Castle v. Atkinson

• Decision Date: 02 June 1905
• Citation: 16 Haw. 769
• Parties: WILLIAM R. CASTLE, A TAXPAYER OF THE TERRITORY, ON HIS OWN BEHALF AND ON BEHALF OF ALL AND SINGULAR THE TAXPAYERS OF SAID TERRITORY, AND AN OWNER OF BONDS OF SAID TERRITORY, v. A. L. C. ATKINSON, SECRETARY OF THE TERRITORY.
• Court: Hawaii Supreme Court

16 Haw. 769

WILLIAM R. CASTLE, A TAXPAYER OF THE TERRITORY, ON HIS OWN BEHALF AND ON BEHALF OF ALL AND SINGULAR THE TAXPAYERS OF SAID TERRITORY, AND AN OWNER OF BONDS OF SAID TERRITORY,

v.A. L. C. ATKINSON, SECRETARY OF THE TERRITORY.

Supreme Court of the Territory of Hawai‘i.

Argued May 27, 29, 31, 1905.

Decided June 2, 1905.

SUBMISSION ON AGREED FACTS.

Syllabus by the Court

Equity has jurisdiction at the suit of a taxpayer to enjoin an executive officer from expending public moneys in pursuance of an unconstitutional statute, although not to determine political rights not affecting rights of property.

Neither act 39, as amended by act 54 of the Laws of 1905, known as the County Act, nor act 93 of said Laws relating to the payment of county expenses, is invalid or unconstitutional in the sense that it is unauthorized or prohibited by the Organic Act of the Territory upon any of the grounds presented in this case.

H. E. Highton for plaintiff.

Deputy Attorney General M. F. Prosser and H. E. Cooper for defendant.

FREAR, C.J., HARTWELL AND WILDER, JJ.

OPINION OF THE COURT BY HARTWELL, J.

The case is presented in order to obtain a determination of the plaintiff's right, which he claims, that he is entitled upon the agreed facts to all injunction restraining and enjoining the secretary of the Territory from taking any further proceedings or steps in the matter of the first election for county officers required by the County Act to be held June 20, 1905, and from expending any of the Territorial revenues or money in connection therewith.

The plaintiff claims that for certain specified reasons the Act is unconstitutional and void, and that as a citizen of the United States and of the Territory of Hawaii, a resident of Honolulu, a taxpayer and a holder of Territorial bonds “he has a legal right by a proper bill in equity to apply to a circuit judge of the first judicial circuit of said Territory for an injunction restraining the sai dsecretary from the expenditure of money in the Territorial treasury for and in connection with the special election directed by said County Act.” The grounds on which the plaintiff claims that the Act is unconstitutional may thus be summarized, namely:

1. That, it is not an Act creating counties and providing for the government thereof, as it makes no provision for payment of expenses of county governments, and in violation and disregard of the principle of local self-government ignores local taxation within each county and contains no provision for assessment of property and collection of local taxes for support of the county government, thereby making counties a Territorial charge, undertaking to support and maintain the local government of each county out of Territorial revenue, and applying the credit of the Territory to the support and maintenance of the local government of each county; rendering the counties merely beneficiaries of the Territory, and compelling the taxpayers of the entire Territory to support the local government within each county.

2. That the Act violates section 45 of the Organic Act requiring “that each law shall embrace but one subject which shall be expressed in its title,” since it purports to create counties and is therefore new legislation not amendatory of or supplementary to pre-existing legislation, and assumes to transfer many of the duties of the superintendent of public works, of the attorney general, of the high sheriff and of other Territorial officers to the counties and their local officers; and covers distinct changes in pre-existing laws affecting whole systems of the Territorial government and chapters of the Revised Laws.

3. That except as to certain salaries the Act contains no definition of or limitation upon the expenditures of counties and provides no fixed revenue for their support and maintenance or for payment of local expenditures. The only limitation of expenditures is that they fall within the 50 per cent. of the total amount of poll and school taxes and taxes on property and income collected in each county, which by Act 93 is to be paid to county treasurers. Such a plan for payment of local expenditures is impracticable and incapable of enforcement. There is no limitation upon the amounts for which county warrants are to be drawn by the auditor upon the treasurer of the Territory in favor of county treasurers. Act 93 “relating to funds for the payment of expenses for the several counties” transfers to the auditor powers that could be legally exercised by the legislature only, or if requisite powers were delegated to them, by the boards of county supervisors. The auditor is invested by Act 93 with discretion to determine the amounts above 10 per cent. of the estimated taxes payable to each county within six months from July to December next and afterwards not less than 15 per cent., for which monthly warrants shall be drawn, there being no proportion fixed between the warrants and the actual or current expenditures of the counties. Act 93 compels the Territorial treasurer, if there is no money in the treasury to pay the monthly warrants, to register them and thereafter until paid they bear interest at 5 per cent. per annum, thereby creating an enforced loan by the Territory to the counties for which the Territory is charged interest, the Territorial credit as well as its cash revenue being thereby applied to the support and maintenance of counties.

4. That in transferring to the counties the right to “open, construct, maintain and close up public streets, highways, roads, alleys, trails and bridges,” the Act transfers powers now exercised by the superintendent of public works, aided in some instances by the governor and high sheriff, thus materially and radically changing the road system of the Territory.

5. That Act 93 provides that the road taxes shall be a special deposit in the Territorial treasury to the credit of each road district, to be paid by the treasurer of the Territory to the county treasurers and “expended only for the maintaining and repairing of public roads and highways in the several road districts as authorized by the supervisors of the county from time to time.” This is a transfer from the management of the superintendent of public works, inaugurating a system which conflicts with the Territorial system, and is legally impracticable and incapable of enforcement. The Act also impairs the obligation of the bonds of the Territory in depriving them of the security of the consolidated territorial revenues to the extent of 50 per cent. of the taxes required by Act 93 to be paid over to the counties.

6. That the Act in requiring bonds of supervisors to be approved by circuit judges imposes upon them functions not judicial, and not according to the course of common law or equity or to any provision of the Organic Act.

7. That the Act violates those provisions of the Organic Act which require that “there shall be an attorney general,” a superintendent of public works, a high sheriff and deputies, and which require that they severally “shall have the powers and duties” mentioned or referred to in the Organic Act “except as changed by this Act and subject to modification by the Legislature.” It is claimed that the powers and duties entrusted to and required of those officials by the terms of the Organic Act are not merely modified by the County Act but practically are obliterated and transferred to county officials.

8. That the Act deals with contested elections, and also with impeachment of supervisors, subjects not cognate to its title, and is an attempt to confer jurisdiction on the Supreme Court in those matters.

9. That the county of Kalawao established by the County Act is identical with the leper settlement, which the Act leaves under the control of the Board of Health, and which is incapable of organization into a county while under the control and management of the Board. That the chapter relating to this matter is unconstitutional in providing that the salary of the sheriff shall be fixed and paid by the Board of Health out of the Territorial appropriation, and that the pay of policemen in that county shall be fixed and paid by the Board out of Territorial funds, and also in fixing the appointment of a sheriff in the Board, which has no power to make such appointment.

10. That section 112 of the County Act providing that “All laws or parts of laws, so far only as the same may be inconsistent with any provision of this Act are hereby repealed,” isinsufficient and void in failing to specify the repealed Acts and parts of Acts, so that it is legally impossible to determine what laws are intended to be repealed.

When the case was presented for argument the plaintiff's attorney asked leave to amend the submission by inserting the additional ground that the Act had not been approved by the Governor in accordance with the requirements of section 56 of the Organic Act as amended by Act of Congress of March 3, 1905, (33 Sts. at L. 1035) requiring that county officials “be appointed or elected, as the case may be, in such manner as shall be provided by the Governor and legislature of the Territory.” The defendant's counsel objecting the court declined to allow this amendment.

The defendant denying that the Act is invalid for any of the reasons named in the submission claims that even if the Act were invalid equity has no jurisdiction to grant an injunction against him at the suit of a taxpayer or of a bondholder whose bonds are not shown to be in danger of being defaulted.

That the remedy sought by the plaintiff is available to him in his capacity as a citizen and taxpayer appears to be within the rule in Castle et al., v. Kapena, 5 Haw. 27 (1883). The petitioners in that case applied for a writ of mandamus to require the minister of finance to accept only United States gold coin or its equivalent for Hawaiian bonds payable in United States gold coin about to be issued by him in pursuance of an Act of ...