The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-03-29

plant and materials and the use of
the steam roller and the wHter-cart
shall tbe) supplied TO said grantees
by the Government for such purpose
at net cost, free from any charges for
profit OF depreciation OF plant
From Section 5s2 IL is plain that
the Government. not arbitrarily and
oppressively. OF course. but in the ex-
ercise OF a reasonable discretion. and
for the public good. has the right to
change grades at any time, and the
tramways must conform thereto.
The difference OF opinion that has
arisen Is In regard to the require
ments OF Section COS. AS this differ
ence is the immaculate cause of q
Recommendation to begin proceedings
against the Tramways Company for
a forfeiture Of it's franchise. it seems
TO me that both justice and sound
Judgment require a fair consideration
OF the question whether the Com
pany's contention may not in this re-
spect be within its legal rights. While
IT may be liable TO and deserve a
forfeiture OF its franchise for long
continued and general disregard of
its duty TO the public. IL Is not clear
TO my mind that In this particular in
stance il Is guilty OF refusal or neg.
lect TO perform a legal obligation TO
the full extent claimed.
On this point the difference. which
does not appear as clearly as IL might
In the letter above quoted. is. as |
understand II, that the Department
Of Public Works claims that the
Tramways Company is required by
law TO do all of the filling or grading
within the space occupied BY its
tracks and two feet on each side
thereof at its own expense; while. on
s.-e other hand, the Tramways Com
pAny contends that its obligations are
limited 20 'the surface of the street. "
| think that the matter IN dispute
largely depends upon the definition
or construction gwen to the words
grade, maintain" and surface of
the street"
The Century Dictionary gives the
following definitions OF the verb 10
grade: ito reduce, as the line of a
canal. road or railroad TO such level
or degrees of inclination as may
make II suitable for being used"
Webster gives the same definition in |
fewer words.
In defining the verb to grade, the |
Supreme Court of the United States |
says: hills must be cut down and |
hollows filled, or. in other words. the |
road must be graded or reduced to a |
certain degree of ascent or descent. |
which is the proper definition of the |
verb TO grade" Smith V. Washing
ton. 20 Haw. las. Like definitions |
are given in Davies V. East Saginaw,
&C Mich, SO; Leavenworth V. Rankin,
Kas.. 357, Spokane V. Browne. s |
Wash. 1922: Littlerock V. Citizens
Street Railway Co. sc Ark, rs. |
Plainly a street is not graded by the
mere decision of the Superintendent |
of Public Works to have IL cut down
or filed up. The grading is the ply
steal act of reducing il 20 a design
ated level.
This defin.,4on given by the die
tionaries and the Supreme Court OF
the United States is the only one con-
sistent with Section 500; the right |
TO grade is reserved to the /
government and cannot be alternated
or impaired. but such work shall be
done in such manner as to obstruct
the railroad as little as possible, and,
IL required. the grantees TO the fran
chise must shift the rails so as to
avoid the distractions made" The
work" is done, and the "obstrue-
tons" are made by the government.
No other meaning can be given to the
Section without doing violence TO the
English language. There is not a
word in Section 500 which can be con.
y frftnA a nntffno pnrffnn Of tho
duty of grading the street upon the
TrRmways Company.
Section COS requires the Tramways
at its own expense. to
the surface of the street be-
tween its tracks and for two feet on
each side thereof flush with the rail :
surface of its road. The latter por-
ion of the Section implies that this
surface must be kept macadamized. :
The Century Dictionary gives the
'ollowing definitions OF the verb
ITO hold in an existing state
,r condition: keep in existence or
preservation from lapse.
iecline. failure or cessation; keep
ip." In Rhodes V Mummery. IS In, r
rs: Il was held that the obligation to
maintain" a division fence included
Tot only the duty to repair IL. but alsoI
O rebuild II when Il had been entirely
destroyed by fire.
The Tramways Company enjoys a :
'aluable franchise granted to IL under {
he late Monarchy Courts construe
UGH franchises strictly in favor OF u
he government or people and for
his further reason ! am inclined TO 7
hink that the Tramways Company.
q case OF n change of grade, is re-
uired by Section COS TO remacadam-
re at its own expense. and II such :,
incidentally involves
filling up. the Company must do
uch filing Subject TO this Qualif-
alton. fiiS nothing in the Com
any's franchise which. IN my opin- r,
m, requires Il TO grade streets.
Theoretically. surface has no depth.
he phrase surface of the street.
snnot be taken in this sense without
manifest absurdity think. used
} II is in connection with Ine provis-
n for macadamIzing. ii must be
aderstood TO extend TO such depth
Is required for macadamizing in a
lrable and workmanlike manner.
Or example: II good macadamixing
quires a depth of ten inches, and ~
e grade OF the street is raised thir
inches. il seems TO me that the
'vernment is bound % ill up To the
light OF twenty inches under the
ace set apart 10 the Tramways
,mpany. and. this being done. that -
e Tramways Company IS then bound
macadamixe al ats own expense.
e government. of course. macadam-
ng the portion of the street not no
| apart to the Tramways Company. ar
the other hand, IL good macadam- :,