The Hawaiian gazette., 1890-02-25

rent. The authorities cited do not
apply to the case of a public officer
proceeding contrary to law.
We are of opinion that it is too
plain for argument that this lease
was made without authority of law
and in contravention of the law. The
reason of the statute is plain. 1t
was enacted to restrict a power
which had previously been vested
in the Minister of the Interior, by
and with the authority of the King
in Cabinet Council, to lease,
sell or otherwise dispose of
the public land in such manner
as he may deem best. Sec. AZ of
the Civil Code. 1t was intended
and has well served to prevent
such bargains of improvidence or
corruption as the present case is an
example of. In effect, it is mat
ter of public notoriety that the open
competition frequently secures for
the Government higher rates than
good offers upon which as an upset
price the fee or lease may be put
up.
And equally it is clear that the
invalid lease cannot be built up"
into validity by the leave given to
assign it, and by receiving rents
from term to term. The law is
mandatory.
The acts of the Department in
this instance have set it aside.
The language of Mr.. Justice
Story, in Johnson VS.. the United
States, Mason, at page AL may
be cited here, "The act of a pub
lie officer in violation of the duties
of his Office which duties constitute
a part of the vital arrangements Of
the Government, cannot be per-
mitted to have any legal effect by
way of defense to those who have
participated in the violation and
encouraged and aided it. / hold it
most clear that the acts of public
officer beyond the scope of his pow
ers and in violation of his public
duties are, in such cases at least,
utterly void"
The, second ground, that this
action would not lie having been
brought before the expiration of the
time for which rent had been taken
in advance, must be treated on the
principle above expressed, that no
act of the Minister can make the
invalid lease valid. The payment
of the rent is payment on the
lease. The lease being invalid it
cannot then be considered a pay
ment on an oral permission given
under some general power of con-
troll of the Government lands vest
ed in the Minister. His is a power
to lease land exceeding $500 in
value by an offering at public auc-
ton after advertisement with des-
cription given. The construction
that some general power would
permit him to authorize tenancy
upon private terms would defeat
the purpose of the statute, which
was to restrict to the public and
competitive mode.
But is there an estoppel by the
rent accepted in advance? An an
swer to that would be that the
statute is set aside for the time, and
that the rent might be kept always
paid in advance. The rule of law
which might apply in the case of
private party accepting rent upon
an invalid lease being held to have
created an oral tenancy at will is
not to be considered at all in this
case where a statute exists intend
ed to restrict and define the action
of public officer.
Likewise the claim that the SUBJ
lessee has acquired right to hold
until the expiration of the term he
has paid for. His right to have
IhO ulOlCJ AOpdiO plO Adlt GIC uu-
expired time is distinct from a
right to hold the land. We may
be allowed to remark here, that a
tender to refund the money or
short delay in bringing the action,
meantime giving notice that no
further rent payment would be re-
would have deprived the
defendant of the chief ground on
which his defence has been made.
The judgment of the trial Justice
who would allow only nominal dam
ages on the ground that the de-
PENDANTS occupation was by col
orable lease and with the actual
consent of the plaintiff, allows the
defendant all the equity of his posi-
ton.
We may be allowed to make the
further observation that lease or
a deed of conveyance from the
Government which the statute re-
quires shall be made only upon the
nrfc 80