State v. Taylor

• Decision Date: 04 April 1967
• Docket Number: No. 4529,4529
• Citation: 425 P.2d 1014,49 Haw. 624
• Parties: STATE of Hawall v. Richard TAYLOR.
• Court: Hawaii Supreme Court

Page 1014

425 P.2d 1014

49 Haw. 624

STATE of Hawall v. Richard TAYLOR.

No. 4529.

Supreme Court of Hawai'i.

April 4, 1967.

Syllabus by the Court

1. Statutes in derogation of the common law are strictly construed.

2. A court should not, merely by application of the maxim expressio unius exclusio alterius, find that the common law has been superseded in the area not mentioned by a statute, where it does not appear that it was the legislative purpose to supersede the common law.

3. A district magistrate has the power to pass upon the validity of a statute or ordinance coming before him for enforcement, but should exercise caution in declaring a statute or ordinance unconstitutional.

4. There is no distinction between courts of superior or general jurisdiction and courts of inferior or limited jurisdiction in respect of judicial immunity from liability for official acts.

5. A statute prohibiting the placing, leaving or depositing of goods, wares or merchandise on the sidewalk will not be held unconstitutional by reason of uncertainty if any sensible construction embracing the legislative purpose may be given it.

6. No sentence, clause or word of a statute may be construed as surplusage if a construction can be legitimately found which will give force to and preserve all the words of the statute.

7. Laws in pari materia are to be construed with reference to each other, and what is clear in one statute may be called in aid to explain what is doubtful in another. R.L.H.1955, § 1-21.

8. Under the rule noscitur a sociis the meaning of particular terms in a statute may be ascertained by reference to words associated with them where of the same kind.

9. Where a statute is ambiguous the cause which induced the legislature to enact it may be considered, and every construction which leads to an absurdity is to be rejected. R.L.H.1955, § 1-18(b)(c).

10. As used in R.L.H.1955, § 142-27, prohibiting the placing, leaving or depositing of goods, wares or merchandise on the sidewalk, the words 'place, leave or deposit' all import the doing of something unrelated to the ordinary use of the sidewalk, it being the object of the statute to preserve the ordinary use of the sidewalk by suppressing the unrelated acts.

11. A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, but no more than a reasonable degree of certainty is required.

12. The requirement of reasonable certainty of a criminal statute does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.

13. The term 'goods, wares or merchandise,' as used in R.L.H.1955, § 142-27, prohibiting the placing, leaving or depositing of goods, wares or merchandise on the sidewalk, is not so narrow as to apply only to property held or to be used for sale.

Victor Agmata, Jr., Deputy Pros. Atty., City and County of Honolulu (John H. Peters, Pros. Atty., with him on the brief), for the State.

Harriet Bouslog, Honolulu (Bouslog & Symonds, Honolulu, of counsel), for defendant, appellee.

Before RICHARDSON, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

LEWIS, Justice.

On defendant-appellee's motion the charge against him, based on R.L.H.1955, § 142-27, was dismissed by the district magistrate on the ground that the statute is unconstitutionally vague. The State appealed on points of law.

We first consider the State's contention that: 'The District Magistrate does not have the power to decide the constitutionality and binding effect of section 142-27, Revised Laws of Hawaii, 1955.' This contention is based on R.L.H.1955, § 213-7, which provides:

'213-7. Constitutional questions. The several courts of record shall have power to decide the constitutionality and binding effect of any law, ordinance, rule, regulation, order or decree, enacted or issued by the legislature or by any executive officer, department, board or bureau.'

The same contention was presented in Territory v. Field, 23 Haw. 230, 213, in which defendant had been adjudged guilty and appealed. The court merely pointed out that 'even if the district courts have no power to pass upon the constitutionality of statutes or ordinances, a thing we are unable to concede, yet, in this case, if the ordinance in question is invalid because violative of constitutional inhibitions and the appellant is in position to complain thereof the ordinance would be declared a nullity by this court, and the judgment below being void it could be reversed on this appeal.' In similar situations-appeals from district courts by defendants adjudged guilty-the court in Territory of Hawaii v. Cunha, 15 Haw. 607, Territory v. Schaefer, 19 Haw. 214, Territory v. Kraft, 33 Haw. 397, Territory v. Merseberg, 35 Haw. 248, and Territory v. Naumu, 43 Haw. 66, reviewed without comment the constitutionality of the statutes and ordinances involved. In Territory v. Wong, 40 Haw. 257, as in the present case, the charge was dismissed and the prosecution appealed, but in Wong no attack was made on the authority of the magistrate, and the constitutionality of the statute again was reviewed without comment. As recently as the 1966 session of the legislature we find a district court ruling of unconstitutionality of an act ¹ given as the basis of a declaration of urgency. S.L.1966, c. 44.

R.L.H.1955, § 213-7, supra, prior to the amendment made by S.L.1903, c. 32, was S.L.1892, c. 57, § 6, reading as follows:

'Section 6. The several Courts of Record shall have power to decide for themselves the constitutionality and binding effect of any law, ordinance, order or decree, enacted or put forth by the Sovereign, the Legislature, the Cabinet, the Privy Council or any executive board or bureau of the Government. The Supreme Court shall have the power to declare null and void any such law, ordinance, order or decree as may, upon mature deliberation, appear to it to be contrary to the Constitution, or opposed to the law of Nations, or any existing treaty with a foreign power; provided, that such decision shall be rendered in open Court after the parties interested shall have had an opportunity to be heard thereon.'

As thus enacted in 1892, the section was substantially the same as a predecessor provision, section 824 of the Civil Code of 1859, the principal difference being that the proviso at the end of the 1892 section was not contained in the 1859 provision.

When the statute is considered against this background it appears that its purposes originally were, first, to distinguish between the power of the Supreme Court, which when exercised was binding on all courts, and the power of other courts of record, which was merely 'to decide for themselves' but not to bind any other court; and secondly, to expressly declare that the invalidation of the law as being contrary to the Constitution lay within the judicial power, this being a doctrine of American origin ² which it evidently was thought prudent to enunciate as a doctrine obtaining in the Kingdon of Hawaii. On the latter point, the section was cited in The King v. Tong Lee, 4 Haw. 335, 343 (1880); The King v. Young Tang, 7 Haw. 49, 61 (1887); and Maka v. Ah Fai, 3 Haw. 631, 634 (1875). The point could hardly have been in doubt, since it was provided in the several constitutions of the Kingdom, beginning with the Constitution of 1852, that laws enacted contrary to the Constitution 'shall be null and void.' ³

On the first point-the differentiation between the power of the supreme court and the powers of other courts of record-the statutory provision likewise was unnecessary, and this feature has been eliminated by the shortened version which has been law since the 1903 amendments (S.L.1903, c. 32).

In speaking only of courts of record when enunciating the doctrine that the invalidation of a law as unconstitutional lies within the judicial power, the statute did not go so far as to prohibit the exercise of this power by courts not of record, such as the district courts. ⁴ The State invokes the maxim expressio unius exclusio alterius, but that maxim is only one of the aids to construction. See 2 Sutherland, Statutory Construction, § 4917 (3d ed.); 50 Am.Jur., Statutes, § 245. Upon consideration of other factors we conclude that it is inapplicable here.

As will appear, at common law the judges of inferior courts not of record, commonly known as justices of the peace, had the power to pass upon the constitutionality of statutes and ordinances coming before them. Statutes in derogation of the common law are strictly construed, ⁵ and a court should not, merely by application of the maxim expressio unius exclusio alterius, find that the common law has been superseded in the area not mentioned by a statute, where it does not appear that it was the legislative purpose to supersede the common law. Gabriel v. Margah, 37 Haw. 571, 574; 2 Sutherland, Statutory Construction, § 4916 at 417-418 (3d ed.); 3 id. §§ 6201-02.

The intention of the legislature in regard to the enactment under consideration appears from section 919 of the Civil Code of 1859, in the light of which it must be interpreted though section 919 is no longer in effect, there being nothing to indicate that the 1892 or 1903 enactments, above cited, expressed a change of legislative intention with regard to the power of district courts to pass on the constitutionality of statutes and ordinances. In this connection, it is significant that the cases of The King v. Tong Lee, supra, 4 Haw. 335, and The King v. Young Tang, supra, 7 Haw. 49, were decided in 1880 and 1887 respectively, and were appeals from police courts on points of law, hence based on the assumption that the inferior court in each instance had passed on the point. ⁶

Section 919 of the Civil Code of 1859 provided that: 'Every district justice shall have all the necessary powers in and for the administration of justice, in all cases coming within...