The Hawaiian gazette., 1911-06-16
DECIDE AGAINST
JOHN CUMMIN5
SUPREME COURT FINDS REFUND
ACT OF LAST SESSION
INVALID.

"However. laudable may have been
the motive which prompted the legisla-
ture to enact this statute, to sustain
its validity would be to ignore plain
legal principles and to set a precedent
which, if followed, would lead to dis
astrous consequences.
This is the trenchant language in
which Chief Justice Robertson of the
supreme court of the Territory yester-
day sutained the ruling of Auditor
Fisher that he could not issue war
rant upon the treasurer for $4,000 voted
to John A. Cummins by the last legisla-
tuTe for the purpose of refunding the
fine paid by him after he pleaded guilty
to treason in 1895.
The chief justice further states that
the act for the relief of .Cummins
"trenches upon the judicial power, and
it constitutes an attempt to divert pub
lie funds to private use without any
moral obligation OF other consideration
of public policy to support it. 1t is
not, therefore, rightful subject of
legislatiOn.H
Justice Perry concurs in the decision
of the chief justice, but Justice De
Bolt dissents. The ruling against Cum.
Illegal Attempt.
In the course of his exhaustive opin.
ion Chief Justice Robertson finds that
"the auditor of this Territory may in
woke the invalidity of statute in de.
Tense of his action in refusing to allow
a claim.
An appropriation of money by the
legislature to refund the amount of a
fine paid pursuant to a judgment of a
court of competent jurisdiction, upon
the assumption that the accused was
innocent, is an illegal attempt to exer.
else judicial functions.
1T is beyond the power of the legis-
lature to authorize the expenditure of
money raised by taxation by way of
gift or gratuity to individuals in the
absence of, at least, moral obligation
to support the appropriation.
"The courts are not always concluded
by legislative opinion or finding that
moral obligation existed to support
an appropriation of public money for a
private purpose"
The chief justice holds that act IA
of the session laws of 1911, constitutes
an invasion of the judicial power, and
is an illegal attempt to divert public
funds to private use, and hence, is not
a rightful subject of legislation within
the meaning of section SO of the Or
ganic Act.
Justice Perry's Views.
Justice Perry, in his decision, deals
particularly with the pardoning power
of which he holds this refund act to be
clearly a violation of the principles
governing such power, which was con
fided by congress to the Governor
alone. He states that the "full and
free" pardon granted Oummins by the
president of the Republic of Hawaii IN
July, 1918, "ean mot correctly be con
strued as intended TO absolve Cummini
from the zine which he had already
paid, aud does nut have that effect. II
relates solely 10 the civil disabilities
which be was still under in consequence
Of the conviction. The appropriation
was intended 70 be not in aid Of any
pardon granted by the executive de
partment but In spite Of the exeeu
tive 2 refusal or failure 90 pardon. -
Justice Perry considers that the only
reason for the enactment Of the 20
fund act was that the legislature fell
satisfied that Cummina pleaded gnllty
10 treason through inadvefience ans
Misunderstanding, that the conviction
MAS erroneous or unjust, and that thl
appellant Has 10 fact not guilty oI
the aIenao eharged-ln other words thl
legislature Was dissatisfied With ~
juagmeni sal wished 10 reader Ne ptn