1962.03.07

1956 (O) 61

Minshu Vol. 16, No. 3

(Civil Case)Judgment on a resolution of the assembly of a local public entity and a suit under Article 243-2, paragraph (4) of the Local Autonomy Act

Case of prohibiting a police budget expenditure pursuant to the Local Autonomy Act

Judgment of the Grand Bench, dismissed

Osaka High Court, Judgment of August 9, 1955

1. A resident may file a suit under Article 243-2, paragraph (4) of the Local Autonomy Act to seek the prohibition, restriction, or the like of an expenditure of public funds that has been approved by a resolution of the assembly of a local public entity.
2. It should be understood that the scope of the court's power of judicial review does not extend to determining the appropriateness of decision proceedings for legislation in either of the Houses of the Diet.
3. The Police Act (Act No. 162 of 1954) that abolished the municipal police and transferred the affairs of the municipal police to the prefectural police does not violate Article 92 of the Constitution.

Article 243-2 of the Local Autonomy Act, Article 59, Article 81, and Article 92 of the Constitution, Article 40 of the former Police Act (Act No. 196 of 1947), and Article 36 of the Police Act (Act No. 162 of 1954)

The final appeal is dismissed.
The costs of the final appeal shall be borne by the appellant of the final appeal.

The appellant's reasons for final appeal are as shown in the Exhibit.
The judgment in prior instance did not uphold the claim of the appellant because it found that it is clear that the scope of authority of audit committee members of a local public entity includes only the appropriateness and reasonableness of acts performed by the head and other executive agencies of the local public entity and excludes the reasonableness of a resolution of the assembly; even in the case of an audit under Article 243-2 of the Local Autonomy Act, the authority of audit committee members should be considered in the same way, and therefore, a suit filed under the same Article may not seek the correction of the illegality of a resolution of the assembly beyond the authority of the audit committee members; and since the relevant expenditure was based on a budget approved by a resolution of the Osaka prefectural assembly, the illegality of such expenditure asserted by the appellant does not fall under the illegality for which a resident was allowed to seek a judicial decision. In this appeal, the appellant argues that the above judgment in prior instance to the above effect contains an error in the interpretation of laws and regulations and is thus illegal.
The demand for an audit and the suit by a resident provided for in Article 243-2 of the Local Autonomy Act are with regard to acts performed by the head and other employees of a local public entity in connection with public funds and property of the local public entity, but do not aim to correct a resolution of the assembly, as stated in the judgment in prior instance. However, it is natural that the expenditure of public funds or the like by the head and other employees should be implemented not only based on a resolution of the assembly but also in accordance with the provisions of laws and regulations. There is no reason for deeming that any expenditure that is illegal against laws and regulations should be lawful only because it was approved by a resolution of the assembly. The judgment in prior instance seemed to consider that in such a case, the issue should be resolved by filing a demand for dissolution of the assembly as provided in Chapter V of the same Act. However, it is reasonable to consider that the purpose of establishing Article 243-2 of the same Act, apart from Chapter V, is to give individual residents a means to seek the restriction or prohibition of illegal expenditures or the like because the means of filing a direct demand is not enough to ensure properness of the expenditure of public funds, management of public property, and the like. Based on the above understanding, approval by a resolution of the assembly does not mean that the audit committee member may not demand that the head take reasonable measures for execution thereof. Particularly in the suit, it must be understood that the audit committee member may seek the prohibition, restriction, or the like of execution even when such execution was approved by a resolution of the assembly. It must be said that the judgment in prior instance finding that the appellant's claim should be dismissed with prejudice on the merits only because the expenditure in this case had been approved by a resolution of the Osaka prefectural assembly contains an error in the interpretation of laws and regulations and is thus illegal. With respect to the above point, it can be said that the appellant's argument is well-grounded.
According to the records, the reason the appellant asserts that the expenditure in this case is illegal, is that the Police Act (Act No. 162 of 1954) is invalid and the expenditure is based on such invalid law. Then the reason the appellant asserts that the Police Act is invalid is as follows; a resolution of the House of Councilors passing the bill of the same Act is invalid, and therefore, the same Act is not effective as a law; and the content of the same Act is contrary to the principle of local autonomy set forth in Article 92 of the Constitution, and therefore, it is invalid. However, the same Act was approved by the resolutions of both Houses of the Diet and was promulgated through lawful procedures. For this reason, the court should respect the autonomy of the Houses and should not decide the validity of the same Act by examining the facts related to the decision proceedings for enacting the same Act as argued by the appellant. Accordingly, it is impossible to hold that the same Act is invalid for the reasons argued by the appellant. Next, although the appellant asserts that the content of the same Act is contrary to Article 92 of the Constitution, the fact that the same Act abolished the municipal police and transferred the affairs of the municipal police to the prefectural police is not considered contrary to the principle of local autonomy. For this reason, it cannot be said that the content of the same Act is contrary to Article 92 of the Constitution, and accordingly, it is invalid.
As explained above, the Police Act is not found invalid, and the appellant does not assert any other cause of illegality of the expenditure in this case. Accordingly, it must be said that the appellant's claim in this action is groundless in itself. As stated above, it can be said that the judgment in prior instance contains an error in the interpretation of Article 243-2 of the Local Autonomy Act. However, it is correct that the judgment in prior instance did not uphold the appellant's claim. In the end, the appeal is groundless.
Accordingly, the Court dismisses the appeal with prejudice on the merits and decides as set forth in the main text of the judgment pursuant to Article 396, Article 384, paragraph (2), Article 95, and Article 89 of the Code of Civil Procedures.
Except for the concurring opinion of Justice OKUNO Kenichi and the dissenting opinions of Justice YOKOTA Kisaburo, Justice SAITO Yusuke, Justice FUJITA Hachiro, Justice TARUMI Katsumi, Justice SHIMOIIZAKA Masuo, and Justice YAMADA Sakunosuke, this judgment has been rendered unanimously by the Justices.
The concurring opinion of Justice OKUNO Kenichi is as follows:
The judgment in the first instance referred to in the judgment in prior instance dismissed the claim in this action with prejudice on the merits, finding that the claim in this case was groundless because, while the provisions of Article 243-2 of the Local Autonomy Act allowed residents in a local public entity to seek restriction, prohibition, or other measures with regard to the illegal expenditure of public funds or the like by the head and other employees of the local public entity, those provisions only allowed the residents to encourage audit committee members to exercise their authority with regard to matters subject to the authority of the audit committee members and, if dissatisfied, to file a suit to achieve their purpose, and it should not be understood that they allowed residents to use the means specified in the same Article to correct any matter beyond the authority of the audit committee members. The judgment in prior instance, as clearly shown in the text thereof, determined that the plaintiff was not allowed to seek the prohibition or the like of the police expenditure in this case by the Governor of Osaka Prefecture in accordance with the interpretation of Article 243-2, and therefore, dismissed with prejudice the claim in this action because it was groundless, and did not find that this action was an unlawful action requesting the court to judge a matter which may not originally determined by the court. Although the above determination in prior instance is unreasonable, this Court finds that the claim in this action is groundless for other reasons and dismisses it with prejudice on the merits. This Court affirms the judgment in prior instance because it was correct in that it concluded not to uphold the claim in this action. For this reason, this Court should dismiss the appeal with prejudice on the merits in accordance with Article 384, paragraph (2) of the Code of Civil Procedure.
Assuming that because a judgment in prior instance should have dismissed without prejudice a claim for the reason stated in the judgment, in spite of the main text thereof being the claim dismissed with prejudice, such judgment may be deemed to be the judgment dismissing the claim without prejudice, in the case where an appeal was filed against such judgment in prior instance that dismissed the claim without prejudice on the ground that the claim was unlawful, even if the appellate instance should dismiss the claim with prejudice on the ground that the claim is groundless, the appellate instance may not revoke the judgment in prior instance and render a judgment to dismiss the claim with prejudice due to the principle that the appellate instance is prohibited from altering the decision in prior instance to the disadvantage of the appellant, because a judgment to dismiss the claim without prejudice is more beneficial to the appellant compared with a judgment to dismiss the claim with prejudice. As a result, the appellate instance is merely required to render a judgment to dismiss the appeal with prejudice. This is indicated in the Judgment of Daishinin (Minshu Vol. 19, Ge, page 1284 of August 3, 1940) and does not need to be amended at present.
The dissenting opinion of Justice SAITO Yusuke is as follows:
The claim in this action argues that the new Police Act is invalid as a law; the defendant should not have submitted the budget under the new Police Act, and the Osaka prefectural assembly should not have approved the budget; however, the budget was submitted and approved as stated above, and the defendant intends to implement the illegal expenditure based on the budget. Based on such arguments, the plaintiff filed an action for prohibiting implementation of the above expenditure and ordering the defendant to take measures to recover the money already spent. I think that the determination on the second defense of the defendant (that the action in this case may not be filed solely on the ground that a resolution of the assembly is invalid), made by the judgment in prior instance and made by the judgment in the first instance affirmed by and referred to in the judgment in prior instance, is correct. It should be understood that "illegal expenditure" as prescribed in Article 243-2 of the Local Autonomy Act refers to matters which audit committee members have the authority to audit and to demand the head of the local public entity to take measures for. However, audit committee members are merely an agency that audits executive agencies, and do not have any function of control over the assembly. For this reason, audit committee members have no authority to criticize as illegal or unfair a budget approved by a resolution of the assembly and may not blame, based on such criticism, the head and other executive agencies for their acts. Since the claim in this action argues that it is illegal for the Governor of Osaka Prefecture to implement a police expenditure based on a budget approved by a resolution of the Osaka prefectural assembly solely on the ground that the resolution for the budget is illegal, the claim should be considered groundless at least for this point. With respect to the claim in this action, as the majority opinion states, I do not think that it is necessary to additionally make a determination on the first defense of the defendant. I think that the majority opinion confuses the illegality of the resolution of the assembly for the budget with the illegality of implementing the expenditure based on a budget approved by a resolution of the assembly and, after all, does not correctly understand the assertions and determinations made in the judgment of first instance and the judgment of the second instance.
The dissenting opinion of Justice FUJITA Hachiro is as follows:
I think that the judgment in prior instance finding that the appellant's claim should be dismissed only because the expenditure in this case had been approved by a resolution of the Osaka prefectural assembly contains an error in the interpretation of laws and regulations and is thus illegal, as the majority opinion states. I also agree with the majority opinion with regard to the statement that in the end, the appellant's claim is groundless in itself. However, while the majority opinion finds that the judgment in prior instance is illegal, it does not quash the judgment in prior instance but dismisses with prejudice the appeal by applying mutatis mutandis Article 384, paragraph (2) of the Code of Civil Procedure. I consider that this is an error in court proceedings and this Court should quash the judgment in prior instance and decide by itself to dismiss with prejudice the appellant's claim pursuant to Article 408 of the Code of Civil Procedure.
This case is a "suit under Article 243-2, paragraph (4) of the Local Autonomy Act," which was introduced for the first time in Japan by the establishment of the same Article based on the Taxpayer‘s suit model of the United States. Paragraph (4) of the same Article specifies what kinds of acts performed by employees of a local public entity should be subject to a suit.
With respect to this issue, the judgment in prior instance found as follows; an "illegal expenditure" that may be sought by such a suit to seek restriction, prohibition, or other measures are limited to matters that audit committee members are authorized to audit and to demand the head of an ordinary local public entity to take measures for, and any act performed based on a resolution of a local assembly is outside the authority of audit committee members; the police expenditure by the Governor of Osaka Prefecture, for which the appellant in this action seeks prohibition, is implemented based on the budget approved by a resolution of the Osaka prefectural assembly, and therefore, "it must be said that" the expenditure "does not fall under an illegal act for which the judicial decision of a court may be sought by a suit under Article 243-2, paragraph (4) of the Local Autonomy Act. The plaintiff's (appellant's) claim in this action is unreasonable because of this point and should inevitably be dismissed." According to the main text of the judgment in prior instance, the judgment obviously found that the act of the governor in this case was not subject to a suit as stipulated in the same Article and that this action failed to meet the requirements for a lawful action because the subject matter thereof was not a matter legally subject to a suit. The judgment in prior instance, without deciding anything on the merits whether the claim in this action was well-grounded, rejected the appellant's claim by decision before the merits, stating that this action failed to meet the litigation requirements. (The judgment in the first instance maintained by the judgment in prior instance stated, in its main text, "the plaintiff's (appellant's) claim is dismissed with prejudice." However, considering the reason thereof, it is clear that the judgment in prior instance is the decision before the merits.)
There is an error in the above decision of the judgment in prior instance, as the majority opinion points out. The final appeal filed by the appellant is well-grounded with regard to this point, and accordingly, the judgment in prior instance should be quashed pursuant to Article 407 of the Code of Civil Procedure.
By examining the merits of the appellant's claim in this action, the claim is found to be groundless in the arguments itself, as explained by the majority opinion, and therefore cannot be upheld. For this reason, this Court should decide by itself to dismiss with prejudice the claim pursuant to Article 408 of the Code of Civil Procedure. In this case, this Court should not dismiss with prejudice the appeal by applying mutatis mutandis Article 384, paragraph (2) of the Code of Civil Procedure as the majority opinion states. The reason is because the same Article does not allow a judgment in prior instance that rejected an action on any ground before the merits to be maintained on the ground regarding the merits. (Although there are one or two precedents of Daishinin that seem to allow it, it is inappropriate to apply those precedents to this case because such precedent addresses the facts different from this case, and additionally, the reasoning of those precedents is incorrect, as scholars have pointed out.) When this Court decides by itself that an allegation of an appellant, who is the plaintiff, obviously in itself lacks legal grounds as in the claim in this action, it should be understood that even if this Court does not remand the case to the court of prior instance but makes a judgment on the merits to dismiss the claim, it does not violate the principle of the appellate instance being prohibited from altering the decision in prior instance to the disadvantage of the appellant.
Justice YOKOTA Kisaburo agrees with the above dissenting opinion of Justice FUJITA.
The dissenting opinion of Justice TARUMI Katsumi is as follows:
The majority opinion states that considering the purport of Article 243-2 of the Local Autonomy Act, the Police Act cannot be held invalid on the grounds argued by the appellant, and accordingly, the appellant's claim in this action is groundless. I agree with the majority opinion with regard to these points. However, I think that this Court should decide by itself to quash the judgment in prior instance and render a judgment on the merits of which main text is to dismiss the appellant's claim.
(1) When the head of an ordinary local public entity (hereinafter referred to as "Local Public Entity") intends to implement any illegal expenditure of public funds or property of the Local Public Entity, any resident, including taxpayers, of the Local Public Entity may file a suit with the court to seek a judgment to cancel, prohibit, or restrict the implementation of the expenditure pursuant to Article 243-2 of the Local Autonomy Act. This system was established based on the taxpayer suit model of the United States. It is said that because the property of the Local Public Entity is entrusted by taxpayers, they have the right to seek from a court the cancellation, prohibition, or the like of any illegal expenditure of the property.
The same Article allows any of residents, when the resident cannot ignore any illegal expenditure of the property of their Local Public Entity even if their own interests protected by law are not infringed nor likely to be infringed, to seek for the court which is a fair judge of law a judgment to prohibit or cancel such illegal expenditure and to thereby protect the rights of the Local Public Entity. In this way, the proper management and disposal of public funds and property is not left just to the supervision of public employees but is examined publicly in the court as a result of resident initiative.
If a resolution of an assembly of a Local Public Entity to implement the expenditure of public funds is illegal (for example, an expenditure of public funds to support a specific candidate in an official election) or under laws and regulations in violation of the Constitution (for example, a prefectural ordinance that permits the expenditure of special aid for specific religious organizations or persons of specific social status), the head of the Local Public Entity is not obliged to abide by such resolution because it is illegal, and any expenditure based on such resolution is also illegal. Expenditures approved by resolutions in accordance with laws and regulations that have not been enacted yet or is already abolished would also be illegal.
(2) The object of the claim of the plaintiff (appellant) in this action is to seek a judgment "to prohibit the defendant Governor from implementing the police expenditure (public safety commission expenditure) more than 900 million yen shown in the additional budget for fiscal year 1954 and approved by a resolution of the Osaka prefectural assembly on June 30, 1954." As the statement of the claim, the plaintiff (appellant) asserts, "On June 30, 1954, the assembly adopted a resolution to approve the additional budget for the same fiscal year submitted by the defendant Governor, which included a police expenditure (public safety commission expenditure) of more than 900 million yen under the new Police Act promulgated on the 8th day of the same month, and the Governor intends to implement the expenditure in accordance with the budget. However, the Police Act was not approved by a resolution of the House of Councilors and therefore was not enacted and is invalid. Accordingly, the relevant resolution and the Governor's implementation of the expenditure based thereon are illegal."
The defendant admitted all the facts constituting the statement of the claim except for the fact that the Police Act was not enacted and is invalid. (Needless to say, the facts constituting the statement of the claim exclude the circumstances of the deliberation of the Police Act bill in the 19th session of the House of Councilors of the Diet, based on which the plaintiff (appellant) asserts that the Police Act is invalid. The validity or non-validity of the Act is a matter to be examined under the court's own authority. In the case of examination under the court's own authority, even if the parties dispute the circumstances of the deliberation in the House of Councilors, whether those circumstances need to be examined is a legal matter which should be decided by the court. Even if the parties do not dispute the circumstances of the deliberation, the court is not bound to find them as asserted by the parties.)
The sole issue that has been disputed since the first instance is the legal issue, whether the right to seek (a judgment for) the prohibition of the defendant Governor's implementation of a public safety commission expenditure based on the resolution arises on the grounds of the above simple facts constituting the statement of the claim (even if the facts are not disputed between the parties or are found based on evidence) or in other words, whether it can be said that the Police Act was not enacted and is invalid on the grounds asserted by the plaintiff. Both parties disputed this legal issue based on their complaints and responses. The judgments in the first instance and the second instance found that this action should be dismissed with prejudice on the ground, in short, that it does not fall under the action as set forth in Article 243-2, paragraph (4) of the Local Autonomy Act and is an unlawful action which should inevitably be dismissed without prejudice.
(3) The judgment of this Court states that "the Police Act was approved by the resolutions of both Houses of the Diet and was promulgated through lawful procedures. For this reason, this Court should respect the autonomy of the Houses and cannot hold that the Act is invalid for the reasons argued by the appellant with respect to the procedure of the enactment thereof; the Act is not held as invalid."
This Court's understanding is as follows; the Police Act is not invalid, and therefore the court of prior instance should have rendered a judgment to dismiss the claim with prejudice on the merits on the ground that the police expenditure was not illegal, that the right to seek the prohibition of the implementation of the police expenditure based on the resolution on the budget could never arise from the facts constituting the statement of the claim, and therefore, the claim in this action was groundless in itself, and that there were no other facts to be examined in the case; however, the court of prior instance concluded that the claim should be dismissed without prejudice on the ground that this action could not be examined under the court's authority and was unlawful and concluded that the judgment should be rendered to dismiss the claim with prejudice on the merits; accordingly, this judgment is illegal.
(4) Based on the above, this Court should quash the judgment in prior instance and decide by itself to dismiss the appellant's claim in this case with prejudice, thereby making a judgment on the merits to substantively put an end to this case. In this case, it is appropriate to think that the appellant has no legitimate interests to prohibit the final appellate court from altering the judgment in the second instance to the disadvantage of the appellant. This is because the appellant requested the court of the second instance render a judgment on the merits to "Revoke the judgment in prior (first) instance; Prohibit the implementation of the police expenditure of more than 900 million yen that had been approved by a resolution by ゝゝゝ," and should have prepared for the risk of losing the case on the merits. In addition, I think that the reason and conclusion that "the claim is groundless and therefore should be dismissed with prejudice on the merits" may not substitute for the reason and conclusion of "the action is unlawful and therefore should be dismissed without prejudice." Deeming it reasonable to render a judgment on the merits with regard to the appellant seeking a judgment on the merits, it would be more correct and clearer to make a judgment that is consistent with the conclusion, even if the judgment causes the plaintiff to lose the case and prohibits the plaintiff from filing the same action again. By the way, in this case, oral arguments were held only with regard to legal issues on the merits in the first instance and the second instance, and this Court in the final instance decides the legal issues on the merits. For this reason, it is unnecessary to remand the case.
The dissenting opinion of Justice SHIMOIIZAKA Masuo is as follows:
It is said that the taxpayer suit was developed based on the principle of equity when officers of a stock company commit an illegal or unfair act and thereby cause a loss to the company's property, shareholders having an interest in the property of the company may restrain the relevant act in order to protect the property of the company. The purpose of taxpayer suit is, when the property of an ordinary local public entity is used illegally or the public funds thereof are unfairly spent, to have a taxpayer file the suit to restrict the illegal or unfair act and obtain compensation for the loss of the property of the local public entity for the purpose of protecting the property of the local public entity. When officers and employees of an ordinary local public entity illegally use the property of the local public entity or unfairly spend public funds, the local public entity should primarily be obliged to prohibit or restrain the relevant act and order the officers and employees to pay compensation for any loss or damage caused. If the local public entity is unaware of the act or casually overlooks it, the property of the local public entity will be exposed to the willful misconduct of its officers and employees. This situation is intolerable for taxpayers of the local public entity, and therefore they are allowed to file a taxpayer suit to restrain and correct such illegal misconduct. The property unfairly used or dissipated by officers and employees of a local public entity consists of taxes paid by taxpayers who entrust the use or management of the property to the local public entity, and therefore, taxpayers are allowed to restrain or correct the misconduct as stated above. This is the theoretical ground of a taxpayer suit. When officers and employees of a local public entity commit an illegal or unfair act, it must primarily be the local public entity that restrains the relevant act. If the local public entity takes no measure to restrain the illegal or unfair act committed by its officers and employees and thereby its interests face crisis, a taxpayer suit may be filed to remedy the situation as a secondary means. In a taxpayer suit, taxpayers claim the rights of the local public entity, not the rights of taxpayers. For this reason, it should be held that taxpayers may file a taxpayer suit only in the case where the local public entity may file a suit.
The so-called resident suit, stipulated in the Local Autonomy Act of Japan, is derived from the taxpayer suit system in the United States. Typical taxpayer suits recognized in precedents in the United States include the following:
(1) Where an employee of a local public entity is in a position to make an effective claim regarding the property rights held by the local public entity, but does not make such claim (a taxpayer suit filed by taxpayers to recover public-fund money that has been unlawfully spent).
(2) Where public property is used unlawfully. (For example, where the ground of a public school is leased by the board of education to an oil company for the purpose of collecting petroleum, a taxpayer suit is filed by taxpayers to invalidate the lease agreement.)
(3) Where money has been borrowed illegally. (A taxpayer suit is filed by taxpayers to stop the city from issuing municipal bonds beyond the permitted limit.)
(4) Where public funds are unfairly spent. (For example, the city decides to spend public funds to repay the city's debts, and a taxpayer suit is filed by the taxpayers to stop such expenditure on the ground that in fact the city does not have those debts, or the debts are invalid.)
Cases falling under (4) above include cases where expenditures of public funds are implemented pursuant to a law that is alleged to violate the Constitution, and there are a considerable number of such cases where a suit filed by state taxpayers to stop the expenditure of public funds was found to be a lawful taxpayer suit.
It is reasonable to consider that a so-called resident suit stipulated in the Local Autonomy Act of Japan also allows residents to file a suit to stop the implementation of an expenditure of public funds pursuant to a law that is alleged to violate the Constitution. However, we should note that a resident suit must be filed in a timely manner. It is necessary to file a resident suit at a stage when the act to be stopped by injunction can still be stopped. In addition, even if a resident suit is filed at a stage when the relevant act can still be stopped, once the expenditure of public funds to be stopped by an injunction is implemented while the suit is pending and then enters into a state where it can no longer be stopped, the suit will bring no benefits in the end. I think that this case falls under exactly this type of suit.
The judgment sought by the appellant who is the plaintiff in this case, that is, the object of claim thereof is, in short, to "order the Governor of Osaka Prefecture to stop the implementation of a police expenditure (public safety commission expenditure) of 959,735,900 yen based on the additional budget for fiscal year 1954 that was approved by a resolution of the Osaka prefectural assembly on June 30, 1954, and to take measures to recover the money that has already been spent." The budget of a local public entity is implemented within the relevant fiscal year, and its accounts are closed as of May 31 of the following year, in principle (see Article 241 of the Local Autonomy Act). Accordingly, it must be considered that the police budget for fiscal year 1954 was implemented by May 31, 1955, at the latest, and its accounts were closed on the same day. The action in this case was filed on July 28, 1954, and would have been lawful as long as the plaintiff sought an injunction against a police expenditure that had not yet been implemented. However, while the appeal in this case was pending in the Osaka High Court, accounts were closed with regard to the budget for fiscal year 1954 on May 31, 1955 as above, and therefore, it must be said that the action seeking an injunction against a police expenditure based on the budget for fiscal year 1954 would no longer bring any benefit. Incidentally, this action also seeks measures to recover the money that has already been spent. However, since the money already spent would include small amounts of salaries and wages, it is impossible to take measures to recover all of those amounts under a prefectural governor's authority. It must be said that such action is to seek legally impossible performance. Nevertheless, this does not mean that in such a case there is no remedy for the resident taxpayers. A resident may file an action against individuals who have received public funds from the local public entity, to recover those public funds, which is the exact type of the resident suit anticipated by law. This is consistent with the aforementioned legal theory that a taxpayer suit may be filed only in the case where the local public entity may file a suit, and a taxpayer suit is allowed because the local public entity does not do so.
In summary, I conclude that in this action, the claim seeking an injunction against the budget expenditure has already achieved a state in which it will no longer bring any benefit and should inevitably be dismissed with prejudice and that the claim seeking measures to recover the money already spent is to seek legally impossible performance and should inevitably be dismissed without prejudice. Accordingly, I think that the judgment in prior instance that decided differently from the above should be quashed, and since it is understood that this case is ripe for judgment, it is reasonable for this Court to decide by itself to render a judgment including the conclusions as stated above.
The dissenting opinion of Justice YAMADA Sakunosuke is as follows:
I consider this action to fall under a so-called resident suit stipulated in Article 243-2 of the Local Autonomy Act established under the new Constitution. I agree with the majority opinion on the point that the judgment in prior instance did not examine the case on the merits and therefore is illegal and should be dismissed with prejudice on the merits since the claim is after all groundless in itself. However, the majority opinion states that, in this case, it is sufficient for this Court to simply "dismiss the appeal with prejudice." I cannot agree with this point. With respect to this point, I agree with the opinions of Justice YOKOTA, Justice FUJITA, and Justice TARUMI. To supplement the opinions, I would like to state my opinion as follows:
The judgment in the first instance and the judgment in the second instance referring simply thereto dismissed the claim without examining or judging the merits (on the ground that the action failed to meet the requirements for a suit), as Justice FUJITA has already pointed out. Although the main text of the judgment stated that "the claim is dismissed with prejudice on the merits," it substantially meant that "the action is dismissed without prejudice." The judgment in the second instance stated that "the appeal is dismissed with prejudice on the merits," while affirming the reasons for the judgment in the first instance. In short, both the judgments in the first instance and the second instance did not examine nor judge the merits of the case. In response to those judgments, the appellant filed an appeal requesting that this Court quash the judgment in prior instance and examine and judge the merits of the case. With respect to this appeal, this Court finds that it was illegal for the judgment in prior instance not to examine and judge the merits of the case, that the appeal is well-grounded with respect to this point, and that the judgment in prior instance should be quashed and the merits of the case should be examined. Accordingly, this Court usually would quash the judgment in prior instance and remand the case to the lower instance court. However, as stated above, this Court finds that the claim in this action is groundless in itself, and therefore, it is unnecessary to remand the case to the lower instance court, concluding that this Court should decide by itself to dismiss the appellant's claim with prejudice on the merits. I think that therefore, the main text of judgment should naturally state that the judgment in prior instance is quashed and the appellant's appeal is dismissed with prejudice on the merits. The majority opinion states that, even in this case, it is sufficient to simply "dismiss the appeal with prejudice on the merits" by applying mutatis mutandis Article 384, paragraph (2) of the Code of Civil Procedure. However, I cannot agree with this. Because the nature of a judgment to dismiss the claim without prejudice before the merits (the judgments in the first instance and the second instance) is fundamentally different from the nature of a judgment to "dismiss the claim with prejudice on the merits," I think that Article 384, paragraph (2) of the Code of Civil Procedure cannot apply in this case. Also from the standpoint of res judicata, if the final appellate instance reaches the same conclusion as the first instance and the second instance that the claim should be dismissed without prejudice, it is considered that the appeal should be dismissed with prejudice. However, in this case (where there are two judgments of different natures), if this Court simply decides to "dismiss the appeal with prejudice on the merits," it may cause confusion about which reasons for judgment have res judicata. There is an argument that in a case such as this one, the final appellate court has no choice but to decide to simply "dismiss the appeal with prejudice on the merits" due to the principle that the appellate instance is prohibited from altering the decision in prior instance to the disadvantage of the appellant. (A judgment to dismiss the claim with prejudice is deemed to be more disadvantageous to the appellant than a judgment to dismiss the claim without prejudice because the same action could then be filed again in the latter case but not in the former case.) However, in this case, the appellant never had a judgment rendered on the merits in the lower instance courts, and therefore, the appellant has no interests to be protected that were recognized in the judgment in prior instance. (With respect to this point, the appellant is in the same state as the appellant was in at the time of the filing of the complaint.) If the appeal is well-grounded, the final appellate court should examine the merits of the case to quash the judgment in prior instance. (The appellant requests that this Court quash the judgment in prior instance.) If, as in this case, the claim is groundless in itself and to be dismissed without remanding the case to the lower instance court, the final appellate court should quash the judgment in prior instance and decide by itself to dismiss the appellant's claim with prejudice on the merits. Such a judgment does not violate the principle that the appellate instance is prohibited from altering the decision in prior instance to the disadvantage of the appellant because the appellant has no interests to be protected that were recognized in the court of prior instance. In addition, the appellant, who is seeking a judgment on the merits, should prepare for a judgment that may be disadvantageous to the appellant.
Based on the above reasons, I think that the final appellate court in this case should quash the judgment in prior instance and dismiss the appellant's claim with prejudice on the merits.

Grand Bench of the Supreme Court
Justice YOKOTA Kisaburo
Justice SAITO Yusuke
Justice FUJITA Hachiro
Justice KAWAMURA Matasuke
Justice IRIE Toshio
Justice IKEDA Katsu
Justice TARUMI Katsumi
Justice KAWAMURA Daisuke
Justice SHIMOIIZAKA Masuo
Justice OKUNO Kenichi
Justice TAKAGI Tsuneshichi
Justice ISHISAKA Shuichi
Justice YAMADA Sakunosuke
Justice TAKAHASHI Kiyoshi was unable to sign and seal due to his death.
Justice YOKOTA Kisaburo