Territory of Hawaii v. Anduha, 6257.
Decision Date | 23 March 1931 |
Docket Number | No. 6257.,6257. |
Citation | 48 F.2d 171 |
Parties | TERRITORY OF HAWAII v. ANDUHA. |
Court | U.S. Court of Appeals — Ninth Circuit |
H. R. Hewitt, Atty. Gen. and E. R. McGhee, Third Deputy Atty. Gen., for the Territory.
Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
This appeal involves the validity of a statute of the territory of Hawaii providing that any person who shall habitually loaf, loiter, and/or idle upon any public street or highway or in any public place shall be guilty of a misdemeanor, and punished as therein provided. Session Laws 1929, Act 256, § 1. The Supreme Court of the territory affirmed a judgment of the circuit court declaring the statute unconstitutional and void. The appellee has submitted the case to this court on the opinion of the court below, without brief or argument, but a brief has been submitted by the Attorney General on behalf of the territory.
So far as we can find, there is but little direct authority bearing upon the question thus presented. Nearly all of the cases cited by the appellant have to do with the police power in general, and are without special application to the statute before the court. Thus the question involved in Re Opinions of the Justices, 251 Mass. 569, 147 N. E. 681, was automobile insurance and the discussion of the right to use streets and highways was merely incidental to that question.
In Commonwealth v. Challis, 8 Pa. Super. Ct. 130, an ordinance was upheld making it an offense to obstruct a street by idly standing, loafing, or congregating thereon. The right to prohibit the obstruction of a public street is not open to question, but some of the language employed by the court would seem to go beyond the question then under consideration.
The ordinance involved in Taylor v. City of Sandersville, 118 Ga. 63, 44 S. E. 845, prohibited idling, loitering, or loafing upon the streets of the city, but the court expressly refused to pass upon its validity because the question had not been raised in the lower courts.
On the other hand, in Pinkerton v. Verberg, 78 Mich. 573, 44 N. W. 579, 582, 7 L. R. A. 507, 18 Am. St. Rep. 473, cited in the opinion of the court below, it was said:
But here again the principal question involved was the right to make an arrest without a warrant.
In City of St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30, 32, 15 L. R. A. (N. S.) 973, 124 Am. St. Rep. 750, the court declared void a city ordinance prohibiting any person from lounging, standing, or loafing upon the street corners or other public places in the day or night time, saying, among other things:
See, also, In re McCue, 7 Cal. App. 765, 96 P. 110.
In sustaining the demurrer in this case, the trial judge said:
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