The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-09-12

trauFuay. and that the suocessur Of the Minister
/ Who had given ihg PERMISSION was houad BY his
l predeces~1r's lawful acts Nothing had been
alleged OF shown that the defendant did not IN
tend Cr had not acted IN entire good faith, and
With no intention his part 90 take advantage OF
usup the rights NJ the Minister Of the Interior.
/ had charge Of tho internal improvements o. The
country, in his department. VAS placed the control
over roads bridges and streets, be had the right
/ 90 order tlO suspension Of travel on designated
streets. and Cuuld grant the permission TO tear up
roads or block streets. The Minister isthe only
one who has such authority, and 1t was his place
l and m ms power % ahate any obstruction that
NAV become public uuislnce as much a. Il was
IN The power OF private parties 90 seek redress for
private injuries. be defendant has acted openly
and k1uorIb,y, having obtained PERMISSION from
three persons before proceeding with his invest
mCnis- and the Government was knowingly and
openly aware of has intentions. But on thu other
hand, look Jt thg shutting aud ignorance Of law
dIspil ly the Minister Of the Interior and his
legal advisers. This uilcgr writes 90 Mr.. Flower
dow. and tells aim nothing can De done without
obtaining the sanction Of the Puyy Council
What nonsense Nothing IA the Law Of the ooun.
TN % cTuSg such statement The Minister OF
The Interior had fgC power and granted the per
mission. Then notice the trickery resoEted TO by
the production VI tie draft Of a new agreement,
which was sgul 20 .lr, tluWgrdeg. Tbs fresh ar-
phcltiuu was q most tisgDogful one; O. avoid the
payment OF O i've sent faru a list Of dead heads
who should De eutItled 90 free passage Was pre-
pared. clause most dIsgTacylll, cmluatlng' as
the defendant has q night 20 suppose u did from
a Minister uf His halaslY's Government Il was
not until after the defendant declined 10 sign tins
document tlIt tlg injunction was applied for
there was no Intention displayed 60 stop the pro-
Egess Of the proposed work until on the Monday
after. Notice the shutting. the nrst attempt 10
put Of ca account Of not being placed before the
frlyy Council Nothing Is stated IN the bill why
the work should De stopped, not detrimental 10
public good IN fac. interfering with nobody. and
would b. o benefit 20 the Government as We would
Be more likely 90 then have better ru3ds than at
present. II the permission asked for by the de
tendgut prgs8ged Tia introduction Of a steam rail.
way should then hgvU said that the Minister Of
the Interior had no right TO grant permission for
that which might be well termed public nuisance,
as Is cEImp.rd in she railway now laid along
Bgrgluu street, and for the establishment OF
which permission was granted by the Minister Of
the Interior The r-lls of that road as laid aru a
public nuisance and those are the works which
the AJt1ugy-GUuulul should Uuloin, and which he
should compel 90 De aiken up Nothing has been
shown on The bin pruduced ur IN the law why this
injunction should Dc maintained, IN fact, there
has been C1Ecaalugut OF the true facts, and the
defendant UuIys that the injunction be dissolved
Alr. e.. W. Ashford the deputy OF Necessity,
that being the .H..aIH.f ~ the present Attorney
General on account Of his lack Of knowledge Of
law, argued Ia support Of the complaint sabstan-
TALLY as follows The speaker thought the
case hinged ON Minister Bush's letter, that that
officer having given authority which he did not pos
uuiliiaI the act and the Minister had not the
power claimed. MIR Ashford quoted from the
tIyl Code, Sections % and l6I, relative 20 the
duties and powers % she Minister Of Interior. He
also quoted from 18th y Y. Reports page jO6
case Of Davis vs. Mayor of New York - 9Th y. Y.
Reports hIlllaE SIS sharp 18th barber 2 AZ and
Others. The counsel spoke 40 some length and
strongly Iu favor OF tha bill being sustained.
Mr. Preston closed the arguments and claimed
that person cannot Of himself come before a
court Of equity and ask that his own acts, commit
TED Hv his own free will De declared null and void.
In tins case @ Minister has given a lawful permits
sion aud 10y such, induced the defendant TO incur
A. o H.H.H#.H III H..
court and himself offers the excuse that he had no
authority. The learned gentleman quoted largely
from altlHutl.s t' support the points advanced
by hun.
His Honor then took lle case under Amusement
pEgIsIgs uT ana CoUaI, BY AUsrIS, J.
The defendant first objects, in abatement that
the plaintiff is tLo proper party to bring this ac-
ugu. think b., is.
Section 80 Of the Civil Code says the Minister
of the luieflF -G.l, have the charge Of all govern
ueut property whatsoever not expressly placed IN
tle charge ui some other officer.
The government has % property On the public
streets o. Honolulu, and that property Is In the
custody OF the plaintiff under Section 81.
Section 90 OF the Civil Code provides that the
Minister OF Che Interior shall be accountable for
the preservation and -l.a keeping OF the govern
mgut property, all 30 shall Dee his duty 20 pruse
cute any person IuIUuuE trgspassIug upon, or
wruugtully taking tue same.
The defendant Threatened Go 80 uu one OF more of
the public highways vi tle city Of Honolulu and |
tear them mp for the purpose ut establishing |
street railway. Ibis IflgcDuulIshgd, without right
vuUld d. % permanent and IrrgpIrlbe trespass |
and injury 60 o.. property OF the government in /
the public streets and the plaintiff had full power
and It was his duty. d the defendant proposed So
90 do. without right, 90 bring this action 20 re-
strain hlm from SD acting. tlink therefor that /
the action WAS properly brought by the plaintiff,
The second question Is had the defendant any /
right 90 establish street railway IN the streets Of
Honolulu oE any part of tLlms / say upon the |
facts, I think mot.
Briefly. those essential facts are that the Minis
ter of IOEuiEu AuaIrs and Attorney General al u.
'srfrr called upon the defendant, and after some
gave defendant 90 understand that
HIS NlIi-sty'- Government would help the defend
ant To- carry ont LIS scheme for LAYING
horse tElmuly, On tug streets OF Honolulu and the
suburbs thereof That tLe Minister Of the Interior
had charge Of the matter 90 whom defendant
should apply. and that tLegmBtter would De favor
ibIy represented TO such Minister.
lEereUpUu tLg defendant applied to the then |
Minister Ht the Interior Mr.. John K. Bush in
writing as above 4gltgd. Who answered IN writing
Is above quoted, and 90 which the defendant re
llIgi % writing as above quoted,
II The Minister %. tLs Interior had authority 10
% as be- did shown uy his letter 20 the defend
mt uf June 3D. l-i. IJ may De that that letter and
he defendant reply tot. constituted q valid con
rlCt WLIeL would authorize the defendant to pro
ged us be- threatened 60 IN this case. The
defendant claims tlEt the Minister had such au-
hlrity. and If SD. then the Minister has granted
u the defendant perpetual and exclusive right at
rs option Co establish IL tue streets Of Honolulu
nd suburbs. and over and upon every foot of
Lg-e, streets % system of street railways such
s. are usual Ia san Francisco and New York. II
were Co be conc Igd that the Minister Of the In
eEIlr bad power o. make such q grant 1t would
De aa illlrFr unusual, and unprecedented
rant which ought .at ta have been made and Of
'hICl tue public might we'll complain. lbe night
ought 90 be conveyed ls perpetual because no
.mg ls ulltluLgt tHE Dos ul-eIutlll8uce, and eE-
lusive because. it fully exercised 100 other person
Ullu exercise similar right
The authority Ht 81. EIrL!rrH. Of due Interior TO
r.ut such right l.-.". o anywhere, IN statute,
On examining the statutes the only PROVISIONS /
an fad which could possibly be supposed 70 au-
Loriz such grant are sections 5i, q, and l67 Of |
section "a --vs. Ir shall be the duty Of the Min
stgs Of tue Interior 90 have O. general supervision
var the internal affairs u. the kingdom, and 10
atlfIIIy and ImPLrtIlIig execute the duties as
IEueI by law ITO bis department..
Section g. sGEs. The said Minister by and with
he authority Of the hing "a Cabinet Council |
hall have power 90 TO lease, SELL otherwise dis
.r-a of the public lands and other property, IN |
1cl manner a7 De may deem best for the promo
ion ul agriculture and the general welfare OF the
lugluu. subject, however, 20 such restrictions as
lly from time % time De expressly provided by
Section I67 Says The Minister u1 the Interior
hall be-. and is hereby charged with The -uperiu-
Evidence and management of the internal i'm |
rUygmauts e tLg hIuEIlu and be may with the /
.pus8yEl Of the HING iu Prvy Council. appoint an
Works % assist him 900 the discharge Of this branch
{ Ll5 uaII.-.
hes sections Do not an.a0rizs the grant Of
uch O right
TIE definition Of franchise by Bowler. Is a
privilege conferred by grant from the government
ud vested DO individuals.
Tie right 90 uparat. railroads are such fran
li=lz and can only De- granted by the government /
lee Paige. O.. % n. h- % Cooley on Coustitu- !
iona, Limitations. pp. 2l6 20, 1876, a9i ~
What rra alaau u.s. Cue surface railway cases. IN ] ,
be state Of New l9rE, are leading cases on the
old, and DO Tlll-cg1sluered case eau De- found
gaIust Them iLlt the granting % O street railway
uuchi=a Is vested Iu the legislature and must De ]
ireCtIy or indirectly mTdc By the legislature. |
hose eases bold, as has been held Iu England. [
md IN most " The Jliicd States, that franchise I
% operate surface railway vLera the rails are [
lush With the streets. and the cars drawn b. .
0rs9s upon cracks ELlcu can De used hy 9th
aliCc-. Of daily granted by lhg legislature, is rHf
Inconsistent with tho ordinary public use uf E.. I
trGets- If reasonably exercised and that chose
NO border on the streets are not entitled O. BE-
give compensation ls for property takea under
Dc night %. eminent domain.
See MlIll1 SIS. Sharp 60 al. = n. y 600. The
1eUrIa W.. CerT gf al.. = n. s.. 49, 1s.- H..-
gr vs.. F8Tty--1cJud street EaIluar Co. COS s.
B. pp. zO5-l See also story vs.. N.E E.-r EI..
atad D. T.. Co.. pp. u, 1915.
i've authority o. al1E that no aHr. gee aHrIL. .
is are contained Do the section quoted rHl give
% the Minister Of the Interior tla night DO -rHa.
De franchise which be 7rllt O.. gran. Do
atter % June ID. ls,l
On Examining the Ccrs.lsga.la. and OBJ.
o corporations, and f-a -asc... -H-ra.
De legislature ear -.a uH "u.e.-ar.
hiuk would author Obi. --|H. Hf . .H Hr
rgucuIsd. The n.s..a -u.. . gram. ..rr
lust D. bad o. ... nf