State v. Tin Yan

• Decision Date: 02 August 1960
• Docket Number: No. 4151,4151
• Parties: , 44 Haw. 464 STATE of Hawaii v. W. TIN YAN et al.
• Court: Hawaii Supreme Court

Page 25

355 P.2d 25

44 Haw. 370, 44 Haw. 464

STATE of Hawaii v. W. TIN YAN et al.

No. 4151.

Supreme Court of Hawai'i.

Aug. 2, 1960.

Rehearing Denied Aug. 17, 1960.

Syllabus by the Court.

1. The parties, under Rule 76, H.R.C.P., have no right to determine by stipulation the question to be decided on appeal.

2. An agreed statement waives issues not raised under the facts stated thereby.

3. Review is restricted to the question presented, considered and decided by the trial court.

4. The purpose of the rule of ejusdem generis is to give effect to both the particular and general words, by treating the particular words as indicating the class, and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words. The rule has no application where there is no enumeration of particular words.

5. The question of the constitutionality of a statute cannot be raised for the first time in a court of review.

6. State may exercise power of eminent domain for public park purposes though the land so acquired is to be transferred to the United States for inclusion in a national park within the state.

Shiro Kashiwa, Atty. Gen., for plaintiff-appellee.

Kazuhisa Abe, Hilo, for defendants-appellants.

Before TSUKIYAMA, C. J., MARUMOTO and WIRTZ, JJ., RONALD B. JAMIESON, Circuit Judge, in place of CASSIDY, J., disqualified, and FRANK A. McKINLEY Circuit Judge, in place of LEWIS, J., disqualified.

WIRTZ, Justice.

This is an appeal on the following agreed facts.

'To the Honorable the Chief Justice and the Associate Justices of the Supreme Court of the State of Hawaii:

'This is an Appeal from the Judgment of the Circuit Court of the Third Circuit finding for the Territory of Hawaii (then the existing government) in an eminent domain case.

'The parties hereby agree upon the facts hereinafter set forth and hereby appeal the case on point of law.

'Statement of Facts.

'The Territory of Hawaii (then the existing government) on July 21, 1949, filed a petition in the Circuit Court of the Third Circuit to condemn certain private lands, including lands belonging to the Appellants, for the purpose of donating the same to the Federal Government as an extension to the existing national park.

'The Petition was amended on December 15, 1952, then on March 27, 1953, and again on October 14, 1958.

'The parcels of land involved in this Appeal are Parcel 12 Revised, Parcel 14 and Parcel 15 Revised. The area to be condemned as to Parcel 14 is fully described in the original Petition and the fair market value as of the filing date was $3,500.00. As to Parcel 12 Revised and Parcel 15 Revised, the areas to be condemned are fully described in Order Amending Amended Petition filed on October 14, 1958, and the fair market value as of the filing date for the parcels were respectively, $2,030.00 and $2,950.00.

'The owners and the respective interests they own are as follows: * * * (Names and interests as to the parcels of land set forth in full.)

'The Court after trial rendered its Decision on October 31, 1958, and the Judgment was entered on August 21, 1959.

'The Appellants duly filed a Notice of Appeal to the Supreme Court on September 16, 1959.

'The question or point of law presented to this Court on appeal is: Did the Territory of Hawaii (then the existing government) or any of its offices have authority to condemn the parcels of land for the purpose of donating the same to the United States of America as an addition to the Hawaii National Park in accordance with the provisions of Act 80 [sic], 75th Congress (52 Stat. 781).

'Wherefore, the parties hereto respectfully pray this Court to consider the appeal on the agreed statement of facts and things set forth herein, and to determine the question or point of law raised.

'Dated at Hilo, Hawaii.' (Dates and signatures of counsel set forth.)

'Order.

'The foregoing Appeal on agreed statement of facts is hereby approved.

'Tamao Monden (Sgd.)

'Judge, Circuit Court of the Third Circuit, State of Hawaii.'

The parties, under Rule 76, H.R.C.P., have no right to determine by stipulation the question to be decided on appeal. Barnett v. United States, 9 Cir., 1936, 82 F.2d 765, certiorari denied 299 U.S. 546, 57 S.Ct. 9, 81 L.Ed. 402, rehearing denied 299 U.S. 620, 57 S.Ct. 113, 81 L.Ed. 457. The purpose of the rule is to permit a succinct statement of the record so as to show how the questions to be submitted to the appellate court arose and were decided in the trial court.

However, an agreed statement waives issues not raised under the facts stated thereby. Baxter v. McGee, 8 Cir., 1936, 82 F.2d 695.

The pre-trial conference order, after setting forth the admitted facts on the ownership and descriptions of the lands involved, went on to provide:

'III.

'The following issues of fact, and no others, remain to be litigated upon the trial:

'A. The fair market value of Parcels 7, 12, 14 and 15, as of the date of filing of the instant proceeding for condemnation.

'IV.

'The following issues of law, and no others, remain to be litigated upon the trial:

'A. Whether the Territory of Hawaii, Plaintiff, must prove that there existed a specific appropriation for the payment of the Judgment or Judgments herein, prior to the date of commencement of the instant proceeding, as an essential element of the Plaintiff's case.

'B. Whether the Territory possesses the power and authority to institute and prosecute the instant proceeding.'

Appellants by failing to urge the first question set forth above in the pre-trial conference order and by stipulating to facts which negative such defense have thereby waived the same under the rule of the Baxter case, supra.

It can be readily seen that the question of law now attempted to be posed for this Court's determination differs materially from the remaining question set forth in the pre-trial conference order presented to and decided by the trial judge. Since we are to pass on the trial judge's judgment entered herein we must, of necessity, consider only the question as presented to, considered and decided by him. 14 Cyclopedia of Federal Procedure, 3d ed., § 67.09, p. 120; See also, Watson v. Button, 9 Cir., 1956, 235 F.2d 235, and Perley v. Roberts, 1 Cir., 1943, 138 F.2d 518, certiorari denied 321 U.S. 788, 64 S.Ct. 786, 88 L.Ed. 1078. That question was simply whether the Territory possessed 'the power and authority to institute and prosecute the instant proceeding.'

The basis for the condemnation of appellants' lands by the Territory lies both in the laws of Congress creating the Hawaii National Park and the territorial government (The Hawaiian Organic Act, 48 U.S.C.A. § 491 et seq.) and in the laws of the Territory relating to eminent domain.

Public Law 171 (39 Stat. 432) enacted by the Congress in 1916, established the Hawaii National Park. This act described the boundaries of the land which made up this Park and provided specifically as follows:

'Sec. 3. That no lands located within the park boundaries now held in private or municipal ownership shall be affected by or subject to the provisions of this Act.'

In other words, lands held 'in private or municipal ownership' were to continue in such ownership and would not become part of the National Park. The result was a pock-marked' national park.

Four years later, Congress enacted Public Law 150 (41 Stat. 452):

'An Act To authorize the governor of the Territory of Hawaii to acquire privately owned lands and rights of way within the boundaries of the Hawaii National Park.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the governor of the Territory of Hawaii is hereby authorized to acquire, at the expense of the Territory of Hawaii, by exchange or otherwise, all privately owned lands lying within the boundaries of the Hawaii National Park as defined by 'An Act to establish a national park in the Territory of Hawaii,' approved August 1, 1916, and all necessary perpetual easements and rights of way, or roadways, in fee simple, over or to said land or any part thereof.

'Sec. 2. That the provisions of Section 73 of an Act entitled 'An Act to provide a government for the Territory of Hawaii,' approved April 30, 1900 [The Hawaiian Organic Act], as amended by an Act approved May 27, 1910, relating to exchanges of public lands, shall not apply in the acquisition, by exchange, of the privately owned lands herein referred to.

'Approved, February 27, 1920.'

This Act in effect repealed the provisions of section 3 of Public Law 171, set out above, and gave direction as to how and through what agency these lands were to be acquired and made a part of the Park. To facilitate the Territory's acquisition of these private interests, the Congress provided that the restrictive provisions of the Hawaiian Organic Act relating to the exchange of public lands were to be inapplicable.

In 1922 by Public Law 208 (42 Stat. 503) and in 1928 by Public Law 269 (45 Stat. 424) additional lands were added to the Park.

In 1938, the Congress enacted Public Law 680 (52 Stat. 781) further enlarging the Park by adding the 'Kalapana Extension' area, including the lands relevant to these proceedings. The fourth section of this act provides, inter alia, that the provisions of the above referred to Public Laws 171 and 150 'are made applicable to and extended over the lands hereby added to the park.'

Appellee urges that the applicable federal laws above referred to did confer power and authority in the governor of the Territory of Hawaii to acquire these lands by condemnation. However, we feel that there was already power and authority in territorial law to acquire these lands by condemnation in execution of the National Park project directed by these Federal laws.

The aim of Public Law 150 was merely to direct the chief executive of Territory to take the responsibility of acquiring lands for...