The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-29
YESTERDAYS
COUNCIL
Attorney General
Gives Long
Opinion.
ICONSlDERS THE
TRAMWAY CASE
Secretary Cooper and Land Com
missioner Brown
Report.

| Secretary Cooper reported at the Gov
ernor's Council yesterday morning that
he had requested of both houses of the
LEGISLATURE the original journals OF
their proceedings and wanted to know
the sentiment of the other members OF
the council regarding the correctness
of his position. They We're all of the
Iopinion that under the Organic Act
lit was his duty to take charge OF the
original journals and archives, instead
iof accepting copies
/ Land Commissioner Brown was pres
ent and reported that he had received
a satisfactory explanation from Mr..
Gilbert, manager of leased lands for
IDowsett & Company at Waianae, re-
garding the cutting of timber.
Attorney General Dole read his opin-
ion upon the matter of adjusting the
Itramway tracks to the street grades,
which opinion is given herewith:
| At your request, L have the honor to
submit the following opinion relative to
the letter of Mr.. w. II. Pain, manager
of the Hawaiian Tramways Company,
Limited. The letter is dated March 13,
1901, and is as follows:
j. A. McCandless, Esq, Superintendent
of Public Works, Honolulu, H. 7.
the Attn instant referring to the new
grade at Fort and Queen streets and
near the bridge at Aala warehouse, King
street, and instructing us to change the
grade in accordance herewith; in reply
thereto / have to say that We concede
to the Hawaiian Government the right
TO change the grade of any of their
streets as often as they see fit, but we
do not concede the right of the Govern
ment to destroy our property by so do
ing. You are no doubt aware that the
company's lines at these places are laid
according to a profile now in our pos
session furnished to us by the Govern
ment of the day, directing the lines to
be laid in their present position and
alignment, and that they were so laid.
During the past twelve years there have
been various alterations in the grades of
the streets of Honolulu whereon our
lines laid, in some cases amounting
to miles; in all these cases the Govern
ment recognized their right to do the
/ grading and provide their own material;
lin those cases where these public i'm
provements have been carried out it has
been customary for the Government to
provide the material for their own grad
ing whilst we have done the labor in
connection with raising our line. You
will readily observe that the Govern
! ment, in doing this, are not giving us
anything by doing their own grading,
s seeing that the company's track being
flush with the rails the only materials
! necessary to be provided are those in
I connection with their own alterations and
4 improvements. I will also mention that
quite recently a similar arrangement has
{ been made and carried out in connection
s with your own department, between
5 South street and Punchbowl, on King
; street. I have now again TO make for
y ffnr 70 hot dana rfy ani
provide the material incidental to carry
s ing out your own improvements, we or
{ our part being willing (without preju-
s ldice), as stated to you before to change
3 our lines to conform to your improve
Z ments, you providing the material tC
3 make your own Improvement for the pub
{ lie. I may mention to you that oul
lines, in so far as the sewer excavations
Il will permit have recently been gone over
by our road gang and are flush witt
; the lines which are laid in conformity
; with the profile furnished to US.
( I am, dear sir. yours truly, for the Ha
waiian Tramways Company. Limited,
W. H. PAIN,
B Manager.
B Section 500 of the Civil Laws of 1897 i:
q as follows: THE right to grade sewer
q pave. macadamze otherwise improve
s. alter or repair the streets or highways Il
II reserved to the Government and canno
B be alienated or impaired, but such worl
shall be done in such manner as to OBJ
& struct the railroad as little as possible
s and if required, the grantees of the
s franchise must shift the rails so as Il
!; avoid the Instructions made"
3 Section COS of the Civil Laws of 1897 4
as follows: "Said grantees shall, at al
s places where their road shall run
6 whether upon the streets named in sec
& ton COO, or upon any other street or roat
I, in said Honolulu, upon which they ar
3 or shall hereafter be authorized to con
i struct and shall construct their road a
{, their own expense maintain the surfac
6 Of the street or bridge flush with TIL
4 rail surface of their road, both between
!, the rails thereof and for distance o
3 not less than two feet on the outside o
q each of such rails. and also the entir
q space between tracks where 1t has NOR
J. than one track; but macadam stone,
!, the Government has it in stock, or If i
3 is not in stock, the use under the con
}, troll Of the Government stone crushe
Z and plant and materials and the use O
& the steam roller and the water cart shal
& Cbe) supplied to said grantees by the Gov
g eminent for such purpose at net cost
. free from any charges for profit or de
Z probation of plant
q From section 500 It is plain that tn
& Government, not arbitrarily and OF
& pressively, of course but in the exercis
3 of a reasonable discretion, and for tn
: public good, has the right to chang
y grades at any time, and the tramway
Z must conform thereto.
& The difference of opinion that has aris
s en- is in regard to the requirements c
. section Coz AS this difference is the I'm
= mediate cause of a recommendation t
. begin proceedings against the Tramway
Z Company for a forfeiture of It's fran
Il chise. it seems to me that both justic
s and sound Judgment require fair cor
3 sideration of the question whether tn
q company's contention may not IN thi
( respect be within its legal rights. Will
s it may be liable to and deserve a fol
!. fixture of its franchise for long continue
q and general disregard of its duty to tn
q public, it IS not clear to my mind tha
q in this particular instance 1t Is guilty c
- refusal or neglect to perform legal OF