The Hawaiian gazette., 1904-04-26
NO RIGHT
TO SELL
The Territory Cannot
Dispose Of
Lands.

An important ruling, confirming pre-
vious opinions to the effect that the Ter
ritory of Hawaii has no right to dispose
OF public lands vested in the United
States is made by the War Department
IN the matter of the Oahu Railway right
OF way across kahauiki tract The Oahu
Railway obtained right of way across
the military reservation, although pre-
vious to its being taken over for such
purposes and in view of technical aues-
lions raised secured the passage of bill
in Congress confirming their right of
way.
The ruling made by Judge Davis, Ad.
vocate General, in the War Department.
is that the grant of right of way was
illegal. The explanation made by Gov
ernor Carter that the transfer was made
before the tract was set aside by the
president, is also said to be unsatisfac-
tory.
Secretary Taft in passing finally upon
the matter, and condensing the findings
of his legal advisers, says:
AS pointed out in the letter of the De-
partment to the governor, the United
States acquired under the joint resolu-
ton of July 7, 1893 GO Stats, zso).
absolute fee and ownership of ali public
government or crown lands" then be-
longing to the government of Hawaii.
and thereafter no interest in such lands
could be granted without authority from
Congress. By section 70 of the act of
Congress of April 80, 1900 (3I Stats.
I54-"all sales, grants, leases, and other
dispositions of the public domain, and
agreements concerning the same, and all
franchises granted by the Hawaiian gov
eminent in conformity with the laws of
Hawaii" between July 2, 1893, and Sep
TENDER 20, 1899, were ratified and con-
rmed'-subject to the approval of the
President but it was expressly provided
that-there shall be excepted from the
provisions of this section all lands here
tofore set apart or reserved by Execu-
tive order or orders by the President of
the United States.
In other words Congress, in ratifying
the unauthorized dispositions of public
lands by the authorities of Hawaii ex-
pressly provided that such ratification
should not apply to lands set apart or
reserved by Executive order, so that dis
positions affecting such reserved lands
continued to be imperative and void.
AS the relocation of the line was ap-
proved September 2, 1893, and author
lied by deed of February 4, ISoo- G.,
after the title to the lands passed to the
United States under the joint resolution
OF July 7, IS9S-it was imperative, and
the attempted disposition, so far as it
affected the military reservation, is not
covered by the ratification made by the
act of April 80, 1900.
However. as stated by the governor.
the relocation of the line was authorized
prior to the reservation of the lands for
purposes, and the deed of April
20, 1908, was made to place OH record a
description of the original right of way
acquired in 1880 on approval of the maps
of location of the railway
In both deeds the right of way for
the railway is described as being 40 feet
in width, 20 feet on each side of the
center line.
The power to dispose of the real prop
erty OF the United States is vested in
Congress and can only be exercised by
the Executive with the express Iegisla-
tive consent. | know of no objection to
a ratification of the conveyances in ques-
ton, and in view of the facts as stated
above it would seem that such action
should be taken.
have the honor, therefore, to recon-
mend that the act of the Hawaiian gov
eminent in GRANTING right of way
across the Kahauihi be authorized. The
draft of an appropriate clause of legis-
ation is submitted herewith
Very respectfully,
WIN. H. TAFT,
Secretary of War.