The Hawaiian gazette., 1890-02-25
Exceptions to Rulings Of Dole, j., Of
the January Term, 1890

the January Term, 1881
JUDD, G. J., M-CULLY, PRESTON, BICKERToN
AND DOLE, il.
A lease of land, the property of the
Government, exceeding $500 in
value, made subsequent to the en-
actment of the statute of 1876, is in
valid when it is made privately and
not at public auction after adver-
tisement and as prescribed by the
statute.
1t is not made valid by the written
consent of the Minister of the Inte-
rior to an assignment.
Third parties acquire no title by the
payment OF rent.
An action of ejectment may be
brought, although rent has been
paid in advance of the time OF
bringing the action.
The exceptions are overruled.
Opinionof the Court, by McCully, j.
This action was tried by Mr.. JUS
tice Dole, the jury having been
waived, who gave judgment for the
plaintiff for the possession of the
premises with the nominal damages
of one dollar.
The facts upon which the matter
depends are not controverted.
They are as follows:
April 23d, 1888, lease was made
on behalf of the Hawaiian Govern
ment by John E. Bush, then the
Minister of the Interior, to Her
Majesty, Queen Kapiolani, of the
lands of Waiakoa, Pulehuiki and
Kamehameiki, in the island of
Maui, for the term of thirty years,
at the annual rental of one hundred
dollars. The area of the lands ex-
ceeds seven thousand acres, worth
in 1883 say, two dollars per acre,
and for rental from $500 to 81 900
per year.
The lease was made privately,
not being advertised or offered at
public auction. January 28th,
1887, permission endorsed on the
lease, was granted by l.. Aholo,
Minister of the Interior, to the
lessee, "to transfer and assign this
lease to w. H. Cornwell, under the
same terms and conditions as herein
cited"
January 2Sth, 1887, suitcase was
executed to w. H. Cornwell of
these demised lands for the term
of twenty years, at an annual rental
of seven hundred dollars, with also
some right of pasturage reserved,
the sub-lessee to also pay the rental
to the Government.
October 18th, 1883, w. H. Corn
well paid into the Interior Depart
ment $50, semi-annual rent for six
months in advance from October
18th ito April 18th, 1881.
January 10th, 1889, demand of
possession for the Interior Depart
ment was made on w. III. Corn
we'll.
March 9Th, 1889, service of writ
in this suit was made on the de-
PENDANT, w. H. Cornwell.
Two questions are raised by the
bill of exceptions; first, as to the
validity of the lease of the Govern
ment to Queen Kapiolani and sec
ond, as to the right to bring the
action before the time had expired
for which the Government had re-
ceived its advance payment.
The ground alleged for the in
validity of the lease is that it was
not made in accordance with the
requirements of the statute, which
is Chapter Xiv of the Laws of
1876, found on page IL, Comp.
Laws, that " All sales or leases of
Government lands shall be made at
public auction, after not less than
thirty days notice by advertisement
with description of the area, situa-
ton, etc., in two or more newspapers
published in Honolulu in both the
Hawaiian and English languages,
excepting lands and portions of
lands of less than three hundred
dollars in value"
1t is only justice to the counsel
for the defendant to say that they
do not strongly contend that lease
made in contravention of the pro-
visions of this statute would be
valid. In the written brief pre-
sented it seems to be ignored. In
the oral argument there was some
attempt to hold that the unlawful
ness in making the lease had been
cured by the subsequent endorse
ment of another Minister of the
Interior of permission to make