The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-01


express company not owned by a rail-
road company and otherwise taxed; ev-
cry gas company; every palace or parlor
or sleep. ng-car company; and every oil
or pipe lire company; and every fire.
life, marine or accident insurance COM
pany doing business in this State (New
Jersey, except mutual fire insurance
companies, which do not issue policies
on the stock plan, shall pay an annual
tax for the use of the State by way of
license for its corporate franchise as
hereinafter mentioned" 1t was held
that this statute imposed license fees
for the exercise of corporate franchises.
Where the words privilege and fran
chise are used, as they often are, in a
broader and more popular sense. they
are divided into general and special. Spe-
cial franchises correspond to the detini-
ton of franchises given by the Supreme
Court in Bank of Augusta VS. Earle. Is
Peters, 595. above quoted.
"A special privilege or franchise is
not necessarily exclusive" On re Union
Ferry, 9S New York, 1897
A privilege or franchise which, under
like conditions may be given to one and
withheld from another as a matter of
discretion, is, beyond question, special.
Special is defined in the Century Die
tionary as follows: "Of or pertaining to
one or more of kind: peculiar to an
individual Or a set; not general, particu-
lar, individual"
Messrs. Kinney, Ballou & McClana-
han, who have furnished an able brief
in behalf of the applicant claim that
they do not ask and that chapter XIV
OF the Laws of 1874 does not contem-
plate, the granting of special privi-
lege or franchise.
Chapter XIV of the Laws of 1874 de-
clares that: Section l. The Minister of
the Interior is hereby authorized and
u No oil
company now Incorporated in any for
eign country, or that may hereafter be
incorporated in this kingdom or any for
elgn country, for the transmission of
Intelligence by electricity, to construct
lines of telegraph upon and along the
highways and public roads and across
the lands and waters of this kingdom by
the appropriation of any trees growing
by nature, or by the erection of the nec-
essary fixtures, including posts, piers,
pabutments, bridges for sustaining
the cords or wires of said lines; provid-
ed, the same shall not be SO constructed
as to incommode the public use of said
road or highway, or injuriously inter-
rupt the navigation of said waters"
Section 3 The Minister of the Inte-
rior is hereby authorized to take up and
set apart for the use of such telegraph
company or companies sufficient land
and premises for telegraph stations and
d OtIltI IttuIus uSfSS AL operating SdlO l6l-
egraph line or lines. and to grant every
facility for the landing Of subaqueous
cables, telegraph cord or wires, instru-
mentS, apparatus, and all and every ar
ticle, goods, wares and merchandise ap-
pertaining to the building of such tele-
graphic line or lines and the transmits
sion of intelligence by electricity and
such articles and merchandise shall be
exempt from duties, and the vessel or
vessels chartered or otherwise specially
engaged in the laying or maintenance
of a telegraphic line or lines, shall be
exempt from all port charges except
pilotage"
4 Among the definitions of authorize.
empower, permit and allow, given by the
Century Dictionary, are the following
Authorize, to give authority, warrant
! or legal power to- empower. as, to au-
thorize commissioners to settle the boun-
dairy of a State; empower to give power
or authority to; authorize, as by law
commission, letter of rtorney, verbal Ii
cense, etc; as, the commissioner is en-
powered to make terms; permit, to suf-
fer or allow to be, com, to pass, or take
place, by tacit consenl or by not pro-
hibiting or hindering: allow without ex-
pressly authorizing; to grant leave or
liberty to by express consent; allow ex-
pressly; give leave, liberty or license to-
as. license that permits person TO
sell intoxicating liquors: allow. to grant,
give or yield; assign; afford; as, to al
low free passage; to grant permission
to; permit; as, to allow a son to be abb
sent; to grant special license or indul-
gence to-"
All these definitions plainly indicate
discretion to give or withhold Section
of the Civil Laws of 1897 requires such
a construction. So does Bradley VS.
Thurston, Haw 52S
Section ,. above quoted, further indi-
Gates that the power was discretionary.
in that il could not have been the in
tention OF the Legislature to make 1t
mandatory upon the Minister of the In
terror TO set apart public lands and
highways and waterways sufficient for
the use of any and every home or for
eign Geographic or Selephonic corpora
ton created, or to be created regard
less of the needs and convenience of the
public. Such construction would
amount to an absolute surrender of pub
lie property to whoever might ask for It.
Section 367 of the Civil Laws of 1897 is
as follows: "All public highways are
under the general supervision charge
and control of the Minister of the In
terror, and, except as otherwise provid-
ed by law, he is charged with the execu-
ton of all duties relative thereto wheth-
er prescribed by this Act or otherwise"
This section gives the Minister of the
Interior Superintendent of Public
if it is not absolutely inconsistent with
the right of anyone and everyone who
desires 1T to use public property for tel
egraphic and telephone purposes it GER
tainly strongly points in an opposite di-
rection.
| am forced to the conclusion that the
Minister of the Interior, instead of be-
ing commanded to grant such a privi-
lege or franchise as is now applied for,
to whoever might ask it and to as many
as might ask it. was invested with dis
creuonary power to grant Ii or withhold
it as the public interest might require
If this is so, any such privilege or fran
chise granted by him would be special
not general.
II.
But the Legislature shall not grant
to any corporation, association or indi-
vidual any special or exclusive privilege
immunity or franchise without the APP
prevail of Congress-
! That the Act of 1874 was not express
ly repealed by Congress is easily explain
ed by the fact that it was omitted from
the compilation of 1897 of the Civil and
Penal Laws.
! The Superintendent OF Public Works
as the political successor of the Minis
ter of the Interior, is; therefore not for
I hidden in express words to grant the
special privilege or franchise applied for,
and the question arises whether he is