
    REPUBLIC OF HAWAII v. JOHN D. PARIS.
    Appeal eeom Disteict Couet, South Koha, Hawaii.
    Submitted December 23, 1896.
    Decided January 19, 1897.
    Judd, C.J., Feeae and Whiting, JJ.
    Tbe statute which directs that the Board of Education shall make a complete census of the inhabitants, showing the number of inhabitants in each district, the number of each sex, such other particulars as the Board may direct, and the increase and decrease of the population, does not authorize the Board to make a census of the wealth of the inhabitants.
   OPINION OP THE COURT BY

JUDD, C.J.

Tbe defendant was convicted in tbe District Court of Sontli Nona, Hawaii, of tbe offense of refusing to answer certain questions propounded to him by an agent of tbe Board of Education, alleged to be relating to or necessary for tbe making, of a complete census, as of tbe 27th day of September, 1896, in violation of Section 7, Chap. 79 of tbe Penal Code, as amended by Chap. 17 of tbe Laws of 1878.

Tbe law as it stood when tbe census of 1896 was taken is as follows:

“Section 41. It shall be tbe duty of tbe Board of Education, every sixth year, counting from tbe year 1860, to make a complete census of tbe inhabitants of tbe kingdom, to be laid before tbe king and legislature for their consideration; every census shall comprise, in distinct columns, tbe number of inhabitants in each, district, the number of each sex, and such other particulars as the Board of Education may direct, and shall show the increase or decrease of the population.
“Section 42 (as amended). To enable the Board of Education to carry into execution the design of the last preceding section, relating to the census, it is hereby authorized to make, through its agents, all proper and necessary inquiries. And all persons are hereby required, under pain of a fine not to exceed fifty ($50) dollars, to be imposed by any police or district justice, to answer to the best of their knowledge all such questions as shall be propounded by the agents of the Board, relating to, or necessary for, the making of a complete census/'’

The defendant made return on the blank furnished him, stating his name, age, sex, nationality, occupation and religion, and that he was a voter, and the same particulars as to the members of his family and an employe living in his residence. But he declined to fill the blanks in response to the questions how many head of cattle, horses, mules, donkeys, working oxen, sheep, pigs, goats and milch cows he owned; also the material with which his house was constructed, how roofed, how many rooms it contained, including kitchen. On conviction he appealed to this court on points of law, among them that the law did not require him to answer any questions as to his property, but only those respecting his person and his family, as to age, sex, nationality, <&c., and these he had answered. The other points of appeal we do not find it necessary to decide, and so assume for the purposes of this case that the particulars required by the census blank were authorized by the Board of Education, and that the sub-agent who delivered the blank to the defendant and required him to make full return thereon was duly qualified to act.

It is contended by the Attorney-General on behalf of the government that the questions defendant refused to answer (being those as to his ownership of property and its amount) were fairly “relating to and necessary” to the making of a complete census. The defendant’s counsel contends that the law requires only “a complete census of tbe inhabitants of tbe Republic,” and tbat tbe particulars specifically required are only tbe number of inhabitants in each district, tbe number of each sex, and tbat tbe census shall show tbe increase or decrease of tbe population. And as to tbe other particulars required by tbe blank which defendant declined to answer, they were not analogous or germane to any required by tbe law, and bad no reference to nor were they necessary to tbe making of a complete census of tbe inhabitants.

This statute is not strictly a penal statute. It does not punish a malum in sé, and has for its object the useful public purpose of securing statistics; yet it is for tbe purposes of this case a penal statute in tbat it imposes a penalty upon those who do not comply with its provisions. Tbe provisions, therefore, which affect tbe defendant must be strictly construed. We remark tbat tbe questions required by tbe blank to be answered are not claimed to be frivolous or vexatious, and tbe answers would afford matter for interesting statistics, but tbe question before us is whether under tbe law they must be answered by tbe individual inhabitant, and in case of bis refusal subject him to a fine. Do these refused questions relate to or are they necessary to tbe making of a complete census of tbe inhabitants?

In our case no details are in express terms required, except tbe enumeration of tbe inhabitants of each district, tbe sex of each— tbe declared object being to ascertain if tbe population is increasing or decreasing. All other details are left to tbe discretion of tbe Board of Education. Tbe dictionary definitions of tbe word census are, we think, given in view of tbe statutes in other countries which generally require information as to tbe wealth of tbe inhabitant, its amount and character; and so, for example, Webster defines tbe word “census” to mean “an official registration of tbe number of tbe people, tbe value of their estate, and other general statistics of tbe country.” Tbe word “census” is derived from tbe Latin “censere,” to reckon. But neither the dictionaries nor tbe reported cases, so far as we know, have •undertaken to define what particular enquiries are properly relative to or necessary in order to make a complete census of the inhabitants. Being thus left to our judgment as to what questions are germane to the general object of a census of the inhabitants, we should say that such as appertain to the individual are germane, as the sex, age, nationality, &e. These are strictly particulars appertaining to the individual. "Without some expression in the law requiring an exhibit of the wealth of the individual, it would be unsafe to go farther and punish him for not exhibiting it in full detail. But these particulars are not descriptive of the individual inhabitant. They only express his relation to material things. A census of the inhabitants would be complete without these particulars.

Attorney-General Smith, for prosecution.

Thurston & Stanley, for defendant.

We do not find the law broad enough to authorize the Board of Education to require them, and therefore sustain the appeal and quash the conviction.  