Saturday Press

THE CURRENCY CASE,
Opinion and Judgment by Chief Justice Judd.

I am of the opinion that the petitioners, "as citizens and taxpayers, have the right to sue out this writ. They have, as taxpayers, the right to endeavor to prevent a public officer from doing what is an injury to the public good. There are authorities on both sides of the question, but the current seems to be in favor of the right and especially the case of Crampton v. Zabriskie, cited in 3 Wall. U. S. 609. This is a case decided in 1870 by the Supreme Court of the United States, and Mr. Justice Field for the court says: "Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent the illegal creation of a debt which they in common with other property holders of the country may otherwise be compelled to pay, there is at this day no serious question."

To deny this right to a taxpayer would be to say that there is no remedy and no way by which a minister of the crown can be prevented from doing an illegal act. Impeachment is too shadowy and uncertain to be thought of as an adequate remedy. If only the attorney general can promote such a matter, the answer is that there has been no attorney general since May last and it would be idle to expect an attorney general who is one of the cabinet to commence proceedings against his own colleague.

A minister is responsible to the king for his acts and he is also responsible to the people for the faithful discharge of his duties. The respondent's motion to quash, which is more properly a demurrer, is overruled.

Having given this matter considerable study and decided opinion upon the question involved. I give my decision now knowing also that delay would be injurious to the respondent. Action was late. They could have had standing about to be committed, and if proceedings had been commenced months ago it would be well-nigh alleged. Moreover, if the act complained of is illegal at all, it was so at the inception and continues so throughout and in longer none of its illegality by lapse of time.

I remark here that the vitality of the government. The act of 1882 does not affect the vitality or existence of the government. The authority was given by this act to borrow money for certain specific purposes named in the act and by section 3 "no part of the money (thus raised) shall, on any pretense, be paid, used or applied, directly or indirectly, either temporarily or otherwise to or for any public use or purpose other than the purposes respectively to which the same is hereby directed to be applied."

I presume the legislature felt that the ordinary resources of the government would be sufficient for its ordinary expenditures and so have not authorized the borrowing of money for its ordinary expenditures. So my decision in this case cannot affect the life or credit of the government.

Whether the bonds of the government have or have not been difficult of sale is foreign to this issue. If they have not been eagerly sought for, possibly it is because the interest, being only six per cent. is too low, being three per cent. lower than the legal rate of interest.

The authority of the minister of finance in the premises is to be found within the four corners of this act.

Section I authorizes the minister of finance under the direction of the king in cabinet council to borrow on the credit of the Hawaiian Government during a period of three years, sums of money not exceeding two million dollars, —and the bonds to be issued therefor, are (1st) to be issued at not less than par, (2d) they are to bear interest not exceeding six per cent, (3d) they are to be exempt from government taxes, (4th) they are to be redeemable in not less than five nor more than twenty-five years and (5th) they are payable principal and interest in United States gold coin or its equivalent. The bonds must be issued in exact compliance with the law. They must be issued, says the act, at not less than par.

What is par? All the lexicographers say that par is "exact equivalence without discount or premium," that is, there must be received for these bonds the exact equivalent of the sum secured to be paid by them. They are to be paid in United States gold coin or its equivalent and this must therefore be received for them.

If a promissory note calls for payment of 500 sterling, the par value would be 500 sterling and nothing less. Now, if the minister of finance proposes to dispose of these bonds for anything less than their face in United States gold coin or its equivalent, it is a violation of the law. It matters not if the silver half dollars which the respondent proposes to take for the bonds be current as money in this realm. The law says most distinctly that the bonds must not be sold for less than par and as the silver half dollars are far less in intrinsic value than their face value in United States gold coin, to sell the bonds thus is selling them for less than par.

The law of this kingdom makes United States gold the standard of value and legal tender. This law must be administered by the court even if the community and the government by common consent ignore its existence. No law is a dead letter to the court.

I may here say that the Act of 1880 providing for a national coinage, authorizes the minister of finance, 'to purchase gold and silver bullion with any moneys which may from time to time be in the treasury and to cause to be coined therefrom gold and silver coins" of equal weight and fineness with United States gold and silver coins of the same denominations. That is, foreign coin already in circulation might thus be changed into Hawaiian coin and this the legislature thought would not probably disturb the currency very seriously. Silver is a commodity fluctuating in value and it has been declining in value for some years and the standard half dollar of the United States is by the latest quotations not worth in United States gold much more than 40 cents. Being of the opinion that the bonds are proposed to be issued by the respondent for less than par, I grant the writ of mandamus.

I ought to say further that the 10th article of the constitution requires the supreme court to give its opinion to the king and the cabinet "upon important questions of law and upon solemn occasions." And the justices of the supreme court are always ready to give their opinions to the government when important steps are contemplated. In this instance the opinion of the court was not asked.

On the opening of the special banco term of the supreme court last Thursday, Chief Justice Judd said he desired to call the attention of the bar to certain slight infringements of the rules of strict court etiquette. He had no doubt those infringements were thoughtless, and spoke of them only that they might be avoided in the most pleasant way. He mentioned the thoughtless occasional practice of searching on the desk for court papers, instead of asking the clerk for them; and, per contra, of returning them tardily. Smoking in the clerk's office, the library or the court room was considered improper, and members of the bar were asked to discontinue it.

The bonds-for-silver mandamus case was argued before the full bench yesterday. Judgment reserved.