In re the Appeal of Goo Wan Hoy

OPINION OF THE JUSTICES BY ROBERTSON, C. J. This is an appeal from a ruling made by the auditor of the Territory brought by one Goo Wan Hoy upon the representation that on or before the 30th day of June 1911, the appellant, as assignee of certain claimants, presented to the territorial treasurer certain claims,, verified by oath, against the Territory, for the repayment of moneys wrongfully collected as merchandise license tax pursuant to the authorization of Act 143 of the Session Laws of 1911; that on the first day of April 1914, he [158] presented to the auditor a detailed statement of said claims and demanded that the auditor issue warrants for the payment of said claims under the authority of Act '52 of the Session Laws of 1913; that the auditor refused to issue such warrants; and that there were thirty-four of such claims which aggregated the sum of $1700. The auditor filed a statement by way of answer in which he set forth, inter alia, that except two claims which were paid to the appellant on the day after this appeal was filed, he had refused to pay appellant’s claims on the grounds that eight of them had been previously paid to one Smithies, as assignee thereof, and that as to the rest they had mot received the approval of the .treasurer; that the terms of •sections 2 and 3 of the Act of 1911 had not heen complied with; and that the fund appropriated by the Act of 1913 was insufficient to pay all the claims presented, therefore under the -decision in Smithies v. Conkling, 20 Haw. 600, claims should be paid in the order of their presentation, but that the treasurer had not determined the order of presentation of the claims held by the appellant. The case turns upon the construction of the statute. Act 143 of the Laws of 1911 made an appropriation of money for fhe purpose of repaying to certain licensees amounts wrongfully collected from them under sections 764 to 768 of the Penal Laws of 1897. Section 2 of that act provided that claimants •should present to the treasurer of the Territory within three months from the passage of the act “verified by oath, detailed ■statements of the amount or amounts paid by them in accordance with the requirements of” said sections of the Penal Laws, ■“and the treasurer of the Territory shall, after having verified such statements of the amounts so paid, and upon being satisfied that no part thereof has been repaid to such” claimants, xepay to them “the amounts paid hy them, and shall obtain and ■file proper receipts for such payments.” The act further provided (Sec. 3) that claims not presented on or before June 30, 1911, should be forever barred. The amount appropriated by [159] that act being insufficient to pay all tbe claims presented within tbe time allowed, tbe legislature passed Act 52 of tbe Laws of 1913, making a further appropriation “for tbe purpose of paying back tbe amounts collected as license tax under sections 164 ■to 168 of tbe Penal Laws of 1891, and claims for wbicb payment were duly presented according to the requirement of Act 143” of tbe Laws of 1911. Tbe act also provides that claims shall be paid upon warrants issued by tbe auditor “payable to •such persons as have complied with tbe provisions of sections 2 and 3 of Act 143 of the Session Laws of 1911,” and that “such balance of this appropriation as shall be unexpended at tbe expiration of twelve months after tbe approval of this act shall lapse.” Tbe act was approved on April 4, 1913, and tbe attorney general contends that as tbe unexpended balance of tbe Appropriation has lapsed it would be idle, if tbe appeal could ■otherwise be sustained, to direct tbe auditor to draw warrants •on tbe treasurer wbicb tbe latter could not pay. We find it unnecessary to decide tbe point. We think tbe provision of tbe third section of tbe act of 1913, to the effect that claims should be paid upon warrants issued to such persons as bad complied with tbe provisions of sections 2 and 3 of tbe act of 1911, bad tbe effect of making those provisions applicable to claims to be paid under tbe act •of 1913. In other words tbe evident intention of tbe legislature was that in order that any claim could be honored under the later act it must have been verified by oath and presented to tbe treasurer on or before June 30, 1911; and by that officer examined and found correct. Tbe provision in tbe 1913 act relating to tbe issuance of warrants by tbe auditor merely confirmed tbe practice followed under tbe 1911 act, whereby upon the presentation to the auditor of a claim approved by tbe treasurer tbe auditor issued bis warrant for the amount of tbe claim. On behalf of tbe appellant it is argued that as it appears that the legislature at its session of 1913 bad before it a list purporting to be a list of claims presented to the treasurer under the [160] act of 1911, and remaining unpaid, the aggregate amount of such claims equalling the amount of the appropriation made by the act of 1913, it must have been the intention of the legist lature that the claims included in that list should without further examination be paid. Ten of the thirty-four claims held by the appellant were not included in the list furnished to the legislature. We think: the conclusion advanced by counsel does not follow from the facts. It cannot be reconciled with the provision in the later act which refers to the provisions of the earlier act the evident purpose of which, in our opinion, was to require a compliance with the requirements of the act of 1911. If the legislature had intended that certain claims should be paid irrespective of whether they had been examined by the treasurer, and without his approval, the reference to the requirements of the 1911 act would not have been made. ./. Lightfoot for appellant. I. M. Stainbach, Attorney General, for the auditor. The appellant’s claims not having been verified or approved by the treasurer the auditor did his duty when he refused to draw warrants in payment of them. The ruling of the auditor is sustained.