Opinion op the Court,
by Dole, J. McCully, J., Dissenting.The petition was for a writ of mandamus to compel the respondent to audit certain accounts or show cause for not doing so. The respondent appeared and showed cause before Mr. Justice McCully, who dismissed the proceedings, from whose decisio.n the complainant appealed to this Court. Afterwards the parties filed the following stipulation :
“ It is hereby agreed between the parties to the above matter that all technical points which may arise in the case may be waived, and the judgment of this Honorable Court rendered upon the point as to whether or not the Auditor-General should audit bills incurred for the support, maintenance and guarding of prisoners employed upon the Volcano road, the appropriation for that road having been exhausted at the time said work was performed and said bills incurred, said bills being charged to the appropriation for support of prisoners.”
This stipulation radically simplifies the case and enables the Court to consider the law involved, without going into the im*130portant question of the legal discretion of the Auditor-General, which was before the Court below.
The respondent contends, and the decision appealed from holds substantially, that the Legislature having appropriated a definite sum of money for the Volcano road, which had been exhausted, the performance of prison labor on the same work was a transfer of the appropriation for the Support of Prisoners and was consequently illegal; also, that the performance of work on the Volcano road, in addition to work and materials paid for by the appropriation thereof, was defeating the intention of the Legislature, which countenanced only for that particular work such labor and materials as their appropriation might pay for.
It is clear to us that the performance of prison labor on the Volcano road, under the circumstances, was not a transfer from the appropriation for support of prisoners, for the following reasons: A transfer is an expenditure of money belonging to one appropriation on account of another appropriation, so that the appropriation to which such money is entitled fails to get the benefit of it, as for instance, the expenditure of the appropriation for the extension of Queen street on Kinau street. The law requires that “ prisoners sentenced to imprisonment at hard labor shall be constantly employed for the public benefit on the public works, or otherwise, as the Marshal, with the approval of the Minister of Interior, may think best.” (Civil 'Code, Sec. 215.) The Volcano road being a “ public work,” the Minister of Interior was fully authorized to approve of the employment of prisoners thereon ; while so employed, as in any other locality or on any other “public work,” it was necessary that such prisoners should be furnished with food and shelter and have the necessary guards and overseers, the expenses whereof are properly chargeable to the appropriation for the support of prisoners, as has heretofore been the custom. The performance of prison labor upon a “ public work, ” for which there is an independent appropriation, cannot be termed a transfer of an appropriation, for the appropriation for the support of prisoners is thereby expended according to law; and if the object of a distinct appro*131priation, which is a public work, receives the benefit of such labor, that is also according to law and does not defeat the intention of the Legislature as to such other appropriation, such intention being limited solely to the expenditure of a definite sum of money out of the treasury on account of such object. The Legislature in its Appropriation Bill deals with money, rather than with services and material. It would undoubtedly be well for it to require that not only prison labor, but also all special services furnished by government employees to any enterprise supported by a legislative appropriation, should be charged against such appropriation; as for instance, that the services of a government surveyor in laying or grading a public road should be charged against the appropriation for the road. At present there is no law that requires the Minister of Interior to have the prison labor in question charged against the Volcano road appropriation.
In brief, the payment of the bills in question should have been authorized by the Auditor-General, because the law requires it, and necessity demands it. The law requires that when prisoners can be “ well employed in the performance of any public work” they shall constantly be so employed ; and necessity demands that these men, deprived of their opportunities of self-support by the authority of the State, shall be supported by the State; they cannot be left to starve, neither can such dealers as may furnish them with food and other necessaries during such confinement be denied their reasonable charges therefor. The contrary view would tend to embarrass if not defeat the execution of the law for applying the labor of prisoners to public works, and in some cases at least, as in the ease in point, to cast an unnecessary slur upon the Government in its prison management ; for carried to its logical sequence, such a view would insist either that the prison laborers in question should have gone without food and other necessaries during the month they were occupied on the Volcano road, or that the dealers who furnished them must now lose the value of the materials furnished.
*132We are, therefore, of the opinion that the Auditor-General should authorize the payment of the bills in question.