[With dispatch No. 14 of November 9, 1898.1

In the supreme court of the Hawaiian Islands, September term, 1898.

LINCOLN D. SPENCER

v.

F. B. MCSTOCKER, COLLECTOR-GENERAL OF CUSTOMS.

Mandamus.

Submitted September 30, 1898; decided November 4, 1898.

Judd, C. J., Whiting, J., and R. D. Silliman, esq., of the bar, in place of Frear, J., absent.

(1) Upon the refusal of the collector-general of customs to register a vessel under Chapter XXXII, Laws of 1898, the applicant may apply to a judge of the circuit court for a writ of mandamus directing that registry of such vessel Le made. Such application is not a suit upon a claim against the Hawaiian government, and the circuit judge has jurisdiction of the subject-matter thereof.

(2) The registry of vessels is a domestic privilege conferred upon Hawaiian citizens by municipal legislation of the republic, and is not inconsistent with the joint resolution accepting the cession of the Hawaiian Islands, nor contrary to the Constitution nor any existing treaty of the United States. Opinion of the court by R. D. Silliman, esq.:

This is an appeal from a pro forma decree of the first judge of the circuit court of the first circuit sustaining a demurrer to the applicant's petition for an alternative writ of mandamus and dismissing the alternative writ issued thereon September 22, 1898. The petition shows that Lincoln D. Spencer is a native-born citizen of the republic of Hawaii; that on July 2, 1898, he became sole owner of the ship Star of Italy by purchase; that on the same day a certificate of temporary Hawaiian registry of said vessel was issued by the Hawaiian consul at Seattle, in the State of Washington; that on August 3, 1898, formal application was duly made by said Spencer to the collector-general of customs at Honolulu for registry as an Hawaiian vessel, and that the required oath of the owner and the bill of sale setting forth how said vessel was acquired were included in the application; that said application was refused by said collector-general of customs because he was of the opinion that no Hawaiian registers could at that time be issued. The petition further alleges that the said vessel was at the time of filing said petition in the port of Honolulu, and that all the requirements of the Hawaiian laws and of the office of the collector-general of customs were duly complied with, and that plaintiff has no adequate remedy at law.

The grounds of demurrer are: (1) That the court has no jurisdiction of the subject-matter of the action, the same being a claim against the Hawaiian government; (2) that there is a defect of the party defendant; and (3) that the petition does not state facts sufficient to constitute a cause of action.

Upon the argument the second ground was waived, except in so far as it was included in the first. We are of the opinion that the application for a writ of manda mus was the applic nt s only proper and adequate remedy upon the facts alleged in the petition. The judges of the circuit courts in ch mbers have authority to issue writs of mandamus directing public officers to fulfill any of the duties attached to their offices or which may be legally required of them. An officer of the government has declined to do an act alleged to be attached to his office and that may be legally required of him: and it is further shown that the refusal of such officer to do such act constitutes an injury for which the applicant has no other remedy. Manifestly if the petition sets forth a sufficient cause of action, the applicant is entitled to the writ, unless Act XXXI of the laws of the republic, session of 1895, takes from the circu t court jurisdiction to issue the writ against the collector-general of customs on his refusal to grant an application for a vessel register. The defendant contends that this application for a writ of mandamus is a suit on a claim against the Hawaiian government, and so out of the jurisdiction of the judges of the circuit court. Act XXXI of the laws of the republic of 1895 (Civil Laws, 1897, p. 590) is a remedial statute enacted to avo d the injustice of the doctrine that a State can not be sued in its own courts without its consent. It does not extend to any causes involving an investigat on of equitable rights nor to any claims arising under the revenue laws as are particularly specified. (See Garland v. Ralston, Federal Practice, Chapter XVI, section 377, et seq., where there is a full discussion of a similar act of the United States Congress.) We are of opinion that the cause of action stated in the petition does not come within the purview of the statute.

The third ground of demurrer rests upon the assumption that the republic of Hawaii has ceased to exist as an independent nation; that it has no national flag, and no authority to register vessels and issue certificates of such registration.

This government, by treaty negotiated at Washington June 16, 1897, tendered to the Government of the United States of America ali rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and the absolute fee and ownership of all the public government or crown lands, public buildings or edifices, ports, harbors, military equipments, and all other public property of every kind and description belonging to this government, together with all rights thereto belonging. This tender was accepted on the 6th day of July, 1898, by the United States Government in the form of a joint resolution of Congress, popularly known as the Newlands resolution. The cession of this Government was accepted, ratified, and confirmed, and the Hawaiian Islands and their dependencies were by said resolution declared to be a part of the territory of the United States and subject to the sovereign dominion thereof. It was further resolved that until Congress provided for the government of the islands all the civil, judicial, and military powers exercised by the officers of the existing Government should be exercised in such manner as the President of the United States should direct, and the President was given power to remove any officers and fill the vacancies so occasioned. Existing treaties of the Hawaiian Islands with foreign nations were declared determined, and it was provided that the municipal legislation of the Hawaiian Islands not enacted for the fulfillment of the treaties so extinguished and not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor any existing treaty of the United States shall remain in force until the Congress of the United States shall otherwise determine." The existing customs relation of the islands with the United States and other countries was not changed. These are all the provisions of said resolution that are material to the decision of this appeal.

6.

On August 12, 1898, the formal raising of the flag took place, and President McKinley, through the American minister, Harold M. Sewall, directed that the powers of the officers of the existing Government should continue vested in such officers, but requiring an oath of allegiance to the United States; and further directed, in language similar to that of the resolution, that the municipal legislation of Hawaii should remain in force till the Congress of the United States should otherwise determine.

Until the resolution of July 7, 1898, was signed by the President of the United States the Republic of Hawaii possessed all the attributes of sovereignty, and held an acknowledged rank among all nations as an independent Republic. On the consummation of annexation all the rights of sovereignty were relinquished by the Republic and granted to the United States. But these powers could not be enforced by the Federal Government without special legislation for that purpose, and therefore, during the period taken by the Federal Government to periect a new system, all the functions of government remain to be exercised by the existing Republic. On August 12, 1898, the Government at Washington undertook to conduct all dip omatic intercourse in behalf of the Republic of Hawaii and assumed the respons.bility of its relations with foreign powers, but this is as far as it has extended its system over these islands. All the other rights and duties of an independent state must be enforced through the machinery of government established here and in operation on that day. It was so held in Republic of Hawaii v. G. L. Edwards (XI Hawaiian).

Prior to July 7, 188, any citizen of the Republic of Hawaii might have purchased a vessel, and on complying with the requirements of law have had the same registered as an Hawaiian vessel, and thereupon have procured a license and engaged in coasting or interisland trade, and without obtaining such registry such license could not be obtained, and without such license any vessel engaging in coasting trade was liable to seizure, cont scat on, and sale for the benefit of the Republic. (Civil Code, p. 16.) Defendant contends that this right passed away when the Hawaiian flag was lowered and replaced by the American flag, on the ground that the Republic of Hawa i thereupon ceased to exist as an independent nation, and without separate nationality can not issue certificates of registry to seagoing vessels. In international law ownership is the basis on which the nationality of a vessel rests. The ownership is evidenced primarily by the bill of sale. but a certificate of a consul that the vessel is owned by one of the subjects of the country he represents or a like ce tificate by the proper executive officer of such country will be accepted as a sufficient assurance of her nationality. (3 Wharton's International Law Digest, sec. 410.)

Foreign-built ships are not entitled to the municipal privileges given by statute to registered vessels of the United States, but that they are entitled to the s me protection from the Government when owned by American citizens was declared by Thomas Jefferson in 1793 and has been conceded ever since.

The privileges conferred upon registered vessels are conferred exclusively by

legislation. They do not arise by virtue of the law of nations, but rest wholly on municipal enactment. Whatever may be the extraterritorial standing of registry acts, they are within the limits of the country enacting them the law of the land, if constitutional.

It is not an essential prerequisite to the registry of the vessel that the minister of foreign affairs communicate to the collector-general of customs the reply of an accredited representative or consul of the nation to which the vessel formerly belonged as to the existence of an impediment. If there is no such representative or consul, the statute does not require it, and if there is, his certificate would be the mere expression of his opinion and of no more value than his certificate of any other fact. (Church v. Hubbard, 2 Cranch, 187.)

We are of opinion that the registry law is municipal legislation and is not inconsistent with the Newlands resolution. We are also of opinion that it is not in violation of the Constitution of the United States or any of its treaties. Our attention has not been called to any American treaty that will be violated, and we know of none that can in any way be affected by the granting of the registry applied for. The Constitution of the United States provides that Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes. But this does not prohibit the existing government of newly acquired territory from enforcing municipal legislation regulating its commerce until such time as the Congress of the United States shall provide needful legislation in place thereof. Congress has always recognized this right in the existing government of a Territory, but it has also so framed its subsequent legislation that no evasion of the American registry laws may be effected thereby. As an illustration, the Territory of Alaska was acquired from Russia by treaty negotiated March 30, 1867. July 27, 1868, Congress passed a law providing that the Secretary of the Treasury was authorized to register all vessels owned by actual residents of that Territory on June 20, 1867, and which continued to be so owned up to the date of such registration. (See Macfarlane v. Collector of Customs, XI Hawaiian, 166.)

The demurrer should be overruled.

A. F. JUDD.
W. AUSTIN WHITING.
R. D. SILLIMAN.

Kinney & Ballou for plaintiff; Deputy Attorney-General E. P. Dole, esq., for defendant.

APPENDIX N.

BOARDING OF VESSELS.

The following are extracts from reports received from United States shipping commissioners and other officers of the Treasury concerning abuses which have arisen under the practice of boarding vessels in the stream before the vessel has been docked or come to the place of anchorage from which its cargo is to be discharged: When not otherwise specified, the reports are from shipping commissioners:

San Francisco, Cal.-It is a common occurrence at this port for runners for sailor boarding houses to board deep-water vessels in the stream and bring sailors on shore. The masters of British and American vessels encourage these runners. On British vessels, when the seamen leave in the stream, they are entered in the log book as deserters and their wages are forfeited to the ship. It is the custom at this port that when seamen leave an American ship before she is docked to charge them $2.50 for docking. The articles read that the seamen shall stay by the ship until the sails are unbent and she is properly moored to the wharf. When they leave the vessel they are told by the master that they will be fined $2.50. They are willing to pay the fine for the privilege of getting ashore, even if it be but a day before the vessel is docked. The master represents at this office that it has cost the full fine to dock his vessel; but there is no doubt that the vessel makes money out of the transaction. After a long voyage the sailor is eager to get ashore. It requires no persuasion on the part of the runner to get him into his boat, and the master offers no objection.

San Francisco, Cal. (surveyor).—The arrivals of vessels from foreign ports number about 1,000 annually (deep-water vessels). I have to state in connection with this that it is absolutely necessary for the boarding officers to board vessels upon their arrival to intercept smuggling, examine the ship's papers, and seal

down the openings and hatchways; to watch aggressive runners for sailors' boarding houses, provision solicitors, and miscellaneous private persons that make one pretext or another as a claim to go on board. The evils that result in this privilege being allowed are numerous. It has been discovered in a number of instances that these so-called runners were advance agents for smugglers or conspirators in attempts to land Chinese, particularly from Honolulu and Victoria, B. C., in violation of the Chinese exclusion act, especially Chinese women (carrying letters or giving verbal information to enable them to deceive in their endeavor to be landed). The incentive to the crews of vessels to smuggle merchandise, inspired by the runners for sailors' boarding houses and others locally known as 'bay pirates," is very great. The result of it is they inveigle the sailors to smuggle, to wit, opium, liquors, silks, cigars, cigar wrappers, cloth for clothing, silk handkerchiefs, elaborate Chinese and Japanese silk embroidery, diamonds, laces and made-up clothing, and tea.

66

New York.-It is the general custom, almost invariably with the master's sanction, for the runners employed by the proprietors of sailors' boarding houses to board incoming vessels at quarantine station, after the inspection of the vessel by the quarantine officials, and solicit the patronage of the sailors for the houses represented by the runners. In the case of vessels going above the bridge, where it is necessary to strike the topgallant masts, also of vessels laden with sugar, that usually lay at anchor two or three days waiting for orders, more or less of the seamen are taken ashore by the aforesaid runners. This, however, is usually, if not always, done with the consent of the master, and an amount not exceeding $2.50 is deducted from the wages of the seaman so absenting himself. This applies particularly to American and British vessels, as the American vessels are paid off here, and the seamen of British vessels, who have signed for a longer voyage, are usually permitted, if they so desire, to leave their vessel at this port by relinquishing one month's pay. The British consul sanctions this arrangement in all cases. As to the evils involved in runners boarding the vessels before docking, I can not determine that it makes much difference which set of runners for sailors' boarding houses first secure the ear of the seamen. It is largely a matter of business. The more enterprising men send their runners down to quarantine; the others have their runners at some more convenient point. In the end the seamen find their way to the boarding houses, which are, I am told, conducted more fairly and much better than formerly. I have no doubt that in some cases seamen on British vessels, who have little or nothing due them on their arrival at this port, are persuaded by the runners to desert and are assisted in so doing, the object being to ship them again as speedily as possible and share in the advance money paid to them ostensibly, but in reality to someone else.

Boston.-Referring to your letter of 18th instant relative to boarding vessels, would say that vessels arriving at this port from foreign voyages are always boarded. The evil that is created thereby is chiefly one of drunkenness, the runner in nearly all cases supplying the sailor with liquor. The men become drunk, so that they can not perform their duty, and often leave the vessel in the stream; and when they are paid off the master presents a charge against them for docking ship, and in many cases the seaman, after being treated by the runner, goes to the master and offers to pay from $1.50 to $2 out of his wages for docking if they can then go ashore in the runner's boat.

Baltimore (collector).—This practice has been looked upon at this port as an evil that should be mitigated, but in the absence of any statute law prohibiting the practice, except in the case of passenger vessels (sec. 9, act of August 2, 1882), we have been powerless in the premises. Runners for boarding houses are not by any means the only offenders, as nearly every business house that deals in ship supplies of any kind now have their runners, and the competition has been so sharp that vessels are boarded as far down the Patapsco River as Annapolis Road (20 miles). Aside from the possible interference of the proper working of the ship by these intruders, the danger to public health, in the case of an infected ship, is very alarming.

Philadelphia. The sailors' boarding-house runners and the clothing-house runners have a small boat and board all incoming vessels in the foreign trade at or about Reedy Island, Government quarantine station, 38 miles distant from Philadelphia. After the quarantine officer has performed his duties in all such cases the consent of the captain is obtained, and I have never had any complaints from either the captains or seamen, though I believe the sailor is charged $2 for the runner's expenses, and the clothing runner is allowed from 25 to 40 per cent for all clothing sold to each sailor upon his arrival ashore.

Mobile.-The practice of boarding vessels before their arrival at their dock or anchorage is pretty well broken in this port. While it lasted it was productive

of evil results. The runners were composed of irresponsible persons, who demoralized crews, defied the laws, and interfered with the proper and effective discharge of duty on the part of the ship's officers as well as the customs officials. No such person should be permitted to board any vessel with dutiable goods until she is completely unladen.

Mobile (special inspector).—The practice is a most mischievous and annoying, even if not a very dangerous, one; for, besides the opportunities which it offers for the practice of smuggling and the perpetration of petty frauds upon the revenue, it is the cause of hampering and delaying the boarding officers in the prompt and efficient examination of the vessel. When I was assigned for duty at this port I found the practice of permitting runners for ship chandleries, butchers, and sailor boarding houses to board incoming vessels before their arrival at their anchorage existed to such an extent that almost every one of such establishments possessed a small sailboat, which was used to transport the runner down the bay, where the vessel could be boarded some hours in advance of its arrival at the city and its inspection by the customs officer. The competition for the custom or trade of these vessels became so sharp that each incoming vessel had numbers of these persons on board at the time of her arrival, and their demands upon the time and attention of the master were so urgent as, in many cases, to prevent his giving to the boarding officer the consideration which his position and duties demanded. I endeavored to remedy this by having the parties cautioned as to the law and notified to refrain from going on board until the customs officer had completed his inspection. But, finding this warning ignored, I caused the first offender thereafter to be arrested, and the collector placed the matter in the hands of the United States district attorney for prosecution. An indictment was returned against the party by the succeeding grand jury, which indictment was quashed by the court for some defect in it, but the purpose for which these proceedings had been instituted was accomplished in the breaking up of the practice, and since that time very little trouble or annoyance has been suffered here from that cause.

Newport News, Va.-For some time past we have been without troubles of this kind. Our officers have strict orders to report any violations of regulations in illegal boarding of vessels in the stream or elsewhere. The principal cause of former trouble was the active and unscrupulous competition for the vessel trade between rival ship storekeepers. This has practically ceased. The boardinghouse runners confine their operations to the ship after arrival at dock. Even this has been broken up in a measure by the inclosure of the docks at this place with a high picket fence and a good force of railroad policemen on guard day and night. The illegal boarding of vessels here had more of a sanitary aspect than otherwisethe danger of infection should there be any disease of that character on board. I have not heard of any sailors' boarding-house runners boarding vessels previous to their being docked.

Galveston.-Vessels in quarantine are isolated and can not be boarded by anyone, and no vessels are boarded until after due permission given by the officers in charge, and after all official business, such as the inspection of immigrants, has been duly executed. In my opinion the statute is a wise one and should be strictly enforced for the protection of the public, as well as for the protection of immigrants and sailors.

Rockport, Me.— We have never been bothered at this port with runners boarding the vessels, but, having seen the effect of it in other places, think it a very bad practice and should be stopped.

APPENDIX ().

MISCELLANEOUS.

The following statements show, first, exports and imports carried in American vessels and foreign vessels, 1821 to 1898, inclusive; second, tonnage of American and foreign vessels from 1821 to 1897 inclusive; third, letter of our consul-general at Honolulu to the Secretary of State concerning Hawaiian navigation: fourth, Proceedings of the International Conference at Antwerp on the Unification of Maritime Law; fifth, British Board of Trade return on coal production.