The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-03-25

De nXeu.
And your petitioner will ever pray,
ETC."
- ANSWER.
"Said defendant George J. Ross by
protestation not waving any right of ex
ception to the insufficiencies OF said petit
ton nor to the right OF said petitioner to
maintain the same, for return and an
swer to such portions as he is advised it
is necessary to answer, says:
That he admits that he IS Auditor
General Of the Kingdom. And he says
that the auditing or refusal to audit any
bill presented TO him involves the exer-
else OF his official judgment and discre-
ton, and is not subject to judicial con-
troll by mandamus.
And for further answer this defend
ant says that he admits that the Minister
of the Interior during the twentv-three
months last past has caused all OF the
prisoners sentenced to imprisonment at
hard labor, in all about three hundred in
number, to be employed upon public
works and public roads.
" That he admits that the cost of food,
clothes, guards and lunas necessary for
the support, maintenance and guarding
OF all prisoners has been charged to the
appropriation entitled Support OF Pris-
oners;' but denies that the pay OF lunas
is properly SO charged.
That he admits that about fifty pris-
! oners are now confined in certain jails in
the Districts of Hilo and Puma, and have
been employed upon public roads, in
Guiding the public road extending from
Hilo to the Volcano OF Kilauea; and
says that they have been employed in
constructing the road last named.
That he Is ignorant as to the custom
OF the Interior Department in regard to
charging such expenses to said appro-
| prlatlOn.
That he admits that he has not here
tolore refused to audit bills for the sup
port OF prisoners until the presentation
! OF the bills referred TO in said petition.
" He denies that said bills were legiti-
mately and lawfully incurred by the De-
partment OF Government authorized to
incur them in accordance with the long
established precedent and custom Of
! said Department and he says that
| when prisoners have been employed
upon public works, the custom has been
to make charge against the appropria-
ton authorizing such work for the labor
| Of such prisoners, and to turn the same
into the Treasury as Government real
ization which the complainant in this
case has not done.
That he admits that the materials
and services claimed for have been fur
nished.
"That he denies that his refusal to au-
dit said bills prevents the complainant
from properly carrying out the duties OF
his office as Minister OF the Interior
"That he admits that on or about the
24-h of February last said bills were pre-
scented to him and he refused to audit
the same. And he says that during the
time covered by said bills, said pris-
oners were employed upon a public
work. to wit: the construction of a road
| from Hilo to the Volcano of Kilauea for
which a special appropriation was made
! by the Legislature; and he says that
while so employed said bills should not
be charged to the appropriation for the
support of prisoners. And he further says
that the appropriation last named at the
time said bills were presented to him
was exhausted.
And he denies all other allegations in
said petition contained.
Wherefore he prays said proceedings
may be dismissed"
BY THE COURT.
1t is first to be considered whether
! the auditing or refusal to audit any bill
presented to him involves the exercise OF
| his official judgment and discretion. Is
it subject to judicial control by man.
! damus?
The terms audit and refusal to audit
are here used in a sense generally en-
| ployed and understood, but it seems to
me discrimination may be made with
advantage in accuracy. 1t is not in
! tended by the words refusal to audit, a
refusal to examine, literally to hear, the
the account presented, but a refusal to
approve the account.
The petition in this case alleges in fact
not a refusal to audit, but refusal to
approve certain accounts and the Court
| is asked to command the respondent to
approve them. To approve them for
what and as what? The respondent de-
| tends his action by stating that the
prison labor, concerning which the eX-
| penses in these bills were incurred, was
| performed upon work for which a spe-
cific appropriation had been made, viz.
the Volcano Road, and in effect, that the
bills were drawn upon an appropriation
to which they were not chargeable, viz.
that for the support of prisoners.
| Has the Auditor-General authority to
| consider and determine whether accounts
are drawn properly on their appropria-
ton items, and to refuse approval if he
considers that they are not? We must
find the answer in the language and
scope of the statute which institutes the
office of Auditor-General, re. L. p. $685.
His duties relate to the receipt of moneys
and to the disbursement of them. 1t is
only with the latter that this case is con-
cerned. By Section 6, the Minister of
Finance is required from time to time to
calculate the amount of moneys likely to
become due and payable during period
not exceeding one month ensuing, set
ting it forth in a schedule under the
same divisions and heads that shall have
been employed in the appropriation
thereof, which schedule is to be trans
mitted to the Auditor-General. By Sec
ton Z, before countersigning any such
instrument the Auditor General shall
| r n IL,