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 Anduha 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 Anduha *Page 460 did at Honolulu, City and County of Honolulu, Territory of Hawaii, for 14 days last past prior to and including the 8th 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 power is not plenary and that one of its limitations is that the regulations and inhibitions imposed must be reasonably necessary to the public welfare and not inconsistent with fundamental rights that are common to all. Streets and highways are intended to facilitate travel from one locality to another and to promote the comfort and convenience of those who 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, whether 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 welfare is imperiled may be prohibited by legislative enactment. If *Page 461 this had been the kind of loitering, idling or loafing forbidden by the statute we would have a different question. The statute before us is much more sweeping than this. It makes it a misdemeanor to habitually loiter, loaf or idle, under any circumstances, in any of the places mentioned, whether such conduct interferes with the rights of others or imperils the public welfare. All loitering, loafing or idling on the streets and highways of a city, even though habitual, is not necessarily detrimental to the public welfare nor is it under all circumstances an interference with 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 which 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 highways. In their pursuit of happiness, which is a guaranteed right, they loiter before shop windows, 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 with 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 who, taking advantage of the leisure they have on the Sabbath, habitually go for long hikes along the public highways. 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, who *Page 462 have reached 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 isCity 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 was 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 way that interferes with the personal liberty of the citizen as guaranteed to him by our constitution and laws. Under this ordinance it is just 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, and this, too, regardless of the fact that the offender may not during that time impede the passage of other pedestrians or otherwise interfere with the rights of others. The defendant *Page 463 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, whatever 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 has such 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 laws, consists of the right of locomotion, — to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only in their persons, but in their safe conduct. The constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law." The principles announced in these cases are entirely applicable to the instant case though there is a difference in the facts.
The decision of the circuit court is affirmed.