In re Appeal Sebastian Moniz Tavares from the Ruling the Auditor Hawai`i

• Citation: 26 Haw. 101
• Decision Date: 23 June 1921
• Docket Number: No. 1276.,1276.
• Parties: IN THE MATTER OF THE APPEAL OF SEBASTIAN MONIZ TAVARES FROM THE RULING OF THE AUDITOR OF THE TERRITORY OF HAWAII.
• Court: Supreme Court of Hawai'i

26 Haw. 101

IN THE MATTER OF THE APPEAL OF SEBASTIAN MONIZ TAVARES FROM THE RULING OF THE AUDITOR OF THE TERRITORY OF HAWAII.

No. 1276.

Supreme Court of the Territory of Hawai‘i.

Argued June 16, 1921.

Decided June 23, 1921.

Syllabus by the Court

An appropriation of public money by the legislature for the purpose of refunding to a purchaser a portion of the purchase price of public lands on the assumption that the land was appraised too high is an attempt to review and revise a lawful act of a coordinate branch of the government and is not a rightful subject of legislation.

In order to support an act appropriating public money for the benefit of an individual in the absence of a legal obligation there must be at least a moral or equitable obligation owing by the public to the individual for whose benefit the appropriation is made.

A. M. Cristy for appellant.

J. Lightfoot, Acting Attorney General, for the Auditor.

COKE, C. J., KEMP AND EDINGS, JJ.

OPINION OF THE JUSTICES BY KEMP, J.

This is an appeal from a ruling of the auditor of the Territory of Hawaii refusing to issue a warrant upon the treasury to pay the claim of Sebastian Moniz Tavares for the sum of $440. This sum the appellant claims is due him under Act 211 S. L. 1919, which provides as follows:

“Section 1. The sum of four hundred and forty dollars ($440.00) is hereby appropriated to be paid out of any moneys in the treasury of the Territory to pay the claim of Sebastian Moniz Tavares, of Kula, Maui, for amount overpaid, upon readjustment of the appraised value of the lots in the Alae 3 and 4 homestead tract; he the said Sebastian Moniz Tavares being the holder of lot 1 containing 22 acres which was first appraised at $30.00 per acre and later reappraised at $10.00 per acre.

Section 2. The auditor shall not issue warrant in payment of the above amount unless receipt in full is filed therefor, and the same is approved by the commissioner of public lands.”

The circumstances leading up to the passage of the foregoing act are contained in the correspondence between the attorneys for the claimant and the auditor of the Territory relative to the issuance of the warrant provided for by said act. The auditor in refusing to issue the warrant said:

“I beg to acknowledge the receipt of your favor of the 27th ultimo, relative to an appropriation for the relief of Sebastian Moniz Tavares, as provided by Act 211, S. L. 1919.

It appears from the record that lot No. 1, Alae 3 & 4 Homestead Tract, was duly appraised and advertised for sale pursuant to law. The record further shows that Mr. Tavares on July 1, 1912, applied for this lot, obtaining it under Cash Freehold Agreement No. 12, and after proving up his title, Patent No. 6529, dated March 31, 1916, was issued to him.

Mr. Tavares has never so far as the record shows, made any objection to the original appraisement and had paid the same without any request for a reappraisal or reduction in price.

I beg to say and so advise you, that the Commissioner of Public Lands is without authority to order a reappraisal of patented homestead lands.

You are therefore advised, that the claim of Sebastian Moniz Tavares is hereby disallowed.”

In reply the appellant, through his attorneys, set forth his claim as follows:

We beg to acknowledge receipt this day of your communication of the 3rd instant, relative to the demand of Sebastian Moniz Tavares as provided by Act 211 Session Laws 1919 (being House Bill No. 90).

Allow us to call your attention to the fact that in March, 1917, W. O. Aiken, sub-agent of the fourth land district requested of the land commissioner a readjustment of value on lots remaining unsold because of difficulty in disposing of the same due to a high appraisement. On March 8th, 1917, the land commissioner ordered a reappraisal of any lots needing adjustment and sent Mr. George Copp to act with Mr. Aiken to report on reappraisements. On March 15th, 1917, Messrs. W. O. Aiken and George Copp filed a report with the land commissioner reappraising lots in the tract in question and undoubtedly for the purpose of comparison with the new appraisal on lots then unsold, included among others an appraisal of the lot theretofore patented to Sebastian Moniz Tavares. The former appraisal had set a value of $30. an acre on these lands whereas the appraisal of March 15th, 1917, placed a value of $10. an acre. Inasmuch as Mr. Tavares had paid $660. for his lot under the former appraisal and the new appraisal for lots in the same tract were reduced 2/3 of the former price by bona fide action on the part of the office of the land commissioner showing that the real value of Mr. Tavares' lot was only $220. a claim was filed in due course with the legislature of the Territory for an equitable readjustment as to this claimant. Both the house journal and the senate journal for the 1919 session show that the matter of the moral and equitable claim of Mr. Tavares was thoroughly investigated by appropriate committees of the legislature and a refund allowed without a dissenting vote in either house of the legislature. The same claim was approved by the governor in Act 211.

In view of these facts we are compelled to take exception to your ruling and to transmit to you herewith an appeal on behalf of Mr. Tavares to the justices of the supreme court.”

It is the claim of the appellant that there is a moral and equitable obligation resting upon the Territory to refund to him the difference between the two appraisements as set forth in the correspondence which we have quoted while the auditor contends that there is no such obligation, that the refund is a mere gratuity and therefore not a proper subject of legislation. The legislative power was conferred by Congress (Sec. 55 Organic Act) upon the territorial legislature in broad and liberal terms (In re...