McKenzie v. Wilson
| Decision Date | 14 January 1930 |
| Docket Number | No. 1903.,1903. |
| Citation | 31 Haw. 216 |
| Parties | G. S. MCKENZIE, CHAIRMAN, C. C. CROZIER, E. W. GREENE, H. E. GREGORY, A. G. BUDGE, L. H. BIGELOW AND L. M. WHITEHOUSE, MEMBERS OF THE BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU, v. JOHN H. WILSON, MAYOR OF THE CITY AND COUNTY OF HONOLULU, ET AL. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
SUBMISSION UPON AGREED FACTS.
Syllabus by the Court
Local self-government, as by means of cities, counties and towns. is not required by any inexorable principle. The people of Hawaii have no inherent, unwritten right to municipal self-government free from supervision and control by the territorial legislature.
The provision of section 56 of the Organic Act that “the legislature may create counties and town and city municipalities within the Territory of Hawaii and provide for the government thereof, and all officials thereof shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislature of the Territory,” does not require that the officials of the municipalities shall be elected solely by the people of each municipality or shall be appointed solely by the mayor or the supervisors or other municipal officers.
Any municipality created by the territorial legislature is subject always to the control of its creator and its powers may be increased or diminished at the discretion of the legislature, whenever the latter deems it for the best interests of the public so to do.
Act 96, L. 1929, creating a board of water supply, a majority of whose members are to be appointed by the governor, and transferring to that board, whether temporarily or permanently, the possession, management and control of the Honolulu water works, is a valid exercise of the powers of the legislature.
The authority vested by Act 96, L. 1929, in the board of water supply to prescribe and collect water rates is not a grant of the power to impose taxes.
The power vested in the board by that Act to determine when certain bonds already authorized by the legislature shall be sold is not legislative in its nature and may be properly delegated to the board.
A. G. Smith, C. A. Gregory and C. E. Cassidy, Deputy Attorney General ( Smith, Wild & Hoppe, C. A. Gregory and C. E. Cassidy on the brief), for plaintiffs.
B. S. Ulrich ( Ulrich & Hite on the briefs) for defendants.
A. Withington ( J. G. Anthony with him on the brief) amicus curiae.
This is a submission under sections 2371 to 2374, R. L. 1925, upon a statement of agreed facts of a controversy relating to the validity of Act 96, L. 1929. That Act creates a board to be known as the “Board of Water Supply of the City and County of Honolulu,” to consist of seven members, of whom five are to be appointive and of whom two “shall always be the persons who for the time being shall be the legal incumbents of the offices of the superintendent of public works of the Territory and the chief engineer of the department of public works of the City and County of Honolulu.” The duty of the board is “to manage, control and operate the water system and properties of the City and County of Honolulu, for the supplying of water to the public within the district of Honolulu; and to collect, receive, expend and account for all sums of money derived from the operation thereof and all other moneys provided for the use or benefit of said water system,” as in the Act provided. The property transferred includes real estate and personalty and includes all lands, reservoirs, pipelines, pumps and other machinery which at the date of the Act were in the possession and control of the City and County of Honolulu for the purposes of a system of water supply for Honolulu and for the purposes of an electric power station maintained by the city and county in Nuuanu Valley. The Act reposes in the new board the power to make all necessary extensions, additions, improvements and betterments in connection with the water system. It vests in it “all of the powers and functions now provided to be exercised and performed by the board of supervisors of the City and County of Honolulu in relation to the Honolulu water works by Act 138, Session Laws 1913, as amended, and by the Honolulu sewer and water commission and/or by said board of supervisors by Act 150, Session Laws 1925, Act 40 of the Session Laws of 1927, and Act 222 of the Session Laws of 1927, and acts amendatory thereof,” except as in the Act otherwise provided. With relation to the power of appointment of the members of the board, the provision is that “the first five appointive members of the board shall be appointed, and may be removed, by the governor in the manner provided by section 80 of the Organic Act,” and that one of the members “shall be designated by the governor as chairman;” and that “thereafter the appointive members of the board shall be appointed by the mayor, with the approval of the board of supervisors of the City and County of Honolulu;” and that “upon the expiration of the term of office of the chairman or upon his retirement the mayor, with the approval of the board of supervisors * * * shall designate another member to fill the office of chairman.” The members of the board are to serve without pay. Each member “must be at the time of his appointment an elector of the City and County of Honolulu and must have been such for at least five years next preceding his appointment.”
Any member of the board other than the first five appointed by the governor “may be removed from office in the same manner as the mayor of the city and county.” The term of office of the appointive members is to be five years “provided that upon the first appointments one of said members shall be appointed for a term ending June 30, 1931; one for a term ending June 30, 1932; one for a term ending June 30, 1933; one for a term ending June 30, 1934; and one for a term ending June 30, 1935.” Officers and employees of the Territory or of the city and county “shall not be eligible for appointive membership on the board.” The board is given power to appoint a manager and the manager is in turn given power “to appoint and discharge such other employees, subordinates and assistants as may be necessary for the proper conduct of the business of the board.” All salaries, wages and other compensation of all persons employed by the board “shall be fixed by the manager with the approval of the board,” the manager's compensation being fixed by the board.
The city and county attorney is to be the legal adviser of the board and is required to present and defend any and all actions and proceedings involving matters under its jurisdiction. The board, however, is given authority to employ another attorney as its legal adviser and representative in litigation. The Act further provides that “all moneys in the city and county treasury belonging to any fund of the water works system for said district of Honolulu upon the date this Act shall take effect, and all moneys thereafter collected belonging to any such fund * * * shall by the treasurer of the city and county be placed to the credit of the board;” and that “all outstanding obligations in connection with the operation of said water system shall be paid by the board out of said water works funds.” The board is given power to contract “for work, supplies, materials or equipment when the cost of these can be met from the revenues or reserves of the water works or from the proceeds of bonds authorized for such water works.” It is also given power to “locate and determine the character and type of all construction and additions, extensions, increases, betterments and improvements to the water works, and shall determine the policy for such construction or the making of such additions, extensions, increases, betterments and improvements out of public funds under its jurisdiction.” The board is required to “maintain proper accounts” of all its receipts and expenditures so as to show “the true and complete financial status and the results of management and operation,” and costs of extension and maintenance. It is given power to “provide for the accumulation of a fund for the purpose of financial” (?) “major replacements, or extensions and additions, the average estimated annual increment to which, for a period of ten years, shall not exceed fifteen per cent of the gross revenue of the board in any fiscal year.”
The Act further provides that “the treasurer of the city and county shall, when so directed by the board, sell such bonds as have or may hereafter be authorized for the acquisition, construction, replacement, extension or completion of such water works; provided that such sale shall otherwise be conducted in accordance with the procedure specified by the law for the sale of such bonds;” and that “the proceeds from said sales shall be kept by the city and county treasurer in a separate fund to be used only for the purposes for which such bonds were sold.”
All receipts of the board “other than from the sale of bonds, shall be paid daily into the city and county treasury and maintained in a special fund.” The board is authorized to make appropriations and allowances from said special fund for the following purposes: “(a) for the payment of the operating and maintenance expenses of such water works; (b) for repairs, replacements, additions and extensions; (c) for accident reserve, pension charges and compensation insurance; (d) for payment of interest and sinking fund on all bonds heretofore or hereafter issued;” and “(e) for reserve fund under section 11 of this Act.”
The moneys expended by the board are to be “disbursed by the city and county treasurer only upon warrants issued by the city and county auditor on vouchers signed by the chairman or acting chairman of the board.”
The board is given power “to fix and adjust rates and charges for the...
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