Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1901-04-06
BRIEF FILED IN .
THE TRAMWAY SUIT
Claim Old Line Has For.
feited Double Track
Rights.
ELECTRIC STREET CAR Line
NOT GRANTED BY FRANCHISE
Exclusive Right to Streets Rests on
an Unlntelligible Section of
Act Of Legislature
in 1884.

An exhaustive brief was filed yester-
day In the Supreme Court by Kinney, |
Ballou & McClanahan attorneys for the
plaintiff In the submitted case OF the
Honolulu Rapid Transit & Land Com
pany VS.. the Hawaiian Tramways Com |
pany. Limited. At the outset the brief
says:
"All the points in this submission
come fairly under the settled doctrine,
that in the construction OF statutes az
fecting rights claimed under legisla-
tive grant, as between the granting
power and the grantee, they are con-
strued most strictly against the latter
and no right passes by implication. eX-
cept such as are reasonably necessary,
incident to and proper to the enjoy
ment Of the right expressly given It
would be an assumption OF learning 70
cite authorities on this doctrine.
at is immaterial that to this SUBJ
mission, the granting power Is not
party. for in the Interpretation of the
corporate rights. public rights are ne
cessarily affected. The question being.
is a legislative grant of an ease mant
In public property. single or double.
exclusive or ineXclusive. It must be
perfectly obvious that the courts judg-
ment In each case. will either enlarge
or contract the reserved rights Of the
public. We do not pretend TO say that
where the state has declined or failed
to place itself within the jurisdiction
Of the court. II will be bound by such
judgment, nor would such be CouClu-
sive against the public. Indeed. such a
contention would obviously be I'M
sound. But even so, II cannot be con
tended that statute of this nature.
viewed from the standpoint Of prl-
vate difference, may contain large pow
ers, but when the state becomes tho
contestant, the rights are less or diff
ferent. The doctrine must control IN.
der all circumstances, no matter who
be the parties, so long as in the adjudl-
cation public rights are affected or may
be affected through the eXigency arls-
ia. whereby the court in some future
construction of the same statute, Is
called upon to pass Judgment directly
between the grantor and the grantee.
THE question Is, how much did
the state gain: how much did 1t re-
ceive?
As TO the right OF the Tramways
COMPANY to operate a double track on
King street. the brief contends that the
franchise does not contemplate the sub
stitutlOn of double track in place OF
: the single track after the lapse o! the
period of time stated in the franchise
for the completion OF either single OF
double track system.
In reply to the query, has the Ha'
waiian Tramways Company the right
to operate tramway by electricity, the
brief again invokes the principle OF
= strict construction. II does not admit
the contention OF the other side that
grant of the right to operate street
railway carries with 1t the implied
power to operate Il 'tramway by cleo
q tricity.' The brief says: An electric
street railway and a street railway al
the term was understood In 1884, ma,
have many points of similarity, bu
argues that things having close re
& semblance often differ widely in char
acter. Electricity was not in genera
use at the time OF the passage OF TIT
Act. August 20, 1854 This fact wa
recognized by the Legislature OF tina
year rs evidenced by the omission Il
mention electricity as a motive power
y and its permission TO use cables AIte
u an extensive argument on the variou
phases Of the Tramways Company
I claim to right to use electricity, III
/ brief says:
Even under circumstances which d
not appear in this case, where the teri
street railway could fairly be sal
to include electric street railways
when the public's offer of the right
safeguarded by terms Of time limitt
ton and forfeiture, and the ofIer ha
been accepted and acted upon, as
this case in particular way; no poi
sible right remains Of substituting Il
e the acquired easements new and di
; ferent ones. Indeed the character
the claimed implied power so essel
TALLY and necessarily differs in Il
matter of easements from that of Il
leasement already accepted and enjoye