OPINION OF THE COURT BY
BANKS, J.
(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 Andulia 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 Andulia
did at Honolulu, City and County of Honolulu,. Territory of Hawaii, for 14 days last past prior to and including tlie Sth 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 poAver is not plenary and that one of its limitations is that the regulations and inhibitions imposed must be reasonably necessary to the public Avelfare and not inconsistent Avith fundamental rights that are common to all. Streets and higliAvavs are intended to facilitate travel from one locality to another and to promote the comfort and convenience of those av1io 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, Avhether 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 Avelfare is imperiled may be prohibited by legislative enactment. If
this had been the kind of loitering, idling or loafing forbidden by the statute Ave would have a different question. The statute before us is much more SAveeping than this. It makes it a misdemeanor to habitually loiter, loaf or idle, under any • circumstances, in any of the places mentioned, Avhether such conduct interferes Avith the rights of others or imperils the public Avelfare. All loitering, loafing or idling on the streets and higlrways of a city, even though habitual, is not necessarily detrimental to the public Avelfare nor is it under all circumstances an interference Avith 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 Avhich 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 higlrways. In their pursuit of happiness, which .is a guaranteed right, they loiter before shop AvindoAvs, 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 Avith 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 avIio, taking advantage of the leisure they have on the Sabbath, habitually go for long hikes along the public liigliAvays. 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, Avho
have-readied 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.
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OPINION OF THE COURT BY
BANKS, J.
(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 Andulia 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 Andulia
did at Honolulu, City and County of Honolulu,. Territory of Hawaii, for 14 days last past prior to and including tlie Sth 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 poAver is not plenary and that one of its limitations is that the regulations and inhibitions imposed must be reasonably necessary to the public Avelfare and not inconsistent Avith fundamental rights that are common to all. Streets and higliAvavs are intended to facilitate travel from one locality to another and to promote the comfort and convenience of those av1io 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, Avhether 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 Avelfare is imperiled may be prohibited by legislative enactment. If
this had been the kind of loitering, idling or loafing forbidden by the statute Ave would have a different question. The statute before us is much more SAveeping than this. It makes it a misdemeanor to habitually loiter, loaf or idle, under any • circumstances, in any of the places mentioned, Avhether such conduct interferes Avith the rights of others or imperils the public Avelfare. All loitering, loafing or idling on the streets and higlrways of a city, even though habitual, is not necessarily detrimental to the public Avelfare nor is it under all circumstances an interference Avith 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 Avhich 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 higlrways. In their pursuit of happiness, which .is a guaranteed right, they loiter before shop AvindoAvs, 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 Avith 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 avIio, taking advantage of the leisure they have on the Sabbath, habitually go for long hikes along the public liigliAvays. 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, Avho
have-readied 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 Avas 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) : “While the city has the undoubted right, under its charter, to regulate the use of its streets, it has no right to do so in a Avay that interferes Avith the personal liberty of the citizen as guaranteed to him by our constitution and laAys. Under this ordinance it is just as much an offense to stand or loaf around upon the comer of one of the streets in the city for five minutes as for tAVO hours or more, time not being an ingredient of the offense, and this, too, regardless of the fact that the offender may not during that time impede the passage of other pedestrians or otherAvise interfere Avith the rights of others. The defend-
ant had the unquestioned right to go where he pleased and to stop and remain upon the corner of any street that he might desire, so long as he conducted himself in a decent and orderly manner, disturbing no one, nor interfering with any one’s right to the use of the street. * * *' It is, however, said for the city that ‘John Smith, a member of the public, has no right for his own private purposes, Avhatever 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 liassuch 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.” In the case of
Pinkerton
v.
Verberg,
78 Mich. 573, the court said (p. 584) : “Personal liberty, which is guaranteed to every citizen under our constitution and laAvs, consists of the right of locomotion, — to go Avhere one pleases, and when, and to do that Avhich may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the Avelfare of all other citizens. One may travel along the public liigliAvays or in public places; and Avliile conducting themselves in a decent and orderly manner, disturbing no other, and interfering Avith the rights of no, other citizens, there, they Avill be protected under the laAV,. not only in their persons, but in their safe conduct. The constitution and the laAvs are framed for the public good, and the protection of all citizens, from the highest to the loAvest; and no one may be restrained of his liberty, unless he has transgressed some laAV.” The principles announced in these cases are entirely applicable to the instant case though there is a difference in the facts.
E. R. McGhee,
Deputy Attorney General
(H. R.
Hewitt, Attorney. General, with him on the-briefs), for the Territory.
The decision of the circuit court is affirmed.
II. E. Stafford
(also on the brief) for defendant in error.