Territory v. Anduha
Decision Date | 19 May 1930 |
Docket Number | No. 1905.,1905. |
Citation | 31 Haw. 459 |
Parties | TERRITORY v. CAMELIO ANDUHA. |
Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.
Syllabus by the Court
It is not within the police power of the legislature to enact a statute making it a misdemeanor, punishable by fine or imprisonment or both, for any person, under all circumstances, to habitually loaf, loiter or idle upon any public street or highway.
E. R. McGhee, Deputy Attorney General ( H. R. Hewitt, Attorney General, with him on the briefs), for the Territory.
H.E. Stafford (also on the brief) for defendant in error.
(Perry, C. J., dissenting.)
This case involves the constitutionality of Act 256, L. 1929. The Act is as follows: “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 upon conviction thereof be punished by a fine of not more than one hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment.”
On the 10th day of August, 1929, Camelio Anduha was charged in the district court of Honolulu with a violation of this statute in manner and form as follows: “William Clark, first being duly sworn says: That Carmela Anduha did at Honolulu, City and County of Honolulu, Territory of Hawaii, for 14 days last past prior to and including the 8th day of August, A. D. 1929, did habitually loaf, idle and/or loaf upon a certain public street, to–wit, Liliha street, situated in Honolulu aforesaid, and did then and there and thereby violate the provisions of section 1 of Act 256 of the Session Laws of 1929.” The defendant demanded a jury trial and was duly committed to the circuit court where he interposed a demurrer to the complaint on the ground that the statute in question was an unauthorized exercise by the legislature of the police power of the Territory and therefore unconstitutional. The demurrer was sustained and the Territory has brought the case here on writ of error.
It cannot be denied, of course, that the Territory, acting through its law–making body, may in the exercise of its police power impose restrictions upon the right to use public streets and highways. This power, which is very comprehensive, has too frequently been upheld to be now questioned. It must also be conceded, however, that, broad as it is, the power is not plenary and that one of its limitations is that the regulations and inhibitions imposed must be reasonably necessary to the public welfare and not inconsistent with fundamental rights that are common to all. Streets and highways are intended to facilitate travel from one locality to another and to promote the comfort and convenience of those who use them. Whatever, therefore, reasonably tends to impede or endanger their use may be regulated or even prohibited. For instance, loitering, loafing or idling on them, whether it be occasional or habitual, in such a manner and at such times and places and under such circumstances that their free and convenient use by others is impeded or rendered dangerous or uncomfortable or that the public welfare is imperiled may be prohibited by legislative enactment. If this had been the kind of loitering, idling or loafing forbidden by the statute we would have a different question. The statute before us is much more sweeping than this. It makes it a misdemeanor to habitually loiter, loaf or idle, under any circumstances, in any of the places mentioned, whether such conduct interferes with the rights of others or imperils the public welfare. All loitering, loafing or idling on the streets and highways of a city, even though habitual, is not necessarily detrimental to the public welfare nor is it under all circumstances an interference with travel upon them. It may be and often is entirely innocuous. The statute draws no distinction between conduct that is calculated to harm and that which is essentially innocent.
Visitors, lured by the fame of our climate and of our natural scenery and the hospitality of our people, come here for recreation and pleasure. Many of them, having no other occupation, habitually but harmlessly idle or loiter upon our streets and highways. In their pursuit of happiness, which is a guaranteed right, they loiter before shop windows, pause to enjoy the changing colors of the ocean and to talk with friends. It would be shocking to say that so long as they are innocent of any wrong and conduct themselves with due regard to the rights of others and the good order of the community the legislature has the constitutional authority to declare them misdemeanants and subject them to arrest and imprisonment. Also, there are persons who, taking advantage of the leisure they have on the Sabbath, habitually go for long hikes along the public highways. When weariness overtakes them they stop for rest. Attracted by the beauties of the landscape they loiter and idle for as long as they choose. The free use of the highway by others is not impeded and the public peace is not disturbed. Is the legislature empowered to declare them lawbreakers? Children, who have reached the age of legal responsibility, on their way to and from school habitually loiter along the sidewalks. If the statute is constitutional they are in danger of imprisonment even though their manner of using the sidewalks is without probable injury or inconvenience to any one.
A criminal statute that is so broad in its prohibitive terms as to include acts that are inherently harmless as well as acts that are potentially dangerous cannot, for constitutional reasons, be upheld. The case that is most nearly like the one before us is City of St. Louis v. Gloner, 210 Mo. 502. The City of St. Louis, which was given statutory authority to regulate the use of its streets, passed an ordinance providing that “any person or persons who shall lounge, stand or loaf around or about or at street corners or other public places, in the day or night time, * * * shall be deemed guilty of a misdemeanor and, upon conviction thereof, before either of the police justices, shall be fined in the sum of not less than five or more than fifty dollars.” The defendant was charged with a violation of these provisions of the ordinance. At the conclusion of the trial he was discharged and the City of St. Louis took the case to the supreme court. The court in affirming the judgment of the lower court said (pp. 509, 510): In the case of Pinkerton v. Verberg, 78 Mich. 573, the court said (p. 584): ...
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State v. Bloss
...place); State v. Grahovac, supra, (loitering); State v. Abellano, 50 Haw. 384, 441 P.2d 333 (1968) (presence at cockfight); Territory v. Anduha, 31 Haw. 459, aff'd 48 F.2d 171 (9th Cir. 1931) (loitering).14 The other flaw of this ordinance is its vagueness, not its overbreadth. We note the ......