The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1882-11-11

lt was while this notice was standing that tn
respondent shut of petitioners water privilege OF
the 18Th OF October for ON the 2Ist a notice ap
pears limiting irrigation TO between 6 and
am, and again on the 24th n notice limiting tn
privilege from 8 10 TO s am, and from 4 to
pm
Later rules in conflict with former ones orcr
ate "a a repeal Of former ones.
IL Is argued that the notice of October 1871
iOTbIdding all irrigation has no binding force al
not having received the approval Of the Minister
Of the Interior.
There Is on the back vi the receipt Tor the
water sold, these words: The within receipt lol
water rates - given with the full understand
ing that the party holding the receipt will con
form TO the rules and regulations Issued from
time to time, by order Of the Minister of the In
terror Neglect Of such regulations will subject
the Tatepayer to forfeiture Of water privileges. .
The petitioners counsel contends that having
PAID hs water rates, the receipt is a contract
which binds the Government to furnish him an
adequate supply Of water for the term
Of SIX months, and that the notice on the
back Of the receipt, it not being shown that
petitioner . attention was called TO IL and his
consent obtained, Is no part Of il, and therefore,
the Superintendent, q. B. Wilson. has no right to
curtaIl petitioners water privilege in the least.
Also that the prOviso on the back Of the receipt
- void IN dehniteness, and that there is no power
given by the Legislature to make rules, etc.
The circumstances in brief are these the petit
TONER knowing the regulation limiting the hours
Of irrigation to be from 3 to 8 am. and from
4 to 8 am. has generally conformed to them
but during many days after 1st July he has not
bad Il servant employed IN attending TO his gar
den, and 20 has irrigated himself after the deslg-
mated hours. For ten days previous to the 18th
October but little UT 10 water flowed through his
taI-. and during the hours from g to Q n IN. and
from ! TO b pm. las plants were dropping. lie
Irrigated at noon and at such other times in which
there was water in the pipes. On one occasion
bi- tap Was lett open and the water flowed all
night The petitioner says this was unintentiOnal
ON his part.
The respondent Gays that during the ten days
previous TO October 18th the water was low in
tie lower reservoir and that he could only fill it
from the upper reservoir at such hours az rate
payers from the upper reservoir were not using il,
a. the velocity Of the water discharging from il
prevented their taps from running. Moreover he
could not bill the lower reservoir nights because It
inieri.red with The gas machines run by the water
from the upper reservoir, and he had the further
difficulty in drawing off the water from the upper
reservoir. a. certain persons having kalO patches
aud lands between the two reservoirs which had
the privilege Of riparian prOprietOrs from the
stream which supplies both reservoirs would be-
come short Of water unless the overflow FROM the
upper reservoir was allowed to pass back into the
stream for their benefit.
Water ~ a public necessity and especially in
our climate. am OF the opinion that the Govern
IDent having assumed tie enterprise OF supplying
the town of Honolulu with water, and having Sc
cured by various Acts OF the Legislature the right
to condemn the necessary land and water for the
purpose OF a system OF water works which prevents
private parties from engaging in this business, it
has taken upon itsolf IA certain duty towards the
inhabitants OF the town. This is to make availa-
hIe all the water that is reasonably required and
that can reasonably be secured, and to distribute
tie same as equitably as possible to all rate
payers. | think it would not be proper for the
G1vernment to extend indefinitely the number of
distributing taps to new applicants without COR
TespOndingly increasing Its supply. There is no
proof that it has done SO.
But the public receiving the advantages OF this
water supply from the Government, owe certain
duties to it, which are. to pay the rates
as long as they are reasonable and to obey such
rules and regulations as may be made for the
public convenience and protection, provided they
are reasonable.
The obligation Of the Government to the indi-
yidual rate-holder is not alone made by the con-
tract expressed in the receipt for the water rate
for six months in advance. If it was SO then a
of it could not be enforced by man.
damus. If this proceeding is merely to compel
tfe fulfllment OF a contract, then the writ must
not lie. The remedy for breach Of contract lie at
But as IN my opinion the Government has
assumed an obligation in this respect. 1t can be
IL the refusal TO do so is u plain violation
VI duty OH the part of the official. See Section 5
~ VIC NV VI - ~
| have indicated that the Government has a
right TO make reasonable rules and regulations in
respect to the Water Works and the supply OF
To the inhabitants. The exercise OF this
authority is necessary for the public benefit, and
IN order to enable the Government properly to
Tulfll its obligations to all the community in dis
lributing the water as fairly as may be desirable.
Ia times OF a water famine all must suffer a re-
iuction alike. and the Government has then the
right u restrict the use of the water by rate
payers. commencing the reduction with the least
necessary use OF water-i. G., irrigation. At the
time every reasonable exertion must be put
birth To- secure a full supply Of water.
regard the limitation OF irrigation privileges
10 fOu= hours per day, between 8 and 8 a III. and
1 and 6 pm. as reasonable aud as ordI-
narily sufficient, and 1t IS an accommodation to
the public that they may arrange with the Super
Intendent for irrigation during other hours where
these prove announcement either from scarcity OF
water in some localities or from Whatever causc.
Having found that the Government may make
reasonable regulations and restrictions upon the
Of water from its pipes; how can 1t compel
to them? Not by the imposition OF a
money penalty. for this would imply the right to
enforce this by imprisonment, which would be
Illegal without trial by a court, and IN the alb
,encc of "a statute giving the Superintendent oil
Water Works or Minister OF Interior the power
10 inhict fines, the only way these rules can be
,nlurced II by a deprivation Of the offending party
If hIs water privilege n the transgessiOn was IN
outside OF the prescribed hours | should
.ay irrigation privileges should alone be sus-
pended, If it was possible to separate them from
u-cs. But ordinarily it Is not possible
10 d. this.
The regulations Of 18th October. suFPending all
privileges of irrigation. | do not think was reasen-
able OF justified under the circumstances. There
had been no deartb Of sufficiently long continuance
to make this a necessity. If the petitioner had
iuIy transgressed this rule and had used only
water to keep his plants alive, his case
would be different. He had a right moreover to
disregard this last edict because it did not appear
t, have been approved by the Minister OF Int
riur. But the Attorney General does not contend
that this rule was valid and binding. III the
found that it was impossible for bin to
get water for irrigation during the prescribed
hours. it was his duty to apply To the Superin-
tendent GoP a change in his hours.
| do not think that an unintentiOnal and only
an exceptional case of neglect to close a tap and
thus let water run to waste all night should
subject n person to have his privilege summarily