The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-05-03
April Term of the Supreme Court, A. D
1882. In Banco.
Before Jmld {. j., McCmly and Justin, J.J.-Opb-
ioHot ne Court By Anstbi,J.

Before Jnld, c. j., McCmly and Ausip,J J-Opia-
ion Of ne Cor4 By Austb,,J
In the matter of a submission under Sections
114O TO ll43 of the Civil Code Between the Min
lister of the Interior ad interim, and John S. Nc
Grew.
This Submission relates to the Hawaiian Hotel
property, and the question submitted Is whether a
clause Of renewal, in the lease thereof made TO
Allen Herbert, which lease was for five years, and
will expire the first day of September, 1oS2, is
valid clause, and whether the Minister of the In
terror may act in pursuance of that clause, and
execute renewal upon the terms speclhed therein
to John ). McGrew, to whom the said Herbert has
agreed to assign his interest IN the SAID lease and
right of renewal, and whether any renewal or
further lease requires sale ut auction under the
statute On examining all the statutes relating to
the sale and lease of Government lands and prop
erty and their custody, supervision and control,
and the statutes, relative to the sand haWallan
Hotel property, we think the statutes requiring
notice by advertisement for thirty days of sale
lease and sale at public auction of government
lands and property, and leases thereof, do not ap
ply to the Hawaiian Hotel property.
By chapter five of the laws of 1872, p. g. the
Minister of Finance is authorized TO issue govern
ment bonds to the amount of Sll6OOO for the
purchase of that property.
The preamble to that act is as follows: Whereas
public hotel has been erected at Honolulu known
at present as the Hawaiian Hotel; And whereas the
said hotel has been erected solely for the public
benefit, and not for the profit of the projectors;
ANA whereas just anu duNAsdDlo
that the construction of the said hotel shall be
assured as a public enterprise, and the ground
purchased for the purpose as well as the buildings
thereon situated, should be public property there
fore &c And by chapter 36, of the laws of 49,
D. 80, u resolution was adopted in substance with
drawing the custody and supervision of that prop
erty from the Minister of the INTERIOR and charg-
ing the Minister of Finance with the supervision
and care thereof in so far as the interest of the
public treasury therein is concerned. The special
reason for this change being removed by the pay
ment of the bonds the custody of this property Is
now properly with the Minister Of Interior under
the general law.
We think the effect of the language quoted and
of the acts of purchase done in pursuance thereof
plainly show that it designed to withdraw this
property from the ordinary rules of sale and lease
controlling most other Government lands and
property. We think it would not be for the public
benefit always usually, that this property
should be let 10 the highest bidder at public
auction for lessee for the Hotel obtained III this
way might not be the person who, in the opinion
of the Government, would manage 1t ina satisfac-
tory manner and subserve the public interests.
And we think that II vas the intention OF the
Legislature to leave the leasing OF this property to
the wise discretion of the executive officers of the
Government. The object of the construction Of
the Hotel was not so much the obtaining OF large
revenue therefrOm as the securing of well man
aged house OF public entertainment We, there
fore think that it unnecessary, though lawful,
to advertise for sale the lease above referred to
the agreement for possible renewal therein con-
tanned. uuuef the law OF 1910 Chapter IL u llCs
So, we think that the agreement for renewal IS
valid and binding on the Government. Further,
the statute of 1876 provides that all sales of Gov
eminent land shall be made at public auction after
not less than thirty days notice by advertisement
in two newspapers, etc
1t further says that notice of sale, herein above
required 10 be made shall contain a full descrp-
ton of the land to be sold, 10 locality area and
quality, with a reference to the survey which shall
be kept in the office of the Minister, open to in
spection.
This language would seem to apply specially to
vacant lands and it is properly also applied to
leases of such lands We think that the advertise
ment for the sale of this lease and renewal, with
the acts at the sale were ample compliance with
the provisions Of the statute of 1876 and on that
ground, that the clause as to renewal, as well as
the lease valid in the hands of the lessee and his
assigns.
We think it would have been sufficient in the no
tice, properly to describe the property, and to say
that lease thereof would be sold at public auction
at the time and place and upon the conditions then
to be specified. renewal is a customary and fire.
quent incident and condition attached TO lease,
and often constitutes important feature for the
benefit of one or both parties. The act certainly
does not require the special advertisement OF the
terms of any renewal That the renewals option
al does not impair its validity.
10 hold it invalid, even If legally It could be
done, would seem to be a great injustice to the
lessee and his assigns.
We hold that the clause as TO renewal is valid,
and 1t can be so acted upon by the plaintiff in this
case.
Honolulu. April =, ISs2.
Hon. W. \. Armstrong for plaintiff; a. 5. Hart
well for defendant.