The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-12-04
PAINS INJUNCTION SUIT Is
DISMISSED.
Estee Decides That Pain and His At
Court Decision Remains the Law.

Company against the Rapid Transit
Company was decided this morning by
Judge Estee. He dismissed the bill for
an injunction. The court held that Pain
and his attorneys were entitled to ap-
pear for the London corporation and al
so that the appearance in the former
proceedings in the Territorial Supreme
court were valid. He refused to review
those proceedings, and held that Pain,
as agent and manager of the Hawaiian
Tramways Company, sanctioned the
Supreme court proceedings by being
present and making no protest
The decision reviews the history Of
the two corporations and the franchises
given to them, and proceeds in part as
follows:
1T appears from the facts brought
out on the hearing, that the complain
ant and respondent were heretofore
parties to certain litigation affecting
their charter rights to construct and
maintain street railways in the city of
Honolulu and especially in relation to
their right to lay a street railway track
on King street in the City of Honolulu;
and being desirous of settling their diff
ferenceS as to their respective rights to
the use of King street in Honolulu they
did, pursuant to Sections 1855 to 1858
inclusive of the Civil Laws of the Ter
ritory of Hawaii, on the 22nd day Of
January, 1901, enter into an agreement
whereby their differences were submit
ted to the Supreme Court of the Terri
tory of Hawaii, for it's adjudication and
which adjudication the parties agreed
to abide by. This agreement and state
ment of facts was originally signed by
Honolulu Rapid Transit and Land
Company, by w. r. Castle. and Kinney
Ballou and McClanahan. Hawaiian
TramWays Company Ltd, by Holmes 81
Stanley, of counsel And a further
agreement or stipulation was also made
and executed on the 27th day of March
1901, which was signed by Kinney,
Ballou & McClanahan, attorneys for
the Honolulu Rapid Transit & Land
Co.. and by Holmes & Stanley, attor
neys for Hawaiian Tramways Co. Ltd
and submitted to the Supreme Court of
the Territory of Hawaii as appears by
the Exhibit "A" which is made a part of
the affidavit of w. H. Pain, filed in
support of his bill in this proceeding.
1T also appears from said Exhibit "A
that Clinton G.. Ballentyne as manager
of the Honolulu Rapid Transit and
Land Company. and w. L. Stanley of
Holmes & Stanley, attorneys for the
Hawaiian Tramways Company, made
oath before Edmund Hart, a Notary
Public, that the controversy lis real
and the proceedings in good faith to
test the rights of the parties.
'The minutes of the Clerk of the Su-
preme Court of the Territory of Ha-
waii for the 2Sth day of March, 1901
a portion of said EXHIBIT "A" show, that
all the attorneys for both sides of said
controversy appeared before said Court
and that w. l.. Stanley one of said at
torneys for the Hawaiian Tramways
Company, read said agreed statement
of facts to the Court and argued the
case on the part of said Company; that
Mr.. McClanahan argued the case for
the Honolulu Rapid Transit and Land
Company and that on the 29th day of
March, 1901, both Mr. Stanley and Mr..
Paul Neumann replied to the argu
ment of Mr.. McClanahan.
1T was also uncontradicted that Mr..
Pain was present in the said Supreme
Court and listened to the argument
made therein at that time, and at no
time until the institution of the pro-
ceedings in this Court has be objected
to said submission. on the part of the
complainant or even to the decision of
the court
The case was decided by the Su-
preme Court of the Territory on the
25th day of April, 1901, and that decision
remains the law of that case by which
the rights of the parties in this case to
the use of King street were settled.
1t appears further from the evidence
in this proceeding that from 1889 to the
present time, Mr. w. H. Pain has been
and still is the sole manager and repre-
sentative of the said plaintiff and pc
titioner in this Territory, and as such
he has had control, direction and man
agement of all the transactions OF said
corporation in said Honolulu. IncIuY-
y
of attorneys and counsellors and the
control and management of all litiga-
ton
THE complainant is now trying to
avoid the effect of the decision of the
Supreme Court of the Territory in the
case referred to, alleging that no state
ment of facts was agreed upon by il or
by any person authorized to agree upon
such statement of facts, and that It had
no knowledge of any such submission,
Notwithstanding that Mr.. w II. Pain
is its exclusive representative here and
has the management and control of all
litigation of the company and is now
acting as the manager and representa-
tive or the company in instituting the
proceeding in this court. Mr.. Pain be-
ing also the only person testifying to
the effect that complainant is not bound
by the aforesaid decision and that the
said agreeme~t and statement of facts
was without the authority or knowledge
of the complainant.
1T has been shown in this proceeding
that Mr. Pain was in the Supreme court
during the argument and submission of
the facts in that case. He himself tes-
titles that he was present; and it Is un-
contradicted that he is the only officer
or agent of the corporation i'm Homo
lulu. Now if from 1889 to the present
time, Mr.. Pain has had the exclusive
control and management of all the
business Of the complainant, including
the employment and discharge Of attor-
neys and counsellors, and the control
and management of all litigation he
must have had power to control this
litigation, If what he swears to in his
affidavit is true. And If he had power
to control all Of the litigation of COM
plainant from the year 1899. why did he
sit quietly by without making protest
to the Court or to any one else on be-
half of the company ne represented, un-
I'll final judgment was entered in that
Continued to page hve)