The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-01-23

SuDJec OF lSSlsidtiOn, 10 VIII, section 207
providing for Territorial revenues, sec
ton 26o providing for Territorial !
charges, sections 3SI TO 3oI creating a |
board of public institutions, section 4oz
appropriating all existing waterworks !
and systems, sections as and 4I6 ap-
propriating all property used by the Ter
ritory in lighting. streets and public |
buildings, section Az appropriating all
public markets, sections 40 to 49, ap-
propriating and transferring property be- |
longing to the Territorial government to
the counties, sections 483 to 49, pro-
viding for the organization OF the board
OF pubic institutions, and chapter 10
making appropriations of Territorial
funds for the support of counties: that
the legislature is without authority to
modify or change the form of the Ter
ritorial government as established by
the organic act, and that the board
sought to be created by the county act,
is illegal in that the power of appoint
ment of members of boards of public
character IS vested in the governor by
section So of the organic act.
The board then instructed the attor-
ney-general to bring legal proceedings
against the superintendent of public
works to compel him to conform to the
provisions of the county act bearing on
the question, and to the demand of the
board. Such proceedings were begun
in the circuit court in the form of an
application for a writ of mandamus to
the superintendent of public works The
case was heard and judgment given for
defendant on the ground that "all the
sections OF the county act which relate
to the board of public institutions are
repugrant to section So of the organic
act and therefore void; and that they
are not so intimately connected with
other parts of said county act as 10
invalidate the latter, but that on the
contrary the rest of the said county act
is severable AID can stand without the
invalid portions" An appeal was taken
from this decision to the supreme court,
and the case is still pending in that
court.
Section So of the organic act referred
to by the defendant and the court, pro-
vides among other things that the gov
ernor shall nominate and, by and with the
advice and consent of the senate, ap-
point the members of all boards of
public character that may be created by
law, and may make such appointments
when the senate is not in session by
granting commissions which shall, I'M
less such appointments are confirmed,
expire at the end of the next session of
the senate.
The provisions of the county act ap-
propriating certain property, under the
present control of the government of the
Territory, raises some embarrassing
questions. The greater part of this
property is covered by the provisions of
section OF of the organic act, which
places its control and management in
the government of the Territory of Ha-
waii, until otherwise provided for by
Congress, or taken for the uses and
purposes of the United States. This
! enactment suggests the question wheth-
er these provisions, transferring such
property from the control of the gov
eminent of the Territory to the sub
ordinate governments created by the
legislature, require the approval of Con-
gress.
These provisions transferring public
property to the counties were evidently
intended by the legislature as grants of
ownership or title. Section AT of the
, county act referring to the transfer of
jails and property used in connection
Herewith, says, all property so trans
ferred shall be the property of the coun-
ty and subject to the control of the
board of supervisors of such county"
A similar provision appears in section
40 in relation to roads and bridges.
Section 22, division 6, authorizes coun-
tv supervisors to sell at public auction
any property belonging to the county
not required for public use. Jail prop
erty is mainly real estate, large part
of the public waterworks, of the fire
department property, of the public cleo
tric-lighting plant for Honolulu, and of
the public markets are also real estate
Such provisions for transfer of public
landed property being inconsistent with
section 70 of the organic act which con-
tinues in force Hawaiian land laws I'M
til Congress shall change them would
seem to require for their validity the
approval of Congress.
Section III purports to transfer the
duties and authority of the commits
sioners of boundaries to the surveyors
of the respective counties. AS the laws
providing for the boundary commission
ers are a part of the Hawaiian land
laws continued in force by section -
of the organic act, this provision must
also be invalid unless approved by Con-
gress.
1t would appear from these references
to the organic act that the transfer of
such real estate as is necessary to the
administration of county affairs should
have been a transfer of the use only
in the nature of a trust