In re Faxon Bishop

• Decision Date: 06 September 1940
• Docket Number: No. 2106.,2106.
• Citation: 35 Haw. 608
• Parties: IN THE MATTER OF A SUBMISSION ON AGREED FACTS IN A CONTROVERSY BETWEEN E. FAXON BISHOP, ET AL., AND J. H. MAHIKO, ET AL.
• Court: Hawaii Supreme Court

35 Haw. 608

IN THE MATTER OF A SUBMISSION ON AGREED FACTS IN A CONTROVERSY BETWEEN E. FAXON BISHOP, ET AL., AND J. H. MAHIKO, ET AL.

No. 2106.

Supreme Court of the Territory of Hawai‘i.

Submitted July 9, 1940.

Decided September 6, 1940.

SUBMISSION UPON AGREED FACTS.

Syllabus by the Court

Where one of the questions submitted in a statutory submission is whether provisions of the Hawaiian Organic Act conferring upon the Territory of Hawaii the power to condemn private fishing rights to the use of the citizens of the United States and prescribing the procedure to be undertaken in the exercise of the power conferred are violative of the provisions of the fifth amendment of the Constitution of the United States in respect to due process and the taking of private property for public use without just compensation, this court may take judicial notice of historical facts upon which the agreed statement is silent, including official records of the Republic of Hawaii, Provisional Government and Kingdom of Hawaii, kept in the archives and in the offices of the land commissioner and of the government surveyor which are supplementary to and explanatory of but not inconsistent nor in conflict with the admitted facts upon which the submission is based. This conclusion does not, however, impose any obligation upon the court to, of its own motion, take judicial notice of “whatever ought to be generally known” or to independently examine the pertinent and material records of public offices to ascertain facts upon which the agreed statement is silent and of which it may take judicial notice.

Where, in a statutory submission of controversy, the agreed statement fails to state in concrete form the questions “in difference which might be the subject of a civil action,” within the meaning of R. L. H. 1935, § 3616, and from the contentions of the respective parties stated therein, there are deducible therefrom questions involving title to certain sea waters of the Territory as between the United States, on the one hand, and the konohiki and tenants of an adjoining ahupuaa, on the other, in which the konohiki and tenants claim private fishing rights accordingly as they existed under the laws of the Republic of Hawaii and prior to the effective date of the Hawaiian Organic Act and from the contentions of the konohiki and tenants there evolves the further question of whether sections 95 and 96 of the Organic Act are violative of the due process clause of the fifth amendment of the Constitution of the United States and the inhibition thereof against the taking of private property for public use without just compensation, the further question, arising from the contentions of the Territory, whether the respective rights claimed by said konohiki and tenants in said sea waters are “vested rights,” within the meaning of that term as used and employed in section 95 of the Organic Act, will not be considered, the presence of the question of constitutionality being in effect an admission by the Territory that in any civil action of which the agreed statement is a substitute, there would have been available to the konohikis and tenants the claim that sections 95 and 96 of the Organic Act were unconstitutional upon the grounds stated which presupposes that the respective rights entitling them to take that position were vested rights.

Explicit and implicit in sections 95 and 96 of the Hawaiian Organic Act is the purpose of the Congress of the United States to make all fisheries in the sea waters of the Territory, not included in any fish pond or artificial enclosure, free to all citizens of the United States. To that end it repealed all of the pre–existing laws of the Republic of Hawaii which conferred exclusive fishing rights and provided a method by which, in conjunction with the local statutes pertaining to eminent domain, private fishing rights, which in law constituted vested rights, might be segregated and acquired for the use of the citizens of the United States upon making just compensation.

In judging what is “due process,” resort may be had “to the cause and object of the taking” and if “found to be suitable or admissible in the special case, it will be adjudged to be due process of law.” “Due process” is necessarily a relative term. Unless the constitutionality of the legislation under review appears from the Act itself, the presence or absence of “due process” depends upon the facts and circumstances of the particular case in which it is involved.

Included in the paramount rights of the State is the power of eminent domain. It is an attribute of sovereignty of the State and the power resides in and may be exercised by the legislative department of government. The enjoyment of property by the individual is always subject to the sovereign needs of the State acting for the common good of the whole people and the State in its exercise of the sovereign power of eminent domain may “take” the rights of the citizen even though vested.

The procedure to be employed in the exercise of the power of eminent domain is for the legislature exclusively “subject to special constitutional provisions and to the general requirement of notice and hearing.”

The procedure adopted by the Congress of the United States and incorporated into sections 95 and 96 of the Hawaiian Organic Act to make the sea fisheries of the Territory free to the citizens of the United States have a direct relation to the conditions existing in Hawaii immediately prior to the passage of the Organic Act in respect to private fishing rights. And if the procedure adopted was “suitable or admissible in the special case” and not “arbitrary, oppressive, and unjust” such procedure constituted “due process.”

The burden of showing that an Act of the legislature is unconstitutional is on the party asserting it. Every enactment of the legislature carries a presumption of constitutional validity and should be upheld by the courts unless it has been shown to be, beyond all reasonable doubt, in violation of the Constitution. Moreover, the facts adduced to show unconstitutionality must be clear and convincing and must show beyond question that the legislature exceeded the limits marked by the Constitution.

The nature and incidents of the title of the United States in the sea waters of a territory of the United States have a direct relation to the proceedings prescribed by sections 95 and 96 of the Hawaiian Organic Act for the acquisition of existing private fishing rights created by the pre–existing laws of the Republic of Hawaii and are material to the question whether such proceedings were “suitable or admissible in the special case” and not “arbitrary, oppressive, and unjust.” By the transfer of the Hawaiian Islands to the United States, neither the submerged lands within the jurisdiction of the Republic of Hawaii nor the sea waters covering the same vested in the United States in a proprietary sense. The United States, similarly as the original States, had, in respect to the shores within the jurisdiction of the United States, adopted the principles of the common law. “By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high water mark, within the jurisdiction of the Crown of England, are in the King. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the King as the sovereign; and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit.”

At the time of the annexation of the Hawaiian Islands to the United States, no official records of the boundaries of private fishing rights were in existence. The original statutory grant of private rights of piscary in the sea waters adjoining the Islands by the ordinance of 1839 did not contemplate an ultimate official determination of their boundaries. The fisheries were apportioned, under the ordinance, accordingly as they existed by “ancient regulation.” Under the statutes defining private fishing rights, the extent of the area subject to a statutory private fishing right depended upon “ancient regulation.” Proof of the incidents of ancient regulation, including the boundaries of private sea fisheries, depended upon the facts.

No judicial or administrative procedure existed prior to annexation for officially establishing the boundaries of private fisheries. The mahele division did not include descriptions of the lands included therein, each land being designated by name. It made no reference to fisheries. The commissioners to quiet titles were without jurisdiction to award fisheries, except as the same, in the exercise of their jurisdiction to settle titles to “lands,” might incidentally come in question. Under the laws of Hawaii, awards of ahupuaas and ilis were made by name only, both by the commission to quiet land titles and the minister of the interior, and until their boundaries were established officially they afforded no means of identification of the fishery belonging thereto. The boundary commissioners were without jurisdiction to settle the boundaries of fisheries.

At the time the Islands were annexed to the United States, it could not be said with any degree of assurance how many private fisheries existed in the Territory.

The presence in the royal patent to Akahi of a grant to her of the sea fishery of Makalawena is immaterial to the question of due process further than it constitutes an isolated case of an official description of a private sea fishery included...