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responsibility as an officer, and it cannot | dulged in favor of the constitutionality of be presumed, as matter of law, that the the legislation. In Sweet v. Rechel, 159 U. keener sense of dependence upon the will of S. 380, 392, 40 L. ed. 188, 193, 16 Sup. Ct. the people which this feature of his tenure Rep. 43, 46, it was said: "But, in deof office brings to him will distort his judg-termining whether the legislature, in a parment and sense of justice. It would be ticular enactment, has passed the limits of conceivable, of course, that the members of its constitutional authority, every reason. the legislature themselves might be sub-able presumption must be indulged in favor jected to the same process of recall, but it of the validity of such enactment. It must hardly would be contended that that fact be regarded as valid unless it can be clearly would lessen the legislative power vested in shown to be in conflict with the Constituthem by the Constitution and laws of the tion. It is a well-settled rule of constitustate. The charter of the city also con- tional exposition that, if a statute may or tains a provision that, upon petition of 15 may not be, according to circumstances, per cent of the voters of the city, any ordi- | within the limits of legislative authority, nance proposed must be submitted to the the existence of the circumstances necessary people and may be by them adopted. It to support it must be presumed." is said, therefore, that the power of rate regulation might be, in this manner, exercised directly by the electorate at large. It may well be doubted whether such a result was contemplated by the legislature. There are certainly grave objections to the exercise of such a power, requiring a careful and minute investigation of facts and figures, by the general body of the people, to operate as a practical confiscation of however intelligent and right-minded. But the ordinance was not adopted in this manner in this case, and it will be time enough for the courts of the states and of the United States to consider, when that is done, whether the objections only go to the expediency of such a method of regulation, or reach deeper and affect its constitutionality.

It is to be taken into account in considering this, as well as other questions, that the appellant has declined to furnish to the council facts within its knowledge which would enable the council to exercise their powers intelligently and justly, and that there is no suggestion in the case at bar that the rates actually fixed were so low as

property.

For the foregoing reasons we are of the opinion that the action of the court below in sustaining the demurrer was correct, and the decree is affirmed.

(211 U. S. 282)

HONOLULU RAPID TRANSIT & LAND
COMPANY, Appt.,

v.

TERRITORY OF HAWAII, by Charles R.
Hemenway, Attorney General of the Ter-
ritory of Hawaii.

CONSTITUTIONAL LAW (§ 72*) - JUDICIAL
POWERS-REGULATION OF STREET RAIL-

ROADS.

Passing the questions of power, the appellant contends that it was denied the equal protection of the laws because, contemporaneously with the fixing of rates for it, different rates were fixed for another telephone company doing business within the city. The only information we have on the subject is in the allegations of the bill, The enforcement of the continuance by that a competitor of the complainant en- Hawaiian street railway company of a tengaged in like business was allowed to charge minute schedule on certain of its lines, for telephone service sums greatly in excess upon the ground that the public convenof those prescribed by the ordinance, and ience demands such a schedule, is not within the limits of the judicial power, and is that these rates discriminated against the totally inconsistent with the power to regucomplainant and deprived it of the equal late the management of the street railway protection of the laws. An important ques-in this respect, which is ultimately vested tion is thus suggested, but we think the by Haw. Rev. Laws, 8 843, and Session allegations are so vague that we cannot pass Laws 1905, act No. 78, in the executive auupon it. Whether the two companies operated in the same territory, or afforded equal facilities for communication, or rendered the same services, does not appear. For aught that appears, the other company may have brought its patrons into communication with a very much larger number of

thorities.

al Law, Dec. Dig. § 721

[Ed. Note.-For other cases, see Constitution

[No. 412.]

Argued and submitted November 6, 1908.

Decided November 30, 1908.

PPEAL from the Supreme Court of the

persons, dwelling in a much more widely. A Territory of Hawaii to review a decree

extended territory, and rendered very much more valuable services. In other words, a just ground for classification may have existed. Every presumption should be in

which affirmed a decree of the Circuit Court of the First Judicial Circuit, in that territory, enjoining a street railway company

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

*286

from reducing its service on certain of its | running cars at intervals of ten minutes. lines.

Reversed.

It proposed to discontinue this schedule and established one with somewhat longer intervals, and had applied to the superintendent of public works for permission to lay the switches necessary to put the proposed schedule into convenient operation. There

See same case below, 18 Haw. 553.
The facts are stated in the opinion.
Messrs. David L. Withington, A. B.
Browne, Alex. Britton, W. R. Castle, and
A. Perry for appellant.
Messrs. Charles R. Hemenway for ap- upon the territory, on the relation of its
pellee.

attorney general, brought, in one of the circuit courts of the territory, a suit in

*Mr. Justice Moody delivered the opinion equity, in which an injunction was sought of the court:

The appellant, hereafter called the transit company, was incorporated by a law of the territory of Hawaii. Revised Laws of Hawaii, chap. 66, §§ 835 to 871. *The corporation was granted the right to construct and operate a street railway for a term of thirty years in the district of Honolulu. The character of the construction was, in part, expressly prescribed by the statute, and, in some details, left to be determined by the transit company, subject to the approval of the superintendent of public works. Section 841 enacted that

"The said association shall at all times maintain a sufficient number of cars to be used upon said railway for the carriage of passengers as public convenience may require, and such other cars designed for the carriage of mails, parcels, and goods as they may deem necessary."

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It was provided that, after paying from the income certain charges, including a dividend of 8 per cent on the stock, the excess of the income should be divided equally between the territory and the stockholders, and that "the entire plant, operation, books, and accounts shall, from time to time, be subject to the inspection of the superintendent of public works." Section 868. In certain parts of the field of operation a maximum rate of fare was established by the statute, and in certain other parts it was left to the transit company to fix, subject to the approval of the governor. It was provided by § 843, paragraph 4, that

"The said association shall make reasonable and just regulations with the consent and approval of the governor regarding the maintenance and operation of said railway on and through said streets and roads; and the said association failing to make such rules and regulations, the superintendent of public works, with the approval of the governor, may make them. All rules and regulations may be changed from time to time as the public interests may demand, at the discretion of the governor."

The railway was constructed and its operation was in progress. On certain streets of its line the transit company had been

to prevent the company from running the cars in question at less frequent intervals than ten minutes. In the bill it was alleged that the convenience of the public required that the ten-minute schedule should be maintained and continued. The respondent answered, issue was joined by replication, evidence was taken, and the court found as a fact that the public convenience required the maintenance of the ten-minute schedule. An injunction against the change was accordingly granted. Upon appeal to the supreme court of the territory, the judg ment of the lower court was affirmed, and findings of fact made, including the finding that the public convenience required the continuance of the ten-minute schedule. The transit company then appealed here, upon the ground, which is well taken, that the amount in controversy was more than $5,000.

The dispute between the parties is whether the courts of the territory had jurisdiction in equity to issue the injunction. The transit company contends that no such jurisdiction existed, and, in the alternative, that, if there was jurisdiction in the courts over the subject, it could only be exercised by mandamus. We think it unnecessary to consider the latter proposition, and confine ourselves to a consideration of the broad question whether the court had power, by any form of proceedings, thus to regulate and control the operations of the company. The courts below based the right to issue the injunction upon § 841, correctly interpreting that section as imposing the general duty upon the transit company to operate as well as to maintain such cars as the public convenience requires. The section, however, is not a specific direction to keep in force on the streets covered by the order of the court a defined schedule, with cars running at named intervals, and the right of a court to enforce by injunction or mandamus such a schedule need not be considered. But the action of the court below went much farther than this, and farther than is warranted by any decision which has been called to our attention. In the absence of a more specific and well-defined duty than that of running a sufficient number of cars to meet the public convenience, the court, in

$289

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$290

this case, inquired and determined, as mat-, act in constructing its road or buildings, or ter of fact, what schedule the public con- in running its trains, can be issued only venience demanded on particular streets, when there is a specific legal duty on its and then, in substance and effect, compelled part to do that act, and clear proof of a a compliance with that schedule. And this breach of that duty." And the charter was done, though, as will be shown, the full direction, that the railroad should construct power to regulate the management of the all necessary stations, was described as railway in this respect was vested by the "but a general expression of what would be statute in the executive authorities. In otherwise implied by law," and as not to form the order of the court was a mere pro- "be construed as imposing any specific duty hibition against a change of an existing or as controlling the discretion in these schedule; but its substantial effect was to respects of a corporation intrusted with direct the transit company to operate its such large discretionary powers upon the cars upon a schedule found to be required more important questions of the course and by the public convenience. The effect of the the termini of its road." (P. 500.) Acorder is not changed by the fact that the cordingly it was held that the determinaschedule enforced by the order of the court tion of the directors with regard to the is that upon which the transit company was number, place, and size of the station, havthen running its cars. The order of the ing regard to the public convenience as well court was not founded upon the considera- as the pecuniary interests of the corporaation that the schedule was the one exist- tion, could not be controlled by the courts ing, although that was taken into account; by writ of mandamus. And see People ex but upon the fact that it was the one which rel. Linton v. Brooklyn Heights R. Co. 172 the public convenience required. The ques- N. Y. 90, 64 N. E. 788. tion to be determined is whether a court, not invested with special statutory authority, nor having the property in its control by receivership, may, solely, by virtue of its general judicial powers, control to such an extent and in such detail the business of a transportation corporation. The question can be resolved by well-settled principles applicable to the subject. At the threshold the distinction between the case at bar and those cases where there is an enforcement of a specific and clearly-defined legal duty must be observed. This distinction was drawn and acted upon in the case of Northern P. R. Co. v. Washington Territory, 142 U. S. 492, 35 L. ed. 1092, 12 Sup. Ct. Rep. 283. In that case it appeared that the railroad company was incorporated by an act of Congress, with power to construct and operate a railroad from Lake Superior to Puget sound, with a branch to Portland. The charter directed that the railroad should be constructed "with all the necessary stations." The territory of Washington filed in the territorial court a petition for mandamus to compel the railroad company 29 Sup. Ct. Rep. 67. In this case the legto erect and maintain a station at Yakima islative power of regulation was not intrustcity, and to stop its trains at that point. ed to the courts. On the contrary, it was The petition alleged, and the jury found, clearly vested, by § 843, in the governor and facts which warranted the inference that a the superintendent of public works. By that station at Yakima city was desirable and section the transit company was itself given necessary for the proper accommodation of authority, in the first instance, with the traffic. Thereupon a writ of mandamus is-approval of the governor, to make reasonsued as prayed for, and, upon appeal, the judgment was affirmed by the supreme court of the territory. Upon writ of error this court reversed the judgment. In the opinion of the court, delivered by Mr. Justice Gray, it was said: "A writ of mandamus to compel a railroad corporation to do a particular

The business conducted by the transit company is not purely private. It is of that class so affected by a public interest that it is subject, within constitutional limits, to the governmental power of regulation. This power of regulation may be exercised to control, among other things, the time of the running of cars. It is a power legislative in its character, and may be exercised directly by the legislature itself. But the legislature may delegate to an administrative body the execution in detail of the legislative power of regulation. Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 393, 394, 38 L. ed. 1014, 1022, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. 167 U. S. 479, 494, 42 L. ed. 243, 251, 17 Sup. Ct. Rep. 896. We need not consider whether that legislative power may be conferred upon the courts of the territory, as it may be upon the courts of a state, so far as the Federal Constitution is concerned. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. ed.

able and just regulations regarding the maintenance and operation of the railway through the streets. The operation of a railway consists very largely in the running of cars, and the right of the transit company, to regulate, in the first instance, the operation of its railway, clearly includes

*291

*292

In our opinion, the injunction which was issued in this case, constituting in substance a regulation of the operation of the railway, was, in the first place, not within the limits of the judicial power, and, in the second place, totally inconsistent with the power of regulation vested unmistakably by the legislature in the executive authorities. Decree reversed.

The CHIEF JUSTICE dissents.

(211 U. S. 239)

CHARLES T. WILDER,† Tax Assessor and Collector of the First Taxation Division of the Territory of Hawaii, Plff. in Err.

V.

INTER-ISLAND STEAM NAVIGATION

the power to decide upon time schedules. I imagined, are signal illustrations of the imBut the company cannot finally determine, portance of observing the boundaries beas it chooses, the manner of operating its tween the judicial and legislative field, and road in respect of the time, speed, and of the confusion and injury which would frequency of its cars. Its primary duty is follow from the failure to respect those to operate a sufficient number of cars to boundaries. Nothing is decided as to the meet the public convenience. This duty power of the courts to review the action of would rest upon the company, even if it the superintendent or governor. were not expressed, as it is, in § 841. If the company itself complies with its duty by just and reasonable regulations of its own, it is enough. If the company fails in the performance of the duty, its performance is secured in the manner pointed out in the latter part of § 843. The superintendent of public works may make, with the approval of the governor, just and reasonable regulations, and they may be changed from time to time, as the public interest may demand, at the discretion of the governor. Moreover, by an amendment of the charter (act 78, Session Laws 1905), the superintendent of public works may prescribe the speed of cars. The precise function, therefore, which was exercised by the courts below, is, by the statute, confided primarily to the transit company, and ultimately to the discretion of the governor and superintendent of public works. The courts have no right to intrude upon this function, and subject the company to a species of regulation which the statute does not contemplate. If the courts Seamen's wages are protected from seiwere held to have the powers which were zure after judgment by attachment or proassumed in this case it would lead to great ceedings in aid of execution by the proviembarrassment in the operation of the rail- sions of U. S. Rev. Stat. § 4536, U. S way, and perhaps to distressing conflict. Comp. Stat. 1901, p. 3082, that no wages Can it be that the courts can dictate the due or accruing to any seaman shall be frequency of the running of the cars, and the superintendent of public works their speed? If so, the lot of the company is indeed a hard one. The two incidents of operation are not only related, but inseparable. The authority which controls the one must control the other, or operation becomes impossible. Suppose, again, that the courts, upon hearing evidence, should be of opinion that one schedule is required for the public convenience, and the governor and superintendent of public works should be of opinion that another schedule would better subserve that convenience, which order must the company obey? Must it choose between the liability to punishment for contempt for disobeying the order of the court, and the liability to forfeiture of its franchise for Submitted October 22, 1908. failing to obey the order of the governor and superintendent of public works? These and other like situations, which easily might be

†Sec. 870. "Whenever the said associa-1 tion or any corporation which may have been duly organized under the laws of this territory for the purpose of constructing, operating, and maintaining the lines of railway mentioned in this chapter, and as

COMPANY, LIMITED. EXEMPTIONS (8 48*)-SEAMEN'S WAGESATTACHMENT AFTER JUDGMENT SUPPLEMENTARY PROCEEDINGS.

subject to attachment or arrestment from
any court, and declaring that payment of
wages to seamen shall be valid notwith-
standing any previous sale or assignment
or any attachment, encumbrance, or arrest
ment, and that no assignment or sale of
wages, made prior to the accruing thereof,
shall be binding, except certain authorized
advance securities, when construed in the
light of other provisions of the same title,
enacted to secure to the seaman his remedy
in admiralty for the recovery of his wages
by condemnation of the ship.
Cent. Dig. 70; Dec. Dig. § 48.*]

[Ed. Note.-For other cases, see Exemptions,

[No. 30.]

vember 30, 1908.

Decided No

†Substituted as a party in place of? James L. Holt.

by this chapter provided, refuses to do or fails to do or perform or carry out or comply with any act, matter, or thing requisite or required to be done under the provisions of this chapter, and shall continue so to refuse or fail to do or perform or carry

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

⚫240

IN ERROR of Hawail to review a judge upon the ea parte application of such jug

IN ERROR to the Supreme Court of the It shall be lawful for a judge of any court

ment which reversed a judgment of the Dis-ment creditor, either before or after such trict Court of Honolulu, Oahu County, in that territory, attaching seamen's wages after judgment. Affirmed.

See same case below, 17 Haw. 416. The facts are stated in the opinion. Messrs. Charles R. Hemenway and Mason F. Prosser for plaintiff in error. Messrs. A. Lewis, Jr., and Smith & Lewis for defendant in error.

oral examination, and upon affidavit by the
judgment creditor or his attorney, stating
that judgment has been recovered, and that
it is still unsatisfied, and to what amount,
and that any other person is indebted to the
judgment debtor and is within the juris-
diction, to order that all debts owing or ac-→
cruing from such third person (hereinafter
called the 'garnishee') to the judgment
debtor shall be attached to answer the judg-

Mr. Justice Day delivered the opinion ment debt; and by the same or any subseof the court:

This case is one of a number of similar cases arising within the territory of Hawaii, and is brought here for the purpose of settling the liability of seamen's wages to seizure after judgment by attachment or proceedings in aid of execution. The InterIsland Steam Navigation Company, defendant in error, was directed by order and judgment of the district magistrate of Honolulu to pay into court, on account of a judgment rendered in favor of plaintiff in error, against one A. Tullet, the sum of $65. Tullet is a seaman, being master of the steamer Keauhou, plying between ports within the territory. The sum of $65 was due to Tullet from the Inter-Island Steam Navigation Company for wages for the months of January and February, 1906. The judgment was recovered against Tullet on September 5, 1905, for the sum of $120.38 and costs. An execution was issued thereon and returned unsatisfied. Upon affidavit being filed an order was issued attaching the sum of $65, due in manner aforesaid from the navigation company to Tullet. The navigation company filed an answer setting forth that Tullet was an American seaman in the employ of the company, and that the money attached was due to Tullet as wages, and, under § 4536 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 3082), the same were not subject to arrestment nor attachment, and that the territorial court had no jurisdiction in the premises. The lower court held that the wages could be attached in this manner. This judgment was reversed in the supreme court of Hawaii.

quent order it may be ordered that the garnishee shall appear before the judge to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt; provided that the judge may, in his discretion, refuse to interfere when, from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious."

It was under this section of the Hawaiian statute that the order was made for the payment of the judgment out of the wages due to Tullet, and the question for decision in this case is: Can such an order be made consistently with the maritime law as declared in the Revised Statutes of the United States? The section of the statute construed in the supreme court of Hawaii is 4536, which provides:

"No wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; and every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of wages, or of any attachment, encumbrance, or arrestment thereon; and no assignment or sale of wages, or salvage, made prior to the accruing thereof, shall bind the party making the same, except such advance securities as are authorized by this title."

This section was first enacted into the statutes of the United States in 1872, and was § 61 of the act of June 7, 1872, entitled "An Act to Authorize the Appointment of Shipping Commissioners by the Several CirThe laws of Hawaii regulating attach-cuit Courts of the United States, to Superments in cases such as are now under con- intend the Shipping and Discharge of Seasideration authorize proceedings supple- men Engaged in Merchant Ships Belonging mentary to execution, as follows: to the United States, and for the Further "Sec. 2118. Attachment of debts, order.- Protection of Seamen." 17 Stat. at L. 262,

out or comply therewith, after due notice by the superintendent of public works to comply therewith, the superintendent of public works shall, with the consent of the governnor, cause proceedings to be insti

|

tuted before the proper tribunal to have the franchise granted by this chapter and all rights and privileges granted hereunder, forfeited and declared null and void."

K

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