[211 U.S. 437, 438] Messrs. Aldis B. Browne, A. G. M. Robertson, and Alexander Britton for plaintiff in error.
[211 U.S. 437, 439] Messrs. Charles R. Hemenway and Henry E. Cooper for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
The plaintiff in error, who was plaintiff in the court below, and whom therefore we shall refer to as plaintiff, brought this suit in the circuit court of the first judicial circuit, territory of Hawaii, at chambers, to enjoin George R. Carter, governor of the territory, and the defendant, commissioner of public lands of the territory, from exchanging certain lands of the territory for other lands.
The governor promulgated, on 29th of November, 1906, the following order:
The island of Lanai contains a total area of 86,400 acres, of which the territory owns 47,679 acres. The lands owned by the territory are divided into five tracts, and are under lease to one Charles Gay for annual rentals which amount in all to [211 U.S. 437, 441] the sum of $1,600. These facts are alleged in the bill, and that the tracts are of great value,-one containing 8,000 acres of land, which is good grazing land, and has 3 miles of sea frontage, and extends inland 6 miles, being worth $40,000. Another tract, it is alleged, is of the same kind of land, and has a sea frontage of 5 1/2 miles and an inland depth of 6 miles, and is worth $37,000. The other tracts are of the value of $5,000.
It is alleged that Pratt, as commissioner, threatens to and will exchange such lands for other lands if he receives an offer therefor from a responsible person, and that the governor will consent and approve the exchange unless he and Pratt be enjoined. It is further alleged that Pratt has no legal right to make the exchange nor the governor to approve it.
It is further alleged that the intended and proposed exchange of lands 'is not proposed by way of compromise or equitable settlement of the rights of any claimants, nor by way of exchange for parcels of lands acquired for any road or roads, nor for a site or sites of a government building or buildings, nor for any other governmental purpose or purposes.'
An injunction was prayed against the exchange and against issuing land patents for the lands received in exchange. A temporary injunction was granted, which, upon the motion of the governor, was dissolved, and the bill dismissed as to him. Pratt demurred to the bill, and urged as grounds thereof that the bill was insufficient, that it did not appear that he, as commissioner, was doing or about to do any act in violation of law, that plaintiff had no legal capacity to sue, that no injury was threatened or otherwise to plaintiff, that he was not sufficiently interested to be entitled to an injunction or to any relief in a court of equity, that the complaint was not properly verified, and that the allegation that the defendant, as commissioner, had no legal authority to exchange public lands, was a conclusion of law.
The demurrer was overruled, the court holding that the plaintiff had the right to bring and maintain the suit, and that [211 U.S. 437, 442] the proposed exchange of lands was 'unlawful, illegal, and unwarranted.' Ten days were given to further plead, and, in default of which, the injunction was to be made permanent. The decree was reversed by the supreme court of the territory. 18 Haw. 221. This writ of error was then sued out and George R. Carter, governor, named therein as a defendant, but the writ was subsequently dismissed as to him, on motion of his successor, the present governor.
The supreme court of Hawaii assumed, without definitely deciding, that the plaintiff had a right to maintain the suit. The question of the validity of the exchange it decided against the contention of the plaintiff, holding that the commissioner had the power to make the exchange. Of the right of plaintiff to sue, the court said that it had been adjudicated in that court that a citizen and taxpayer had a right to obtain an injunction against official acts involving unauthorized use of public funds. To sustain this view the court cited Castle v. Kapena, 5 Haw. 27; Lucas v. American Hawaiian Engineering & Constr. Co. 16 Haw. 80; Castle v. Atkinson, 16 Haw. 769. It is an implication, from the comment of the court, that the ground of those decisions was the pecuniary loss that would come to the taxpayer from the action sought to be restrained. But the court, however, went farther, and said that perhaps the right of the taxpayer to 'restrain official acts affecting public property ought not to be based on the pecuniary loss, howsoever trivial or conjectural, but on the broad ground that any citizen may obtain a judicial inquiry into the validity of such acts, and an injunction against them if found to be unauthorized.' The court remarked, however, that, on account of the view it entertained of the validity of the acts of the officers, it would not decide the question of the right of the plaintiff to sue. On neither question are we called upon to pass, nor are we required to decide whether the land laws of the territory are Federal statutes by virtue of 83 of its organic act, which provides that its laws 'relating to public lands shall continue in force until Congress shall otherwise [211 U.S. 437, 443] provide,' and that therefore a Federal question is involved in the case. We have held that the jurisdiction of this court can only be invoked by a party having a personal interest in the litigation. Smith v. Indiana, 191 U.S. 138, 148 , 48 S. L. ed. 125, 126, 24 Sup. Ct. Rep. 51.
The plaintiff has not such an interest. He sues as a property owner and taxpayer, and the relief he asks is an injunction against the commissioner of public lands, to restrain him from exchanging the lands described in the bill for other lands. It is contended that such action is illegal, because that officer has no power to exchange lands under lease, nor has he power to exchange lands under lease, nor has he power to exchange 1,000 acres. The contention is based on the proviso of 276 of the Revised Laws of Hawaii. We give the section in the margin,
Sec. 252. "The commissioner of public lands or superintendent of public works, as the case may be, by and with the authority of the governor, shall have power to lease, sell, or otherwise dispose of the public lands and other property, in such manner as he may deem best for the protection of agriculture, and the general welfare of the territory, subject, however, to such restrictions as may, from time to time, be expressly provided by law.'
Sec. 254. 'The provisions of 253 shall not extend or apply to cases where the government shall, by quitclaim, or otherwise, dispose of its rights in any land, by way of compromise or equitable settlements of the rights of claimants, nor to cases of exchange or sales of government lands in return for parcels of land acquired for roads, sites of government buildings, or other government purposes.'
Sec. 276. 'The commissioner may, with the consent of the governor, sell public lands not under lease, in parcels of not over 1,000 acres, at public auction for cash. Upon any such sale and the payment of the full consideration therefor, a land patent shall be issued to the purchaser.
The plaintiff alleges that he is a taxpayer, but does not allege anything from which it can be inferred that he will be injured as a taxpayer, subject to a burden as such. It is true it is alleged that the lands which are offered for exchange are under lease for terms varying from twenty-five to thirty-five years, at a rental of $1,600. But it is also alleged that the purpose formed by the governor and commissioner, and the purpose advertised by them, was to get for the lands other lands of equal value and of greater immediate service to the territorial government. The suit was brought to restrain the execution of that purpose. Benefit, therefore, not injury, apparently may result from the exchange, and, so far as we are informed by the record, it may be even a benefit to the policy which plaintiff declares it is the purpose of the land laws of the territory to promote, and upon which he, in part, bases his interpretation of them,-the policy of encouraging 'the settlement and homesteading of public lands,' and the 'parceling out' of them 'in limited areas on favorable terms.' The plaintiff takes pains to justify fy this inference, for he avers that the exchange is not proposed for settlement of rights or claims, nor for the use of roads, nor for the site or sites of the government building or buildings, nor for any other government purpose. Therefore, as plaintiff has no personal interest in the matter in litigation, the writ of error is dismissed.