Concurring Opinion of
Bickerton, J.This case, as it appears here by the stipulation, is shorn of the most important questions that were argued and passed upon by Mr. Justice McCully, viz.: The judgment and discretion of the Auditor-General to determine whether a bill was drawn upon a fund which was applicable to it, and further, as to abuse of this discretion. There does not seem to be any appeal on these points which were decided in favor of the Auditor-General in the Court below, but by the stipulation they are not now before us, and we are limited to the one question, which in my opinion assumes the shape of a question submitted by agreement of the Minister of the Interior and the Auditor-General to the Supreme Court for their opinion; the question as to whether a writ of mandamus should issue seems to have been abandoned.
The law, as it now stands, undoubtedly gives the Minister of the Interior full authority to use prison labor on any public work ; there is no law which requires that such labor shall be charged to the appropriation for such public work. It had been the custom for a long time to do so, until the late Administration abolished the custom or rule, thereby placing at the disposal of the Minister of the Interior the whole appropriation of $80,000 and the contingent one of $15,000 for the support of prisoners, which he could use in the shape of labor to supplement any appropriation for any public work. A work for which an appropriation of, say, $10,000 was made could be made to appear to cost only $9,000, leaving a balance of $1,000 unexpended, when in fact it had cost $19,000 by the use of prison labor, which had cost the country $10,000. As the law now stands the Minister might have put all the prison labor in the Kingdom on the Volcano road and no one could prevent it until he would be called to account for his doings by the Legislature. Wherever these prisoners may be they have to be fed and guarded and the bills paid, notwithstanding the fact that they may be working on a public work for which the appropriation is exhausted.
*133After looking at the question from all points of view, the fact still remains that the Minister had the authority of law to employ these prisoners on the Volcano road, and the bills for their support and guards had to be paid from the only appropriation available, viz., support of prisoners. If the Minister misused or abused his authority, it was a matter between him and the Legislature. There certainly is some legislation required on this matter, for, although this is not actually taking so many dollars from one appropriation and devoting it to other work for which there was an appropriation that is exhausted, the result is the same, the work is costing more than was contemplated or intended by the Legislature.
I feel compelled, as the law now stands, to concur in the conclusion arrived at in the above opinion.