De Mello v. Auditor City County

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 reTavares, 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 unsuccessful 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, § 6646.) The petitioner admittedly did not bring such suit nor did he anticipate doing so by attempting to secure legislative waiver of defenses which the city might have to such a suit, but instead procured legislative settlement of his claim against the city. In justifying this procedure the petitioner asserts that, when he presented his claim to the legislature, it was directed towards a "moral" obligation, as distinguished from a legal one, presumably on the theory that recovery at law could be defeated by the defense, as indicated by the writ and face of the Act, that the statutory period of limitations had run against the claim or by the defense, though not so indicated, that the tortious acts which occasioned the injury had been done by the municipal agency in the exercise of functions essentially governmental in character. Assuming arguendo but not deciding that recovery could be so defeated, it is unnecessary to determine whether the mere availability of such defenses to a possible suit would change ipso facto the claim from a legal into a moral obligation on the part of the city in the absence of an actual suit to enforce it before a competent court of law wherein the defenses were properly interposed, established and sustained. Suffice it to say that this court is not concerned with questions of law and fact which would or might be presented by such or any other defenses. Neither is it concerned with any particular application of general law which might be involved in a future trial of an action in damages by the petitioner against the city for the tortious acts of its agency nor with any distinction between the legal and moral nature of the claimed obligation at the time of the enactment, whether or not the nature thereof was recognized therein by the legislature. The question of legislative encroachment does not pertain to those fields of inquiry but depends upon whether the legislature attempted to project itself into the domain of the judicial branch by adjudicating that which constitutionally required judicial determination rather than legislative.

In ascertaining whether such an attempt were made, it becomes pertinent to determine whether the legislature in settling the claim in reality adjudicated a contention or passed judgment upon disputed facts out of which the obligation of the city is claimed to have arisen. Aside from a denial in the motion to quash by the respondent as an official of the city that it ever was obligated to pay the petitioner any amount, the very staleness of the petitioner's claim at the time it was settled by the legislature some eighteen years after the inception of the claim as shown upon the face of both the alternative writ and the Act, strongly indicates that the petitioner procured the enactment ex parte without notice to or attendance of a proper representative of the city and that otherwise a controversy in dispute of the basic facts underlying the claimed obligation would have arisen, nothing contrary thereto appearing in either the writ or Act nor any disclosure therein that the city was even cognizant of the claim's existence at the time of the enactment, much less aware of its presentation to the legislature. Indeed, an inference, drawn from the writ and the Act upon which it is posited, of such a controversy would not be unreasonable, it not being inconsistent with the position taken by the petitioner before this court and the truth of any logically necessary antecedent or premise thereof not being questioned by him. Hence the tortious claim is deemed to have been a disputed one at the time of the passage of Act 46 and a controversy to have then existed for the purpose of determining whether the adjudication of it by the legislature in fixing the amount of liability due the petitioner is a rightful subject of legislation and not an invalid exercise of the judicial power.

It is settled by all the authorities that where the facts out of which either a legal or moral obligation is claimed to arise are disputed the settlement of the contention is not a rightful subject of legislation but falls within the province of the courts under constitutional distribution of governmental powers. (Harris v. Co. Com'rs Allegany Co., 130 Md. 488,100 A. 733, L.R.A. 1917 E 824; Queen Anne's Co. v. Talbot Co.,108 Md. 188, 69 A. 801; State of Nevada v. Hampton, 13 Nev. 439; Board of Education v. State, 51 Ohio St. 531, 38 N.E. 614; Baldwin v. New York, 42 Barb. [N.Y.] 549 [aff'd 45 Barb. (N.Y.) 359]; State v. Tappan, 29 Wis. 664, 9 Am. R. 622.) Consonant therewith it is stated in 1 Cooley's Constitutional Limitations (8th ed.) at page 498: "And there is much good reason for assenting also to what several respectable authorities have held, that where a demand is asserted against a municipality, though of a nature that the legislature would have a right to require it to incur and discharge, yet if its legal and equitable obligation is disputed, the corporation has the right to have the dispute settled by the courts, and cannot be bound by a legislative allowance of the claim." In the footnote thereof, it is further stated: "It is one thing to determine that the nature of a claim is such as to make it proper to satisfy it by taxation, and another to adjudge how much is justly due upon it. The one is the exercise of legislative power, the other of judicial." This does not mean that it is not within the province of the legislature to recognize the moral nature of an obligation of the state or municipality and to direct the payment either in whole or in part of any such obligation or debt, whether legal or moral, when liquidated and founded on admitted facts. Nor does it signify that it is for the courts to sit in review of the legislative discretion, determine fairly debatable questions as to the reasonableness, wisdom and propriety of such legislative action or substitute their judgment for that of the legislature, such matters being for the legislative body upon which rest the duty and responsibility of decision. It does mean, however, that the legislature has no constitutional power to fix the amount of liability due from a municipality to a private individual upon his tortious claim for unliquidated damages where at the time the facts are disputed out of which is claimed the municipal obligation arose and none to adjudicate the controversy thereof, the test being that questions of law and fact are necessarily raised which the courts only have the constitutional power to determine. It follows therefrom that the territorial legislature, by clearly and unmistakably determining such questions in its enactment of Act 46, invaded to that extent the sphere of action where the judicial branch of the Territory is supreme.

The petitioner contends that the Act does not encroach upon the judicial power of the government but in our opinion none of the authorities cited by him support his contention. In oral argument he urges that the cases of Levy Leasing Co. v. Siegel,258 U.S. 242, 66 L.ed. 595, Radice v. New York, 264 U.S. 292, 68 L.ed. 690, and Standard Oil Co. v. Marysville, 279 U.S. 582, 73 L.ed. 856, oppose the statement of law with respect to the province of the courts to determine the contention relative to disputed facts upon which is founded a claim to a legal or moral obligation. However, those cases do not involve such a contention nor pertain to the matter of legislative invasion of the judicial power but deal exclusively with legislative actions within the scope of the police power. The cases upon which the petitioner principally relies in his briefs are In re Mott-Smith, 29 Haw. 343, United States v. Realty Company, 163 U.S. 427, 41 L.ed. 215, Pope v. United States, 323 U.S. 1, 89 L.ed. 3, andGuthrie National Bank v. Guthrie, 173 U.S. 528, 43 L.ed. 796. Although these authorities hold that it is within legislative power to recognize a moral obligation of a state or municipality and provide for its payment, not one of them holds that the legislature itself has the authority or power to settle a claim to a moral obligation arising out of disputed facts by adjudicating the contention, adjudging the state or municipality liable, fixing the amount of liability and directing it to be paid. The constitutional question of legislative trespass on the judicial power was not raised and not considered in the case ofIn re Mott-Smith nor does it appear therein that the facts, out of which the claim to a moral obligation arose, were disputed. In the case of United States v. Realty Company the Supreme Court of the United States passed on an Act of Congress directing payment of claims to a moral obligation, the underlying facts of which as well as the amounts thereof were not disputed. In that of Pope v. United States the Court upheld an Act of Congress which provided for the payment of a moral obligation upon judicial determination by a court of law of the liability of the government in the amount fixed by the court, the Act conferring jurisdiction upon the Court of Claims to hear, determine and render judgment thereon. In answering the question whether the Act of Congress invaded the judicial province of the Court of Claims, the Court said: "* * * it is important that the Act contemplated that petitioner should bring suit on his claims in the usual manner, that the court was given jurisdiction to decide it, and the petitioner by bringing suit has invoked, for its decision, whatever judicial power the court possesses." Likewise the Court in Guthrie National Bank v. Guthrie approved of an Act of a territory which created a special tribunal for hearing and deciding upon claims to a moral obligation and provided for the payment of those claims found to be proper by the lower court. None of these authorities nor any of the others cited by the petitioner hold contrary to the principles enunciated in this opinion and this court has been unable to find any that do.

Therefore, the legislature having transcended its authority and power in passing Act 46, the Act must be held to be invalid, inoperative and void.

The order quashing the alternative writ is affirmed.