Mr. Chairman, but I particular subject. did not wish to get into a prolonged discussion as to the MIZUHA: Speaking for myseif again, I’m not going to sphere of federal and state legislation. But I wanted to speak on the merits of the closed shop or open shop or point out that some of queries posed by the last speaker union shop, but whatever the legislature sees fit to do, I raised difficult questions as to the spheres respectively believe the legislature will legislate in the interest of the of national legislation. or of state legislation, and the difficult people, and if it sees fit to legislate out the closed shop, I question as to where interstate commerce begins and where believe the legislature has full right to do it. if ends, et cetera, which is a very wide field. But may I state that I am in favor of the right of collec TAVARES: That answers my question on that. tive bargaining on principle. However, I see some difficulty Now, one more question. I think it’s already been in the deletion of the worth “as prescribed by law” from the answered in effect, and that is, there is talk now that legal standpoint. Some persons have spoken and said that Congress might extend the anti-trust laws to certain types this right is analagous to the right of free speech guaranteed of, let’s say alleged excessive organization of labor, or in the Federal Constitution and in all state constkutions, excessive groupings of labor, let’s say. If that is the case, and which will be guaranteed in our State Constitution under undoubtedly Congress has that power. Would under this the Bill of Rights. Now the right of free speech has certain amendment our legislature, if labor organizations got so common law antecedents before our Federal Constkution large that in the public interest it felt that the extent of was adopted and before our state constitutions were adopted. organization should be regulated under some sort of an anti But collective bargaining does not have such a common law trust provision, would our legislature under this amendment concept. It is not a common law concept to begin with; with the deletion of the words have the corresponding power k’s purely legislative. Now, if being purely legislative, we that Congress has? In the opinion of the proponent? leave out the worth “as prescribed by law,” what would we MIZUHA: As I previously expressed, there is no doubt have? We have a very fluid right here. That’s the difficulty with reference to all the rights that are granted to the people I see, and I should like to have that answered, if I may, by under any constitution, the police power of the state will any member of the committee or anyone else. cross those lines and will authorize legislation in the interest FONG: As of this moment, I have not yet decided how I of the weifare of the state. Congress at the present time is would vote. I had expected that we would get some discussion considering S. 2912, a bill to write into the Taft-Hartley on the background of the labor movement, the background law the anti-trust provisions with reference to labor mono of what the Taft-Hartley Act is, the Wagner Act, and how it poly. But it is well, and this is just a personal observation, will pertain to this territory as far as the principle of collec the Secretary of Commerce [sic] Tobin testified before the tive bargaining is concerned. Now there has been no discus committee and said, “I am opposed to any bill which will sion here, and I’m quke sure that quke a few of the number attempt to turn the clock back to the dark days when the of delegates here are quke confused as to what we are talking anti-trust laws were regularly used to harass and destroy about. The word “collective bargaining” means a lot of things, labor unions.” That is the attitude of the Secretary of and I’m quke sure a few of us do not yet have our finger right Labor. on the point. If the state legislature desires to write into Hawaii’s Now, in conjuction with that, I’d like to ask a few ques labor relations act for the people engaged in intrastate tions. As I understand - - I’d like to ask the chairman of commerce, such provisions as the national Congress is the committee a few questions and if he could explain to me endeavoring to write into the federal law, I believe the and explain it to the delegates here, I think maybe we’ll legislature has the power. have a better idea as to what we’re doing here. As I under TAVARES: That answers my question. Thank you very stand the Taft-Hartley Act, if deals with interstate com much, Mr. Chairman. As I say, if the other proponents merce. Is that right, Mr. Mau? Only? have any different ideas, I think they should state, in fair CHAIRMAN: Would you restate your question? ness to this Convention, whether they have such a different MAU: I think the answer is, I believe that’s correct. idea. FONG: That’s correct. The Wagner Act originally dealt SHIMAMURA: The queries posed by the last speaker get with interstate commerce. Is that right? us into the difficult realm of the priority of federal legis lation and local state legislation, in the first place. In the MAU: That’s correct. second place, in case the federal government has acted by FONG: And the Wagner Act exempted from ifs provisions legislation regulating certain matters of legislation, the right of collective bargaining by agriculture workers, whether this state will have the right at all. But may I which means that the great majority of our plantation workers state in addition that - - in the fields were unable to bargain collectively. Is that right? MIZUHA: I rise to a point of information. Was the speaker asking a question or making a flat statement? MAU: That’s correct, and that’s why you passed the little Wagner Act. CHAIRMAN: No, he was making a statement. ROBERTS: That’s not a correct statement, in answer SHIMAMURA: I made a statement there. to that question. MIZUHA: I would like to have that further explained in MAU: In excluding certain agricultural workers? I fairness to all the delegates here on the question of this, stand corrected. 681 JUNE 23, 1950 • Morning Session ROBERTS: No. The act did exclude certain agricultural of employees through their representatives by a majority workers from the protection of the statute; it did not limit vote went to the employer and tried to bargain with him, and the right of workers to organize and bargain collectively he refuses to bargain with them, will the employer be sub with the employers. The only question there was the ques ject to the unfair labor practice law? tion of the protection of the law in terms of the unfair labor ROBERTS: Yes, he would be if they represented the practices. The employees have had the right to bargain majority of the employees and if you had provision by law, collectively prior to the passage of the Wagner Act and the as you do now, for certification. They would be a certified Taft-Hartley. bargaining agent. Now the method of certification varies, FONG: Probably I just didn’t state it adequately. but if they represent the majority of employees and they re Now as I understand, under the Taft-Hartley Act that quest the employer to recognize them for the purpose of group is given the power to organize and to bargain collective bargaining and the employer refuses, then they have the ly which they have had; but on top of that, if they organized right to file a charge under the provisions of the little as a group and went to their employer through representa Wagner Act in the territory. tives of their own choosing, then the employer has to bargain FONG: That is under the intrastate - - with them. Is that correct? ROBERTS: Under your own little Wagner Act which the ROBERTS: May I answer that question? Under the legislature passed in 1945, Act 215, S.B.72, Hawaii Employ statute, under the Wagner Act and under the amended pro ment Relations Act. The employees have a right to file a visions of the Wagner Act, the Taft-Hartley law, the em charge under that section, under that statute. ployer -was required as a matter of law to bargain with the FONG: Well, if that little Wagner Act was not in exis duly recognized collective bargaining agent of the employees tence in the Territory of Hawaii, would they still have that in the appropriate unit. right? FONG: Yes. Now, following that, if he did not bargain ROBERTS: Well, that would be a question in terms of with the duly representatives of the employees, representing whether or not the Taft-Hartley law or the Wagner Act cov the majority, what were the penalties? ered. If we had no Hawaii Employment Relations Act cover ROBERTS: Under the statutes, under both statutes, the ing intrastate, I still believe that all activities which would employees through their representatives would file an unfair provide for employee-employer relations in the territory, labor practice with the board. The board then would have except those specifically excluded by the Wagner or Taft- a hearing and further adjudication, subject to the review by Hartley law, would be subject to regulation by that act, if the courts, would then determine whether or not the employer we are a territory. Now, the reason I say that, under the did or did not violate the law. If he violated the law, an order Wagner Act and the Taft-Hartley law, the jurisdiction, the would be issued by the court to require him to bargain. If scope of the act covers interstate commerce, and inter he did not bargain, then he was subject to action by the court state commerce is defined as all commerce among and be and contempt of the court. tween the states and the territories; so, by definition the territories are included in interstate commerce. As a FONG: I see. Now, following that thought, if we give matter of administrative procedures, they did not take the right to labor of collective bargaining, actually what we all of the specific little industries and actually prosecute are doing here is to state what is already inherently theirs. cases. But there are certain specific groups excluded from Is that right, Mr. Roberts? the protection of the law, such as the agricultural employees ROBERTS: The statements and the provisions of the originally, and those employees did not get the protection section proposed, with the exception of the qualifying lan of the law, although they had the right to bargain with the guage, are now in both the Taft-Hartley law and our own employer. little Wagner Act. That’s correct. FONG: Now, if we become a state, then we are excluded FONG: U the legislature did not do anything, and labor from the question of being a territory, and if this provision having this right of collective bargaining, would it be able stays in the Constitution that labor has the right to bargain to impose upon the employer who refuses to bargain with collectively, must the legislature enact laws setting forth labor, after the ratification of this Constitution with the pro what is unfair labor practice, probably what is the penalty vision in there that labor has the right of collective bargain for an employer to - - the penalty on the employer if he re ing, will labor be able to impose upon the employer the fuses to bargain collectively? Must that necessarily go into pressure which it now has over the employer under the effect before this right of collective bargaining will be Wagner Act or Taft-Hartley Act, in respect to intrastate effective? commerce? ROBERTS: I don’t think so. You already have a law on the books; that law, it would seem to me, takes care of ROBERTS: The purpose of the Wagner Act was to avoid industrial strife by providing machinery whereby the em the problem if you become a state. ployer through an election would be required to recognize FONG: You mean the little Wagner Act? the employees and bargain with them. Prior to the passage ROBERTS: That’s right. of the Wagner Act, there were many disputes on the ques tion of recognition, and the employees had to resort to FONG: Now, if the little Wagner Act was not in existence, force, had to resort to the strike. The Congress said that then the legislature must act. Is that right? the purpose of the law—and that same language is in both ROBERTS: Well, I would assume that some statute would the Taft-Hartley and Wagner law—it makes it very specific be enacted dealing with that problem. Yes. that this right is to be protected in order to do away with industrial strife, and that right is protected and recognized. FONG: Thank you, Mr. Roberts. You will find that the legislature—under the Federal Con HEEN: It seems to me that the question before us is gress, of course, in the passage of the law—the legislature whether or not this right is to be a constitutional right or could regulate reasonably with regard to the concept of a statutory right. After listening to the debate and the collective bargaining and its scope. discussion upon this proposal, I believe that it was the in FONG: At the present time, dealing entirely with intra tent of the majority of the Committee on Industry and Labor state commerce, excluding interstate commerce, if a group that this provision was to be effective only by statute. In 682 INDUSTRY AND LABOR other words, it was to be made a right by statute. Is that I believe there shouldn’t be any fear at all on the part of correct? It’s not a constitutional right, as I read it now, those people who feel that there is in this section the creation but would be a right only granted by statute. - - there wUl be in this section the creation of a labor mono poly. Certainly, and it is my conviction at this time, the MAU: If I get the question correctly, you are asking legislative power of this state, the future State of Hawaii, whether the committee, the majority of the committee, under its police power, following the pattern of the powers believes it should be in the Constitution or out. The answer of the Congress will exercise and continue to exercise under is in the Constitution. the police power of the federal government, to so regulate HEEN: You mean it’s a constitutional right? If it’s a collective bargaining in the interest and the welfare of all constitutional right, then you can cut out the words, “pre the people. scribed by statute” - - “as prescribed by law.” KELLERMAN: May I answer the judge - - the question CHAIRMAN: There’s another member of the committee put by Delegate Heen, having referred to my explanation of would like to reply to you. my position on these amendments. I was a member of the Bill of Rights Committee and sat in several times on meet BRYAN: I think the fair answer to that question would ings of Labor and Industry to hear this matter discussed. be—and I stand corrected by any of the members of the I asked the question several times, “What do you mean by committee who would like to argue—it’s a constitutional the right to collective bargaining? What does the term right, or an exercise of other rights which has formed a ‘collective bargaining’ mean?” The answer given me by new right which is recognized in the Constitution to be those who were in favor of the provision without the addition exercised under statutory provision. Is that correct, of the four words that we are discussing or those of Mr. Chairman Mau? Heen’s amendment, the answer given was it must be defined HEEN: If that is so, what I had proposed would be correct in the light of present statutes, It seems to me that points then. That is, it is a right to be exercised in accordance up the very question. If you have a constitutional right to with law. Listening to Delegate Kellerman, I got from her collective bargaining, and you don’t know what collective remarks that it is not a constitutional right, but it is a right bargaining means except by the statutes that have been to be prescribed by law. enacted to define collective bargaining, then it seems to LARSEN: Could I just answer that? As I saw it, and me the constitutional grant of a right is the granting of an again stand to be corrected, that why it was worded that way absolutely indefinite and undefined right. was it was a right, but it was so fluid that at the present time Now admittedly there may be no harm in writing in an there was no definite definition; but it should be recognized undefined right if you add that it can be exercised only in that it was there to be changed as defined by law. Therefore, accordance with law. There may be no harm done because it couldn’t be put down as something rigid and specific at if you have a right which cannot be exercised or can be ex the present time because there was no actual definition of ercised in only one way, it’s immaterial if someone argues “collective bargaining” at the present time. that the right means something other than someone else thinks it means. The right in itself is simply the declaration MIZUHA: The reason I’m speaking on this section is be of an idea. The exercise in accordance with law is the meat cause it was taken up in the Committee of Bill of Rights of the matter. also. In the Committee of the Bill of Rights it was made But I do feel that the using of the term, “the right to clear that although the right to organize and bargain collec collective bargaining” - - We all have the idea we think we tively had been recognized for a long time prior to the know what it means. Yes, we see it, we have it exercised passage of the Wagner Act in 1935, no appropriate measures in the 48 states, it’s been adjudicated in the courts, and the were taken by the Congress of the United States to enforce very fact of its indefiniteness that the courts didn’t know that right; and in the declaration and findings of the commit how far it should go, that the Congress was impelled to tees of the Congress of the United States with reference to enact a statute to define collective bargaining and that the support of the passage of the Wagner Act in 1935, they statute has been amended and undoubtedly will be amended did state that in order to correct certain abuses, labor again, it goes to the very definition of the language. It is abuses, the Wagner Act should be passed. And the Congress an undefined and indefinite language. of the United States passed the Wagner Act and found consti It’s for that reason that I feel we must have the additional tutional basis for the passage of the Wagner Act on the basis language, either “as prescribed by law” because that includes of the interstate commerce clause of the Federal Constitution. the concept of the power of the legislature to define the very Nowhere in the Constitution did they go to - - nowhere else language we are writing into the Constitution. If we can put in the Constitution did they go to when the government in Judge Heen’s amendment, I don’t think it will do harm. supported the fight in the case of the N. L. R. B. versus the I don’t think it frankly is as good as the original language of Jones and Laughlin Steel Corporation. That famous case the committee; but since it says “such right to be exercised gave constitutional basis and validity to the Wagner in accordance with law,” if the right is not completely de Act, because the Supreme Court ruled that on the basis of fined before then, by the time you prescribe how its going the interstate commerce clause that law was constitutional. to be exercised, you can achieve exactly the same result of In the philosophy of those states that have written into a limitation if necessary in the general interest. But I think their constitutions in the recent revisions like New York and that is the point that Judge Heen rose. Are you conceding a New Jersey and another state—I don’t recall in particular preconceived right to collective bargaining? I would say in now, Missouri I believe—this section was written into their a general undefined, indefinite sense, yes; but there is no state constitutions to protect any legislation that the state definition except by statute and we must leave it open for the legislature saw fit for and on behalf of workers in intrastate statutes to redefine as the change in labor relationships commerce only, because it was felt that the federal govern with industry change and progress. ment had already passed legislation with reference to those HEEN: May I ask the last speaker a question? Supposing workers who were engaged in interstate commerce. In order those four words were deleted, would it not then become a to serve as a constitutional basis for the validity of legisla constitutional right? tion with reference to the type of legislation that Congress has passed for goods entering interstate commerce, these states KELLERMAN: I think it would become a constitutional passed these various sections in their constitutions on the undefined and indefinite right unless it would be construed right to organize and bargain collectively. by the courts to mean only that which we have now under 683 JUNE 23, 1950 • Morning Session existing statutes, and that is the construction that has been define the methods, so we can proceed with collective placed upon it by the Court of Appeal of New York and the bargaining. If you want that in the Constitution, it’s up to Supreme Court of Missouri. I submit that type of definition the delegates.. which is the only definition that our courts will have to go CHAIRMAN: Mr. White. I’m trying to give everybody by would be restrictive upon any subsequent change in the a chance. definition of that language which may become necessary in the public interest. WHITE: I’d like to reply to the question which - - my answer is directly opposite to the delegate from Kauai. In HEEN: That.answer, as I understand it then, is this; my opinion, the right to organize for the purpose of collec that that right, no matter how indefinite, would be a consti tive bargaining is not a constitutional right, it’s a statutory tutional right. As I understand It then, according to this right. language here, with the four words included, it was to be come only a statutory right. And is that pointed question NIELSEN: I’m not going to take much time. The reason correct? I would like to see these three little worth eliminated, or four words, is that what we want to do is write in this Consti KELLERMAN: May I answer that? I would say this tution something for labor, and we want peaceful labor re much, it does not become only a statutory right, only in the lations here in the islands. Nationally they have been shoot sense that it is the definition of what your language means. ing at the same target, and we have it in the N. L. R. B. and If you use something completely undefined as a right, you the Taft-Hartley. Now let’s shoot at that same target by don’t know what you are giving or how you can limit it. It’s eliminating these words because without them, the State an indefinable thing. can still regulate abuse of collective bargaining. There is If you ask John Doe on the street, “Do you know what no question in anyone’s mind but what abuses, the same as collective bargaining means?” He’ll say, “Sure, it means abuses of the press or speech or anything else, can be that the boys can get together with a union, hold an election regulated by the State legislature. So I think that we should by majority vote, then choose a bargaining agent and they can be about ready to take a vote on this on the principle that it go in and bargain with management. Of course, I know what is in the modern constitutions, that it is in our federal laws it means, everybody knows what it means.” and that without these four little words in there we still have But that’s the point. What does it mean in law? What the power to regulate abuses of it, and it will be a good does it mean in the sense of the scope of its definition? healthy thing for good industrial-management-labor relations. Does it mean that only in one business can you organize and bargain collectively., or can you organize every busi YAMAMOTO: Under the Bill of Rights, the Bill of Rights ness in the territory and one union Involved collectively? is the declaration of the dignity of the individual as a member What are the limitations? What is the scope? What are of the state. So, therefore, I feel collective bargaining is the methods that can be used? a constitutional right and is an economic right, so, therefore, I believe the phrase “as prescribed by law” should be out. HEEN: I want the Chair to get a yes or no answer, whether or not under this language here complete, whether or not it ROBERTS: I’d like to dispel some notions as to the pur would be a statutory right or is intended to be a statutory pose of this language in part and its import. We didn’t right. Someone ought to be able to answer that question yes write into this proposal a proposal dealing with statutory or no. matter. This proposal is for the purpose of protecting the ARASHIRO: In answer to the last speaker, my objection right to organize for the purpose of collective bargaining as to the deletion - - my motion for the deletion of the four a matter of constitutional right. We did recognize, however, words is because it changes that right from constitutional that they are subject to reasonable regulation by the legis right to statutory right, and if we recognize that right as lature, and the language that came out was “as prescribed a constitutional right, then as we are changing and as we by law.” The suggestion made by Senator Heen is that that are progressing ahead, and we do not go backwards. We be changed to read “such right to be exercised in accordance recognize that right and it should be a constitutional right. with law.” But that right is a constitutional right; that’s the Answering the lady delegate from the fourth district who basis upon which I voted on the question. said that word “collective bargaining” is not clear, well, I’d like to suggest, too, in answer to some previous ques when we wrote our Constitution, our Federal Constitution, tions, that that right has always existed. The right of col I don’t think the freedom of speech and freedom of religion lective bargaining is a right of collective action. There is and all those things were clear then, built has been regu nothing strange or confusing about the word. It has been lated and it’s still not clear as to its interpretation. It has defined by the courts; it has been defined in part by statute. been always brought to court for a clear definition. And in But so have other things. The term “collective bargaining” fact, many of our English words are subject to clarification. is a changing term, that’s true; but it changes as the courts In fact, a simple word like R-U-N, run, used to be limited change, and I’ve read a lot of constitutional decisions by as to its use. Today when you look into Webster, it has the courts where for over a period 120 years they couldn’t more than 90 definitions and uses. So those things can be make up their minds. That doesn’t mean that we cannot put interpreted and be regulated in some manner. That is the down the language, “collective bargaining.” reason if collective bargaining is not clear it can be clari I might suggest from the point of view of American labor fied through statute and it can be clarified through the history, to reply to Mr. Fong’s suggestion that we get a courts. So as I have stated, a word like R-U-N, simple little labor history here, that we have certain basic rights word like run, has been used in 90 different ways. So I feel in our Constitution, the right of assembly and certain rights that if this is a right that we recognize, it should be a consti which are now construed to protect the right to strike for tutional right, and at this time, I move for the previous ques specific purposes. Yet you find no longer ago than the tion. middle of the last century that there was very definite action taken by the courts in construing what those rights of assembly GILLILAND: The Constitution of the United States pro were, what right of organization there was. And the courts vides for the right to organize, in the words and language, said that collective action for the purpose of raising wages, the people shall have the right to freedom of assembly. for example, was a conspiracy in restraint of trade. It took But the word “collective bargaining” is a creature of us a long time to move from that area to the present time statute. It’s up to this Convention whether they want to when, both under the Wagner Act and the Taft-Hartley law, 684 INDUSTRY AND LABOR it is recognized as a matter of federal policy that collective MAU: Yes, Mr. Chairman. I believe that Delegate bargaining should be assisted and aided. Heen was not quite satisfied with all the answers that he I might like to read, or suggest the reading of just one got. I couldn’t get up here as chairman and make a categori paragraph of the Taft-Hartley law—that language was identi cal answer to his question because my committee is so cal with language in the Wagner Act and it wasn’t changed. divided. But speaking for myseif, there is no question that That section reads, “It is hereby declared to be the policy what is stated here today is statutory right. We do want to of the United States to eliminate the causes of certain sub make these statutory rights constitutional rights, otherwise stantial obstructions to the free flow of commerce and to we wouldn’t vote to put it in the Constitution. mitigate and eliminate these obstructions when they have Now, insofar as the words “collective bargaining” are occurred by encouraging the practice and procedure of concerned, if we had a majority on this committee we would collective bargaining”—the right of workers to get together have defined what collective bargaining meant in the Const for specific purposes, provided those purposes are not tution, but we preferred not to do that. Personally I did not unreasonable; that’s why we say that the legislature may want to do that, but to leave the method, the procedure of prescribe and regulate, but it has to be reasonable regu collective bargaining, to the legislature because the legisla lations and must not go contrary to the protection of that ture will have to go into all of the situations that they may right—”collective bargaining and by protecting the exercise meet in this community and determine whether or not they by workers of full freedom of association, sell-organization, want to follow federal procedures or whether they want to and designation of representatives of their own choosing, set up their own procedures and methods of collective bar for the purpose of negotiating the terms and conditions of gaining. But the right to organize for the purpose of collec their employment or other mutual aid or protection.” tive bargaining should be a constitutional right. That is Now there isn’t anything nasty about collective bargain the poskion of the majority of the committee. ing. It doesn’t take away the rights of individuals. Those Has the gentleman another question? individual rights are combined in an organization for the purpose of collective action. That’s recognized by the LEE: You haven’t answered my question yet, Delegate Taft-Hartley law. I would venture to suggest to the delegation Mau. As written, if we were to vote for the adoption of that we recognize the right, that we place it in our Consti the proposal submitted by your committee, as written, tution as was placed in the constkutions of the State of New wouldn’t we be voting saying that that right is not a consti York, the State of Missouri and the State of New Jersey, tutional right but a statutory right? which have most recently reviewed and reorganized their MAU: The answer is absolutely no. Take your right to constitutions. free speech, if you wanted to add, “as provided by law,” Now the language, “as prescribed by law,” or “such “in accordance with law,” “as prescribed by law,” what rights to be exercised in accordance with law,” merely would if be? Statutory, if it’s in the Constitution? I don’t recognizes that the legislature has the right of reasonable see it at all. regulation. I believe that right they have whether the words are there or not. That’s been clearly shown in the State LEE: Well, it seems to me that from the discussion of New York when the courts acted and it was shown very brought out - - well, we’ll leave that point. clearly in the State of Missouri. But in order to get the MAU: No, let’s answer that point. From the discussion agreement of the delegation, if those words would make brought out, there are two philosophies of thought, one, it some individuals feel that these are not to be unreasonable, should not go into the Constitution at all; the other, it should. then I say there ought to be no objection to the inclusion of That’s all, k’s as simple as that. those words, but we must recognize this to be recognized as a right, and whatever regulation there is must be regu LEE: What have you to say to this point that was brought lation which is reasonable. out, I believe by Delegate Kellerman, that the right of collective bargaining, collective action on the part of indi LEE: Will the speaker yield to a couple of questions? viduals, is a statutory right and therefore has no basis in Apparently the nine member majority of the committee are the Constitution. I have - - My own feeling is that rights in dispute as to whether or not this right is a constitutional of man or groups of men can be born, not only from customs, right or a statutory right as it is now written, because as mores of any society, but out of statutory action which can I understand it, Delegate White was a member of the com develop certain meanings to certain terms. For instance, mittee who signed the majority report. Is that right, Mr. in the section relating to due process clause, “No person White? shall be . . . deprived of life, liberty or property, without WHITE: That’s correct. due process of law.” The term “due process of law,” Mr. Mau, do you not agree has changed from the time of its ROBERTS: We did not discuss whether it was a consti adoption in the Federal Constitution up to the present time tutional or statutory right. We wrote this section in for as to ifs meaning? the Constkution, which makes if a constkutional provision. MAU: Certainly, and so will the words “collective LEE: It apparently is borne out from this discussion, bargaining.” and I am of the opinion at this moment, that as written if is a statutory right and not a constitutional right, so that LEE: Is that your opinion? In other words, you dis the members of the majorky who agreed with that report agree with the statement made on the floor of this commit thiaking if to be a constitutional right, actually were sup tee that the right of collective bargaining being of statutory porting it as a statutory right. Therefore, it would seem origin cannot be a constitutional right. to me that this committee at any rate, and this is very im MAU: I don’t agree with that, that if cannot be. In further portan~ that if we recognize this to be a constitutional answer to that, I might say this - - right, we should say that it is a constitutional right, and the step suggested by Delegate Heen is in that direction, PORTEUS: On a point of convenience - - believing that the right is a constitutional right and not a CHAIRMAN: This is not a debating society. statutory right. I also would like to ask the delegates - - I wonder if the chairman of the committee might care to PORTEUS: - - to all the other members, since we have remark on this position. a limitation on this matter till 11:30, I wonder if the chair man would ascertain who wishes to speak from now until CHAIRMAN: Chairman yield? 11:30 and allocate the time. There are some of us I know 685 JUNE 23, 1950 • Morning Session who wish to speak who have not wanted to jump up and com Now what is the benefit, if any, in this particular pete for the floor. We now have 25 minutes. I wish the sentence? The significance, if any, is something being chairman of the committee would ascertain those who haven’t conferred upon certain parties. Certain parties. Is it all spoken, how many there are, and allocate the time to them the people? No. It doesn’t apply to lawyers. It applies to so that - - people in private employment, and lawyers are usually in partnership, so they’re not in employment as such. It CHAIRMAN: There are 19 members of this committee refers only to a category of people. As I see the situation, that have spoken. There are some more that wish to be since it is the consensus apparently here that we shall adopt recognized. and approve of this right, it seems to me, therefore, ap FUKUSHIMA: I believe all of us here are talking some parent that we say you have this right. It is now a right times about things that are not tangible. We talk about that we’ve enjoyed since Roosevelt’s time in 1933, since rights. Delegate Roberts has stated that the right to bargain Franklin Roosevelt, only 17 years ago. We have now come collectively exists whether we have a statute or not. We to appreciate and say and graduated to that sense that it is cannot categorically state, as Delegate White said, that it is an inherent right. At this junction in our history, we’re a statutory right. Simply because a few states supply the going to further dignify that right in putting it into our Consti right of collective bargaining, that doesn’t make it a statutory tution. It, therefore, as far as I can see, simplifying the right. It’s a right existing under that statute. thing in my own mind, it is a constitutional right. I think the question is a little deeper than that. If that Now in this community, in this dynamic society, is this inherent right, the right that exists before it is incorporated right to be an unbridled right? Is this right going to a little in a statute, is incorporated then, and you call that a statu group to be a right not to be regulated? It’s as simple as tory right, that’s not proper. It’s not a statutory right; it’s that to me. And the words, “as prescribed by law,” or the merely a right existing under the statute. The question contribution by Delegate Heen, “such right to be exercised should be this, has that right, which has always been in ex in accordance with law,” the pertinent part about that situa istence and later incorporated into a statute, gained that tion is the reiteration of the word “such right.” And that’s dignity so that it should be more than a right just simply the point at issue. Such right, such constitutional right shall under the statute. If it’s an inherent right, it should be a be prescribed by law. I am voting either for that or the constitutional right if we place it in our Constitution. other, not for the deletion, because, and I say to labor, I beg to differ with the chairman of the committee. Sim why shouldn’t the community be assured that the power of ply because we have it in our Constitution doesn’t make it labor shall not outgrow itself and become so powerful that a constitutional right, if you provide restrictions by the the other people will suffer. The words are to put a brake, legislature. I think we aretalking about things which we to put a safeguard, to make clear and assure the other can’t even define. If we say that the right is inherent, people of the community who are not in private employment whether we have it in our statute or not is immaterial. You that, by jove, in this society we are against bigness and have that right, it’s not a statutory right. unregulation. We are for law, and we are - - we want to Now we also heard that if we do have it in our Constitution, assure the legislature and assure the other people, not so leaving out any thought about a statutory right, it will become much labor, but assure the other people of the community, an undefined right. I beg to. differ there. It may be unde who make and provide for labor’s wages, to assure them fined, but so are a lot of the other rights which we have and they are entitled to know precisely where they stand. written into our Constitution. Certainly the word “collective It seems to me that the Central Labor Council should be bargaining” is not a word of art; certainly the words “due assured and when they go along with this situation I think process of law” are not words of art. It’s subject to inter they are being fair-minded. pretation, and simply because we cannot define it categori BRYAN: What I wanted to suggest was that the Committee cally and state collective bargaining is this, does not mean on Industry and Labor have a short five or ten minute caucus that it is an undefined right. to see if we can come together on a more proper solution. A. TRASK: I would like to simplify the thing as much as Is that agreeable with the chairman? possible in my own mind. We have immediately the Central Labor Council’s inquiry; it says, the last paragraph, “We PORTEUS: If they are going to caucus, then the rest of urge your adoption of Committee Proposal No. 28,” which us might as well. No use of us talking in the absence of the is apparently the sentence under discussion. The inquiry committee. We all might just as well take a recess. from this letter is, they want to know, unequivocably, CHAIRMAN: Ten minute recess is declared subject to whether or not the legislature can, upon its convening when the call of the Chair. the Constitution is adopted, say to labor that you cannot organize to bargain collectively. That is the question that (RECESS) this letter poses. Now, whether it’s a right given under the statute or by virtue of statute, whether you’re going to call it a statutory right; whether or not it is printed in the CHAIRMAN: Delegate Heen is recognized. There are so Constitution, you are going to call it a constitutional right. many standing that I couldn’t see him for the trees. We have written such words as “public welfare” in the Constitution. Who’s going to define “public weifare”? It’s HEEN: In order that we may vote on the question of a word of equal magic or illusiveness. What’s going to deleting the four words, I will now withdraw my amendment. decide the situation? The courts. Under what cases? PORTEUS: I now move, in accordance with the amend Precise concrete cases, as they come up. Controversies ment placed on the desks, to delete the words “as prescribed will decide the definition of words through the hot fire of the by law” in the third line of Section 1 of Committee Proposal judiciary. No. 28; and substitute therefore the words, “such right to Now, is it constitutional or is it regulatory? As far as be exercised in accordance with law,” as distributed on the I see, the question would be more definitely pointed if we desks. said here that we would suggest that the right given by con gressional legislation, the right to collective bargaining to DELEGATE: Point of order. people in interstate commerce, that such right does not exist. If we put that in the Constitution, that would be a CHAIRMAN: Mr. Been’s mbtion was the first. Is there constitutional denial of a right. any second to Senator Heen’s motion? 686 INDUSTRY AND LABOR HEEN: Mine was not a motion. I withdrew my amend remarks in closing before the question is put. We have ment. been arguing on the floor all morning as to whether this was DELEGATE: I’ll second Delegate Porteus’ motion. a statutory right or a constitutional right. I believe there were some misstatements made because the Supreme Court ARASHIRO: Point of order. The motion on the floor now in the Jones and Laughlin decision, Chief Justice Hughes is to delete the four words and the amendment is contrary recognized that labor had the right to organize for collective to that motion. Is that right? action long before the Wagner Act was passed. The Wagner CHAIRMAN: The Chair will rule that your motion should Act was passed In order to put teeth in and to enable the be considered first. federal government to enforce that right. I believe that in the event that we have words in the Constitution - - on a LUIZ: Point of special privilege. The committee was constitutional right in the Constitution, “as prescribed by not in unanimous agreement on that. law,” I will be mere folly to write it into the Constitution. CHAIRMAN: The question is - - CHAIRMAN: All in favor - - PORTEUS: Can’t we have a vote on the amendment as proposed? If you delete some words, it’s fair enough to DELEGATE: I call for a roll call vote. substitute some others in lieu thereof; if people don’t want CHAIRMAN: Roll call has been asked for. All in favor that, they can vote it down. We can get at this in some of roll call, please show their hands. There’s enough. All reasonable order. in favor of the amendment of Mr. Arashiro to delete the four words, “as prescribed by law,” please vote “aye.” CHAIRMAN: The Chair would take it that was an amend Those opposed vote “no.” Clerk, call the roll. ment to the amendment, and I think you have to first put the amendment. Ayes, 47. Noes, 11 (Apoliona, Bryan, Cockett, Gilliland, PORTEUS: No, Mr. Chairman, as you know from legis Hayes, Holroyde, Kellerman, Tavares, A. Trask, White, lative experience, you don’t put the amendment and then put Wirtz). Not voting, 5 (Anthony, Castro, C. Rice, Sakai, the amendments that are pending to it. First, you put the Silva). amendments to the amendment and then it builds right on CHAIRMAN: The motion to delete these four words has back to the original section. carried. J. TRASK: A point of order. I do not believe that Mr. Porteus’ amendment was an amendment to the amendment. MAU: I’d like to offer an amendment to the first sentence of Proposal No. 28 by adding after the word “bargaining” a PORTEUS: Yes it is. comma, and in place of the words after the comma, “such CHAIRMAN: Would you state your amendment over right to be exercised in accordance with law.” again? CROSSLEY: I’d like to second that motion. PORTEUS: I move to amend the amendment that has been CHAIRMAN: Ready for roll call. Clerk, call the roll. presented by the delegate from Kauai, to read as follows: Motion has been made - - Have you the words? delete the words “as prescribed by law” in the third line of CLERK: To amend the Proposal 28 by adding after the Section 1, Committee Proposal No. 28, and substitute there- word “bargaining” a comma and inserting after the comma, for the words, “such right to be exercised in accordance “such right to be exercised in accordance with law.” with law,” heretofore known as the Heen amendment. J. TRASK: That is the exact motion that Mr. Arashiro CHAIRMAN: You have heard the question. All in favor made with the exception of the including of other words of this amendment say “aye.” Opposed, “no.” Clerk, other than “as prescribed by law.” So the motion as put by call the roll. the chairman stating that Mr. Arashiro’s motion was in Ayes, 29. Noes, 29 (Akau, Arashiro, Ashford, Corbett, order, that his motion should take precedent over the motion Doi, Fong, Fukushima, Ihara, Kage, Kam, Kauhane, Kawa - - over the amendment made by Delegate Porteus, and I hara, Kawakami, Kometani, Lee, Loper, Luiz, Lyman, believe the Chair so moved. Mizuha, Noda, Ohrt, Okino, Phillips, H. Rice, Sakakthara, Serizawa, St. Sure, Yamamoto, Yamauchi). Not voting, 5 CHAIRMAN: The question is whether we vote on Delegate (Anthony, Castro, C. Rice, Sakal, Silva). Arashiro’s motion to delete the four words. CHAIRMAN: The motion fails. BRYAN: Point of information. LEE: I move that the proposal before the committee CHAIRMAN: Delegate Mau, chairman of the committee. pass as amended. MAU: In that event, if that is the procedure, I serve notice that after that amendment, if it passes, as chairman ARASHIRO: Second the motion. of the committee, I will introduce a motion to insert the TAVARES: Mr. Chairman, I should like to change my words, “such right to be exercised in accordance with law.” vote from aye to no. CHAIRMAN: That’s your privilege. CHAIRMAN: Too late. PORTEUS: Mr. Chairman, do I understand your ruling PORTEUS: I move that this committee now rise, report to be that the amendment offered by me is out of order. progress and ask leave to sit again. CHAIRMAN: That’s right. WOOLAWAY: I second that motion. PORTEUS: While I don’t agree with the Chair at all, J. TRASK: Have we got a motion before the floor? however, if that’s to be the rule, we could appeal it but I see no point in that. In view of the statement by the chair CHAIRMAN: Yes, the motion is that the committee rise, man of the committee that he would offer this if it is deleted, report progress and ask leave to sit again. I am satisfied to withdraw the motion at this time. J. TRASK: There was a motion to adopt the section as MIZUHA: As proponents of the motion, with the other amended and seconded. fellow delegate from Kauai, I would like to have a few more CHAIRMAN: That’s correct. 687 JUNE 28, 1950 • Afternoon Session LEE: It seems to me we could decide the question right KING: I understood that Delegate Crossley wanted to here and then proceed with other matters. The matter of be recognized to incorporate in the Committee of the time is very important; we have a lot of other matters Whole report, perhaps, a statement with reference to the to consider. report. PORTEUS: Mr. Chairman, it happens to be noon. We CROSS LEY: I hope that I can have the full attention of were to rise at 11:30. the delegates because I would like to speak on this subject, on industry and labor. I’d like to do it without prejudice CROSS LEY: Point of order. to any of the actions which we have taken. I’d simply like CHAIRMAN: State your point. to make a statement, not representing big business because I don’t represent big business; not small business because CROSSLEY: When this committee resolved itself into I’m not small business; I’m the man that’s caught in between. Committee of the Whole, it did so until 11:30. That time I’d like to address my remarks to those who are not direct has now passed. ly involved in industry or those who are not directly involved DELEGATE: Point of order. in labor as such or industry as such; school teachers, the man on the street, the person who does not understand the CROSS LEY: It’s incumbent upon us to follow the mandate position, the strong positions taken by either side on this. that was made to this committee when we were seated. After we had taken action the other day and had defeated CHAIRMAN: As the Chair has stated before there was the majority committee proposal, after we had defeated no mandate; it was just a suggestion. Delegate Heen’s amendment, I became quite concerned again as to what industry’s position was because labor’s SILVA: I was going to answer that. There’s no motion position was pretty well spelled out. I wanted to know if we to that effect. I would suggest that the Chair put the question. had written in a section which was to be titled “Industry and MIZUHA: Put the question as to the adoption of the Labor,” simply a statement for labor. I talked with a num article. ber of judges. I wanted to find out for myself what this CHAIRMAN: Are you ready for the question? could mean to me as a member of industry. The first question I asked was, does this give labor any rights they DELEGATES: Question. Question. do not now have. The answer was an unqualified no. I said, DELEGATE: Point of information. What is the question? does this in any way jeopardize industry in the rights that they now have. The answer was a qualified no. I asked CHAIRMAN: The question is on the article as amended further what the qualification would be. They said that on with those four words out. a permanent basis, the answer could be an unqualified no, DELEGATES: Roll call. but that the answer couldn’t be given in that way, and this is what I would like to bring before the attention of the dele CHAIRMAN: Are you ready for the roll call? The gates here. question is on the amended article without the - - as you The answer was simply this. That if “as prescribed by know it was amended and the four words, “as prescribed law,” “authorized by law,” “in the public interest,” “regu by law,” were taken out and a period was put after the lation in the public interest,” or any such phrase as that word “bargaining.” The question is now on the article as [is left out] that if the legislature at some future date enacted amended. All in favor will answer “aye”; opposed, “no.” a law, that probably a union could go in and enjoin the attor Clerk, call the roll. ney general, whoever it might be, from putting that law into effect until it had been determined whether or not the legis Ayes, 51. Noes, 7 (Bryan, Cockett, Hayes, Holroyde, lature had that power. I asked then what would be the case Kellerman, Tavares, White). Not voting, 5 (Anthony, if the words “as prescribed by law,” “authorized by law” Castro, C. Rice, Sakai, Silva). were in there, and I was told that probably the court would SAKAKIHARA: I at this time move that any motion for rule that it was, unqualifiedly, the right of the legislature reconsideration be indefinitely postponed. to do those things because it set it forth. Now then, they also said, that right will exist whether DELEGATE: Second that motion. those words are there or not, but there could be an injunc CHAIRMAN: The Chair will rule that out of order. We tion issued; not necessarily, but there could be. That would haven’t done it heretofore, unless the Convention feels differ be a question the courts would have to rule on at the time the business was put to them, and I’m thiaking now of what that could mean in terms of my own industry, in terms of J. TRASK: I move that the committee rise and report pineapple. At this time of the year pineapple ripens at the progress and beg leave to sit again. rate of about three to four per cent of your total crop a day. MIZUHA: Second the motion. Almost any delay would be disastrous to an individual com pany as far as their pack was concerned for that season. In CHAIRMAN: You have heard the motion. All in favor the case of a company the size of ours, smallest In the in of the motion to rise, report progress and ask leave to dustry, a delay of ten days - - As I understand it, they have sit again, please say “aye.” The ayes have it. 48 hours to file their first injunction, there’s 48. If an injunction is filed, there’s 48 hours to answer. It easily JUNE 28, 1950 • Afternoon Session could go into a minimum of five days and into a maximum of ten days, and I multiplied ten days times our crop and I could see ruin for a small company like mine. CHAIRMAN: Committee come to order. Therefore, my appeal to the delegates is simply this, that if in their judgment there is no difference between DELEGATE: Mr. Chairman, has the report been putting some words in there that spell out a right that printed? Is It here somewhere? everyone says exists, if by doing that we could prevent a dis CHAIRMAN: The reports are not on the desks. This is astrous delay in getting a ruling that in the final analysis is simply to take it up so as to give it a number and then it going to be the same ruling, it’s simply going to be delayed, will be printed, and then take it up later. Do you make that shouldn’t we give further consideration to it? I am not that a motion that the - - going to move for reconsideration; I’m not going to speak 688 INDUSTRY AND LABOR again on the subject. I, however, wanted to put into the KING: The committee report is fairly short. I don’t record my own search into what this would mean and what it know whether the Convention wants to waft until it’s printed might do to industry in the islands if it is left the way it is. and distributed. It’s not really necessary. The Clerk could Now, maybe I’m being overly pessimistic, maybe the read ft and if we adopt ft today and pass the article on second injunctions wouldn’t be granted, or maybe they could be reading it would then go to Style for any further changes in adjudicated in the course of 48 hours, which would certainly phraseology and be ready for third reading. I second the not be too’ disastrous. I’m not trying to throw a fear com motion made by Mr. Fong. plex into anyone. I’m not saying that the words of the men that I talked to are final in themselves, and that others HEEN: I would like to read that wrftten report. I think couldn’t have different opinions. I did tell them that in a ft’s very important that every delegate should inform him- discussion of this it was generally agreed, and I don’t think sell or herself as to what the contents are. ft was ever disagreed, that the section in itself was assumed J. TRASK: I move for a short recess subject to the call to mean that the legislature would have, under all circum of the Chair. stances, the right to regulate, to reasonable regulation in HEEN: I move that this committee rise and report prog the public interest. ress and ask leave to sft again. Thank you all very much for giving me this opportunity to speak. CHAIRMAN: In the meantime we’d have the report printed. ARASHIRO: Can I say a few words in line with a state I think that’s better. ment made by my colleague from Kauai? PORTEUS: On that understanding, I’ll second the motion. I, who stood up and backed up for the insertion of this CHAIRMAN: You’ve heard the motion. All in favor please clause, did not stand up because I felt that it was a Magna say “aye.” Opposed, “no.” The ayes have ft. Carta for labor or a protection for labor or anything partic ularly for labor, but because I felt that it was something for the future State of Hawaii, and that is the reason why JUNE 30, 1950 • Morning Session I backed it up. And my reason for the deletion of “as prescribed by law,” as I previously stated, as ft is in the CHAIRMAN: The commfttee will come to order. The record now, was that that meant statutory rights. So I felt Committee of the Whole Report No. 12, on the last page of that if we are going to have anything in the Constitution, this report the Chair has made an amendment so that after ft should be constitutional rights and as the word stands to the words, “For the reference hereinabove set forth your day, it is a constftutional right and it does not restrict the Commfttee recommends,” and “(a),” I have amended ft to legislature. Again, for the record, I wish to reemphasize read “that Standing Committee Report No. 79 be adopted, my stand by saying that these do not restrict the legislature with the exception of the recommendation as to the adoption from reasonably regulating any future labor and industry of Proposal 28 as submftted by the standing commfttee.” legislation for the good of the State of Hawaii or the public. The Clerk is getting this mimeographed and I think that is CHAIRMAN: Anybody else got anything to say? Other all in order now. You have read the report and a motion is wise - - in order to adopt the committee report. FONG: I move that we adopt the committee report. ASHFORD: I move the adoption of the commfttee report and that the article be recommended for second reading. CHAIRMAN: Well, I think that you would want the com mittee report printed and be on your desks first, wouldn’t LAI: Seconded. you? Tentatively approve the committee report, is that CHAIRMAN: You have heard the motion. All in favor right? please say “aye.” Opposed. Carried. / Debates in Committee of the Whole on MISCELLANEOUS MATTERS (Articles XIII and XIV) Chairman: ALEXANDER H. F. CASTRO JUNE 26, 1950 • Afternoon Session APOLIONA: I second the motion. CHAIRMAN: Will the Committee please come to order. YAMAUCHI: In writing this article, we have referred to Mr. Porteus. the Model Constitution, Article IV, and to Article III of the New Jersey Constitution and found that this article of the PORTEUS: Delegate Porteus to you, Mr. Chairman. distribution of powers is found in 41 state constitutions. We Mr. Chairman, I would like to thank the chairman for his feel that it is traditional and basic that these three powers courtesy in loaning to this Convention the bell of the Junior of - - three branches of government have separate powers, Chamber of Commerce in order to signal when people have and that there be no over-concentration of powers in any one exceeded their time and have spoken too many times on the branch; that the separation of these powers would provide same subject. Yet I’ve had very little opportunity to utilize for independence of each branch of the government; and al the bell. Our only hope is that when the bell is returned to so that in the event that the powers be granted to one parti the Junior Chamber of Commerce, it does not effect the cular branch which in principle is not their own, such powers Junior Chamber with the air of debate that has been so ex should be expressed in the Constitution. tensive around here. However, before going further, the committee would CROSSLEY: Mr. Chairman, may I say that whatever like to make an amendment to the original article by chang the Chair wishes to call the honorable delegate from the ing- - by deleting the word “departments” on sentence two fourth district, you will be sustained, Mr. Chairman. and four and insert the word “branches.” This is in - - this change was made by the New Jersey Constitution when the PORTEUS: A point of order. new Constitution was drafted. CHAIRMAN: Pardon me, Mr. Crossley. CHAIRMAN: There is a motion to amend. Is there a PORTEUS: If the ex-chairman will remember his own second? request that no one speak until recognized, I think the SMITH: I’ll second that motion. progress of the deliberation for this Committee of the Whole will be facilitated. Thank you. CHAIRMAN: The motion is to amend the section so that the word “departments,” appearing on the second and the CHAIRMAN: That is correct. Thank you very much, fourth line will be deleted, and inserted in lieu thereof the Mr. Porteus. I hope you don’t have to use that bell too word “branches.” Any questions? often. HOLROYDE: The “departments” appears also on the - - C. RICE: I’d like to know if the Secretary has a stop three places in that section. Shouldn’t it be replaced in watch or is he running by that clock? every instance? CHAIRMAN: The Secretary has a watch which I’ve CHAIRMAN: Where is the third place, Mr. Hoiroyde? observed is keeping perfect time. HOLROYDE: I stand corrected. I’m reading the wrong C. RICE: Stopwatch? section. CHAIRMAN: Now we have before us, you will notice SAKAKIHARA: On the fourth line. in the general orders of the day, several standing committee reports with their accordant committee proposal. The RICHARDS: I believe the punctuation is wrong; in the second line after the word “branches,” there should be a chairman of the Committee on Miscellaneous Matters, Mr. Yamauchi, has asked that we consider these in the order colon and not a comma. that they are on the general orders of the day for Monday, CHAIRMAN: Do you move to insert a colon in lieu of a June 26, and the first Standing Committee Report is No. 62 comma? with Committee Proposal 18. RICHARDS: I so do. YAMAUCHI: The Standing Committee Report No. 62 and Committee Proposal No. 18 pertain to the distribution CHAIRMAN: Is there a second? It’s been seconded. of powers. The committee has agreed to the final article That a colon on the second - - which reads as follows: ROBERTS: Couldn’t we leave that to Style, instead of The powers of government shall be divided into three putting commas and semicolons in, if it’s the sense of the separate and distinct departments, legislative, executive committee? and judicial; and no person or persons belonging to or CHAIRMAN: Well, the motion has been made and seconded constituting one of these departments shall exercise any now. of the powers properly belonging to either of the others, except as otherwise expressly directed or permitted in BRYAN: Point of order. I don’t think that has anything the Constitution. to do with the motion before the house to amend by putting This article was agreed upon after - - the word “branches” in and I think it should be held if it’s to be made. I believe it’s out of order now. J. TRASK: So that we might have something on the floor, I so move that we tentatively adopt Section 1 of Committee CHAIRMAN: Chair stands corrected. The motion before Proposal No. 18. the house - - Will you withdraw that motion for a moment, 689 690 MISCELLANEOUS MATTERS Mr. Richards. The question before the house is the inser provision. The Model Constitution, as I recall it, doesn’t tion of the word “branches” in lieu of the word “departments” have such a provision. At least, I can’t find it. Just be on the second and the fourth line. Any questions as to that cause New Jersey put it in I don’t see the necessity for it, motion? All those in favor? Opposed. Carried. and I think we are borrowing trouble by putting it in. TAVARES: I would like to ask the members of the com CHAIRMAN: Do you wish to move for the deletion of the mittee whether the Federal Constitution has any such article, Delegate Tavares? specific provision about separation of powers? TAVARES: I think that we should vote not to adopt this. CHAIRMAN: You ask that question of whom? I shall therefore vote against adoption of the article. TAVARES: Of any member of the Committee on Mis WIRTZ: I’d just like to state that I had some hand in cellaneous Matters. this inasmuch as this originated in Proposal No. 100. I examined many of the constitutions of the various states, CHAIRMAN: Is there any member of the committee that and I would say offhand without subject to check that it appears would like to answer that question? Mr. Yamauchi. in three-fourths of the state constitutions, this very state YAMAUCHI: I’d like to ask the sub-committee chairman ment. As far as the objection raised by the delegate from on distribution of powers to answer that. Mr. Smith. the fourth district, we have this exception, “except as other wise expressly directed or permitted in the Constitution.” SMITH: Just a moment; I’ll get that. That covers the veto power. CHAIRMAN: Mr. Lai, do you want to answer the ques FONG: May I ask Delegate Wirtx this question. The tion? Board of Health sets forth rules and regulations; that is LAI: Is this article right now approved? Did we vote on the power of the executive. In setting forth rules and regu this? lations, they legislate. How are we going to attack that by this provision? CHAIRMAN: No, no. The vote, Mr. Lai, was to substi tute the word “branches” for the word “departments” where WIRTZ: I think that the delegate from the fifth district it appears on the second and fourth line. We are now knows how I feel about rules and regulations of the various considering a question that has been asked by Mr. Tavares. boards, but I think that that is permitted in the - - would be permitted in the Constitution. LAI: Well, may I ask another question? FONG: Well, it says here, “except as otherwise express CHAIRMAN: There is a question that we are waiting on ly directed or permitted in the Constitution.” Nothing in our right now, Mr. Lai. While we’re waiting for that, Mr. Lai, Constitution permits it, expresses it. do you have another question? Mr. Tavares, if you will wait a moment. WIRTZ: Doesn’t the executive article - - CHAIRMAN: If you will please confine your remarks to LAI: I don’t see any necessity of having this article in the Chair so that we can get this on the tape recorder. the Constitution. I don’t know what is the purpose behind this, the intent of the committee in having something like FONG: There is nothing in our Constitution which ex this. pressly permits the Board of Health to make rules and regu lations. That is a statutory function, and the power is given SMITH: I am not able to find that, but it calls for three by law. Now if we pass this proposal, then I can feel we’re distinct branches of government. All we are actually in going to be up against a lot of difficulty. tending to do here is reiterating that there should be three branches of government having separate powers, “and that WIRTZ: I agree with the delegate from the fifth district, there be no over-concentration of powers in any one branch. unless we have something in either the executive or the leg This is to preserve the principle of check and balance which islative article. Unfortunately, I missed the debate on the is the very essence of our representative form of govern executive article, and I haven’t brought myseif up to date yet. ment; that these powers so delegated be distinct and not over But it was my impression that that subject would be covered. lapping insofar as practicable.” FONG: I move that we delete the words from “and no CHAIRMAN: Mr. Yamamoto, do you wish to add to that person or persons belonging to” and so forth right down to answer? the end, leaving, “The powers - - YAMAMOTO: I just want to clear one item. This article, CHAIRMAN: The Chair didn’t get the deletion. Where I see it in theState of New Jersey, page 6, “Distribution of does it start? powers of government.” It’s in there. FONG: Leaving only the first two and a half lines, “The TAVARES: It is my recollection that there is nothing powers of government shall be divided into three separate in the Federal Constitution specifically requiring separation and distinct branches, legislative, executive and judicial,” of powers, yet the courts have within reasonable limits and delete the rest of the sentence. protected the separation of powers because of the theory CHAIRMAN: That is your motion? implicit in the document. Now, it is not true that three FONG: My motion. departments can operate as though each is in a vacuum of its own. They overlap over large fields. The governor has CHAIRMAN: Is there a second? a veto; therefore, he exercises legislative power to some SAKAKIHARA: Second it. extent; and so on down the line. Each department has to do a little overlapping. CHAIRMAN: Delegate Sakakihara seconds. Any discus Now, when you have a general document that gives legis sion on the motion to delete? Place a period on the third lative power to one department, executive power to another line alter the word “judicial,” and delete the balance of the department or branch, and judicial power to a third branch, paragraph. Any discussion? Call for the question. All you have implicit in the document the separation of powers. those in favor please say “aye.” Opposed. The ayes have But when you put a specific provision in there, I think you it. are heading for trouble. The Federal Government has had HOLROYDE: I move that Committee Proposal No. 18 no trouble over a hundred and fifty years without such a be adopted as amended. 691 JUNE 26, 1950 • Afternoon Session SAKAKIHARA: I second it. this Constitution.” All those in favor please say “aye.” Opposed. The Chair is in doubt. All those in favor please CHAIRMAN: Moved and seconded to adopt the article as raise their right hand. Pardon me, would you get them up amended. again please? Opposed? The ayes have it. ROBERTS: I’d like to call the attention of the delegates PORTEUS: Having voted with the majority, I move to to the fact that there are some things in our Constitution reconsider the action. I think this should be debated a little which don’t quite conform. I would suggest, therefore, that further. some proviso be put in there as was in the second sentence, “except as expressly provided in this Constitution.” So that CHAIRMAN: Your motion is to reconsider for the reason the first sentence would read, “The powers of the govern of wanting to debate further? ment shall be divided among three distinct branches, the TAVARES: Yes. I don’t think it’s been adequately legislative, the executive, and judicial, except as expressly considered. provided in this Constitution.” Now there may be some overlapping of powers. Usually CHAIRMAN: Is there a second to it? the overlapping of powers is in terms of assignment of indi TAVARES: I second the motion. viduals, but it also may deal with the assignment of functions. And I have some concern, similar to that expressed by Mr. CHAIRMAN: Thank you, Delegate Tavares. It has been Tavares, to the effect that there may be situations where you moved and seconded to reconsider our action as to this have some overlapping of functions, and you don’t want it to amendment. All those in favor. Opposed. The question be declaredunconstitutional where that is done. We do want, is open. however, to keep the basic premise and basic content that PORTEUS: I think that the delegate from the fourth dis we ought to have three distinct branches from the point of trict, Delegate Roberts, had in mind that unless you added view of separation of powers and balance of power. But we these additional words, that it would be more restrictive have to be careful that we don’t tie our hands on that. than our intent had been. But I think that if those words CHAIRMAN: Do I understand that to be a motion, Dele are not put in, and if then we tarn to the amendment offered gate Roberts? Do I understand that to be a motion to amend? by the delegate from Molokal with respect to the deletion of “separate and distinct,” we will then have this proposal in ROBERTS: I’d like to suggest that to the delegates as an such form that it will not be too restrictive, and It will not amendment. cause us trouble in the future. It will be a clear declaration KAWAHARA: I second that motion. by the Convention that it subscribes to the theory that there are three branches of government, legislative, executive ASHFORD: The more I read this, the more I’m concerned. and judicial. I do think when you say “distinct,” “separate and distinct It is true that there has been a great overlap between the branches,” you are really running contrary to present day various ones. Many people in the executive departments are facts. We know that the executive branch of government is actually performing legislative functions with the rule-mak more and more empowered with legislative functions by the ing power. At the same time, many of those in the executive legislature itself; and we know since the New Deal that there department are exercising judicial or, as people like to say, has been a great deal of judicial legislation; so that we do quasi-judicial powers. They are making regulationä and they have a merging of functions in many instances. I think the are sitting in on the interpretation of their own regulations use of the words “separate and distinct branches” will lead to see whether people have observed them or have not ob to confusion and litigation. served them. Board of Agriculture and Forestry, the Board CHAIRMAN: Do you propose to delete them, Delegate of Health, many of the other departments of government have Ashford? been clear examples. ASHFORD: Yes. So I think that we would do better not to adopt the amend nient offered by the delegate from the fourth district; then A. TRASK: I second that motion. proceed to the addition - - the deletion of these other words. CHAIRMAN: There is an amendment by Delegate Ashford Since there is only one amendment before this Convention to delete the words “separate and distinct” in the second and since this argument seems to presuppose that we will line, which has been seconded. So that the first part of that then move on to Delegate Ashford’s amendment, I think it’d sentence would read, “The powers of government shall be be quite in order to move that the words as suggested by divided into three branches, legislative, executive and Delegate Roberts be deleted and that the words “separate judicial.” Now, if I may suggest - - if the Chair may sug and distinct” also be deleted. I so move. gest, we have a previous amendment which has not yet CHAIRMAN: If I may call your attention to the fact that been voted on, and so I believe that I must ask you to with the amendment is by way of an addition. Your amendment - - draw the amendment for the time being, Delegate Ashford, and we’ll discuss the amendment which is an addition to PORTEUS: I move that it be further amended so as to the amended article, adding a comma after the word “judicial,” provide that the only things that will be - - and adding the words “except as expressly provided in the CHAIRMAN: I believe, Delegate Porteus, that you must Constitution.” Any further discussion on that amendment? confine yourseif to speaking against the amendment. A move The Chair will put the question. to delete is equivalent to a mOve to table. TAVARES: Before we vote on that, it seems to me that with or without Delegate Ashford’s amendment and without PORTEUS: I think you’re quite correct. Delegate Roberts’ amendment, if our Committee of the CHAIRMAN: You are speaking then in opposition to the Whole report very strongly states that this is simply decla amendment? ratory of the general rule of division of powers set forth PORTEUS: I am speaking in opposition to the amendment as the scheme is embodied in the Federal Constitution, and and I must admit that my opposition to the amendment also is intended to be merely declaratory of that, we could prob presupposes the support for the elimination to the words ably take care of it without these other amendments. “separate and distinct,” as proposed by the delegate from CHAIRMAN: The question before the house now is Molokal. But I think that if we do take that out, do not adopt whether to add the words “except as expressly provided in the phraseology suggested by Delegate Roberts, that we will 692 MISCELLANEOUS MATTERS then have this in such form that we agree that we really CHAIRMAN: Delegate Yamauchi, do you wish to answer want it. that question? KAWAHARA: In speaking for the inclusion of that amend YAMAUCHI: I have appointed a sub-commktee chairman ment, I’d like to point out to the Convention here the words, who has looked into the matters and he will make a report “powers of government.” As I see it, if we leave out the in regard to this article. I’ll turn it over to Mr. Smith. proposed amendment, it would mean that powers of govern ment be divided only to the three departments. As I see it, CHAIRMAN: Delegate Smkh will answer that question. our Constitution is going to be drawn up so that there will SMITH: We did not have Miss Lewis in on the committee be one section, for example, on the Bill of Rights. If I meeting. But I’d like to state the object of this separation look at that section, I see that there is a statement to this was not simply to block action, it was to promote more effect, that all government is founded on this authority, wholesome action by segregation of incompatible functions that is, “All political power of this State and the responsi and placing responsibility for each function on the organ bility for the exercise thereof is inherent in the people.” best capable of discharging it. I’m wondering then if by deleting or not including this amend ment, does it mean then that the power in government is CHAIRMAN: Is there any further discussion on the restricted only to three departments in government? Does amendment? it mean then that the sections on suffrage and election, the HOLROYDE: Is a motion in order to delete the whole sec sections on Bill of Rights, does it mean then that those tion? sections do not apply, that the power of government is not CHAIRMAN: Not at the moment. The amendment was inherent in those sections? by way of an addition. I believe we have to dispose of the question as to the amendment before we can vote to delete CHAIRMAN: You ask that question of whom? Mr. the entire section. The Chair so rules. Tavares, do you wish to answer if? ASHFORD: The discussion here seeming to favor the TAVARES: The more I think about this, the more I amendment which I offered and which was withdrawn for fear adopting any part of this article. I realize that work this, has convinced me that the entire section ought to be has been done by a committee on it. However, without written into the Constitution. criticizing the committee at all, I would like to say that the report does not clear up in my mind a number of ques CHAIRMAN: The entire section should be written in? Now, there is an amendment before the house. tions which are beginning to bother me quite a bit. For instance, today we have a separate tax appeal procedure CROSSLEY: Point of order. I believe that a motion to and a tax appeal court. Will that be invalidated by this delete would always be in order. If anyone wanted to make provision? They are not made a part necessarily of our that motion, if would be in order. courts, but there is a final appeal. But there might be such a thing as making the tax appeal court final on valua CHAIRMAN: The motion to delete the entire article? tions which is desirable because then you can put experts CROSSLEY: That’s correct. on it and not have ordinary judges who just do all kinds of legal work passing on real estate valuations. We have CHAIRMAN: Despite the fact that there is an amendment boards today exercising quasi-judicial functions, revoking pending? licenses alter hearing, granting licenses after hearings, CROSSLEY: If the motion to delete the entire article and doing a lot of things after hearings; acting in a quasi- carries, then the other would be academic. Therefore, that judicial capacity. What effect is that going to have, this pro motion is in order, if the Chair wants to accept it. vision on those boards? I do not have the answer in the report and I suppose that CHAIRMAN: Well, the Chair feels that while you may for the time available, the members of the committee prob possibly be correct, that would be at the present moment ably won’t have it either. We’ve got to remember we’ve got unfair to those who have debated the amendment. a lot of eggs here in our basket that might be broken if we KING: I would speak in favor of the pending amendment. put the wrong kind of gadget down inside of them that doesn’t However, there is some difference of opinion and it might quite fit, and I am not sure that it fits. be better to defer action on this particular proposal. The For that reason, I feel k’s very, very dangerous to put committee followed, I think, the precedence established by this kind of a provision in without again a very intense study the constitutions of New Jersey and Missouri, both of which as to the effect it will have on the existing setup of our state - - governmental machinery. For that reason, with all due - - with apologies to the hard working commktee, I hope they PHILLIPS: I second that motion. won’t feel offended at my saying, I think we should not KING: - - both of which states and many other states adopt this. have simflar articles. The phraseology might be amended CHAIRMAN: You are speaking, Delegate Tavares, against to more clearly reflect the desire of this Convention. I the adoption of the entire article? therefore move that we defer action on Committee Pro posal No. 18 and proceed to consider the next proposal TAVARES: Yes. I have changed my mind after thinking that the committee wishes to offer. the matter over. PORTEUS: I second that motion. CHAIRMAN: I’d like to ask the delegates to confine their CHAIRMAN: It’s been moved and seconded that we defer remarks to the amendment, so that the faster we can dispose action on Committee Proposal No. 18 for a later date and move on to the next committee proposal under Miscellaneous. of the question on the amendment, the sooner we can get to All those in favor please say “aye.” Opposed. Carried. the question on the entire article. We will now take up Committee Proposal 19, which is HAYES: Point of information. I would like to know from covered under Standing Committee Report No. 63. the chairman of the committee whether the office of the YAMAUCHI: I move that the Committee Report 19 - - attorney general has been at their meetings and advised Committee Proposal 19 and Standing CommIttee Report No. them on these proposals. 63 be tentatively adopted. JUNE 26, 1950 • Afternoon Session 693 YAMAMOTO: I second the motion. KING: While Delegate Shimamura Is looking up the exact committee proposal, the proposal was originally introduced, CHAIRMAN: It’s been moved and seconded to adopt I believe, by Delegate Trask and referred to the Committee Committee Proposal No. 19. on Ordinances and Continuity of Law. They have adopted and ASHFORD: I’d like to move an amendment to that. reported out a proposal that covers employment. This covers Change the period following the word “ability” within quotes, the oath, so it really will cover the subject on two sides. to a comma, and add the following, “and that I do not advo TAVARES: That ordinance is, rather, proposal is Com cate or belong to any party, organization or association mittee Proposal No. 24, Section 1. which advocates the overthrow by violence of the government of the State of Hawaii or of the United States.” CHAIRMAN: Committee Proposal No. 24? YAMAMOTO: Second the motion. TAVARES: Section 1. That provides for the disquali fication to hold office or employment. It doesn’t provide CHAIRMAN: It’s been moved and seconded that an for the oath. amendment by way of an addition be placed. Would you read it once more, Delegate Ashford, slower. A. TRASK: Delegate Ashford says that she will accept an amendment to - - as follows: after the word - - the third ASHFORD: May I say, incidentally, that that is the word, “officers,” insert “and employees”; so that the language used in that amended H. R. 49 that came to us some commencement of the section would read “All public officers weeks ago. and employees.” And further, that after the word “re CHAIRMAN: I see. Now would you read that again, spective offices” - - please? Thank you. CHAIRMAN: Will you speak into the mike, please? ASHFORD: “And that I do not advocate or belong to any A. TRASK: And the further amendment, after the party, organization or association which advocates the words “respective offices” in the second line, under the overthrow by violence of the government of the State of word “public officers,” insert “and employment.” Hawaii or of the United States.” CHAIRMAN: AIter the word “respective offices” - - CHAIRMAN: Is there any discussion on the amendment? A. TRASK: Insert the words “and employment.” YAMAUCHI: The committee concurs and is willing to accept such amendment. CHAIRMAN: “And employment”? CHAIRMAN: The committee accepts the amendment. A. TRASK: Yes. KING: Before the question is put, I should like to ask CHAIRMAN: I understand this is part of the amendment the chairman of the Committee on Ordinances and Continuity of Delegate Ashford? of Law if such an oath has been handled by his committee. ASHFORD: I will accept the amendment. May I restate the question? I just wish to ask the chairman of the Committee on Ordinances and Continuity of Law If he CHAIRMAN: As I understand the amendment, just to has covered the same subject, or is it agreeable to him to clarify it in everyone’s mind, on the first line after the word have it covered in this particular proposal? “public officers,” there is to be added the words “and employees.” CHAIRMAN: Delegate Shimamura, you wish to answer that question? A. TRASK: Correct. SHIMAMURA: May I state that there is no section in CHAIRMAN: And on the second line, after the word ordinances and continuity of law that provides for an oath. “respective offices,” to be added the words “and employment.” It does provide that no person who belongs to a party - - A.TRASK: Correct. who advocates or belongs to a party, organization or associ ation which advocates the overthrow by violence or force KAWAHARA: The word “Constitution” there, “the consti of the government of the State of Hawaii or of the United tution of the United States and the constitution of the State of States shall hold any public office of profit or public employ Hawaii”—this is just a matter of style—I wonder if the word ment. “constitution” shouldn’t be spelled with a capital C? CHAIRMAN: Does that answer your question, Delegate CHAIRMAN: I think we can leave it to the Style Committee. King? TAVARES: Again I’m wondering if we aren’t going a little KING: Yes. There’s no conflict; It covers two phases too far here. I want to point out a situation where it may be of the same problem. necessary and desirable for the State to employ even aliens HEEN: May I ask whether any action was taken on that or non-citizens to do certain things for the State, perhaps particular provision? It seems to me I’ve seen it some outside of the State; or to get experts in some field, in a where, perhaps In a proposal submitted by your committee, particular epidemic or some kind of a very intricate scienti Delegate Shimamura. fic situation, who would not be citizens of the United States or citizens of the State. And, therefore, we might have SHIMAMURA: There is no provision on an oath, but there trouble. I am thinking now of commissioners of deeds. In is a similar provision preventing any person who advocates foreign countries, we may not be able to get a citizen. There or belongs to any party, organization or association which are many people who employ a citizen of the United States as advocates the overthrow by violence of the government of a local consul for a foreign government. If they make them Hawaii or of the United States from holding public office take that oath, they are likely to make them eliminate their or public employment. citizenship. If you are going to hold it for officers, I think CHAIRMAN: Correct. at least I wouldn’t put it in for employees because of that situation. You may, for instance, appoint a fiscal agent in HEEN: Where can we find that? Under what proposal? New York who isn’t a citizen of Hawaii. Should he be sworn SHIMAMURA: There is no action taken on such an oath. to uphold the Constitution of the State? I don’t know. Or a It never was presented. The committee proposal is - - Constitution of the United States? In case you have a fiscal 694 MISCELLANEOUS MATTERS agent in some foreign country, is he going to be asked to on amendments to her amendment, and her amendment has uphold the Constitution of the United States? It may be we already been accepted by the sponsors of the original article. should make some exceptions here. CHAIRMAN: Thank you. The Chair stands corrected and KAGE: In reference to the amendment to - - I’m opposed I do feel that we should vote on the amended section up to the to the amendment to include the word “and employees.” If present time, to clear the way for further discussions. Delegate Trask would read the report of the committee, he However, the Chair will recognize the chairman of the com will notice that it includes all public employees also, and I mittee, Delegate Yamauchi. am not of the legal profession but I think the legal interpreta tion of all public officers takes in all those things. YAMAUCHI: The reason for accepting the amendment by Delegate Ashford is, originally the committee considered A. TRASK: In response to that inquiry - - statement, I’d the sentence, “The legislature may prescribe further oaths like to say that in the consideration of the section with re or affirmations,” would cover the loyalty oath that has been spect to the employment of people who are in parties, associa mentioned this afternoon. However, we accepted the amend tions or other subversive organizations who are being ex ment. That’s all. cluded from the—that’s the amendment of Senator O’Mahoney —we expanded the expression “officers” and adopted addition CHAIRMAN: The Chair feels that there has been suff i dent discussion on the proposed amendment so far, and would ally the word “and employees” so that there will be no person like to put the question. in the government of the State of Hawaii who would be either an officer or an employee of the government who would be LUIZ: Point of information. I would like to understand long to any subversive organization. this thing here. You have two parts, “All public officers and employees.” Are you breaking that down into two LOPER: I’d like to call to the attention of the previous different parts with the amended section from Delegate speaker that if you put “and employees” in the first line and Trask? in the second, he has also to put it in line 6. CHAIRMAN: Your question is whether or not that is CHAIRMAN: Perhaps it would be well for the Chair to included in the amendment that is about to be put in the read the entire article as proposed to be amended. question? All public officers and employees shall, before enter LUIZ: Yes. ing upon the duties of their respective offices and employ ment, take and subscribe to the following oath or affirma CHAIRMAN: It is included at the present time. The tion: “I do solemnly swear or affirm that I will support Chair has recognized the amendment. and defend the constitution of the United States and the KAGE: I don’t think the word “and employees” is included constitution of the State of Hawaii, and I will faithfully in this amendment we are voting on now. The committee discharge the duties of the office of to the best of did not accept “and employees.” We only accepted the my ability; and that I do not advocate or belong to any addition after “my ability”; so we are not voting on “and party organization or association which advocates the employees.” overthrow by violence of the government of the State of Hawaii or the government of the United States.” The J. TRASK: I’d like to speak in favor of this amendment. Legislature may prescribe further oaths or affirmations. CHAIRMAN: Just a moment, Delegate Trask. On the Now at the moment, the question before the house is whether point brought up by Delegate King, that is correct. So the or not we will adopt the article as just read. latter amendment, the addition of the words “and employees” in the first line and the addition of the words “and employ BRYAN: I think as you read that, there should be a comma ment” in the second line has not been accepted by the com after the word “party” and before “organization,” so it would mittee. Is that correct? be “party, organization or association.” KAGE: That’s correct. CHAIRMAN: That is correct. “Belong to any party,” CHAIRMAN: In other words, the present amendment— comma, “organization or association.” and the Chair would like to ask the cooperation of the dele A. TRASK: In response to the observation made by gates at the moment to get the first amendment out of the Delegate Loper, he is in order. It would therefore, be way so that we may more intelligently discuss the others— necessary, to be consistent with the amendment at the the only question before the house at the present time is the commencement of the first sentence, on the sixth line, addition to the oath in quotations, and that addition reads, which reads as follows, “I will faithfully discharge the “and that I do not advocate or belong to any party, organiza duties of,” should be inserted “my employment or”; then tion or association which advocates the overthrow by violence it would read on “the office of _.“ That would be in order. of the government of the State of Hawaii or the government Would Delegate Ashford accept that? of the United States.” The question is whether or not to add that to the section. ASHFORD: I would, but I think you need in brackets, “as the case may be.” SHIMAMURA: Under the requirements of H. R. 49, and under the proposal in line with H. R. 49, in the section on A. TRASK: “As the case may he,” that’s correct, or a ordinances, the words “force or” appeared before “violence.” slant. I wonder if the delegate lady from Molokai will accept that CHAIRMAN: Let me get this straight. Have you accepted amendment and also the chairman of the committee. a form of amendment, Delegate Ashford, to your proposal? CHAIRMAN: You are quoting from the requirements of KING: The chairman of the committee accepted Delegate H.R. 49? Ashford’s original amendment, but now Delegate Asbford SHIMAMURA: Requirements of H. R. 49. Include the is being asked to accept amendments to her amendment, and words “force or” before “violence.” I think that should be the chairman of the committee hasn’t had an opportunity to so amended. express his opinion. I suggest the Chair recognize the chair man of the committee to see whether those amendments are ASHFORD: I think that’s a paraphrase of “vi et armis” and going to be accepted; otherwise, we are going to be voting I accept it. JUNE 26, 1950 • Afternoon Session 695 CHAIRMAN: You have accepted. How about the commit TAVARES: Yes, with the qualification I made that - - tee? We have one little matter that I don’t know just how to take care of, but I’d just call it to the attention of the delegation. YAMAUCHI: We also accept it. YAMAUCHI: If you would read the report there in the CHAIRMAN: Accepted. Any further question on this last sentence, It says, proposed amendment? As relating to this proposal, the phrase “all public DELEGATE: Question. officers” applies to political, as well as executive or CHAIRMAN: All those in favor please say “aye.” Opposed. judicial officers of this State, to officers of the political Carried. subdivisions, i.e., counties, cities and counties, muni Now, are there any further amendments to be offered? cipalities or other subdivisions of this State and to all employees therein. A. TRASK: I move for the amendment, as indicated hereto fore, that after the third word in the section, insert the word, HEEN: When we speak of officers, we mean officers. after the word “officers,” “and qmployees.” Then on the In the Organic Act there is a provision that no person hold second line toward the end, after the word “offices,” insert ing public office shall be eligible for election to the legis “and employment.” And then in the sixth line, after the word lature. That has been interpretated by the courts here. “duties of,” insert “my employment (or).” For instance, the notary public is an officer, and he cannot FUKUSHIMA: I’ll second that motion. run for election to the legislature unless he resigns that particular office. There have been employees who have CHAIRMAN: It’s been moved and seconded to amend the run for election to the legislature and they have served in article as stated. the legislature. For instance, employees, take of the County of Hawaii, have been elected to the legislature with A. TRASK: The reason for this, I feel certainly that all out resigning from their positions of employment, as dis of us would certainly want Dr. Reinecke to take this oath if tinguished from officers. So there is no question that there he becomes an employee. He won’t be an officer of the Terri is a marked distinction between the term “offices” and tory, but he certainly would be an employee, and I think he “positions of employment.” should be confronted with this oath, so that there would be no doubt in the minds of anyone here. Under no circumstances CHAIRMAN: Any further discussion on the proposed would Dr. Reinecke as an employee of the Territory of Ha amendment? The Chair will now put the question. waii be considered an officer. Officer of what? I want to say to the committee, it doesn’t appear from YAMAUCHI: The committee accepts the amendment. your record—and, Delegate Kage, I have looked at your CHAIRMAN: The committee accepts the amendment. report—I want to say that there are decisions in our court, All those in favor please say “aye.” Opposed. Carried. particularly with reference to election laws, that officers Now we come to the original motion which is to accept are given a certain category as distinguished from employees, the article. I think that motion should be amended to accept and certain laws apply to officers which do not apply to the article as amended. employees. So, out of caution and so forth, as we say, to the amendment of Senator O’Mahoney, to H. R. 49, with ASHFORD: I confess myseif very much concerned over respect to subversive people not being in the employment the remarks of Mr. Tavares on the commissioners of deeds of the State, I believe it is altogether pertinent that we and so forth. I think that some consideration should be include these expressions, “employees.” That’s why I’m for given to that before we adopt the section irrevocably. the amendment. CHAIRMAN: I think, Delegate Ashford, in the absence CHAIRMAN: Any further discussion on the amendment? of any discussion, that if you feel that way the thing would be to move to defer. KAGE: My source of the information is the attorney general’s office. When the question “all public officers” KING: I so move. was brought up, I went to the attorney general’s office and CHAIRMAN: Is there a second? I asked them for the clarification of the words “all public officers.” And this is what he gave me. “All public officers” KING: I think it’s pretty clear that we are in favor of applies to political, as well as executive or judicial officers the article as amended, but we do want to cover the point of the State, and so forth. I think that is an over-all, gener raised by Delegate Tavares, so I move that we defer action al phrase that catches everything. And I would say that on Committee Proposal No. 19 till a later time. quite a number of these things that we are talking about, YAMAMOTO: Second it. employees and things of that sort, they would be statutory. CHAIRM&N: It’s been moved and seconded that we defer TAVARES: I am very sorry to differ with the gentleman action on Committee Proposal No. 19. All those in favor who has just spoken, but I am very certain that the word please say “aye.” Opposed. Carried. “office” is very definitely not held by the courts to include Next committee proposal before the committee is Com employment. It is a very, very - - one of the very strong mittee Proposal No. 15, covered by Standing Committee rules of construction of the courts. The interpretation Report No. 56. given the gentleman meant officers of a county, officers of a municipal subdivision, officers of any lesser agency YAMAUCHI: I move that Committee Proposal No. 15 of the State, but they still are officers. They didn’t say and Standing Committee Report No. 56 be tentatively adopted. employees and from the citation read by the gentleman, APOLIONA: Second the motion. employees isn’t mentioned. And there are thousands and thousands of decisions, I think, that distinguish between CHAIRMAN: It’s been moved and seconded to adopt office and employment, and many in our own Territory have Committee Proposal No. 15. distinguished between the two. There is a very clear dis APOLIONA: Speaking for adoption of the proposal, your tinction between office and employment. subcommittee on boundaries of the Miscellaneous Committee CHAIRMAN: You are speaking then in favor of the amend went into this boundary subject in all detail. The services ment? of the legislative bureau, the services of Mr. T. Awana and 696 MISCELLANEOUS MATTERS James Dunn, of the survey office, and the services of Miss to election or prior to appointment to these various offices. Lewis of the attorney general’s office were had. So, therefore, there should be some saving clause here The committee followed as much as possible the language under this provision that perhaps, “The word ‘state’ where- of the Organic Act. In Section 2 of the Organic Act, it says ever used in this Constitution shall apply to the Territory, unless obviously repugnant.” That the islands acquired by the United States of I’ve just been handed a provision perhaps which would America under an Act of Congress entitled “Joint reso take care of this situation. lution to provide for annexing the Hawaiian Islands to the United States,” approved July 7, 1898, shall be When a term of service or of residence under or in known as the Territory of Hawaii. the state is required, the time of service or residence under or in the territory shall be construed as under or in But your committee has improved on the language so the state, and continuity of operation of the territorial that it could leave no doubt in the interpretation of the and county retirement, civil service and classification boundaries of our future State of Hawaii. The language as systems under the state and the counties shall be preserved proposed in the article, until otherwise provided by law. The islands and territorial waters heretofore consti Now the latter part of that I had nothing to do with it. I tuting the Territory of Hawaii shall be known as the don’t know whether that will create more confusion or not. State of Hawaii But I was just talking about residence in the state. is the language that has been adopted by the subcommittee CHAIRMAN: Do you offer this as an amendment? on boundaries. We have before us - - I think each delegate was presented with three maps prepared by our Territory HEEN: Somebody handed this to me, I’d like to have that of Hawaii [Survey] office showing the islands, and the islands party be responsible for it. were to include islets, reefs, rocks and whatever you have. PORTEUS: I agree with the chairman of the Legislative So at this time, I ask that the chairman put the question. Committee. I think when the committee drafted that arti CHAIRMAN: Any further discussion? cle, as well as when the Committee on the Judiciary drafted that article, I think there they required that attorneys be TAVARES: The report is splendid and the article is just admitted to practice before the supreme court of the State about the best that you could have. for about ten years, if I’m not mistaken. Now, somewhere CHAIRMAN: Glad it has your blessings, Delegate Tavares. along the line, we have to agree that when we refer to the If there is no further discussion, the Chair will put the ques state, when we talk about qualifications - - tion. CHAIRMAN: Delegate Porteus, if I may interrupt you, NIELSEN: It says nothing here about any additional land the amendment has not yet been offered. contributed by Mauna Kea or Mauna Loa. PORTEUS: That’s what I’m trying to forestall, Mr. CHAIRMAN: That is correct. Chairman. The thing is that I think that this should prop All those in favor please say “aye.” Opposed. Carried, erly be handled in one of the ordinances of the Constitution unanimously. rather than in the Constitution, It’s certainly not something Now move on to Committee Proposal No. 21, covered by that is necessary for the continuing framework of our gov Committee Report No. 65. ernment. AIter a certain number of years, it really ought to drop out of sight; and as an ordinance, I think it could YAMAUCHI: I move that Committee Proposal No. 21 and be more easily be dropped out of sight than by writing it Standing Committee Report No. 65, be tentatively adopted. into the Constitution and having to specifically amend the DOWSON: Second the motion. Constitution later in order to get such terminology out of the way. CHAIRMAN: It’s been moved and seconded that Commit tee Proposal No. 21 be adopted. Is there any discussion? CHAIRMAN: Yes. Delegate Tavares. HEEN: If I may suggest, it might be included in the TAVARES: Just a minute. I haven’t found my copy yet. schedule where that schedule contains a lot of provisions which sooner or later will become functus. That’s where CHAIRMAN: We are now discussing Committee Proposal it properly belongs, but somebody will have to remember No. 21, covered by Standing Committee Report No. 65. it when we get to schedules. The proposal reads as follows: CHAIRMAN: I take it, therefore, that the amendment Whenever in this Constitution the term “person,” is not going to be presented? Is there any further discussion “persons,” “people,” or any personal pronoun is used, on the article as it stands? the same shall be interpreted to include persons of both sexes. TAVARES: A matter of clarification. Naturally I am not in a position to examine every article, every provision It’s been moved and seconded to adopt this section. Is there as to whether this fits, but I take it that it is understood any discussion? Delegate Tavares, have you found the pro that this definition isn’t intended to force the legislature or posal? the State to treat women and men absolutely the same in all situations. HEEN: I think this is one place where we can take care of the use of the term “state.” That has been used several CHAIRMAN: Heaven forbid, Delegate Tavares. times with reference to those qualified to vote, with ref er TAVARES: That there is going to be a power of classifi ence to being eligible for appointments to the bench, with cation. reference to being eligible for election to the legislature. In various articles, you find the term that no person shall CHAIRMAN: Yes, I am sure there will be. be eligible for appointment to the supreme court or to the TAVARES: I say this because, while I think the provision circuit court unless he shall have lived in the state for three is unnecessary, I am not going to oppose it. years or more. Now, when the Constitution is adopted, there will be no one here living in the state for three years prior CHAIRMAN: Any further discussion on the article? 697 JUNE 26, 1950 • Afternoon Session HEEN: It says here, “or any personal pronoun is used, CHAIRMAN: I believe, Delegate Ashford, that we are the same shall be interpreted to include persons of both committed to taking up these various proposals as they come sexes.” In a lot of places in the articles which have already up. Have you determined that they don’t belong in any one been adopted, you find the personal pronoun “it,” so shall that of those places?. be construed as being him or her? ASHFORD: I move to amend that proposal by adding an CHAIRMAN: I don’t believe that’s a personal pronoun, other section to it. Delegate Heen. CHAIRMAN: Which proposal, Delegate Ashford? HEEN: Personal pronoun is - - oh I see, that refers to ASHFORD: The one we just - - persons, is that it? CHAIRMAN: Would you like to add it to the next one that CHAIRMAN: That is a pronoun. was coming up? DELEGATE: Maybe Dr. Larsen would like to clarify that. ASHFORD: Well, I’d like to - - CHAIRMAN: Is there any further discussion on the arti SILVA: I would like at this spot to move that we recon sider our actions so that Miss Ashlord can get her amend NIELSEN: I question the last two words. How can a ment in. person be of both sexes? C. RICE: Second the motion. CHAIRMAN: Is there any further discussion on the arti CHAIRMAN: I wasn’t trying to stop Delegate Asbford. cle? Delegate Larsen, will you answer Delegate Nielsen’s Delegate Ashford, I was just trying to find out, do you want question, please? to bring in an entirely new proposal or an amendment to a proposal? LARSEN: There are people who have both sexes. ASHFORD: I can’t bring in an entirely new proposal; CHAIRMAN: Thank you very much. I thought so all along. therefore, it must be an amendment and it can - - AKAU: Ijust wanted to clarify two things. In the first place, “it” is neuter, so it might not refer to either. And, CHAIRMAN: There is no proposal before the committee. I think, “interpreted to include persons of both sexes,” That’s what I’m trying to point out. perhaps there should be some parenthesis put down, “or ASHFORD: Well, may I have the consent of the Convention either sex” when it refers to one. It just would be more to read it; then anybody who wants to can - - the Chair or clarification, but it isn’t absolutely necessary. I think as anybody else can decide where it should go. It should cer it is, it’s all right. tainly go in. CHAIRMAN: Ready for the call for the question? All CHAIRMAN: Proceed. those in favor please say “aye.” Opposed. The ayes have it. Carried. ASHFORD: Now I believe it is the intention of the committee to con The style of all process in the State courts shall here tinue until 6 p. m. or thereabouts. The Chair will therefore after run in the name of “The State of Hawaii,” and all call for a very brief recess. prosecutions shall be carried on in the name and by the authority of the State of Hawaii. KING: I was going to suggest that we maybe finish one more proposal and then rise. We have some little business That is the language of the Organic Act excepting from on the desk, so that we’ll conclude by about 5:30 or 5:45, Territory to State. It must go in the Constitution, in my but I have no objections to a five minute recess. opinion, and I don’t know where else it should go now ex CHAIRMAN: Five minute recess is ordered. cept - - KING: May I ask Delegate Ashford, would that provision not properly come under ordinances or would it more prop (RECESS) erly come under miscellaneous matters? ASHFORD: It shouldn’t come under ordinances because H. RICE: I move for the adoption of Committee Proposal ordinances are of a temporary nature and this is permanent. No. 13. KING: If Delegate Ashlord would preserve her amend SAKAKIHARA: Second the motion. ment for a moment, we could ask the chairman of the com CHAIRMAN: It’s been moved and seconded to adopt mittee to bring up Proposal No. 12, which is the seat of Committee Proposal No. 13 which reads: government and her suggestion would very properly come as an amendment to that, as an additional paragraph to this State flag. The emblem of the Territory of Hawaii section. Is that agreeable to Delegate Ashford? known as the Hawaiian flag shall be the flag of the State CHAIRMAN: Do you feel that at the time that Section 12 of Hawaii. is brought up, that Committee Proposal No. 12 is brought Any discussion? up, that that would be the proper time for such an amend ment? DELEGATE: Question. CHAIRMAN: All those in favor please say “aye.” KING: I understood the chairman was about to ask to Opposed. Adopted unanimously. have that considered next. ASHFORD: I now move that there be inserted in one of CHAIRMAN: I see. Delegate Yamauchi. these reports something that hasn’t been covered yet and YAMAUCHI: I move that [Committeel Proposal No. 12 is imperative to cover. When the judiciary article was and Standing Committee Report No. 53 - - up, I talked to Mr. Anthony, the chairman of that committee, about it, and he said he thought it should go in Miscellaneous, CHAIRMAN: I don’t believe it’s necessary that you make so I have here provided it. May I read it? a motion. I think that as chairman of the Committee on 698 MISCELLANEOUS MATTERS Miscellaneous you indicate that that is the next proposal AKAU: Is it legal terminology to use the word “run”? that you wish to take up; the Committee of the Whole will I’m not familiar with it and I just simply asked. go along. CHAIRMAN: Pardon me, the Chair didn’t get your ques YAMAUCHI: Would it be necessary to make any motion? tion, Delegate Akau. CHAIRMAN: Not nccessary as far as the Chair is con AKAU: Delegate Asbford answered it really. I was ask cerned. The next committee proposal to come before this ing about the legal terminology of the word “run.” I didn’t committee is Proposal No. 12, along with Standing Commit know how it was being used here, but apparently it is a legal tee Report No. 53. Is there a motion to adopt? term with which I am not familiar. YAMAUCHI: I move that we adopt Committee Proposal CHAIRMAN: The word what? No. 12. AKAU: “Run,” the second line. CHAIRMAN: Is there a second? HEEN: That’s correct. That’s one of the 90 meanings KAGE: I second the motion. that can be used in connection with the word “run,” as CHAIRMAN: It’s been moved and seconded to adopt pointed out by Delegate Arashiro the other thy. Committee Proposal No. 12 which reads as follows: CHAIRMAN: Is there any discussion on the amendment? The seat of government of this State shall be located PORTEUS: I’m not satisfied that.this is an eásential at the City of Honolulu, on the island of Oahu, unless amendment. I’d like time to look into it. I don’t know in otherwise provided by law. what other style the process in the State courts would run, Any discussion? save in the name of the State. ASHFORD: I move we delete that section and insert ASHFORD: In many courts it runs in the name of the instead the amendment which I read. people. KING: Will the lady delegate yield for a question? I PORTEUS: Well, so long as the process runs effectively thought Delegate Ashford was going to add that on as an in criminal prosecutions, I don’t think it makes much differ additional phrase. ence whether it runs in the name of the people of Hawaii, or whether it runs in the name of the State of Hawaii. That to ASHFORD: Yes, but I don’t like the original section, me is not particularly a constitutional matter. so I moved to delete that. ASHFORD: Well you’re wrong. It was considered neces DELEGATE: Second the motion. sary and desirable to have it in the Organic Act. It seems to me that when we’re starting with the State, the very thy KING: If Delegate Ashford offers her proposal as a alter we become a State we should know how that process substitution, she is likely to lose the proposal. should run. ASHFORD: I’ll offer this as a second section, and ask PORTEUS: I think we can handie that in ordinances. that the second section be voted on first and then perhaps Incidentally, if the Organic Act is a test, I think we’d we can move it up to Section 1. better spell out all the homesteading laws, because the homesteading laws are spelled out in detail in the Organic CHAIRMAN: You are offering an amendment? Are you Act. But I don’t know if the Organic Act always is the best in the process of offering an amendment, Delegate Ash! ord? thing to turn back to. ASHFORD: Yes. In order to give time to look into this problem, I move that action on this committee proposal, or rather, on the CHAIRMAN: Well, would you please read it then, thank amendments be deferred. Then we can see whether we you. wish to adopt the question of the seat of government and ASHFORD: following that, we can come back to this Committee Pro posal 12 at some later time. I move that the proposed The style of all process in the State courts shall here- amendment and Committee Proposal No. 12 be deferred till alter run in the name of “The State of Hawaii,” and all a later sitting of this committee. prosecutions shall be carried on in the name and by the authority of the State of Hawaii. YAMAUCHI: Second the motion. I have copies that could be distributed. CHAIRMAN: The Chair’s understanding is that you are asking for deferment of Committee Proposal No. 12 and CHAIRMAN: Is there a second? the proposed amendment. All those in favor please say SAKAK[HARA: Second. “aye.” Opposed. Carried. Committee Proposal No. 12 is deferred. CHAIRMAN: There is a second to the motion to amend. Delegate Yamauchi, you wish to take up Committee Pro Would the messengers please distribute. posal No. 14 at the present time? SMITH: I don’t believe that’s germane to the section. YAMAUCHI: No, we would like to make a change in Therefore, it should be put in a separate part of this pro here. posal, if the chairman so thinks. CHAIRMAN: What’s that? Fourteen? CHAIRMAN: It is added, I believe, as a second section YAMAUCHI: We would like to make a change in here in of the proposed article. the order. SMITH: I believe that this new addition is properly or CHAIRMAN: Yes. more germane to the - - coming under general provisions. That was one that we had in the Constitution, statements KING: I suspect there will be considerable discussion like this which we want to have in, we could insert. on this next proposal, the State seal. There seems to be two schools of thought. The discussion may run a little CHAIRMAN: Is there any discussion on the amendment? long. I would like to suggest that that proposal not be May I ask for a copy of that amendment? called up at this time. 699 JUNE 27, 1950 • Morning Session YAMAUCHI: The Committee would like to take up Com YAMAUCHI: The word “its”? The intention of the mittee Proposal No. 17. committee in regard to the word “its” referred to the State. CHAIRMAN: Committee Proposal No. 17 has been HEEN: You have states there and territory. called for by the chairman of the Committee on Miscella NIELSEN: Point of order. There is nothing before the neous, so that is before the house. That goes along with Convention. Standing Committee Report No. 58. Is there a motion to CHAIRMAN: Yes, there is, Delegate Nielsen. The adopt? Chair - - YAMAUCHI: I so move. HEEN: I think the word “its” is incorrectly used. It DOWSON: Second it. should have been, “their political subdivisions.” CHAIRMAN: The motion is to adopt Committee Propo CHAIRMAN: The question is as to - sal No. 17, which reads as follows: AKAU: A point of being purist - - On the excuse of being The legislature may provide for cooperation with the a purist, United States, it may be considered not as a United States, or other states and territories, and collective thing, collective word; therefore, you could very political subdivisions in all matters affecting the public well use “its. health, safety and general welfare, and may appro REEN: Well, what are you going to do about the words priate such sums as’ may be necessary to finance its “states and territories”? fair share of the costs of such activities. AKAU: In order to be interpreted - - Is there any discussion? Delegate Larsen, did you wish recognition? CHAIRMAN: Has your question been satisfied, Delegate Heen? LARSEN: Well, I was just wondering why it was necessary to spell it out. “Public health, safety and HEEN: No, it has not. general welfare,” whether that could be eliminated. I’d CHAIRMAN: Your question was what does “its” - - like to ask the chairman if it’s necessary, because I can conceive of matters relating to shipping and so on, busi REEN: I move that that word “its” be deleted and the ness, that might not be; of course, it probably would be word “their” be substituted for that word. general welfare. NIELSEN: Second the motion. YAMAUCHI: Call on Dr. Kawahara to explain that. KING: Second the motion. KAWAHARA: Dr. Larsen’s last quotation hit it right CHAIRMAN: There is - - the motion is to delete in the on the head there. It is covered by general welfare. third line the word “its” and substitute in lieu thereof the word “their.” CHAIRMAN: It is covered by general welfare in your estimation. Any further discussion? No amendments? YAMAUCHI: The committee accepts it. The Chair will put the question. CROSSLEY: I move that we defer action on this section TAVARES: I have no objection to this section; I think until tomorrow and that we rise, report progress and beg it should be understood, :h0we~~~~, that if we find that this leave to sit again. doesn’t fit some other provision, that we will reconsider DELEGATE: Second the motion. it. Some question seems to be raised as to whether this will fit into some of the other articles that have not yet CHAIRMAN: If you will, Delegate Crossley, I believe been considered. But I believe that there should be no we can get through this section in just a moment. difficulty in reconsidering, if we find that there is some CROSSLEY: Well, there seems to be a lot of question language that we need to conform to other articles. on some of the words in here; that’s why I made it a two- part motion, because we would have to defer action on this CHAIRMAN: That is the general understanding of the in order to rise. There seems to be quite a bit of contro committee. All those in favor of the adoption of Committee Proposal No. 17 as submitted by the committee, please say versy about some of the words. I thought that would give some of us a chance to look them over. “aye.” Opposed. A. TRASK: Point of information. A question of the CHAIRMAN: I believe, Delegate Crossley, the only chairman of this committee. I just wonder whether or not, word that’s been questioned is this pronoun which has now say under the question of public health, whether there is - - been amended. Now, if there are any other questions, the would be some legislation in Congress providing for, well, Chair isn’t aware of it at the present time. sterilization, and that from Congress, now would this arti A. TRASK: I want to know what cooperation with states. cle provide a coercive effect on the legislature that such Does it mean the northern states or does it mean the things must be - - such a conformitory expense or charge southern states? must be made? And if it isn’t made, why, some action may be taken in the legislature or courts of some, some nature? CHAIRMAN: I don’t believe that that question is in order. I am quite concerned about that situation. ROLROYDE: I’ll second Delegate Crossley’s motion. YAMAUCHI: I think that Delegate Roberts can inform CHAIRMAN: The motion has been made to defer action you in regard to that paragraph over there. on Committee Proposal No. 17; to rise and report progress and ask leave to sit again. All those in favor please say ROBERTS: The section reads, “The legislature may,” “aye.” Opposed. Will those in favor please raise their and “may appropriate.” It doesn’t require them to appro right hand. Opposed. Carried. priate. REEN: This article reads, “The legislature may pro JUNE 27, 1950 • Morning Session vide for cooperation with the United States, or other states and territories, and its political subdivisions.” The word CHAIRMAN: The Committee of the Whole will come to “its” refers to what, may I ask? order. Delegates may sit at their ease. When we rose 700 MISCELLANEOUS MATTERS yesterday afternoon, we had just deferred Committee Pro is with the upraised hand. The Hawaiian gesture is always posal No. 12. The Chair would like to ask the chairman made with the palm of the hand downward. In this case, the of the Committee on Miscellaneous Matters whether or not palm is upward.” That’s really the only change. he would like to take up Committee Proposal No. 12 now or The other suggestion made by one was that perhaps Liber pass on to 16. ty should be - - the Statue of Liberty, familiarly called YAMAUCHI: We would like to defer No. 12 and take at Columbia, should be holding the American flag for a State this time, Standing Committee Report No. 55 and the Com seal; and if she does, then we would have to put Liberty on mittee Proposal No. 14, and Resolution No. 29. the right side, and Kamehameha on the left. This is the State of Hawaii, and I feel as the old seal shows it, the flag should, CHAIRMAN: We will then turn to Standing Committee be on the left. Now, so much for the seal. Report No. 55, which covers Committee Proposal No. 14, With everything remaining except the suggestion that the and along with the Committee Proposal there is in your star, which was put in in 1900, with the hope that we would separate book on resolutions, Resolution No. 29. become a star of the flag of the U.S., should now contain the number, whatever numbered star it is, 49 or 50. The YAMAUCHI: I move that we tentatively adopt Committee date “1950” down below is shown in 23 seals of the United Proposal No. 14. States states. OKINO: I second the motion. I might also say, I compared this seal, I mean our old seal, the seal presented by the committee, with the seals CHAIRMAN: Delegate Okino seconds the motion. of all the states and all the territories, and with all these— APOLIONA: Speaking for the adoption of the State seal what the artists call garbage that was used as the baroque incorporating the present seal of the Territory of Hawaii, style of decoration in 1900 and in 1896—removed, we now your Committee on Miscellaneous Affairs begs leave of this have the present seal. I want to also call your attention Convention to accept the present Territory of Hawaii seal. to the fact that the rays around of this rising sun represents But at the same time, the committee knows that another 23; there are 23 islands in the Hawaiian group we adopted seal has been proposed by a fellow delegate of this Conven yesterday. tion and as we know, a committee proposal is always on In other words, I think everything else has been explain the defensive. So, at this time, your Committee on Mis ed, and I’ve tried to give as much evidence as I could so we cellaneous Affairs on the seal rests its case, the defense wouldn’t have to discuss too much. You either want it or rests. you don’t want it. But may I suggest two ways of doing it. For instance, the State’ flag is only in one constitution, that CHAIRMAN: For the benefit of the delegates - - is Florida. The State seal is in some 33, I think it is. LARSEN: Mr. Chairman - - However, to do a proper seal, this should be done complete ly. This that you have here is done by one of our outstanding CHAIRMAN: One moment, please. For the benefit of the delegates, the seal proposed by the committee is the artists of Hawaii, but is merely a sketch. It should be done smaller of the two copies of which you should all have, carefully, in proper color and so on, as to become the coat and the other seal referred to is the larger, copies of which of arms. To do a proper type of sketch, which this State you should all have. The Chair will recognize Delegate really should have, and in none of our previous seals we’ve Larsen. had true art, it should cost anywhere from $300 to a $1,000. I’ve asked various artists and I know. This committee is LARSEN: I always hesitate to get up after a committee not ready, I believe, to spend that sum, but I don’t think we has made a proposal and suggest some changes. However, should be niggardly about this. And there were two sugges I appreciate what the delegate said, and I also appreciate tions made. One was that we adopt this in principle and that we should continue this coat of arms, that carries with pass it on to the legislature; and the second, that we adopt it a great deal of tradition. Therefore, I want you to note, it as a seal along this line, but hoping that funds would be on this large seal, that it is the coat of arms of Hawaii. found to dreate this proper seal. As you know, this has gone through various changes. It Now I ask you, that this result of a happy hour might end was first adopted in 1896, and then in 1900 made into the in your hands in an abortion, but I’m hoping that it will be territorial seal. I want to call the committee’s attention, come the real child of Hawaii and live on in its more beauti however, that now I speak for the sake of better art. I ful style. The turning out is deliberate, because it means a would like to ask our chairman, who just recently crowned broad horizon, rather than a narrowed horizon. I rest my Miss Hawaii, how he would have felt if she went to Atlantic case. City garbed in the bathing suits of 1896. I’m sure he would APOLIONA: Your committee has very little to say against have blushed; I’m sure he would have felt unhappy; and he the good work of Dr. Larsen. But our committee’s proposed would know very well that Miss Hawaii could never expect seal, as is represented by the blue one here, has been the to win with the bathing suit of 1896. tradition of the people and the government of Hawaii and of CHAIRMAN: She never would have gotten kissed, Dele its people. Dr. Larsen’s seal, as he has stated, was drawn gate Larsen. by one of the foremost architects in town. I am sorry to say right now that your Committee on Miscellaneous Affairs LARSEN: I’m sure he wouldn’t have enjoyed sizing her did not have the facilities to go to one of the good architects. up as well either. Now, Dr. Larsen’s seal has some good points, and so However, I now call to your attention that this seal is has the old Hawaiian seal. Maybe we can get together with merely taking off the bathing suit of 1896, and putting on a Dr. Larsen, and compromise on the certain things that modern streamlined one. It’s the seal as it was. should go in our new seal. We submit that the shield, Ha There has been some objection, too, to the fact that waiian shield as presented in the old - - in our present seal, Kamehameha stands there, with his hand down. Could I is much better than the one proposed by Dr. Larsen. Also read for you just a moment, a newspaper of the nineteenth the figure of Kamehameha as illustrated in our Hawaiian century, faded with age, but in which it tells the story of seal, is the same as the statue that you see in the front there, the coming of the statue. It says, “It has an odd fault. The in the front of the Palace on King Street. artist familiarized himself with the Hawaiian type of physique Dr. Larsen has stated that Kamehameha with an upraised and there is besides every reason to be assured that the hand, palm turning out is asking for something. In old Ha likeness of the subject is excellent in every detail. The flaw waiian tradition, the Hawaiian people have always raised up 701 JUNE 27, 1950 • Morning Session their hand with the palms toward the heaven and invited you thirds of the people of the whole territory, three-fourths, into the home. The missionaries found that out. Dr. Larsen to change the seal. So I think it should be purely legislative has stated that he wants his palm to be turned downward. and let the authorities of Hawaiian lore draw up a seal. To me, it means that King Kamehameha the Great wanted all CHAIRMAN: Well, the motion has been made to defer his subjects to bow. That is not the case. Kamehameha, as action. we\want him to be and as we want him to act, with his palm raised up to the heaven, is a welcome sign to all of his sub HAYES: I just wanted to present mine this afternoon, jects and to his people and to his friends. so that they will all go to the committee and should be re We submit that Dr. Larsen’s seal, with all the different ferred to the group of people that has been recommended, industries—sugar, pineapple, flowers, coffee, fruits, cattle, I mean mentioned by Delegate Silva. fish, kukui, calabash, coconut, banana, taro and hala are LARSEN: Personal privilege. The worthy delegate from represented in his seal—but I want to ask him wheth~r that Hawaii seems to think we haven’t put any time, authority or represents all of the things that are Hawaiian. It is true energy into this. I beg to differ. that the figure of Kamehameha, as represented in our Ha waiian seal, is sort of a chunky little fellow, representing SILVA: Point of order. I just asked for deferment till a the menehune. Maybe the figure as illustrated by Dr. Lar certain time. The debate can be argued on the deferment up sen is much better. But the present seal of the Territory to a certain time, but the question to deferment is not of Hawaii has been on all important documents from the very debatable. existence of the government here. The people of Hawaii, as your committee has gone out and found out, wish to retain CHAIRMAN: That is correct, Delegate Larsen. as much of the old Hawaiian tradition and principle which LARSEN: However, I was asked a question by the com they have learned to know. And, therefore, and now, Mr. mittee and if they are going to take it up, may I have the Chairman, I ask that you and this Convention will consider privilege of answering that question? the present seal of the Territory of Hawaii as the seal for the State of Hawaii. CHAIRMAN: You may. LARSEN: The chairman asks the meaning of the border. HAYES: I’d like to present another seal, but I’m not The meaning of the border represents the health of the Ha quite prepared this morning to present it, and so, I’m hoping waiian soil, as shown by the ancient agriculture, as well that the Convention would defer this matter until a little as the modern agriculture, as well as the protein, as well later. The seal that has been presented by the committee as the vegetable. But you’ll note that doesn’t really have to is the seal that was presented in 1894 during the - - assigned do with the coat of arms. That is merely a lei of blood, by President Dole when we became a territory [sic]. It’s a sweat, tears and joy that surrounds the seal of Hawaii and seal that the committee has worked on. Though there is an that has made Hawaii great. And to recognize this in the error that I see, which the Hawaiians have often mentioned, border, I feel adds that much to our seal. that the two in the white sections here, they represent the puloulou sticks or the tabu sticks, and it doesn’t - - it’s not CHAIRMAN: There is a motion to defer. The Chair a true picture of the tabu stick. You shouid have - - that will not permit any further argument on the seal. All those could be taken care of when the committee meets to go over in favor of the motion. Opposed. The Chair will ask for these different proposals. And I see that another proposal the vote again. All those in favor please say “aye.” has also been talked about, and it hasn’t been presented Opposed say “no.” Carried. this morning. So in view of the fact that there are two We turn now to Resolution No. 29. The Chair will recog others, that perhaps the committee can get together, and nize Delegate Yamauchi. I’ll present mine this afternoon. YAMAUCHI: I move that we adopt Resolution No. 29. CHAIRMAN: Do I understand, Delegate Hayes, that you CHAIRMAN: I’ll ask the Clerk to read the Resolution are asking for deferment of the consideration of Committee No. 29. Proposal 14? DOWSON: I second the motion to adopt the resolution. HAYES: Yes, I do, because I have also a seal to offer to this committee. YAMAUCHI: May I explain that Resolution No. 29 which was amended - - ASHFORD: I second the motion. CHAIRMAN: We will ask the Clerk to read it first, Dele CHAIRMAN: The motion to defer action on the Committee gate Yamauchi. Proposal No. 14 has been made and seconded. CLERK: SILVA: What I’d like to know is, I know that the question to defer is not debatable but the question is, until when? I Resolution [No. 29, RD 11: Whereas, each state has would suggest, probably we should move to defer action for a heraldry consisting of symbols reflecting its past and another month on this seal matter. The question for that present; and, deferment is that, I really feel there is no place - - Whereas, Hawaii has a very unique code of symbols from its royal background; now, therefore, CHAIRMAN: The Chair understood that Delegate Hayes Be it resolved that the Legislature of Hawaii be, and would have the seal completed in a matter of a few hours, it is hereby respectfully requested to enact appropriate which would mean that this would come before the committee legislation for the adoption of the following heraldic perhaps today, perhaps at another time. symbols: SILVA: Well, another time can mean next year; it can 1. That the motto shall be: “Ua mau ke ea o ka ama mean tomorrow; it can mean next week. I’m just trying to i ka pono.” The translation of which is “The life of save time, that’s all. Otherwise I was going to ask for the the land is perpetuated in righteousness”; and absolute deletion of the seal in the Constitution because I 2. That Hawaii’s official song shall be “Hawaii Ponoi,” really believe that men like Reverend Judd, perhaps John with the same music as in the past, but with words Lane and a few of those people should get together and draw bringing it up to statehood; and including an old Hawaii the seal. If we are going to be here without knowing just an motto which indicates our present harmonious amal exactly what it is - - It seems very funny to have two- gamation of races: “Maluna a’e o na lahul apau, ke ola 702 MISCELLANEOUS MATTERS ke kanaka,” the translation of which is “Above all nations should be adopted. Now that doesn’t mean we do away with is humanity.” the first three verses. They still stand as history, but we 3. That Hawaii’s official flower shall be the ilima, could add one or two verses to show that history has marched the flower of old royalty; and on. 4. That Hawaii’s state colors shall be orange (from the ilima and suggestive of the soil) and deep blue (our CHAIRMAN: Any further discussion? sky and ocean); and COCKETT: There is a correction to be made here in this 5. That the official birthstone shall be the olivene. Hawaiian section here, “Maluna a’e o na lahui apau, ke ola (This dates back to the birth of Hawaii when it crystalized ke kanaka.” That is wrong as a Hawaiian sentence. I’d like out from the hot lava.) to insert “0”; “ke ola o ke kanaka.” That would make it - - Yes, grammatical error. It may be acceptable. YAMAUCHI: Originally the resolution included the seal and the flag, but the committee felt that in the event the CHAIRMAN: You make a motion to amend? Convention takes positive action as to include the seal and the flag in the Constitution, that portion which was in the COCKETT: Ido. original resolution should be deleted. Thereby the redraft APOLIONA: Second the motion. has been made. CHAIRMAN: Is that acceptable to the committee? ASHFORD: I’m in great sympathy with this resolution but there is one question that disturbs me, and that is mak YAMAUCHI: Perhaps it might be a slight clerical error, ing the ilima the State flower. The reason it disturbs me that part over there. I myself am not an authority on that, is that it is almost impossible to get an ilima lei, and I go so I can’t say one way or the other, but the committee accepts further than that and say impossible to get an ilima plant. the amendment. All you can see is the false ilima. CHAIRMAN: Fine. Any further discussion on this sec CHAIRMAN: Perhaps it would be better, in view of the tion? fact that there are five sections, to take them up one at a AKAU: I thiak it’s a very nice idea to want to add some time and go into a tentative agreement on each. So we’ll more verses, and all that sort of thing. “Hawaii Ponoi” is turn our attention to Section 1, as to the motto. Is there “Hawaii Ponoi.” It was written by a particular person and general agreement on the adoption of a motto? All those the music was written especially. Therefore, it would be in favor please say “aye.” Opposed~ Tentatively agreed to. taking poetic license to assume the idea of somebody else On Section 2, the official song shall be “Hawaii Ponoi” writing some extra verses because that is a particular song, with the added words. Delegate Yamauchi, would you like and we consider it as such. I would say that “Hawaii Ponoi” to indicate where in the song those words would appear? should be the official song, period. Now, then, if any suggestions wish to come eventually, YAMAUCHI: We have not discussed it; we left it up to through, shall I say, the legislature or something, I don’t the legislature in regard to that point. We have not taken see any harm in that. But to me, it’s heresy to change any positive action, but Dr. Larsen, who is the introducer something that has been so much tradition over a period of of the resolution, might be able to give you a better idea on years and accepted so wholeheartedly by all of our people. that. CHAIRMAN: Does the Chair understand that to be a LARSEN: Again I realize tradition means a lot. motion, Delegate Akau? CHAIRMAN: There has been a suggestion that you indi AKAU: I so move. cate in the verse where the words would appear. CHAIRMAN: Is there a second? LARSEN: Well, I’ll just read the translation as it is. SMITH: Second it. Hawaii’s own true sons Be loyal to your chief LARSEN: May I call the attention. It’s not changing the Your country’s liege and lord song, it’s merely adding two verses as a State song. The Alii. CHAIRMAN: Pardon me. Did you second that motion? Hawaii’s own true sons Look to your lineal chief SMITH: Yes. Those chiefs of younger birth CHAIRMAN: It’s been moved and seconded that Section Younger descent. 2 be amended to read as follows: “That Hawaii’s official song shall be ‘Hawaii Ponol, “ period; delete the balance Hawaii’s own true sons of the paragraph. Any further discussion? People of loyal hearts Thy only duty lies KING: “Hawaii Ponoi” is the song that was adopted in List and abide. the days of royalty and glorifies the crown. Now, we have some of the same proposition in our American background Father above us all where we sing “America, ‘tis of Thee,” I think it is—I’ve Kamehameha e forgotten the title of it— Who guarded in the war With his ihe. CHAIRMAN: “My Country, ‘Tis of Thee.” The idea is not to change; anybody who naturally wants KING: - - to the tune of “God Save the King,” but we don’t keep on singing “God Save the King” in our American to sing those words, they can, but it does seem as though song. The words of “Hawaii Ponol” would be a little bit we should add some words, and I have my suggested ones, inappropriate for a state of the Union. I feel that Section 2 but some feeling is that with something like this, we shouldn’t is all right the way it is. pass on it right now. We should leave it perhaps to a contest, to let somebody suggest two new verses, and in that way, just CHAIRMAN: Anyone wish to discuss the amendment pass the resolution as is, but with the suggestion that, as is further? The Chair will put the question. All those in favor in the resolution, that sometime in the future, words that of the amendment please say “aye.” Opposed, “no.” Amend really do bring it up to date or verses that bring it up to date ment is lost. 703 JUNE 27, 1950 • Morning Session Any further discussion on the section as submitted by the PHILLIPS: I would like to speak in favor of the motion committee? All those in favor of the section please say “aye.” on the floor right now. I remember when I went to Hawaii, Opposed. Section is carried. I was told that the lehua only grows on a volcano, and I Section 3, “That Hawaii’s official flower shall be the would feel - - Ilima.” DELEGATE: Oh, no! ASHFORD: I’m not making an amendment; I’m merely PHILLIPS: It’s not true? Well, I got that from a native saying that we can have it as an official flower, and then we on HawaIi, so you can take it for what it’s worth. won’t be able to get any official flowers to decorate our guests with. CHAIRMAN: You didn’t have the right - - CHAIRMAN: You have no substitute flower? SAKAKIHARA: I was shut off when I made a motion to amend the resolution when you recognized the delegate from LARSEN: The substitute flower was the lehua. The idea Maui. As I was about to inform this committee, we do have was to pick a flower that was distinctly Hawaiian. It was various varieties of lehua. As Delegate Dowson ably put either the ilima or the lehua; and I feel as soon as we begin before the committee, we have yellow lehua, we have dark to use it, certainly on Oahu, we will find plenty of ilima. red lehua, lIght-shade red lehua, green lehua. Any one I feel If it becomes a State flower, there will be plenty of them of them would symbolize the flower of Hawaii. Naturally, grown. Oahu delegate Madam Hayes, is very sentimental, like all CROSSLEY: I don’t know if it would be appropriate at this women, and I don’t blame her for wanting to retain lehua time to suggest a change in the llima, but if it is, I would for Oahu. I believe this Convention can truly be broad- like to suggest that it be the vanda. I have no pecuniary in minded enough to recognize the outside island, your neigh terest in such. It’s a beautiful flower and it’s prolific; it’s bor island, in the various symbols apparently we are going easy to grow and there are plenty available to decorate to enact now. We have considered, almost unanimously, visiting dignitaries. over the protest of some of the neighbor islands, the seat of government for Honolulu. Lehua symbolizes the island CHAIRMAN: Is that an amendment, Delegate Crossley? of Hawaii, its mountains, Mauna Loa, Mauna Kea, Hualalal CROSSLEY: I didn’t offer it as an amendment, only as and Madam Pele. I believe that this flower should be given a suggestion. I wouldn’t presume to offer it as an amendment. some consideration. APOLIONA: Will the delegate from Kauai specify what CHAIRMAN: Any further discussion? If not, I’ll put the type of vandas? question on the amendment. CHAIRMAN: I see we have an argument amongst the C. RICE: I want to ask the last speaker how often the orchid lovers. lehua blossoms and in what month? DOWSON: I believe the types of orchids which are being SAKAKIHARA: It’s once a year, around August, I think. referred to are imported plants. They are not traditional C. RICE: On Kauai we have a lot of lehua. Lehua-maka to Hawaii. Hawaii has a few native orchids which are very noe, in a swamp up back of Waialeale, the lehua is only small and not noticed at all. The flowers are so small that two feet high, three, and the blossoms are five inches people don’t even look at them. They grow wild near some across. But there, as I remember, there was only bloom of these arid places. The so-called ilima which is the false in summer. I want to get a flower for Hawaii that blooms mallow, I mean the mallow plant or false mallow, Is a native all the year around. How about your ilima? endemic to Hawaii. So is the flower that comes from Hawaii which Dr. Larsen picked out, the lehua. The lehua comes HAYES: The ilima blooms all the year around. in several colors. Just above Hilo is quite a bit of the C. RICE: I think the lehua only blooms three months yellowish and orange lehua, besides the red. There is a of the year. tradition behind the lehua. If one picks a lehua blossom, there is sure to be rain. Perhaps that should be remem A. TRASK: I think there is a good bit of merit in what bered, too. Delegate Ashford called attention to, namely, that there aren’t very many plants on the islands; but, when I was a SAKAKIHARA: I wish to offer an amendment to Section boy I remember that almost every family had lehua [sic] 3. Insert the word “lehua” in place of the “ilima.” We only bushes around the place. It just so happens that the passage have one Hawaii, and that Hawaii Is the island of Hawaii. of the last few years, the people are not going in so much CHAIRMAN: Is there a second to the motion? for lehua, I mean ilima. But I do believe this is maintained as the official flower and it’s always been. It should be re YAMAMOTO: I second the motion. membered that when there’s a Republican Convention or a CHAIRMAN: It’s been moved and seconded that in Sec Democratic Convention, what do you send there to the dele tion 3, the word “ilima” be deleted, and the word “lehua” gates? You send the ilima leis. I mean, it’s always been be inserted in lieu thereof. symbolic of Hawail—ilima leis. I’m sure that in the Con vention here, the leis that have been worn by the ladies WOOLAWAY: Before we vote on that subject, I would here, in many instances, have been ilima. like to have this body of able persons consider roselanl I haven’t seen yet in this hall a lehua lei, that has been before we make the mistake of voting for the ianf amendment. advocated. On Oahu, I think there are about one, if not HAYES: I’m afraid I would have to oppose the lehua two lehua trees on the Pali road, and they bloom, if they do flower as the flower of the State, because from the history at all, I don’t think I’ve seen at any one time, more than of Hawaii, ilima has always been the color for the - - and three or four flowers in the entire Pali area. In the entire it also represents the section in the seal, the color yellow. Koolau, I haven’t yet seen a lehua flower except on a bush I believe that I wouldn’t be able to go with any other flower in our yard down at Kaneohe Bay which my mother planted; for the State of Hawaii but the ilima. While I’m not prepared but that was not the lehua flower that the delegate refers to, to go into further details of the ilima, I have been approached it’s the cultivated type of lehua. by many, many old families, the old Hawaiian families, and I believe that if the ilima is made the official flower, requested that - - they hoped that we would keep to the ilima we’ll have a lot of people planting it, so that there will be more flower as the State flower of Hawaii. flowers. I want to say to the Delegate Ashford from Molokal, 704 MISCELLANEOUS MATTERS that if possible, I would secure for her, ilima flowers CHAIRMAN: It’s been moved and seconded to accept tomorrow. Committee Proposal No. 16 which reads: LYMAN: The lehua is a seasonal flower; it does not The employment of persons in the State civil service, bloom all the year around. I would like to speak against the as defined by law, shall be governed by the merit principle. lehua. The lehua, as you all know, is a flower that is not ordinarily picked because Hawaiian superstition says that Is there any discussion? All those in favor of the proposal, when you pick the lehua, it rains. On the island of Hawaii, please say “aye.” Opposed, “no.” The ayes have it. we have many lehua flowers and that’s the reason if rains so YAMAUCHI: I move that we adopt - - tentatively adopt much. The people are always picking those flowers. How Committee Proposal No. 20 and Standing Committee Report ever, I would like to suggest that we think of the maile as No. 64, which pertains to the preamble. the official wreath, the maile and the ilima. If we cannot use the true ilima flower, we have substitutes that can be DOWSON: I second the motion. used—the paper lei, the cloth lei, and those leis can be CHAIRMAN: It’s been moved and seconded that Commit shipped to the mainland and could be used for occasions when tee Proposal No. 20 be adopted, which reads as follows: you really want the official wreath of Hawaii. I, therefore, suggest that we consider the maile and ilima as the official We, the people, of the State of Hawaii, grateful for wreath of Hawaii. Divine Guidance, and with pride in our Hawaiian heritage, reaffirm our belief in a government of, for, and by the CHAIRMAN: The question before the committee is people do hereby ordain and establish this Constitution whether or not to adopt the amendment; that is, the lehua for the State of Hawaii. shall be flower of Hawaii. The Chair would like to put the question. Is there any discussion? SILVA: [The delegate’s microphone was not functioning, LARSEN: I would like to offer an amendment. May I and the following statement is taken from the minutes. 1 speak on the amendment or do I have to make it? I move He stated that he was of the firm conviction that all these for the amendment as is on the delegates’ desks. things, including the seal, the song, the flower, should be Preamble. We, the people of Hawaii, hereby reaffirm referred to the legislature, and a committee could then be our belief in a government of the people, by the people, appointed to look into the merits so that the whole territory and for the people, and do express in the words of Kame might participate in these decisions; and he so moved. hameha First our reverence to God; also our respect for the big man, the small man, the aged man, the CHAIRMAN: I believe you will find, Delegate Silva, women and the children, who may ever waik the highways, that that is the purpose of this resolution. or sleep by the wayside, without molestation. We, there SILVA: Beg your pardon. fore, with an understanding heart toward all the peoples of this earth, do ordain and establish this Constitution. CHAIRMAN: That is the very purpose of this resolution, as stated in the third paragraph of the resolution. CHAIHMAN: I believe the proper procedure would be to - - have they been circulated? SILVA: To refer it to the legislature? LARSEN: Yes, k’s been circulated. I so move. CHAIRMAN: That is correct. APOLIONA: Second the motion. SILVA: Then why are we wasting our time? CHAIRMAN: I’m sorry, I don’t have a copy. The Chair CHAIRMAN: There is a question before the committee, can’t follow you. and I’d like to ask the question now, that is the adoption of the lehua. All those in favor please say “aye.” Opposed, CORBETT: I’d like to second the motion. “no.” Lost. LARSEN: May I speak on this for a moment? This is the original question. That Hawaii’s official fldwer shall be the ilima. All those in favor say “aye.” CHAIRMAN: Yes, would you? Opposed, “no.” Carried. LARSEN: As you all know, we’ve been working on it for Paragraph 4. Hawaii’s state colors. Any discussion? a long time. Again I apologize to the commktee for off er All those in favor of the paragraph as written, please say ing an amendment, but the committee knows, and committee “aye.” Opposed, “no.” Carried. has been cognizant of this right along. I think the committee Paragraph 5, as to the birthstone being the olivene. Any report very wisely states, you can’t confuse amendments, discussion? All those in favor please say “aye.” Opposed. you either - - I mean preambles, you either take one type Carried. or another. I think it won’t take too long. We either want Is there a motion to adopt the resolution? it or we don’t want it. YAMAUCHI: I move that Resolution No. 29 as amended However, I would like to call your attention to the fact be adopted. that, as we all know, most of our Constitution is not an original document, is not something that - - but comes from DOWSON: I second the motion. the Model Constitution, from New Jersey, from Missouri, CHAIRMAN: The motion is for the adoption of Resolution and so on. In our preamble, we have an opportunity to No. 29. All those in favor please say “aye.” Opposed. present something a lktle different. I’d like to call your Adopted as amended. attention to the fact that there are two great ideals of gov YAMAUCHI: I move at this time that we take up Commit ernment presented here. The first—and I might say, one tee Proposal No. 16 referring to the civil service. of the delegates suggested the correction—instead of combin ing by, for and of the people, he said, “You can’t improve the CHAIRMAN: The call is for Committee Proposal No. 16, words of a great man. This great emancipator said to this covered by Standing Committee Report No. 57. group at Gettysburg, ‘in a government of the people, by the YAMAUCHI: I move that we tentatively adopt Committee people and for the people, “ and this delegate fek we should Proposal No. 16, Standing Committee Report No. 57. use the words as they came from the great man. This emancipator, as you know, at the end of a long and bloody DOWSON: I second the motion. war, combined and reunited the United States. 705 JUNE 27, 1950 • Morning Session In the second part are again the words of the great con We are gathered from the earth’s every corner in brother queror of Hawaii. At the end of a long and bloody war, he hood and unity to teach and be taught, each by the other, brought the Hawaiian Islands together under one rule. But the blessings and burdens of our singular democracy. the great thing that he did do was recognize that force can We, therefore, do in solemn mutual faith, ordain and never produce a good nation; there must be justice. And establish this declaration of rights and frame of govern so, this particular clause, one of the great documents of ment as the Constitution of our beloved Hawaiian State. expression of government, and the greatest expression of PHILLIPS: . . our beloved Hawaiian State, but as you government that has been put out in the Pacific, was put know the people on the outside that would read this would out by Kamehameha the First. It’s a question of keeping realize that we are fond of our new State and we don’t mind that; it’s the one part where we might recognize the great telling everybody about it. I rest my case. ness of Hawaii philosophically in the line of government, and something that, I believe, will bring more attention to YAMAUCHI: I would like to talk in regard to the proposed Hawaii than anything else in our Constitution. In today’s amendment made by Delegate Phillips. The committee had terrible upset in the world, this is the philosophy, this is considered Delegate Phillips’ proposal - - preamble, rather, the principle, that’s more necessary than anything else and we have incorporated the words, “We, the people, are that’s being done. I feel we have in a small way, this the supreme politicai authority.” It is implied that the opportunity to show the world that Hawaii recognizes princi people are the supreme political authority and we felt that ple. the words “We, the people, of the State of Hawaii” would be The words, “We, therefore, with an understanding heart” sufficient. And under section 2, it’s also taken care of; are also the words of Kamehameha the First, and, I feel, the words, “being grateful to our Creator,” is also in our quite important because certainly we inside of our little committee preamble. The third part which pertains to the corral here, where we’re champing at the bit to get through perpetuation of the Hawaiian tradition has also been consid with this, we have shown the world that it is possible. We ered under the phrase, “and with pride in our Hawaiian take it for granted that all the races of the world can work heritage.” The other portion pertains to the government, amicably, peaceably and together to produce a document. which reads “defend our constitutional rule, and follow We would like to record that because we all know that in many the American way of liberty, justice, equality and freedom.” parts of the world, this type of assembly would be impossible. That phrase is taken care of by the committee proposal And so the expression, “Therefore with an understanding which states that “We . . . reaffirm our belief in a govern heart toward all the peoples of this world,” I feel is ex ment of, for and by the people.” tremely fitting for Hawaii. Thereby the committee felt that the language should be Therefore, the few extra words are not so important as simplified where the students can acquire the preamble are we producing and are we giving this mission, this which may be recited in the schools. We would like to philosophy, that we have stood for so long, and combining make it as short as possible so that every individual can with the philosophy of the great emancipator. Between the understand, as well as make it a part of the school curricu two, they express the principles of government that we hope lum. somethy will actually be regarded as the real government CHAIRMAN: The question before the committee is the for all nations. amendment to the preamble, Committee Proposal No. 20, CHAIRMAN: Any further discussion on the amendment? as offered by Delegate Phillips. YAMAUCHI: The suggestion that was made by Delegate AKAU: I wonder if Mr. Phillips would accept the amend Larsen, another preamble to substitute the preamble that ment so that in the first line, “We, the people” and add “of was submitted by your Miscellaneous Committee, was the State of Hawaii,” even if it does down below say “beloved considered by the Miscellaneous Committee. We have taken Hawaiian State.” into consideration by putting that phrase, “and with pride PHILLIPS: I mentioned already that I felt that that in our Hawaiian heritage.” We felt that that particular clause should be changed to “We, the people, of the State of Hawaii.” would cover the intent that is being brought forth by Dr. CHAIRMAN: Then you accept the amendment? Larsen. PHILLIPS: Oh, well, excuse me, please. “We, the CHAIRMAN: Is there any discussion? The Chair will people, the supreme political authority of the State of put the question on the amendment. Hawaii.” Now, is it all right to speak - - to discuss that PHILLIPS: I would like to offer an amendment, too. I briefly? feel that the more of these individual items that the Conven CHAIHMAN: As I understood the request from Delegate tion has an opportunity to inspect, why the broader will be Akau, “We, the people, of the State of Hawaii.” its view on it. CHAIRMAN: Delegate Phillips, I believe in this particular AKAU: Yes, but it could also fit in the other place, so case, the Chair would be correct in asking that the vote be I would say it could be - - the amendment might be “of the placed on this amendment. It’s not a single word, you want State of Hawaii” after the “supreme political authority.” to submit another preamble? PHILLIPS: May I address a question to the Chair for PHILLIPS: I have one on the desks of the delegates at Delegate Akau? Would it be satisfactory if we were to present. However, it was suggested that we adopt the other strike out the fourth line of the first verse and then spread one tentatively, and then I make an amendment to that. it out in that manner? While I have the floor, I wonder if I’d be permitted to [Part of the debate was not recorded. Delegate Phillips answer the committee chairman’s question about whether introduced the following amendment. After it was seconded the words “supreme political authority” - - by Delegate Hayes, he spoke in support of his amendment. 1 CHAIRMAN: The Chair doesn’t have any answer to the Preamble. We, the people, the supreme political question yet. Do you accept the amendment, “We, the authority, proclaim our sovereignty and create this people, the supreme political authority of the State of Hawaii”? State in this sacred covenant and Constitution; we shall ever be grateful to our Creator, perpetuate our Hawaiian PHILLIPS: “Proclaim our sovereignty and create this traditions, defend our constitutional rule, and follow the State,” leaving out the fourth line. I’ll accept that amend American way of liberty, justice, equality, and freedom. ment. 706 MISCELLANEOUS MATTERS Now, I would like to say, I feel in the Bill of Rights, the cide on, that we hid a preamble which carried all the thoughts very first section, will state right there that the supreme and views of the preambles presented. political authority of the State rests in the people. That is “We, the people of the State of Hawaii, grateful for Divine the fundamental doctrine of American constitutional law. Guidance.” There was great argument as to whether it Consequently I think it’s good that we set it forth and let should be “our reverence to God” or there are many forms, them know in Washington; and the people of this territory, but in Hawaii with all our different religions, we felt that let them become familiar right away with the fact that we the wording “grateful for Divine Guidance” would be more are aware of it, too. proper. “And with pride in our Hawaiian heritage” every thing that goes along with it. A child that studies Hawaiian CHAIRMAN: The question is on the amendment. Any further discussion on the amendment? Call for the ques history will be reading and the people who live here will be tion. believing in it. “And reaffirming our belief in a government of, for and by the people, do hereby ordain and establish KELLERMAN: What is the order? Do we vote on Mr. this Constitution for the State of Hawaii.” This carries Phillips’ amendment first, and if that fans, we vote on everything; it’s brief and concise, and I, as much as I Dr. Larsen’s? liked the two or three preambles presented—they both had their points —as a Convention, I felt that without adding too CHAIRMAN: That is correct, Delegate Kellerman. The many words which would carry the same thought, that the question before the committee now is whether or not the preamble of Committee Proposal No. 20 would be sufficient. preamble as submitted by Delegate Phillips and amended by Delegate Akau shall be adopted. All those in favor please CHAIRMAN: We’re having a little trouble with the public say “aye.” Opposed. The amendment fails. address system so the Chair would like to call a brief recess The question now before the committee is the amendment while the necessary repairs are being made, and also in the as offered by Delegate Larsen. hopes that there will be possibly an amalgamation of some of these ideas. HAYES: I would like to speak in favor of the amendment offered by Doctor Larsen, for many reasons. First, I feel BRYAN: My microphone is working, and I’d like to speak on this subject. that it speaks for Hawaii, what we have done, and what the Hawaiian people believed in. He says here, “We, the people CHAIRMAN: I’m sorry, Delegate Bryan, but all of the of Hawaii, hereby reaffirm our belief” and I feel that we, mikes on this side are out and I think that possibly we’ll in this Constitution, feel that the past record of our provi call a brief recess subject to the call of the Chair. sional government and of the present situation is being re affirmed in the government of the people, by the people and (RECESS) for the people. We therefore express in the words of a great king who brought these islands under one form of BRYAN: I don’t think that in the interests of brevity or government, and in the reference to the Almighty God our re keeping our Constitution’s preamble short that we should spect. throw out these beautiful words that no state in the Union Here in the next paragraph, he gives the law of the land, could find an equal to it. Any of the 48 states could rightly that great law which was obeyed by every citizen of Hawaii, write a preamble similar to the one that’s submitted by the or, otherwise, those who did not believe or those who did committee, which I agree is a workable, usable, and very not - - who went against the law and did not abide by the law good preamble. But what state in the Union could say in set by Kamehameha the First, had no other reason for not the words of Kamehameha the First, “our reverence to abiding by such law, and death was the penalty. God, also our respect for the big man, the small man,” I recall some time back during the Massie case here in and so forth? Not one out of the 48, or the forty-ninth if Hawaii, one of the strongest points that was brought up in it should be Alaska. Hawaii is the only state or possible favor of the people of Hawaii was the law that was set by state in the Union that can have a preamble in those beauti King Kamehameha, “for the big man, the small man, the ful words. aged man, the women and the children, who may ever walk I’d like to say also that those words appeal to me because the highways or sleep by the wayside without molestation. they are simple words. They are words that the people We, therefore, with understanding heart toward all the themselves can read and understand. I think one speaker peoples of this earth, do ordain and establish this Consti said that many of the people may not read the Constitution, tution.” In Hawaiian I would like to just interpret those but certainly they will read the preamble, and I think that words of King Kamehameba. “E hiki ka elemakule, a me this is a preamble they can understand. I think it’s beauti na makuahine, a me na keiki, ke moe i ka alahele”; that fully said. I think that it really goes to the heart of the is, they may be on the wayside, they may be on the road, people who have their territory and have had for a long time, but no one dared to molest them. I, therefore, would like and I think that the proposal by Dr. Larsen warrants the to support this preamble. support of this Convention. SMITH: As a member of the committee who worked out CORBETT: I would like to speak in favor of the amend this proposal, who had gone over the different preambles ment offered by Delegate Larsen. I, too, feel that this is submitted, we couldn’t help but feel, looking over all the a very individual preamble. The other one, while workman different preambles in other constitutions, where we found like, is the sort of thing that could have been written in New very, very long preambles and very, very short preambles. York City or Buffalo or any place else. People on the main Some were as short as saying, “We the people of this State,” land think of Hawaii as a land of poetry, and this is something whatever it was, “grateful for Divine Guidance, do hereby of poetry to write into the workmanlike document that we ordain and establish this Constitution for the State of Hawaii.” have toiled on so diligently. We felt that the preamble should be brief and concise CHAIRMAN: Any further discussion on the amendment? and carry out our traditions and beliefs. We are very senti mental people and would love to 4ave such wording as Dr. A. TRASK: I like this because I think the life in Hawaii Larsen’s, which is very, very nice, but I feel that it’s a lot is simple. The life of Hawaii is simple and everybody wants of words. I believe the rest of the committee felt that by to be a kamaaina. The maithini, if you call anyone who putting it down in as brief and concise a form as we possibly has been here about two or three times, who visited here, he could, and then present it to the committee for them to de insists he is a kamaaina. Everybody wants to be a kamaaina. 707 JUNE 27, 1950 • Morning Session The simplicity is just simply wonderful. I think there’s expresses “our reverence to God, also his respect,” and so warmth; I think there’s a glow; I think there’s a feel and on down to “with an understanding heart toward all his there’s a beauty and there’s the startling loveliness of the people.” ilima about this thing, and I’m all for it. Thanks to Dr. ANTHONY: Mr. Chairman, I’d like to know where the Larsen. quotes start. COCKETT: I am too in favor of this preamble given by CHAIRMAN: Where do the quotes begin, Dr. Larsen? Dr. Larsen. I think there’s a lot of history pertaining to it. It’s good for people now and also for our future generations LARSEN: “Our reverence to God,” and ends with “with to think and to know the people who lived here, and some an understanding heart toward all our people.” thing about our King Kamehameha, the kind of king who ANTHONY: In other words, the quotes are before the brought the Islands together under one government, and who word “our” - - believed in God, and also in serving the people; not only one class of people, but the big man, and the small man, and CHAIRMAN: And after the word “earth.” Is that correct? even the children, women and so on. So I am heartily in Does that answer your question, Delegate Anthony? favor of this preamble by Dr. Larsen. ANTHONY: I have a good deal of sympathy with the ex ASHFORD: If this could be put in the original Hawaiian, pression here, but - - I think it might be better, but I’m wondering, I would like to LARSEN: Could I correct that for a minute? It’s not - - ask a question of the proponent, whether the Committee on “earth” is not there. It’s “with an understanding heart to Style would have any leeway if it were to check with an Ha ward” is really the end of the actual quotes; it was toward waiian scholar to see if the interpretation were correct. For his people, not all the people of the earth. That’s the change myself, I think that - - I intensely dislike, “for the big man, we made, because in the evolution of Hawaii that’s the change the small man.” I think that as a matter of style, that could we would like. be improved upon. CHAIRMAN: The quotations, then, are after the word CHAIRMAN: Delegate Larsen, would you care to answer “toward”? to that? ANTHONY: It should be, if you are going to put quotes, LARSEN: Yes, I must say that we did try to get the very I think it should come after the word “heart.” But What I best interpretation. I got the two best authorities on inter wanted to call the body’s attention to is, while we may want pretation, Mary Pukui and Maude Jones at the Archives, and this bit of Hawaiian law in there, we don’t want to be mis this is the correct interpretation. Now, as far as changing understood. We don’t want the people on the mainland to the words is concerned by the Style Committee, it seems to think we are a bunch of savages sleeping in the jungles, such me that if we’re quoting a person, then we should quote him, as Mr. Bennett of the Hearst press reported during the and that’s what we tried to do. Massie case. Also, you can’t sleep on the wayside now; KELLERMAN: I would like to speak in favor of Dr. Lar it’s against the statutes. I’m being serious about this. I sen’s amendment. I suppose I am really’ a malthini. All think if we are going to adopt this sentiment, we ought to those who have spoken in favor of it so far can claim, I think, make it perfectly clear that we are quoting from some the islands as their place of birth. I’ve been in these islands ancient document, and we are not endeavoring to express only ten years. To me this quotation from King Kamehameha anything that exists in Hawaii today. would be a contribution to the culture of the United States. LARSEN: May I answer my worthy opponent from the It expresses in simple and beautiful wor4s the entire concept fourth district. I agree with him. I hope he’ll make the of social morality which is the basis and the only living basis amendment that the quotations will go after “toward” and for a republican form of government. beginning with “our reverence to God.” It also, in the last two lines saying, “We, therefore, with The other thing, the question of sleeping by the wayside, an understanding heart toward all the peoples of this earth,” that’s historic. The thing that’s going to happen is, once that is the same meaning that we have — or did have when I you adopt this, throughout the states you are going to have was there on the mainland—with respect to America, the the story of Kamehameha the First, the story of the splin haven of refuge for people from all over the world. On the tered paddle, the story of Mamalahoa Kanawai. This is a mainland, it has largely been a haven of refuge for people great story of Hawaii, our greatest contribution, I believe, from across the Atlantic. In these islands it is truly a toward the peace of the world. haven for people from all over the world, and our islands And, sleeping by the wayside, we’re still sleeping by the have expanded the generosity of that thought in the fact of wayside. I have a house that sits right by the wayside, and our tremendous diversity and unanimity and harmony living together. I like to feel I can sleep in that house with my doors open and not be molested, and we can translate it today. If Mr. I feel that rather than use a fairly stereotyped and simple Hearst misinterprets something, Mr. Hearst hasn’t got preamble which, as Mr. Bryan has pointed out, could well haif the standing in America that Kamehameha the First have been used anywhere by any of the states, this is a has, and I think Kamehameha the First’s words, we want contribution which we should hesitate not to give to our given. American constitutional and political thought. I might say somehow the press apparently was interested CHAIRMAN: Further discussion? in this story, so much so that two of my friends on the ANTHONY: I wonder if the proponent of the amendment mainland, one from the Arizona Times, and another one a would tell us where the quotes are from the statement of professor of public health in San Francisco, sent me clip Kamehameha. pings where the paper had written out the full story, in Arizona and California, about Kamehameha the First and LARSEN: Sorry, I’ve given away all my copies, but it the “law of the splintered paddle.” It apparently appealed starts with - - it ends with “with an understanding heart.” to them. I’m quite sure, as a number of these delegates ANTHONY: No, the quotes, I mean, where is the begin have said, this is our great appeal and this is something ning? that we can contribute to American culture. LARSEN: It was toward all his people, not toward all the KAWAHARA: I’ve been wondering all morning about the peoples of the earth; therefore, It begins with Kamehameha difference in the statement between the two proposals, the 708 MISCELLANEOUS MATTERS proposal proposed by Dr. Larsen and the proposal as pro is a marked difference between the two. I would prefer posed by the committee. In the proposal as proposed by the something like “Divine Guidance,” or “our Divine Creator,” committee the word “Divine Guidance” is used, and in the or something to that effect. proposal suggested by Dr. Larsen, the word “God” is used. Do I understand it to mean that we are going to put in our ROBERTS: I’d like to speak in favor of the amendment, Constitution the words, “in the words of Kamehameha the but I would like to offer a few suggestions in the form of First, who said ‘our reverence to God. “ Does it not mean amendments which would bring the proposal of the committee his reverence to God? Does it not mean that perhaps his closer to the proposed amendment, and include the basic idea of God and some of our ideas of God may be different? ideas which are set forth in the committee proposal. I’d If we are going to use the word “God” in this proposal and like to offer the following amendments. I’d like to read them use the words “Divine Guidance” in the other proposal, there first and the article, and then I would like to speak to the must be some difference. question, if I receive a second. Now, then, I have no objection to using the words of a CHAIRMAN: Proceed. great man. I have no objection to using the words of Washington or Lincoln or Caesar or anybody else, but in ROBERTS: “We, the people of Hawaii,” and add the words a document of this kind, I’m wondering whether we should after that, “grateful for Divine Guidance,” “grateful for place the name of a person. In looking over the preamble Divine Guidance, reaffirm our belief in a. government of the of our Federal Constitution, I see no reference to the word people, by the people and for the people - - “God.” “We, the people of the United States, in order to CHAIRMAN: Pardon me, Dr. Roberts, do you mean - - form a more perfect union, establish justice, ensure domes tic tranquility, provide for the common defense, promote ROBERTS: That’s the same language, I’m reading the the general weifare and secure the blessings of liberty for section. ourselves and our posterity.” Now, I have no objections to CHAIRMAN: - - to leave the word “hereby” out? reference to God, except that perhaps many people have many different ideas as to what they believe the word to ROBERTS: Delete the word “hereby,” and substitute mean, and, of course, people may say well, if they believe “grateful for Divine Guidance.” Then continue the same differently, it’s their own privilege and there’s no harm language down to next to the last line and delete the word done in putting that phrase in there. “our reverence to God, also”—we have taken care of that I think we tend to confine ourselves too much to one man. by putting the words “grateful for Divine Guidance”—and Secondly, by putting the word “God” there, instead of some then put a quotation mark before the word “our.” Then other word like “Divine Ruler” or “Divine Providence,” we you have a quotation mark “our respect for,” and that goes confine ourselves to one word, “God.” For that reason I’m down to the word “molestation” and a quotation mark should wondering about this proposal that Dr. Larsen has proposed. be placed at the end of that word. Then the last line, add the word “hereby,” “do hereby ordain and establish this LARSEN: May I answer that, please. I think we’ve Constitution,” and add the words “for the State of Hawaii.” evolved to the point Where we no longer accept a two by Now that gives you the language of the committee proposal, four God that’s good for Americans, another one good for plus the basic ideas presented by Dr. Larsen, with some Germans, another one good for somebody else. The amazing slight changes in language. thing in reading the story of old Hawaii is that Kamehameha as a youngster grew up at the heiau. Every morning he got [Part of discussion not recorded. up on this heiau and prayed to the great Spirit that rules over KELLERMAN: . . . The preamble is basically a style all. Call that Divine Guidance, call it God, call it the Great instrument, but it is also, and it seems to me, it should be Spirit that rules over all. As we are evolving, we are not combed very carefully. I don’t think Style should be allowed trying to specify which God and what God. We recognize how to change on that basis. ridiculous our own concept is when, during the first World War, I picked up a prayerbook by the Germans, where each KING: A request has been made already to have Delegate German solder was reading and he was praying to God to Roberts read the form of preamble, the amendment that he help his arms to overcome the Americans; and the Americans proposed to Delegate Larsen’s proposal. I’d like to have were praying to their God to overcome the Germans. We Delegate Roberts read that again more slowly and we can should go beyond this concept and recognize this philosophy all copy it down. which so many people believe in, that there is something up CHAIRMAN: Would you read the amendment to the above and higher than just human worth—Divine Guidance, if preamble, please? you will, God that rules over it all. The concept, “God,” covers everyone’s concept of something above man’s laws. ROBERTS: I also would call attention to the fact that this is a quotation, We, the people of Hawaii, grateful for Divine Guidance, and that this was the quotation that Kamehameha made. reaffirm our belief in a government of the people, by the people and for the people, and do express in the words KAWAHARA: According to your statement, Dr. Larsen, of Kamehameha the First “our respect for the big man, you are inferring and implying that I should believe the way the small man, the aged man, the women and the children, you do as far as God is concerned. who may ever waik the highways or sleep by the wayside CHAIRMAN: Would you address your remarks to the without molestation.” We, therefore, with an under Chair, please? standing heart toward all the peoples of this earth, do hereby ordain and establish this Constitution for the State LARSEN: I didn’t get that question. What was the ques of Hawaii. tion? ASHFORD: May I make another suggestion? Why do we KAWAHARA: By the inference in the statement, you are have to say Kamehameha the First? When Kamehameha is inferring that perhaps I should believe in the same God as referred to, it always means the Great Kamehameha. you do. I don’t know enough about religion to know the differ CHAIRMAN: Do I understand that to be an amendment? ence; however, I think many people have their own beliefs as far as religion and God is concerned, and for that reason AKAU: May I analyze this very briefly? I - - the word here “God,” capital G-O-D, in comparison to CHAIRMAN: Pardon me, Delegate Akau. Do I under the other statement here, “Divine Guidance,” I think there stand that to be an amendment, Delegate Ashford? Is that 709 JUNE 27, 1950 • Morning Session acceptable to Dr. Larsen? Delegate Larsen. Then we CHAIRMAN: Is that suggestion acceptable to Delegate don’t have to vote on it? Delegate Larsen. Larsen? LARSEN: I’m sorry. LARSEN: Perfectly 0. K. CHAIRMAN: Is the deletion of the word “First” after CHAIRMAN: Quotations be moved to in front of the word “Kamehameha” acceptable to you as the maker of the amend “for” at the top of the second column. ment? LARSEN: That’s perfectly all right. LARSEN: Does Delegate Ashford want “Kamehameha ASHFORD: Point of information. I would like to ask the the Great”? Because there were many Kamehamehas. proponent whether the words substituted by Delegate Roberts ASHFORD: My point was that when Kamehameha is re would not be a proper translation of the words of Kamehame ferred to, it always means Kamehameha the Great or the ha. “For the great man and the small.” First, the others are the minor Kamehamehas referred CHAIRMAN: Delegate Larsen. to as the Second, the Third or what not. LARSEN: You mean “Divine Guidance”? LARSEN: Having been at Queen’s Hospital for 20 years, we talked about Kamehameha the Fourth all the time, and CHAIRMAN: No. it might be confusing. I think maybe the other thing, “in ASHFORD: “For the great man and the small” instead the words of Kamehameha the Great,” does Delegate Ashford of “the big man and the small man.” have any particular objection to “the Great”? CHAIRMAN: You are willing to incorporate the words LARSEN: Well, that to my mind is poetry. Tb me, we’re “the Great” after “Kamehameha”? talking in the terms of the countryside, the big man, the small man. We’re not trying to make it sound great. I LARSEN: “The Great” is all right, yes. think it’s a question of what it means, and to me the very TAVARES: When we are making a speech and we want simple, almost, words from the grass roots, have that to quote a philosopher, we don’t say, “In the words of” and much more clarity and poetry, than trying to bring in a give a long history about the man. We say, “In the words word that possibly came from Harvard. of Kant,” or, “In the words of Lincoln.” We don’t say TAVARES: Do I correctly understand that Dr. Larsen Abraham Lincoln or which Lincoln it was. There was only has accepted removal of the words “our reverence to God” one man who said those words, and, therefore, when you also? say “In the words of Kamehameha,” anybody who wants to find it out will look which Kamehameha said that. So I LARSEN: Correct. don’t think you need “the First.” TAVARES: May I lighten the moment a little by an LARSEN: I’m willing to accept that, especially when I old story of World War I when across the trenches in the get a legal opinion on it. cold wintry weather, a German soldier hoisted up a sign reading “Gott mit uns,” meaning “God with us,” and an AKAU: While I realize that this quotation has been cut American soldier on the other side hoisted up another sign, down somewhat, I say that it isn’t a question of style, it’s “We got mittens too!” a question of content and substance. You have a quotation CHAIRMAN: Is there any further discussion on the amend here, if I may be very technical, but you have nothing that ment as amended? it hangs on to. In other words, you haven’t any verb, any action. You’ve got here, “our respect for the big man, the NIELSEN: I have a suggested amendment if it will be small man, the aged man, the women and the children, accepted. In this whole preamble we have stated nothing who may ever walk the highways or sleep by the wayside about our own constitutional liberty, which I think is, if not without molestation.” That’s the end of the quote. While I not on a par with Divine Guidance, it’s certainly the thing realize you go down there and say you do ordain something, that has built America. I’d like to ask if the proponents of by cutting this down you have taken out something that it this bill would accept to follow the words “grateful for needs. This can’t stand up accurately in the form of English. Divine Guidance,” the words “and our Constitutional liberties,” because I think we should have something in about what we CHAIRMAN: Do you have a suggestion, Delegate Akau? stand for and what we believe in. I think we believe in that AKAU: I have no amendment to make, but I do think that just as much as in Divine Guidance. How about that? we’ve lost something by eliminating our verb. LARSEN: May I ask Mr. Nielsen if he doesn’t think that BRYAN: I’d like to answer that. The words “do express,” the great words of the Great Emancipator that “we reaffirm I think adequately take care of that. “And do express our our belief in a government of the people, by the people and respect for the big man, the small man, the aged man, for the people,” doesn’t cover our constitutional liberties? women and children,” and so forth. NIELSEN: That’s a question of interpretation. I’d like KING: As a matter of historical fact, there was only to see our constitutional liberties spelled out. one Kamehameha. The others used the name as a title, CHAIRMAN: Do I understand you propose an amendment just like King George, the First, Sixth, Seventh, Eighth, that the words “constitutional liberties” be incorporated Ninth, Tenth. They had their own individual names, while after “Divine Guidance”? Would you restate your motion. Kamehameha was the name of the first Kamehameha; it was his personal name. I think that the elimination of the word NIELSEN: After the words “Divine Guidance,” “and our “First” and the addition of no other word, would be quite constitutional liberties.” all right. I would like to change the quotes - - the quotation CHAIRMAN: Is that acceptable to the maker of the marks, and put it after “our respect,” beginning “for the amendment? big man.” Quote, “for the big man, the small man” and so on. That possibly - - that quotation comprising five short LARSEN: Well, no. To me it just kills the point that lines there could be put in Hawaiian, and get the actual we are quoting a great American on constitutional liberties, language that Kamehameha used in the famous law of Mama and we are quoting it in his words, not our words, but we lahoe Kanaiwa. reaffirm our belief. 710 MISCELLANEOUS MATTERS CHAIRMAN: Is there a second to the amendment? KAUHANE: May I beg indulgence of the Chairman that PHILLIPS: Second the amendment. we take a five minute recess, that we get the proper Hawaiian language from which this preamble is taken to satisfy the NIELSEN: Speaking about what Mr. Larsen just said, other delegates. he said we are speaking about a great American. I don’t think Kamehameha the Great was a great American. He CHAIRMAN: I understand you are moving for a five might have thought as we did, but - - minute recess? LARSEN: I was thinking of Abraham Lincoln. KAUHANE: That’s right. CHAIRMAN: Gentlemen, please. I’m asking if there is ASHFORD: I second that motion. a second to Delegate Nielsen’s amendment. CHAIRMAN,: There is a motion for a five minute recess. PHILLIPS: I second that motion. All those in favor. Opposed. The ayes have it. CHAIRMAN: There is a second. Is there any discussion (RECESS) on the amendment? All those in favor. Opposed. The amendment is defeated. CHAIRMAN: Committee of the Whole come to order. AKATJ: Would you kindly give us, when you’re giving, There is being printed a revised copy of Delegate Larsen’s “all those in favor,” say what we are in favor of? amendment to [Committee] Proposal No. 20, which will be distributed in a moment. Now, is there any further discus CHAIRMAN: There has been an amendment proposed by sion on the proposal? Delegate Nielsen, and seconded, that after the word “belief” “grateful for Divine Guidance” -- pardon me—after the C. RICE: I think the committee’.s proposal is the best phrase “grateful for Divine Guidance,” there be added the of the two. I don’t see why we have to put Kamehameha’s words “and our constitutional liberties.” Everybody get words in here. Kamehameha never conquered Kauai. No, that? Now for the question again. All those in favor please he never conquered Kauai. He wasn’t the ruler of all the say “aye.” Opposed. The amendment fails. people. PHILLIPS: I would lilce to speak on the amendment that KING: Mr. Chairman, if I may reply to Senator Rice. includes “grateful for Divine Guidance.” I notice that the Kamehameha did rule Kauai by cession from the last king Federal Constitution does not include any reference to of Kauai, Kaumualii, who ceded the kingdom of Kauai to Divine Guidance, a Creator, a God or anybody else. It Kamehameha and was retained as viceroy for Kamehameha depends on the men themselves to make their government after that cession. function and to devise those devices of government which C. RICE: Well, he enticed him on a schooner and really will make it function. Now, that reminds me of a story didn’t conquer Kauai. Twice they sent in invading fleets of I heard about a farmer who was looking at his fields and canoes, but the weather was with Kauai, and they got a Kona talking to a friend from the city, and his friend from the storm each time, and we killed five thousand at a time. city said, “What a terrific job you and God have done with These were the invading forces. this land.” And the farmer replied with, “You should have Now, the committee report - - I think they are only see seen it before I helped God out. There was nothing but ing sentiment in this other. I think the committee report— weeds here at that time.” So I would feel that our govern the one in the committee report is much better. ment would be very much the same thing. There will be nothing but weeds in our government if we don’t do it our SILVA: Can I ask Mr. Rice a question? selves, and, therefore, we remain on the subject. I, there CHAIRMAN: Delegate Silva, proceed. fore, move to delete the phrase “grateful for Divine Guidance,” as it is in the Federal Constitution. SILVA: Mr. Rice, would you answer a question? CHAIRMAN: Is there a second? There is no second. C. RICE: Gladly from the Senator from Hawaii. SILVA: The question is this, “Was you there, Charlie?” ROBERTS: I was going to speak against that, and point to our Declaration of Independence which was signed on C. RICE: I was there in spirit. July 4, 1776, which ends, “And for the support of this Dec laration, with a firm reliance on the protection of Divine LARSEN: May I also just remind you that Kamehameha Providence, we mutually pledge to each other our lives, was a contemporary of Washington, Jefferson. In the our fortunes, and our sacred honor.” story that we’re going to tell on the mainland, to think that this great contemporary of our great men who formed our CHAIRMAN: Are you ready for the question? nation should have expressed in these simple words the great rule that everyone is after. IHARA: I would like to ask the proponents of the amend [Part of discussion not recorded.] ments whether we are to respect the great man, the small man, the aged, women and children, who do not walk the CHAIRMAN: . . . by Delegate Larsen, and the amend highways or sleep by the wayside? ment has just been read, and the question before the com CHAIRMAN: I’m sorry, I can’t hear you. mittee is whether or not to adopt the amendment as just read by the Clerk. LARSEN: I heard it, Mr. Chairman, if I may answer. I’ll call your attention, it not only respects them when they HEEN: I suggest that we adopt it in principle, so that if we do that, I think we can still improve upon the language. are in their homes, but it hopes that when they go outside “who may ever walk the highways,” who may, if they wish; CHAIRMAN: The suggestion is to adopt it in principle. if they wish to stay home, they may. I think that’s fairly clear, and to me, of course, it’s beautifully simple. But FONG: I am in sympathy with traditions and I am in I think that was the idea he had jn mind, wasn’t it? It sympathy with the words expressed by Kamehameha, but doesn’t limit it; there’s no limitation here. I’m speaking against this preamble because I feel that it does not express the sentiment of the people of Hawaii. CHAIRMAN: Is the committee ready for the question? Now, we are gathered here for the purpose of framing 711 JUNE 27, 1950 • Morning Session a constitution. We are here for one purpose and that is to magnificently loved by people all over the world, and the concentrate the political philosophy that we know best, the song enshrined by Queen Liliuokalani. political philosophy as it has evolved through the ages, However, we may have advanced with respect to industrial the political philosophy as it now stands as far as the and Flowers of Hawaii, enterprise and so forth, I’m sure people of Hawaii can, in their very developed state of we would be very hesitant to say that with respect to that mentality, express to the people and the world. Now, to great number of people—400, 000 population in Hawaii at me, these words of Kamehameha, although uttered by a the time of Kamehameha, according to Vancouver’s count very great man, do not in a way represent a very matured or Captain Cook’s count—there was no importation. We had political thinking. It is difficult for me to accept this a population almost as great as it is today supporting them preamble the way it’s written. “Respect for the big man, selves and living off the land and the sea and the air. Can the small man, the aged man, the women and the children, we in Hawaii do it today? We cannot. And were the people who may ever walk the highways or sleep by the wayside as little as I am today compared to the bigness of mind and without molestation.” Now, people may pick up this heart of the people of those days? preamble and make fun of it. What do you mean by “sleep I think, as Delegate Kellerman properly said, this ing on the wayside without molestation”? Do you mean that preamble shows a continuity of history of these islands, and the drunk can sleep on the wayside? That anyone can the culture and intellectual continuity that goes from Lincoln sleep on the wayside? To me, it represents not the best to Hawaii and back to the United States of America in the or the most developed political philosophy which we are adoption in writing of what the Hawaiians had achieved here, capable of. had achieved and are continuing to achieve and to accomplish, Now, we are writing this preamble which will be read the aspirations of America as defined in the Declaration of by the 48 states of the Union, which will be read by 150 Independence. The greatest argument for statehood is that million people. To me, our preamble should be stately, we have achieved completely in Hawaii the amalgamation of should conform with the high ideals of the philosophical the races, all men are created equal. And for the delegate thought that we are capable of, and to express it in these to say that we have not expressed in this poetic preamble words would not be in keeping with the spirit and with the something that embodies the very soul and heart and accom purpose for which we are gathered here, that is, to write plishment of Hawaii is an extremely surprising statement. a Constitution in the best political theory that we know how. APOLIONA: I am a Hawaiian and I pay my respects to And certainly, in writing a preamble with these words, we that great alii, Kamehameha, but in reading over this are not expressing what we are capable of in our very highly developed society. amendment to our preamble, I find that the main essence in thought is Kamehameha and his law. It is because of the A. TRASK: I am rather surprised that the learned words of Kamehameha and his law that the people reaffirm previous speaker does not see in this brief preamble two their belief in that type of government. That’s not true. great spirits and two great names. Here we have, joining We should not glorify one man in our Constitution, but we hands, two great contemporaries of world history and should give the people of the land the credit for the greatness political thought, and that is Abraham Lincoln and Kame of the land as it is today. The Constitution of the Unfted hameha. “Government of the people, by the people and States provides in its preamble for a more perfect union, for the people” unfortunately is a statement that the towards a better understanding. We should not go back into Republicans claim; and if the gentleman from the fifth the thinking of ancient history to look for contents to be district cannot see the great words engraved in simple put into our Constitution. The able delegate from Kauai has language that are enshrined in the Lincoln Memorial in said that Kauai has never been conquered by Kauai - - I mean Washington, which I’m sure he has seen, I am rather Kamehameha, pardon me. Kauai is going to be a part of surprised. this State of Hawaii. The people of Kauai are going to be part of the State of Hawaii; so, therefore, I say to you, FONG: Point of order. I did not refer to the first part Mr. Chairman, and this Convention, give to the people of of this preamble. The first part of the preamble is also Kauai, who are also the people of the State of Hawaii, the in the preamble which was presented by the committee. I law of the land and the thinking of the people of the land and am just talking about the second, the latter part. not the thinking of one man. DELEGATE: Question. A. TRASK: I’m afraid the gentleman is backing up on ANTHONY: I think there is a great deal in what my brother this matter. He refers to the preamble - - his entire objec Hawaiian has just said. We must remember that Kamehame tion to the offered amendment is the entire front face [of thel ha was a savage. He was a great man. We all recognize preamble. “The government of the people, by the people that. He lived in a Stone Age. Now I think that if we are and for the people” are words enshrined so much, and how going to incorporate this in the Constitution, we don’t want old they are we all know. We have without even quoting language in there that’s going to subject us to ridicule. I Lincoln - - and I would submit to an amendment if he wants think if we’re going to put that in at all, we certainly should “the words of Lincoln” in there, that’s perfectly all right take out the stanza, “who may ever walk the highways or with me, but I’m sure he doesn’t. The question is one of sleep by the wayside without molestation,” because if that’s historical significance, of Lincoln and his expression, and we in there certainly people will wonder about what kind of life don’t even have to mention Lincoln; any student with an we have here. So I, therefore, move an amendment to delete elementary knowledge of history would know the words of the words, “who may ever walk the highways or sleep by Lincoln. the wayside without molestation.” But to those who don’t know the words of Kamehameha, and the great history and tradition and culture of Hawaii - - CHAIRMAN: Is there a second to the amendment? and let us remember, please, that ft’s only about as old as the Constitution is, about 1776, thereabouts, that the KAWAHARA: I second it. first white man, Captain Cook, came to Hawaii’s shores. HEEN: I have this contribution to make. Let us understand that we have had a civilized government. Certainly any country in the world that has created people as CHAIRMAN: Pardon me a moment, Delegate Heen. Was big in stature, big in heart, as big in mind, with poetry there a second to Delegate Anthony’s - - It has been second and love, to create flowers and to have a word “Aloha” so ed. Proceed, Delegate Heen. 712 MISCELLANEOUS MATTERS HEEN: This should read: ANTHONY: May I clear the record by retracting that We, the people of Hawaii, grateful for Divine Guidance, remark; what I meant to say was that I think he was a pagan; reaffirm our belief in a government of the people, by the President told me he was a pagan. the people and for the people, and mindful of the words Delegate Larsen quoted from a nineteenth century journal of Kamehameha that the law of the land shall be for the an article on Kamehameha. big, the small, and the aged man, the women and the children who may ever walk the highways or sleep by Delegate King stated that the question was on the amend the wayside without molestation, we, therefore, with ment offered by Delegate Heen. an understanding heart toward all the peoples of the Delegate Larsen accepted the amendment. earth, do hereby ordain and establish this Constitution for the State of Hawaii. Delegate Kauhane read what he said were the true words CHAIRMAN: Pardon me, is that an amendment? of King Kamehameha when he issued the law of the broken paddle, which he quoted. He said: “He speaks of the small CROSSLEY: That was an amendment, and I second it. man, of the little children when he refers to them as - -“ HEEN: That’s an amendment. (read in Hawaiian and gave the English translation of the law of the broken or splintered paddle.) LARSEN: I accept the amendment. I’d like to talk on it [Recording resumed.] for just a minute. KAIJHANE: . . . when we say in this preamble, “in the CROSSLEY: I would like to say - - Am I recognized? words of Kamehameha the First, our reverence to God, also CHAIRMAN: I just wanted to make sure that everybody our respect.” Kamehameha had never, in the utterance of had the additional words of Delegate Heen. the “Law of the broken paddle,” said a prayer to God before he uttered those words. Certainly we read in Hawaiian his TAVARES: Point of order. tory where Kamehameha has always paid homage to God. CHAIRMAN: State your point of order. The Hawaiians had their own gods before the white man came to these islands. They had Lono who was the god of TAVARES: I thought it was the understanding we were fish; they respected Hina; and the gods spoken of by the just going to vote in principle. Now we are going back to Hawailans most frequently were Lono and Hina. So that amending the words again. when they went to pray and pay homage to their gods, they CHAIRMAN: That is correct. The Chair would like to paid homage to Lono and Hina. It was the white men who rule that the question is whether or not to accept this came to these islands, who brought the Bible with them and preamble in principle, and that the words do not alter the took the Hawailans away from the gods, their respected sense of the preamble, and I believe the call for the ques gods, Lono and Hina, and told them that there is a Divine tion is in order. God in heaven. That’s why we have in the Hawaiian Bible the phrase “Praise to Almighty God,” which is “Ka Makua ha CROSSLEY: It would seem to me that in voting on the Lani.” When the Hawalians open their prayers by saying principle then, I would have the right to speak to the such Hawaiian words, “Ka Makua ka Lani” they mean “the principle? God in heaven,” and that was taught to them by the white CHAIRMAN: Correct. man when he came to these Islands. So I see no reason for us to continue saying or trying to CROSSLEY: I think the principle as just expressed by put in the preamble the “Law of the broken paddle.” Let the delegate from the fourth district, who made the previous us express that in the committee report through our sin motion, would perhaps clarify in the minds of quite a few cerity in carrying on that great homage to that “Law of the of us as to how this would work. Therefore, I would now broken paddle” rather than write it in the Constitution as be in favor of this amendment as just changed, because I a preamble. I believe the committee report is sufficient do think that it changes the sense considerably; and in when we say, and embody the same thinking that was ex adopting a principle we also would like to know the intent pressed by Kamehameha, when we say this in the preamble, of the words and that would give us a guidance as to how “in a government of the people, by the people, and for the they would work. Now, most of the people who have spoken people.” Those are the very words by inference Kameha against “who may ever walk the highways or sleep by the meha said when he laid down the “Law of the broken paddle.” wayside without molestation” are people from the City and Even though some have said those are the words spoken by County of Honolulu where you just pound the gutters, the Abraham Lincoln, it is true that no truer words were spoken streets and hot pavements; but it’s still true, especially on by Kamehameha when by inference he said the law is the Kauai, that people do walk the highways and that they do government of the people, by the people, for the people, when sleep by the wayside. You can see it any day, and they do he laid down the “Law of the broken paddle.” it without molestation. I think the trouble is too many I feel that the committee proposal is proper, and if we people live in the city, and I’m in favor of this thing, and want to make any reference to the “Law of the broken I do not think it will be held up to ridicule to read those paddle” as laid down by Kamehameha, let us put it in the words. I think they mean something different to people committee report and I believe everyone will respect the who live in rural areas. words of Kamehameha. HAYES: Point of privilege. LOPER: I have a suggestion that might help solve this CHAIRMAN: State your point, Delegate Hayes. problem. By rearranging the language, if we would make HAYES: I rise to personal privilege in regards to a it read something like this, I think it would be more accurate statement just made by Garner Anthony. I don’t believe ly an expression of our thought. he really meant what he said, that Kamehameha was a savage. I would like to say that there would be no State We, the people of Hawaii, grateful for Divine Guidance hood Convention today if the history of Hawaii had been and mindful of the ancient words of Kamehameha’s law one of hostility instead of hospitality. of protection “for the big man, the small man, the aged man, the women and the children, who may ever walk the [Part of the discussion was not recorded. The following highways or sleep by the wayside without molestation,” is from the minutes of the committee.] reaffirm our belief in a government of the people, by the 713 JUNE 27, 1950 • Morning Session people and for the people; and with an understanding Sakakihara. Call for the question? All those in favor please heart toward all the peoples of this earth do hereby ordain say “aye.” Opposed, “no.” The Chair is in doubt. I will and establish this Constitution for the State of Hawaii. ask for a show of hands. I believe that will be sufficient. ANTHONY: Thus far, we have asked what the version SAKAKIHARA: Roll call. of the Hawaiian is. We’ve gotten two, and the proponents CHAIRMAN: Call for a roll call. How many in favor of the amendment to the preamble have not been able to of a roll call? Roll call is ordered. furnish us with the Hawaiian text. It seems to me that we should have that text here, and then translate it. Now, the CROSSLEY: Before the roll call is taken, a point of translation of President King is different from the transla information, please. As I understand it, we’re not voting tion of the proponent of this amendment. I think that this on Mr. Sakakthara’s amendment or any other amendment, matter ought to be deferred until we’ve gotten more ml or we’re voting on the principle as to whether or not we want mation so we can vote intelligently on it. If we have the text, the language as proposed by the committee and quite simi we can get a Hawaiian dictionary and find out what these larly proposed by Delegate Sakakthara, or the language words mean. proposed by Delegate Larsen and amended by Delegate Heen; the two principles, as I understand it, that we’re ARASHIRO: Second the motion. going to vote on. CHAIRMAN: Do I understand that to be a motion to defer, Delegate Anthony? CHAIRMAN: That is not correct, Delegate Crossley. The amendments up to now have been acceptable to Dr. ARASHIRO: Second the motion. Larsen as the maker of the original amendment. This ANTHONY: Yes, I move to defer. amendment is not acceptable, and the question now is whether or not the amendment will be accepted by the com LARSEN: Could I speak on that for a moment? The one mittee. So I’d like to ask the Clerk now to read the pre way not to translate Hawaiian is by taking a dictionary and amble as it would sound amended by Delegate Sakakthara. trying to get it word by word. TAVARES: Before that happens, may I ask a further CHAIRMAN: I’m sorry, Delegate Larsen, the motion question, and that is, it seems to me that first of all we to defer does not allow debate. All those in favor of de should decide in principle, and then we should have it under ferring the amendment to Proposal No. 20, please say stood that we can further amend whichever language is “aye.” Opposed, “no.” Motion is lost. adopted in principle, because I’d want - - if the Sakakihara LARSEN: I think we’re ready to vote on it and I would amendment is adopted, I would want to suggest a further like to call for the motion. amendment to it. SERIZAWA: Are we voting on the question as to whether CHAIRMAN: The Chair at the moment is powerless to we accept the principle as written by Dr. Larsen and one by the committee? do anything unless Delegate Sakakihara wishes to withdraw his amendment. A roll call has been asked for, and I’m CHAIRMAN: The question before the committee is going to ask the Clerk to read the preamble as amended by whether or not to accept the preamble offered by Dr. Larsen Delegate Sakakthara. as an amendment to Proposal No. 20 and as amended on HAYES: I move for a five minutes recess. the floor. SAKAKIHARA: Can I further amend the amendment, Mr. CHAIRMAN: I don’t think it would be necessary, if you’d Chairman? wait until - - CHAIRMAN: You may. CLERK: SAKAKIHARA: I would like to amend the proposal - - We, the people, of the State of Hawaii, grateful for the amendment of Delegate Larsen in the following way: Divine Guidance, mindful of our Hawaiian heritage, re affirm our belief in a government of the people, by the We, the people of the State of Hawaii, grateful for people and for the people, and do hereby ordain and es Divine Guidance, mindful of our Hawaiian heritage, re tablish this Constitution for the State of Hawaii. affirm our belief in a government of the people, by the people and for the people, do hereby ordain and establish A. THASK: Point of order. this Constitution for the State of Hawaii. CHAIRMAN: State your point. KAUHANE: I second the amendment. A. TRASK: This is not an amendment. This is not an LARSEN: That misses the point entirely, of course. I amendment at all. It’s nothing else but the original article would like to call for a motion, because we either accept of Committee Proposal No. 20. Only one word “affirm,” the idea of expressing these two great principles of govern and it’s altogether the same. It is not a proper amendment, ment in quotes, or we don’t. I feel that Sakakthara’s goes and I say that therefore that leaves with us the amendment back to the original of the committee. It seems to me what of Dr. Larsen, which is in truth an amendment. we’re voting on is whether we accept that simple language, CHAIRMAN: The Chair rules that it is an amendment. you might say the ordinary, or whether we use the quotes. SERIZAWA: It is an amendment because the words -- CHAIRMAN: You are speaking against the amendment additional words have been added to it. which you do not accept. Is that correct? CHAIRMAN: Will the Clerk call the roll. LARSEN: That is correct. J. TRASK: It is my understanding that if we vote “aye” CHAIRMAN: Then any discussion would be on Delegate we’ll be voting for the amendment as submitted by Delegate Sakakthara’ s amendment. Sakakihara. ARASHIRO: Was there a motion to the previous question? CHAIRMAN: That is correct. Roll call, please. CHAIRMAN: No, there was not. The question before LARSEN: And if you vote “yes,” you vote against includ the committee now is the amendment as offered by Delegate ing any of Kamehameha’s words, is that right? 714 MISCELLANEOUS MATTERS CHAIRMAN: That’s correct, even though you are out of sented to other nations. Hawaii is different from any other order, Dr. Larsen. Roll call. state, and the reason why I say she is different is because Ayes, 28. Noes, 26 (Ashford, Bryan, Cockett, Corbett, she is the only territory of the United States that ever had Crossley, Hayes, Heen, Holroyde, Kellerman, King, Kome a king rule the territory, No other state in the Union has tani, Larsen, Loper, Lyman, Mizuha, Ohrt, Porteus, had that privilege and, therefore, the people of the United Roberts, St. Sure, Tavares, A. Trask, J. Trask, Wirtz, States do look to Hawaii as one of the historical and most Woolaway, Yamamoto, Castro). Not voting, 9 (Gilliland, interesting territories. Lai, Lee, Mau, Phillips, Richards, Sakai, White, Wist). CHAIRMAN: Delegate Hayes, may I interrupt? Would CHAIRMAN: The ayes have it. The - - you confine your remarks to the amendment. The question LARSEN: Mr. Chairman, the noes have it. of whether or not Hawaii is included is not germane to the amendment. CHAIRMAN: What was that again? 28 ayes. HAYES: The reason why I’m trying to compare the differ LARSEN: I thought that you said the ayes have it. ence between this amendment, which has ignored that great CLERK: 28 ayes, 26 noes, 9 not voting. Kamehameha - - LARSEN: Sorry, I - - CHAIRMAN: That has been voted. CHAIRMAN: The ayes have it. SILVA: Point of order. I asked a moment ago and you ruled that she was in order. Then you finally say that she’s ROBERTS: I’d like to offer an amendment to the proposal, out of order. in line four after the word “people,” add the following words, “and with an understanding heart toward all the peoples of HAYES: May I say just say one more word, and then this earth,” and continue, “do hereby ordain and establish.” I’ll stop. I would just like to say to the chairman and the delegates of this Convention that Hawaii would never be YAMAMOTO: Second the motion. known to any other state. Why? Other states have every CHAIRMAN: It’s been moved and seconded that after the thing which is in common with one another, but Hawaii word “people” in the fourth line, the following words be doesn’t because of her great king, her people, the historical added, “and with an understanding heart toward all the background that we should have in this preamble of the new peoples of this earth,” and then proceed with “do ordain and State of Hawaii. establish.” Is that correct? CHAIRMAN: Does everybody understand what the amend ROBERTS: That’s correct. May I speak in favor of that? ment is? CHAIRMAN: You may. ROBERTS: I’d like to state that the amendment which I offered is on the assumption that the previous motion was ROBERTS: The delegates seem to feel ready to vote on made and lost. I was in complete sympathy and supported this thing. I assume that they mean they will vote in favor the proposal presented by Delegate Larsen; but once the of it. All right. proposal has lost, it seems to me that this amendment is CHAIRMAN: Proceed, Dr. Roberts, if you wish. Is in order and proper and does provide some language, and there any discussion on the amendment as proposed? All therefore, ought not to be opposed by those who have favored those in favor? the previous proposal. I’d like also to state that the language, “government of, ANTHONY: Can we hear the amendment? Will the Chair for and by the people,” is essentially the language of Lincoln have the Clerk read the amendment, please? and drafting of that in terms of language could be left with CHAIRMAN: Will the Clerk read the amendment? the Style Committee. CLERK: In line four, after the word “people,” add the CHAIRMAN: Are you ready for the question? following words, “and with an understanding heart toward ANTHONY: I’m a little bit confused here. What is the all the peoples of this earth.” status of Delegate Sakakthara’s amendment? CHAIRMAN: Does that answer your question, Delegate CHAIRMAN: Delegate Sakakihara’s amendment passed Anthony? Call for the question? by a vote of 28 to 26. To that amendment has been added HAYES: I would like to speak against this amendment, the phrase after the fourth line, after the word “people,” and I would like to reaffirm my stand on why I feel that comma, the phrase, “and with an understanding heart to Kamehameha the Great should be a part of the Constitution ward all the peoples of this earth,” and then proceed with of the State of Hawaii. “do ordain” - - “do hereby ordain and establish.” SILVA: Point of order. ANTHONY: I’m substantially in accord with this; I’m substantially in accord with the expression of the ancient CHAIRMAN: Do you have a point of order, or don’t you? doctrine of protection as enunciated by Kamehameha. What SILVA: She isn’t speaking on the amendment; she’s I did object to was the attempt at a literal translation of speaking on the previous question. words which we didn’t have before us. Now, it seems to me that if we take a little time on this, we can get that CHAIRMAN: The Chair rules she’s speaking on the thought that Dr. Larsen wanted to get in without putting amendment. Proceed, Delegate Hayes. words in that are not true translations. HAYES: My reasons against the amendment which I’m speaking on; from New York, the State of New York to the SILVA: I rise to a point of order. That motion has been lost. The only thing before this Convention now in the Com State of California, each state, I believe, has its own mittee of the Whole is Dr. Roberts’ amendment. background and history and reasons why they believe that in their constitutions certain principles should remind them ANTHONY: I move for a deferment. of the old grand State of New York or of California. For the same principle, I feel that Hawaii should maintain her his CHAIRMAN: That is correct. torical spot, the most important thing that Hawaii has pre A. TRASK: I second - - JUNE 27, 1950 • Afternoon Session 715 BRYAN: Point of order. from Missouri: “The powers of government shall be divided into three distinct departments —the legislative, executive CHAIRMAN: Delegate Kometani, did I hear you second and judicial—each of which shall be confided to a separate the motion to defer? magistracy, and no person, or collection of persons, A. TRASK: I did second that. charged with the exercise of powers properly belonging to CHAIRMAN: Was that Delegate Trask? one of those departments, shall exercise any power proper ly belonging to either of the others, except in the instances A. TRASK: I second the motion of Delegate Anthony in this constitution expressly directed or permitted.” to defer this matter. From all the information that I could gather, it seems CHAIRMAN: The motion has been made and seconded that it’s just a statement which has been brought down through to defer the Committee Proposal No. 20 as amended. All the years and as far as the different states following them, those in favor please say “aye.” Opposed. Carried. there are not very many. In writing the Model Constitution, they tried to put it right in the Constitution in making three KING: I move the committee rise and report progress distinct branches of government. and ask leave to sit again. I am quite sure that in all the literature that’s written HOLROYDE: I’ll second that motion. up that you will find that the sentiments are these. The doctrine of the separation of powers, inherited from a poli CHAIRMAN: All those in favor say “aye.” [Carried. tical theory long since discredited, is soundly enunciated as a matter of course, the phraseology varying but little from state to state. During the last century and a half Afternoon Session Americans have gradually been learning that they must concentrate authority in order to prevent the diffusion of CHAIRMAN: Committee of the Whole come to order. responsibility. But the doctrine in very explicit language Delegates may sit at their ease. still has a prominent place in most state constitutions, When we rose to report progress, prior to lunch, there even though, as one commentator remarked a number of was still being debated Committee Proposal No. 20. The years ago, it is rapidly falling into a condition of harmless chairman of the Committee on Miscellany has asked that senility. the Committee of the Whole turn its attention to those com But the way we have it worded as amended, I haven’t mittee proposals which yesterday were deferred. So, in been able to find any constitution that has that wording be accordance with that request, the Chair would like to request cause it’s just knocking the teeth out of it. Now I know that that the committee turn its attention now to the committee there will be persons objecting to it thoroughly, that there proposals in the following order: 18, on distribution of will be instances where certain things will be unconstitutional, powers; and then after that, 19, 17, 12 and ending with but it’s the very fact that we have three branches of govern Proposal No. 20 on the preamble. So we will now turn ment which we wanted, with separate powers, so that the our attention to Committee Proposal No. 18 on the distri lawmakers will not be - - the ones making the laws will not be bution of powers. The Chair recognizes Delegate Yamauchl. carrying them out. YAMAUCHI: The committee still feels that there should CHAIRMAN: Any further discussion on Committee Pro be an article in regard to the distribution of powers and we posal No. 18 with its proposed amendment? haven’t come to an agreement after talking to some of the members. I would like to ask Delegate Smith to talk on this TAVARES: I agree with what has just last been read, that matter. this business of trying to put each department of government into a separate vacuum, sort of a contained compartment, is CHAIRMAN: Possibly before we hear from Delegate impracticable and unworkable. I say again that the Federal Smith, I’ll ask the Clerk to read the Committee Proposal Constitution has no such requirement of - - express require No. 18 as it stands amended, just to make certain. ment of separation of powers and yet the courts have at CLERK: times held that actions which went too far in attempted exer cise by one department of powers which by the Constitution The powers of government shall be divided Into three are given exclusively to another department, were invalid. branches; legislative, executive and judicial, except as Now, I’d like to point out some of the difficulties you get expressly provided in this Constitution. into with an express provision like this. Here’s American Jurisprudence that says this. Here is one decision that is CHAIRMAN: That is the way the committee proposal cited. “If the removal of a sheriff by the governor is an stands with the proposed amendment, “except as expressly executive function, a statutory provision for review of his provided in this Constitution.” action by the courts would be unconstitutional as an attempt SMITH: Going to the Legislative Reference Bureau and to invest the judiciary with a function of the executive de getting more information, I tried to get as much information partment.” That’s American Jurisprudence, page 888. as I possibly could. It seems to me that among the 41 states Another statement, “It is the rule in some jurisdictions that have this provision, it’s a matter of statement of that under a constitutional provision that the three depart philosophy that there shall be three distinct branches of ments of the government shall be distinct and that no one government, and apparently the majority of them have the branch can interfere with the duties of the others, a writ of same wording. I thought I’d read a couple of them to show mandamus will not lie to compel official action by a governor, you the same trend of thought. “The powers of”—this is whether the act is of the kind regarded as ministerial or from Alabama—”The powers of the government of the State otherwise. Under this view, such a writ is not issuable of Alabama shall be divided into three distinct departments, against an executive for the purpose of compelling him to each of which shall be confided to a separate body of magis perform a duty even though such duty is imposed upon him tracy, to wit, those which are legislative to one, those which by statute.” are executive to another, and those which are judicial to That is the danger that we run by putting an express another.” They all have the - - practically all of them are provision and tying every department up so that one can’t the same in thought, that there should be some expression interfere with the other, by an express provision like this. in the constitution of the concept of having three distinct And when you say that the governor shall perform ministerial branches of government. I’ll read one more and that is acts, some courts have said that kind of a provision prohibits 716 MISCELLANEOUS MATTERS the courts from making him do his duty. I warn the members it seems to me that it would put it therefore in a liquid state of this Convention, therefore, that if they put in a provision and not make it as concrete and distinct and rigid as the form like this, they are likely to run the risk of this kind of court of the article now appears. But for the safety of all, I decision in the future, instead of leaving it to the well-in would be in favor of having the matter altogether deleted. terpreted separation of powers implied in the Federal Consti tution and implied in this. CHAIRMAN: You then do not - - you do not propose that as an amendment? ANTHONY: Will the speaker yield just a moment? NIELSEN: I’d like to ask Delegate Smith a question. TAVARES: I’ll yield. How many states did you say had a similar provision as ANTHONY: What this endeavors to do is to incorporate Proposal 18 in their constitution? in a sentence the basic doctrine that came down from SMITH: Forty-one. Montesquieu, which was incorporated in the Federal Consti tution, of the doctrine of the separation of powers. As NIELSEN: Forty-one. Brother Tavares has pointed out, that is a well-understood CHAIRMAN: Any further discussion on the committee doctrine in constitutional law, and we know what that means. proposal, with its proposed amendment? Are you ready There is certain danger in endeavoring to state it in a brief for the question? sentence like this. It seems to me that we will have the doctrine of separation of powers without incorporating it in ROBERTS: I have a question to ask some of the lawyers. so many words. Therefore, it seems to me unnecessary Would the deletion of this section which states very succinct that we should incorporate a statement in the Constitution ly the separation of powers, would the deletion of this section to that effect. prevent a suit by a person claiming that one branch of govern ment was usurping the authority of another. CHAIRMAN: Any further discussion? CHAIRMAN: Is there an answer? TAVARES: For the benefit of the lawyers, may I make one more—there’s various others—but I’ll quote one more TAVARES: I would say not within the limits that have citation from American Jurisprudence, page 910. “An act already been established by the federal courts in interpret creating an executive tribunal with power to adjudicate dis ing the Federal Constitution. They have struck down some putes arising out of motor vehicle accidents on the highways infringements where they went beyond a reasonable twilight of the state contravenes a distributive constitutional provi zone between the two departments. The courts have said sion. In one jurisdiction laws establishing the Torrens that there is a separation of powers, that that is the effect system of land registration,”—that’s the land court—”and pro of the Federal Constitution. For instance, if Congress, I viding for an examination by the recorder of deeds or regis believe, assumed to try a judicial question, a case pending trar of titles of the facts in relation to the title to land and before the courts, and tried to pass a law saying that the for the issuing of a certificate of ownership, have been judgment shall be thus and so, undoubtedly the Supreme held invalid as constituting an unconstitutional conferring of Court or the federal courts would strike it down as being an judicial power, even if the effect of such certificate is only invasion of the judicial power. to start the running of a statute of limitations. There are, ROBERTS: I’m talking now about the State Constitution. however, contrary rulings on this point. . . “and so forth. In other words, the courts are in dispute over the meaning ANTHONY: There was an instance in recent years which I think Delegate Roberts has reference to. That in of that type of term. volved a statute passed by the legislature, I believe it in CHAIRMAN: Is the committee ready for the question? volved a claim. It went to the courts and the courts threw A. TRASK: May I ask Delegate Tavares, if the judicial it out. It went to the Supreme Court of Hawaii. The same decisions in the cases referred to, that the constitutions statute in modified form was again readopted and the of those states had such a provision in their constitution? Supreme Court of Hawaii held—in my judgment erroneously —that that action of the legislature was a usurpation of the TAVARES: In one or two of those citations, it did state judicial power. I think that’s the sort of thing that Mr. that there was an expressed - - such an express provision. Roberts is talking about. Now, I wouldn’t be particularly I rather think that most of these are states which have that in favor of this provision to correct that sort of a decision. express provision. That’s the impression I get from read It seems to me that the place to correct that is in the courts ing, but I haven’t checked - - double-checked the decisions; themselves rather than to try to do it in a rigid statutory I didn’t have the time since yesterday, except to find the - - constitutional provision. general citations in the search books. CHAIRMAN: Does that answer your question, Delegate CHAIRMAN: Does that answer your query, Delegate Roberts? Trask? ROBERTS: Yes, it does. May I make a statement now? A. TRASK: Yes, certainly. I feel similarly to Delegates Tavares and Anthony. I feel—and attorneys are not much CHAIRMAN: Proceed. respecters of themselves as a class—I think it would be - - ROBERTS: It is my general feeling that when we set up it would give unscrupulous lawyers a great opportunity to our Constitution we are providing for the separation of hamstring a lot of legislative matters that ordinarily would powers. We have provided for three branches of govern fall within that zone between the various departments. ment, very specifically; so that whether we put this section I am inclined to be in favor of it, but in appreciation of in or leave it out, there is still the basic concept that there the committee’s work I would not move, but I would suggest has to be a separation of powers. If the legislature were that for them to consider that alter the word “government,” to take on responsibilities or to divide responsibilities in to consider, “The power of government is,” insert, “is contravention of that basic policy of separation of powers, declared to be divided into three branches, legislative, exec it would seem to me that the courts could strike that down, utive and judicial.” Primarily, the question is one of even if we did not have this particular paragraph. It is, declaration; that there is certainly a judicial declaration therefore, my feeling that there is no objection to the inclu that we recognize the historical and continuing construction sion of this section, which does point out that from the point of the form of government, that it is divided into three parts. of view of our government that we do recognize that there And this would be merely declaratory of a principle. Now, are three branches of government, that we do not want one JUNE 27, 1950 • Afternoon Session 717 branch of government to operate the entire government. I feel, are very dangerous. He has not referred himself Therefore, I would suggest that that section be retained in or addressed himself specifically as to any particular the Constitution, even though the courts ultimately do have necessity for this thing and I see danger in it. the responsibility of construing it. But if one branch of In our Constitution, as in the Federal Constitution, the government takes upon itself too great powers, it would courts have interpreted great implied powers in the Congress seem to me then that there is a proper safeguard, in terms to do this, that and the other thing. It may very well be that of our basic philosophy, that there are and should be a the supreme court of Hawaii may, by looking over the Consti separation of powers as between judicial, legislative and tution from all corners, decide that there are certain implied executive. powers, and certain implied powers may be given to certain departments of the government. Now, if you have this TAVARES: Am I correct in my recollection, we have situation, where there is some question with reference to already struck out the latter part of that article, “and no the executive having some power that may border on a person or persons belonging to or constituting one of these legislative matter, like with respect to delegation of power departments shall exercise any of the powers properly be or with respect to quasi-judicial determination, this ex longing to either of the others” and so forth? pression, “except as expressly provided in this Constitution,” CHAIRMAN: That is correct. when you are faced with only an implied power, it would be very doubtful in my mind whether or not “except as express TAVARES: And also the first sentence has been amended ly provided” could spell out effectively an implied power. to read as follows: “The powers of government shall be Therefore, I think it should be left out altogether. divided into three branches: legislative, executive and judicial.” Is that the way it now reads? CHAIRMAN: Ready for the question? The question before the committee is as to whether or not - - CHAIRMAN: After “judicial” there is a comma, followed by the phrase, “except as expressly provided in this Consti HEEN: I think the word - - the use of the word “into” tution.” That was an amendment by Delegate Roberts yes is wrong. “The powers of government shall be divided into terday. three separate branches.” ANTHONY: I’d like to have an explanation as to the ex CHAIRMAN: Delegate Heen, we would like to have the ceptions. I didn’t know there were exceptions. Would the expression of the committee on the deletion of the phrase, delegate who made that amendment explain the exceptions. “except as expressly provided in this Constitution,” after CHAIRMAN: Delegate Roberts, would you like to answer which time, I think the discussion of the word “into” would that question? be in order. The amendment is for the deletion of the phrase, “except ROBERTS: When the original proposal submitted by the as expressly provided in this Constitution.” Those voting committee was amended to delete the words, “No person or aye will vote to delete that phrase. All those in favor please persons belonging to or constituting one branch, etc.” My say “aye.” Opposed, “no.” Carried unanimously. feeling was that äome exception ought to be made for those The amended section before the committee now reads, sections in the Constitution where we have, in fact, recog “The powers of government shall be divided into three nized that there is an overlapping of power. Unless those branches: legislative, executive and judicial,” period. things which we have written into our Constitution, which recognize that - - are expressly that this section shall not HEEN: Instead of using the word “into,” I think we ought apply to the things which we have expressly written into to use the word “among.” “The powers of government shall our Constitution. be divided among three branches of government.” ANTHONY: That does not quite satisfy me. I didn’t ANTHONY: I accept the amendment. know what the express exceptions were. It seems to me that if we want to express the political philosophy of the CHAIRMAN: Will you make that as a - - separation of powers, you can do that very simply by say HEEN: I so move, that the word “among” be substituted ing, “The powers of government shall be divided into three for the word “into.” branches: executive, legislative and judicial,” period. CHAIRMAN: I believe, Delegate Anthony, the proper CHAIRMAN: Do you amend to delete the clause? motion is to second. ANTHONY: I would move to make the amendment that ANTHONY: I second it. I have just stated. “The powers of government shall be CHAIRMAN: It has been moved and seconded that the divided into three branches: executive, legislative and word “into” on the second line be deleted and in lieu thereof judicial,” period, and to strike out the rest of the language. the word “among” be placed. CHAIRMAN: Is there a second to the motion? HEEN: I move to strike the words “separate and distinct.” A. TRASK: I second that motion, but is the pending motion, that of Delegate Roberts, with respect to the words, CHAIRMAN: That has been stricken. “except as expressly provided in the Constitution”? HEEN: That’s been stricken? CHAIRMAN: No, Delegate Trask, the pending motion CHAIRMAN: That has been stricken. is whether or not to adopt the article to read, “The powers HEEN: How does it stand now? of government shall be divided into three branches: legis lative, executive and judicial, except as expressly provided CHAIRMAN: With your amendment, it would read, “The in this Constitution.” The amendment by Delegate Anthony powers of government shall be divided among three branches: deletes the words, “except as expressly provided in this legislative, executive and judicial,” period. Constitution.” HEEN: Between the word “three” and the word “branches,” A. TRASK: I second the motion of Delegate Roberts - - I move that the word “fundamental” be inserted so that that I mean Delegate Anthony. And I say with reference to the sentence would read, “The powers of government shall be deletion of the contribution by Delegate Roberts, “except divided among three fundamental branches: legislative, as expressly provided in this Constitution,” those words, executive and judicial.” 718 MISCELLANEOUS MATTERS CHAIRMAN: Is that further amendment seconded? and the Chair has ruled that that motion is in order, so we ANTHONY: I’ll second it. should proceed along those lines. CHAIRMAN: Alter the word “three,” the word “fundamen BRYAN: Wouldn’t it be - - The motion to amend would tal” be inserted. Is that the extent of your amendment, Dele be purely academic if the motion to delete would have gate Heen? Is there any discussion on the amendment? carried. ROBERTS: I have a question. The way the section now CHAIRMAN: That is correct, and the Chair is willing to reads it provides that “The powers of government shail be put the motion to delete. Ready for the question? The divided among three fundamentaibranches.” Does that mean motion has been made by Delegate Mizuha and seconded by that you can divide among three branches in such form that Delegate Kawahara to delete the entire article. you can give the judicial certain executive powers? I have ROBERTS: May I speak in favor of that? in mind, for example, an action in the supreme court of the State of Michigan dealing with an arbitration statute. That CHAIRMAN: You may. arbitration statute provided that a member of the judiciary ROBERTS: I was for the inclusion of this article in be permitted to sit on the court dealing with certain executive such a form that it spells out the separation of powers. I functions, an arbitration tribunal. The supreme court of believe that the separation of powers exists whether we have that state held that that was contrary to and in violation of this article or not. Rather than see it go in this form, I’d the separation of powers. This section permits the setting just as soon have if deleted. up of any functions in any branch of the government. The original language of the committee provided for three sepa CHAIRMAN: All those in favor of the motion to delete rate and distinct branches, so whatever functions were please say “aye.” Opposed. Motion is deleted - - The allocated must be allocated In the appropriate division of proposal is deleted. government. This would give you a hodgepodge, an oppor The Chair feels, however, that those delegates who feel tunity to divide your functions instead of maintaining your that these articles should be deleted should speak up early separation of powers. in the debate rather than to waste an hour of the committee’s time. CHAIRMAN: Delegate Roberts, I understood that you rose for a question? HOLROYDE: On that point, I moved to delete that section yesterday but you wouldn’t let me. BRYAN: I think that the answer to his question is that you have - - Dr. Roberts? Mr. Chairman. CHAIRMAN: We’ll now move to Committee Proposal No. 19. I’ll ask the Clerk to read the proposal as it stands CHAIRMAN: Dr. Roberts, there is a question being with amendments. addressed to you instead. - BRYAN: Is not the answer to your question that the word CLERK: “divided” provides that it be divided into three departments? Oath of Office. All public officers and employees I don’t think if you divide anything three ways that you can shall, before entering upon the duties of their respective have a hodgepodge. offices and employment, take and subscribe to the follow ing oath or affirmation: “I do solemnly swear (or affirm) ROBERTS: You can divide functions among three powers, that I will support and defend the Constitution of the and give each power part of it. United States, and the Constitution of the State of Hawaii; MIZUHA: At this time I would like to move for the dele and that I will faithfully discharge the duties of my employ tion of this entire article. ment or the office of — to the best of my ability; and KAWAHARA: I second the motion. that I do not advocate or belong to any party, organiza tion or association which advocates the overthrow by CHAIRMAN: It has been moved and seconded that the force or violence of the government of the State of Hawaii entire article be deleted. I believe that we have agreed in or the government of the United States.” The legislature the committee that we would vote on the merits of the motion may prescribe further oaths or affirmations. and not to delete. The amendment before the committee is that the section should read, “The powers of government CHAIRMAN: What is the pleasure of the committee? shall be divided among three fundamental branches: legis KAGE: I am speaking against the amendment to include lative, executive and judicial.” The Chair is ready to put the word “employee” and also to amend the oath - - the question. CHAIRMAN: May I ask - - there is no motion to accept - MIZUHA: I rise to a point of order. When did we agree the proposal before the committee. that we could not delete this article? KAGE: That motion was made yesterday. CHAIRMAN: I would like to ask the delegate to with draw his motion so that we may vote on the proposal as CHAIRMAN: No, the motion was to defer. presented. HOLROYDE: I move for the adoption of this section. MIZUHA: Would the defeat of the previous motion result BRYAN: I second the motion. in the deletion of the article? CHAIRMAN: Thank you. CHAIRMAN: The question before the house is the amendS ment, Delegate Mizuha. KAGE: We are specifically speaking of the oath of office in this particular proposal and when we end it with the MIZUHA: Well, I believe that if the motion to delete the sentence, “The legislature may prescribe further oaths and article is put and carried, then the article will be defeated affirmations,” we are speaking of the oaths of loyalty. If and we don’t have to vote on the amendment. we were to include the word “employees” and request that J. TRASK: Point of order. I think the delegate from he take the oath of office, we will be having a rat catcher or Kauai is wholly out of order. We’ve already got a motion a janitor trying to faithfully discharge the duties of his office. and a second to the amendment to the proposed section. The The committee feels that the office - - the oath of office and Chair has recognized the motion and the second. So the oath of loyalty are two separate and different matters. If question on the floor is the inclusion of the word “fundamental” you try to combine the two oaths into one, you are trying JUNE 27, 1950 • Afternoon Session 719 to put two things into one basket. The committee fui~ther an oath of office for officers prescribed in the Constitution feels that the oath of loyalty is a statutory matter and and trying to prescribe an oath for all employees. that it should be left to the legislature. CROSSLEY: I have the original language which has CHAIRMAN: Any further discussion on the proposal? been amended. I now have another amendment on my desk Ready for the question? which is written out and my fellow delegate over in the fifth has proposed a third. I wondered if we couldn’t have a few TAVARES: Just what is the proposed amendment now? minCtes~ recess to get these all correlated so that we can May we get it? find out whether the committee is far apart on these others CHAIRMAN: The proposed amendment is - - The proposal and then have a committee proposal or a committee report as amended reads: as to how they feel on these amendments. So I would move that we have about a five minute recess. All public officers and employees shall, before enter ing upon the duties of their respective offices and employ A. TRASK: I second it. ment, take and subscribe to the following oath or affir CHAIRMAN: All those in favor of the recess say “aye.” mation, “I do solemnly swear (or affirm) that I will Opposed. Carried. support and defend the Constitution of the United States, and the Constitution of the State of Hawaii, and that I will (RECESS) faithfully discharge the duties of the office of _to the best of my ability; and that I do not advocate or belong CHAIRMAN: Committee of the Whole come to order, please. to any party, organization or association which advocates the overthrow by force or violence of the government of ANTHONY: Point of information. What’s before the the State of Hawaii or the government of the United States.” house at the moment? The legislature may prescribe further oaths or affirma tions. CHAIRMAN: Before the house is the amendment offered by Delegate Trask calling for the insertion in the first line BRYAN: Point of order. after “officers,” the word “and employees”; in the second CHAIRMAN: Delegate Bryan, state your point of order. line after “offices,” the words “and employment”; and in the third to the last line after “duties,” the words “my BRYAN: I don’t believe that the amendment to include the employment or.” word “employees” was ever voted on yesterday, was it? I believe the rest of the amendments were. ANTHONY: I understand the delegate may withdraw that. CHAIRMAN: The Chair’s understanding is that it was, A. TRASK: These amendments were offered because of the oath that has been offered by Delegate Ashford and that’s but I - - why these were made, but if the other portion is going tobe A. TRASK: I made the amendment and it was considered left out, I at this time withdraw the proposed amendment. and debated upon and then at long last the committee said that It would accept the inclusion of the words “employees” CHAIRMAN: You withdraw your proposed amendment? and “employment,” and “my employment or,” Now, is it that the committee today is not accepting that amendment? ASHFORD: I’ve been advised that everything will be much simplified if the amendment which I offered yesterday and CHAIRMAN: Delegate Kage, would you - - which was adopted was dropped out as being an appropriate KAGE: The committee did not accept “employees” and matter for the legislature to take care of. In view of the “employment.” fact that the ordinances will contain a provision that no officers shall be eligible - - that no one shall be eligible CHAIRMAN: The, committee did not? for office if he advocates or is a member of an organization, and so forth, advocating the overthrow of the government. KAGE: Did not. So I, therefore, move the reconsideration of the amendment CHAIRMAN: I see. I offered, which was adopted yesterday. TAVARES: Can’t we start all over again and consider NIELSEN: I’ll second that to clear the deck. now that the amendment is being proposed and vote on it CHAIRMAN: It has been moved and seconded that the that way? amendment which was adopted yesterday, offered by Dele A. TRASK: I do move that after the third word “officers” gate Asbford, which was adopted be reconsidered. That we have inserted the words “and employees”; and on the amendment was in the second to the last line after the word second line after the word “offices,” insert the words “and “ability,” a comma and add the words “and that I do not employment”; and on the sixth line after the word “duties advocate or belong to any party, organization or association of,” insert “my employment or.” which advocates the overthrow by force or violence of the government of the State of Hawaii or the government of the CHAIRMAN: Is there a second to the motion to amend? United States.” Do you wish to reconsider? All those in favor of reconsideration please say “aye.” Opposed. J. TRASK: I second the motion. Carried. TAVARES: In opposition to that motion, I should like to Now is there a motion - - add my voice. I feel that when a person takes an office, it TAVARES: Before the final motions are adopted, I was is proper to require in the Constitution that he take an oath going to offer an amendment but I changed my mind. of office. I feel that when you come down to employees, that should be left to the discretion of the legislature and I CHAIRMAN: Delegate Tavares, if you will hold a moment. don’t think it is necessary. We actually do have a loyalty The purpose of the reconsideration was to allow for the with oath now for all officers and employees by law. I do feel drawal of the amendment. that in a Constitution you shouldn’t go Into too much detail ASHFORD: May I now withdraw my motion to amend? and the officers are the ones that perform the important functions of government. The employees only take orders CHAIRMAN: Delegate Ashford has withdrawn the amend from somebody else. I think there is a distinction between ment which we have voted to reconsider. 720 MISCELLANEOUS MATTERS ANTHONY: Mr. Chairman. We will now turn our attention to Committee Proposal No. CHAIRMAN: Delegate Tavares had the floor. 17 relating to intergovernmental relations. When we deferred action on this proposal yesterday, one amendment had been TAVARES: I would yield to Delegate Anthony. offered and that was in the third line to substitute in lieu of CHAIRMAN: Delegate Anthony. the word “its” appearing before “political,” substitute in lieu of the word “its,” the word “their,” t-h—e-i-r. The ANTHONY: I move that Proposal No. 19 as brought out Chair’s understanding is that that amendment was accepted by the committee be adopted. by the committee. Is that correct, Delegate Yamauchi? TAVARES: I second that motion, but in seconding it I YAMAUCHI: That’s correct. would like to state that I was about to offer an amendment but changed my mind when it was shown to me that Section CHAIRMAN: That is correct, so that the committee pro No. 19 of the Hawaiian Organic Act applies to all offices posal is before the committee now. Is there any discussion? of the government of the Territory of Hawaii. However, I believe that the committee report, or the record at least LOPER: Do I understand that there is now a motion for the adoption of this section before us? here, should show that there have been exceptions to this rule in cases where we have had to appUint someone outside CHAIRMAN: There is not yet. of the territory, say like a commissioner of deeds, and so ANTHONY: I move that the word “all” be deleted. forth, where he isn’t a citizen of the United States, that this would not prevent the State from appointing in cases CHAIRMAN: May I have a motion to adopt the committee of necessity when we couldn’t get a citizen in a foreign coun proposal? try to serve as a commissioner of deeds or some officer DOWSON: I move for the adoption of [Committee] Pro like that for the State. We would not require him to swear - - posalNo. 17. support the Constitution of the United States or the Consti tution of the State of Hawaii because in so doing he would be SAKAKIHARA: Second it. asked to commit an act of disloyalty perhaps to his own CHAIRMAN: Moved and seconded. country. With that understanding, I will not offer the amend ANTHONY: I move that the word “all”, be deleted in ment which I was going to, making an exception in just such line three of the proposal. cases. CHAIRMAN: That is, the word “all” to be deleted in the CHAIRMAN: The Chair will see that is incorporated in third line before the word “matters.” the report of the Committee of the Whole. NIELSEN: Second the motion. DOWSON: The committee has concurred on that matter and we are heartily in accord that itbe included in the re CHAIRMAN: It has been moved and seconded to delete port of the Committee of the Whole about the non-citizens, the word “all.” the exception about taking the oath by non-citizens in special KANEMARU: The committee accepts the deletion. cases. CHAIRMAN: Delegate Kanemaru, the committee does CHAIRMAN: It shall be done that way. Question before accept the deletion of the word “all” in the third line. Any the committee - - further discussion? HEEN: In line six of the proposal as printed, I would LOPER: I rise for some information. I would like to suggest that we delete the word “the” following the word ask the committee chairman or a member of the committee “discharge” and substitute for the word “the,” the word “my.” why this section is necessary. It would seem to me that this CHAIRMAN: The word which? can be assumed to be true without putting it into the Consti tution at all. HEEN: “My,” M-Y. And delete the words “of the office of” at the end of that line and substitute for those words, IcANEMARU: As a member of the subcommittee on Mis the word “as,” A-S. So that, for instance, if you were to cellaneous Matters, if you will allow me I will attempt to appoint members to a board, then it would read: “My clarify this matter to the honorable delegates of this Con duties as a member of the Board of Hegents.” It would be vention. I’m not an authority on this, so I will quote a few easier to use for different situations. “As a member of paragraphs [from a letter from the Legislative Reference the commission.” I move the adoption of my amendment. Bureau.] CHAIRMAN: Is there a second? There is a second that The proposed section on federal-state relations is in the sixth line after the word “discharge,” the word “my” necessitated by the growth in recent years of programs be substituted for the word “the” and the word “as” be sub involving actions by both levels of government, typically stituted for the phrase “of the office of.” Any discussion on entailing the use of grants-in-aid by the federal govern the amendment? The question before the committee is on ment. Some of the constitutional obstacles which have the amendment. All those in favor please say “aye.” Opposed. been encountered by states, and which in large part would Carried. be obviated by adoption by Committee Proposal No. 17, Now the committee proposal as amended is before the are set forth in the Manual on Federal-State Relations of committee. the Missouri Constitutional Convention of 1943, at pages 35-37. DELEGATE: Question. The authors of the Model State Constitution also noted CHAIRMAN: Call for the question. the necessity for a provision similar to Committee Pro posal No. 17. The fourth edition of the Model State DOWSON: I move the adoption of the committee proposal Constitution explains the advocacy of such a provision as amended. as a means of overcoming the barriers to federal-state CHAIRMAN: The motion has been made. cooperation created by state courts: H. RICE: Second it. Recent developments have clearly indicated the desirability - - indeed, the necessity - - of such pro CHAIRMAN: All those in favor of adopting the committee visions, for the states now have important relations proposal as amended, please say “aye.” Opposed. Carried. with the federal government on the one hand, with 721 JUNE 27, 1950 • Afternoon Session their own local units on the other, and with each other. but you provide for the cooperation. What we are trying to The questions which arise in this field are so numerous do in this article is bring about cooperation between the state and are frequently so pressing that provision should be and Union, between state and state, between state and city, made in advance to insure the constitutionality of such between city and city. measures as may be thought necessary by responsible CHAIRMAN: Does that answer your question, Delegate legislative and executive officers in dealing with them. Kawahara? The provision of federal-state relations is a direct answer to those barriers to federal-state cooperation NIELSEN: Would you read the article now, the section erected by the courts of a number of states in the early as amended. thirties. It has the backing not only of leading author ities in constitutional law but of actual experience. CHAIRMAN: The article reads as amended: There would normally be no question regarding the The legislature may provide for cooperation with the right of the legislature to establish agencies for United States, or other states and territories, and their interstate cooperation, as provided in. . . the section political subdivisions, in matters affecting the public on interstate relations, but questions have arisen in heaith, safety and general wellare, and may appropriate a number of states as to the right of the legislature such funds as may be necessary to finance its fair share to appropriate for the support of agencies of an inter of the cost of such activities. state character. If the development of interstate co operation is to be promoted as it can and should be, CHAIRMAN: Call for the question. under present day conditions, this is one obstacle RICHARDS: I have a question to ask. I was not here which should not be permitted to arise. when the amendment was made changing the word “its” to The proposed section would also facilitate cooperation “their.” I think there is a distinct difference in meaning between Hawaii ahd mainland states. It would remove between those two points. If it’s the legislature providing any possible constitutional barriers to participation by cooperation between the political subdivisions of the State Hawaii in such interstate activities as the Council of of Hawaii, the term would be “its.” If it is referring to the State Governments or the National Conference on Com State to cooperate with political subdivisions of Other states missioners on Uniform State Laws; entering into com and territories, then “their” is the proper word, but I don’t pacts with other states; or, more generally, joining in think that the two are synonymous in this case. the growing movement towards cooperation and reciprocity CHAIRMAN: I believe the Chair can indicate the reason by the various states. ing there. It was brought out by Delegate Heen yesterday CHAIRMAN: Does that answer your question, Delegate that the reference in the pronoun is to the United States and, Loper? therefore, the word “their” is used - - and other states and territories, “their” is used in reference to United States, LOPER: Thank you very much. other states and territories. H. RICE: Why shouldn’t this proposal read, “The legis RICHARDS: Well then, the legislature by inference then lature shall” instead of “may”? may not provide for the cooperation between one of its CHAIRMAN: There is a question of the committee. Any political subdivisions and the political subdivision of another member of the committee wish to answer? state. ROBERTS: There might be some agencies with which we CHAIRMAN: Is there any - - don’t want to cooperate. This merely provides for those HEEN: When we had a ban on the exportation of orchids, when we do want to cooperate and want to expend funds, that there was a situation where they might have had some co we don’t run into any difficulties. But if this requires that operation between the County of Hawaii and the County of we “shall,” then we may be required to join all of the various San Francisco. So it would seem to me that the language operations of a character of this type and would be required to be used here should be broad enough to take care of a to cooperate with them, even thoogh we’re not in accord with situation of that kind. In order to do that, and in order to some of their policies. conform to the idea that Delegate Richards has in mind, that KAWAHARA: May I ask a question of a member of the first part should read: “The legislature may provide for committee here? I notice a similar provision in the Model cooperation on the part of this State and its political sub Constitution and in that constitution the words, “The legisla divisions with the United States, or other states and terri ture shall provide by law for the establishment of such tories, and their political subdivisions, in all matters affect agencies as may be necessary and desirable to promote ing the health” and so on. cooperation on the part of this state with other states of CHAIRMAN: Now you move an amendment then. the Union.” And I noticed in the committee proposal the words, “The legislature may provide for cooperation.” I REEN: That seems to be satisfactory. That will take wonder if it’s possible for the legislature to directly provide care of cooperation between counties. for cooperation without passing certain statutes or certain RICHARDS: I’ll second that motion. laws. CHAIRMAN: Delegate Heen, will you restate your amend CHAIRMAN: Is there a member of the committee that ment for the benefit of the committee as well as the delegates? would like to answer that question? HEEN: “The legislature may provide for cooperation,” KAWAHARA: Because this seems to be an outright grant after the word “cooperation,” insert the words “on the part of power that they may provide for cooperation, and that of this State and its political subdivisions.” seems to be a very difficult thing to do, as far as I can see here. CHAIRMAN: Is that amendment agreeable - - acceptable to the committee? CHAIRMAN: Is there an answer to the question of Dele gate Kawahara? YAMAUCHI: The committee accepts the amendment. KAGE: I think if he were to read the word “for,” I think CHAIRMAN: The committee accepts the amendment. that clarifies the situation. You de not provide cooperation, There is a call for the question? Committee ready for the 722 MISCELLANEOUS MATTERS question? All those in favor of the Committee Proposal CHAIRMAN: Any further discussion? No. 17 as amended please say “aye.” Opposed. Carried. SAKAKIHARA: I move for the previous question. YAMAUCHI: I move for the adoption of this proposal as amended. SILVA: Second the motion for the previous question. HEEN: I was wondering why they didn’t use the word CHAIRMAN: That was the motion that was just carried, “capital.” In other words, if that word is used, it might in view of the fact that the committee had accepted the amend read “Honolulu, on the island of Oahu, shall be the capital ment. I’ll ask the committee to turn their attention to Com of this State.” mittee Proposal No. 12 regarding the seat of government. The committee proposal reads, CHAIRMAN: Do you move that as an amendment to the proposal, Delegate Heen? The seat of government of this State shall be located HEEN: I do. at the City of Honolulu on the island of Oahu, unless other wise provided by law. HAYES: I’ll second it. Is there a motion to adopt? CHAIRMAN: It has been moved and seconded that the DOWSON: I move for the adoption of Committee Proposal proposal should read: “Honolulu, on the island of Oahu, No. 12 relating to the seat of government. shall be the capital of the State, unless otherwise provided by law.” KING: Second the motion. HEEN: Correct. CHAIRMAN: It’s been moved and seconded. KAGE: I think both the amendment and the proposal, the ASHFORD: I think that was moved yesterday and I moved intent are the same. I think it’s a matter for the Style Com an amendment. I wish now to withdraw the amendment. I mittee to take it up. think it was in an improper place. HEEN: To me, my amendment is more fashionable than CHAIRMAN: Delegate Asbford has withdrawn the amend the other. ment which she offered yesterday. CHAIRMAN: All those in favor of the amendment, please C. RICE: Why do we have to put in the words “unless say “aye.” Opposed. The amendment is lost. otherwise provided for by law”? SILVA: Previous question, I so move. CHAIRMAN: Would a member of the committee care to CHAIRMAN: The Chair will now call for the question. answer the question of the delegate? NIELSEN: I want to explain my vote. I think it should C. RICE: Let’s have it once and for all. be in Kona, so I’ll have to vote no. YAMAUCHI: I dIdn’t get the question. CHAIRMAN: All right. The question before the com mittee is whether or not Committee Proposal No. 12 as CHAIRMAN: The question is, why should the words “un brought in by the committee shall be adopted. All those in less otherwise provided by law” be included? favor please say “aye.” Opposed. Carried. YAMAUCHI: I think that was explained in the committee The Chair will ask the committee now to turn its attention report. In the event the legislature feels that the capital to Committee Proposal - - should be shifted to another area, then the provision should HAYES: Personal privilege. Sitting on this side, it be made for such change. sounds as if the same crowd says “aye” and the same crowd says “no.” BRYAN: I think there’s another good reason for that, too. The Legislative Committee is going to report out a CHAIRMAN: That sounds the same way up here, Delegate section which will include in the event of disaster and so Hayes. forth, the capital may be moved temporarily. Before the committee now is Committee Proposal No. 20 regarding the preamble to the Constitution. Prior to the YAMAUCHI: I would like to explain further that in the recess, the amendment by Delegate Sakakihara carried, so event, “in case of invasion, insurrection, conflagration, that the preamble would read: epidemic, or for other emergency resulting from an act of God, the legislature would be empowered to move the We, the people of Hawaii, grateful for Divine Guidance, seat of government to a temporary location.” And I be mindful of our Hawaiian heritage, reaffirm our belief in lieve that is taken care of by the Legislative Committee. a government of the people, do hereby ordain and es Also, “the phrase ‘provided by law,’ shall authorize the tablish this Constitution for the State of Hawaii. legislature to establish methods to employ in determining Subsequently, there was an amendment proposed and second the location of the seat of government.” ed, proposed by Delegate Roberts, to insert after the word CHAIRMAN: Does that answer your question, Delegate “people” in the fourth line, the word - - the clause “and Rice? with an understanding heart towards all the people of this earth.” That amendment is before the committee at the YAMAMOTO: I’d like to add a little bit on this. I prefer present time. Is there any discussion? to have the words left in because of the reason that, as you know, there is a chance that the capital city at the ANTHONY: During the noon recess there has been dis present time, we haven’t got enough room, and in the years tributed three or four versions of the attempt of Dr. Larsen to come, you might have to expand. That is the reason why to put into the Constitution the Law of Kamehameha. In I would say that these words must stay in. It wasn’t very order that we may consider those versions, I now move that well stated in this committee report that just because you we reconsider our prior actions on Dr. Larsen’s amendment. have the population on the island of Oahu, the capital city MIZUHA: Second. must be here, because in the State of New York, I would say that New York City has a population over eight million CHAIRMAN: There is a motion to reconsider our action people, while your capital city is in Albany where there is on the amendment. All those in favor say “aye.” Opposed. a population of 130, 000. The ayes have it. JUNE 27, 1950 • Afternoon Session 723 DELEGATES: Roll call. Ayes, 42. Noes, 10 (Akau, Dol, Fong; Kanemaru, Kauhane, Kawahara, Luiz, C. Rice, Serizawa, Silva). SILVA: There is a request for roll call. Not voting, 11 (Arashiro, Fukushima, Lee, Mau, Okino, CHAIRMAN: The Chair has ruled, Delegate - - Phillips, Porteus, Sakai, J. Trask, White, Wist). SILVA: A roll call is always in order, if you know your CHAIRMAN: The ayes have it. Delegate King. rules. The Chair is out of order. KING: I now move for a five minute recess. CHAIRMAN: How many in favor of a roll call. Roll call A. TRASK: Second. has been ordered. The question before - - CHAIRMAN: Recess has been called. All those in favor. LOPER: I rise to a point of personal privilege. I believe Opposed. the purpose of the roll call is to publicize the way people vote. I suggest that they vote so we can hear. I think I (RECESS) missed at least 12 last time. KING: As a matter of information, I’d like the Chair to CHAIRMAN: Wiil the Committee of the Whole come to state that the roll call is on the motion to reconsider, is it order. not? It is now 3:45. If we can confine our debate to the essen CHAIRMAN: That is correct. tial points, I think we can get through with Committee Pro KING: I’d like to speak to that point of reconsideration. posal No. 20 and Committee Proposal No. 14 which relates It is made in good faith by one who voted against the original to the seal and that will conclude all the miscellaneous proposition offered by Dr. Larsen - - Delegate Larsen and matters and possibly we can adjourn by 5:00. amended by several versions of the same proposal. It meets We now have before us Committee Proposal No. 20 and the feeling on the part of a good many of the delegates that the the motion to reconsider the action of this morning was preamble to the Constitution of the State of Hawaii should carried, so that we have before us the amendment to Com pay some attention to our unique and exotic background in mittee Proposal No. 20 as originally offered by Delegate history and make some reference to the traditions that make Larsen. Hawaii a little different from any one of the other 48 states. KAGE: As I see it, we have five amendments to the committee proposal and the committee proposal makes it SILVA: I rise to a point of order. I think the speaker is the sixth. In other words we have six different versions out of order. of the preamble. I am not expressing the views of the KING: Well, I’m speaking on the point of information committee; I’m lust expressing my own personal views. that the reconsideration will nullify and abolish that effort If we were to, as the Convention, work on these six versions to give those an opportunity to rephrase their amendment to of the preamble, I think we’ll stay until doomsday to decide meet the feeling of the majority. The amendment as origi on one and we’ll never get anything done. I am not in favor nally proposed was not acceptable, but the various versions of that, and so I would like to move that these six preambles that have been worked out since might be acceptable. So a be referred to the Style Committee and be reported out. vote against reconsideration would estop any effort to meet the majority opinion of the delegates, and I feel that the CHAIRMAN: Your motion is to refer. Delegate Kage, vote against reconsideration should not carry. actually we have only one amendment before the Committee of the Whole. There are several typewritten sheets on the SILVA: I would like to know - - desk of the delegates, but the amendments have not been ANTHONY: Can’t the Chair ask those who requested the placed formally before the committee. roll call to withdraw it. It’s only fair; work has been done KAGE: I’m sorry. on it; let’s take a look at it. It’s not going to hurt anything. LARSEN: Could I just tell the chairman that the number SILVA: It always seems that fairness lies in the minori who put out these various propositions, I think they boil down ty. There was a vote taken; the majority ruled against to one that Senator Heen has and that I think that all those it. Then you ask for reconsideration and you say, well the who want Kamehameha’s law expressed have that. If that’s minority will rule this Convention. voted out after Heen gives it, then we go to the committee ANTHONY: I voted against it. proposal and then we’re through. CHAIRMAN: Delegate Silva, I believe you stand to be CHAIRMAN: If I may bring out the matter before the corrected. Delegate Anthony voted with the majority and committee. The amendment before the committee is the he has asked for a reconsideration. Now the Chair rules amendment as originally offered by Delegate Larsen. Now that the motion for reconsideration is in order. There has if there is to be an additional amendment, it is in order at been requested a roll call and a roll call is now in order the present time; otherwise, action on Delegate Larsen’s unless the motion is withdrawn. I presume the motion will amendment is in order. Is there any - - not be withdrawn. Further debate is out of order. KING: I think the motion to reconsider carried with it APOLIONA: I’m not going to debate on that question. I the abolition of all preceding amendments. I’m not sure that voted against the adoption of Dr. Larsen’s motion. As a that is the parliamentary situation, but I’d like to suggest matter of courtesy, I will vote yes to reconsider that ques now that we start from scratch with the committee proposal tion. pending before the committee and the amendment about to be offered by Delegate Larsen or Delegate Heen to the com CHAIRMAN: Thank you. Will the Clerk please call the mittee proposal will be considered as the first amendment. roll. The question is on whether or not to reconsider the If that is the proper procedure, I would suggest that the action on Committee Proposal No. 20. committee move a pro forma adoption of the committee KING: Mr. Chairman, may I ask - - make a motion to proposal to bring it before the committee. have a five minute recess? CHAIRMAN: The Chair Is in doubt as to whether that is CHAIRMAN: The roll call hasn’t been announced, the the correct procedure, but possibly if Delegate Larsen at results. this time would withdraw his amendment - - 724 MISCELLANEOUS MATTERS LARSEN: I’ll be very happy to. the amendment is before the committee. Is there any dis CHAIRMAN: That places before the committee, Commit cussion? tee Proposal No. 20 without amendment, and that is the KAWAHARA: Is there any reason why the words, “a gov matter before the committee at the present time. What is ernment of the people, by the people and for the people,” is your pleasure, gentlemen? there any reason why those words shouldn’t be in quotes? YAMAUCHI: I move that Committee Proposal No. 20 be After all, all morning I’ve been hearing that these words adopted. have been taken from the speech, Lincoln’s Gettysburg Address. If that is true, I believe some due credit should APOLIONA: I second that motion. be given to Abraham Lincoln. For that reason, I’d like to CHAIRMAN: It has been moved and seconded that Com know whether Dr. Larsen intends to have those words in mittee Proposal No. 20 be adopted. Any discussion? quotation. HEEN: Delegate Larsen has asked me to submit this LARSEN: Well, they were so well known and everybody amendment on his behalf. knows who pronounced them and we weren’t quoting the whole speech, but just a sentence that we didn’t think quotes were LARSEN: Correction, please. necessary, but I’d like to ask Mr. Wist if he feels quotes HEEN: would be necessary when we say, “of the people, by the We, the people of Hawaii, grateful for Divine Guidance, people, and for the people”? and mindful of the ancient words of Kamehameha, that the KAWAHARA: As I see it, then, in this preamble here law of the land shall apply equally to all the people, so we are ordaining and establishing a constitution for one or that the aged man and the women and children, may for two or three or four reasons. As I can see it, one of the ever walk the highways or sleep by the wayside without first reasons is we are grateful for Divine Guidance; next, fear, and, with an understanding heart towards all the the whole phrase there has reference to the words of Kame people of this earth, do reaffirm our belief in a govern hameha; and the third section has some reference to the ment of the people, by the people and for the people, and words used by Abraham Lincoln. Because of these reasons, do hereby ordain and establish this Constitution for the we are ordaining and establishing our Constitution. Our State of Hawaii. Federal Constitution, in the preamble of our Federal Consti CHAIRMAN: Delegate Heen, you Qffer that as an amend tution, we go a little beyond that, and the preamble of our ment? Is there a second? Federal Constitution was written quite long ago. I repeat that in our Federal Constitution, in our preamble, there is LARSEN: All right. I think Senator Heen is a little bit some reference to justice, domestic tranquility, common modest, so I’ll offer that as an amendment. defense, general welfare, liberty, posterity, and so forth LOPER: Second the motion. and so on. I don’t know. I think this preamble here some what limits the activities of government. For that reason, CHAIRMAN: Has this amendment been printed? I believe that we should not adopt this type of a preamble. ANTHONY: It will be printed in just a minute. CHAIRMAN: Any further discussion on the amendment? CHAIRMAN: As I understand the amendment, taking it from the amendment which bears the name of Delegate SILVA: I would like to speak against the amendment. Heen, in the third line after the word “shall” delete the The purpose, in my opinion, is you are using in this preamble, words “be for the big, the small and,” insert in lieu thereof “mindful of the ancient words of Kamehameha,” then you the words “apply equally to all people so that”; and in the explain Kamehameha’s law. That should not be the preamble, filth line delete the word “molestation” and insert the word it should be in the report to this preamble, that whatever “fear”; so that starting on the third line with the word was gotten into the preamble was gotten because of the “shall,” the printed amendment that we have before us will words of Kamehameha, in the report and not the preamble. read, “shall apply equally to all people.” “Shall apply equal I just want to point that out and I think that we’re going ly to all the people, so that the aged man, the women and the off hail-cocked here by getting the words of Kamehameha children who may ever walk the highways or sleep by the and using Kamehameha as an example because surely Kamehameha should not be set up as an example for wayside without fear.” Is that correct, Delegate Heen? democracy of the kind we have here. I do say that he may HE EN: Delete the word “who.” have, in his later years, come up with some law, some CHAIRMAN: Delete the word “who” in the fourth line, rule, but that is not the true life of Kamehameha. Kame hameha never lived in a democracy and to use - - it’s all so that starting with the word “shall” in the third line, the right to use his one sentence in his old age that he finally amendment would read - - that portion of the amendment would read, “shall apply equally to all the people, so that made a so-called law and in the report to show how this is put in the preamble. But surely not to cite Kamehameha the aged man, the women, and the children may walk the as an example in our preamble. highways or sleep by the wayside without fear.” Is that correct? APOLIONA: On May 19, 1950 at one of our Miscellaneous WOOLAWAY: How about the young adults? Committee meetings, Dr. Larsen appeared in person and spoke on the seal and on the preamble and this is his think CHAIRMAN: Is that correct? ing. As far as the seal, he firmly believed that it was the HEEN: That’s correct. one place in our Constitution, in the seal, where we could give recognition to old Hawaii and to Kamehameha. But on CHAIRMAN: Now that amendment is before the commit the preamble, he was of a different opinion. In the pre tee. Is there any discussion? amble, he was of the opinion that the preamble to the State LARSEN: It’s just being passed out now, if there is any of Hawaii would be totally different than that of any other question. state of the Union. I disagree with him. Our preamble here should be the same as the other states of the Union, same IHARA: Where does the quote start? in thought, same in thinking. If you want to change the CHAIRMAN: Delegate Ihara, that is now printed and is language around to make it a little poetic, fine, but the being passed out, so we’ll have a moment’s pause. Now meaning should be the same. And he continued and added JUNE 27, 1950 • Afternoon Session 725 that the preamble should contain the meaning of the Consti that we vote on this and we either accept it or else accept tution for-the benefit of the people. Does this amendment the one that Sakakihara has just suggested, but as I remem contain the meaning of the Constitution for the people? I bered, it was voted on this morning. say no, and, therefore, I will again vote against the amend ment. CHAIRMAN: The Chair has ruled, and unless the dele gate wants to call for the division of the house, the Chair AKAU: I think we all want a very good preamble. I think has ruled that the amendment of Delegate Sakakthara is out we also realize that the preamble does not necessarily have of order. to stand up in a court of law. We’re anxious to finish it up and we’re anxious to do something. I raise this point for ANTHONY: I move an amendment. That the “words of your consideration. We talk about King Kamehameha which Kamehameha” be stricken. the implication means or makes, the royalty, up here, shall CHAIRMAN: Is there a second? we say, even autocracy. In the next breath, we talk about the people, “of the people, for the people, and by the people.” BRYAN: I may second it. I have a suggestion that the The thing is incongruous. I would like to suggest, if I may, movant might accept. If you would put “mindful that the that we defer action on this particular thing, sleep on it, ancient law of the land applied equally.” have a couple of people get together, perhaps early tomor ANTHONY: I accept that. The purpose of the amendment, row morning, and draw something up that has the incorpora I think there are a number of delegates here who dOn’t like tion of justice and whatever have you, following somewhat the glorification of one single human being. I know of no our Federal Constitution. I think we want to do something, but we don’t know how to do it. I therefore move to defer other constitution, American constitution, that does that. I think that’s why some of us who are Jeffersonian Democrats action. don’t like the idea of one single person being singled out. LARSEN: Could I have just a word before that? CHAIRMAN: Delegate Anthony, would you restate your CHAIRMAN: Is there a second to that motion? amendment, please. SAKAKIHARA: I would like to - - AKAU: I second Mr. Anthony’s motion, if he wants to CHAIRMAN: Are you seconding the motion? have stricken, “of Kamehameha.” SAKAKIHARA: No, I want to amend this amendment. CHAIRMAN: I’m asking for a restatement of the amend CHAIRMAN: I hear no seconds. All right. ment, Delegate Akau, and then I’ll recognize a second. SAKAKIHARA: I offer the following amendment to Sena ANTHONY: The amendment was not amply stated. This tor Heen’s amendment which is before the committee. is what I would move to strike, “words of Kamehameha that.” We, the people of the State of Hawaii, grateful for The sentence would then read, “mindful of the ancient law Divine Guidance, and mindful of our Hawaiian heritage, of the land.” reaffirm our belief in a government of the people, by the people and for the people, and, with an understanding KING: I’d like to speak in favor of the amendment. I heart toward all the peoples of the earth, do hereby or- think we should incorporate in it the suggestion made by thin and establish this Constitution for the State of Hawaii. Delegate Bryan, so that it would be “mindful that the ancient law”; striking out the words, “words of Kamehameha that CHAIRMAN: Delegate Sakakthara, is there a second to the,” including “the” that Delegate Anthony didn’t mention; that? “shall apply” and so forth. Now, the only purpose in this is that Kamehameha when DOWSON: I second the motion. he conquered the whole of Hawaii was the first one to enun CHAIRMAN: The Chair wishes to state that in his opinion ciate a general law for the protection of the old man, woman, the motion to amend is out of order in that it incorporates child, and so forth. It is the first record in Hawaiian his almost in its entirety Committee Proposal No. 20. tory of a law that would control the chiefs and the common people. The Hawaiian phrase, if one could read it in Ha LARSEN: Mr. Chairman. waiian - - I have here an extract from “Ka Moolele A SAKAKIHARA: I beg to differ from the ruling of the Kamehameha I,” by S. M. Kamakau, written in the 1820’s Chair. It is an amendment, nevertheless. Any more than or 1830’s, that gives a little of the background of that. In the amendment here is a repetition - - the Hawaiian he forbade any of the old men, women, children from being robbed or molested or beaten up or their goods HE EN: The amendment here in substance is similar to taken away. There is quite a lot of language there. “Pepehi the amendment originally offered by Delegate Larsen. kanaka, athue, pakaha, pauwale, powa, akole, aiahulu i LARSEN: Could I have just one word. I feel we can take ke akau” and so forth. So that they couldn’t be molested in a vote very shortly. I don’t think we have to go around the their goods, in the faith and in their free movement over bush in this way. I would just like to answer, however. the lands of Hawaii. There apparently is some misconception. The idea that The only reason we want to preserve that sentiment is in this day and age when the great fight for dictatorial because that is the beginning of established law in these is government or freedom is at stake, the idea of including lands. However, I can understand that the reference to an Kamehameha was, he is the only dictator in history who at individual might not be applicable if we are going to become the height of his power suddenly realized that power or a sovereign state of the Union and we’re not going to live might did not make right, but that justice did. So his law, according to the ways of the old days at all. We are just Mamalahoa Kaniwai, is considered by authorities as one paying our respect to it. of the greatest spoken documents on government in history. The point was also made by Delegate Tavares that a pre It recognizes justice instead of force. This goes right amble is not substantial law. It isn’t a part of the consti along the line with Abraham Lincoln. And our whole concept tution. It is an expression of sentiment. So I feel that with was, should we recognize one of the greatest spoken docu the amendment suggested by Delegate Anthony, this pre ments of our government that was spoken in Hawaii or amble sho~lld be satisfactory and I am in favor of the amend shouldn’t we. It’s that simple. And I would like to suggest ment. 726 MISCELLANEOUS MATTERS RICHARDS: I think in order to correct that amendment CHAIRMAN: I don’t get the analogy. and make proper English we should on the second line, de lete the word “of” and put in the word “that.” SMITH: Anyway, without worrying about the persons who voted in the minority because of common decency for CHAIRMAN: I believe that has been read into the amend reconsideration, we’re still of the view - - I’m speaking in ment. opposition to the amendment ANTHONY: I’d like to state the motion again. Delete CHAIRMAN: Proceed. the following, beginning with the second line: “words of Kamehameha that the”; and insert alter the word “land” SMITH: I believe thoroughly that all these arguments in the third line “which applied”; and then in the filth line, that are coming up -- I haven’t got the number of hours first word, strike out the word “may” and insert the word that the committee spent and the reasons why we considered “might”; and then if I might read the sentence: “We, the all these different preambles. We considered this morning people of Hawaii, grateful for Divine Guidance, and mind on Dr. Larsen’s preamble, practically the same one that ful of the ancient law of the land, which applied equally to was considered in the committee, and we felt that to be all of the people so ‘that the aged man, the women and concise and brief and to state our pride in our Hawaiian children might ever walk the highways or sleep by the way heritage, that the statement as submitted by the committee side, “ and so on. was one that would carry all the requirements that were really needed. LARSEN: In line with the comments of Delegate - - I might state that if you look at the different constitutions CHAIRMAN: Is that the amendment that Delegate Akau and the preambles, a lot of them are just stock. “We, the has seconded? people of the state of,” whatever state it was, “grateful for Divine Guidance, do hereby ordain and establish this consti AKAU: Not now, you see, because if we’re going to use tution for that state, to wit” and they then state the bounda quotation marks, we can’t change the wording. In other ries of that state. words, if we’re going to quote, we’ve got to quote; otherwise, With the voting this morning of 28 to 26, that should we take away the quotation marks. Now, if Mr. Anthony show that we had sentimentalities and considerations of wants to take the quotation marks away, that’s another kahunas and so forth. We were considering the people of story. Hawaii as of today and in the future, and that the people out of Hawaii will be reading our preamble. The children will ANTHONY: I didn’t mean to delete the quotation marks. be able to memorize it a little easier. With all those AKAU: Well, then, we may not change it. If we’re going considerations we felt that the [Committeej Proposal to quote, we have to quote verbatim or not at all. Other No. 20 was sufficient. wise, we take away the quotation marks. I don’t second it. TAVARES: I’m not going to offer this as an amendment, CHAIRMAN: Is there a second? but as a suggestion maybe we could get together on. In stead of deleting the words suggested by Delegate Anthony, BRYAN: I second it. if we deleted the words in the second line “ancient words CHAIRMAN: The motion has been seconded. of Kamehameha” and inserted “first Hawaiian Bill of Rights,” so it would read, “and mindful of the first Hawaiian Bill KAUHANE: Point of information. of Rights that the law of the land shall apply equally,” CHAIRMAN: Delegate Kauhane, state your point of in wouldn’t that satisfy the situation? formation. CHAIRMAN: I understand that to be a suggestion and not a motion? KAUHANE: I’d like to have the matter clarified so that I will be able to vote intelligently. This morning by a vote A. TRASK: I speak against the amendment offered by of 28 to 26, we adopted the amendment offered by Delegate Delegate Anthony and for several reasons. First, I cannot Sakakihara. And by a vote of 41 to 10 we adopted the motion subscribe to the thought announced by Delegate Apoliona to reconsider action on the amendment offered by Delegate and apparently his committee that we are or should be just Larsen. Am Ito understand that - - like the other states in our preamble. That is certainly not a fact. That is not a fact consistent with the program CHAIRMAN: May I correct you, Delegate Kauhane. The that we intend to launch. motion to reconsider was to reconsider our previous action on the amendment - - on the proposal. SMITH: A point of order. KAUHANE: Well, then I misunderstood the motion put by CHAIRMAN: State your point. the Chair, because I certainly wrote down the motion put SMITH: I believe that if you examine the records, the by the Chair was to reconsider action on the amendment of statement just made by the last speaker does not conform fered by Delegate Larsen - - with what Delegate Apoliona said. CHAIRMAN: No - - CHAIRMAN: Proceed, Delegate Trask. KAUHANE: - - which I feel, that the motion made for A. TRASK: The statement made, as I remember, was the adoption of the amendment offered by Delegate Sakakthara that we should not refer to any of our ancient edicts or is proper and is still active before this committee. anything like that, and he said we should be like the other CHAIRMAN: The motion to reconsider was on the amended states or something along that line. To me, there is only proposal which was nothing more than the action on the amend one Hawaii, and - - I have a right to speak against the amend ment offered by Delegate Sakakihara. Upon that motion being ment; I’m advised, of course, by President King. carried, Delegate Larsen withdrew his amendment, so that The delegate lately from Pennsylvania said that Kame the committee proposal was once again before the committee. hameha should not be mentioned and I submit respectfully Number 20. to him that when we quote a law or we quote a decision we refer respectfully to that particular court from which those KAUHANE: It doesn’t sound right, Mr. Chairman. I words came, those words of wisdom. think it’s putting the - - just like having the tail wagging the There are very few people in the history of the world dog instead of the dog wagging the tail. who have given edicts which the world has admired and 727 JUNE 27, 1950 • Afternoon Session kept. There are such people as Asoka; there are such there were tabus which prohibited certain acts such as kill people as Justinian; there are such people as Napoleon; there ing of man, eating together of husband and wife, the eating are such people as Edward of England and so forth. We’re of certain fish, the eating of certain fruits by women, these referring not so much subjectively to them as tyrants, but were the king’s tabu. Then, there were certain tabus which we refer to the words and thoughts that they express which went to the land. For instance, the right to fish was recog humanity has accepted and honored. nized as a public right by the natives, the fish being the Hawaii is launching itself, asking and trying to support property of all. Still, the occupier of land upon the sea itself and has gone to the legislature for money in respect shore had the privilege of naming certain fish in the adjacent to its tourist attraction. What is the tourist attraction? waters as his own property. Many persons could fish upon What is the question of the tourist attraction to people who the fishing grounds, but were forbidden to catch the fish come to Hawaii? Is it because Hawaii is like every other named as the tabu fish. This system of tabu runs throughout state? It is certainly not. It is our uniqueness. There is history and is sacred to them. Even today, if you were to go only one Hawaii. We are the most isolated community in down to the seashore while the Hawaiians were bringing in all the world. We are separated uniquely, thousands of their nets, you would be entitled to a share of the catch, miles from any civilized community, and in Hawaii we the natives are still maintaining the old custom that the fish, have built a civilization that is unique. except the tabu fish, belong to all. The word “aloha” can be claimed by no other people but “Though Kamehameha the First may have appeared to be that of Hawaii. Consistent with the “aloha” is the expression a heathen to the outside world, yet during a long and vigorous from Kamehameha and no other ruler in all the world, and reign there were manifest in everything that he did, a superi shouldn’t he be given credit for this? Without naming Kame or intelligence and deep reverence for a power greater than hameha, wouldn’t you confuse the issue? Who is being he. With such an influence governing his life, he ruled his quoted, is the first thing the scholar would want to find out. people, even those whom he had conquered, wkh justice. Shouldn’t he be told? Shouldn’t he be told with dispatch that He it was who established the independence of the individual it is Kamehameha? by that oral decree which reads - - A lawyer in court makes a statement. Immediately the judge says, “From what court are you quoting, from the ANTHONY: Point of order. jurisdiction of Wailuku or from the jurisdiction of Honolulu?” CHAIRMAN: Point of order decreed. Immediately. And it does carry weight. Whether or not it is the judge of Honolulu or the judge from Hawaii or Maui ANTHONY: I think I was called to order for referring to or Kauai, the judge and the court carries weight, whether the distinguished warrior as a heathen this morning. k’s the Supreme Court or the Commonwealth of Massachu CHAIRMAN: Continue, Delegate Kauhane. setts. So I cannot see, consistent wkh ordinary respectful KAUHANE: “It was he who established the independence characterization and giving credit where credit is due, if of the individual by that oral decree which reads, ‘The old you take away the word - - the tribute to Kamehameha, you and feeble men and women, and the small child may walk might just as well adopt the innocuous proposal of the com and rest unharmed on the public highways of my kingdom mittee and make it like the sovereign state, perhaps, of and no one shall molest them. Death shall be the penaky.’ Kansas. He followed the examples of his predecessors and he divided And in conclusion, let me invite the eyes of the delegates the lands among the chiefs and followers, retaining the to all those symbols on the wall. Just walk along there and portion of which were to be cukivated by his own servants. look at those symbols and what they represent. Look at the He recognized the benefks of trading.” symbols from Oklahoma. It’s a pipe of peace; it’s the In CHAIRMAN: One more minute. dians’ tradition that is symbolized, of which the Oklahomans are proud. Look at Virginia, “Sic semper tyrannis.” “We KAUHANE: One more minute, we’ll be finished. Again shall always be against tyranny.” Look at Connecticut, we find that the words of Kamehameha, sacred to the Ha which Brother Anthony can quote. It’s “Qui transtulit sus waiian people, people of his race, should be made a part tinet. of the preamble of this Constitution. If we today have ad CHAIRMAN: May I remind the delegate that the five hered to the old rule that was laid down by him, the tabu minutes is up. Would you conclude your report. of fishing, that certain fishes around the seashore when caught should be left to the rights of the property owner, A. TRASK: In conclusion, it seems very clear that - - then if we respect that right of tabu, then we should certain KAUHANE: Mr. Chairman. ly respect all of the rights and the laws of Kamehameha and his words should be made a part of the preamble. I, there A. TRASK: I’m not concluded, if you please. fore, am in favor of the resolution that has been submitted CHAIRMAN: Would you conclude your remarks, Delegate by Dr. Larsen without any further adoption of any amend Trask. ment. A. TRASK: Yes, I shall. That’s all. CHAIRMAN: The Chair would like to call for the ques CHAIRMAN: Thank you. tion of the amendment as offered by Delegate Anthony, spe KAUHANE: This morning I voted for the adoption of the cifically whether or not to delete the words in the second amendment offered by Delegate Sakakihara. At this time line, quote, “words of Kamehameha that the”; and on the I’d like to support the amendment offered by Delegate Lar third line the deletion of the word “shall” and substituted sen, without any consideration of any amendment that has in lieu thereof the words “which”; and change the word been made to it. In support of the amendment made by “apply” to “applied,” so that the amendment would read, Delegate Larsen, I’d like to read excerpts made by Kalani starting on the second line, “mindful of the ancient law of anaole who was then Delegate to Congress and appearing the land, which applied equally, etc.” All those in favor - - before a congressional body. KAUHANE: I move that we table the amendment. “The religion of my people was so highly developed. The laws were edicts of the king, commonly called tabus and CHAIRMAN: Is there a second? the breaking of them was punishable. The tabu was in fact the ancient law of the Hawaiians; there were religious tabus, DELEGATE: I second k. 728 MISCELLANEOUS MATTERS CHAIRMAN: I understood that we had agreed not to ROBERTS: I’d like to amend the proposal in the second table. I believe that the Chair will declare that motion out line instead of “with pride in” the words, “and mindful of of order. All those in favor - - our Hawaiian heritage,” and in line four, after the words MAU: Just one question. Did the delegate who proposed “people” comma and, “with an understanding heart toward the amendment believe that his words meant to carry out all the peoples of this earth, do hereby ordain.” the intent of the words that are quoted? Because it does CHAIRMAN: Is there a second? say “mindful of the ancient law of the land, which applied APOLIONA: The committee accepts the amendment. equally to all of the people.” That ancient law is the law as stated by King Kamehameha the First? Is that his intent? CHAIRMAN: The committee accepts the amendment. ANTHONY: That is correct; I would leave in the quotes. SAKAKIHARA: Will Delegate Roberts accept an amend ment? On the third line, “of the people, by the people, LARSEN: Could I ask Delegate Anthony, in place of and for the people, and with an understanding heart toward “mindful of the ancient law of the land,” would he be willing all the peoples of the earth.” to substitute “mindful of the first Hawaiian Bill of Rights”? ROBERTS: Yes, I accepted that before as a matter of ANTHONY: No, I don’t accept that. That wasn’t the style, but we’ll accept it now. first Hawaiian Bill of Rights. APOLIONA: The committee also accepts it. CHAIRMAN: The Chair will call for the question. All those in favor of the amendment as proposed by Delegate HAYES: May I have the whole amendment, so I will Anthony, say “aye.” Opposed. The noes have it. know what I am voting for? The amendment as submitted by Delegate Larsen now CHAIRMAN: Will the Clerk please read the amendment? stands before the committee. Are you ready for the question? All those in favor of the amendment as offered LYMAN: May I add another amendment? by Delegate Larsen without amendment, please say “aye.” Opposed. The Chair calls for a show of hands. CHAIRMAN: There has been a request for the reading of the amendments so far. I believe the Chair can read it. DELEGATES: Roll call. We, the people of the State of Hawaii, grateful for CHAIRMAN: There is a demand for roll call. All those Divine Guidance, and mindful of our Hawaiian heritage, in favor. Roll call is in order. The ayes vote in favor of reaffirm our belief in a government of the people, for the amendment, the noes defeat it. the people, and by the people, and with an understanding heart toward all the peoples of this earth, do hereby ROBERTS: Will the Chair please read the amendment, ordain and establish this Constitution for the State of what we’re voting on. Hawaii. CHAIRMAN: The amendment reads as follows. SAKAKIHARA: Mr. Chairman, a correction. My amend J. TRASK: I find that the so-called Dr. Larsen’s amend ment was “of the people, by the people and for the people.” ment is under the caption of Judge Heen’s name. CHAIRMAN: “Of the people, by the people and for the CHAIRMAN: That is correct, but Dr. Larsen made the people.” Can someone inform the Chair is that the correct motion and that is the reason the Chair has given him the quotation from Mr. Lincoln? credit. The amendment reads as follows: ANTHONY: That is the correct quotation. We, the people of Hawaii, grateful for Divine Guidance, CHAIRMAN: Thank you. “Of the people, by the people and mindful of the ancient words of Kamehameha, that the and for the people.” law of the land which shall apply equally to all the people so that “the aged man and the women and children may BRYAN: I wanted to ask the movant a question. I’d like ever walk the highways or sleep by the wayside without to know the reason for changing the words, “pride in our fear,” and with an understanding heart toward all the Hawaiian heritage.” Is it that we should indicate that we peoples of this earth, do reaffirm our belief in a govern do not have pride in our Hawaiian heritage, or what is the ment of the people, by the people, and for the people, and reason for changing that? do hereby ordain and establish this Constitution of the ROBERTS: I merely inserted the language which the State of Hawaii. Committee of the Whole had previously adopted on the The Clerk will please call the roll. floor. WOOLAWAY: I would like to state my reasons for my ANTHONY: The reason for that is, it seemed a little voting no. It doesn’t include young men, that’s why. presumptuous on the part of some of us to have the word CHAIRMAN: The Clerk will please call the roll. “pride.” It seems more fitting and dignified and with more humility if we had the word “mindful.” Ayes, 25. Noes, 30 (Akau, Anthony, Apoliona, Arashiro, Doi, Dowson, Fong, Fukushima, Ihara, Kage, Kam, Kane TAVARES: I agree with Delegate Anthony. When I was maru, Kawahara, Kawakami, Kido, Lai, Luiz, Mau, Niel a boy, I memorized a verse which said, “Pride goeth before sen, Noda, Okino, C. Rice, H. Rice, Sakakthara, Shima destruction and a haughty spirit before a fall.” I think it mura, Silva, Smith, Woolaway, Yamamoto, Yamauchi). is acting a little bit hookano for us to say we take pride. Not voting, 8 (Kometani, Lee, Phillips, Porteus, Sakai, It’s all right when we’re here to do it, but to put it in a Serizawa, White, Wist). constitution, I really believe it presumptuous. CHAIRMAN: The noes have it. The amendment is CHAIRMAN: Are we ready for the question? defeated. HAYES: Point of information. I feel that - - well, I’ve LARSEN: I move that we now pass the recommendation been trying to catch your eye so I can speak before the by the committee. amendment was adopted, but I wasn’t recognized by the Chair, because I feel that we owe some respect to King CHAIRMAN: That one motion is already before the Kamehameha and that was defeated before I was recognized. committee. Therefore, I feel that it is a great mistake for us to ignore 729 JUNE 27, 1950 • Afternoon Session Kamehameha when we in the legislature appropriate money and at this time I would like to have the honorable doctor and make Kamehameha Day a legal holiday and do decorate stand up and fight for his seal. the statue of Kamehameha, and everything about Hawaii has LARSEN: Thank you, Mr. Apoliona. Mr. Chairman, been surrounded about Kamehameha. Therefore, I feel that may I have the floor? I didn’t have an opportunity to speak at the right time for me to further my remarks on the preservation of that great man. CHAIRMAN: Delegate Larsen, proceed. CHAIRMAN: The Chair apologizes to the good delegate LARSEN: I feel you don’t have to fight for this. It’s so from the fourth district, and is very much in sympathy with evident that of course you will be all for it. There are two her feelings, but I didn’t see you, and in view of the fact things here, it seems to me, first—and it seems to me that that so many others were clamoring for attention, I think if we could do this perhaps we could speed it up. One, the It explains itself. first proposition I think is, shall we accept a certain change. Are you ready for the question? All those in favor of Now, may I again call to your attention, it isn’t a change in the Committee Proposal No. 20 as amended, please say the coat of arms of Hawaii, it’s merely a change in the “aye.” Opposed, “no.” Carried. drawing of the old coat of arms to bring it up to date in to Please turn your attention to Committee Proposal No. 14. day’s style of drawing and prepared by an artist, which the first one was not. I compared it with all the seals of all ROBERTS: I don’t think we have adopted the proposal the other states and there is no question at all. I’m not as amended. May I therefore move that the proposal as claiming this as anything original. I am merely having one amended be adopted. of our very best artists draw the seal in today’s method. SMITH: I second the motion. That’s what is on the wall over there. Now the suggestion made by Delegate Hayes was that when we use the coat of CHAIRMAN: That was the question that the Chair put to arms—not the seal— when we use the coat of arms we use the committee because of the fact that the amendments had the old cape which is behind the coat of arms. When the been accepted by the committee, so the amendment is adopted coat of arms are used, you don’t use this iei around it. as amended. Also, a small crown was suggested on top of the shield. My KING: If I am correct, the committee accepted the amend suggestion is, first, if we could have the motion, do we ments, which made them part of the original proposal. want to change to leave out the unnecessary details which is not good taste today any more than the bathing suits of 1896 TAVARES: Point of order. aren’t good taste today on the beach. That’s purely a ques tion of style. So my first suggestion is let’s take a vote on, CHAIRMAN: Delegate Tavares, state your point. do we want to change it. TAVARES: The written proposal presented at this Con The second question is, and that should have another vention is the proposal and until you adopt the amendment, motion, do we want to put it as part of our Constitution? I the committee can’t change it by simply accepting it under will call your attention to the fact that although some 37 the rules of this Convention. states have it in their constitutions, in Hawaii the seal of ‘96, the seal of 1900 were all adopted by the legislature KING: If that is correct, I move now for acceptance in joint resolution. I have a copy of that joint resolution of Proposal No. 20 as amended. here and I have it translated into heraldic symbols in this here. SMITH: I’ll second that. So, may I suggest we first vote, shall we make these CHAIRMAN: Thank you. Delegate Crossiey. minor changes; and, second, shall we refer it over to the legislature to let them adopt it as properly drawn by an CROSSLEY: That was what I was going to do so the artist. Chair will be in order. CHAIRMAN: Then, Delegate Larsen, would you make a CHAIRMAN: Thank you very much. All those in favor motion that it is the sense of this Convention that there be of the motion please say “aye.” Opposed. Carried. a change in the great seal of Hawaii. Now, if you will please turn your attention to Committee Proposal No. 14 which has been deferred, and I think a LARSEN: I so move. motion would be in order to adopt the committee proposal to get it before the committee. CHAIRMAN: Is there a second? YAMAUCHI: I move that Committee Proposal No. 14 be HAYES: I second that motion. adopted. CHAIRMAN: The motion before the committee is that CHAIRMAN: Is there a second? the sense of this committee is that there be a change in the great seal of Hawaii. All those in favor please say “aye.” DELEGATE: I second the motion. Opposed say “no.” The motion is carried. The next motion, Delegate Larsen, if you would make, CHAIRMAN: It is moved and seconded to adopt Commit it is that it is the sense of this Convention that the provi tee Proposal No. 14. Now, as the Chair recalls, the reason sions regarding the seal be in the Constitution. for deferring action this morning was that Delegate Hayes had a drawing of the seal to present to the committee. Dele LARSEN: I so move. gate Hayes, are you ready with that seal? CHAIRMAN: Is there a second? HAYES: I made my suggestions to Dr. Larsen, which HAYES: I second it. he has accepted. Both Miss Ashford and I feel that some part of the old seal of Hawaii should be preserved, in that CHAIRMAN: Delegate Heen. The Chair is about to be the old seal has the great feather cloak in the back of the corrected. seal. That is the only change we have recommended and HEEN: If it’s going to be in the Constitution, then the Dr. Larsen has accepted that. description of the seal should be spelled out. When the APOLIONA: Your subcommittee on the seal is in accord legislature adopted the great seal for the Territory of with some of the amendments that Dr. Larsen has proposed, Hawaii it spelled out the form of that seal by Section 12941. 730 MISCELLANEOUS MATTERS I might read some of this to you to show how difficult it will to the legislature to adopt the suggestions proposed by Dr. be to have it spelled out in the Constitution. “The great seal Larsen. of the Territory shall be circular in shape, two and three- quarters inches in diameter, and of the design in this CROSSLEY: I accept that, with the further statement that chapter represented; being more particularly described, it was the consensus of this Convention that the seal be with the tinctures added as the basis for the coat of arms, changed. as follows: Arms. An heraldic shield which is quarterly; CHAIRMAN: That is correct. Are you ready for the first and fourth, stripes of the national banner,” and so question? forth and so on. It is a very difficult matter to spell out. YAMAUCHI: Before any action be taken, the committee CHAIRMAN: You’re talking then against the motion? got together and felt that they would like to withdraw the HEEN: I am talking against the motion because I don’t committee proposal. think we can spell it out within the short time that we have CHAIRMAN: You withdraw the committee proposal? The on hand. However, if it’s going to be left to the legislature, Chair is in doubt as to whether the committee proposal can there will have to be provided in the schedule or in an ordi be withdrawn at this time. nance for a temporary seal so that between the adoption of the Constitution and action by the legislature, the State of KING: I don’t think that the. . . [inaudible] be filed and Hawaii will have a seal. That might be in the form of the disposed of that way. It’s a little difficult to withdraw alter article that is written now, until adopted or changed by the it has been submitted to the Convention. legislature. “The seal of the Territory of Hawaii, modified CHAIRMAN: I believe the sense of the committee is to bear the legend, ‘The State of Hawaii’ followed by the pretty well - - I believe that a vote on the motion would ac year,” etc. That could be put into the - - complish the same thing. LARSEN: Point of order. KING: I would like to inquire whether. . . [inaudible] HEEN: So that the State of Hawaii will always have a CHAIRMAN: I’m sorry, your mike is off. seal. KING: That if it’s sufficent to vote in Committee of the CHAIRMAN: You’re speaking against the motion? Whole that it is the sense of the Committee of the Whole the legislature shall adopt the seal along the line designated HEEN: I’m speaking against the motion. by Delegate Larsen, it seems to me a resolution might be CHAIRMAN: Correct. Are you ready for the question? presented to that effect by the Committee on Miscellaneous Matters at some later date. So I think that the Committee LARSEN: Point of order. of the Whole might well take the action directing or instruct CHAIRMAN: Delegate Larsen, would you state the point ing the Committee on Miscellaneous Matters to bring in the of order. resolution to that effect and I so move. LARSEN: It has already been carried that the changes CHAIRMAN: There is a motion before the house, Dele that we are to pass on will be those that were suggested. gate King. I question whether your motion - - May I call the Senator Heen’s attention that the present seal KING: I withdraw my motion. remains the seal until changed by the .legislature if we pass on the suggestion. CHAIRMAN: All those in favor - - CHAIRMAN: The question before the committee is that it ROBERTS: Would you please state the motion. is the sense of the committee that the provisions regarding CHAIRMAN: The motion is that the Committee Proposal the seal of Hawaii should be in the Constitution. All those No. 14 regarding the provision for a state seal be filed with in favor please say “aye.” Opposed say “no.” Noes have it. the understanding that the report of the Committee of the Now, we have before us Committee Proposal No. 14. Whole will indicate a recommendation to the legislature to What is the pleasure of the committee? adopt the changes as proposed by Delegate Larsen. All CROSSLEY: We have just voted that this would - - that those in favor please say “aye.” Opposed, “no.” Carried. the seal would not be in the Constitution. Now, before we move to rise I’d like to quote to Dele gate Larsen from an old and ancient proverb that says, CHAIRMAN: No, we voted as to the sense of the commit “When at last to seals they come, some turn to animals, tee. Now, I would like to dispose of Committee Proposal some turn to documents and some turn to rum.” No. 14. There is a motion in order to rise and report progress. CROSSLEY: Well, the sense of the committee was that J. TRASK: I move that the committee rise and report there should be no seal in the Constitution. Therefore, progress and beg leave to sit again, and direct the chair what we did in effect was vote to delete Committee Proposal man to prepare his report. No. 14. DELEGATE: I second the motion. CHAIRMAN: I’m sorry, Delegate Crossley, but I think [Motion carried.] that the proper motion at this time is to delete the commit tee proposal. The motion was not as to the committee pro JUNE 28, 1950 • Afternoon Session posal. The motion was as to the sense of the committee. CROSS LEY: Well, it was as to the substance of this. CHAIRMAN: Committee of the Whole come to order. Therefore, if you want to vote on it again, I move that SILVA: I see quite a few of the delegates leaving this Committee Proposal No. 14 be filed. Convention. I don’t know whether they have been excused CHAIRMAN: Is there a second? or not; and if they have not been excused, surely their names should be mentioned as leaving this Convention with SMITH: I’ll second it. out the authorization of the President. TAVARES: In connection with such filing I move that CHAIRMAN: That is correct, but I think we still have a there be included in the committee report a recommendation quorum, Delegate Silva. JULY 3, 1950 • Morning Session 731 SILVA: Irregardiless, I think it’s much fairer to the from 1880, 1886 and 1898. If we could incorporate it into other delegates’ names, who have been mentioned this the committee report under flag, because I feel as we get morning as being absent; in good faith to those that were this for publication, we should include the history of this absent this morning, those that are picking up their hats flag. and moving out of this Convention, their names should be called out, too, as leaving the Convention without the author CHAIRMAN: You wish the - - ization of the President. SILVA: At this time, I would suggest or I move that the explanation of the flag and of the origination of the flag be CHAIRMAN: Well, we’ll ask the Sergeant at Arms to embodied in the report. corral any delegates that are outside the Convention Hall. Yesterthy and the thy before in the meeting of the Com A. TRASK: Second the motion. mittee of the Whole as relates to Miscellaneous Matters there were four committee proposals which met with no CHAIRMAN: It’s been moved and seconded that the debate and were adopted. The purpose of bringing the history of the Hawaiian flag be incorporated into the report report relating to those four before the committee now is to of the Committee of the Whole. All those in favor please move this along, and those which were subject to discussion say “aye.” Opposed say “no.” Carried. will be treated in a separate report. If you’ll bear with me, Now you have heard the reading of the Committee of the I’ll ask the Clerk to read the Committee of the Whole Report Whole Report. relating to Proposals No. 13, 15, 16 and 21. If it meets H. RICE: I move the report be adopted. with your approval, we can adopt the report and have It printed and sent to the Committee on Style. Will the Clerk SAKAKIHARA: Second it. please read the report. CHAIRMAN: Moved and seconded that the report be adopted. All those in favor please say “aye.” Opposed, CLERK: “no.” Carried. Your Committee of the Whole to which was referred Is there a motion to rise and report progress? Standing Committee Reports Nos. 54, 56, 57 and 65 of SAKAKIHARA: I move that the Committee of the Whole the Committee on Miscellaneous Matters and Committee rise and report progress and beg leave to sit again, and Proposals Nos. 13, 15, 16 and 21, respectively, accom that the written report be filed. panying said reports relating to miscellaneous matters detailed below, having held meetings on June 26 and 27, DELEGATE: Second the motion. 1950, ‘and having fully considered said reports and com ASHFORD: I move that the committee report out this mittee’ proposals, begs leave to report as follows: report and move its adoption carrying the second reading. Committee Proposal No. 13, providing for a state flag, ‘reads as follows: CHAIRMAN: I believe that’s the correct motion. Is Section............... State Flag. The emblem of the there a second? Territory of Hawaii, known as the Hawaiian flag, WOOLAWAY: I’ll second the motion. shall be the flag of the State of Hawaii. CHAIRMAN: All those in favor. [Carried.] Recommenthtion: Your committee recommends that this proposal be adopted. Committee Proposal No. 15, relating to state bound JULY 3, 1950 • Morning Session aries, reads as follows: Section —. The islands and territorial waters CHAIRMAN: Committee of the Whole, please come to heretofore constituting the Territory of Hawaii shall order. Turn your attention to Committee of the Whole Re be known as the State of Hawaii. port No. 13. These are very brief reports, and your chair man has made each different item a subject of a separate Recommenthtion: Your committee recommends that report for the sake of handling. this proposal be adopted. This first one relates to the wording of the section on Committee Proposal No. 16 relating to civil service, the seat of government, and the language, but not the sense, reads as follows: of the article was changed and it was adopted to read: Section................ The employment of persons in the Honolulu, on the island of Oahu, shall be the capital state civil service, as defined by law, shall be govern of the state unless otherwise provided by law. ed by the merit principle. Under the recommendations there is an indication that this Recommenthtion: Your committee recommends that is a change in language. this proposal be adopted. Committee Proposal No. 21, relating to equal rights, J. TRASK: I move for the adoption of Committee of the reads as follows: Whole Report No. 13. Section_. Whenever in this Constitution the DOWSON: I second the motion. term “person,” “persons,” “people,” or any personal CHAIRMAN: Moved and seconded. Any discussion? pronoun is used, the same shall be interpreted to in clude persons of both sexes. ROBERTS: I have a question on this section. When the language which we have adopted reads, “unless otherwise Recommendation: Your committee recommends that provided by law,” would that permit the legislature to this proposal be adopted. change the seat of the capital? As I recall, the purpose of Respectfully submitted, the change when we were in Committee of the Whole pre Alexander H. F. Castro, Chairman viously was to take care in this section for the action which we’ve provided in the legislative article, which provides for LARSEN: May I ask, I have here—and I don’t want to the moving of the seat of government only in case of an read it, I realize everybody is tired—but a history of the emergency. As I understood it, this was to be a constitu Hawaiian flag which most people don’t know. It’s gotten tional provision and not be subject to change by the legis 732 MISCELLANEOUS MATTERS lature except insofar as provided in this Constitution. If CHAIRMAN: Moved and seconded to defer. All those in I’m not correct on that, I’d like to be corrected. favor please say “aye.” Opposed. Carried. CHAIRMAN: The report on page two was, if I may answer Now if you’ll turn your attention to Committee of the that, taken from the transcript in which the two points on the Whole Report No. 15, having to do with intergovernmental moving of the capital were discussed. The transcripts relations, you’ll find that the section was amended in the indicate that it was the sense of this committee that the second line, which is the last line on the first page of the words “unless otherwise provided by law” covered, 1) move report, with the addition of the words “on the part of this ment of the capital in the event of an emergency; and 2) State and its political subdivisions”; and in the fourth line the idea that the placing of the capital would not be a consti of the section, substitution of the word “their” for the tutional provision, that is, it could be changed by statute. word “its”; and also in the fourth line of the section, the The transcript bore that out. Now, as far as the delegate deletion of the word “all” as it appeared before the word didn’t get that understanding from the - - “matters.” This was merely rounding out of the sense of the section. We are now prepared for a motion to - - ROBERTS: That certainly was not my understanding in the Committee of the Whole. I was of the impression that DOWSON: I move that we adopt Committee of the Whole the capital was to be in Honolulu; that provision was made Report No. 15 and recommend its passage on second read in the legislative article that in case of an emergency, it ing. could be relocated; but that the change of the site of the KANEMARU: I second it. capital could not be made merely by statutory law, it had SAKAKIHARA: I rise to a point of information. What to be by constitutional amendment except insofar as provided committee report are we deliberating? in the legislative article. CHAIRMAN: It’s Committee of the Whole Report No. 15. CHAIRMAN: I wonder if the chairman of the Committee on Miscellaneous Matters has anything to add to that. SAKAKIHARA: We don’t have any Committee Report No. 15. YAMAUCHI: In regard to the proviso here “provided by CHAIRMAN: You have no 15? law,” it was brought up in Committee of the Whole, it was discussed that in the event that the legislature feels that the SAKAKIHARA: No 14, no 15. capital should be moved elsewhere, thatthe methods - - I CHAIRMAN: Fourteen has not been distributed. Relating mean that the provision be made that the legislature be to intergovernmental relations, do you all have a copy on your allowed to do so, and the Committee on Miscellaneous desk? It’s been moved and seconded that the committee Matters agreed that in a later period, maybe in a period of report be accepted by the committee and that it recommend 10 or 20 years, if the people feel that the capital should be adoption to the Convention. Is there any discussion? All moved elsewhere, that it could either be done by constitu those in favor please say “aye.” Opposed, “no.” Carried. tional amendment or by the legislature. If you will turn your attention to Committee of the Whole HOLROYDE: My interpretation was the same as given Report No. 16. The only change, after considerable dis by Delegate Roberts, that Honolulu shall be the capital. cussion on the oath of office, the only amendment was in However, under situations covered by the first line on page the seventh line. You’ll find the change noted on page two. two of the Committee of the Whole report, this wording, “as The words “my duties as” inserted in lieu of the words “the otherwise provided by law” would allow the legislature to duties of the office of,” and for the reasons stated there. transfer it. I do not agree with the last sentence of the SAKAKIHARA: I move the adoption of the committee Committee of the Whole report. report. TAVARES: It seems to me that the only reasonable inter ARASHIRO: I second that motion. pretation of that language is that the legislature does have CHAIRMAN: It has been moved and seconded to adopt power to change. If it is the intention to limit that language, the committee report. it should be made very specific. As I interpret that, with out any committee report, it can mean only one thing, that KELLERMAN: A matter of information. In the last the legislature does have power to change it by law; and that paragraph on the second page of the report where the com was my understanding when I voted for it. mittee is expressing the sense of the Committee of the Whole with regard to commissioners of deeds outside the CHAIRMAN: The Chair might add that the transcript of United States, what exactly does the committee mean by the proceedings of this committee in consideration of this the words “not an appointed citizen of the United States”? particular section indicates a rather lengthy discussion on That isn’t clear to me at all. whether or not the legislature would have the right to move the capital of the state for reasons other than emergencies. CHAIRMAN: I’m afraid that is a typographical error. And the transcript indicates that the sense of the committee KELLERMAN: Is that intended to be just “not a citizen was that it would, that the phrase “unless otherwise provided of the United States”? by law,” could not mean one thing and mean another. So that CHAIRMAN: Yes, that sentence should read, “The I think the only thing this committee can do now is, if there example was given of a person appointed outside the Terri are those who feel that they are not willing to accept that tory not a citizen of the Uaited States.” I don’t know how particular wording, then we will have to reconsider our it got this way in between the typewritten page and the mnk action because - - ing of the stencil. That should read “The example was ANTHONY: I move that we do reconsider our action. given of a person appointed outside the Territory, not a citizen of the United States.” CHAIRMAN: Is there a second to that motion? KELLERMAN: Oh, then the word “appointed” goes up ARASHIRO: Yes, I second that motion. after person. ASHFORD: I move that the matter be deferred until CHAIRMAN: That’s correct. many of the delegates return. KELLERMAN: “Of a person appointed outside the Tern- SAKAKIHARA: I second the motion to defer. tory. JULY 5, 1950 • Afternoon Session 733 CHAIRMAN: That’s correct. ANTHONY: I move the adoption of the commfttee’s re port together with the chastisement of the body to the Chair KELLERMAN: Well, you mean a person outside the man. Territory being appointed, do you not? You don’t appoint outside the Territory. HOLROYDE: Second, as amended, I guess, he means. CHAIRMAN: “The example of - -“ now I’m mixed up. CHAIRMAN: All those in favor please say “aye.” Opposed. Now I think there is a motion in order that we rise and TAVARES: As the one who is to blame for having injected report a certain amount of progress. this thought into the sftuation, may I move to defer, and I will try to assist the committee in putting into words the TAVARES: I didn’t know that the amendment had been idea I had in mind which apparently is not clear to some adopted. I thought we were just adopting the amendment here. I, therefore, move to defer till Wednesday. because I wanted to speak on the amended section. CHAIRMAN: Well, as a matter of fact - - CHAIRMAN: I don’t - - Delegate Tavares, I really don’t think it’s necessary in the interest of expediting. It’s really TAVARES: I should like the record to show that this is merely a misplacement of a word. only an example, and I take ft that’s what ft means. There may be other sftuations where, from the necessfties of the ASHFORD: Isn’t that a point that’s taken care of perfect occasion, we are unable to find an officer who is a cftizen ly, in - - at the tail end of the sentence, “The example of a and we, therefore, have to appoint someone who is not a person outside the Territory, not a citizen of the United citizen. And in those cases, where ft is otherwise legal States, who might be appointed as a commissioner of deeds.” under our laws, I take it this would mean that the prescrip tion of the oath in this manner would not necessftate our CHAIRMAN: That would handle it. If you just cross out asking an alien then to perform an act of disloyafty to his “an appointed,” “the example of a person outside the Terri country. I think that is the general intent of the report, is tory, not a cftizen of the United States.” it not? ANTHONY: I move the report be amended by deletion CHAIRMAN: Correct. of the words “an appointed.” DOWSON: I move that the commfttee rise, report prog SAKAKIHARA: Second it. ress, recommend passage of Commfttee of the Whole Re CHAIRMAN: All those in favor please say “aye.” ports No. 13 and No. 15 and No. 16 as amended, and to beg leave to sft again. ASHFORD: You can’t cut off “an” without substituting “a.” Substitute for the words “an appointed,” the word “a.” CHAIRMAN: Is there a second? ANTHONY: That’s correct, that’s what I had written. HOLROYDE: Second the motion. CHAIRMAN: You agree to the amendment, Delegate CHAIRMAN: All those in favor please say “aye.” Anthony? All those in favor of the amendment please [Carried.] say “aye.” Opposed, “no.” KELLERMAN: As the sentence reads, you have no JULY 5, 1950 • Afternoon Session verb in it at all. Now that may be purely a matter of - - maybe it’s entirely immaterial, but there is no verb in the sentence. Don’t you mean - - CHAIRMAN: Commfttee of the Whole please come to~ order. May I ask the committee to turn fts attention to CHAIRMAN: As I indicated to you, that sentence original Committee of the Whole Report No. 14. Number 14 deals ly read in the typewritten report, “The example was given.” with Commfttee Proposal No. 14 and Resolution No. 29, and KELLERMAN: Yes, well, that’s omitted. I think if we turn our attention to the proposal first relating to a state seal. The proposal on the state seal, according CHAIRMAN: I’m afraid in the rush to get this printed, to recommendation of this committee, is to be filed wfth we have ended up - - a proper resolution drawing the attention of the first legis lature of the State regarding the design of that seal. KING: I move that after the word “example,” the words The resolution is outlined on page one and the beginning “was given” be inserted. of page two and a copy of the resolution has been circulated. ROBERTS: Second. You all have copies of that resolution. It’s circulated and is wfth the title, Resolution No. 45. It is not Resolution CHAIRMAN: All those in favor please say “aye.” Opposed. No. 29, which is found in the latter part of the report. Carried. It now reads, “The example was given of a person outside LARSEN: Could I make one comment? During our dis the Territory, not a citizen of the United States, who might cussion—I just want to make this clear so the members will be appointed as a commissioner of deeds.” remember—during our discussion, we suggested that in Delegate Tavares. drawing the coat of arms to which this has no real relation, except that ft goes with ft and the coat of arms is always TAVARES: I’ll waft till after the adoption of the amend developed from the seal, we suggested—and I’m merely saying ment. this so we get ft in the record—that the coat of arms use, as the old coat of arms did, the royal cloak and the small CHAIRMAN: All right. Is there any further question on crown above, which from the standpoint of decorative things, the motion? like skins and so on, is more colorful. And the idea is that CORBETT: This is a very minor matter, but as long as I want the delegates to realize we did discuss this and ft this section has to be amended anyway, could we please do makes a colorful thing that will be made in color, but will something about the splft infinitive in the first line of that carry this seal on as the coat of arms. paragraph? CHAIRMAN: Thank you, Delegate Larsen. CHAIRMAN: “Also to show,” is that the way you’d like Now, I think a motion is in order to adopt Proposal to have ft read? That will be taken care of. Is there any - - No. 14. 734 MISCELLANEOUS MATTERS WOOLAWAY: I so move. CHAIRMAN: “Above all things”? DELEGATE: Second the motion. HAYES: “Things is life.” L-I-F-E, life, person, life of CHAIRMAN: Is there any discussion on the first half of a person, life of a human being. Committee of the Whole Report No. 14, as to the adoption HEEN: I don’t think that is correct. of Proposal No. 14? HAYES: Well, I’ve been - - WIRTZ: Proposal 14? Point of information. Committee Report No. 14 - - HEEN: “Maluna a’e o na lahui apau.” What’s “lahul”? CHAIRMAN: Pardon me. As to the resolution covered HAYES: “Lahul” means - - by Committee of the Whole Report No. 14. CHAIRMAN: I’m sorry. Would you please address the WIRTZ: Which is supposed to be Resolution 45? Chair. CHAIRMAN: Which is Resolution 45. WOOLAWAY: I’ll second the motion. WIRTZ: I would like to move to amend the previous CHAIRMAN: Delegate Heen, I couldn’t get your remark. motion, not to adopt Committee Proposal No. 14, but Com HEEN: I’m asking the last speaker what the word “lahul” mittee of the Whole Report No. 14. meant. DELEGATE: Second. HAYES: “Lahul” means the different races. CHAIRMAN: That is correct. Now, Resolution No. 45 HEEN: So you left that out in your translation into is before the committee, as the first half of Committee of English. the Whole Report No. 14, relating to the enactment by the legislature of a law to provide a great seal for the State of KAWAHARA: I thought there was a motion before the Hawaii. house to reconsider - - LARSEN: I move we adopt this resolution. HAYES: There is a motion before the house, but k’s been reconsidered. CHAIRMAN: That has been moved. Is there any dis cussion? Chair will put the question? All those in favor, WOOLAWAY: Point of order. That vote was already please say “aye.” Opposed, “no.” Carried. taken. Delegate Hayes made a motion for amendment and I Now, as to Resolution No. 29, which is embodied in seconded it so that it could be discussed on the floor. Commktee of the Whole Report No. 14, relating to certain HAYES: It’s just a suggestion and I’ve taken k up with heraldic symbols, is there a motion to adopt the resolution? those who are well informed on the translation of Hawaiian YAMAUCHI: I move the Resolution No. 29 be adopted. and English. I just wanted to correct It because this is a report of the committee and we want it correct. Just a LARSEN: I second the motion. suggestion, unless you - - most of you feel that “Above all CHAIRMAN: It has been moved and seconded to adopt nations is humanity” would be all right to stay in the report. Resolution No. 29. Is there any discussion? All those in It’s all right wkh me. I just offered this. favor please say “aye.” Opposed. Carried. CHAIRMAN: I beg your pardon, Delegate Hayes. I understood that you were making an amendment to the HAYES: I’m sorry, I wasn’t on my feet, but I wanted translation. Is that correct, or are you merely making a to - - on page three, it says “Maluna a’e o na lahui apau, suggestion? ke ola ke kanaka.” The translation there says, “Above all nations is humanity.” I wondered, it’s just a suggestion, HAYES: Well, I think the translation from Hawaiian, I wondered if, instead of “Above all nations,” we would “Above all nations is humanity,” doesn’t go wkh your Ha say, “Above all things is life,” instead of “humanity.” waiian translation. Then it would go with the translation tint we have there in Hawaiian. CHAIRMAN: Well, would you enlighten the Chair whether or not you are making an amendment, because if you are CHAIRMAN: You are - - you want to make an amendment not making an amendment, then there is nothing before the to that translation, Delegate Hayes? house. WOOLAWAY: I move for reconsideration so she can do HAYES: Well, then, I should like to amend it by putting it. the word, after “all,” instead of “nation,” put in “things is CHAIRMAN: Is there a second? life.” “Above all things is life.” Unless that’s not correct. I see many heads are shaking. COCKETT: Second. CHAIRMAN: Is there a second - - CHAIRMAN: There’s a motion to reconsider Resolution No. 29 to allow Delegate Hayes to enlighten us on the proper LARSEN: I think Senator Heen is right. As with all these translation of the Hawaiian words found at the top of page Hawaiian expressions, they do have different meanings, but three. this was a translation that is considered authoritative and I HAYES: The Hawaiian words, the interpretation there, think the - - k’s not necessary, really, to make an amend in Hawaiian is correct, but the interpretation, “Above all ment here, but to carry and get a double check on Delegate nations is humanity” does not go with the translation in Hayes’ suggestion. Hawaiian; and the word “life”; “life” would go with ARASHIRO: May I defer this matter for a day or so that the translation we have here in Hawaiian. It’s a point I Delegate - - lady delegate from the fourth district may check wanted to bring up. It’s just a point I was just reminded this matter up? of. HAYES: I’ve checked it already and if k’s going to delay CHAIRMAN: So your amendment would make the trans this report, I wkhdraw my amendment. lation read, how? CHAIRMAN: The amendment has been wkhdrawn. I HAYES: “Above all things is life. believe, then, the question - - JULY 5, 1950 • Afternoon Session 735 ASHFORD: I wish to offer another amendment. WOOLAWAY: I move the adoption of Committee Report 20. CHAIRMAN: Proceed. LAI: I second the motion. ASHFORD: Substitute for the word “the” in front of the “translation,” the word “a,” because there is very apparent CHAIRMAN: Would you include in that, Committee Pro ly a possibility of more than one translation. posal No. 18, Delegate Woolaway? CHAIRMAN: Is there a second to that amendment? WOOLAWAY: 0. K. BRYAN: Second it. WIRTZ: Point of information. As I read the report, Committee Proposal No. 18 is to be filed. CHAIRMAN: It’s been moved and seconded that on the fourth line of page three, the word “the” be deleted and the CHAIRMAN: Committee of the Whole Report No. 20 is word “a” be substituted in lieu thereof. All those in favor to be adopted and Committee Proposal No. 18 is to be filed. please say “aye.” Opposed, “no.” Carried. Isn’t that the way the motion should read? Is there a Now, I think a motion to adopt the - - second? KAUHANE: I ‘d like to take up the question raised by LAI: Second the motion. Mrs. Hayes and ask that we take and move for a deferment CHAIRMAN: Is there any discussion? All those in for about 15 minutes to get the clarification of the Hawaiian favor please say “aye.” Opposed. Carried. translation into English. It certainly doesn’t sound right For the information of the committee, Committee of the when you use the word “humanity,” when the Hawaiian word Whole Report No. 13, which dealt ivith the seat of govern means “man, “and when you use Hawaiian words “Maluna a’e ment, there was a question as to whether or not the phrase o na lahui apau,” which means, “Above all people the life —I don’t have it before me, but I believe it’s “unless other of man is predominant.” Here, “Above all nations is human wise provided by law”—had passed this committee. In go ity” doesn’t rhyme with the Hawaiian wording. I think if ing further back from the transcript but going into the re we can defer action on this matter and we call the Hawaiian cording, It was discovered that the motion to change the translator from the Archives to come on up, I think we will wording had not carried, although the transcript showed that be able to settle this matter today. it had, so there is a redraft of that Committee of the Whole report being prepared at the present time, and I think that CHAIRMAN: There has been a motion to defer. Is there we’ll have to hold on discussion untfl then. a second? I think now we’re ready to rise and report progress. SAKAKIHARA: I second the motion to defer. DOWSON: I move that we rise, report progress and rec CHAIRMAN: Moved and seconded to defer attention to ommend adoption of the Committee of the Whole Report on the Resolution No. 29. All those in favor please say “aye.” Proposal No. 14 and Resolution No. 45; and the adoption “No.” Carried. of Committee of the Whole Report No. 19 and Committee Proposal No. 20 as amended; and for the adoption of Com KAUHANE: I ask that you instruct the Sergeant at Arms mittee of the Whole Report No. 20 for the filing of Committee to call the Hawaiian translator from the Archives to come Proposal No. 18. up so that we can get the English translation of this Hawaiian phrase. CHAIRMAN: Is there a second? CHAIRMAN: The Sergeant at Arms will please do so. I PORTEUS: I understood that they had - - that action had believe he is on his way. been deferred on Committee of the Whole Report No. 14, Now, if we can get along here on Committee of the Whole so I don’t think that would be appropriate to include in the Report No. 19. motion that we rise, report progress and recommend the adoption. DOWSON: I move for the adoption of the Committee of the Whole Report No. 19. CHAIRMAN: Yes, Resolution No. 45. CHAIRMAN: And Committee Proposal No. 20, would PORTEUS: You could leave Resolution No. 45 to accom you include that? Include in your motion Committee Pro pany the Committee of the Whole Report No. 14, because posal No. 20. that handles not only the state seal, but it also handles this section with respect to the Hawaiian translation of the phrase, DOWSON: And Committee Proposal No. 20. “Above all nations is humanity.” Now, if you postpone a CHAIRMAN: Is there a second? portion of the Committee of the Whole report, it seems to me, therefore, that you would postpone the whole committee J. TR.ASK: Second the motion. report. CHAIRMAN: Dealing with the preamble, which preamble LARSEN: To speed up, I wonder if we could get Kauhane has been amended, the amendment to Committee Proposal and Mrs. Hayes to accept the fact that this is a broad trans No. 20 and the preamble that is before the committee would lation. It’s true it says the life of all humans and so on, read as follows: but that is humanity. We, the people of the State of Hawaii, grateful for CHAIRMAN: Delegate Larsen, we have a motion here. Divine Guidance, and mindful of our Hawaiian heritage, I’m trying to get the motion straight before we can - - reaffirm our belief in a government of the people, by the people and for the people, and with an understanding LARSEN: What is the motion, may I ask? heart toward all the peoples of the earth, do hereby ordain CHAIRMAN: The motion is as to what this Committee and establish this Constitution for the State of Hawaii. of the Whole shall report. We have already sent for the Is there any discussion on the amended proposal or the translator from the Archives and we have some other busi report? All those in favor please say “aye.” Opposed, ness here. This Committee of the Whole will have to meet “no.” Carried. once again, so I don’t think that there would be anything I ask you now to turn your attention to Committee of the gained by rushing It through at the present time, if you’re Whole Report No. 20. willing to withdraw. 736 MISCELLANEOUS MATTERS BRYAN: I’d like to ask the movant if he would accept the CHAIRMAN: It’s been moved and seconded that the amendment that we rise, report progress and ask leave to English quotation of the translation read, “Above all nations sit again. is the life of man.” CHAIRMAN: Delegate Bryan, I think we can get some of AKAU: I realize that is the literal translation, but I fail these things out of the way. to see where “humanity” differs from the “life of man.” BRYAN: In reporting progress, it’s up to the chairman Humanity, human, you have the first word, human, which to name what we have recommended. means life and I wonder, would it be heresy to say “Above all nations is humanity,” as was originally put in the report, CHAIRMAN: All right. Fine. Will you second the since it actually means the same thing, I think? motion? All those in favor please say “aye.” “No.” Carried. HAYES: I believe I was responsible for this yesterday because my attention had been called by an authority that I thought was worthwhile considering, Mr. George Mossman; JULY 6, 1950 • Afternoon Session but since then the chairman of the committee, Dr. Larsen, did contact Mr. Mossman and they both have agreed that we should leave it alone and not amend it at all. CHAIRMAN: Will the Committee of the Whole come to order, please. CHAIRMAN: You are speaking against the amendment? KAUHANE: May we deviate from your schedule and take KAUHANE: I’d like to differ with the delegate’s question. up Committee Proposal - - Committee of the Whole Report Certainly if we are going to use the Hawaiian words and we No. 14? are to translate its meaning in English, we should translate it correctly. We can’t be saying things that don’t rhyme with CHAIRMAN: You want to take Committee of the Whole the Hawaiian words that are being used. If we want to leave Report No. 14 first? the thing as it is, although some may say the word “humanity” KAUHANE: That’s right. means “the existence of man,” then the Hawaiian words CHAIRMAN: I believe the chairman of the Miscellany should be changed to take care of that. When we read the Committee had a different schedule. Hawaiian motto, “Ua mau ke ea o ka ama i ka pono,” there is only one meaning, one translation in Hawaiian - - in KAUHANE: May I be given permission to state my English. We can’t say, because we use one word which reasons why? embodies a general meaning that k’s perfect. I’d like to, as much as possible, if we are not following the wording CHAIRMAN: Yes, please. of the Hawaiian language, to leave out any mention of KAUHANE: I think when we deferred action on that it was Hawaiian words in the Constitution, so that we will not take on the translation of the Hawaiian words that appear in the the position to have Hawaiian words put in here that don’t Committee Proposal No. 14. The fact is that I’d like to be mean anything. If we really want to carry out its full intent, excused immediately upon consideration of this matter. I then the full intent is submitted here which has been trans beg an indulgence that we take up this matter now and settle lated by the expert that holds the position of Hawaiian it, the translation. translator in the Archives, and I think he is qualified under CHAIRMAN: Request is granted. The committee will any jurisdiction in the interpretation of Hawaiian into English, turn its attention to Committee of the Whole Report No. 14. English into Hawaiian. KING: I think it’s Committee Proposal No. 14, is it not? HEEN: I don’t think this Convention should have too much concern about this matter. It is only a resolution CHAIRMAN: It’s Committee Proposal No. 14, which is asking the legislature to enact appropriate legislation embodied in Committee of the Whole Report No. 14, by covering these various symbols or emblems of heraldry. coincidence, the subject of Standing Committee Report No. Now, this is not binding upon the legislature, and the legis 55 of the Commktee on Miscellany. You will recall that lature can take time off to find out what the proper transla we deferred action on the latter half of that report, which tion should be. is Resolution No. 29, and the reason for deferring the action is to be found on page three of the Committee of the COCKETT: I think the translation here is correct. You Whole report in the first section appearing there, which is know, sometimes Hawaiian words have many translations, Section 2, as to the translation of the Hawaiian words. Now, many meanings. But here, k says “ke ola o ke kanaka,” there was one amendment on the fourth line. The word “the” “is humanity,” it means the same thing as “existence” or appearing before “translation” was deleted, and inserted in “life.” So I think it’s correct, this translation is correct. lieu thereof the word “a”to read “a translation.” But YAMAUCHI: I think there’s quke a bit of difference of there is still some difference of opinion as to what the opinion in regard to the interpretation of that word, the translation in English should be. Now, has that been re phrase over there. I would like to suggest, rather make a solved? motion that the resolution pertaining to Section 2 be amended KAUHANE: Yes, the translation is “Above all nations by putting a period after the word “kanaka,” and delete the is the life or existence of man,” whichever word you want rest of the section and leave if up to the legislature to inter to use, “life” or “existence” of man. That will be correct pret as it is. with the Hawaiian word that is now being used in this com CHAIRMAN: You further amend the amendment. Is mittee resolution. “Above all nations is the life of man.” there a second? I would like to offer this. IHARA: Second the motion. CHAIRMAN: “Above all nations is the life of men” or “man”? CHAIRMAN: The amendment was to place a period after the word “kannka,” quote, period, and delete the KAUHANE: “Man,” M-A-N. balance of the section. Any further discussion on the amend CHAIRMAN: Is there a second to that amendment? ment? All those in favor please say “aye.” Opposed. The Chair is in doubt. All those in favor, please raise their APOLIONA: I second if. right hand. Opposed. The ayes have it. JULY 6, 1950 • Afternoon Session 737 Now, then, the motion would be in order to adopt the the capital, that could be done. I, therefore, think that resolution as amended. what we should do is to amend this proposal to state what was in the minds of the delegates here when they voted on it. YAMAUCHI: I move that Committee of the Whole Report No. 14 including Resolution No. 29, and Committee Report SILVA: I thought we voted on it, but anyway I was going [sic] No. 14 be adopted. to say I approve the committee report, because it meets my objection. I wanted it in Hilo, but since they’ve gone APOLIONA: I second that motion. this far to allow the legislature to place the capital where CHAIRMAN: It’s been moved and seconded to adopt it sees fit, it meets with my objection and I approve the Committee of the Whole Report No. 14, which includes report. Proposal No. 14 and Resolution No. 29. Any discussion? CHAIRMAN: The Chair might state, in response to Dele All those in favor please say “aye.” Opposed. Carried. gate Anthony’s point, that I was also of the opinion that it Now, if we can turn our attention to Committee of the was not the concensus of this committee, but in listening Whole Report No. 13, regarding the seat of government. There was some difference of opinion as to what the record to the tape, we find that there was a question specifically held on this particular report and the Chair might state that asked as to what the provision meant and the explanation of members of the committee that it was not only for I took the original report from the transcript, but we dis covered in listening to the tape that there were some changes. emergency purposes but at any time by statute, went un challenged. The Chair asked Delegate Harold Rice of Maui, So in Redraft 1, we have a substantially different report. I’ll ask the Clerk to read the report, please. “Delegate Rice, does that answer your question?” And he said, “Yes,” and there was no further objection. Hearing CLERK: none, the Chair could only gather that it was the concensus Your Committee of the Whole, to which was referred of the committee. Now, if the delegate from the fourth Standing Committee Report No. 53 of the Committee on district wishes to have that changed, I suggest that he - - Miscellaneous Matters and Committee Proposal No. 12 ANTHONY: I move an amendment. accompanying the same, having held meetings on June 26 and 27, 1950, and having fully considered said report CHAIRMAN: Proceed. and proposal, begs leave to report as follows: TAVARES: Reconsideration. We can’t amend; we’ve The proposal relates to the seat of government and already adopted. reads as follows: CHAIRMAN: That’s correct. Section_. The seat of government of this State shall be located at the city of Honolulu on the WOOLAWAY: We did not adopt - - island of Oahu, unless otherwise provided by law. ANTHONY: You have not adopted, that’s why I rose. Recommendation: Your committee recommends that CHAIRMAN: We have not announced the vote. the proposal be adopted. The phrase, “unless otherwise provided by law,” en ANTHONY: Do I have the floor, Mr. Chairman? ables thq legislature to move the seat of government to CHAIRMAN: Delegate Anthony, you have. a temporary location in the event of insurrection, in vasion, conflagration, epidemic, or for other emergency TAVARES: My point of order still stands. We have - - conditions resultingfrom an act of God. This phrase also ANTHONY: The Chair ruled I had the floor. authorizes the legislature to establish methods to be em ployed in determining the location of the seat of govern ROBERTS: On the point of order, the Chair did not ment. The intent of the Committee on Miscellaneous announce the vote. Matters was explained further to mean that the seat of government should not be permamently set in the city of CHAIRMAN: That is correct. Honolulu by constitutional direction, but it could be re ROBERTS: The delegate from the fourth is properly located by statute. presenting an amendment. That Standing Committee Report No. 53 recommend CHAIRMAN: That is correct. I ruled him in order and ing the adoption of Committee Proposal No. 12 be adopted; said that he had the floor. Proceed, Delegate Anthony. and that said Committee of the Whole accordingly recom mends that said Committee Proposal No. 12 pass second ANTHONY: I move an amendment. Delete the period reading. after the word “law” and the quotes and add the words “in YAMAUCHI: I move the Committee of the Whole Report cases of emergency.” No. 13 be adopted. HAYES: Second the motion. YAMAMOTO: I second the motion. CHAIRMANr Thank you. The motion has been made to CHAIRMAN: It’s been moved and seconded to adopt delete the period and the quotes after the word “law” in the the report as read. Any discussion? All those in favor section and add the words “in cases of emergency,” period, please say “aye.” Opposed. quotes. Any discussion on this? ANTHONY: You called for discussion and I was trying TAVARES: In the first place, I still don’t agree with the to get recognition. ruling of the Chair; and, in the second place, I think we’re giving pretty poor consideration to the judgment of the legis CHAIRMAN: I beg your pardon. lators from Oahu who are going to control the House, when ANTHONY: I don’t think it was the intention of this body we think that this thing endangers Oahu at all. I think we’re to permit the legislature to otherwise provide by law for wasting time on this proposed amendment. We’re looking the seat of government in all cases. That’s what this pro - - we’re forgetting to look facts in the face. This thing was posal does. Notwithstanding the nice language of the report, discussed before, was amply discussed. It was voted here, for any reason the legislature could move the capital. I think and just because the Chair hadn’t yet announced the vote, it was the intention of those that voted on this proposal that, we’re going through this whole rigmarole again. I think in case of an emergency, where it was necessary to move the amendment ought to be killed. 738 MISCELLANEOUS MATTERS PORTEUS: I am inclined to believe that after the Chair KING: I would like to call attention to the fact that the has put a question, regardless of whether or not the Chair report is correct. It says in an emergency - - has announced the vote, that anyone is foreclosed from gaining the floor. However, let’s not be too technical. SILVA: Point of order. Let’s move along. I think that for the convenience of anyone KING: - - and later it says - - The Chairman recognized who wishes to make an amendment, though I don’t agree with me, just let me finish. “This phrase also authorizes the it, I’ll move to reconsider in order that the amendment may legislature to establish methods to be employed - -“ be put before us. We’ll either vote it down or - - SILVA: Point of order. There is nothing before the ANTHONY: Point of order. The speaker is out of order. Convention - - before the committee. Question now is on the amendment, not on any question of CHAIRMAN: You’re not recognized, Delegate Silva. reconsideration. Would you state your point please? CHAIRMAN: Delegate Anthony, the Chair might recon SILVA: I said there is nothing before this committee. sider the ruling here. This section, actually, was passed upon previous to the writing of the Committee of the Whole CHAIRMAN: Thank you. Delegate Bryan. report, so Delegate Pnrteus is correct. In order to allow BRYAN: Is it the Chair’s ruling that there is nothing your amendment, there should be a motion for reconsidera before the committee? tion. PORTEUS: In spite of the refusal to accept my proffered CHAIRMAN: The Chair thinks that there is something help, I’ll proffer it once more. I move we reconsider our before this committee and I would like to state that the action on this matter. Chair has asked whether or not any member of the committee would like to have the sense of the report changed. CHAIRMAN: Is there a second? BRYAN: Mr. Chairman. NIELSEN: I second that in order not to waste time. SILVA: The Chair is out of order and I appeal to this CHAIRMAN: It’s been moved and seconded to reconsider Convention. Standing Committee Proposal No. 12. All those in favor please say “aye.” Opposed. The motion to reconsideration BRYAN: I’d like to speak to that something which is is lost. apparently before the body. I think it is the sense of the Convention, or I move that it be the sense of this committee KING: We seem to be getting into a stymied position that the seat of the capital shall not be changed by the legis and the only question in issue is whether the right to change lature except in case of emergency. If I get a second to the capital shall be limited to times of emergency or not. that, I’d like to speak on it. Now, the chairman of the Committee of the Whole has al ready stated the tape shows it was definitely the desire of ROBERTS: Second. the Committee of the Whole to leave the right to move the CHAIRMAN: Moved and seconded. Proceed. capital unlimited. I have no fear as a resident of Oahu that TAVARES: I rise to a point of order. It’s utterly in the delegates from the other islands are going to move the consistent with the language of the section which clearly capital to Hilo or to Kawathao or to Wailuku. They may shows that there is a right of the legislature by law to pro move parts of it, but they can’t change the terrific invest vide for the change. ment that’s already been made in the capital. I don’t think the amendment is particularly necessary. But the Chair CHAIRMAN: Then you are speaking against the motion? did recognize Delegate Anthony to make the amendment TAVARES: Yes, I consider it entirely out of order. and it has been seconded. The motion to reconsider came after he had been recognized and the second has been rec CHAIRMAN: I do not. Proceed, Delegate Bryan. ognized. I would like to suggest that we vote on this SAKAKIHARA: Point of order. I believe the Committee amendment and if we vote It down, then that’s the end of report of the Whole is the property of the Committee of the it. Then vote on the other proposals unamended. Whole and. . . [inaudible] CHAIRMAN: Well, the Chair admits to being stymied. CHAIRMAN: I couldn’t hear you. However, in view of the rather vehement vote against re consideration, I assume that the amendment will also be SAKAKIHARA: I rise to a point of order. voted down, correctly or incorrectly. However, if Dele CHAIRMAN: Would you speak a little slower, please? gate Anthony wishes to correct the sense of this Committee of the Whole report, the chairman would be willing to be SAKAKIHARA: The Chair is in error. The Committee instructed by the committee to correct the report, although of the Whole report is the property of the Committee of the I would invite any of those who feel that the report misstates Whole. You are merely the presiding officer and I believe the sense of the committee, to listen to the tape in one of that the Chair should inquire as to desire of the Committee your spare moments because it very definitely indicates of the Whole. that there was no argument with this point. CHAIRMAN: That in effect is what the Chair has done ANTHONY: The trouble with the report of the chairman and there seems to be some question as to whether or not is it doesn’t conform to the language of the section. The the Chair - - the chairman of the Committee of the Whole had correctly stated the intent of the committee. The report says it is the intent of the section to remove the motion now is to get to that point, Delegate Sakakihara. capital in cases of an emergency. The section doesn’t say any such thing. That’s the only point. It’s a small matter. BRYAN: Mr. Chairman, I think I have the floor. I don’t care. If you want to have that inconsistency between CHAIRMAN: Delegate Bryan has the floor, unless you the actual thing that you are passing and what you say you are rising to another point of order. Delegate Bryan. are passing, that’s all right with me. CHAIRMAN: I suggest the delegate reread the report. BRYAN: My reason for making that motion, the reason I want to speak on it is that I believe that a state capital is SILVA: I rise to a point of order. just about as permanent as a constitution and, therefore, JULY 6, 1950 • Afternoon Session 739 I think it should be stated in the Constitution, unless, in a Committee of the Whole prefers the amendment, then that case of emergency, it shall be moved temporarily elsewhere. would be binding on the Committee of the Whole and would Now there has been some talk on this floor that the increase be an amendment to the proposal on second reading. in the Senate and House is going to cause us millions of dollars BRYAN: I’d be very glad to withdraw my amendment if to build a large capitol building. I don’t think we want to the Chair - - my motion if the Chair feels that he can put build one on each island. I think if we have one, that would the motion without being out of order. be permanent, at least until the Constitution - - CHAIRMAN: I think that possibly if Delegate Anthony SILVA: Point of order. wishes to put his amendment, he can call for suspension of BRYAN: I haven’t spoken more than five minutes. I the rules, so that we can proceed with the amendment. still have the floor. WOOLAWAY: I move for the suspension of rules so that SILVA: You’re out of order. we can expedite matters here. BRYAN: I’d like to say one other thing. I would advise ROBERTS: I’d like to suggest that there is an honest the chairman of the committee, unless he can get the dele difference of opinion as to what the thinking of the Commit gates to refrain from using the microphone in voting, to tee of the Whole was prior to the report. I think that the call for a standing vote for the rest of this committee meet chairman of the Committee of the Whole properly reported ing. Also, to call attention to the delegates that when we on the basis of the tape and the records that he had. I think, have a roll call, it’s very hard to hear them, but they use however, that there wasn’t full understanding and agreement the microphone when they don’t need it. among the delegates as to what the intent of that was. I know that I, for one, felt that the language as we adopted it CHAIRMAN: The Chair is in sympathy with those last applied only to the emergency provisions in the legislative remarks. Delegate Trask. article. I think there can be an honest basis of difference SILVA: Is that a motion? I don’t know, is anything before of opinion with regard to the report. If we did not reflect the Convention? our opinion, I think it’s perfectly proper in the Committee of the Whole to refer to the chairman and to indicate to him CHAIRMAN: You’re out of order, Delegate Silva. Sit that it was not the sense of the Committee of the Whole. down. I don’t think we ought to get excited about this problem. A. TRASK: I think the motion - - the expression by Dele We can tnke it up tomorrow morning; I think we’re all pretty gate Anthony is a very earnest consideration. What I’m tired; I think we ought to get a good night’s sleep. There thinking about is this. Does any quality or kind of expression fore, I move that we rise and report progress and beg leave in a Committee of the Whole report, how far does that to sit again tomorrow morning. language go to change the intent of plain words in a proposal? NIELSEN: Second the motion. SILVA: I rise to a point of information. KING: Let me ask Delegate Roberts if the procedure I suggested wouldn’t be equally applicable. We can vote on CHAIRMAN: State your point of information. the amendment Delegate Anthony had suggested, vote it SILVA: What is before this Convention? up or vote it down, and that moves the proposal out, and we’d be that much ahead. I don’t think we’re so tired we CHAIRMAN: A motion by Delegate Bryan. can’t accept the amendment that the right to change the SILVA: What is the: motion? capital be limited to emergency or is unlimited. It is as CHAIRMAN: That it is the sense of this committee that simple a matter as that. those words, “unless otherwise provided by law,” relate ROBERTS: I think that the reason I wouldn’t like to get only to emergencies and not to ordinary statutes. a vote now is that we’re not thinking about the problem. SILVA: Then the motion is out of order. We’re all pretty tired and I think we’re a little bit emotional. I think we can save it until tomorrow and give it a little bit CHAIRMAN: The Chair has declared that it is in order. of thought. Delegate Trask, proceed. ARASHIRO: Mr. Chairman. A. TRASK: I’m concerned about the earnest effort here CHAIRMAN: There has been a motion - - to determine whether or not the words “unless otherwise provided by law” are to be restricted in their judicial inter ARASHIRO: For the same reason, I second that motion. pretation to the words “simply emergency,” and that’s why CHAIRMAN: The motion’s been seconded, Delegate Ara it seems to me clearly that if the court just looked at this shiro. There has been a motion to rise and report a certain plain expression, I’m sure the legislature would not be amount of progress. The Chair feels that we’re all big boys limited merely to emergencies. I think it’s worthwhile to now and can probably stick it out, but if that’s the wish of put it in. the - - SILVA: I move that the committee rise, report progress PORTEUS: May I suggest to the body that Standing and beg leave to sit again. Committee Report No. 66 has not yet been acted on. If the CHAIRMAN: I don’t recognize the motion. I think you body will give the opportunity to the chairman of the Com are obstructing everything, Delegate Silva. Will you sit mittee on Miscellaneous Matters to present that report and down and relax. ask that you adopt the committee report. That report only places various matters on file that were submitted to that KING: Let me ask if Delegate Bryan would withdraw his particular committee. I think that if you will give him that motion to embody a restriction as to the sense of the commit opportunity to do that, he is prepared to mnke the motion, tee and allow Delegate Anthony make his amendment. Let’s and I think we can pretty well round up our work on this vote on it. If it’s adopted, then that’s the sense of the com miscellaneous affairs. mittee. If it’s voted down, then we’ll have the proposal as originally reported. I ask Delegate Bryan if he will with ANTHONY: As the author of all this chaos, I have no draw his motion and let Delegate Anthony present his particular feeling one way or other, but I did really believe amendment. I say, let’s vote on the amendment. If this that it was the sense of the body when it voted upon the pro- 740 MISCELLANEOUS MATTERS posal that the capital could be moved as provided by law in CHAIRMAN: The amendment is to delete the words “un cases of emergency. Now there’s no need for anybody to less otherwise provided by law, in case of emergency,” so get stirred up about it. I think that the suggestion of the that the section would read “The seat of government of this President is a sensible one. I don’t care whether the body State shall be located in the City of Honolulu on the island votes for or against my amendment. I was just trying to of Oahu,” period. clear up what I thought was an ambiguity among the dele gates here. I suggest Delegate Roberts withdraw his motion. ANTHONY: I accept the amendment. So we needn’t vote Let’s take a vote on it and get rid of it. on the motion to amend my amendment. CHAIRMAN: Delegate Anthony accepts the amendment. ROBERTS: I withdraw the motion. All those in favor of - - NIELSEN: I withdraw the second, and put everybody in SAKAKIHARA: I demand roll call. order. ROBERTS: Before we take the vote, I think we have a CHAIRMAN: Thank you. We have yet before us the provision in our legislative article which makes an exception approval of the report, as written. Is there any further of this. I think the proper amendment should be “except as discussion? otherwise provided in this Constitution,” which takes care ANTHONY: I move an amendment to [Committeel Pro of the emergency situation. Is that acceptable to the movant? posal No. 12. After the words, “unless otherwise provided by law,” delete the period and the quotes and insert the HEEN: In the article on the legislature, there is a pro vision that the sessions of the legislature shall be held in words “in cases of emergency.” Honolulu, that is held as the seat of government; and if the DELEGATE: Second the motion. seat of government becomes unsafe, the governor may direct that the sessions be held elsewhere. But the seat of govern PORTEUS: I consider that entirely out of order. I made ment would still remain in Honolulu, and if it becomes un the motion to reconsider in order to give the gentleman the tenable, they are all going to move out anyway. opportunity to present his amendment. He rejected my offer. I made another offer, made the motion to reconsider in CHAIRMAN: Any further discussion on the amendment? order to put this thing properly before the body. The body voted on it and it was turned down. I don’t see anything SAKAKIHARA: I ask for a division of votes. more before the body. All the chairman needs to do is rule CHAIRMAN: You want a division of the house? Call for that the matter was brought to a head on the motion to the roll call. How many want a roll call? reconsider and was lost. The only way that anyone can get around that is by moving to suspend the rules. PORTEUS: I think division of the house would only require the chairman of the committee to ask for a standing vote. KING: On the point of order raised by Delegate Porteus, I hate to differ with him but the motion to reconsider was CHAIRMAN: Correct. All those in favor of the amend out of order, as a matter of fact, because the Chair had ment, please stand. Opposed. The ayes have it. 26 to 22. already recognized Delegate Anthony and had already ruled SILVA: I ask for a roll call. that it was in order. So there wasn’t any question of re consideration. The Chair had legalized the amendment and CHAIRMAN: The Chair has already announced the results. the second to the amendment. Let’s vote on the amendment. ANTHONY: Point of order. I move that the report be CHAIRMAN: The Chair has recognized the amendment adopted as amended. realizing we are in the Committee of the Whole, and I feel YAMAUCHI: Second the motion. that there is an honest difference of opinion as to what the sense of this committee was. I feel that anyone who Stands CHAIRMAN: Moved and seconded that the report be up on a formal parliamentary procedure is standing in the adopted as amended. All those in favor please say “aye.” way of expediency. Now, the amendment reads to add the Opposed. The ayes have it. words after “law,” “in case of emergency” period, quote. There is before this committee the Standing Committee All those in favor of the amendment please - - Report No. 66. HEEN: I move an amendment to that amendment by YAMAUCHI: I move that the Standing Committee Report striking out the words, “unless otherwise provided by law” No. 66 be adopted. and put a period after the word “Oahu.” Leave the situation a fluid one. If Oahu becomes untenable, they are going to YAMAMOTO: I second the motion. move out of Oahu anyway without waiting for the legislature CHAIRMAN: Delegate Yamamoto seconds. Any discus to provide by law that you can move. That’s what they are sion on Standing Committee Report No. 66? All thosein doing in South Korea. The government has moved two, favor of the motion please say “aye.” Opposed. Carried. three times from Seoul and they didn’t need any legislation Now I think we’re ready to rise and report progress. to do that. They’ll move anyhow whenever the emergency arises. DOWSON: I move that we rise and report progress and recommend the adoption of Committee Report - - CHAIRMAN~ Is there a second? DELEGATE: Can’t hear the delegate, Mr. Chairman. AKAU: Isecond that. DOWSON: I move that we rise and report progress and CHAIRMAN: The motion has been seconded by Mrs. recommend the adoption of the Committee of the Whole Akau. Report No. 14 as amended with Resolution No. 29 rendition, the second rendition; Committee of the Whole Report No. 13, YAMAUCHI: I’d like to speak in regards to the comment made by the previous speaker. If the speaker believes what and Committee Proposal No. 12, as amended, and Standing Committee Report No. 66. he has spoken, why is it that the committee has that phrase about emergency location of the capital in the legislative SAKAKIHARA: Second the motion. article? CHAIRMAN: All those in favor please say “aye.” BRYAN: Would you read the pending amendment, please? Opposed. Carried. JULY 7, 1950 • Morning Session 741 JULY 7, 1950 • Morning Session that the seat of government should not be permanently set in one place. We felt that a provision should be added that in CHAIRMAN: Committee of the Whole will come to order. case that the capital is in danger and that it would be neces Delegates may sit at their ease. The Chair recognizes Dele sary to move the capital temporarily, it should be relocated gate Wirtz. in some other area, whether it be in the City and County of Honolulu or to some other island. But also, that it should WIRTZ: In order that we start out clean and fresh in this provide the means, the method that could be employed in matter, so that there will be no technicalities involved, I now selecting the capital. Also, that in the ewent of the future move for the suspension of rules and the consideration of growth of some other areas of the State of Hawaii, that it this particular proposal. should be given the opportunity to be a capital if it fulfills PORTEUS: I second that motion. the requirement. We feel that in later years, in some other areas of the State of Hawaii—that is, if we become a CHAIRMAN: There has been a motion to suspend the state—that it may grow to the extent where it may be not rules. All those in favor please say “aye.” Opposed. necessary but it will be for the benefit of the State to move Carried unanimously. the capital to some other area. For that reason, we felt YAMAUCHI: I now move that we adopt Committee of the that we would not like to leave the seat of government to be Whole Report No. 13. permanently set in Honolulu. YAMAMOTO: I second the motion. APOLIONA: The chairman of your Miscellaneous Com CHAIRMAN:~ It has been moved and seconded that Com mittee is quite right. The committee felt that because of mittee of the Whole Report No. 13, Redraft 1, be adopted. Honolulu now having all opportunities, and it is the largest Is there any discussion? city in the Territory, that Honolulu now shall be the capital. But in future dates, when any political subdivision within HEEN: I take it that if the committee report is adopted, this State shall grow and prosper and become bigger than it will contain the phrase “unless otherwise provided by law.” Honolulu, then the legislature may remove the seat of govern Is that correct? ment to that particular subdivision. And also, the members CHAIRMAN: That is correct. of the committee agreed that in case of disaster or any emergency, the governor can remove the temporary seat HEEN: I have an amendment. Delete the phrase “unless of government from Honolulu to any place he so desires. otherwise provided by law,” and place the period after the That is to give the opportunity for other political subdivisions word “Oahu” on the third line, and add to that, “In case of this State if they become bigger, more prosperous, and Honolulu shall be unsafe, the governor may direct temporary have the facilities to hold the seat of government, then that removal of the seat of government to some other place.” particular subdivision should be given the opportunity of CHAIRMAN: No, this is where we went off the tract becoming the seat of government. yesterday. The Chair would like to ask of our parliamen tarian, Mr. Secretary, whether it would not be correct now CHAIRMAN: Ready for the question? to move for a reconsideration of the section. DOWSON: May I say a word against the amendment? PORTEUS: I thiak the point of Delegate Wirtz motion- - CHAIRMAN: Proceed. CHAIRMAN: Takes care of the rules. DOWSON: Honolulu is now the logical capital, location PORTEUS: - - takes care of it. Now, you have before for the capital of the State of Hawaii. It might still be the you a motion to adopt with an amendment, which is in order, most fit place for the location of the seat of government which deletes and substitutes in lieu thereof. for a long time. However, can we preclude that some pestilence or something that might happen due to warfare, CHAIRMAN: The Chair just wanted to make sure of can we preclude that the place Honolulu might not be rendered that. Now is there a second to the - - unfit for use? We may - - due to the development in the use J. TRASK: Second the motion. of the atomic bomb or the H-bomb or other bombs that might CHAIRMAN: Now, Delegate Heen, would you restate come, can we preclude that we may not have to build a city your amendment so that we know exactly what it is? underground or a place where we can keep the valuable documents from being destroyed? We can’t go underground HEEN: Line three, substitute a period for the comma here in Honolulu due to the closeness of the water. There following the word “Oahu” and delete the phrase “unless fore, I thiak we should leave to the future legislature the otherwise provided by law”; and substitute for that phrase prerogative to move the seat of the capital. the following sentence, “In case Honolulu shall be unsafe, the governor may direct the temporary removal of the BRYAN: I understand the arguments made by the various seat of government to some other place.” May direct members of the committee quite well. However, I’d like the temporary removal of the seat of government to some to ask the chairman of the committee if it isn’t true that any other place.” That follows somewhat the language used in permanent change would be probably accompanied by a great the article on legislature powers and functions with refer many changes in other factors, as he mentioned, and in that ence to the holding of sessions in Honolulu and that, when event, wouldn’t it be sufficient change to warrant a revision Honolulu becomes unsafe the governor may direct that any of the Constitution? That was the point I tried to make yes session may be held at some other place. terday. It’s quite a large move to move permanently the seat CHAIRMAN: Is the amendment clear in the minds of all of government of the Territory or of the State, and I think the delegates? The sentence should read, after Oahu, “In that that should be accompanied by a rather serious change case Honolulu shall be unsafe, the governor may direct the which would change the Constitution. I quite agree that as temporary removal of the seat of government to some other far as temporary removal is concerned, it could be done place.” Is there any discussion? by the governor or provided by law by the legislature, it could be taken care of very easily in that manner. But a YAMAUCHI: I’d like to speak in opposition to the amend permanent change, I thiak, should require a revision of the ment. When the Committee on Miscellaneous Matters took Constitution. I’d like to get the views of the committee up this matter about seat of government, we were in accord chairman on that point, if I may, please. 742 MISCELLANEOUS MATTERS YAMAUCHI: In the constitutions of the various states, J. TRASK: I second the motion. in some of the constitutions, they provide that the permanent seat be at a certain city. The committee felt that if we make A. TRASK: Just a brief word. I want to assure the Honolulu the permanent seat, by constitutional measures, outside islands that this is not Oahu thinking. It’s just a we wondered whether If in later years when the Constitutional question of strict law. The question we are concerned with Convention is called, whether it would be possible to make is how far can a committee report go to torture the language the amendment once the permanent seat has been set. and meaning of plain words that are to be judicially deter mined. Let us understand plainly that the only time the CHAIRMAN: The Chair feels that there has been suffi courts will review the reports to divine the intention of this cient discussion. Convention is when there is any ambiguity of language. Now the words “unless otherwise provided by law,” is not am SILVA: I’m heartily in accord with the committee report, biguous. With what is it ambiguous? It’s plain that the with the recommendation of the committee. May I cite that court would say, for any reason that the legislature may during the sessions that I’ve been in the territorial legisla determine by law, so that there would be no reason to refer ture, there have been several attempts, more as a joke than to the committee report. So the intention that the capital anything else, by my good friend Senator Capellas from would only be removed in case of emergency would not be Hawaii, calling Hilo God’s country and so forth, to change considered by the court at all. the capital. Just an introduction of the bill, and it stays there and never got any further. CHAIRMAN: There has been an amendment offered to We realize that the House will be controlled by a vast place a period after “Oahu” and delete the balance of the majority of members from Oahu. Even with the outside section. Are you ready for the question? islands, if Hilo would want to change it, then there would be the Maui or Kauai group to take it over to Maui, and then DELEGATE: Roll call. the Kauai group would like it over on Kauai. So that the CHAIRMAN: I’ll ask for show of hands. All those in chances are practically slim and impossible to change the favor please raise their right hand. Opposed. The Chair capital to any locality unless there might be sufficient counts 27 ayes, 24 noes. The ayes have it. reason, and I wouldn’t doubt that when that time does come in the legislature that the originators of the move to move J. TRASK: I move that Committee of the Whole Report the capital would probably come from Oahu because the is No. 13 be adopted as amended. land of Hawaii and the island of Maui or the other counties NODA: I second the motion. are less subject to attack. In all probability it would be the objectors rather than those that are being in accord to CHAIRMAN: Moved and seconded to adopt the committee change the capital. The move would probably come from report. Oahu in the legislature to change the capital. So I see PORTEUS: I wonder whether thh movant would mind absolutely nothing wrong with the committee’s report. Any making that to adopt the proposal as amended, and leave talk to the contrary about how the outside island delegates it to the chairman of the Committee of the Whole to rewrite are going to change the - - move the capital to Hawaii when the Committee of the Whole report. Oahu has so much control over the House is, as the word goes in the Convention, facetious. CHAIRMAN: Correct. Will you so change your motion, Delegate Trask? It has been moved that the proposal be YAMAMOTO: I see that the amendment to this does not adopted as amended. All those in favor? hold water because of the fact that it says “unsafe,” because KANEMARU: Point of information, please. Did you say it is “unsafe” the capital should be moved temporarily to that was Committee Proposal No. 12,-redraft 1? another locality. To me, at the present time in the present world situation, I feel that any city is always unsafe 365 days CHAIRMAN: That’s Committee Proposal No. 12 as found a year because of the fact we have in this atomic age the in Committee of the Whole Report No. 13, redraft 1. H-Bomb. You have seen on December 7, 1941, that your city was attacked and it was in a dangerous situation. You KANEMARU: Then, if you put the period right back of can see for yourself, because of the reason that we have “Honolulu, Oahu” it doesn’t make sense at all as far as this our naval and army installations on this island concentrated, redraft 1 is concerned. - that means this city is most susceptible to attack from the CHAIRMAN: That is correct. We’re adopting only the air and sea and land. Now, therefore, because of the fact proposal and the new Committee of the Whole report must that we set our capital city in Honolulu, there is a possi be written. In other words, we’re not adopting the report, bility that you will not be able to move your capital to maybe we’re adopting the proposal. All those in favor vote - - Wahiawa or any other city on this island, and I therefore be lieve that this amendment should be defeated by au means. YAMAUCHI: Am Ito understand that this amended pro Thank you. posal means that the seat of government will be permanent ly set in the city of Honolulu? CHAIRMAN: Is the committee ready for the question? The question is on the amendment as offered by Delegate CHAIRMAN: That’s what it says. Heen. All those in favor please say “aye.” Opposed. The YAMAUCHI: On the island of Oahu? Chair is in doubt. CHAIRMAN: That’s the understanding of the Chair. DELEGATE: Show of hands. All those in favor of adopting the proposal as amended say “aye.” Opposed. Ask for show of hands. All those in CHAIRMAN: All those in favor please raise their right favor please raise their right hand. hand. Opposed. The Chair counts 21 for, 25 against. The amendment is lost. DELEGATE: Roll call. PORTEUS: I suggest that the Chairman now put the CHAIRMAN: Call for roll call. How many want a roll motion to adopt the proposal and committee report. call? 0. K. Roll call. The Clerk will please call the roll. A. TRASK: I move that a period be placed after the word “Oahu” and the balance of the words, “unless otherwise Ayes, 31. Noes, 27 (Apoliona, Arashiro, Ashford, provided by law,” be stricken. - Corbett, Doi, Dowson, Ihara, Kage, Kanemaru, Kawahara, JULY 11, 1950 • Afternoon Session 743 Kawakami, Kido, Luiz, Lyman, Nielsen, Okino, Porteus, The proposal relates to the seat of government and, as Sakai, Sakakihara, Silva, St. Sure, Tavares, Wirtz, Woola- originally proposed, read as follows: way, Yamamoto, Yamauchi, Castro). Not voting, 5 (Gilli land, Lee, Phillips, Richards, Smith). Section_. The seat of government of this State shall be located at the city of Honolulu on the island of CHAIRMAN: The ayes have it. I believe now it’s in Oahu, unless otherwise provided by law. order to move that we rise and report progress. Recommendation: Your committee recommends that PORTEUS: i so move. That will give the chairman time the proposal be amended to read as follows: to change his report. Section ~. The seat of government of this State CHAIRMAN: That’s correct. All those in favor -- shall be located at the city of Honolulu on the island of Oahu. HAYES: Second the motion. Your Committee further recommends: (1) That this CHAIRMAN: All those in favor please say “aye.” committee report be adopted; and (2) that Committee Opposed. Carried. Proposal No. 12, as herein above amended, pass second reading. JULY 11, 1950 • Afternoon Session Signed by the chairman. CROSSLEY: I move the adoption of the committee report. CHAIRMAN: Committee of the Whole come to order. J. TRASK: Second the motion. I’ll ask the Clerk to read the amended report. CHAIRMAN: Delegate Trask seconds. Any discussion? CLERK: Re Seat of government. All those in favor please say “aye.” Opposed. Carried. Your Committee of the Whole to which was re-referred CROSSLEY: I move the committee rise, recommending Standing Committee Report No. 53 of the Committee on the adoption of the committee report. Miscellaneous Matters and Committee Proposal No. 12 accompanying the same, having held a meeting on July 7, J. TRASK: Second the motion. 1950, and having fully reconsidered said report and CHAIRMAN: All those in favor please say “aye.” proposal, begs leave to report as follows: Carried. Debates in Committee of the Whole on REVISION AND AMENDMENTS* (ArticleXV) Chairman: TOM T. OKINO JUNE 15, 1950 • Morning Session revisions. There are three methods of initiating or proposing amendments and they are (1) proposals by the legislature, CHAIRMAN: Will the Committee of the Whole come to (2) proposals by a constitutional convention; and (3) pro order, please. You may remove your coats, gentlemen. posals by popular initiative. There are also three methods There are three reports, I believe all of you are aware of adopting amendments. They are (1) adoption by the of that, filed by the committee members on revision, amend legislature; (2) adoption by a constitutional convention; and ments, initiative, referendum and recall. There is the (3) adoption by direct popular vote. Committee Proposal No. 9 attached to Committee Report Your committee was in general agreement that the method No. 48. The Chair feels that Committee Proposal No. 9 of adoption or ratification should be by a direct popular and Report No. 48 be considered first. What is your vote. However, with regard to the initiation or proposal pleasure? of amendments, your committee firmly felt that there should be two prescribed methods; first, by the legislative method, FUKUSHIMA: I’d like to make a brief statement, why and secondly, by a constitutional convention. There was, I’d like to have Standing Committee Report No. 48 be con however, a minority which favored the proposal proposing a sidered first. We have before the Committee of the Whole constitutional amendment or revision through the constitu now, three standing committee reports: Standing Committee tional initiative. With the foregoing principles in mind, we Report No. 47, which has to do with the inclusion - - exclu drafted a complete article on revision and amendment which sion of the provisions of the initiative, referendum and re is Committee Proposal No. 9. call; and we have Standing Committee Report 48, which Section 1 of Committee Proposal No. 9 provides for the deals with the method and manner of revising and amending procedure of proposing amendments or revisions to the our Constitution; Standing Committee Report No. 49 is a Constitution by the legislature or by constitutional conven minority report filed on opposition to Standing Committee tion, leaving out the popular initiative method. Report No. 47. Proposal No. 9 is a complete article on Section 2 deals with, specifically, revision or amendment the method and manner of revising and amending our Consti by constitutional convention. There it provides that the ques tution, and that is attached to Standing Committee Report tion, “Shall there be a convention to propose a revision of No. 48. In order to avoid any confusion, I would like to or amendments to the Constitution” be submitted to the have the permission of the Chair and the committee now to people by the legislature at any time. II the legislature take into consideration first, Standing Committee Report fails to do this,then, within a period of ten years, auto No. 48 and Committee Proposal No. 9. matically the State officer whose duty it is to submit such CHAIRMAN: If there is no objection from the floor or questions will certify the question to the public. That same section also provides that if the majority of the ballots this assembly, the Chair will so rule that we shall proceed with the consideration of Committee Report No. 48 and the tallied upon the question favors the holding of a convention, attached Committee Proposal No. 9. the delegates shall be chosen at the next regular election, unless the legislature provides for a special election for the FUKUSHIMA: Before proceeding, I’d like to make a very election of delegates. It also provides, among other things, brief outline on the method and manner of revising and the qualification of delegates, and the determination by the amending our Constitution. I shall labor under the presump convention of its own organization and rules of procedure. tion that the Standing Committee Report No. 48 has been Upon the question of ratification, there are two methods read by the delegates, and laboring under that presumption, proposed. If at a general election, the ratification must be I will not go into the report or the proposal at any great by a majority of the votes tallied upon the question, but such a length. majority must also constitute at least 35 percent of the total In drafting Committee Proposal No. 9, the committee votes cast at such election. In the event that a special elec took into consideration that there was an absolute need of tion is had for the ratification, then that majority must a reasonable, workable means of amending and revising equal at least 35 percent of the total registered voters for our Constitution. It also had in mind that the Constitution that special election. should not be easily amended and yet, at the same time, the There is also a further restriction, that if the consti procedure of amending the Constitution should not be render tutional provision, or the amendment, provides for tht ed practically prohibitive or impossible. reapportionment of the Senate, that majority must be a Generally speaking, the constitutions of the states dis majority of the votes tallied upon the question in each of a tinguish between two separate processes in the revision and majority of the counties. Here I’d like to state that there amendment of such constitutions. The first process may is a minority of two, Delegates Ohrt and Fong, who oppose, properly be referred to as the initiation or proposal of or who do not concur with this particular portion of Section amendments or revision, and the second process as the 2. adoption or ratification of such proposed amendments or Section 3 provides for the revision or amendments by the legislature. Here two alternatives or methods are proposed. If it’s at a single session, it requires a two *Original name — Committee of the Whole on Revision, thirds vote of the total membership of each house, and at Amendments, Initiative, Referendum and Recall—has been least 10 days’ written notice must be given to the governor shortened here to include only those subjects included in for his consideration. The second alternative is that if the the Constitution. proposal by the legislature is at two successive sessions, 744 JUNE 15, 1950 • Morning Session 745 then it requires only a majority of each house. Now, as to CHAIRMAN: U Section 1 is adopted, and no amendment the ratification phase of that particular method of amending is made to this section by Delegate Asbford - - the Constitution, it’s the same as Section 2. Section 4 deals with the veto power of the governor. We NIELSEN: There will be no initiative or referendum by have drafted it in such a manner that the governor’s the people. veto is inapplicable in revising or amending the Constitution. CHAIRMAN: U it is not made at this time, the Chair I would suggest, at this time, that we take up the commit feels that it will estop you from making such an amendment, tee proposal, section by section, starting from Section 1 unless there wUl be reconsideration of this Section No. 1. which relates to procedure. CHAIRMAN: Is there any objection to the suggestion NIELSEN: Well, then, I thiak we ought to take up the made by the chairman of this particular committee? If not, other proposals, 48 and 49, and dispose of them before we the Chair will rule that we shall take up Committee Proposal go into this, or postpone this section until they have been No. 9, section by section. taken up. LAI: I move that we adopt Section 1 of Proposal No. 9. FUKUSHIMA: In that event, perhaps it may be proper that we proceed to Section 2 and Section 3, and defer action APOLIONA: I second that motion. on Section 1 for the time being and take it up after consider CHAIRMAN: Any discussion? Are you ready for the ing the minority report which is Report No. 4?, because there question? you have attached to the minority report an amendment to Proposal No. 9 including the provisions of the initiative and HEEN: I’d like to submit this question. This section referendum. provides that amendments or revisions may be proposed by the legislature or may be proposed by constitutional PORTEUS: I wonder if it would facilitate the action of the convention. That implies, I take it, that somewhere else Committee of the Whole if we could proceed to adopt, reject in this article or committee proposal that the final deter or amend any of the sections with the understanding that when mination of any amendment or revision must be voted on we have finished we would then give full consideration to the by the people. chairman of this committee and his presentation of his minority report. At that time, we would then determine FUKUSHIMA: That is what I tried to explain in my very whether or not these other sections should be further amended’ brief resume. Section 1 merely provides generally what - - by the inclusion of amendments with respect to initiative, how the proposals should be initiated, that is by the legis referendum and so forth. In that way, I think that we could lature or by constitutional convention. The second phase move along on this and then bring up the minority report and is the ratification phase, and under both methods of initia have a full disposition of that. Could we proceed with that tion, we have provided that ultimately the amendments or understanding? revisions will be voted by the people, by direct popular vote. CHAIRMAN: What is your pleasure, Delegate Fukushima, ASHFORD: May I ask a question? with the suggestion now made? CHAIRMAN: Just a moment, please. I believe the senator from the fourth district has still the floor. FUKUSHIMA: I believe that’s perfectly proper, and I believe I’ll accede to that, because I feel otherwise there may FUKUSHIMA: To be more particular, I shall refer the be some confusion. delegate to page two of Committee Proposal No. 9, the last paragraph appearing on that page. CHAIRMAN: The chairman of the committee having consented to the suggestion made by Delegate Porteus, the HEEN: That is in connection with a proposed amendment assembly will proceed with the discussion of Committee or provision submitted by the convention? Proposal No. 9 with that specific understanding, namely that FUKUSHIMA: That is correct. after Proposal No. 9 is adopted, it will be considered again in the light of the amendment to said Committee Proposal HEEN: Then later on, when the proposal is made by the No. 9. legislature, you in effect use the same language? NIELSEN: Well, wouldn’t it be better to just defer action FUKUSHIMA: That is correct. on this first, because then we’ll have to vote for reconsider HEEN: The ratification must be made by the people. ation on it, and - - FUKUSHIMA: That’s right. CHAIRMAN: There was no second to the motion to defer ASHFORD: I would like to ask this question. U Section action on Section 1. 1 of this article be adopted, will it not foreclose a consider PORTEUS: Under this understanding, it would not be ation of the provision for initiative of constitutional amend necessary to move for reconsideration. You just make ments under the Minority Report No. 49? your - - offer your amendment. CHAIRMAN: Will the chairman of the committee be willing to answer that question? NIELSEN: Well, that’s all right then, if I don’t have to move for reconsideration. FUKUSHIMA: Yes, the delegate from Molokai is correct. U we adopt Section 1, that will foreclose the proposals of PORTEUS: So it would be in order to move, second and any revisions or amendments through the popular initiative adopt Section 1 with the understanding that when we’re finished method. The Standing Committee Report referred to, which is with this, that we’ll then take up the minority report and No. 49, has to do specifically with statutory initiative and proceed with initiative, etc. referendum, and also constitutional initiative. However, if CHAIRMAN: Are we ready to vote on the question that we do adopt Section 1, it will mean that the proponents of the we adopt Section 1 of Proposal No. 9 before the assembly? constitutional initiative in proposing amendments or revision All those in favor of the motion to adopt Section 1 please will be foreclosed. signify by saying “aye.” Contrary minded say “nay.” NIELSEN: Will that mean that the Minority Report 48 Carried. will be out of order? Section 2. 746 REVISION AND AMENDMENTS ROBERTS: I suggest that the chairman of the committee officer whose duty it is to certify,” if you would eliminate go over this thing paragraph by paragraph so that we have a the word “the” and insert the word “a”; and then after chance to get to the basic issues. “whose duty it,” strike out the word “is” and insert the LAI: I move that we adopt Section 2 of this report. words “shall be,” I think that’s all the amendment that is necessary. That sentence would then read, “A State officer APOLIONA: I second that motion. whose duty it shall be to certify,” then right on to the rest CHAIRMAN: The adoption of Section 2 has been moved of the sentence. It seems to me that will leave the way and duly seconded. Are you ready for discussion? clear, either by constitutional provision or by statute, to make the appropriate designation either in the Constitution FUKUSHIMA: Now that we have something before the or in the statutes. I don’t know whether the Clerk got the floor, I’d like to accede to the suggestion made by Delegate suggestion or not, or whether it’s acceptabie to the movant. Roberts, and take it paragraph by paragraph. First para I’ll read it again. That line after the word “submitted” would graph provides—shall I read it, Dr. Roberts? read, if my suggestion is agreeable to the Convention, “A State officer whose duty shall be to certify statewide public The legislatureS may submit to the people at any time questions for submission to the people shall certify the ques the question, “Shall there be a convention to propose the tion.” revision of or amendments to the Constitution?” If any ten-year period shall elapse during which the question CHAIRMAN: That is just a suggestion. Am I correct in shall not have been submitted, the State officer whose so understanding, Delegate Anthony? duty it is to certify statewide public questions for sub ANTHONY: That’s correct. I was suggesting that to the mission to the people shall certify the question, to be Convention and to the movant. voted on at the first general election following the ex piration of such period. HEEN: I don’t think that is a desirabie suggestion. To MAU: May I ask if there is some provision authorizing leave it that way, then you will have to provide elsewhere an officer to so certify the question elsewhere? in the Constitution, a provision that a certain State officer shall have that duty. The way I stated it, of course, would CHAIRMAN: Delegate Fukushima, will you be willing to require legislation. Instead of using the word “such,” the answer that question? word “a” might be used for the word “the.” “A State officer, authorized by law for such a purpose, shall certify TAVARES: Maybe I can answer it as far as it can be the question to be voted on at the first general election answered. At this stage, we do not know what the final orgahization of the executive’ department is going to be. following the expiration of such period.” Under that language, legislation, of course, will have to be enacted. I believe it would be a matter for the Committee on Style later, or for reconsideration, if no such officer is provided CHAIRMAN: Delegate Heen, the Chair understands you for, that we bring the matter up again and name some to amend your own motion so that the word “such” shall be officer, such as the secretary of state or some other proper officer. I don’t think at this stage we can - - we are in a position to know, at least I haven’t studied the executive HEEN: I withdraw my previous motion and make it this article yet. way. Commencing after the word “submitted,” have the remainder of that paragraph read as follows, “A State FUKUSHIMA: I believe that is the reason why it was officer, authorized by law for such a purpose, shall certify left as a State officer. It could be the lieutenant governor, the question to be voted on at the first general election under the recommendations to be submitted by the Commit following the expiration of such period.” I move that that tee on Executive Powers and Functions, who may have that amendment be adopted.. duty. Or it may be the secretary of state. So we have left that by merely stating “the State officer whose duty it is to CHAIRMAN: Then the Chair takes it, Delegate Heen, certify statewide public questions.” that your amendment is an amendment to the first amend ment. HEEN: In order to take care of this situation, that clause starting with the words “the State officer” might be changed HEEN: I withdrew the first amendment. to read as follows: “Such State officer authorized by law for CHAIRMAN: With the approval of the second? such a purpose shall certify statewide public questions” - - no, “shall certify the question to be voted on.” In other HEEN: This is a new amendment. words, change the word “the” to “such,” delete the words MAU: I second this new motion. “whose duty it is to certify statewide public question for submission to the people,” so that - - and insert after the ASHFORD: Perhaps I’m being small minded about this, word “officer” “authorized by law for such a purpose, shall but it seems to me that we have a provision for certification certify the question.” Then that clause will read: “Such but we have no provision for putting anything on the ballot. officer, authorized by law for such a purpose, shall certify LOPER: May I ask the maker of the motion for an amend the question to be voted on at the first general election ment, if his amendment means that if the legislature should following the expiration of such period.” I move that amend fail to designate someone to do this work, it would not be ment. done? Will you ask the delegate from the fourth district to CHAIRMAN: Is that a motion, Delegate Heen? answer? HEEN: Yes, I move that that clause be amended as CHAIRMAN: Delegate Shimamura is requesting the floor. stated. Perhaps he is willing to answer that question. If nOt, I shall recognize you later. Is there anyone, any delegate ANTHONY: I second the motion, and I’d like to make a willing to answer? suggestion to see if it’s acceptable to the movant. LOPER: My question was directed to Delegate Heen. CHAIRMAN: Is there a second to that motion? ANTHONY: That is - - the statement of Delegate Loper ANTHONY: I seconded the delegate’s motion, and I’m is correct. In other words, it would have to be implement offering this suggestion. In the line that reads “the State ing legislation. It was for that reason I cast my suggestion JUNE 15, 1950 • Morning Session 747 in a form in which it would be a constitutional mandate, posed amendment, that amendment will read, “The governor rather than requiring any implementing legislation. If you shall certify the question.” I withdraw my motion in favor provide for a State officer to certify the question and then of the motion made by Delegate Shimamura. elsewhere in the Constitution, presumably in the executive section, you designate that State officer, then you have a FUKUSHIMA: I believe the intent of the committee was sell -executing constitutional provision, and no requirement in line with the suggestion made by Doctor Loper, and I of legislation is necessary to carry it out, other than ap believe if it’s the intent of this Convention to follow the propriation. intent of the committee, then Delegate Shimamura’s motion is the proper one now. LOPER: It was my intention to follow up with this sugges tion. If it is the desire of this Convention to make consti CHAIRMAN: The motion before the table now is the tutional provision for this to take place automatically, then amendment offered by Delegate Shimamura, that the officer would it not be sufficient to refer this to the Style Committee namely, the lieutenant governor, shall be the person to thus to insert the words “secretary of state,” or the “lieutenant certify, and so forth, as provided in the first paragraph of governor,” whichever is decided upon after we act on the Section 2 of this proposal. committee report on executive and powers and functions? Undoubtedly there would be either a secretary of state or a DELEGATE: Question. lieutenant governor and if it is the intention of the Conven CHAIRMAN: Are you ready for the question? tion to provide for this, it would be merely a matter of editing by the Style Committee to write in the name of the ANTHONY: Could I have that sentence read as we are officer whose duty it is our intention to - - now debating it? ROBERTS: I believe it was the original intention, in the CHAIRMAN: The Chair will request the mover of that preparation of this article, that the proviso for a constitu motion to repeat his amendment for the benefit of the dele tional convention be self-executing. The original purpose gates. and the original language provided that the secretary of SHIMAMURA: The second sentence of Section 2, under state shall, so that the thing is kept out of the hands of the the proposed amendment, will read as follows: legislature. Since we couldn’t put in the secretary of state because we didn’t know whether the Executive Committee If any ten-year period shall elapse during which the was going to propose one, or a lieutenant governor, it was question shall not have been submitted, the lieutenant therefore put in in the form of a State officer, whoever that governor shall certify the question, to be voted on at the person be. The language ought to be mandatory. It should first general election following the expiration of such not be left to the legislature to authorize such State officer period. to act. ANTHONY: I would like to make a suggestion to the SHIMAMURA: I was going to suggest that this clause be movant. if he would accept the substitution of the word made as sell-executing as possible, and be made certain. “governor” for “lieutenant governor,” then at the appropriate As I understand Proposal No. 22, that is Committee Pro time, after we’ve found out what the appropriate officer is posal No. 22, my cursory examination of that proposal going to be, we can insert the appropriate secretary of state indicates that a lieutenant governor shall be appointed, or or lieutenant governor, or whatever executive officer would elected, in place of a secretary of state - - rather than a have that function. It would be a little simpler, I think. secretary of state. Is that correct? DOI: There seemed to be an expression of opinion on the CHAIRMAN: There will be a lieutenant governor to be floor that probably we’re not definite as to what State officer elected by the people. should handle the job. In that case, why don’t we leave it blank and leave it up to a Style Committee, or when we con SRIMAMURA: Therefore, I believe that we would be sider the executive branch, and make it an automatic filling making this clause entirely sell-executing if we name the definite State officer. Therefore, I move that the amend of the blank when we decide so. ment - - proposed amendment be amended by striking out SHIMAMURA: I have no great objection to the suggestion the words on the fifth line of Section 2, “State officer whose made by the gentleman from the fourth district, Delegate duty it is to certify statewide public questions for submis Anthony. My only feeling is that the lieutenant governor or sion to the people,” and insert in lieu thereof the words the secretary of state is usually the peculiar officer for this “lieutenant governor.” function. CHAIRMAN: Your amendment is to the effect that the CHAIRMAN: Then you refuse to accept the suggestion officer whose official title shall be designated as lieutenant made by Delegate Anthony, is the Chair correct? Delegate governor be inserted? Shimamura? SHIMAMURA: Yes, lieutenant governor. Make it definite, HEEN: As I understand it, the officer to be given this and then if there should be no lieutenant governor but a duty will be the lieutenant governor for the time being, so secretary of state instead of a lieutenant governor, then it’s that last clause then will read, “The lieutenant governor up to the Style Committee to insert the secretary of state. shall certify the question.” CHAIRMAN: Is there a second to that motion? CHAIRMAN: Are you ready for the question? All those in favor of the amendment offered by Delegate Shimamura NIELSEN: I second the motion. will signify by saying “aye.” Contrary minded say “nay.” HEEN: I - Carried. CHAIRMAN: Just a moment, please. For the purpose FUKUSHIMA: The next paragraph reads: of records, who seconded that motion? If a majority of the ballots cast upon such a question is HEEN: I was just going to propose that the State officer in the affirmative, delegates shall be chosen at the next shall be the governor, whom we know will be one of the off i regular election, unless the legislature shall provide cers to be elected. In other words, as I understand the pro- for election of the delegates at a special election. 748 REVISION AND AMENDMENTS Following paragraph: ourselves in the same position as we have found ourselves in the last 40 or more years on the question of reapportionment. Any qualified voter of the district concerned shall be eligible to membership in the Convention. The Conven The legislature may do nothing about it, and I think it should tion may provide for the filling of any vacancy due to be mandatory that the constitutional convention be called every so often. Ithink that with all the changing times, it’s death, resignation or other cause not otherwise provided necessary that the people review their Constitution every so for by law. The persons selected for such vacant office shall have the qualifications required for the original often, and if we adopt that amendment, we won’t have that incumbent. opportunity if the legislature will conduct itself as it has in the past on the matter of reapportionment. AKAU: I was wondering, “The Convention,” second line there, “The Convention may provide,” if an amendment MIZUHA: I believe there is another section on amend might be added “as soon as possible,” if that’s legai termi ments to be proposed by the legislature. I believe the ques nology appropriate to this type of thing. My reason being tion of reapportionment could be taken care of in the legisla that “The Convention may provide,” there may be a time tive article in the Constitution. lapse there which may take six months or whatever it may TAVARES: I oppose the amendment. The reason for be, and by putting in “as soon as possible,” it kind of ties placing this provision in here was, first, we are allowing it down. the legislature to propose a question to any election at any CHAIRMAN: What is the amendment you offer, Delegate time. Then, to be sure that at every reasonable interval, Akau? whether the legislature acts or not, there will be submitted to the people again the question as to whether they want a AKAU: The words, “as soon as possible.” “The Conven constitutional convention, we placed this provision in. All tion may provide,” and insert “as soon as possible.” I so that it means is this, if the legislature during any ten-year move. period doesn’t submit the question to the voters, not of amending the Constitution in any particular respect, but, CHAIRMAN: Is there a second to that amendment? “Do you want a constitutional convention,” that’s all the HEEN: That second sentence, I don’t think is the proper people vote on. If the legislature doesn’t do that, then the way of treating this matter. It should be that “The governor people have an opportunity at ten-year intervals to say shall f iii any vacancy due to death, resignation or other whether they want a constitutional convention or not. That’s cause ,“the same as we have it now in Act 334, which all this thing does, and since we have voted against the created this particular Convention. If you leave it to the initiative method of proposing amendments to the Consti Convention, that Convention may not reach any agreement tution, we felt that this was a good concession to the people as to who should be the succeeding delegate. in general, so that they would be sure that at every ten years they had a right to vote on whether they wanted a convention WOOLAWAY: I’d just like to ask why the word “may or not, to consider revisions to the Constitution. It seems provide” is used instead of “shall provide”? to me that’s a reasonable provision, and if you just leave it LEE: Well, there are many points raised on this para up to the legislature as it has been said, there is a possibili graph. I think all are pertinent and I have another to raise ty that the legislature may not act for 20, 30 or 40 years. from the discussion back ‘here. The phrase, “Any qualified ROBERTS: I’d like to speak in opposition to the amend voter of the district concerned shall be eligible for member ment proposed by the delegate. It seems to me that one of ship in the Convention.” If I recall, there is an article in the basic purposes of a constitution is to make provision for the judiciary which would prevent the judges of the courts the guarantee of certain rights and machinery for operation. from sitting in or being eligible for the Convention. So that It also ought to provide that as times change, the people this whole paragraph, I believe, needs re-drafting. have an opportunity in convention to decide whether or not CHAIRMAN: That does not disqualify, but a judge f or- the job that was done 10 or 20 or 30 years prior to that time felts his right to serve as judge. is still the kind of constitution they want. It seems to me that providing language which merely authorizes the legis FUKUSHIMA: When we dealt with that paragraph—as you lature to call for such a convention, completely misses the know, we have Delegate Wirtz who is a judge from the circuit purpose of the original proposal. This proposal mandates, court on Maui present — we didn’t want to accentuate the fact it requires that the people review periodically, in this that a judge should not sit as a delegate to the Convention, section, every ten years, to examine their Constitution, to and if the judiciary felt that he shouldn’t, then we thought examine the interpretations, and find out whether or not the we’d let the judiciary take care of it. Constitution at that stage is still the kind of constitution WIRTZ: On a point of personal privilege, I’d just like to they want. They have a chance to vote on it. If they find it state that this committee was much more considerate of my satisfactory, then they vote “No,” and the Constitution re feelings than the Judiciary Committee. mains, no constitutional convention is held. But the people ought to have the opportunity, apart from the proviso based MIZUHA: I rise to a point of information. When would on whether the legislature wants it or not, to vote on that ~it be the appropriate time to amend the entire Section 2? question periodically. I therefore hope that the delegates will vote against the amendment. CHAIRMAN: At any time any one of the delegates so desires, Jack Mizuha. CHAIRMAN: Are you ready for the question? MIZUHA: I propose an amendment to the entire Section 2. RICHARDS: After the very simple explanation made by the last two delegates from the fourth district, I’d like to CHAIRMAN: Paragraph? read an excerpt from the Essays of Montaigne. “How is it MIZUHA: “Constitutional conventions may be called as that our ordinary language, so simple for every other pur provided by law.” pose, becomes obscure and unintelligible in a contract or a testament?” SERIZAWA: I second the motion. MIZUHA: I believe I have the last say. MAU: Speaking on the motion, if this motion is carried and that provision is placed in the Constitution, we may find CHAIRMAN: You have the right to close on your motion. JUNE 15, 1950 • Afternoon Session 749 MIZUHA: We’ve heard a lot of talk about a simple consti tion before the assembly is Section 2 of this proposal. Are tution, and right in this particular section we are writing in you now ready for the question? All those in favor of the legislation for future State legislatures. Take, for instance, amendment offered by Delegate Mizuha from Kauai. The the method in which they will apportion the various delegates amendment is, Section 2 shall read as follows, “Constitu to the Constitutional Convention. They refer to Act 334 of tional Convention may be called as provided by law.” Shall the Session Laws of ‘49. It seems to me rather odd for the Chair put the question now? All those in favor of that a constitutional article to contain reference to a specific act amendment please signify by saying “aye.” Contrary of a territorial legislature. If you are not going to trust minded say “no.” The noes have it. what our legislature is going to do in the future with refer HOLROYDE: Twelve o’clock. I move this Committee of ence to revisions, you have given them that power in Section the Whole rise, report very little progress and ask leave 3 also for amendments to the Constitution. And yet you feel to sit again at 1:30. that - - we feel that every ten years that question must be settled by the people by a referendum. I believe that the NODA: I second that motion. legislature, if it feels that the question of revision or amend CHAIRMAN: All those in favor of the motion to recess ment to the Constitution is important enough, that they can -- no, to rise and report very little progress and beg leave not handle by the regular sessions of the legislature under to sit again please signify by saying “aye.” Carried. Section 3, then they will take it upon themselves to prescribe the method by which we will have a constitutional convention, Afternoon Session just as it has taken it upon itself to call this Constitutional Convention for the future State of Hawaii. CHAIRMAN: Committee of the Whole will come to order. So I submit to the delegates here assembled, that if we The last business matter disposed of by the committee is are going contrary to what we have believed our Constitution action taken on the amendment moved by Delegate Mizuha. should contain by writing in specific legislation of this type That was an amendment of Section 2. The amendment was with reference to the calling of a constitutional - - defeated. We are still on Section 2 of Proposal No. 9. ANTHONY: Point of order. We’re not discussing that HEEN: We are particularly discussing the third sentence language at all, at this time. I object to that language also, of Section 2. We took that up but did not complete our dis cussion upon it, when the amendment that was offered was but we’re not discussing that particular language at this —that was made by Delegate Mizuha was submitted. So we time, as I understand it. were then, at that time, discussing the third sentence of Section 2. TAVARES: Since the speaker in closing has done some thing unusual in bringing up some new points that he didn’t CHAIRMAN: There was an amendment which was carried, bring up during the original argument, I believe that they Delegate Heen. should be answered. HEEN: I don’t recall whether that was carried or not. In the first place, this provision is meant to be seif executing. We don’t want any more situation where, as at CHAIRMAN: It was. That was the amendment moved by present, for 50 years the legislature fails to do something Delegate Shimamura providing, fourth sentence of first that is supposed to be done. I don’t agree with the method paragraph, Section 2, insertion of the words “lieutenant of reapportioning of the Organic Act, but I do say that for governor.” 50 years, almost, we didn’t - - we weren’t able to agree on HEEN: That was the first sentence. Then we went on anything. In this constitutional provision, as proposed, in to - - order to make it seif-executing, we say to the legislature, “You can provide for the method of apportioning the delegates, CHAIRMAN: Then the Committee of Revision and Amend but if you don’t, then what’s going to happen?” Who’s going ments read paragraph two and paragraph three. Then there to determine how many delegates are to be elected by the were several amendments made by you and Delegate Anthony. people from each district, if nothing is said in the Consti Amendments were withdrawn. Then there was next amend tution about it? We say if the legislature doesn’t do that, ment by Delegate Mizuha from Kauai, and that amendment then you follow Act 334. That’s a simple way of saying it was disposed of. It was defeated. If you want to make it less simple, then you say - - you HEEN: That’s right, so that we are now, I think, on the name the number of delegates from each district, and third sentence, I mean the third paragraph. make it ten times as long. FUKUSHIMA: Third paragraph, yes. MIZUHA: A point of order was raised. I asked the CHAIRMAN: Third paragraph. chairman whether it was the time for me to propose an amendment and I was informed that this was the time. HEEN: That’s correct. I would suggest as one amendment That’s why I introduced my amendment. But if it is felt the following, alter the first sentence of that paragraph insert that this amendment is proper when we reach the last sen the following sentence: “No officer of the State shall be dis tence of Section 2, I shall propose it at that time. But if qualified from being a member.” That would take care of a the delegates assembled here feel that they should tell the situation alfecting Delegate Wirtz of Maui. Is that all right? legislature how to have their constitutional convention every I’m waking for Delegate Wirtz to second my motion. ten years and so forth, well, the question can be decided upon by the votes of the delegates here. CHAIRMAN: Will you address the Chair, please? But my main reason for objecting to this detailed provi ROBERTS: Since the delegate is a little embarrassed, I sion is the manner in which that constitutional convention will second the motion. should be called, when we have already the machinery written into Section 3 for the legislature to amend or revise CHAIRMAN: Delegate Roberts seconded the motion. our Constitution. I believe we should give the legislature APOLIONA: I’m speaking to the motion. It also includes leeway to provide for constitutional conventions by law, and that the honorable senator from the fourth district to have not by constitutional writs here. membership in that convention, too? Officer of the State? CHAIRMAN: Delegate Mizuha, for your benefit, the HEEN: If a legislator is an officer of the State, using the Chair will rule that the amendment is in order. The ques term officer in a broad sense, in its broadest sense, then 750 REVISION AND AMENDMENTS that would also qualify a legislator to serve in a constitution H. RICE: I withdraw my second to the original motion, al convention, so there’s nothing before the floor, I understand. TAVARES: In the first place, I think we must remember HEEN: Well, to make it much more simple than that, I that we have adopted a judiciary article. We are here in withdraw the motion. directly amending it. Let us understand that clearly. If that’s what we intend, we are going to have to reconsider CHAIRMAN: Delegate Roberts, you seconded Delegate Heen’s motion to amend. and amend that judiciary article. In the second place, while I agree with my colleagues in this Convention that the dele ROBERTS: I seconded the motion of the able senator gate who is a member of the judiciary has been a most from Oahu. I will withdraw my second, if the original valuable one, I want to point out the other possibility, and movant wants to withdraw it. I would like to state, however, that is, we have provided in suffrage and elections that con that in the passage of the judiciary article, I did not construe tested elections shall be considered by a court. Now if too the language of the “person holding an office of profit,” that many judges run, or even if one judge runs, it may be from you’d regard a person who runs for the constitutional con a jurisdiction that has a contested election. That isn’t vention having an office of profit. It would seem to me that necessarily fatal, there will undoubtedly be other judges the judge in the future could run for the convention. who will be qualified, but I think that ought to be borne in mind. TAVARES: I think perhaps I’ve been in error. I think the chairman of my committee has probably stated the correct CHAIRMAN: Delegate Kellerman. Would you - - rule. As I recall now, I think that if this provision is allow KELLERMAN: I did not wish to speak to that amendment. ed to stand, “Any qualified voter of the district shall be I want to propose a different amendment, so I will wait until eligible,” there will be a question of conflict, possible this is disposed of. conflict, between this section and the judiciary article. I think our report should make it clear just which interpre FUKUSHIMA: The amendment as proposed by the delegate tation we wish to adopt. If we mean by this that any qualified from the fourth district seems to be included in the first voter includes a member of the judiciary, then I think that sentence. “Any qualified voter of the district concerned the report of the Committee of the Whole should so state, shall be eligible to membership in the Convention.” That and that would probably clarify the situation. is an all-inclusive sentence and our reports show that that HEEN: If it’s limited to that, that a judicial officer may was the intent of the committee. I don’t believe that the be eligible for election to the constitutional convention, then insertion of the amendment will serve any greater purpose I think it doesn’t go far enough, because members of the than the first sentence that we have in the third paragraph. legislature should be eligible to election to a constitutional ANTHONY: The purpose of the amendment, as I under convention. As you all know, the members of the legislature, stand it, is to take care of the single exception, which is the both those who are serving now and who have become ex prohibition contained in the judiciary article, which says members of the legislature, have, I think, contributed quite that “No persons shall be appointed to the judiciary who shall a great deal towards the deliberations of this Convention. hold an office of profit under the State.” In other words, they could hold an office which was not an office of profit. I don’t RICHARDS: That was a point that I was wishing to raise. think that we ought to make any special exception here for Why limit it to the legislature? Now, I do not know yet what the judiciary as much as I - - high regard as I have of the the proposal of the Executive Powers and Functions Commit members of the judiciary, and specifically the delegate from tee is regarding employees of the state and political subdivi Maui. It seems to me we ought to leave the thing as it stands. sions. We had this debate on the judiciary article, let’s let it go at ANTHONY: The suggestion made by Delegate Heen, I that. don’t think quite reaches the point, for the simple reason CHAIRMAN: Then you are speaking against the amend there Is no prohibition in the Constitution that a legislator ment. may not hold another office. We have to await the coming ANTHONY: Against the amendment proposed by the dele in of the legislative article before that is determined. There gate, the senior elder statesman from the Senate. is a direct prohibition against a judge holding an office of profit, and no manner of words that we will incorporate in LAI: Before we vote on the question, may I ask Delegate any report is going to change that direct prohibition. The Wirtz a question? Does he intend to run for the next con way to get about it is - - go about it is to make an express vention? If not, then we can overlook this matter. exception for the judiciary, if that’s what needs be done, that’s what the will of the body is. So far as the legislature CHAIRMAN: Delegate Wirtz, you may rise to a point of is concerned there is no prohibition, there is no problem. personal privilege. The problem only exists with the judiciary at this point. WIRTZ: Personal privilege. I move to table the amend ment. TAVARES: One more clarifying thought, I hope, and that Is this. It was my opinion before the delegates ran for H. RICE: Second that motion. this Convention, that a member of this Convention was not CHAIRMAN: Who seconded that motion, to table the an officer within the meaning of the Organic Act and that, amendment? Delegate Rice, Harold Rice. therefore, legislators were eligible, anyhow. But to play safe we asked Congress to pass a law specifically approving RICHARDS: I rise to a point of order. I thought that that. There is a real question as to whether this type of was not the way we were going to handle amendments in this constitutional convention, which only proposes but does not Committee of the Whole. enact finally any constitutional provision, Is an office. The people do the adopting finally. If the Convention is going to CHAIRMAN: State your order, please. adopt the amendment and make it effective by its own adop RICHARDS: The point was that this Committee of the tion, clearly they would be officers. But as it stands now, Whole has already stated that when they can vote on a there’s quite a good argument that they are simply an particular measure, they vote on it, and the motion to advisory body, and, therefore, are not officers; and, there table is out of order. fore, it would be perfectly proper to put a construction in JUNE 15, 1950 • Afternoon Session 751 our Committee of the Whole report which would then indicate like to suggest that in the report of our Committee of the that they are not that kind of officers. Whole there be the sense of the committee that it is not the intent to deprive individuals who want to run for delegate to HEEN: The provision in the article on the judiciary with a constitutional convention, that we do not deny them that reference to this problem reads as follows, “The justices right merely because they hold an office, elected office, of the supreme court and the judges of the circuk courts or an office for profit. shall hold no other office or position of profit under this State or the United States.” Therefore, that particular ANTHONY: You can’t put any words in the report that are judicial officer would be prohibited from becoming a member going to change the expressed language ~of the article. If it of the Constitutional Convention, if those members are is the will of the Convention that judges shall sit in future going to be paid any compensation. Therefore, you must constitutional conventions, it can be done very simply, have a specific exception to take care of this situation. As simply by prefacing before this sentence, “Notwithstanding to legislative officers or members of the legislature, as any other provision in this Constitution, any qualified voter you all perhaps know, in every article of - - dealing with shall,” etc. If that’s the will of the body, k’s very simple, the legislative branch of government, there is a provision and that will include all officers of government. which prohibits a legislator from holding any other office under the State. And that’s in the Organic Act, so far as ROBERTS: If the delegate will make that motion, I will the Territory is concerned. second it. TAVARES: I don’t like to disagree with the senior states ANTHONY: I will make the motion that the sentence man from the fourth district, but I, too, have been in govern reading “Any qualified voter” in Section 2, page two of the ment a long time, and I know that there were members of proposal be amended by inserting the words, before the legislative committees or comissions created by law that word “any” “Notwithstanding any other provision in this went to Washington in the years of this Territory, and they Constitution to the contrary.” were held by the attorney general not to be officers within ROBERTS: I’ll second that. the meaning of the Organic Act, although they had a function something like ours. They went to Congress under an act ASHFORD: May I speak very briefly on that? It seems passed by the legislature, with expenses paid by law, and to me that that is a very dangerous provision. We are moved and asked Congress to pass certain legislation for setting up a new Constitution here wkh new courts, new us. And the attorney general of that time held that they everything, but when we have an established court and have were not officers within the meaning of the Organic Act. a constitutional convention to amend the Constitution, the That exactly is a parallel that I submk between that situation delegates will see what can happen. Suppose there are and this, because the members of this Convention are per a lot of judges who are members of this Convention, and they forming no sovereign function. They are performing an were overridden in some particular, the construction of that advisory function which does not become final until a ratifi Constkution and ifs amendmentswould be entirely in their cation by the voters of this State. hands and they might very well proceed with a background of bias in the construction of those particular provisions. LEE: I don’t care what the attorney generals in the past CHAIRMAN: For the benefit of - - Delegate Roberts, have ruled. The matter of a thousand dollars is compen were you the one who seconded that amendment? sation for profit, as far as I can see or read the English language. ROBERTS: Yes, I’d like to speak in support of the motion, if we’re going to discuss it. ASHFORD: I’m in accord with Representative Lee. I also have served—Delegate Lee—I also have served in the CHAIRMAN: You may proceed. attorney general’s office and my experience there is that ROBERTS: It seems to me that the job of writing a one attorney general very often overrules the opinions of constitution was a job which required the best that we could an earlier attorney general. get in the communky, of individuals who ran for office even TAVARES: I’d like if to be known that I was not quoting though they might personally have liked not to run; people my own opinions. who normally don’t run for office, who might be called in to do a job. The same limitations, it seems to me, which apply MAU: Why don’t the lawyers take a recess. Maybe we to the people who ran for this office will apply to individuals can get further: in the future. It seems to me that any person who has some DELEGATE: Second the motion to recess. thing to contribute and wants to spend the time and energy to run for office, to engage in such a project, if seems to CHAIRMAN: It has been moved and seconded that we re me ought to be given opportunity to do so. I don’t think, for cess, until called by the Chair. All those in favor of that example, that people who do run are going to hold grudges motion please signify by saying “aye.” Contrary minded. subsequently because they didn’t happen to get the kind of The noes have it. thing they wanted, but might have a different notion or idea ROBERTS: It seems to me that. the problem which is as to what should have gone into the Constitution. I, there really before us is whether or not we want, in future consti fore, suggest that we get the best qualified people to run in tutional conventions, to have all individuals in the commu the future, and that should permit any qualified voter who nity run for office, and not discriminate against individuals feels that he has something to contribute to run for that merely because they are members of the judiciary or mem office. I’d like to get a show of support in favor of that bers of the legislature. It seems to me that we can state amendment. in the Constitution that we do not regard a delegateship to CHAIRMAN: Are you ready for the question? The amend a constitutional convention as an office for profit, and if ment offered is the addition of the following words, “Notwith seems to me that as long as our intent is clear, we can standing any other provision in this Constitution to the con make such a provision. I personally can see no objection trary,” before the first sentence of the third paragraph of to having members of the judiciary run, I can see no ob Section 2, which begins as follows, “Any qualified voter.” jection to having members of the legislature run, as long as we get delegates who represent the community at large, KELLERMAN: Could I ask a question before we vote on to write a constitution or to revise one. I, therefore, would that amendment? What would this do to the provision that 752 REVISION AND AMENDMENTS House Bill 49 as amended now requires concerning the Com CHAIRMAN: Would you care to reply to that question, munist oath? Is that to go in the Constitution? And if so, Delegate Tavares? does the phrase “Notwithstanding any other provision in this Constitution to the contrary, any qualified voter is TAVARES: As I understand it, as it reads now, any eligible for this Convention”? They certainly are eligible, qualified voter of the district which is going to elect the they are qualified voters. particular delegate would be eligible to run for membership in the convention. CHAIRMAN: Have you completed? KAM: I was just worrying about those judges. I was KELLERMAN: Yes, I’m asking the question of whom wondering, wouldn’t it be much simpler to reconsider Sec ever will answer that point? tion 7 of the judiciary report, and add a clause to that? CHAIRMAN: Delegate Anthony has offered to answer TAVARES: I think that’s a matter now which is out of the question. order. I think we can take it up with the delegate off the ANTHONY: It seems to me that if we’re going to have record, and perhaps work that out together. that incorporated in the Constitution, which we apparently CHAIRMAN: The Chair had ruled that Delegate Kam was are, there should be added to the qualifications of officers, out of order, but the Chair did extend him special privilege. including persons who will be members of any future State constitutional convention, the requirement that they take the KAM: Personal privilege, thank you. oath. Then, reading House Bill 49 as amended, together CHAIRMAN: Are you all ready for the motion to defer with any qualification of officers and this section, it would action on this particular paragraph three of Section 2? be perfectly clear, then, I think, that any delegate would All those in favor of that motion to defer please signify by have to take the oath prescribed, and no person who couldn’t saying “aye.” Contrary minded say “no.” The ayes have take the oath would be eligible. it. CHAIRMAN: Has the explanation, Delegate Kellerman, HEEN: We are now discussing the second sentence of answered your question? this same paragraph. I move to amend that second sentence KELLERMAN: I gather from Mr. Anthony’s statement to read as follows, “The governor shall fill any vacancy in that we will need a further amendment to this provision, to such membership.” write in a further qualification, then. LEE: For the purposes of giving the elder statesman an CHAIRMAN: It so appears from his explanation. opportunity to explain the amendment, I second the motion. KELLERMAN: Well, on the basis of that, then I think we HEEN: You don’t have to say whether that vacancy could go ahead on this. occurred by death, resignation or any other cause, If a vacancy exists, it exists, and that vacancy should be filled ROBERTS: I suggest that perhaps the language of the by the governor. It’s the same as we have now in the present article itseif provides a partial answer to the question pre act which created this Convention. viously raised. The two paragraphs below in this section, there’s a proviso that the convention shall determine its CHAIRMAN: Delegate Lee, do you now second that mo own organization and rules of procedure. “It shall be the tion? sole judge of the qualifications of its members.” It seems LEE: I already seconded the motion. to me that if the convention decides that one of the qualifica CHAIRMAN: You qualified that statement by saying if tions of membership is not being a member of the Communist there was an explanation or something to that effect. Party, then the convention can so act. Or, if it requires that an affadavit be filed, the conventions shall so specify. LEE: No, no, no. It doesn’t seem to me that we need any further qualifications. CHAIRMAN: I wasn’t sure whether you were satisfied KELLERMAN: It seems to me that that would run the with it. future convention into the same embarrassing and difficult LEE: I beg to correct you. The second was made and situation which we’ve had to face. It would be far better to then there was a condition subsequent. have a person who could not take that oath disqualified before he becomes a member of the convention than force the con NIELSEN: I’d like to further amend that to indicate that vention to adopt a rule to - - along that line, and then take it shall be from the same elective district, so the governor action accordingly. has to appoint the - - fill the vacancy from the very same district in which it occurred. TAVARES: I think there’s enough confusion now that’s instigated by some of us so that we ought to postpone this FUKUSHIMA: That is taken care of by the next sentence, for a little while. I’move to defer it till the end of the the following sentence, Delegate Nielsen. calendar, unless sooner moved on, this particular sentence. WOOLAWAY: I’d like to make a simple amendment, CHAIRMAN: Is there a second to that motion to defer? change the word “may” to “shall.” HEEN: Second it. CHAIRMAN: Are you moving an amendment to the amend ment made by Delegate Heen? CHAIRMAN: Will the second be recognized by Chair? WOOLAWAY: “The governor shall.” Yes. HEEN: Yes, I seconded that motion. CHAIRMAN: The amendment reads, “The governor shall KAM: Before we take action on this, I just want to find fill any vacancy.” out, as it now stands, who is eligible to become a delegate DELEGATE: Second the motion. in any convention, in this constitutional convention. CHAIRMAN: That is the first amendment. That has CHAIRMAN: You are out of order, Delegate Kam. There already been seconded by Delegate Lee. The Chair under is a motion to defer. stood the word to be “shall.” There’s only one amendment KAM: I was wondering - - I was just asking a simple ques at this present time, that amendment was moved by Dele tion. gate Heen, “The governor shall fill any vacancy.” JUNE 15, 1950 • Afternoon Session 753 H. RICE: Question, please. don’t just elect delegates from the representative district CHAIRMAN: Are you ready for the question? All those merely. That’s the reason. in favor of that amendment please signify by saying “aye.” LEE: Wouldn’t the exclusion of the word “representative Contrary minded say “no.” Carried. The ayes have ft. district” and just the word “district” include those three sets of circumstances that can be caused? WIST: In the next sentence, there is one qualification that cannot be met, and that is the qualification of election. SHIMAMURA: I think the report should show that in the CHAIRMAN: That is the last sentence of paragraph three. word “district” is included representative district, pre Is that correct, Delegate Wist? cinct, combination of precincts or any other such designated subdivisions. WIST: That is correct. In other words, one qualification for the person who is to be a delegate to a convention is ASHFORD: Does not that language that I suggested, will election; that is a qualification that cannot be made when ft not cover that? One eligible for election in the first the person is appointed by the governor. instance? TAVARES: I think, carried to ifs extreme, that is LEE: In other words, Mr. Shimamura’s motion would correct, but I believe that is the kind of a provision that have the second sentence in that paragraph read as follows, can be explained in our committee report to mean the quali “The governor shall fill any vacancy by appointment of an fications preceding election. Otherwise, you’re going to elector of the same district.” Is that right? get into a much more lengthy discourse about just what CHAIRMAN: “The same representative district.” those qualifications are. This is a simpler method, and I would suggest that we leave that to the Commfttee of the LEE: No, “representative” has been excluded from this Whole report to explain that that’s what we mean. motion. CHAIRMAN: That was the original amendment offered WIST: The reason I raised that question is that that by Delegate Shimamura~ became quite an issue in connection with the Silva case. That question was raised. They said that he was qualified SHIMAMURA: I’m willing to accept that change. and that his successor was not qualified, and that has been an issue. That’s why I raised it. I think ft could be cleared CHAIRMAN: In other words, deleting the word “repre up in the language here. sentative.” ASHFORD: I’d like to amend the amendment before the SHIMAMURA: That’s right. house by adding to ft the amendment of the last sentence CHAIRMAN: So that it would read, “of the same district.” to read as follows, “Only a person eligible for election in the first instance shall be selected.” LEE: “From the same district.” TAVARES: Then you run into the question as to whether, CHAIRMAN: “From the same district.” if he became a voter afterwards, he is eligible. You see, TAVARES: Now, we have an illustration. It’s necessary, you’re running into all kinds of if’s and and’s when you get now, to explain this in a report. That’s all right for the into details. new amendment, but ft’s not all right to explain the original SHIMAMURA: May I suggest this amendment which shall commfttee’s amendment in a report. The difference between take in the last two sentences of the third paragraph of Sec twiddle-dee-dee and twiddle-dee-dum. tion 2. LEE: Has that m.otion been seconded? CHAIRMAN: Last two sentences, did you say? CHAIRMAN: Yes, that motion has been duly seconded by SHIMAMURA: Yes. In other words, the one under dis Delegate Nielsen. cussion and the prior one. I think the delegate from the HEEN: I would suggest this, “The governor shall fill any fourth district, Judge Heen, amended by stating that, “The vacancy in such membership by the appointment of a quali governor shall fill any vacancy.” Add on to that “by appoint fied voter of the district concerned.” ment of an elector of the same representative district, pre cinct, or combination of precincts.” Then you’ve got every CHAIRMAN: Will you restate that suggestion again? thing, the qualifications of the man, he must be an elector, HEEN: You will note in the first sentence it says, “Any and he must be of the same district or precinct from which qualified voter of the district concerned shall be eligible to the prior member was elected. You have both qualifications membership in the convention.” Using the same phrase, filled in then. “The governor shall fill any vacancy in such membership NIELSEN: Was that a motion? by the appointment of a qualified voter of the district concerned.” SHIMAMURA: I make ft in form of a motion. I so move. TAVARES: I think that’s satisfactory. NIELSEN: I’ll second ft. HEEN: I’m glad to hear the distinguished ex-attorney CHAIRMAN: Will you, for the benefit of the delegates, general say that. restate that amendment, Delegate Shimamura? And slowly, please. NIELSEN: Question. Would that be a representative dis SHIMAMURA: Yes. Add at the end of the previous sec trict? tion as amended by Judge Heen the following, “by appoint CHAIRMAN: The word “representative” has been left ment of an elector of the same representative district, out. It should mean any district. precinct, or combination of precincts.” The reason I add WIST: I’ll second that motion. on “precinct or combination of precincts” is this. As I look down further, Act 334 of the Session Laws of 1949 is em CHAIRMAN: Now, the Chair would like to clarify the bodied in the next paragraph; therefore, ft contemplates matter before the assembly. I understood that there was a the election of convention delegates from a representative motion first made by Delegate Heen to the effect that the district or a precinct or a combination of precincts. You governor shall fill any vacancy. In restating your motion 754 REVISION AND AMENDMENTS at this time, you repeated that statement. I have been ASHFORD: Is there any required oath? wondering - - TAVARES: I’d like to answer that, Mr. Chairman. HEEN: With the consent of those who seconded my pre vious motion, I withdraw that motion and I now make a new CHAIRMAN: One moment. Delegate Anthony. motion aitogether. That the second sentence - - ANTHONY: The debate has proceeded upon the basis that LEE: Point of order. I think the record will show that this Constitution will incorporate in it the oath that has the previous amendment proposed by Senator Heen was been referred to in the newspapers as required by H. R. 49, passed, so the proper action would be to reconsider the and that was the purpose of Delegate Kellerman’s question, action of the Convention, so that the new motion could be and, therefore, that is the purpose of the suggested amend made, and I so move that we reconsider our action. ment. HEEN: And I so second. ASHFORD: I did not tinder stand that H. H. 49 required an oath. CHAIRMAN: Is there a second to that? TAVARES: I think I can explain this. If the members HEEN: Yes. will look at Committee Proposal No. 24, which is proposed CHAIRMAN: All those in favor of the motion to recon by the Committee on Ordinances and Continuity of Law, we sider the previous action taken in connection with sentence have incorporated what H.R. 49 requires, and Section 1 two of paragraph three will signify by saying “aye.” All provides that, “No person who advocates or who belongs to those opposed say “no.” The ayes have it. any party, organization or association which advocates the overthrow by force or violence of the government of HEEN: I now withdraw that motion which is now up for this State or of the United States of America shall be quali reconsideration, with the consent of Delegate Lee who fied to hold any public office of trust or profit or any public àeconded it. The delegate approves of the withdrawal of employment under this Constitution.” There’s no oath men that motion. Now, a new motion altogether. I move that tioned there. It’s a question of fact. I, therefore, still the second sentence of paragraph three be amended to think we ought to defer this matter a little further. read as follows: “The governor shall fill any vacancy in such membership by the appointment of a qualified voter HEEN: I rise to a point of information. What was that of the district concerned.” committee proposal or report? WIST: I second the motion for amendment. TAVARES: Committee Proposal No. 24. TAVARES: I move to amend the motion further by HEEN: Attached to what report, if I may ask? adding “and that the next sentence be deleted.” TAVARES: I don’t have it at the moment, but it’s in CHAIRMAN: Which is the last sentence of paragraph the list of proposals. It’s easy to find it there. three? H. RICE: The “Supreme Court” is all out of order, HEEN: That’s correct. CHAIRMAN: That is correct. CHAIRMAN: Am I correct, Delegate Tavares? You are referring to the last sentence of paragraph three? H. RICE: In the first place, he should have moved for reconsideration. HEEN: You can combine it in this section, or you - - I mean in this motion that I made, or you can make a separate CHAIRMAN: That is correct. Your point is well taken. motion later on. Unless there is a motion to reconsider action taken on the TAVARES: Well, that’s two motions. Let’s save one first sentence of paragraph three, Section 2, we shall pro motion, anyway. It’s the same paragraph in which the other ceed with the next paragraph of Section 2. That would bring amendment occurs. us up to paragraph four on page two of Proposal 9. HEEN: O.K., I accept the amendment. KELLERMAN: When I arose a few moments ago, at the same time as Senator Heen arose to discuss paragraph CHAIRMAN: You ready for the question? All those in three, I had wanted to bring to the attention of the body a favor of that amendment moved by Delegate Heen and duly proposed amendment to Section 2, which we had passed. seconded please signify by saying “aye.” Contrary minded The second line of Section 2, “The legislature may submit say “no.” Carried. to the people at any time the question,” is the way it reads ANTHONY: I have an amendment to the first sentence now. I would propose to amend that to read, “The legisla of that section, that paragraph. It presently reads, “Any ture may submit to the people at any general or special qualified voter of the district concerned.” I would amend election.” that to read as follows - - CHAIRMAN: That is the first sentence, is it not? CHAIRMAN: Just a moment, please. That has been KELLERMAN: That’s the second - - the first sentence already amended. of Section 2. “The legislature may submit to the people ANTHONY: No, it hasn’t. It was deferred. at any general or special election the question.” CHAIRMAN: Oh, yes, that has been deferred. HEEN: I rise to a point of order. I thought we were discussing another paragraph altogether. It would seem to ANTHONY: I suggest this, “Notwithstanding any other me that we ought to complete our discussion on that partic provision of this Constitution to the contrary, any qualified ular paragraph which is now under discussion. voter of the district concerned who takes the oath prescribed by this Constitution shall be eligible.” Now that does two KELLERMAN: I understood we had finished discussing things. First, it takes care of our friend the judge; and paragraph three except for the deferred sentence, and were second, it makes a condition procedent that any person going to take up four. We had not yet taken up four, so I who is going to run for the office of delegate will have to take thought it would be in order to suggest an amendment in the requisite oath. I think that would cure the difficulty the preceding paragraph. If it should be done at the end of other than the difficulty of the delegate from Molokai. this section, I’m perfectly willing to do so. JUNE 15, 1950 • Afternoon Session 755 CHAIRMAN: The explanation given by Delegate Keller- CHAIRMAN: For your information, Delegate Fukushima, man meets with the approval of the Chair, unless the amend the Chair is of the understanding that the first paragraph ment or discussion which you, Delegate Heen, will pertain was not adopted as amended. directly to paragraph three. NIELSEN: That’s right. HEEN: What is the status of paragraph three at the CHAIRMAN: And so it would be in order for Delegate present time? Kellerman to make that amendment to the first sentence CHAIRMAN: That has already been amended by the of the first paragraph, Section 2. motion which you have made, seconded by Delegate Lee. LAI: I second her motion. HEEN: No, I mean as to the first sentence of paragraph CHAIRMAN: Is there any discussion to the amendment three. offered to the first sentence of Section 2? CHAIRMAN: The action was deferred on that, and the DELEGATE: Question. motion to reconsider failed. No, a point of order was CHAIRMAN: All those in favor of the amendment, raised by Delegate Rice that unless there was a motion to please signify by saying “aye.” Contrary minded say “no.” reconsider the first sentence of paragraph three, we should The ayes have it. not take action on that. The committee has already voted to Now is there further amendment to paragraph three of defer action on the first sentence of that paragraph, and Dele Section 2? gate Kellerman is now referring to the first sentence of Sec tion 2, which sentence has never been amended. The amend SHIMAMURA: I wonder if the word “people” on the ment offered is, as the Chair understands the addition, dele second line of Section 2, in other words, “The legislature tion of the word “time” and, in lieu thereof, the addition of may submit to the people,” should not read “to the quali the word “general or special election.” fied voters.” I raise that query to bring it to a discussion. I move that the word “people” on the second line of Section TAVARES: Since the delegate is out of order, since we’ve 2 be deleted, and the words “qualified voters” be inserted already approved this paragraph, I move to reconsider the in its stead. first paragraph so that the delegate may present her pro KAM: I second that motion. posed amendment. BRYAN: I’d like to ask the learned judge if he would DELEGATE: I second the motion. accept the word “electorate”? CHAIRMAN: All those in favor of the motion to recon SHIMAMURA: I certainly will, Mr. Bryan. sider - - CHAIRMAN: Electorate? BRYAN: I don’t believe that we’ve approved that paragraph. We’re still working on Section 2. One part of Section 2 was LEE: Is that in place of “qualified voters”? deferred. The rest of it is all under consideration in proper CHAIRMAN: Yes, Delegate Lee. order. FUKUSHIMA: I think we’re wasting a lot of time on CHAIRMAN: I think the question raised by Delegate style alone. That doesn’t go to the substance. We all know Bryan is correct. We were not taking said Section 2 by in this Committee of the Whole that “people” means “voters.” paragraphs. There has been no formal action on the first If the Committee on Style wants to change it to “electorate” paragraph. The only amendment made was to the second sentence of paragraph one, Section 2, and so the amendment or “voters,” let them do it. We’re just wasting a lot of moved by Delegate Kellerman, is in order without the time. necessity of reconsideration. KELLERMAN: May I ask a question? Just what is the language of the proposed amendment now? TAVARES: We amended a sentence of the first para graph - - CHAIRMAN: As the Chair understands it, Delegate CHAIRMAN: Second sentence. Kellerman, the first sentence will read as follows: TAVARES: Of the first paragraph. The legislature may submit to the electorate at any general or special election the question, “Shall there be CHAIRMAN: Yes, but not the first sentence of the a convention to propose a revision of or amendment to second paragraph. the Constitution.” FUKUSHIMA: I believe I suggested at the very beginning KELLERMAN: I will accept that amendment to my amend this morning that we take it paragraph by paragraph, and I ment but it’s been called to my attention that in my language believe the first paragraph was approved as amended. We that I suggested, that “any general or special election,” that can certainly come back and take the whole section at one I am indirectly authorizing a special election for the purpose time, but I think we are confusing the thing. Delegate Keller- of presenting the question. That was what I was trying to man could have amended the first sentence when we took get away from in the use of the language “at any time.” I up the first paragraph. We’ll go along for anything that will therefore would like to change my amendment to read just speed up this matter. I think we are just confusing it by “at any general election.” bringing up points of order. CHAIRMAN: You’ll have to ask for reconsideration. A KELLERMAN: I offered, if the Convention preferred, vote has been taken on your first amendment. to take up the proposed amendment after having gone through the entire section. That’s perfectly acceptable to LEE: I think if Delegate Kellerman would wait until we me. My question was whether to bring it up now or bring act on the amendment proposed and seconded by Delegate it up at the end. Shimamura, then we can take it up. You’ll have two amend ments on the same sentence to be voted on. FUKUSHIMA: A motion to reconsider has been put and seconded. We should reconsider it without any other inter CHAIRMAN: The first amendment moved by Delegate ruptions. Kellerman has been voted on favorably already. 756 REVISION AND AMENDMENTS TAVARES: We are running into the pilikia we find when FUKUSHIMA: Maybe that’s why we need the initiative we try to take a matter up piece-meal without reading the here. rest of the section. Now this section was provided with very great care to provide for both special and general elec CHAIRMAN: What is your pleasure as to paragraph number four of this Section 2? tions. If the delegates will read further down, they will find that we have a different proportionate vote, or different LOPER: I move for the adoption of paragraph four. kind of a vote for a special election than for a general one, APOLIONA: Second. which is designed to discourage special elections. Now, without taking up that section, we are going to indirectly CHAIRMAN: Delegate Apoliona seconded the motion. knock it out. I think it’s dangerous to take it up that way. Let’s wait till we get there, and then decide whether we BRYAN: I wonder if that motion is in order. Since we want to eliminate special elections entirely. moved the adoption of this section In order to discuss it, can’t we move on to paragraph five, and move the adoption WIRTZ: I move for a five-minute recess, so the boys of the whole section? That’s the way we have been doing. can get together. Isn’t that correct? CHAIRMAN: Five-minute recess. CHAIRMAN: That is correct. BRYAN: I would ask the delegate to withdraw his motion. (RECESS) CHAIRMAN: Would you be willing to withdraw that motion? Delegate Loper, would you be willing? CHAIRMAN: Now that you had the opportunity of confer ring with each other, the Chair would appreciate it very LOPER: I’m willing, but I don’t understand the reason. much if someone would state In a compendious manner, the problem before the assembly. The amendment before ROBERTS: May I suggest that in other articles that we the assembly is, the word “people” be deleted and in lieu take up, as In this section that has a number of paragraphs, thereof, the word “electorate” be inserted. that as we move from the first to the last paragraph and make amendments, that we tentatively agree to those para DELEGATE: Question. graphs without adopting them, and then when we complete all the paragraphs, then we act on the entire section. It CHAIRMAN: Are you all ready for the question? All seems to me that there’s no need to adopt each paragraph those in favor of that amendment please signify by saying separately if we understand that we tentatively agree to “aye.” Contrary minded say “no.” The ayes have it. them until we’ve gone through all of the paragraphs in each FUKUSHIMA: Shall we proceed with paragraph four? of the sections. I think if we follow that procedure, then we can move along pretty easily. CHAIRMAN: We shall now proceed with paragraph four. CHAIRMAN: The Chair felt that the procedure was LOPER: I’d like to ask a member of the committee slightly changed in discussing this Proposal No. 9 in view whether this next paragraph is necessary in view of the last of the fact that Delegate Porteus made the suggestion to the paragraph of this Section 2, which reads: “The provisions effect that the amendment to this Proposal No. 9 was to be of this section shall be sell-executing, but the legislature considered after having adopted the whole Proposal No. 9. shall appropriate money and may enact legislation to faci litate its operation.” My question, to repeat, is this, is the LOPER: In order to get this matter rolling, and in view reason for paragraph four to make it truly self-executing? of the fact that there is no amendment offered to paragraph Is there danger that it might not be so without paragraph four, I would like to withdraw my motion to adopt paragraph four? four and move that we tentatively agree to paragraph four. FUKUSHIMA: I’ll attempt to answer the question. We ROBERTS: Second that. included paragraph four to be sure that if a convention is called by the people, and if the legislature fails to act, then CHAIRMAN: All those in favor of that motion please we will have at least something to go by. We have certainly signify by saying “aye.” Contrary minded say “no.” in the last paragraph stated that the provisions of this section Carried. shall be self-executing. However, if the legislature fails to HEEN: While it is the understanding that this agreement do anything, and fails to provide what sort of a convention is only tentative, I think we ought to have some discussion we will have, what sort of - - how the delegates are to be on that paragraph four. I don’t like to see in any constitution elected, that in the absence of that, we will have Act 334 of a sovereign state that any reference should be made to a to go by. That’s the reason why that’s included, I believe. statute of the territory, any session laws, statutes contained HOLROYDE: I’d like to ask the chairman of the commit In the session laws of the Territory of Hawaii. Some other tee. I note in that paragraph that he just read, “the legis more general language might be employed in that particular lature shall appropriate the money.” So that if the legisla paragraph. ture refuses to act at all, as seems to be the reason for this previous section, where’s the money going to come FUKUSHIMA: As far as the chairman of the committee from to have the election anyway? is concerned, and the committee itseif, I believe we will not object to any other language being placed in there, but FUKUSHIMA: There you have in your last paragraph, we felt there should be something specific; and in order to “Provisions of this section shall be sell-executing, but the be specific, unless we referred to some specific act, we legislature shall appropriate money and may enact legisla may have to draw an entire set of rules which will make the tion to facilitate its operation.” The legislature is mandated Constitution longer than we want to. I believe Mr. Tavares to put up the money for the convention. That’s sell-executing. has an adequate argument for specifying Act 334 in the pro posal. That was, I believe, his idea. ANTHONY: That’s not an adequate answer of the question. You may mandate the legislature, but how are you going to SHIMAMURA: I think the chairman of the committee is make them dish out the money? That’s the question. The correct on that. Otherwise, you’ll be having a very lengthy answer is you can’t do it. provision. JUNE 15, 1950 • Afternoon Session 757 ANTHONY: The objection is referring to session lawä might be preferable to say that “Unless the legislature shall in the Constitution, and the purpose, of course, of referring provide otherwise, the delegates to such convention shall to session laws was to get certainty. Now, we can get the consist of the same number as the number of representatives same certainty without referring to the session laws by and senators in the State legislature and shall be elected in a simply referring to the Convention that is ordaining and similar manner.” adopting this Constitution. I think if the committee will take that under consideration and bring us back a revision of ROBERTS: We discussed that problem, but since that this section, the language can be found that will accomplish question is going to be a pretty difficult one when we get to their purpose, namely, have certainty as to the delegation, it, we just thought it would be better if we held off on the and not refer to any session laws in here. question of reapportionment at this stage. PORTEUS: Do I understand that the idea is that they can LEE: I second the motion made by Delegate Loper. have the same certainty without any change really in substance? KING: I didn’t hear Delegate Loper make if as a motion, If so, then Style Committee can handle it. Let’s leave it to but if he has offered it as a motion, I’m perfectly willing to Style if we agree that there is no change in substance. accept it in order to combine the two into one motion, if WOOLAWAY: In light of this confusion, I would appreciate Delegate Loper will restate the language. very much if Delegate St. Sure from Maul will escort the LOPER: I move for an amendment, that, “The delegates Honorable Senator Ansai from Maui to the rostrum. to such convention shall consist of a number equal to the representatives and senators in the State legislature and KING: There have been several suggestions from the shall be elected in a similar manner.” floor, but no one has made a motion that the Committee of the Whole can act on. The last suggestion was that the FUKUSHIMA: If you want the 76 delegate convention, Committee on Style might change the language. Well, I k’s perfectly all right with the committee. think if would be in order to make some suggestions that TAVARES: There’s one other thing. Does that eliminate the Commktee on Style could act on. I would suggest for the provision, “Unless the legislature shall otherwise pro the commktee report, rather than as an amendment at this vide”? time, that the language, “as specified by Act 334 of the Session Laws of Hawaii, 1949,” be expressed in terms of CHAIRMAN: That is retained. this existing Convention; in other words, “as nearly as practicable, in accordance with the organization of the TAVARES: I see. Constitutional Convention of Hawaii of 1950.” That seems CHAIRMAN: Now, Delegate King, did you accept that to fit. That can be made as an amendment or could be amendment which was to be offered by Delegate Loper? adopted as instructions to the Committee on Style, whichever the Committee of the Whole desires. KING: Yes, but I would like the whole paragraph reread, so that we’ll all understand just what if is. As I understand HEEN: Whatever is done in amending this particular if, if cuts out any reference to the Constifutional Convention paragraph will have to be done very carefully, because if then. May the Clerk read the whole paragraph, Mr. Chair Oahu is going to be divided into nine districts where they man? have now only two representative districts, what are you going to do about electing delegates-at-large? How many CHAIRMAN: Will the Clerk read the - - to run at large and how many from combination precincts CLERK: and so on down the line? How are you going to apply that law which created this Constitutional Convention? It would Unless the legislature shall otherwise provide, the be very difficult to handle. delegates to such convention shall consist of the same number and be elected from the same areas, as nearly KING: If I may answer that query. The first clause an as practicable, as the Constitutional Convention of Hawaii swers that, “unless the legislature shall otherwise provide.” of 1950. The matter is open to the legislature in any case. We’re CHAIRMAN: No, there was a subsequent amendment. arguing about something that doesn’t really amount to a great deal, except that I do agree where the statement was CLERK: Oh, then Delegate Loper’s amendment was: made that no reference should be made to a specific act of the legislature of the Territory of Hawaii. But if says “un Unless the legislature shall provide otherwise, the less the legislature shall. . . provide, the delegates to such delegates to such convention shall consist of the same convention shall consist of the same number, and be elected number as the number of representatives and senators in from the same area, as nearly as practicable, as the Con the State legislature and shall be elected in a similar stitutional Convention of Hawaii of 1950.” manner. CHAIRMAN: Is that a motion, Delegate King? KING: The language should be “shall otherwise provide” instead of “otherwise shall provide.” I withdraw my motion KING: Well, several of the delegates have suggested it to give precedence to Delegate Loper’s motion and second be a motion, so I do move that the last phrase of this para his motion. graph be changed to read—I can’t get the exact words to tie CHAIRMAN: Just a moment, please. it in, but—”Unless the legislature shall otherwise provide, the delegates to such convention shall consist of the same KING: I feel that language is better. number and be elected from the same area, as nearly as practicable, as the Constitutional Convention of Hawaii of CHAIRMAN: But you would like to retain the expression 1950. “as the Constifutional Convention of Hawaii of 1950”? CHAIRMAN: You ready for the question? KING: No, I believe that the language offered by Delegate KAM: I second that motion. Loper is even better than that, and the reference then will be based on the organization of the legislature of the State CHAIRMAN: All those in favor of the motion please - - of Hawaii. LOPER: I have a suggestion, and I don’t know, perhaps KELLERMAN: May I ask a question? “And shall be it should be an amendment to the amendment just made. It elected in the same manner,” if seems to me would mean 758 REVISION AND AMENDMENTS a bipartisan election. It would mean a political election sub-committee of five, to bring an amended paragraph to with primaries and general election with delegates running take the place of section - - paragraph four. from - - representing Democratic and Republican parties. It seems to me that that is not what we would wantfor the CHAIRMAN: Is that a motion? next constitutional convention, and perhaps that language J. TRASK: Point of order, there is nothing on the floor should be “from the same areas” or some such language at present. We’ve already deferred the matter. as is used in the existing paragraph, but not “elected in the same manner.” CHAIRMAN: Yes, but the point was not too clear what it was to be - - ANTHONY: I move we defer this section. Let the com mittee work on this and bring us back a new draft. J. TRASK: Well, a proper motion was to reconsider the action. CASTRO: Second the motion. CHAIRMAN: No, the motion to defer carried with it HE EN: I think the matter should be deferred so that the direction that it be referred to a committee. The mover technicians can work on it. of the motion explained that by saying that he intended the same to go to the committee which proposed this Committee CHAIRMAN: Who seconded that motion to defer? Proposal No. 9. Question has been - - Issue has been CASTRO: I did. In seconding that, I might point out that taken by the chairman of this particular committee. The the proposed amendment completely changes the sense of the Chair feels that a specific motion clarifying that would be paragraph as brought in by this committee with unanimous in order. consent, with unanimous agreement. The thought of the TAVARES: I think the proper thing to do is to simply committee was to pattern the representation of the consti take the sense of this Convention. Now on the point - - and tutional convention upon the pattern set down very success there are some of us who will volunteer to draw the amend fully by this Convention, and patterning after whatever the ment, but not as a committee. I don’t think this group State legislature may develop into is not our idea. So in should instruct our committee, which came out with the deferring this thing, I’d like to remind those who are working unanimous report, to do something it didn’t want to do. If on this draft, that the unanimous agreement of the committee some of us want to volunteer to help somebody else draw was that we should pattern the representation in future an amendment, even if we don’t agree with it, that’s all constitutional conventions after this present Convention, and right. If we can have the sense of this Convention so we’re reference to whatever State legislature you set up is going not doing a useless act, and if that’s what the Convention to defeat that idea. wants, it wants to put in this idea, I think we should take a KING: That might be very true, but nonetheless, the vote on it and then there’ll be some of us willing to volun opening clause controls the whole paragraph. “Unless the teer to put it into language. Now I therefore move to re legislature shall otherwise provide,” which leaves it wide consider our action to defer for the purpose of taking that open. The committee may want to have tied it down a little concensus so we’ll know where we’re going. bit, but the opening paragraph left the door wide open. HOLROYDE: Second the motion. CHAIRMAN: Are you all - - CHAIRMAN: Who seconded that motion? KING: I am completely in favor of deferring action CLERK: Holroyde. until the committee may have an opportunity to bring in new LARSEN: Second the motion. language following the sense of this committee discussion. CHAIRMAN: It was duly seconded. CHAIRMAN: All those in favor of the motion to defer action on paragraph four of this Section 2, will please PORTEUS: Has the motion to reconsider been put? signify by saying “aye.” Contrary minded say “no.” CHAIRMAN: It will be put unless you have - - All those The ayes have it. Paragraph four is deferred to the com in favor of the motion to reconsider action taken on this mittee for improvement in language. paragraph four will please signify by saying “aye.” Con FUKUSHIMA: Is my understanding this, that this has trary minded say “nay.” Carried by two-thirds. been deferred so that the committee, which committee do you mean, this committee here sitting as a whole or the KING: If the paragraph is still before the Convention, I Committee on Revision and Amendments? move now that we merely defer action on it. I quite agree it should not be returned to the Committee on Amendments CHAIRMAN: Will the mover of the motion clarify that? and Revision. That’s practically shelving it, but the point is that it needs to be redrawn. We simply defer action on ANTHONY: I intended to have the standing committee it, and proceed to the next paragraph. Is that correct? that brought in this proposal. That was my intention. CHAIRMAN: The Chair has so understood. TAVARES: No, my idea was in order - - to enable those of us who want to draw an amendment to know what this FUKUSHIMA: As far as the committee is concerned, we Convention wants, we ought to take a concensus, an informal feel that this is the language. The Committee of the Whole vote to see whether a majority of this Convention prefers wants to change it, they can properly amend it. The lan the distribution of this Convention or prefers the distribu guage is clear enough; the substance is clear enough; the tion of the total of the members of the legislature appointed. intent is clear enough. If they want something else, let the Then when we know that point, we’ll know what kind of an Committee of the Whole do it. They have proper machinery amendment to draw. I move, therefore, that it is the con for it. census of this Convention that we adopt the Convention CHAIRMAN: I think since the question has been specifical pattern, just for the sake of bringing this to a head. ly raised by the chairman of the Committee on Revision, Amendments, etc., there should be a specific motion with CHAIRMAN: When you say “Convention pattern” do you reference to this deferment. mean the Constitutional Convention of 1950? TAVARES: Yes. That’s to bring it to a head. H. RICE: I should recommend that the chairman of the Committee of the Whole appoint a committee of five, a WIRTZ: I second the motion. JUNE 15, 1950 • Afternoon Session 759 HEEN: I move an amendment to that. I move that it’s NIELSEN: I think that first part of the sentence, “Unless the sense of this Convention that the number of delegates the legislature shall otherwise provide,” will take care of to the convention shall be the same number as the number anything like that. of senators and representatives in the State legislature, and that the candidates for election to the convention shall run CHAIRMAN: Are you all ready to vote on the amendment? on a nonpartisan ticket - - a nonpartisan ballot. The amendment is to the motion made by Delegate Tavares. All those in favor of the amendment will signify by saying CHAIRMAN: Is there a second to that amendment? “aye.” Contrary minded say “no.” The noes have it. Then we shall come back to the original motion that was APOLIONA: I’m not going to second that motion. I don’t made by Delegate Tavares. The motion in substance is that think it’s fair to the outside islands, when Oahu has about the concensus of this committee Is that we adopt the Consti 33 members of the House and the outside islands only have tutional Convention of 1950 pattern. You ready for the ques a lesser number. I think it should follow the pattern of this tion? present Constitutional Convention of Hawaii of 1950~ Let it stand as such. Mahalo. DELEGATES: Question. DELEGATES: Question. CHAIRMAN: All those in favor of that motion please signify by saying “aye.” Contrary minded say “no.” CHAIRMAN: There is no second to that amendment pro Carried. Ayes have it. posed by Delegate Heen. There is only one motion before the assembly and that is the motion to defer action on para FUKUSHIMA: Shall we now proceed to the filth paragraph? graph four. You ready for the question? Filth paragraph reads - - ANTHONY: I second Delegate Heen’s motion. CHAIRMAN: Before we proceed, the Chair should like to clarify this point. Now that we have acted upon the CASTRO: As long as there has been a second, may I motion made by Delegate Tavares, is the matter to be left state that this is very unfair to ask that the delegates vote with the Style Committee? upon this thing when we do not really know what this Con vention will decide is the representation in the legislature. TAVARES: I move to defer action now on Section 4 SO Now I believe that the number of representatives from Oahu that we can - - on paragraph four so that we can, If possible, in comparison with the total number is the thing that sepa try to devise a more acceptable wording to the Convention. rates the two patterns, and I don’t see how we can intelligent ly vote on this particular pattern until we know exactly what CHAIRMAN: Is there a second to that motion? the make-up of the legislature is going to be. LOPER: Second the motion. ANTHONY: I think possibly the delegate that last spoke CHAIRMAN: Seconded by Dr. Loper, Delegate Loper. has overlooked the fact that in any legislature, Oahu, for Are you all ready for the question to defer action on para instance, will have the majority of both houses, and - - I graph four? All those in favor of that motion, signify by mean of the two; they would have the majority of the human saying “aye.” Contrary minded say “no.” Carried. The beings that are in the Senate and the House of Representa ayes have it. Action of paragraph four is deferred. tives. So one delegate, whether he’s elected from a sena We shall proceed with paragraph five. torial district or not, would have the same vote as any other delegate. Therefore in any future convention, Oahu FUKUSHIMA: Paragraph five reads, would have the control. The Convention shall determine its own organization and rules of procedure. It shall be the sole judge of the BRYAN: I think that this Convention has hit a new high qualifications of its members and, by a two-thirds vote, in going low on its subject today. I really do, and I think may suspend or remove any member for cause. it’s time we got down to work. Now if the delegate from the fourth district wants to question whether it’s wise to SHIMAMURA: I wish to move to amend paragraph five by have the representation in the convention on the basis of the inserting after the words “the sole judge of the,” the words legislature, vote against the amendment, but for gosh sakes, “elections, returns and,” so that it shall read - - that clause let’s vote on something and get going. shall read, “It shall be the sole judge of the elections, re turns and qualifications of its members.” That is the same CASTRO: I’m speaking against the amendment. expression used in the Federal Constitution and in practical CHAIRMAN: Just a moment, the Chair doesn’t recall ly all state constitutions and it has been judicially construed. whether there was a second to that amendment made by - - MAU: I second for the purposes of discussion. CASTRO: There was a second by Delegate Anthony. The FUKUSHIMA: If we include the word “election,” we will point I’m trying to make is that we have in our minds two be determining something before the Convention is even different patterns of representation at the constitutional convened. I don’t see how we can do it. I think all election convention. One is definite as is borne out by the 63 delegates results should be provided by the legislature or by the in their representation here. The other is indefinite and supreme court, whichever way we decided on the proposal not known, and I say that I feel that the amendment should on committee - - as put out by the Committee on Suffrage be defeated because it is unfair to ask us to pass upon a and Elections. representation pattern that we have not yet arrived at. CHAIRMAN: Was there a second to that amendment? LOPER: I’m speaking to the amendment and questioning the remarks of the previous speaker when he refers to the FUKUSHIMA: Yes. Convention pattern as being definite. If you tie it up with CLERK: Yes, Delegate Mau. Act 334 or the Constitutional Convention of Hawaii of 1950, and then come up with a new set of precincts, reapportion TAVARES: Again I should like to point out that I think ment, a different combination, how can you apply the 1950 this will, by implication, affect the article we have already - - 1949 law to those new precincts? It was for that reason approved on suffrage and elections which says that “Contested that I thought that it might be well to tie it to the legislature elections shall be determined by a court of competent juris of the new State. diction as provided by law.” It seems to me that the main 760 REVISION AND AMENDMENTS trouble will be taken care of by the language as the provi the houses to be on the basis of a population as indicated by sion now stands. means of registered votes; the other to be on the basis of a combination of geographical and political subdivisions, CHAIRMAN: Are you ready to vote on the amendment? more or less patterned after our present existing Senate, All those in favor of the amendment please signify by say keeping insofar as possible the same ratio and proportion. ing “aye.” Contrary minded. Noes have it. Now the idea of having the two bases of reapportionment is ROBERTS: I move we tentatively agree on paragraph to provide a truly bicameral legislature with balances five. and checks. The Senate is designed so that no county, no one county or no one senatorial district has control over LOPER: I second the motion. that house; whereas, based upon population, obviously, in CHAIRMAN: Are you ready for the question? All those the House of Representatives the control will be at present in favor of that motion please signify by saying “aye.” in the County of Oahu. Now in order - - if we believe that Contrary minded say “no.” Carried. this is a fair basis of reapportionment, and if we believe in a true bicameral legislature with proper checks and FUKUSHIMA: Paragraph six reads: balances, I believe that this proviso is essential, because The convention shall provide for the time and manner without it the whole work of this Convention in adopting in which the proposed constitutional provisions shall be that basis of reapportionment can be destroyed in one amend submitted to a vote of the electors of the state, but no ment. such proposal shall be effective unless approved (a) at a I want to point out that this ratification procedure that general election, by a majority of all of the votes tallied applies to this section is the same procedure that is incor upon the question, constituting at least 35 per cent of the porated by reference for all constitutional amendments that total votes cast at such election, or (b) at a special elec are introduced in the legislature and submitted to referen tion, by a majority of the total votes tallied upon such dum of the people. And it seems to me that to avoid the question, constituting at least 35 per cent of the total problem of getting in actuality a unicameral legislature number of registered voters; provided, that no consti with two houses, and by that I mean two houses based upon tutional provision altering this proviso or the representa the same principle of representation, we have to put in this tion from any senatorial district in the senate shall be proviso so that—and this refers only to senatorial repre come effective, unless it shall also be approved by a sentation—it requires a majority of the counties whose rep majority of the votes tallied upon the question in each of a resentation is being affected to approve of such amendment. majority of the counties. TAVARES: Although I am a delegate from Oahu, I agree I’d like to call the Chair’s attention that this proviso was the with the delegate from Maui. I have sensed, I believe, a one that did not meet with unanimous approval, and Delegate feeling in this Convention that some amount of geographical Ohrt and Delegate Fong signed a non-concurrence proviso. representation for the outer counties is proper in the Senate and popular representation is desirable in the House. Now WIRTZ: I move that the - - Is this carried by general we’ve got to remember that the last census, contrary to motion on the section or do we have to move on each para what our reports - - one of our reports said on initiative graph? and referendum, instead of 65 per cent, Oahu now has 70 per cent of all of the people in this territory, a condition CHAIRMAN: I presume the former. that does not exist in any other state of the Union. Now if LEE: Let’s get some action here. I move that we delete the principle of apportionment geographically in one house the proviso at the end of the paragraph. and according to population in the other is sound, unless you put in a stop like this, you are allowing the next consti AKAU: I second the motion. tutional convention, which will be controlled entirely by FUKUSHIMA: To bring this back to order, I shall now Oahu, to propose, and the people of Oahu almost by their move that the sixth paragraph be adopted as read. own vote alone, to vote out that type of representation entire ly from the Constitution. Now if the principle is sound, I WIRTZ: I’ll second the motion. That’s why I asked the think it’s worth keeping, and I believe that in fairness and by Chair whether this was covered by the general motion to way of reassur.ance to the outer counties that they are going adopt Section 2, which was seconded. to get fair treatment in the future, this is not an unjust and CHAIRMAN: I thought each paragraph would tentative improper provision. I therefore hope that it will be sustained ly be agreed upon until we went through the entire section. and that it will not be removed from this proviso. WIRTZ: Well, the only thing we’re trying to do is to get HEEN: That is exactly the situation that exists now. The this in order for discussion on the floor. What is the ruling delegation from Oahu has the majority of the membership in of the Chair? Is it necessary to have a separate motion for this present Convention, and they have been dealing with this each paragraph and second it before it can be discussed? question on that basis. Or is that covered by the general motion to adopt the entire HOLROYDE: Another point that I have in question on section, which I understood the Chair so indicated a minute voting on this at the present time, until we know how many ago. senators and what the district is going to be, how can we intelligently vote whether to keep that forevermore or not? CHAIRMAN: That is the understanding the Chair has, and all action taken would be tentative until the entire section ANTHONY: I agree with the last speaker. This is a pig is fully discussed. in the poke until we know what the redistricting is going to WIRTZ: I believe there is now a motion that has been be. However, on the general proposition, the Oahu delegates, seconded to amend this paragraph by deleting the last proviso as Senator Heen has said, have the majority vote in this therefrom. Convention, and I think that members of the - - delegates from the neighboring islands, before we get finished, will CHAIRMAN: That is correct. realize that we from Oahu want to be fair. I, for one, am WIRTZ: The concensus, as I gather, of this Convention in favor of recognizing the outside islands in the Senate, but and of the Legislative Committee is that we should have two I see no reason for binding in perpetuity future conventions. bases of representation in a bicameral legislature, one of I think that they should be satisfied that their fellow delegates JUNE 15, 1950 • Afternoon Session 761 in the future will be just as fair as we’re going to be here. the reason for this, approaching it this way. There was no Now I for one am going to vote in favor of a control of the contention on my part that Maui or any other counties were Senate in the outside islands because I think that’s a good in the position of sovereignty. balance, but I see no reason for freezing that thing once it LEE: I have a lot of respect for the opinions of the is accomplished in the Constitution. learned judge from Maui. I’d like to ask him this question, TAVARES: Something has been made about how fair we though. The reason I made the motion to delete this is be are being at this Convention. I would like to remind the cause there was a feeling on my part—and I may be corrected, delegates that in order to get this bill through our legislature, in which case I may withdraw the motion—the only thing is, which I attended not as a legislator, but as a very interested isn’t what you are trying to do in this proviso is to mnke a observer and lobbyist, I received a very distinct impression compact between Oahu and the outside islands, is that it, that in order to get Act 334 through, definite statements the neighbor islands? were made by the members from Oahu that if Oahu was given control of this Convention as provided in that act, the outer WIRTZ: In substance, yes. islands would be treated fairly. That assurance was given, LEE: Because I don’t see how this Convention can bind and I think it should be lived up to. any future constitutional convention, and that’s my whole Furthermore, we must remember we haven’t become question on this matter. Even if we agree with you in the a state yet, and the outer islands could kick up quite a fuss principle, there shouldn’t be any changes. When there is with Congress if they thought they were not being fairly the next constitutional convention, what is there to prevent treated. We are not going to have that stop or that protec that convention from modifying this, from deleting this tion in the future. From what I observed of some of the clause? people who think it’s politically popular to appeal to the voters of Oahu on the question of giving Oahu control of WIRTZ: I might answer that question. I’ll invite the both houses, I’m pretty sure that it’s going to be a very speaker to examine the proviso. It says, “provided, that burning issue in the future elections, and that the people no constitutional provision altering this proviso, or the for the time can be inflamed over some trivial incident representation of any senatorial district. . . shall become where Oahu may not have gotten quite what they con effective,” unless it’s passed by a majority of the votes of a sidered a fair brenk, to the point they will be quite willing majority of the counties. Now that does have that affect, to be unfair to the outer islands on the principle of geograph Mr. Lee. ic distribution. I want to say one more thing. The very fact that we on CHAIRMAN: The Chair will now recognize Delegate Mau. Oahu here are willing now, in this new Constitution, to give MAU: Part of the argument made by those who agree, the outer islands in the Constitution control of the Senate, even tentatively, to give control of one of the houses, as shows a certain amount of distrust, if that’s what we’re suming we have a bicameral legislature, and also to support going to call it. In other words, instead of leaving it to the this provision as being fair and sound, I think that their legislature to reapportion, which will be controlled even in arguments are unsound. If they want to have a truly repre one house only by the Oahu delegation, we are saying in the sentative government, if they want to follow representative Constitution that until it’s amended by the Constitution, Oahu government based upon population, there’s no question but shall not have control of one house. I say that if that prin that both houses and this proviso - - both houses should be ciple is sound, it should be continued. controlled by Oahu and this proviso should go out. But if, ANTHONY: The statement of the last spenker is a mathe on the other hand, they argue that if we want this Constitu matical demonstration of the error of his position. He says tion to be supported by members of the legislature from the that we on Oahu say that we are going to be fair. The very outside islands, if they argue that they want the people from fact that we are saying we’re going to be fair shows that the outside islands, the neighbor islands, to support the we are distrusting the outside islands in the legislature, a Constitution which we will send to the people for ratification, complete non-sequitur. if they argue that from a matter of tradition, not soundness, not representative government, not fairness, but from tra WIRTZ: Apparently some of the delegates feel that this dition, then it’s a different thing. proposition of freezing representation in one house is some I am willing, of course, to support the proposition that thing new. It isn’t, and the Senate representation in the one of the houses should be controlled by the neighbor is United States Congress is so frozen. It was done because lands in the way of representation. Otherwise, you will at the time that the United States government was formed have a turmoil here, we’ll never get home, and we will the 13 original states were sovereign states, and it became never get past the legislature. I would like to move now a compact between the states. We are not in a position to that the neighbor islands secede. enter into a compact. However, this principle of reappor tionment on two different bases has been recognized, and I NIELSEN: I’ll second that motion. believe if the concensus of this Convention is that it is fair, CHAIRMAN: Delegate Mau, will you clearly state your this amendment does do no harm - - I mean this proviso motion? does do no harm. On the other hand, if we don’t agree in this matter of reapportionment, then this proviso has no MAU: I withdraw my motion. place in this section. NEILSEN: I’ll withdraw my second. ANTHONY: The argument, the analogy of sovereignty, has nothing to do with the question. The County of Maui ROBERTS: I’d like to speak to the merits of the ques is not a sovereignty, but the original 13 states were tion. It seems to me that the purpose of writing a Consti tution has been pretty clearly stated in our discussions. U sovereign. Now I think the members from the outside is we write something in the Constitution now which says lands ought to be satisfield if we leave this Convention and that from here on in we can never change, under any cir we give control of the Senate to the outside islands. And they ought to be satisfied that the future revision of this cumstances, certain provisions of the Constitution, it seems State Constitution will likewise be fair. to me we are not permitting changes when changes are needed. Now I think that the Bill of Rights one of the most WIRTZ: I rise to a point of personal privilege. I did not important things in the Constitution. But I didn’t stick a say that we were in the position of sovereignty, and that is proviso in there saying that there can be no amendment to the 762 REVISION AND AMENDMENTS Constitution with regard to certain articles in it. It might islands straight. It seems to me that a counteracting influence be a good idea, but it seems to me that you have to make of checks and balances ought to be maintained, and that we provision for changes in the Constitution. This proviso says ought to give at least moral assurance in this Constitution you can change everything in the Constitution except a pro that we intend to maintain it. vision dealing with certain procedures with regard to amend ments on percentages and with regard to representation in the ANTHONY: I agree with everything the delegate has said in regard to the morality of the present proposition. I agree Senate. It seems to me that every provision in the Consti that we ought to have representation of the outer islands in tution is subject to change at such time when change is found necessary. Therefore, I believe we ought not to include any the Senate. They would have control. I do not agree that limitation in the Constitution which would deny change later we can sit here in our present wisdom to see in perpetuity on. that there should never be a time in which that situation Now I’m in complete sympathy with the problem of re should be changed. Jefferson said a good many years ago, apportionment. It certainly isn’t my intention, when I sug “A revolution every twenty years is a good thing,” and that’s gest its deletion, that we deny adequate representation to still good political philosophy. the outside islands. I think we should, and I think we will. Now what we’re trying - - what we’re talking about here But we can’t bind ourselves and the future down on any sub is not a question of policy, not a question of good faith. We sequent constitutional changes. Thank you. expect to settle that question of policy, we expect to exhibit our good faith to our friends in the counties by giving them the majority in the Senate, but I do not think that we should TAVARES: There is a great deal of force to what the be thereupon called to - - called upon to freeze in this Consti last speaker just said. In the ultimate, we may not be tution in perpetuity that control in the outside islands in the able to prevent a Convention from forcing its will on the Senate, and that’s what this is going to do. If it were only outer islands. That is possible. However, it seemed to a matter of policy, only a matter of morality, I’d agree with me that a reassuring provision like that, at least pointing it, but this is a matter of legal power, and we will get into the way to a policy adopted at the outset, amounting to a the same morass that the State of Illinois is in. Those fellows moral assurance to the outer islands that they would always there can’t even amend their Constitution by reason of a have representation, a control in one house, would be the phony provision in the section relating to amendments. kind of thing that would reassure the voters enough so that when a constitutional convention is voted on, or when other NIELSEN: I want to say that this Constitutional Conven provisions come up, they will be more willing to vote for tion would not be in session if It wasn’t due to the lobbying such a convention. I think it must be remembered, and of and assurance of the people of Oahu that the outside islands course we realize that too, that not always, maybe not would be well taken care of, because we had the vote in necessarily will all the people of any one county vote the both the House and the Senate when the Constitutional Act same way. To some extent that is a protection. But if they 334 was drawn, and it was with the confidence that Oahu want an amendment to the Constitution and they don’t have would treat the outside islands properly. If we delete this an overwhelming majority on Oahu, your outer island provision, then we will be losing the confidence that we people are going to feel a lot more comfortable about voting placed in Oahu. I, therefore, am going to vote against this for a constitutional convention if they feel that there is at amendment. least a moral obligation, a moral assurance, that those WIRTZ: I just want to say one more word and that is to delegates will come to that convention without the idea of dispel this erroneous impression of freezing anything into changing that reapportionment unless a majority of the perpetuity or preventing us from ever amending our Consti counties approve. I think you will facilitate getting your tution. This proviso specifically refers only to one phase, constitutional conventions voted for, or amendments that and that is senatorial representation. And I’d like to point come very close to the situation being authorized if you give out further it is not an absolute freeze. It requires, In that assurance to the outer islands. addition to the other restrictions that have been imposed One more thing, I think that the outer - - the islands of for the passage of any amendment, on this particular one this territory are the nearest analogy to the relationship question, it has an additional restriction but not an im between the states that there is in this whole country. We possibility like Illinois, as the delegate from the fourth have here counties that are separated by many, many miles district stated. It requires a majority vote in a majority of water. There is a county consciousness in this territory of the counties. and a difference, it seems to me, in needs and requirements BRYAN: There are two things I’d like to point out with and conditions that is not found, in my opinion, in any other respect to this last sentence. One is, we don’t know how state. There is much more ground for having two houses of happy the territory is going to be with a Senate that may be the legislature in this territory than in any state of the provided by this Constitution. The second is, they refer to Union, in my humble opinion. The people on Oahu who are counties. We don’t know how many counties there may be essentially anurhan community, have very, very different ten years from now. At the present moment, with four problems from those on the outer islands, and they are so counties, it means that a majority would be 75 per cent overshadowing to them that they are likely to overlook the rather than 51 per cent. And I think that, as was expressed needs of the outer islands, unless they have control of one by the delegate from the fourth, we are buying a pig in a house where they can bring that to the attention of the legis poke when we take this. Now I would like to ask Delegate lature and get adequate consideration. I submit that the Tavares if this is actually as it is written, in his opinion history of this territory has shown that the influence of the no more than a moral obligation. If that’s all it expresses, outer islands has been beneficial upon Oahu. There have I might go along with It, but if it is legally binding forever been a number of times when, because they were far away more, there is a serious question in my mind. and could look at the matter objectively, they have voted reforms or voted against provisions which the people of Oahu TAVARES: The reason I said that was to be Intellectual at the time, because they were too close to the problem, ly honest. Before our committee, we had a witness who is could not see as objectively, and in so doing, have been writing a thesis in the University of Hawaii on constitutional a healthy influence on Oahu and vice versa. Oahu at times amendments, and he pointed out to us a number of situations has been able to see objectively some of the problems of the where, in spite of constitutional provisions like this, they outer islands, and with its - - even though it doesn’t control had been disregarded and somehow or other the courts had with its large delegation here, has helped keep the outer refused to alter the result. His argument was that you JUNE 15, 1950 • Afternoon Session 763 can’t tie down the people if they want to kick over the traces Furthermore, in one of the paragraphs that we considered anyhow. We still felt that up to a certain point, the courts earlier today, I believe it was voted to pattern the new con might enforce this, and certainly we would be in a position, ventions for revision of the Constitution after this particular those of us who were for it, of arguing with the electorate Convention unless the legislature should provide otherwise. and with the delegates that this provision should not be And that legislature, as it has been indicated, would have violated. But I wanted to be honest in saying moral obliga one house controlled by the other islands. I don’t think we tion, because that witness had pointed out that provisions need to try to pin down the constitutional conventions of 10, like this have actually been violated, and they had gotten 20, and 30 years from now. away with it in certain jurisdictions. ANTHONY: In order to exhibit our good faith in this, I CHAIRMAN: The Chair is willing to recognize Delegate think what the outside islands would like to know is, are we Fong. coming through with supremacy in the Senate, and, there FONG: Delegate Fred Ohrt and myself signed the minor fore, it might be a good idea to defer this until the matter ity report opposing this proviso in this Constitution. If this of apportionment is thrashed out. Possibly that’ll satisfy was just a moral obligation, as Mr. Tavares says, I would them. go along with it, but this is not just a moral obligation. It SHIMAMURA: Some of the spenkers, I think, have given is a contractual obligation, and if we pass this proviso, we’ll an erroneous impression of the power of the legislature with be stuck in perpetuity. Now if you realize that we have now respect to the adoption and ratification of this Constitution four counties, the County of Hawaii, the County of Maui, by the legislature. The legislature under Act 334 has no the County of Honolulu, and the County of Kauai, the major power of ratification or change of the Constitution. The ity of the four counties means three counties. only power the legislature has under that act, as I think some of the lawyers realize, is merely the submission of HEEN: May I point out an error there, if you don’t mind. alternative or other provisions, but it certainly has not the We have five counties. There’s a County of Kalawao. power to disapprove of the Constitution. FONG: I presume this Convention probably will not recog ASHFORD: We haven’t yet passed upon the Local Govern nize the County of Kalawao. ment Committee’s report. We don’t know what the situation To me this proviso means that we’re going to be stuck in is going to be as to counties. It may be that the power will perpetuity, and what Delegate Anthony says is correct. I rest in the legislature to create counties and also to provide don’t think any constitutional convention that will be convened that there shall be no counties; and if that power shall rest will be able to strike this proviso, even if the whole conven in the legislature as it now does, and counties are done - - tion went ahead and said that this proviso shall be stricken, counties could be done away with entirely and get away from because when it gàes back to the counties, one county will the effects of this. at least vote against it, and they will have the support of the other counties, I presume. As Delegate Roberts says, we WHITE: It seems to me that this thing has almost the felt in the committee that we are living in changing times effect of freezing the county status as well. It will have that there is no assurance that what we do today will be done that practical effect. Now as far as I’m concerned, I’m tomorrow; no assurance that what we think is correct today, sympathetic with the viewpoint of the outside islanders, but will be correct tomorrow. I can’t understand why any of the outside islanders should But we will like to say to the members from the outside take something that the legislators happened to say as com islands that at the present time we are willing to concede mitting this Convention. They certainly had no power to them the supremacy in the upper house, and having that commit this Convention for all time. I agree with Delegate supremacy, I think they should be satisfied. They will have Roberts that in changing times like this, who are we to know the supremacy in the upper house, and having that supremacy, what the conditions are going to be 10 or 20 years from now, I don’t think that the Senate will pass on any constitutional and whether even the representation that may be proposed amendment and have it go before the people if it were to tnke by this Convention may not 20 years from now be unfair to away from them the votes that they are now having. I think the outside islands. I think it’s very presumptuous on our that we should leave it up to the members of the next consti part to take it upon ourselves to try to commit and limit tutional convention, to future constitutional conventions, the the freedom of future conventions, and I’m definitely opposed question as to whether they will like to change the represen to this. tation in the Senate. I feel that at the present time, I’m willing to go with the outside islands as far as the represen KING: Without trying to close off debate, I think the two tation in the Senate is concerned, but to say that we should points of view have been pretty thoroughly explained. I insert this proviso is like putting a clause in the will saying suggest that we vote on the amendment, without making a that we can’t change our will. Never mind what we want to do. motion to that effect. Our thinking at the present time is such and such, and we CHAIRMAN: The amendment before the assembly is to should not change it. I think that this is going to be a compact, delete the proviso contained in paragraph six of Section 2. a compact that will stand forever, and I for one certainly do Are you ready for the question? not want this compact in this Constitution. DELEGATE: Roll call. LOPER: I’d like to spenk for the elimination of that last sentence, because I think we should have as much confidence CHAIRMAN: All those in favor of the amendment will in the Constitutional Revision Convention of 1960, ‘70 and ‘80 signify by saying “aye.” Contrary minded say “no.” I as the legislature had in us. We had a legislature, one house think the Chair - - of which drew most of its members from the outer islands, DELEGATES: Roll call, roll call. and this Bill 334 providing for this Convention which provides for a majority of the members to be from Oahu, and this Con CHAIRMAN: All those in favor of a roll call, signify vention is, I am convinced, going to provide for a legislature, by - - There’s more than ten. Roll call. one house of which will draw a majority of its members from the other islands. So it seems to me that there is already Ayes, 24. Noes, 33 (Apoliona, Ashford, Castro, Cockett, established a relationship of confidence that the other islands Corbett, Cr~sley, Doi, Fukushima, Ihara, Kage, Kanemaru, will be taken care of. Kauhane, Kawahara, Kawakami, Kido, Lai, Luiz, Lyman, 764 REVISION AND AMENDMENTS Nielsen, Okino, C. Rice, H. Rice, Sakai, Sakakihara, Seri (RECESS) zawa, Silva, Smith, St. Sure, Tavares, Wirtz, Woolaway, Yamamoto, Yamauchi). Absent and not voting, 6 (Arashiro, FUKUSHIMA: I move that the committee rise and report Gilliland, Kometani, Mizuha, Phillips, A. Trask). progress and ask leave to sit again. ROBERTS: Point of information. The language which HEEN: I second the motion. is still in reads, “provided that no constitutional provision altering this proviso or the representation from,” and so on. CHAIRMAN: It has been moved and seconded that the Am I correct in construing that language that the proviso has committee rise, report progress and ask leave to sit again. reference to the words “provided that” and does not have All those in favor say “aye.” Opposed. Carried. reference to the previous paragraph? To the rest of the paragraph preceding. JUNE 16, 1950 • Morning Session WIRT Z: Does the delegate wish me to answer that ques tion? CHAIRMAN: Committee of the Whole will now come to order. Before recessing yesterday afternoon, there was CHAIRMAN: Yes, will you? an amendment moved by Delegate Roberts pending before the WIRT Z: It was clearly the intention of the committee that assembly. Now the amendment offered was to paragraph that word “altering” - - the word “proviso” as used after six of Section 2. The amendment offered was that the num the word “provided” referred only to what followed the word ber 35 per cent be deleted and in lieu thereof the percentage “provided” and had nothing to do with the percentages or 25 be inserted. That motion to amend was seconded by anything that’s before. Delegate Mau. Immediately after moving the amendment, the Chair requested a recess for the benefit of the clerks. NIELSEN: I now move that the paragraph be tentatively When the committee was called to order, there was a motion agreed to. to rise and make a report of progress and beg leave to sit again this morning. Delegate Roberts, would you like to CHAIRMAN: Is there a second? speak to the amendment which you had offered? SAKAKIHARA: Second it. ROBERTS: Prior to offering the amendment to change ROBERTS: I’d like to raise a question and then propose the word “35” to “25,” I spoke at some length on the reason an amendment, if I may. We have provided in this paragraph for offering the amendment. The experience of the other that it would require 35 per cent of the total votes cast to states has been that it is extremely difficult to get a large be cast in the affirmative on any question which would pro vote on constitutional amendments or on constitutional vide for a constitutional change. There have been two states, changes. Most of the states actually provide a majority the State of Tennessee and the State of Illinois, that have of those voting on the proposal. We are making that tighter had a tremendous amount of difficulty bringing about a consti in our Constitution by requiring an actual number voting, tutional change. Part of the reason in thope states deals and by requiring a percentage of votes in the affirmative. with the fact that it requires a majority, but k’s not a major That in itseif indicates that we regard a constkutional amend ity of those voting on the proposition, but a majority of those ment as quite serious, and properly so. There ought to be voting in the total election. Now this provides for a major a substantial showing of votes. I do believe, however, we ity of those voting on the proposal, but requires a 35 per ought not to make it impossible to modify or change our cent vote in the affirmative. I’d like to suggest to the dele Constitution as the times and needs change. gates that that percentage might be reduced somewhat. You I’d like to call the attention of the delegates to the fact have this situation, you have a general election, and you have that our Constitution, the one that we are drafting now, is a total popular vote, let’s say of 100, 000. When it comes going to be submitted to the people on the basis of a major to questions on constitutional amendment, you find that ity, a simple majority of those voting on the Constitution. people either are not interested or don’t quite understand It seems to me that if we are going to provide that our first the proposition and don’t specifically cast their votes either Constitution is going to be submitted to the people on a for or against, and the experience of other states with the simple majority vote, regardless of the number of people amendment procedure has been that it is extremely difficult voting, that to make subsequent amendments and. revisions to get in excess of 50 per cent of those who are eligible to based on a 35 per cent vote, which I indicated yesterday vote. This, in fact, then would require 35 per cent of ap in most situations will mean a 70 per cent vote because of proximately 50, which would require close to 70 per cent the number of a turn out, that we ought not to make it so of those total voting, If our experience turns out to be difficuk in the future to change or amend our Constitution. the contrary, that we have more people voting on these I recognize that we all think we’re doing a wonderful job. amendments, then we have a different proposition. But in I think we are, but we also ought to recognize that perhaps other states, the experience has been that you cannot get future generations may not think quke the same way that we in excess of 50 per cent of the total people who go to vote do, and we ought to give them the opportunky as times on individuals in general elections but don’t cast their votes change to make amendments and revisions to the Constku on constitutional amendments. tion. Therefore, I suggest that we reduce that 35 per cent to PORTEUS: It isn’t often that I differ with my brother either 25 or 30. I’d like to hear from - - Suppose I move from the same combination of precincts, but I do to a certain for 25. degree this morning. If you will just check these figures MAU: Second the motion. for the moment, you will see the point I want to make. You CHAIRMAN: The motion has been duly seconded by Dele will put down 100,000, 100, 000 voters in an election through gate Mau. out the territory at a general election. Now if 100, 000 I think it’s time for a short recess for the benefit of the voters go to the polls and vote, under the scheme as pro clerks who have been - - posed now, if 35, 001 vote affirmatively for an amendment to the Constitution, that amendment carries, 35, 001, that’s SAKAKIHARA: I so move. what k means. Now 100, 000 people go to the poiis, and DELEGATE: Second the motion. 35, 001 affirmatively for a matter can carry so long as not more than 70, 000 have voted on the constkutional amend CHAIRMAN: Carried. ment. Now the amendment that is proposed would mean JUNE 16, 1950 • Morning Session 765 this, that so long as there was a majority vote of those to the amendment, so the majority refers to the tally upon voting on the constitutional amendment, that they would have the question, but the 35 per cent refers to the votes at the to have at least 25, 001. Now I think if 100, 000 people go to election. So that if 85, 000 people voted on candidates, but the polls, if the people don’t want to vote on the constitutional only 70, 000 people voted on the question, the 35 per cent amendment, if they are not interested in having it, I don’t would refer to the 85, 000 rather than the 70, 000. think that 25, 001 out of 100, 000 should be able to put the FUKUSHIMA: I’d like to add a little to what Judge Wirtz idea over. I think there should be more affirmative support has said. I think when you go to the polls, and you give your built up for a proposition than is advocated under the last name and your name is scratched out, that is counted as a amendment. I think the proposition as submitted by the com vote cast. Now, whether you submit a blank ballot or mittee to be a liberal one. You need only a majority of the whether your ballot is checked off as being an illegal ballot, votes cast on the constitutional amendment in a general elec nevertheless, it’s still a vote cast. I think that’s correct. tion so long as that majority is equal to 35 per cent of the Is it or not? total votes cast. It seems to me a very liberal provision, and I don’t agree with the 25 per cent figure which has been SHIMAMURA: May I ask if that distinction is clearly advocated in the amendment. brought out in the committee report so that there won’t be any difficulty in interpretation and construction. I’ve been ROBERTS: May I ask the previous spenker a question, trying to look for that page but I can’t locate it. Mr. Chairman? CHAIRMAN: You may, Delegate Roberts. FUKUSHIMA: That is stated on page 6 of Committee Report No. 48. ROBERTS: When you say 35 per cent of the votes cast, is it 35 per cent of the votes cast on the amendment? SHIMAMURA: Thank you. CHAIRMAN: For the purpose of record will you read PORTEUS: Thirty-five thousand votes, 35 per cent of that sentence? the votes that were cast at that general election. That’s what the provision says. FUKUSHIMA: It’s page 5 and 6. “The reason for using the term ‘votes tallied,’ is to exclude blank ballots and ROBERTS: Well, that’s what I understood. spoiled ballots on the ratification question only, thus re ANTHONY: It says “registered voters.” quiring the majority of the votes actually tallied for or against ratification.” PORTEUS: No, it doesn’t say registered voters. APOLIONA: To me there is a great difference between ROBERTS: There are two provisos there. the word “tally” and the word “vote” - - I mean the word PORTEUS: You are looking, I’m sorry, Mr. Anthony, “cast.” For instance, a lot of voters will go to the polls at the special elections. If you’ll look at “a,” general elec to have their votes cast. That means they go in there, tions. The committee made it more difficult to carry a accept a ballot and have their name registered in the book constitutional amendment in a special election. We’re talk as having cast their votes. But a lot of people do not vote, ing about the general election under “a.” they give in a blank ballot, in order so that they save their name on the register for the next election. There’s a big WIRTZ: There’s one other thing I’d like to point out difference there. about the feature that I think is liberal in the proposal as submitted by the committee. You will notice it says “a CHAIRMAN: The Chair feels that there has been suff i majority of all the votes tallied.” That eliminates spoiled cient discussion on the amendment offered. Are you ready ballots, unmarked ballots, and everything; whereas the for the question? limitation of 35 per cent is on the total votes cast. LOPER: May I rise to a point of information? I’d like HEEN: I rise to a point of information. By using the to ask the chairman of the committee if the committee con word “tallied” in one place and the word “cast” in another sidered the advisability of basing it only on the total votes place, is it supposed that there is a difference in the mean on the question, but requiring more than a simple majority. ing of the two words? For example, counting only those voting for and against but requiring 60 per cent or two-thirds to carry it. Did the WIRTZ: Is that question directed towards me? committee consider that? CHAIRMAN: Would you be willing to answer the ques FUKUSHIMA: I believe the committee did and we felt that tion? the proposition as we advanced would be more feasible; more liberal, too, Dr. Loper. WIRTZ: Yes, it was the concensus of the committee that “tallied” were the actual votes “yes” or “no” on a proposi CHAIRMAN: You ready for the question? tion and that were actually tallied in the booth, whereas votes cast included - - the total number of votes cast in ROBERTS: I’d like the delegates to very seriously con cluded spoiled ballots and so on. sider this question before the vote is taken. I think this is one of the most serious questions which has come before HEEN: That’s the way it’s treated in the returns. If the Convention, even though its present impact is not felt. you will look at these official returns, you’ll find one column The question of constitutional amendment goes to the very says total votes cast and if you’ll look at the number of votes heart of the things we are working on. Most of the states cast in the various precincts, they tally, they come out the provide a majority of those voting on the question. That to same. me is a preferable procedure. What we’re proposing here is an actual requirement of an affirmative vote. It may be WIRTZ: As I understand it, maybe the chairman would like to answer this, but my understanding was that we were true that the way the ballots are presently counted, all going under the impression that spoiled ballots and blank peoples’ ballots when they are thrown in the box are counted. ballots were counted as ballots cast in the election. When we go to mechanical counting, that will not be the case. I’d like to point out a very simple illustration in the case CASTRO: Recall that this section deals with the general of the State of Illinois. They tried for years to bring about election, and the supposition is that more votes will be certain constitutional amendments. They were unable, even cast for candidates than will be cast in the square relating though substantial numbers of people went to the polis and 766 REVISION AND AMENDMENTS voted on the question. They finally got to the point in 1932 liberal than Illinois’. That is the proposition as proposed when they tried to get a proposal to amend the amending by the committee, and it was put in this way to take care of provisions of the constitution, and they obtained a total vote that situation of Illinois. Now it’s the feeling of the commit in the affirmative on that constitutional amendment of over tee that a substantial number of people should be interested one million votes. There were only 200, 000 against the to amend their Constitution, otherwise the amendment is amendment or a positive vote of 80 per cent in favor of really not necessary. changing the amending provisions of the constitution. But it required, on the basis of a majority of those voting in the LAI: I think the amendment made by Delegate Heen is a general election, 1,700,000, and that amendment did not little too liberal, and I think is too dangerous. Do you carry. realize that if you have say, 20, 000 votes cast on a question, It seems to me, that this problem is extremely serious and it takes only 10, 001 to pass an amendment and I think and we ought to have a procedure which would provide the that’s too dangerous. We don’t want anybody to amend our opportunity for rectifying any mistakes which we may make, Constitution that way. and I don’t think that our Constitution is going to be so perfect TAVARES: It’s just been pointed to me that we don’t even that we want to tie the hands of future generations and future allow a minority in the legislature to pass an ordinary law. constitutional conventions to amend H. Here we are going to allow any kind of minority, no matter ANTHONY: I am in accord with the statement of the last how small, so long as it’s more than the people voting speaker. One of the greatest vices of state constitutions is against, to change our basic law. I submit that if we are the inflexibility of amendments, notably in Illinois, that was going to profit by the experience of other states, we must spoken of yesterday and again by, I believe, the last speaker. bear this in mind also. First, if an amendment to the Consti But in Illinois, they have been trying to get away from the tution, a proposed amendment, is very controversial, and system of elective judges for the last 40 years, and they there is reason for argument on both sides, strong arguments, can’t even get enough people to pass on the constitutional a lot of people are going to get awfully confused by the argu amendment. Now I would favor a simple majority of those ments pro and con. They are going to be so confused that voting on the question, and I think an appropriate amendment they are going to refuse to vote, and it means then that a should be drafted that will conform to that. very small minority can, in many cases, put through an amendment as to which many of the people, perhaps a large HgEN: I rise to a point of information. What is the majority, have serious doubts. amendment now before the committee? Twenty-five per I believe in a territory or in a state this small, we can cent? educate our people sufficiently to see that we have the re CHAIRMAN: Twenty-five per cent. quisite majority and the requisite minimum number. This is a small state and our record of turnouts to elections is HEEN: I’d like to amend that so that that clause “a” unusually high. I think that’s another thing to be borne in there shall read, “At a general election by a majority of mind in connection with the comparison with other states. all the votes cast upon the question”; and delete the rest Our people do take a greater interest in elections, on the of that clause. average, than most states, and I’m sure than Illinois. And MAU: How about paragraph “b”? I believe that because of the smallness of this territory, it will be possible for us to do a better job of educating than ANTHONY: I second the motion. it is in a large state with so many million people, like Illi ROBERTS: I will accept the amendment. nois. I, therefore, believe that some sort of a minimum is reasonable and proper, and if 35 is too high, let’s bring H. RICE: We withdraw our original motion, I understand, it down to 30. Perhaps that would be a good compromise, and accept this as the original - - as an original amendment. but I don’t think we should go below that. I hope, therefore, that the motion to amend will not be adopted. CHAIRMAN: Then Dr. Roberts, by accepting the - - ROBERTS: I will withdraw the motion. DOl: I feel that I need more time to study this, the ques tion on the floor. Therefore at this time, I would like to CHAIRMAN: Delegate Roberts, by accepting the amend move to defer the consideration of this paragraph till the ment, you are not interested in making the change of 35 per end of Section 4. There’s something I would like to taik cent to read 25 per cent? over with some of the delegates on this question. ROBERTS: We’ll withdraw in favor of the amendment. YAMAMOTO: I’d like to second the motion. CHAIRMAN: Will you restate the amendment offered, ROBERTS: I’d like to call one fact to the attention of Delegate Heen? the delegates before this question is put, before the defer ment, so that they can think it over during the actual con HEEN: Amend the clause “a” to read, “At a general sideration. I assume that the purpose of deferment is to election, by a majority of all the votes cast upon the ques give these people an opportunity to think the question over. tion”; then delete the rest of the language there in that I’d like to call this to their attention so that they can give clause “a.” it some thought, if k’s agreeable with the Convention; if CHAIRMAN: Do you retain the disjunctive “or”? That it’s not, I’ll keep quiet. is to be retained, is it not, before “b”? CHAIRMAN: Are you ready to vote on the motion to HEEN: That’s right, leave that “or” there. defer action on this question - - on the amendment? WIRTZ: Before we vote on the question, I’d like to state ASHFORD: Let’s hear from Delegate Roberts. the sentiments of the committee, that we wished it to be CHAIRMAN: I beg your pardon, Delegate. flexible, that is the process of amendment. However, we did not want to make it so easy that the process became ASHFORD: If this is being deferred for consideration, simply similar to amending a statute. Now we’ve heard a we should have before us every argument available. I think, lot about Illinois, and I think in fairness to this Committee therefore, that by unanimous consent, Delegate Roberts of the Whole, the delegate from the fourth district should should be permitted to advise us as to the further reasons point out that this provision as submitted is much more we should consider. JUNE 16, 1950 • Morning Session 767 DELEGATE: Kokua. cation, it requires a simple majority. And it’s quite possible, as Delegate Lai pointed out, that our present Constitution may DELEGATE: Second the motion. be submitted on a vote which Is extremely small. Suppose PORTEUS: And out of courtesy, anyone else who wishes only 10, 000 people go out to vote for the Constitution, it to add anything. still will require only a majority vote. HEEN: Absolutely. HOLROYDE: Another point in that regard. When you have the legislature operating on a subject that may be a SILVA: Well, ask him to withdraw the deferment. rather difficult one or one that is receiving a lot of public CHAIRMAN: Delegate Silva, did he have anything to say? attention, knowing the fact that it’s going to the people any way, they will be inclined to vote in favor of it and let the SILVA: I would suggest that the person who made the people make the final decision. Then you come back to the motion to defer withdraw his motion. point where only 10, 000 people can make that decision. YAMAMOTO: I’d like to withdraw my second, for the CHAIRMAN: Are you ready for the question? sake of Delegate Roberts. MAU: The impression has been given that any question CHAIRMAN: The second to the motion to defer action on put tb the people would result in a very small vote. We’ve the amendment before the table has been withdrawn by Dele always prided ourselves in arguments for statehood, and gate Yamamoto. Then the motion to defer will die due to we make it one of the best arguments we have, that the lack of a second? electorate goes out to vote full force. We always use the KAUHANE: I second the motion to defer. figure 80 per cent of the registered voters come out to vote. I don’t think that there is a fear that only 20, 000 people will CHAIRMAN: Delegate Kauhane seconded Delegate Nelson vote on the question, not in the State of Hawaii. Even our Dol’s motion to defer action. selves here in this Convention, we have a rule where those CROSSLEY: As I understand it, the second was with who are silent are considered to have voted in the affirmative. drawn to allow Delegate Roberts to talk. I think, if there’s It seems to me that just because some of the people may not no second made, there can be discussion on the subject un cast their vote on this question, although they vote in the til it’s fully covered. Then we can fully proceed. general election for candidates, doesn’t mean they are against the proposal. I think that the argument is not sound. ROBERTS: The impression given in the previous dis It is not a factual argument, at least in my judgment. cussion, in part implied that the question of an amendment to the Constitution would go to the people directly. That CHAIRMAN: The Chair will refuse to recognize any dele is not the procedure that is provided In this proposal. There gate, if the delegate is going to speak on the amendment. are two procedures for amendment, to initiate the amendment. The motion before the floor is the motion to defer action. One is through the constitutional convention. No question BRYAN: May I ask a question? is going to be put to the people until the constitutional con vention has deliberated and made recommendations. Then CHAIRMAN: Information? it goes to the people on the vote. The second procedure for BRYAN: Information. If that is the Chair’s ruling, I amendment is for amendments provided or proposed by the don’t think it’s a fair one. After all, we stood by to let a legislature, and it requires a two-thirds vote in both houses speaker speak on the question after the motion was made. of the legislature first, before the question comes to the I think that if one piece of debate is worthy of consideration people on a vote. So you have your screening process be while this thing is being deferred, all debate is worthy of fore the question is put. It seems to me that is not leaving consideration, and I ask leave to speak on the subject. the question wide open to minority groups. That provides deliberate consideration by both or either a constitutional CHAIRMAN: The Chair feels that the debate on the convention or the houses of the legislature. I think we ought motion, on whether or not the amendment offered is sound, to keep that clear in mind, that it’s not a proposition put is different from the motion now pending on the floor, whether directly to the people without prior consideration either by to defer action. It will not cut off any debate on the amend constitutional convention or by a substantial majority of the ment. You ready for the question? The motion - - The houses of the legislature. question is on the motion to defer action on the amendment made by Delegate Heen and which was accepted by Delegate NIELSEN: Isn’t there a motion before the house? Roberts. CHAIRMAN: Delegate Nielsen, yes, there is a motion SAKAKIHARA: Point of order. First, I’d like to rise to to defer action. a point of information. Who made the motion to defer and NIELSEN: I move for the previous question. who seconded it? TAVARES: There’s just one thing to be explained about CHAIRMAN: Delegate Dol made the motion to defer action, this statement just made, and that is under the legislatively Delegate Yamamoto seconded the motion. The second was proposed constitutional amendments, proposed by our com withdrawn, but subsequently seconded by Delegate Kauhane. mittee, there are two methods for the legislature to do it, Ready for the question? All those in favor of the motion one by a two-thirds vote of each house of the legislature at to defer action on the amendment will signify by saying “aye.” one session, or a majority vote of each house of the legis Contrary minded, “no.” The ayes have it. The motion to lature at two successive sessions. I think that ought to be defer action is carried. made clear. FUKUSHIMA: I move that we take a short recess at this ROBERTS: That’s true, but after it’s enacted by the time. legislature, then it goes to the people for ratification. So CHAIRMAN: All those in favor will signify by saying you have a double check on the specific proposal. It isn’t “aye.” Recess. a direct constitutional initiative; it provides for considera tion by the legislature or by a constitutional convention. It (RECESS) seems to me that the deliberate consideration is given there, and when it subsequently comes to the people for ratification, CHAIRMAN: Will the committee come to order, please. just as our own Constitution is going to the people for ratifi Have the delegates reached an agreement? 768 REVISION AND AMENDMENTS HEEN: At this time I wfthdraw my motion to amend. CHAIRMAN: All those in favor of the motion to adopt ROBERTS: I’d like to move that in the sixth paragraph, tentatively paragraph six of Section 2 will signify by saying the sixth line, the words “constituting at least 35,” that “aye.” Contrary minded say “no.” Carried. the word “35” be changed to “25,” and to leave the rest of FUKUSHIMA: Seventh paragraph, which reads: the section as is. The provisions of this section shall be sell -executing, CHAIRMAN: In other words, it would be tantamount to but the legislature shall appropriate money and may the original amendment which you had offered, Delegate enact legislation to facilitate its operation. Roberts? I move at this time that we tentatively approve paragraph ROBERTS: No, not identical, because it still leaves seven. the 35 per cent in the special election. SMITH: I second that motion. CHAIRMAN: No, I mean as to “a.” ROBERTS: As to “a,” 25 percent. That’s correct. HEEN: I’d like to ask the chairman of that committee as to how will the provisions of the section be sell-executing? KELLERMAN: I second that. What would be the mechanics with reference to that? CHAIRMAN: The motion is to amend the sixth paragraph FUKUSHIMA: I’ll ask Dr. Roberts to answer that ques of Section 2, that particular clause of the sixth paragraph tion. in Section 2, designated “a,” wherein there appears the word “35,” in lieu thereof the word “25” be inserted. Are you ROBERTS: The proposal for constitutional amendment, ready for the question? All those in favor of that amendment as I indicated before, was one of the most important provi will signify by saying “aye.” Contrary minded say “no.” sions of the Constitution. You’ve got to provide some pro The Chair will ask the vote by the show of hands. All cedure for seeing to it that amendments are put, that those in favor of the amendment will please signify by show constitutional conventions are held. As was pointed out by of your right hand. 23 ayes. All those opposed. I’m our eminent lawyers on the floor, you cannot mandate a afraid the vote is very close. legislature to do anything if they don’t want to do it. I think, as they put it, you can’t get a writ of mandamus to force PORTEUS: There are other people that have come in. them to do anything. However, a proviso in the Constitution, I wonder if you could call for a standing vote. That would which in effect says that the legislature has a responsibility be a little easier. to do the job, carries with it certain moral force, carries SAKAKIHARA: I make a formal motion that we have a with it the suasion of public opinion. It seems to me that roll call. a proviso to this effect indicates to the legislature that they are to carry out their responsibilkies under the Constitution. ROBERTS: Second. If they do not do so, then, of course, they are subject to CHAIRMAN: The Chair is very receptive to that sugges action by the people. There is no way of forcing them to do tion. it. It is merely an indication of the Convention that they want them to do ft. HEEN: Those who came in may not know what the ques Now, wfth regard to the other sections on the constftu tion is. They wouldn’t know how to vote. They are liable tional convention, we have provided a machinery for the to vote for both ways. holding of elections, we have provided machinery for election LAI: Will you state the motion again for the benefft of of delegates, and for the operation of the constftutional con the latecomers. vention in case of amendments. The only sell-executing prob lem that you bump into with the legislature is the problem of CHAIRMAN: I shall do that. Roll call has been suggest providing funds, and ft seems to me that question, of course, ed and the Chair is receptive to that suggestion, so, Miss still rests with the legislature. The intention is to indicate Clerk, will you proceed with the roll call. The question to them that they are to make appropriate provision for the is, shall that clause designated as “a” in paragraph six of carrying out of this section. Section 2 be amended so that the word “35” appearing therein be deleted, and in lieu thereof, the word “25” be NIELSEN: It just states that they shall appropriate money inserted. Will you proceed with the roll call. which doesn’t mean too much. And I would like to make the Ayes, 29. Noes, 30 (Apoliona, Ashford, Bryan, Cross amendment to have that read after the word “shall,” “make ley, Doi, Dowson, Fong, Hayes, Holroyde, Ihara, Kage, the necessary appropriations and may enact legislation to Kam, Kawakami, Kido, Larsen, Luiz, Lyman, Porteus, facilftate this operation.” Then ft is required that they make Sakai, Sakakihara, Serizawa, Silva, Smith, St. Sure, sufficient appropriation so that the thing can be carried out. Tavares, Wirtz, Woolaway, Yamamoto, Yamauchi, Okino). I so move. Absent, 4 (Arashiro, Mizuha, Phillips, A. Trask). CHAIRMAN: Is there a second to that amendment? CHAIRMAN: The amendment has failed to carry by two SHIMAMURA: I second the motion. votes. HEEN: I’m not satisfied with the answer that was made FUKUSHIMA: I now move that paragraph six be tentative by Delegate Roberts. Assume that the legislature does ly agreed to, as approved. nothing at all, then how are these provisions to be executed SAKAKIHARA: I second it. on a sell-execution basis? I’m rising for information, more definite information. ANTHONY: Point of information on the last vote. As I understand the rules, not voting is counted in favor of the PORTEUS: I don’t know that I have the information, but motion. Is that not correct? nonetheless, in the first paragraph of Section 2, insofar, I think just to reinforce some of the material that fellow CHAIRMAN: They are absent. delegate from “Q” has brought to your attention, if wfthin ANTHONY: Oh, they were absent. the ten-year period the question hasn’t been submftted to the people as to whether or not there shall be a constftutional CHAIRMAN: Yes. convention, it is made the duty of an officer to certify this LAI: I second Fukushima’s vote, I mean motion. question for submission to the people at the first general JUNE 16, 1950 • Morning Session 769 election. Now, if that had been at a special election, the Constitutional Convention was just grabbed out of a hat. I failure of the legislature to provide money could block that. don’t think the cost of holding the election was even considered However, if it’s to be certified at a general election, then by the finance committee. the money that is provided for the general election will help CHAIRMAN: That wasn’t an amendment, Delegate Niel carry the expenses here, and it can be submitted to the sen, and if Delegate Tavares - - people even though the legislature doesn’t want the question submitted to the people. TAVARES: I haven’t yet proposed it. I’d like to hear I think that the provision - - The question was asked, a little more argument against the provision. who calls the convention. Once the people, however, have said that they want a constitutional convention, I don’t think CHAIRMAN: Then your original amendment stands as that the people elected to the legislature are going to hold it is, Delegate Nielsen. Is there any further debate relating out against the will of the voters by saying, now that you to the suggestion just made by Delegate Tavares, that the voted to have it, we’re not going to come through with the language may be provided in the Constitution whereby the mechanics of providing the money for the payment of the appropriation may be tnken care of? Is there anyone who delegates and so forth. I think there is a good deal of com will suggest a recess? pulsion on a legislature, once the people of the territory LEE: No, I think we ought to proceed. There is a motion have indicated that that’s the way they want it done. I think on the floor made by Delegate Nielsen to mnke - - there was the phrase, if nothing else, at least is a threat over the a second by Delegate Shimamura, if I recall. I don’t see heads of the legislature that if it doesn’t pay attention to what difference it mnkes - - this subject, why, someone is apt to tnke it away from them, and there’s apt to be action in any event. CHAIRMAN: All right. Are you ready for the question, to vote for the amendment? LEE: I think that on most questions Delegate Porteus would be right, but, of course, we have that stock example LEE: I’m not through spenking yet. in the Organic Act on reapportionment where it’s never done CHAIRMAN: I’m sorry. and the so-called moral persuasive force of the Organic Act was evidently missing~ LEE: But I was saying that I can’t see much difference between the language posed by Delegate Nielsen, “shall CHAIRMAN: I believe Delegate Ashford wanted to be mnke appropriation,” compared with the language, “shall recognized prior to the last spenker. appropriate.” I may be a little dense. Perhaps Delegate ASHFORD: I’m an enthusiast about the expression, “this Nielsen can explain the difference a little more clearly provision shall be self -executing.” I think perhaps the than he has. provision requiring the legislature to appropriate funds is NIELSEN: Shall I answer him? When you just say they not there - - is not properly there. I think perhaps it might “shall appropriate” money, that doesn’t indicate how much just be, “the legislature shall or may tnke such steps as or how little; they can appropriate only half enough or any are necessary to fully implement the matter.” But, I very specific sum they care to. But if it says that they “shall much approve the provision that certain sections or the mnke the necessary appropriation,” why then they can Constitution itself, insofar as possible, shall be self -execut mnke it - - if it’s a special election, it’s going to cost a ing, because it goes to the interpretation of the section and whole lot more than if it’s a general, and they’ll appropriate the intent of the Convention in writing it in and the people whatever is sufficient for the purpose. in ratifying. That is, that regardless of what the legislature DELEGATE: Question. does, that stands, and if there be no money for a convention, if they choose to sit without money, they can still amend the CHAIRMAN: You are now voting on the amendment offer Constitution. ed by Delegate Nielsen. The amendment - - paragraph seven will read as follows with the amendment. SHIMAMURA: May I add to the excellent exposition of our Secretary, that paragraph four provides the machinery The provisions of this section shall be self-executing, for an election of the delegates to our constitutional conven but the legislature shall mnke the necessary appropria tion. tions and may enact legislation to facilitate its operation. TAVARES: It is true that we cannot mandamus the All those in favor of the amendment will signify by saying legislature to appropriate funds for this election, but I “aye.” Contrary minded say “no.” The amendment is think of all uncontroversial types of things that can be in carried. this manner at least morally mandated on the legislature, the one of appropriating funds is the most perfunctory. It CROSSLEY: I move that the paragraph as amended be is the type of thing that the legislature isn’t very likely to adopted. get wrangling about very much. There will be an estimate CHAIRMAN: Tentatively. as to how much is going to be needed for this thing, and in the ordinary course of events, that estimate will be some FUKUSHIMA: I second the motion. what approximated. It’s a little different from requiring a CHAIRMAN: All those in favor of the motion will signify legislature to reapportion itself. That brings up very, by saying “aye.” Contrary minded say “no.” Carried. very highly controversial matter. I think, therefore, that there is some reason for leaving it to the legislature to FUKUSHIMA: That is the end of Section 2, but I believe appropriate the money. that yesterday there was deferred the first sentence of However, if the members of this Convention think that it paragraph three and all of paragraph four. The first sen isn’t sufficient, I’m quite willing to propose an amendment tence of paragraph three reading, “Any qualified voter that all moneys necessary, are automatically appropriated of the district concerned shall be eligible for membership out of the general fund of the territory, II the members of in the convention,” that was not tentatively approved. the Convention would rather have that, I’ll put such an LEE: I believe, in order to bring the delegates up to a amendment. point where we can move, a question was raised by Delegate NIELSEN: I’ll accept that as an amendment. The reason Kellerman concerning the oath, and I believe there was a I brought this up is the fact that I think the amount for this difference of opinion among a couple of delegates as to 770 REVISION AND AMENDMENTS whether or not there is anything which requires the oath. qualified voter in the district concerned shall be eligible to And they came to the conclusion, as I recall, that there membership in the convention.” I move the following amend is nothing which requires the oath, so that from there we ment: can proceed. I believe Delegate Anthony had an amendment which read as follows: Notwfthstanding any provision in this Constitution to the contrary, other than Section —, any qualified voter Notwithstanding any other provision in the Constitu of the district concerned shall be eligible to membership tion to the contrary, any qualified voter in the district in the convention. concerned shall be eligible for membership in the con CHAIRMAN: Is there a second to that amendment? vention. NIELSEN: I’ll second the amendment. CHAIRMAN: That is correct. HEEN: I don’t qufte understand the clause, “other than LEE: I move for the adoption of the amendment as just Section blank.” In other words, there may be some provi read by myseif which was proposed yesterday by Delegate sion to the contrary, and that section blank is certainly Anthony. contrary. Therefore, you leave ft in when you say, “other CASTRO: I second the motion. than Section blank,” which I understand is the one relating to communist affiliation. CHAIRMAN: All those in favor of the motion - - ANTHONY: That is correct. The purpose of the proposed TAVARES: I thought I called the attention of the Conven amendment is to exclude all other prohibitions in the Consti tion to a very serious situation that would exist in such a tution other than the prohibftion of any person holding an case. The article which we have proposed to comply with office who belongs to a subversive group. H. R. 49 makes a member of certain subversive groups ab solutely ineligible to hold any office. And here we’re going HEEN: In other words then, as I understand ft, that to, notwithstanding that provision, going to make him eligible would permft persons holding public office or positions to to hold office in this convention, if k’s an office, which run for election to the convention. seems to be the attitude of the members here. I think that ANTHONY: That is correct; that would permft judges, one thing is going to destroy your compliance with H.R. 49. legislators and other state officers, which might otherwise LEE: I thought that was settled yesterday among our be prohibited from holding two offices, to hold an office as legal fraternity here, where Delegate Ashford pointed out that a delegate to any future constftutional convention. clause there. I think that Delegate Ashford might answer FUKUSHIMA: Will the movant of the amendment accept that question. the further amendment by stating “Section blank of Article ASHFORD: Under the provisions of H.R. 49, no oath is blank”? required, but it is absolutely - - is required to be an absolute ANTHONY: That’s accepted. disqualification for office that anyone be a member of a CHAIRMAN: Before the question is put, Delegate Anthony, subversive organization. In other words, I agree with Dele the Chair assumes that the original amendment which you had gate Tavares that that should be wrftten in here. There’s offered is wfthdrawn? You had an original amendment which no provision for an oath but there is a provision that our simply read, “Notwithstanding any other provision of this Constitutiàn shall forbid the holding of office by anyone Constftution to the contrary.” Would you withdraw that in who belongs to any organization that’s dedicated to the over favor of the amendment which you have now proposed? throw of government by force. ANTHONY: I do. LEE: Well, can’t we proceed and write that in? Is there any reason why we couldn’t amend the first sentence different ASHFORD: Before we vote, may I explain my vote? I ly then, to read somewhat along this line, in the sense of this shall vote against this amendment because in my opinion ft thought? “Any qualified voter, except as otherwise provided is a gross impropriety for the bench to sit in on a constftu in this Constitution, of the district concerned shall be eligi tion of which they will be the Interpreters. ble to membership in the convention.” I’m not saying the language is correct. CHAIRMAN: All those in favor of the amendment. TAVARES: I think ft would be - - if we leave ft to the ANTHONY: I think - - I don’t know whether that has been Style Committee, this would be all right, to have ft read, fully discussed or not, but - - Am I out of order? “except as provided in Committee Proposal No. 24,” and CHAIRMAN: You have the floor, Delegate Anthony. then the language that’s been suggested. Then the Style Committee can substftute the proper article and section ANTHONY: We did debate that at great length in the judi number when ft’s adopted. ciary article. And I certainly feel there’s a great deal in what the delegate from Molohal said. It has been said in CROSSLEY: I would suggest about a five-minute recess, a jocular tone here that we were cutting Judge Wirtz out of so that the legal fraternity can get together back here on the future constftutional conventions. But ft wasn’t the person proper rewording of this amendment. that we were debating. We were debating with the principle, whether or not a judge should sft in a constitutional conven CHAIRMAN: The Chair declares a recess. tion and one of the considerations was the one which was just (RECESS) raised by the delegate from Molokal, and I think ft is a valid consideration. We voted on it once in the judiciary article, CHAIRMAN: Delegate Fukushima, are you ready to move and I’m inclined to think that we should not make the excep an amendment? tions for judicial officers, whatever we do for other officers. FUKUSHIMA: I don’t have an amendment, but I believe CHAIRMAN: Are you ready for the question? Delegate Anthony has an amendment to make. YAMAMOTO: Will you please state the question. CHAIRMAN: Delegate Anthony, are you ready to - - CHAIRMAN: The amendment offered by Delegate Anthony ANTHONY: In the paragraph under discussion, I propose to the third paragraph of Section 2 appearing on page 2 of the the following amendment. We’re discussing the line, “Any Committee Report No. 48 is as follows: JUNE 16, 1950 • Morning Session 771 Notwithstanding any provision in this Constitution to CHAIRMAN: All those in favor of that motion will signify the contrary, other than Section — of Article_, by saying “aye.” Contrary minded say “no.” Carried. any qualified voter of the district concerned shall be TAVARES: There was one other paragraph which was eligible to membership in the convention. deferred. That was the fourth paragraph of Section 2, and All those - - I have an amendment to propose that I think will tnke care of the argument over that section. I’m having it mimeo HEEN: Point of information. I am in agreement with what graphed, but I will read it. I withdraw my amendment was stated by the delegate from Molokai. Notwithstanding until it comes back, Mr. Chairman. the fact that Delegate Wirtz has made some valuable contri bution here in the deliberations of the Convention, a judicial PORTEUS: Can we proceed with the other articles, and officer, in my opinion, should not be a delegate to a consti then at a later time, as soon as this is mimeographed, we tutional convention because that judicial officer might be can move back? called upon to interpret the Constitution, as to whether or CHAIRMAN: Then we proceed to Section 3. not some particular matter is constitutional or otherwise. I FUKUSHIMA: Section 3 has to do with the amendments think that’s a principle that should apply here, that no judicial proposed by the legislature. It reads, officer should be placed in a position where he may have to interpret what he has done in a constitutional convention. Amendments proposed by legislature. The legislature may propose amendments to the Constitution in the follow ANTHONY: In order that the delegates will not misunder ing manner: (a) By adopting the same, in the manner re stand my position, I was merely doing a job of draftsman quired for legislation, by a two-thirds vote of each house ship here, because I thought it was the sense, judging from on final reading, after either or both houses shall have the debate yesterday, that they wanted judges to sit in future given the governor at least ten days’ written notice of the constitutional conventions. I still think, as a matter of final form of the proposed amendment; or, (b) by adopt principle, it’s not correct. ing the same, in the manner required for legislation, with CHAIRMAN: Delegate Roberts, you requested the floor? or without such notice to the governor, by a majority vote of each house on final reading, at each of two succes ROBERTS: I asked a point of information before. sive sessions of the legislature. CHAIRMAN: State your information. I move at this time that these two paragraphs be tentatively ROBERTS: The two blanks that are left in the proviso, approved. are they to be confined only to the blanks in the judiciary HAYES: Isecond the motion. article? AKAU: Point of information. “At each of two successive CHAIRMAN: Will the mover answer that question? sessions of the legislature,” I wonder if that can be clari ANTHONY: No, that will only refer to the section where fied. Why do you need two? in there is incorporated, pursuant to a mandate of Congress, FUKUSHIMA: I think that can be tnken care of by the that no person shall hold office who belongs to any subver Style Committee. sive group or the Communist Party or whatqver it is. TAVARES: I think the question was as to why we have ROBERTS: What I had in mind is when we get to the to have two successive legislatures approve. The difference section on the legislative article, I feel that the legislators is this. The alternative method one, if at a single session, have as much to contribute as other individuals in the com two-thirds of the members of each house vote for an amend munity on the constitutional convention. I don’t want to ment, it can be submitted right away. But if they don’t get be - - have that precluded when the question comes up. a two-thirds vote, then they must pass it by a majority vote TAVARES: It’s my understanding that that “Section blank in two successive sessions and then submit it to the people of Article blank” referred to in the proposed amendment re for ratification. The point being if it finds enough approval fers to Section 1 of Committee Proposal No. 24, and that to get a two-thirds vote at one session, why it can be sub the Style Committee will insert the proper numbering when mitted right away. But if it can’t find enough approval to that article and section are adopted. have a two-thirds vote at one session, then it must have two successive sessions approve it by a majority vote. RICHARDS: I can’t see why all this hullabaloo about judges being in the convention. The fact is that he might AKAU: Pursuant to that same idea, supposing, for ex be a judge today and a practicing attorney the next day, and ample, the same people were in one session, and in another any attorney that attends a convention is apt to be a judge session, are you going to be tied both ways? the following day and still rule on the matter that was tnken up in the convention. I don’t see any difference at all. TAVARES: There is such a thing, you know, as people CHAIRMAN: Are you all ready for the - - changing their minds or seeing the light in the two years between sessions, or between - - in the period between two H. RICE: I second Mr. Richards’ thought on this sessions. It’s quite possible they’ll pass, inadvisably and matter. And don’t forget, in spite of that it’s the people hastily by a majority vote in one session, a provision that that elect whoever comes to this convention, and they will they would find after due consideration is not so proper. decide whether he’s fit to go or not, and I’ve seen judges Or the people will educate them, or someone will, that it’s disqualify themselves because they had. There are a lot not so proper. of judges - - There are going to be lot of judges in this territory, and he could disqualify himseif if necessary. ASHFORD: I had thought that Delegate Akau’s question ran to another point, which I think should have some refer CHAIRMAN: All those in favor of the amendment will ence in the report of this committee, “two successive.” signify by saying “aye.” Contrary minded say “no.” Now one of the judges of the circuit court in Honolulu Carried. construed two successive as meaning three, on the theory FUKUSHIMA: I now move that paragraph three as that the first year was not a successive year. That was in the divorce court, if the chairman will remember. I think amended be tentatively approved. that some interpretation of that should be included in the YAMAMOTO: I second the motion. report of committee. 772 REVISION AND AMENDMENTS TAVARES: I think that the clause that the delegate just LOPER: May I ask whether it was intended in the last spoken refers to was a clause that said, “published for line of this paragraph to exclude special elections? It three successive weeks.” But we have said, “at each of two reads “within the two months’ period immediately preceding successive sessions.” That covers it. “At each of two the next general election for the members of the legislature.” successive sessions.” That only means two sessions. CHAIRMAN: Is that an amendment you are offering? HEEN: Addressing myself on paragraph a, does that TAVARES: As I recall - - involve the veto of the governor? CHAIRMAN: Just a moment, Delegate Tavares. FUKUSHIMA: We have the following section, Section 4, where we say the veto is inapplicable. In other words, sub LOPER: I was merely asking for information, whether paragraph a which the delegate from the fourth district is it was intentional to leave out any provision for special referring to will be adequately covered by Section 4. That election. takes care of that. TAVARES: That was done with malice aforethought. HE EN: That’s correct. Now as to paragraph b, was it The idea was that these legislators who passed this amend intended that reference to two successive sessions, that ment are going to be required, at least those who are going one might be a general, a regular session, and the succes to run again, to go before the electorate and explain that sive, say, special session? proposed amendment to the electorate at the general election where they are running, and not have it at a special election. TAVARES: Yes. In my argument just lately, I mentioned The thought was that it would be more of an incentive to two years. That’s wrong. It’s any two successive sessions. have them explain to the voters what the provisions were It could be one regular session and one special session, or and what the pros and cons were of this proposed amendment. it could be a special session followed by a regular session, And perhaps get a better vote and a more intelligent vote on as long as there are two successive sessions, or it could be it than if it was held at a special election where the people two special sessions, yes. might not be willing to carry the ball. CHAIRMAN: Are you all ready for the question? Ten ANTHONY: I have an amendment to this paragraph, the tatively approve? paragraph under debate. The language which was just re ferred to by the Delegate Akau, “published once in each of SHIMAMURA: May I ask a question? I take it that under four successive weeks, in at least one newspaper of general paragraph a the words “two-thirds vote of each house” circulation, in each senatorial district,” I think that’s an means two-thirds vote of the entire membership of each unhappy expression, and I would substitute for that “in at house? least one newspaper of general circulation In the state,” TAVARES: That is correct. On final reading, that and delete “in each senatorial district wherein such a means third reading. newspaper is published.” In other words, if you publish it it in a newspaper of general circulation which is published CHAIRMAN: Delegate ‘Anthony, do you wish to be recog and circulated throughout the state, that is the requirement. nized by the Chair? If not, all those in favor of the motion You don’t care whether it’s in the senatorial district or to adopt tentatively the first paragraph of Section 3 will signi any other kind of district. fy by saying “aye.” Contrary minded say “no.” Carried. CHAIRMAN: Is there a second to that? FUKUSHIMA: The second paragraph reads, HEEN: Second that motion. Upon such adoption, the proposed amendments shall be entered on the journals, with the ayes and noes, and pub TAVARES: It seems to me that in the case of a consti lished once in each of four successive weeks, in at least tutional amendment, it should have a little higher degree one newspaper with general circulation in each senatorial of publicity than a mere law, which only needs to be pub district wherein such a newspaper is published, within lished in one newspaper of general circulation throughout the two months’ period immediately preceding the next the territory. Therefore, if you do publish it in more than general election for members of the legislature. one paper, I don’t see any harm in it. There should be as wide publicity as possible and the little extra expense re I move at this time that this paragraph be tentatively quired for that, it seems to me, shouldn’t deter us from approved. acquiring that extra publicity. There is another matter and that is, it is a well-known KAWAHARA: Second that motion. fact that the rural newspapers in this country have a tre AKAU: Does “published” mean the same as circulated? mendous circulation that is not always tapped by the state We haven’t the word “circulated” in there, and I was wonder wide or nation-wide publications. They have their own ing, a newspaper could be published, could be in one house, editorials and they have their own subscribers who may not but circulation, I think has a different connotation. actually subscribe for the state-wide paper, and, therefore, I think it’s a good thing if they have a newspaper of general HEEN: The Star-Bulletin, the foremost paper in the circulation in each senatorial district, that they publish it territory, is published in Honolulu, but it has a circulation in that newspaper in addition to the state-wide newspaper. throughout the territory. Take the Maui News, it’s published in Wailuku, but I don’t think it circulates in Kauai. There HEEN: If Oahu is going to be divided into two senatorial fore, it wouldn’t be a good paper. districts, and all the newspapers are published in the fourth AKAU: Would it be in order then, since the delegate district - - Still, it might have a circulation in the fifth. I from the fourth district has explained the question of dr - think it’s all right. culation, to amend “published and circulated” or “circur CHAIRMAN: Are you ready for the question? You are lated”? Would that clarify that? voting on the amendment offered by Delegate Anthony. The FUKUSHIMA: I believe there is a phrase, “published words “the state” be inserted and the words “each senatorial once in each of four successive weeks, in at least one news district” be deleted. paper of general circulation.” I believe that would cover ANTHONY: Although I think it’s a good amendment, I’ll what the delegate from the fifth district has in mind. withdraw it. JUNE 16, 1950 • Morning Session 773 CHAIRMAN: Then I think a motion is in order to ten rate provisions for ratification in those two sections. The tatively adopt paragraph two of Section 3. only thing that we voted on in Section 3 - - excuse me, in Section 2, was not on the question of a majority vote, but on FUKUSHIMA: I’ve already made the motion. a question on a 25 per cent vote. It seems to me, therefore, CHAIRMAN: I’m sorry. All those in favor will signify that we shall be voting on an entirely different question and by saying “aye.” Contrary minded say “no.” Carried. with different substance. FUKUSHIMA: The third paragraph reads, CHAIRMAN: The Chair will resolve the doubt in favor of At such general election, the proposed amendments the movant and declares that the amendment is in order. shall be submitted to the electors for approval or rejec TAVARES: I agree that it is not out of order. I do be tion upon the ballot separate from that upon which the lieve, though, that it is out of line with what this Convention names of candidates appear. has already decided it wants for the constitutional conven I move that this paragraph be tentatively approved. tion type of amendment, and, therefore, I see no reason for departing from them. There is a further objection, I KAWAHARA: Second that motion. think should be pointed out, and that is the amendment itseif proposed by the legislature may be one that the legislature CHAIRMAN: All those in favor of the motion will signify itseif in the proposal doesn’t want to take effect in 30 days. by saying “aye.” Contrary minded say “no.” Carried. That should be left to the legislature or to the people draft FUKUSHIMA: Fourth paragraph reads, ing the amendment as to when it becomes effective, and an absolute time to make it effective is inadvisable. I think The conditions of and requirements for ratification of the amendment should be defeated. such proposed amendments shall be the same as provided for in Section 2 of this article relating to ratification at ANTHONY: On the assumed legal impasse that there a general election. would be a different date as provided in the contemplated I move that this paragraph be tentatively approved. act or amendment passed by the legislature and the pro posed amendment, I don’t see that presents any problem. KAWAHARA: Second it. If the legislature, for instance, would approve an amendment ROBERTS: I’d like to propose an amendment to this to take effect two years hence, then by operation of this, that amendment would take effect 30 days after the expira paragraph. The amendment is taken from the provisions of tion of the two years as provided in the amendment. It the New Jersey State Constitution which provides an identical procedure on amendment as set forth in this section, but the seems to me that this is - - it will give an opportunity for provision dealing with the approval reads as follows: “If the people by a majority at any election, if they vote in favor of a particular amendment, that that amendment would the proposed amendment or amendments or any of them”— be put into the Constitution. It seems highly desirable to me. I’m having this mimeographed, and copies will be available for the delegates— PORTEUS: This is the argument that we had before. I If the proposed amendment or amendments or any of don’t know that we’re going to change any votes. My opinion them shall be approved by a majority of the legally qual is the same as it was before. I think the method of adoption ified voters of the state voting thereon, the same shall should be consistent. Because there are few of the outside become part of the Constitution, on the thirtieth day after islanders not here who voted against the other, I intend to the election, unless otherwise provided in the amendment ask for roll call on this matter and if at the end I think we’ve or amendments. lost, I’ll change my vote to have an opportunity to reconsider when the rest of the members are present. I move that paragraph four of Section 3 be amended by delet ing the paragraph and substituting the language I just read. NIELSEN: I believe that this is going to defeat what we voted on yesterday and that was that the outside islands MAU: I second the motion. should control the Senate. With this in the Constitution, why BRYAN: I think that we’ve already voted on the substance the proposed amendment might be on the reapportionment of that amendment. of the Senate and with this amendment in this section, why, it will kill what we did yesterday. CHAIRMAN: The Chair will ask the mover of that amend ment to read over what you have just read, apparently from BRYAN: My objection to the proposed amendment is the New Jersey Constitution. not on the basis of the majority, it’s on the basis of the majority voting on the amendment; and we get back to ROBERTS: the same old bugaboo of ten people voting on it, and if If the proposed amendment or amendments, or any of six people say yes, the amendment is ratified by the them, shall be approved by a majority of the legally people. That is my objection to the proposed amendment. qualified voters of the state voting thereon, the same ROBERTS: May I answer Mr. Nielsen’s question? He shall become part of the Constitution on the thirtieth day raised the question as to whether or not this would nullify after the election, unless otherwise provided in the the action taken yesterday. It does not. The action yester amendment or amendments. day indicates very specifically that there can be no consti CHAIRMAN: Delegate Roberts, Delegate Bryan here has tutional change on that question, and, therefore, the question raised a point of order, his grounds being that in substance cannot be put in the amendment. If it is put, it has to carry the same is covered by the provision as set forth in this all of the outside islands. So it seems to me raising that proposal. Will you - - question does not go to this issue. That question was de cided and, so far as I know, it has not been reconsidered. ROBERTS: May I speak to that, please. It seems to The only question here is on an amendment, which is proper, me that we have provided for two methods of amending this which requires a majority of the qualified voters voting Constitution. All that we have voted on thus far is on the thereon to approve it. question of the provision for the calling of a constitutional convention. This section provides for amendments proposed [The last part of Delegate Roberts’ speech and the next by the legislature. It’s a separate section, and therefore has twenty minutes of debate were not recorded. The following separate provisions. I can see no objection to having sepa is taken from the minutes. 774 REVISION AND AMENDMENTS Delegate Roberts stated the other proviso in the constitu question they had voted on a few minutes ago; though he tion had other limitations and that required a majority in was in sympathy with it, he thought it had been settled by each of the counties; that it seemed to him that question the prior vote. had no bearing on this particular proposal and the proposal Delegate Ihara stated that regarding the question by would not take away the provision acted on yesterthy. the lady delegate from the fourth district, that was the Delegate Ihara stated that having voted in the majority reason why he had put that question about reconsideration. on paragraph six of Section 2, he would move to reconsider Delegate Porteus asked the mover to read the amendment action on that paragraph. in its entirety. The Chair ruled that Delegate Ihara was out of order, Delegate Roberts stated that the amendment provides that that the committee was debating on the last paragraph of “If the proposed amendment or amendments or any of them Section 3, and that the delegate was introducing entirely shall be approved by a majority of the legally qualified voters new matter. of the state voting thereon, the same shall become part of Delegate Lai stated that he could not see any difference the Constitution on the thirtieth thy after the election, unless between amendments made by the convention or by the otherwise provided in the amendment or amendments,” and legislature, and he did not think there should be ratification then the proviso that the committee had already acted upon, of amendments by different methods. which is part of the previous paragraph. Delegate Nielsen stated that he would like to hear from A roll call being demanded, the motion was put and lost the legal staff here. on the following vote: Delegate Been stated that in connection with the remark Ayes, 13 (Akau, Arashiro, Corbett, Been, Ihara, Kawa about the famous proviso about not changing the makeup of hara, Kawakami, Loper, Mau, Nielsen, Ohrt, Roberts, the Senate, his statement in that regard was that one consti Shimamura). Noes, 40. Excused, 10 (Fong, Kauhane, Lee, tutional convention cannot bind a subsequent constitutional Mizuha, Noth, Phillips, Sakakihara, Silva, A. Trask, convention, and he felt that that provision had no validity Yamauchi). at all; that it would be the same thing as one legislature Delegate King advised the committee that he had granted passing an act and saying in that act, “This Act shall con permission to certain of the delegates to attend a meeting of tinue for ten years” and then another legislature comes the Holdover Committee of the legislature, and so if they along after that and repeals it; they cannot bind a succeed did not answer, it was to be understood that they were prop ing legislature. erly excused. Delegate Wirtz stated that what the delegate from the The Chair thereupon put the motion to tentatively adopt second district wanted clarified was that this proposed the paragraph, which was carried. amendment now would in effect, as to this type of amend Delegate Fukushima moved for the adoption of Section 3 ment, differ from the procedures adopted yesterthy by as amended. Seconded by Delegate Lai and carried. eliminating that proviso in Section 2. Following considerable debate, Delegate Roberts stated Delegate Fukushima then proceeded to read Section 4, that in order to clarify any misunderstanding there might and then moved that it be adopted. Seconded by Delegate be with the delegates from the outside islands, even though Mau and carried. he had voted against the proviso which was in the first sec Delegate Fukushima at this time moved that the committee tion, he would move a further amendment to include that go back now to paragraph four of Section 2; that the amend proviso in the section so there would be no doubt in the ment proposed by Delegate Tavares had been distributed minds of the outside island delegates that he wanted to take and was on the delegates’ desks., away anything which they obtained on the floor yesterthy. Delegate Tavares moved the adoption of the amendment, (RECESSS which he read, as follows: Unless the legislature shall otherwise provide, the The Chair called upon Delegate Roberts, asking if he had delegates to such convention shall consist of the same made an amendment to his original motion. number, and be elected from the same areas, and the Delegate Roberts stated that the paragraph as it now reads, convention shall be called and conducted in the same that it was not his intention to delete the proviso, and there manner, as nearly as practicable, as were required fore he moved that the same proviso which was now provided for the Hawaii State Constitutional Convention of 1950. in the paragraph also be included in his amendment so that Seconded by Delegate Nielsen, and carried. the section before the committee would contain the ‘same thing after the semicolon on page 2, “provided that no constitu Delegate Fukushima moved that Section 2, as amended, tional provision altering” etc., which was acted on earlier be adopted. Seconded by Delegate Lai, and carried. in the Convention, so the language would be the amendment Delegate Fukushima then moved that the committee go plus the proviso, and he moved for a roll call vote. back to Section 1 which had been tentatively approved, so Delegate James Trask seconded the motion. the opponents to this section and the proponents of the initiative could file their amendment if they saw fit. Delegate Kellerman asked to speak against the first part of the amendment, not the proviso; that this amendment up The Chair stated that the committee would go to the to the point of the proviso was now reducing the number re amendment to Proposal No. 9, together with Committee quired votes to amend the Constitution which the committee Report No. 47. had already approved, where the amendments were being ‘Delegate Fukushima at this time stated that the commit proposed by a convention especially called for drafting tee had for consideration now Standing Committee Report amendments to the Constitution, and that it seemed to her 47 and the Minority Report, which was Standing Committee that the reasoning was upside down. Report No. 49, which dealt with initiative, referendum and Delegate Anthony stated that he thought the committee recall, and he stated that he would like to turn this matter should take a firm vote on this, that this was the same over to his vice chairman, Delegate Lai. 775 JUNE 16, 1950 • Morning Session Delegate Lai stated that he felt that the committee should ed section by section or the whole thing, and he again moved take the two reports together, the minority report and the that the amendment be agreed to. Seconded by Delegate Kawa majority report, because they were on the same subject. hara. The Chair asked if it was the desire of the committee to Delegate Lee asked if that meant the amendment was in go through the proposed amendment, and Delegate Lai sug toto to adopt the entire proposal, and also asked if it would gested that the minority make their motion, and the matter not be better to discuss the proposal section by section. could then be discussed. Delegate Anthony stated that he thought all the minor fty Delegate Fukushima stated he would like to clarify the wanted was a vote on the simple issue whether or not there situation, and he believed the Secretary would have the same should be the inftiative incorporated in the Constitution and information, that Standing Committee Report No. 47 had to he asked why the commfttee couldn’t take a simple vote on do with statutory initiative and referendum; that the stand that issue, rather than going through this step by step. ing committee had before ft two proposals favoring the in Delegate Lai agreed wfth Delegate Anthony, and felt that clusion of the initiative and referendum, which were Pro the matter should be discussed as a whole, instead of section posals 113 and 148; that the majorfty voted on the question by section. and decided to reject Proposals 113 and 148, and recommend the filing of those two proposals; that Standing Committee The Chair thereupon asked if the minorfty would agree Report 49 had attached thereto a proposal in the form of an to that suggestion by Delegate Anthony. amendment to Commfttee Proposal No. 9; that this had to Delegate Kawahara, in answer to the question, stated be done because of this sftuation. The minorfty could not that the problem arises that some people were probably come out with a minority report inasmuch as ft was not a inclined to believe that some clarification of this proposal commfttee, being only a minority; they could not amend might be made, and if the commfttee took the proposal as another individual proposal referred to the commfttee be a whole, probably ft would not give a chance to those people cause that would violate one of the rules of the Convention to express their views, and he was inclined to believe that which tried to discourage the adoption of any individual ft would be better to take the proposal up section by section. proposals; that therefore, in order to have their minorfty proposal considered, it was suggested by the Secretary, Delegate Porteus stated that as he understood, the sug in accordance wfth the rules, that that amendment be gestion was made that the commfttee attempt to determine appended to Commfttee Proposal No. 9, and so he believed now whether this Convention was in favor of a constftutional the vice chairman was right, that if the proponents of ini provision covering the inftiative and referendum; that if ft tiative would like to amend Committee Proposal No. 9, they was indicated that they favored something like that, then the sbould carry the ball and take up the laboring oar. committee would go forward with this other matter section by section; that if the people don’t want ft, no matter how Delegate Heen stated that ft seemed to him that action ft was spelled out, the commfttee would be wasting a lot of should be taken on Commfttee Report No. 47, wherein it time going over ft section by section; that the idea was to was recommended that two proposals be filed, they would get a concensus vote and then after that get down to the serve no further purpose at all in this Convention, and he individual sections, if necessary. thereupon moved that Standing Committee Report No. 47 be adopted. Seconded by Delegate Smfth. Delegate Crossley stated that he believed the original motion that was originally made and seconded said exactly The Chair stated that as he understood ft, the suggestion that, and would accomplish that purpose, the original was that the committee take up Commfttee Proposal 9 wfth motion was the adoption of the entire proposal of the minor the specific understanding that the amendments offered by fty. the minorfty be considered afterwards. Following some discussion, Delegate Nielsen stated that Delegate Heen stated that the minorfty report was design there was an understanding yesterday as to how this was to ed to amend Commfttee Proposal No. 9, and therefore proceed, but if the commfttee were to vote on the major had nothing to do wfth the proposals recommended for filing. question as to whether there should be inftiative at all in the Constftution, he thought it would foreclose the minorfty Delegate Fukushima stated that Proposal 148 was about from presenting what they thought they had to sell to the the same as the proposal submitted by the minorfty. Convention, and he stated he wanted to hear what they had, Delegate Nielsen stated that that was correct, and asked and he thought that they should consider ft section by section. if ft would not be proper to go ahead and move wfthout accept [Recording resumed.] ing this Report No. 47 and then the commfttee would be able to go on and let the minorfty amend the proposal. LA]: To be technical, don’t you think we should adopt Report No. 47 first, because that is the majorfty report Delegate Lai stated that if they adopted Report No. 47, from the commfttee, and that’s what we are here to decide, that would foreclose any minorfty amendment, and the Chair to decide on committee reports. If the minority want to agreed that that was how he feft about the problem before amend this thing, I think they should come afterward. I the committee. don’t mind, I concede to the idea of voting on the subject first. If you all favor to have that in the Constftution, ft’s Delegate Porteus asked if ft would not be possible to all right wfth me; then we go section by section, see. But proceed as the Chair had suggested, that the committee consider the question by the minorfty of the standing com I think the commfttee report should come in preference to mittee; that the burden was on them to stand up and make the any other report. motion and ask for passage, and ft was now in order for MAlI: We had an understanding yesterday how this was them to be recognized and make their amendment. to proceed. We’re on the right tract in accordance wfth the agreement yesterday, but if we were to vote on the Delegate Nielsen thereupon moved that the minorfty major question as to whether or not we should have inftiative report and amendment submitted with the minority report at all in the Constftution, I think ft would foreclose the be agreed to, with reference to Commfttee Proposal No. 9. minorfty from presenting what they think they have, some The Chair inquired whether he meant the whole amend thing to sell to this Convention, and I want to hear what ment, and Delegate Nielsen stated that ft could be consider- they’ve got to sell. I think that even though that motion is 776 REVISION AND AMENDMENTS to adopt the whole minority report, they should consider it dation made by the minority is that the initiative method be section by section; otherwise, we cannot intelligently vote applied with reference to constitutional amendments. on this important question. HEEN: The situation as it stands now is this. The KING: The Standing Committee Report No. 47, which is motion, as I understand it, is to adopt the minority report the majority report, recommends that there be no initiative and if that is adopted, it would mean the adoption of the and referendum. If a motion were offered for the adoption proposal that was attached to that minority report, and of that report and seconded, then the minority could offer that would be an amendment of Committee Proposal No. 9. an amendment that Standing Committee Report No. 49 be So we can at this time debate that whole question as to considered in place of it. Wouldn’t that make a clean-cut whether or not Committee Proposal No. 9 shall be amended vote on the issue? by this proposal submitted by the minority. CHAIRMAN: Insofar as it relates to the subject matter of WIRTZ: I’d like to point out one thing in this connection, initiative and referendum upon statutory matters. and that is that the amendment as submitted with the minor KING: Right. ity report applies to both constitutional and statutory matters. So that if it is adopted, it will, in effect, require us to re TAVARES: Unfortunately, I think we ought to clarify consider everything we have done insofar as constitutional what Committee Report No. 47 does. Committee Report methods of amendment, because it changes the entire pro No. 47 recommends against the initiative method of adopting cedure and includes an additional method, namely, the statutes. Then Committee Report No. 48 refers back to initiative. Committee Report No. 47 insofar as 48 relates to consti tutional amendments and says for the same reason stated in NIELSEN: May I speak on the amendment? The reasons Report No. 47, we reject initiative - - the initiative method are outlined in Standing Committee Report No. 49. I’m not for constitutional amendments. I think the members should going to take the time to read them, but the main thing that understand that so tbat if we adopt 47, we are only voting on comes before the Convention at this time is the fact that the right to initiate legislation by the initiative method. we’ve made arrangements to amend our Constitution, but That’s all right with me, I’ll vote either way. we’ve ignored the right of the people in any way whatsoever to initiate statutory measures. I think that possibly by CHAIRMAN: The Chair is trying to ascertain what pro amending the sectfons that we yoted on this morning so far cedure the assembly would desire to adopt. as the Constitution, it could be made to cover statutory NIELSEN: If the delegates here have read the minority matters as well as the Constitution. But whatever we do, as report and are ready to vote, that is the big question I have decided by the Convention, is entirely satisfactory. in my mind. I feel that with so many states allowing the In the amendment as proposed, there are some that do people to initiate and handle legislative matters by initiative not like the direct method. They prefer the indirect method and referendum that this should be considered and that it and that could be corrected if we went through the whole really has a place in the Constitution if the people of the amendment section by section. However, by getting the State of Hawaii are going to really be their government. sense of the Convention on a vote as to whether they want to Now in committee, five people decided that all the people give the people the right to initiate - - initiative or referen in the territory should not have any right to initiative or dum measures as to statutory legislation, that will decide referendum as to statutory measures. I think it should the whole thing and I have no objection if a vote is taken on have further consideration than for just five people to de that, on the amendment in that respect. cide that for the entire State of Hawaii. That’s the reason I filed the minority report. CHAIRMAN: Then, Delegate Nielsen, is the Chair correct in understanding from you that you would be willing to with CHAIRMAN: The Chair is still in doubt as to what pro draw the original motion made with reference to the amend cedure this committee may follow. ment and ascertain at this time the consensus of the dele gates with reference to the question of direct initiative TAVARES: To clarify matters, I second Delegate King’s of constitutional amendment? motion that we adopt Committee Report No. 47, which will dispose of the question of statutory initiative. NIELSEN: That would be all right. I’d like a roll call vote on it. HOLROYDE: Point of order. I think there is a motion before the house by Delegate Nielsen to adopt this as an CHAIRMAN: Then would someone make a proper motion amendment, his minority report. He made that motion to that effect, please? and it was seconded. MAU: Point of information. Do I understand that the CHAIRMAN: The order is well taken. There is a motion minority now is willing to concede that they are - - that made by Delegate Nielsen and duly seconded. portion of their amended - - proposed amended proposal relating to constitutional amendment by initiative be dropped? TAVARES: Point of information. Does that mean that Is that the idea? And that they are now merely advocating It’s a proposed amendment to Committee Proposal No. 9? initiative insofar as statutory law is concerned? But it doesn’t say where it will go and - - CHAIRMAN: No, we are shortly to ascertain how the Com KING: At the end of the Committee Report No. 49, it mittee of the Whole feels on the question of constitutional recommends the addition of this initiative and referendum amendments by direct initiative. proposal to Proposal No. 9. It is an amendment to Proposal No. 9. It seems to me the question is now before the Con MAU: No, I would like to have one of the members of vention and can be discussed on the basis of Mr. Nielsen’s the minority answer that. As I got it, that is their position. motion that has been already seconded. I didn’t make a They are not interested now in attempting to amend the motion, I only made a suggestion. Constitution by initiative, merely pointing it to statutory law. Is that correct? CHAIRMAN: That is the reason why the Chair felt that the suggestion made by Delegate Anthony was an excellent NIELSEN: That is correct. We have already devoted one, namely, we have taken up the constitutional revision yesterday and most of the morning on the constitutional and amendments, insofar as the majority - - committee pro amendment. As to statutory amendments, we have made posal by the majority is concerned. Then the recommen no provision whatever. Now, I would like to see a vote taken JUNE 16, 1950 • Morning Session 777 on whether statutory amendments shall be subject to initiative chance will the outside islands have in any matter of legis or referendum. lation? We are sunk. HOLROYDE: Wouldn’t we be able to get at this If the SMITH: I believe that in the statement of Delegate Niel minority moved for the amendment to Committee Proposal sen, he didn’t think that five persons in a committee should No. 9 as submitted by them in substance only, with the be able to tell the whole territory whether we should have understanding that if they win approval by that vote, that we initiative or referendum or recall or not. He was asking, will go into the detail of their section thereafter? I believe, all he was asking was that a verification of the five be made by the Committee of the Whole. DELEGATE: There is such a motion before the house, I believe. CHAIRMAN: You ready for the question? All those desir ing roll call will signify by the show of hands. Keep your HOLROYDE: I understand Delegate Nielsen withdrew his hands up, please. motion. HEEN: I rise to a point of information. What is the ques NIELSEN: No, I don’t think I withdrew the motion, but I tion? said that if they wanted to take a vote regarding initiative and CHAIRMAN: The question is the suggestion made by referendum of statutory measures, why that would practically Delegate Porteus, which was accepted by Delegate Nielsen decide the same thing. As I understand it, at present we have to be his motion, that the Committee of the Whole proceed a motion to adopt 47, which is to file initiative or statutory to determine whether or not the committee favors statutory referendum. Now I have amended that to include - - my initiative and referendum. And if that is adopted, then we amendment would reverse that. It would include initiative shall go into this amendment, section by section, relating and referendum by the people. Now if my amendment fails, to that subject matter. why then, the people don’t want initiative or referendum covering statutory measures. ROBERTS: Point of order. I don’t think that the ques tion was that. As I heard the question, it was whether or ROBERTS: I think we are in the Committee of the Whole, not the Committee of the Whole wants to consider the ques the purpose of which is to get the sense of the Convention tion of initiative - - statutory initiative and referendum. with regard to specific proposals and on specific questions. I for one, cannot support the article proposed by the minor CHAIRMAN: That is correct. The Chair stands corrected. ity. It covers initiative, it covers referendum, it covers CROSSLEY: On a point of order, I believe that the pre statutory initiative, it covers constitutional initiative. It vious motion made by the delegate from Hawaii should be seems to me that we’ve got to have something to discuss withdrawn. specifically, not an over-all proposition. It would seem to me, therefore, that under normal procedures, the minority CHAIRMAN: The Chair understood that he was willing to would ask that its report be substituted for the majority and withdraw that in favor of that subsequent motion. you would get a straight out-and-out vote on the question LEE: Point of information. When the first motion was one way or the other. In the Committee of the Whole, how made to adopt Committee Report 47, it made sense. Now ever, I think it’s perfectly proper to get the sense of the the motion has been changed, as I get it, whether or not Convention and to put the minority report to us, not on adop the Committee of the Whole wants to take up the subject of tion, but for consideration, and then if any amendments are statutory initiative. Actually, you have a better vote on the proposed on specific items, we then have the opportunity to first motion than on your second. The second you say you vote on them. So something has to be gotten before our don’t even want to consider it, whereas the other one you Committee of the Whole to discuss. say you are for or you are against it. I would therefore suggest that instead of voting on the entire proposal, that the committee consider the proposal LAI: I think Delegate Lee is right. I think the vote and see if any amendments are offered to that which might should be on Report No. 47. If the opinion of the Convention be acceptable to some, so that we get the sense of the Con doesn’t want initiative and referendum in the Constitution, vention. Otherwise, if we vote this thing down, you’re pau, then let’s vote for Report No. 47. And if you do want it, and you have had no opportunity for others to express their then vote against that. I think that’s the proper way to do. opinion with regard to some modifications. The motion is already made and seconded; so if we take a vote on Report No. 47, that would clarify everything. PORTEUS: I think what the delegate has said is perfectly true. There may be those in the Convention who have more CHAIRMAN: There is a new motion before the Commit or less made up their minds after the study of this subject, tee of the Whole now. what they’d like to do. I’ve consulted with the representa FUKUSHIMA: I think we’re confusing a lot of things tive from the - - delegate from the second representative which are very simple. I move at this time, that it is the district, who made a previous motion. He informed me sense of this committee that we favor the inclusion in our that he would be satisfied to bring this matter to a head on Constitution of statutory initiative and referendum. a motion that this Committee of the Whole now proceed to consider statutory initiative and referendum. If that CHAIRMAN: Is that an amendment? There is a motion before - - carries, we will then go into the subject. If it loses, it means that the Committee of the Whole does not desire any FUKUSHIMA: Yes. further investigation of the subject. He has informed me NIELSEN: Is it necessary for me to withdraw my pre that he’s willing to make a motion to that effect to bring vious motion? I so do. this to a head. DOI: I second the motion. CHAIRMAN: Is that the motion? CHAIRMAN: That will make one motion before the NIELSEN: That is the motion and I so move. assembly. Will you state the motion again please, Dele SMITH: I’ll second it. gate Fukushima? H. RICE: I’m surprised that three of the so-called neigh FUKUSHIMA: I move that it is the sense of this commit bor islands should sign a minority report like this. With tee that we include in our Constitution the provisions of 70 per cent of the vote here in this City and County, what statutory initiative and referendum. 778 REVISION AND AMENDMENTS CHAIRMAN: Second to that motion? jections raised to its form or substance. After the initiative AKAU: I second it. measure is submitted to the people, no matter how many weaknesses, evils or faults are discovered during the course ROBERTS: I’d like to speak to that question. It would of the campaign for or against its adoption, it cannot be seem to me that such a motion would prevent individuals amended; the people must take it or leave it as is. who could support some provisions in the Constitution Realizing this basic weakness, the proponent of the dealing with statutory initiative, perhaps not with the initiative have hit upon the indirect initiative as an alleged referendum, from getting to the question. The question means of overcoming this defect. However, even this does is too broad; the question does not permit a show of the not fully meet the situation. If an initiative measure appears sense of this Convention with regard to the problem. I, to the legislature, to which it is submitted under the in therefore, would feel that I would have to vote against such direct initiative system, to be in bad draftsmanship, im a proposal, even though I could support, in proper language, practicable, or otherwise undesirable as to warrant its being a provision with regard to statutory initiative. entirely rejected, it is asking too much of human nature FUKUSHIMA: I withdraw my motion in that event and to expect them to spend days, perhaps weeks of study, make a new motion. I move that it is the sense of this debate and redrafting just to put the measure in as nearly committee that we include in our Constitution the provision perfect form as possible. The result would be submission for statutory initiative. of the original or some poorly redrafted substitute to the electorate to be voted on, without any further opportunity NIELSEN: I’ll second that. for amendment. LAI: I’m speaking for myself and for the members of Initiative and referendum are expensive. The State must this committee who signed a report against the inclusion pay for the printing of petitions, ballots, information pam of the initiative and referendum and recall in this Consti phlets, the cost of mailing such information to voters, other tution.! If you don’t mind—bear with me for a few minutes— advertising costs, the checking of the petitions to see that I will take up few main points from the report. Initiative they have been signed by requisite number of voters and and referendum are found in the constitutions of 19 states; the election expenses. Much greater expenses fall upon the most of these states adopted these methods of direct legis sponsors and opponents of the measure. They must pay lation between 1898 and 1918, and since then no other states the cost of securing signers to the petition and underwrite have adopted them. This is because - - an expensive campaign to inform and influence the voters on the issue. Your committee was given figures indicating MAU: What page are you reading from? the cost to defeat the Townsend pension plan in Oregon was $44, 000. Recently, in California, because the taxpayer did PORTEUS: I rise to a point of order. I don’t think the not make available substantial private funds to oppose Pro speaker when making a speech, ought to be asked what page posal No. 4, which provided abnormally high payment to he’s reading from. the aged, leaving insufficient funds for other government LAI: No, this is my own words, to summarize the points. purposes - - MAU: Oh, excuse me. I’m sorry I thought he was read CHAIRMAN: Delegate Lai, you have two minutes more. ing from the majority report. LAI: - - it was necessary to spend $900,000, imagine LAI: No, if you read that, we won’t get home tonight. $900, 000, to bring the subject before the electorate again It’s rather long, so I just want to summarize that. and defeat it. Initiative has, according to some authori CHAIRMAN: Proceed with your argument, Delegate Lai. ties, even produced professional publicists who, for stated fees of so much a head or other consideration, undertake to LAI: This is because the results were not as good as secure the required number of signers to any petition or to they had first claimed to be by those who believed that the sway the election. cure for all of our ills was more direct democracy in all Say, I have a few more paragraphs to make. May I have forms of government. Because of possible abuse, inherent unanimous consent to continue? defects of the system have become more apparent in recent CHAIRMAN: You have one minute. years. And also because the legislative machinery has been modernized and improved by having more frequent sessions of the legislature, by adopting rules and procedure to ex ANTHONY: I think the Chair should get the unanimous pedite legislation, and to avoid ice-boxing of bills, and by consent. having more adequate compensations, technical and other CHAIRMAN: You may proceed. assistance to the legislators. Proponents of initiative and referendum claim that people LAI: Thank you. should be given mOre direct say in running our government. The small size of the proposed State of Hawaii having Delegates, you must remember our government is the rep a population less than that of many large cities, with its resentative type of government. It is the government of the less complex problems than those of most of the states which people through elected representatives whose duty is to study have a very large number of counties, make it possible for problems and enact legislation that would be of greatest our legislators, because of personal knowledge and contact, benefit to all the people. The legislature is the only branch to consider adequately and with reasonable promptness, all of our government with its entire membership elected by of the local and general problems which are likely to arise. the people. Initiative and referendum will tend to reduce The fact is that, according to figures given to your com the importance of the legislature and the responsibility of mittee, in a number of cases fewer persons voted on an the legislators. initiative proposition than signed the petition. The small The use of the initiative eliminates deliberation, amend number of persons that often vote on such a question is ment and compromise usually necessary to produce sound further indication that the signing of an initiative petition is and lasting legislation. The people must vote yes or no often procured without any real understanding of or interest on the proposal once submitted to the electorate. In the in the measure on the part of the signer. This is because legislature, a bill may be amended any number of times, any possible opponent of the measure cannot be present and after considerable debate, its weaknesses are being at such time, and consequently is unable to expose false disclosed, or opposition forces compromise between ob statements of fact, unsound arguments, half truths or to 779 JUNE 16, 1950 • Morning Session present countervailing arguments, facts or other pertinent CHAIRMAN: All those in favor of adopting Committee information. Report No. 47 will signify by saying “aye.” Contrary Referendum, independently of the initiative, for many of minded say “no.” Carried. the foregoing reasons is also objectionable in the view of FUKUSHIMA: I believe we have only one other thing to the majority of your committee. In addition it is believed consider, so I’ll make a motion at this time that it is the that the referendum, whether compulsory or optional, tends sense of this committee that we include in Section 1 of to further weaken the legislature and to encourage it to Proposal No. 9, popular initiative. I think that was the pass the buck, and thereby avoid the responsibility to make understanding. I’m not in favor of that, but in order that laws, for which it is elected. A strong, responsible and we may not foreclose the minority, it was understood when responsive legislature can best be assured by giving it full we passed Section 1. Now we voted merely on statutory and sole responsibility and holding its members thereto. initiative. Now the question is, we still have constitutional So, I therefore ask delegates here to vote against the initiative. So I’ll make a motion at this time that it is the initiative and referendum - - statutory initiative and referen sense of this committee that we favor initiating constitutional dum. Thank you. amendments, besides the initiation by the legislature and by H. RICE: Point of order. We’ve been considering yester constitutional convention, a third method which is popular day and this morning Standing Committee Report 47 - - 48. initiative. It seems to me that Delegate Lai’s first proposal was correct. NIELSEN: I’ll second that motion. If they have any amendment, they should amend that first CHAIRMAN: Will you restate that motion a little more section in Committee Report 48 and not switch over. And clearly, please. where are we going to end? Are we going to take another day and a half to talk over all these new proposals? I think FUKUSHIMA: I move that it is the sense of this commit we’re wasting a lot of time. tee that we include in Section 1 of Committee Proposal No0 9 popular initiative as the third method of initiating constitu CHAIRMAN: Strictly yes, but there was that explicit un tional amendments. derstanding before we considered the proposal submitted by the majority committee. CHAIRMAN: All those in favor say “aye.” Contrary minded, “no.” The noes have decidedly won. KING: If the amendment carried, the whole matter could be referred back to the committee to include in its final FUKUSHIMA: I now move that we adopt Section 1 of proposal a provision for statutory initiative and referendttm. Committee Proposal No. 9. But the pending motion is only to approve of the statutory CROSSLEY: I’ll second that motion. initiative, as I understand it. Is that correct? CHAIRMAN: Going back to the original proposal, Section CHAIRMAN: The motion pending before the Committee 1, all those in favor of that motion please signify by saying of the Whole now, it is that the sense of this committee that “aye.” All those opposed say “no.” Carried. we include in our Constitution the provision of statutory FUKUSHIMA: I now move that we adopt the article on initiative, period. All those in favor of that motion will revisions and amendments in its entirety as amended. signify by saying “aye.” LAI: I second that motion. DELEGATE: Roll call. CHAIRMAN: All those in favor of the motion. CHAIRMAN: Will you signify by the show of your hands, how many of you desire roll call? Roll call. BRYAN: I think the motion would be that when we arise, we report recommending - - Ayes, 19 (Akau, Arashiro, Doi, Fukushima, Ihara, Kauhane, Kawahara, Kawakami, Kido, Luiz, Mau, Nielsen, FUKUSHIMA: I’m making that recommendation sub Roberts, Serizawa, St. Sure, J. Trask, Yamamoto, Yama sequently. uchi, Okino). Noes, 39. Excused, 5 (Mizuha, Noda, Phil BRYAN: Is that correct? I retract my -- lips, Silva, A. Trask). CHAIRMAN: All those in favor of that motion, adopting FUKUSHIMA: I now move that it is the sense of this com Section 2 of this proposal as amended. mittee that we favor the inclusion of statutory referendum. FUKUSHIMA: The entire article as amended. NIELSEN: I second the motion. CHAIRMAN: Oh! The entire article as amended, will CHAIRMAN: All those in favor of that motion will signify signify by saying “aye.” Contrary minded say “no.” by saying “aye,” that is, for statutory referendum. Carried. DELEGATES: Roll call. FUKUSHIMA: I now move that we rise and report prog ANTHONY: We don’t need a roll call on that. I don’t see ress and when we do rise that we recommend the adoption why those in the minority don’t recognize that. of the article on revision and amendments as amended. PORTEUS: I wonder whether it wouldn’t also be appro CHAIRMAN: A request has been made. Will you signify priate to move - - include in the motion the adoption of the by the show of your hands please, those desiring roll call. Committee Report 47. Three. All those in favor of the motion will signify by say ing “aye.” Contrary minded say “no.” The motion is CHAIRMAN: And Committee Report 48? defeated. The noes have it. PORTEUS: And Committee Report 48 as well, and that 47 not be adopted. I mean 49. FUKUSHIMA: I now move that we adopt Committee Pro posal No. 47. HEEN: I would suggest that the committee rise, report progress and ask leave to sit again at a later date and in the LAI: You mean the Committee Report No. 47. mean time a written report be prepared when the committee FUKUSHIMA: That’s right. sits again. LAI: I second that motion. FUKUSHIMA: I’ll accept that and I’ll second that motion. 780 REVISION AND AMENDMENTS CHAIRMAN: All those in favor will signify by saying “aye.” DOl: I second the motion. Contrary minded say “no.” CHAIRMAN: Are you ready for the question? All those JUNE 24, 1950 • Morning Session Carried. signify by saying “aye.” Contrary minded say “no~” in favor CHAIRMAN: The Committee of the Whole will come to FUKUSHIMA: I now move that the committee rise and~ order, please. We have before us for consideration this report its recommendation, the adoption of Committee of morning Committee of the Whole Report No. 9. I’m sure the Whole Report No. 9. printed copies of the report have been circulated and placed upon the desk of each delegate. KAM: Second the motion. FUKUSHIMA: I move the adoption of Committee of the CHAIRMAN: Delegate Kam seconded the motion. All Whole Report No. 9 recommending passage of Committee in favor of the motion signify by saying “aye.” Contrary Proposal No. 9 as amended on second reading. minded say “no.” Carried. Debates in Committee of the Whole on ORDINANCES AND CONTINUITY OF LAW (Article XVI) Chairman: NELSON K. DOl JULY 3, 1950 • Morning Session Territory of Hawaii. As everyone knows, under the Organic Act all process must run in the name of the Territory, and CHAIRMAN: The Committee of the Whole will now come therefore, all process in the Territory, that is for the - - I into session to consider Committee Proposal No. 23 and think the laymen know what a process is, but as you know, Standing Committee Report No. 68. Is the chairman of the process is any writ, warrant, summons, subpoena and committee ready to proceed? so forth which is issued under authority of the courts. Now SHIMAMURA: Yes, Mr. Chairman, we are. it validates, as I’ve said, all process issued prior to the admission of Hawaii into the Union as a state, even though CHAIRMAN: Could Delegate Shimamura outline the such process may have been issued under the territorial procedure we should follow in considering this committee form of government and by territorial courts. But this report and the committee proposal. section, of course, does not seek to validate any defective SHIMAMURA: I believe, if I may so suggest, that it will writ; any writ which was defective, any process, that is, be preferable for us to consider each section as we go along, that was defective prior to the admission of the state into with some commentary on each section from a committee the Union will remain defective. For example, as I men member. tioned, in case a writ, a summons or an order to show cause omitted the style of the process, the Territory of CHAIRMAN: That is acceptable to the Chair, and I think Hawaii, then such a writ will not be validated merely by we should follow that procedure. this section. SHIMAMURA: As to Section 1 of the Committee Proposal CHAIRMAN: Is there any other discussion? All those No. 23, I move for the adoption of the section. in favor of the motion, please say “aye.” Opposed, “no.” SAKAKIHARA: I second it. The motion is carried. CHAIRMAN: Delegate Sakakthara has seconded the SHIMAMURA: I move for the adoption, tentatively, of motion. It has been moved and seconded to adopt Section 1 Section 3 of Proposal No. 23. tentatively. Any discussion? A. TRASK: Second it. SHIMAMURA: Section 1 is adopted here. The delegates will recall that at the opening session of this Convention, a CHAIRMAN: It has been moved and seconded to adopt resolution was adopted adopting the Constitution of the Section 3 of Committee Proposal No. 23. Any discussion? United States on behalf of the people of Hawaii. Now Act 334, SHIMAMURA: This section continues all laws of the Section 3, requires such an adoption. Also Section 3 of Territory of Hawaii which are in force on the date of the H. R. 49, prior to its amendment by the Committee on admission of Hawaii into the states. It provides for the Interior and Insular AIfairs of the Senate, also provided continuance of all laws which are not inconsistent with, or for such adoption. Now there is no mandatory requirement repugnant to, this new Constitution of Hawaii. And the either in Act 334 or in H. R. 49 for incorporation of the term “laws” is intended to include all rules, regulations adoption of the Constitution of the United States in our and ordinances of the City and County or counties having Constitution, but the Committee on Ordinances and Con the force and effect of law. tinuity of Law felt that it would be a wholesome and a help Now as to the use of the word “mutatis mutandis” or ful thjng to do; therefore the incorporation of Section 1. “mutatis mutandis,” if you like—some persons prefer the CHAIRMAN: Is there any other discussion? Are you latter pronunciation—that means, as everyone knows, all ready for the question? All those in favor of the motion to changes, necessary changes being made, and those words adopt will say “aye.” Opposed, “no.” The motion to adopt were inserted at the suggestion of Miss Ashford, the vice- Section 1 is carried. chairman of the committee, to take care of situations where the law may not be applicable by the use of the words, Terri SHIMAMURA: I move for the adoption of Section 2 of tory or Territory of Hawaii or Treasurer of the Territory of Committee Proposal No. 23. Hawaii. But it is not intended by this, by the use of these SAKAKIHARA: I second the motion. words, that substantial changes should be made in the laws. CHAIRMAN: It has been moved and seconded to adopt TAVARES: I take it that in line with the chairman’s Section 2 of Committee Proposal No. 23. Any discussion? statement that this explanation is not exhaustive, there would also be included in the intent of this section the SHIMAMURA: The purpose of this section is obviously substitution of the proper officers or offices who may be the to preserve existing rights, actions, proceedings, contracts, successors under different names even, entirely different and so forth. The necessity of such a provision is also names, of existing offices and officers. So that it will be obvious. Unless we had such a provision, it may be that implied that whatever function is transferred from an exist outstanding rights, obligations and contracts, actions may ing office to an office under the State will also be considered abate. Also, it is important that administration of law con in the term substituting the proper names or terms for the tinue in spite of the change from a territorial to a state ones existing beforehand. form of government. Also this section, as you will notice, in the second portion after the semicolon provides for the SHIMAMURA: Yes; the statement made by the delegate validity of all process previously issued in the name of the from the fourth district, Mr. Tavares, is quite correct. 781 782 ORDINANCES AND CONTINUITY OF LAW For example, we now have the secretary of state - - of the think we could well at the end of this proposal put in a clause Territory rather, and in our new Constitution under the that the lieutenant governor shall succeed to all the duties section on executive powers, we’ve included provision for and powers of the secretary of Hawaii. the lieutenant governor. Now any function that is to be performed under our present laws by the secretary of ASHFORD: I call to the attention of the Convention that Hawaii will be and shall be performed by the lieutenant by implication, at least, in another article the lieutenant governor. governor is assumed to be the man who is going to look after elections because I think it’s in revisions and amendments TAVARES: There is one other thing. I believe I was to the Constitution that it provides that in the event that a probably overruled by the committee on this. I’m still a ten year period shall elapse without a convention that the little concerned about the possibility of a hiatus by only lieutenant governor shall submit such question to voters. continuing in effect the laws not inconsistent with the Consti tution, and before the Convention is over, if I can think of SHIMAMURA: Also, if I may respectfully suggest, I any situations, I think they should either be covered by believe the report of the Committee of the Whole could very well state that this section not only means the successor offi special ordinances or something else should be inserted to cer with the similar name, but shall also include successor take care of any hiatus. I’m not going to make a point of offices like the lieutenant governor whose name is not the it now, but I think we ought to bear that in mind. Some same as the present officer, to clarify that. thing might occur to us under which merely continuing in effect the laws not inconsistent with the Constitution will I should like to raise one point, that we didn’t have ade leave a hole that isn’t plugged. quate opportunity to consider in the Committee of the Whole a point which frankly occurred to me very recently. We SAKAKIHARA: I would like to - - I’m in accord with the have here in Section 3, “All laws of the Territory of Hawaii” statement made by the last speaker. That is the reason and I’d like to have the considered thought of the other why I did not rise to second the motion to adopt Section 3. delegates as to whether that includes provisions of the Organ I think we should defer action on Section 3 so that Delegate ic Act. If we said “All territorial laws of the Territory of Tavares, who raised this very question to the committee, Hawaii,” probably that would not include the provisions of it could be studied and adequate amendment could be offered. the Organic Act, but since the section reads, “All laws of the Territory of Hawaii,” meaning such laws as may have TAVARES: I’m sorry. I did not intend to ask for delay been enacted by the legislature of the territory, that probably on this but I felt that every member of the Convention ought would not include provisions of the Organic Act, and if it does to be directing his attention particularly to this section so not, whether an interpretation should be included as to our that if anything did occur to him which left a hiatus or a hole intent in the report of the Committee of the Whole, so that that was not plugged, that it would be called to the attention provisions of the Organic Act not repugnant to this Consti of the Convention before it is over, and we can always re tution shall be included here. consider. And as I say, I’m not sure enough of my ground to make a fight for it at the present time, but I think if we CHAIRMAN: I would like to remind the last speaker all think about possibilities we may find these holes and that the Committee of the Whole report cannot contain a perhaps we can handle them by special provisions in another statement saying that it is the opinion of the Committee of section of the ordinances. the Whole merely because one delegate stated it so. I think we must come to an agreement on that, otherwise - - HEEN: I believe that the use of this term “mutatis mutandis” will not take care of the situation where you have ROBERTS: I move that it be the sense of this Committee no secretary of state. Nowhere in any of the articles already that the Organic Act be included in the general language, “All presented to this Convention is there any definite description laws of the Territory” and that such be included in the of the duties of the lieutenant governor. That will have to be Committee of the Whole report. taken care of by legislation and perhaps, as pointed out by CHAIRMAN: Delegate Roberts, did you say “included” Delegate Tavares, there may have to be somewhere in the under the - - schedule, or perhaps in the separate ordinance, that pend ing appropriate legislation the lieutenant governor shall ROBERTS: That the statement of the sense of the Com exercise all of the powers and duties defined in the laws as mittee of the Whole be included in our Committee of the to the secretary of the Territory who later on, of course, Whole report. will become the secretary of state. There has been some HEEN: Does this - - discussion that all of these duties may be placed in the hands of the lieutenant governor and that he as such will be ex CHAIRMAN: That the Organic Act be included - - officio secretary of state. That is a point that has to be ROBERTS: That the Organic Act is covered by the taken care of, as pointed out by Delegate Tavares. term, “the laws of the Territory of Hawaii.” CHAIRMAN: Is there any more discussion? HEEN: I don’t think that will cure the situation. Tech BRYAN: As far as our intent is concerned, the one with nically speaking, the Organic Act is the law of the United respect to the secretary of state, we have covered it in the States applicable to the Territory of Hawaii. That to me committee report on executive powers which should be out is distinct from saying the “laws of the Territory of Hawaii.” and printed before we meet again, and that is specifically As I interpret that term, “laws of the Territory of Hawaii” to the point of certification of returns for the election of are laws passed by the legislature of the Territory of United States senators and representatives. But I think also Hawaii. Therefore, this provision should read “All provi that intent would cover other situations. sions of the Hawaiian Organic Act and all laws of the Terri tory of Hawaii in force at the time of admission.” SHIMAMURA: I think the point raised by the delegate from the fourth district, Senator Heen, is a good one. As ROBERTS: If the senator will make that in the form of a matter of fact, in considering H. R. 49, our special a motion, I will second it. election - - our election ordinance providing for a special HEEN: I so move, that after the word “all” in the first election, I mentioned the matter in the course of discussion line of Section 3, add the words “provisions of the Hawaiian here once and also have a proposed amendment to make Organic Act and all.” So that part of the sentence shall under our provisions to comply with H. R. 49, namely to read: “All provisions of the Hawaiian Organic Act and all designate the lieutenant governor as secretary of state. I laws of the Territory of Hawaii,” and so on. 783 JULY 3, 1950 • Morning Session ROBERTS: Second. move to amend the section by adding after the word “for feitures,” the word “claims” in the first line; and on the TAVARES: I’m sorry I must disagree. I believe that is second page in the first line, between the words “or” and too broad and if there’s going to be such an amendment I “its,” insert the words “any of”; and in the same line make think we should defer, because there are the land laws in the word “subdivision” plural, “subdivisions”; and in the cluded too, and we have treated those specially. I’m a next line or the last line of Section 4, change the word “its” little afraid we might be incorporating a little too much by to “such.” May I repeat that again, Mr. Chairman. On the stating it generally in that fashion. There is a body of laws first page insert after the word “forfeitures,” the word created under the Organic Act, under which we have acted, “claims”; on the second page, the first line, insert between which would be carried over anyway as laws of Hawaii; but the words “or” and “its,” the words “any of”; and in the to incorporate all those laws of the Organic Act without a same line, make the word “subdivision” plural, “subdivi minute study, with all those provisions, I think would be a sions”; and in the last line change the word “its” to “such.” little too - - going a little too far. HEEN: I might point out that later on in that same CHAIRMAN: Do I hear a second? sentence, we have the clause “wit repugnant to this Consti SAKAKIHARA: Second it. tution,” and there might be room for enlargement on that CHAIRMAN: It has been moved and seconded to amend particular phrase, “not inconsistent and not repugnant to Section 4 by inserting the word “claims” after the word this Constitution.” “forfeitures” in the first line; and on page 2, in the first TAVARES: I want to - - my idea is this. That there line, inserting the words “any of” between the words “or” might be something we haven’t mentioned one way or the and “its,” and making the word “subdivision” into a plural; other that we don’t want to carry into effect; and if we and in the second line, inserting the word “such” in lieu of haven’t mentioned something contrary, then we would be “its.” So that the amended form would read - - incorporating it automatically, and perhaps without re LAI: Would this section include taxes and license fees reading very carefully that whole act, it would be unwise due to the Territory or the subdivisions? to do that. CHAIRMAN: Would a member of the committee answer ARASHIRO: Since there’s a dispute in this thing and we the question? Would you repeat the question, Delegate Lai? are not clear as to the language of this thing, I move that - - no, I second that motion made by Delegate Tavares. LAI: Would this section include taxes and license fees due to the Territory or its subdivisions? CHAIRMAN: Did you make a motion, Delegate Tavares? It has been moved and seconded. SHIMAMURA: No, this section does not cover taxes, but the next section covers that. TAVARES: I’ll make that motion to defer to the end of this section, and then perhaps we can defer it further if we ASHFORD: If the amendment be adopted, I think “claims” haven’t come to some different conclusion. might be broad enough to cover that. And may I suggest that as a part of the amendment, the second word “subdivision” CHAIRMAN: It has been moved and seconded that con in the second line on page two should be in the plural also. sideration of Section 3 - - TAVARES: I think I respectfully differ on that last SAKAKIHARA: May I offer an amendment to the amend suggestion. The word “any of its” is singular; “any” is ment, request for deferment until the end of the calendar singular and therefore “such” goes back to the word “any,” day? and therefore it can be singular. I wonder if the delegate would agree with me in the light of that word “any.” TAVARES: I’ll withdraw my motion and let the delegate make his. ASHFORD: I don’t agree, but I’m very amiable. CHAIRMAN: Motion to defer has been withdrawn. HEEN: I think the period at the end of the sentence should SAKAKIHARA: I rise at this time to ask that action be be changed to a comma, and the words “as the case may be” should be inserted there. We have used that term quite deferred on Section 3 till Wednesday. often in some other parts of the Constitution, as so far CHAIRMAN: Do I hear a second? The motion is to defer drafted. Section 3 until Wednesday. SHIMAMURA: I think that’s an excellent suggestion. SHIMAMURA: I’ll second the motion. TAVARES: I’ll accept that amendment. Yes, I’ll accept CHAIRMAN: Ready for the question? All those in favor that as an addition to my amendment. of the motion to defer Section 3 until Wednesday, please say “aye.” Opposed, “no.” Motion to defer Section 3 to Wednes CHAIRMAN: The suggestion is to add after the sentence, day is carried. “as the case may be.” Is there any more discussion on the Section 4. amendment? SHIMAMURA: I move for the adoption of Section 4 of SHIMAMURA: I wonder if the delegate who moved for the Committee Proposal No. 23. insertion of the word “claims” on the first line after the word “forfeitures” will consent to its deletion, in the light SAKAKEHARA: I second the motion. of the fact that Section 5, I think, covers claims. CHAIRMAN: It has been moved and seconded to adopt Section 4 of Committee Proposal No. 23. Discussion. TAVARES: I would, except for the fact that this section goes to political subdivisions, and Section 5 only goes to SHIMAMURA: This section relates to the disposition of the Territory. all debts, forfeitures, fines, penalties and escheats accruing to the Territory of Hawaii or any public - - or any political SHIMAMURA: My draft here, if I may say so, I was going subdivision thereof. to amend Section 5 to include political subdivisions. TAVARES: Alter further consideration, I believe that TAVARES: May I think that over just a second, Mr. this section could be - - should be amended further, and I Chairman? 784 ORDINANCES AND CONTINUITY OF LAW CHAIRMAN: Is there any other discussion while Dele say too much rather than too little, and the Style Committee gate Tavares is thinking it over? can always change it if we’ve overlapped too much. HEEN: I think the word “claims” should remain in that CHAIRMAN: Are you ready for the question? Question Section 3, because we don’t know, there may be some other is on the amendment, motion to adopt the amendment. All claims outside the statutes. It’s a catch-all word. those in favor of the motion to amend, please say “aye.” ASHFORD: May I suggest that Mr. Tavares, being a Opposed, “no.” The motion to amend is carried. Are you member of the committee who signed the report, would ready for the - - come over and join us here. BRYAN: I move the adoption of Section 4 as amended. CHAIRMAN: Is there any more discussion? WOOLAWAY: I second that motion. SHIMAMIJRA: I’m quite willing that the word “claims” CHAIRMAN: It has been moved and seconded that Section be left in. 4 as amended be adopted. All those in favor of the motion, please say “aye.” Opposed, “no.” It’s carried. Section 4 CHAIRMAN: Then there is no dispute. Is there any as amended is adopted. more question on the amendment? WOOLAWAY: I move for the adoption of Section 5. HEEN: I think Delegate Tavares should remain where he is, otherwise he might be guilty of association. CHAIRMAN: Do I hear a second? It has been moved and seconded that Section 5 be adopted. Discussion? SAKAKIHARA: Delegate Tavares is a member of the committee; he has every right to be there to commit SHIMAMURA: I at this time would like to move for the collusion or conspiracy. amendment of Section 5, line five, after the words, “Terri tory of Hawaii” and after the comma, the words “or any CHAIRMAN: Is there more discussion? Are you ready political subdivision thereof.” for the question? CHAIRMAN: Do I hear a second to the motion to amend? NODA: I move for the adoption as amended. SAKAKIHARA: Second it. CHAIRMAN: No, it hasn’t been voted on yet. CHAIRMAN: Moved and seconded. TAVARES: On the assurance that the matter will be SHIMAMURA: I have some other - - if the delegate from covered in the next section as far as the word “claims” is Hawaii will please withhold his second. concerned and it will be explained - - SAKAKIHARA: I’ll withdraw - - withhold my second. CHAIRMAN: Are you ready for the question? The ques tion is to amend Section 4 to read thus: “All debts, fines, SHIMAMURA: And on line six, after the word “Hawaii” penalties, forfeitures, claims and escheats which have and after the comma, “or its political subdivision, as the accrued or may hereafter accrue to the Territory of Hawaii case may be.” I’ll repeat that. AIter the comma following or any of its political subdivisions shall enure to the State the word “Hawaii” on line six “or its political subdivision, of Hawaii or such political subdivision, as the case may as the case may be,” comma, and then in line seven, after be.” All those in favor - - the words “State of Hawaii,” comma, “or its political sub division,” comma; and on the last line, after the word PHILLIPS: That word “claims” still bothers me. I “Hawaii” delete the period, insert a comma in its stead and wonder if the delegate from the fourth district could give the words “or its political subdivision.” me an example of a claim of the Territory against whatever it might be. Could you give me just one example, please? SAKAKIHARA: I second the motion for an amendment. TAVARES: I can imagine a situation where somebody CHAIRMAN: It has been moved and seconded to amend runs into a truck belonging to the Territory and is negligent; Section 5. Is there any discussion? the Territory has a claim for damages against that person TAVARES: Inasmuch as this might involve some matters for damaging the truck. That’s just one of many, many like title to property and so forth, which perhaps could be other types of claims. Or it could include even taxes, studied a little more in the~light of the subdivisions being although I think that’s going to be covered too. But “claims” brought in, I think it should be deferred and I move to defer is a very broad term; “claims” covers every type of right the matter until Wednesday. of action which might be made against any other person. SAKAKIHARA: Second it. CHAIRMAN: Are you satisfied, Delegate Phillips? CHAIRMAN: It has been moved and seconded to defer PHILLIPS: May I continue my question by saying that I consideration of Section 5 till Wednesday. All those in favor believe that that particular example would fall under Section of the motion, please say “aye.” Opposed, “no.” It’s 5. It strikes me that even the word “debts” doesn’t have - - carried. doesn’t fit into this particular section; that fines, penalties, For the benefit of the Clerks, I would like to now declare forfeitures and escheats are of a class, and that the words a recess. “debts” and “claims” fall very carefully and seem to be (RECESS) completely covered in Section 5. I feel that he’s - - that there is a reiteration. Now if they want to leave in the two words, I don’t think it’s going to hurt anything, but at the CHAIRMAN: Will the committee please come to order. same time, it would give for more clarity of understanding We have deferred Section 5 till Wednesday. Now Section 6 of this provision when it’s referred to or any question comes is up for consideration. up about it. The word “debts” and “claims” seems to not SHIMAMURA: I move for the adoption of Section 6. fall into the same classification of state matters such as SAKAKIHARA: Second it. fines, penalties, forfeitures and escheats. CHAIRMAN: It has been moved and seconded to adopt TAVARES: I think that the liability to a fine is one kind Section 6. Discussion? of a debt, so that I think that that isn’t necessarily incongruous. As a matter of fact, since we are - - these are catch-all HEEN: This is a little out of order, FbutI I’d like to ask provisions, I think it would be just as well to have - - to the chairman of the committee as to why - - as to whether or JULY 3, 1950 • Morning Session 785 not they considered the provision contained in the Model a provision like the Model Constitution’s drawn without Constitution, on page 21, as to existing laws. “All laws particular regard to any particular jurisdiction, I think is not inconsistent with this Constitution shall continue in force always dangerous. I don’t doubt that there are overlaps until specifically amended or repealed, and all rights, in these sections, but when you are transterring everything claims, actions, orders, prosecutions and contracts shall from one jurisdiction to another as drastically as changing continue except as modified in accordance with the provisions over from a territory to a state, it seems to me that if your of this Constitution.” It seems to me that that simple lan basket is a little too wide, it doesn’t do any harm. All you guage could take care of Sections 3, 4 and 5. have is a little empty space there. But when your basket is too small and you leave something out, then you have SAKAKIHARA: We’re on Section 6. I think the delegate- trouble. Therefore, I see no objection to having some at-large from the fourth is not talking on Section 6. overlap and some excess verbiage here rather than run CHAIRMAN: That is right. The Chair will rule Delegate the risk of having something left out. Heen out of order, but probably the suggestion is beneficial and if that is the case, we suggest Delegate Heen take it up ANTHONY: The chairman of the committee said that with the chairman of the Committee on Ordinances and Delegate Tavares would supply the particulars; thus far Continuity. We may be able to reconsider it. I’ve heard no particulars. Therefore, I move that we defer action on this until Wednesday. SHIMAMURA: At this time I move to amend Section 6 by deleting the words “county or City and County” of line three BRYAN: I think before we move to defer I’d like to ask of Section 6 alter the word “any” and insert in lieu thereof the members oi the committee one question, and that is, if the words “political subdivision thereof” comma. the word “contract” in Section 2 would give adequate coverage to the material now under consideration. TAVARES: I second the amendment. PHILLIPS: I second the motion. CHAIRMAN: It has been moved and seconded to amend Section 6. Is there any discussion on the amendment? Are CHAIRMAN: It has been moved and seconded to defer you ready for the question? The motion to amend will delete Section 6 to Wednesday. All those in favor of the motion to in the third line the words “county or City and County” and defer, please say “aye.” Opposed, “no.” The Chair is in Insert in lieu thereof the words “political subdivision there doubt, and we’ll call again for the ayes and noes. All those of.” All those in favor of the amendment - - in favor of the motion to defer say “aye.” Opposed, “no.” The ayes have it. ANTHONY: Mr. Chairman, I rose to get the attention of the Chair. AKAU: Point of information. All these matters on the CHAIRMAN: I’m sorry, Delegate Anthony. ordinances so far have been matters which are very definite ly the concern of our good friends the lawyers here, and I ANTHONY: I’d like to know from the committee the was wondering if it would be possible, let us say, not only difference between Section 6 and Section 4. for the committee, but for the lawyers to somehow get to gether—I’m just thinking of the time, and I’m not trying to CHAIRMAN: Delegate Shimamura, or any member of the be facetious either—if some of the lawyers could get together. committee. We have 17 of them here. You people know what you want. SHIMAMURA: Yes, Mr. Chairman. I feel that there is We’re just dragging along here trusting to luck that we’ll an essential difference between Section 4 and Section 6. Sec guess the right word because we don’t know these technical tion 6 provides for the accrual of all debts, fines, penalties, things; they are very definitely legalistic. Would it be in forfeitures and claims and escheats to the Territory of order, Mr. Chairman, to ask our members of the Bar Hawaii or any governmental or political subdivision thereof; Association, the 17 people, to get together and work this whereas Section 6 provides for the continuance of all recog out so they can save the time? I’m just asking; I don’t know. nizances, bonds and obligations entered into or executed to ANTHONY: That could be done - - the Territory or any political subdivision thereof. In other words, Section 6 is very essential to continue these bonds ASHFORD: By way of preliminary, remarks, I would like which - - For example, a surety bond may run to the Terri to say that the delegate quite apparently is not a member of tory of Hawaii in the name of the treasurer of the Territory the Committee on Style, which has eight attorneys on it, of Hawaii, but that bond would not necessarily continue run when she talks about getting together. ning in favor of the Territory [sic] of Hawaii by the treasurer. In this committee, we had two very brief articles to start Therefore it has to be continued so that the treasurer of the with and the expansion of these sections was due to the State of Hawaii will succeed to all rights thereunder. suggestion of various attorneys. ANTHONY: Well, I have a further question. If we CHAIRMAN: You will note that the committee is predomi adopted the simple language contained in either the Model nantly made up of attorneys also. Constitution or the New Jersey Constitution—the Model Constitution is Section 1401, page 21—why wouldirt that SHIMAMURA: We are trying to bring before all the cover not only Section 4, but Section 5 and Section 6 as delegates this article and to give all delegates here an oppor well? And Section 7, I might add. tunity to participate in the discussion, and any suggestions you may - - they may have, we welcome any suggestions. SHIMAMURA: The committee had the provision of the Model Constitution under consideration. The committee CHAIRMAN: Section 6 has been deferred, Delegate Shi felt that it was far too general and did not provide for many mamura, to Wednesday. situations which would arise. Mr. Tavares has something ANTHONY: The same remarks I have go to Section 7. additional to say on that. I really believe this whole thing can be boiled down to one ANTHONY: I’d like to have the particulars rather than simple paragraph or two, and therefore, I move that 7 be the general statement. As far as I’m concerned, the simple deferred. language is broad enough. CHAIRMAN: The Chair would wish to rule that Delegate Anthony is out of order. TAVARES: In the first place, New Jersey is an existing state. The changeover is very minor. In the second place, SHIMAMURA: I’m amenable to any - - 786 ORDINANCES AND CONTINUITY OF LAW ANTHONY: I was not out of order, Mr. Chairman; all suits in equity and all other legal proceedings other than Section 7 is before the house. criminal cases. CHAIRMAN: Sectioft 7 is still not before the house. CASTRO: I would like to second Delegate Anthony’s motion to defer. SHIMAMURA: May I make a statement, that I’m amenable to any suggestion the house may have. However, if we defer FONG: I would like to state that in reading Sections 2 to too many of these sections, that means that we’ll have to take 11, I am of the opinion that all of the sections could be boiled them up at a later date anyway. And may I also state that down into one paragraph of general language instead of having although the delegate from the fourth district has a point, that all these paragraphs. many of these sections may be boiled down, but as Delegate [Recording resumed] Tavares said a few moments ago, it’s quite different in deal ing from a transition or change or revision from a state to CHAIRMAN: The question on the floor is for the Chair to a state constitution, but here we have a transition from a determine whether the consideration should be deferred. territorial to a state form of government. And what may be Therefore, the Chair would like to call again for the ayes adequate in providing for a revision or consolidation of a and noes. All those in favor of the motion to defer, please constitution is quite different from providing for the transfer say “aye.” Opposed, “no.” The ayes have it. and change in the form of a government. I may also add that the state constitutions which were adopted at the time of the SHIMAMURA: I move for the adoption of Section 9. admission of many western states to the Union make very CHAIRMAN: Do I hear a second? elaborate provisions, as we have here, and we arrived at this alter much deliberation and alter much research. I KAM: I second it. move for the adoption of Section 7 at this time. CHAIRMAN: It has been moved and seconded that Section 9 be adopted. CHAIRMAN: It has been moved and seconded to adopt Section 7. Question. Rather, discussion? LAI: I want to amend the motion to include Sections 10 and 11 for tentative adoption. TAVARES: I have an amendment of - - just a formal amendment to propose. In the fourth line of Section 7 the CHAIRMAN: The Chair would like to rule, for the sake word “then,” t-h-e-n, that it be deleted and that there be of order, that we should consider these section by section. inserted alter the word “pending” in the same line and be Would that be okay? fore the comma, the words, quote, “at the time of such change,” end of quote. So that that line would read “which LAI: Well, I thought somebody was going to make a shall be pending at the time of such change,” comma. motion to defer the whole thing up to Section 11. It will save a lot of time to take up three sections at one time. [The tape recorders were out of order for several minutes. The following debate is from the minutes of the committee.] FONG: I was going to ask for a deferral of that section together with Sections 9, 10 and 11 on the same grounds, that SHIMAMURA: Second. Section 2 to 11 probably could be condensed into one para The Chair thereupon put the motion to amend, which graph. motion was adopted. ANTHONY: I’d like to second that motion, and I’d like ANTHONY: I move we defer action on Section 7 as amended, to add in support of it, the same can be said of 12 and 13. until Wednesday. CHAIRMAN: Delegate Fong, is that your motion, to defer LAI: Second. Section 9? BRYAN: Is it the Chair’s ruling that there will be no TAVARES: I can’t let that remark pass unchallenged. discussion on a motion to defer? Section 12 is one of the things - - Well, I thiak that’s out of order. I will subside, Mr. Chairman, but I think that’s CHAIRMAN: Yes. a rather uncalled for statement. Section 12 is very im The Chair thereupon put the motion to defer action on portant to our public lands. Section 7, as amended, until Wednesday, which motion was carried. CHAIRMAN: I thiak the Convention - - the committee out of fairness should give the committee a chance to speak in SHIMAMURA: I move the tentative adoption of Section 8 defense of its committee proposal, and - - of Proposal 23. FONG: I believe Section 12 and Section 13 are a little SAKAKIHARA: Second. different. I think the committee also sees the possibility ANTHONY: I would like to know what is the difference of condensing Sections 2 through 11. Is there a possibility, between Section 8 and Section 2. Mr. Tavares, of condensing Sections 2 through 11? Is there a possibility of combining all those sections? SHIMAMURA: Section 2 is a very general section. Sec TAVARES: There is a possibility of doing many things, tion 8, in addition, specifically provides for the transfer if we take the time. of all pending civil cases to the courts of the state, which Section 2 does not. FONG: Well, with that statement from the member of the committee, I thiak we should defer action on Sections ANTHONY: It seems to me there is a good deal of 8, 9, 10 and 11. repetition, and I thiak if the committee were to get together this could be again boiled down, and accordingly I move to CHAIRMAN: Section 8 has been deferred. defer action on this section. ASHFORD: I’m just as much out of order as anybody HEEN: I would like to know whether the term “civil else who has spoken alter the motion to defer, but perhaps causes” there means something else from cases in equity. the Convention would just let me say something very briefly. We started with a very simple - - some very simple SHIMAMURA: We have defined the term “civil causes” measures, and the attorneys who were members of the in our report, and civil causes includes all causes at law, committee felt that they should be developed. Now, in my JULY 3, 1950 • Morning Session 787 opinion, if this committee should report in its committee SHIMAMURA: On the fourth line of that Section 9, before report that all of these sections were covered by a couple the word “courts” I move to insert the word “state”; and of brief sections, the same results would be attained. also at the end of that section, insert the following new sentence: “Until the legislature shall otherwise provide, SHIMAMURA: May I also add that as far as the commit the courts of the Territory of Hawaii shall continue as tee is concerned, it has no pride of authorship at all. We state courts.” don’t care how the sections are amended. We put our best effort in it and took considerable time and made considera CHAIRMAN: Do I hear a second? ble research. If any member here wishes to go over the KAM: Second that motion. whole thing and overhaul it, k’s perfectly all right. We only wanted to provide certain things with abundance of SAKAKIHARA: Will the chairman of the committee re caution. state the amendment? CHAIRMAN: It has been moved and seconded to - - Is CHAIRMAN: Will you restate the amendment, Delegate there anyone - - Shimamura? ARASHIRO: It is my opinion that when the delegate from SHIMAMURA: Add a new sentence to read as follows: the committee made a statement about a big basket, then I CHAIRMAN: After Section 9? think that by having a shorter paragraph or a shorter section k would broaden the language and have a bigger basket than SHIMAMURA: Nine. “Until the legislature shall other trying to itemize it, and then making the - - by itemizing it, wise provide, the courts of the Territory of Hawaii shall I think we are making a smaller basket. continue as state courts.” ROBERTS: I was going to suggest that when the motions FUKUSHIMA: I’d like to further amend that by inserting to defer are made and the motion to defer to a specific time, in the place of “continue,” the word “function.” It cannot that that motion is debatable and I believe that the members continue as state courts; I believe we can function as state of the committee ought to be given the opportunity to state courts. their position as to why we should take it up now. CHAIRMAN: Delegate Shimamura, is that amendment SHIMAMURA: Also, when any committee - - any delegate acceptable? here has any suggestions why should it be deferred, we should like to have the reasons for H, and if he thinks that SHIMAMURA: Yes, Mr. Chairman. the sections are similar, we should like to have it pointed CHAIRMAN: Any discussion on the amendment? out wherein they are similar. I feel personally that some of the sections are quite divergent and quite different. BRYAN: I’d like to ask the movant if he doesn’t think H would be more appropriate, although it may be a matter ASHFORD: May I call the attention of the Convention - - of style, to place that after Section 11, rather than after of the Committee of the Whole to Section 11. In my opinion, Section 9. that would not be covered, because those judges are appoint ed by the federal government under the provisions of the CHAIRMAN: Delegate Shimamura, Delegate Bryan has Organic Act and I think they would have to be carried on in asked you a question. office after we have become a state until their successors SHIMAMURA: I have no objection to that, either way. I are appointed. think that’s a matter of arrangement. HOLROYDE: I wonder if those that are moving for deferment on these sections propose to bring in amendments HEEN: It seems to me that it’s not necessary to have on Wednesday. this section at all. Go back to Section 3, you have there the term, “mutatis mutandis”; that will take care of this SHIMAMURA: I think that’s an excellent question, and I skuation. feel that the members who are moving for deferment should try and put some effort in this thing and bring in some SHIMAMURA: I do not agree with the learned gentleman counter proposals. from the fourth district. CHAIRMAN: Delegate Fong, could you repeat your motion HEEN: Perhaps the vice-chairman of that committee again? has a different view upon this subject. She is responsible for the use of the term “mutatis mutandis.” FONG: On the premise that these sections could be con solidated into one or two or three paragraphs, I move that SHIMAMURA: U I may answer the learned gentleman Sections 8, 9, 10 and 11 be deferred until Wednesday. from the fourth district. The reason I think the third section doesn’t cover this situation is that we must prevent a hiatus. CHAIRMAN: The Chair would like to inform you that In these sections we provide for the transfer of pending calls Section 8 has already been deferred, and we’ll have to, for the sake of order - - the record, we’ll have to make a of action to appropriate state courts. Under the section on judiciary, there is no provision for definite state courts, motion to adopt Sections 9, 10 and 11 first. There is a and until such courts are organized, we should provide that motion at the moment to adopt Section 9. Is your motion the territorial courts shall continue as state courts. At just confined to Section 9? first I personally fek that such a section was not necessary, SHIMAMURA: I think there has been a motion, hasn’t but the more I thought about H, the more H appeared to me there? If not, I’ll so move just to facilitate our getting on. that such a section should be incorporated. SAKAKIHARA: I’ll second it. CHAIRMAN: Now the Chair would like to make a state FONG: I shall now repeat my motion, that we defer ment for the sake of saving time and that is, I believe there action on 9, 10 and 11. is going to be a motion to defer all Section 9, 10 and 11. U that is the case, this motion to amend has served ks purpose SHIMAMURA: Pardon me, will the delegate who last of suggesting to the group what should be considered in their made the motion withdraw that for a moment. I’d like to deliberations. Therefore, if there is no objection, probably make an amendment before - - the motion to defer is in order at this time. Unless there FONG: Sure I will. is another suggestion to be made. 788 ORDINANCES AND CONTINUITY OF LAW NODA: I so move. BRYAN: I’m quite in sympathy with the feelings of the CHAIRMAN: Is there any second to the motion? movant and the second as far as homesteading is concerned. I think that was evident when the Land Commktee brought TAVARES: We have deferred so many sections relating its report. However, I’m quite concerned and would like to to this, I think we ought to defer the others, and I’ll second state that I’d like to see this remain. I’d like to speak against the motion. this motion to delete that part, for several reasons. When CHAIRMAN: It has been moved and seconded to defer the Land Committee discussed the present land laws, there Sections 9, 10 and 11 toWednesday. All those in favor was some question about whether there should be a change of the motion to defer please say “aye.” Opposed. The placed in the Constitution or a revision of the land laws ayes have it. The motion is carried. attached in this section of the Constitution because there was some doubt of the status of many of our public lands SHIMAMURA: I rise to go through the motion of moving under H. R. 49. That doubt has been renewed and emphasized to adopt Section 12. in the last 48 hours or so, and that’s why the five year period NODA: I’ll second that. was placed here. rhis provision would suspend the right of mandate to the CHAIRMAN: It has been moved and seconded to adopt legislature - - or to the Land Board, until the legislature Section 12. took action. Whereas, if ft were removed, the mandate ASHFORD: I feel very disloyal in disagreeing with the would remain until the legislature took action. It was the chairman of the committee, but I spoke to him—after having feeling of the members of the Land Committee, that ft was signed the report—I spoke to him about a provision of Section proper to do it in this manner, so that, should we find as 12 with which I do not agree, and we agreed that I would be a resuft of H. R. 49 that our public lands are fewer than permitted to disagree. That is the proviso which is the we expect them to be, they won’t be all used up under this second section of the sentence. I think we should continue mandate before the legislature has time to take care of ft, to homestead our public lands in the fullest manner possible. or until the five year period of disposftion that is set forth I therefore move to delete from Section 12 the last sentence by the present provisions of H. R. 49 has a chance to which begins, “Provided.” operate. Therefore I would speak in favor of leaving this KING: I’m very happy to second that. I do not think the provision in the section. State of Hawaii should declare a moratorium on homesteading SHIMAMURA: May I state that this proposal, this section for five years. I think they should go right ahead as lands originated in the Committee on Agriculture and Conservation become available and can be developed for that purpose. and ft was at the suggestion of the attorney general’s depart TAVARES: In the first place, I think that the two dele ment that this proviso was included. I may also state that gates who advocate the elimination of this section are not there is one member of the committee who is absent today giving full consideration to the fact that the only thing we who feels very strongly about this proposal. Therefore, to are saying is that the legislature is not mandated. In other give him an opportunity to be present and argue against ft, words, what we’re trying to do, those of us who advocate and also in the light of certain amendments to H. R. 49, I leaving those words in, is this. Today you have a mandatory move that ft be deferred until Wednesday. provision in your Organic Act that when so many homesteaders CHAIRMAN: It has been moved and seconded - - ask for 40 acres of land, they have got to get 40 acres of land; and that’s one of the policies already decided by the Lands TAVARES: Second the motion. Committee, as I understand it, that 40 acres is too much in CHAIRMAN: It has been moved and seconded to defer most cases for farming. The persons advocating leaving’ consideration of Section 12. All those in favor of the motion, out those words are advocating that you force a mandate of please say “aye.” Opposed. The ayes have ft. Section 12 the 40 acre and other large provisions now before we have is deferred till Wednesday. a chance to take care of the other situation, unless our Constitution specifically provides otherwise, and I think SHIMAMURA: I move for the adoption of Section 13. that that is a very unfortunate thing to leave that mandate in. The legislature can provide if it wants to, as far as this YAMAMOTO: Second the motion. section is concerned, but all we say is that the mandate - - CHAIRMAN: It has been moved and seconded to adopt k’s not compulsory until the legislature otherwise provides. Section 13. Discussion? KING: The legislature may remove that mandate by SHIMAMIJRA: May I briefly state that this section pro taking proper action in the first session after statehood is vides for a revision commission, that is, a commission obtained, or attained. The mandate would only exist till for the revision of laws to be appointed by the governor to such time as the legislature has provided for some other take care of any laws that may be - - may not be in conformity program. Also, be ft noted that the homestead laws, while with the Constitution. 40 acres are the maximum, are not always providing 40 CHAIRMAN: Any discussion? acres to each homesteader. I’m familiar with a great many homestead areas where the lots are cut into ten and eleven TAVARES: I might point out that this section sort of takes acres and the homesteaders apply for that. It all depends a leaf out of the notebook of Congress in dealing with Hawaii. on the character of the land. Some lands, five acres are When we became a part of the United States, a joint resolution more than enough to support a family with intensive culti provided for the creation of a commission to prepare an vation under irrigation; other lands, ten acres might be Organic Act for the Terrftory of Hawaii. As it turned out, ample; but there are other lands where 40 acres would the commission had two years, or had a sufficient time to make a very bare living under some types of farming. So do the job well, and they not only prepared an Organic Act, I see no reason why we should ban any homesteading for a but they took the trouble to make all the necessary amend five year period. The sooner the legislature adopts ap ments to the existing laws of Hawaii. We’re doing ft now propriate legislation, that ban would automatically expire. without sufficient time to do that second part of the job. Therefore, we feel that provision should be made to start CHAIRMAN: Delegate Shimamura, and then I’ll call on as soon as possible after the adoption of this Constftution you, Bryan. along the line of that revision, so that if we have left any SHIMAMURA: I yield to Mr. Bryan. holes, if there are any discrepancies, they wUl be discover- 789 JULY 3, 1950 • Morning Session ed as soon as possible and the legislature will be aided I recall, this Constitutional Convention is concerned with in making the necessary amendments. the very basic problem of writing a law which, I venture to suggest, is as important as some of the statutes which are ROBERTS: I’d like to speak in favor of the inclusion of on the books. I am not in accord that the greatest contri this section. I’d also like to suggest a slight change in bution made in this Convention has been by the lawyers. language which would provide that at least one of those five I think we have some very able and very competent men members shall be a layman. I don’t know whether the in this Convention, non-technical, non-trained in the legal subcommittee gave this matter consideration, but I am per profession. But ft seems to me that the observation with sonally quite concerned about laws which are not intelligible regard to the contribution which can or cannot be made by to the majority of the lay people. I would, therefore, move lay people is a problem which I think deserves consideration an amendment in Section 13, where after the words, “of and care by this Convention. five members, at least one of whom shall be a lay person, I would also venture to suggest that some of the lawyers whose duty it shall be” et cetera. May I have a second to of a past generation never went to a law school, Harvard or that? Yale or any other law school, and turned out to be qufte SHIMAMURA: Second it. competent lawyers. They know how to read; they know how to examine language; and I think they have some basic con HEEN: I think the amendment should be the other way sideration as to the function of laws. It seems to me that around, “At least, four of whom shall be lawyers.” this amendment is qufte appropriate and lay people can make HOLROYDE: I’d like to second that motion, and in doing a contribution, not only to statutory law but also to consti so, I feel very sorry for the lay person. tutional law. CHAIRMAN: It has been moved and seconded to amend KELLERMAN: I’m in an in-between posftion. I once was Section 13. a lawyer and now I am definitely a layman, but I have seen both sides of the question. I’ve seen ft when I was practicing ASHFORD: May I ask General Roberts, the authority on law, and I’ve seen ft since. If you’re going to have a bridge style, whether “layman” is the correct word to use in that designed, you don’t usually put laymen on the board to design connection? “At least one of whom shall not be a lawyer,” an engineering project. This job of revision of laws is not would that not be better? a rewrfting of the substance of laws; that would be the job ROBERTS: I didn’t want any specific expression in for the legislature. It is a redrafting of the technical dis opposition to lawyers. I like lawyers personally. My only crepancies between laws applying to the terrftory and laws purpose was to make sure that there would be one person applying to the state under the Constftution. It seems to me on there who would be a lay person. Now, as far as the style ft is purely a technical job, and I can see no reason in the is concerned, I think the intent is clear and we can handle world why a person who is not trained in the technical legal that in the Style Committee. language and the technicaifties of law should be put on such a commission. It seems to me he would be of very lfttle ASHFORD: Isn’t the true meaning of a “layman,” one who assistance and ft would be just a waste of one position that is not a cleric? might be of material assistance. CHAIRMAN: Delegate Heen was standing up first. After ASHFORD: While resenting the omission of the women Heen, I would - - Delegate Lee. of this Convention as having made a valuable contribution, LEE: He has yielded to me, Mr. Chairman, if you don’t I still am prepared to go along wfth the delegate who wants mind. Is that all right? Thank you. at least one layman on that board, and I do so by virtue Being a lawyer I appreciate Delegate Roberts’ sentiments. of the education I have received in this Convention on the In fact I’ll even go farther than he has. I suggest by way of Style Commfttee, where extremely valuable suggestions elimination that the words be, “at least three of whom shall have been made by laymen. be attorneys or lawyers,” or you can use the phrase “not FONG: As I see ft, as soon as the Constftution is ratified more than three shall be attorneys at law.” If you’ll accept and Congress gives us the go ahead signal, your legislature the amendment, I would suggest that, and you might have is going to be elected and ft will - - it is going to be in two laymen. session. Now, this Section 13 to me is purely statutory. ROBERTS: I’ll accept that amendment, since it comes I believe that could be taken care of by the legislature, by from an attorney. Therefore, I can’t be accused of being a resolution by this Convention asking the legislature to biased against lawyers. The language then would read immediately set up this commission to do the work, rather that “no more than three shall be attorneys.” Is that than cluttering up our Constftution with this very long para correct? graph. I’d like to move that we defer action on this section until Wednesday. ANTHONY: I’d like to speak against the amendment. This has nothing to do with the substantive provisions of the laws. CHAIRMAN: It has been moved and seconded to defer This is a professional and technical matter, and we don’t action on Section 13 till Wednesday. want laymen fooling around with the laws. Whether Dr. TAVARES: As I understand ft, it’s now understood that Roberts thinks he could do a job or not, he is not equipped a motion to defer is debatable? by training to fit in the various statutes in their proper CHAIRMAN: The Chair was - - place. Now, we’ve had commissions revising our laws ever since the Revised Laws of 1905, and they have done ROBERTS: The motion to defer to a specific time is extraordinary jobs. I think - - I believe Delegate Tavares debatable. has had something to do with some of those commissions, CHAIRMAN: Go ahead, Mr. Delegate Tavares. but they have always been three lawyers, and I think we TAVARES: I won’t debate long. I feel this way, that we want to continue that. I don’t care about putting any words can’t afford to lose any time in starting to revise our laws. in there, but any executive that knows what he’s about, if It will take the legislature a certain amount of time to get he’s going to have a job done properly, he’s going to have it organized, a certain amount of time to get up steam, a done by a professionally trained person. certain amount of time to get their committees and a certain ROBERTS: I am in complete sympathy wfth some of amount of time to pass the bills, and by that time we’ve the observation made by the previous speaker. I think, as lost some valuable momentum. It seems to me that deferring 790 ORDINANCES AND CONTINUITY OF LAW for the purpose of putting this into a mere suggestion to the SHIMAMURA: If I may suggest, we’d like to start with legislature is not wise. If we are deferring it for further Section 3, which was deferred. study or for some other purpose, fine, but I don’t believe the purpose of having the legislature do it is sound in this CHAIRMAN: The Chair recalls that Section 3, before case. We need to go fast; there may be some very bad holes deferral, was amended. In the first line of Section 3, up to we want to start in right away on, and we can help the legis the first word “All,” the following words were inserted, lature if a committee is appointed right away and can have “provisions of the Hawaiian Organic Act and,” so that the some suggestions ready as soon as possible. If the legis first line would read, “All provisions of the Hawaiian Or lature does it, they’ve got to create the commission, then the ganic Act and the laws of the Territory of Hawaii.” commission’s got to be appointed, and there is that much SHIMAMURA: The Chair will recall that some delegates more time lost. As far as the layman is concerned, I don’t spoke in opposition to the insertion of the amendment. The object to a layman or so on the board. We’ll just have to committee did not insert the Organic Act provision because educate him. But if they want a layman on, o.k., we’ll do it was felt that, as one of the delegates stated, that the public that. lands provisions in the Organic Act may come into question. CHAIRMAN: All those in favor of the motion to defer The enabling act, that is H. R. 49, provides that “all terri Section 13 till Wednesday, please say “aye.” Opposed. torial laws” of the Territory of Hawaii are amended by Motion is carried. Committee Print C. Originally, the word “territorial” was omitted, and as I was saying, in Committee Print C the SHIMAMURA: I move for the adoption of Section 14. word “territorial” was inserted, I believe to distinguish it SAKAKIHARA: Sections 14 and 15 are very important, from any acts of Congress, the Organic Act also being an also. I ask that it be deferred till Wednesday along with the act of Congress. rest of them. CHAIRMAN: I believe Delegate Heen was the movant of CHAIRMAN: To get the records clear, is there a motion the motion to amend. Would you care to say a few words to adopt Section 14 and 15? in favor of your amendment? WOOLAWAY: I’ll second that motion. HEEN: I don’t recall that, but it seemed to me that the provisions of the Organic Act should also continue because CHAIRMAN: It has been moved and seconded to adopt all matters relating to public lands are found in the Organic Sections 14 and 15. Act. Therefore, those provisions should also continue until SAKAKIHARA: I now move that we defer action on Sec all this will be changed by the legislature itseif, the legislature tions 14 and 15 to Wednesday. of the State. The provision found in the Model Constitution to me is - - CHAIRMAN: Do I hear a second? seems quite appropriate. “Existing laws. All laws not in HAYES: I second it. consistent with this constitution shall continue in force until specifically amended or repealed, and all rights, CHAIRMAN: It has been moved and seconded to defer claims, actions, orders, prosecutions, and contracts shall action on Sections 14 and 15 to Wednesday. Debate? Would continue except as modified in accordance with the provisions the committee like to express their sentiments on this ques of this constitution.” That would, it seems to me, cover tion? The motion is to defer both 14 and 15. everything. SHIMAMURA: The committee defers to the Convention - - CHAIRMAN: Is there any more discussion? to the Committee of the Whole. TAVARES: I take it we are discussing Section 3 now. CHAIRMAN: All those in favor of the motion to defer action on Sections 14 and 15, please say “aye.” Opposed, CHAIRMAN: That’s right. “no.” The ayes have it. Sections 14 and 15 deferred till HEEN: That’s correct. Wednesday. TAVARES: I am sorry to say that as a member of the BRYAN: I move that we rise, report progress and ask committee I have been somewhat derelict in that I have not leave to sit again. studied the question since it was last considered. I am SAKAKIHARA: Second it. afraid that it is too broad. I must be frank about it, and yet in fairness to the chairman, I want to say I’ve given him CHAIRMAN: It has been moved and seconded to rise no help and, therefore, I’m slightly embarrassed about and beg leave to sit again. All those in favor of the motion, having to admit I’m not prepared to say that that is not too please say “aye.” Opposed. The ayes have it. broad. HEEN: Just to the contrary, I think it’s too restrictive JULY 10, 1950 • Morning Session instead of too broad. ANTHONY: At the time this was last discussed, there CHAIRMAN: Will the committee come to session, please. were a number of proposed amendments and most of the The Chair will now declare a recess of five minutes. sections, those indicated by the Chair, were deferred. I’ve just consulted the President and he tells me that this is the (RECESS) last order of business. I know that a number of us have proposed suggestions in regard to this schedule, and we CHAIRMAN: The last time the Committee of the Whole have not, by virtue of our continued session with the legis met to consider the proposals of the Committee on Conti lative article, have not had a chance to perfect them. I nuity and Ordinances, it considered Committee Proposal am suggesting that it would be the part of wisdom and eco No. 23. At that time most of the sections were deferred, nomy of time if we should take a recess until such time, and the Chair at this time would like to state those sections say for an hour or for the rest of the morning, those amend that were adopted. Section 1 was adopted; Section 2 was ments could be gotten together. I would therefore move adopted. Section 4 was adopted with several amendments. that we rise and report progress and ask leave to sit again, All the other sections in Committee Proposal No. 23 were if that’s the sense of the body that that time could be - - deferred. What is the wish of the chairman of the Commit tee on Continuity and Ordinances? SAKAKIHARA: I second the motion. JULY 10, 1950 • Afternoon Session 791 CHAIRMAN: It has been moved and seconded that this the words “Hawaiian Organic Act,” all laws, or rather I committee rise and report progress. should say, all provisions of the Organic Act which are in force on the date of the admission of Hawaii as a state will WIRTZ: I wonder if the movant would amend the motion. be continued in full force. It’s not necessary to report progress. We can take a recess. SAKAKIHARA: Won’t that be in conflict with the follow ANTHONY: We could, but I didn’t know what the wish ing sentence, “Until they expire by their own limitation”? of the President was. I don’t see him on the floor. SHIMAMURA: That’s a good point, frankly, which wasn’t CROSSLEY: I might say that if we do recess until say raised in the committee. But this expression had particulat one-thirty or two o’clock, the Committee on Style has a lot reference to the laws, exclusive of the Hawaiian Organic of work, and therefore, if we rise, the Committee on Style Act. At the time this included, and I may say - - could be delegated to go out and go to work, too. I think it would be proper to rise, report progress, beg leave to SAKAKIHARA: That was my understanding from the sit again. committee. CHAIRMAN: The question before the floor is that the SHIMAMURA: Pardon me? committee rise and report progress. Is there any more SAKAKIHARA: That was my understanding from the discussion? All those in favor of the motion, please say committee. “aye.” Opposed, “no.” Carried. CHAIRMAN: Will you please address the Chair so that we can get that straight. Afternoon Session SAKAKIHARA: That was my understanding from the CHAIRMAN: Committee of the Whole will please come committee. to session. When the committee rose this morning, we were SHIMAMURA: Is the gentleman referring to the words considering Section 3. What is the wish of the committee? “Hawaiian Organic Act,” that it was his understanding that those words would not be included? Is that his answer? Is SHIMAMURA: I believe that it will be convenient to all that it? if we proceed with the discussion of Section 3. I think Judge Heen had made a point, and Delegate Tavares had made a CHAIRMAN: His question, I believe, was “What effect statement, and if I may be permitted to say a few words will the inclusion of the words ‘provisions of the Hawaiian now, I’d like to. Organic Act and’ have upon the clause ‘until they expire by CHAIRMAN: Go ahead. their own limitations”? SHIMAMURA: Speaking to Judge Heen’s amendment to SHIMAMURA: Well, there is no express limitation insert the words, “the Hawaiian Organic Act,” I personally in the Hawaiian Organic Act. In other words, it’s not like have no objection; and as I spoke to Miss Ashford some some statutes that have a termination date, if that’s the time ago, I thought that it would be sound to include the point of the delegate’s query. Now, on the other hand, if Organic Act. But some members of the committee felt he means whether by the admission of Hawaii as a state, that we would be enlarging the continuation of present laws the Hawaii Organic Act ipso facto ceases to be effective, unduely if we include the Organic Act. well, that’s something else. But if that is his construction, we will continue it in force under this special provision. I SAKAKIHARA: May I ask the chairman of the Committee don’t know if I’m catching the delegate’s exact point here. on Ordinances and Continuity of Law, what effect will Senator Heen’s amendment have upon the adoption of the Constitu CHAIRMAN: Delegate Sakakthara, has he answered your tion. It’s provided in the same section, fourth line com question? mencing with “mutatis mutandis,” all necessary changes SAKAKIHARA: He has answered my question. to be made, “until they expire by their own limitation.” CHAIRMAN: Any more discussion on this amendment? Wouldn’t the Organic Act of Hawaii expire by its own limi tations when the statehood Constitution is adopted? HEEN: I did not move for any amendment at all to this section. I merely made some observations and a suggestion SHIMAMURA: I didn’t quite get a portion of the delegate that perhaps there should be an amendment there so that from Hawaii’s statement, but if I understood the delegate the provisions of the Organic Act might be continued in force. correctly, he is referring to the words, “until they expire by their own limitation.” Is that correct? Well, there are CHAIRMAN: I’m sorry. My minutes show that Delegate certain acts of the legislature now in the Revised Laws of Heen moved and Delegate Roberts seconded the motion to Hawaii which have certain periods of termination. amend the particular provision we are talking about now. Do you care to withdraw your - - SAKAKIHARA: Just a minute, Delegate Shimamura. My question is directed to the amendment proposed by Senator HEEN: Well, does it contain the language of the amend Heen, not the provisions of the law as enacted by the legis ment offered, Mr. Chairman? lature. What effect will Senator Heen’s amendment have? CHAIRMAN: Yes, Delegate Heen. It says, after the SHIMAMURA: As I understand it, the delegate from word “all” insert the words “provisions of the Hawaiian Hawaii is referring to the insertion of the word “Hawaiian Organic Act and.” That was on July the third, Saturday, Organic Act.” Is that correct? I believe. SAKAKIHARA: That’s right. “All provisions of the HEEN: You sure it wasn’t July 4? Hawaiian Organic Act.” CHAIRMAN: No, Monday. SHIMAMURA: As I said a few moments ago and I said HEEN: How would that read then, if I may ask. previously, the insertion of the words “the Hawaiian Organic Act” was not made in the beginning. Although I CHAIRMAN: In its amended form, Section 3, the first personally thought it would be salutary to include that, some line, will read thus: “All provisions of the Hawaiian Organ of the members did not think so, members of the committee, ic Act and laws of the Territory of Hawaii in force at the I mean. Now, by the inclusion of Delegate Heen’s amendment, time of its admission into the Union,” et cetera. 792 ORDINANCES AND CONTINUITY OF LAW HEEN: That’s all right. That seems to be adequate and SAKAKIHARA: I second the motion to defer. sound. CHAIRMAN: It has been moved and seconded that we ASHFORD: May I call to the attention of the Convention defer this, the consideration of Section 3, to the end of that if that amendment is made, two of the provisions adopted the calendar. Is there any discussion? this morning in the agriculture article can be deleted; that is, the provisions as to sea fisheries and their condemnation. SHIMAMURA: May I just briefly point out that what the last speaker said is quite true, but those provisions that CHAIRMAN: Is there any more discussion on this ques are repugnant to the Constitution, of course, are not being tion? carried forth. Wherever there is an appointment of the governor or any other tenure of office or any other method ROBERTS: It seems to me that the language of the of selection of any of the officers, of course they would section which provides that these things shall remain in not be carried forth. There are definite advantages for force except insofar as they are repugnant to this Consti inclusion of the Hawaiian Organic Act and some disadvantages, tution; so that in actuality only those sections would re and that problem has to be recognized by the Convention and main in existence, unless they are contrary to the provi the Convention act accordingly. As far as I personally was sions of the Constitution, as we adopt it. concerned, I felt there were certain advantages in the Inclu ANTHONY: This morning we took a recess designed to sion but I also saw certain disadvantages, therefore did not afford time to certain members who thought that this could press the point of inclusion of the Hawaiian Organic Act under be greatly simplified and present a simplified version of this section., the continuity of laws, including the very question now CHAIRMAN: Ready for the question? The motion is to raised by Judge Heen. It doesn’t appear to me that we have defer Section 3 to the end of the calendar. All those in favor given this enough thought to act on it intelligently. I was of the motion, please say “aye.” Opposed. Carried. wondering if the chairman of the committee couldn’t proceed Section 3 is deferred till the end of the calendar. with some other sections of this, get those out of the way, and then have a recess long enough to present something WHITE: I wasn’t here the other day. Could you as a to the body, rather than try to do it on the floor, which is matter of information, let me know what the status of Sec most difficult at this time, I believe. tion 4 Is? CHAIRMAN: Your point is well taken. Is there any CHAIRMAN: Section 4 has been adopted In this amended question? form. It will read “All debts, fines, penalties, forfeitures, claims, and escheats which have accrued, or may hereafter SHIMAMURA: As far as I personally and the other mem accrue to the Territory of Hawaii, or any of its political bers of the committee are concerned, we’re willing and subdivisions, shall inure to the State of Hawaii, or such able to proceed with the other sections or this section. We political subdivision, as the case may be.” have no difficulty with proceeding, although some other dele gates may have. WHITE: No provision is made in that as recommended in the - - by the Committee of the Whole, the addition to CHAIRMAN: Well, in the absence of any motion for assume or to approve all of the acts of the legislature with giving direction to the procedure of this committee, the regard to bond issues and so forth. section that is still before us is Section 3. CHAIRMAN: Will the chairman of the committee attempt SHIMAMURA: I don’t like to be talking too much, but I’d an answer? like to point out to the delegates at the Convention that this SAKAKIHARA: Section 6 of the proposal takes care of section and many other sections are taken from standard that. provisions from constitutions of states which were admitted from a territorial status, and those sections have been SHIMAMURA: If I understood the gentleman correctly, judicially determined. he was referring to the issuance of bonds, revenue bonds. Is that it? Territorial bonds for the raising of revenues? CHAIRMAN: Are you ready for the question? SAKAKIHARA: Will the Chair kindly restate the ques WHITE: No, to approve all the acts of the legislature tion. on bonds that had been issued, that had been authorized but not issued. CHAIRMAN: The question is the amendment to Section SHIMAMURA: That would be carried partly in the con 3, which amendment will amend by inserting after the word tinuance of all laws of the Territory. Also we have a short “all” the words “provisions of the Hawaiian Organic clause later on in an amendment form, which is being pre Act and.” pared by the clerks, which provides for the signature by SAKAKIHARA: I’m against the amendment. the governor of all acts requring the signature of the President and/or the Congress of the United States. I think MIZUHA: I would like to ask the movant of the amend that’s what Mr. White has reference to. ment a question. It seems to me the Hawaiian Organic Act is a Congressional law, a federal law, and we’re not CHAIRMAN: Delegate Ashford. interested in that law. When we become a state, we have ASHFORD: Would you wait just a moment, Mr. Chairman, our own Constitution. The section as written at the present while I confer with the chairman of the committee? time refers to the statutory law of the Territory of Hawaii which wifl be enforced. I think that amendment is unneces CHAIRMAN: Anybody else like to do some talking? sary because it is not a law of the Territory of Hawaii, but ASHFORD: The section to which Delegate White has a law of the Congress of the United States. referred was recommended by the Committee of the Whole ANTHONY: Beyond that, the Organic Act provides for to be included in the article on ordinances and continuity of the appointment of the governor by the President, the laws, but that was adopted after our first report was filed, appointment of our judges. I do sincerely believe that and I think the committee felt that that should - - could be we’re acting too hastily on this and at this time I’ll move inserted as an amendment. to defer this section until the end of the calendar before CHAIRMAN: Point of information from the Chair. this committee. Amendment to what section, Delegate Asbford? JULY 10, 1950 • Afternoon Session 793 SHIMAMURA: It’s carried in the new amendment which to draw something else about what’s to happen when this - - is being printed by the printing department. Oh, we haven’t when we first became a state. Well, for instance, Delegate come to that section yet. It’s the latter section, toward the Shimamura’s statement about who’s to sign these bonds which end. the present law requires to be signed by the President and so forth. Various other things. We may find ourselves CHAIRMAN: Section 5. What is the desire of the Com going back to amend other sections of this ordinance article mittee as regard Section 5? to conform and I think if we wait a little later, we’ll actual ANTHONY: When I made my motion, I didn’t intend to ly be making haste, more haste that way than reconsidering make it as restrictive as it was ultimately put and carried. and rehashing the same things over again, some of them. The purpose of our recess this morning was to enable those CHAIRMAN: As a matter of information, Delegate An of us who had a little different view on this to have a little thony, your motion doesn’t go to Committee Proposal No. time to get them together and get them before the body. 25, does it? And to Committee Proposal No. 24 from the That entire time that was thus supported by vote of the com same committee? Then we can continue our consideration mittee had to be taken up by the Committee on Style. That on those and defer this. was all right, but the purpose of our adjournment - - our recess this morning was just that. I think it would be in ANTHONY: That’s my suggestion - - my motion. order if we deferred these Sections 5 to 15 inclusive until CHAIRMAN: The motion is to defer the rest of the sec the end of the calendar. tions in Article 23 - - Committee Proposal 23, rather. CHAIRMAN: The point is well taken. I believe on July Any more discussion? All those in favor of the motion to third, when the Committee of the Whole sat to consider this defer please say “aye.” Opposed, “no.” Carried. whole proposal, that was the same opinion of the Committee The Chair’s in doubt as to whether this Committee of of the Whole. They deferred most of these sections in the the Whole sitting here now can consider Committee Proposal proposal for the reason that the members would have suff i No. 24. I believe the person who made the motion to re dent time to work over them. Then the question also came solve ourselves into Committee of the Whole was Delegate up as to whether Section 8, 9, 10, 11 should be telescoped. Kam. You just stated, “I so move.” Did your motion in And I think this Committee of the Whole probably should clude Committee Proposal No. 24, and No. 25? take a sense vote on that, as to whether it desires to have KAM: Sure, Mr. Chairman. it telescoped, so that this draft, whoever works on it, can CHAIRMAN: It did? follow the directions of the Committee of the Whole. KAM: Yes. SmMAMuRA: May I state that if the delegates who wish to do some research in this matter would look at the CHAIRMAN: Also Committee Reports 73 and 70? Is constitutions of Arizona, Nevada, New Mexico, and Okla there any objection? Chairman Shimamura, what is the homa, no, Wyoming, they’d find that these sections are wish of the committee as to the order of consideration of incorporated in their constitutions in practically identical Committee Proposals 25 and 24? form, and in some cases in similar or identical language. SHIMAMURA: Pardon me, Mr. Chairman. I’m sorry, WOOLAWAY: Is there a motion before the house to defer I didn’t hear you. right now? CHAIRMAN: Which would you like to consider first, CHAIRMAN: No, I don’t believe so. Committee Proposal 24 or 25? TAVARES: I thought Mr. Anthony made the motion. SHIMAMURA: Well, let’s go to 25. I think that’s prac CHAIRMAN: Delegate Anthony, what was your motion? tically all from H. R. 49, and perhaps we can find some area of agreement on this proposal. ANTHONY: My motion was to defer the remainder - - the remaining sections until the end of the calendar. CHAIRMAN: We are now considering Standing Committee Report No. 73 and Committee Proposal No. 25. CHAIRMAN: All of the remaining sections of the same proposal? BRYAN: I move the adoption of Committee Proposal No. TAVARES: I’ll second that motion. In so doing, I don’t 25. want to be obstructive, but I feel this way. Regardless of WOOLAWAY: I’ll second the motion. whether we adopt or don’t adopt the sections remaining in CHAIRMAN: The entire proposal? the form which they are now in substantially, I am not satisfied and have gone over my notes and covered all the other things SHIMAMURA: May I ask leave to amend Committee that ought to be covered in the ordinances and continuity of Proposal No. 25. First, the title, after the words “A laws. My own feeling is we ought to put them all together proposal relating to,” strike out “an,” a-n, insert the in one big article, so that we can dovetail them all together words “the initial”; strike out “ordinance,” insert “in the rather than do it piecemeal. There are a few things, as state”; so that it shall read “relating to the initial election the chairman has said already, and I think there are others in the state.” we have not yet worked out; and since this is the last clean Also, while on my feet, to conform to the title of the up provision anyway, I think we’ll save time in the long run article, the following amendment. Insert the word “initial” if we try to get together now all of these things that the ordi before “election,” the word “election” following the word nances and continuity of laws are supposed to do and put “article.” Strike out the word “ordinance.” The reason them all together, dovetail them and submit it to this com for that is that Committee Print C as amended in the Com mittee for one last look, and make it final at that time. mittee on Interior and Insular Affairs of the Senate has Otherwise, I think we’ll be reconsidering some of them in deleted the word “ordinances” or the word “ordinance” the light of new provisions that we may insert. whenever it appears, except in very limited form. CHAIRMAN: Delegate Tavares, when you say “we,” CHAIRMAN: Delegate Bryan, would you withdraw your who are you referring to, the Committee on Ordinances and motion for the sake of order here? Withdraw your motion? Continuity? You moved to adopt the whole Committee Proposal No. 25, didn’t you? TAVARES: I think the whole Convention as well as this Committee of the Whole. In other words, suppose we have BRYAN: That’s right. You want to take ft by sections? 794 ORDINANCES AND CONTINUITY OF LAW CHAIRMAN: Yes. SHIMAMURA: This matter is entirely up to this body, BRYAN: All right. I’ll move the adoption of Section 1 of but I don’t think we’ll make much faster progress by con Committee Proposal No. 25. tinuing all these proposals. Proposal No. 25 is taken almost word for word from H. R. 49 with necessary changes, CHAIRMAN: Just a second. We have Shimamura’s and - - motion on the floor. H. RICE: That’s my idea. I’ve worked on H.R. 49. DELEGATE: I think his original motion was correct. That’s my homework to keep in touch with that. It seems CHAIRMAN: Whose original motion? to me Proposal No. 25 is all in order. It’s simply a matter of going through and reading it and understanding it. DELEGATE: Mr. Bryan’s. CHAIRMAN: Oh, yes, that’s right. PORTEUS: I don’t think there’s any question but that we are all agreed that we want to get at this and get it BRYAN: Let’s vote on the amendment suggested, and then disposed of as fast as possible. The only thing is that it’s I’ll go on. now quarter past two. If we work for two more hours on these other matters, you won’t have had any conferences CHAIRMAN: It has been moved and seconded that, first, on the earlier proposal on which there seems to be some that the committee adopt Committee Proposal No. 25, and difference of opinion. If we stop now, if there’s any time subsequently Delegate Shimamura moved to amend the title left over they can go into these other subjects. I think we’ll to read “Relating to the Initial Election in the State.” Also, make time faster by taking time off to do it. the words alter “article” read “initial election,” and cross out the word “ordinances.” Is there any second to the CHAIRMAN: Are you ready for the question? All those motion? in favor of the motion to defer action for consideration of Committee Proposals No. 25, 24 and 23, please say “aye.” BRYAN: I second the motion. Opposed, “no.” Carried. CHAIRMAN: It has been moved and seconded. Is there BRYAN: I move that this Committee of the Whole rise, any more discussion? report progress and ask leave to sit again. SAKAKIHARA: If it’s appropriate at this time, I would SAKAKIHARA: I second the motion. like to move to defer action on Proposal No. 25, Committee Proposal No. 24, Committee Proposal No. 23, to be taken CHAIRMAN: It has been moved and seconded that this up together so that we might make faster progress here. committee rise, report progress and beg leave to sit again. We might go over the proposal, Committee Proposal No. 25, All those in favor of the motion, please say “aye.” OppOsed, section by section, and perhaps we might find ourselves in “no.”’ Carried. the same predicament we find ourselves in now with Pro posal No. 23. I desire to move at this time that instead JULY 11, 1950 • Morning Session of making amendments at this time to different sections we’ll take up Proposals 23, 24, 25 in a recess, and I think we’ll CHAIRMAN: Will the Committee of the Whole please make faster progress. come to order. Delegate Shimamura, what is the wish of the Committee on Continuity and Ordinances insofar as OKINO: I second that motion. order of procedure goes? CHAIRMAN: It has been moved and seconded that we SHIMAMURA: If I may suggest, it might be preferable defer action on Committee Proposals No 23, 24 and 25 to take up Committee Proposal No. 25. I think that’s least Is there any discussion? controversial. PORTEUS: I might inform the body that I discussed CHAIRMAN: If there ‘is no objection then, we’ll prodeed this matter with the chairman of the. Committee on Style, with consideration of Committee Proposal No. 25 and Stand and if this plan is followed, he will not hold a meeting of ing Committee Report No. 73. Style this afternoon in order to let those that wish to get BRYAN: Again I move the adoption of Committee Pro together with the Committee on Ordinances and Continuity posal No. 25. ‘ of Laws in order to work this out. And that he’ll call a meeting of the Style Committee tonight at 7:30. That would CHAIRMAN I believe the motion was made yesterday leave the rest of the afternoon open. The difficulty is that and seconded, was it not? Then the Chair rules it’s not if we keep considering these other matters, at the end of the necessary today afternoon we will still not have found the time to permit SHIMA’MURA: Has there been a second to that motion? these people to work on this thing together. So I think it would be desirable to rise, report progress and ask leave CHAIRMAN The motion was made yesterday and to sit again. seconded, therefore, the motion is still before the commit tee CHAIRMAN: Point well taken. Now, is there any more discussion on the question to defer? SHIMAMURA: Was my motion to amend the titles vOted upon yesterday? H. RICE:’ I’m wondering if Delegate Sakakthara can’ tell us where in Section - - in Proposal No; 25 we’d get stuck CHAIRMAN: No, the motion was made but not voted on. again? SHIMAMURA: The dhange in the titles, as ‘the delegates SAKAKIHARA: My motion is in general terms, as we have know, is to conform to H. R. 49 which has ‘done away with deliberated on Proposal No. 23. I have a strong feeling that reference to ordinances except in two particulars which do among the delegates present here in Committee of the Whole, not pertain to the present section. they are bound to bring that question up I think it might CHAIRMAN: Is there any mOre discussion on the amend expedite the proceedings here if we would defer action on ments on the title of the’àrticle?’ Are you ready for the these three proposals and deliberate as a separate body question? The amendment reads, after the word “a pro and make for faster progress. It would also help the Style posal,” after amended it will read “Relating to the initial Committee, going into a meeting. election in the state”; and after the word “article” it was 795 JULY 11, 1950 • Morning Session moved to amend to read “initial election” and the word the Congress of the United States, if its approval is required, “ordinance” was deleted. All those in favor of the motion approves the same, the governor of the Territory of Hawaii to amend, please signify by raising your right, rather, by shall” and so forth. saying “aye.” Opposed, “no.” Motion is carried. CHAIRMAN: I believe the present suggested amendment SHIMAMURA: May I point out for the convenience of the is acceptable to the movant of the previous amendment. delegates, so that they may follow this article more easily, SHIMAMURA: It’s quite acceptable. In that connection, that the substance of it is taken from H. R. 49, Committee may I point out then that from the - - on the fifth line, the Print C, Sections 4 and 5. suggested amendment I made “of the United States” after I move in Section 1 to delete the word “that,” the first the word “President” should go out, then. word of the section, and capitalize “in” on the first line; also to strike out the word “President” on the second line, and TAVARES: Yes, I was going to suggest in lieu of that, insert the word “Congress”; the filth line, after the word insert after the word “President” a comma “or from the “President,” insert the words, “of the United States.” Congress, if its approval is required” comma. HEEN: Mr. Chairman. SHIMAMURA: On that, may I respectfully suggest that H. R. 49 in all its forms has “President.” In other words, CHAIRMAN: Just one second. Is there any more amend that’s the certification of the President. ment you - - TAVARES: That’s only the President that has to certify? SHIMAMURA: Yes, Mr. Chairman. If I may make these SHIMAMURA: Yes. because these are in compliance with H. R. 49. On the eighth line - - TAVARES: Well, then, I’ll withdraw my amendment as to that. HEEN: What was the last amendment? H. RICE: Then, I take it, Mr. Tavares feels that it may SHIMAMURA: The last one, Judge Heen, was the in be changed again in coaference. Otherwise, we are, by the sertion of the words “of the United States” on the filth line, original, the way it stood originally, you are following H. R. Section 1, after the word “President.” 49. CHAIRMAN: Could you proceed a little slower. Proba bly some of the delegates have difficulty following. SHIMAMURA: Yes, but I have been led to believe that there is some hope that if our Constitution is received by the SHIMAMURA: On the eighth line, Section 1, first page, members of Congress and the Senate before the final vote, delete the words starting with “except those officers for there is a chance of changing back to presidential approval which” down to the second line on page two, “temporary because then they’ll know what we are going to offer as a provisions.” And also on the filth and sixth lines on page constitution. That was - - that’s my impression that I get two, Section 1, on the filth line after the word “required,” from talking to people who have communicated with mem delete the words “by ordinance of this Convention” and bers of the Congress. down to the sixth line, “duly ratified by the people or.” Those amendments, as I’ve said, are to comply with the H. RICE: Well, I hope that that won’t occur because it’s amended form of H. R. 49. easy enough to have the statehood bill then die in conference. CHAIRMAN: Do I hear a second to the amendments made CHAIRMAN: Is there any more discussion on the amend to Section 1? ments? Are you ready for the question? H. RICE: I second the amendment. A. TRASK: The last remark from Delegate Rice is quite quizzical. I wish he would explain that further. Maybe it CHAIRMAN: It has been moved and seconded that Sec would assist further in the drafting of this particular Section tion 1 be amended as stated by Delegate Shimamura. 1. TAVARES: I’m sorry I haven’t discussed this with Mr. H. RICE: Well, as I say, this H.R. 49 has been my Shimamura since yesterday, but I was wondering if he would night reading. I would hate to see this H.R. 49. I think answer a question as to whether we couldn’t leave the men we ought to go along with it the way the Senate has finally tion of the President of the United States in and instead drafted it. If we do that, I think they’ll be more liable to of changing it to Congress, make an alternative, so that accept it right pronto. But if we leave that part in doubt wherever we mention “President of the United States,” we and make either the President or Congress could endorse could add something like this, “or the Congress of the United our Constitution, why I can see that the House, Congressional States, if its approval is required,” or some word like that, House, may not agree with the amendment made by the Senate so that whichever way it comes out in coaference, we’d fit and put the bill in conference and then let it die in conference. either one without having to call another Convention. TAVARES: This amendment will not have any of those SHIMAMURA: I think that’s a good suggestion. I have results. It’ll only prevent, for that purpose, another Con no objection. I think it’s a good suggestion. vention being called, because in case it should be changed CHAIRMAN: Could you make the suggestion in the amend and we have Congress’ approval in here, we will have to ment? wait till Congress meets again and approves before we can become a state; whereas, if it should be changed back to TAVARES: Then, I move an amendment of the amend the President approving, our Constitution fits either one. ment, so that in the second line instead of changing the So I think it’s an advantage to have both. That doesn’t word “President” to “Congress,” it would remain “President,” mean that Congress has to act that way. It means we’re and then the third line after the word “States” meaning United covering both possibilities and trying to avoid a further States, insert a comma, “or the Congress of the United amendment of our proposed Constitution before we can States, if its approval is required,” comma. become a state, depending on which way the Congress CHAIRMAN: Could you please read that over again? finally acts. TAVARES: Well, with the amendment it would read this CHAIRMAN: The amendment proposed is as follows: way. “In case the people of the Territory of Hawaii ratify the first word “that” is deleted; the word, first letter of this Constitution and the President of the United States, or the word “in” is capitalized; and on the third line after 796 ORDINANCES AND CONTINUITY OF LAW the word “States,” a comma is inserted and the following TAVARES: I think we are being - - we are acting detri words added, “or the Congress of the United States, if its mentally to the interests of Hawaii if we don’t cover those approval is required,” comma. And in the fifth line after possibilkies. Anybody that thinks after this thing having the word “President,” the words “of the United States” are been inserted in this bill, that the next Congress isn’t going inserted. to notice if, is being naive, that’s all. The same people SHIMAMURA: Pardon me, Mr. Chairman. I did make that wanted that in the Senate bill today are going to want that insertion at first, but I’ve withdrawn it since. The words it in the next bill, and we’re just closing our eyes if we “of the United States” should be withdrawn because on the think they are just going to overlook if the next time. I think second line the t’resident of the United States is named. we should cover both possibilities because otherwise if Congress still insists, then we’ll have to call another con CHA[RMAN: Then there is no amendment on the fifth vention to amend this before we can accept statehood. line. In the eighth line, beginning with the word “except,” the words following are deleted “except those officers for HEEN: I have this suggestion to mnke. Have that clause which”; and on the next page, “this Constitutional Convention, read this way: “In case the people of the Territory of Hawaii by ordinance duly ratified by the people, shall have made ratify this Constitution and the same is approved by the duly other temporary provisions,” comma, they are all deleted. constituted authority of the Unked States.” ROBERTS: I’m generally in favor of the amendment pro DELEGATE: [Inaudible.] posed by Delegate Tavares. I do have some problem, how ever, as a matter of policy. If we put this language in—and CHAIRMAN: Could you please use your mike? it’s desirable in line with H. R. 49 in ifs present state—sup HEEN: “In case the people of the Terrifory of Hawaii pose H. R. 49 is not acted on by this Congress. When we ratify this Constitution and the same is approved by the duly submit this Constitution at the next legislature of the United constifuted authority of the United States.” States we are in fact suggesting or implying that we think we ought to have approval by the Congress before this thing ROBERTS: I’ll second that if it’s made in the form of a is put into effect. I think the amendment in H. R. 49 is high motion. ly undesirable. I don’t see why we as a state have to go to HEEN: I so move. Congress for approval when no other state coming in has had to do so. It’s been acted on by the President. I do feel, ROBERTS: Second. however, we could get some general language, and broad, CHAIRMAN: Is that amendment acceptable to the movant which would conform or indicate conformance to H. R. 49 of the original amendment? If not, we’ll have to decide on ih its present state in this session, but would not bind us in that first. the future because the implication of this thing is that we have no objection to the Congress of the United States review SHIMAMURA: I’m woddering if the Judge would - - Judge ing the Constitution. I think it’s objectionable. Heen would yield to a question? As I read Section 5, Com mittee Print C, it mnkes the provision of that section man SHIMAMURA: I see the last spenker’s point. However, datory in language. I’m wondering if it’s wise, as a matter there isn’t anything that we can do except to comply with of policy and also as a matter of law, to leave all reference II. R. 49 which mnkes if mandatory to include these pro to Congress out when it says that “said Constitutional Con visions, and the provision as amended says “Congress of vention shall provide that in case of the ratification of said the United States”; they have deleted “President,” but we Constitution by the people and in the case the Congress are leaving “President” in to tnke care of the situation approves the same,” and so forth. which might arise necessitating only his approval. HEEN: I don’t think k’s inconsistent with that provision. TAVARES: I am gravely in doubt as to whether the next If they should change it back to the President, this will con to the last spenker’s statement is correct. I am very form, the language which I have just suggested. definitely of the impression that some states have been admitted under laws that did require the approval of Con TAVARES: May I ask - - gress. That’s my very definite recollection from previous CHAIRMAN: Are you through, Delegate Heen? study, and I think he is mistnken there. There are some statehood laws that have said Congress must approve; TAVARES: May I ask the delegate a question? At the others have said only the President; so that I don’t think expense of a few more words, couldn’t we mnke that a little it’s correct that every state has been admitted only on clearer by adding after the amendment suggested by the dele presidential approval. gate, the words “whose approval thereto may be required”? So that it will read “and the same is approved by the duly CHAIRMAN: Is there any more discussion? constituted authority of the Unked States whose approval ROBERTS: I have a suggestion which might meet that. thereto may be required.” That takes away the mandatory I might say in reply to the previous spenker that I don’t requirement that Delegate Shimamura expressed some con know of any states that have had to go and get their Consti cern about. tution approved by the Congress. I would amend the second HEEN: I think that further amendment is in order. part, “or the Congress of the United States, if its approval is required under H.R. 49,” so that if H.R. 49 is not passed TAVARES: I’ll withdraw my amendment, if the second in this session, then we do not suggest or imply to the Con will consent to it. gress that we want to submk our donstitution to them for ROBERTS: I’ll accept that amendment. their approval. This election ordinance stays in our Consti tution whether H. R. 49 passes or not. And if it should - - TAVARES: I mean I withdraw my first amendment. we should get no action on H. R. 49 in this session, we are, CHAIRMAN: And could you repeat your last amendment in fact, implying that we have no objection to the Congress so we’ll get the records cleared? reviewing our Constitution. I do. TAVARES: The last amendment is, instead of inserting TAVARES: Is the spenker finished? after the word “States,” in the third line the amendment CHAIRMAN: Are you through? which I first moved, insert the amendments that Delegate Heen has moved with my further addendum, reading as ROBERTS: Yes. follows, “and the same is approved by the duly constifuted JULY 11, 1950 • Morning Session 797 authority of the United States whose approval thereto may upon the President to certify to such approval. Therefore, I be required,” comma. think it’s correct as it is. CHAIRMAN: There are some delegates that are requesting HEEN: I have this suggestion to make. Starting with the that it be read again. clause “within 30 days after receipt of notification,” have TAVARES: I should have deleted some further words. that clause read as follows, “within 30 days after receipt As I understand it, instead of the words from lines two and of official notice of such approval” period - - comma, three, “and the President of the United States” should be rather. deleted, and insert in lieu thereof the words, “and the same TAVARES: I second the motion. is approved by the duly constituted authority of the United HEEN: My point is this. By using this general language, States whose approval thereto may be required,” comma, it may come from the Chief Clerk of the Senate or the House, and delete the words “approves the same” in the same line, or It may come from the President, or it may come from line three. some other source; as long as it’s official, that’s all we SHIMAMURA: That is acceptable to the committee. need to worry about. CHAIRMAN: The Chair would like to reread the present SHIMAMURA: We have no particular objection as to amendment offered. In the second line, after the word that. Only thing is, the word - - language of the enabling “and,” delete the words “the President of the United States act on page 20 is “within 30 days after the receipt of said approves the same,” to the third line, including the comma; notification from the President.” and inserting in lieu thereof the words, “the same is approved by the duly constituted authority of the United States, whose CHAIRMAN: You have no objection to that, is that approval thereto may be required,” comma. Is that correct, correct? Is it acceptable? Delegate Heen, could you Delegate Tavares? please repeat the amendment again? TAVARES: That is correct. HEEN: Have that clause read as follows, “within 30 days after receipt of official notice of such approval,” comma. FUKUSHIMA: Then there should be the words “of the United States” following the word “President” in the fifth TAVARES: I think to make it clearer, we should delete line. the words in lines four to five, “notification from the Presi dent,” with the addition “of the United States” which was SHIMAMURA: That is right. previously moved deleted also, “certifying,” and then we CHAIRMAN: Are there any more amendments? The would only need to insert the words in lieu thereof, “official Chair would - - notice of.” In other words, delete the words “notification from the President certifying,” and any other amendments ARASHIRO: If the above is amended as such, then I think heretofore offered to that clause, and insert in lieu thereof we should continue and go down below where it says, “The the words “official notice of.” Territory of Hawaii shall, within 30 days after receipt of such notification,” insert a “such” before “notification,” SHIMAMUHA: That is correct. and delete “from the President,” and then amend “certifying” CHAIRMAN: Is that suggested amendment acceptable to by saying “certification of approval.” Delegate Roberts? I believe it conforms with the motion he CHAIRMAN: Did the chairman of the committee hear made. the - - ROBERTS: Yes, it is; if it deletes the word “certifying.” SHIMAMURA: Yes, I did. I see the delegate’s intention, It does. but I think it’s fully covered here because it says “within 30 days after receipt of notification from the President, ASHFORD: Why use the word “notice”? “Notification” certifying such approval,” and H. R. 49 has not changed is used throughout in H. R. 49, and if they are the same, why the fact that the President is the one to certify such approval, don’t we follow the language of the Congressional bill? never Congress. Therefore, the notification portion re “Notification” instead of “notice.” mains the same. HEEN: That’s satisfactory so far as I’m concerned. ROBERTS: I think the words “certify such” or “certify CHAIRMAN: Thank you, Delegate Heen. Is there any ing such approval” should be deleted, because in H. R. 49 objection to it so far as seconds are concerned? the certification is the certification of action by the Congress, and since we’ve written this general language, I think cer SHIMAMURA: When the Chair is ready, may we have that tification has no meaning. I think that the amendment as read, as amended in final form? proposed by Delegate Arashiro on the fourth line which reads CHAIRMAN: Yes. The amendments, so far, are as “after receipt of such notification from the President”—that’s follows. In the first line, the first word “that” has been notification of the approval above—”issue his proclamation,” deleted, and the first letter of the word “in” has been you can delete the words “certifying such approval.” capitalized. In the second line, the following words have H. RICE: Second the motion to strike out those three been deleted, “President of the United” and in the third words. line, “States approves the same” have been deleted. In the fourth line, the word “official” has been inserted between CHAIRMAN: Is it acceptable to the committee? the words “of” and “notification,” and the word “of” has SHIMAMURA: No. been inserted after the word “notification,” and the words “from the” have been deleted. In the fifth line, the CHAIRMAN: Just a second, let’s get this straight. Dele gate Shimamura. words “President certifying” have been deleted. In the eighth line, the words “except those officers for which SHIMAMURA: Under H. H. 49, on the mimeographed have been deleted. On the following page, in the first line, copy, page 19, it does say that, “It shall be the duty of the the entire line [“this Constitutional Convention, by ordinance President to certify such approval.” Whether the Congress duly ratified by the”l has been deleted and in the second mnkes the approval, or to put it differently, whether the Con line the words, “people, shall have made other temporary gress approves or the President approves, it is incumbent provisions,” have been deleted. In the fifth line, the words 798 ORDINANCES AND CONTINUITY OF LAW “by ordinance of this Convention” have been deleted. In the SHIMAMURA: Yes, I think it’s incumbent upon the sixth line, the words “duly ratified by the people or” werd governor to proclaim in his proclamation whether there shall deleted. be just one election, or a primary and a general election, TAVARES: I think you inadvertently omitted an insertion and this follows the language and sense of H.R. 49. after the word “Constitution” in the second line, or rather ROBERTS: I’m still not quite clear. There’s no mandate “and.” After the word “Constitution” in the second line in H.R. 49 which requires any special types of elections. there was an insertion reading, “the same is approved by I would assume, in line with our previous policy of elections the duly constituted authority of the United States whose in the state - - territory that there would be primary and approval thereto may be required.” The first line - - generals. I didn’t know that it was the intent to provide that CHAIRMAN: Oh, yes, that’s right. the governor of the future State can be elected at a special election, without any provision for a primary. TAVARES: - - second line, first page - - SHIMAMURA: There’s a definite provision in Section 5, CHAIRMAN: That’s right. Print C, page 21 on the official copy, the fifth and sixth TAVARES: - - after the word “and.” lines of Section 5, page 21 on the official copy. On the mimeographed copy, it’s on Section 5, page 21, the fifth CHAIRMAN: The Chair stands corrected. and sixth lines there also. TAVARES: May someone now read the entire amended section as proposed to be amended? CHAIRMAN: Thirteenth line. BEEN: ROBERTS: I’m not quite sure what they mean. That’s the Section 1: In case the people of the Territory of point. Hawaii ratify this Constitution and the same is approved SHIMAMURA: Well, I think—as I said a few moments ago, by the duly constituted authority of the United States I could be mistaken—but I think that’s discretionary with the whose approval thereto may be required, the governor governor, whether he shall call just one election or a pri of the Territory of Hawaii shall, within thirty days after mary and a general. receipt of official notification of such approval, issue CHAIRMAN: Is there any more discussion on this ques his proclamation for an election, or primary and general tion? elections, as may be required, at which officers for all ROBERTS: What are the words “as may be required”? elective offices provided for by this Constitution, and As may be required by what? By our statutes? I’m not sure laws of this State, shall be chosen by the people; but the of the meaning of that language and I think that in dealing with officers so to be elected shall in any event include two the election of the new officers of the state, that we ought to senators and two representatives in Congress, and unless have a pretty good idea as to how they are going to be handled. and until otherwise required by this Constitution or laws of this State, said representatives shall be elected at CHAIRMAN: Delegate Shimamura, the question has been large. directed to the committee. NIELSEN: I’d like to make a further amendment in the SHIMAMURA I think that’s a good question I had so last line after the second word, “State,” insert “one of” far construed it to mean as may be required by the governor and then read on, “said representatives shall be elected in his proclamation. I could be mistaken as to that. It is from,” and add the following, deleting “at large,” “from true that there is some uncertainty there, what exactly is Oahu and the other from any other island.” I so move. meant by the language, whether it’s meant by some require DELEGATE: Second the motion. ment under our state laws or as required by the governor in his proclamation. NIELSEN: Is that acceptable to the Chairman? ROBERTS: Inview of the statement, I would suggest that SHIMAMURA May I have that repeated, please? we be specific I’m sure it was not the intention of the NIELSEN The last sentence in the last line, after the Congress in its statute, proposed statute - - bill, to tell us word “State,” drop the comma and add “one of”; and then how to run our elections. I think we can indicate pretty following the word “elected,” the last - - the third from the definitely in our ordinance as to how we think they ought to last word, delete the words “at large,” and insert “from be held, whether by primary and general, or by a special Oahu and the other from any other island.” election, and I think we can write it in so there is no am biguity. That would not be in contravention to H. R. 49. CHAIRMAN: The amendment has been moved and seconded. SHIMAMURA: I think that’s a good suggestion. TAVARES: These two amendments are so very different. One is non-controversial, the other one is. HEEN There is a provision which the same committee will present to this committee later on reading thus: “All CHAIRMAN That’s right laws in force at the time this Constitution takes effect and not inconsistent therewith, shall be the laws of the State and TAVARES: I suggest that the movants withhold the motion remain in force, mutatis mutandis, until they expire by until we vote on the clean-up amendments, which these first their own limitation, or are altered or repealed by the legis ones are, and then go on to the controversial one. lature.” In other words, all the election laws will continue NIELSEN: That’s êntirOly satisfactory, but I thought in force; and, therefore, those laws will be applicable at they were going to maybe approve this paragraph the time the elections are held, or rather this special elec tion is held. Perhaps instead of having the clause read “as CHAIRMAN: I think that’s fair enough. may be required,” it might read “in accordance with law” ROBERTS: I have one question to direct tO the chairman —“for any election, or primary and general elections, of the Committee on Ordinances and Continuity. In the sixth in accordance with law.” It fits the situation. line, reference is made to “election, or primary and general elections, as may be required.” I’m not quite sure I know CHAIRMAN Delegate Roberts, how does that suggestion what the import of those words are. Is it the intent that there meet your problem? shall be special elections, or primary and general elections, ROBERTS: I have the general problem that we have never at the wish Of the governor? in the territory before elected any governor or lieutenant 799 JULY 11, 1950 • Morning Session governor, and we have no laws dealing with those. We might H. RICE: Second the motion. put some language in here that the laws applicable to general CHAIRMAN: It has been moved and seconded that the - - elections shall also be applicable to the election of the gov ernor and lieutenant governor. But we’ve got to make some LUIZ: I would like to ask a question here. It doesn’t provision in some way to handle it, because this will leave state who will say that the party or the organization is it completely in the hands of the governor to decide how he subversive. Who will be the judge of that? wants the election to be run. CHAmMAN: Delegate Luiz, could you please hold your CHAIRMAN: Delegate Shimamura, do you have a sugges question off for a few minutes until we’ve disposed of this tion? proposed amendment? Delegate Shimamura, your amend ment goes to the title below the word “Article.” Is that SHIMAMURA: I don’t think there’s anything applicable in correct? our article on suffrage and elections. As I recall that arti cle, it was just the general election that is provided for. SHIMAMURA: Yes, for the time being. Am I correct on that? I should like to be enlightened on it. CHAIRMAN: And your motion is to delete the words [Part of the debate was not recorded. The following is “Ordinances” and “Be it ordained by the people of Hawaii.” from the minutes of the committee.] Is that correct? SHIMAMURA: That’s right. Mr. Tavares suggested, since there was doubt on the subject, that there be a short recess. CHAIRMAN: It has been moved and seconded to amend Mr. Bryan stated that it was his understanding that the the title of Committee Proposal No. 24. Ready for the chairman of the Committee on Executive Powers and Functions question? All those in favor please say “aye.” Opposed, had been asked to write a statute covering the special elec “no.” Carried. Amended. tion to be held for this purpose. SHIMAMURA: I now move to delete the word “that” on Mr. Shimamura stated that Committee Proposal No. 25 the first line of Section 1 and to capitalize the next word, was the article to take care of the initial election. “No”; and to insert after the word “who” on the first line, The Chair declared a short recess. Section 1, “aids or”—”a-i-d-s or.” In other words, it will read, “or who aids or belongs.” I move for that amendment. (RECESS) DELEGATE: Second. [Recording resumed.] TAVARES: I have grave doubt that the word “aids” by CHAIRMAN: It appears that the group that has been itself is unconstitutional [sic] I think it should be preceded working on this problem has as yet not been able to come by the word “knowingly.” I think that is the way it has been to some agreement. Therefore the Chair would like to interpreted in the recent communist trials, that it must be suggest that we defer the consideration of Committee Pro something done with knowledge, because sometimes people posal No. 25 until some time later in the thy, and consider unwittingly aid organizations that they don’t know are sub Committee Proposal No. 24. versive. I think - - I read the instructions of Judge Medina to the jury that convicted those persons accused of subversive PORTEUS: I move that the recommenthtion of the chair activities in New York, and he very clearly stated that it man be adopted, which would take us to Committee Proposal must be done with knowledge. I therefore move to insert No. 24. the word “knowingly” before “aids.” BRYAN: Second that motion. CHAIRMAN: Is that acceptable to Delegate Shimamura? CHAIRMAN: It has been moved and seconded that we SHIMAMURA: I have no objection to that insertion. I defer consideration on Committee Proposal No. 25 and was just trying to comply with the exact language of H. R. 49. consider Committee Proposal No. 24. Any discussion? All those in favor of the motion, please say “aye.” Opposed, CHAIRMAN: Delegate Luiz, is there any question you same sign - - “no,” rather. Motion is carried. wish to raise as regards the question - - section? LUIZ: Want me to repeat the question? BRYAN: I move the adoption of Section 1 of Committee Proposal No. 24. CHAIRMAN: That’s right. Is that a point of order you are rising to, Delegate Anthony? DOWSON: I second the motion. ANTHONY: I want to speak to the amendment. CHAIRMAN: It has been moved and seconded that Section 1 of Committee Proposal No. 24 be adopted. Is there any CHAIRMAN: Delegate Luiz, could you yield just a second? discussion? Does the chairman of the Committee on Ordi Confine our discussiow to the amendment right immediately nances and Continuity wish to say anything on the section? before us for the sake of order. TAVARES: Isn’t that covered now by another section on ANTHONY: I agree with Delegate Tavares that the pro suffrage and elections? I think it is. Just a minute. per construction of the incorporation provision which is mandated would include the word “knowingly,” but I doubt SHIMAMURA: No. I should like to propose a couple of the wisdom of modifying the language of the act of Congress. amendments to comply with the latest draft of H. R. 49, It would seem to me more appropriate to adopt the words which is Committee Print C. Delete the word “Ordinances” of the act with our construction—which is, of course, the and the following words after the word “Article,” “Be it only supportable construction—that Delegate Tavares has ordained by the people of Hawaii.” That is done in compliance just put upon it. In other words, rather than change the with H. R. 49 which has deleted reference to ordinances with language of the act of Congress, let’s interpret it to make respect to these particular provisions. it constitutional, and that would require implicit in that CHAIRMAN: How would the amendment read, Delegate interpretation, the word “knowingly.” Shimamura? SHIMAMURA: I believe I would go along with that sugges - SHIMAMURA: After the word “Article” in the center of tion. I think it will be preferable to leave the words as the page, delete the word Ordinances” and also the words, specified by Congress, and leave that interpretation in the “Be it ordained by the people of Hawaii.” report. 800 ORDINANCES AND CONTINUITY OF LAW TAVARES: I’ll withdraw my amendment with that under SHIMAMURA: That is correct; it was not, but the com standing. mittee felt that public employment as well as office of CHAIRMAN: Is there any more discussion on the motion profit should be covered, but that is entirely a matter of - - the amendment? policy up to this Convention. A. TRASK: Can the amendment be stated, please? CHAIRMAN: Is there any more discussion on the ques tion? CHAIRMAN: The amendment is to delete the first word “that” and capitalize the first letter of the word, “No,” and ANTHONY: I think we’re on safer ground if we just insert the words “aids or” between the words “who” and adhere to the language of the act. I had assumed that this “belongs.” was an attempt to copy the language of the act of Congress. I, therefore, would move an amendment to this section, to A. TRASK: Question on the amendment. make it conform to the expressed mandate of the Congress, whatever that amendment may be. CHAIRMAN: All those in favor of - - The word “knowing ly” has been withdrawn. All those in favor of the amend CHAIRMAN: That would be to cross out the words “any ment, please signify by saying “aye.” Opposed, same sign public employment.” Is that correct, Delegate Shimamura? - - opposed, “no.” Amendment is carried. ANTHONY: Iso move. Delegate Luiz. CHAIRMAN: Delegate Shimamura, on the question raised BRYAN: In order that he can proceed orderly, I move by Delegate Roberts, would it be conforming to H. R. 49 the adoption of the section as amended. should we delete the words “any public employment”? CHAIRMAN: His question went to Section 1. You see, SHIMAMURA: Yes, it is - - it would be in strict compli the chairman feels that the question raised by Mr. Luiz ance with H. R. 49 to leave out the worth “or any public em goes to another portion of the first section; therefore, that ployment.” The committee discussed the matter and some is not necessary. Delegate Luiz. members of the committee felt very strongly that public employment should be covered. LUIZ: I am not speaking against this section, but I wanted to find out just who is going to determine whether CHAIRMAN: Is there a second to the motion? the organization is trying to overthrow the government or DELEGATE: I’ll second that motion. is subversive in any way. Just who are going to be the judges of that? CHAIRMAN: It has been moved and seconded that the words, “or any public employment,” be deleted from the CHAIRMAN: Delegate Anthony, could you answer the last line of Section 1. question? ANTHONY: I just wanted to raise the issue before the ANTHONY: In the first instance that would be determined body. It has been pointed out that the purpose is to prevent by the officer who is appointing the particular person. Ulti all persons belonging to a subversive organization from re mately however, it would be determined by the ultimate, ceiving any employment whatsoever under the State. I the proper court in which that question - - that would be a think under those circumstances I would withdraw my motion. judicial question; but, of course, in the first instance, if there was a known communist, the governor couldn’t CHAIRMAN: Motion has been withdrawn. Any more appoint any person to any such office. It would be a pro discussion? hibition against the governor in the first instance, and HEEN: It seems to me that the worth “of trust or profit” ultimately upon the courts. should be deleted. It might be an unpaid office, like the police commissioner, unpaid office, although it may be an TAVARES: May I supplement what has been said. There office of trust, and I don’t think we should have any limita are two kinds of offices, elective and appointive. Insofar tion there at all. If it’s a public office, it’s a public office, as the qualifications and so forth of elective officers are and no communist should hold any public office or any em left as they are under this Constitution to a particular ployment of any kind. legislative body, that body would make the determination, as I see it. Insofar, however, as they are left to an ap CHAIRMAN: Delegate Shimamura, what is the committee’s pointive authority, he could decline to appoint a person on wish? that ground or perhaps under authority of law could remove a person on that ground. If there is not due process of law SHIMAMURA: I’m sorry, Mr. Chairman, but I didn’t get the last few words of the senator. involved, I presume then they would go to the proper courts for that determination. However, I don’t think that would CHAIRMAN: Delegate Heen suggested that the words “of prevent our legislature from setting up loyalty boards as trust or profit” be deleted because the oath should apply to the United States government has and provide for a method those in government work who do not receive pay as well as of removal in that way without resort to the courts. Except, those who do. of course, that ultimately where due process is denied under SHIMAMURA: Well, as a matter of policy or principle I any procedure, and some other constitutional right is in have no objection. We are just trying to follow the exact fringed, of course, the courts are always the last resort. language of H. R. 49 which says “public office of trust or Except, of course, in election cases, where I think - - I profit under the State constitution.” That’s page 9, Commit mean election of legislators, where they are their own tee Print C, Section 2. judges of their own qualifications, where the courts would not interfere with a finding. HEEN: You will recall the case of Judith Coplin. I don’t think she held any office at all; I think she was only there CHAIRMAN: Is there any more discussion on the ques as an employee in the State Department, and she was con tion raised? victed of some offense, I think in connection with taking ROBERTS: I have a question to ask the chairman of the some secret documents out of the office in which she was committee. In the last line of that section, the words “or employed. So I move that the words “of trust or profit” any public employment,” those were not words which were appearing in the fifth line of this section be deleted. inH.R. 49, were they? SHIMAMURA: I second the motion. 801 JULY 11, 1950 • Morning Session CHAIRMAN: It has been moved and seconded that the by the lady delegate from Molokal—that the words deleted words “of trust or profit” in the fifth line be deleted. Is would make it more expansive, I would withdraw my objec there any discussion of the motion? tion and as a member of the committee urge the chairman to accept the amendment. A. TRASK: I’m opposed to that deletion. On Section 9, the Congressional act, H. R. 49, specifically uses those H. RICE: As the opponents of statehood are pointing out words and I think we should go along with the Congressional that we are communists here in Hawaii, I think the strength amendment, because it would be more specific and it wouldn’t ening of this is - - this is stronger with that amendment cast any doubt. I don’t know whether or not the Coplin case suggested by Delegate Heen, and therefore I’ll support the is altogether In point when we don’t know the precise language amendment. of the indictment under which and the law under which she FUKUSHIMA: If the intent is to make it elastic as possible, was charged. I think it’s altogether sale; it certainly is would not the words “under this Constitution,” should not specific; it would take in some person in the commission they be deleted and in place thereof insert the word “in this where there is no pay, but it would be a trust as against State”? I’d like to ask the question of the chairman of the another situation where there is money. The question of committee. office, as distinguished from employment, would be a ques tion of either pay or no pay, and I think these terms are all- CHAIRMAN: Delegate Shimamura, could you attempt an inclusive, and it leaves no doubt, and I think we should con answer? form at any rate with the Congressional amendment. SHIMAMURA: May I have that question repeated again, ASHFORD: I’m wholeheartedly in support of the amend please? I’m sorry. ment offered by Delegate Heen. I think the language cannot FUKUSHIMA: If the intent is to make this provision as be made too broad. No one who is seeking to overthrow the elastic as possible, would not the words “in this State” be government should hold any office or employment of any more appropriate than the words “under this Constitution”? sort whatever, of the public. KAUHANE: I’d like to second the motion made by the SHIMAMURA: The language of H. R. 49 is “under this speaker before the last delegate, if the motion is in order. Constitution.” CHAIRMAN: That has been moved and seconded, I be FUKUSHIMA: We may have in the future a new local lieve, by Delegate Heen who has moved, and seconded by government, maybe the County of Lanai, and if you have James Trask [sic]. elective or appointive officers there, perhaps those officers will not be covered because they are not part of this Consti TAVARES: May the records show that - - I think the tution. They’ll be a legislative organ. records should show here that we are adopting this because, by taking those words out, we are broadening the class that BRYAN: I’d like to ask that we dispose of the other can’t hold office, and not restricting it; so that we are not amendments before we come down to that one, if that’s all only including offices of trust or profit, but any other right. offices. Therefore, there should be no objection to this amendment. We are complying with what Congress wants HEEN: I think the point raised by Delegate Fukushima is and more. worthy of some thought. Reading the language as it now ap KAUHANE: I believe in the statement made by the first pears, “under this Constitution,” it seems at first hand it speaker before the last two was to the effect that he is against means offices created by this Constitution, or employment the amendment that has been offered, and I believe that was created under this Constitution. I amend further by deleting a point that he raised in objection to the amendment that has the words “under this Constitution” appearing at the end been offered. I’d like to second the motion to object to the of that section and substituting for those words, the words amendment that has been offered. We have taken a position “of or under the State.” here, and I think we might as well take a definite stand, as ANTHONY: I would suggest “under the State or any to our intent and purposes. Much has been said about follow political subdivision thereof.” And by the elimination of ing H. R. 49 as much as possible so that we will not prevent the words “trust and profit,” I might point out to Delegate the passage of H. R. 49 in the Congress, and it will only Trask, that is an all-inclusive provision. In other words, leave a question of doubt in their minds as to our sincerity no person, whether it’s office of trust or profit or otherwise, in adopting this Section 1 of Committee Proposal No. 24. could hold any office under the State or any political sub Rather than see any hitch in preventing H. R. 49 to pass division thereof. because of our undetermined stand on the question, I think the motion for the deletion, or objection to the amendment ASHFORD: I am in accord with the suggestion to strike that has been offered is proper, and I think the second to the words “under this Constitution,” but I don’t see the that objection is proper, too. So I’d like to move the previous necessity of adding “under or by authority of the State” or question opposing the amendment. whatever words were used by Judge Heen. When you say CHAIRMAN: The Chair - - Just a second, I want to clear “public office,” it means public office in Hawaii, and under this. I direct this question to the last speaker. Is it your the aegis of the State. understanding that Delegate Arthur Trask made a motion to CHAIRMAN: What is the - - Delegate Heen. delete? A. TRASK: If it is the sense of the Convention that the HEEN: I withdraw my motion to amend in that connec words “any public office” are more elastic than the additional tion and make this amendment. Place a period alter the words “trust or profit,” I would withdraw my objection to word “employment” in the last line of this section, and de it. As far as I see the question,” public office” refers to lete the words “under this Constitution.” offices which are paid for, offices which are those of trust. CHAIRMAN: Delegate Heen, you were the movan1~ of the I don’t know of any other offices besides those which are motion to delete the words “of trust or profit.” This last paid for and those that are not. So, my objection at the motion you make to amend, do you wish to incorporate in outset to the deletion of “trust or profit” is that it is more the original motion, so we’ll get this together? inclusive and broad. But if there is any thinking, as Dele gate Heen said, that any public office—and as supported HEEN: Yes, Mr. Chairman, make it a package deal. 802 ORDINANCES AND CONTINUITY OF LAW CHAIRMAN: Is there any more discussion on the amend be stricken, “worship “ inserted; “that” be stricken in two ment? places; and that “perfect” be capitalized. DELEGATE: Question. TAVARES: May we have that read as proposed by Dele CHAIRMAN: All those in favor of the amendment olease gate Shimamura, so that we can - - reread slowly so we say “aye.” Opposed, “no.” Motion is carried. Is there can make the change& in the right places. any other amendment to be made to Section 1? If not - - CHAIRMAN: Delegate Shimamura, could you please read. A. TRASK: I move for the adoption of Section 1 as it slowly. amended. SHIMAMURA: The first “that” to be deleted; “perfect” DOWSON: Second the motion. to be capitalized; “toleration” to be deleted and “freedom” to be inserted in its stead; “sentiment” on the first line to CHAIRMAN: It has been moved and seconded that Section be deleted, the word “worship” to be inserted; on the second 1 be adopted as amended. Is there any discussion? All line, the word “that” following “and” to be deleted. those in favor of the motion please say “aye.” Opposed, “no.” Carried. Section is adopted. HOLROYDE: I’d like to ask the chairman another ques WOOLAWAY: I move for the adoption of Section 2. tion, along the same line as Delegate Fukushima. Admittedly the H. R. 49 says specifically that there should be a clause A. TRASK: Second that motion. in similar to this one, but if that is covered elsewhere in CHAIRMAN: It has been moved and seconded that Section 2 our Constitution, is ft necessary to repeat It again? be adopted. ANTHONY: I don’t think that we ought to adopt this sec HEEN: I move for the deletion of the words “or her mode tion in this schedule at all. We have got a section in the of” in the third line of that section. Bill of Rights, as pointed out by Delegate Fukushima, that complies expressly wkh the - - compares identically with CHAIRMAN: Could you read your amendment again, the section of the Federal Constitution. The only purpose please? of this thing was to require an ordinance. Now, why do we HEEN: In the third line of that section, delete the words need another section in the ordinances when we already “or her mode of” because “his” refers to both sexes, and have it covered in the Bill of Rights? I therefore move that in another provision that has been agreed to. this section be deleted. A. TRASK: Second that motion. HOLROYDE: I second the motion. CHAIRMAN: It has been moved and seconded to delete CHAIRMAN: It has been moved and seconded to delete the words “or her mode of” in the third line of Section 2. Section 2. Is there any more discussion? Ready for the Is there anybody who wishes to speak on this question? question? WIRTZ: I don’t know if I understood the amendment. A. TRASK: I think it should be deleted also, but I think the report should express the statement of the chairman Do you mean to strike the word “mode,” too? Then it would that this section, although deleted, was done for the reason read “of his of religious worship.” that there is such a provision in the Bill of Rights, so.that CHAIRMAN: Delegate Heen, could you please clear the the congressmen will - - or Congress, which is going to question. approve this thing, under the present state of H. R. 49, will not feel a little too edgy about it. HEEN: By deleting those four words. WIRTZ: Oh, all four. SHIMAMURA: I know that there is a general clause In the BU1 of Rights section on freedom of religion; but I’m HEEN: All four, yes. How many did you have, three? wondering if the second clause is in the BU1 of Rights section also, namely that “No inhabitant of this state shall ever FUKUSHIMA: I’d like to ask the chairman of the commit be molested in person or property on account of his mode tee what the purpose of this section is. We have a Bill of of religious worship Rights which prohibits any legislature to pass any act cur tailing !the right of religious freedom. Now, this is merely ANTHONY: The Section 8 of the Bill of Rights is all- an ordinance. What is the purpose of this section? inclusive. It relates to aliens; it relates to citizens. We have an equal protection of the laws clauses, and I don’t SHIMAMURA: That’s a good question. However, this is made mandatory under H. R. 49 and many of the western think there is any, occasion for putting this in the Constitu states which received statehood under a similar enabling tion~ Certainly the framers of H. R. 49 didn’t expect us to act have provisions in the Bill of Rights section ensuring do something more than was incorporated in the Bill of religious freedom, but also at the same time have a provi Rights of the United States Federal Constitution. sion such as this which their enabling act, as well as ours, FONG: As I understand, Section 1, Section 2 and certain makes mandatory. They have included both sections. of the other sections in this Committee Proposal No. 24, more or less reiterate what is contained in H. R. 49. Now, J. TRASK: I notice in H. R. 49—there is some talk here about being consistent with H. R. 49. I noticed the words we have previously in the - - as far as the Hawaiian Homes Commission Act, incorporated by reference, did we not? “toleration” and “sentiment” were stricken out, and k’s not in our particular proposal. Now, is it possible here to incorporate it by reference rather than to repeat the same things that are in H. R. 49 SHIMAMURA: AIter this first amendment of Delegate and repeated in our Constitution? I was wondering whether Heen was voted upon, I was going to amend, and I have it that was discussed in the! commktee. ready. CHAIRMAN Delegate Shimamura, did the committee CHAIRMAN: All right, just a second. I didn’t get the give any thought to the question raised by Delegate Fong? closing remarks of Delegate Shimamura. SHIMAMURA: If I understand the last speaker’s question, SHIMAMURA: I have amendments to propose, that he asked whether or not it will be wise to incorporate by “toleration” be stricken, “freedom” inserted; “sentiment” reference. 803 JULY 11, 1950 • Morning Session FONG: Yes, due to the fact that we have already done it CHAIRMAN: Is there any more discussion on the motion? as far as the Hawaiian Homes Commission Act is concerned, Ready for the question? All those in favor of the motion to whether we couldn’t in this instance incorporate by reference delete Section 3 please say “aye.” Opposed, “no.” Motion to the various provisions. is carried. Section 3 is deleted. SHIMAMUHA: You mean refer back to H. H. 49? SHIMAMURA: May I go to Section 4 now? FONG: Yes0 CHAIRMAN: Yes. SHIMAMURA: I move for the adoption of Section 4. SHIMAMURA: Well, that may be done, but I personally, in my humble opinion, do not think it’s good draftsmanship DELEGATE: Second the motion. to refer to a document which may not come into existence. AKAU: In Section 4, when we mention the words, “debts It’s all right if H. R. 49 has been passed, and that’s good and liabilities,” shouldn’t we also mention “obligations”? draftsmanship to incorporate in an existing document or an Or would obligations include all those? It seems to me that existing law, but where it hasn’t passed yet, I personally obligations is something separate and apart from debts and believe it’s not very good policy or draftsmanship. liabilities. I don’t know. I just raise the question. TAVARES: I think we can safely delete this section, CHAIRMAN: Will Delegate Shimamura please attempt provided we put in our report eicplaining the deletion that an answer? we consider it fully covered in every respect by the Bill of Hights. I wouldn’t tie it down to any specific provision SHIMAMURA: In my opinion, obligations would be in because there are several provisions in the Bill of Rights cluded in debts and liabilities. This is the exact language that touch on this, and we should state that the sum total of H.R. 49. Before the question is put, may I move to of the protection granted by the Bill of Rights covers every amend by striking out the word “that” and capitalize “the” thing that this section would cover, and then I think we can in the first line. explain to Congress and have the reasons why we did it so CHAIRMAN: Is there a second to the amendment? clear that I don’t think they will object to it. TAVARES: I second it. CHAIRMAN: Are you ready for the question? Motion is to delete Section 2. All those in favor of the motion please HEEN: You might put that question as to the amendment signify by saying “aye.” Opposed, “no.” It’s carried. just offered by Delegate Shimamura, to delete the word Section 2 is deleted. “that. ANTHONY: Style Committee can do that. We don’t have H. RICE: Same motion, that Section 3 be deleted. to waste our time on those things. ANTHONY: I second that motion; that’s expressly HEEN: Well, would it make less work for the Style covered in our own Bill of Rights. Committee if you do it right here. CHAIRMAN: Does the chairman - - CHAIRMAN: Delegate Heen, is it your request that we SHIMAMURA: No objection. put the question first and then proceed later? All those in favor of the motion to amend by crossing out the word “that” CHAIRMAN: It has been moved and seconded that Section and capitalizing “T” of the word “the,” please say “aye.” 3 be deleted. Is there any discussion? Opposed, “no.” The motion is carried. Section 4 is FUKUSHIMA: To make it conform to order, I move at amended. this time the adoption of Section 3. HEEN: I’d like to ask the chairman of this standing BRYAN: I second the motion. committee as to whether or not the matter of the debts and liabilities of the political subdivisions have been KELLERMAN: To supplement Mr. Anthony’s statement considered. for the purpose of the records, Section 3 is covered in the BRYAN: I’d like to speak to that point. Bill of Rights and in the article on education. CHAIRMAN: Delegate Bryan is going to speak to the CHAIRMAN: The Chair would like to clear up a little ques point. tion. The Chair is under the impression that a motion was made to adopt the entire Committee Proposal No. 24. If BRYAN: I’d like to ask the chairman of the committee. that is the case, there is no necessity for adopting Section 3 We haven’t passed all the sections of Proposal No. 23, but first and then moving for a deletion. Such being the case, I think much of the subject covered by this Section 4, the question on the floor before this committee right now is Proposal No. 24, is covered by Section 4 and Section 5 the motion to delete Section 3. of Proposal No. 23. It would also cover the point on poli tical subdivisions raised by Delegate Heen. TAVARES: Again I think it should be done with the CHAIRMAN: Delegate Shimamura, what is your answer? understanding that the committee report will state the reasons given by Delegate Kellerman for striking this. SHIMAMURA: These are the debts and liabilities of the Territory, and the latter section was - - the last clause SHIMAMURA: What I’m saying may not be apposite to was inserted by the committee of the Senate. It was not in this particular section, but in the Wyoming Constitution, the original H. R. 49, but we’ve included it here to comply from which state comes Senator Mahoney, the chairman of with H. H. 49, and I don’t think any harm is done by includ the Committee of the Senate on Interior and Insular Affairs, ing it here. One of the sections referred to by Delegate Section 18 of that Constitution, under the Bill of Rights Bryan does not cover this particular situation. section, provides for religious liberty. “The free exercise and enjoyment of religious profession” and so forth. Then HEEN: I think the first clause of Section 4 is in order; under the schedule, under ordinances, Section 2, “Perfect and the comma after the word “Hawaii” in the second line, toleration of religious sentiments shall be secured and no that should be deleted and a period substituted for the comma. inhabitant of this State shall ever be molested in person or Then delete the rest of the words in that sentence following property on account of his or her mode of religious worship.” that period. In another article of this same standing com That same statement would apply to the section on education. mittee, all existing claims, demands are supposed to - - 804 ORDINANCES AND CONTINUITY OF LAW and rights, titles and so on, causes of action, are supposed HOLROYDE: In doing so I suggest they refer to the to “continue unaffected notwithstanding the taking effect of Committee on Taxation, Section 9, and give that as their this Constitution... and may be maintained, enforced or reason for deleting. prosecuted. . . before the appropriate or corresponding tri bunals or agencies of or under the State or of the United TAVARE5: That is correct. States, in the name of the State, political subdivision, CHAIRMAN: Is there any more discussion? person or other party entitled to do so, in all respects...” CROSSLEY: I don’t know that that is the correct section CHAIRMAN: That is merely a suggestion, Delegate Heen? on finance and taxation as it has come through Style. Is Is that a motion? Could you please use the mike, Delegate that - - Been. HOLROYDE: It may be changed. BEEN: I now move, that the comma appearing after the CROSSLEY: Yes. word “Hawaii” in the second line be deleted, and a period be substituted for that comma, and delete all the words HOLROYDE: That’s correct. following that period. CROS5LEY: So I think it would be better not to refer to CHAIRMAN: Do I hear a second to the motion? a section, simply to taxation and finance. HAYES: Second it. ROBERTS: That’s correct, Mr. Chairman. That’s CHAIRMAN: It has been moved and seconded to amend Section 2 now in the article. as recommended by Delegate Been. CHAIRMAN: All those in - - Are you ready for the ques TAVARES: Everything that Delegate Heen says is correct, tion? All those in favor of the motion to delete Section 5 but we don’t even need the first part of that if he’s going to please say “aye.” Opposed, “no.” The motion is carried. be consistent. However, this happens to be a provision that Section 5 is deleted. was stuck in by the Senate. It’s surplusage, it is covered SHIMAMURA: May I now go to Section 6, and move to by another section, but they particularly stuck in by special delete that section inasmuch as it’s covered by Committee amendment in the Senate this provision about collecting Proposal No. 27 debts. I think it’s silly to assume that we wouldn’t collect HOLROYDE: Second the motion. our debts anyhow, owed to us, but since they have put it in particularly—as I understand it at the behest, I believe, CHAIRMAN: It has been moved and seconded Section 6 of the Interior Department—why not leave it there and have be deleted. Are you ready for the question? All those in the report show that it is surplusage but we put it in anyhow favor of the motion to delete Section 6 please say “aye.” because of this recent insertion by way of amendment in the Opposed, “no.” Motion carried. Section 6 is deleted. H. R. 49. It does no harm. The last clause, as well as the SHIMAMURA: May I now move to delete Section 7? first. The first clause will reassure the bondholders. We are reinforcing another section in another article which HOLROYDE: Second the motion. does cover it by general terms by this special provision, and SHIMAMURA: The reason for that is that the entire I see no harm in it, particularly when it involves our bonds. provision has been deleted from H. H. 49. CHAIRMAN: Any discussion on the amendment of Dele CHAIRMAN: Is there any discussion? All those in gate Been? The amendment will insert a period after the favor of the motion to delete Section 7 please say “aye.” word “Hawaii” in the second line and cross out all the words Opposed, “no.” Motion is carried. Section 7 is deleted. that follow in the section. All those in favor of the motion to amend please say “aye.” Opposed, “no.” The noes have BRYAN: I move to delete Section 8 on principle. it; the motion fails. CHAIRMAN: What’s that motion? SHIMAMURA: May I now go to Section 5, and I move for BRYAN: I think my motion was clear. the deletion of Section 5. ANTHONY: That section serves no useful purpose. The BRYAN: I second the motion. document speaks for itself. If something is irrevocable - - J. TRASK: Point of order. SHIMAMURA: I rise to a point of order. CHAIRMAN: Just a second. CHAIRMAN: I’m not arguing about it. J. TRASK: Point of order. SHIMAMURA: I rise to a point of order. CHAIRMAN: Point of order is well taken. CHAIRMAN: It has been moved and seconded that Sec J. TRASK: I move that Section 4 be adopted as amended. tion 8 be deleted. WOOLAWAY: I’ll second the motion. SHIMAMURA: I agree to that deletion. J. TRASK: The first word - - CHAIRMAN: Is there any more discussion on that motion? CHAIRMAN: Section 4 was amended. WIRTZ: I don’t know, I’ve examined several constitutions and this is a compact with the United States. I think we ought J. TRASK: - - “that” was deleted. Wasn’t the first word, to study it a little bit more before we decide to delete it. It “that,” deleted, Mr. Chairman? appears in all the western states that I have examined, the CHAIRMAN: That’s right. All those in favor of Section constitutions of the recent states. 4 as amended please say “aye.” Opposed, “no.” Carried. ASHFORD: The reason it appears in the western states Section 4 as amended is adopted. is that the lands were given to the states by the United States. Section 5 is in order. These are our lands. SHIMAMURA: May I now move to delete Section 5. BRYAN: I’d like to say further that this refers to things CROSSLEY: Second that motion. that we have deleted, and if we want it put in here that our Bill of Rights is irrevocable without permission of the United CHAIRMAN: It has been moved and seconded to delete States that’s one thing, but we’ve deleted the things it refers Section 5. Any discussion? to. 805 JULY 11, 1950 • Morning Session ANTHONY: I think Delegate Wirtz has specific reference that call for the election of state officers, and the convening to the Hawaiian Homes Commission Act. Now, as to that of the first general session of the state legislature within section of the Constitution, there is a compact, and it’s a very short period of time after Congress accepts the State irrevocable without the consent of the United States, so that Constitution of Hawaii. If it is just a short interim, at most renders this particular section unnecessary here. I believe it’s about six months, I see no necessity and urgency for us to grant that authority to Territorial officers, to make ASHFORD: I have a difference of legal opinion with my that selection of 180, 000 acres all within a period of six brother in law. I think it’s absolutely invalid. months. I do not believe that the Congress of the United CHAIRMAN: The motion is to - - the question is to delete States or the duly constituted authority of the federal govern Section 8. Ready for the question? All those in favor of the ment will say to the Territory of Hawaii, you must make motion to delete Section 8 please say “aye.” Opposed, “no.” this choice today or tomorrow. It will give us ample and Carried. Section 8 is deleted. sufficient time to make that choice, but I cannot conceive Section 9 is before the body. of them saying that you must choose 180, 000 acres tomorrow. They might ask us, do you want 10,000 acres of these lands, SHIMAMUHA: Since no one wishes to rise for the adoption or 15, 000 or 25, 000, but they won’t just say to us 180, 000 of Section 9 that we renumbered 5, I move for its adoption. at one stroke of the pen. That is why I believe that the TAVARES: I’ll second the motion. choice of the 180, 000 acres must be made by the representa MIZUHA: I believe the committee report and proposal is tives selected by our State legislature and not by two - - any before all of the delegates. I did not concur with Section 9 two men as this Section 9 says. Any two of them can make because of the fact that it gives the governor, the land com the selection, which is an odd way of placing this power. missioner, and the president of the board of agriculture and BRYAN: I’d like to call the attention of Delegate Mizuha forestry too much power. At the time it was discussed in to the words “unless the legislature shall otherwise provide.” committee the suggestion was made that perhaps a portion if it is the feeling of the delegates present here that that of the 180, 000 acres could be selected by any two of those provision or the authority to set those lands or to designate Territorial officials mentioned in Section 9. To give them those lands must be granted prior to the meeting of the first the power to select 180, 000 acres with a single stroke of legislature, then I think that this provision or one similar the pen within the interim period is granting too much to it is necessary. if it is the feeling of the delegates that authority. I believe, although it may not come to pass, it that provision need not be made until the first legislature may, and that probability is such that we cannot take that meets, we could easily delete this and put the word “legisla chance. I believe when the selection of the 180, 000 acres ture” in there and amend it in that form. is made, it must be by a representative commission, agreed by the State legislature as to who those members ANTHONY: It doesn’t depend upon the feeling of the are, and a selection made on that basis before we can in delegates. The provision of the act of Congress gives us sure to the people of the Territory the best choice of 180, 000 five years within which to make this selection, alter acres. It is my suggestion that perhaps about 50, 000 of the admission. So why do we rush in and give this power to 180, 000 acres could be selected instead of all of the 180, 000. the governor and the board of agriculture. We’ve got five years. What’s the haste? The very purpose of the five year TAVARES: That word about deletion sounds very good, period was to give ample consideration of what lands we but it also is dangerous. Here’s the situation that can happen. wanted to select. if you have a governor of Hawaii—who is going to be appoint ed, remember, until we become a state, until we’re actually TAVARES: That statement illustrates the danger of admitted—and he doesn’t like special sessions as some speaking without adequate information. For the information governors don’t like, and he refuses to call a special session of the delegates, and the one who last spoke, on page 13 of of the legislature before we elect our people and go into the amended H. H. 49, I want to read the second sentence statehood, you are going to have a situation where, until the of sub-paragraph B about public lands. This is during the legislature acts, nobody is authorized to select any land. five year period. “Such land and public property shall con And remember, under the Organic Act as we are continuing tinue to be administered in accordance with the laws appli it, there is still some possibility that the President or the cable thereto immediately prior to the admission of said governor may set aside some lands to the use of the United State, until otherwise provided by Congress.” And one of States. If they are threatening to do that, and we don’t the sections of the Organic Act says that the President by select those lands right away, we may lose them. Now, if executive order may set aside any of this public land for I am wrong in my understanding of that, I’d like to be the use of the United States. Now, when your legislature corrected, but that’s my understanding. There is a slight meets, they have a little time to get organized—if they are possibility that the President might at the last minute, even split 50-50, they may take three weeks—and we are about alter we become a state, set aside some lands to the use to enter into a war maybe, and somebody will want 5,000 of the United States. If we could select those lands in time, acres of our land on Oahu for a training ground, and the we would take away his power to set them aside for the use President will be asked to do it, and unless we select it of the United States, and we’ll have nobody to do it. That’s quickly, there will be 5,000 acres taken as it was during all I want to say. the war. Now, that’s not a flight of my imagination. That’s actually what happened recently, and we’re having a heck of A. TRASK: What is before the committee, please? a time getting it back. CHAIRMAN: The motion to adopt Section 9. ANTHONY: Brother Tavares, read far enough. Page 15, A. TRASK: In other words, the motion of Mr. Delegate Committee Print C: “The State of Hawaii, upon its admis Mizuha has not been seconded? sion to the Union, shall be entitled to select, and the Secre tary of the Interior is authorized and directed to issue patents CHAIRMAN: Did you make a motion, Delegate Mizuha? to said State, for 180,000 acres of public lands. . .The selec MIZUHA: I just made a suggestion as to the reasons tion of such lands. . .shall be made and completed within five why I did not concur with Section 9 in its entirety. May I years from the admission of said State into the Union.” Now, reply to the delegate from the fourth district? It is my the whole purpose, the entire purpose of the debate that understanding from reading Committee Print C of H. R. 49 centered around the five year provision was that in all likeli that there are several mandatory provisions in H. R. 49 hood Congress wouldn’t take any of this land; it wanted to give 806 ORDINANCES AND CONTINUITY OF LAW us ample time within which to select our 180, 000 acres. ANTHONY: That has no relevance to the issue before So we are getting excited over nothing and trying to rush the house. The issue in question before the house is on the into something which there is no occasion for any rush. deletion of the section. HEEN: May I ask the speaker before the last a question? CHAIRMAN: The point is well taken. CHAIRMAN: Delegate Tavares, will you - - TAVARES: I beg to differ on that point of order. I am HEEN: Does not the Organic Act also provide that the giving reasons why this shouldn’t be deleted. It’s very governor may set aside public lands for the use of the relevant. Territory of Hawaii? CHAIRMAN: Yes, it may be, your statements are. TAVARES: That is correct, but remember that until C. RICE: I’d like to say that any two members of this the date when the United States grants us statehood and we Convention can select 180, 000 acres. There are so few actually become a state, the governor is going to be appoint good acres, it wouldn’t be any trouble. You can’t find ed by the President of the United States. It takes a little 180, 000 acres that are worth taking. I want to see this time, even for a governor elected by us to get to know the section left in because there won’t be any dispute about it. ropes and to get to act, and I can’t see the governor, when there is a war on, and the military asks the President to ASHFORD: Is it not possible that we might not be able set aside some land, even if he’s elected by the state, to select piecemeal? That is, one year say, well, we’ll absolutely with certainty saying, “Oh, I’m going to select take this 25, 000 acres and leave the rest to be selected that for some fictitious use of the Territory of Hawaii just later. And we’d be in a jam if we did that. to avoid the President setting it aside.” I can’t see that. CHAIRMAN: Is there any more discussion? Unless he’s got a bona fide use for the Territory to make of that particular land at that time, he’s going to look awful A. TRASK: I am against deletion of this section. I be ly unpatriotic to set it aside for the use of the Board of lieve that the people most competent to know and determine Water Supply, maybe, where it has no water, or for the use where the good lands are, are these officers we have at the of some other department that has no use for it, just to head of our government today. It seems they’re most - - keep the President from setting it aside for the use of the more qualified. I wonder whether or not those who are for military. It’s pure, what one of our attorney’s used to deletion are saying, as they are certainly saying in fact, call, “superfuge.” that there are other people more qualified and more to be trusted. It seems to me that the record and the evidence H. RICE: I agree; I think that this section should be shows in this argument that we should trust those who are deleted. There’s nothing like the school of hard knocks, empowered and those most qualified with the situation. and I remember when they selected the Hawaiian Homes Commission lands. A lot of those that were selected, no CHAIRMAN: Is there any more discussion on the ques body but a few residents on those particular islands knew tion to delete? You’ve heard reasons why it shouldn’t be those lands. They went over and just said, “Well, here’s and you’ve heard reasons why it should be. Any more discussion on this is welcome. All those in favor of the Kahikinui, 10, 000 acres, we’ll take that.” Why, they put Hawaiians on that land there to starve. That’s the way motion to delete Section 9 please say “aye.” Opposed. they wentaround, you know that. Why select these lands Noes have it. quickly? SHIMAMURA: I’m somewhat amazed that in all this discussion no one has moved to delete a certain portion of CHAIRMAN: Delegate Rice, is that a motion? this section. I refer to Section - - rather line 6 on page 4 H. RICE: I so move. Delete that section. of this section - - of this article rather, starting with the DELEGATE: Second that motion. words “and interests in property, not disclaimed [or en cumbered by the provisions of. ~“ I move the entire deletion CHAIRMAN: It has been moved and seconded to delete on that line and the next line - - on the next line, the Section 9. words down to “this Constitution.” And on the fifth line BRYAN: I’d like to speak against deletion. I think the the insertion of the word “in Hawaii “ period, after “public same purpose could be accomplished by amending the para property.” graph to empower the legislature, rather than to delete the DELEGATE: May that be. restated? paragraph entirely. I think that would be my second choice, rather than deletion. SHIMAMURA: First, on the fifth line, the insertion of TAVARES: I’m going to say one thing more and then the words “in Hawaii” period; deletion of the entire sixth quit, but I am greatly concerned about this. This section line and on the seventh line up to the words “this Constitu does permit the legislature, if it acts, in time, to take away tion. “ the power of selection from the governor or anybody else. TAVARES: I don’t seem to find that, those amendments. It only provides for the possibility that if the legislature hasn’t acted in time, and we have to act hastily, thatthe SHIMAMURA: Page 4. governor and these other designated officials may select. TAVARES: Page 4. What line? Now, Delegate Mizuha had a provision. If you don’t want the governor to select it all, cut it down to 100,000 acres or SHIMAMURA: Line 5. After the words “public property,” insert the words “in Hawaii” period. Delete all of line 6 50, 000 acres or something like that, so that he’ll have and the seventh line the words down to “Constitution.” enough leeway to save that much in case the legislature hasn’t quite acted in time. We had a provision like that TAVARES: What is the purpose of deleting the words worked out in the committee—I don’t know if I have it “claims in the lands and other public property”? here—but I think it could be taken care of by a proviso which can be changed by the Style Committee, because some people SHIMAMURA: Well., H. R. 49 as amended, Section 2, don’t like provisos reading something like this. At the end paragraph numbered 7, provides for certain disclaimers to of the section insert a semicolon instead of the period and be made by the State of Hawaii and I don’t think it’s advisable say, “Provided that no such selection shall cover more than for us in the light of that provision to speak of any disclaimer. say 25, 000 acres.” That would give enough leeway to take TAVARES: I agree, but the disclaimer comes after the care of any emergency. words “lands and other public property and interests in pro- 807 JULY 11, 1950 • Afternoon Session perty.” I don’t see any harm in leaving that in and just take the eleventh line be deleted. Is there any discussion on the out the words about disclaimer. I’m in hearty sympathy with proposed amendment? that. MIZUHA: May I address myself on the entire Section 9 SHIMAMURA: All right, “interest in property” might be and some of the procedures involved with reference to the left in, and the words subsequent to that, “not disclaimed or admission of Hawaii into the Union. Now, I believe there encumbered by the provision of this Constitution” to be is some misconception at the present time here as to the deleted; that’s all right. procedure involved and I think it is essential that the dele TAVARES: I’ll second that amendment. gates know about it, I know that many do not. Under the latest draft of Committee Print C — if anyone wants to rule CHAIRMAN: Where did the words “in Hawaii” go? me out of order at this time I’d be glad to accept that ruling, SHIMAMURA: Delete that. but I wish to make this point because it’s an important point with reference to this general Section 9. CHAIRMAN: Is there a period after the words “interest in property”? HEEN: I rise to a point of order. TAVARES: I don’t get that, “in Hawaii.” CHAIRMAN: The Chair didn’t get just exactly what Delegate Mizuha was speaking about. CHAIRMAN: That was his original motion to amend. HEEN: I understand it’s generally about this whole SHIMAMURA: I inserted that, but I’ve deleted it at this Section 9. time. CHAIRMAN: He wants to what? Delete? CHAIRMAN: The amendment is in this form. In line 6, change the comma after the word “property” to a period HEEN: Talk generally about Section 9 and I think with and delete the rest of the sentence. Those words will be a view of having it deleted altogether; so at the moment “not disclaimed or encumbered by the provisions of this I think he’s out of order. Constitution.” CHAIRMAN: That’s right. The Chair rules you’re out SHIMAMURA: I move we recess till 1:30. of order. Is there any discussion? All right, the Chair would entertain the motion to adopt the Section 9 as amended. CHAIRMAN: The Chair will declare a recess till 1:30. All those in favor of the motion - - ARASHIRO: Does this mean then this official can immedi Afternoon Session ately upon the assenting of statehood go ahead and submit their proposition immediately, even before the legislature CHAIRMAN: Delegate Shimamura, do you care to defend meets? your amendment? CHAIRMAN: Delegate Shimamura, could you answer the SHIMAMURA: I take it that’s Section 9, is that correct? question? CHAIRMAN: That’s right, Section 9. SHIMAMURA: What was that, Mr. Chairman? I didn’t quite hear him. SHIMAMURA: Proposal 24? CHAIRMAN: That’s right. CHAIRMAN: Delegate Arashiro, could you direct the question to - - SHIMAMURA: Th~ sixth line in the - - portions of the ARASHIRO: Immediately upon accepting by Congress and sixth and the seventh lines were deleted, were they not? the President of the United States to make Hawaii as a state, CHAIRMAN: That’s right. can this official as designated over here immediately go into the dealing of the land, to set aside the land for the Terri SHIMAMUHA: Isn’t that what was proposed to be deleted? tory - - for the State of Hawaii, even before the legislature CHAIRMAN: Yes. We haven’t voted on that yet. That meets? was only a motion by you. HEEN: May I answer that question. They cannot do so SHIMAMUHA: Yes. until after Hawaii is admitted into the Union. Then they can act in making a selection of the 180, 000 acres. CHAIRMAN: Is there any discussion on the amendment? Question. All those in favor of the motion to amend please ARASHIRO: Thank you. signify by saying “aye.” Opposed, “no.” Ayes have it. HEEN: I might state this, that as I understand H. R. 49, Motion is carried, motion to amend. Committee Print C, after the Constitution, ratified by the Is there any further amendment - - discussion on Section people of Hawaii, is approved by Congress, then the governor 9? If not— of the Territory of Hawaii, shall by. . . [part of speech not HEEN: I move that the words “or any two of them” appear recorded.]. . . things will happen before Hawaii becomes a ing in the second and third lines on page 4 be deleted. State. The result of that election, notice of the results Is given to the President, then the President by proclamation AKAU: Second it. admits Hawaii into the Union. It’s on the date of that pro CHAIRMAN: It has been moved and seconded that the clamation when Hawaii becomes a State. section be amended in the second line on page 4 by deleting CHAIRMAN: Are you satisfied, Delegate Arashiro? the words “or any two of them.” ARASHIRO: Then immediately upon the admission to SHIMAMURA: I take it that that amendment goes to the the Union, this representative of the board or commissioner fourth line from the bottom also? Same thing there. of public lands and commissioner of agriculture can immedi HEEN: Also included in that amendment, I move that the ately act upon this? same words “or any two of them” appearing in the eleventh HEEN: In H. R. 49, Committee Print C, on page 22, after line on page 4 be deleted. the election is held, the “governor of said Territory shall CHAIRMAN: It has been moved and seconded that those certify the result of said election, as canvassed and certified words, “or any two of them” appearing in the second and as herein provided, to the President of the United States, 808 ORDINANCES AND CONTINUITY OF LAW who thereupon shall immediately issue his proclamation territory, it could pass a law which would direct otherwise announcing the result of said election as ascertained, and, as to the method of selection and the people who could upon the issuance of said proclamation by the president of select. To make that clear, I think we can do that by a the United States, the proposed State of Hawaii shall be further amendment in the eleventh to the tweifth lines deemed admitted by Congress into the Union.” So the elec from the top of page 4 where it reads, “The legislature tion takes place before Hawaii becomes a state. shall otherwise provide,” or really, “until and unless the CHAIRMAN: Are you ready for the question on the motion? legislature shall otherwise provide.” I move to amend that Motion is to amend Section 9 by deleting in the second line by deleting the words “the legislature shall” and - - on page 4 the words “or any two of them” and also on line HEEN: Point of order. 11 same words. All those in favor of the motion please signify by saying “aye.” Opposed say “no.” Carried. CHAIRMAN: Just a second; let’s get this straight. Section 9 is amended. TAVARES: - - and have the last, the next two following J. TRASK: No further amendment. I move that Section words “otherwise provide” read “otherwise provided,” 9 be adopted as amended. and insert “by law” thereafter; so it will read, “until BRYAN: I’ll second that motion. and unless otherwise provided by law.” Then it will be clear; either the territorial legislature or the state legis CHAIRMAN: It has been moved and seconded that Section lature can change it. 9 be adopted as amended. HEEN: Point of order. There is an amendment pend HEEN: I rise to a point of information. I’d like to know ing? I believe - - if the clause in the last - - in the fourteenth and fifteenth line has been deleted, the clause reading “as and at the TAVARES: Well, I asked - - times directed by the Congress of the United States.” CHAIRMAN: We will first vote on the amendment of fered by Delegate Heen, and then go back to yours, Dele CHAIRMAN: No, those words haven’t been deleted. gate Tavares. HEEN: I move that those words be deleted. As I under stand H. R. 49, we don’t have to wait for any further action TAVARES: I thought perhaps the delegate would accept on the part of Congress. that as part of his amendment. I am agreeing with the rest of his amendment. AKAU: I second that. HEEN: I would accept it, but I don’t quite understand CHAIRMAN: Could you repeat your motion again, please? it at the moment. HEEN: My motion is to delete the words, “as and at the time directed by the Congress of the United States,” appear CHAIRMAN: If that is the case, let us first dispose of the amendment proposed by Delegate Heen. ing in the fourteenth and fifteenth lines, the last two lines of this section on page 4, and put a period after the word MIZUHA: I would like to speak in opposition to the “Hawaii” in the fourteenth line, put a period there instead amendment. At the previous time when I sought recognition of a comma. from the chairman, I was speaking on the general process CHAIRMAN: It has been moved and seconded to - - of admission to the Union which was covered - - which Section 9 relates to, and the delegate from the fourth dis J. TRASK: Mr. Chairman. trict ruled me out of order. But subsequently he rose and CHAIRMAN: You care to withdraw your motion? spoke on that same point that I was speaking, and I hope at this time that I shall have the opportunity to present J. TRASK: I’ll withdraw my motion to adopt Section 9 my views on the subject. as amended. BRYAN: I understand the second to that motion has been PORTEUS: I’d like to offer, as the Secretary, my withdrawn. I’ll second the motion made by Delegate Heen services to the delegate from Kauai in negotiating a treaty if necessary. with those of us in the rest of this row to give him equal rights with the rest of the attorneys. CHAIRMAN: It has been seconded by Delegate Akau. The motion before the floor is to amend Section 9 by deleting at MIZUHA: Delegate Tavares just raised a point about the end of the section on page 4 the words, “as and at the the governor of the Territory or the governor of the State times directed by the Congress of the United States,” and making this selection and so forth; but may I point out to inserting a period after the word “Hawaii.” the delegates present that my understanding of Committee ROBERTS: I have a question on this. As I understand it, Print C, H. R. 49, does not create the State of Hawaii until the selection of the lands doesn’t mean anything- until such such time as Congress first approves our Constitution as time as the Congress decides to give them to us. The section ratified by the people of Hawaii. After the Congress approves as it provides now with this deletion, it would merely go to our Constitution, under H. R. 49, we must hold a state elec the selection of the land. tion and when we elect our senators, our representatives, our governor and the officers of the State, then that governor, TAVARES: May I answer that question. H. R. 49 in all the governor of the Territory of Hawaii, must certify to the of its forms has - - latest forms has provided that we have President as to the results of that election. Upon that cer five years after the admission of the State within which to tification, then the President of the United States will issue select 180, 000 acres and present our claim for the rest of the proclamation admitting Hawaii into the Union as a state. the land to Congress. We have an absolute right to select Only until such time as wç are admitted into the Union as a 180, 000 acres at any time after we have become a state; state can this selection of those lands be made. and as to the rest of the land, we have a qualified right Now it is apparent at this time, and there is nothing in to appeal to Congress to give all the rest of it to us. the election - - in the ordinance submitted by the Committee I think there is no objection to that amendment, but I on Continuity calling for a mandatory, special session the believe that there is one other flaw which could be cured. day after Hawaii is admitted into the Union by presidential If a special session of the legislature is called before proclamation, and it is proper that it should be done at we become a state, that would mean the legislature of the that time. When the President issues that proclamation JULY 11, 1950 • Afternoon Session 809 admitting Hawaii into the Union, under constitutional author bottom, substitute for the words “the legislature shall ity, we must hold our first session of the State Legislature otherwise provide,” the words “otherwise provided by law.” of Hawaii. Then, the point that Delegate Tavares raised that if no provision is made, if we follow the provisions in CHAIRMAN: Do I hear a second to the motion? our legislative article, or whatever article in which is con APOLIONA: I second that motion. tained the provisions for the general sessions of the legis lature, we might wait a year or a year and a half before that TAVARES: It’s been called to my attention that a similar legislature meets. That is why the point I raised that if we amendment should be made on the first page, on page 3, in have that special session of the legislature convening in the third line from the bottom, and I also move to amend lolani Palace, or whatever place it must convene, the day the words, “the legislature shall otherwise provide” to after we are admitted into the Union, legislation can be read “otherwise provided by law.” Does the second accept passed to secure a special commission to select these lands, that? the 180, 000 acres. Certainly the gap that Delegate Tavares APOLIONA: I do. has in mind, which may be only one day or three days, to get a law passed by the State legislature is too short a time for TAVARES: Now, I’d like to explain. I think that, us to be fooling around in a Constitution with a section like leaving aside the question of the merits of the whole section - - article - - Section 9. We have heard this body remark HEEN: Point of information. What was that amendment about the simplicity of a constitution, and we want a good again on page 3? document here; but making a provision like this here is asinine because of the provisions in H. R. 49. We can take TAVARES: On page 3, in the third line from the bottom, care of it with a special ordinance that mandates the first delete the words “the legislature shall otherwise provide,” legislative session of the State legislature meeting the day and substitute theref or the words “otherwise provided by after the President issues the proclamation admitting Hawaii law.” And a similar amendment as I’ve already made on into the Union. the fifth and fourth lines from the bottom of page 4. ANTHONY: Mr. Chairman, could you enlighten me as to CHAIRMAN: Is there any discussion on the amendment? the status of Committee Print C that has just - - that is dated TAVARES: May I explain the reason for that? As this June 26. There has just been distributed and placed on the stands now without amendment, it might be contended that desk of the delegates, H. R. 49 which bears the date of June the word “legislature” there means the legislature under the 29. I wish that somebody would tell us if there’s any differ new State, and by saying “otherwise provided by law,” I am ence between that and Committee Print C. making it read so that if a legislature before we become a CHAIRMAN: Could Delegate King, President King? state passes a law saying that this group of three officers shall not have power to make this choice and selecting other KING: I received yesterday the copies of H. R. 49 as people to do it, or providing whatever the legislature wants filed in the Senate and on the Senate calendar, Calendar to do, it will then supersede this temporary provision. My No. 1931. I haven’t checked this H.R. 49 against Commit concern is that a special session might not be called before tee Print C. There might be some minor changes, but my we become a state and there might be a few days there where understanding was that Committee Print C was the form in something could be lost; and this amendment actually assists which the committee approved it, and when they filed it, it Delegate Mizuha’s contention rather than detracts from it, dropped the committee print and it comes out in the final I submit. form. This is the form in which it is pending on the Senate calendar. MIZUHA: There is one point that bothers me, and I’d like to ask the previous speaker a question. Wouldn’t it ANTHONY: One further question of the President then. be possible in this ordinance to have that special session In our discussions, I then assume we should be referring to called immediately after the President issues his proclama the printed copy now distributed and on the desks of the dele tion? gates. Is that correct? TAVARES: I don’t see how we can do that unless Congress KING: We should now refer to H. R. 49, Senate Calendar in H. R. 49 puts in an amendment mandating such a special No. 1931. session. At the present time we operate under the Hawaiian Organic Act, under which only the governor in his discre CHAIRMAN: That’s right. tion can call a special session. If we adopt this Constitution, TAVARES: I thiak that the argument of the speaker be it is still not effective until Congress - - under the act of fore - - the speaker from Kauai, is aimed at the adoption Congress we become a state. Therefore, until that time or non-adoption of the entire section. At the moment we our Constitution, as I see it, has no efficacy and during that are only adopting - - considering an amendment made by time a special session can’t be mandated on the governor. Delegate Heen, which I think is unobjectionable, namely deleting the words, “as and at the times directed by the MIZUHA: It is my contention, under H. R. 49, that we Congress of the United States.” That would be implied can have our Constitution approved by the Congress of the anyhow if Congress does direct any special time. Otherwise United States and we won’t be a state of the Union then. But why it would take care of itself without those words. In if H. R. 49 provides that after approval of the Constitution any event I don’t think there is any objection to deleting of the State of Hawaii, special elections must be held in the them. They are technical amendments, and after we take territory providing for the election of all the officers pro care of that, then I think - - and other amendments, then vided for in our State Constitution, and for two senators and I think the basic provision of whether we shall adopt or two representatives to the Congress of the United States, not adopt this section would still be in order. then the governor of the Territory of Hawaii must certify to the President as to the results of this election, and then CHAIRMAN: Are you ready for the question? On the he will issue the proclamation admitting Hawaii into the Union. amendment offered by Delegate Heen, all those in favor of The day he issues that proclamation admitting Hawaii into the the motion to amend please say “aye.” Opposed, “no.” Union, we will change over to a state status, and the governor Motion is carried. who was elected in the interim will assume the office of gover TAVARES: I now renew my motion. In the fifth line nor and all the other state officers will assume their from the bottom of that section and the fourth line from the offices. My contention then is that is the time that we should 810 ORDINANCES AND CONTINUITY OF LAW have our session of the legislature automatically being called ROBERTS: I am more and more convinced as we go by some ordinance provided for in our Constitution. into this article that it ought to be deleted. We don’t get ASHFORD: I am not in agreement with Delegate Tavares the 100, 000 acres - - 180, 000 acres until we become a that that can’t be done by this Constitution. I think we can State. When we become a State, we have our legislature. write into our temporary provisions that immediately upon After we - - they are properly elected, it seems to me that admission as a State, the legislature shall meet in special they have five years in which to do their job. We don’t have session. to make any provisions or. ordinances. I think the section as amended ought to be deleted. TAVARES: I agree entirely with that. The delegate mis understood what I said. I said that before that moment, we CHAIRMAN: Would you care to make a motion? cannot mandate the governor of the Territory appointed by ROBERTS: I will so move. the President to call a special session, and I think the dele ANTHONY: I second that motion. gate will agree with me. MIZUHA: I am in sympathy with Delegate - - HEEN: That provision by way of an amendment can be made to the article on election ordinance. There you - - I ANTHONY: Mr. Chairman, do I have the floor? have an amendment as to how long the members of the legis CHAIRMAN: Just a second till I get this motion cleared. lature shall serve alter their election, at the initial election. And Delegate Okino has one in reference to the term of the ANTHONY: There’s been a motion made, and I’d like to governor and lieutenant governor, alter their election at the second it. initial election. Right there, following those two sections, CHAIRMAN: The motion Is to reconsider - - or proposed sections, can be inserted another sectipn pro viding that the governor of the State shall immediately call ANTHONY: No, motion is to delete. the legislature, the State legislature into special session. CHAIRMAN: There was a motion previously to delete ARASHIRO: I cannot think of a word to carry out my Section 9. thinking, but I want to have something in this line - - in this ROBERTS: Mr. Chairman. thought, I mean. Where we put, it in a way that, when the ANTHONY: That was prior to the amendment. legislature has failed to provide, then we can authorize this representative to go ahead and deal with the land. But I CHAIRMAN: It was repeated. That’s right, that’s right. do not want to see these people act before the legislature ROBERTS: This is a motion to delete as amended. has the opportunity of acting on this matter. CHAIRMAN: There is a motion on the floor at this time to TAVARES: It seems I still haven’t made myself fully delete Section 9 as amended - - understood. Let me try again. This Constitution, in my humble opinion, will not take effect as a Constitution until MIZUHA: I rise to a point of information. the day when the President certifies that we are a State; CHAIRMAN: - - and that motion has been seconded. Dele he admits us to statehood. Well, now we all admit that in gate Mizuha. this Constitution we can mandate a special session after that. That’s clear. But what I’m thinking about is the ANTHONY: I thought I - - interim between now and the time we are actually admitted MIZUHA: Mr. Chairman. as a State, as to whether, if there is not a regular session ANTHONY: Mr. Chairman, didn’t I have the floor? I in the meantime, we may be able to persuade a governor moved to second It and I asked for the floor. appointed by the President to call a special session of the territorial legislature to pass some laws to take care of CHAIRMAN: Delegate Anthony. this situation. If he doesn’t call such a special session, ANTHONY: I think we are wasting an awful lot of time about I don’t think we can mandate him before the date we become this section, and it all arises over whether or not we’ve got to a State, unless Congress amends H. R. 49 to put that man select the 180, 000 acres within the next 15 minutes. Congress date in, in which case it would supersede our Organic Act has given us five years wIthin which to do that thing, so why and make it mandatory. Now we haven’t done that, and I should we fool around with the minutia of how it should be done don’t think at this late date we can ask the Congress to here. We’ve got five years to do it. Everybody knows upon make that drastic change. So there is just this Interim be admission of this State to the Union, the legislature is going tween now and the time when we are admitted as a State to be promptly called into session, and appropriate legisla when, if there is no regular session of the territorial legis tion wIll be enacted. So I therefore feel that Delegate Roberts’ lature, the governor may refuse to call a special session, motion should carry. and we can’t make him. CHAIRMAN: Is there any more discussion on the motion Now alter we become a State, if we put It in our Consti to delete? tution, it is true the governor then will have to call a special session If we have said he must, because at that TAVARES: I’m not going to say any more. I’ve warned date the Constitution will become effective and binding. this Convention, and if they want to vote that way, 0. K. I’m Now my amendment are these few words, which again is going to vote against it. only a technical amendment and doesn’t relate to the merits MIZUHA: I, as the delegate who did not concur with Sec of the whole section, will make sure that if a regular or a tion 9 in committee, I wish to point - - make my point clear special session of the territorial legislature happens to be that there must be something In the section on continuity of held before we become a State, that that legislature can laws to call for a special session the day or the day after the supersede this provision by making another provision. So President admits Hawaii Into the Union as a state. my amendment actually aids Delegate Mizuha and Delegate Arashiro in taking care of that interim situation. It gives SHIMAMURA: Will the gentleman yield for a moment? the territorial legislature power to make laws changing this, We have such an amendment ready. as well as the State legislature alter we become a State, CHAIRMAN: Are you ready for the question? because on the date we become a State, if our territorial The motion is to delete Section 9 as amended. All those legislature has passed such a law, it will be carried over in favor of the motion please say “aye.” Opposed, “no.” under ordinances as an existing law and be effective. Motion carries. Section 9 as amended Is to be deleted. 811 JULY 11, 1950 • Afternoon Session TAVARES: Point of order. There was a motion to re SHIMAMURA: - - relating to Committee Proposal No. 24, consider and not a motion to delete and it requires 32 votes. a new Section 6, but it might be called 10. It’s on the desks of all the delegates. This refers to taxes. This reads as CHAIRMAN: The Chair wishes to inform Delegate Tavares follows, if I may read it: that there was no motion to reconsider. The motion was to delete Section 9 as amended. No taxes shall be imposed by the State upon any lands or TAVARES: We voted on that once, and it was out of order, other property now owned or hereafter acquired by the and I make the point of order that It was wrong to put such a United States, except as the same shall become taxable motion without reconsideration. by reason of disposition thereof by the United States or by reason of the consent of the United States to such ANTHONY: Point of order. taxation. CHAIRMAN: Delegate Anthony, state your point of order. This tries to - - I move for the adoption of this amendment ANTHONY: We already straightened that out. first. CHAIRMAN: I can’t hear you. CHAIRMAN: Do I hear a second? ANTHONY; We already straightened the point of order J. TRASK: Second the motion. out before the vote was taken, namely that the present CHAIRMAN: It has been moved and seconded that the motion to delete was on a different section, the section as section just read by Delegate Shimamura, Section 10, be an amended. amendment to Committee Proposal No. 24. TAVARES: I appeal from the ruling of the Chair to the SHIMAMURA: The purpose of this amendment is, as the Convention. I think it’s wrong - - delegates see, to try and comply with a portion of paragraph CHAIRMAN: The Chair has ruled that the motion to 7, Section2ofH.R. 49. delete Section 9 as amended was in order. CHAIRMAN: Is there any more discussion on the pro TAVARES: I appeal from the ruling of the Chair to the posed amendment? Convention. TAVARES: All this does is to state what the law is any CHAIRMAN: All right. Those of the - - How shall I how. We can’t tax lands of the United States but we can tax state this? them after they dispose of them. It’s simply a statement SAKAKIHARA: I move for a recess. of what the law is and there’s no harm in it. We don’t go as far as the literal language of the H. R. 49 - - amended 49 DELEGATE: Second the motion. would do, and I think it’s as far as Congress has a right to CHAIRMAN: All those in favor of a recess say “aye.” ask us to go, and I think they’ll recognize that. Opposed. Motion is defeated. RICHARDS: I raise the question, I understand that there SAKAKIHARA: Then I demand roll call. has been considerable work done in Congress by certain of the states that have large federal installations, trying to CHAIRMAN: The Chair declares a short recess for get Congress to permit the taxation of those. Will this pre five minutes. clude the State being able to tax, if this is in the Constitution? (RECESS) H. RICE: The Delegate Monte Richards is dead right, and it would make a big difference to particularly the City and County of Honolulu. If any provision like this went TAVARES: I withdraw my appeal from the ruling of the through, It would mean a difference of $8,000,000 a year, I floor on the point of order. understand. CHAIRMAN: That being the case, Section 9 as amended is deleted. TAVARES: If the delegates would only read the amend ment, they would see the answer to their question. The J. TRASK: I wonder if it would be in order at this time, amendment says, “No taxes shall be imposed by the State to renumber the sections, If we are through with the entire upon any lands or other property now owned or hereafter proposal. So I move at this time, if there’s no other amend acquired by the United States, except as the same shall be ment - - come taxable by reason of disposition thereof by the United CHAIRMAN: I see one on my desk here. Delegate States or by reason of the consent of the United States to Shimamura, do you have an amendment to propose to Commit such taxation.” That answers itself. tee Proposal No. 24? HEEN: Instead of the words “now owned or hereafter SHIMAMURA: Yes, Mr. Chairman. I should like to have acquired by the United States,” I would suggest that you a new Section 6. use the word “while.” “While,” w-h-i-l-e; substitute the word “while” for the word “now” in the second line and CHAIRMAN: Could that be numbered 10? delete the words “or hereafter acquired”; so that clause SHIMAMURA: Pardon me? will read: “No taxes shall be imposed by the State upon lands or other property while owned by the United States.” CHAIRMAN: Could that be numbered 10? CHAIRMAN: Is that amendment acceptable to Delegate SHIMAMURA: Yes, as originally proposed It’s No. 10, Shimamura? but in the light of the deletion of several paragraphs this will be a new 6. The 9 deleted would be - - oh, the 9 having been SHIMAMURA: The committee attempted to comply as deleted, this will be 5. A new Section 5, but I have circulated far as possible with H.R. 49. I don’t have any particular it prior to the deletion as number 6. objection to that; the sense of it becomes the same. CHAIRMAN: Let’s call it number 10 because number 5 TAVARES: There is a grave defect. Lands while owned was another section. by the United States can be leased and they are still owned by the United States and then we won’t tax them. The other SHIMAMURA: I’ve had this circulated as - - amendment took care of it better; this way exempts totally CHAIRMAN: Number 6. lands while owned by the United States. 812 ORDINANCES AND CONTINUITY OF LAW RICHARDS: There is another point involved - - CHAIRMAN: Delegate Shimamura, have you checked on CHAIRMAN: Is that on the same point? Delegate the question raised by Delegate Ashford? Richards, is that on the same point? SHIMAMURA: That may be correct, I may be under mis RICHARDS: It’s on the same point - - apprehension, but I thought Hawaii National Park was not specially covered by Part II. I may be mistaken. CHAIRMAN: Raised by Delegate Heen? CHAIRMAN: What is your desire, Delegate Shimamura? RICHARDS: Yes, the fact is the United States might acquire the property in the middle of the year, and accord SHIMAMURA: Might we do this to facilkate matters. If ing to our laws here and the way the tax office operates, the Convention is willing - - If the Committee of the Whole taxes are still payable up to the end of that calendar year. is willing, why don’t we adopt this and if there is a dupli CHAIRMAN: Delegate Heen, do you still insist on making cation, then strike it out in Style. that your amendment? ROBERTS: The article which we adopted on agriculture HEEN: I think my suggestion or motion is not in order. and conservation provides in Part II that, “The United States In order to take care of leases that might be made of these shall be vested with or retain title to or interest in or shall lands, I withdraw my motion. hold the property in the Territory of Hawaii set aside for the use of the United States.” I think that is covered. CHAIRMAN: Delegate Anthony, did you - - are there any more amendments? Any discussion? Are you ready for the TAVARES: I respectfully differ with the last speaker. question? All those in favor of the motion to amend Com This relates to jurisdiction more or less for court purposes mittee Proposal No. 24 by adding a new Section 10, as read and things like that, and I don’t think it’s covered by that by Delegate Shimamura, please signify by saying “aye.” language; jurisdiction for service of process and passage of Opposed, “no.” Motion is carried. We’ll add a new Section laws regulating, the municipal legislation of the area, and 10 to Committee Proposal No. 24. so forth. I believe that k’s a little different. H. H. 49 has If there is no other amendment to Committee Proposal a special provision about that for national park lands, and No. 24 - - I don’t think it’s covered by the merely ceding tkle to the J. TRASK: I move for the adoption of Committee United States. We can cede title and still reserve jurisdic Proposal No. 24 as amended. tion to serve process. DELEGATE: I second that. ROBERTS: The full article, Section 1 says: “...set aside for the use of the United States and remaining so set CHAIRMAN: It has been moved and seconded that Com aside immediately prior to the admission of this State, in mittee Proposal No. 24 be adopted as amended. all respects as provided in the act or resolution admitting SHIMAMURA: Prior to the time that the Chair put that this State to the Union.” It’s already covered in that section. question, I’d like to serve notice that I have two other amendments to those sections, and at this time, if the TAVARES: It’s a question of title there, but we are movant will withdraw his motion, I’d like to move for an talking about jurisdiction of courts and so forth. They are other amendment. two entirely different things and merely transferring tkle to the United States does not do that. I might point out some J. TRASK: I withdraw my motion. history here, and that is, the terrkory today has a right to CHAIRMAN: The motion to adopt as amended is with- serve process in Pearl Harbor akhough the Unked States drawn. owns that land. There are certain lands owned by the Unked States where we actually have jurisdiction to serve process SHIMAMURA: At this time I’d like to propose an amend even though the Unked States owns that land, and only to ment of a new section to Proposal No. 24, which would in the extent that Congress takes away that jurisdiction should the order of numbering at present would be number 11, but we agree to k. If we don’t agree to if, the laws will carry would be a new Section 7. over, and we will still have that jurisdiction which is very CHAIRMAN: Section 11 is the title given here. important, the jurisdiction to tax and the jurisdiction to serve process. SHIMAMURA: A copy of the amendment is on the desks SHIMAMURA: I think the last speaker is correct. I of all the delegates. It reads as follows, to identify it: think we should adopt this section. All provisions of the act or resolution admitting this State to the Union, or providing for such admission, CHAIRMAN: Are you ready for the question? All those in favor of amending Committee Proposal No. 24 by adding which reserve to the United States jurisdiction of Hawaii the new Section ii please signify by saying “aye.” Opposed, National Park, or the ownership or control of lands with “no.” The amendment carries. in Hawaii National Park, are consented to fully by the State and Its people. SHIMAMURA: At this time, I’d like to ask leave to add J. TRASK: I second the motion. another section, No. 12 I think in the present order. I have circulated it as new Section 8. I move for the adoption of CHAIRMAN: It has been moved and seconded that Com that new section. mittee Proposal No. 24 be amended by adding Section 11 to it. Is there any discussion? All those provisions of the act or resolution admitting this State to the Union, or providing for such admission, ASHFORD: I’m inclined to think that that is covered by which reserve to the Unked States judicial rights or a provision in the agriculture section, referring to all powers, are consented to fully by the State and ifs lands set aside for the use of the United States. people; and those provisions of said act or resolution CHAIRMAN: Delegate Richards, would you care to which preserve for the State judicial rights and powers answer the question? Could you use your mike, please. are hereby accepted and adopted, and such rights and powers are hereby assumed, to be exercised and dis RICHARDS: I believe that’s taken care of in both Part II charged pursuant to this Constkution and the laws of the and Part I of the agriculture, conservation and land. State. 813 JULY 11, 1950 • Afternoon Session DELEGATE: Second. CHAIRMAN: Is there any objection? CHAIRMAN: It has been moved and seconded that Com A. TRASK: Move for recess. mittee Proposal No. 24 be amended by adding a new Section 12. I believe copies of this amendment have been circulated. SAKAKIHARA: Second. Delegate Shimamura, would you care to discuss this amend CHAIRMAN: Chair declares a recess of five minutes. ment? SHIMAMURA: H. R. 49 reserves certain judicial powers (RECESS) and rights to the United States and this section consents to CHAIRMAN: Committee come to order. We are now that, to such reservation; and we also state that as to such considering Committee Proposal No. 25. rights to be exercised by the State, that is, judicial rights and powers to be exercised by the State, we accept them. SAKAKIHARA: What is the status of Section 1 of Commit tee Proposal No. 25 and the various amendments? ANTHONY: Point of information. What is this designed to accomplish, I’d like to know? CHAIRMAN: The amendments made by persons other CHAIRMAN: Delegate Shimamura. than Delegate Nielsen were being discussed and not yet voted on, and we agreed to hold off the amendment made SHIMAMURA: I didn’t hear that. by Delegate Nielsen until the other amendments are voted ANTHONY: You can’t take the jurisdiction away from on. the United States upon admission to the Union. I’d like to SAKAKIHARA: So the amendments proposed by Delegate know what this is designed to accomplish. Tavares and others have not been acted upon? SHIMAMURA: We’re trying to comply as far as possible CHAIRMAN: That is correct. with Section 2, paragraph numbered 7, which contains a disclaimer which we have rejected. We have as far as SHIMAMURA: Point of information. May I inquire if possible to comply with paragraph 7, insofar as it does not the words on line 4 at the end, and line 6, “election or,” prejudice the rights of the people of Hawaii. This reserva were those words deleted? tion of powers is contained in H. R. 49 and we’re just accept CHAIRMAN: Line 4. Are you talking about page 2? ing it. I don’t think - - perhaps it isn’t necessary but we want to show Congress that we’re trying to comply as far as possi SHIMAMURA: Page 1, section 1, fifth and sixth lines, ble with the requirements of the seventh paragraph of Section at the end, “and”; on the next line, “election or.” 2. It doesn’t do any harm. CHAIRMAN: No, that question hasn’t been - - There ANTHONY: There are a lot of things that don’t do any was no amendment to that question raised by - - harm, but that doesn’t mean we should say it two or three times. We said once that we - - in the conservation and SHIMAMURA: I move at this time to delete the word lands article, that we will comply in all respects with the “and” on line 5 at the end of the line, and the words, “elec provisions of the act or resolution admitting this State to tion or” on the following, sixth line. And also to delete the Union. Now thus far I’ve heard nothing that would lead the words on the sixth line, “as may be required,” and me to the conclusion that this will do anything different than insert in their stead, “as hereinafter provided.” we’ve already agreed upon. CHAIRMAN: And insert what words? SHIMAMURA: If the last speaker would read the new SHIMAMURA: “As hereinafter provided.” Section 8 as proposed, it has nothing to do with lands. ASHFORD: I’ll second that motion. ANTHONY: The other section didn’t either. We said that we would comply in all respects to the provisions of CHAIRMAN: It has been moved and seconded to amend the act of Congress admitting us to the Union. further Section 1 by deleting the words in the fifth line, the word “and”; and in the sixth line, the word “election or,” CHAIRMAN: Any more discussion on this amendment? at the beginning of the line; and in the sixth line, delete Are you ready for the question? the words “as may be required” and insert in lieu thereof, TAVARES: I think, if I’m not mistaken, this amendment “as hereinafter provided.” was very carefully prepared by the assistant attorney general. TAVARES: May we have that read now so that everyone Am I correct? She feels that it is important and complies can see how the whole thing reads. as far as we properly can, with due regard to the interests of the people of this territory, with the requirements of that CHAIRMAN: Yes. Section 7 as proposed to be amended in H. R. 49, Calendar No. 1931, and I see no objection to having it adopted here. Section 1. In case the people of the Territory of Hawaii ratify this Constitution and the same is approved CHAIRMAN: Are you ready for the question? All those by the duly constituted authority of the United States in favor of the motion to amend Committee Proposal No. whose approval thereto may be required, the governor 24 by adding a new Section 12 please say “aye.” Opposed, of the Territory of Hawaii shall, within 30 days after “no.” Motion carried. receipt of official notification of such approval, issue SHIMAMURA: Now may I move for the adoption of the his proclamation for primary and general elections, as entire Proposal No. 24 as amended? hereinafter provided, at which officers for all elected offices provided for by this Constitution and laws of this HOLROYDE: Second the motion. State shall be chosen by the people; but the officers so CHAIRMAN: It has been moved and seconded that Com to be elected shall in any event include two senators and mittee Proposal No. 24 be adopted as amended. All those two representatives in Congress, and unless and until in favor of the motion, please say “aye.” Opposed, “no.” otherwise required by this Constitution or laws of this Motion carries. State, said representatives shall be elected at large. DELEGATE: Question. SHIMAMURA: If it’s agreeable with the body, I should like to go into the consideration of Committee Proposal CHAIRMAN: Are you ready for the question? All those No. 25, where we left off. in favor - - 814 ORDINANCES AND CONTINUITY OF LAW HEEN: In the article on suffrage and election we have a SHIMAMURA: Point of information. What was the exact provision there on general election and special election. amendment now of Delegate Heen? Now this initial election is to take place at a time other than the general election provided for in the article on suffrage CHAIRMAN: Delegate Heen’s amendment was on the and election, it would not be a general election. It would second line, page 2,. After the words “shall be,” insert the be something else. It will be a special election or perhaps words “nominated and.” an initial election. HEEN: That’s a new motion, altogether. I have no ASHFORD: The words used by the chairman of. the previous motion pending. committee, “as hereinafter provided,” had that in mind; and the words “general election” it is contemplated will be CHAIRMAN: You have one motion made this morning, I defined for the purposes of this article in that subsequent believe. The motion to amendment - - amend was made section, so that it may be either a generaL or a special early this morning and subsequent amendments have been election. added to it and you’ve accepted it. TAVARES: I think, carrying out Delegate Ashford’s TAVARES: Why can’t we vote on one at a time? explanation a little further, just in case it happened that this election could be called to coincide with a general CHAIRMAN: All right. election, it would be in fact a general election. In case TAVARES: In connection with Mr. Shimamura’s amend it came at another time, it would be possibly a special ment, I’d like him to set forth a statement - - a suggestion election. I think that’s what Delegate Ashford meant and made by Delegate Kellerman— thought she wasn’t going to that’s why it calls for a later definition. But I think there get up and mention it— it’s use the word “final” for “general” would be no objection under those circumstances. election. I wonder how the chairman feels about that. “Final HEEN: Perhaps it’s not at all right at this moment, but election” instead of “general election.” in the general statute relating to primary and general elec tions, when a special election is held, then the law relating SHIMAMURA: That’s all right, I have no objection. The to primary elections does not apply. Nominations must be Act 334 uses the word “final” instead of “general,” but H. R. made in some other manner, and I’m just wondering whether 49 uses the word “general.” they have taken care of that situation. TAVARES: Well, my suggestion would be then that we TAVARES: We are providing for a primary election ex define the word “final” to mean what we are going to define pressly; that takes care of it. The election following it “general” to mean later on. That would include either a naturally is not a primary. I think by taking the - - express general election, if it came at the date of the general elec ly mentioning primary election, we’ve taken care of that tion, under the suffrage article, or a special or some other situation kind of an election, as long as it was the final one by which these people were to be elected. ARASHIRO: I have a question to ask. On page 2, line 3, what is the necessity of the insertion of the word “in any SHIMAMURA: That may be les~ confusing, to use the event”? word “final.” CHAIRMAN: Whether we should keep those words? CHAIRMAN: Agreed to use the word “final.” ARASHIRO: Yes. BRYAN: I’d like to ask the last two speakers if they CHAIRMAN: Delegate Shimamura, a question has been wouldn’t rather use the words “nominated and elected.” In raised. On page 2, line 3, at the end, whether it is neces other words, “for a nomination and election.” I think that sary to keep those words “in any event.” would be more precise. CHAIRMAN: How does it strike you, Delegate Shimamura? SHIMAMURA: That follows the language of H. R. 49. The previous clause provides for “officers for all elected SHIMAMURA: I have no objection, but I think we are put offices provided for by the Constitution and laws of said ting undue emphasis on nomination and election because the State.” Now Congress contemplated the situation that we statute usually speaks of election and not nomination. might not elect some other officers, then they say, in any event such officers to be elected shall include two senators CHAIRMAN: Delegate Tavares, how does it meet with and two representatives to Congress. you? CHAIRMAN: Are you ready for the question? TAVARES: Again, aren’t we mixing up two amendments; the nomination and election comes on the next page, does it HEEN: Line 2 on page 2, you have the words “shall be not? chosen.” Just wondering whether or not, in view of the fact that you are going to have a primary election, that those CHAIRMAN: That’s right. words should read “shall be nominated and chosen.” TAVARES: Couldn’t we leave that till later? I think that’s a good suggestion and I don’t see on page 1 where CHAIRMAN: Delegate Shimamura, what is your - - that will come in. SHIMAMURA: I have no objection. H. R. 49 says “chosen”; CHAIRMAN: In lieu of the words “primary and general,” but I’d just as soon have - - Delegate Bryan suggested the words “nomination and elec HEEN: It seems to me this would be an improvement on tion.” Is that correct? H.R. 49 because you don’t choose at a primary election; BRYAN: “Issue his proclamation for nomiiiation and you nominate at a primary election. I move that after the elections”? word “be” on line 2, on page 2, the words “nominated and” be inserted. TAVARES: No; you’ve got to designate the primary election day and the final election day. I think it wouldn’t CHAIRMAN: Delegate Heen, I believe you made the be appropriate. original motion to amend this section; therefore, if you wish to incorporate this further amendment, it would be all BRYAN: Primary election is not an election. That was right. To facilitate matters. my point. 815 JULY 11, 1950 • Afternoon Session TAVARES: It is a primary election, if it’s called such; tion of “officers for all elective offices provided by this and if you say nomination, it wouldn’t mean what a primary Constitution and laws of this State.” Now the laws of this election would mean. You have to define it further. State provide for the election of members of the board of supervisors and other city and county officials. Will they HOLROYDE: Under the legislative article, they can have to be re-elected or elected again under this provision? only be finally elected at a general election. Why don’t we Seems to me that they’ll have to run, be nominated and elected stick to this term “general” right through. That’s the only under this provision. suggestion that I have. TAVARES: I don’t think that follows. The laws of the CHAIRMAN: The Chairman will rule that we’ll take a State will be carried over, and what those laws say will be vote first on this amendment made by Delegate Heen, to - - will have their effect, if they don’t say to run at this facilitate matters. The amendment is on page 2, second election, people won’t run. That’s the situation; I don’t line. After the words “shall be,” the following words are think there is any trouble at all. inserted, “nominated and.” All those in favor of the amend ment, please say “aye.” Opposed, “no.” Amendment HEEN: It says “for all elective officers under this carried. Constitution and laws of this State,” and the laws of this Now as to the amendment offered by Delegate Tavares. State provide for the election of city and county officials. What is your final amendment? CHAIRMAN: Is there any more discussion on the section TAVARES: I think Delegate Shimamura made the motion, as amended so far? Care to make a motion? and I don’t know if he accepted the word “final” in place of HEEN: Personally, I don’t think they need to run for “general” or not. election, under this particular section. I would suggest this SHIMAMURA: I accept that. I think it’s an improvement amendment to the last line of page 1, before the word “elective” and I think that does away with some confusion. insert the word “State.” I move that as an amendment. CHAIRMAN: The word “final.” All those in favor - - CHAIRMAN: Is there a second to it? are you ready for the question, the amendment made by HAYES: I second it. Delegate Shimamura that would change the word “general” CHAIRMAN: It has been moved and seconded that on in the fifth line to “final.” All those in favor of the motion line 7, between the words “all” and “elective” insert the to amend please signify by saying “aye.” Opposed, “no.” word “State.” Ready for the question? The motion is carried. J. TRASK: For the sake of the record, I’ll TAVARES: Had we already voted on the deletion of the withdraw my motion. other two portions? I didn’t know that we voted on it. Dele gate Shimamura moved to delete on page 1. CHAIRMAN: Ready for the question? All those in favor of the motion please say “aye.” Opposed, “no.” Carried. CHAIRMAN: No, as I stated at the beginning of this session this afternoon, consideration of Committee Proposal J. TRASK: I renew my former motion. No. 25, I believe we did not. Then there is some insistence CHAIRMAN: It has been moved and seconded that Section that we clear matters step by step. Therefore, that’s the 1 be adopted as amended, with leave for consideration of the procedure we’ve been following. last portion of this section to be left open. TAVARES: Well, Mr. Chairman, as we started this BRYAN: Point of information. Why is it necessary to afternoon, the first part of Delegate Shimamura’s motion give leave for further amendment? Is the amendment not was to delete the words “an election or” in the fifth line ready now? Is that the complication? and “as may be required” in the same - - in the fifth and sixth lines, and “hereinafter required” in the sixth line. CHAIRMAN: The amendment is ready, but there is some question as to whether the amendments made this CHAIRMAN: The Chair will put the question now. Dele morning have been really adopted. Thereforq, we would gate Shimamura’s amendment, motion to amend in line 5, like to clear the floor, make it definite and adopt those by deleting the words “and” at the end of the line; and on amendments made, and then proceed to the consideration line 6, deleting the words “election or”; and in the same of Delegate Nielsen’s amendment. line 6, deleting the words “as may be required” and insert ing in lieu thereof the words “as hereinafter provided.” BRYAN: O.K. All those in favor of the motion, please say “aye.” Opposed, CHAIRMAN: That is merely to facilitate matters, to “no.” Motion carried. clear any ambiguities. Are you ready for the question? All those in favor of the motion please say “aye.” Opposed, J. TRASK: I move for the adoption of Section 1 as “no.” The motion is carried. amended. NIELSEN: I move that the following amendment be made CHAIRMAN: Delegate Trask, with this understanding, to this section. You all have printed copies on your desks. that Delegate Nielsen will be given a chance to make his On the last line of the last sentence, delete the words “said motion to amend the very last clause of Section 1. Is that representatives shall be elected at large” and substitute agreed on? therefor the following: “said senators shall be elected at J. TRASK: I accept that proviso. large; and said representatives shall be elected in the follow ing manner, one from that area comprising representative CHAIRMAN: To clear the floor. districts 11 to ii, inclusive, and one from that area com APOLIONA: I second that motion to adopt. prising all other representative districts in the State.” CHAIRMAN: Section 1, with leave for Delegate Nielsen LUTZ: Second the motion. or the floor for consideration of the last portion of the NIELSEN: The reason that I have offered this amendment section. is that if we do not do something like this, all - - both sena HEEN: Before we get to that stage, I would like to bring tors and the two representatives will all be elected from up this question. As the section now reads with all the Oahu without hardly any question, on account of the regis amendments which have been made, it provides for the elec tered votes. Now if we split it in this manner we gain two 816 ORDINANCES AND CONTINUITY OF LAW things. We do district for representatives as most states ratio was 300, 000 people or a major fraction thereof for do, and on a fairly equitable basis because districts 11 to each representative, but we are right on the edge now. They 17 have approximately 65, 000 registered voters and all the may raise the ratio from 300, 000 to 350, 000 or a major other districts about 60, 000. Also it will give us rural fraction thereof, and we would lose one in the reapportion representation in the Congress, and I think that’s very ment that will take place in 1950. I therefore feel that this necessary because of the rural development and the matter is a statutory matter and not a constitutional matter. agricultural nature of a large part of our territory. While The number of representatives allocated to the State of the other senators and representatives will give us kokua, Hawaii should be apportioned by the legislature of Hawaii I think that a man that is definitely elected by the rural as they are made. areas will be vitally interested in serving them. ASHFORD: May I call to the attention of the delegates BEEN: I believe that under the law with reference to the fact that this really is just a representation at first. election of representatives to the Congress, representatives It is subject to subsequent action by the legislature. and senators to the Congress of the United States, they are elected on the basis of population, straight population. CHAIRMAN: Are you ready for the question? Roll call. I’m not too certain about that. I know this, if it is on the ROBERTS: I wonder whether an amendment to the amend basis of population, the districts 11 to 17 inclusive will have ment would be in order. a population, under the 1950 census, of 347,440 and the rest of the state would have 145, 908. I don’t know whether CHAIRMAN: Chair rules it’s in order. that will meet the requirements of the method of equal pro ROBERTS: In the third line of the amendment - - sorry, portions. the second line at the end after the word “elected,” delete NIELSEN: So far as equal proportions, the states are all of the material in that amendment and substitute the words, left to set up their own districts. There’s no law on that. “at large, unless and until otherwise provided by law.” So According to the population of the states, equal proportion that the amendment would read, “said senators shall be is set up but not as to the districting within the states; they elected at large and said representatives shall be elected at have never been successful in doing that in the national Con large unless and until otherwise provided by law,” which gress. would make sure that if subsequent increases or decreases are brought about, it will be possible to allocate on the basis CHAIRMAN: Is there any more discussion on the pro of the suggestion made by Delegate Nielsen for representa posed amendment? tion to other areas. I’d like to move that as an amendment. BRYAN: I’ve been very much in favor of rural repre sentation all the way along. I think I’m going to draw the CHAIRMAN: Do I hear a second? line on this one. My reasoning is this. The actions taken ASHFORD: I was hoping lo speak before a second came and the representation that the citizens of the State would in. I hoped that the second wouldn’t then be necessary. The want is on an over-all basis, and I think that there’s very way it reads now is, “and unless and until otherwise required little concerning the territory in Congress that would go by this Constitution or laws of this State”; so that provision to local, or strictly local, problems. For that reason, I is in the section already. would rather have a toe-hold on two representatives, even if it was a small toe-hold, than I would have an arm-lock CHAIRMAN: Delegate Roberts, what is your reaction on one of them, if you get what I mean. to the point of Delegate Ashford? ASHFORD: Like the delegate who has just spoken, I’m ANTHONY: Beyond that, you can’t change the districting very much in favor of the rural areas, but unlike him, I in the senate which Delegate Roberts would endeavor to do think it highly desirable to have a representative in Congress by statute. from those areas. The necessity for harbor developments ROBERTS: If I may answer the first question, first. and various conservation projects are apt not to receive the This does not apply to senators, state senators. The proviso full value of need and of service to the territory unless we in the Constitution applies only to state senatorial districts; have somebody specifically representing us. there’s no application to senators to the Congress of the CHAIRMAN: Is there any more discussion? United States. On the - - I yield, Professor. HEEN: I wasn’t going to ask a question, but I was going KING: One difficulty about putting congressional districts to point out under the Federal Constitution the senators to in the Constitution is that we never know how many congress the Congress of the United States are elected at large in men we are going to have in the future. Reapportionment of any event. the Congress of the United States might decrease our repre sentation in the House of Representatives from two to one, ROBERTS: That’s the reason I repeated the language or might even increase it from two to three. Now ordinarily which applies only to representatives. I don’t intend it to all of the states have allocated to them a certain number of apply to senators. The senators must be elected at large. representatives; then they leave it to the state legislature “Said representatives shall be elected at large unless other to apportion or redistrict the states. Many states have in wise provided by law.” That’s the purpose of my amend the past two years, that is when I was in Congress in 1940, ment, to separate senators from representatives. gained two or three representatives, and in some cases, ANTHONY: Aren’t we getting a little complicated here? lost one or two. Right after 1950 there’ll be another re We’ve got an amendment on an amendment. I understand apportionment and there’ll be a further allocation of repre that’s not in order. sentatives to the 48 states and to Hawaii, if we are a state by that time. CHAIRMAN: The Chair ruled that it was in order. Now H. R. 49 arbitrarily allocates us two representatives ANTHONY: That’s contrary to the previous rulings of at this time and says that those two shall be in addition to the Committees of the Whole, as I understand it. the present fixed number of representatives of 435 for the whole 48 states, but immediately after the reapportionment CHAIRMAN: I think that an amendment on an amendment that will take place in the next Congress, we might very is proper under rules of parliamentary law. easily be reduced to one, particularly in view of the recent ASHFORD: I would like to ask Delegate Nielsen if he sbrinkage in population of the territory. As I recollect, the would accept an amendment to his amendment, striking out JULY 11, 1950 • Afternoon Session 817 the words “said senators shall be elected at large and,” CHAIRMAN: Could you renew that suggestion? then the rest of it would fit in with the remainder of the ASHFORD: I suggest that the first line of the proposed paragraph which cares for the senators before this provi amendment be stricken out, with the result that there is sion which he has deleted. substituted in the section for the words “said representative NIELSEN: Yes, that’s satisfactory. shall be elected at large,” the words “said representatives shall be elected in the following manner,” and so forth. PORTEUS: I hope we don’t introduce too many elements of confusion. It’s my understanding that when somebody has CHAIRMAN: Is that acceptable to Delegate Nielsen? su~gested an amendment and someone else has in turn NIELSEN: Yes, it’s acceptable. proffered an amendment to that amendment, I think the subject matter is beyond the power of the original maker CHAIRMAN: Are you ready for the question? of the motion. DELEGATE: Call for a division of the house. CHAIRMAN: That is correct. CHAIRMAN: I beg your pardon. CROSSLEY: It seems to me that if we could vote on the DELEGATE: Call for a division of the house. issue, that the language could then be worked out. In other words, if we could vote on the issues as to whether or not CHAIRMAN: All those in favor of Delegate Nielsen’s we want to give Oahu one senator and Hawaii one senator - - motion to amend Section 1 will please rise. I mean representative, then we could settle this, we can SAKAKIHARA: Roll call. settle the language. DELEGATE: Show of hands. SAKAKIHARA: I don’t think that’s correct. What delegate Crossley meant to say was one delegate to Oahu, and part CHAIRMAN: Request for roll call. Will the Clerk please of Oahu together with the neighbor islands. call the roll. All those in favor of Delegate Nielsen’s motion to amend Section 1 of Committee Proposal No. 25 will say HEEN: The delegate from Kauai said one was to be “aye,” and those opposed will say “no.” elected - - one representative was to be elected from Oahu Ayes, 21. Noes, 32 (Akau, Anthony, Apoliona, Bryan, and the other from Hawaii. I’d rather have him elected Castro, Cockett, Corbett, Crossley, Dowson, Fong, Fuku from Kauai. shima, Hayes, Heen, Holroyde, Kam, Kanemaru, Kauhane, CHAIRMAN: The present status of the amendments are Kellerman, King, Lai, Larsen, Noda, Ohrt, Porteus, - - I’ll call on Delegate Lyman. H. Rice, Richards, Shimamura, St. Sure, Tavares, A. Trask, J. Trask, Wist). Absent, 10 (Gilliland, Kage, Kometani, LYMAN: Sometime ago I think there was a little bit of Lee, Loper, Mau, Mizuha, Okino, Phillips, White). misinformation to the effect that districts 11 to 17 control the population of 350, 000. That is not true. Eleven to 17 CHAIRMAN: Motion fails. Section 1 as amended is still is the City of Honolulu, and that is approximately 50 per cent before this committee. of the population of the present territory. ASHFORD: I move its adoption as amended. CHAIRMAN: The status of the amendments are as CHAIRMAN: Is there a second to it? follows: Delegate Nielsen amended Section 1 by deleting the words “said representatives shall be elected at large,” HAYES: I second it. and inserting in lieu thereof, “said senators shall be CHAIRMAN: It has been moved and seconded that Section elected at large, and said representatives shall be elected 1 as amended be adopted. All those in favor of the motion in the following manner, one from that area comprising please say “aye.” Opposed, “no.” Motion carried. Sec representative districts 11 to 17 inclusive, and one from tion 1 is adopted as amended. that area comprising all other representative districts PORTEUS: Just as a matter of the record, what was the in the State.” Then Delegate Roberts amended Delegate vote? 21-30 what? Nielsen’s motion to amend by deleting in the second line of the proposed amendment the words, “in the”; and in the CHAIRMAN: The vote was - - third line following “manner” and all the rest of the words CLERK: 21-32-10. that followed; and in lieu thereof inserted the words, “at large unless and until otherwise provided by law,” period. CHAIRMAN: 21-32-10. Are you ready for the question? We are voting on the PORTEUS: Thank you. amendment proposed by Delegate Roberts. All those in CHAIRMAN: Section 2. Shall we proceed? favor of the motion please say “aye.” Opposed, “no.” Motion to amend fails. SHIMAMURA: I move for the adoption of Section 2. PORTEUS: May I ask for a division of the house? DELEGATE: Second the motion. I’m afraid we weren’t quite prepared on that. I wasn’t SHIMAMURA: I move to amend Section 2 by inserting sure exactly when to join in on the yes vote. I wonder if the after the word “said,” first line, first word, the word Chair - - “primary”; and that from line 3 on to 6 the words starting CHAIRMAN: The Chair will call for a division of the with “or if the primary elec$ion” down to the word “gover house. All those in favor will please stand. Delegate nor” on line 6, be deleted. Roberts’ motion, Opposed. Stand please. Motion fails. We have now before us Delegate Nielsen’s motion. CHAIRMAN: Could you repeat that again? Ready for the question? SHIMAMURA: From the third line, after the words SAKAKIHARA: Wasn’t that amendment, Mr. Nielsen’s “ordering the same,” the words “or if a primary election amendment, further amended by Delegate Ashford? is to be held” and so forth down to the word “governor” on the sixth line, line 6. CHAIRMAN: No. CHAIRMAN: Be deleted? ASHFORD: That suggestion which was accepted by Mr. Nielsen would strike out the words in his quoted amendment, SHIMAMURA: Yes. And also, while I’m on my feet, all the first line. to strike out the word “general” on line 6 and insert the 818 ORDINANCES AND CONTINUITY OF LAW word “final” to comply with the former amendment as duced to writing. There have been numerous deletions originally suggested by Delegate Kellerman. from this section at various points which makes it very confusing, and additions that he has inserted. I believe that AKAU: Did somebody second that already? in all fairness that it should be reduced to writing so that CHAIRMAN: Would you hold - - He’s stUl amending it. we may intelligently analyze the amendment. SHIMAMURA: On line seven, after the word “such,” CHAIRMAN: Suggestion is well taken. delete the words “election or”; and on the second to the BRYAN: I might ask the movant while he is havihg this last line, in that section, the word “hereinbefore” should reduced to writing, if he would think of the idea of just be deleted. applying the normal election laws or requisites for voting, BRYAN: I’ll second that motion. rather than putting that last wording in there. SHIMAMURA: And insert the words after - - or before SHIMAMURA: The article on suffrage and elections has “with respect to,” second to the last line, Section 2, “by no provision as to residence within a representative district, Congress.” nor does the article on legislative powers and functions have the qualifications for electors to either house. CHAIRMAN: After the words “respect to”? ROBERTS: That’s met by the state laws dealing with SHIMAMURA: Before the words “with respect to.” qualified voters. I don’t think we have to write that into CHAIRMAN: “By Congress”? our ordinance section, as long as they are qualified to vote, and we have in this section that they shall be qualified. SHIMAMURA: Yes. And to conform to H. R. 49, on “Qualification of voters shall be as prescribed by this Consti line 10 and on line 11 down through line 12, the word after tution and the laws of this State.” As long as they are “except,” starting with the words “as otherwise provided” qualified voters, it seems to me we’ve met the problem. down to “ratified by the people” to be deleted. TAVARES: As I understand it, the word “except” also CHAIRMAN: The Chair at this time would like to goes out? state, before any more debate is carried on in regards to Section 2, that the suggestion made by Delegate Anthony CHAIRMAN: Is that correct? Delegate Shimamura, does and Sakakthara is well taken, and would like to - - that word “except” also go out? SHIMAMURA: I shall have it printed. SHIMAMURA: Yes, that’s right. CHAIRMAN: The chairman shall have this printed and TAVARES: And the comma? have the section deferred temporarily, until we have the SHIMAMURA: Leave that in for the time being. I have printed form before us. another amendment to make which is a little more involved SHIMAMURA: Before we do that, may I make one ob than the others, so I shan’t make it at the present time, but servation. I don’t see any definition of qualified voter in I should like to have the word “except” in. our constitutional provisions. I may be mistaken, but on CHAIRMAN: Would you care to insert those words now; the provision of the article on suffrage and elections, there otherwise that paragraph won’t make any sense. is no residential requirement within a representative district. That’s the only provision which was left out. SHIMAMURA: Very well, that may be. After the word “except” insert “that voters shall have resided in their TAVARES: I think I can - - perhaps I can throw some respective representative and senatorial districts for not light on that. The election laws provide for registration, less than three months immediately preceding the time at and in Section 178 of the Revised Laws of Hawaii, 1945, in which they offer to register.” May I repeat that again? the affidavit on application for registration—which law will be continued in effect on the carryover — is the affidavit CHAIRMAN: Yes, go ahead, slowly. which has to be sworn to by the voter: “I have resided in the SHIMAMURA: “That voters shall have resided in their territory of Hawaii not less than one year preceding and in respective representative and senatorial districts for not the representative district not less than three months im less than three months immediately preceding the time at mediately preceding this date.” Now, the state is going to which they offer to register.” be substituted for the territory, and I think that will take CHAIRMAN: Is there a second to the amendment made? care of it. DELEGATE: Second the motion. SHIMAMURA: I don’t think it will. CHAIRMAN: It has been moved and seconded that Section CHAIRMAN: The chairman would like to entertain a 2 be amended as read by Delegate Shimamura. motion to defer Section 2. HOLROYDE: One suggestion to the movant. I think the ANTHONY: I move we defer Section 2. words “and senatorial district” can be stricken. They can’t CHAIRMAN: Is there a second? reside in their representative district and not reside in ASHFORD: Second it. their senatorial district, I don’t believe, for three months. These are surplus words. CHAIRMAN: All those in favor of the motion to defer Section 2 to the end of the calendar, please say “aye.” CHAIRMAN: What is your answer to that, Delegate Opposed, “no.” Motion is carried; Shimamura? ASHFORD: I now move for a very brief recess to give ANTHONY: While he’s thinking that one over, wouldn’t the chairman of the committee a chance to get this on the it be in order to have a rewrite of this thing? I’m sure I printing press. can’t follow these piecemeal amendments here. If they’ve got any more like it, I suggest that we take a recess and CHAIRMAN: Chair declares a short recess of five let them rewrite it. Let’s take a look at them. minutes. SAKAKIHARA: That’s why I rose. Will the Chair direct the movant of this amendment to have the amendments re (RECESS) 819 JULY 12, 1950 • Afternoon Session KING: I’d like to make a motion at this time, that the SHIMAMURA: My personal opinion, I don’t think we committee rise, report progress and ask leave to sit again. should take more than hail an hour, or an hour at the most. CHAIRMAN: It has been moved and seconded that this ASHFORD: It is my view that as a result of this meeting committee rise and report progress and beg leave to sit we will have a choice, and that it can be very briefly dis again. All those in favor of the motion, please say “aye.” posed of by the Committee of the Whole, that is, to choose Opposed, “no.” Motion is carried. between one thing or another. Now if that be so, the morn ing would be very well spent. I myself don’t think a half hour is quite long enough. I would suggest that the morning JULY 12, 1950 • Morning Session be dedicated to this so that retyping can be done, and go back to the Committee of the Whole at hail past one prepared to take immediate action. CHAIRMAN: Will the committee please come to order. CHAIRMAN: Delegate Roberts has been begging the floor. HEEN: I move that this committee take a recess subject ROBERTS: I think the setting aside of at least two and a to the call of the Chair. During the recess I would suggest half to three hours for this group to work on the redraft of that those who are more or less familiar with the various the section on ordinances and continuity will be well spent. proposals now pending before this committee to get together I think when we get back in session we can recess till one with the chairman and the members of the Committee on o’clock, and then go back to Committee of the Whole and Continuity of Law. Perhaps by doing that, we can expedite take up the proposals as submitted and as printed, so that the work of this committee. As you know, Mr. Chairman, we have the opportunity to spend our afternoon completing yesterday we had quite a number of separate proposals the article on ordinances and continuity. to consider and I don’t know just where they come in and where they are supposed to go out—all this and that. By J. TRASK: In view of what Delegate Asbford said, I want having a small group to work on these various proposals, I to amend the motion to recess until 1:30, instead of subject think we can expedite the work of this committee. to the call of the Chair. CHAIRMAN: Do I hear a second to the motion? CHAIRMAN: Is it acceptable to Delegate Heen, the CHAIRMAN: It’s been moved and seconded that this movant of the amendment? committee recess subject to the call of the Chair for pur HEEN: That is accepted. poses of having several members of this committee interest ed in suggesting amendments and making additions meet with CHAIRMAN: The motion before the committee is for the Committee on Continuity and Ordinances to expedite a recess to 1:30. Any more discussion? All those in favor matters. of the motion to recess till 1:30 please say “aye.” Opposed, “no.” Motion carried. Committee will be in recess till SAKAKIHARA: I am wondering what progress we’ll 1:30. make. I recall a few days ago similar steps were taken by The Chair might suggest at this time that all those in this committee. Subsequently, after the committee met, terested, please work with the Committee on Continuity only a handful of the members or those who were interested and Ordinances. in the matter met, and we made very slow progress. I might suggest that the Chair appoint a special committee from among the members of the Committee of the Whole, Afternoon Session assigning those also who are interested in the matter, to convene - - meet with the Committee on Continuity of Law CHAIRMAN: Regarding Proposals 23 and 24, there is to work on this matter, rather than make a general statement much difficulty that has to be resolved; therefore, they that those who are interested in the matter meet with the are taking - - they need more time. That being the case, committee. the Chair would like to entertain a motion to recess further CHAIRMAN: Is there any more discussion on the motion? until 3:30, at which time we’ll have all the amendments printed and ready. RICHARDS: I wonder if we can have some sort of indi cation as to when the Chair is apt to call. SAKAKIHARA: I move at this time that we take a recess till hail past three. CHAIRMAN: I cannot say. SHIMAMURA: I second the motion. ARASHIRO: Point of information. CHAIRMAN: It has been moved and seconded that this CHAIRMAN: State your point of information. committee recess until 3:30. All those in favor of the ARASHIRO: What is before the house now? Is it that motion please say “aye.” Opposed, “no.” Motion is special committee that you are going to appoint or the carried. Recessed till 3:30. voluntary committee? (RECESS) CHAIRMAN: The question on the floor is the motion to recess subject to the call of the Chair. CHAIRMAN: Will the committee come to order. ARASHIRO: And the people that are interested in this KING: This committee was to reconvene at 3:30. But Proposal 23, 24 and 25 will meet. Is that right? it’s obvious that the Committee on Ordinances and Continuity CHAIRMAN That is the understanding of Law will not be ready at this time, so I now move that the committee rise, report progress and ask leave to sit CASTRO: Some of us have matters of private business again. which we might take care of if the recess is going to be for the balance of the morning We would appreciate it if DELEGATE: Second the motion. the Chair could state a time when the committee would be CHAIRMAN: It has been moved and seconded that the called back into session commtttee rise and report progress and beg leave to sit CHAIRMAN: The best person, the person who might again. All those in favor of the motion please say “aye.” know best on that question might be Delegate Shimamura. Opposed, “no.” Motion is carried. 820 ORDINANCES AND CONTINUITY OF LAW Evening Session CHAIRMAN: The Chair feels that the chairman of the committee should have recognition in this case. Therefore, CHAIRMAN: Will Committee of the Whole please come the Chair recognizes Delegate Shimamura. to order. SHIMAMTJRA: May I explain the first section? The first CROSSLEY: What preference does the Chair have in section as amended - - wanting to take these up, so that we can move for the adoption of the sections? HEEN: Point of order. There is nothing before the committee. CHAIRMAN: Yes. Before we go on to that, the Chair would like to say that there have been two amendments CHAIRMAN: There is nothing before the committee, Delegal circulated. The amendment relating to Committee Pro Shimamura. posal No. 25 is good. That amendment relating to Commit tee Proposal No. 23 should be ignored because another SHIMAMURA: I move for the adoption of Section 1, just printed form will be circulated in a few minutes. I believe to facilitate matters. at this time we should proceed with consideration of Commit LARSEN: I second the motion. tee Proposal No. 25. CHAIRMAN: Your motion was to adopt - - CROSSLEY: I move the adoption of Committee Proposal SHIMAMURA: Section 1. No. 25. CHAIRMAN: Is there any second to that? CHAIRMAN: There is a motion to adopt the whole Com mittee Proposal No. 25. The Chair does not feel that it is DELEGATE: Second the motion. necessary. CHAIRMAN: For purposes of clearing the record, prob CROSSLEY: I’ll withdraw my motion. ably we should first reconsider our previous action on CHAIRMAN: It has been moved and seconded. Committee Proposal No. 25. SHIMAMURA: May I explain Section 1? Section 1 is CROSSLEY: Have we taken final action? practically identical with Section 1 as amended prior to our CHAIRMAN: We have adopted one section of Committee recess and adjournment. The only change is on the second Proposal No. 25. Therefore, the Chair would like to invite page. a motion to reconsider. CHAIRMAN: Delegate Shimamura. CROSSLEY: I move that we reconsider our action on SHIMAMURA: Yes, Mr. Chairman. Proposal 25. CHAIRMAN: Are you speaking to an amendment that is CHAIRMAN: It has been moved and seconded that we not before the Convention yet - - committee? Nobody has reconsider our action on Committee Proposal No. 25. All made a motion to amend Section 1 as yet. those in favor please say “aye.” Opposed, “no.” The motion is carried. WIRTZ: To put the whole thing in order, I move the adoption of Section 1. ASHFORD: May I ask that the chairman of the Committee on Ordinances and Continuity of Laws have preference in ROBERTS: The chairman of the committee has already recognition? moved for the adoption of Section 1, which was seconded. Section 1 is properly before us, and I believe that the problem CROSSLEY: Ibeg your pardon, Madame Delegate. I is on the adoption of this first section. didn’t see him here at the time. I rose to expedite the work. ANTHONY: As one of those who has spent four or five ASHFORD: No reproach to you, but I mean in the consi hours trying to get this thing straightened out, let’s not get deration of these amendments, I thiak he should be the man bogged down on something that’s not before us. Let’s take heard from, as the chairman of other committees have been a look at this. If there is any question about this, let’s go to thai in the past. PORTEUS: I thiak that the point that the various delegates H. RICE: I suggest that he take the chair up here next are trying to make is as follows. That there has been a motion to - - one of your chairs, so we don’t all have to turn to adopt Section 1. The motion to adopt Section 1 would be around here. the section of the committee proposal as brought out by the CROSSLEY: I move that we adopt—I’m almost afraid to standing committee. It is now proposed to amend that section. do it—Proposal No. 25. I thiak Delegate Shimamura would now be in order to move for the amendment of Section 1 because that’s what you are CHAIRMAN: Is there any second to the motion? presenting at this time, an amended Section 1. DELEGATE: I second the motion. HEEN: That’s not correct. What we are doing now is CHAIRMAN: It has been moved and seconded that we this, to amend the committee proposal itself, and not attempt adopt Committee Proposal No. 25. ing to amend various sections of Committee Proposal No. 25. HEEN: I move an amendment to that, we adopt each CHAIRMAN: The Chair would like to make a statement. section separately. The Chair understands that in this meeting of the subcommit tee, the special subcommittee, it was understood that the SIUMAMURA: May I explain this section, all sections? proposed amendment to Committee Proposal No. 25 was to be HEEN: There is a motion pending at the present time. proposed in its entirety to the whole Committee Proposal No. 25. WOOLAWAY: I’ll second the motion of Delegate Heen. BRYAN: I thiak it would clear the floor if the delegates CHAIRMAN: Could you repeat your motion, please, would realize that in voting to reconsider we voted to recon Delegate Heen? sider Committee Proposal No. 25, and I thiak the move that should have been made on the floor is to move that the original ASHFORD: Delegate Heen was not recognized. Delegate proposal be amended by this piede of paper here, and I so Shimamura was. move. It would clear the house. 821 JULY 12, 1950 • Evening Session KING: It seems to me common courtesy would let the AKAU: How did the committee arrive at the 40 days? chairman of the committee present the case. AIter all, this Was it an arbitrary thing or did they base it on something? special group that discussed it was headed by the chairman I’m referring to the fourth line in Section 2. “Take place of the committee, and the Chair recognized Delegate Shima within 40 days after primary election.” I wonder if the mura. We haven’t given him a chance to explain the situation. chairman or somebody in the committee could tell me. Now I think the Chair did right in recognizing Delegate SHIMAMURA: That’s in compliance with the very Shimamura to present the matter before the Convention. I language and requirement of H.R. 49. suggest we allow Delegate Shimamura to go ahead and ex plain what is before the Convention. CHAIRMAN: Are you ready for the question? All those in favor of the motion to amend - - CHAIRMAN: The status of the matter before this commit tee is that a motion was made and seconded to adopt Commit WIRTZ: Point of information. Are we voting on the tee Proposal - - Section 1 of Committee Proposal No. 25. amendment that’s contained in the combined circular or the Now, Delegate Shimamura. separate amendment? SHIMAMURA: I move that Section 1 of Committee Pro CHAIRMAN: In the combined circular. It has three posal No. 25 be amended, the amendment being on the desks pages to it. of the various delegates. WIRTZ: I’m not so sure. There’s another amendment SECTION 1. Elections. In case the people of the here that has 40 days. The other one has 60 days. Territory ratify this Constitution and the same is approved CHAIRMAN: The one on the single page, please ignore. by the duly constituted authority of the United States whose Are you ready for the question? Delegate Shimamura, approval thereto may be required, the governor of the is there anything more you would like to clear up? Is there Territory shall, within thirty days after receipt of the any more discussion? official notification of such approval, issue his procla SHIMAMURA: No. mation for primary and final elections, as hereinafter provided, at which officers for all state elective offices CHAIRMAN: All those in favor of the motion to amend provided for by this Constitution shall be nominated and Section 2 as written in the amended Committee Proposal elected; but the officers so to be elected shall in any No. 25 please say “aye.” Opposed, “no.” The motion is event include two senators and two representatives to carried. the Congress, and unless and until otherwise required BRYAN: I’d like to keep the parliamentary order straight by law, said representatives shall be elected at large. and move the adoption of Sections i and 2 as amended. J. TRASK: I second the motion. DELEGATE: Second. CHAIRMAN: It has been moved and seconded that Section 1 of Committee Proposal No. 25 be amended, as CHAIRMAN: It has been moved and seconded written in the Committee Proposal No. 25 proposed amend that Sections 1 and 2 of Committee Proposal No. 25 as ments. amended be adopted. All those in favor please say “aye.” Opposed, “no.” Motion is carried. SHIMAMURA: May I state that this Section 1 as amended follows substantially, almost identically, the Section 1 as SHIMAMURA: I move for the adoption of Section 3 of amended the other day by the entire Convention. Proposal No. 25. CHAIRMAN: Are you ready for the question? All those J. TRASK: Second the motion. in favor of the motion to amend please say “aye.” Opposed, CHAIRMAN: It has been moved and seconded that Section “no.” Motion is carried. 3 of Committee Proposal No. 25 be adopted. SHIMAMURA: I move for the adoption of Committee SHIMAMURA: I move for the adoption of Section 3 as Proposal - - Section 2 of Committee Proposal No. 25. amended. J. TRASK: Second the motion. SECTION 3. When said election shall be held and the returns thereof so made, canvassed and certified, the CHAIRMAN: It has been moved and seconded that Section governor shall certify the result thereof to the President. 2 of Committee Proposal No. 25 be adopted. CHAIRMAN: Is there a second? 5HIMAMURA: I move to amend Section 2 of Committee Proposal No. 25 according to the amendment which has been S. TRASK: Second the motion. circulated to the delegates. CHAIRMAN: It has been moved and seconded that Section SECTION 2. Said primary election shall take place 3 of Committee Proposal No. 25 be amended as is written not earlier than sixty days nor later than ninety days after in the amended form. said proclamation, and the final election shall take place SHIMAMURA: May I just state that Section 3 a~ amended within forty days after the primary election. Such elec is substantially identical with Section 3 of the Committee tions shall be held, and the qualifications of voters there Proposal No. 25. It has been abbreviated somewhat. at shall be, as prescribed by this Constitution and by the CHAIRMAN: Are you ready for the question? All those laws relating to the election of members of the legislature in favor of the motion to amend Section 3 please say “aye.” at primary and general elections. The returns thereof Opposed, “no.” Motion is carried. shall be made, canvassed and certified in the same manner as prescribed by law with respect to the election BRYAN: I move the adoption of Section 3 as amended. for the ratification or rejection of this Constitution. S. TRASK: Second the motion. CHAIRMAN: Do I hear a second? CHAIRMAN: All those in favor of the motion to adopt J. TRASK: I second the motion. Section 3 as amended please say “aye.” Opposed, “no.” Motion is carried. CHAIRMAN: It has been moved and seconded that Section 2 of Committee Proposal No. 25 be amended as written in SHIMAMURA: I move to amend - - to adopt Section 4 of the amended forms circulated. Is there any discussion? Proposal No. 25. 822 ORDINANCES AND CONTINUITY OF LAW cR0SSLEY: Second the motion. we have to designate someone to act as secretary of state CHAIRMAN: It has been moved and seconded that Section for this purpose. 4 of Committee Proposal No. 25 be adopted. ROBERTS: I understand the purpose of the amendment. SHIMAMURA: I move to amend Section 4 in the form I just want to know why we make him an ex officio secretary. that has been circulated. Why can’t we say for this purpose the lieutenant governor of the State shall act as or be considered secretary of state. SECTION 4. Upon the issuance by the President of Why do you have that be an ex officio? his proclamation announcing the result of said election and the admission of this State to the Union, the officers SHIMAMURA: My amendment as originally proposed elected and qualified under the provisions of this Consti read, “shall be designated secretary of state.” But some tution and the laws of this State shall proceed to exercise other members of the subcommittee felt that “shall be and discharge the powers and duties pertaining to their deemed ex officio” was an improvement. respective offices. HEEN: First paragraph, Section 5, says, “The governor J. TRASK: I second the motion. and the secretary of this State.” I think it should read, “The governor and secretary of state,” instead of “secretary CHAIRMAN: It has been moved and seconded that Sec of this State.” “Governor and secretary of state shall certi tion 4 of Committee Proposal No. 25 be amended in the fy.” The next paragraph, next to “lieutenant governor,” form in which it has been circulated. Is there any discus “secretary of state.” I move an amendment. sion? ASHFORD: I think perhaps the chairman of the commit SHIMAMURA: Section 4 is substantially similar to tee will accept that amendment. Section 4 as originally proposed. Only thing, “ordinances” have been deleted - - references to ordinances have been SHIIVIAMURA: I’m willing to accept it, to prevent debate deleted, and it has been abbreviated somewhat. and argument, but H.R. 49 says exactly that. CHAIRMAN: Ready for the question? All those in favor HEEN: In the second line delete the word “this,” so that of the amendment please say “aye.” Opposed, “no.” that clause will read, “The governor and secretary of state” Motion is carried. instead of “secretary of this State.” CROSSLEY: I move the adoption of Section 4 as amended. CHAIRMAN: I understand Delegate Shimamura has ac cepted the suggested amendment. DOWSON: I second the motion. ASHFORD: May I refer to the language of H.R. 49? ‘CHAIRMAN: It has been moved and seconded that Section “The governor and secretary of said State.” 4 as amended be adopted. All those in favor of the motion please say “aye.” Opposed, “no.” Motion is carried. CHAIRMAN: The question raised by Delegate Roberts is still before this floor. DOWSON: I move for the adoption of Section 5. CHAIRMAN: Is there a second? TAVARES: May I offer this as my explanation. I think that whether you say that the lieutenant governor acts as a DELEGATE: Second the motion. secretary of state or whether you say he is ex officio secre tary of state, I think the result is the same. By virtue of CHAIRMAN: It has been moved and seconded that Section his office, ex officio means by virtue of his office as 5 of Committee Proposal No. 25 be adopted. lieutenant governor he is secretary of state. Whether you SHIMAMURA: I move to amend Section 5 in the form say he is or acts as secretary of state, he is acting by circulated. virtue of his office as lieutenant governor; therefore, ex officio I think is correct. SECTION 5. The governor and secretary of this State shall certify the election of the senators and repre ANTHONY: I think it’s just a matter of style. If Brother sentatives to the Congress in the manner required by law. Roberts wants to change that in the Style Committee, he can. For this purpose, the lieutenant governor of this State shall be deemed ex officio secretary of state. ROBERTS: I was going to ask you if it’s a matter of style. PHILLIPS: Second it. ANTHONY: That’s all it is. You’re right. CHAIRMAN: It has been moved and seconded that Sec tion 5 of Committee Proposal No. 25 be adopted in the form ROBERTS: If it is, then we take care of it. in which it was circulated. ANTHONY: That’s all it is. That’s all. ROBERTS: I have a question on the second paragraph of CHAIRMAN: Are you ready for the question? All those this section which is the amendment. The language provides in favor of the motion to amend Section 5 in the form circu that the lieutenant governor of the State shall be deemed ex lated please say “aye.” Opposed, “no.” Motion carried. officio secretary of state. CROSSLEY: I move the adoption of Section 5, as amended. WOOLAWAY: There is only one section in Section 5. DOWSON: I second the motion. ROBERTS: It’s been amended by the chairman of the committee to include the new section which includes a CHAIRMAN: It has been moved and seconded Section 5 be second paragraph. amended and adopted. All those in favor of the motion please say “aye.” Opposed, “no.” Carried. SHIMAMURA: May I answer that question? H. R. 49 provides that the governor and the secretary of state shall WOOLAWAY: I move for adoption o(Section 6. certify to the election of the United States senator and the J. TRASK: I second the motion. representatives to Congress. Now, as the delegates will recall, we have no provision in our Constitution for a CHAIRMAN: It has been moved and seconded - - rather, secretary of state. We, however, have a lieutenant gov the Chair feels that in this particular case the Chair should ernor, and therefore, to prevent a lack here of an officer call on President King. 823 JULY 12, 1950 • Evening Session KING: This seems to be new material. I think we could bers elected to the Senate at such election shall consti call on the chairman of the committee to explain the provi tute the second class, who shall hold office for a term sions in the proposed amendment that adds Sections 6, 7, 8 beginning with their election and ending on the day of the to the original proposal. second general election held thereafter. TAVARES: That’s why I think if we could let the chair J. TRASK: I second the motion. man of the committee make it, he’d make the motion in CHAIRMAN: It has been moved and seconded that Com the proper way. We’re not moving to adopt Section 6. We’re mittee Proposal No. 25 be amended by adding Section 8 in moving to amend the article by adding a new Section 6. the form in which it has been circulated. SHIMAMURA: I move at this time to amend Committee SHIMAMURA: Briefly this Section 8 provides for the Proposal No. 25 by adding a new section numbered 6, there term of the first representatives and senators of Hawaii, to which reads as circulated. that is to our legislature. And the second paragraph pro SECTION 6. Ten days alter the admission of this vides, as you see, for the term of the members of the House, State to the Union, the legislature shall convene in and the third paragraph provides for the staggered terms special session. of the members of the Senate. J. TRASK: I second the motion. LEE: I’d like to address a question to the chairman on the last paragraph—the division of the members of the CHAIRMAN: It has been moved and seconded that Com Senate in the two classes. My question is, under this mittee Proposal No. 25 be amended by adding Section 6 as theory, those who have been elected to the territorial Senate, circulated. Is there any discussion? no matter when the State - - statehood comes into actual SHIMAMURA: This Section 6 was circulated as amend being, even though that member was elected for the terri ment to Committee Proposal No. 25 under date of July 11. torial Senate for a term of four years, his term would be It was anunnumbered section at that time. I think the cut short by two years. Is that right, as far as the hold delegates have read it. This is to facilitate the first session over senator is concerned? of the legislature alter the election. SHIMAMURA: As to the senators in the first class, I CHAIRMAN: Are you ready for the question? All those believe that they will serve slightly more than the four-year in favor of the motion to amend Committee Proposal No. 25 term for which they would ordinarily serve. by adding Section 6 please say “aye.” Opposed, “no.” Mo LEE: No, that isn’t my question. My question is, as tion carries. I understand it that once we become a state all people must SHIMAMURA: I move to amend Committee Proposal run then. In other words all officers then - - No. 25 by adding thereto it a new Section 7 as circulated. SHIMAMURA: That’s right. SECTION 7. The governor and the lieutenant gover LEE: - - upon becoming a state. Is that the premise that nor, elected at the first election, shall each hold office had been accepted in this proposition? for a term beginning with his election and ending at noon on the first Monday in December following the second SHIMAMURA: You mean the present territorial legislature general election. ceases to function? J. TRASK: I second the motion. LEE: Yes. CHAIRMAN: It has been moved ahd seconded that Com SHIMAMURA: Yes, that’s true. mittee Proposal No. 25 be amended by adding Section 6 as circulated. LEE: So all the offices of the Territory including from the governor and all of the legislature ceases. Is that correct? SHIMAMURA: This section - - SHIMAMURA: That’s correct. CHAIRMAN: Seven rather. Correction, Section 7. LEE Has there been a study made as comparison to the SHIMAMURA: This section provides for the termination holdover senators of other states which were admitted to the or the duration of the term of the governor or lieutenant Union? Was that the same practice that was followed? governor alter their first election. ANTHONY: H. R. 49 specifically requires us to elect CHAIRMAN Are you ready for the question9 All those our senators and representatives to the State legislature. in favor of the motion to amend Committee Proposal No In other words, those present senators who may have a hold 25 please say aye Opposed, no Motion carries over term, were it.not for the admission of the State in the SHIMAMURA: I move for the amendment of Proposal Union, are going to get short-changed. They are going to No. 25 by adding thereto a new section numbered Section 8. have to run for election. SECTION 8. The term of office of the members of tEE: Well, that~s what I wanted to know. Now, the the legislature elected at the first election shall be as second question. follows: Members of the House of Representatives shall hold ANTHONY: That’s exactly it. office for a term beginning with their election and ending LEE: Thank you~ The second question goes to this idea on the day of the second general election held thereafter. of creating two classes, to be designated. The first class, Members of the Senate shall be divided into two the highest number of votes will fall in the first class. Was classes. The first class shall consist of the following there any consideration given to running for long term and number elected with the highest number of votes from running for short term? I don’t think this accomplishes that their respective senatorial districts: first district, 3; because with this you run all at one time and the fellow who second district, 1; third district, 2; fourth district, gets the highest vote, the highest votes fall in the first class. 3; fifth district, 2; and sixth district, 2. Members of Is that correct? the first class shall hold office for a term beginning with their election and ending on the day of the third SHIMAMURA: The senators in the higher class serve a general election held thereafter. The remaining mem slightly longer term than those in the second class. 824 ORDINANCES AND CONTINUITY OF LAW LEE: I understand that, but my question was posed as to number of votes are in the first class, any others will have why wasn’t the - - say the matter of the term of the Senate to take second place, the short term. set so that those who would file for election would run for the long term and those who desire to run for the short LEE: Well, now, I might state this - - term, for the short term. I know that was discussed by ANTHONY: They all have to run together. the Legislative Committee and that matter wasn’t too fully considered, as far as I was concerned, but I wondered how CHAIRMAN: Will you please address the Chair when this committee reached the same conclusion. you’re speaking? BRYAN: I’d like to answer that. I think that in all fair ANTHONY: I was addressing the Chair. ness we should say that Delegate Shimamura inherited this from the Legislative Committee, Is that not correct? LEE: I might state that k’s very obvious that those who will get their largest number of votes will fall in the first SHIMAMURA: That’s right. Delegate Heen introduced class. That’s exactly what it says; that’s pretty obvious; this. May I state that you cannot put down a definite term nobody needs any explanation. My point goes to the matter because we don’t know when this election will be held and of determining at the outset whether or not k would be better by the very terms of H. R. 49, k’s indefinite. It says with procedure for those who would be running for the State in 30 days after the State of Hawaii is admitted to the Union, Senate, those citizens who are desirous of running for the the governor shall by proclamation call the election of all State Senate would declare that they are running for the long such officers. It’s necessarily indefinite and uncertain. term Senate as compared to running for the short term Senate. It seems to me that would be better practice rather than say BRYAN: I think that possibly the delegate who raised ing now we’re all running for the Senate; and then for the the question might have been absent at the meeting when first time, those who have the largest number of votes would there was a vote taken in the Commktee on Legislative fall in the first class, the ones who fall the last would fall in Powers and Functions as to whether it would be run on this the second class. It seems to me you’re defeating the very manner with the one receiving the highest vote going into purpose on which elections are run. You will, when you run, one class and the others in another class, or whether they declare for the office that you seek. It seems to me k’s just would declare before they filed for nomination or their papers, as logical that you declare for the term of office that you and the vote that carried was the vote to do k in this manner, seek. That’s my opinion. in the Legislative Committee. CHAIRMAN: Is there any more discussion? Are you LEE: There’s no such section in the legislative proposal, ready for the question? is there? J. TRASK: I would like to ask the committee, how did BRYAN: That is true, but this was referred to the Com they arrive at giving the third district two senators and the mikee on Ordinances and Continuky of Law by the Legis fourth district three? lative Commikee. HEEN: That was done at a meeting of the Commktee on LEE: Do you mean there was a mandate addressed to Legislative Powers and Functions. the Commktee on Ordinances that such should be included in the ordinance? BRYAN: I think that you are referring to the present fourth and fifth districts on Oahu. I believe that’s what he is HEEN: May I answer? There was no mandate. We had referring to. I think that it was the feeling of the commktee in mind that some such provision of this - - such as this that the third district - - he is talking about the fourth and should be included in the schedule. So bearing that in mind, fifth districts, aren’t you? Mr. Chairman, may I ask that we prepared this particular provision and then had k intro question of the last speaker? duced as a proposal on the article or the schedule relating to CHAIRMAN: You may. continuity of law and so on. BRYAN: You’re speaking to the fourth and fifth district? WOOLAWAY: I made that particular motion in commktee The feeling of that commktee was that the fifth district with and k carried. I don’t believe Senator Lee was present five senators got a lktle bk of a break and we gave the at that time. fourth district a lktle bit of break on this part of k to make things even. TAVARES: May I further answer Senator Lee’s query. We were shown this afternoon in the informal commikee FUKUSHIMA: I think there is considerable merit to what which was working out here on this redrafting that it is cus Delegate Lee has stated in declaring first what class of tomary in the case of states - - senators to the Unked States senators you want to belong to, the two-year class or the Senate to decide by lot after the senators are elected which four-year class, because certainly if you were campaigning should be long term and short term, so this is not an unusual for two-year class, you wouldn’t spend as much for your skuation even for the Unked States Senate. What’s good for campaign as if you were running for four-year senator. I the Unked States Senate, I believe, should be good enough believe there should be some segregation made at the outset. for us. Otherwise, you’ll have all running at large, everyone trying to outdo the other, outspend the other to get the four-year LEE: Well, now will the learned delegate yield to this term by getting the highest votes. It seems to me k’s pretty question? Did he find from his investigation that there inequitable. were other states who, when admkted to the Union, ran for the long term Senate and there were those who ran for CHAIRMAN: Are you ready for the question? Is there ~ny more discussion? the short term Senate. In other words, it could be just as well advised so that the persons who would run would ME LSEN: Under this I’d like to ask the chairman of the know whether or not he was running for long term as com commktee how many senators are going to be elected for the pared to running for a short term, rather than leaving it second district. helter-skeker, depending on whether or not he would have the largest number of votes. KING: It’s stated there; there are two senators from that district, one would run for the long term and one for the ANTHONY: He’ll know soon enough after the returns are short term. Whoever gets the highest vote would serve for in. This is a very simple method. Those that get the highest the long term; whoever gets the second highest vote would 825 JULY 12, 1950 • Evening Session serve for the short term. It says “second senatorial dis CHAIRMAN: Are you ready for the question? Question trict, one.” That would be for the long term. is to further amend the amendment, Section 8, by changing it so that the sense will be that the senators may select CHAIRMAN: Ready for the question? at the outset of the election whether they want to run for the C. RICE: Talking along the lines of Delegate Fukushima long or the short term. and Senator Lee. You know when there has been a death of J. TRASK: Point of information. I would like to know if a senator, take Senator Pedro died, then they had election there is any provision in the Constitution now that might take and they had nominations for the short term and nominations care of an emergency outside of a special election, that for the long term. This way is all right if you want to take Senator Rice has just spoken about. In the event that one your chances, but there is going to be a lot of plunking. of the senators should die, whether they should have any You are to vote for your favorites. I just want to point that election for the unexpired term; I wonder if there is any out. section in the Constitution that takes care of that now? H. RICE: Do you think that - - I’d like to ask that special CHAIRMAN: Delegate Heen, could you answer that, committee, do you think it would be too long if, for instance, please? you said, the first district, three should run for four years, two run for two years; and go along that way? HEEN: There is a section in the article on the legisla tive powers and functions. In case of a vacancy, that vacancy HEEN: Because on the first election it’s not going to shall be filled as provided by law; or, in the event there is be four years or two years, they are going to run at a no law, then by appointment of the governor for the unex special election which will make the term a little more than pired term. two years, and the other term a little more than four years. CHAIRMAN: Are you ready for the question? All those You can’t say four years and two years. in favor of the motion to amend the amendment which adds CHAIRMAN: Are you ready for the question? All those Section 8 to Committee Proposal No. 25 please say “aye.” in favor of the motion to amend Committee Proposal No. Opposed, “no.” The motion to amend is defeated. 25 - - Ready for the question on Section 8? All those in favor LEE: I’d like to offer an amendment. I haven’t got it of the motion to amend Committee Proposal No. 25 by adding prepared now, but the essence would be to amend it so that Section 8 in the form in which it has been circulated, please the - - I’d be satisfied with a sense vote. If we fail on this, say “aye.” Opposed, “no.” The motion is carried. we might as well proceed. DOWSON: I move for the adoption of Committee Proposal CHAIRMAN: I can’t hear you. No. 25 as amended. LEE: In other words, I’m willing to make a motion that CROSSLEY: I second the motion. the last paragraph be amended so that the candidates would CHAIRMAN: What are you rising to, Delegate Fukushima? declare whether they would seek the longer term, as well as the short term; and if that motion passes, I will prepare FUKUSHIMA: To the motion to adopt Proposal No. 25 the proper amendment. If, however, it fails, I’m just as as amended. willing to let this go on tonight. I make that In the form of CHAIRMAN: It has been moved and seconded that Com a motion. mittee Proposal No. 25 be adopted as amended. YAMAMOTO: Second the motion. FUKUSHIMA: I’d like to ask the chairman of the commit CHAIRMAN: If there is no objection from the committee tee what observation was made as to the two United States as to the - - that Section 8 be amended in the sense so that senators. As I understand it from this proposal, both sena the senators running for office will be able to select at the tors will run at large, but it doesn’t state whether one should outset for either the long term or the short term. Is there run for two years, the other for six; because as I understand any objection to that being put before this committee, with it, the senators of the United States also have staggered terms. out the language in its proper form? CHAIRMAN: Delegate Anthony, could you answer that KING: I have no objection to putting the motion, but I’d question? like to speak against its adoption. It’s only for the first special election, and it just adds more language and more ANTHONY: That is governed by a section in the Federal difficulty in the Constitution to specify that three from the Constitution which provides that the state’s legislature may first district shall run for the long term and two for the provide for the method of electing senators and representatives. short term, one from the second district for the long term Now, in connection with whether one is by long term or by a and one for the short term, right down the line to designate short term, that is done by lot in the United States Senate. the whole 25 senators. It seems to me they can all run at Our legislature, of course, could enact a law regulating that large, 25 senators. Those who get the highest votes in matter afterwards. But there is no occasion to go beyond their respective district will serve for the long term, and the present status of the situation, which is as I have stated. those who will get the lowest votes serve for the short FUKUSHIMA: But the election of the United States senators term. ‘are held before the election of the State legislators. Isn’t CHAIRMAN: Is there any discussion? that correct? RICHARDS: I agree with the last speaker. We’re only ANTHONY: Same time. talking about the first election. We have talked about the democratic principles that we wish to follow here and the FUKUSHIMA: In the same election? point is that you might have two or three of the most popu ANTHONY: Same election. Same election as the gover lar people. By popular I do not mean necessarily personally nor. popular, but the most qualified people running from one FUKUSHIMA: Then the legislature of that State will then section, for either the long term or the short term; and, provide for which senator will have a two year term and therefore, the State would not be able to have their most which six. Is that correct? qualified representatives. Therefore, I am against this amendment as I feel that the people who are most qualified ANTHONY: No, the Senate of the United States will decide will be elected if they are all running. that. 826 ORDINANCES AND CONTINUITY OF LAW CHAIRMAN: Is there any more discussion on the motion If there is no objeotion, we will now consider Committee to adopt? Proposal No. 23. Recollection of the Chair is that - - BRYAN: There are two minor points. One is that I SHIMAMURA: May I move to reconsider Committee Pro would ask the Chair again to request that the delegates re posalNo. 23. frain from using the microphone in voting. The second point is that I think Section 6, am I correct J. TRASK: Second the motion. in my understanding that this refers to the State legislature, CHAIRMAN: It has been moved and seconded that we and that the State will not be admitted to the Union until the reconsider our action on Committee Proposal No. 23. appearance in Washington of our representatives? Is that correct? That would clear that point. ASHFORD: We were told that a new version of the print ing was to be issued. Has that been done? ANTHONY: No. The State is admitted to the Union after the election has been had and the President has notified by CHAIRMAN: That is right. There are four pages to that proclamation of that - - has been notified of that fact. That’s new amended form. The wrong one has three pages. specifically in H.R. 49, page 21, I think. CROSSLEY: One Proposal No. 23 of mine reads “Pro BRYAN: Well, that means that this - - there’ll be no posed amendments to Committee Proposal No. 23.” The doubt but what this referred to the State legislature. other reads, “Amend Committee Proposal No. 23 to read ANTHONY: This is the State legislature. as follows.” ROBERTS: I don’t think that Delegate Fukushima’s ques CHAIRMAN: The latter is the correct form. tion has been answered. I think the question is still there. WIRTZ: Which one? We elect two senators. The answer was that the Congress determines who shall be the long and who shall be the short CHAIRMAN: The latter. term? CROSSLEY: The one that is titled, “Amend Committee Proposal No. 23 to read as follows”? ANTHONY: Not the Congress but the Senate of the United States. But the legislature does have the power by appro CHAIRMAN: That’s right and there are four pages in it. priate legislation. That can be done after the legislature The other has three pages. Do we all have that? The convenes. But for the initial election, that will be done under question before the committee is to reconsider our action the Federal Constitution by the United States Senate. on Committee Proposal No. 23. All those in favor of the ROBERTS: I think it’s perfectly appropriate for us to motion, please say “aye.” Opposed, “no.” Motion carries. determine who shall be the long term and the short term, SHIMAMURA: I move to adopt Section 1 of Committee the same as we’ve done for our own. I think an amendment Proposal No. 23. is perfectly appropriate that the person who gets the highest vote could be the long term and the person who gets the J. TRASK: Second the motion. second vote be the short term. CHAIRMAN: It has been moved and seconded that we TAVARES: The trouble is that those of us, in the short adopt Section 1 of Committee Proposal No. 23. time we had, who looked this matter up, looked up different parts of the same question. I called Deputy Attorney General SHIMAMURA: This is identical with the Section 1 as Watanabe to look the matter up, and he came back with a originally proposed. statement that there seemed to be on the one hand some pro CHAIRMAN: All those in favor of the motion, please say vision that the legislatures of the states should fix the time “aye.” Opposed, “no.” Carried. of election of senators. But we were shown books by the SHIMAMURA: At this time I move to adopt Sections 2 to Legislative Reference Bureau, a little later, which said 10 inclusive of Committee Proposal No. 23. that upon the initial election, the Senate determines it by lot. That’s as much as we were able to get from the author CHAIRMAN: Do I hear a second? ities and since it’s not too clear, we just leave it that way. YAMAMOTO: I second the motion. Apparently it has been done by lot in the United States Senate and it will take a lot of research for us to go through CHAIRMAN: It has been moved and seconded that we all the authorities to see if the state legislature actually can adopt Sections 2 to Section 10 inclusive of Committee do that. So if we leave it that way, apparently, it has been Proposal No. 23. done and will be done. ROBERTS: I think we ought to go through this thing para ROBERTS: I have no objection to having it done by lot. graph by - - section by section, so that we can read it. K[NG: It might be pointed out that when we come into the TAVARES: May I explain in seconding that motion, that Union of the states, it will be the first state to be admitted we have compressed Sections 2 to 10 into the next section to the Union since the popular election of senators. Hereto of the proposed amendment and that’s why we are doing it. fore, every state had been admitted to the Union, then the We think we’ve covered them all. new state legislature has elected the senators and has more or less designated which one shall be for the long term or the CHAIRMAN: Are you ready for the question? short term. So we’ll be the first state that has come in ASHFORD: I don’t know whether the chairman of the since the popular election of senators and it leaves us at committee wants to move this amendment. I know that he a little bit of a loss how to designate who shall have the long felt that the expanded Sections 2 to 10 were a more satis term or the short term. It does seem a simpler solution to factory method of dealing with subject. But I believe that he leave it to the United States Senate to decide it by lot. We is now satisfied that they are all covered by Section 2, parti will elect two senators and they’ll go there and draw lots. cularly if this committee report so declares when it is filed. One will get six years, the other will get two years. I, therefore, move the amendment of Section 2 of Committee CHAIRMAN: Are you ready for the question? All those, Proposal No. 23 to read in the form submitted to the dele in favor of the motion to adopt Committee Proposal No. 25 gates on their desks. as amended, please say “aye.” Oppesed, “no.” Motion is SECTION 2. All laws in force at the time this Consti carried. tution takes effect and not inconsistent or incongruous 827 JULY 12, 1950 • Evening Session therewith, including, among others, acts of the Congress CHAIRMAN: It has been moved and seconded to adopt relating to the lands in the possession, use and control of Section 11 of Committee Proposal No. 23. the Territory of Hawaii, shall be the laws of the State and SHIMAMURA: I move that Section 11 be amended in the remain in force, mutatis mutandis, until they expire by form it appears as Section 3 in the amendments to Commit their own limitations, or are altered or repealed by the tee Proposal No. 23 as circulated. legislature. Except as otherwise provided by this Constitution, all SECTION 3. Except as otherwise provided by this existing writs, actions, suits, proceedings, civil or Constitution, all executive officers of the Territory of criminal liabilities, prosecutions, judgments, sentences, Hawaii or any political subdivision thereof and all judicial orders, decrees, appeals, causes of action, contracts, officers who may be in office at the time of the admission claims, demands, title and rights shall continue unaffected of this State into the Union shall continue to exercise and notwithstanding the taking effect of this Constitution, ex discharge the powers and duties of their respective offices cept that the State shall be the legal successor to the until their successors shall have qualified in accordance Territory of Hawaii in respect thereof, and may be main with this Constitution or the laws enacted pursuant thereto. tained, enforced or prosecuted, as the case may be, be DOWSON: Second the motion. fore the appropriate or corresponding tribunals or agencies of or under the State or of the United States, in the name CHAIRMAN: It has been moved and seconded that Section of the State, political subdivision, person or other party 11 of Committee Proposal No. 23 be amended in the form in entitled to do so, in all respects as fully as could have which it appears in Section 3 of the form circulated. Any been done prior to the taking effect of this Constitution. discussion? SHIMAMURA: Section 3 in amended form does not change CHAIRMAN: Do I hear a second to the motion? the substance of Section 11, but merely incorporates the ASHFORD: The amendment should be to substitute Sec same matter in somewhat different language. tion 2 as appears on the desks of the members of the Com CHAIRMAN: All those in favor of the motion to amend mittee of the Whole for Sections 2 to 10 of the original com Section 11 please say “aye.” Opposed, “no.” Motion is mittee proposal. carried. CHAIRMAN: Do I hear a second to that? CROSSLEY: I move the adoption of Section 11 as amended. WOOLAWAY: I’ll second that motion. YAMAMOTO: I second the motion. CHAIRMAN: It has been moved and seconded to amend CHAIRMAN: It has been moved and seconded that Section Sections 2 to 10 inclusive by substituting for those sections 11 be adopted as amended. the Section 2 in the form circulated. Is there any discussion on this? ANTHONY: Shouldn’t that be, Section 11 be renumbered Section 3 and as renumbered and amended be adopted? SHIMAMURA: I should like to add a word to what Miss CROSSLEY: Correct. Ashford has said. The committee felt that Sections 2 to 10 as originally proposed covered adequately, fully and suffI CHAIRMAN: Correct. The Chair stands corrected. All ciently the subject matters of those sections. I personally those in favor of the motion, please say “aye.” Opposed, feel that the amendment has merely one merit, one improve “no.” Motion is carried. ment, and that is that it’s been abbreviated and considerably. SRIMAMURA: At this time I move for the adoption of But I feel that it has been overly abridged and overly abbre Section 12 of Proposal No. 23. viated with the result that certain sections of it are ambig uous and uncertain. But as Delegate Ashford has stated, if DELEGATE: I second the motion. it is the sense of this committee that it be incorporated in CHAIRMAN: It has been moved and seconded that Section this report, that Sections 2 to 10 are identical as originally 12 of Committee Proposal No. 23 be adopted. proposed in meaning, I have no objection. I may add that the subcommittee that worked on this matter did not attempt SHIMAMURA: It is the feeling of the members who to add one matter more than was originally incorporated in worked on this matter that Section 12 should be deleted, Proposal No. 25 [sic). It was only attempted to assimilate adequate provision having been made in Section 2 as amended. the original sections proposed into this Section 2. Therefore, I move for the deletion of Section 12. CHAIRMAN: Is there any more discussion? Are you CHAIRMAN: Do I hear a second? ready for the question? All those in favor of the motion BRYAN: Second the motion. to amend please say “aye.” Opposed, “no.” The motion carries. CHAIRMAN: It has been moved and seconded that Section 12 be deleted. All those in favor of the motion to delete ASHFORD: May I ask that there be included in the re Section 12, please say “aye.” Opposed, “no.” The motion port of this committee the conclusion of the committee that carries. Sections 2 to 10 are fully covered by Section 2 as now adopted. SHIMAMURA: I move for the adoption of Section 13 of CHAIRMAN: If there is no objection, suggestion will be Committee Proposal No. 23. incorporated in the committee report. DELEGATE: Second the motion. WIRTZ: I’d like to amend that suggestion, “among other things that Sections 2 to 10 are included,” because I think CHAIRMAN: It has been moved and seconded that Section the objection originally raised was that we wanted a bigger 13 of Committee Proposal No. 23 be adopted. bread basket. ROBERTS: I have an amendment to propose to Section 13. CHAIRMAN: Committee report will so include. CHAIRMAN: Delegate Roberts, would you - - Are you SHIMAMURA: I move to amend, rather I move to adopt rising to a point of order, President King? Section 11 of Committee Proposal No. 23. KING: Yes. I’d like to ask if the chairman has an amend DELEGATE: Second it. ment first to the section - - proposed section. 828 ORDINANCES AND CONTINUITY OF LAW CHAIRMAN: That’s what the Chair intended to ask the - - ROBERTS: I think that amendment is out of place. ROBERTS: As far as I know there has been - - is no CHAIRMAN: There is no second to the amendment. amendment by the committee. TAVARES: I was the strongest supporter of this section CHAIRMAN: Delegate Roberts, would you hold your and I believe I was the one responsible for getting it in amendment off for a few minutes until we hear from Delegate originally. It was shown to me in the committee, informal Shimamura? committee, that since we were providing for a mandatory ROBERTS: I’ll hold it. special session to be called immediately after we became a State, the legislature could act very soon. It would take SHIMAMURA: There is no amendment to Section 13. several years for the commission to act anyhow. Therefore, ROBERTS: That was my thought. I agreed that I would withdraw my support of the entire section and agree to it going out entirely. That’s why the ANTHONY: I move that it be deleted. motion is going to be made to delete it, leave it to the legis ROBERTS: I rose and I was recognized by the Chair. I lature. yielded for a question. I believe that the motion to delete is ROBERTS: I believe that the commission is still in order. out of order until I’ve put my amendment. No special session of the legislature which meets ten days CHAIRMAN: That is correct. Delegate Roberts has the after is going to be in a position to revise and to amend all floor. of the laws to conform to the Constitution. A commission is needed and desirable. I’m not speaking against that. ROBERTS: Section 13 provides for the appointment of a I think it ought to be done. The only point I make is that commission dealing with revision of existing laws to conform laws are written for people, not for lawyers. It seems to with the Constitution which we adopt. At the time this sec me that it is perfectly proper that the people who are tion previously came up, I moved that at least one of the governed by these laws understand them; and in order to individuals appointed to that commission should be a layman. understand them, it seems to me that layman ought to know It was suggested on the floor, it would more properly be and ought to have some understanding of them and ought to put in the form that no more than four attorneys shall be see to it that the people understand them as well. appointed to that revision commission. I will, therefore, move that no more than four attorneys be on that revision HEEN: Mr. Chairman. It seems to me that - - commission of five. ROBERTS: Mr. Chairman, I haven’t finished. SILVA: Second the motion. CHAIRMAN: Delegate Roberts has the floor. CHAIRMAN: It has been moved and seconded to amend KING: Mr. Chairman. Section 13 by inserting this sentence, that no more than four attorneys be on the commission. CHAIRMAN: Delegate Roberts has the floor. WIRTZ: I have a question to ask the movant. Simply this. ROBERTS: Thank you, Mr. Chairman. Was this amendment proposed to the committee that was ap I believe that the point has very well been presented that pointed by the Chair to consider the question of these pro lawyers serve a useful function, most of the time. I believe posals? that lawyers have a tremendous amount to contribute to the orderly function of government. But there is one respon CHAIRMAN: Did you hear the question, Delegate Roberts? sibility which it seems to me they are short of, and that is ROBERTS: I don’t think I’m in a position to answer it. a realization that the operation of laws and their proper I know that there was no change proposed by the subcommittee. functioning depends on a full and complete understanding by people, normal people, by people who are not generally WIRTZ: As I understood it, the chairman of this commit accustomed to dealing with detailed and complicated statutes. tee asked everybody who was interested to attend the meeting It seems to me that lawyers ought to welcome the opportunity of the subcommittee of Committee of the Whole that was ap to work with laymen and to see to it that the laws are proper pointed by the Chair. ly understood and sold to the people. I am at a loss to under CHAIRMAN: That is right. stand the attitude of some attorneys that the laws belong to them. These aren’t their laws. They are laws belonging to WIRTZ: I’m simply asking the question whether this people and governing them. It seems to me that they ought amendment was proposed and considered by this subcommit to welcome the opportunity to have some laymen serve with tee that met all day long in Room No. 2. them, though the task may be extremely difficult and perhaps CHAIRMAN: Deregate Shimamura, could you? undesirable from the point of view of a layman. SHIMAMURA: The answer is no. BRYAN: I’d like to ask several points of information. One is, did the Chair rule that amendment of the present ROBERTS: May I speak to that? I noted in that question motion made by Dr. Roberts, to the effect that the section an implication of criticism. It may well be that the speaker be deleted, would be out of order? of the amendment has been negligent in his duty. I under stood the function of this subcommittee was to try to bring CHAIRMAN: No, I think that is in order. together the many sections which could be combined. I BRYAN: I feel that if the motion to delete carried, the did not think it was the intention of setting up that committee present discussion regarding lawyers and laymen would be to have the movers of amendments to go in there to put them more or less academic. Therefore, I move that we delete in. I thought the amendments were perfectly proper on the the section or I amend the motion to read that we delete floor. This is not a question of drafting, it’s not a matter of the section. style, it’s a matter of substance and I believe the amendment is perfectly proper here. DELEGATE: I’ll second that motion. ANTHONY: This whole thing was a matter of substance CHAIRMAN: It has been moved and seconded that we delete Section 13. and we worked on it now for about six or seven hours. I’d like to move an amendment to Delegate Roberts’ motion NIELSEN: If we vote to delete this, does this mean that that no lawyers be on this committee. we’re putting a rubber stamp on everything that happened JULY 12, 1950 • Evening Session 829 in that special committee this afternoon? We can’t make to permit piecemeal modification and amendment and changes amendments from the floor? of the law without careful consideration and study by indivi duals who are assigned the specific job of dealing with the TAVARES: Not to prolong this, the point is, I was re revision of the laws. There is no indication that the legis sponsible for getting this thing in the article, and it was lature, when they meet, will create such a commission. pointed out to me that two things can happen. Either the Constitutions that have been adopted recently have very territorial legislature, if it gets a chance to meet before carefully made reference to such action and have assured we become a state, can pass a law creating such a commis that the laws would be integrated with the amendments or sion, which will then be some use and be able to do some revisions of specific constitutions. The section, it seems work beforehand; or if the legislature doesn’t get to meet to me, has a very definite place in our Constitution, and I, and do that, the territorial legislature, then we are not therefore, urge the delegates to vote against the amendment saving much time if we wait till the State legislature does to delete. it because it will take about two years to do this job, and the State legislature meeting at the first session will only ANTHONY: Delegate Roberts, speaking as to what there set up a commission. That’s the point I make, and the is indication of the legislature doing, apparently doesn’t commission will still have to work for two years. Now if realize that the legislature had continuously appointedjust we could in this Constitution, before we become a state, such commissions. This is a piece of statutory matter pure mandate such a commission, I’d still be for it because then and simple. It has no place in the Constitution. the commission could get to work right away and start work ing now and by the time we become a state have something CHAIRMAN: Ready for the question? The motion is to to offer to the State legislature. But since we can’t do that, delete Section 13. All those in favor of the motion to delete please say “aye.” Opposed, “no.” The motion carries. I think we might as well leave it to the legislature and, there fore, I agreed to the deletion. SHIMAMURA: I move at this time to add a new Section 4 KING: I wanted to call attention to the fact that Delegate to Committee Proposal No. 23, as circulated. Roberts’ amendment was quite in order. Section 13 was be SECTION 4. All acts of the legislature of the Terri fore the Convention. No motion to delete had been made. tory of Hawaii authorizing the issuance of general obliga There is no proposed amendment stated in this four page tion bonds by the Territory of Hawaii or its political sub sheet of amendment, so I think that Delegate Roberts had divisions are hereby approved, subject however to amend every right and the Chair ruled correctly to recognize his ment or repeal by the legislature, and such bonds may be amendment. Now the motion to delete is going to be made. issued by the State and its political subdivisions pursuant Perhaps we should vote on that first. Nevertheless, if the to said acts. Whenever in said acts the approval of the motion to delete fails, then I certainly would like to support President or of the Congress is required, the approval Delegate Roberts’ motion. When this was pending originally, of the governor shall suffice. our Proposal No. 23, Delegate Roberts made that point and DELEGATE: I second the motion. his amendment was discussed on the floor, then the motion to defer action was accepted. So that his proposed amend CHAIRMAN: It has been moved and seconded to amend ment is certainly in order unless it’s superseded by a motion Committee Proposal No. 23, by adding Section 4, in the to delete. form circulated. Is there any discussion? I would, however, like to call attention to one more fact. TAVARES: I am sorry that after having worked with the We have pending, perhaps in the very next legislature, an committee and been responsible for inserting the words other commission to revise the laws. Our present Revised “general obligation” in lines two and three, I have now lost Laws of the Territory of Hawaii are dated 1945. If I recollect heart and believe that it was a mistake, and we ought to correctly, they are revised every five years. Is that correct? take the words “general obligation” out because it casts an May I ask one of these attorneys. Every ten years? Well implied doubt on other bond acts that are not general obliga then, that point doesn’t pertain. But, in any case, certainly tion bonds. It’s been pointed out to me that it might cast if the motion to delete fails, the motion offered by Delegate doubt on our revenue bond acts, and therefore, I move to Roberts is in order. delete the words “general obligation” in lines two and three, WIRT Z: I don’t want anybody to construe my question or with apologies to the other members of this committee. my remarks as intending to rule Delegate Roberts out of SHIMAMURA: I second the motion. order nor to carry the implication that this is a rubber stamp Convention. I address the question solely on this premise, CHAIRMAN: It has been moved and seconded to further that in an effort to save time this special committee was amend Section 4 by deleting the words “general obligation” formulated and sat and worked all day long, and that was in lines two and three of Section 4. Is there any further the only reason I asked the question whether that amendment discussion? had been suggested to this committee for their consideration. SHIMAMURA: May I lust briefly point out that this Sec WOOLAWAY: There are two motions before the assembly. tion 4 substantially incorporates the suggested alternative, One is to amend, the other is to delete, and I’m rising on a amendment 14, which was previously circulated. point of information. Does the motion to delete carry pre BRYAN: I think if the chairman of the committee would cedence over motion to amend? accept this amendment, we wouldn’t have to vote on it. CHAIRMAN: The motion to delete will be put first. CHAIRMAN: Would the chairman of the committee accept ROBERTS: I’d like to speak in opposition to the amend the amendment made by Delegate Tavares? ment to delete. It seems to me that the purpose of this sec tion when originally introduced, regardless of who introduced SHIMAMURA: I do. it, that the purpose of this section is still valid, and I believe CHAIRMAN: If that is the case, there is only one amend that it ought to remain in the Constitution. If we make no ment before us. That is Section 4. Are you ready for the provision for a commission to examine carefully over a question? New Section 4. Ready for the question? All those period of a number of years existing laws and assuring in favor of amending Committee Proposal No. 23 by adding that those existing laws are examined in the light of the a new Section 4 in the form circulated, please say “aye.” Constitution, it seems to me that we will have an opportunity Opposed, “no.” The motion carries. / 830 ORDINANCES AND CONTINUITY OF LAW SHIMAMURA: I now move that a new Section 5 be added FUKUSHIMA: I understand that. The article on executive to Proposal No. 23, and i so move. - powers and functions states that the lieutenant governor shall SECTION 5. Unless otherwise provided by law, the perform such duties as may be prescribed by law. Now this lieutenant governor shall exercise and discharge the Section 5, as I get it, is merely to take care of the first elec powers and duties of the secretary of the Territory of tion, certification of the first election, does it not? Hawaii. ASHFORD: I think the purpose of Section 5 is not to take DELEGATE: I second the motion. care of the first election solely. That has been taken care of in earlier matters. That is, the first election is handled CHAIRMAN: It has been moved and seconded that Com by the secretary of the territory, but the certification of the mittee Proposal No. 23 be amended by adding a new Section election of the senators and representatives are to be by the 5 in the form circulated. Are you ready - - Is there any newly elected governor and secretary of state, and as we discussion? have no secretary of state, the lieutenant governor is made SHIMAMURA: This section was inserted to take care of ex officio secretary of stake. But this provision is to trans the situation where in our Constitution for the State of Hawaii, fer those duties and functions which now exist in the secretary we have provided for a lieutenant governor, but have not of the territory, the largest, the most important of which, provided for his functions or his duties or powers; whereas, in my opinion, are those of caring for the elections. In other in our present territorial form of government, we have a words, if this transfer were not made, if we became a state, secretary of state, so called. and before those functions were committed to the lieutenant governor, if they were not so committed here, and we had HOLROYDE: I have a question of the committee. Doesn’t for any reason to have an immediate special election, there this Section 5, if adopted, make the second paragraph of would be nobody to look after it. Section 5 in No. 25 unnecessary? No? FUKUSHIMA: If what the delegate just said is the intent SHIMAMURA: I didn’t quite hear the last statement. of Section 5, I believe it’s a proper section. CHAIRMAN: Delegate Holroyde. ANTHONY: Well, if Delegate Fukushima will look at Committee Print 23, seventh line, I think he’ll find his HOLROYDE: O.K., never mind. answer. FUKUSHIMA: Why is that the secretary of the Territory CHAIRMAN: Are you ready for the question? of Hawaii? GILLILAND: When Hawaii becomes a state, we won’t have SHIMAMURA: At present, we have a Secretary of Hawaii any more Territory of Hawaii or secretary of the territory, who is equivalent to the lieutenant governor in the mainland so reading this Section 5, I take it, reads as if we shall states, in several states that have the lieutenant governor; also have a secretary of the Territory of Hawaii and a for example, in Massachusetts. Now, as I said, there is no lieutenant governor at the same time. provision made in our Constitution as to the powers, duties and functions of the lieutenant governor. CHAIRMAN: Delegate Gilliland, that is the very point Delegate Bryan just spoke to. WIRTZ: A question of the movant. Does the scope of the duties of secretary of the Territory of Hawaii include being BRYAN: I spoke to the chairman of the committee a president of the Senate? minute ago, and he says that he believes that can be taken care of in the Committee on Style. SHIMAMURA: No. ASHFORD: I think so. I think, for instance, if the HEEN: As you know, under the provisions relating to language were used, “shall succeed to the powers and the first election, that first election will take place before duties,” it would be taken care of. Hawaii becomes a state. The secretary of the territory had various duties in connection with elections. Therefore, TAVARES: May I add a further explanation? As I see someone will have to perform that duty. it, this provision, “unless otherwise provided by law,” was purposely made very broad so that even before we become CHAIRMAN: Delegate Bryan, did you care to speak? a state, if the territorial legislature sees fit to pass a law BRYAN: I’d like to make a note. Perhaps the Style Com saying that the duties of the secretary of the territory shall mittee can take care of it. I think it should read, “the be exercised by some other officer than the lieutenant powers and the duties heretofore delegated to the secretary governor when we become a state, that will then supersede of the Territory.” this provision. But if they don’t do that, we have no provi sion in the Constitution to take care of the secretary’s duties, SHIMAMURA: I’m sorry, I didn’t quite get that. then this will take care of it. But the legislature before we BRYAN: Under the Constitution, there will be no secre become a state, or the state legislature afterwards, can tary, and no duties of the Territory of Hawaii. change it to allow the lieutenant governor - - I mean to allow somebody other than the lieutenant governor to perform FUKUSHIMA: I was made to understand earlier in the those duties. In the meantime, however, to be dead sure evening that all the elections would be held together. The that the certification to Congress, and so forth, of elections governor’s election, the legislators’ elections, and also will be carried out, we have another provision, which we’ve the United States representatives and senators. I think it’s already approved, that for the purpose of certifying those all twisted around as it appears now. elections, the lieutenant governor shall be deemed secretary of state. So we’ve covered two different things there. SHIMAMURA: I didn’t quite hear the last speaker’s re marks, but I said, our Constitution provides for a lieutenant CHAIRMAN: Are you ready for the question? governor and not for a secretary of state. We have not de GILLILAND: This is double talk. Why should we have fined anywhere in our Constitution, State Constitution, the it in the Constitution? duties and the powers and functions of lieutenant governor, whereas we now have a secretary of the Territory of Hawaii CHAIRMAN: All those in favor of the motion to amend with certain defined powers and functions. Committee Proposal No. 23 by adding new Section 5 in the 831 JULY 12, 1950 • Evening Session form in which it was circulated, please say “aye.” Opposed, SHIMAMURA: This Section 7 provides that wherever there “no.” The motion carries. is any residence requirement or requirement of citizenship or any other qualification for office or otherwise, that the SHIMAMURA: At this time, I move to amend Committee period during which the candidate or the person was resid Proposal No. 23 by adding a new section numbered 6, thereto. ing in the Territory of Hawaii shall be tacked on to the period SECTION 6. The legislature shall within three years required under the statute for residence, etc. from the time the first legislature convenes, allocate and TAVARES: For further purposes of the record, this would group the executive and administrative offices, depart include, for instance, such provisions as that in order to ments and instrumentalities of the State government and be appointed a judge, a person must be admitted to the bar their respective functions, powers and duties, among and of the State for say either five or ten years, I forget which. within the principal departments pursuant to Article Now that would mean, under this, that would be a status, U such allocation and grouping shall not have been and the status under the territory of having been admitted completed within such period, the governor, within one to the bar for say six years could be added to four years year thereafter, by executive order, shall make such more under the state; or if you have ten years under the allocation and grouping. territory already, why it would count as admission to the DELEGATE: Second the motion. bar of the State - - supreme court for that period. That would be included among other things under this section. CHAIRMAN: It has been moved and seconded to amend Committee Proposal No. 23 by adding a new Section 6 in the CHAIRMAN: You ready for the question? form in which it was circulated. Any discussion? ASHFORD: May I say something that I think should go into the report on this section? This starts out very simply, SHIMAMURA: This section substantially follows the and was drafted and redrafted to meet the intent of the proposed amendment to this proposal numbered 16, which committee and what we felt would be the intent of the Com was circulated to the delegates on July 10, day before yester mittee of the Whole. It is directed primarily to time; that day. This section provides for the consolidation, grouping is, time of residence, time of status and time of citizenship and allocation of departments, which was discussed at the required as qualification. The Style Committee may be re time the matter of the, I believe, either the executive powers drafting it to emphasize that element of time and I think or the legislative article, the executive powers and functions, the element of time might well be mentioned in the report. yes, was discussed. CHAIRMAN: Are you ready for the question? CHAIRMAN: Are you ready for the question? All those in favor of the motion to amend Committee Proposal No. 23 BRYAN: One more bugaboo. Shouldn’t that also carry by adding a new Section 6 please say “aye.” Opposed, “no.” the words “until otherwise provided by the legislature,” The motion carries. then? ASHFORD: No, I think not, because, for example, we SHIMAMURA: I move to amend the Committee Proposal have fixed certain requirements under the Constitution. The No. 23 by adding thereto a new section numbered 7. classic example, of course, is the period of ten years mem bership of the bar. Now the legislature can’t change that. SECTION 7. Requirements as to residence, citizen But if it referred only to membership of the bar of the State, ship or other status or qualifications in or under the we couldn’t have any judges. authority of the State prescribed by this Constitution shall be satisfied pro tanto by corresponding residence, CHAIRMAN: Are you ready for the question? All those citizenship or other status or qualifications in or under in favor of the motion to amend Committee Proposal No. 23 the authority of the Territory. by adding a new Section 7, the form in which it was circu lated, please say “aye.” Opposed, “no.” The motion DELEGATE: Second the motion. carries. TAVARES: Before we go into that, I think - - may I ask SHIMAMURA: I move to amend Committee Proposal unanimous consent. The Committee of the Whole report No. 23 by adding thereto a new section, Section 8. should show that notwithstanding, in case the legislature SECTION 8. Until the legislature shall otherwise slips up on some of this apportioning under Section 6 within provide under Article of this Constitution, the the three year period and the governor does make the chief justice, justices of the supreme court and judges apportionment, notwithstanding that, the legislature of of the circuit courts shall receive as compensation for course, can always change it. That’s understood. We agreed their services the sums of $17,500, $17, 000 and in the committee that that was implied under the legislative powers. $15,000 per annum, respectively. DELEGATE: I second the motion. CHAIRMAN: If there is no objection, the statement or the suggestion made by Delegate Tavares will be inserted in the CHAIRMAN: It has been moved and seconded that Com Committee of the Whole report. mittee Proposal No. 23 be amended by adding a new Section 8 in the form in which it was circulated. Is there any dis BRYAN: May I also ask the unanimous consent to ask cussion? one question on that section which was passed. These sec tions which go in under schedule or ordinance, can the ANTHONY: This is a section that is absolutely necessary legislature amend them? to incorporate in the schedule for this reason. U we didn’t have this in the schedule, if we did not fix the salaries of CHAIRMAN: Will somebody please answer the question? judges in the judiciary articles, and if we did not have this Delegate Ashford. in the schedule, our judges would not get paid for the simple ASHFORD: I think the answer is clearly no, but this is, reason that their salaries come from appropriations from for example, this is not a — - this requires certain things to the federal government, like the salary of the governor be done, but after they are done, there is nothing to prevent and the salary of the secretary of the territory. The only the legislature, for example, to make a reallocation, but it thing that is contributed to the salary is something like must be, as I see it, within that number of departments which $250 a month. So it is absolutely essential that we have is required by the Constitution. this in the schedule to preserve the salaries of our judges. 832 ORDINANCES AND CONTINUITY OF LAW I invite the body’s attention to the fact that it is wholly within FUKUSHIMA: In line with that, I have an amendment to the legislative discretion to alter or amend the amount of offer which reads: the compensation when the legislature meets. Until the legislature shall otherwise provide, the chief NIELSEN: I’d like to ask a question. Why those salaries? justice, justices of the supreme court, circuit judges of Are those the present salaries of the judges in the different the first judicial circuits, and circuit judges of other courts? judicial circuits shall receive as compensation for their CHAIRMAN: Delegate Anthony, will you please answer services the sums of $17,500, $17,000, $15,000, and the question? $12, 500 per annum respectively. ANTHONY: What was that question again? I move the adoption of the amendment. NIELSEN: Are the salaries mentioned in Section 8 the DELEGATE: I second the motion. present salaries of these different justices? CHAIRMAN: It has been moved and seconded to amend ANTHONY: No, it is not. Section 8. Could you please read that amendment over, NIELSEN: How much smaller are they? Delegate Fukushima, slowly? ANTHONY: They are larger. FUKUSHUVIA: NIELSEN: How much larger then? Until the legislature shall otherwise provide, the chief justice, justices of the supreme court, circuit judges of ANTHONY: The present salary of the chief justice is the first judicial circuits, and circuit judges of other $12, 500, and the present salary of circuit judges is $10, 000. judicial circuits shall receive as compensation for their TAVARES: Mr. Chairman. services the sums of $17,500, $17,000, $15,000, and $12, 500 per annum respectively. CHAIRMAN: Just a second, Mr. Tavares. Are you through, Delegate Nielsen? CROSSLEY: Will the last speaker yield for a question. ANTHONY: Twenty-five hundred of that is contributed CHAIRMAN: Will you state your question? out of the territorial funds; $10,500 of the chief justice’s salary is payable by act of Congress. Now what happened CROSSLEY: Does that amendment mean that the circuit judges on the outside islands, the neighbor islands, would is this. When there was a general increase in judicial get the lower figure? Is that what the amendment is? salaries by the Congress of the United States — in which the justices of the Supreme Court of the United States got FUKUSHIMA: That is the amendment; that is the intent $25, 000; justices of the Circuit Courts of Appeals, of the amendment. $17, 500; and judges of the Federal District Courts, that is the trial courts, got $15,000—our own judges were com CROSSLEY: I’d like to speak to the amendment. I’m pletely left out in the cold. In other words, they took in opposed to that amendment because the qualifications for the Virgin Islands and Puerto Rico, I believe, but left out office still remain the same regardless of whether he serves Hawaii. This will simply bring us, more or less, on a parity on a neighbor island or here, and I think that it’s pure dis with the federal system. crimination against the judges on the neighbor islands, and I’d be against the amendment. NIELSEN: One other question. If we set these salaries, can the first session of the legislature change them? I ASHFORD: I would like to speak against the amendment understand these judges, some of them are elected for eight because of what has seemed to me a gross and growing in years. justice. I think all of us, particularly all of us who are members of the bar, have observed how often the judges ANTHONY: They can’t increase or decrease the parti either of the supreme court or of the first circuit bench are cular judges that are appointed, but the legislature after the absent from the bench by reason of Ulness, by reason of term, of course, can change the salaries of the judges. vacancy or some other reason. And what happens? The NIELSEN: But if they are in for a term of eight years, judges from the other circuits are summoned away from then it would be eight years before the legislature could their homes to live in Honolulu and do the work of those change the salary here. first circuit judges or the supreme court judges for a pay that is less than the circuit judges here. Now I think all of ANTHONY: Six and seven. us who know the judges of the other islands know how often NIELSEN: Six and seven. They will be - - they have been imposed upon in the last two or three years particularly. ASHFORD: May I answer that question? SILVA: I’d like to point this out to Fukushima who prob CHAIRMAN: You may. ably does not realize that in Oahu we’ve got more than one ASHFORD: I don’t think that that is quite a correct state circuit court judge. If it was true that Oahu would have just ment. I think the first legislature could fix those salaries one circuit court judge as compared with the outside islands, at anything they wanted to, they could fix them at $8,000 a then I’d probably say maybe the circuit court judge down here year if they wanted to, but that $8, 000 fixing would not apply does a little more work. But they have about five or six to the judges who had been appointed by the first governor circuit court judges on Oahu as compared with the outside before the legislature passed such legislation. If one of islands of one judge apiece. Now, I’ve seen the reports—the those justices or judges resigned, that act fixing a salary reports come before the legislature—and I can assure you would instantly apply to his successor. that the circuit judge of the circuit of the County of Hawaii, known as the third circuit, does about twice as much work FUKUSHIMA: I believe the statement made by Delegate as the individual judge in Honolulu does, and I say it is un Anthony is partly correct. I believe that circuit judges in fair. I think that in all probability that the outside circuit the outlying islands get a little less, don’t they? judges should receive more compensation than those of TAVARES: Yes, I think they get only $7, 000 or at least Oahu for the work done. ~t’s something like that. It’s less than the circuit judges in TAVARES: Leaving aside the question of discrimination the first circuit. against the outer islands, let’s look at it from a more realis 833 JULY 12, 1950- • Evening Session tic standpoint. Every circuit judge presides in cases mean FUKUSHIMA: I think that whether you hang by a judge ing life and death to somebody, and you want the best man who is getting paid $15, 000 or 12, 500 feels the same. I you can get to preside over cases that are going to help de therefore at this time withdraw my amendment. cide whether a man shall hang or not, and I say that a man PORTEUS: Insofar as the compensation of judges is con who has that responsibility should be the best man you can cerned, I don’t believe that we have as yet correct informa get for the money, and I don’t like to see you hold down the tion. My recollection is that under the Organic Act, the outer islands to a $12,000 man to put a man to death and chief justice of the supreme court of the Territory of Hawaii pay $15,000 to a man in Honolulu to preside over the same is entitled to a salary of $10, 500. I think the justices are kind of case. They may do more cases, but the responsibility entitled to salaries of $10, 000. I think the judges of the is there. circuit courts of this island are entitled to $7, 500, and the Under this Constitution, as it is under our present laws, judges of the circuit courts of the other islands are entitled the outer island circuit judges can be assigned to duty on to $7, 000— $7, 500 on this island and 7,000 on the other is Oahu, and they are assigned to do that. They can be kept lands. busy and made to earn every bit of their salary, and they Now then, to go back to what the legislature has done. are being made to do it now and have been in the past. The legislature recognized that not sufficient compensation Under those circumstances, I think it most unfair, first, was being paid a number of officers, including the office to the people who are going to come before those judges, to of the governor, the judges, chief justice and the judges of try to put inferior men in their place—and they haven’t been the supreme court, the judges of the circuit courts, and the inferior, thank God, in the past—but if you’re going to make secretary. I think you will find, if you look at the Session a discrimination like that, you have the implication that a Laws of 1945, that you will find that an act on page 358, the man in the outer islands is not worth quite as much as a man particular act being Act 261, Series E, 216, in subsection in the first circuit; and, secondly, as I say, he’s going to 3, it is provided that the treasurer of the Territory “is earn his money plenty. authorized and directed to pay to the several judges of the Now let me show you the one - - reemphasize again the supreme court and to the several judges of the circuit courts disparity between the federal salaries today and our salaries. upon warrants. . . the sum of $250 a month as additional In the courts of Alaska, the district court judges appointed compensation for their services.” That makes a total of by the President do the work of our circuit courts. They are $3000 a year. Therefore, the chief justice of the supreme not only federal courts, they do circuit court work, too, so court of the Territory of Hawaii is entitled to $13, 500, the they correspond to our circuit judges here, and they get other judges - - If the Organic Act provides for $10, 500, 15, 000 a year. Down here in Honolulu, these U.S. district and if the legislature provides for $250 a month, $250 a court judges, and I mean no detriment to them, don’t want month according to my arithmetic is $3000 a year, and to distract from them, who do the work for the United States $3000 a year plus $10, 500, in my arithmetic is $13, 500 that corresponds to the work our circuit courts do for the despite the gentleman from the fourth district who told me states, are getting 15, 000 a year today. They are certainly “no” and still shnkes his head. Oh, he shook his head up not doing more important work than our supreme court. Our and down now. Well, that’s much better. supreme court justices ought to be paid more than a U.S. Now then, quite apart from the governor and his per district court judge, because our supreme court, after we quisites, which the attorney who arose seems much concerned become a state, is the court of last resort in murder cases about, I’d like to go on with my own speech, if I may. That of life and death, because from those cases you can only is that I want to find out whether under this amendment, when appeal to the United States Supreme Court if there is a I agree that a designation of compensation is fair enough, federal question. Today, because we are a territory, you since the compensation is set by the Organic Act—I thought have an automatic appeal to the ninth circuit court and then we continued the Organic Act until we’re able to repeal or a chance to get up to the United States Supreme Court from change some of the sections —but quite apart from that, there there, but, after we become a state, you will not appeal to is the question of whether or not the judges will receive any the ninth circuit court of appeals, you will only go up to the thing more than $250 a month when we become a state. Now United States Supreme Court if there is a federal question, that’s a gap that should be filled in. I agree, but I do not and many, many of those cases do not involve federal ques agree that we should specify amounts in this schedule so tions. Therefore, as I say, the amount should be - - we that when the first state legislature meets, and the governor shouldn’t object to that amount. It should be higher than the says “Senate, let us proceed with the appointment of the federal district judges are receiving today. chief justice of the supreme court of the Territory and the justices of that court, and proceed with the appointmentof AKAU: While comparisons may be odious, the judges and justices of the circuit courts,” that we then find, those that the lawyers consider themselves in a category up here. I’d are in the legislature, that for the next six or seven years, like to say that the teachers who go to the rural section depending on the term, that the legislature is powerless to and go to the other islands are trained as well as our teachers decrease the compensation from $17,500 or $17, 000. It’s who teach here in the city, and they receive the same salary, fair enough to write in to this schedule what the compensation and that is a unique aspect of Honolulu and the Territory of will be until otherwise changed by the legislature, but it is Hawaii. Now I think that the same thing might prevail as not right to tie the hands of the legislature if you intend far as the judges are concerned, although I know the lawyers really to permit the legislature to fit or set a fair schedule are probably turning up their noses. of compensation. Now, I want to know whether under this, as suggested, RICHARDS: I have a couple of suggestions here. This if the state legislature fails to pass a salary bill for judges $17, 500, $17, 000, $15, 000, the governor is only going to before the judges are appointed, whether those judges then get $18,000. Now we just have listened to the last appeal sit for the next six and seven years, receiving the compen for a man’s life as being a judge. I am afraid that that is sation designated here, or do they get the compensation pro incorrect. The governor is the last appeal, and now there vided by law of the state legislature? If they are to get the is only $500 difference. There is something here that compensation as designated here, then we had better know stinks as far as I’m concerned, as far as this particular that fact and debate whether or not we wish to set for the salary scale is concerned. If you want to put down this first six or seven years compensation in the amounts as kind of a salary here, the governor should get $25, 000 and specified in this amendment. I think that we are entitled to the lieutenant governor $20,000, instead of 18 and 12. an answer as to whether or not in that first six and seven 834 ORDINANCES AND CONTINUITY OF LAW years, the legislature has the right to change these amounts. ASHFORD: Mr. Chairman, have I the floor? If it has the right to change them, I think we could safely go ahead, but if it has not, I’m against this amendment. CHAIRMAN: Delegate Ashford, will you please make your suggestion? TAVARES: In order to make that clear—I think that’s reasonable—I move an amendment to Section 8 as proposed ASHFORD: I make - - This is the suggestion I make for by adding - - by changing the period to a comma at the end - the amendment: “which shall, notwithstanding the provisions thereof and adding the following words: “which may be of Article blank of this Constitution”—and that would be the initially increased or decreased by the legislature during article on judiciary permitting the increase or decrease of the terms of office of the initial appointees to said office, salary during term of office — “which shall, notwithstanding notwithstanding the provisions of Article blank,” meaning the provisions of Article blank of this Constitution, be sub the judiciary article. ject to increase or diminution by the first session of the legislature of the State.” FONG: I’dlike to make an amendment to the amendment proposed by Delegate Fukushima to read as follows - - TAVARES: I accept the amendment. CHAIRMAN: The amendment made by Delegate Fukushi CHAIRMAN: May we have it read slowly? ma has been withdrawn, and the amendment proposed by ASHFORD: Changing the period at the end of - - after Delegate Tavares has as yet not been seconded. “respectively” to a comma and adding the following words: “which shall, notwithstanding the provisions of Article DELEGATE: I second the motion. blank of this Constitution, be subject to increase or decrease CHAIRMAN: It has been moved and seconded - - - - diminution”—but decrease is better—”subject to increase or decrease by the first session of the legislature of the WOOLAWAY: May we have that amendment read again State.” before we - - TAVARES: I second the amendment if that is - - CHAIRMAN: We would like to have Delegate Tavares’ amendment stated clearly. Will you please read it slowly? FONG: Mr. Chairman. TAVARES: Change the period to a comma at the end of CHAIRMAN: For purposes of clarity, the Chairman would the section, and add thereafter the following words: “which restate the motion, then we’ll recognize Delegate Fong. may be initially increased or decreased”—it’s been suggested Will that be 0. K? I say “diminished.” I will change that word “decreased” to FONG: It hasn’t been seconded yet, has it? “diminished” and read it again. “Which may be initially increased or diminished by the legislature during the terms CHAIRMAN: It has been moved and seconded - - of office of the initial appointees to said offices.” FONG: Has not been seconded. I understand Delegate Ashlord has a suggestion. I’ll yield to Delegate Ashford. CHAIRMAN: Has been seconded. ASHFORD: My suggestion of the amendment is as follows: FONG: Under those circumstances, you will preclude “which shall - -“ me from making an amendment, won’t you? KAUHANE: I rise to a point of order. CHAIRMAN: The Chair will allow - - CHAIRMAN: What is your point of order? FONG: I rose specifically to intervene the second from jumping up. KAUHANE: A delegate behind here was trying to get recognized so that he could insert an amendment. The dele CHAIRMAN: The Chair still will allow Delegate Fong gate just got through reading his amendment - - to amend if he desires. Would you state the reasons why you made this point of order, in effect? CHAIRMAN: The Chair understands that - - FONG: Due to the fact that if I were not recognized, KAUHANE: - - and then he yielded his position to another judging from previous rulings, I would not be able to make delegate to fill in something. an amendment to an amendment. CHAIRMAN: The Chair understands - - CHAIRMAN: Because of the peculiar situation we are in, KAUHANE: There is nothing before this house so that he the Chair, I think with the consent of the whole committee, can yield such a position. will allow another amendment by Delegate Fong. If there is no other objection, Delegate Fong may make his amend CHAIRMAN: The Chair understands that Delegate Ash- ment. ford is only attempting to perfect Delegate Tavares’ amend ment, and that Delegate Fong has an amendment which is FONG: The amendment shall read as follows: different in substance from that proposed by Delegate Tavares. SECTION 8. Until the legislature shall otherwise Therefore, I believe Delegate Ashford is in order. provide under Article of this Constitution, the chief KAUHANE: But, Mr. Chairman, I believe when you justice, justices of the supreme court and judges of the asked the delegate from the fourth district to restate his circuit courts shall receive the same total compensation amendment, and that’s what he was supposed to do, restate received by them on a date of the admission to statehood his amendment, which - - of the Territory of Hawaii. CHAIRMAN: That’s right. CHAIRMAN: Is there a second to the motion? KAUHANE: - - he did restate his amendments. Certain KAUHANE: Second the motion. ly a delegate who has asked recognition, was once recognized CHAIRMAN: Now, Delegate Fong, will you restate your by you, and you in turn allow the delegate to read his amend motion slowly? ment into the records here, which he has done, he certainly cannot yield a position to someone else. FONG: CHAIRMAN: The Chair will rule that some informality Until the legislature shall otherwise provide under will be allowed. Article...........of this Constitution, the chief justice, justices 835 JULY 12, 1950 • Evening Session of the supreme court and judges of the circuit courts shall The amendment that Delegate Fong is offering here will per receive the same total compensation received by them on petuate the gross injustice that presently exists between a date of the admission to statehood of the Territory of your judges on the outside islands and the judges of the Hawaii. circuit courts in Honolulu, for which there is no rhyme or reason, and I say we ought to put an end to it right here. H. RICE: It seems to me that this is ridiculous. If we’re going to - - This Constitution, if H. R. 49 passes, is going RICHARDS: There seems to be some slight misunder back to have the Congress review it, and here the people, standing regarding my remarks of a few moments ago it says in their own Constitution, they are satisfied with the regarding the payment of judges. I am all in favor of seeing salaries they are getting at the present time, even though that they are adequately compensated, but I do not feel that we have tried to get our justices raised here in the Terri the executive branch of the government should be discrimi tory. To me, if we send something back, we want to show nated against. I feel that this particular amendment does them that they haven’t been paid adequately, and we should discriminate against the executive branch of the government give them adequate - - we should write in the Constitution because with a salary of 18, 000 for the governor, 12, 000 for the adequate compensation for those judges. the lieutenant governor, and your department heads are going to have to get less than your associate justices and ROBERTS: I’d like to speak in opposition to that amend your judges of the circuit courts, because of the way the ment. It seems to me that the opportunity we have here to laws work as far as the head of the department getting so recognize that our justices do serve a very valuable function much and getting so much on dowa. If this goes through, in the community, and we ought to get the best kind of justice I’m perfectly wifling to vote for it, but I want to see the and we ought to attract the best people to those jobs. One executive department’s salaries reconsidered. of the difficulties in most of the states has been that the justices have been underpaid, and we have not been able CHAIRMAN: Delegate Kauhane, did you - - to get the best qualified and the most competent individuals ANTHONY: Will the last speaker - - to serve in our courts. I think we ought to recognize and pay them the best salaries that we can in terms of what we KAUHANE: That’s right - - pay other officers and in terms of their funQtion to the entire ANTHONY: I wanted to explain something, Mr. Chair community. I therefore am opposed to the amendment. man, to the last speaker, if I may. I just want to - - SAKAKIHARA: I beg to differ with the delegate from the fifth district. I think in the past sessions of the legislature CHAIRMAN: You’ll be next recognized. Mr. Kauhane we petitioned to the Congress for an increase in the salaries was asking for recognition for some time. of our judges, supreme court justices, and circuit court KAUHANE: I just want to bring a word of caution to judges, including the compensation - - an increase in the com this Convention, that it’s the taxpayers who are going to pensation for the federal judges. carry the load in the increase of salaries. The salaries ANTHONY: There are two things, Mr. Chairman and that they receive today could be well carried out until the members of the Convention, that are essential to a good first session of the legislature, and whenever the taxpayer, judiciary. One is a correct system of appointment with the common man, is able to meet the increase, then only decent tenure. We’ve got that. And the other is adequate can the legislature accord the judges the increases that are compensation. Now for the last 10 or 15 years, we have now being asked. If we are going to increase the judges’ been beating our brains out at the doors of Congress trying salary so that we may have qualified and capable men, induc to get decent salaries for our judges, so that we can attract ing them because of the salaries to take the position of chief and keep the highest caliber of men on the bench. On one justice, then certainly the governor’s salary should be in occasion, I was one of a committee of the bar that wrote a creased, as mentioned by Delegate Richards, to the sum of brief and submitted it to the 79th Congress, I think it was. $25,000 and your lieutenant governor to 20, 000. So, too, We had a hearing. We pointed out in that brief that histori we can have the best man run and seek office as governor cally Hawaii, on the day we became a territory, had well- of Hawaii. We have to consider the taxpayer who is going paid judges. [Part of statement not recorded.] . . . appoint to carry the load. ment of judges. They held office, incidentally, during good CHAIRMAN: The Chair will declare a recess of 10 behavior. The chief justice at that time received $12, 500. minutes. The clerks are just worn out. Immediately upon the enactment of the Hawaiian Organic Act, his salary was cut in half. Since then, throughout the (RECESS) country, throughout the federal system, the salaries have gradually been gotten up to where there is a decent salary WIRTZ: I’d like to have the Clerk note in the record that for a judge, where a man is perfectly willing to forego the since discussion has begun on this section, Section 8, I have opportunities of private practice and seek a judicial career. been off the floor; and I wish to further note that I do not But what have they done for our judges here in Hawaii? They wish to participate in the deliberations nor the vote and I have done nothing. As a matter of fact, gentlemen, it’s a ask leave of the Chair to leave the floor because of my serious question, the validity of that $250 a month, because peculiar situation in the matter. you have a federally paid officer, and I doubt very much the CHAIRMAN: You are granted the leave you beg for. competence of the legislature to add or detract from the Delegate Lee, I believe was begging for recognition. salary of a federally paid officer. There are differences of opinion about that, but that is a question. But neverthe LEE: I wanted to raise the question, there were two less, here you have judges sitting over there in the Post amendments. Which one will the Chair put first? Office Building getting $15,000 per annum, judges right CHAIRMAN: Delegate Fong’s amendment first. across the street getting 10, 000, 7500 as augmented by the territorial legislation. LEE: I see. Well, I’d like to speak against the amend Now I think that it is only fair, it is only just that we get ment. I believe that the proposal which sets out the salaries this Constitution started off on the right foot. Let’s make and provides the legislature with power to increase and de no discrimination between judges in the outside islands and crease after their term of office is proper. I believe we’ve the judges in Honolulu. Their duties are just as Important. heard enough debate on the matter, and I believe we’re ready Let’s give them decent salaries, and the legislature can to vote on the question. I might state that my reference to thereafter do what it feels proper in the circumstances. the legislature was during the term of the judge’s appointment. 836 ORDINANCES AND CONTINUITY OF LAW HEEN: The statement made by the last speaker as to the only thing is to bring it to a head and vote the lower change by way of increase or decrease after the term - - figure or the upper figure and go on about our business. during their term of office is not correct. HEEN: I would like to point out that the governor will LEE: It’s absolutely correct. You can’t change it during receive not only $18, 000, but he will receive perquisites the term of their office. in the way of a home, and about $5, 000 a year tax-free HEEN: But under the amendment made by Delegate Tava money as allowance. As far as the lieutenant governor is res that may be changed by way of increase or decrease concerned, he will receive $12,000, but he is only in office during their term of office. as a matter of decoration only. LEE: At the first session. ANTHONY: Delegate King said there has been an awful lot of debate on this. The first mention that I’ve heard of HEEN: That’s correct. the sum of $15, 000 was by himself, and I am opposed to it. FONG: I understand Miss Ashford has a new amendment. Now what that’s going to do is to perpetuate the inequality Is that right, Miss Ashford? between federal judges and our territorial judges. There is no getting around it, the judges in the United States ASHFORD: Yes, I was having it run off so it could be District Court for Hawaii do the same kind of work, they shown to the delegates. In this amendment, as a result of are trial judges, as the circuit judges. Therefore, our the suggestions from numbers of the delegates, the amount state circuit judges ought to get the same pay. Is slightly diminished and the amendment I suggested is also Moreover, the supreme court judges are of a higher written in. grade in a hierarchy of the judiciary than the Federal Dis FONG: Under those circumstances, I withdraw my trict Court, so it is certainly reasonable and proper that amendment. they should get an increased salary over what the circuit judges get, over the $15,000, over what circuit and federal CHAIRMAN: Delegate Fong’s amendment has been with court judges get. I would like to invite the delegates’ atten drawn. Delegate Ashtord, do I understand you wanted to tion to the fact that justices in the Supreme Court of New modify your - - Jersey get the sum of $24,000 per annum, and the governor ASHFORD: Yes. May we have this deferred for a few of the State of New Jersey gets $20,000 per annum. minutes, Mr. Chairman, and go on to something else until The governor’s salary in Hawaii is only a minimum. It this amendment comes in? can be increased. The judges’ salaries in Hawaii cannot be increased during their term in office. They cannot be CHAIRMAN: Yes. diminished during their term in office, and what we’re fixing KING: The amendment being suggested by Delegate here is the initial salary. Now let’s get this thing off on the Ashford or the one that was already offered by her, and right foot. We’ve been trying to get our salary schedule I think accepted by Delegate Tavares, had some language fixed up for years. This is a chance to do it, and let’s get that would exempt this initial salary from ban on an increase started off right, and if the legislature wants to change it or decrease. Delegate Ashford is having that typed and it as soon as they meet, let them go ahead and do it. has been suggested that included in that proposed amend RICHARDS: I think the last speaker made a slight mis ment be a change in the salary rate from 17, 500, 17, 000 statement. He said that the other salaries could be changecL and 15,000 to 15,500, 15,000 and 12,500, and that would The governor’s salary cannot be increased or decreased be a minimum to start off with. Then it would be up to the during the first four years, as this Convention states. legislature to raise it if it seems desirable to do so. Therefore, the governor is frozen at 18, and the supreme TAVARES: Mr. Chairman. court justice will be - - chief justice will be at 17, 500, and KING: I haven’t yielded the floor. the supreme court justices at 17. The justices of the supreme court will remain for six years or seven years, and the CHAIRMAN: President King has the floor. chief justice will remain for seven years, and the governor TAVARES: Point of order, though. I did not accept will remain for four years, regardless of what the previous that amendment and I do not accept it. speaker said. Now, if they wish to have the governor’s salary a chance to up, the supreme court’s salary a chance KING: I didn’t say you had accepted the figures. I said to up, I’ll go along with it, but I do not feel that one branch you accepted the amendment suggested by Delegate Ashford of the government should be subservient to another. with regard to the ban on raising or lowering the scale, and that additional amount has come in and Delegate Tavares KING: While the amendment is being printed, I’d like to can do as he pleases. But I’d like to suggest that we stick reply to two points made by the two previous speakers be to a figure that’s comparable to what is being paid now, or fore Delegate Richards. In the first place, the governor’s not in excess of what we have asked Congress to pay our perquisites exist now. The difference that I was pointing territorial judges. No one seems to know exactly what the out was the differential between the governor and the chief sum was that we asked Congress to pay our judges, but the justice today is about $3000, and they are now making it assumption is that it was somewhere in the neighborhood less, say $500. There is no argument about the perquisites. of $15,000. He’s going to get those with the increase in pay as he gets Now, the ratio between 17, 500 and the governor’s pay now. The governor gets from the federal government is too low~ and at present the governor gets approximately 12, 500 and from the territorial government - - [Inaudible $16, 000 and the chief justice with territorial and federal statement made from the floor.] Not from the federal gov pay combined gets, I believe, 15, 000 or 15, 500. The ernment? Well, he gets 15, 000 from the federal govern schedule in here leaves a ratio - - a difference of only ment and a small sum from the territorial government, and $500 which seems a little bit as between the chief executive the differential between the governor and the chief justice and the chief justice. It seems to me that the sum of 15, 500, is even greater than I thought, so the argument of perquisites 15,000, and 12,500 as a minimum to start off with, with the has no point in it. legislature empowered to raise it if it sees fit to do so at its Now, the other thing. I have no particular brief about first session, might be more agreeable. this. I don’t care if it’s 17, 500 or a larger sum or a lower I’d like to call attention to the fact that we have argued sum, but there has been expressed a good deal of opposition this question already about three quarters of an hour, and to the larger sum, and I suggested this lower sum and re 837 JULY 12, 1950 • Evening Session commended it to Miss Ashford to be incorporated in her ment, which was Section 8 as circulated, and the amendment - - Delegate Tavares’ amendment reads: “Until the legisla amendment, giving the legislature the authority to raise or lower it in that first term, which the legislature will not ture shall otherwise provide under Article blank of this have with regard to the governor. And if the legislature Constitution, the chief justice, justices of the supreme court, raises it, splendid. There’s certainly no reason why I and judges of the circuit courts shall receive as compensa should protest it. The point is that if it goes in here now as tion for their services the sum of $17, 500, $17, 000 and 17, 000, it’s going to be frozen at that for seven years. That’s $15,000 per annum respectively, which shall, notwithstand the point. ing the provisions of Article blank of this Constitution, be subject to increase or decrease by the first session of the CHAIRMAN: The Chair would like to state that the status legislature of the State.” All those in favor of the motion - - of the question on Section 8 is presently the Tavares amend ment. Delegate Ashford as yet has not offered any amend J. TRASK: It is my understanding that outside of the ment. I believe a form is being circulated at this moment. figures mentioned here, that Delegate Tavares had accepted the amendment stated by Delegate Asbford. ASHFORD: I will offer the amendment that is being cir culated at the present moment. CHAIRMAN: Delegate Tavares - - The Chair would state SECTION 8. Until the legislature shall otherwise Delegate Tavares had only accepted the suggestion made by provide, the chief justice, justices of the supreme court Delegate Ashford to perfect his amendment. and judges of the circuit courts shall receive as compen TAVARES: That’s correct, and my amendment was to sation for their services the sums of $15,500, $15,000, an amendment already proposed by, as I understand it, Dele and $12,500 per annum, respectively, which shall, not gate Shimamura, and I simply added to it. My amendment withstanding the provisions of Section — of Article was an addition, so my amendment is an amendment to the of this Constitution, be subject to increase or decrease amendment, and this is a further amendment, proposed by the first session of the legislature of the State. amendment to it. FONG: I second the motion. CHAIRMAN: Delegate Fong, did you want recognition? CHAIRMAN: It has been moved and seconded that Dele FONG: I want to ask a point of information. Now if we gate Tavares’ motion be amended in the form in which you vote on the Tavares amendment and that carries, does that find it in the Section 8 which is being circulated at this time. preclude the amendment by Miss Ashford? ANTHONY: Point of order. What is before the house is Section 8 which fixes the salary of the chief justice at 17, 500, CHAIRMAN: Right. associate justices at 17,000, and circuit judges at 15,000. To FONG: I want a ruling on that before I vote. that has been made an amendment. Now I don’t think it’s CHAIRMAN: The Chair will rule yes. If you do not proper for us to have any more amendments. Let’s vote on agree with the sums stated, then vote no because the only Delegate Tavares’ amendment, and then if that is carried, difference between the Delegate Ashford’s amendment and that will clear the parliamentary situation. Delegate Tavares’ amendment is the amounts. CHAIRMAN: The point is well taken. BRYAN: Mr. Chairman, I’d like to talk to that, please. SHIMAMURA: Point of order. This amendment incor FONG: May I asic again that ii the Tavares amendment porates Delegate Tavares’ motion. Therefore, it is not an carries, that will preclude amendment by Miss Ashford? amendment on an amendment. CHAIRMAN: That is correct. ANTHONY: Point of order. Point of order. FONG: Then, in order to get Miss Ashford’s amendment CHAIRMAN: The point Delegate Anthony just stated is on the floor, we’ll have to vote against Mr. Tavares’ amend well taken. Question will be first put as regards Delegate ment. Tavares’ amendment.~ KING: Since Delegate Anthony is going to make a point CHAIRMAN: That’s right. of order, an amendment to an amendment has been accepted PORTEUS: I believe the situation is that Delegate Tãvares right along here. If Delegate Ashford doesn’t want to sponsor has only offered an addition of words. I think his amendment this, I propose this as an amendment to Delegate Tavares’ is a good one. It is, “notwithstanding the provisions of Sec amendment. Let’s vote on the lower figure first, and if tion blank of Article blank of this Constitution, be subject to that fails, then we can vote on the higher. increase or decrease by the first session of the legislature CHAIRMAN: The Chair understands and recalls that of the State.” I think that is an amendment that is pending only Delegate Fong was given leave to put an amendment on to an amendment. If we vote on that, that is eliminated. an amendment on an amendment, and, therefore - - There will then only be an amended amendment before the house. There will be one amendment pending. In that case, KING: May I speak to that point of order? There’s no I think it will be in order to make further amendments to necessity for our heat, I suppose. The only argument is the amendment. whether the sum shall be 17, 500, 17, 000, 15, 000; or 15, 500, 15, 000, and 12, 500. Delegate Fong only withdrew KAUHANE: Point of order. his amendment to make way for this. Now, if this is not gq CHAIRMAN: It would appear that further amendments ing to be accepted, then Delegate Fong’s amendment is would be permissible and yet the Chair feels that the subject accepted as an amendment to Delegate Tavares’ amendment. matter of the amounts would have been already passed on. I ask Delegate Fong if that’s not correct. Therefore, it will be out of order. CROSSLEY: Would you please state the question on which PORT EUS: Mr. Chairman, may I point out that Delegate we are voting. As I understand it, we’re voting on a new Tavares’ amendment does not set any change in amount; section which is Section 8. That’s not an amendment, that’s it only adds words. a new section. FONG: Will Mr. Porteus yield? CHAIRMAN: The Chair will again rule that we are voting on Delegate Tavares’ motion to amend the previous amend- PORTEUS: Ido. 838 ORDINANCES AND CONTINUITY OF LAW SHIMAMURA: In order to facilitate matters, I accept CHAIRMAN: It has been moved and seconded to adopt Delegate Tavares’ amendment to allow Miss Ashford to Section 15 of Committee Proposal No. 23, to be renumbered move on hers if she wishes. Section 10. Is there any discussion? CHAIRMAN: That clears the deck. Delegate Ashford. SHIMAMURA: This section obviously provides for the effective date of the Constitution, and it is the date upon the ASHFORD: I now offer the amendment to Section 8 that admission of Hawaii to the Union ,as a state. Under H.R. 49 has been distributed and is on the desks of the delegates. the State of Hawaii is admitted into the Union upon the issuance NIELSEN: I second the motion. of a proclamation by the President of the United States after the election of all state officers. CHAIRMAN: It has been moved and seconded to amend the amendment which was Section 8, in which Section 8 was CHAIRMAN: All those in favor of the motion to adopt amended to add to Committee Proposal No. 23. Roll call Section 10 please say “aye.” Opposed, “no.” Motion has been requested. How many of you are desirous of a carries. roll call? More than ten “roll calls.” We are voting on Delegate Ashford’s amendment SHIMAMURA: I move for the adoption of the entire Proposal No. 23 as amended. SAKAKIHARA: I rise to a point of information. That amendment proposed by Delegate Ashford fixes the com - DELEGATE: I second the motion. pensation for the supreme court, 15, 500, 15, 000 and CROSSLEY: May I amend that? The way It previously 12, 500 for circuit court judges? was, “and renumbered.” CHAIRMAN: That is correct. CHAIRMAN: Is that acceptable, Delegate Shimamura, Ayes, 20. Noes, 31 (Akau, Anthony, Apoliona, Castro, “and renumbered”? Corbett, Crossley, Fukushima, Heen, Kage, Kawakami, SHIMAMURA: Yes. Kellerman, Kometani, Lal, Larsen, Lee, Loper, Lyman, /Okino, C. Rice, H. Rice, Roberts, Sakai, Serizawa, CHAIRMAN: It has been moved and seconded that the / Shimamura, Silva, Smith, Tavares, J. Trask, White, committee adopt Committee Proposal No. 23 as amended WIst, Doi). Not voting, 12 (Absent: Arashiro, Hayes, and renumbered. All those in favor of the motion please Holroyde, Ihara, Kawahara, Luiz, Mau, Mizuha, Phillips, say “aye.” Opposed, “no.” Motion is carried. St. Sure, A. Trask. Excused from voting: Wirtz.) J. TRASK: If there is no other business - - CHAIRMAN: The amendment fails. CHAIRMAN: I believe not. Are you ready for the question on the Tavares amendment? J. THASK: I move that we rise - - the committee rise The motion is to amend the Committee Proposal No. 23 by and report progress and beg leave to sit again. adding a new Section 8, which Section 8 is as accepted by Delegate Shimamura. CROSSLEY: Second the motIpn. H. RICE: Second the motion. CHAIRMAN: It’s been moved and seconded that the committee rise, report progress and beg leave to sit again. CHAIRMAN: All those in favor of the motion please say All those in favor please say “aye.” Opposed, “no.” “aye.” Opposed, “no.” Motion carries. Motion is carried. SHIMAMURA: At this time, I move for the adoption of Section 14 of Proposal No. 23 - - JULY 14, 1950 • Morning Session CROSSLEY: Second the motion. SHIMAMURA: - - amended to be numbered Section 9. CHAIRMAN: Will the committee please come to order? The Chair wUl now declare a recess of five minutes. We SECTION 9. The provisions of this Constitution might be able to have committee reports circulated in the shall be self -executing to the fullest extent that their meantime. respective natures permit. (RECESS) CHAIRMAN: It has been moved and seconded to adopt Section 14, Committee Proposal No. 23, amended to be CHAIRMAN: Will the committee please come to order. Section 9. It is now ten past twelve. I suppose - - SHIMAMURA: May I state briefly that the purpose of this LEE: I move that we recess until 1:30. section is to make the Constitution sell-executing without SAKAKIHARA: I second it. the necessity of passing any enabling acts by the legislature. CHAIRMAN: It has been moved and seconded that the In other words, where there is doubt as to the effectiveness Committee of the Whole recess till 1:30. All those in favor of any constitutional provision without any supplemental of the motion - - The motion now on the floor is to recess legislation, it is the expressed intent of this section that tUl 1:30. All those in favor of the motion please say “aye.” the Constitution shall be construed as being sell-executing Opposed, “no.” Motion carries. without an enabling or supplemental legislation. CHAIRMAN: All those in favor of the motion please signify by saying “aye.” Opposed, “no.” Motion carries. Afternoon Session Section 9 is adopted. CHAIRMAN: Will the Convention - - rather, will the SHIMAMURA: I move for the adoption of Section 15 of committee please come to order. The Convention resolved Proposal No. 23, to be renumbered Section 10. itself into the Committee of the Whole to consider Commit SECTION 10. This Constitution shall take effect and tee Reports 68, 70 and 73 and Committee Proposals 23, 24 be in full force immediately upon the admission of Hawaii and 25. You will find on your desks the Committee of the into the Union as a state. Whole Report No. 25 relating to Committee Report No. 68. You will find Committee of the Whole Report No. 26, Com CROSSLEY: I second the motion. mittee of thc Whole Report No. 27 relating to Committee Re- JULY 14, 1950 • Afternoon Session 839 port 70 and 73 respectively. Now what is the desire of the was assisting Delegate Doi and I felt that there was an Convention - - committee, rather? omission in Section 6 which ought to be supplied and I intended to move to reconsider this at this time to insert SAKAKIHARA: I move for the adoption of the committee that extra sentence and revise the section to read as it now report and pass on second reading. reads by mistake in the printed proposal. Unfortunately, H. RICE: Second the motion. that was used as the final draft instead of what the Commit tee of the Whole had already approved. But to bring that to CHAIRMAN: What committee report are you referring a head, I move to reconsider our action in order that I may to? present this amendment and have the consensus of the Con SAKAKIHARA: Committee Report No. 25, Committee vention as to whether it’s needed or not. Report No. 26 respectively. NODA: I second the motion. CHAIRMAN: And 27? CHAIRMAN: It has been moved and seconded that we SAKAKIHARA: Twenty-seven. reconsider our motion on Committee Proposal No. 23. CHAIRMAN: It has been moved and seconded that Com TAVARES: Just Section 6, Mr. Chairman. mittee of the Whole Report Numbers 25, 26 and 27 be adopted and that it pass second reading. CHAIRMAN: And particularly to Section 6. Is there any discussion on it? All those in favor of the motion to recon ASHFORD: The reports have just been placed upon our sider please say “aye.” Opposed, “no.” Motion carries. desks and for reasons of which the Chair is aware, I think we should have the chance to read those reports before they TAVARES: I now move to amend Section 6 to read as set are adopted. I therefore move for a brief recess. forth in the proposed amendment of Committee Proposal No. SAKAKIHARA: Second it. 23 which is being or has been just circulated. CROSSLEY: Before we take the recess could we amend SECTION 6. The provisions of Section — of the last motion to take these up—for reasons which you Article______ shall not be mandatory until four years would appreciate—to take these up individually? I think from the date of admission of this State to the Union. The there might be some changes in one or two and there is no legislature shall within three years from said date of ad use holding up those that are - - will go through. I’d like mission allocate and group the executive and administra to amend the - - tive offices, departments and instrumentalities of the State government and their respective functions, powers and CHAIRMAN: Is that acceptable to the movant? duties, among and within the principal departments pur SAKAKIHARA: I want to go home. suant to said Section ___of Article.... CROSS LEY: That we take them up individually? Thank U such allocation and grouping shall not have been you. completed within such period, the governor, within one CHAIRMAN: Delegate Sakakthara, would you care to year thereafter, by executive order, shall make such rephrase your motion so that it will be to adopt Committee allocation and grouping. Report No. 25? NODA: I second the motion. SAKAKIHARA: Will the chairman of the Committee on TAVARES: The reasons for that, I might state - - Submission rephrase it for me. I wasn’t paying attention to his remarks. CHAIRMAN: Delegate Tavares, just a second. It has been moved and seconded that Section 6 be amended to read CROSSLEY: I second Delegate Sakakthara’s motion that as printed before correction. Delegate Tavares. we take up Committee Report No. 25 at this time. TAVARES: I now move to amend that section to read TAVARES: I think it’s in order to have the recess re as set forth in the—is that it? —in the printed - - quested by Delegate Ashford. I think that’s reasonable. CHAIRMAN: You have already made the motion and it CHAIRMAN: The Chair will declare a short recess of was seconded. about five to ten minutes. TAVARES: I might explain to the members of the Con vention, the attorneys are not all in agreement with me on (RECESS) the need for this. I’m just warning the delegates and I’m not going to argue too long. I just want to present the problem. CHAIRMAN: When we recessed we had a motion before The executive article in one of the sections—I think it’s us, which motion was to the effect that we take up Committee Section 6—provides that the various executive and adminis of the Whole Report No. 25. Before we proceed any further trative departments and instrumentalities of the govern with any discussion on this report, I would like to inform ment shall be grouped in 20 principal departments by law. the delegates of one mistake in the proposal section of Now, in the Committee of the Whole report on that article Committee of the Whole Report No. 25. The proposal sec it was stated that the Committee on Ordinances and Conti tion is numbered Committee Proposal No. 23. U you turn nuity of Law would make provision in a special section to to page 3 of Committee Proposal No. 23, you will find in give the legislature four years or to allow four years to Section 6 that the first sentence should be deleted and that comply with this article. Well, the Committee on Ordinances the sentence should read - - the sentence that follows that and Continuity of Law produced what was approved as Sec should read: “The legislature shall within three years from tion 6 of Proposal 23 at our last meeting under the belief the time the first legislature convenes allocate and group that it did comply with that Committee of the Whole report on the executive and administrative offices, departments and the executive article. My own feeling is that it did not quite instrumentalities of the State government and their respec and that there is a hiatus there and that we should say - - tive functions, powers and duties among and within the we should add the first sentence which Iproposed to add principal departments pursuant to Article _______ .“ The that this provision should not be mandatory until four years “Section “ is deleted. from the date of admission of this state to the Union. TAVARES: May I explain that mistake. In preparing Now, the difference I think is this. I was afraid that it the report for this - - the draft for this report I felt - - I might be contended that if the legislature didn’t group those 840 ORDINANCES AND CONTINUITY OF LAW departments immediately there would be some sort of TAVARES: There are some slight typographical errors, invalidity to some department that wasn’t grouped in here. one on page 4 of the report, in the eighth line of the double- I don’t know really what happens if the legislature doesn’t spaced first paragraph on that page. That line reads, “if do what it’s supposed to do about grouping, whether the not continued in effect, would have a hiatus in our local or.” department becomes a nullity or just what happens. But I move to substitute for the word “have,” the word “leave”; at any rate, this would give us a clear four years to do it. so it would say “would leave a hiatus.” I think that they Now other people contend that by saying the legislature, in couldn’t read our writing in typing this, or my writing. On this special section of the ordinances and continuity of law, page 4 of the Committee of the Whole Report No. 25 - - that by saying that the legislature shall do it in three years Committee of the Whole Report No. 25, page 4, the eighth and if they don’t, then the governor shall do it in the last year, line, change the word “have” to “leave.” that we are taken care of by implication. If that is correct and we get a consensus vote on that I will withdraw my SHIMAMURA: Would the delegate accept the word “cause”? amendment. But I think it should get in the record. TAVARES: Yes, I’ll accept it. WHITE: As a matter of information. This proposal that I have on page 3 and the amendment that has just been passed CHAIRMAN: I didn’t get that suggestion. around, it seems to me are identical. TAVARES: The suggestion is that we substitute instead CHAIRMAN: That’s right. The Chair, previous to the of “leave,” “cause” for the word “have” in that line. amendment, explained that the section - - there was an CHAIRMAN: The Chair would like to point out a point error in Section 6 insofar as the original section was con of order, and that is Section 6 as amended has not yet been cerned; that therefore the Chair informed the group that adopted. certain corrections should have been made. For example, the deletion of the first sentence and several corrections TAVARES: I move to adopt Section 6 as amended. in the following sentence. Then Delegate Tavares moved SHIMAMURA: I second the motion. and it was seconded to amend Section 6 to read as it is print ed in this form before you, CHAIRMAN: It has been moved and seconded that Section WHITE: And as it is in the report? 6 be adopted as amended. All those in favor of the motion please say “aye.” Opposed, “no.” Motion carries. CHAIRMAN: No, that’s not correct. Now a motion to adopt Committee Proposal No. 23 as WHITE: Well, on my Committee Proposal 23, it’s amended is in order. identical. TAVARES: I so move. CHAIRMAN: No, that’s being - - the report does not CHAIRMAN: Is there a second? incorporate the wording proposed by Delegate Tavares; therefore, the statement made by the Chair that the original SAKAKIHARA: Second. Committee Proposal No. 23 as you see it before you should CHAIRMAN: It has been moved and seconded that Com have been corrected. mittee Proposal No. 23 as amended be adopted. ROBERTS: May I suggest that if the delegates want to see TAVARES: I move for the amendment of the Committee the section as it was adopted by the Committee of the Whole, of the Whole report. that’s to be found on page ? - - CHAIRMAN: That’s right. CHAIRMAN: All those in favor of the motion please say “aye.” Opposed, “no.” Motion carries. ROBERTS: - - of Committee of the Whole Report No. 25. That is the Section 6 as we adopted it. The error came in TAVARES: I now move for my - - renew my motion to using that in the article itself, changing it so that the amend amend page 4 of the Committee of the Whole Report No. 25 ment is to Section 6 on page 7 of the Committee of the Whole by substituting in the eighth line the word “cause” for the Report No. 25. word “have.” CHAIRMAN: Delegate Roberts’ suggestion is well taken. ARASHIRO: I second the motion. If you will refer to page 7 of your Committee of the Whole Report No. 25, you will see and find Section 6 as it came CHAIRMAN: It has been moved and seconded that we out of the Committee of the Whole two days ago. Is there amend the Committee of the Whole Report No. 25 on page 4 any more discussion on the proposed amendment? Are on the eighth line of the explanation section by deleting the you ready for the question? word “have” and inserting in lieu thereof the word “cause.” Is there any discussion on the motion? All those in favor ROBERTS: This section was discussed off the floor. I of the motion please say “aye.” Opposed, “no.” Motion opposed its inclusion on the ground that you place a sentence carries. in there which says that these sections shall not be mandatory until four years later. The section that we adopted required TAVARES: I must apologize to the Convention, but Mr. the legislature to take action within a certain period of time. Doi and I had to work till way past midnight last night to get If they didn’t act, then the governor had certain responsibi this out and didn’t have a chance to check it before printing. lity to carry it out. It seems to me that the requirement I have one more typographical error on page 9 of the Com in our section is complete and adequate. It’s just as man mittee of the Whole Report 25, in the paragraph starting in datory with the sentence in as it is with the sentence out. with the words, “The article referred to in this section.” We say that the legislature shall take this action; if they Near the middle of the page in the third line of that para fail to take it within the period of time specified in the graph I move to insert between the words “and” and “makes,” Constitution, then certain things flow from that. I can see the words “this section,” so that the sentence will read, no value in adding the sentence. However, if it makes starting at the beginning of that paragraph, as follows: “The some feel that there’s some value in it, let’s put the addi article referred to in this section is the judiciary article, tional sentence in. which prohibits any diminishing of compensation of a justice or a judge during his term of office, and this section makes CHAIRMAN: Are you ready for the question? All those it clear,” and so forth. in favor of the motion to amend Section 6 please say “aye.” Opposed, “no.” Motion carries. OKINO: I second that motion. 841 JULY 14, 1950 • Afternoon Sessbn CHAIRMAN: It has been moved and seconded that Com of the Whole Report No. 26 and that it pass second reading. mittee of the Whole Report No. 25 on page 9 be amended in All those in favor of the motion please say “aye.” Opposed, the paragraph starting with the words, “The article referred “no.” Carried. to,” in the third line of that paragraph, by inserting between We have now before us Committee of the Whole Report the words “and” and “make,” the words “this section.” All No. 27. those in favor of the motion to amend please say “aye.” SAKAKIHARA: I move the adoption of the Committee of Opposed, “no.” The motion carries. the Whole Report No. 27. SAKAKIHARA: I rise to a point of information. Then NODA: I second the motion. Committee Proposal No. 68—Is that it? —23, has it passed final - - second reading as amended? CHAIRMAN: It has been moved and seconded that Com mittee of the Whole Report No. 27 be adopted. CHAIRMAN: I believe all the amendments have been already made. LAI: I have a very short amendment to Section 7 of Proposal 25. Therefore I move to reconsider Section 7, SAKAKIHARA: I rise to a point of information. Proposal 25. CHAIRMAN: Could you state it over again, please? SAKAKIHARA: I second. SAKAKIHARA: Committee Proposal No. 23 as amended CHAIRMAN: It has been moved and seconded to recon has not passed second reading yet, has it? sider Section 7 of Committee Proposal No. 25. Delegate Lal, CHAIRMAN: No, it hasn’t passed second reading. It has would you care to state your purpose for asking for reconsi deration? been adopted by this committee. TAVARES: In view of the amendment adopted to Section 6 LAI: Well, I wanted to make an amendment to the fourth I move that page 7 of the Committee of the Whole report be line in Section 7, delete the word “second” and insert in its amended to conform. place “third.” In other words, the line will read as follows: “In December following the third general election.” I feel CHAIRMAN: Is there a second to it? that the first governor and the lieutenant governor of the C. RICE: Second the motion. State of Hawaii should have the benefit of the longer term as the long term senator as we have provided in this section. CHAIRMAN: It has been moved and seconded that page 7 This will induce more and better men to run for the - - these be amended to conform to the amendment made to Committee two offices. This being the first election of the governor and Proposal No. 23, Section 6. All those in favor of the motion the lieutenant governor by the people, people certainly would please say “aye.” Opposed, “no.” The motion carries. like to pick one from the best material available. You must TAVARES: That page has been printed and was the one remember too that the campaign expenses will be very high which was erroneously put in by mistake, and it can now go because of the area they have to cover and a short term will in properly. I now move that the committee report be adopted not justify this high cost of campaigning. The long term will and that the Committee Proposal No. 23 as amended pass not mean very long; it will just mean about a few months to second reading. a little over a year longer than the terms we have provided for in our article on executive powers and functions. In OKINO: I second the motion. your committee report, on page 7, it says as follows: CHAIRMAN: It has been moved and seconded that Com “Although this section provides that such term shall begin mittee of the Whole Report No. 25 be adopted and that it with the election of each, it is quite obvious that they will pass second reading. not commence to exercise their official functions until the actual admission of the State to the Union. This may mean BRYAN: Point of order. I think it should be that we rise six months to a year.” And we might take a chance of recommending that action. electing a governor and he being in office for less than two TAVARES: Yes, I stand corrected and I amend my mo years. Now we’re not sure when we’re going to get state tion accordingly. hood. I think it’s justified to give the prestige to the first governor and first lieutenant governor of the longer term. CHAIRMAN: It has been moved and seconded that when CHAIRMAN: Are you ready for the question? All those the committee rise, it recommend the adoption of Committee in favor of the motion to reconsider, please say “aye.” of the Whole Report No. 25 and that it pass second reading. Opposed, “no.” The Chair is in doubt, will call the ques All those in favor of the motion please say “aye.” Opposed, tion again. “no.” Motion carries. We have before us now Committee of the Whole Report DELEGATE: Division of the house, please. No. 26. CHAIRMAN: I beg your pardon? SAKAKIHARA: I move for its adoption. DELEGATE: Division of the house by hands. CHAIRMAN: Do I hear a second to the motion? CHAIRMAN: The Chair will call a division of the house. OKINO: Ido. All those in favor of the motion to reconsider will stand up. CHAIRMAN: It has been moved and seconded that Com All those in favor of the motion to reconsider will stand up, mittee of the Whole Report No. 26 be adopted. You ready please. All those who want to stand up on this question, for the question? All those in favor of the motion please please stay up. Some of you have risen later and - - All say “aye.” Opposed, “no.” The motion carries. those in favor of the motion to reconsider, please stand up. TAVARES: I move that when the committee rises, it re MIZUHA: Reconsider what, Mr. Chairman? port progress and recommend the adoption of this committee CHAIRMAN: Committee Proposal No. 25, particularly report and proposal on second reading. Section 7. It has been already stated once before. All SAKAKIHARA: I second the motion. those in favor of the motion to reconsider, please stand up. CHAIRMAN: It has been moved and seconded that when ANTHONY: Mr. Chairman, will the delegates take their the committee rise, it recommend the adoption of Committee seats. 842 ORDINANCES AND CONTINUITY OF LAW CHAIRMAN: All opposed to the motion, please stand up. CHAIRMAN: Delegate Lai. All opposed to the motion to reconsider, please stand up. ANTHONY: He’s spoken three times on this, Mr. Chair BRYAN: Will Delegate Anthony please take his seat? man. CHAIRMAN: The motion to reconsider carries. The CHAIRMAN: That is correct, and then he being the movant, vote is 25 to 24. the Chair thought probably he should - - in this case he yields. LAI: I move to amend Section 7. On the fourth line, Delegate Anthony. delete the word “second” and insert in its place the word ANTHONY: The argument that you ought to give the gov “third.” ernor the same as a long term senator doesn’t hold water. H. RICE: Second it. You’ve got 25 senators and one bad senator might not make the whole barrel rotten. But if you get one bad governor, CHAIRMAN: Moved and seconded to amend Section .7 you don’t want any long term, so I don’t think the analogy is on the fourth line by deleting the words - - apt at all. HEEN: I would like to find out from the movants, how TAVARES: My own opinion is that this being the inception long would the governor serve U he is elected at a special of Hawaii into statehood, we are going to elect just as good election, If that term runs until the third general election. a governor as we’ve elected a good Convention. I think LAI: It depends on when we get statehood. We might we’ve elected a good Convention, and I don’t think there is hold a special election say next August or September. any ground for feeling we won’t elect a good man as governor. I think the longer term will enable him to carry out the diff I- HEEN: Under the provisions of one of these articles here cult transitional period which we are going to have, changing somewhere, a special election has to be called before Hawaii from a terrkory to a state, in a lktle better way than a becomes a state. After the Constitution is adopted here, but shorter term. I’m for the amendment. before we become a state, we hold a special election. There fore, U that occurs, U that election occurs, how long would SHIMAMURA: I’d like to except myself from the general the governor serve U he serves until the third general elec statement made by the last speaker at this Convention, in tion following that special election? the first place. What I especially rose for is this. That there is good reason for having the initial senators serve LAI: if we get statehood this session and we call for a for a term of six years because we have staggering of special election now, I don’t think we would become a state terms. But that skuation doesn’t apply to the inkial gov until Congress certifies our Constitution and certifies the ernor where one officer is elected, one executive officer election of officers. is to be elected. I agree with the other speakers who have BRYAN: I’d like to answer that question. I think it taken the proposition that we shouldn’t enlarge upon the simply means that the governor’s term will be a minimum term of the inkial governor. We give subsequent governors of four years, and a maximum of six years for the first four years, and the initial governor in a transklonal period, term, that’s all, if the special election comes immediately we give him six years, or almost six years theoretically. after a normal, regular general election, territorial elec MIZUHA: I rise to a point of information. Does the first tion, or any normal period for election, it means his term election, the word “first election” in the second line in Sec will approach six years. If a special election is held just tion 7 refer to the special election or the first election after prior to a general election, then his term will be slightly the State of Hawaii is admkted into the Union? over four years. So it’s a little less than six or a little more than four, and anything in between. CHAIRMAN: Delegate Tavares, will you please answer the question? LAI: The term wUl be the same as the long term senators, that we have provided for in this section. That’s the same TAVARES: Since each of these sections, the provisions thing. I think the governor shouldn’t be discriminated says that the term shall start wkh the time of the election, against that term~ I think k obviously means every general election after that is to be counted as one of the general elections intended. HEEN: The governor does not rate as a long term senator. Otherwise, you’ll give a man an inchoate term of any number LAI: What I mean is just the term. of years before we get statehood. I think k obviously means that you ought to count every general election which means REEN: State senator, I mean. Now the movant stated - - every general election under the territorial law or under that the governor should have a long term, that k’s necessary the state law that’s held every two years is a general election, that he should have a long term so that we will elect a com in November. You’ll have to count that; otherwise you are petent governor. There’s no assurance we’re going to elect going to get into trouble in figuring out what you mean by a competent governor at the special election. He might not first, second and third election, general election. be competent and we’d like to get him out as soon as possible. MIZUHA: If H is Delegate Tavares’ interpretation that PORTEUS: As I understand it, the governor will be that first election in Section 7 means the first general elec accorded the same right as a long term senator. The long tion, if we have a special election for the governor prior term senator can stay in from four to six years. As I to our admission as a state, he might serve for a year and understand the person who presents the amendment, he feels a half before we reach the first general election. Then we that a governor is entitled to stay in office just as long as will have the first general election, and then he will have the long term senator. Now the long term senator is given two years. That makes three and a half years. Then we a term of four years, normally, and the governor has a will have the second general election, which will be another term of four years, and perhaps there’s not any great two years, which will make five and a half years. Then reason why the two shouldn’t be treated consistently, except we will hold a third general election which will make him that there is only one governor, and there will be at least eligible for election seven and a half years after we elect 13 long term senators. him in the first special election for governor. LAI: Mr. Chairman. TAVARES: I think the gentleman misunderstood me. if we have a special election, the first general election ANTHONY: Mr. Chairman. that could be held under the laws as they will be continued 843 JULY 14, 1950 • Afternoon Session over under the State or as they may be just before we are SHIMAMURA: To clear up the point, did I understand actually admitted as a state, will be the first general elec the last speaker to say that the first special election will be tion. I think there is no trouble there. It can’t run over considered the first general election? six years and it might be less. TAVARES: No, that was not what I intended to say, and I didn’t think I said it. MIZUHA: I’m just pointing it out that it could be one and a half years before we have our first general election. CHAIRMAN: That’s not what Delegate Lai said. KING: I’d like to reduce this to a hypothetical question. LAI: I mean if you have a special election, say in Assuming that we elect our State officers and our new September, then your general election falls in November, Congressional delegation at a special election some time that’s your first general election, that counts as first. next year, the middle of next year or latter part of 1951 or Then your general election in 1952 will count as the second possibly in early 1952; and the Constitution is accepted general election. So, therefore, if you have the election of by Congress, has been accepted by Congress; the only governor this August or September, then his term will ex remaining formality is the proclamation of the President pire in 1952. That will be awfully short for a governor. admitting Hawaii into the Union as a state. Then these new officers take office and the first general election will be ARASHIRO: The next general election, as far as I can the one held in the fall of ‘52. Then the second general see, will come in 1952 and no other year, and then the election would be held in the fall of ‘54. A governor then next general election will be 1954. The coming fall election elected in 1951 or the early part of ‘52 would serve perhaps will be a territorial general election, as we should be ad as little as two and a half years or three years. But I see mitted as a state. After that, then the general election will no impropriety in that. Otherwise you might give them too never come at an earlier year but 1952. If that is correct, long a term of office in the first election. If he does his then there is going to be a special election and the governor’s duties properly, why he can run for re-election in 1954, and election will come in 1954, as far as my interpretation is. If catch that with the regular four year term. So I feel although that paragraph means something else, then I’d like to have the amendment is amended in good faith, and does correct that explained to me. a shortness in the term of the first executive, that we ought to leave it as it was and I’m opposed to the amendment. TAVARES: It is obvious that we are not going to have any special election unless Congress or the President, as the BRYAN: First, I hope the delegate who spoke on the case may be under H. R. 49, finds that we have complied mathematics of this is reviewing what he had to say. Be with the statehood act and we are going to be admitted as a tween three general elections brackets four years and no state. We are going to know that before we hold any election. more, no less, which sets the upper limit of six years. So when we hold that election it will undoubtedly, in almost Now Ithink the merit of this argument, one way or the other, all probability, be a special election. And that special lies not in the comparison between the governor and the election, if it doesn’t coincide exactly with the date of the senator but just on how long a term the first governor should territorial general election, I submit, will then make it have. The way it stands now, his minimum term could be necessary to count territorial general elections after that two years; according to the amendment, his maximum term plus state general elections in computing the second and third could be six years. I would more favor taking a chance on the election, general elections mentioned in this proposal. That six year maximum than putting up with the two year mini is the only reasonable interpretation. mum, because I think two years may be too small and I don’t think six years would be too large, and those are the outside ASHFORD: I think Delegate Arashiro is quite correct. In limits. Therefore, I’m in favor of the amendment. other words, if we are not admitted as a state prior to the general election here but nevertheless we have an election, TAVARES: May I ask the delegates to read what the Com that is not the first general election that is referred to. The mittee of the Whole report on page 7 says about this, which first general election would be in 1952. was our understanding of what the Convention intended. If it’s not, then it should be corrected. I think it explains the CHAIRMAN: All those in - - The Chair will put the ques theory of what is the first general election and the second tion. All those in favor of amending Committee Proposal - - general election after the election of the governor, and the rather Section 7 of Committee Proposal No. 25 by deleting rather anomalous situation of saying that the governor shall the word “second” in the fourth line of the section, and insert hold office. We explained there that obviously he doesn’t ing it lieu thereof the word “third,” will please say “aye.” actually begin to discharge the functions of his office until DELEGATES: Roll call. we are admitted to statehood. But he does in a general sense hold an inchoate office beginning with that date of that CHAIRMAN: How many of you request roll call? Roll election. We explained it that way, and I think that takes call will be made. The Clerk will please call the roll. All care of Delegate Heen’s misgivings on the matter. those in favor of the motion to amend will say “aye,” and opposed will say “no.” CHAIRMAN: Is there any more discussion? Delegate Lai, would you care to close the debate? Ayes, 26. Noes, 28 (Akau, Anthony, Apoliona, Arashiro, Cockett, Corbett, Fong, Heen, Ihara, Kanemaru, Kawahara, LAI: I just want to find out. Suppose we have statehood Kawahami, Larsen, Luiz, Lyman, Mizuha, Noda, Ohrt, this session. All right, we’ll run an election say 30 days Okino, Phillips, Roberts, Serizawa, Shimamura, A. Trask, or 60 days from now, I don’t know when it’s going to be. White, Yamamoto, Yamauchi, Doi). Not voting, 9 (Castro, All right, your first general election this November is Holroyde, Lee, Loper, Maui, Nielsen, Smith, J. Trask, counted as the first. The 1952 general election would be Wist). the second. According to your committee proposal, the first governor, if we have the election this year, will hold CHAIRMAN: The motion failed. office only for two years. And he’s not going to exercise The Chair will at this time invite a motion to adopt his powers of his office until maybe six or seven months or Committee Proposal No. 25. a year from the election date. SAKAKIHARA: I so move. CHAIRMAN: All those in - - NODA: Second. 844 ORDINANCES AND CONTINUITY OF LAW CHAIRMAN: It has been moved and seconded that Com- No. 25, and that it pass second reading. All those in favor mittee Proposal No. 25 be adopted. All those in favor please of the motion please say “aye.” Opposed, “no.” Motion say “aye.” Opposed, “no.” carried. TAVARES: I now move that when the committee rise, it The Chair would like to invite a motion to rise. report recommending the adoption on second reading of SAKAKIHARA: I move that the Committee of the Whole Committee Proposal No. 25 and Committee of the Whole rise and report progress. Report No. 27. CHAIRMAN: Do I hear a second? CHAIRMAN: Is there a second? NODA: Second it. NODA: Second the motion. CHAIRMAN: It has been moved and seconded that when CHAIRMAN: It has been moved and seconded that the the committee rise, it recommend the adoption of the Com- Committee of the Whole rise. All those in favor of the mittee of the Whole Report No. 2?, Committee Proposal motion please say “aye.” Opposed, “no.” Motion is carried. Debates in Committee of the Whole on DISQUALIFICATION OF FRANK G. SILVA Chairman: CABLE A. WIRTZ APRIL 20, 1950 • Morning Session When this Convention completes a draft of our Constitu tion, it will have a provision that no person can be required CHAIRMAN: Will the committee please come to order. to testify against himself. Now you are saying, even before We will now consider Resolution No. 25. you write the Constitution, that if I exercise that same right A. TRASK: I move the following amendment of the reso given to me by the Constitution of the United States, I am lution, namely, “Resolved, that Frank G. Silva, by reason not a fit person to sit in this Convention. The findings of the if his,” insert the following words, “contumacious conduct special committee has this statement: and citations for”; then continuing, “contempt.” No witness who testifies before the House UnAmerican Activities Committee can be prosecuted for any crime CHAIRMAN: Would you repeat that amendment, please. which his testimony may divulge, save and except the A. TRASK: “Contumacious conduct and citations for” crime of perjury. being the insertions, an interpolation. I pointed out in the statement I previously presented to In support of this amendment I would like to inform the this Convention that on the basis of the false testimony of delegates of the Committee of the Whole that the mere Izuka I was liable to an indictment for perjury if I stated words, “of his contempt,” does not fully express [the situa I was not a communist before the committee, even though I tioni and the evidence that came before your special commit am not and have never been a member of the Communist tee handling this matter, because there were many evidences, Party. Also, my lawyers say that the finding of the special including letters, statements made, oral statements made committee that no witness can be prosecuted for any crime before the committee - - which his testimony may divulge is wholly incorrect. HEEN: I think before making any attempt to amend the I was elected to sit in this Convention by people who have resolution, we should proceed with a hearing wherein Mr. known me since the day I was born. I was elected by people Silva may present his views upon this resolution. And de who have faith in my honesty and who feel in their hearts pending upon the findings to be made by the Committee of that I know what the word democracy means; that’s why they the Whole, then we can tell just how this resolution may be sent me here. amended, if it is to be amended. I hope the delegate will I ask all of you before voting to again have read to you the follow that procedure. statement that I made to the special committee and also the statement made by Delegate Trude M. Akau. Delegate A. TRASK: I willingly accede to Judge Heen’s sugges Akau’s statement so clearly points out that what you are tion. about to do is wrong that in my heart I cannot believe that CHAIRMAN: Does the delegate from Kauai wish to any of you who read her statement could possibily vote present anything to the Committee of the Whole? The against me. Chair at this time will recognize Delegate Silva from Kauai. I have faithfully served my country; I have done no F. G. SILVA: The Secretary of the Convention had de wrong; my conscience is clear. I am an American citizen. livered to me a copy of the report of the special committee I have fought in the service of my country, and will fight adopted by this Convention, stating that unless by eleven again if need be. I have been elected by a majority of my o’clock today I purged myself of contempt or showed cause people to represent them here in this Constitutional Con for failure to do so, the Convention would act upon the vention. I have pledged myself to work toward a truly resolution expelling me from my seat in this Convention democratic Constitution for the people of Hawaii. upon the ground that by reason of contempt of the House I came to this Convention determined to stand for, pro UnAmerican Activities Committee I am declared disquali tect, defend and secure the American rights and freedoms fied to sit. which we have under the Constitution of the United States It is improper for this Convention to request me to purge of America and which we must surely have under the myself of contempt. I am not in contempt; only Congress Constitution for the new State of Hawaii, when that day can say that I am in contempt, and then it becomes a case comes. I will not betray those who elected me. I will not for the courts to determine whether Congress acted correct allow myself to be frightened or intimidated by the threat ly. The House Subcommittee merely stated it would rec of expulsion. I refuse to bow to hysteria and fear. For ommend to Congress that I be cited for contempt. I am somewhere there must be a voice of courage and honesty. not in contempt of Congress, and my lawyers advise me that What has this Convention asked me to? Purge myself. what I did by refusing to testify was clearly within my consti Purge myself of what? Purge myself of my right as a tutional rights and does not constitute contempt. free American to remain silent. Purge myself of my I might also add that I am informed that many a congress right as a free American to follow the dictates of my own man has sat In the Congress of the United States, passing conscience. Purge myself of my courage, my determina laws for all the people in our country, even though he was tion to defend the principles of free speech and free ex under a criminal indictment. I understand this situation pression. Purge myself of the mandate of those who elect existed within the last few months. If a congressman can ed me. Purge myself of my honesty, my integrity, my sit in Congress even though under an indictment until the sincere convictions. Purge myself of conviction in the outcome of his trial, certainly I have the right to sit in this right which carried me through the last World War and Convention when I am not charged with having done anything through the terrible campaigns at New Guinea and the wrong. Philippines. 845 846 CONSIDER THE DISQUALIFICATION OF DELEGATE FRANK G. SILVA I say to you today, it is not I who needs to purge myself. in our Federal Constitution shall be expulsion from Remember, rather it is this Convention which must, if it this very Convention which professes to be engaged in is to write a Constitution with any of the traditional Ameri writing a Constitution containing those same rights and can rights which have made us the strong and beloved nation democratic principles? we are today, that must purge itself. This Convention Your action here today will stand in history. I face the must purge itself of fear. Fear runs through the ranks of judgment of time and history; I face the people who elected the delegates here. Fear of the Big Five, fear of standing me, confident and secure in the profound conviction that I up in the face of pressure for those principles which some have served them well and honestly. Can you here today of the delegates know to be right, fear of losing jobs, fear say with a clear conscience and a free heart that you too of taking an .unpopular stand at this time in our history, can face the people who elected you and the judgment of fear of speaking the truth, fear of acting on conviction. history? This Convention must purge itself of fear. There are only two in this entire assemblage who dared HEEN: U the delegate who has just spoken has a written to speak out. I give my thanks to those two. History will form of that statement I would suggest to you, Mr. Chairman, honor those two. It was an act of real courage, an act of that you ask that that be filed with the Clerk; and following devotion to the principles which have made democracy that that mimeographed copies be made immediately for the great. use of all the delegates here. It’s a lengthy statement and There are those in this Convention who are not moti we should be in a position to study it carefully before taking vated by fear. They are motivated by hatred. They are final action. the ones who have blacklisted me since my youth, when CHAIRMAN: Thank you for your suggestion. I was just I was first fired out of the plantation for union activities. about to ask the delegate from Kauai if he wished to place They are the ones who would blacklist anyone who would his statement in the record. If he does, please hand it dare to stand up and speak on behalf of the working people, to the Clerk. the majority of the people of Hawaii. They are the plotters, the politicians, the Big Five lawyers, the unscrupulous, the C. SILVA: I would just like to make this short statement. callous, and the UnAmericans. They are the ones who I have heard the Big Five mentioned several times. I’d like falsely pretend that this is a bipartisan Convention. What to inform the delegates to this Convention and the people of nonsense. This is no bipartisan Convention. This is a the territory that I’m only influenced by two people, that is, Republican-dominated and Big Five Convention. my God and my conscience, not by the Big Five. I know, as I have known since the first day that this Convention appointed a “select committee” that this Con CHAIRMAN: Before we proceed, what is the pleasure vention is determined to expell me. The Convention is not of the committee? Should we have the statement of the concerned with me as an individual. delegate from Kauai that has been filed, printed and distributed U this Convention is to create a sound and healthy Consti among the members? tution, can it find honest ground for expelling me? U this MAU: So moved. Convention is to write a Constitution containing the tradi tional American rights of free speech, which also means ANTHONY: Second. freedom to remain silent, can it honestly expel a delegate for exercising that very right? CHAIRMAN: It has been moved and seconded that the This Convention has said they will give me an opportuni statement of Delegate Silva be ordered to print and distri ty to “show cause.” Show cause for what? Need an Ameri buted among the committee. can show cause for fighting for American rights and princi A. TRASK: May I amend that motion to include any other ples? Need a delegate to this Convention need to show cause documentary evidence which Delegate Silva desires to sub for his determined fight to defend the very democratic mit, anything that he may have with hun be included. principles which this Convention must write into the Consti tution of the State of Hawaii? CHAIRMAN: Do you accept that amendment? Is it wrong that I should believe so sincerely in my MAU: Ido. responsibility to the people and to my own honest conviction that I should take an action knowing that it holds with it the SAKAKIHARA: Point of information. The action which possibility of imprisonment on false accusations? How easy we are about to take is a very, very serious one. This it would be to get down on my knees and crawl. How easy Convention appointed a special committee of eleven to it would be to fall into the soft web of hoomalimali of the constitute an inquisitorial party to inquire into the quali Big Five representatives. How easy to save mysell at the fications of the gentleman from Kauai. Undoubtedly that expense of principle and justice. But I was not elected to committee has a transcript of what has transpired before be a delegate in this Convention to take the easy way. I that special committee. That committee, pursuant to the was not elected here to build my own political fences, to sell hearings, numbering some seven meetings, has reported cheap the principles on which I was elected to my own bene to the Convention with certain findings and recommenda fit. tions. I was not a member of that committee. I feel in It is because I am a delegate to the Constitutional Con all fairness to myself to sit here in judgment of this man as vention, not in spite of that fact; it is because I have fought a jury and as a judge, I would like to inquire of the öhair for American principles all my life, on.the battlefield and man on the special committee or the vice-chairman of that in public and private life; it is because I know that to re committee if that transcript could be made available for the treat in the face of a battle is to lose the fight forever; it information of the members of this Convention. is because I know the sound of bullets, and the need to go CHAIRMAN: I’ll recognize the chairman of the special forward without regard for personal life; it is for these committee, delegate from the fourth district. Point of reasons that I cannot, I will not, I shall not let the sniping information has been put, Mr. Wist, do you understand the of the public press, the mortars of the radio, the batteries point? of the Big Five guns turn me back. I stand squarely on my constitutional rights. Are you WIST: Yes, we can secure a transcript of that for you. going to tell me that I should not do so? Are you going to Our secretary has the minutes of the meetings, if that’s tell the people that the price of fighting for the rights desired. 847 APRIL 20, 1950 • Morning Session CHAIRMAN: The motion that’s before the house at pres FUKUSHIMA: I still have the floor, I believe. ent is that the statement of the delegate from Kauai be That resolution may be the same, but there has been printed together with all other documentary evidence that he a finding of fact which is presented to this Convention and wishes to present. on those findings of fact, we voted, and I did vote myseif, and now we are here again to ask Mr. Silva to present his SAKAKIHARA: I feel that in view of the fact that that side of the case and also to present whatever documentary transcript is available and being the property of this Con evidence he has. Then we are to decide as a Committee vention, I now respectfully move that such transcript be of the Whole what, if any, findings we should make. There printed and made available for the information of the mem has been a finding and we adopted the findings of the special bers of this Convention. committee, and I’d like to ask the committee chairman, CHAIRMAN: May I ask the delegate from Hawaii whether why is this procedure being followed today if there has been he is making a further amendment to the original motion? a finding already? SAKAKIHARA: I do, sir. CHAIRMAN: Does the delegate from the fourth district CHAIRMAN: Any second? wish to answer? MAU: I second the motion. WIST: I’d like to point out that the special committee did not request that we go into a Committee of the Whole. That ANTHONY: I would like to speak to that motion. I don’t was a motion put on the floor of this Convention and acted think the delegate from Hawaii quite appreciates what the upon by the Convention. There seems to be a little confu order is. That’s a huge transcript, only three or four sion here, too, with respect to the motion made to provide pages of which are relevant. Wouldn’t it serve the delegate’s a transcript. If I understand the motion there, it was to purpose if the transcript were brought In here—the Clerk provide the transcript that we had available to us, on the must have it—and read. There are only two or three pages basis of which we made our findings. Is that correct? that are pertinent. Wouldn’t that meet the delegate’s re quirements? CHAIRMAN: That’s my understanding. CHAIRMAN: The delegate from Hawaii has been asked HEEN: I was the one that moved to resolve the Conven a question from the floor. tion into a Committee of the Whole. It is true that I voted SAKAKIHARA: I am here with an open mind. A fellow to adopt the report that was presented by the special com American is on trial. I am firmly convinced that in order mittee of eleven delegates. Upon further analysis of the to give this man a fair and Impartial hearing before this contents of that report, I’m not certain in my mind whether Committee of the Whole, that I cannot see myself justified or not the finding of facts as reported by that committee is to proceed without this full transcript before us. correct, and I wanted to have the privilege of ascertaining the facts for myself; and by resolving ourselves into a CHAIRMAN: May I ask the delegate from Hawaii whether Committee of the Whole, we’ll have the opportunity to as he wants the full transcript of all the hearings of the House certain those facts. There is grave doubt in my mind, that UnAmerican Activities [Committeel or does he just want this finding of fact, that Delegate Frank C. Silva is guilty the transcript that relates to the delegate from Kauai? of contempt, is a correct finding of fact. That determina SAKAKIHARA: Just the transcript relating to the dele tion, as to whether or not he is guilty will be determined by gate from Kauai. Congress and later on by the courts. We are not in a position at this time to say that he has been guilty of con CHAIRMAN: Just that portion of that - - tempt of this sub-committee of the House of Representatives of the Congress. SAKAKIHARA: Upon which a report and findings and Therefore, I think it is my privilege, and it is the privi recommendations have been submitted to this Convention. lege of all the other members of this Convention who were FUKUSHIMA: I am inclined to go along with the delegate not on that committee, to determine for themselves what the from Hawaii. The special committee did meet and did true facts are. We are not bound by the finding of facts made come back with the finding of fact that Delegate Frank G. by the committee. Therefore, it seemed to me that this is Silva was guilty of contemptuous behavior, and as a result the method by which we can ascertain those facts or any of that finding, the Convention here was asked to vote on other facts that might constitute grounds for the explusion the resolution to give him another chance. We did vote. of Senator [sici Frank C. Silva. The affirmative vote was sixty. There were two dissents. CHAIRMAN: As far as the Chair is aware, I have per Now we come before this Convention today, not follow mitted this discussion to go on. There has been no second ing the resolution which we adopted two days ago, and in troduce another resolution which says that we should expel that I know of to the delegate from Hawaii’s further amend the delegate because he is guilty of contempt, and I agree ment that the transcript that was before the committee and formed the basis for their report be printed and distributed with Delegate Silva that he is not, and the amendment which to the members. is proposed by the delegate from the fifth district is a correct one. MAU: I did second that motion. I’d like to ask the chairman of the special committee, why we should even have resolved ourselves into a Com CHAIRMAN: I stand corrected, Mr. Mau. We have be mittee of the Whole to give Mr. Silva another chance when fore the house at this time a motion, original motion that they themselves, a committee of eleven, have made these was made, that the statement of Delegate Silva just read findings and ask this Convention to vote on those findings to the committee be printed and distributed. It was further and this we did. I am rather puzzled at the procedure. amended to include any other documentary evidence he may wish to include with it; and a further amendment that it CHAIRMAN: May I remind the delegate from the fifth include the transcript that was before the committee, the district that the resolution that is before the Committee of special committee, and formed the basis for their - - that the Whole is a very same resolution that is incorporated is, it was used by them as a basis for their report. in the committee report. It was the desire of the Conven tion at the time the resolution was put, in accordance with A. TRASK: I want to get this thing straightened out In the committee report, that we resolve into the Committee my mind, prompted by the expression for my fellow colleague of the Whole. from the fifth district. By accepting the report of the special 848 CONSIDER THE DISQUALIFICATION OF DELEGATE FRANK G. SILVA committee, that is adopting, of course, the findings of that here as judges of the life of one man, I feel that all the committee—and the only question before the Convention is facts pertaining to that man should be presented to us. I really the vote on the resolution as indicated at the end of the don’t know that I can sit here and decide for myseif whether report—now, is it proper in our proceedings here, to recon or not Delegate Silva was in contempt of Congress or not. sider that acceptance of that report before we proceed with I feel that perhaps we should wait a little bit more, and the inquiry, as Judge Heen desires? wait until a higher body, the Congress of the United States, I want to say this because as Dean Wist, who was chair shall pass and render a decision saying that Delegate Silva man of the special committee, indicated, your committee acted in contempt of Congress. For that reason I feel that wrestled with the proposition of whether or not this Conven we should further request the findings and the proceedings of tion, it be recommended to resolve itself into a Committee the special committee. of the Whole or whether it should consider this matter as Convention delegates. After much consideration, we de A. TRA5K: I raised a question as to procedure and or cided that we should throw the whole thing to the Convention der. Will the Chair rule or inform me and the delegates as as a convention rather than a committee. So I pose a ques to what the answer is to that question, whether or not the tion. Should not, Judge Heen, the acceptance of the report, committee should now reconsider its adoption of this report and therefore the findings therein, be first maybe at this before we go into a Committee of the Whole? Procedurally, time reconsidered in respect to the procedural order. isn’t that proper? CHAIRMAN: May I point out to the delegate from the CHAIRMAN: We are in a Committee of the Whole. filth district, there is some confusion in the report. I do not see in the findings any statement of contempt. Finding HEEN: I think Delegate Arthur Trask is technically correct. We did adopt that report and in doing so, we adopted No. 4 is simply to the effect “That Frank G. Silva, by his the findings of fact set forth in that report and adopted the refusal to answer the questions put to him by the House recommendation set forth in the report. If we are to recon UnAmerican Activities Committee, has forfeited his right sider our action in connection with that report, then we will to sit in this Convention.” However, the resolution that was have to resolve ourselves out of the Committee of the Whole incorporated in the committee report goes on to state con and have the Convention itself reconsider the action taken tempt. upon that report. However, perhaps in the interest of ex LARSEN: May I have the floor. It seems we are missing pediting our work in this connection, perhaps we can waive the point. We are only interested in one thing here, and that for the time being in order to proceed with the hearing that is the success of statehood, the success of this confer to determine what the facts are. ence. The only fear that I’ve seen in anybody’s mind here is the fear that we might not succeed. We have the right to KAUHANE: In view of the fact that many requests have decide whether any one of our members possibly will block been made for documentary evidence to support Frank that success. It seems to me we’re not passing on judgment. Silva, documentary evidence which should be studied by the This man has a right to belong to any party he wants to. If, members of this Convention, since that request has been however, we feel because he has aligned himself and ex approved and the documentary evidence and all other docu pressed himself in the terms of certain people who would mentary evidence that has never been requested and which destroy our great democracy and we, therefore, feel per will be submitted during the course of the hearing to be held haps that might be inimical to statehood, it seems to me by the Committee of the Whole, I move that we take a recess we are perfectly in our rights to accept this committee until all of the informative matters are on the desk of each report. and every delegate sitting here in this Convention. And I know from hearing the members speak how hard they CHAIRMAN: The Chair would like to remind the commit worked to give justice. They tried in every way that Ameri tee that there has been no vote taken yet, and the Chair at can democracy asks for to give this man every chance to this time will place the last amended motion that the trans become a unit with us in trying for the success of this con cript or that portion of the transcript that was before the ference, and it seems to me they are accusing him of nothing special committee be ordered to be printed and distributed here. They merely say, because of his various actions to the members. Are you ready for the question? they feel he shouldn’t sit with us, and I am inclined to agree with them. HEEN: In order to expedite matters, I, as the original movant for the printing of the original document which was KAWAHARA: I rise to a point of personal privilege. amended to include other documents and also pertinent parts CHAIRMAN: I’m sorry, the Chair couldn’t hear you. of the transcrpit of the testimony, I accept those amendments; then put the motion with those amendments. KAWAHARA: I rise to a point of personal privilege. CHAIRMAN: Very well, if there is no objection from the CHAIRMAN: Very well, state your point. floor. KAWAHARA: The discussion seems to center around the MAU: Point of information. My understanding of the report made by the special committee appointed by Chairman motion by the delegate from Hawaii was that the transcript King. My reason for opposing the report of that particular and all data and minutes of the special committee be made committee was not because of the fact that I favored or con available to the delegates. Am I correct in that? doned or was in direct favor of the actions of Delegate Silva. My reasons for opposing the report of the special committee CHAIRMAN: All minutes, did you say? was this, that in the event that we do accept the report, it MAU: Yes. might turn out that somewhere along the line we shall have CHAIRMAN: I don’t recall “minutes” were used. Will to go on record as to challenge the qualifications of Mr. the delegate from Hawaii clarify that? Silva, Delegate Silva. I felt that the report itseif was in sufficient for me to say that Delegate Silva was in the wrong, SAKAKIHARA: I made no reference in my motion to any if you might use that term. minutes. This morning the resolution was handed to me and I signed that resolution which stated that Delegate Silva shall CHAIRMAN: That’s the Chair’s recollection. be expelled from this Convention. I did that with no reser SAKAKIHARA: While I am recognized, I would like to vation except for this point, that I feel that if we are to sit call the attention of this Convention - - of the Committee of 849 APRIL 20, 1950 • Morning session the Whole, that under Rule 39 of this Convention it provides session is always in order. That motion has been made thus: “A motion to reconsider any vote must be made before and duly seconded. the end of the second convention day after the day on which CHAIRMAN: That’s correct. I understand that it is the vote proposed to be reconsidered was taken and by a not debatable or amendable. delegate who voted in the majority, and the same majority shall be required to adopt the motion to reconsider as was HEEN: Are you referring to the motion to rise? required to take the action to be reconsidered.” CHAIRMAN: That’s correct, and report progress. CHAIRMAN: May the Chair ask the delegate from Hawaii HEEN: Report progress and ask leave to sit again. I to what he is referring in the motion to reconsider? don’t think we can recess; it’s only the Convention itseif that can recess to a later time. SAKAKIHARA: Referring to the remarks of the delegate from the fifth district, Delegate Arthur Trask. CHAIRMAN: There is before the committee a motion to rise and report progress with leave to sit again. All in CHAIRMAN: Well, the Chair understood that the sugges favor signify - - tion was made that in order to expedite things, that the tech nical objection would not be raised. LEE: In order not to preclude any further debate on this subject, since I seconded that motion, I’d be very happy to FUKUSHIMA: I don’t believe it’s a matter of expediting withdraw the second in favor of any who may desire to speak things. If we are going to do it correctly, for the record, on this particular motion. It is a rather important subject, let’s do it correctly. If we are going to reconsider the particularly in view of the fact that before reconsideration matter, let’s reconsider it. So at this time, I move that can take effect under the rules, as pointed out by Mr. Saka the Committee of the Whole rise to reconsider the adoption kthara, two days notice must be given. So should there be of the resolution which we adopted two days ago. any desire by any of the delegates, I’ll be very glad to with draw my second. LEE: Second the motion. CHAIRMAN: The second has been withdrawn. HEEN: The proper motion would be that the committee rise and report progress, and I so move that this committee TAVARES: I thank the delegate for his courtesy. It seems rise and report progress. to me that we are being a little over technical in this proceed ing. The purpose of a meeting of the Committee of the Whole SAKAKIHARA: I second that. is informality and the first thing we run into when we get into CHAIRMAN: It’s been moved - - the Committee of the Whole is a lot of technicalities. Now, it seems to me we are, as I say, over-emphasizing those KING: I would like to speak in opposition to that motion. technicalities. The motion that resolved the Convention into the Committee In the first place, if we have a hearing here and we are of the Whole was to act on the resolution which was a part convinced at that hearing that some of the facts stated in the of the recommendation of the special committee that dis resolution or conclusions stated in that resolution were not cussed and considered the qualifications of Delegate Frank correct, what is there to prevent this committee as a Com Silva to retain his seat. So far as I know, the findings have mittee of the Whole, which cannot take final action, recom not been brought into question until this morning, and the mending to the Convention that we suspend the rules and motion of the - - to return to the Convention and reconsider reconsider. There is nothing to prevent us from doing that. the action on the special committee seems to me ill-timed In the meantime we can become informed on these matters. and unnecessary. The proceedings, in my opinion, should I think if we go back into the Convention and the formal hear go ahead on the consideration of the resolution. ing now, or the formal meeting of the Convention, we will Now, if the resolution is wrongly phrased, the Commit not have the opportunity to be as well informed and as fully tee of the Whole may, by proper motion, adopt an amendment informed as we can in this Committee of the Whole. and then rise and report to the Convention the adoption of the Now there is one other matter I’d like to suggest and that resolution introduced this morning in carrying out the recom is, if we are going to wait for a transcript and it is going to mendations of the special committee with amendment, which take a long time, unless we can take up that time in useful in may suit the technical point. Unless the Convention wishes formation being given by various members, we ought to then to go back to the original finding, which seems to be desired rise and ask leave to sit again for that purpose; and I, for by some members, it seems to me unnecessary to reconsider that reason, am opposed to the motion to rise and sit again, the action taken the other day in adopting the report of the if it is for the purpose of reconsidering our action. Because committee. I think this Committee of the Whole can more fully decide I sat in on two hearings of that committee and they made whether that is proper in a Committee of the Whole than we a very exhaustive inquiry into the matter and had before them can in the Convention sitting formally. But if it’s for the the transcript of the evidence before the House UnAmerican purpose of allowing us time to wait for that transcript, then Activities Committee. Nevertheless, in the finding the com I’m in favor of it. mittee reported that that was in part extraneous matter, that CHAIRMAN: The Chair would like to state that since the the issue depended upon the action of Delegate Silva in de second to the motion to rise ha~ been withdrawn, that the clining to testify and not with any regard to the evidence that motions that are before the house —and the movant has might have been produced in that committee charging him accepted all the amendments as to the printing of the state with being a communist, which, of course, he has denied. ment and other documentary evidence, including the trans Now, he has made his statement in his own defense in cript—would assist this committee regardless of any ultimate this Committee of the Whole. The statement is available, ruling as to whether we are considering purely the resolution and I presume the Chief Clerk is having it stenciled now or are, as the delegate from the fourth district indicated, so that copies may be made available very soon. I would going to report back that we reconsider our action on the prefer to suggest that the Committee of the Whole rise to committee report. provide for a recess, but not for a reconsideration of the The chairman would like to place that motion on the floor findings of the special committee. I, therefore, suggest and ask if you are ready for the question. This is the motion that the motion do not carry. to have printed the statement of Delegate Silva and any other C. SILVA: I think there is a motion on the floor. A documentary evidence he has to offer and the transcript. motion to go out of the Committee of the Whole into regular Are you ready for the question? 850 CONSIDER THE DISQUALIFICATION OF DELEGATE FRANK G. SILVA NIELSEN: There’s one thing that I’m not clear on and CHAIRMAN: I recognize the delegate from the fourth possibly it could be handled at the same time, that is, district. whether we have the right to expel this delegate. I think that if in going into these other things that some legal advice HEEN: I am in accord with the suggestion made by the could be given on that, why we would be a whole lot clearer previous speaker, but not to the extent that the lawyers in our thinking regarding this expulsion. Now according to who are delegates here represent Mr. Silva. We are going Cushing, why you can only expel after two weeks and we’re to act upon the resolution or some other resolution in supposed to follow Cushing when it’s not in our own rules, reference to any attempt to expel him from the Convention. and I’d like that to be considered, too. I wpuld amend the motion made by the previous speaker that he be allowed to have his own counsel. He’s entitled to it. CHAIRMAN: Act 334 setting up this Convention specifi— cally puts the usual provision that this body is the sole judge SAKAKIHARA: Is that a motion to amend? of the qualifications of its members. CHAIRMAN: That’s a motion to amend. AKAU: Will you please tell me what we’re voting on? MAU: That’s acceptable to me, but, of course - - We’ve gotten so involved with technicalities, I’m not sure if we’re voting on the resolution. Are we voting on to have KING: Before the Convention went into session - - was the printing done, or just what? Would you clarify that called to order, I discussed this very question with Delegate please? Silva and told him that I felt sure that the Convention would be happy to have him represented by counsel of his own CHAIRMAN: We are voting on the motion that’s been choice, if he desired. At that time he said counsel was twice amended and accepted by the original movant. First, present in the audience and if he felt he needed it, he would that the statement read by Delegate Silva just a few moments perhaps ask the Chair to permit the counsel to be with him. ago be printed and distributed to the members; and that he Delegate Silva just a moment ago was on his feet. I gathered be allowed—and the Chair will ask him if the motion is from what he told me that he did not desire counsel. I carried — if he wishes, to submit any other documentary suggest that he be asked whether he wishes counsel. evidence, which in turn would be printed and distributed to the members; and thirdly, that the transcript that was CHAIRMAN: I was going to recognize the delegate from available and used by the special committee of this Convention Kauai. Do you wish to state anything to the Chair or to the be likewise printed and made available to the members. committee on this question? Is that clear? F. G. SILVA: If I am going to have counsel, I would like to have counsel of my own choosing. HEEN: My understanding of that is that only parts of the transcript be printed. MAU: A point of information. The delegate didn’t say whether he wanted counsel. Would you put that question CHAIRMAN: Only the portion that refers to the testimony to him? of the delegate from Kauai at the UnAmerican Activities Committee. That’s correct. CHAIRMAN: I asked him whether he wanted - - whether he had anything to say on the question. I’ll ask this then. MAU: Let’s dispose of the motion before the house as Do you wish to have counsel in this hearing, Delegate Silva? amended. I move the previous question. You do? The Chair will rule, however, that any attorney who is a member of the committee is automatically dis - CHAIRMAN: Are you ready for the question? All in favor qualified as he himself will have to pass upon the merits of signify by saying “aye.” Contrary minded. Carried unan the proposition. imously. The Clerk is instructed to carry out the provi sions of the motion. MAU: I’d like to call your attention to this tradition and I recognize the delegate from the fifth district, but before procedure, Mr. Chairman. Of course, under our rules, by that I’d like to ask the delegate to yield a moment. I’d like a majority vote we can suspend our rules which includes to ask Delegate Silva if he has any other documentary evi Cushing’s Manual and all the rules stated therein. Ordinari dence that he wishes to submit. He says there is - - he has ly in a body like this, counsel is selected from within the nothing further and the Chair would like to point out that his group but I am very happy if the delegates will vote so that previous press statement has already been distributed to Delegate Silva will have counsel of his own choosing. I the members. His statement to the special committee has would be for that 100 per cent. likewise been distributed to the members and a letter per CHAIRMAN: There was a motion before the floor; the taining to this matter written by Mr. Hall of the I. L. W. U. Chair overlooked it. There was a motion that was amended has been distributed. So I think we have all the information to permit Delegate Silva to choose his own counsel and I now. believe that has been duly seconded. I’d like to recognize the delegate from the fifth district. I asked him to yield for a moment. HEEN: I suggest that he accept that amendment; that the previous speaker accept that amendment. I understood MAU: Although we’re sitting informally as a Committee him to say that he would accept the amendment. That is of the Whole, from the discussion past, we are going to then, that the motion is that Delegate Frank G. Siiva be make certain findings of fact and go into facts. The delegate authorized to choose his own attorney to represent him in in question is on trial. It seems to me proper, and other this hearing before the Committee of the Whole. bodies like this one have rules to provide for it, that the delegate be provided counsel from amongst the delegates CHAIRMAN: Then the Chair’s remarks will be consider in this Convention. I think that is proper to protect his ed out of order. Are you ready for the question? All in rights. And, therefore, I move that the Chair appoint favor signify by saying “aye.” Contrary minded. The Chair Delegate William H. Heen and Delegate J. Garner Anthony informs you, Delegate Silva, that you are free to select an to ~ct as counsel for Delegate Silva in this Committee of attorney of your own choosing. the Whole and in the Convention, if necessary. HEEN: I now renew my motion that this committee rise, SAKAKIHARA: Mr. President. report progress and ask leave to sit again. C. SILVA: Mr. President. SAKAKJHAJIA: I second that motion. 851 APRIL 20, 1950 • Afternoon Session CHAIRMAN: It’s been moved and seconded that this whose seat is questioned to remove himself from any further committee~rise, report progress with leave to sit again. deliberations of the committee. There being no objection Are you ready for the question? All in favor say “aye.” I’ll ask the delegate from four - - from Kauai to absent him Contrary minded. We will now recess as a Committee of seif from any further deliberations of the committee. the Whole. I will now recognize the gentleman from the fourth district who yielded to the Chair. Afternoon Session KING: May I make a point of order? I think the delegate from Kauai, Mr. Silva, should withdraw, not only refrain CHAIRMAN: The Committee of the Whole is now in from participating in the discussion, but as I understand the session. The purpose of the Committee of the Whole, as rules of order, he should leave the assembly. you all know, is to consider the resolution which is on the CHAIRMAN: Well, that was my understanding. I used floor of the Convention. At the time that we reported our the term “absent” but I meant it in the term of withdrawing partial, or made a partial report before the noon recess, from the assembly. Will the - - the Chair ordered that all the documentary evidence, state ments of the delegate from Kauai, and the pertinent portions MAU: I’m wondering whether or not facilities - - physical of the transcript be printed. I’ll ask the Clerk if that has facilities shouldn’t be arranged so that the delegate and his been done. counsel could be right in front of this Convention. I think that ought to be offered to them. CLERK: That has been done and it has been distributed. CHAIRMAN: Are you questioning the parliamentary CHAIRMAN: And distributed. At that time the Chair procedure? likewise asked the delegate from Kaual if he had any further documentary evidence to submit and he said no. At this time MAU: No, no; I’m just saying that a space should be the Chair would like to ask the delegate from Kauai if he set aside, a table set up and chairs there where they can sit, has anything further to submit to the Committee of the Whole. KING: Another point of order. That’s not the ordinary F. G. SILVA: I haven’t anything more to submit, but I procedure for a parliamentary body or a legislative body. would like to notify the Chairman that my counsel is Mr. The gentleman whose qualifications are being questioned has Myer Symonds and Harriet Bouslog. stated that he has no further evidence or testimony or state ment to make and he is requested to withdraw from the CHAIRMAN: Will the record note that fact. Then I assembly. He may take a seat in the audience and his think under our rules, which incorporate Cushing’s Parlia counsel is present, they can advise him, but they are not mentary Procedure, it’sproper at this time that the delegate going to argue a court case. This is a case of a legislative from Kauai withdraw from any further deliberations of the organization deciding as to the qualifications of one of its committee. If there is no opposition to that statement of members. the Chair, the Chair will request that the delegate from Kauai withdraw from the further deliberations of this com CHAIRMAN: I think your point is well taken. That’s my mittee. understanding of parliamentary procedure. The statements on behaif and all the evidence on behaif of the delegate under HEEN: Is it clear in the record at the present time that question have been submitted to this committee. the delegate from Kauai, whose seat in the Convention is under question at the present time, has no further evidence SAKAKIHARA: I have a resolution at this time which I to present? desire to offer. CHAIRMAN: Oh, perhaps I was in error in recognizing CHAIRMAN: That is the Chair’s understanding. I asked the gentleman from Hawaii as Mr. Anthony had yielded the the delegate from Kauai that question and he said he had floor to the Chair at the outset. So at this time the Chair nothing further to present but he wished to notify the Chair will recognize the delegate from the fourth district. that his counsel was the firm of Bouslog and Symonds. Is that correct, Mr. Silva? ANTHONY: May I sit down? HEEN: I would like to ask whether or not the delegate ASHFORD: I rise to a point of order. in question has any further statements to make. KING: I still make the point of order that the gentleman CHAIRMAN: The Chair will direct that question to the from Kauai has not withdrawn from the assembly. delegate from Kauai. Do you have any further statements CHAIRMAN: Oh, I thought he had. you wish to make to this committee? The delegate from Kauai has replied in the negative. F. G. SILVA: In order to make use of my attorney, I believe that I should be sitting next to my attorney. MAU: May I inquire if the delegate’s counsel is present? We’d like to proceed with the business. CHAIRMAN: You have that privilege, Mr. Silva, but under our rules and the rules that were adopted by this CHAIRMAN: The delegate from Kauai has indicated that Convention, the rule is that the member whose qualifications his counsel is present, I assume in the assembly hall some are challenged is to remove himself after he has made and where. presented to the committee all of the evidence he has to ANTHONY: I would like to make a statement in connec offer. He is to remove himseif from deliberations of the tion with the debate on the resolution and address myself assembly. particularly to the one statement of law contained in the FUKUSHIMA: I rise to a point of order. If we are to do report of the special committee; and since I must read this correctly, I think we should follow Cushing’s Rules of from several documents, I’d like to request the permission Parliamentary Practice. It does not make it mandatory of the Chair to sit down. for the member to withdraw. He may be asked to withdraw - - I withdraw that. If he does not do so of his own accord, CHAIRMAN: You may, but before we proceed to that, will the gentleman of the fourth district yield the floor for then the delegation here may ask him to withdraw, but if a moment. I have asked the Convention, if there is no he makes an offer, he may be permitted to remain. If that objection to the statement of the Chair, that it is proper is explained to the Convention, I think we could do it ex under parliamentary rules of procedure that the delegate pediously and do it correctly. 852 CONSIDER THE DISQUAlIFICATION OF DELEGATE FRANK G. SILVA CHAIRMAN: I would like to read from Cushing the prop of it. This is not a court of law and there is not going to be osition that the Chair bases its ruling on. Page 5, Section any arguments pro or con. The delegates are going to dis 8. “Question of membership. When a question arises in cuss among themselves the qualifications of this delegate volving the right of a member to his seat, such member is to be seated, Since Delegate Anthony has withdrawn his entitled to be heard on the question and he is then to withdraw motion, it seems to me the business before the Convention from the assembly until it is decided. But if, by indulgence is to have the delegate from Kauai leave the floor of the of the assembly, he remains in his place during the discus assembly. sion, he ought never to take any further part of it.” I pre faced my remarks by asking whether there was any objection SAKAKIHARA: I have a very important resolution here to the Chair’s statement. There being none at the time, I which I would like to see acted upon. requested the delegate from Kauai, having completed his CHAIRMAN: In the meantime I will have to ask the - - statements and his evidence, to withdraw. I will now recog since there is no objections to the Chair’s statement of nize the delegate from the fourth district. Cushing, I’ll have to ask the delegate from Kauai to leave the assembly floor. ANTHONY: To bring this issue to a head, apparently Mr. Anthony, the delegate from the fourth district, will there is some difference of opinion among the delegates. I you yield for the purpose of this resolution? I’ve asked you see no objection to Mr. Silva retaining his seat but taking many times to yield in the course of what was going on here no part in the deliberations of this Convention, and I so and I feel that you should be heard first if you so desire. move. If he wants to bring a chair in for his counsel, let him bring a chair in. ANTHONY: I would like to, Mr. Chairman, because I think, I know what is in the resolution and I don’t think k’s NIELSEN: I second the motion. necessary. If I may proceed. SAKAKIHARA: I second it. CHAIRMAN: The Chair, Mr. Sakakthara, in line with CHAIRMAN: It’s been moved and seconded that by in its previous rulings feels that Mr. Anthony had the floor dulgence of this Convention, or this committee that the dele first and yielded to the Chair. I assure you, Mr. Sakakihara, gate from Kauai be allowed to remain on the Convention floor that you wUl have the floor next for your resolution. accompanied by counsel. Are you ready for the question? KAUHANE: I rise to a point of information. It seems that FONG: Point of information. As I understand it, the the delegate from the fourth district knows everything that is delegate from Kauai has already submitted everything that contained in the resolution that the delegate from the first he desires to be submitted to this Committee of the Whole. district intends to introduce here. If that is somewhat of a Is that right? closed and a two man affair, then I think the rest of us who sit here as delegates to decide the question should not CHAIRMAN: That’s correct. be present and let him, the delegate from the fourth district, FONG: He has submitted all his documents. He has decide everything. Let us hear what the delegate from the no further statement to make. Is that right? first district has to offer in his resolution. CHAIRMAN: He was so asked, and he declined - - stated ANTHONY: I yield. Let’s get along with the business. that he had no further statement. CHAIRMAN: Do I understand the delegate from fourth FONG: Well, if that is so, then in my mind it seems now district to yield his position? Very well. Clerk, wfll you that the deliberations are only the deliberations as far as read the resolution? we are concerned. We are now sitting as jury or as judge upon this man who has already been given his thy in court. CLERK: I see no purpose could be accomplished by allowing him and Resolution. Resolved by the Hawaii State Constitu his attorney to sit before us here, because he has already tional Convention that the attorney general of the Terri said his say, he has been given all opportunky to say what tory of Hawaii is hereby requested to render an opinion he wants to say. He has been given an, opportunity to be as soon as possible as to whether the delegates assembled represented by counsel and he has nothing further to say in Convention have the power to expel a fellow delegate and there is nothing accomplished by having him remain under the provisions of Section 2, Act 334, Session Laws here with his counsel. of Hawaii 1949. ANTHONY: I think the point is well taken and I’ll withdraw SAKAKIHARA: I respectfully move the adoption of the the motion. resolution. F. G. SILVA: Point of order. I was asked if I wanted HEEN: I move that we defer action upon this resolution counsel. I have brought my counsel here wkh me. I have at the present time. After the deliberation on the part of no more written statements to add, but if you want to hear the Convention, based upon the evidence that has been pre legal arguments, my attorneys are here. sented to it, it may not be necessary to ask for the advice of the attorney general. After we have acted upon the orig CHAIRMAN: Well, I wish to point out also that is not inal resolution, if there is any question as to the authority customary parliamentary procedure except by permission of the Convention to punish the delegate from Kauai, then I of the Convention - - of the legislative body so-called. No one other than a delegate is permkted to speak on the floor think it would be proper time then to ask for the opinion of except by invitation or consent of the Convention. However - - the attorney general. Therefore, I move that we defer action until later on in the proceedings on the resolution that has KING: Point of information. The motion that was just been read. originally put by Mr. Anthony was wrongly phrased by SAKAKIHARA: May I offer an amendment to the resolu the Chair, I believe. The motion was that the delegate in tion? question, the delegate from Kauai be allowed to sit in the assembly with his attorneys but take no part. Now the CHAIRMAN: There has been no second. difference between the assembly and the audience is a SAKAKIHARA: Instead of an opinion to be rendered as matter of a railing there. It seems to me there is no point soon as possible, and in lieu thereof, that the attorney in having the delegate seated on the floor of the Convention general is hereby requested to attend the meeting of the with his attorneys if they are refrained from taking any part Committee of the Whole forthwith. ~0~ 853 APRIL 20, 1950 • Afternoon Session GILLILAND: We have two former attorney generals mittee. There is also no doubt that they can compel testi here. What more do - - Why do we want another one? mony, but the precise issue that is raised by Delegate Silva has not been adjudicated by the courts. In fact, there is a CHAIRMAN: I take it that was a point of information decision rendered in the Ninth Circuit Court of Appeals, from the gentleman from the fifth district. on the fourth day of February 1950, in which a witness was CROSSLEY: I second the motion to defer. asked the same question, whether or not he was, or is, or ever was a communist, in a grand jury proceeding, and CHAIRMAN: It’s been moved and seconded that we defer he declined to answer that question on the grounds that it action on the resolution. Are you ready for the question? mind tend to incriminate him. His refusal to so testify was All in favor say “aye.” Contrary minded. It appears to the affirmed by the Ninth Circuit Court of Appeals. Chair that the ayes have it. The resolution be deferred. Now the basis of the position of such persons refusing to Now, Mr. Anthony, the Chair will recognize the delegate testify is simply this. They contend that in view of the trial from the fourth district. of the communists in New York under the Sedition Act, any ANTHONY: Thank you, Mr. Chairman. person who will admit membership in the Communist Party, Fellow delegates, in the first place I think we all should or who will disclose evidence that he may have been a mem appreciate the very heavy responsibility that rests with this ber of the Communist Party, is liable to prosecution under body in these deliberations, and I think a particularly heavy the Smith Act. So the precise question that is now raised responsibility rests upon those members of the body who are by Delegate Silva has not been passed upon by the courts. members of the bar. I would like to explain the legal situa My own view is that the probabilities are that he would have tion in regard to the right that Delegate Silva has asserted a privilege if he answered the question. before the House UnAmerican Activities Committee, not to There is one other thing that has not been brought out. testify upon the ground that it might tend to incriminate A witness claiming a privilege can testify, he can give cer him. And in that connection, I would like to call the com tain answers, and then he can interrupt his testimony at mittee’s attention to a statement in the report of the special any point he chooses, and say then at that point, “I decline committee on page 2. That statement that I wish to call to testify further.” But I think the important thing to bear attention to reads as follows: in mind in these deliberations is that there is a possibility that the very question that was propounded of Mr. Silva may No witness who testifies before the House UnAmerican be a privileged question. In other words, it may be in Activities Committee can be prosecuted for any crime violation of the Fifth Amendment which prohibits the com which his testimony may divulge save and except the pulsion of testimony tending to incriminate persons. crime of perjury committed in the course of such testi Therefore, it is entirely possible that if Mr. Silva later mony. be cited for contempt by the House committee, the same Now, I would like to call the Convention’s attention to the Ninth Circuit Court of Appeals might hold that in view of privileged section of the Criminal Code of the United States its decision in the Alexander case, which I just referred to, which is Title 18, Section 3486, which reads: this particular question was privileged; and therefore, the finding of contempt cannot stand under the Constitution. No testimony given by a witness before either House, That is the reason why I took up with the President this or before any committee of either House, or before any morning the matter which has been the subject of some joint committee established by a joint or concurrent reso discussion here, because the statement in the committee lution of the two Houses of Congress, shall be used as report was a dogmatic statement of the law which I do not evidence in any criminal proceeding against him in any believe, after careful examination of the authorities, I care court, except in a prosecution for perjury committed to subscribe to. in the giving such testimony. But an official paper or record produced by him is not within such privilege. There is the further question, however, whether or not the conduct of Mr. Silva, he as a delegate to this house now What I would like to call to the attention of the delegates engaged in the business of trying to draft a constitution for is this, that the immunity that is granted by the section that the State of Hawaii, is such that, such a contumacious con I have just read is not an absolute immunity. In other words, duct that he is now disqualified from sitting as a member in if there is in that committee hearing, the UnAmerican Acti this body. vities Committee hearing, evidence produced which might lead to the introduction or the discovery of further evidence On the question that is the subject matter of the delegate that the witness before that committee is guilty of a crime, from Hawaii’s request for an opinion, I doubt very much if that might be an avenue for the discovery of a criminal act that is necessary. Act 2, the last sentence, creating this 2nd yet that would not be using his testimony. In other words, very Conventton provides the Convention shall be the judge there may be some basis for the contention of Mr. Silva of the election returns and qualifications of the delegates. that he is within his constitutional rights in declining to It doesn’t make any difference whether or not this is in fact testify on the ground that it would incriminate him. That is contempt, whether or not this committee in the future does the question which I would like to have very clearly in mind cite him, whether a court will find him guilty, we are the before this committee votes on his qualifications. sole judges of the qualifications of our members. That is Now there is one other thing. You are all familiar with not only true under the statute but is true as a matter of the so-called Hollywood Ten Cases. Those cases involved general law. those persons in the moving picture industry in Hollywood But the thing I did want to bring home to the body, all who were summoned to appear before this same committee the delegates who are going to vote on this problem, is that and declined to give any testimony but said they would re his refusal to testify cannot be brushed off as just sheer main silent, standing on their rights guaranteed to them recalcitrance on the part of Delegate Silva. It may be that under the First Amendment, which is free speech. That he has a valid constitutional position, and I think that in particular case went to the Court of Appeals of the District our deliberations we should remember that. The reason of Columbia, that contempt case, and the conviction of that I am bringing this to the attention of the Committee contempt was affirmed. Certiorari was denied in the of the Whole is that I am persuaded that we should follow Supreme Court of the United States. the meticulous and scrupulous care, affording this man There in no doubt about the validity of the constitution every reasonable opportunity and a fair trial in this matter. of the UnAmerican - - House UnAmerican Activities Com That’s all I have to say, Mr. Chairman. 854 CONSIDER THE DISQUALIFICATION OF DELEGATE FRANK G. SILVA CHAIRMAN: I recognize the delegate from the filth dis granted to it by law? In my lay mind, I say no. Frank trict. Silva is, and has been qualified, to sit and participate in AKAU: Thank you. I wondered, pursuant to the delegate this Convention. And why? Because he meets the qualifi from the fourth district’s statement, if I might make a short cations set forth in Act 334. Beyond this act it’s my personal statement which is in line also with the resolution submitted feeling, and I’m not a lawyer, that the Convention cannot go. by the special committee. If this Convention, on its own accord, is permitted to conjure up false and arbitrary qualifications of delegacy out CHAIRMAN: Proceed. side of Act 334, then every delegate seat in this Convention AKAU: Today this Convention is on trial. Delegate Frank is in jeopardy—yours and yours and yours. What do the Silva is a conscience of this Convention. Repeating Mr. people of Hawaii want us to do in the case of Delegate Silva? Anthony’s statement, this Convention is the sole judge of The man or the woman in the street? The worker in the the qualifications of its members, but once it designates cane field? Or the pineapple field? My good friends, this itself as judge, it must automatically bear a judge’s is the supreme test of the Convention. If we fail in this test, responsibility. As an American judge sitting in the case then this Convention, it seems to me, is but an empty ges of Frank Silva, this Convention is bound to observe and ture. We all know in our hearts as good delegates, what follow the simple rules of American justice and procedure. the majority of the people really want us to do. The question is, it seems to me, is Frank Silva guflty I want to quote just a short statement from the Bible. at this point? I say, no. Every person is presumed to “Judge not, that ye be not judged. For with whatsoever be guilty until he has proven himseif innocent. It doesn’t judgment ye judge, ye shall be judged.” say that, it says just the opposite. Then the trial begins. Who must prove the case? The defendant? No. The bur A. TRASK: I presume that by now the delegates have den of proving a man guilty falls upon the prosecutor and reviewed the transcript, pertinent parts of which the dele the accuser. In Russia, Delegate Silva would be purged gate from Hawaii had requested. I think they are all on the without a fair hearing and trial. Of what is Frank Silva desks. I think the delegates have read the last letter from guilty? Is he guilty of contempt of Congress? How many Mr. Silva. delegates know that Frank Silva is only liable for contempt I move at this time in view of all the evidence before this of Congress and is not guilty of contempt? How many dele body, this committee, that the resolution before this com gates know that a majority of the members of Congress mittee be amended to read as follows: At the end of the must vote yes on the committee’s resolutions to indict first line after the words “by reason of his,” insert the Delegate Silva before he can be indicted? How many of you following words, “contumacious conduct and recommended realize that if indicted, Mr. Silva must be on trial in a citations for.” Again, the amendment is as follows: After local federal court of law, before a jury? How many of you the word “his” on the first line, insert “contumacious con know that only proper and admissible evidence may be duct and recommended citations for.” submitted to the court? The question is, is Delegate Silva The reason for the amendment is to afford the members, now at this moment guilty of contempt of Congress? In my in view particularly of Mr. Anthony’s remarks, that we lay mind, I say not legal, in my lay mind, I say no. have perhaps not a legally justifiable contempt as considered Delegate Silva was recently presented with a Convention as such according to the law books. We have, however, as ultimatum to either purge himseif of contempt before the judge, and it is our responsibility without fear to judge, committee or take the consequences. I ask you, delegates, irrespective of quotations from the Bible. Our courage has what contempt? There is no contempt. Is Mr. Silva guilty been attacked. We are all supposed to be hoomalimali artists of perjury? In my lay mind, no. How has he perjured of the Big Five. We are supposed to be assisting in the himself? Delegate Frank Silva is guilty of no felony or sniping by the public press. We are motivated by fear and misdemeanor, no violation of law or qualifications. Is he hatred. We are “plotters, politicians, Big Five lawyers, guilty of anything? Why does this Convention then, without unscrupulous, callous and unAmerican.” We are fearful actual proof, without admissible evidence, continue to of facing the Big Five. These sundry remarks in the last persecute and falsely accuse him of guilt? I keep asking, statement of Mr. Silva makes him persona non grata before guilty of what? It is the peak of irony to realize that this this body. Convention while attempting to write an American Bill of We are here to consider, not so much as a court of law, Rights into its Constitution, if you please, now totters whether or not he is in fact guilty of contempt before this dangerously on the fatal brink of being the first to violate committee; but we are to consider broadly all the evidence its own Bill of Rights. in hand and then to pose the question, is this person in Again it is admitted that this Convention is the sole judge truth a person who could aid us in our fight and determina of Delegate Silva’s qualifications. But I ask, what are those tion for statehood. Obviously not. He is defying by his qualifications? If you have read Act 334, the first qualifi conduct the very Congress to which we are beseeching, rec cation is that a delegate must be elected by a majority of ommending, working night and day in our entire history, the votes cast within his election area. Delegate Silva has 50 years of working for this one moment of admission at fuifilled this particular qualification. The citizens of his the bar of Congress. And in our midst we have a person community elected him to be their delegate to the Convention. who defies the power of that very body. I say, therefore, The only other major qualification cited in Act 334, which that we should use the broad base, and I move the amend all of us - - each of us have received, is that he sign a ment. loyalty. oath. This he did just as you and I did. He has CHAIRMAN: Any second to that? subsequently reaffirmed this oath in writing, verbally, and in the press. Does Act 334 state that each delegate must, CASTRO: Point of information. as a qualification, appear before the UnAmerican Activities CHAIRMAN: State your point. if he is requested to do so? Does Act 334 require as a quali fication that each delegate must answer the questions of the CASTRO: Relating to the suggested amendment of the committee? Does Act 334 state that a refusal to answer or delegate from the fifth district, the words “recommended citations for.” The information I seek is, have the recom to speak before this committee amounts to a disqualification? mendations for citations been made by the House committee? What is the purpose of Act 334? What are laws for in Ameri ca? Can an elective body, such as this Convention, legally CHAIRMAN: I’ll ask the gentleman from the fifth district or morally move outside of the scope of the specific powers to answer the question. 855 APRIL 20, 1950 • Afternoon Session A. TRASK: I think President King could answer that. of the legislature, they are placed under a cloud because every person who is a member of the legislature very often CHAIRMAN: Mr. President, do you wish to answer that? is called a politician. There are all kinds of politicians. KING: Frankly, I am unable to answer that as a matter Some are good, some not so good, some are peanut politi of absolute fact. Merely the press report that the House cians. “The Big Five lawyers, the unscrupulous.” They, the Committee on UnAmerican Activities said they were going delegates of this Convention are “unscrupulous, callous and to cite Mr. Sliva for contempt of court. unAmerican.” “They are the ones”—the delegates here— “who falsely pretend that this is a bipartisan Convention. CHAIRMAN: Does that answer your question? What nonsense. This is no bipartisan Convention. This is a Republican dominated and Big Five Convention.” There CASTRO: I believe in view of that answer and my own fore, all the members of this Convention are under a cloud. knowledge of the situation that the recommendations have not We are here under the domination of the Republican Party, yet been made ly the Congressional body in question, I would and I deny that, speaking for myself. And that we are like to suggest—although I am hardly in accord with the dominated by the Big Five, and as to that, speaking for spirit of the amendment—that the delegate to the fifth district myself again, I deny that. consider a rewording, in view of that fact. That is to me the picture in a nutshell as to whether or not, if we find that he has been loose in the use of his HEEN: In order to act intelligently upon the amendment language in placing a cloud upon every member of this Con proposed by the delegate from the fifth district, I would vention with language such as he has used, those constitute suggest that that resolution as amended be written out in grounds for punishment. Then I say, let us proceed, and full so that we can study it and analyze it to see whether or determine that question. not it’s going to meet the situation as it appears in the evi dence at the present time. ASHFORD: May I read in connection with the remarks It is my understanding from listening to the delegates made by the delegate at large from the fourth district some who have already spoken upon this subject that the Convention of the statements made in writing and submitted to the will not use as a ground for punishment, whether it be by special committee and again through that special committee way of expulsion or some lesser method of punishment, will submitted to the Convention. not consider the question as to whether or not Delegate CHAIRMAN: You may. Frank G. Silva has committed contempt. I think some time this morning during a meeting of this committee I pointed ASHFORD: Presented by Frank Silva in person. out the fact there has been no finding of guilt of contempt up to this stage of the proceedings. It may be that he has CHAIRMAN: You may and you may resume your seat been cited or will be cited to answer a charge of contempt, for ease of reading, if you wish. but certainly there has been no finding of contempt. Eventu ASHFORD: If you please. On the second page of the ally there may be a finding that he is not guilty of contempt. mimeographed statement attached to the report. Now, have we in the evidence here before us any facts which might constitute grounds for expulsion or some lesser 2. That my request to testify before the committee method of punishment? It would seem to me that we should would be a recognition that the committee is conducting analyze the evidence now before this committee to determine the hearings for a valid purpose, whereas it is obvious and find from the evidence those facts which might constitute that: grounds for punishment. It may be that the charge that he a) The hearings were timed by Governor Stainback has made reflecting upon the integrity, the honesty of the and Big Five interests to coincide with the Convention members of this Convention, that those charges might consti hearings in order to defeat statehood; tute grounds for some form of punishment. b) The hearings are forihe purpose of destroying I refer particularly, Mr. Chairman and members of this the I.L.W.U. committee, to the statement made by Delegate Frank G. It has always been my position, it still is, that the real Silva appearing on page 5 of the written statement that he reason for the disqualification of Frank Silva to sit as a presented to the Convention, or rather to this committee delegate in this Convention is that he is contemptuous of this morning. The third paragraph on that page, “There are the very forces of order, the very operations, duly organ those in this Convention who are not motivated by fear.” It ized legislative organizations and governmental organiza may refer to me, it may refer to you, I don’t know to whom tions for which he is here to~write the basic law. I fully he refers to particularly; but there is this charge that is a concur with what the delegate from the fourth district has said cloud upon every member of this Convention. “They.” about the charges concerning this Convention itself. If we Who? The members of this Convention. It may be you, it were the attorneys for the Big Five, a lot of us would like may be me. There’s no specification who they are. “They to see the color of the retainer. are motivated by hatred.” Then he says again, “They”—the I, too, would like to quote from scripture. “Render members of this Convention—”are the ones who have black unto Caesar that which is Caesar’s and unto God that which listed me since my youth.” Speaking for myself, I have is God’s.” never blacklisted Frank G. Silva. I did not know him before he came to this Convention. But there must be others, in AKAU: I’m not refuting any arguments and I’m not view of that statement, delegates of this Convention who making apologies for Mr. Silva. As I told you the other have blacklisted Delegate Frank G. Silva since his youth, day, I never saw him before the first day of the Convention. that is at the time when “I was first fired out of the planta In answer to the delegate from the fourth district, the dele tion for union activities.” “They”—the delegates of the gate at large, I simply offer this. That some of us have had Convention, who they are I don’t know—”They are the ones an opportunity for more formal education, some of us have who would blacklist anyone who would dare to stand up and been fortunate in having university training and that sort of speak on behalf of the working people, the majority of the thing. The rest of us may not have had that. In the writing people of Hawaii.” “They.” Who are they? Every member of a statement it isn’t always easy for a man who has gotten of this Convention is placed under a cloud because he says, his education the hard way to put it down just as somebody “They are the plotters, the politicians.” All the members who has had attorney training, law training or educational of the legislature who sit here in this Convention, all the what-have-you. I’m simply interpreting that the words that members of this Convention who were at one time members have been used—and again I say, I’m not apologizing—that 856 CONSIDER THE DISQUALIFICATION OF DELEGATE FRANK G. SILVA they may have been collective, that they may have been used CHAIRMAN: Will the delegate from the fourth district quite innocently or unintentionally. And again I say, it may kindly repeat his motion in full? Have you that in writing? be due to not so much formal education. Thank you. PHILLIPS: Yes, I have. SHIMAMURA: May I be permitted to address myself to CHAIRMAN: I’ve asked the delegate to repeat his motion a point of law raised by a previous speaker, Mr. Chairman? for the benefit of the entire floor. I don’t think that they CHAIRMAN: You may. heard it in full. ANTHONY: I was going to make the suggestion that we SHIMAMURA: The speaker stated that we are proceeding recess in order that any other delegates that have similar under Section 2, Act 334 of the Session Laws of 1949. I ideas may - - recess until the call of the chairman - - submit that we are proceeding under that section, “The Convention shall be the judge of the elections, returns and MAU: I second the motion. qualifications of the delegates.” And as the members here ANTHONY: - - and present that to the Chair. know, similar provision is found in our Organic Act and also in Article 1 of the Constitution of the United States, which I CHAIRMAN: The Committee of the Whole, as I under believe is Section 5. “Each house shall be the judge of the stand it, cannot recess. We can again rise and report elections, returns and qualifications of its own members.” progress. Under those provisions, as many members of the Convention ANTHONY: My parliamentarian tells me otherwise, here know, the courts have held that the convention or the Mr. Chairman. house, as the case may be, is the sole and final judge of the qualifications of its members. And further, that the KING: A point of order. I think the Committee of the power for removal and expulsion had by the house under Whole can recess. It carries out the regular rules of the such a provision remains throughout the convention or Convention and may not recess beyond a day, but it may throughout the session of the legislature. recess for a few minutes. I’ll second Delegate Anthony’s On that point, 49 American Jurisprudence, page 252, states motion that we recess to the call of the Chair. as to the position and power of the legislature. “The legis C. SILVA: I think in courtesy to the person who made lature, or each branch thereof, usually has complete control a motion first, you should give time to anyone wanting to over the conduct of its members, which includes the right second the motion. If there isn’t any second, then you to remove them. . . Such body has the power also to expel should recess right after that. I think that some of the a member, and on such expulsion his privilege from arrest members jumped the gun. There’s a motion made that - - on mesne process ceases.” In short, the authority of the legislature — speaking of the legislature, that is, — “in such CHAIRMAN: The Chair asked the movant to repeat his a matter is well nigh absolute and the courts have no power motion because it came in the body of a speech and I don’t to control, direct, supervise or forbid its exercise by think that all of us understood when the motion began. Be either branch of the legislative department.” fore we entertain the motion to recess, I will ask the dele I’d like to emphasize the fact, as I’ve already stated, gate from the fourth district to please repeat his motion that the power of this body to control its members, that is in full so that the members can grasp the significance of it. to inquire into the qualifications of its members, remains PHILLIPS: I apologize for being so rapid. I move that throughout the session of the Convention and does not in view of the attitude demonstrated by Delegate Silva that cease by merely seating the member at the inception of the he be removed ftom the Convention on the grounds that his session. own accusations against us could not possibly permit him to work toward the Constitution we have all dedicated our PHILLIPS: I have sat here all afternoon and a great selves. deal of the morning, and I’ve heard uncountable law cases and everything else quoted, but I can’t help but say that CHAIRMAN: There is a motion before the house to when I came here to this Convention I came with a love of recess, then to consider the two motions that have been government. It is government that I came here for, and I put, one of them by the delegate of the fifth district and one was hoping that we would continue with government. We have by the delegate of the fourth district. Are you ready for already carefully shown that the delegate is not eligible to the question? All in favor say “aye.” Contrary minded. a chair on at least one count, and that count I will state in We will stand at recess subject to the call of the Chair. my motion later, but I say this that the object of this Convention is to produce a state constitution. I think we have wandered terrifically far from our track. I might even say (RECESS) that I remember recently where I read tbat the most remark able thing about the Federal Constitution was the amount of time that the 55 delegates who put it together took, and they CHAIRMAN: The committee will reconvene. At the didn’t’have $40, 000 worth of clerks either. recess there were two motions pending before the commit I might say at this time that we do not need the law, we tee, one offered by the delegate from the fifth district, the are here for government, we are here to let the Convention other offered by the delegate of the fourth district. At this run. This man, if—and it’s all been so well adduced by time the Chair will recognize the delegate from the fifth everybody, Delegate Ashford, the delegate from the fourth district as to his motion. district, and other delegates —that the individual has shown A. TRASK: At this time I desire to amend the resolution his incapacity to work with this Convention, has shown that and strike everything after the word “Resolved” and have he does not care to work with this Convention, or he would the Chief Clerk read the following. not entertain in his heart the thoughts that he was careful enough to put on paper. CHAIRMAN: Have you submitted the written amendment Therefore, I move that in view of the attitude demon to the Chief Clerk? strated by Delegate Silva that he be removed from the Con vention on the grounds that his own accusations against us A. TRASK: I have, that’s correct. could not possibly permit him to work toward the Constitu CHAIRMAN: Miss Clerk, will you read the amendment, tion we have all dedicated ourselves. the resolution in total, as amended. 857 APRIL 20, 1950 • Afternoon Session CLERK: given to the delegate to have his counsel address this com mittee, I believe that the motion made this morning that Resolved, that Frank G. Silva, by reason of his he be given the privilege of representation by counsel will contumacious conduct before and toward the UnAmerican mean nothing. Activities Committee of the House of Representatives and We heard a very excellent statement of the propositions this Constitutional Convention of Hawaii of 1950, is here of law involved in this case by Brother Anthony. I believe, by declared disqualified and unfit to sit as a member of in my opinion, that to be a correct statement of the law in this Convention and that he be and is hereby expelled; the case. However, counsel for Delegate Silva may deem that his seat be declared vacant; and the governor be otherwise or counsel for Delegate Silva may wish to make requested to fill the vacancy in the manner provided by a summation of the facts. law. Now we come with an amended charge including contuma GILLILAND: I move that the resolution as amended be cious conduct before this body, the Convention itself. It adopted by this Convention. seems to me fair and proper that Delegate Silva or his counsel be given an opportunity to address this committee. PHILLIPS: Second the motion. I would like to move that we permit Delegate Silva or his CHAIRMAN: Where is the second? Will you please rise? attorney to address this Convention on this new charge. NIELSEN: Before voting on that I think that possibly we NIELSEN: I second the motion. should ask Mr. Silva if he wishes to make any further state CASTRO: I would like to amend that motion by adding ment, as this resolution reads entirely different than the “for a period not to exceed one-hall hour.” original. I so move. PHILLIPS: Second the motion. CHAIRMAN: It’s been moved that Delegate Silva be given an opportunity to speak before this committee acts upon the CHAIRMAN: The motion has been made and duly second amendment. ed for an amendment that the time limit of one-hall hour be made. Was there a second to the amendment? There was A. TRASK: I second that motion. a second. CHAIRMAN: There was a second; two or three seconds. MAU: Many times during the Convention and in this It’s been duly moved and seconded that the delegate from committee the statement has been made that we are faced Kauai, Mr. Silva, be given an opportunity to address this with a very serious problem, and it is serious. Let’s not committee before the committee acts upon the main motion hamper the proceedings, let’s not be over-technical. If amending the resolution. Are you ready for the question? they have cause to use more than a hall-hour to present their case, let them do so. We cannot shut off anything that MAU: Do I understand that in the event that this commit the members of this Convention or the members of this com tee does not pass the resolution as amended that the commit mittee could properly receive as a part of this case. I am tee members still desire to have a statement made at this strongly opposed to the limitation of time suggested by the time? motion to amend my motion. CHAIRMAN: That was the Chair’s feeling, that perhaps CASTRO: I withdraw my motion but I must say - - the motion to have the delegate from Kauai present is pre mature as there is no change at the present time until there CHAIRMAN: Do you withdraw your amendment? is a vote taken on the motion to amend. CASTRO: I withdraw my amendment but it was made in MAU: Well, maybe we need not get that technical. I’d all good faith, not as an attempt to gag anyone but merely like to amend the motion to include the words “and/or his to try to get the argument out of the way and possibily to attorney.” I make that as an amendment. hear whoever else might want to speak. The hour gets late. TAVARES: A point of order. Until we ha~e voted on the CHAIRMAN: The motion to amend has been withdrawn. amendment, that question as to a change of the original The motion before the floor is - - wording of the resolution is not before the house. And KING: I’d like to speak in opposition to that motion. It therefore, the proper time to make this second motion is seems to me that the case is closed. The gentleman from after we have adopted a motion, if we do, to adopt the Kauai, Delegate Silva, has had his opportunity, has had his amendment. day in court, and the Convention, the committee has been MAU: That’s what I thought. I’ll yield to that. sitting on the evidence and has brought in a resolution, or at least an amendment to the pending resolution. I see no CHAIRMAN: That is the court’s feeling, too, Will the occasion to be addressed by an attorney, especially for an delegate from Hawaii withdraw his motion? unlimited time. The facts have been pretty well defined by NIELSEN: I’ll Withdraw the motion at this time. members of this committee, and I will say that the special committee went very thoroughly through the whole circum CHAIRMAN: Very well, We have before the committee stances and did so on one occasion when Delegate Silva was a motion to amend the original resolution in the language represented by counsel. On another occasion, counsel did read by the Clerk. If anyone has any question as to the not accompany him but that was of his own choice. He could language, I’ll ask the Clerk to read it again. There being have had counsel there had he wished. no questions on that point, the motion has been duly second The new language in the resolution does not necessarily ed. Are you ready for the question? All in favor say “aye.” depend upon the statement made this morning but can refer Contrary minded. The Chair feels that the ayes have it. to the press release and to the further statement submitted MAU: This morning the Convention had passed a motion to the special committee on the afternoon of the day before consenting that Delegate Silva be represented by counsel. I yesterday when Mr. Silva last appeared before that special believe that when we were in Committee of the Whole and committee. So I feel that the motion to grant a proceeding the chairman asked Delegate Silva to leave the floor he had that is out of all order and out of all parliamentary procedure, remarked that he would like to have his counsel speak. The to be addressed by counsel for an unlimited length of time, Chair ruled that that was not the usual procedure in such is not cafled for at all. bodies as this, but that that could be done upon invitation It has been said we have been leaning over backwards in or with the consent of the committee. If no opportunity is this case, and I would say that we have been leaning so far 858 DISQUALIFICATION OF DELEGATE FRANK G. SILVA over backwards that we’re likely to fall on the back of our half-hour motion actually gives them 15 minutes more than heads. It seems to me it’s time to close the case and vote the rules allow, I thiak. It’s actually an extension of the on the resolution already made, and I would like to make a time now permitted. And if they need more time they can motion that the last motion be tabled. ask unanimous consent or ask consent of this Convention for CRQSSLEY: I second the motion to table. more time. CHAIRMAN: It’s been moved and seconded that the motion CASTRO: Call for the previous question. to invite the delegate from Kauai or his attorney to speak to AKAU: I’d like to go along with the former speaker of the the committee be tabled. Does everybody understand the fourth district. I think this is a very serious matter and motion that’s before the house? Are you ready for the ques I think while we’ve been most generous, the whole body here tion? has been very generous and always leaning backwards as PORTEUS: Ayes and nays. I said before. CROSSLEY: Point of order. CHAIRMAN: Pardon? Ayes and noes? All those who wish the ayes and noes raise their hands, please. More AKAU: I have the floor, Mr. Crossley. than ten have requested the ayes and noes. Clerk, will CHAIRMAN: Just a moment, please. Mr. Crossley, you call the ayes and noes on the motion to table the motion state your point of order. to invite Delegate Silva or his attorney to further address the committee. CROSSLEY: The motion to table is not debatable. Ayes, 19 (Apoliona, Cockett, Crossley, Dowson, Fong, CHAIRMAN: That’s correct. The motion to table is not Fukushima, Gilliland, Hayes, Kanemaru, Kauhane, Kido, debatable. King, Larsen, Ohrt, Phillips, Porteus, Smith, White, AKAU: I’m not debating on the motion to table, I was Woolaway). Noes, 42. Not voting, 2 (Lutz, F. Silva). just making a statement of information. CROSS LEY: I now amend the motion that the time limit CHAIRMAN: There is a motion to table before the com be a half-hour to the representation or the time given to Mr. mittee and that takes precedence. Are you ready for the Silva or his counsel to speak. question? The motion is a motion to table the amended motion - - the motion to amend the original motion fixing CHAIRMAN: The Chair didn’t have an opportunity to a time limit, if the motion to table carries, the original announce that the motion to table failed, so the original motion inviting the delegate from Kauai or his attorney to motion is still on the floor. It has now been moved that that be amended to provide a time limit of a half-hour. address the committee is still on the floor, if the motion Any second? to table fails, then we still have to vote on the amendment as to time limit. Are you ready for the question? Is there CASTRO: I second the motion. a request for the ayes and noes? All in favor say “aye.” Contrary minded. Carried. CHAIRMAN: It’s been moved and seconded that the time limit of a half-hour be imposed upon the privilege of the NIELSEN: I now move for the previous question. delegate from Kauai or his attorney for addressing the house. MAU: Second the motion. C. SILVA: I move that we allow Mr. Silva or his counsel HEEN: I don’t thiak it’s in order to amend the motion a half an hour and upon the expiration of a half-hour he be that’s already been carried. It should be a new motion all notified and if necessary another half an hour be given to him together. until, the Convention - - in other words, the power would be CHAIRMAN: The vote was just taken on the motion to left to this. Convention. table. The original motion is still before the floor. CHAIRMAN~ Any second to that? I can’t hear you. ANTHONY: I want to speak on the matter of the limita HAYES: I second that motion. tion of time. CHAIRMAN: You second that motion? CHAIRMAN: Proceed. HAYES: Mr. Silva’s motion. ANTHONY: I am opposed to limiting the time. It’s more important that we do this with care and fairness than we sit CHAIRMAN: That is a motion to amend the original 15 minutes or a half-hour or any other time. I, therefore, motion again. thiak the motion to invite counsel and Mr. Silva should be MAU: I rise to a point of order. There was a motion left within the future sound discretion of this body without for the previous question. It was seconded. I don’t believe limit as to time. the amendment is in order. NIELSEN: I move that the motion to table be tabled. C. SILVA: Your previous question needs two-thirds CHAIRMAN: Do I understand the gentleman from Hawaii vote. I just want to know - - that you move that the motion to limit the time be tabled? CHAIRMAN: I can’t - - We can’t hear you, Mr. SUva, NIELSEN: Correct. unless - - J. TRASK: I second the motion. C. SILVA: You have to have a 31 vote in this Convention - - a 32 vote in this Convention for the previous question? CHAIRMAN: It’s been moved and seconded that the motion to limit the time is tabled. CHAIRMAN: Mrs. Clerk, was the motion for the previous question seconded? TAVARES: A point of information. CHAIRMAN: State your point. CLERK: Yes, Sir. TAVARES: It’s my understanding that the rules now CHAIRMAN: I will then rule the motion out of order. limit speeches by any one person—and I would presume that CROSSLEY: Point of order. The motion for the previous would mean a person in their behalf—to 15 minutes. So the question was put by the gentleman from Hawaii; you then 859 APRIL 20, 1950 • Afternoon Session recognized another gentleman from Hawaii, who made a vities Committee. I placed them on notice at that time. motion, without having recognized a second to the motion. They were lawyers. They are presumed to know the law. I was indeed shocked when Mr. Silva brought to me Special CHAIRMAN: The Chair has ruled that the motion for Committee Report No. 3, in which I noticed in the “Find the previous question prevails. Are you ready for the ques ings,” two statements on page 2, and I quote, “No witness tion? who testifies before the House UnAmerican Activities Com J. TRASK: Will you state the question, please? mittee can be prosecuted for any crime which his testimony may divulge save and except the crime of perjury committed CHAIRMAN: The question is the original motion that in the course of such testimony.” I had informed the sub the delegate from Kauai or his attorney be invited to address committee that that statement of law was not true. I might this committee. Presumably the rules of the Convention, also say that Mr. Anthony this afternoon in reading from which likewise apply to the committee, as to time limit will the Alexander decision by the Ninth Circuit Court at San apply. Are you ready for the question? All in favor say Francisco only two months ago, which decision is binding “aye.” Contrary minded. The ayes have it. upon any court in this Territory - - A copy of that decision Mr. Bailiff, will you - - Mr. Sergeant at Arms—I can’t had been given by me to every one of the witnesses that I get out of the court atmosphere—Mr. Sergeant at Arms, represented before the House UnAmerican Activities Com will you invite the delegate from Kauai to appear and address mittee, and I told them to read that decision and then be the committee if he so wishes, or his attorney. guided themselves as to what they wanted to do. The decision May I ask the delegate from Kauai whether If it’s his by the Ninth Circuit is squarely contrary to the statement wish to address the Convention or does he wish his attorney I find in the “Findings.” Also, “That Frank G. Silva, by to speak on his behalf? his refusal to answer the questions put to him by the House F. G. SILVA: I want my counsel to speak first, and then UnAmerican Activities Committee, has forfeited his right I would like to speak for not more than five minutes. to sit in this Convention.” I told Frank that in my opinion it was an injustice for any CHAIRMAN: Proceed. Will you let your counsel use the group that was elected to draft a Constitution to say to him microphone that’s attached to your desk. You now have the that because he stood on his constitutional grounds, that he floor, Mr. Symonds. therefore had forfeited his right to sit in this Convention. HEEN: A point of information. I would like to inquire I then noticed the recommendations. “1. That Delegate whether or not counsel has been furnished with a copy of the Frank G. Silva be given to and including Wednesday, amended resolution? Why I ask for that information, he April 19, 1950, within which to purge himself of contempt might then confine himself towards taiking upon the resolu of the House UnAmerican Activities Committee or to show tion as amended. cause, if any, he has why this Convention should not vote on his qualification to hold his office as a delegate.” And SY1VIONDS: Yes, Mr. Chairman. However, I would like then I observed the form of the resolution that this body the privilege of sitting in the chair that you now occupy in was going to pass upon in the event he did not do as directed. order to say what I have to say to this body. “Resolved that Frank G. Silva, by reason of his contempt CHAIRMAN: I didn’t realize, Mr. Symonds, that you of the House UnAmerican Activities Committee in the recent were going to sit down to speak. You can assume this chair proceedings of said committee conducted at Iolani Palace, if you so wish. Honolulu, Hawaii, is hereby declared disqualified to sit as a member of this Convention, and that he be and is hereby DELEGATES: No! No! No! expelled by this Convention, that his seat be declared vacant, SYMONDS: What I want to say I have to face everybody. and the governor be requested to fill the vacancy in the I can’t — — manner provided by law.” CHAIRMAN: What are the wishes of the committee? Why am I reviewing this special committee report? Be cause it leads up to the letter which Frank Silva wrote to DELEGATES: No! this Convention this morning. When I read that resolution I told Frank that it was an injustice to him; that it was not CHAIRMAN: I might advise counsel that unfortunately true that by reason of his contempt of the House UnAmerican these microphones have to be held fairly close to the mouth, Activities Committee, that there had been no contempt; that so if you wish to be heard by all, why bring the microphone first of all, the subcommittee had to get the approval of the closer. full committee In Washington, that then the recommendation SYMONDS: I, of course, Mr. Chairman and delegates of of the full committee had to go to the floor of Congress, and the Convention, wish like every lawyer, that I had ample each and every one of the 39 who were going to be cited for time within which to prepare to speak upon what I consider contempt must each have their case taken up separately, and to be a most serious and important question. However, I that then and only then after the House of Representatives, realize that the delegates have devoted all of the afternoon if it so decides to hold him or cite him for contempt, would session to the matter of Frank Silva. Of course, correctly pass the matter on to the United States Attorney General stated, it would be “devoted the afternoon to correcting a who would then refer it to the local Attorney General and grave injustice and error admitted by this Convention.” then he would then have his day in court, and that I was satis However, I also realize that the hour is late; that the fied that the case would be thrown out, if it ever got that Convention must move on with its business, and therefore far. But the statement, “that by reason of his contempt,” while the special committee was in recess, I drafted some was wrong. I didn’t know what else to say to Frank. I knew notes and from them I want to make clear my views and there were four or five of what I have been Informed were those of my partner Harriet Bouslog and those of Frank outstanding attorneys in the Territory sitting on the sub Silva. committee. I was shocked, I was unable to understand the I was asked approximately a week ago by Frank to appear language. I am sure the resolution was drafted by a lawyer with him before the special committee set up by this body. who heard my statement and there was nothing else for me I did so appear and I noticed that there were approximately to do but to say, “Frank, you are being taken to slaughter. four or five lawyers sitting on the committee of eleven. I The resolution is erroneous as a matter of law, the findings informed that subcommittee that Mr. Silva had a consti are erroneous as a matter of law and they have absolutely tutional right to do what he did before the UnAmerican Acti no right legally on the basis put forth in this committee re 860 DISQUALIFICATION OF DELEGATE FRANK G. SILVA port to do what they are doing to you.” What would your I notice in the resolution the word “contumacious.” I reaction be, if you were Frank Silva, to the situation? don’t have a dictionary present, but I assume that means Frank Silva, in my opinion, had a flash-back, he had a he acted disrespectfully, not toward the UnAmerican Acti flash-back to about ten years ago when he had another situa vities Committee—and incidentally one of the delegates tion confronting him which is very similar to that which we said that by his statement in his letter this morning that he are dealing with here today. At that time he was blacklisted had shown he was unfit to sit—not only because of his attack for union activities on the Island of Kauai. He took his case upon this body, but because of his attack upon the House to Governor Poindexter under the provisions of law provided UnAmerican Activities Committee. for such situations. Governor Poindexter being absent, Now Mr. Silva was told to either purge himself or to Acting Governor Charles Hite, after a committee report, rec show cause. Though some of you present may say, “Well, ommended that Frank Silva be reinstated to his job with he should have explained to us under the order to show cause back pay. Mr. Silva then went to see Mr. Waterhouse, provision why he did not purge himseif.” But Mr. SUva, in President of Alexander and Baldwin, who told him that the his statement which he read or had read to this body yester law could make all the findings it wanted to, he wasn’t going day, showed cause at that time and Delegate Trude Akau to have his lob back. also showed cause for him. There was nothing further left for him to do. He showed Gentlemen, if you were Frank Silva and you had that ex cause at that time and if in face of his statement which came perience with the law and then in the iterim you had served from the bottom of his heart and the courageous statement almost five years in the Army, three of which were served of Trude Akau, this body voted 60 to two for the resolution, in active participation in campaigns in the South Pacific, and then it was obvious Frank Silva either went before the com if you came out of the war a staff sergeant, and you had mittee and said “Gentlemen, I bare my breast, beat me participated in two of the most vital invasions of the war, to death,” or he wouldn’t sit in this Convention as a delegate. and you then returned to your home town and found you were The decision was that clear, that concise, and you gentlemen still blacklisted; and the people you have known since child admitted this afternoon that you had no right to say that to hood elect you as a delegate to the Convention and when you Frank Silva. Mr. Anthony made that quite clear and that is come down to the Convention to serve and you are confronted why we have the resolution in its present form. with a stacked deck of cards by this special committee re I am through now, but I want to leave this thought with port and that is exactly what the situation was. Mr. Anthony you. You have as much guilt on your shoulders for the adop admitted it this afternoon. What Mr. Anthony said to you tion of the resolution as Mr. Silva may have on his shoulders this afternoon in his statement of law is identical with what for having presented a letter which was not very tactful. And I was going to say to you, had I been given the privilege of I say to you in conclusion, bear that In consideration, that taking the floor. Mr. Anthony said in the exact words what you must share that responsibility and that you must not I would have said to you. And so what happened, after inflict the supreme penalty of expelling him from the Con making what amounts to a confession that this august body vention, but that you must follow the ordinary rules of law, was doing Mr. SUva an injustice, then it becomes necessary and recognizing your own provocation and your own persecu to save face. tion, show leniency to Mr. Silva. Mr. SUva, after being informed by me of what I thought of Special Committee Report No. 3, then drafted a letter. CHAIRMAN: Delegate Silva. You indicated to the Chair That letter in draft form was brought to me in my office this before your counsel began that you wished to conclude the morning. It seemed rather lengthy and garbled. At about remarks with a few of your own. Do you stUl wish to do so? twenty minutes of eleven I telephoned to the Sergeant at F. G. SILVA: Yes, Mr. Chairman. Delegates, to me Arms of this body and asked him to confer with Mr. King this is one of the most important things of my life, whether and say that Mr. Silva was with me and that he would be up I sit here as a member of this Convention or not. I don’t to the convention hall no later than 11:30. The reason was want to apologize for my actions, but I’m willing to go this I wanted to go over that statement. About two minutes far; and I say, if the committee is willing to withdraw its later I received this reply. “Mr. King says the order of illegal action, I am willing to withdraw my attacks upon the business wUl go on as stated at eleven o’clock.” Now committee. gentlemen, what kind of a statement is that? And that is ANTHONY: Mr. Chairman. the reason you had the letter probably in the form you got it. You will notice that the letter has spaces at the bottom CHAIRMAN: I recognize the delegate from the fourth of various pages. When I received such a rude report on district. such a serious matter, I got the three secretaries in my KING: Mr. Chairman, may I interrupt on a point of office and I said, “Take this as is; each of you tnke so many personal privilege? pages and write it.” I ran, I did not walk, I ran to the garage where I had my automobile; I got my automobile CHAIRMAN: Mr. Anthony, will you yield the floor? I and I brought Frank Silva to this Convention at exactly recognize the delegate from the fifth district. eleven o’clock. I did not read the letter on the way over, I was driving the car. KING: The counsel for Delegate Silva has referred to me and my rude reply to his request for an extension of time. That, gentlemen, is the situation. What about the letter? The Sergeant at Arms told me shortly before 11 o’clock that I think it is in bad taste. But, gentlemen, you share more Delegate Silva’s counsel had requested the convening of the responsibility for that letter than does Mr. Silva. The Convention a hail an hour late. Frankly, that wasn’t treatment that Mr. Silva has received at the hands of this possible without inconveniencing all the members of the body was sufficient to provoke him to most anything. He Convention. I had no desire to be rude, no desire to rush has been persecuted and those lawyers who are sitting here the proceeding, but I simply sent the word back by the who have committed one error, at least should recognize Sergeant atArms that the Convention would meet on time, the situation regarding provocation and say to the other that a certain amount of business would come before the delegates, “The law recognizes provocation as a basis for Convention prior to the time when, under special orders, leniency.” If you vote to expel Mr. Silva from this Con Delegate Silva’s case and the pending resolution would come vention, you are in effect placing upon him the hardest and up. harshest penalty that you can inflict for something that you Now, I’d like to say further that the committee that was provoked. That is the situation, gentlemen. appointed to review this case consisted not only of lawyers 861 APRIL 20, 1950 • Afternoon Session but of other persons of character, integrity, standing in this came as a suggestion only and not as a recommendation from community. The chairman was Mr. Benjamin C. Wist, Mr. Chuck Mau. He was further asked that would he not delegate from the fourth district. The vice-chairman was purge himseif by going before the committee and saying, “I J. Garner Anthony, one of our prominent attorneys. Another want to testify that I’m not a communist, never have been a member was Miss Marguerite Ashford, an attorney who has communist, don’t intend to be a communist.” served as attorney of the Senate of the territorial legislature. In this letter of April 17, he declined to take any of those Another member was Mr. Alexander Castro; another mem suggestions and he said in here, statements that I consider ber, Mr. Luiz, an official of the I. L. W. U. representing a have rendered him disqualified and unfit to sit with this body. local from the island of Hawaii; another member, Mr. “The hearings were timed by Governor Stainback and Big Chuck Mau, a liberal Democrat and an attorney; another Five interests to coincide with the Convention hearings in member, Mr. Frederick Ohrt, who has a long number of order to defeat statehood.” That’s sub-paragraph a of years back of him of splendid public service; another mem paragraph 2. “b. The hearings are for the purpose of des ber, Mr. Tom T. Okino, an attorney, county attorney of troying the I. L. W. U. No further proof of this statement the island of Hawaii for many years, a man of outstanding is necessary than the revival of the ‘Dear Joe’ letters character and respectability in his own district; another in the Advertiser. Everything I have accomplished in life member, Mr. Harold S. Roberts, a student of government I owe to the union, through the I. L. W. U. I have acquired and political philosophy, a university professor; another dignity as a human being, something I never have acquired member, Mr. Arthur K. Trask, another attorney, Democrat, from any company on Kauai, all of whom blacklisted me.” and perhaps also a liberal; another member, Mr. Arthur Now, we asked him in this committee meeting, in which D. Woolaway, of Maui, a businessman and respected in his I attended as an ex officio member without a vote, if he community. didn’t feel that his obligation to Hawaii, to this Convention, That committee of eleven did not attempt to persecute to the United States, wasn’t higher that his obligation as an or prosecute Mr. Silva. I sat in at two meetings of that official of the I. L. W. U. Apparently he doesn’t think so. committee, all of one afternoon when Mr. Symonds was He has spoken about the people who had elected him to office. present and also all of one evening when neither Mr. Symonds He was elected with a narrow majority over his competitor nor Delegate Silva were present. On that first meeting, in one zone district of Kauai. Delegate Silva was assured that the committee was very I told Frank in my office, I have a great deal of consider friendly, that the committee desired to get at the root of ation for him as a human being. I believe that he’s wrongly the matter and find every occasion for treating Mr. Silva advised and wrongly directed by his counsel and by those with consideration. At that time, Mr. Symonds made the who are giving him advice. I told him then, I said, “Don’t statement that his advice to Mr. Silva, should he refuse to forget, Frank, that besides the people who have voted for testily before the House UnAmerican Activities Committee, you, you’re representing the people who didn’t vote for you; was because he would be prosecuted for perjury and prob you’re representing the people who voted for your opponent; ably found guilty in the state of hysteria in the world or in you’re one of six representatives from the island of Kauai; America today. I challenged that statement and Mr. Symonds you’re representing all the people on Kauai; and you’re immediately modified it and brought it down in a more representing the people of Hawaii, the 550—or 540, 000 people moderate tone. But the first statement, I understood him to of Hawaii; and indirectly you are representing the people say, was that he did not feelthat Delegate Silva, if he had of the United States because we are aspiring to draft a con testified before the UnAmerican Activities Committee, would stitution that will admit us into the Union as a sovereign get justice in the courts of Hawaii or the United States. state,” and Frank didn’t seem to consider that a point. Furthermore, Mr. Silva had an opportunity under the Now, in regard to the statement this morning, maybe it point of personal privilege to submit to this house, when the was hurried. Maybe some of the language in there was not original proposition was brought, a personal statement. He intended. Nevertheless, it was a statement prepared for him submitted his press release, made immediately after he by his counsel and submttted to this Convention and the lan was subpoened as a witness before the UnAmerican Activities guage in that is, I say, most contumacious. But that hasn’t Committee and very evidently prepared beforehand. A copy been included in this resolution. This resolution refers to of that release was signed by him and is on file in this pro the data before this Convention prior to the statement and to ceeding, and that release says in one paragraph, “As an the data before the special committee. And that special elected official of the I. L. W. U., it seems clear to me that committee rendered a unanimous report. There were some the UnAmerican Committee is in Hawaii at the request of who desired a stronger report. There were some who might elements who want to destroy our union”—his union. “I have desired a less strong report. Nevertheless, there was am certainly not going to aid them in that purpose. The a meeting of mind and those eleven gentlemen, ten gentlemen second purpose of the committee’s investigation is to kill and one lady, signed that report and submitted it to this statehood, despite all their protestations to the contrary. Convention as their considered judgment. As a native born resident of this Territory, I am concerned Now, I fail to see where Delegate Silva has not received about this attempt . . a square deal from this Convention. We’ve leaned over Now in the afternoon meeting that I did not attend, Mr. backwards, as I said a moment ago, when I made a motion Silva handed in a written statement, if the Convention will to table the other — maybe that motion was not called for, bear with me, I’ll find it. Statement of Frank Silva, dated maybe what we’ve heard here will help the Convention come April 17. “This subcommittee has asked me to consider to a good decision—but, nevertheless, that resolution is three matters.” The subcommittee or special committee very simple, “Resolved, that Frank G. Silva by reason of had asked him to consider whether as a matter of protection his contumacious conduct before and toward the UnAmerican of the reputation of this Convention and of this territory and Activities Committee of the House of Representatives.” the efforts we are going through now to draft the Constitution Don’t you believe this press release is contumacious con that will be accepted by the people of Hawaii and by the duct? I don’t listen to the radio very often—I’ve been too Congress of the United States, he might not resign. If he busy with the affairs of this Convention—but, nevertheless, felt that he could not testify before the UnAmerican Activi I’ve heard the same and stronger statements have gone ties Committee on certain grounds, constitutional grounds, over the air during the past few days. Don’t you believe he had involved this Convention into his private difficulties that this other statement that he made on April 17 is con and problems, and we asked him if he wouldn’t consider tumacious conduct both toward this Convention and toward resigning. And, if I remember correctly, that suggestion the Committee on UnAmerican Activities of the United 862 DISQUALIFICATION OF DELEGATE FRANK G. SILVA States Congress? And this resolution goes on further and he is not just telling the truth as to what that decision is. says, “toward the UnAmerican Activities Committee of the That decision involved a grand jury proceeding. It did not House of Representative and this Constitutional Convention involve the right of a Congressional committee to interrogate of Hawaii, 1950.” I consider that the two statements that witnesses. Persons summoned to appear before a grand he made to this committee is contumacious conduct towards jury will have no immunity. Persons who are summoned to this Convention. We almost begged him to come clean. appear before a committee of a Congress have a statutory There was another witness that was accused, wrongfully immunity. or rightfully, who went up there and took the oath and said, It is true there is still an open question whether or not “I am not a communist and have never been a communist.” he could assert this constitutional privilege. But it is my Now if he has committed perjury, he can be tried for it or firm conviction that the only thing that Mr. Frank Silva not, but certainly he cannot be taken back to Congress, with could be tried and convicted of is perjury in the course of the request that he be cited for the contempt of Congress, that proceeding and that was the only issue raised by my and this young man has done that. brother Symonds when he appeared before the special com Now, Mr. Chairman, I don’t want to take up too much mittee. In other words, he was saying, just as your Presi time. I’m speaking on the point of personal privilege but dent had related, that people were in such hysteria here, no I’m also speaking to the adoption of this resolution. I person, in the event of a perjury indictment, could get a fair certainly haven’t been rude to Mr. Symonds or to Mr. Silva. trial in our courts. The Convention has a fixed hour. It was fixed yesterday. I believe that the committee has been fair to him. I I have no right to postpone it, and we met at 11 o’clock, believe that the conduct is contempt and it doesn’t make and if he had not been ready, I’m sure that somebody on any difference whether it has been adjudicated as such or not the floor of this Convention would have moved for a recess. or even if the Congress of the United States elects to forego As a matter of fact, I told the Sergeant at Arms that possibly it. If a member of this house were guilty of bribery, it such might happen. But I didn’t feel that it was up to me would make no difference whether the criminal courts of this to say, “Yes, we’ll hold the Convention up a haif an hour Territory would so find him guilty. We would be perfectly while you complete your statement.” And don’t forget in within our powers to oust him for that misconduct if proved. the recommendations to this committee, he was allowed As I see. it, the sole issue before the body is whether or something like 48 hours to prepare his reason to show not his conduct before the House UnAmerican Activities cause why he did not consider he had to purge himself of Committee, and not before this body, is of such contumacious contempt. nature that would warrant us adopting this resolution. I, That completes my statement, Mr. Chairman. As far for one, would not vote on any resolution that would oust Mr. as I’m concerned, I would like to move the previous ques Silva from this Convention by reason of the things that he tion but I will not do it if others wish to speak. I hope that has said and done in the heat and battle of his defense. That the Convention will realize that my aggressiveness is through is a privilege of every defendant. That is the privilege of no animosity toward that young man. I think he’s the most Mr. Silva. I know it’s in bad taste, it’s erroneous; we’re unfortunate young man, who in his devotion to labor has not a bunch of stooges for anybody. We’re here trying to allowed himself to become tainted by his association. I do a job for these islands and the people of Hawaii. I resent would say this, that in this United States of America today, it deeply, but nevertheless I would not vote on that basis for we have communists infiltrating the labor movement to his expulsion. serve the purposes of the Communist Party. And we have loyal and well-meaning labor men being infiltrated or being CHAIRMAN: Clerk, is there a motion on the floor? indoctrinated and enguifed by the communist movement in CROSSLEY: I’d like to speak on the motion. I believe their desire to further the cause of labor. I would like to there is a motion on the floor. see the labor leaders disassociate themselves from those CHAIRMAN: I just want to clear the record. Is there a who are tainted with communism and stand for, swear as motion pending before the floor, Miss Clerk, on the amend labor men only with no affiliations and no associations that ment to the resolution? are inimical to the safety of the United States. Thank you. KING: Point of information. Did not the introducer of ANTHONY: Inasmuch as counsel for Mr. Silva has the resolution move its adoption? directed his remarks principally toward the report of the A. TRASK: No, not as yet. I thought there, as much special committee, I want to say here and now that the discussion should be allowed the membership until we come members of that committee, and Mr. Silva himself, will to it. I might at this time say, for the benefit of the member realize that that committee extended to Mr. Silva every ship, the word “contumaciouè” has to do - - Do you yield, possible courtesy, every possible hearing, that could be Mr. Crossley? Thank you. The word contumacious, I’d extended to any person. When Mr. Symonds first came to like to give you the dictionary meaning of the word. It’s the special committee, he came there in a belligerent “disregard of the requirements of rightful authority.” That’s attitude. It was not until the deliberation had progressed one definition. Another definition is “intentional disobedience for quite sometime before we even heard Mr. Silva. I be to a rule or order of court or legislature.” “Insolent and lieve that it was at my insistence that we heard Mr. Silva stubborn perverseness; incorrigible obstinancy.” There rather than hear his attorney, because Mr. Silva was the is no further discussion. delegate under question, not Mr. Symonds. Now as to the statement that he has charged that we have CHAIRMAN: The Chair is not clear whether the motion corrected an error. I don’t consider there is any legal for the amendment of the resolution was seconded or whether error in the committee report. I was the one that was ft’s on the floor. responsible for raising this issue early this morning for A. TRASK: I would like to move at this time for the the reason that I wanted the members of this body to make adoption of the amended resolution. sure that the question that Mr. Silva was raising here before the House UnAmerican Activities Committee was not the CROSSLEY: I’d like to second that. identical question that was in the Lawson case. When Mr. CHAIRMAN: Just a moment, I recognize the delegate Symonds says that the recent decision in the Ninth Circuit from Kauai. Court of Appeals is on all fours with the conduct of Mr. Silva before the House UnAmerican Activities Committee, CROSSLEY: I’d like to speak on personal privilege. 863 APRIL 20, 1950 • Afternoon Session C. SILVA: Will you second the motion first, or what is body, and it is for that reason that I would like to state for the records, that the statement made under section b is not a true statement. CHAIRMAN: Will you yield for a second to the motion for adoption? CHAIRMAN: It has been moved and seconded that - - C. SILVA: I yield. Was the motion seconded for adop HEEN: According to the language of this amended reso tion? lution, it says, “That Frank G. Silva by reason of his con CHAIRMAN: The delegate from Kauai has yielded the tumacious conduct, before and toward the UnAmerican Ac floor to the delegate from Hawaii for the purpose of second tivities Committee of the House of Representatives and this ing the motion. Constitutional Convention is hereby declared disqualified.” What disturbs me is this. Have we here in evidence, J. TRASK: Mr. Chairman, I second the motion. any showing of any conduct towards the Convention itself CHAIRMAN: Will you yield to that? that might be regarded as being contumacious. My impres sion is, Mr. Chairman and members of the committee, that CROSS LEY: I yield to that, then I can speak on the when this investigation was started, it started on the basis motion. of his conduct before the UnAmerican Activities Committee. CHAIRMAN: Very well. I take it that the investigation that was conducted by this special committee was made upon that basis. I would like CROSSLEY: Or under personal privilege, either one. to have someone here point out, not only to me but to the C. SILVA: I rise to a point of order. other members of this committee, what in the evidence is there of anything that makes him guilty of contumacious CHAIRMAN: The gentleman is speaking on the point of conduct towards the Convention itself. personal privilege. I know that every delegate here would like to be fair in C. SILVA: Point of order first, Mr. Chairman. this very serious matter. I know that it is very serious in the mind of Delegate Frank C. Silva. Therefore, we CHAIRMAN: What is your point of order? should not be too hasty in coming to a conclusion on what C. SILVA: Point is this Convention as seated cannot we should do in regards to this amended resolution. If adopt the resolution. It can recommend that when we go there is any evidence showing contumacious conduct on the out of committee that it be adopted. part of the delegate that can be used as a basis, that is, contumacious conduct towards the Convention itself, that CHAIRMAN: I believe that point is well taken. You will these can be used as the basis for this resolution, I’d like amend your motion? to be shown. A. TRASK: Yes, I’ll accept the correction. Now, it is true that this morning I discussed these state ments made by the delegate in his written statement and CHAIRMAN: The Chair will now recognize the gentleman oral statement which cast a reflection upon every member from Kauai on the point of personal privilege. of this Convention. But we are not trying him on those CROSSLEY: I have sat through a number of days of debate, statements, we are trying him on something else altogether. a number of evenings of discussion on this subject; I have So that, if we are going to set aside what he did before the read all of the exhibits that have been forced upon us; and UnAmerican Activities Committee, then I say that we have, when I got up a while ago to limit, to first of all prohibit I believe, grounds for charging him now in the light of counsel from coming in, it was because I had in mind that what he has said in his written statements while attempting the counsel would continue the same sort of an attack on this to defend himself, that he is guilty of casting a cloud upon body as had been underway for some time. I then wanted to every member of this Convention where he is no longer fit limit the debate for the same reason. I had no desire to shut to remain as a delegate to the Convention. off Frank Silva from stating, as has been well indicated C. SILVA: I’ll even go beyond that. As far as I’m con here. cerned I’m willing to forgive Mr. Silva’s charges against I listened to the letter this morning. I’ve heard lots of myself as probably a stooge of the Big Five or anybody letters like that, but there is one statement in particular on else. I’m even willing to forget that point. What I would page 2 of Mr. Silva’s statement to the committee during its vote upon is this, upon Mr. Silva’s failure as a delegate to deliberations. He says under paragraph b, “Through the testify to the satisfaction of the UnAmerican Activities I. L. W. U. I have acquired dignity as a human being, some Committee. He was then asked by this Convention to return thing I would never have acquired from any company on Kauai, before that same body to clear the suspicions created by his all of whom blacklisted me because of union activity before actions. Failing as a delegate to do so, in my opinion, is and after my three years of combat duty as an infantryman.” sufficient reason to suspend him indefinitely. That is a deliberate misstatement of fact. I have a company CHAIRMAN: It has been moved and seconded that this on Kauai. Frank Silva has never applied to me for a job Committee of the Whole recommend to the Convention that nor has he ever been blacklisted. I asked another delegate the resolution as amended and as read by the Clerk be from Kauai, who conducts a business there, if he had ever adopted. turned Mr. Silva down or had he ever had a request from him for a job. He stated that he had not. It’s just such all H. RICE: I think the motion should read that when this inclusive statements as this, the all inclusive statements committee rises, it reports recommending the passage of that have put us all under a cloud, as so ably presented by the resolution in amended form. the delegate at large from the fourth district. CHAIRMAN: In amended form? Will you accept that Someone in his behalf said, “Well, he’s a sell-educated amendment, delegate from the fifth district? man.” I asked what education he had had, and then I re called in the testimony before the UnAmerican Activities SERIZAWA: Delegate Anthony has stated in his last Committee they had asked him had he ever attended the statement that he did not agree with certain qualifications California Labor School and he refused to answer, but in a in this resolution before us. I believe he had implied that press release he admitted to having had that education, the section reading, “unfit to sit as” - - no, I’m sorry, whatever it is. I resent deeply the implications that have “and this Constitutional Convention of Hawaii of 1950.” I been cast upon me as an employer on Kauai and upon this believe you made a qualifying statement there. Mr. Anthony 864 DISQUALIFICATION OF DELEGATE FRANK G. SILVA is an attorney. I’m a layman. I have no knowledge as to point to an issue, I now move that this commfttee rise at what constitutes legal statements and I believe earlier today this time, report progress and ask leave to sft again. delegate from Hawaii made a motion, or was ft a resolution, that we have the attorney general here for his opinion on CHAIRMAN: Is there a second to that? various phases. I, myself, because of my lack of knowledge NIELSEN: I second the motion. of legal terminology, I would like to have the advice of an attorney as to what is legal here and what is not. The SAKAKIHARA: Before this motion is put to rise and attorneys here can proceed on their own knowledge with con report progress and beg leave to sft again, I have a grave fidence, but I’m afraid I cannot, and I would like to point doubt in my mind as to the power of this Convention under that out to other laymen in this delegation. Act 334 to expel any member. I have a resolution lying on the table of the Clerk. I would like to ask that this Conven CHAIRMAN: The Chair will call upon the delegate from tion act on that resolution so that we may obtain an official the fourth district to see if he can clear up that point, Mr. opinion from the attorney general on that question. Anthony. ANTHONY: To bring the matter to a head, what Brother CHAIRMAN: Are you asking the senator - - the delegate Heen has been talking about, or Delegate Heen, rather, has from the fourth district to yield on this motion? been talking about is the charges against his offenses against SAKAKIHARA: Will Senator Heen yield to that motion? this Convention. I stated in the course of my remarks that I, for one, would not vote for it by reason of that, however CHAIRMAN: The motion to - - bad taste it is and however unfounded. And therefore, I SAKAKIHARA: Then we may act on your motion to rise think we should confine ourselves to his failure to appear and report progress and leave to sft again. before the House UnAmerican Activities Committee. He had a duty to speak if he felt anything for this Convention HEEN: I am willing to yield but I think ft’s premature at or for the people of Hawaii. His loyalty was to the people the present time to ask the attorney general that particular of Hawaii in this Convention. question. I have no particular objection to ft. If the com To bring the matter to a head, I move that the amended mittee would like to act on ft at this time, I will withdraw resolution be further amended by the deletion of the word, my motion for that purpose. “and this Constitutional Convention of Hawaii of 1950.” So SAKAKIHARA: I now move that the resolution which after the amendment the resolution would read: is now on the Clerk’s desk be adopted. Resolved, that Frank G. Silva, by reason of his con CHAIRMAN: I’ll ask the Clerk - - tumacious conduct before and toward the UnAmerican Activfties Committee of the House of Representative is NIELSEN: Point of order. Won’t that have to be adopted hereby declared disqualified. in the regular session and not in the Committee of the Whole? BRYAN: I wish to second that motion. CHAIRMAN: Where is the resolution? I believe the point of order is well taken. The resolution is by the Hawaii C. SILVA: That is the point. I wish Mr. Anthony could State Constftutional Convention. put ft in the words I’d like to say, I have no reference to Mr. Silva’s first appearance before the UnAmerican Acti NIELSEN: I think now ft’s in order to move to the pre vities Committee. The reference that I had is when this vious question to recess and ask to sft again. Convention requested him to return to the UnAmerican Acti vities Committee. That was the request by the Convention. CHAIRMAN: The delegate from the fourth district had Failure to do so is reason sufficient to unseat Mr. Silva, withdrawn. Do you renew your motion? indefinitely. Not the first appearance before the Convention HEEN: I now renew my motion that this committee rise, - - before the committee; ft was after. This Convention report progress and ask leave to sft again. had requested that he appear before the commfttee. Failure to do so is sufficient reason. I just don’t know just exactly CHAIRMAN: It’s been moved and seconded that this how you would put that in the resolution. committee rise, report progress and ask leave to sft again. Are you ready for the question? All in favor say “aye.” CHAIRMAN: There is a motion before the House. Contrary minded. Roll call has been demanded. HEEN: I would suggest that this committee rise, report progress and ask leave to sft again. We are so involved KAUHANE: But, Mr. Chairman, haven’t you arrived at here as to what language should be used, and we are not the decision before you put the question for roll call? too certain in our own minds what the reasons are for hold CHAIRMAN: Pardon? ing that he has been contumacious towards the UnAmerican Activfties Committee. If the last amendment offered is KAUHANE: Are you debating as to whether the ayes or adopted, that the reference to contumacious conduct towards the noes prevail? the Constftutional Convention is eliminated, then the only CHAIRMAN: I saw at least ten hands go up demanding thing we have left would be that he was guilty of contumacious roll call. - conduct towards the UnAmerican Activfties Committee, to another body altogether, not towards this body. I am not KAUHANE: No, prior to that. The vote was put. The certain in my own mind that we can use the conduct of a ayes had spoken, the nays have spoken. Are you deliberat delegate towards another body as being the grounds for the ing as to whether or not the nays prevailed or are you expulsion of a delegate from this Convention. That’s somewhat in doubt? why I think that we ought to take time out and give this problem a little more serious consideration because ft is CHAIRMAN: I’m in doubt. a serious problem. AKAU: Point of information. Could you tell me, please, BRYAN: Mr. Chairman. what the value would be in the Committee of the Whole; or not in the Committee of the Whole, for this next action. I’d CHAIRMAN: I recognize - - Have you completed - - like that explained. Perhaps I’m naive. HEEN: No, I have not. I started by saying that I would CHAIRMAN: I’m sorry. I don’t qufte understand your suggest that the committee rise. In order to bring that question. 865 APRIL 20, 1950 • Afternoon Session AKAU: What value, I’d like to just have some clarifica KING: Yes, of course. tion, what value would It be one way or another to sit as a HEEN: The question is this. I would like to have you Committee of the Whole or not. I don’t understand why. I’d point out in the record whether or not there is anything in like to know why. the evidence tending to show that Delegate Frank G. Silva CHAIRMAN: We’ve already progressed in considering has been guilty of conduct contumacious towards the Con this matter and we’re not in a position to make a report to vention itself. the Convention, a complete report, because there has been C. SILVA: I rise to a point of order. discussion about considering the amendments offered to the resolution. Clerk will call the roll on the motion to rise HEEN: In other words - - and report progress and ask leave to report again. CHAIRMAN: I recognize the delegate from Kohala. Ayes, 18 (Asbford, Doi, Heen, Ihara, Kage, Kawahara, C. SILVA: There’s a point there, Senator Heen. A Kawakami, Lee, Mau, Mizuha, Nielsen, Sakakihara, Seri motion has been made and seconded to table. Unless Mr. zawa, C. Silva, St. Sure, J. Trask, Yamamoto, Yamauchi. King withdraws his motion to second, I’m afraid we can’t Noes, 43. Not voting, 2 (Luiz, F. Silva). have any debate. CHAIRMAN: The motion to rise, report progress and beg leave to sit again, or in other words, the motion to recess HE EN: I don’t think there was any second. has been defeated. C. SILVA: Mr. King seconded the motion, WOOLAWAY: As a delegate of this Convention, it seems KING: I seconded the motion, but I - - to me that the sole question before this body is nothing more than whether Mr. Silva as a delegate to this assembly has HEEN: To table? placed this body in disrepute with the body of the Congress CHAIRMAN: The Chair’s understanding was that the of the United States whom we will ask to ratify the Constitu delegate from the fifth district yielded for the purpose of tion of the forty-ninth state and therefore, I move the pre a question. vious question. KING: I withdraw my second temporarily in order to HEEN: I rise to a point of information. It seems to me yield for a question. If the delegate from the fourth district that we have a motion pending, a motion made by Delegate has completed his query, may I ask him, may I reply by ask Anthony to the effect that the amended resolution be further ing the question, does he include in that question the remarks amended by deleting from that amended resolution the words, of or the statement of Delegate Silva submitted to this Con “and this Constitutional Convention of Hawaii of 1950.” That vention or this committee this morning? offer to amend along those lines was seconded. Therefore, HEEN: No, I do not. All the statements that he made in there is a motion pending. defense of himself are not the grounds that were considered KING: I rose to a point of information. Was Mr. Anthony’s by the Convention or by this special committee as grounds motion seconded? for his expulsion. I would like to satisfy my own mind as CHAIRMAN: The Chair is not clear on that. Mrs. Clerk, to whether or not there is evidence to the effect that he has been guilty of conduct contumacious to the Convention itself. was that motion to amend seconded? If someone can state those facts, I think it would then support KAM: I admire Mr. Garner Anthony’s remarks, but Mr. the final action to be taken by the Convention if that action is Silva’s refusing to testify before the UnAmerican Activities to expel the delegate. has done this Convention a great harm; and I believe that by KING: If I may answer the question since it was directed refusing to testify has done each and every delegate a great to me. I consider the second statement made by Delegate harm. I, therefore, amend Garner Anthony’s motion - - to Silva to the committee and submitted to the Convention by table his motion. the committee as an appendix of its report is contumacious CHAIRMAN: You move to table the motion to amend? towards this Convention. That statement reads in several KAM: That’s right. instances, language which I consider contumacious towards this Convention. Now if that does not satisfy Senator Heen, CHAIRMAN: Incidentally, the Chair in the meantime has I would suggest that the statement he made this morning, ascertained that that motion to amend offered by the delegate and he has been given a second opportunity to be heard since from the fourth district, Mr. Anthony, was duly seconded. that statement was made, is very contumacious to this Con KING: I second the motion to table the amendment. I’d vention. like to state the reason. It is not often a good idea to May I state while I have the floor, I feel that we should second a motion to table, but it seems to me the resolution not lose ourselves in legal technicalities. The resolution does embody the two thoughts, some of the delegates lay is based on the circumstances as outlined by Delegate more stress on one than on the other. Some of the delegates Woolaway, and I, therefore, feel that the amendment is feel that the behavior of Mr. Silva before the UnAmerican unnecessary and would like to remake my second to Mr. Activities Committee was sufficient grounds or is sufficient Kam’s - - Delegate Kam’s motion that the amendment be grounds to disqualify him from holding a seat in this Conven tabled. tion. Others feel that his attitude towards this Convention ANTHONY: I must disagree with the President as to the may be the prevailing factor. This resolution embodies statements made by Mr. Silva in the heat and blood and both conditions, and those who would vote for it on one battle of his defense. I don’t think that cuts any ice on the ground and not the other may do so with a clear conscience, issue that’s before us. What I do think is important is, and the other, the corollary is true. Those who did not here he is an officer of this territory, a delegate to this wish to support one stand are free to support the others. Convention. We have got to go - - It seems to me the resolution as drafted embodies the senti ment of this Convention and I believe the amendment should CASTRO: Point of order. not be accepted. ANTHONY: I’m answering the question that was pro pounded by - - HEEN: I’d like to ask the delegate who has just spoken whether or not he will yield to a question. CASTRO: There is second to - - 866 DISQUALIFICATION OF DELEGATE FRANK G. SILVA CHAIRMAN: I’ll recognize the delegate from the fourth he has been charged with what he did before or failed to do district, Mr. Castro. State your point. before the House UnAmerican Activities Committee, not CASTRO: There was a second to Mr. Kam’s motion, what he’s done here. and I have not heard that the seconder has yielded to my CHAIRMAN: Thank you, Mr. Anthony. colleague, the delegate. KING: I’ve yielded twice, Mr. Chairman. It seems to CHAIRMAN: There is a motion before the floor to table me that we should continue the procedure - - the motion to amend, and that takes precedence. The point is well taken. CHAIRMAN: Do you now second the motion - - ANTHONY: Will the second yield to an explanation of KING: I now second Mr. Kam’s motion to table the Senator Heen’s position? amendment offered by Delegate Anthony. KING: In order not to prevent anybody from speaking, I FUKUSHIMA: May I ask the President to yield a third am willing to yield. But I would like to say the question time? was directed to me and not to the delegate from the fourth KING: I’m unable to deny my colleague, Delegate Fuku district, Mr. Anthony, and I answered the question as well shima’s request and I do withdraw the amendment tempora as I could. Now, if Delegate Anthony wishes to complete rily, withdraw the second. the answer for the satisfaction of Senator Heen - - Delegate Heen, it’s perfectly agreeable to me and I withdraw my CHAIRMAN: You yield again? amendment temporarily. KING: Yes, sir. CHAIRMAN: Withdraw your second? CHAIRMAN: Mr. Fukushima, you have the floor. KING: My second. FUKUSHIMA: I’m also inclined to agree with Delegate CHAIRMAN: Very well, Mr. Anthony, you have the Heen and Delegate Anthony. I feel that the conduct of floor. Delegate Silva is contumacious conduct before and towards ANTHONY: That’s what I would like to endeavor to do. the UnAmerican Activities Committee. However, I do not The delegate to my left here wants to know what is the feel that his conduct towards this Convention is such a con contumacious conduct before the House UnAmerican Acti duct as to authorize this Convention to expel him. Whatever vities Committee. It is simply this. We are drafting a he said before this Convention in the heat of battle, as has Constitution. This committee is duly authorized by the been aptly put, would have been done by any- of us put to a laws of the United States to conduct an investigation. It defense. All these remarks about we being the stooges of has come down here to conduct an investigation on the the Big Five, et cetera, has no bearing whatsoever before charges of alleged subversive activities. He, as a witness, this Convention, and if we know for ourselves deep in our has been subpoenaed duly to testify before that committee conscience that we are not, what shadow of clouds did he and he has refused to do so. That, in my judgement, casts put upon us. I ask at this time from the delegate from the a shadow over this Convention. That is bringing this fifth district to withdraw his motion to table. Convention in ill-repute throughout the nation. That is sufficient basis for our dear friend Senator Butler to an CASTRO: Would the President yield further? nounce in the headlines of the afternoon paper that this is CHAIRMAN: I should have recognized the President a communist infested community. In other words, his very first. conduct in failing to appear before that UnAmerican Acti KING: May I state this is the last time I’m going to yield. vities Committee is bringing us in disrepute. It is jeopardiz ing the very thing that we are set out to do here, and I say CHAIRMAN: This is the last time. that alone is sufficient for us to hold him guilty of contu KING: Yes. macious conduct. Now, he has chosen to stand on what may, after a legal CASTRO: In my estimation, with all due respect to the battle, turn out to be his constitutional rights, but he has attorneys of great ability here, the debate in the last few some obligations in addition to his constitutional rights, moments is the jabberwocky of jurisprudence. I submit to and those obligations are to the people of this community. you this one final point. On April the eighteenth at approxi I think that if he places his loyalty to his I. L. W. U. and mately haif past eleven in the morning, the Convention adopt his insistence upon his own constitutional rights above the ed the report of this special committee wherein the schedule weifare of this entire community, so that he has brought of its further activities was clear to all, including Mr. Silva us in public disgrace, so to speak, that that is a basis for and the public. The plea on the part of Mr. Silva’s counsel this resolution. That alone. that this statement which has been put in our hands this CHAIRMAN: Does the Chair understand Mr. Anthony, afternoon has been written in the heat of battle, and the that he is now withdrawing his amendment? sad story about the running and the driving of the automobile, I, as an individual with very little background in the laws KING: No, Delegate Kam made an amendment and I of evidence, find very hard to believe, because I am aware, seconded that amendment - - as I think every delegate in this room is, that Mr. Silva has CHAIRMAN: No, I meant the - - been in contact with his counsel in all of the waking hours of the 48 since the time that this report was accepted by the KING: - - I second the motion to table Delegate Anthony’s Convention. I submit then, that the contumacious conduct amendment. towards this Constitutional Convention, if the gentlemen CHAIRMAN: Well, I’m asking Mr. Anthony if by his find it difficult to find in any other document, is found here statement he is now withdrawing his motion to amend the in this last document, this last statement. Now I believe amended resolution. this as an individual who is more interested possibly than many in seeing that Frank Silva gets a break. But I would ANTHONY: lam not. like to see us get to the heart of this problem and quit CHAIRMAN: Very well. quibbling. I would like to have the President now second ANTHONY: I want to put it on the single ground of his and call for the vote. conduct. I don’t care what the language is that you use, but KING: I now second the motion of Delegate Kam. 867 APRIL 20, 1950 • Afternoon Session cHAIRMAN: It has been moved and seconded that we ANTHONY: In the amended form. What I want to call table the motion to amend the amended resolution. The to the attention of this body is the fact that Frank G. Silva effect of the motion to amend the amended resolution offered Is not being tried here by reason of his misbehavior in this by the delegate from the fourth district, Mr. Anthony, is to house. He has said a lot of things; he said ft to the com delete from the amended resolution any contemptuous con mittee, and I might say he was very bitter to the committee duct towards the Constitutional Convention of Hawaii of 1950. at times, despfte our impartiality and fair treatment of him. But the simple fact remains is that we have not DELEGATE: Roll call. charged him with that. Now, are you going to vote on some CHAIRMAN: Roll call bas been demanded. How many thing that the man has never been charged with? All you’ve desire the roll call? heard is the statement of his lawyer to the effect that - - WIST: Point of order. Did you state that correctly? As C. SILVA: I rise to a point of order. I got it you stated ft exactly opposite of the delegate from CHAIRMAN: State your point. fourth’s posftion. C. SILVA: There is nothing before the house as yet. That CHAIRMAN: The delegate from the fourth, as I under question has been answered; those that voted no agreed wfth stand U, moved to amend the amended resolution by delet Mr. Anthony; those that voted aye have a different point of ing therefrom the words, “and this Constftutional Conven view. I would just like to - - tion of Hawaii of 1950,” which means that the resolution ANTHONY: Am I out of order, Mr. Chairman? If so, would show no contumacious conduct towards this Conven I’ll sit down. tion. The motion to table, if carried, would defeat that amendment. If defeated, we will then vote on the amend CHAIRMAN: I believe you are. ment. Is that clear? ANTHONY: Mr. Chairman, is debate on this resolution The ayes and noes have been demanded. Mrs. Clerk, foreclosed? will you call the roll? MAU: Absolutely. DELEGATE: Aye is to table? CHAIRMAN: I understood you to be debating on the CHAIRMAN: Aye is to table. question that the house has just voted on, namely, your Ayes, 33. Noes, 28 (Akau, Anthony, Ashford, Bryan, amendment. Doi, Fukushima, Heen, Ihara, Kage, Kam, Kawakami, ANTHONY: Not at alL I am addressing myself as to Kelierman, Lee, Mau, Mizuha, Nielsen, Noda, Okino, whether or not the resolution should pass. Roberts, Sakai, Saicakihara, Serizawa, Shimamura, C. CHAIRMAN: Very well. Silva, St. Sure, J. Trask, Yamamoto, Yamauchi). Not voting, 2 (Luiz, F. Silva). ANTHONY: Those who may have voted against my amendment may still vote against this resolution. CHAIRMAN: The motion to table is carried. We now have before the commfttee the amended resolu CHAIRMAN: Proceed, then. tion which has been duly moved and seconded, the motion ANTHONY: What I am calling attention to now, is what being that we rise, when we rise to report, we recommend I consider a basic defect in the charge. Now you can say the passage of the resolution in the amended form, which all you want that this is legal mumbo-jumbo, but under I will now ask the Clerk to read before we proceed to the our system of law, a man is charged wfth certain definfte question. things. You don’t - - CLERK: Resolution. KAUHANE: I rise to a point of order. Resolved, that Frank G. Silva, by reason of his CHAIRMAN: State your point. contumacious conduct before and toward the UnAmerican KAUHANE: I believe that the question now raised by Activities Committee of the House of Representatives the delegate from the fourth district has been answered, and this Constitutional Convention of Hawaii of 1950, is that is, by the vote that has already been taken. If I am hereby declared disqualified and unfit to sft as a member correct, the same subject matter cannot be brought up again of this Convention and that he be and is hereby expelled; once ft’s been defeated by a vote that was taken. Therefore, that his seat be declared vacant; and the governor be the delegate from the fourth district is not in proper order requested to fill the vacancy in the manner provided by at this time to repeat or have any inference to the vote that law. was taken which defeated the purpose of his amendment. CHAIRMAN: You have heard the motion; ft’s been duly CHAIRMAN: Unfortunately the question, the subject seconded. Are you ready for the question? matter of the delegate’s argument, applies to both. As he WIST: I’d like to call attention to one sentence that stated, those that feft tbat ft should have been amended appears on page 3 of the report submitted by Frank G. may now feel that they shouldn’t vote for the resolution in Silva to the special committee and which was in the hands the amended form. I will rule that Mr. Anthony is still in of this body yesterday before ft acted on the resolution or order. on the report of this special commfttee. And that sentence ANTHONY: If I may continue then without further inter - is, “Every member who votes to refuse me the right to serve ruption for a minute. those who elected me will live to regret this action.” I raise the question as to whether that is or is not contumacious. CHAIRMAN: I can’t guarantee that, but proceed. C. SILVA: Maybe I won’t live that long, so I’m not too ANTHONY: The difficufty with voting on this resolution worried about that. is that Frank Silva has never been charged wfth any mis behavior before this house. He has been charged by this ANTHONY: I am addressing myself to the resolution. house of doing something outside of this house, and I say, The question is whether or not the resolution shall be rec therefore, we should not adopt this resolution having as our ommended out by this committee, as I understand ft. basis something that is done wfthin the house, something CHAIRMAN: In the amended form, as just now read by that he’s never been charged with, he’s never even had the Clerk. a hearing on that. 868 DISQUALIFICATION OF DELEGATE FRANK G. SILVA KAUHANE: I again rise wkh a point of order. And so I say, that this intentional disobedience to the sug CHAIRMAN: State your point of order. gestion and order of this Convention to purge himself before KAUHANE: My point has been stated heretofore, and the UnAmerican Activities Committee is a defiance of this Mr. Anthony is still repeating the statement where a vote Convention and certainly we shall not tolerate this; we shall was already taken in defeat of the amendment that he had not stand and have another delegate attack the integrity of offered. this body [and subject it] to public odium and ridicule. Throughout the nation this Convention is in the spotlight of CHAIRMAN: He is now trying to defeatthe resolution. ridicule and odium. We shouldn’t delay action on such a KAUHANE: He is now trying to take up and devolve him- vital issue. I move the question. sell around the subject matter that has already been acted MAU: I want to know so that I can vote on this last upon by a vote. motion on the floor concerning this resolution. The second TAVARES: Point of order. delegate at large from the fourth district did not say out right whether there are two charges in this resolution, but CHAIRMAN: The question is moot. Mr. Anthony has he did state that if there are two charges, that an opportunity yielded the floor. I now recognize the delegate from the had been given to Delegate Frank Silva to answer it this fourth district, Mr. Tavares. afternoon. As a lawyer, many times he has asked for time TAVARES: It seems to me that the delegate from the to prepare his case. If there are two charges in this reso fourth district rose in opposition to the motion now, is in lution, then have we given the man due process, given him error. If, as he contends, this resolution in this farm enough time to prepare? We gave him a haif -hour on this charges Mr. Silva with something more than the conduct charge. Is that sufficient? If you say there are two charges before the UnAmerican Activkies Committee, then he is in this resolution, and I believe as drafted there are two thereby admitting that it is a charge against Mr. Silva for charges, contumacious conduct before the UnAmerican Acti the other activities before this Convention. Yet in the same vities Committee and the same type of conduct mentioned breath, he says we haven’t charged him. He says we have against this Convention. So there are two charges, in my charged him for one purpose but we haven’t charged him judgment, and I want to know, if that Is so, whether or not for another. I submit that that is an inconsistent statement we have afforded the delegate who is in question a fair in itself, If it is two charges, Mr. Silva was given a second opportunity to defend himseif on the second charge. opportunky to answer them and through his counsel and he TAVARES: I don’t like to speak too long but since the has availed himself of that opportunity. So that if there question has been addressed to me, I’m glad to answer H. are two charges here, he has had the American opportunity As I understand it, the amended resolution was amended to defend himself against both charges; and, therefore, before Mr. Silva spoke, before he and his counsel had the he has had everything coming to him. I submit that the opportunity to speak. They were shown the charge, objections of the delegate are not well taken. they had the opportunity to read it, and as I recall, the attorney for Mr. Silva addressed himself as if there were PHILLIPS: I would like to speak in support of what the two charges. He actually defended his client against both delegate from the fourth district just said, insofar as Frank Silva made the statement to the Convention that if they were charges, so that he had that opportunity to do that. to apologize - - I mean if they would put him back in the Now, the delegate says that the charge is not - - apparent Convention, then he would apologize for having said what he ly he says k’s ambiguous. But if the delegate wants to be said. technical, then the first charge is defective also, if the first charge is good enough to vote on by reason of his con A. TRASK: I am wrestling with the thoughts that Mr. tumacious conduct before and towards the UnAmerican Acti Anthony and Judge Heen have issued, but it comes down vities Committee, without specifying it, why isn’t the again to what has been in my mind for some time, namely, charge that his contumacious conduct before this Convention this. Frank Silva is in a very unhappy position. He is is also sufficient. There was no misunderstanding of what seeking to serve two masters. He is an official of the I. L. was meant as far as Mr. Silva and his counsel were con W. U. on one hand; he is a government official on the other. cerned. They addressed themselves to every possible charge It’s a question of a choice, and he’s made his choice, that could be raised and defended themselves against H. What is contumacious conduct but disregard of the re So that I say that they have had their day in court, they have quirements of rightful authority. Is the Congress of the fully defended themselves against all possible charges that United States rightful authority? The right for legislative we have raised on this floor. And therefore, I think when we committees to investigate to promote the welfare of the vote we are not depriving him of any opportunky to be heard. people is a time-honored right and k won’t be loosely dis ASHFORD: May I add my five cents worth of free advice regarded by any sane and respectable citizen, If Frank which is usually worth just what’s paid for H. if Mr. Silva Silva were not an official of this Convention, we would hot had appeared without counsel, I would be wholeheartedly in be concerned with him, would we? It is only as he has accord wkh the delegate at large from the fourth district official capacity as a governmental representative that we whose motion to delete a part of the resolution was defeated. are concerned. We are mightily concerned; we are grave I was opposed to the form of the resolution before the ly concerned; we are critically concerned. We ask him, appearance of Mr. Silva and his counsel. But his counsel as the delegate from Kohala said, to go before the commit appeared and made no objection upon that grounds and if tee and purge himself. He has defied the order of this there was any objection, H was clearly waived. rightfully constituted body. He persists in his defiance of authority. He is in a difficult position. He cannot serve CHAIRMAN: There is a motion - - two masters. He should make up his mind and if he doesn’t KAM: I second Delegate Trask’s motion. make up his mind, it’s our grave responsibility to make up CHAIRMAN: On the previous question? his mind for him. But he did say, all that he is and all that he hopes to be he owes to the union. The people of Hawaii, KAM: That’s right. as far as he is concerned, in his official capacity to obey CHAIRMAN: It has been moved, the previous question. lawful authority, may be altogether disregarded. We do Are you ready for the question? Does everybody understand not feel that his conduct is such that it can be condoned and the motion that is before the house? All in favor say “aye.” condoned any longer. Contrary minded. APRIL 20, 1950 • Afternoon Session 869 The motion, that when we rise and report progress we CHAIRMAN: That’s the motion that’s now before the - - recommend the adoption of the resolution in the amended form, it has been carried. H. RICE: We recommend the passage of the resolution. The Chair will now entertain a motion to - - CHAIRMAN: That’s correct, and that’s the motion that’s PORTEUS: I rise for a point of information. Did not now before the house. Are you ready for the question? the motion to the previous question carry? All in favor say “aye.” Contrary minded. It’s carried by CHAIRMAN: That’s correct. ayes. The Chair will now entertain a motion to rise and report. PORTEUS: And is not now the motion before the house to rise, report progress, etc.? DELEGATE: I so move. CHAIRMAN: The Chair is getting groggy up here. I correct myself. Are you ready now for the question? DELEGATE: Second it. H. RICE: The motion was that when we rise we recom CHAIRMAN: All those in favor say “aye.” Contrary mend the passage of the resolution. Right? minded. Carried. Appendix COMMITTEE PROPOSAL NO. 3 RELATING TO BILL OF RIGHTS [The draft of the proposal included in the Journal (Proceedings, Volume I, p. 165) was RD1, not the original draft.] SECTION 1. Ailpolitical power of this State and the re SECTION 12. Excessive bail shall not be required, nor sponsibility for the exercise thereof is inherent in the people excessive fines imposed, nor cruel and unusual punishments and all government herein is founded on this authority. inflicted. Witnesses shall not be unreasonably detained or confined. SECTION 2. All persons are born free from political oppression and remain equal in their inherent rights. Among SECTION 13. There shall be no imprisonment for debt these inherent and inalienable rights are life, liberty and and a reasonable amount of the property of individuals may the pursuit of happiness and the right of acquiring and pos be exempted from seizure or sale for payment of any debt sessing property. or liabilities. SECTION 3. No citizen shall be disenfranchised, or de SECTION 14. The privilege of the writ of habeas corpus prived of any of the rights or privileges secured to other shall not be suspended, nor shall the laws or the execution citizens, unless by the law of the land. of the laws be suspended, unless in case of rebellion or in vasion the public safety requires it, and then only in such SECTION 4. Nopersonshall be deprived of life, liberty, manner as shall be prescribed by the legislature. or property without due process of law, nor be denied the equal protection of the laws. SECTION 15. A well regulated State Militia being neces sary to the security of a free State, the right of the people SECTION 5. No law shall be passed respecting the es to keep and bear arms shall not be infringed. tablishment of religion, or prohibiting the free exercise thereoL SECTION 16, No soldier or member of the State Militia shall, in time of peace, be quartered in any house, without SECTION 6. the consent of the owner or occupant, nor in time of war, SECTION 7. No law shall be passed abridging the free except in a manner prescribed by law. dom of speech or of the press. SECTION 17. The military power shall be in strict sub SECTION 8. Therightof the people to be secure i~ their ordination to the civil power. persons, houses, papers, and effects, against unreasonable SECTION 18. Treason against the State shall consist only searches and seizures, shall not be violated; and no warrants in levying war against the same, or in adhering to the ene shall issue, but upon probable cause, supported by oath or mies, giving them aid and comfort. No person shall be con affirmation, and particularly describing the place to be victed of treason unless on the testimony of two witnesses searched, and the person or things to be seized. to the same overt act, or on confession in open court. SECTION 9. No person shall be held to answer for a SECTION 19. The right of the people peaceably to as capital, or otherwise infamous crime, unless on a present semble, and to petition the government, or any department ment or indictment of a Grand Jury, except in cases arising thereof, shall never be abridged. in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any per SECTION 20. son be subject for the same offense to be twice put in jeop SECTION 21. The power of the State to act in the general ardy of life or limb, nor shall any person be compelled in welfare shall never be impaired by the making of any irre any criminal case to be a witness against himseif. vocable grant of special privileges or immunities. SECTION 10. SECTION 22. The right to marry shall not be denied or SECTION 11. In all criminal prosecutions, the accused abridged because of race, nationality, creed or religion. shall enjoy the right to a speedy and public trial by an im partial jury of the judicial circuit wherein the crime shall SECTION 23. Private property shall not be taken for pub have been committed, which judicial circuit shall have been lic use without just compensation. previously ascertainedby law; or of such other judicial cir SECTION 24. The rights and privileges hereby secured cuit to which the prosecution may be removed with the con shall not be construed to justify acts inconsistent with the sent of the accused in accordance with law; to be informed peace or safety of this State. of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for SECTION 25. This enumeration of rights and privileges obtaining witnesses in his favor, and to have the assistance shall not be construed to impair or deny others retained by of counsel for his defense. the people. 871 INDEX Actions and process: 781, 826-827 3. Social security: 551, 559, 570—571, Administration (see Executive and Governor) 576—577 Administrative director, Governor’s office: 345-347 4. Slum clearance, Rehabilitation, Agriculture, farms, development of public lands for: Housing: 549, 571-572 632-638 5. Public sightliness and good order: Agriculture, resources, conservation and development of: 549-551, 559, 572—573, 578—579 620-624 6. Powers of the State: 560, 573-576 Agriculture, Board of, University Board of Regents to be CP 2. Filed (see CP 10) represented on: 606-607 CP 3. Bill of Rights (for text, see page 870) Amendments to State Constitution (see Constitution, State, Sec. 1. Political power: 1 amendments and revisions) 2. Rights of man: 1-5, 20-26 Appropriations (see also Budget)— 3. Rights of citizens: 5 control over expenditure: 451-453, 481-482 4. Due process and equal protection: general appropriations bill: 182-185, 437-449, 483-486, 5, 17 492 5. Freedom of religion: 5-6, 802-803 legislative power over: 446-449 6. (see cp 4) limited to public purposes: 451 7. Freedom of speech and press: 6 Area of State (see Boundaries of State) 8. Searches and seizures: 6-7, 28-29 Arms, right to bear: 10-15 9. Indictment, Trial by jury: 6-7, 29-30 Attorney General, election of, proposed: 320-330 10. (see CP 4) Auditor, election of, proposed: 463-470, 499 11. Rights of accused: 7, 40, 42, 45 Auditor, legislative: 463-471 12. Bail, Excessive punishment: 7-8, 30—31 Bill of Rights: 1-48 13. Imprisonment for debt: 8-10, 31 Birthstone, official state: 702, 704 14. Habeas corpus, Suspension of laws: Boards or commissions, as heads of departments: 330-331 10, 31—33, 38—39, 307-309 Boards or commissions, natural resources management: 15. Right to bear arms: 10-15 317—318, 624-628, 638, 646—648 16. Quartering of soldiers: 13 Bonds, public, continuance of: 492, 785, 792, 803-804, 829 17. Supremacy of civil power: 13 Bonds, public, debt limitation: 454-463, 471-481 18. Treason: 15-16 Boundaries of state: 695-696, 731 19. Freedom of assembly and petition: Budget (see also Appropriations)— 16 formulation and submission: 439-443, 482-485 20. (see CP 28) 21. Limitations on special privileges: 16 Capital improvements budget: 483-484 22. Right to marry: 16-18, 35, 39 Capital of state: 697-698, 722, 731—732, 735, 737—743 23. Eminent domain: 18-20 Citizens— 24. Construction: 12, 20, 22, 27—28 arms, right to bear: 10-15 25. Construction: 27, 45-46 enlistment in military, discrimination prohibited: CP 4. Bill of Rights 33-34, 46 Sec. 6. Enlistment, Segregation, Discrimina rights or privileges secured: 5 tion: 18, 33-35, 46—47, 52 Civil rights: 1—47 10. Trial by jury: 36-45, 47 Civil rights, restoration: 351-356 lOB. Jury service: 44-46 Civil service (see also Public employees): 704, 731 CP 6. Hawaiian Homes Commission Act Claims: 783-785, 826-827 Sec. 1. Hawaiian Homes Commission Act: Color, official state: 702, 704 662-672 Committee proposals*_ 2. Compact with the United States: CP 1. Health and general welfare 672—673 Sec. 1. Public health: 543—546, 554, 561—563, CP 7. Judiciary 568 Sec. 1. Judicial power: 358, 360-361 2. General welfare: 546-549, 559, 2. Supreme court: 358, 361-365 563—570 3. Appointment of judges, Qualifications, Tenure: 358—359, 386—418 *Section numbers are those used in the original draft 4. Removal: 359, 365—369, 374-381 accompanying the standing committee reports. For text 5. Retirement for incapacity: 359, 369, of proposals see Volume I, Section B; for tables of refer 381—382, 385, 418, 424—425 ence to final sections in the Constitution see Volume I, 6. Compensation, Retirement: 359, Section C. 369-371, 418—425 873 874 INDEX Committee proposals* (continued)— CF 21. Sec. 1. Equal rights: 696-697, 731 7. Disqualifications: 359, 371 CF 22. Executive powers and functions 8. Administration: 359, 371—372 Sec. 1. Establishment of the executive: 9. Assignments: 359, 372 268—277, 349 10. Rules: 359, 372-374 2. Lieutenant governor: 277—288 [111 Judicial council: 382-385 3. Compensation for the governor and CF 8. Suffrage and elections lieutenant governor: 288-291, Sec. 1. Qualifications: 49-53 295—297, 349—351 2. Disqualifications: 53-54 4. Succession to governorship: 286, 3. Residence: 54-57 291—295, 297—298 4. Registration, Voting: 56-59 5. Executive powers: 298, 344 5. Elections: 59-65 6. Legislative powers: 298 CF 9. Revision and amendments 7. Special sessions and extended sessions: Sec. 1. Frocedure: 745, 779 298-302 2. Convention: 745-771, 774 8. Fardons and reprieves: 302-306, 3. Amendments proposed by legislature: 351—356 771-774 9, Armed forces: 307-315 4. Veto inapplicable: 774 10. Executive and administrative offices CF 10. Finance and departments: 315-344, 348, Sec. 1. Budget: 442-443, 482-485 356—357, 628, 831, 839—840 2. Legislative appropriations procedure: [ii] Administrative director: 345-347 443-446, 485-486, 492 CF 23. Schedule 3. Fower of legislature to amend general Sec. 1. U. S. Constitution: 781, 826 appropriations bill: 446-449 2. Continuity of rights, actions, etc.: 4. Special and supplementary 781, 826-827 appropriations: 449 3. Continuity of laws: 781-783, 787, 5. Fower of governor to alter 790—792, 826-827 appropriations: 450-451 4. Debts: 783—785, 826—827 6, Appropriations for private purposes RD1 4. Bond acts: 492, 829 prohibited: 451 5. Froperty, etc.: 784, 826-827 7. Expenditure of money: 451-453, RD1 5. Lieutenant governor; Secretary: 481—482 830-831 8. Fowers of taxation: 453, 538-539 6. Bonds: 785, 792, 826—827 9. Uniformity of taxation: 453-454, 804 RD1 6. Allocation of departments: 319-320, RD1 9, Employees’ retirement system: 341, 831, 839—840 493—499 7. Criminal prosecutions: 785-786, 10. Debt limitations: 454-463, 471-481 826—827 11. Furchasing methods: 454 RD1 7. Residence, other qualifications: 696, 12. Auditor: 463-471, 499 831 CF 11. Education 8. Civil causes: 786, 826-827 Sec. 1. Fublic education: 580-589 RD1 8. Compensation of judges: 831-838 2. Board of education: 589-591, 601-604, 9. Records of cases: 786—787, 826—827 619 10. Civil causes: 786-787, 826—827 3. Fowers of the Board of education: ii. Continuance of officers: 786—787, 827 591-601 12. Land laws: 788, 827 4. Board of regents: 604-607, 619 13. Law revision commission: 788-790, 5. Fowers of the Board of regents: 827-829 607—617, 619 14. Frovisions sell-executing: 790, 838 15. Effective date: 790, 838 CF 12. Sec. 1. Seat of government: 697-698, 722, 731—732, 735, 737—743 CF 24. Ordinances and continuity of law Sec. 1. Disqualification for disloyalty: 693, CF 13. Sec. 1. State flag: 697, 731 770-771, 799—802 CF 14. Sec. 1. State seal: 700—701, 729—730, 733—734 2. Religious toleration: 802-803 CF 15. Sec. 1. State boundaries: 695-696, 731 RD1 3—5. (see Sec. 10-12) CF 16. Sec. 1. Civil service: 704, 731 3. Fublic schools: 803 CF 17. Sec. 1. Intergovernmental relations: 699, 720—722, 732 4. Debts: 803-804 CF 18. Sec. 1. Distribution of powers: 689-692, 5. Taxation of non-residents: 804 715-718, 735 6. Federal property: 804 7. Federal land: 804 CF 19. Sec. 1. Oath of office: 692—695, 718-720, 732-733, 752 8. Compact: 804-805 CF 20. Sec. 1. Freamble: 704-714, 722—729, 735 9. Selection of public lands: 805-811 [10] Federal property, tax exemption: 811-812 *Section numbers are those used in the original draft [11] Hawaii National Fark: 812 accompanying the standing committee reports. For text [12] Judicial rights: 812—813 of proposals see Volume I, Section B; for tables of refer CF 25. Election ordinance ence to final sections in the Constitution see Volume I, 1. Elections: 793-799, 813-817, 820-821 Section C. 2. Election procedure: 817-818, 821 875 INDEX 3. Certification: 821 [23] Committees: 221-226 4~ proclamation of admission: 822 [241 Legislative council: 236-237, 259—260 5. Certification, U. S. Senators and [25] Legislative council: 259-260 Representatives: 822 CP 30. Sec. 1. Schedule describing representative [6] First session of legislature: 823 districts: 261—262 [7] Governor and lieutenant governor: Congress, U. S.— 823, 841—843 approval of Constitution by: 795-798 [8] First legislature, term of office: certification of election of members to: 822 823—825 state representation to: 798, 815—817 Conservation, historical and cultural objects: 549-551, CP 26. Local government 572—573 Sec. 1. political subdivisions: 503-513, 541 2. Local sell government, Mandates: Conservation, natural resources: 620-624 513 —541 Constitution, State— 3. Taxation andfinance: 538-539 amendments and revisions— 4. Statewide laws: 539 generally: 745-774 approval by voters: 764-768 CP 27. Agriculture and natural resources—Part I Sec. 1. Resources, Conservation, development by popular initiative: 776, 779 and use: 620-624 by legislature: 771-774 2. Natural resources, Management and construction: 12, 20, 22, 27, 696—697, 731 disposition: 317—318, 624-628, 638, effective date: 838 646-648 provisions self-executing: 838 3. Sea fisheries: 628-631 ratification: 795-798 4. General laws required, Exceptions: subtitles not to be considered in interpreting: 558, 570 631—632, 638—646 Constitution, U. S. adopted: 781 5. Farm and home ownership: 632-638 Constitutional conventions: 747-760 CP 27. Part II Constitutional conventions, delegates to: 749 -754, 756-759, Sec. 1. Federal lands: 649—650, 652—656, 769-771, 774 804, 812 Counties (see also Local government): 504-533, 539-541 2. Compliance with trust: 637—638, 650, Courts (see also Judiciary and Supreme Court)— 657—658 administration: 359, 371-372 3. Administration of undisposed lands: continuity of jurisdiction: 785—787, 826—827 650-651 process: 697—698 4. Condemnation of fisheries: 651 rules and regulations: 359, 373-374 CP 28. Sec. 1. Industry and labor: 674-688 witnesses, detention of: 7-8, 31 CP 29. Legislative powers and functions Criminal law— Sec. 1. Legislative power: 142 accused, rights of: 7 2. Senate, Senatorial districts: 67-106 bail: 31 3. House of representatives, represen double jeopardy: 29-30 tative districts: 106-142, 155-173 evidence: 28-29 4. Reapportionment: 173-177 fines: 31 5. Election of members, Term of office: grand jury: 6, 29-30 142-143 indictment: 6, 29-30 6. Vacancies: 143-144 jury trial: 36-38, 40, 42, 45, 47 7. Qualifications of members: 144 witnesses: 7-8, 31 8, Disqualification of public officers and Cultural objects, conservation and development: 559, employees: 144-146, 177-179 572—573 9. Privileges of members: 146-149, 179—181 Debt limitations, state: 454-463, 471—481 10. Disqualification of members: 149, Debt limitations, political subdivisions: 454-463, 471-481 181—182, 252-261 Debt, penalties for: 8—10, 31 11. Salary of members: 149—150, 186—190, Debts accrued to Territory: 783-785, 803-804, 826-827 195—214, 217, 241-252, 260 Debts, Territorial, assumed by state: 803-804 12. Sessions of legislature: 150, 182-186, Departments (see under Executive) 219, 262 Disaster defined: 479-480 13.. Adjournments: 151-152 Discrimination prohibited: 33—35, 45, 52 14. organization: 152, 190 Due process of law: 5, 17 15. Quorum, Attendance; 152 16. Bills: 152—153, 190 Education— 17. Passage of bills: 153—154, 190—191 generally: 580-604, 803 18. Action by governor: 154, 191-192, 215-219, 263-267 English standard schools: 586-587, 589 19. Procedure upon veto: 154, 192, 215 language schools: 617-619 20. Punishment of persons not members: local school advisory councils: 590—591, 602-603 154—155, 193—194, 214—215 junior colleges: 587-589 21. Impeachment of elective executive private schools: 581, 583—584, 586—587 officers: 155, 194, 219-221, school plant responsibility: 457, 507, 580-584, 586, 226-233, 237-241 589, 596 22. Legislative council: 194, 233-236 sectarian control prohibited: 584 876 INDEX Education (continued)— appointment power: 343-344, 348, 619 segregation prohibited: 45, 586—587 budget formulation and execution: 439-443, 482-485 Superintendent of public instruction— commander in chief of armed forces: 310-315 as voting member of Board of education: 591-595 commutations: 303-304 as voting member of Board of regents: 604-605 compensation: 288—291, 295-297, 349—351 powers and duties: 597, 600-601 disqualifications: 276-277 textbooks, free: 585, 617 election: 269—275 university (see University) election, tie vote: 349 Education, Board of— impeachment: 194, 219-221, 226-233, 237-241 appointment: 619 pardons and reprieves: 302-306, 351-356 appointment vs. election: 589-590 pardons before conviction: 304-306, 351-356 clergy as members: 603-604 pardons, power to grant in cases of impeachment: geographic representation: 590-591, 601-602 303-304, 351—356 powers: 591-601 powers: 293—294, 298-315, 344, 351-356 Elections— qualifications: 275-276 generally: 49-65, 269-275 term, first after statehood: 274, 823, 841-843 absentee voting: 57-59 term of office: 274—275 age, qualifications for voting: 49-52 vacancy, when: 292-294, 297-298 constitutional amendments: 764-768 veto: 191—192, 215-219, 263—267, 450—451, 459 contested: 63-65, 272-273 expenses, limitation on: 65 Habeas corpus: 10, 32—33, 38—39 first state: 793, 798—799, 813—818, 820—821 Habeas corpus, power of governor to suspend deleted: general: 59-63 307—310, 315 literacy requirements for voting: 49, 52 Hawaii (Island)— primary: 59-63 House of Representatives districts: 139-141, 155-162, registration of voters: 56-59 171-173 residence qualifications for voting: 52-57 Senate districts: 103-104, 106 specIal: 64 Senate representation: 74-76, 82-83 voting methods: 58-59 Hawaii National Park: 812 voting qualifications: 49-54 Hawaiian Homes Commission Act— Eminent domain: 18-20 generally: 659-662 Employees, public (see Public employees) administrative expenses: 662-668, 671 Employees’ Retirement System: 493-499 consent of Congress for amendment: 668-669, 672 Equal rights (see Rights, equal) legality of: 35, 670 Executive (see also Governor)— retention mandated: 661-662, 668, 670, 672 generally: 269-357 Health, Public: 543—546, 552—554, 561—563, 568 boards: 317, 624—628, 638, 646—648 Heraldry, state: 701-704 clemency: 302—306, 351—356 Historic sites, conservation and development: 549-551, department heads— 572 -573 generally: 320, 330-332 Hospitals, subsidies: 553, 556-558 removal of: 320, 332-337 Housing, public assistance in: 549, 571-572 residence requirements: 342-343 term of office: 334 Impeachment— departments— governor and public officers: 194, 219-221, 226-233, generally: 315-320, 344, 628 237—241 allocation: 831, 839-840 judges: 219-220, 229 reorganization by governor proposed: 337-342 pardons after: 303-304, 351-356 power vested in governor: 268-269 Industry and labor: 674-688 Initiative: 221, 774—779 Finance, Commissioner of, proposed: 439-441 Intergovernmental relations: 699, 720-722, 732 Finance, public (see also Budget and Taxation)— generally: 436-442 Judges— borrowing powers (see Debt limitations) appointment: 358—359, 386—398 centralized purchasing provision deleted: 454 appointment by chief justice proposed: 398-408, 412-413 Fines: 783-785 compensation: 369-371, 418-420, 831-838 Fish and game: 620-624 continuation in office: 827 Fishing rights and fisheries: 628-631, 651 disqualifications: 371, 748—752, 754, 770 Flag, Hawaiian, history of: 731 election proposed: 386—398, 413—415 Flag, official state: 697, 731 incapacity: 359, 369, 381—382, 385, 418, 424—425 Flower, official state: 702-704 qualifications: 411-412 Forfeitures: 783—785 recall: 360 removal: 219—220, 229, 365—369, 374-381 retirement: 420-425 Governmental powers, distribution of: 689-692, 715-718 term of office: 408—411, 415—418 Governor (see also Executive)— Judicial council: 360, 382-385 generally: 268-277 Judicial rights, state and federal: 812-813 administrative director (see Administrative director, Judiciary (see also Courts, Judges, Supreme Court): Governor’s office) 358—425 877 INDEX Jury, womdn on: 44-45 term of office: 142-143 Jury trial: 6, 36-45, 47 term to first state legislature: 823-825 vacancies: 143 Kalawao as a county: 540-541, 763 organization: 152, 190 Kamehameha I, law of the splintered paddle: 704-714, powers: 13, 556, 558—561, 568, 575, 622 722—728 punishment of non-members: 154-155, 193-194, 214-215 Kauai, Senate representation: 82-83 Senate— generally: 67-106 Labor, Right to organize and bargain collectively: 674-688 apportionment: 77-78, 82-106 Lanai, representation in House of Representatives: districts: 73-106 133-136, 138 number: 67-73, 86-103 Lands— reapportionment: 96, 760-764 eminent domain for subdivision purposes: 632-633 sessions— federal: 649-650, 652-657, 804-805, 812 generally: 182-186, 219 federal, taxation of: 811-812 extension: 301-302 laws, continuation of: 788, 790, 827 special: 298-301 public— special session after statehood admission: 823 administration of undisposed: 650-651 Libraries, public: 581, 585 committee to select: 805-811 Lieutenant governor— control of: 624-628, 631-632, 638-646 appointment proposed: 281-285 farm and home ownership: 632-638 assume duties of Secretary of Territory: 782, 830-831 leasing: 633—636 compensation: 288-291, 349-351 Statehood bill provisions: 652-658, 805-810 duties: 286-288, 345, 822 trust provisions concerning: 637-638, 650, 657-658, election: 277-283 668-670 impeachment: 194, 219—221, 226—233, 237—241 Laws— proposed presiding officer for Senate: 70-73 continuity of: 781—783, 787, 790—792, 826—827 succession to governor: 291-294, 297-298 equal protection of: 5 term, first after statehood: 823, 841-843 Revision Commission proposed: 788-790, 827-829 Local gover~iment— suspension: 10, 31—33, 38—39, 308—310 generally: 500-513 Legislation— bonds, authorization and indebtedness: 454-463, 471-481 appropriation bills: 182-185, 437-449, 483-486, 492 charters: 513-534, 539—541 bills, discharge from committee: 221-226 claims accrued, mandated payments prohibited: bills, form and procedure: 152-154, 190-191 514—516, 524, 527, 535—536 veto: 191—192, 215—219 home rule: 513-534 veto, reconsideration by legislature after adjournment: legislative control: 501—502, 508, 514—517, 524—526, 191—192, 215—219, 263—267 528 Legislative auditor (see Auditor, legislative) natural resources, ownership and control of: 625-627, Legislative council: 194, 233-237, 259—260 646-648 Legislature— officials: 536—538 adjournment: 151-152 powers: 538—541 bills (see Legislation) revenues: 534—535, 538—539 budget procedure (see Budget) taxation: 503-506, 538—539 Constitution, amendments to: 771-774 Loyalty, public officers and employees: 693, 781, 799-802 costs: 69—71, 90—95, 126, 128-129, 131 employees under merit system proposed: 213, 248-252, 260 Marriage rights: 16-18, 35, 47 executive secretary proposed: 248-252, 260 Martial law, power of Governor deleted: 307-310 expenses, limitations proposed: 195, 205-214, 241-248 Maui, House of Representatives districts: 107, 112-113, House of representatives— 133—139 generally: 106—142, 155-173 Medicine, socialized: 544-547, 566-567 apportionment: 107-113, 122-125 Mental incompetency: 36 apportionment, equal proportions explained: 113-124 Mentally handicapped, state care: 546-549, 559, 563-570 districts: 106—113, 133—141, 155—173 Military service, non-discrimination: 33-34, 46 number: 89, 106-113, 126-132 Militia- reapportionment: 107-108, 173-177 quartering of soldiers: 13 reapportionment, equal proportions explained: right to bear arms: 10-13 113-124 right to serve: 33-34, 46 impeachment proceedings: 194, 219-221, 226-233, Mineral resources (see Natural resources) 237—241, 262 Molokai, representation in House of Representatives: Legislative council (see Legislative councu) 133—136, 138 members— Motto, official state: 701-702 disqualifications: 149, 181-182, 252—261, 276-277 elections: 152, 190 immunity: 146—149, 179-181 National guard (see Militia) privileges: 146—149, 179-181 Natural resources, conservation of: 620-624 salaries and allowances: 149-iSO, 186-190, 195-205, Natural resources, control over committed to boards or 216-217, 241—248 commissions: 317-318, 624-628, 638, 646-648 878 INDEX Oahu, House of representatives districts: 108-110, 162-171 Seal of state: 700-701, 729—730, 733—734 Oahu, Senate districts: 76-86 Searches and seizures: 6-7, 28-29 Oath of office, public officers and employees: 692-695, Seat of government (see Capital of state) 718—720, 732-733, 752, 754 Secretary of State: 782, 830-831 Officers, public (see Public officers) Secretary of Territory, duties to lieutenant governor: Ordinances on transition (see Transition) 782, 830—831 Organic Act, Hawaiian, continuity: 782-783, 790-792 Segregation prohibited: 33-34, 45, 586-587 Sex— Pardons and reprieves: 302-306, 351-356 equal rights: 696—697, 731 Parks and playgrounds: 549-551, 572-573 jury service, discrimination prohibited: 44-45 Penalties, continuation of: 783—785 Silva, Delegate Frank G., disqualification of: 845-869 Physically handicapped, State care: 546-549, 559, 563-570 Slum clearance, rehabilitation and housing: 549, 559, Power— 571-572 civil over military: 13 Social security (see Public assistance) State, not limited to those enumerated: 573-576 Song, official state: 701—703, 734—737 State, for general welfare: 556, 558-561, 568, 573—576 State— Powers, separation of: 689-692, 715-718 first officers, assumption of office: 822 Preamble: 704-714, 722-729, 735 first officers, election: 793, 798—799, 813—818, 820—821 Property— proclamation, procedure and effect: 822 federal, taxation of: 811—812 State powers (see Power, state) private, eminent domain: 18-20 State symbols (see Symbols, state, and under names of private, regulation for public purpose: 549-551, each symbol) 572-573 Subtitles not to be considered in interpreting Constitution: Territorial, to State: 784 558, 570 Public assistance: 551, 570—571, 576—577 Suffrage (see Elections) Public employees (see also Public officers)— Superintendent of public instruction (see Education, civil service: 704, 731 Superintendent of public instruction) disqualification as legislative candidates: 144-146, Supreme Court (see also Courts and Judges)— 177—179 generally: 361-365 loyalty qualifications: 693, 781, 799-802 administrative director: 37i-372 oath of office: 692—695, 718—720, 732—733 advisory opinions of: 360 residence requirements proposed: 342-343 chief justice, election proposed: 398-404, 412-413 retirement system: 493-499 chief justice, vacancy or absence: 363—365 Public officers (see also Public employees and under justices— title of specific office)— appointment by chief justice proposed: 398-404, continuity: 827 412—413 disqualification as legislative candidates: 144-146, compensation: 369-371, 418-420 177—179 disqualifications: 359, 371 impeachment: 219-221, 226-233, 237-241 election proposed: 386-398, 405-408, 413-415 loyalty qualifications: 693, 781, 799-802 incapacity: 359, 369, 381-382, 385, 418, 424-425 oath of office: 692—695, 718-720, 732—733, 752, 754 removal: 219—220, 229, 365-369, 374—381 removal for cause may be prescribed by law: 238-239, retirement: 420-425 356—357 terms of office: 408-41i, 415-418 residence requirements proposed: 342-343 quorum: 36i-364 Public sightliness and good order: 18, 549-551, 559, rules and regulations for courts: 373-374 572-573, 578 Symbols, state: 701-704, 733-737 Public welfare (see Welfare) Taxation— Race, discrimination prohibited: 35 federal lands and property: 811-812 Race, segregation in schools prohibited: 45, 586-587 local government, power to tax: 503-506, 538-539 Real property, assessed valuation: 458-459, 474, 476-478 power reserved to State: 538-539 Recall: 221, 774 property of non-residents: 453, 804 Referendum: 221, 774-779 real property, home exemptions: 427-436 Religion, discrimination prohibited: 33-34 real property, uniformity: 481, 484-492 Religion, freedom of: 5-6, 802-803 uniformity: 453-454 Residence requirements in Constitution: 696, 831 Transition provisions: 78 1-843 Residence requirements for voters: 52-57 Transition provisions, elections: 798 -799, 813-818, Retirement system (see Employees’ Retirement System) 820-821 Rights, Bill of (see Bill of Rights) Treason: 15-16, 146-i47, 302-304 Rights, construction of: 12, 20, 22, 27-28 Treasurer, election proposed: 347-348 Rights, equal: 696-697, 731 Rights and privileges: 12, 20, 22, 27-28 United States (see also under name of specific organization) Rights of citizens: 5 United States, lands (see Lands, federal) Rights of man: 1-5, 20-26 United States, property of: 804 University— Schedule describing representative districts: 261-262 generally: 581, 585, 587—588, 604-607 Schools (see Education) as a corporation: 608-610 879 INDEX University (continued)— Veto (see Governor, veto, and Legislation, veto) personal property: 611-617, 619 Voting (see Elections) president as voting member of Board of regents: 604-605 Welfare: 552—579 real property: 609—617, 619, 639-642, 646 Welfare, general: 16, 560, 573-576 Regents, Board of— Witnesses: 7-8, 31 appointment: 604-605, 619 Women, jury service: 44-46 geographic representation: 605—606 membership to include officer of Board of Agriculture: 606-607 powers: 607