The provision of the statute under consideration is that "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." It may be assumed for the purposes of this case that in so far as the statute seeks to prohibit loitering "in any public place" other than a public street or highway, it is unconstitutional, for the provision in that respect is severable from the remainder. "It is elementary that the same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected." 36 Cyc. 976. "The invalidity of a portion of a statute will not defeat the whole act if the unobjectionable part is separable, complete and capable of enforcement." Territory v. Hoy Chong, 21 Haw. 39. It is not necessary to the application of this rule that the legislature should have expressly declared in the statute that if any part is found to be unconstitutional it wishes the remainder to be regarded as constitutional.
Moreover, the defendant in the case at bar is not affected by any supposed unconstitutionality of the prohibition against loitering in public places other than streets. The sole charge against him is that he loitered in a street. A contention that the statute is unconstitutional will not be listened to by courts when it is presented by one whose interests are not affected by the alleged unconstitutional provision. Territory v. Miguel,18 Haw. 402; In re Craig, 20 Haw. 483; Wilder v. Colburn,21 Haw. 701. The question then is narrowed to the inquiry whether a *Page 465 statute passed by the legislature declaring it to be a misdemeanor for any person to "habitually loaf, loiter and/or idle upon any public street or highway" is unconstitutional.
All laws passed by the legislature are presumed to be constitutional. Any doubts should be resolved in favor of their constitutionality.
Streets are primarily intended for purposes of travel, for moving traffic, with only such reasonable interruptions as are required for purposes of business or of pleasure. Other places are provided, out of the public treasury as well as by private enterprise, for habitual and long-continued pursuit of idleness, recreation and rest. There can be no doubt that in the exercise of the police power the legislature may regulate and restrict traffic on streets, by pedestrians as well as by vehicles, so as to ensure the use of streets for those purposes only for which they were acquired and constructed at the public expense. It is conceivable to me that the enactment of this statute was due to the belief on the part of the legislature that thereby the public safety, tranquillity and happiness would be aided and fostered; that thereby evil-disposed persons intending to commit offenses such as picking pockets, procuring and larceny would be hampered in their nefarious designs; that vagrants would be thereby encouraged to seek lawful occupations; that in times of strikes not only would the strikers be thereby encouraged to seek other work, but that the possibility of rioting and other disorders would be thereby lessened; that all loitering, even in its incipiency as to numbers, tends towards obstruction of lawful traffic, pedestrian and other; and that at times it becomes offensive and a nuisance to law-abiding persons seeking the ordinary use of highways to encounter habitual loafers, whether singly or in groups, on the sidewalks or in the main part of the street. Such considerations as these, it *Page 466 seems to me, bear some reasonable relation to the remedy created by the statute. They constitute reasonable cause for its enactment. It is for the legislature alone to determine whether the conditions exist to meet which the restrictions of the statute are imposed.
Nor can law-abiding citizens, as it seems to me, complain that this is an unreasonable restriction of their liberty, — their liberty, it must be under the contention of the defendant, to loiter, to idle and to loaf habitually on our streets and on our sidewalks. Laws are often passed, equally binding upon the good as well as upon the bad, which constitute some restriction upon what otherwise would be the rights of those whose intentions are all good and non-criminal. A familiar example is to be found in the requirements of statutes or ordinances relating to vehicular traffic. Boulevard stops must be made, irrespective of whether the streets are wholly free from other traffic for two blocks in every direction. They must be made irrespective of whether the particular motorist is consistently careful and watchful at street corners as well as elsewhere. It is deemed safest and best for all concerned to require such stops at all times and under all circumstances. Similarly it may be deemed safest and best for the legislature to prohibit all habitual loitering and loafing on the streets, even though some of it may be innocent and harmless. I am unable to regard the legislative act as being so devoid of reasons to support it as to constitute an unreasonable restriction of the liberty of good citizens.
Authorities on the subject are very rare. Pinkerton v.Verberg, 78 Mich. 573, cited by the majority, was an action for damages for assault and illegal arrest. The defendant, a policeman, had arrested the plaintiff upon the suspicion that she was a street walker. There was no statute on loitering. The only statute given consideration by the *Page 467 court was one specifying the circumstances under which an arrest could be made without warrant. The case was regarded by the court as a glaring one of an officer making an arrest for the sole reason that the plaintiff had given him "some sauce." The decision of the court simply was that there was no reasonable cause for the arrest.
In St. Louis v. Gloner, 210 Mo. 502, the only other case cited by the majority, there was an ordinance on loitering, but it was not required thereby that the prohibited loitering should be habitual. As testified by the officer making the arrest, the defendant was in reality arrested because he was "picketing," that is, "standing around corners and requesting men not to take strikers' places." An important consideration, evidently, in the minds of the court was that picketing was not unlawful and several cases were referred to in the opinion in support of that view. The case is to a certain extent an authority in favor of the defendant in the case at bar, but its reasoning to me is not persuasive. The court remarked that under the ordinance then under consideration it was "as much an offense to stand or loaf around upon the corner of one of the streets in the city for five minutes as for two hours or more, time not being an ingredient of the offense." In the case of our statute an occasional loafing or loitering is not prohibited. It is only when those acts are committed habitually that they come in conflict with the law. The writer of the note to the Gloner case, reported also in 15 L.R.A., N.S., 973, makes this comment: "A search has disclosed little authority upon this question, and no other case has been found where it was contended that such an ordinance was unconstitutional as an invasion of personal liberty."
In Commonwealth v. Challis, 8 Pa. Super., 130, 132, 133 (1898, by a court composed of eight judges), the ordinance prohibited the obstruction of streets and sidewalks *Page 468 by persons "idly standing, loafing or congregating thereupon" and therefore differed from our statute in the requirement that the loafing should be such as to obstruct the streets. In spite of this difference, however, the opinion rendered is enlightening in suggesting some of the reasons that may have moved the legislature in the enactment of our statute. The court said: "The evil aimed at by the ordinance in this case is a common nuisance to the citizens who are obliged to pass and repass where idlers and loungers congregate and obstruct the public sidewalks. The right of the public on the highways is limited to the right of passage with such stoppage as business or necessity may require. All lounging or other obstructions thereof may be abated and the offenders in this respect punished summarily for their contumacy. `The public possess in a public highway the right of transit and of transit only. The use by every citizen of public ways must be a use appropriate to the purposes for which they are intended; that is, of transit; with such stoppages as business necessity, accident or the exigencies of travel, either in vehicles or on foot, may require. * * * It is upon this general principle that the infamous habit of corner lounging, when not prohibited by special local legislation, is illegal. The loungers who occupy the public highway are, while lounging, not using it for the purposes of passage, and are therefore obstructions of the public right of way — that is, nuisances.' Norristown v. Moyer,67 Pa. 355. * * * The sidewalks and the carriageways are under municipal control and in the use of them the authorities may determine what is best calculated to promote the security, the comfort and the convenience of the inhabitants."
In my opinion the statute is constitutional and the demurrer should be overruled. *Page 469