The Hawaiian gazette., 1890-07-15

GENERAL.
Vouchers for the support, maintenance
and guarding of prisoners while EN-
ployed on the Volcano road were pre-
scented by the Minister of the interior
to the Auditor-General for approval
the appropriation for that road was
exhausted at the time said work was
performed and said bills incurred. The
vouchers were drawn upon the apprO
priation for support of prisoners;
Held, the Auditor-General should have
audited and approved them.
OPINION OF THE COURT BY DOLE, J.,
MR.. JUSTICE M'CULLY, DISSENTING.
The petition was for a writ OF
mandamus to compel the respondent
to audit certain accounts or show
cause for not doing so. The respon-
dent appeared and showed cause be-
fore Mr.. Justice McCully who dis
missed the proceedings, from whose
decision the complainant appealed to
this court. Afterwards the parties
filed the following stipulation:
at is hereby agreed between the
parties to the above matter that all
technical points which may arise in
the case, may be waived, and the
Judgment Of this honorable court
rendered upon the point as to
whether or not the Auditor-General
should audit bills incurred for the
support, maintenance and guarding
of prisoners employed upon the Vol
cano road, the appropriation for that
rcd having been exhausted at the
time said work was performed and
said bills incurred, said bills being
charged to the appropriation for
support of prisoners"
This stipulation radically simpli-
fes the case and enables the court
to consider the law involved, without
going into the important question of
the legal discretion of the Auditor
General, which was before the court
below.
The respondent contends, and the
decision appealed from holds, sub
stantially, that the Legislature hav-
ing appropriated definite sum of
money for the Volcano road, which
had been exhausted, the performance
of prison labor on the same work
was transfer of the appropriation
for the Support of Prisoners and was
consequently illegal; also, that the
performance of work on the Volcano
road in addition to work and mater
ials paid for by the appropriation
thereof, was defeating the intention
of the Legislature, which counte-
nanced only, for that particular work,
such labor and materials as their ap-
preparation might pay for.
It is clear to us that the perform
ance of prison labor on the Volcano
road under the circumstances, was
not transfer from the appropria-
ton for support of prisoners, for the
following reasons: A transfer is an
expenditure of money belonging to
one appropriation on account of
another appropriation, so that the
appropriation to which such money
is entitled fails to get the benefit of
it as for instance, the expenditure of
the appropriation for the extension
of Queen street on Kinau street.
The law requires that prisoners
sentenced to Imprisonment at hard
labor shall be constantly employed
for the public benefit on the public
works, or otherwise, as the Marshal,
with the approval of the Minister of
Interior, may think best" Civil
Code, Sec. 215). The Volcano road,
being public work." the Minister
of Interior was fully authorized to
approve of the employment of pris-
oners thereon; while so employed,
as in any other locality or on any
other "public work." it was neces-
sary that such prisoners should be
furnished with food and shelter and
have the necessary guards and over
seers, the expenses whereof are
properly chargeable to the appro-
priation for the support of pris-
oners. as has heretofore Teen the
custom. The performance OF prison
labor upon "public work" for
which there is an independent ap
preparation, cannot be termed a
transfer OI al dppIOP11dOAOh, III oAO
appropriation for the support of
prisoners is thereby expended |
according to law, and if the object of
a distinct appropriation, which is
public work, receives the benefit of |
such labor; that is also according to
law and does not defeat the in
tention of the Legislature as
to such other appropriation, such in
tention being limited solely to the
expenditure of a definite sum of
money out of the Treasury on account
of such object. The Legislature in its
Bill deals with money
rather than with services and mate
rial. 1t would undoubtedly be well
for it to require that not only prison
labor. but also all special services
furnished by government employees
to any enterprise supported by
appropriation should be
charged against such appropriation;