The Hawaiian gazette., 1905-06-06

In the Supreme Court of the Terri
tory of Hawaii, October term, 1904.
William r. Castle taxpayer of the
Territory, on his own behalf and on
behalf of all and singular the tax
payers of said Territory, and an own
-er of bonds of said Territory, VS.. A.
l.. G. Atkinson, Secretary of the Ter
ritory.
Submission on agreed facts. Ar
gued May 81, 20, 81, 1905. Decided
June ., 1905. Frear, C. j., Hartwell
and Wilder, u.
Equity jurisdiction-at suit of tax
payer to enjoin expenditure of public
moneys under unconstitutional statute.
Equity has jurisdiction at the suit
of taxpayer to enjoin an executive
officer from expanding public moneys
in pursuance of an unconstitutional
statute, although not to determine po-
litical rights not affecting rights Of
property.
County validity as affected by
grounds presented.
Neither Act %, as amended by Act
81 of the laws of 1905, known as the
County Act, nor Act SO of said laws
relating to the payment of county ex-
penses, is invalid or unconstitutional
in the sense that it is unauthorized or
prohibited by the Organic Act of the
Territory upon any of the grounds pre-
scented in this case.
OPINION OF THE COURT BY
HARTWELL, j.
The case is presented in order to OBJ
tain determination of the plaintiff IS
right, which he claims, that he is en-
titled upon the agreed facts to an in
junction restraining and cnjoining the
Secretary of the Territory from TAX
ing any further proceedings or steps in
the matter of the first election for
county officers required by the Coun-
ty Act to be held June 90, 1905, and
from expanding any of the Territorial
revenues or money in connection
Herewith.
The plaintiff claims that for certain
specified reasons the act is unconstitu-
tional and void, and that as citizen
of the United States and of the Ter
ritory of Hawaii, resident of Homo
lulu, a taxpayer and holder of Ter
ritorial bonds ''he has a legal right
by proper bill in equity to apply to
"a circuit judge of the first judicial cir
cult of said Territory for an injunc-
ton restraining the Secretary from the
expenditure of money in the Terri
torial treasury for and in connection
with the special election directed by
said County Act" The grounds on
which the plaintiff claims that the
act is unconstitutional may thus be
summarized, namely:
CLAIMS AGAINST ACT.
j. That it is not an act creating
counties and providing for the gov
eminent thereof, as it makes no pro.
vision for payment of expenses Of
county governments, and in violation
and disregard of the principle of local
self-government ignores local taxation
within each county and contains no
provision for assessment of property
and collection or local taxes for sup
port of the county government, thereby
making counties a Territorial charge,
undertaking to support and maintain
the local government of each county
out of Territorial revenue, and apply
ing the credit of the Territory to the
support and maintenance of the local
government of each county; render
ing the counties merely benefciaries
of the Territory, and compelling the
taxpayers of the entire Territory to
support the local government within
each county.
2. That the act violates Section As
of the Organic Act requiring "that
each law shall embrace but one sub
ject which shall be expressed in it's
title, since 1T purports to create cOun-
ties and is therefore new legislation
not amendatory of or supplementary
to pre-existing legislation, and assumes
to transfer many of the duties of the
Superintendent of Public Works, of
the Attorney General, of the High
Sheriff and of other Territorial officers
to the counties and their local officers;
and covers distinct changes in pro-ex.
listing laws affecting whole systems of
the Territorial government and chap
tiers of the Revised Laws.
3. That except as to certain salar-
les the act contains no definition of
or limitation upon the expenditures of
counties and provides no fixed revenue
for their support and maintenance or
for payment of local expenditures.
The only limitation of expenditures is
that they fall within the 80 per cent
of the total amount of poll and school
taxes and taxes on property and in
come collected in each county, which
by Act 90 is to be paid to county
treasurers. Such a plan for payment
of local expenditures is impracticable
and incapable or enforcement. There
is no limitation upon the amounts for ,
which county warrants are to be
drawn by the auditor upon the treas
urer of the Territory in favor of coun-
ty treasurers. Act 90 "relating to
funds for the payment of expenses for
the several countless transfers to the
Auditor powers that could be legally
exercised by the Legislature only, or
if requisite powers were delegated to
them, by the Boards of County Super
visors. The Auditor is invested by
Act 80 with discretion to determine
the amounts above 10 per cent of the
estimated taxes payable to each coun-
ty within six months from July to De-
cember next and afterward not less
than Is per cent, for which monthly
warrants shall be drawn, there being
no proportion fixed between the war
rants and the actual or current ex-
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