In re the Appeal of Cummins

Robertson, C.J. The first point to be considered is that raised by the appellant to the effect that the auditor, having no- personal interest in the money involved in this case, may not raise the question as to the validity of the statute because “the court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect' and who, therefore, has no interest in defeating it.” The principle referred to has been applied by this court in several cases. In the case at bar no constitutional question, strictly speaking, is raised. The contention of the attorney general is that the — 523 — statute is not a “rightful subject of legislation” within the terms of the grant of legislative power contained in section 55 of the Organic Act. Assuming, however, that there is sufficients analogy to warrant the application of the principle the contention will, be considered on the basis upon which it is founded. The question whether a public officer may set up the unconstitutionality of a statute in defense of his refusal to perform an alleged ministerial duty has frequently arisen in mandamus proceedings, .and, as pointed out in 19 Am. & Eng. Enc. Law (2nd ed), 764, the cases are in irreconcilable conflict. In Smith v. Indiana, 191 U. S. 138, 148, the court said, “We have no doubt of the power of the state courts to assume jurisdiction of the case if they choose to do so, although there are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that in his opinion it is repugnant to the Constitution. It is but just to say, however, that the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist. In any event it is a purely local question, and seems to have been so treated by this court in Huntington v. Worthen, 120 U. S. 97, 101.” The cases pro and con are not in accord among themselves in their reasoning. Perhaps a strict rule to apply to all cases should not be laid down as much depends upon circumstances. The attorney general argues that express authority to refuse to audit a claim such as that here in question is given to the auditor by the clause in section 1514 of the Revised Laws, which provides that “he shall have the power by withholding his approval when necessary, to prevent the misappropriation of public funds, as well as the disbursement of public moneys in excess of specific appropriations.” But the term “misappropriation” as there used evidently has reference to the use of public moneys for purposes other than those — 524 — for which they have been specifically appropriated, or assigned, by an act of the legislature. The question here is whether the auditor may refuse to audit, or issue a warrant for, a claim for which there is, concededly, a specific appropriation, on the ground that the appropriation is, itself, void. The answer is to be found in general considerations rather than in any specific provision of the statute. By virtue of his position the auditor of the Territory is the public guardian of the expenditure of the people’s money. In so far as that money has been legally assigned by the legislature for application to public purposes it is the auditor’s duty to scrutinize the vouchers presented for payment out of designated appropriations, and to satisfy himself as to the correctness of claims made against the public funds. As such guardian, the people would doubtless expect the auditor to refuse to allow a claim presented to him under an appropriation which he had good reason to believe was made by the legislature without authority. Knowledge on his part that the governor had vetoed an appropriation because it was believed to be illegal would be a good reason. An attempted illegal disposition of public funds by the legislature would be soniething that every tax-payer in the Territory would have the right to complain of. But why should an individual taxpayer, who may not be in a xiosition to know whether a claim will be made for the money, or whether, if made, the auditor intends to allow it, be expected to go to' the trouble and expense of instituting what might be distasteful legal proceedings to protect the public treasury, when there is a public guardian who is in a position to know the facts, and who has at his disposal the services of the law officer of the government? Under such circumstances the auditor should by virtue of his position be held to have the authority to invoke the constitutional question in defense of his action. It has not been contended that the auditor has any personal interest in having this statute declared invalid. But this proceeding is, in effect, one against the auditor in his official capacity, and it cannot truly be said — 525 — that in that capacity he has no interest in the question involved. And so it has been held that an auditing officer not only has that authority, but that it is his duty, to' refuse to- allow a claim made under .a statute which he conceives to be invalid, and to assert such invalidity in defense of proceedings brought against him to enforce the allowance of the claim. State Auditor v. Board of Managers, 93 Ky. 537; State v. Hallock, 16 Nev. 373; Denman v. Broderick, 111 Cal. 96; Com. v. Mathues, 210 Pa. St. 372; McDermont v. Dinnie, 6 N. Dak. 278; Van Horn v. State, 46 Neb. 62; State v. Blumberg, 46 Wash. 270; Guthrie Daily Leader v. Cameron, 3 Okl. 677. A pertinent suggestion is contained in the note to State v. Heard, 47 L. R. A. 512, 519, where, after referring to the conflict of authority on the subject, it is said, “There is running through the decisions, however, a thread which would furnish a logical and satisfactory rule upon the question if finally adopted. That is that statutes are generally presumed valid,. and ministerial officers must treat them as such until their invalidity is established, but that if the nature of the office is such as to require the officer to raise the question, or if his personal interest is such as to entitle him to do so, he may contest the validity of the statute in a mandamus proceeding to enforce it. In other cases he must perform his duty as the statute requires, and leave those whose rights are affected by it to take steps to annul it.” The principle involved is applicable here although this is a summary appeal under the statute (E. L. Sec. 1535). The respective positions of the parties are the same as they would have been in a petition for a writ of mandamus. The principal question which is presented for. decision is whether Act 144 is a valid enactment. The arguments on this question have taken a wide range, but it will not be necessary to discuss all the points in detail. My conclusion that, the statute is invalid rests upon certain broad principles the application of which should, I think, be obvious. The legislative power was conferred by Congress upon the — 526 — legislature of this Territory in broad and liberal terms. In re Craig, ante pp. 483, 490. But that power, in its exercise, is subject, nevertheless, to the fundamental doctrine of American law regarding the independence of the three great branches of government. McCandless v. Campbell, ante pp. 411, 417. Not only shall the legislature not delegate its functions to either of the other branches, but it may not usurp the functions of either of those two branches. The judiciary, whenever necessary, must protect itself against legislative inroads upon its sphere of action. The guilt or innocence of the appellant of the offense with which he was charged in 1895 was a question of law, the determination of which involved the exercise of the judicial power. The validity of the judgments of the military commission was sustained by this court in In re Kalanianaole, 10 Haw 29. The judgment of that tribunal in the case of the appellant was, therefore, conclusive and binding on the legislative and executive departments of the government. The executive could, as it did, exercise its power to pardon, but the exertion of that power, though effectual to' completely wipe out the stigma of the conviction, w^as ineffectual to invalidate the judgment, or to refund the amount of the fine which had been paid in compliance with the judgment. Knote v. United States, 95 U. S. 149; Cook v. Freeholders of Middlesex, 26 N. J. L. 326; 27 N. J. L. 637. As the fine so paid pursuant to the judgment of the military commission was beyond, the reach of the pardoning power of the executive, so also was it beyond that of the legislative power. Roberts v. State, 51 N. Y. S. 691; Allen v. Board of Auditors, 122 Mich. 324; State v. Railroad, 71 Conn. 43, 49; Haley v. Clark, 26 Ala. 439. In the Connecticut case, above cited, the court said, “The separation of the powers of government into three departments, each of which within its own sphere is supreme, is a constitutional principle which cannot be overturned. The judgment is the final and supreme act of judicial power. The legislature — 527 — cannot overturn judgments any- more than the judiciary can make laws. A judgment is based upon established rules and principles administered by the judiciary.” The appropriation of a sum of money by the legislature for the avowed purpose of refunding the amount of a fine paid pursuant to a judgment of a court of competent jurisdiction upon the assumption that the accused was innocent and the judgment erroneous is, clearly, an attempt to repudiate, overturn, and set aside that judgment. If such a thing can be done in one case, it could, of course, be done in .all similar cases, thereby establishing the anomalous and untenable situation of the legislature being called upon from time to time to review, revise and upset the verdicts of. juries and the findings and judgments of courts. In Roberts v. State, it appeared that one John Roberts had been convicted in New York of the crime of burglary; that, after serving nearly two years in the state prison he was pardoned by the governor; that thereafter the state legislature passed an act authorizing Roberts “to present a claim to the board of claims for damages sustained by him by reason of his improper conviction and imprisonment;” that a claim was presented, and the board made an award in the claimant’s favor in the sum of $7500. On appeal, the supreme court set aside the award. The court said, “But why was the conviction of the plaintiff improper ? He was found guilty by the court of oyer and terminer of the crime of burglary. The conviction was not improper if he was in fact guilty. It-could only have been held improper if, although found guilty, he was in fact innocent. If the act in question shall be deemed a legislative determination that his conviction was improper, the legislature, in its enactment, was compelled to practically annul a judgment duly rendered in the oyer and, terminer in 1877. That judgment determined that the plaintiff was guilty. The legislature, by the act in question, in enacting that his conviction Avas improper, necessarily found that he Avas innocent. In doing so — 528 — it was compelled to pass upon a question of fact, to invalidate, an unreversed judgment fairly obtained, and thus to exercise judicial functions” (p. 694). Also, “For the reasons above stated, and without considering other questions raised in the points submitted to us, we are of the opinion that the-judgment rendered in this case cannot be sustained. It would be a matter of regret if we were compelled to hold that the enactment of chapter 342 of the Laws of 1895 was a proper exercise of legislative power. The doctrine has ever been maintained by our courts that a judgment obtained without fraud or duress, either in a civil or criminal court, is a final determination of the lights of the parties, and of the questions necessarily passed upon in its rendition. That the doctrine should be maintained is of the utmost importance. If the act under consideration can be sustained, we see no reason to doubt that, in any case where a criminal has been convicted of crime and imprisoned, the legislature, on his being pardoned, or on the expiration of his term of imprisonment, may retry the question of his guilt or innocence, or authorize a tribunal of its own selection to do so, and may thereupon sanction an allowance of a claim for damages against the state. The effect of holding that the legist lature possesses this power would be deplorable. Judgments in criminal cases would only be final, effectual, and valid at the will of the legislature” (p. 696). The principle would be precisely the same whether the sentence imposed was one of imprisonment or a monetary fine, and whether the attempted compensation should takte the form of an act allowing a claim for damages to be made in some tribunal, or of a direct vote of money by the legislature. The foregoing observations have an important bearing upon the contention made on behalf of the auditor by the attorney general to'the effect that the statute in question constitutes an illegal attempt on the part of the legislature to devote public moneys to a purely private purpose — in other words, to make a gift of public funds to a private individual. — 529 — It is fundamental that the legislature has no power to levy taxes except for public purposes, and that the question what constitutes a public purpose is, in the last analysis, a question of law. Cooley on Taxation (2nd. ed.) 55, 103; Loan Association v. Topeka, 20 Wall. 655, 664; Lowell v. Boston, 111 Mass. 454; Bush v. Supervisors, 159 N. Y. 212; Perkins v. Milford, 59 Me. 315; State v. Osawkee Tp., 14 Kan. 322; Board of Education v. State, 51 Oh. St. 531; Brodhead v. Milwaukee, 19 Wis. 659; Dodge v. Mission Tp., 107 Fed. 827. Also, that it is beyond the power of the legislature to authorize the expenditure of money raised by taxation by way of gift or gratuity to individuals in the absence of, at least, a moral obligation to support the appropriation. Michigan Sugar Co. v. Auditor General, 124 Mich. 674; Mead v. Acton, 139 Mass. 341; Lucas County v. State, 75 Oh. St. 114; State v. Froehlich, 118 Wis. 129; Castner v. Minneapolis, 92 Minn. 84; N. Y. Life Ins. Co. v. Commissioners, 106 Fed. 123; Parkersburg v. Brown, 106 U. S. 487; In re The Queen’s Hospital, 15 Haw. 663. In N. Y. Life Ins. Co. v. Commissioners, the circuit court of appeals said, referring to certain Ohio cases, “We think those last two cases do not sanction the conclusion that the court may sit in review of the legislative discretion, and itself determine the measure or degree of merit which a claim must have to entitle it to favorable consideration at the hands of the legislature. But they do decide that, if the facts upon which the legislature has acted are denied, the court may inquire whether they did in truth exist, and if it clearly appears that the purpose of the act was a private one, and so beyond the pale of legislation, the court will not regard- itself as concluded, but will adjudge the act void” (p. 132). Also-, that, “It may be conceded that if the legislature, departing from its functions, should, under the guise of legislation, devote public funds to be collected by taxation for an object in'no sense public, the judiciary has the authority to interfere and declare such action to be outside of the 'legislative power, and therefore void, as — 530 — amounting to confiscation. But the rule in such cases is that, the violation of the restrictions must be clear and indubitable before such interference is authorized” (p. 133). “While an enactment is conclusive as to facts it states against those who are within its operation, though not as to such as are not within its enacting part, a mere recital in a statute, either of fact or law, is not conclusive. A court is at liberty to' decide the law differently, and to inquire independently as to the truth of the recited facts.” Sutherland, Statutory Construction, Sec. 213. In the case at bar the surrounding facts and circumstances are undisputed. After indulging every possible presumption in favor of the validity of the action of the legislature, the facts remain that the fine paid by the appellant went into the public treasury many years ago; and that the judgment, in satisfaction of which the fine was paid, being valid and binding, was and is conclusive on all branches of the government, and no one of those branches can now say aught to the contrary. Under these circumstances it cannot be contended successfully that there is any possible moral obligation owing by the public to the appellant in satisfaction of which public moneys may lawfully be appropriated and paid over to him. The legislature cannot, by thus trespassing upon the judicial power and unearthing controversies which have been set at rest by the courts, uncover supposed moral obligations with a view to arighting what may seem to the legislators to have been acts of injustice. Counsel for the appellant cite authorities to the effect that all governments are accustomed to recognize and pay moral and equitable claims though there may be no legal liability to pay them. This is conceded; but it is also true that the opinion or finding of the legislature that such an obligation existed is not necessarily binding on the courts. The case of United States v. Realty Company, 163 U. S. 427, is cited with apparent confidence. In that case the court was at pains to show that a strong moral obligation existed to support the legislation which — 531 — was there upheld. And the court said, at page 440, “It is unnecessary to hold here that Congress has power to appropriate the public money in the treasury to any purpose which it may choose to say is in payment of a debt or for purposes of the general welfare. A decision of that question may be postponed until it arises.” In a small community ivhere the judges are often personally acquainted with litigants, and when, at times, the calls of friendship and sympathy beckon aside, it may be difficult, in endeavoring to administer justice, to disregard the appeals and to adhere to the strict path of duty. But there can be only one proper course for a judge to follow. However laudable may have been the motive which prompted the legislature to enact this statute,, to sustain its validity would be to ignore plain legal principles, and to set a precedent which, if followed, would lead to disastrous consequences. • The act trenches upon the judicial power, and it constitutes an attempt to divert public funds to1 private use without any moral obligation or other consideration of public policy to support it. It is not, therefore, a rightful subject of legislation. In my opinion the ruling of the auditor should be sustained.