I am unable to agree with the majority of the court in its conclusion that in the absence of Act 38 the board of supervisors had no authority to draw upon the permanent improvement fund to meet the payments provided in the Gamewell contract, on the ground that the fund was restricted to certain specific permanent improvements but not including the type of improvements in the instant case. The statute under which the permanent improvement fund (repealed as to the City and County of Honolulu, Act 100, L. 1933) was created contained the following statement of the uses to which this fund may be devoted: "In subdivision 2 (county or city and county permanent improvements) shall be included all items for permanent improvements for the counties and city and county, including, among other items, extensions and replacements to the water and/or sewer systems not otherwise provided for; new road construction of portland cement concrete, asphaltic concrete, asphalt macadam or on a portland cement concrete base, including cost of new land, or large cuts or fills in the grade, of permanent storm drains, of new bridges of like or equivalent permanent nature, and reasonable engineering and inspection expenses for the same (except that, in the case of the *Page 830 counties of Hawaii, Maui and Kauai, roadwork, amounting to reconstruction, of asphalt or oiled macadam may be performed hereunder in addition to concrete roadwork): new buildings, including additions, equipment and grounds for the same; parks, and other permanent improvements." R.L. 1925, § 1315. While it is true the kind of permanent improvements installed under the Gamewell contract were not specifically included in the itemizedstatement of permanent improvements contained in the statute, I think, nevertheless, that it cannot be doubted that while the system may not be everlasting it does possess the quality of durability which renders it permanent within the ordinary meaning of that term. If this were not so it is inconceivable that the board of supervisors would have been willing to rent it for a period of ten years for the aggregate sum of $294,060 with the expectation of owning it outright at the expiration of the rental period. The intention of the legislature not to limit the use of the permanent improvement fund to the improvements specifically mentioned but to authorize its use for all improvements of a permanent nature was twice expressed. It was first expressed in that part of the statute immediately preceding the enumeration of certain improvements for which the fund could be used. It was there provided that all items for permanent improvements shall be included, and again it was expressed in that part of the statute immediately following this enumeration where it was provided that the fund should be used for other permanentimprovements. To give the specific enumeration a restrictive effect would do violence to the manifest legislative intent.
It cannot be denied that without Act 38 the Gamewell contract would be void, not because the city and county was without authority under any circumstances to enter into it but because the statutory provisions regarding *Page 831 prior appropriation and the certificate of the auditor had not been complied with. (R.L. 1925, §§ 1479, 2178.) It follows, of course, that unless the contract is valid no expenditure under it could be lawfully made from any public fund. If there had been a prior appropriation and the auditor's certificate to that effect had been issued the board would not have needed the authority of Act 38 to enter into the contract and, as I believe, to use the permanent improvement fund for the purpose of payment. It is unreasonable to suppose that it was the intention of the legislature, by the passage of Act 38, merely to confer upon the board powers which it already possessed. It cannot be assumed that the lawmaking body intended that that Act be entirely without meaning. If, therefore, it is to be given a rational interpretation it must be construed to confer upon the board a power which it did not otherwise possess and not to reiterate powers which it already possessed.
For the foregoing reasons I respectfully dissent from the opinion of the majority of the court. *Page 832