Macfarlane v. Damon

Opinion op the Court by McCully, J.: Dole, J., Dissenting. The petitioner for the writ of mandamus alleges that the respondent, Samuel M. Damon, is the Minister of Finance, and as‘such has charge of the disbursements of the Public Treasury; that in the appropriation bill for the current biennial period there was appropriated for the payment of His Majesty’s Chamberlain the sum of six thousand dollars. That during said period, to wit, on October 1st, 1888, His Majesty appointed under the great seal of the Kingdom and commissioned the' — 20 — petitioner his Chamberlain, and that the petitioner has since held and now holds the said office of Chamberlain. That on July 23d, 1889, and at other times, your petitioner has requested and demanded of the said Minister of Finance the payment of the said salary, but that he undutifully and unlawfully refused and still refuses to pay the same or any part thereof, alleging as his reason that the Cabinet had not sanctioned the appointment of your petitioner to the office of Chamberlain, and that said appointment does not meet with the approval qf the Cabinet, all of which more fully appears by copies of correspondence annexed. But the petitioner avers that he is His Majesty’s Chamberlain, and entitled to the salary appropriated by the Legislature for that office, and that there is now due to him the sum of three thousand dollars, to wit, two hundred and fifty dollars monthly for the twelve months from the first of October, 1888, to November 1st, 1889. • The petitioner avers his belief that there are now and at all times have been sufficient money in the Treasury from which this salary might have been paid. The respondent makes return, in substance, as follows : 1. He admits that as such Minister of Finance he has charge of the public funds of the Kingdom, and has had at all times during the year last past sufficient funds available to pay the claim of the petitioner. 2. To so much of said writ as commands this respondent to pay to said petitioner the amount appropriated for the salary of His Majesty’s Chamberlain, from the first day of October, 1888, to the 28th day of February, 1889, this respondent represents and shows unto the Court that in an action in this court entitled, “In the matter of the application of George W. Macfarlane for a writ of mandamus, vs. W. L. Green,” the said petitioner did on the 6th day of May, 1889, in and by his petition duly filed, seek the payment from said W. L. Green, the then Minister of Finance, of the sum of $1,250.00 (being the amount alleged by said petitioner to be due to him as salary as such Chamberlain in respect of the time between the dates last aforesaid.) And that on the said 6th day of May, in pursuance — 21 — of said petition, an alternative writ of mandamus was issued out of this Honorable Court to and against the said W. L. Green, Minister of Finance as aforesaid, commanding him to pay to said petitioner said amount of $1,250.00, or to show cause before the Honorable Edward Preston, one of the Justices of this Honorable Court, on the 8th day of May, 1889, why he had not paid said amount. That on the 31st day of May, 1889, said Wm. L. Green, Minister of Finance, as aforesaid, filed in this Honorable Court his return to said alternative writ of mandamus, wherein he did show cause why he had not paid said sum to said petitioner, and did pray that said alternative writ, so issued and directed to him, as aforesaid, be dismissed. And that the said cause having been then and there submitted for the decision of said Justice upon said alternative writ and the return thereto, the said Justice did thereafter, to wit, on the 12th day- of June, 1889, render and file his decision in said cause, wherein and whereby the said Justice did consider and adjudge that the said petitioner had not shown himself entitled to the payment of said salary so claimed by him as aforesaid, and did refuse do issue a peremptory writ against the said Minister of Finance to compel the payment thereof; to the records and files, in which said last mentioned cause, this respondent especially refers this Honorable Court herein, and makes a part of this, his return. 3. And that the judgment of said Justice and Court so rendered on said 12th day of June, 1889, still stands and obtains as a valid and decisive adjudication of the claim of said petitioner to said salary, in respect to the time between said 1st day of October, 1888, and the 28th day of February, 1889, inclusive. 4. And said respondent not waiving the above defense, or any part thereof, but insisting thereon as a valid defense to the alternative writ issued herein, especially as refers to so much of petitioner’s claim herein as was adjudicated as aforesaid, doth further represent unto this Honorable Court, as follows : 5. That he denies that said G. W. Macfarlane was appointed as His Majesty’s Chamberlain on the 1st day of October, 1888, or at any other time, and denies that said George W. Macfarlane — 22 — is or ever has been appointed as such Chamberlain, but states the truth to be as follows : 6. That on the said 1st day of October, 1888, said George W. Macfarlane was absent from this kingdom, and remained continuously absent thereafter for a long period, to wit, about five months, when he returned to this kingdom, until, to wit, the month of October, 1889. 7. And respondent further represents that His Majesty’s Chamberlain is a public officer of the Hawaiian Government assigned for the purposes of said government to personal attendance upon His Majesty and the Royal Household, and as a medium of communication between His Majesty and His Majesty’s ministers, and charged with the supervision of the ceremonies pertaining to the presentation to His Majesty of the officers of foreign governments and of foreign dignitaries, and is in other respects closely attendant upon the person of His Majesty, and necessarily cognizant of many of the private and public concerns of the Sovereign, and of the affairs of the Government. 8. That the character of the Government here existing, and of the Constitution under which we live, contemplate and demand that His Majesty’s Chamberlain should be personally and politically acceptable to the Cabinet of the day, and in order to the validity of the appointment’of any person as such Chamberlain, such appointment should have the sanction and consent of the Cabinet. That it is not contemplated by the Constitution, or by the Act of the Legislature, whereby the salary of such Chamberlain is appropriated, that such salary should be drawn by any person claiming to hold such office if such claim be opposed to the wishes and policy of the responsible ministers of His Majesty for the time being, nor without the consent of the Cabinet. 9. And your respondent further represents that said G. W. Macfarlane has not been appointed to said office of His Majesty’s Chamberlain, and does.not hold and has not held such office, by or with the consent or sanction of His Majesty’s Ministers, or any of such Ministers. And that said petitioner’s pretended — 23 — appointment to said office, if made or attempted to be made, at all, was so attempted to be made by His Majesty personally, without the consent or sanction of His Ministers, or of any of such Ministers, and without any legal authority in His Majesty, in the absence of such consent or sanction, to make such appointment, or to confer upon the said petitioner, by virtue of such pretended appointment, any right to collect or receive the said salary, or any part thereof. 10. And this respondent further represents that during the year next following said petitioner’s pretended appointment to said office, on October 1st, 1888, he, the said petitioner, did not perform the duties of His Majesty’s Chamberlain, or any of them, hut that the said duties were performed by another, to-wit, James W. Robertson, the said petitioner having been during almost all of said year, as hereinbefore described, absent from this Kingdom. 11. Wherefore said respondent respectfully submits that the foregoing constitutes sufficient cause for his not having paid to said G. W. Macfarlane the salary of and pertaining to the said office of His Majesty’s Chamberlain, and prays that said writ so issued and directed to this respondent herein, as aforesaid, be dismissed. The application for the writ was made to the Chief Justice, who made no order, but after argument reserved the matter for. the consideration of this Court upon argument before it. By the Court. In determining the controversy raised by these proceedings, the controlling question of principle is whether the King’s Chamberlain is such an officer as is required to be commissioned to his office in order that his acts therein may be legalized, and whether his appointment requires to he approved by the Cabinet. We adopt here the language of our lamented associate, Preston, in the case referred to in the respondent’s return, of this petitioner vs. Wm. L. Green, the preceding Minister of Finance. He says: — 24 — “It will be necessary in the first place to consider what is the status of the Chamberlain. It is not a statutory office, the duties appertaining to which are defined by law. The statutes creating the office and defining the duties were repealed by the Civil Code in 1859, and until the session of the Legislature of 1864-5 no provision was made for the payment of such an officer, when an appropriation of $5,000 was made for the ‘salary of His Majesty’s Chamberlain and Secretary,’and the appropriation for ‘ Chamberlain and Secretary ’ continued until 1888, when it appears as ‘ Chamberlain ’ only. “The duties of the Chamberlain have been personal to His Majesty, and it is now for the first time, so far as I am aware, and I have had many opportunities from my connection with former governments of knowing, that the right of the government to approve of the appointment has ever been asserted, and it is not suggested by the respondent that it has been. “ The Attorney-General in his brief refers to the practice in Great Britain where such an official would retire with the Ministry, and refers especially to the question which arose early in Her present Majesty’s reign as to the appointment of the Bedchamber Women, and claims that by analogy the same rule should apply here. “ I do not think there is such analogy; the rules regulating the holding of offices in Great Britain and the responsibility of Ministers have been the growth of centuries, and are not and cannot be applicable here according to our constitution. In fact, if the practice obtaining in Great Britain were applicable and in force here, the Court would not have to consider this case, because if His Majesty would not act upon the advice of his responsible advisers in matters in.which they consider themselves responsible, they would have to give -way or resign. “I am of opinion that the office of Chamberlain is personal to His Majesty, and that there is no legal necessity for the appointment to be by commission or in writing, and that it does not require the approval of the Ministers. “Should a person be appointed to the office whom the Ministers consider objectionable, they can exercise some control in — 25 — the Legislature by declining to ask for a vote for the salary.” (6 Hawn., 715.) We may regard it as a crucial test of the requirement of' a commission, to consider whether the acts of the officer are legal or illegal, valid or invalid, as he may be commissioned or not. The statute of 1850, prescribing in amendment certain duties to the Chamberlain, was repealed in 1859, likewise the statute of 1848 providing for his appointment. By this earlier statute it was made obligatory on His Majesty, with the approbation of the Privy Council, to appoint a Chamberlain of the Royal Household, who shall be solely entitled to draw upon the Minister of Finance for all the expenses of the Royal Household, and it shall not be lawful for any person in this Kingdom to debit His Majesty or any other person on his behalf, except the Chamberlain, such debts not to be recoverable at law. No check or draft of the King on the treasury could be paid unless it was countersigned by the Chamberlain, and the Chamberlain might be held personally liable to creditors for expenditures in excess of the stated allowance. The legal inference from the repeal of the statutes which required a Chamberlain to be appointed with the approval of the Privy Council, and which gave him powers and duties, there being no other statutes enacted concerning him, is that the Chamberlain is not now an officer of the law. His office not being established by law, and no duties being prescribed by law, he requires no commission, and he requires no oath of office. Without an appointment by commission of the King, what would there be for the Cabinet to approve of ? Without legal duties, what is there done by him which requires a legal appointment ? What acts of his are made valid by such appointment, and invalid without it ? The clause in the appropriation bill is merely a provision for the payment of a Chamberlain. The item is placed in the civil list, one of the five which constitute that department of the appropriation bill. We see no reason why this should be placed more under the direction of the Cabinet than any of the others. There are allowances to three Royal personages, the fifth is for His Majesty’s household — 26 — expenses. It is not obligatory on the King to appoint a Chamberlain. He might appoint one without this extra provision for salary, paying him out of the grant which he receives for the state and expenses of the occupant of the throne. There is, as we see and are informed, no warrant in the repealed statutes or in the precedents and practice following thereafter for the statement in the seventh article of the respondent’s return, that the Chamberlain is a public officer of the Hawaiian Government, assigned * * * as a medium of communication between His Majesty and His Majesty’s Ministers, * * * or that he is necessarily cognizant of many of the * * * public concerns of the Sovereign, and of the affairs of the Government. The Chamberlain attends no meetings of the King and Cabinet, and has no official knowledge of public business. If he is a medium of communication between the King and the Cabinet, it is as a servant. If he has influence with the King which may be adverse to the policy of the Cabinet, it is only as a friend, and the influence of the King’s friends cannot be controlled. The opinion of the Justices rendered to the Cabinet August 3, 1889, in reply to their request- for a definition of the King’s powers under the Constitution, concludes that “ acts of the King are done upon the responsibility of His Cabinet, unless it appears from express words or by the very nature of the case that the act is of a personal character.” (7 Hawn., 784.) Holding, as we do, that the office of Chamberlain is of a non-political and non-legal character, and the service personal to His Majesty, his designation of the person who shall perform the service is an act of the latter description, and the Cabinet is not responsible for it. The defense of res judicata, set up in the second and third articles of the return, does not stand on the principle which supports such pleas. The plaintiff herein has not had an adjudication against him which he has allowed to become final. He had appealed from the decision of the Justice hearing his application for a mandamus against the then Minister of Finance. Before the case could be heard by the Appellate Court, the Minister, Mr. — 27 — Green, had resigned. It would then have been futile to proceed to obtain a mandamus directing Wm. L. Green to pay money from the Government treasury. It was impossible to substitute Samuel M. Damon in the appellate proceedings inasmuch as he had not made the refusal on which the mandamus was asked. "The plaintiff’s proceedings in the first instance, therefore) terminated without prejudice, and it would be a denial of justice not to allow him to commence again after a demand on the new incumbent, which was refused. See U. S. vs. Boutwell, 17 Wallace, 604. The third ground upon which the payment of the salary is refused, as set forth in the sixth and tenth articles of the return, is that the petitioner has not in fact performed the duties of the office. In this case the petitioner makes replication by affidavit that while absent from the Kingdom he was performing duties for His Majesty, having gone abroad by his command, and that provision was made for the performance of the Chamberlain’s duties near his person by a Vice-Chamberlain whom he pays out of his salary. This is a duplicate or collateral defense, not consistent with the ground that the relator' was not the Chamberlain for the want of a sufficient appointment. In considering whether he performed Chamberlain’s duties, we treat it on the ground that he was duly appointed. Can the Minister of Finance inquire into the performance of the duty of an office by the incumbent thereof and refuse to pay the salary if he judges there has been no performance. The first answer in this particular case of a personal appointment held at the pleasure of the appointing power would be, that if it is satisfactory to him, the Minister of Finance may not examine into the performance of the service. And this rule may be carried further. Could it be claimed that the Minister can pass upon the right to salary of any clerk or other appointee of any of the departments? But the rule extends still further to public officers other than thosp holding at the pleasure of appointing powers, that is to say, to superior officers holding office by commission. It is clearly established that the compensation of an office does not depend on time or — 28 — labor expended in discharging the duties of it, but upon the title to it. The salary follows the title. Any other rule than this would admit an intolerable scrutiny by the Minister of Finance into the measure of the services of every officer in the Government, and the principle legitimately carried out would empower the Minister to make partial payment in proportion to the amount of the service as he should determine it. Not in this way can faithful performance of duty be insured or the omission of it be punished. Paul Neumann and Charles L. Carter, for the relator. C. W. Ashford, Attorney-General, and A. P. Peterson, deputy, for the respondent. People vs. Tieman, 8 Abb., 359. Mayfield vs. Moore, 53 Ill., 428. Com. vs. Bowman, 25 Penn., 23. O’Leary vs. Board of Education, 93 N. Y., 1. Dorsey vs. Smyth, 28 Cal., 21. The writ is ordered to be made absolute. Additional Views of Chief Justice Judd. In addition to the above opinion of the Court I wish to add the following: Article 78 of the Constitution, that prescribes that “whenever by the Constitution any act is to be done or performed by the King or -the Sovereign, it shall, unless otherwise expressed, mean that such act shall be done and performed by the Sovereign by and with the advice and consent of the Cabinet,” has no application to the question whether the appointment of Chamberlain to His Majesty requires to its validity the advice and consent of the Cabinet, for the Constitution makes no mention of the office of Chamberlain. So, also, the statute of 1887, which places a similar construction upon “any act or thing commanded or permitted to be done by the King by virtue of any statute of this Kingdom,” has no application, for the office of Chamberlain is not created by statute. In the absence of any constitutional requirement or statute law, what ought to control in the decision of this matter? The obvious answer is, the nature of the office, its duties and responsibilities, as established by- Hawaiian precedents. These all go to show that the — 29 — Chamberlain has been the business agent of the King. He draws the King’s allowance from the State Treasury, disburses it at His Majesty’s pleasure, officiates at public receptions and Palace festivities and receives the guests, regulates public ceremonies, attends His Majesty on public occasions, and does similar duties, all, however, of the nature of personal service to the King. Until the last appropriation bill the item for salary of Chamberlain has been for “His Majesty’s Chamberlain and Private Secretary,” and with but one exception the two offices have been held by the same person. And although the title, “Private Secretary,” is now dropped from the appropriation for Chamberlain, there is no doubt that the Chamberlain will also discharge the duties of Private Secretary to the King. The Chamberlain has no political function whatever to perform. He is, unlike all other officials, in no department or bureau of the Government. The course has been heretofore to appoint him by virtue of a commission from the King. It is not clear whether this commission has been usually countersigned by a Minister, but it is certain that the King’s appointment of a Chamberlain has, uniformly, with the exception only of the case now before us, been accepted by the Cabinet without question. Much might be said on both sides of the question whether the appointment of the Chamberlain should be the personal act of His Majesty, or be a Cabinet appointment. But the question as to which method would be the wisest is one of policy, a matter of legislative action, and does not come into the present discussion. What we are to consider is the present status of the appointment as found from the precedents of the past history of the country. It has always been a personal appointment by the King. If the law-making body should deem it proper to make it a Cabinet appointment, a statute would accomplish this. Unless there be some statute prescribing the method of appointment, the officers of the Government are appointed by the head of the department whom the official is to serve. An illustration of this is found in the appointment of a short-hand reporter to the Supreme Court, for whose salary an appropriation — 30 — was made. There is no statute creating the office or designating by whom the appointment should be made. The natural inference would be that the Supreme Court, whom the stenographer is tó serve, should select and appoint this official. The analogy holds good as regards the appointment of the Chamberlain. He is to serve the King personally — more so than in the sense that all public officers serve him — the King therefore appoints him.