In re the Appeal of Chung

352 P.2d 846, 44 Haw. 220, 1960 Haw. LEXIS 65

• Court: Hawaii Supreme Court
• Decided: April 12, 1960
• Docket: No. 4089
• Status: Published

Opinions

OPINION OE THE COURT BY

MARUMOTO, J.

This is an appeal by Paul H. 0. Chung, Clerk of the City and County of Honolulu, from a decision of the Board of Registration of Electors for the City and County of Honolulu, dated June 5, 1958, relating to the application of Eobert P. Buda for registration as an elector. Before filing his application, the applicant had been convicted and sentenced to imprisonment for six years by a Japanese court for committing a criminal offense in Japan. The clerk refused to register him under § 18 of the Hawaiian Organic Act which disqualified any person convicted, in due course of law, of any criminal offense punishable by imprisonment exceeding one year from registering as an elector. The board held that the applicant was entitled to be registered, on the basis of its opinion that “the criminal offense committed by appellant in Japan and for which he was convicted by the Courts of Japan and sentenced for a term in excess of one year, is not a prohibition against his right or privilege to be registered to vote in this Territory within the meaning of Section 18 of the Hawaiian Organic Act.”

The sole issue raised by the parties on this appeal is whether the procedure followed by the Japanese court in convicting the applicant was “in due course of law.” We have no warrant to consider that issue, for the appeal is not properly before this court.

Appeal from a ruling of a board of registration is governed by E.L.H. 1955, § 11-23, which provides that “Any legal voter may, at any time within ten days after the decision of such board, appeal to the supreme court in the manner provided by law for civil appeals to the supreme court from the circuit court, or in such manner as may be provided by law.”

The clerk appealed in his official capacity and not as a legal voter. That in itself may be fatal to this appeal. Crownover v. Millar, 45 Nev. 81, 197 Pac. 817. However, we need not rest our decision on that ground. We hold that the appeal is not properly before this court on the ground that the clerk, either in his official capacity or as an individual, does not come within the meaning of the words "any legal voter,” as used in § 11-23. We arrive at our conclusion from a study of the history of our statutory provisions relating to registration of electors. Such provisions have their origin in the Rules and Regulations for Administering Oaths and Holding Elections, promulgated by the President of the Republic of Hawaii under the authority contained in Article 79 of the Constitution of 1894, compiled in R.L.H. 1905, §§25 through 104.

When the rules were promulgated, county governments had not yet been established, and there were no county clerks. So, registration was done by boards of registration, challenges were addressed to such boards, and board rulings were appealable to this court. R.L.H. 1905, § 47, provided that "Any lawful voter may challenge the right to register of any person claiming to be eligible to register as a voter, * * *.” The provision for appeal was contained in § 50, which read as follows:

"Sec. 50. To supreme court. If any board shall refuse to register the name of any person applying to be registered, the person refused, and, in case any name has been registered, any legal voter, may, at any time within ten days after the decision of such board, appeal to the supreme court in the manner provided by law for civil appeals to the supreme court from the circuit court, or in such manner as may hereafter be provided by law.” (Italics supplied.)

From a reading of § 50, we think that the section was designed to accord the right of appeal from a board ruling to this court to an applicant for registration, or a challenger, who was aggrieved thereby. An applicant came within the meaning of the words “the person refused.” A challenger was covered by the words “any legal voter.” Construing § 47 and § 50 as statutes in pari materia, we think that the words “any legal voter,” as used in § 50, meant “any lawful voter” who exercised his right of challenge under § 47 and no one else.

By S.L.H. 1905, c. 39, and S.L.H. 1907, c. 118, the legislature provided for the government of the counties of Hawaii, Maui and Kauai, and for the City and County of Honolulu, and, in so doing, established the office of clerk for each county and for the City and County of Honolulu.

Thereafter, by S.L.H. 1911, c. 68, the legislature transferred the duties of registration formerly performed by boards of registration to county clerks, defined as including the clerk of the City and County of Honolulu, and transformed boards of registration into appellate tribunals to hear appeals from the ruling of the clerks. S.L.H. 1911, c. 68, repealed R.L.H. 1905, § 47, and substituted the following provision therefor:

“Section 4. Any qualified elector may challenge the right of a person to be registered as a voter in the general county register at any time up to the next sitting of the board of registration. * * * In case a challenge is denied or in case of the refusal of the clerk to register the applicant, the party ruled against may appeal from such ruling to the board of registration for his district. * * *”

It is to be noted that the provision quoted above gave the right of challenge to “any qualified elector,” whereas under § 47 the person who had the right of challenge was “any legal voter.” We think that both expressions have the same meaning, and there is no significance in the mentioned change of language.

No change was made in § 50. So, the presumption is that the meaning of the words in that section remained the same and that only an applicant for registration or a challenger had the right of appeal to this court from an adverse board ruling. Nothing in S.L.H. 1911, c. 68, indicated that the legislature intended to include the clerk among those who had the right of appeal under § 50.

Soon after the enactment of S.L.H. 1911, c. 68, the same legislature enacted S.L.H. 1911, c. 105, which contained amendments of S.L.H. 1911, c. 68, § 4, and R.L.H. 1905, § 50.

S.L.H. 1911, c. 68, § 4, was amended to read:

“Any qualified elector may at any time, for any cause not previously decided by the board of registration or the supreme court in respect of the same person, challenge the right of any person to be or remain registered as a voter in any precinct. * * * In case the clerk denies a challenge or refuses to register an applicant, the party ruled against may appeal from the ruling to the board of registration for his district or county. * * *”

The foregoing amendment made two matters very definite. First, after the amendment, there could be no question as to the person who might be challenged. Not only an applicant for registration but also a person already registered was subject to challenge; with this limitation, that the person whose right to be or remain registered was previously ruled upon by a board or by this court could not be challenged. Second, after the amendment, there could be no question as to the persons who had the right to appeal from a ruling of the clerk to the board. Only a person who was ruled against by the clerk could appeal to the board. That meant that only a person whose right to be or remain registered as a voter was in question or a challenger could appeal to the board. Thus, the right of appeal to the board did not extend to a person who was not a party in the proceeding before the clerk and who, for that reason, was not ruled against by the clerk.

R.L.H. 1905, § 50, was amended by striking therefrom the .words “If any board shall refuse to register the name of any person applying to be registered, the person refused, and, in case any name has been registered.” In onr quotation of the language of § 50 earlier in this opinion, the deleted words are shown in italics. The deletion separated the words “any legal voter” from the context which gave them a definite meaning, and created the necessity of ascertaining their meaning without such context.

The provisions of S.L.H. 1911, c. 68, § 4, as amended, are compiled in E.L.H. 1955, §§ 11-15 and 11-16. E.L.H. 1955, § 11-23, is a compilation of E.L.H. 1905, § 50, as amended.

In a strictly literal sense, the words “any legal voter” mean a person who has met all of the conditions precedent to the exercise of suffrage, including registration. In that sense, they include within their meaning a challenger under § 11-15, for that section requires that such challenger be a “qualified elector,” and they include the clerk, for § 149-28 requires that the clerk be a “duly qualified elector”; but they do not include a person ruled against by the board with respect to his right to be or remain registered as a voter, for such person cannot legally vote unless the board ruling is reversed by this court.

The inclusion of a challenger within the meaning of the words “any legal voter,” as used in § 11-23, is proper. Unless otherwise provided by statute, appeal may only be taken by a person who was a party in the proceeding in which the ruling appealed from was made and who was aggrieved by such ruling. In a registration proceeding involving a challenge, the challenger is always a party.

But we think that any interpretation of the words “any legal voter,” as used in § 11-23, which includes the clerk and excludes the person ruled against by the board with respect to his right to be or remain registered as a voter is contrary to “the reason and spirit of the law, and the cause which induced the legislature to enact it.” E.L.H. 1955, § 1-18. Certainly there is nothing in the legislative history of § 11-23 that indicates the intention of the legislature to grant to the clerk, who did not possess such right before the enactment of S.L.H. 1911, c. 105, the right of appeal from a board ruling to this court, or to take away from a person whose right to be or remain registered as a voter was in question the right of appeal which was previously accorded to such person. If the clerk now has the right of appeal from a board ruling, he could only have acquired such right by reason of the deletion of the previously quoted words from R.L.H. 1905, § 50, by S.L.H. 1911, c. 105; likewise, if a person claiming the right to be or remain registered as a voter does not now possess the right of appeal from an adverse board ruling, he would have been deprived of such right only for the same reason.

The only record in existence from which the purpose of the legislature in making the deletion might be deduced shows that it was done to “avoid conflict in our statutes.” The Sixth Legislature of the Territory of Hawaii, Senate Journal 1911, p. 827. The conflict in statutes which the legislature sought to eliminate was the fact that the deleted language carried an implication that boards of registration continued to perform the duties of registration despite the imposition of such duties on county clerks by S.L.H. 1911, c. 68.

We do not think that the clerk is entitled, on any logical basis, to the right of appeal to this court from a board ruling, either in his official capacity or as an individual.

First, let us consider the position of the clerk in his official capacity. As an official, he exercises a quasi-judicial authority of making the original rulings in registration proceedings. An officer whose ruling is appealed may be made a party in the appellate proceeding by statute. But there is no statute which makes the clerk, as such, a party in the proceeding before the board. So, he is not a party in the board proceeding, and he has no standing to appeal from an adverse board ruling to this court as an aggrieved party. This is illustrated by Kirchoff v. Board of Commissioners of McLeod County, 189 Minn. 226, 248 N.W. 817. In that case, the county board, acting as a tribunal to hear a petition to detach land from one school district and attach it to another, denied the petition. On appeal, the district court reversed the board ruling. The supreme court dismissed the appeal of the board from the judgment of the district court with the following statement: “The county board, prosecuting this appeal, so far as the record shows, has no interest in the litigation and is not an aggrieved party. The board is the tribunal designated by statute to hear the petition and pass upon it in the first instance. * * * A court or tribunal before whom a controversy is litigated has, as such, no appealable interest in the matter.”

If we consider the clerk as an individual, he is like any other registered elector who was not a party in the proceeding before the board. A registered elector who was not a party in the proceeding in which a ruling was made may not appeal from the ruling because he is not an aggrieved party; he may question the right of any person to be or remain registered as a voter only by a challenge. But, under § 11-15, no person whose right to be or remain registered as a voter has once been ruled upon by a board of registration or this court may be challenged.

While this appeal is not concerned with the application of the words “any legal voter,” as used in § 11-23, to a person whose right to be or remain registered as a voter is in question, we shall briefly touch upon it in order to round out our consideration of the meaning of those words. As we noted earlier in this opinion, such person does not come within the literal meaning of those words. But, clearly under every concept of an orderly judicial process, if any person ought to have the right of appeal from an adverse board ruling to this court, it is the person ruled against by the board with respect to his right to be or remain registered as a voter. We think that the right of appeal of such person may be preserved by interpreting those words to mean any person who claims the right to be registered as a legal voter.

The problem of interpretation presented in this appeal is one in which the rule so succinctly stated in the following language of Clayton v. Colorado & Southern Railway Co., 51 F. 2d 977, is applicable:

“The primary rule in the construction of statutes is to ascertain and give effect to the intent of the legislative body. * * * Where the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, resort must not be had, ordinarily, to rules of construction, but the statute must be given its plain and obvious meaning. * * * Where, however, the language is of doubtful meaning, or where adherence to the strict letter would lead to injustice or absurdity, or result in contradictory provisions, it devolves upon the court to ascertain the true meaning. * * * The general design and purpose of a statute should be kept in mind and its provisions should be given a fair and reasonable construction with a view to effecting its purpose and object. * * *

“It frequently happens that the true intention of a legislative body is not expressed by the language employed in a statute, when literally construed. In such cases, the intent of such legislative body can only be effectuated by a departure from the literal interpretation of the language employed. When such intention is clearly discernible from the provisions of the statute when considered as a whole, the real purpose and intent of the legislative body will prevail over the literal import of the words employed. * * *”

Bertram T. Kanbara, Deputy Corporation Counsel, City and County of Honolulu (Norman K. Ghung, Corporation Counsel, with him on the briefs), for appellant. Louis Le Baron (also on the briefs) for appellee.

(Asterisks indicate omission of cited authorities.)

We applied such rule in Chang v. Meagher, 40 Haw. 96. If the rule is applied in this case, then the clerk will not be included within the meaning of the words “any legal voter,” as used in § 11-23, and those words will mean any applicant for registration as an elector who has been ruled against by the board of registration with respect to his right to be registered; any registered elector whose right to remain registered has been challenged and who has been ruled against by the board with respect to such right; or any qualified elector who has challenged the right of a person to be or remain registered as an elector and who has been ruled against by the board with respect to such challenge.

Order will be entered dismissing the instant appeal for want of jurisdiction.