The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-01

sral Dole was 81 that hst0i Which S he
read before the Governors
Council yesterday relative to the APP
plication of the Century Telephone
Company for a franchise to establish
its plant in Honolulu. Mr.. Dole's opin-
ion was that the executive had no au-
thority to grant any special franchises
which could not be given to others as
well. The opinion is based upon the
Organic Act provisions which take away
| from the executive the power which in
| this instance would rest with the Leg
islature., Treasurer Lansing, who first
had the application for consideration,
| doubted his power to grant the re-
quest prayed for and referred the mat
ter to the Attorney General upon the
suggestion of the council.
| Governor Dole stated yesterday that
| the council also considered some pa
| perS in connection with the charter
| land agreement of the kona-Kau Rail
| way Company Hawaii He said the
charter can be procured, but the ques
ton has arisen as to whether the Gov
ernment could contract with them ac
lcording to the law. and there seems
doubt in his mind as to the extent of
his authority. The law authorizes the
iGovernment to contract for the build
| ing of railroads and to grant eminent
domain. The probability is that that
| Is invalid under the Organic Act. The
act provides that the Legislature may
not grant special franchises or exclu-
sive franchises.
Attorney General Dole's opinion,
which affects both the Telephone Com
pany application and the Kona-Kau
Railroad. is as follows
| Honolulu, H l.. Feb. %, 1901.
| Hon. j. A. McCandless, Superintendent
/ of Public Works.
| Dear Sir: The Century Telephone Com
pany Limited, a Hawaiian corporation.
having applied to you for permission.
TO construct its telephone lines upon and
along the highways and public roads
and across the lands and waters Of the
| Territory" 1 have the honor, at your
| request to submit the following opinion
! relative to your power in the premises:
The question is logically divided into
two questions: First, is this,an applica-
ton for special privilege or franchise
such as the Legislature itself cannot
| grant without the approval of Congress?
| Second. If it is, has the superintendent
of Public Works greater power in the
I
l..
! Section SIS of the Organic Act declares:
| THAT the legislative power of the Ter
| ritory shall extend to all rghtful sub
jects of legislation not inconsistent with
the Constitution and laws of the United
States locally applicable. But the
| Legislature shall not grant to any cor
| poratiou. 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
prerogative suhsistng In the hands of a
subject
| Kent says franchises certain
| privileges conferred by grant from gov
eminent and vested in individuals" @
Kents Comment, 45S)
! The Supreme Court of the United
States defines franchises follows:
franchises are special privileges con-
| ferred by government upon individuals
| and which do not belong to citizens of
| the country, generally, of common right.
| 1t is essential to the character of
| franchise that ii should be 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"
| QBank of Augusta VS.. Earle, 10 Peters.
$3.50 This definition has been followed
| In numberless cases.
l anu dlNtSltu VI Tic oPC~
cial form which 1t assumed under a
monarchical government based on feudal
| traditions, a franchise is a right, privf-
! lege or power of public concern which
ought not to be exercised by private In
dividuals at their mere will and pleas
ure but should be reserved for the pub
lie control and administration, either by
the government directly or by public
agents acting under such conditions and
regulations as the government may i'm
pose in the public interest and for the
public security. Such rights and pow
ers must exist under every form of So
ciety. They are always educed by the
laws and customs of the community
Under our system their existence and
disposal are under the control of the
legislative department of the govern
ment They cannot be assumed or exer-
cised without legislative authority. No
private person can establish a public
highway or a public ferry or railroad,
or charge. tolls for the use of same with
out authority from the Legislature d.
rect or derived. These are franchises.
No private person can take another's
property, even for a public use, without
such authority, which is the same as to
say that the right of eminent domain
can only be exercised by virtue OF the
legislative grant. This is a franchise.
No persons can make themselves a body
corporate or polite without legislative
chise The list might be continued In
definitely" California VS.. Pacific. r. r.
Co. E7 u. S., DsrlAshley; VS.. Ryan, f5s
u. S.. 40 93t - tz0Qsg Is 21s
1T is clear that the privilege of max
ling a railway or turnpike. or establish
ing ferry or taking tolls for the use
of same, is a franchise. as the public
have an interest in the same and the
towners of the privilege are liable to an
swer in damages If they refuse the use
of the same, without any reasonable ex-
euse upon being paid or rendered the
usual fare" Peoples r. r. VS.. Mem
nhis r. r., 10 wall. ST.
| 'It is a franchise to be empowered
,o hufId a bridge or keep a ferry over
a public stream with the right TO de-
mand tolls or ferries. or 10 build mill
upon public river and receive tolls for
consists in the incorporeal right The
property acquired is in the franchise"
fTuckahoe Canal Co. VS. Tuckahoe 4.
p Co. ii Leigh Wa-), 3D.
| 7, Jersey CITY Gaslight Company vs..