The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-03-01
REGARDING FRANCHISES
ATTORNEY GENERALS OPINION
FILED YESTERDAY.
Explains why Treasurer Can Not
Grant Application of Century Tele-
phone Company.

The opinion of Attorney General Dole
yesterday in regard to the power of the
Territorial Treasurer to grant fran
chises has excited more than ordinary
interest, on account of its Importance.
The ruling Affects all questions of
franchises. The following conclusion
of the Attorney General will explain
the matter:
The Minister of the Interior derived
authority to grant this special privilege
or franchise solely from the Hawaiian
Legislature. At that time, subject only
to the Hawaiian Constitution, the Ha-
waiian Legislature was the supreme
lawmakng power of an Independent
kingdom.
The power to grant a special privi
lege, immunity or franchise, which the
Hawaiian Legislature in 1874 delegated
to the Minister of the Interior and
which it could have revoked at will,
has been taken from the Legislature
itself by the Organic Act To me it
seems improbable that Congress, while
taking this power from the body sup
posed to represent the will of the peO-
pie, intended to leave 1t in the hands of
a single official deriving his authority
in the premises, not from Congress, but
from the Legislature of a defunct king
dom. When Congress declared that
the legislative power of the Territory
shall extend to all rightful subjects of
legislation not inconsistent with the
Constitution and laws of the United
States locally applicable" l think it
made the Superintendent of Public
Works subject to the Constitution and
laws of the United States, a ministerial
agent or executive of the duly anthem
ticated will of the Hawaiian Legisla-
ture. How can he do by legislative
sanction or authority, what the Legis-
lature itself cannot do?
I'LL 4 &c Ixy Of lfat.a Ion
that many State constitutions prohibit
the granting of any special or exclusive
franchises, and, if not forbidden by the
State Constitution, that they are
usually granted by special acts of the
Legislature. The definitions given by
the Supreme Court of the United States
already indicate that they belong to the
legislative rather than to the executive
branch of the government on American
lines. If they are rightful they are
"rightful subjects of legislation"
Subject to the Constitution of the
United States, the Congress of the
United States is now the supreme law
making power. A Territory is
only a dependency of the United States
Government, under the exclusive juris-
diction and control of Congress. All
the powers it exercises are the powers
of the United States and are at all
times subservient and subject to the
ildIlOHdl dulllOIlly anu COHllOl llS
powers are all derived from Congress,
and are exercised under such limita-
tions and control as Congress may de-
termine." (GoOdson VS.. U. S "a Pac.,
423)
I think that the franchise applied for
is special, not general. If it is special
although the superintendent of Public
Works is not in express words forbid
den to grant it, l think granting it by
him would be contrary to the spirit and
purpose of the Organic Act.
The application of section SO of the
Organic Act relative to special or eX-
elusive privileges, immunities or fran
chises affects the powers of the legis-
lative and executive branches of the
Territorial government, the material
interests of the business community
and the development of the Territory in
many ways, and to an extent which it
is hardly possible to forsee. 1t appears
quite certain that it will lead to difficult
questions as to the exact dividing line
between special privileges and fran
chises, and rights which are not such
special privileges or franchises and yet
more or less closely resemble them.
The questions will have to be met as
they arise.
The foregoing opinion is based on the
application, under chapter XIV of the
Laws of 1874, for what is understood to
be franchise running with the life of
| the corporation. l express no opinion
as to whether anything less than this
| can be given.