In re From

• Decision Date: 15 June 1911
• Citation: 20 Haw. 518
• Parties: IN THE MATTER OF THE APPEAL OF J. A. CUMMINS FROM A RULING OF THE AUDITOR OF THE TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

20 Haw. 518

IN THE MATTER OF THE APPEAL OF J. A. CUMMINS FROM A RULING OF THE AUDITOR OF THE TERRITORY OF HAWAII.

Supreme Court of the Territory of Hawai‘i.

Argued May 26 and June 2, 1911.

Decided June 15, 1911.

Syllabus by the Court

The auditor of this Territory may invoke the invalidity of a statute in defense of his action in refusing to allow a claim.

An appropriation of money by the legislature to refund the amount of a fine paid pursuant to a judgment of a court of competent jurisdiction upon the assumption that the accused was innocent is an illegal attempt to exercise judicial functions. (Per Robertson, C.J.)

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. (Per Robertson, C.J.)

The courts are not always concluded by a legislative opinion or finding that a moral obligation existed to support an appropriation of public money for a private purpose. (Per Robertson, C.J.)

Act 144 of the Session Laws of 1911, held to constitute an invasion of the judicial power, and an illegal attempt to divert public funds to private use, and hence, not a rightful subject of legislation within the meaning of section 55 of the Organic Act. (Per Robertson, C.J.)

The power of pardon is by section 66 of the Organic Act vested in the governor exclusively and can not lawfully be exercised by the legislature. Under this power the governor may grant pardons which are partial in their operation as well as those which are full and absolute. The legislature may not remit a fine judicically imposed. (Per Perry, J.).

An appropriation was made by the legislature of a sum of money “for the purpose of refunding” to a person duly convicted and sentenced by a judicial tribunal “the fine” imposed under the sentence and paid by the accused. As to the fine the executive had refused or at least failed to grant a pardon. The appropriation was not within the legislative power and is invalid. (Per Perry, J.)

Lorrin Andrews and Eugene Murphy for appellant.

Alexander Lindsay, Jr., Attorney General, for the Auditor.

ROBERTSON, C.J., PERRY AND DE BOLT, JJ.

This is an appeal from a ruling made by the territorial auditor by which he refused to issue a warrant upon the treasurer on the claim of John A. Cummins for the sum of five thousand dollars. This sum, the appellant claims is due and payable to him pursuant to Act 144 of the Session Laws of 1911, which is here set forth in full.

“An Act for the Relief of John A. Cummins.

Whereas, it appears that John A. Cummins, a descendant of one of the High Chief families of Hawaii, and a man who has occupied honorable positions under the late Hawaiian Monarchy, was arrested on the 16th day of January, A. D. 1895, and charged before a Military Commission with the crime of Treason; and

Whereas, it further appears that owing to inadvertence and a non-comprehension of the gravity of the plea, he plead guilty to the said charge of Treason; and

Whereas, the seven judges presiding at the Military Commission before which he was charged, although recognizing the fact that he was not guilty of the crime of Treason, were powerless under the law to do other than impose a sentence of ‘five years hard labor and a monetary fine of Five Thousand Dollars;’ and

Whereas, the reviewing authorities, acting on the recommendation of the said Military Commission, did mitigate and modify the said sentence by striking out the ‘five years hard labor,’ but retaining the said monetary fine of Five Thousand Dollars, which sum the said John A. Cummins was compelled to borrow at a high rate of interest in order to pay the said fine and thereby obtain his liberty; now, therefore,

Be it Enacted by the Legislature of the Territory of Hawaii:

Section 1. The sum of Five Thousand Dollars ($5,000.00) is hereby appropriated to be paid out of any moneys in the Treasury of the Territory of Hawaii not otherwise appropriated, for the purpose of refunding to said John A. Cummins the fine hereinabove set forth.

Section 2. This Act shall take effect from and after the date of its approval.

The Senate of the Territory of Hawaii,

Honolulu, T. H., April 25, 1911.

We hereby certify that the foregoing Bill, after reconsideration on the veto of the Governor, was, upon a vote taken by Ayes and Noes, approved by a two-thirds vote of all of the elective members of the Senate of the Territory of Hawaii, this day.

Eric A. Knudsen,

President of the Senate.

John H. Wise,

Clerk of the Senate.

The House of Representatives of the Territory of Hawaii,

Honolulu, T. H., April 26, 1911.

We hereby certify that the foregoing Bill, after reconsideration on the veto of the Governor, was, upon a vote taken by Ayes and Noes, approved by a two-thirds vote of all of the elective members of the House of Representatives of the Territory of Hawaii, this day.

H. L. Holstein,

Speaker, House of Representatives.

Edward Woodward,

“Clerk, House of Representatives.”

The appellant is one of those persons who were prosecuted before a military commission in 1895 for complicity in the attempt which was made in January of that year to subvert the then existing government of these Islands and to restore the monarchy. Upon his plea of guilty to a charge of treason the appellant was sentenced to a term of five years at hard labor and to pay a fine of five thousand dollars. The sentence was modified by President Dole of the Republic of Hawaii, as commander-in-chief of the military forces, by eliminating the term of imprisonment. The fine of five thousand dollars was then paid. Thereafter, on or about the 18th day of July 1898, President Dole granted the appellant, as well as many others who had been convicted before the military commission, a full and free pardon and restoration to his civil rights.

In refusing the appellant's demand the auditor stated that he was advised and believed that the act in question was unconstitutional and void “because, among other reasons, it authorizes the use of public moneys for private purposes.”

In his message to the legislature vetoing the bill, on April 24, 1911, the governor said, “The object of this bill is to pay to John A. Cummins the amount of a fine of $5,000 which he paid sixteen years ago under a sentence based on a plea of guilty.

There is much in this case to appeal to sentiment and sympathy, and for that reason it is both difficult and unpleasant to consider the bill upon its merits. It is unfortunate that this matter, recalling, as it does, the circumstances out of which this case arose, should be reopened. Looking at the matter from the standpoint of broad policy, the repayment of the fine in question would tend to serve as an embarrassing precedent in other cases that might appeal to sentiment, and especially in the other cases which arose out of the same circumstances. Mr. Cummins was the only one out of about one hundred and ninety who escaped imprisonment by paying a fine. A recognition of this claim might well be regarded as a recognition of the claims of the others, and there would be as much logic in compensating the others for their several periods of imprisonment as in compensating him for the fine which he paid.

Be that as it may, there seems to be an insuperable legal objection to this bill. The fine when paid became public money. That particular money was expended long ago by the Republic of Hawaii, but, whether it was or not and even if it had been paid to the Territory of Hawaii, its payment to a private individual, or the payment of a like sum out of other public moneys, would come within the constitutional inhibition against the use of public moneys for private purposes. A bill of this kind is not an exercise of the pardoning power, for that is vested solely in the executive, and even the executive could not exercise that power in such a way as to remit a fine already paid under a legal judgment. This case is not one of those in which a legislative body may authorize the repayment of moneys under a mistake of fact or even moneys paid under a mistake of law. In such cases the question is merely one of policy. The money is the peoples', for the peoples', that is, for public purposes and cannot lawfully be diverted to private purposes.”

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 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 sufficient 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...