Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1901-03-01
RIGHTS OF GOVERNMENT
TO GRANT FRANCHISE
ia the Opinion Rendered by Attorney
General Dole the Right of the suoerinten-
dent of Public Works t Grant Rights to the
Century Telephone Company.
Territory Of Hawai-, Office Of the At.
torney General, Honolulu, II. l.,


Territory Of Hawai-, Office Of the At.
torney General, Honolulu, II. l.,
February 2S, 1901.
Hon. j.. A. McCandless, Superintend.
ent of Public Works.
Dear Sir:-The Century Telephone
Company, Limited, a Hawaiian cor.
poration, having applied to you for
permission, under Chapter XIV. Of
the Laws of 1874, to construct its tele.
phone lines upon and along the high.
ways and public roads and across the
lands and waters of the Territory"
I have the honor at your request to
submit the following opinion relative
to your power I'm the premises:
The question is logically divided
into two questions. First-Is this an
application for a special privilege or
franchise such as the legislature itself
cannot grant without the approval
of Congress? Second-If 1t is, has
the Superintendent Of Public Works
greater power In the premises than
the legislature has?
Section SIS OF the Organic Act de.
clares: THAT the legislative power
of the Territory shall extend to all
rigbtful subjects of legislation not
inconsistent with the Constitution and
laws Of the United States locally ap.
plicable. But the legislature
shall not grant to any corporation.
association or individual any special
or exclusive privilege, immunity or
franchise without the approval of
Congress"
Blackstone defines franchise as
"a ROYAL privilege or branch of the
kings prerogativc subsisting in the
hands OF subject"
Kent SAYS; Franchises are certain
privileges conferred by grant from
government and vested in indivldu.
ais" G. Kent's Comment. 45S).
The Supreme Court of the United
ctotaa doanoe francbisoS No follows.
Franchises are special privileges
conferred by government upon indi.
yiduals and which do not belong to
citizens of the country. generally, Of
common right. II Is essential to the
character of n franchise that IL should
be a grant from the sovereign author.
ity. and in this country no franchise
can he held which is not derived from
the law of the state" IBank of Aug.
usta v. Earle, 10 Peters. 1851. This
definition has been followed in nun.
berless cases.
"Generalized and Invested of the
special form which II assumed under
n monarchical government based on
feudal traditions. n franchise Is n
right privilege or power of public con.
Germ which ought not to be exercised
by private individuals at their mere
will and pleasure. hut sbould he re
served for the public control and adj
ministration either NV the govern
ment directly or by public agents act
ing under such conditions and regu
lations as the government may i'm
pose in the public interest and for tn,
public security. No private
person can take another's property
even for a public use. without such
legislative authority, which is the
same as to say that the right of emf
nent domain can only be exercised
by virtue of the Legislative grant
This is a franchise. No persons can
make themselves n body corporate
or polite without legislative author
ity." California v Pacific II. X. Co.
127 U. s. 40. Ashley v. Ryan, 1853 U
s. AL.
1T is a franchise to be empowered
to build n bridge or keep a ferry oyei
public stream with the right &c
demand tolls or ferries, or to build =
mill upon n public river and recoiy,
tolls for the grinding, etc; but the
franchise consists In the incorporea
right. The property acquired Is IL
the franchise" Tuckahoe Canal Co
v. Tuckhoe r. r Co, II Leigh IVA.
rs.
In Jersey City Gaslight COMPANY vs.
United Gas Improvement Company
46 Federal Reporter 264, a statute pro
vided that: Every telegraph. tele
phone, cable or electric light com
pany: every express company MOI
owned by a railroad company ant
otherwise taxed; every gas company
every palace or parlor or sleeping ca,
company: and every oil or nine lin,
company: and every fire, life. marin,
or accident insurance company dom.
business in this state New Jersev)
except mutual fire insurance com
panies. which do not issue policies OF
the stock plan. shall nav an annun
tax for the use of the state by way O
license for its corporate franchise n
hereinafter mentioned" II was he'll,
that this statute imposed license fee