James W. Glover, Ltd. v. Fong

• Decision Date: 13 March 1952
• Docket Number: NO. 2864.,2864.
• Parties: JAMES W. GLOVER, LIMITED, A HAWAIIAN CORPORATION, v. LEONARD K. FONG, AUDITOR OF THE CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

39 Haw. 308

JAMES W. GLOVER, LIMITED, A HAWAIIAN CORPORATION,

v.LEONARD K. FONG, AUDITOR OF THE CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII.

NO. 2864.

Supreme Court of the Territory of Hawai‘i.

Argued February 13, 1952.

Decided March 13, 1952.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. M. SAPIENZA, JUDGE.

Syllabus by the Court

An affidavit, to be legally sufficient to disqualify the judge before whom an action or hearing is to be tried or heard from proceeding therein, must (1) charge “a personal bias or prejudice” on the part of such judge, and (2) support that charge by a statement of at least “facts and reasons” from which a sane and reasonable mind may fairly infer bias or prejudice as the two statutory requisites of an affidavit for disqualification, the word “personal” qualifying the words “bias or prejudice,” being the significant word of the statute. (R. L. H. 1945, § 9573.)

A written assignment of rights under an existing contract of construction, partially performed by assignor as one of the two original contracting parties, to the assignee, a corporation of which assignor is sole stockholder, operates as an assignment of a claim as a chose in action subsequently arising out of the assignee's completion of the contract and entitles the assignee to sue on that claim in its own name as the real party in interest, particularly where the other contracting party has notice of the assignment and accepted not only the assignee in substitution of the assignor but the performance by the assignee in completion of the contract.

No demand is necessary as a condition precedent to the bringing of mandamus proceedings to compel a ministerial officer to perform his duty where that officer by a continuous course of conduct has so manifested an intention not to perform such duty that a demand would be idle and unavailing.

The duty of the auditor of the City and County of Honolulu to draw a warrant in payment of a claim, preaudited, approved in writing and authorized for payment by the controller, is purely ministerial and involves no judgment on his part under the provisions of Revised Laws of Hawaii 1945, section 6594, and mandamus is the specific and appropriate remedy to enforce the performance of that duty.

Although not permitted to go behind the judgment of approval made by the controller in the exercise of his discretion, the auditor of the City and County of Honolulu may challenge the power of the controller to approve a claim and refuse to draw a warrant in payment of the claim where he can show that such claim is fraudulent, in a mistaken amount, or based on an unconstitutional statute, or that the action of the controller in approving it is invalid or exceeded his authority.

The specific and appropriate remedy afforded by mandamus to compel the auditor to perform his ministerial duty to draw a warrant is not barred by the available remedy afforded by assumpsit.A. K. Trask (also on the briefs) for plaintiff in error.

J. G. Anthony ( Robertson, Castle & Anthony and F. D. Padgett on the briefs) for defendant in error.

TOWSE, C.J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY LE BARON, J.

The petitioner, James W. Glover, Limited, a Hawaiian corporation, brought mandamus proceedings to compel the respondent, Leonard K. Fong, auditor of the City and County of Honolulu, to draw warrants in payment of claims for balance due on completed contract and for balance of excess costs incurred in performance of that contract and arising out of wartime conditions. The petition alleges in substance that the petitioner's predecessor, James W. Glover, on September 16, 1940, entered into a contract with the City and County of Honolulu for the construction of a sewer at the contract price of $475,463.38; that before completion of construction under the contract war broke out on December 7, 1941, and necessitated cessation of such construction until January 2, 1946; that on May 22, 1945, Act 260 of the Session Laws of Hawaii 1945 became effective authorizing the board of supervisors of the City and County of Honolulu to appropriate from its general funds such sums as are required to cover excess costs of construction on public works arising out of and due to wartime conditions; that the board of supervisors, pursuant to Act 260, by resolutions appropriated $287,000 for excess costs of construction under the contract incurred during the years of 1946 and 1947; that on April 1, 1946, the petitioner was organized as a corporation and took over the business of its predecessor, including the construction of the sewer under the contract, and that the change from individual to corporate responsibility and the taking over of such construction by the petitioner was approved by the City and County of Honolulu; that the petitioner thereafter completed such construction; that the respondent has drawn warrants for, and the petitioner and its predecessor have been paid, part of the contract price and part of the excess costs incurred; that the respondent refuses to draw warrants in payment of the balances thereof; that the balance of the contract price is in the amount of $19,438.23 and that of excess costs in the amount of $60,213.13; that petitioner's claims for these amounts have been preaudited and approved in writing by the controller of the City and County of Honolulu upon vouchers authorizing the payment thereof; that the controller has found those claims to be “correct and proper in all particulars, legal and within the scope of the designated appropriations and that there is money in the said appropriations sufficient to pay the same”; that “despite the provisions of section 6594 and the duty imposed upon him therein and in defiance thereof, [the] respondent has refused and still refuses, despite requests by petitioner to do so, to perform the ministerial act of drawing warrants for the payment of said amounts.”

On the filing of that petition an alternative writ duly issued. The respondent, on the return day therein set, moved for a continuance of two weeks and in support thereof testified that he had had no time to discuss “any features other than this matter of getting a continuance” with his attorney. His testimony at the hearing on the motion was essentially admissive of the facts alleged in the petition but in denial of the conclusion of law made therein that his statutory duty to draw warrants is ministerial. Upon such testimony, the circuit judge, within his judicial discretion and jurisdiction, by oral decision granted the respondent a continuance of twenty hours rather than one of two weeks as moved.

The respondent, immediately after that decision of continuance, filed a petition for a writ of mandamus in the supreme court to compel the circuit judge to grant the continuance of two weeks as moved and a justice thereof issued an alternative writ of mandamus. On the return day set therein, a motion of the circuit judge by his attorney was filed in the supreme court to quash that writ on the ground that “as a matter of law a mandamus will not issue in such cases” as those of “the granting or refusal of a continuance” within the judicial discretion of an inferior court, such attorney being the same attorney who represented the petitioner in the mandamus proceedings before the circuit judge. That attorney, in behalf of the circuit judge, argued the motion before the supreme court. After that court denied the motion, the circuit judge made a return signed by a deputy attorney general as his attorney. Upon a hearing of the issues, the supreme court by an opinion of its majority entered a peremptory writ directing the circuit judge to fix a time for the respondent below to make return “not less than forty-eight hours subsequent to the issuance of the peremptory writ herein.” (Fong, Auditor v. Sapienza, Judge, 39 Haw. 79.)

The respondent then filed in the circuit court an affidavit of disqualification which alleged in substance that he believed that the circuit judge was “biased and prejudiced” for the reasons that he “refused to grant * * * continuance [of two weeks as moved]”; that the attorney for petitioner acted as attorney for the circuit judge before the supreme court in a motion to quash and that the circuit judge made it appear in his return therein that respondent “has admitted all the facts necessary to support the issuance of the peremptory writ of mandamus requested by James W. Glover, and that the sole question is one of law with respect to the nature of affiant's [[[respondent's] duty to draw the warrants.” On that affidavit the respondent moved that the circuit judge disqualify himself. After hearing, the circuit judge denied the motion.

The respondent then filed a petition for mandamus in the supreme court to compel the circuit judge to disqualify himself. His petition was denied. (See Fong, Auditor v. Sapienza, Judge, 39 Haw. 92.)

Three weeks after respondent's motion for continuance and on the new return day set in the circuit court, the respondent filed in that court a motion to quash which was denied. He then filed a motion for allowance of interlocutory appeal which was denied. Two days after such return day, the respondent filed his return.

The trial then commenced in the circuit court and consumed six full days and one evening session. During the course of trial the respondent introduced in evidence a letter written by him in which he admitted that, a week before he testified that he and his attorney “didn't have time” to discuss “any features other than this matter of getting a continuance,” he and that attorney had attended a conference with the attorney for the City and County of Honolulu in which “there was discussed at length and in detail every phase of the Glover contract matter, more particularly the prospects of this matter being placed before the courts for judicial review.” At this juncture it is pertinent to note that the supreme court did not have the benefit of the...