The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-29

stand 1t, that the department OF PUBIC
Works claims that the Tramways Com
pany is required by law to do all of the
filling or grading within the space occu-
pied by it's tracks and two feet on each
side thereof at its own expense; while,
on the other hand, the Tramways Com
pany contends that its obligations are
limited to 1.-The surface of the street
/ think that the matter in dispute large
ly depends upon the definition or con-
struction given to the words grade,
maintain and surface of the street.
The Century Dictionary gives the fol-
lowing definitions of the verb to grade:
ITO reduce, as the line of a canal, road
or railroad, to such level or degrees OF
inclination as may make it suitable for
being used" Webster gives the same
definition in fewer words.
In defining the verb to grade, the Su-
preme Court of the United States says:
Hills must be cut down and hollows Ill
led or. in other words, the road raust
be graded or reduced to certain de-
gree of ascent or descent, which IS the
proper definition of the verb to grade"
Smith VS.. Washington, 20 How. LAB. Like
definitions are given in Davies VS.. East
Saginaw, Sc Mich. 80; Leavenworta VS..
Rankin, 2 Kas. 357; Spokane VS.. Browne,
Is Wash 322; Little Rock VS.. Citizens
Street Railway Company, Sc Ark. Is.
Plainly a street is not graded by the
mere decision of the Superintendent of
Public Works to have it cut down or
filled up The grading is the physical act
of reducing it to designated level.
This definition given by the dictionaries
and the Supreme Court of the United
states is the only one consistent with
section 592: the right to grade Is
reserved to the Government and cannot
be alienated or impaired, but such work
shall be done in such manner as to OBJ
struct the railroad as little as possible,
and if required, the grantees to the
franchise must shift the rails so as to
avoid the distractions made" The
| work" is done, and the Constructions
{, are made by the Government. No other
meaning can be given to the section
without doing violence to the English
Language. There is not word in sec
ton 592 which can be construed as put
ting any portion of the duty of grading
the street upon the Tramways Company.
| Section 603 requires the Tramways
Company, at it's own expense, to main
tain the surface Of the street between its
! tracks and for two feet on each side
thereof flush with the rail surface of its
road. The latter portion of the section
| implies that this surface must be kept
macadamiZed.
The Century Dictionary gives the fol-
lowing definitions of the verb maintain:
ITO hold in an existing state or condi-
| ton; keep in existence or continuance;
preservation from lapse, decline, failure
or cessation; keep up" In Rhodes VS..
Mummery, AS Ind. PIG, it was held that
the obligation to maintain a division
fence included not only the duty to re-
pair it, but also to rebuild it when it
had been entirely destroyed by fire.
| The Tramways Company enjoys a val
liable franchise granted to it under the
late monarchy. Courts conStrue such
franchises strictly in favor of the Gov
eminent or people, and for this further
reason l am inclined to think that the
! Tramways Company, in case of a change
of grade, is required by section COS tC
remacadamize at its own expense, and
if such remacadamizing incidentally in
wolves a filling up, the company must
do such filling. Subject to this qualifca-
ton, L find nothing in the company's
franchise which, in my opinion, requires
it to grade streets.
Theoretically, surface has no depth
The phrase Surface of the street can
not be taken in this sense without
manifest absurdity. I think, used as i
ii is in connection with the provision fo
macadamzng, it must be understood t
extend to such depth is required fo
macadamiZing in durable and work
manlike manner. For example, if gooC
matchmaking requires a depth of ter
inches, and the grade of the street il
raised thirty inches, it seems to me tina
the Government is bound to fill up to tn
height of twenty inches under the space
set apart to the Tramways Company
and. this being done, that the Tramway
Company is then bound to macadamiz
at its own expense, the Government. o
Ipol1rSe do min Of
street not set apart to the Tramway
Company On the other hand if goo,
. macadamizing requires ten inches, AM
the grade is raised only ten inches, j
seems to me that the Tramways Com
. pany should do all the filing. 1t bein,
merely incidental to macadamizing, be
tween it's rails and for two feet on eacl
side and that the Government should d
the remainder of the matchmaking Tha
Mr.. Pain has so understood this 70
many years, is indicated by requests 70
material and his payment therefor a
cost.
I fail to any reasons for Mr. Pain
contention that the Government shout
provide material free for maintaining O
macadamiZing the surface of the stree
within the limits set apart to the Tram
ways Company. The statute expressl
declares that the Government shall fur
at cost.
am informed by the Superintendent
of Public Works that in this particula
instance the raise OF grade is not NOR
9 than the necessary depth of macadam
, izing. If this is So and if my conclu
!, sions in regard to the law are correct
s follows that the claim of the Governmen
t In this particular case requires no NOR
( than the law puts upon the Tramway
- l'OmDanV. bIT the Ot hand a
+; the principle of the claim, as probabl
2 understood by Mr.. Pain and his attol
} neys, if admitted, would place burde
on the company which the law does nc
S authorize.
/ If both parties should stand strictly o
: their legal rSSlts, without extending {
each other the ordinary courtesies
i business intercourse. it might follow the
e the Government would compel the Tran
: ways Company to remove it's rails fc
t considerable distances. and that it migt
e regrade the street as if no tramway wei
e in existence. Such a course would NJ
2 only stop the business of the Tramway
I Company, but it would also greatly il
I convenience the public For this reaso
e the regarding, remacadamizing and r.
e laying Of rails have heretofore been dor
| at the same time as far as possible. i
[ mutual consent. for the benefit of II
: public and Tramways Company alik
I and it may have happened on occasio
y that the Government has furnished II
IL TramwayS Company with macadan m;