TRUK STATE COURT
APPELLATE DIVISION
Cite as Mensior Davis v. Fanapanges Municipality,
3 FSM Intrm. 495
(Truk S. Ct. App. 1988)

[3 FSM Intrm. 495]
 
MENSIOR DAVID,
Appellant,

v.

FANAPANGES MUNICIPALITY, SANTA SONGENI,
Magistrate of FanapangesMunicipality;
YOMI EIPON, Police Chief of Fanapanges Municipality;
& NUKAS PAULUS, Judge ofFanapanges Municipality,
Appellees.

APPEAL CASE NO. 20

UPON CERTIFICATION FROM THE
SUPREME COURT OF THE FEDERATED
STATES OF MICRONESIA, TRIAL
DIVISION, TRUK STATE, CIVIL
ACTION NO. 1987-1026

OPINION
 
Decided June 21, 1988

Before:
Hon. Soukichi Fritz, Chief Justice, Truk State Court;
Hon. Keske Marar, Associate Justice, Truk State Court;
Hon. John Petewon, Associate Justice, Truk State Court.

APPEARANCES:
     For the Appellant:           Joel Jasperse, Esq.
                                               MLSC, Truk
                                               P.O. Box D
                                               Moen, Truk 96942

     For the Appellees:          Jeanne H. Rayphand, Esq.
                                               Attorney General's Office
                                               State of Truk
                                               Moen, Truk 96942

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HEADNOTE
Statutes
     Unchartered and unincorporated municipalities in Truk State have authority to enact curfew ordinances as long as they do not conflict with Truk State laws. David v. Fanapanges Municipality, 3 FSM Intrm. 495, 497 (Truk S Ct. App. 1988).

[3 FSM Intrm. 496]
 
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COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:

Background
     The issues before this Court derive from FSM Supreme Court Trial Division (Truk) Case No. 1987-1026.  The plaintiff, Mensior David, was convicted in municipal court on March 31, 1987, of violating the Fanapanges Island, Truk State, curfew ordinance and was sentenced to serve six (6) months in jail and to pay a one hundred dollar ($100.00) fine.

     Plaintiff served his six month jail term and upon release was ordered to pay the $100.00 fine or risk further incarceration, if the fine was not paid.

     On December 14, 1987 the Trial Division of the FSM Supreme Court in  Truk issued an order temporarily restraining defendants from enacting the sentence imposed upon the plaintiff and prohibited the Fanapanges Municipal Judge from taking any further action against the plaintiff in regard to the enforcement of the curfew ordinance.

     The FSM Supreme Court Trial Division (Truk) permanently restrained defendants, on December 29, 1987, pending final resolution of the matter. Additionally that order contained a stipulation by both parties to the deletion from the complaint of all references to the Truk State Charter.

     The Trial Division of the FSM Supreme Court in Truk determined that the issue of the Fanapanges Municipality's authority was a legal question "more properly settled by the courts of Truk State than by this Court."  The FSM Supreme Court Trial Division ordered certification of that issue to the Appellate Division of the Truk State Court in the interest of "promoting good federal and state relations, and in the provision permitting certification of issues from the states to the Supreme Court (under authority of) FSM Constitution Article XI, section 8."

     The issue properly before this Court by the FSM Supreme Court certification order and by the consent of both parties is:

Whether Fanapanges Municipality, unchartered and unincorporated, has authority to enact the curfew ordinance?

     The plaintiff presents the argument that because Fanapanges was not incorporated and had no municipal charter of existence at the time it enacted the curfew ordinance, that Fanapanges did not have authority to enact the curfew ordinance.

     The defendants argue that the laws in effect in Truk, both at the time

[3 FSM Intrm. 497]

of the enactment of the curfew law in 1961 and at the present time, do not require that a municipality be chartered or incorporated in order to adopt ordinances. The defendant additionally asserts that the laws permit a municipality to be chartered or incorporated, and recognizes the existence of unchartered or unincorporated municipalities, and that Fanapanges had and still has authority to enact the curfew ordinance.

Court's decision
     The appellate division of the Truk State Court holds that the unchartered and unincorporated entity known as Fanapanges Municipality has authority to enact the curfew ordinance.

Reasoning
     The socioeconomic and political maturity of all islands in Truk State have not uniformly progressed at the same rate of development.  This varying rate of development has resulted in only some of the islands in the state attaining the status of chartered municipality.  Other islands with smaller populations and little or no commercial or economic development have not yet obtained the level of self-government and do not possess a charter.

     The lack of a charter, however, should not prohibit a populated island from enacting a curfew ordinance as long as such an ordinance does not conflict with Truk State laws.

     In arriving at this decisions this court has taken cognizance of our constitutional mandate that, "Court decisions shall be consistent with this Constitution, Micronesian customs and traditions and the social and geographical configuration of Micronesia."  FSM Const. art. XI, 11 (emphasis added).
 
     As this court has not been called upon to consider corollary issues inherent in the application of an enacted ordinance any such infirmities which may be present are therefore not addressed by this tribunal.

     So ordered the 21st day of June, 1988.

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