De Mello v. Fong
| Decision Date | 07 December 1946 |
| Docket Number | No. 2627.,2627. |
| Parties | JOHN DE MELLO, JR. v. LEONARD K. FONG, AUDITOR OF THE CITY AND COUNTY OF HONOLULU. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. W. C. MOORE, JUDGE.
Syllabus by the Court
Where the facts are disputed out of which is claimed to have arisen a moral or legal obligation on the part of a municipality to pay unliquidated damages caused by tortious acts of its agency, the settlement of the contention by legislative enactment, which fixes the amount of liability and directs payment thereof by the municipality, constitutes an invalid legislative adjudication and is not a rightful subject of legislation but a trespass upon judicial power.
C. B. Dwight (also on briefs) for petitioner-plaintiff in error.
R. A. Vitousek ( Jean V. Gilbert, City and County Attorney, also on the brief) for respondent-defendant in error City and County of Honolulu.
The petitioner, John De Mello, Jr., brought mandamus proceedings to compel the respondent, the auditor of the city and county of Honolulu, to draw a warrant pursuant to Act 46 of Session Laws of Hawaii 1945, which over the veto of the governor became effective on April 25, 1945. The pertinent part of this Act reads: “The treasurer of the city and county of Honolulu is hereby authorized and directed to pay upon a warrant drawn by the auditor of the city and county of Honolulu, the sum of six thousand and no/100 dollars ($6,000.00) to John De Mello, Jr., for the purpose of reimbursing said John De Mello, Jr., for the lost equipment suffered in connection with that certain contract entered into with the Honolulu Sewer and Water Commission on or about the 30th day of March, 1927, for the construction of a pumping station and equipment at Kaimuki, city and county of Honolulu; provided said amount shall be payable to said John De Mello, Jr., only upon his executing and delivering to said auditor a receipt and release in full of and for all claims and demands whatsoever which he may have against said board of water supply or said city and county, or both of them, arising out of, or in connection with, or relating to, said contract or any matters whatsoever incidental thereto.” An alternative writ was duly issued. The respondent moved that it be quashed. After a hearing the circuit judge at chambers entered an order quashing the alternative writ from which order the petitioner sued out his writ of error.
Upon review of the order to quash, it is apparent from the face of the record that the efficacy of the remedy of mandamus sought by the petitioner depends primarily upon the validity of Act 46. In quashing the alternative writ the circuit judge did not expressly hold the Act to be invalid but one of the grounds of his order indicates such invalidity as an encroachment upon the functions of the courts. However, the question thereof was directly raised by the grounds of the respondent's motion to quash and fully argued before the circuit judge. Therefore it is properly before this court. It is the paramount question presented, the respondent's argument thereon consistently being that the Act constitutes an invalid assumption by the legislature of the judicial power of the government.
In our opinion the question of invalidity should be answered in the affirmative, thus warranting affirmance of the order of the circuit judge. There is no need to consider further the grounds thereof.
The question as presented is a constitutional one requiring the determination of whether the legislature in enacting Act 46 exercised a legislative or judicial power of government. Controlling thereof is the Hawaiian Organic Act of Congress which may be considered as the constitution of the Territory. Such Act of Congress partitions the powers of the territorial government among the three co-ordinate branches of government created by it, so that each branch is allocated a particular power. The allocation is accomplished by conferring upon the legislature the legislative power of the Territory, which shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States locally applicable (Or. Act §§ 12, 55) and by vesting the executive power in the governor (Or. Act § 66) and the judicial power in one supreme court, circuit courts and in such inferior courts as the legislature may from time to time establish (Or. Act § 81).
This court has uniformly interpreted the powers so constitutionally segregated and vested to be separate and distinct ones, each to be exercised by different and independent branches of the government, and likewise interpreted each branch to be supreme in its particular sphere of action. It has declared that although the legislative power is conferred by Congress in broad and liberal terms, the exercise thereof by the legislature is subject to the fundamental doctrine of American law regarding the independence of the three great branches of government. This constitutional limitation requires that the legislature respect the prerogatives of the other two branches and not usurp their functions, the courts having the duty to protect those branches from legislative inroads into their spheres of action. (Harris v. Cooper, 14 Haw. 145; In re Cummins, 20 Haw. 518; In re Tavares, 26 Haw. 101.) The independence of the judicial branch of the Territory in the exclusive exercise of its power of government, inviolate from invasion by the legislative branch, is thus the criterion upon which the issue before this court must be determined.
The recitation of facts by the alternative writ, as they are made to appear from the petition, contains the usual one ordinarily to be expected in mandamus proceedings. It is to the effect that the respondent is required to draw the warrant prescribed by Act 46 by virtue of its passage; that the drawing of such warrant is purely ministerial; that the respondent has refused to draw the warrant although the petitioner has demanded that he do so and stands ready to execute and deliver to him the receipt and release required by the Act; that the petitioner has been unsucessful in having the respondent draw the warrant and no other remedy is available to the petitioner. These facts, although material to the sufficiency of the alternative writ, are not material to and have no bearing upon the paramount question which is the validity of Act 46. The writ, however, recites other facts which are and do. Such facts in substance are that an agency of the city, after the completion of the contract to erect the pumping station described in Act 46, acquired possession of valuable equipment and wrongfully converted it or negligently caused it to be lost or stolen, which equipment the petitioner, during the performance of the contract, had delivered to the site of the pumping station then under construction; that the agency thereby permanently deprived the petitioner of the possession of such equipment, the reasonable value of which exceeds the sum of six thousand dollars.
These later facts admittedly constitute the basis of a claim against the city for the tortious acts of its agency relative to the personal property of the petitioner and the claim itself concededly is the same one which the petitioner presented to the legislature when he procured the passage of Act 46. The claim thus sounded in tort at the time of the enactment and was one to an obligation of the city to respond in damages to the minimum extent of six thousand dollars. It arose not out of contract but tort. The difficulty, however, is that the claim, although independent of contract, is linked descriptively with the completion of a contract and the locale of its performance, the claim's description placing the time of origin as being after such completion and identifying the personal property involved in the claim with a delivery to such locale coincident with the performance of the contract. That the legislature in enacting Act 46 was aware of such casual connection or incidental relationship and intended to deal with it accordingly is evidenced by its language requiring the petitioner to execute a “release in full of and for all claims * * * arising * * * in connection with or relating to, said contract, or any matter whatsoever incidental thereto.”
Generically, Act 46 may be classified as a private Act not for the public good but for the benefit of the petitioner as an individual, the legislative intent to settle his claim against the city being readily discernible from the Act as a whole. No judicial construction is required to ascertain such an intent. A bare reading suffices to show it. Corroborative of such an intent is the effect of the Act upon the tortious claim, the presentation of which resulted in the enactment, the legislature by it clearly purporting to pass judgment on the basic facts underlying the municipal obligation to which the claim is directed and attempting thereon not only to adjudicate the city liable but fix the amount of its liability as well as direct the treasurer of the city to pay the amount fixed. Undoubtedly the settlement of the claim by the enactment amounts to a legislative adjudication in favor of the petitioner and against the city which endeavors to effectively preclude the city from presenting before a proper judicial tribunal any defenses to the claim that it may have and from contesting therein the claim of liability or the extent thereof.
The petitioner with respect to his claim to an obligation of the city to respond in damages since its inception has been authorized by statute to bring suit upon it against the city in a court of competent jurisdiction. (R. L. H. 1925, § 1721; R. L. H. 1935, § 3004; am. L. 1939, c. 242, § 4 [2]; R. L. H. 1945, §...
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...Bank v. City of Guthrie, supra. Heavy, if not sole, reliance is placed by defendant in support of its contention upon De Mello v. Auditor City and County, 37 Haw. 415. That case holds that a legislature has no authority or power to pass judgment upon disputed facts underlying an unliquidate......