Territory of Hawaii v. Anduha, 6257.

Decision Date23 March 1931
Docket NumberNo. 6257.,6257.
Citation48 F.2d 171
PartiesTERRITORY OF HAWAII v. ANDUHA.
CourtU.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.

RUDKIN, Circuit Judge.

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:

"Personal liberty, which is guarantied to every citizen under our constitution and laws, consists of the right of locomotion — to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there they will be protected under the law, not only in their persons, but in their safe conduct. The constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our constitution guaranties. These are rights which existed long before our constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land."

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:

"It is, however, said for the city that `John Smith, a member of the public, has no right for his own private purposes, whatever they may be, to take his stand for a period of two hours every day upon a particular portion of the public street in a great and populous city.' That he has such right there can, in our opinion, be no question, providing he conducts himself in a peaceful, orderly manner, disturbs no one, and commits no overt act." See, also, In re McCue, 7 Cal. App. 765, 96 P. 110.

In sustaining the demurrer in this case, the trial judge said:

"For all that appears in the complaint filed against this defendant under this act, the defendant may well have been consistently in the pursuit of health or other innocent activity at all the times mentioned in the complaint. There is nothing in the charge itself nor in the wording of the act under which the...

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  • Mandel v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County
    • United States
    • California Court of Appeals
    • 8 octobre 1969
    ...v. Carpenter (1950) 325 Mass. 519, 91 N.E.2d 666; Ex parte Mittelstaedt (1957) 164 Tex.Cr.R. 115, 297 S.W.2d 153; Territory of Hawaii v. Anduha (9th Cir. 1931) 48 F.2d 171.9 Section 25657, subdivision (b), provides that it is unlawful 'In any place of business where alcoholic beverages are ......
  • Karp v. Collins
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    • 12 mars 1970
    ...give notice of the conduct to be avoided." See Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097 (1968); Hawaii v. Anduha, 48 F.2d 171 (9 Cir. 1931); Lazarus v. Faircloth, 301 F.Supp. 266 (S.D.Fla.1969) (three-judge court); Baker v. Bindner, 274 F.Supp. 658 (W.D.Ky.1967) (t......
  • Ricks v. District of Columbia
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 23 décembre 1968
    ...note 42, was distinguished. 43 176 N.Y.S.2d at 315, 151 N.E.2d at 871, 872. 44 Id. 176 N.Y.S.2d at 316, 151 N.E.2d at 872. 45 48 F.2d 171 (9th Cir. 1931). 46 "These words have no sinister meaning and imply no wrongdoing or misconduct on the part of those engaged in the prohibited practices.......
  • INTERNATIONAL LONGSHOREMEN'S & WARE. UNION v. Ackerman, Civ. No. 828
    • United States
    • U.S. District Court — District of Hawaii
    • 18 janvier 1949
    ...similar in tenor to that, Laws of the Territory of Hawaii 1929, Act 256, Section 1, p. 351, held unconstitutional in Territory of Hawaii v. Anduha, 9 Cir., 48 F.2d 171. The Act of May 8, 1929 provided in pertinent part, "Any person who shall habitually loaf, loiter and/or idle upon any publ......
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