Castle v. Kapena

• Decision Date: 02 January 1884
• Citation: 5 Haw. 27
• Parties: W. R. CASTLE, S. B. DOLE AND W. O. SMITH v. JOHN M. KAPENA, MINISTER OF FINANCE.
• Court: Hawaii Supreme Court

5 Haw. 27

W. R. CASTLE, S. B. DOLE AND W. O. SMITH v. JOHN M. KAPENA, MINISTER OF FINANCE.

Supreme Court of Kingdom of Hawai'i.

January 2, 1884

SPECIAL TERM, DECEMBER, 1883.

APPEAL FROM DECISION OF THE CHIEF JUSTICE GRANTING A WRIT OF MANDAMUS.

Syllabus by the Court

Citizens and taxpayers may bring mandamus against a public officer.

Mandamus lies against a Cabinet Minister, to compel the performance of purely ministerial duties.

Under the Loan Act of 1882, which prescribes that Government bonds payable in United States gold or its equivalent, may be issued at not less than par, it is illegal to issue the bonds for Hawaiian silver half-dollars of less intrinsic value than their face value in United States gold coin.

Injunction not mandamus, is the proper remedy to prevent a public officer from doing a contemplated illegal act, and decision of the Chief Justice reversed on this ground.

Mr Hartwell, for petitioners.

Mr. Attorney-General Neumann and Mr. Preston, for respondent.

JUDD, C. J.; MCCULLY and AUSTIN, JJ.

OPINION

JUDD, C. J., ON THE MOTION TO QUASH THE WRIT.

THE petition for a writ of mandamus was heard at Chambers, before Chief Justice Judd, who denied a motion to quash, and granted the writ as prayed for. Defendant appealed to the full Court. The facts are stated in the opinions of the Chief Justice and of the Appellate Court.

The decision of the Chief Justice, appealed from, was as follows:

I am of the opinion that the petitioners, as citizens and taxpayers, have the right to sue out this writ. They have, as taxpayers, the right to endeavor to prevent a public officer from doing what is an injury to the public good. There are authorities on both sides of the question, but the current seems to be in favor of the right, and especially the case of Crampton vs. Zabriskie, 101 U.S. 609. This is a case decided in 1879 by the Supreme Court of the United States, and Mr. Justice Field, for the Court, says: " Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent the illegal creation of a debt which they, in common with other property holders of the county, may otherwise be compelled to pay, there is at this day no serious question."

To deny this right to a taxpayer would be to say that there is no remedy and no way by which a Minister of the Crown can be prevented from doing an illegal act. Impeachment is too shadowy and uncertain to be thought of as an adequate remedy. If only the Attorney-General can promote such a matter, the answer is that there has been no Attorney-General since May last, and it would be idle to expect an Attorney-General, who is one of the Cabinet, to commence proceedings against his own colleague.

A Minister is responsible to the King for his acts, and he is also responsible to the people for the faithful discharge of his duties. The respondent's motion to quash, which is more properly a demurrer, is overruled.

DECISION OF THE CHIEF JUSTICE ON THE MERITS.

Having given this matter considerable study and attention, and having arrived at a clear and decided opinion upon the question involved, I give my decision now, knowing also that delay would be injurious to the respondent.

I remark here that the petitioners are not amenable to criticism for having brought this action so late. They could have no standing in Court until the act complained of was about to be committed, and if proceedings had been commenced months ago it could be well answered that the application was premature, and the respondent was not about to act in the manner alleged. Moreover, if the act complained of is illegal at all, it was so at the inception and continues so throughout, and it loses none of its illegality by lapse of time.

I remark here that the ability of the Government to borrow money under the Loan Act of 1882 does not affect the vitality or existence of the Government. The authority was given by this act to borrow money for certain specific purposes named in the Act, and by Sec. 3 " no part of the money (thus raised) shall, on any pretence, be paid, used or applied, directly or indirectly, either temporarily or otherwise, to or for any public use or purpose other than the purposes respectively to which the same is hereby directed to be applied."

I presume the Legislature felt that the ordinary resources of the Government would be sufficient for its ordinary expenditures, and so have not authorized the borrowing of money for its ordinary expenditures.

So my decision in this case cannot affect the life or credit of the Government.

Whether the bonds of the Government have or have not been difficult of sale is foreign to this issue. If they have not been eagerly sought for, possibly it is because the interest, being only 6 per cent., is too low, being 3 per cent. lower than the legal rate of interest.

The authority of the Minister of Finance in the premises is to be found within the four corners of this Act.

Section 1 authorizes the Minister of Finance, under the direction of the King in Cabinet Council, to borrow on the credit of the Hawaiian Government, during a period of three years, sums of money not exceeding two million dollars, and the bonds to be issued therefor are (1st) to be issued at not less than par; (2d) they are to bear interest not exceeding 6 per cent.; (3d) they are to be exempt from Government taxes; (4th) they are to be redeemable in not less than five nor more than twenty-five years, and (5th) they are payable, principal and interest, in United States gold coin or its equivalent. The bonds must be issued in exact compliance with the law. They must be issued, says the Act, at not less than par. What is par? All the lexicographers say that par is " exact equivalence, without discount or premium, " that is, there must be received for these bonds the exact equivalent of the sum secured to be paid by them. They are to be paid in United States gold coin or its equivalent, and this must therefore be received for them.

If a promissory note calls for payment of £ 500 sterling, the par value would be £ 500 sterling and nothing less. Now, if the Minister of Finance proposes to dispose of these bonds for anything less than their face in United States gold coin or its equivalent, it is a violation of the law. It matters not if the silver half dollars which the respondent proposes to take for the bonds be current as money in this realm. The law says most distinctly that the bonds must not be sold for less than par, and as the silver half dollars are far less in intrinsic value than their face value in United States gold coin, to sell the bonds thus is selling them for less than par.

The law of this Kingdom makes United States gold the standard of value and legal tender. This law must be administered by the Court, even if the community and the Government by common consent ignore its existence. No law is a dead letter to the Court. I may here say that the Act of 1880 providing for a National Coinage, authorizes the Minister of Finance " to purchase gold and silver bullion with any moneys which may from time to time be in the Treasury, and to cause to be coined therefrom gold and silver coins" of equal weight and fineness with United States gold and silver coins of the same denominations. That is, foreign coin already in circulation might thus be changed into Hawaiian coin, and this the Legislature thought would not probably disturb the currency very seriously. Silver is a commodity fluctuating in value, and it has been declining in value for some years, and the standard half dollar of the United States is, by the latest quotations, not worth in United States gold much more than forty cents. Being of the opinion that the bonds are proposed to be issued by the respondent for less than par, I grant the writ of mandamus.

I ought to say further that the 70th Article of the Constitution requires the Supreme Court to give its opinion to the King and the Cabinet " upon important questions of law, and upon solemn occasions." And the Justices of the Supreme Court are always ready to give their opinions to the Government when important steps are contemplated. In this instance the opinion of the Court was not asked.

Honolulu, December 14, 1883.

OPINION

MCCULLY J.

The petitioners set forth that they are citizens and taxpayers of the Kingdom; that they are informed and believe that the respondent, in his official capacity, has prepared and is now about to issue bonds to the amount of one hundred and thirty thousand dollars, purporting to be pursuant to the Act of August 5, 1882, taking in payment therefor silver coins which are only about eighty-two per cent. of the value of United States gold coin, whereas it is prescribed by the statute that they shall be issued not below par in United States gold coin or its equivalent. That by the proposed issue the petitioners, as citizens and taxpayers, would be injured; that they have made a demand which the respondent has refused; " Wherefore your petitioners pray that a writ of mandamus do issue out of this Honorable Court, requiring the said Minister of Finance to accept for said bonds only United States gold coin or its equivalent, and not to accept therefor the silver coins aforesaid, and not to issue such bonds except for their par value in United States gold coin or its equivalent, and for further relief, " etc.

The return and answer of the respondent, denying the sufficiency in law and neglect of duty, etc., says that he is about to issue bonds to the amount and at the interest stated, and in accordance with the Act referred to by the petitioners denies that his intended issue is below par, and avers that he is about to issue the bonds at par; denies that it is his duty to issue...