Territory Hawai`i v. Chong
| Decision Date | 19 February 1912 |
| Citation | 21 Haw. 39 |
| Parties | TERRITORY OF HAWAII v. HOY CHONG. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO DISTRICT MAGISTRATE OF HONOLULU.
Syllabus by the Court
The preservation of fish is within the proper domain of the police power. The legislature may provide by statute for a close season for the protection of amaama notwithstanding the declaration contained in section 95 of the Organic Act.
The prohibition against selling amaama during the close season contained in Act 110, Laws of 1911, will apply to fish taken from a private pond unless it is made to appear that there is no passage-way connecting such pond with the sea, or other waters, through which amaama may pass. The sale of amaama taken from privately owned ponds during the close season may be prohibited if such prohibition is found to be necessary in the endeavor to protect the amaama of the sea waters of the Territory.
The invalidity of a portion of a statute will not defeat the whole act if the unobjectionable part is separable, complete and capable of enforcement.
J. L. Coke ( Douthitt & Coke on the brief) for plaintiff-in-error.
J. W. Cathcart, City and County Attorney, for defendant-in-error.
ROBERTSON, C.J., DE BOLT, J., AND CIRCUIT JUDGE COOPER IN PLACE OF PERRY, J.
The charge upon which the plaintiff-in-error was tried and convicted in the court below was that he “did at Honolulu, city and county of Honolulu, Territory of Hawaii, during one week last past prior to and including the 29th day of December, A. D. 1911, unlawfully and wilfully expose and offer for sale certain fish known as amaama, contrary to Act 110, Laws of the Territory of Hawaii, Session of 1911.”
The first section of the act in question provides,
The defendant demurred to the charge on the grounds that the statute is ambiguous, unintelligible, uncertain and indefinite; is contrary to the Fifth and Fourteenth Amendments to the Constitution, and is class legislation; also that it is contrary to section 95 of the Organic Act of Hawaii. The demurrer was overruled.
The testimony showed that the defendant, at the time and place alleged in the charge, exposed for sale and sold amaama; that they were “pond” amaama from the Maunalua fish pond, which pond is privately owned by the Bishop Estate; that amaama do not propagate in ponds; that the young amaama in privately owned ponds are collected at the outlets known as makahas and then put into the ponds where they grow, and from which they are subsequently taken for the market.
The three principal points made by counsel for the plaintiff-in-error are that Act 110 of the Laws of 1911 is contrary to that provision of the Organic Act (Sec. 95) which declares that, subject to vested rights, all fisheries in the sea waters of the Territory, not included in any fish pond or artificial inclosure shall be free to all citizens of the United States; that the act constitutes class legislation in violation of the first section of the Fourteenth Amendment, in that it discriminates against persons who are not the owners or lessees of enclosed fish ponds privately owned by excepting those mentioned from the provision against fishing or taking fish during the close season; and that the act violates the Fifth Amendment in that by prohibiting the sale of amaama within the period stated it amounts to a taking of the property of the owners of private fish ponds in which amaama are kept without due process of law.
We will take up the points in the order stated, and, first, as to the alleged conflict of the statute with the Organic Act. The object of the statute is well stated in the title to be “To provide a close season for the protection of the fish known as amaama.” In Lawton v. Steele, 152 U. S. 133, it was said that the preservation of game and fish has always been treated as within the proper domain of the police power, and laws prescribing the time and manner in which fish may be caught have been repeatedly upheld by the courts; and that the duty of preserving the fisheries of a State from extinction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish is as clear as its power to secure to its citizens, as far as possible, any other wholesome food. In People v. Bridges, 142 Ill. 30, 41, the court said: “The power of the legislature to pass laws for the protection and preservation of fish in the waters of the State has been so frequently exercised in this and other States, and such exercise has been so long and so uniformly acquiesced in, that the existence of the power, at the present day, is scarcely open to question.”
We hold that a statute having for its object the protection of amaama, a valuable food fish, and providing to that end a reasonable close season (and it is not contended that the months of December, January and February constitute an unreasonable close season for amaama) is a legitimate exercise of the police power, and within the grant of legislative power contained in section 55 of the Organic Act, and does not conflict in any way with the declaration contained in section 95 of that act. In other words, the declaration that the sea fisheries of the Territory shall be free to all citizens of the United States was not intended to curtail the right of the legislature to enact laws in the interest of the public for the protection and preservation of those fisheries.
In connection with the second point raised as above stated, an interesting discussion has been had as to the proper construction to be placed upon the language of the act relating to fishing and the taking of fish. On behalf of the Territory it is argued that the proviso found in the first section of the statute was intended merely to allow the owners and lessees of private ponds to take from their ponds fish for their own use; that the language of the statute is capable of being construed in accordance with such intention; and that such a construction would obviate the alleged discrimination...
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