In re Joseph Kalana for a Writ Mandamus

• Decision Date: 06 May 1914
• Citation: 22 Haw. 96
• Parties: IN THE MATTER OF THE APPLICATION OF JOSEPH KALANA FOR A WRIT OF MANDAMUS.
• Court: Hawaii Supreme Court

22 Haw. 96

IN THE MATTER OF THE APPLICATION OF JOSEPH KALANA FOR A WRIT OF MANDAMUS.

Supreme Court of the Territory of Hawai‘i.

Argued April 13, 1914.

Decided May 6, 1914.

Syllabus by the Court

By section 55 of the Organic Act the legislature of this Territory was vested with the power of taxation with all the completeness and effectiveness with which that power is vested in and exercised by the legislature of any of the States, and also the right to legislate in exercise of the police power.–In re Craig, 20 Haw. 483.

Act 99, Session Laws of 1913, was enacted by the legislature of the Territory in the exercise of the power of taxation, and so far as the petitioner in this case has questioned its validity it is held to be not unconstitutional.

That portion of Act 99, Session Laws of 1913, which act amends section 1323 of the Revised Laws, as amended, providing “that no license shall be so issued until the applicant therefor shall have filed with the treasurer of the county or city and county a certificate showing the payment in full of all taxes due from said applicant on the date of said application,” does not impose any penalty for the past delinquency nor attempt to punish the applicant for any past offense, hence the same is not invalid as being in conflict with the provision of the Federal Constitution prohibiting the passage of ex post facto laws.

It is not a universal rule that a proviso applies only to the paragraph or clause immediately preceding it. Its application must be gathered from the context and a comparison of all the provisions relating to the subject-matter. The manifest intent of the legislature must be given effect even though the statute should be thereby invalidated. Because the act may be invalid if meaning what it says does not make the words of the act either dubious or ambiguous. In this case held, that the manifest intent of the legislature, as expressed in plain and unambiguous language, is to require all applicants for licenses, whether to do business in the county or city and county or throughout the Territory, to pay all taxes due, including those delinquent, as a condition precedent to the issuing of the license.N. W. Aluli ( E. K. Aiu with him on the brief) for petitioner.

P. L. Weaver, Deputy City and County Attorney, for respondent.

L. P. Scott, Deputy Attorney General, filed a brief on behalf of the Territory.

ROBERTSON, C.J., WATSON AND QUARLES, JJ.

OPINION OF THE COURT BY WATSON, J.

This is an application by one Joseph Kalana, a hackdriver, for a writ of mandamus directing C. J. McCarthy, treasurer of the city and county of Honolulu, to issue to him a license to drive any licensed vehicle in the city and county of Honolulu. The applicant alleges that he is a citizen of the United States and of the Territory of Hawaii; that on November 17, 1913, he made application to C. J. McCarthy, treasurer of the city and county of Honolulu, for a license to drive any licensed vehicle in said city and county for the period beginning on the date of said application and ending with June 30, 1914, at the same time tendering to the said treasurer the sum of one dollar as and for the fee for said license, the sum of fifty cents for the stamp thereon and presenting a certificate of competency as required by law; that at the time of the making of the said application the applicant had paid in full his taxes for the year 1913 but was owing taxes for the years 1904 to 1912 inclusive in the total sum of $55; that the said treasurer arbitrarily and in violation of law refused to issue such license giving as his reason therefor the failure of the applicant to file with him, said treasurer, a certificate showing the payment in full of all taxes due from said applicant for the said years, including the year 1913.

An alternative writ was allowed directing the treasurer to issue the license or to show cause to the contrary. The treasurer demurred to the alternative writ on the grounds that the facts stated in said writ do not entitle the relator to the relief demanded, in that the relator shows in the said writ that he had not paid in full all taxes due from him on the date of the said application, nor had said relator at the time of the said application filed with said treasurer a certificate showing the payment in full of all taxes due from said relator on the date of said application, both of which acts are conditions precedent to the issuance of any such license, as provided in Act 99 of the Session Laws of 1913. The demurrer was sustained and a decree entered discharging the alternative writ and dismissing the petition. From this decree the petitioner appeals to this court.

The statute under which the license is required (Act 13, Laws of 1907) is amendatory of section 97, chapter 64, Laws of 1896, Revised Laws, Sec. 1412. Its first section is as follows:

“Section 1412. Fees to Carry Freight; Drive. The annual fee for a license to carry freight or baggage for hire or compensation on any dray, cart, wagon or other vehicle other than a hand cart, shall be two and a half dollars for each vehicle so used.

The annual fee for a license to drive any licensed vehicle shall be one dollar and such license shall permit the licensee to drive any vehicle licensed under this section.”

Act 64, Laws of 1896, is a comprehensive act amending, adding to and consolidating nearly all the former laws relating to licenses and repealing such former laws. It is reenacted as chapter 102 of the Revised Laws, sections 1321 to 1418, inclusive, under the title “Licenses.” Sections 1414 and 1415 (Secs. 99 and 100, Act 64, Laws of 1896) read as follows:

“Sec. 1414. Certificate from sheriff. The high sheriff or a sheriff, or deputy high sheriff or deputy sheriff, or an inspector appointed by the high sheriff for such purpose, shall, before any license is issued for any passenger vehicle, inspect the vehicle for which a license is requested, and the harness and the animals to be used therewith, and if he find the same to be in good serviceable condition he shall deliver to the applicant therefor, a certificate setting forth such fact, and the capacity of the vehicle. Such officer shall also examine any applicant for a driver's license, and if he find such applicant to be a competent driver he shall give him a certificate to that effect. No license shall be issued to any driver or for any passenger vehicle until the receipt by the treasurer of such certificate.”

“Sec. 1415. Number on vehicle; badge. The owner of a licensed vehicle shall continuously exhibit in a conspicuous place on every such vehicle, the number of the license issued for such vehicle. Every licensed driver shall wear, while employed, a badge which shall be supplied by the treasurer at cost, showing his number.”

By section 1418, Revised Laws (Sec. 103, Act 64, Laws of 1896), it is provided, inter alia, under the heading “Penalties,” that “Any person * * * who shall drive a licensed vehicle without a driver's license;

“Or who shall violate or fail to observe any of the requirements of this chapter, or the rules made by the treasurer under this chapter, shall be fined not more than twenty-five dollars for each such violation, and the license of any such licensed vehicle or driver may, in the discretion of the court, be canceled.”

Act 99, Laws of 1913, which amends section 1323, Revised Laws as amended, provides as follows:

“Section 1323. Signed by whom. Every license shall be signed by the treasurer of the County or City and County, within which the license is to be operative, and impressed with the seal of his office. Such seal shall be as determined by the board of supervisors. Provided, that any license which authorizes the licensee to do business throughout the Territory shall be signed by the treasurer of the County or City and County in which the principal office of the licensee is situated; and provided further, that no license shall be so issued until the applicant therefor shall have filed with the treasurer of the County or City and County a certificate showing the payment in full of all taxes due from said applicant on the date of said application.”

The only questions brought up by this appeal relate to the validity and construction of the last proviso as contained in Act 99 of the Laws of 1913, “That no license shall be so issued until the applicant therefor shall have filed with the treasurer of the County or City and County a certificate showing the payment in full of all the taxes due from said applicant on the date of said application.” It is not contended by the treasurer, and we think could not be successfully contended, that there is any discretionary power vested in him to refuse to issue a driver's license to an applicant who has complied with the valid terms and conditions imposed by law in that behalf (Tai Kee v. King, 11 Haw. 57). Respondent's sole defense in this proceeding is based on the proviso, above quoted, as contained in Act 99 of the Laws of 1913,–that the applicant has not filed with him a certificate showing the payment in full of all taxes due from applicant on the date of said application; the failure of the applicant to file with him such certificate, and the affirmative showing as contained in the petition and alternative writ that on the date of said application there was due from said applicant taxes for the ten years preceding the year 1913 in the sum of $55. Petitioner contends (1) that the said proviso is unconstitutional and void, when applied to him, as depriving him of his liberty and property without due process of law, contrary to the provisions of the fifth and fourteenth amendments to the Constitution of the United States; (2) that the said proviso applies only in a case where the application is for a license to do business throughout the Territory, and therefore has no application in this case, as his application was only for a license to drive a hack in the city and county of Honolulu; (3)...