Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1901-03-01

Secs. 1 and OF Chap. As, Laws of
1874, authorizing and empowering the
Minister Of the Interior to grant
special privileges OF operation to any
telegraph company incorporated in
lyy other country or that might DC.
come incorporated in this country.
Then he quotes from the Century Die
tionary the definitions of the words
authorize, empower, permit and al.
low.D
All these definitions plainly indi.
cate discretion to give or withhold.
Section . of the Civil Laws of lS?;
requires such construction. So
does BrauIey VS.. Thurston. Haw.
523.
Section 2, above quoted. further In.
dicates that the power was discretion.
airy, in that 1t could not have beon the
intention of the legislature to make II
mandatory upon the Minister " tae
Interior to set apart public lands and
highways and waterways suffici snt
for the use of any and every nome or
foreign telegraphic or telephone cor
poration created. or to be created, re.
CARELESS of the needs and convenience
Of the public. Such a construction
would amount to an absolute surrend.
er Of public property to whoever
might ask for II.
Section 367 of the Civil Code of
1897 is as follows: "All public high.
ways are under the general super.
vision. charge and control OF the Min.
lister of the Interior. and except as
otherwise provided by law. he Is
charged with the execution OF all
duties relative thereto. whether
prescribed by this Act or otherwise"
This section gives the Minister of the
Interior superintendent OF Public
Works. large discretionary powers,
and. II II Is not absolutely inconsis.
tent with the right of anyone and
everyone who desires 1t to use public
property for telcgraphic and telephon.
ic purposes il certainly strongly
points in an opposite direction.
am forced to the conclusion that
the Minister of the Interior. instead
of being commanded to grant such a
privilege or franchise as is now ap.
piled for, to whoever might ask II and
to as many as might ask II, was in
vested with discretionary power to
grant 1t or withhold 1t rs the public
interest might require. II this is So
any such privilege Of franchise grant.
ed by him would be special. not gen.
eral.
But the legislature shall not grant
to any corporation. association or In.
dividual any special or exclusive prl.
vilege. immunity or franchise without
the approval of Congress"
That the Act of 1874 was not eX-
pressly repealed by Congress Is easily
explained by the fact that 1t was omit
ted from the compilation Of 1897 of
the Civil and Penal Laws.
The Superintendent OF Public
Works, as the political successor OF
the Minister of the Interior. is. there.
fore, not forbidden in express words
to grant the special privilege or fran.
chise applied for, and the question
arises whether he is forbidden by i'm.
plication. whether he has greater pow.
er in the premises than the legisla.
ture has?
The definitions of a franchise al.
ready given deserve thoughtful con.
sideration. "a royal privilege in the
hands OF a subject" saws Blackstone.
"A privilege conferred by grant from
government and vested in indivi.
duals," says Kent. 1T Is essential to
the character of franchise" says the
Supreme Court of the United States,
that II should he a grant from the
sovereign authority, and in this coun
| try no franchise can be held which
is not derived from the law OF the
state" Under our system their tx.
istence and disposal" says the Su'
preme Court Of the United States
speaking of franchises in another case
already cited, ARE under the control
OF the legislative department OF the
government. They cannot be assum
ed or exercised without legislative au
thOrity."
The Minister of the Interior derived
authority to grant this special privi
lege or franchise solely from the Ha
waiian legislature. At that time. sub
iect only to the Hawaiian Constitu
ton, the Hawaiian legislature was the
supreme law-making power of an in
dependent kingdom.
The power to grant special prlvi
lege, immunity or franchise, which
the Hawaiian Legislature in 1874 dele
gated to the Minister OF the interior
and which 1t could have revoked al
will, has been taken from the legisla
ture itself by .Ae Organic Act II
me 1t seems improbable that Congress
while taking this power from the body
supposed to represent the will Of the
people intended to leave 1t in the hands
of single official deriving his author
ity In g premises, not from Con
gress, but from the legislature OF {
defunct kingdom. When Congress
declared that the legislative powe
Of the Territory shall extend to nj
rightful subjects OF legislation not in
consistent with the Constitution an,
laws Of the United States locally ~
the Legislature. The definitions give
by the Supreme Court of the Unite,
States already cited indicate that the,
belong to the legislative rather thai
to the executive branch of govern
ment on American lines, II they ar
rightful they are "rightful subjects q
legislation"
Subject TO the Constitution OF tn
United States, the Congress Of tn
United States is now the supreme
lawmaking power. "a territory
Is only n dependency Of tn
q United States government, under tn
exclusive jurisdiction and control O