The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-09-30
CONTROL Of PUBLIC LANDS
INTERIOR DEPARTMENT WRITES
TO DOLE.
Parker's Trip to Washington Explained.
His Attorneys Ask a Re-Considera-
tion-Kohala Irrigation Tabled.

The letters from the Interior Depart
ment, received by Governor Dole, which
caused the tabling of the big Kohala
irrigation scheme, constitute q state
ment of the decisions of the department
In the matter of the application of Sam
Parker for a similar franchise to that
wanted by Colonel Jones and his asso-
ciates. The letter oeals not only with
the irrigation plans but to some extent
with the powers of local executive Of
fcers generally over public lanes. 1t
was sent from Washington on Septem-
ber IL, and is as follows:
The Governor of Hawaii. Honolulu,
Hawaii.
THE attorneys for Mr.. Samuel Parker
have asked the Department to recon-
slder the matter of the application for a
| license for period of SO years to con-
struct, maintain and operate bitches
over the government lands in the dis
trict of North Kohala to be known as
Upper Kohala Ditch and Lower Ku-
hala Ditch" respectively and have pre-
sented arguments in support of such
request.
The matter was originally submitted
with your letter of May 90 1901, to
which the Department made reply un-
der date of June a. 1901.
I'm the argument now submitted this
| Department has held that the Act of
Congress of April 80 1901, entitled An
Act to Provide a Government for the
| Territory of Hawaii continues in force,
| except as therein modified, the land
, laws of the former Republic and con-
tended that those laws gave the Com
missioner of Public Lands the right to
grant land licenses of the nature in
| question without restriction as to price
| or term of years.
1.-The first use of the phrase land Ii
| cense' in the land laws of Hawaii is
! foun~ in section 1856. Civil Laws, when
that term is defined as follows:
| A Land License means a privilege
granted by the government for the oc-
cupation of land for certain special
purposes. such as the cutting and re-
moval of timber, the removal of soil,
sand, gravel or stone
1.-The only other places pointed out in
the brief filed herein when the term is
used are in section 1893, when 1t is pro-
Vided that the Commissioner of Public
! Lands shall have power to make rules
and regulations for surveying public
| lands, for the protection of forests and
| reservations for forest growth, for the
granting OF land licenses etc and sec
ton 1873, where sub-agents are given the
power among other things, to enforce
contracts respecting sales, leases, Ii
censes or other dispositions of Public
/ Land and to recover rents, purchase
| moneys anu OllleT IlbneyS uue lllt BON .
ernment in respect of any sales, leases,
| licenses, or other disposition of Public
Lands. or for use or occupation there
lof.'
Upon these provisions is predicated
the proposition as formulated in the
letter asking a reconsideration of the
matter, that the Land Commissioner
of the Territory of Hawaii. with at most
the approval of the Governor, has eX-
press authority under existing laws to
grant the license as requested
| "a license in relation to real property
usually imports authority to do GER
tain act or series of acts upon the land
of another without possessing any es-
tate in the land. The example given in
section 1856 of the Hawaiian laws,
supra, show that this is the sense in
which the word is used there. In the
instance under consideration the privi-
leges sought is more than this. 1t
would amount to a grant of part of
, the public domain and also of a valu-
able and nee ssacily exclusive fran hise.
! The laws referred to do not expressly
authorize the granting of such privi-
| lege. Laws like this which operate to
invest individuals with special privl-
legs are to be strictly construed so as to
exclude from the operati ton thereof
| everything not clearly indicated as in
tended to be included
"There is nothing in tie laws cited
as sustaining the proposition submit
i ted which makes it possible to say of
| them that it is clearly indicated that 1t
was intended to vest the officers in
charge of the public lands of Hawaii
with authority to confer upon an indi-
Vidual right to appropriate to his own
use and benefit for period of SO years
! lin effect permanently a portion of the
| public domain.
| .uNt. 10
domain of the United States is lodged
! in the Congress, and the executive Of
! ficers have only such powers in relation
! thereto as are given them by the acts
of that body. The act of April 80, 1900,
supra, declaring that the laws of Ha-
wall relating to public lands, the settle
/ ment of boundaries, and the issuance
| of land commission awards except as
! changed by this act shall continue IN
| force until Congress shall otherwise
! direct, did not enlarge the powers Of
| the officers charged with duties and
| powers in connection with the public
! lands, or confer upon such officers au-
thority not Heretofore existing under
the laws thus continued in force.
1.-THE assertion that the granting of
this privilege would be of great benefit
| to the government and to the people of
| the Territory would be of Importance II
| the question were as to the exercise OF
existing authority but it is not impor-
tant here, when the question is as to the
| existence of any authority In the pre-
| mises.
"A further examination of this matter
having led to the conclusion that there
is no authority under the law as IT now
stands to grant the privilege asked for
| the request that this Department 'au-
thoriZe the Governor and the Land
Commissioner of the Territory to exc
| cute the license in accordance with the
terms in which application for the same
has been made. must be and hereby is
! denied.
VERY respectfully,
"THOMAS RYAN,
Acting Secretary"
Another letter received by the COVER
nor, under date of September ~, stated