The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-04-15
TEST CASE DECIDED
AFTER THE OCCASION
Appeal Right on Principle But Recourse
Should Have Been Taken to the Ap.
preparations Of 1901.

expression of the legislative will, the |
essence being that they might be re- |
ferred capriciously to any six months |
of the biennial period. In conclusion |
the majority of the court-Chief JUS
tice Frear and Justice Perry-say:
THE wording of the appropriation in
either the sx-months bill or that of
1901 answers the purposes of the vouch-
er now in question. and If this were all
that is required, the appeal would have
to be sustained. But as the appropra-
ton for 1901 can be drawn upon only
by the Treasurer with the advice of
the Governor, and as neither of those
officers has been shown to have sane
toned such action. the appeal must be
dismissed, but without prejudice"
SUPPLEMENTAL OPINION.
Justice Galbraith renders a separate
opinion in which the concurrence is
only for the dismissing of the appeal.
He dissents strongly from the general
bearing of the majority opinion, as the
following brief extracts from his de-
| liverance show:
"The questions presented by this ap-
peal, seem to be, at this time, more
academic than practical, since the
legislature is now in special session,
having been convened by the Governor
for the purpose of enacting financial
legislation, and is indicating an earnest
desire to provide by proper appropria-
ton for any and all existing deficien-
cies however occasioned.
II might be content with this state
ment were it not for the fact that the
| decision of the majority of the court
gives a construction to Section % of
the Organic Act that is so wide of my
views of the proper construction of that
section that not even the peculiar con-
ditions, that are said to exist in this
Territory, will justify me in passing
the question without giving, at least,
some of the reasons for my views
"The conclusion announced in the
majority opinion can only be arrived
at from the view point that the legis-
lature Is not a coordinate branch of
the Territorial Government but is sub
ordinate and subject to the domina-
ton of the Executive or the Judi
ciary."
1.-THE power of the legislature extends
to all rightful subjects of legislation
The appropriation of money for pay
ment of the necessary current expenses
of carrying on the government and
meeting it's legal obligations as the
same are provided by the then existing
law, is a rightful subject of legisla-
ton. This power includes not only the
authority to appropriate money to pay
all current running expenses of the
government but also the right to de-
termine what shall constitute such
| necessary expenses 1t follows that
whatever authority determines the
amount and character of the 'neces-
sary current expenses of the govern
ment performs legislative function.
:" The Governor and the Treas
urer thought that one set of appro-
priation bills were reappropriated and
proceeded to make payments there
FROM Now this court decides that
they We're mistaken and that another
and different set of appropriations
should have been drawn against.
THE legislature adjourned in May,
1908. and the necessity for these APP
propriations arose in January /, 1904,
still no one will be able to tell what
money was reappropriated by this self
acting, automatic Section "a, until the
decision in this case is filed. If the
use of these appropriations has been so
, absolutely essential to the preserva-
!, ton of the Territorial Government, as
is commended, the poor old territory
would have been done for long before
: the decision of this case If filed for tina,
= is as early as it could be known with
= certainty which were the last appro'
!. priation bills
e 1T is suggested that some calamity
n threatens the territory If this section
should be held nugatory and that the
u construction placed upon it is necessary
to the preservation of the Territorial
; Government. The fear and the claim
are equally imaginary and unfounded
The Organic law of this territory has
> now been In force for almost four years
= and only one time during this period
~ has any attempt been made to Obtain
a relief from the power claimed for thl
section, and this attempt was an ute
failure, or at least the imagined relle
a was not essential for the Territorial
II Government was preserved without IN,
y relief that this section was supposed /,
afford"
. a