Anamizu, Application of, 4968

• Decision Date: 17 February 1971
• Docket Number: No. 4968,4968
• Citation: 52 Haw. 550,481 P.2d 116
• Parties: Application of Toshio ANAMIZU, Walter Auyong, Moses Freitas, Richard Tamu Kang, George T. M. Loo, Hideo Moritsugu, Fred E. Nakandakare, Henry P. L. Siu, Satoru Uyeda and Clement W. B. Young for Re-registration as Electrical Contractors. Toshio ANAMIZU, Walter Auyong, Moses Freitas, Richard Tamu Kang, George T. M. Loo, Hideo Moritsugu, Fred E. Nakandakare, Henry P. L. Siu, Satoru Uyeda and Clement W. B. Young, Appellants-Appellees, v. The CITY AND COUNTY OF HONOLULU, Appellee-Appellant.
• Court: Hawaii Supreme Court

Page 116

481 P.2d 116

52 Haw. 550

Application of Toshio ANAMIZU, Walter Auyong, Moses Freitas,

Richard Tamu Kang, George T. M. Loo, Hideo Moritsugu, Fred

E. Nakandakare, Henry P. L. Siu, Satoru Uyeda and Clement W.

B. Young for Re-registration as Electrical

Contractors. Toshio ANAMIZU, Walter Auyong, Moses Freitas,

Richard Tamu Kang, George T. M. Loo, Hideo Moritsugu, Fred

E. Nakandakare, Henry P. L. Siu, Satoru Uyeda and Clement W.

B. Young, Appellants-Appellees, v. The CITY AND COUNTY OF HONOLULU, Appellee-Appellant.

No. 4968.

Supreme Court of Hawai'i.

Feb. 17, 1971.

Syllabus by the Court

1. Municipal corporations are solely the creation of the State.

2. Municipal corporations may exercise only those powers which have been delegated to them by the State legislature.

3. Under HRS § 70-105 a municipal ordinance which covers the same subject matter embraced within a State statute is invalid if the statute discloses an express or implied intent that the same shall be exclusive, or uniform in application throughout the State.

4. HRS ch. 444 indicates a legislative intention that the regulation of the professional qualifications of contractors shall be by the State only.

5. Where the State has pre-empted the field of regulating the qualifications of persons engaged in a specific type of business, a municipal ordinance which attempts to regulate the same subject matter is invalid.

Robert M. Rothwell, Deputy, Corporation Counsel, City & County of Honolulu, Honolulu (Paul Devens, Corporation Counsel, Honolulu, with him on the brief) for appellee-appellant.

Robert A. Franklin, Honolulu, for appellants-appellees.

Gary Shigemura, Deputy Atty. Gen., Honolulu, (Bertram T. Kanbara, Atty. Gen., and Jeffrey N. Watanabe, Deputy Atty., Gen., on the brief) for State of Hawaii, intervenor.

James P. Conahan, Honolulu, (Moore, Torkildson & Schulze, Honolulu, of counsel), for Halfhill, Electrical Co., Ltd., amicus curiae.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and VITOUSEK, Circuit Judge.

LEVINSON, Justice.

This case involves the validity of sections 17-6.2(d)(1)(aa) and 17-6.2(d)(1) (cc) of Honolulu, Hawaii, Ordinance 2541, December 24, 1964. The provisions in question set forth the requirements which must be met by electrical contractors who seek permission to practice their profession in the City and County of Honolulu. The appellees are all supervising electricians and each holds a current state electrical contractor's license, issued by the Hawaii Contractors License Board pursuant to HRS § 444-4. During the normal work week they are employed on a full-time basis by government agencies or private employers. The appellees engage in their electrical contracting operations on a part-time basis, doing most of the work on weekends and holidays.

In 1964 the appellant, the City and County of Honolulu, enacted Ordinance No. 2541 which amended Honolulu, Hawaii, Revised Ordinances ch. 17 (1961) (The Electrical Code). Section 17-6.2(d) of the new ordinance contains the requirements for the issuance of an electrical contractor's certificate by the Building Superintendent of the City and County. Section 17-6.2(d) requires in relevant part:

(1) An electrical contractor shall:

(aa) Maintain a place of business in a business or industrial district with a listed telephone and be principally engaged in the business of an electrical contractor during normal business hours from said place of business.

(cc) Be a supervising electrician, or employ a supervising electrician, principally engaged in the business of the electrical contractor * * *.

Prior to the enactment of Ordinance No. 2541 each of the appellees held a valid Honolulu electrical contractor's certificate. Upon reapplication, however, they were unable to comply with the above requirements because of the part-time nature of their work. Accordingly, on October 18, 1965, the Honolulu Building Superintendent denied them recertification. The appellees appealed the Superintendent's decision to the Honolulu Board of Electricla Examiners which affirmed his ruling. A subsequent appeal to the Honolulu City Council also failed to secure a reversal of the denial of certification. Consequently, on November 4, 1966 the appellees sought judicial review of their denial of certification in the First Circuit Court.

The circuit court filed its findings of fact, conclusions of law and judgment on November 3, 1969. The trial court concluded that the State of Hawaii, by its enactment of HRS ch. 444, intended to preempt the field of regulating the licensing of electrical contractors. The ocurt held, therefore, that the regulatory provisions of Ordinance No. 2541 were invalid and that the appellees, having been properly licensed by the State, need not obtain municipal certification in order to engage in the business of electrical contracting. The City and County of Honolulu appeals from this judgment contending that the trial court erred in its determination of State preemption of the regulatory field and that therefore the provisions of section 17-6.2(d) are a valid exercise of the city's municipal powers. For the reasons set forth below we affirm the decision of the trial court.

Municipal corporations are solely the creation of the State. As such they may exercise only those powers which have been delegated to them by the State legislature. See City of Trenton v. New Jersey, 262 U.S. 182, 187, 43 S.Ct. 534, 67 L.Ed. 937 (1922); McKenzie v. Wilson, 31 Haw. 216, 237 (1930). The Charter of the City and County of Honolulu, S.L.H.1959, Act 261, as amended, published as an Appendix in Volume 2 of HRS, together with HRS ch. 70 enumerate the powers which the State has granted to the Honolulu government. The legislature has not expressly conferred the power to regulate the licensing of electrical contractors locally. The appellant contends, however, that its power to regulate electricians is implied by the provisions of HRS § 70-70 and HRS § 70-71. The former empowers the Honolulu City Council to enact 'all ordinances necessary to protect health, life and property * * * of the city and county and its inhabitants.' The latter authorizes the City Council to regulate the construction of buildings. The appellees argue that municipal regulation of their professional qualifications is impermissible because exclusive control over electrical contracting is vested in the State by HRS ch. 444. In support of this contention the appellees rely upon the prohibition of HRS § 70-105 which provides:

No ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute of the State; provided that the ordinance is not inconsistent with and does not tend to defeat the intent or object of the statute or of any other statute; provided also that the statute does not disclose an express or implied intent that the same shall be exclusive, or uniform throughout the State.

Thus, under HRS § 70-105 the critical determination to be made is whether HRS ch. 444 indicates a legislative intention to be the exclusive legislation applicable to...