KL/)"/, /HOME RUIE IN Hl!.17AII 1 ! by ;.,,/Richard H. Kosaki Research Assistant -- Report No. 2, 1954 -­ (Request No. 3858) November, 1954 .! Norman Meller, Director Legislative Reference Bureau University of Hauaii HOME RUIB IN HAIT.Arr Local government in Hawaii differs greatly from local government on the mainland United States. Fi:i;13t, Hawaii has a highly centralized system of gov­ ernment, vrith the Territory administering many functions v1hich on the mainland are handled by local government, Sec911d, there are only the City and County of Honolulu, the four Outer Island· counties, and a few special districts in the Territory; there are no organized cities or towns r,hich are so numerous and important on the mainland. Fina]..ly, the territorial legislature enacts detailed lavrs controlling activities of specific counties; adoption of special legislation of this nature is prohibited in a number of states. As understood on the mainland, 11 home rule 11 refers to the power of self­ government conferred upon local units by state constitutional provision. Giv­ en this definition, many of the proposals advanced in Hawaii for a greater voice in determining local affairs cannot properly be labeled 11 home rule •11 Home rule in Havmii, comparable to that r1hich bears the name in mainland ju­ risdictions, v,ould require an amendment to the Organic Act, Hanaii I s counter­ part of a state constitution. Mainland experience reveals that home rule practices differ in many re­ spects among the states--in some states home rule is available to all cities; in others, only the largest cities are eligible; in six states, constitutional provision has also been made for county home rule. Home rule powers may be granted in general or specific terms;, in either case, it is the courts which determine their scope and a clear and consistent test for such determination is yet to be evolved. Common to all home rule jurisdictions is provision for local drafting and adoption of a charter. Beside home rule, greater povrnr of self-government may be given to local uni ts by offering them a choice of optional II charte:r's" for adoption, by pro­ viding for special statutes becoming effective only upon approval by the local governing body or by local referendum, and through broad statutory grants of power to local government units. To the extent that self-governing poners are obtained through legislative acts, 11 home rule" is not secure, as such grants of power may be summarily v1ithdravm or modified by the legislature. Hov1ever, even in states with constitutional home rule provisions, there exist varying degrees of legislative control over local units. The interrelation of state­ local affairs makes complete independence of any unit of government impossible. TABIE OF CONTENTS I. State-local Relations • • • .. • Ct • . o o I O t • I 0 1 State supremacy ••• , • . ............ 1 Types of state-local relations •••••••ooot 2 6 II. Municipal Home Rule •.•••• . • 0 • ' • • • • • • • Prevalence of municipal home rule , , • • • • • • • • • • • 6 Differences in home rule provisions •• , • , • • • 7 1. In terms of execution. • • • • • • • • • • 7 2. In terms of availability •• , , , •• , • • • • 8 .3. In terms of scope of home rule pov1ers • • • • • 9 4, "Local federalism" • • • • • • • • • • • • • • 11 5, Grant of substantive powers to municipalities ••• , 11 Summary . • . • . o • • • o • • • • • • • • • • • 12 III. County Home Rule ' • • • • 0 • • ' . 14 Prevalence of county home rule • • • 0 • • • 0 • • • 14 Scope of county home rule ••. 15 County ills and remedies ••• . 0 t O I 16 IV. Charter Drafting and Adoption. 18 Charter drafting • • . • • • • . ' . 19 Charter adoption, •• 0 • • • 0 • • • 22 Summary •••••• . • • 26 V. Local Government in Har1aii . 27 Existing local government structure •• , •.••••.• , 27 Brief history of local government in Hawaii • . • • 28 Home rule movements in Hawaii . • • • • • • • 33 1. Counties . , . 33 2, Towns, districts, etc ••••••• , • • • • • 40 Home rule and the proposed state constitution •••• , • • 45 I. STATE-LOCAL RELATIONS The relationship between the national government and the states theoreti- cally is one between equals, The legal aspect of the relation between state and local governments markedly differs from this federal relationship--fundamen- tally, the state government is supreme. This often confuses many who are brought up in the tradition of democracy as being synonymous with local self-government. The additional fact that local government systems are not uniform throughout the country and that each state has developed its ovm system of state-local relations further adds to the confusion, Despite the strong American belief in local self-government, judicial doc- trine has continued to recognize the supremacy of the state over its local gov­ ernments,1 The Supreme Court of Hawaii in 19.30 in unmistakable terms upheld the power of the territorial government over its political subdivisions. To the contention that local units have the inherent right of local self-government, 2 the court said: 111 rn the absence of state constitutional provisions safeguarding it to them, municipalities have no inherent right of self-government which is beyond the legislative control of the State, A municipality is merely a department of the State, and the State may 17i thhold, grant or vri thdraw poners and privileges as it sees fit, However great or small its sphere of action, it remains the creature of the State exercising and holding porrers and privileges subject to the sover­ eign will. 11 Trenton v. Ner, Jers§.Y, 262 u.s. 182 (192.3), p. 187. See also Atkin v. li.sD..5-5!§., 191 U.S. 207 (190.3), at p. 221, quoting with ap­ proval from Judge Dillon's famous opinion in Citv of Clint.QD v. Cedar Raoids and Missouri River R.R. Co., 24 Iowa 455 (1868), p. 475. ~he well-known opinion upholding the inherent right of local self-government was delivered by Judge Cooley in the case of Peoole ex rel. Le Roy v, Hurlbut, 24 Mich. 44 (1871), and has had but very limited application. The Hawaii Supreme Court, in refuting it, quotes rather extensively from this decision in the McKenzie case, infrg, ••• How • , • can it be said that there was existent in Hawaii any such theory or principle or inherent right of local self-government? In our opinion there is not any such inherent right. Our antecedent history, the failure of Congress to recognize the existence of such a right and the positive action of Congress in making the authority of the Hav1aiian legislature to create municipalities discretionary and not mandatory, all emphasize this.1 The doctrine of state supremacy over local government is buttressed by the courts commonly holding that municipal por,ers are to be narronly construed. This is the 'rule of strict construction," also known as 11 Dillon 1s Rule": It is a general and undisputed proposition of law that a muni­ cipal corporation possesses, and can exercise, the f'ollor1ing poners, and no others: first, those granted in express r1ords; second, those necessarily or fairly implied in, or incident to, the powers ex­ pressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation--not simply con­ venient, but indispensable, Any fair, reasonable, substantial doubt concerning the existence of a po17er is re~olved by the courts against the corporation, and the porrer is denied. Tvoes of State-Local Relations The political and legal relation between the state and its subdivisions (especially its municipalities) can be described as falling into one of the fol- lowing categories: 1. Legislative control by special laws. Under this system, nhich ex- ists in Hawaii, the state legislcture will pass special acts applicable to specific local governments. This makes it possible for the state legisla- tures to regulate local affairs in detail. It is against the abuses perpe- trated under this system that local governments most complain, and the his- tory of state-local relations in large part records the efforts of local 1McKenzie v, Wilson, 31 Haw, 216 (1930), p. 227. 2John F. Dillon, Municipal Coroorations, 1st ed. (1872), sec. 55; 5th ed. (1911), Vol, I, pp. 448-51; quoted by Anderson and i7eidner, American City Govern­ ment (rev. ed., New York: Henry Holt & Co., 1950), p. 213. -2- governments to prevent special legislation. The other methods of regulat- ing state-local relations described belov1 may be interpreted as the results of these efforts to seek alternatives to the method of special legislation. In 1946, it was reported that 42 states had some form of constitution­ al prohibition against the enactment of special legislation,l To moderate the arbitrary nature of special legislation, the folloning procedures have been devised: (1) a number of states, following the leadership of Massa- chusetts, require that public notice be given before a special law is en- acted; (2) New York's constitution requires the approval of local officials before special lav1s go into effect; (3) Illinois ( i"Ii th relation to Chicago) and Michigan subject special laws to referenda approval in the localities concerned; and (4) New Jersey's 1947 Constitutional Convention rejected typical home rule provisions and adopted a scheme permitting legislative enactment of special laws upon petition of the local governing body and sub­ ject to ratification by the local governing body or electors.2 trol over local units can be by general laws--i.e., lm7S uniformly applica- ble to local units ni thin the state. Although this discourages favoritism of or discrimination against specific units, its inflexibility in treating all uni ts alike, regardless of size and needs, is its inherent i"Jeakness. This method falls some\·1ha t betTieen that of special legislation and of gener- al lar1s. In essence, it calls for the classification of governments in 1Council of State Governments, §tate-Local Relation~ (Chicago, 1946), pp. 149-150. 2New Jersey Constitution, Art, IV, sec.