Inter-Island Steam Nav. Co. v. Territory of Hawaii

Citation96 F.2d 412
Decision Date16 April 1938
Docket NumberNo. 8569.,8569.
PartiesINTER-ISLAND STEAM NAV. CO. v. TERRITORY OF HAWAII.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

A. G. M. Robertson, J. G. Anthony, and D. C. Lewis, all of Honolulu, T. H. (Robertson, Castle & Anthony, of Honolulu, T. H., of counsel), for appellant.

Urban Earl Wild and J. Russell Cades, both of Honolulu, T. H. (Smith, Wild, Beebe & Cades, of Honolulu, T. H., of counsel, for appellees.

Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

The applicability and validity of an act of the Territory of Hawaii levying fees on public utilities are here involved.

Appellant is a corporation duly organized prior to 1913 under the laws of the Kingdom of Hawaii, a political predecessor of the Territory of Hawaii. It is a common carrier, having owned and still owning, controlling, and operating numerous vessels and other property incidental to the transportation of passengers and freight exclusively between the different parts of the Territory.

Appellee is the Public Utilities Commission of the Territory, created by Act 89 of the Session Laws of Hawaii, 1913, p. 121, approved April 19, 1913, §§ 2189-2210, Rev.Laws of Hawaii, 1925. Among the powers conferred on appellee is that of investigation. Under section 5, Rev. Laws Hawaii 1925, § 2193, such power extends to the condition of each utility and the manner in which it is operated, with reference to the safety or accommodation of the public; the safety, working hours, and wages of its employees; fares and rates charged by it; the value of its physical property; issuance of stocks and bonds by it and the disposition of the proceeds thereof; amount and disposition of its income; its financial transactions; its business relations with others; its compliance with territorial and federal laws, and of its franchise, charter, and articles of association; its classifications, rules, regulations, practices, and service; and "all matters of every nature affecting the relations and transactions between it and the public or persons or corporations."

In section 13, Rev.Laws Hawaii 1925, § 2201, it is provided appellee should have the power to investigate such matters even though such matters were within the jurisdiction "of the interstate commerce commission * * * or other body." It is further provided that institution of appropriate proceedings for relief before the "interstate commerce commission * * * or other body" is appellee's duty.

Appellee's investigatory powers, by section 6, Rev.Laws Hawaii 1925, § 2194, extend to books, records, contracts, maps, and other documents, and by section 7 (section 2195) to accidents and the causes thereof.

By section 14 (section 2202) it is provided that all rates and fares observed by any public utility must be "just and reasonable," and that the commission had the power, "in so far as it is not prevented by the Constitution or laws of the United States," to regulate, fix, and change such rates and fares. Section 18 (section 2208) defined "public utility" to mean and include "every * * * corporation * * * which may own, control, operate * * * whether under a franchise, charter, license * * * or otherwise, any plant or equipment * * * directly or indirectly for public use, for the transportation of passengers or freight." Section 20 of the act (section 2210) provided that it "shall not apply to commerce with foreign nations, or commerce with the several states of the United States, except in so far as the same may be permitted under the Constitution and laws of the United States." Section 21 of the act provided that it would take effect on July 1, 1913.

Section 17 of the foregoing act was amended by Act 127 of the same Session Laws, approved and effective April 28, 1913. That section took effect as a part of the original act, and provided for the fees in question. So far as it is here material, that section provides, Session Laws of Hawaii, 1913, p. 184, Rev.Laws Hawaii 1925, § 2207: "* * * There shall also be paid to the commission in each of the months of March and September in each year by each public utility which is subject to investigation by the commission a fee which shall be equal to one-twentieth of one per cent of the gross income from the public utility business carried on by such public utility in this Territory during the preceding year, plus one-fiftieth of one per cent of the par value of the stock issued by such public utility and outstanding on December 31 of the preceding year, if its principal business is that of performing public utility services in this Territory. Such fee shall likewise be deposited in the treasury to the credit of said fund Public Utilities Commission Fund. The moneys in said fund are hereby appropriated for the payment of all salaries, wages and expenses authorized or prescribed by this Act."

On April 29, 1913 (one day after approval of Act 127, which amended the original act of April 19, 1913), Act 135 was approved, to become effective upon its approval by the Congress of the United States.1 The Act of March 28, 1916, C. 53, 39 Stat. 38, approved the last-mentioned territorial act, but made additions thereto. The territorial act, with the additions of Congress italicized, is in part: "The franchises granted by various territorial acts approved by Congress and all franchises heretofore granted to any other public utility or public-utility company, and all public utilities and public-utilities companies organized or operating within the Territory of Hawaii, and the persons and corporations holding said franchises shall be subject as to reasonableness of rates, prices, and charges and in all other respects to the provisions of act eighty-nine of the laws of nineteen hundred and thirteen of said Territory creating a public-utilities commission and all amendments thereof for the regulation of public utilities in said Territory; * * * Provided, however, That nothing herein contained shall in any wise limit the jurisdiction or powers of the Interstate Commerce Commission under the Acts of Congress to regulate commerce." * * *

The Shipping Act of 1916, Act of September 7, 1916, c. 451, 39 Stat. 728, as amended 46 U.S.C.A. § 801 et seq., created the United States Shipping Board. Section 1 of that act provided in part:

"When used in this chapter:

"The term `common carrier by water in foreign commerce' means a common carrier, except ferryboats running on regular routes, engaged in the transportation by water of passengers or property between the United States or any of its Districts, Territories, or possessions and a foreign country, whether in the import or export trade. * * *

"The term `common carrier by water in interstate commerce' means a common carrier engaged in the transportation by water of passengers or property on the high seas or the Great Lakes on regular routes from port to port between one State, Territory, District, or possession of the United States and any other State, Territory, District, or possession of the United States, or between places in the same Territory, District, or possession." 46 U.S.C.A. § 801.

Section 18, 46 U.S.C.A. § 817, provides that every "common carrier by water in interstate commerce" shall establish just and reasonable rates and fares, and shall file with the Board such rates and fares, and gives to the Board power to prescribe and order reasonable rates and fares if it finds those established by such carrier are unjust or unreasonable. The Board is also given investigatory powers by 46 U.S.C.A. §§ 812, 814, 815, 816, 817, and 820.

On September 28, 1917, appellee ordered appellant to reduce its charges for passengers and freight. Appellant appealed to the Supreme Court of the Territory which held appellant to be a "common carrier by water in interstate commerce," within the provisions of the Shipping Act; that since Congress had acted, appellee was "excluded from exercising such regulation," and that therefore appellee had no jurisdiction to make the order. In re Investigation of Inter-Island Steam Nav. Co., 24 Haw. 136, 144, 146, 148.

Appellant paid the fees prescribed by section 17 of the act creating the Commission for the years 1913 to 1922 in the total sum of $26,572.79. It did not pay any fees for the years 1923 to 1930. On June 1, 1930, appellee filed an action in the circuit court of the Territory, against appellant to recover the fees for those years, totaling $33,724.44. This sum consisted of the following items:

                  =============================================================
                  Year      Gross      Capital        Due         Total
                           Receipts     Stock    Semi-Annually     For
                             Tax         Tax                       Year
                  -------------------------------------------------------------
                  1923    $  934.50   $1,000.00    $1,934.50    $3,869.00
                  1924     1,013.78    1,000.00     2,013.78     4,027.56
                  1925     1,085.92    1,000.00     2,085.92     4,171.84
                  1926     1,066.15    1,030.00     2,096.15     4,192.30
                  1927     1,154.85    1,076.00     2,230.85     4,461.70
                  1928     1,282.80    1,188.00     2,470.80     4,941.60
                  1929     1,356.51    1,300.00     2,656.51     5,313.02
                  1930     1,447.42    1,300.00     2,747.42     2,747.42*
                  _____________________________________________________________
                  Totals  $9,341.93   $8,894.00   $18,235.93   $33,724.44
                  =============================================================
                

Appellant filed an amended demurrer. The circuit court reserved the questions of law arising for the consideration of the Supreme Court of the Territory, pursuant to section 2513, Rev.Laws Hawaii of 1925. On October 8, 1931, the Supreme Court held that the "power to investigate, to make complaint and to institute and to maintain proceedings before the shipping board is not inconsistent with the power of the shipping board to decide upon the merits of the complaint and to regulate as in its wisdom it may see fit to regulate," and that...

To continue reading

Request your trial
10 cases
  • Portland Pipe Line Corp. v. Environmental Imp. Com'n
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 4, 1973
    ...imports or exports upheld against a constitutional attack based upon the Import-Export Clause is seen in Inter-Island Steam Nav. Co. v. Territory of Hawaii, 96 F.2d 412 (9th Cir. 1938). Hawaii had imposed a tax upon the receipts of the plaintiff, a common carrier. The plaintiff was engaged ......
  • Anderson v. Mullaney
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 5, 1951
    ....... v. . MULLANEY, Commissioner of Taxation of Territory of Alaska. . No. 12586. . United States Court of Appeals ...Inter-Island Steam Nav. Co. v. Territory of Hawaii, 9 Cir., 96 F.2d 412, ......
  • Island Airlines, Inc., Application of
    • United States
    • Supreme Court of Hawai'i
    • June 21, 1963
    ...to compliance with the federal law. See Inter-Island Steam Nav. Co. v. Territory, 305 U.S. 306, 59 S.Ct. 202, 83 L.Ed. 189, aff'g 96 F.2d 412, (9th Cir.) which aff'd 33 Haw. 890; Territory v. Inter-Island Steam Nav. Co., 32 Haw. Within the meaning of the Federal Aviation Act of 1958 an airl......
  • Island Airlines, Inc., In re
    • United States
    • Supreme Court of Hawai'i
    • February 27, 1961
    ...Steam Nav. Co., 32 Haw. 127; Inter-Island Steam Nav. Co. v. Territory, 305 U.S. 306, 59 S.Ct. 202, 83 L.Ed. 189, affirming 9 Cir., 96 F.2d 412, which affirmed 33 Haw. 890. Upon like reasoning Congress could and did, while Hawaii still was a Territory, withdraw from the authority of the Publ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT