not contain a complete judgment against, cates the guilt of appellant and sentences appellant, though the sentence is contained him, in accordance with the verdict and in the transcript: judgment. From this data certainly we can do that which the court a quo, in due order, should have done. We accordingly hold that the judgment of the court below should be reformed and corrected, *so as to make[436 it read, in connection with the judgment as entered, and following the verdict, as follows, to wit: "Wherefore, the state prays that the court order the transcript and all papers transferred from Tyler to the Austin branch of the court, to the end that this court may determine its jurisdiction of this appeal, and whether or not the judgment should be reformed and affirmed, or whatever action this court deems necessary. "It is therefore considered, ordered, and adjudged by the court that the defendant, William McCorquodale, is guilty of the offense of murder in the first degree, as found by the jury, and that he, the said William McCorquodale, be punished, as has been determined by the jury, by imprisonment for life in the penitentiary; and it is further ordered, adjudged, and decreed by the court that the state of Texas do have and recover of and from the defendant, William McCorquodale, all costs of this prosecution, for which execution may issue; and that the said defendant is now remanded to jail to remain in custody to await the further order of the court.' "Respectfully submitted." The motion to transfer was granted. The defendant, by his counsel, excepted, and opposed the state's motion to reform and affirm the judgment, on the following grounds: (1) The motion was not disposed of at the term at which it was filed; (2) It was not such a motion as is contemplated 435]by law, is not a motion for rehearing, nor a motion for the court to correct its own judgment, but it is a motion to enter an original judgment, which the lower court alone has the power to do at the proper time, and that the court of criminal appeals has no power to so do. The latter ground was repeated in many ways, and it was alleged, with much repetition, that the court had no jurisdiction to grant the motion of the state, and it was prayed that the motion be denied in so far as it sought to have a judgment entered, or supplied, or to sup-ion of this court." ply the want of the property judgment in the court below, and in so far as it sought to have the court of criminal appeals make any other order than to issue its mandate in accordance with its opinion theretofore rendered. The court granted the motion of the state, holding that the judgment was in the ordinary form and complete, so far as it went, but that it did not comply with certain requirements of the Code of Criminal Procedure of the state, in that it did not declare, as provided in subdivisions 9 and 10 of art. 831, that it was considered by the court that the defendant be adjudged guilty of the offense as found by the jury, and that the defendant be punished as determined by the jury. The court further held that it had the power to reform and correct the judgment so as to bring it into accordance with the provisions of the Code of Criminal Procedure. The court, after reciting the proceedings and reviewing prior cases, concluded its opinion as follows: "The state's motion to reform is accordingly granted; the judgment is reformed and corrected, as above indicated, and, as reformed and corrected, the judgment is affirmed in accordance with the previous opin In answer to the motion of the state, the defendant did not set up that the action invoked by the state would, if granted, contravene the 14th Amendment of the Constitution of the United States. He, however, presented a petition for, to quote from the petition, "a rehearing upon the state's motion to 'reform and affirm,'" and urged as one of the grounds thereof the following: "This court's said opinion is further erroneous in that it, in effect, deprives appellant of that due process of law guaranteed him by the Constitution of the state of Texas, and that of the United States, in this: that it is in effect the rendering of a judg ment against him in his absence, and the authorization of sentence against him without a judgment." The other grounds of the motion for rehearing were repetitions of the grounds urged in the answer to the state's motion and other grounds based on the local procedure, the basis of all being the want of jurisdiction in the court. "Reform' means to correct; to make anew; to rectify. Rapalje, Law Dict. p. a rehearing was as follows: The order of the court on the motion for 1083. Here we have all of the foundation of the judgment, including the verdict of the jury, which is the basic rock on which the judgment is formulated. We have, following this, the final judgment of the court, which is the sentence. This itself adjudi "This cause came on to be heard on[437 appellant's motion for a rehearing, and, the same being considered by the court, said motion is overruled." This court has decided many times that it is too late to raise a Federal question So. See same case below, 18 Haw. 221, 269. Mr. Aldis B. Browne argued the cause, and, with Messrs. A. G. M. Robertson and Alexander Britton, filed a brief for plaintiff in error: for the first time in a petition for rehear-, seeks to enjoin an exchange of public lands Writ of error dismissed. L. L. MCCANDLESS, Piff. in Err., V. JAMES W. PRATT,† Commissioner of Public Lands of the Territory of Hawaii. (See S. C. Reporter's ed. 437-445.) -neces If the plaintiff in error is right in his contention upon the law, the transaction is illegal. Property injury is not essential to support the power of equity to give relief. Nutt v. Knut, 200 U. S. 12, 19, 50 L. ed. 348, 352, 26 Sup. Ct. Rep. 216; 2 High, Inj. § 1241; 2 Dill. Mun. Corp. 3d ed. $$ 906-922; Lucas v. American-Hawaiian Engineering & Constr. Co. 16 Haw. 80. Winn v. Shaw, 87 Cal. 637, 25 Pac. 968; Mr. A. G. M. Robertson also filed a separate brief for plaintiff in error: If the writ is in proper form and the Sparrow v. Strong, 3 Wall. 97, 105, 18 Under the practice of this jurisdiction it Castle v. Kapena, 5 Haw. 27; Lucas v. The rule adopted in Hawaii is based on Union P. R. Co. v. Hall, 91 U. S. 343, U. S. 601, 25 L. ed. 1070. Appeal [No. 109.] Argued November 6, 9, 1908. It should make no difference as to this point that the exchange contemplated by the governor and the commissioner of public lands was to be for lands of equal value. In the numerous reported cases in which the courts have held in favor of the right of a taxpayer to an injunction to prevent the illegal expenditure of public money, the right has not been maintained on the ground that the public was not to receive Decided a quid pro quo, but on the ground of the lack of legal authority to make the proposed expenditure. IN ERROR to the Supreme Court of the Winn v. Shaw, 87 Cal. 631, 25 Pac. 968; Co. v. Everett, 9 Wash. 518, 43 Am. St. 832, 36 Am St. Rep. 438, 32 N. E. 962;, Engineering & Constr. Co. 16 Haw. 80; CasState ex rel. Hayes v. Gallagher, 22 Nev. 87, tle v. Atkinson, 16 Haw. 769. 35 Pac. 485. Messrs. Charles R. Hemenway and Henry E. Cooper argued the cause and filed a brief for defendant in error: Equity will restrain violations of law only when accompanied by violations of property rights; and the courts take cogni: zance of suits only when it is apparent that the complaining party is suffering wrong or is likely to suffer wrong. Smith v. Indiana, 191 U. S. 138, 48 L. ed. 125, 24 Sup. Ct. Rep. 51; Cooley, Const. Lim. 7th ed. 232; Charles v. Marion, 98 Fed. 166; Allison v. Corson, 32 C. C. A. 12, 60 U. S. App. 387, 88 Fed. 581; Indian apolis Gas Co. v. Indianapolis, 82 Fed. 245; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; McCord v. Pike, 2 Am. St. Rep. 85, and note, 121 Ill. 288, 12 N. E. 259; Brown v. Ohio Valley R. Co. 79 Fed. 176; Boston & M. R. Co. v. Sullivan, 177 Mass. 230, 83 Am. St. Rep. 275, 58 N. E. 689; State ex rel. Cranmer v. Thorson, 9 S. D. 149, 33 L.R.A. 582, 68 N. W. 202; Clark v. Kansas City, 176 U. S. 114, 116, 44 L. ed. 392, 396, 20 Sup. Ct. Rep. 284. The cases in Hawaii holding that a taxpayer may enjoin acts of executive officers are not in conflict with the rule, but, on the contrary, recognize and are based upon it; for in each case it is apparent that injury would have resulted to plaintiff if the acts complained of had been found to be illegal. Castle v. Kapena, 5 Haw. 27; Lucas v. American-Hawaiian Engineering & Constr. Co. 16 Haw. 80; Castle v. Atkinson, 16 Haw. 769. And in the decisions of this court upon which the Hawaiian decisions were based, it is apparent that the right of a complainant to maintain such a suit is dependent upon the fact that some injury will be done property rights. Crampton v. Zabriskie, 101 U. S. 601, 25 L. ed. 1070; Union P. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428. Messrs. Charles R. Hemenway, Henry E. Cooper, William L. Whitney, and Charles F. Clemons also filed a brief for defendant in error: The law is settled in Hawaii, as in other jurisdictions, that a taxpayer may have his remedy by injunction against official acts which involve the misuse or waste of public funds. Crampton v. Zabriskie, 101 U. S. 601, 609, 25 L. ed. 1070, 1071; Castle v. Kapena, 5 Haw. 27; Lucas v. American-Hawaiian It is also a settled rule of law that it must appear affirmatively from the pleadings that injury, and substantial injury, will be sustained by plaintiff from the acts complained of, before such acts will be enjoined. Smith v. Indiana, 191 U. S. 138, 146, 48 L. ed. 125, 126, 24 Sup. Ct. Rep. 51; Caffrey v. Oklahoma, 177 U. S. 346, 348, 44 L. ed. 799, 800, 20 Sup. Ct. Rep. 664; Clark v. 392, 396, 20 Sup. Ct. Rep. 284; Red River Kansas City, 176 U. S. 114, 118, 44 L. ed. Valley Nat. Bank v. Craig, 181 U. S. 548, 558, 45 L. ed. 994, 1000, 21 Sup. Ct. Rep. 703; Albany County v. Stanley, 105 U. S. 305, 314, 20 L. ed. 1044, 1051; Ludeling v. Chaffe, 143 U. S. 301, 304, 36 L. ed. 313, 314, 12 Sup. Ct. Rep. 439; Giles v. Little, 134 U. S. 645, 650, 33 L. ed. 1062, 1063, 10 Sup. Ct. Rep. 623; Owings v. Norwood, 5 Cranch, 344, 348, 3 L. ed. 120, 121; MontL. ed. 575, 576; Henderson v. Tennessee, gomery v. Hernandez, 12 Wheat. 129, 132, 6 10 How. 311, 322, 13 L. ed. 434, 439; Hale v. Gaines, 22 How. 144, 160, 16 L. ed. 264, 269; Long v. Converse, 91 U. S. 105, 23 L. ed. 233. 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: "Lanai Lands.-Notice is hereby given that, having decided an exchange of the public lands of the island of Lanai to be advisable, the commissioner of public lands is prepared to receive offers of other lands that are equal in value to those of Lanai, and of greater immediate service to the territorial government, from any responsible 15th day of December, 1906." person, up to and including Saturday, the 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 the sum[441 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, power to make the exchange. Of the right worth $40,000. Another tract, it is alleged, is of the same kind of land, and has a sea frontage of 51⁄2 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. 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 *provide," and that therefore a[143 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 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 oflicer has no power to exchange lands under lease, nor has he power to exchange lands except in parcels of not over 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,† *and also §§ 252 and 254, which[444 The demurrer was overruled, the court holding that the plaintiff had the right to bring 442]and maintain the suit, and that *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 mo- Sec. 252. "The commissioner of public tion of his successor, the present governor. lands or superintendent of public works, The supreme court of Hawaii assumed, as the case may be, by and with the auwithout definitely deciding, that the plain lease, sell, or otherwise dispose of the public thority of the governor, shall have power to tiff had a right to maintain the suit. The lands and other property, in such manner question of the validity of the exchange it as he may deem best for the protection of decided against the contention of the plain-agriculture, and the general welfare of the tiff, holding that the commissioner had the territory, subject, however, to such restric was must be considered in connection with it. The is also alleged that the purpose formed argument to support the contention is that by the governor and commissioner, and the proviso must be understood in the the purpose advertised by them, strict technicality of limiting or qualifying to get for the lands other lands of the preceding subject-matter, and to the carv- equal value and of greater immediate ing out there from some special matter, and, service to the territorial government. it is insisted, giving the proviso that purpose, The suit was brought to restrain the exethe specially carved-out matter "is the re- cution of that purpose. Benefit, therefore, quirement of an auction sale in the case of not injury, apparently may result from the the exchange of land," leaving as applicable exchange, and, so far as we are informed to such exchange all the other limitations. by the record, it may be even a benefit to the The supreme court of the territory, as we policy which plaintiff declares it is the purhave seen, decided against the contention. Let pose of the land laws of the territory to 445]us grant, *arguendo, that the decision promote, and upon which he, in part, bases may be disputed, what injury has plaintiff his interpretation of them, the policy of shown that he must suffer by the exchange? encouraging "the settlement and homeWhat injury, indeed, has he shown, either to steading of public lands," and the "parceling the territory or to any taxpayer of the ter-out" of them "in limited areas on favorable ritory? terms." The plaintiff takes pains to justiThe plaintiff alleges that he is a taxpay- fy this inference, for he avers that the exer, but does not allege anything from which change is not proposed for settlement of it can be inferred that he will be injured rights or claims, nor for the use of roads, as a taxpayer, subject to a burden as such. nor for the site or sites of the government It is true it is alleged that the lands which building or buildings, nor for any other govare offered for exchange are under lease ernment purpose. Therefore, as plaintiff has for terms varying from twenty-five to thir-ro personal interest in the matter in litigaty-five years, at a rental of $1,600. But it tion, the writ of error is dismissed. tions as may, from time to time, be express-, amounts of his payments to the government ly provided by law." on account of purchase, without the interSec. 254. "The provisions of § 253 shall est, and a pro rata share in such advance in not extend or apply to cases where the gov-proportion to the amounts of his payments. ernment shall, by quitclaim, or otherwise, If such sale shall result, however, in a less dispose of its rights in any land, by way of price than the original, the amount returncompromise or equitable settlements of the able to him shall be charged with a pro rata rights of claimants, nor to cases of exchange amount of such decrease, proportioned to or sales of government lands in return for the amounts of his payments. The treaparcels of land acquired for roads, sites of surer is hereby authorized to pay the government buildings, or other government amount returnable to the outgoing tenpurposes." ant, upon the requisition of the commissioner, out of any funds available for such purpose. 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. "Which agreement shall entitle the purchaser to a land patent of the premises upon the due performance of its conditions. "The commissioner shall have authority to fix any upset price for all such sales for cash or part credit and part cash. "And he may, with such consent, sell public lands not under lease in parcels of not "All such sales shall be held in Honolulu, over 600 acres, at public auction, upon part or in the district where the land to be sold credit and part cash, and deliver possession is situated. Any person designated by the under an agreement of sale containing con- commissioner may act as auctioneer at such ditions of residence on or improvement of sales without taking out an auctioneer's the premises sold, or of payment by instal-license. ments or otherwise of the purchase price, or all or any of such conditions. "And in case of default in the performance of such conditions, the commissioner may, with or without legal process, and without notice, demand, or previous entry, take possession of the premises and thereby determine the estate created by such agree ment. In case of such forfeiture, such land shall be sold at auction, either as a whole or in parcels, for cash or on terms of time payments, in the discretion of the commissioner; and if such sale shall result in an advance on the original price, the original purchaser shall receive therefrom the "Provided, however, that land patents may be issued in exchange for deeds of private lands or by way of compromise upon the recommendation of the commissioner and with the approval of the governor without an auction sale, and further provided, that the governor may, in his discretion, upon such recommendation and approval, execute quitclaim deeds for perfecting the titles of private lands where such titles are purely equitable, or where such lands are suffering under defective titles, or in cases of claims to use of lands upon legal or equitable grounds." |