The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-03-03

1ha transition period, which allowed
the Minister of the Interior to grant
franchises by and with the consent of
the Executive Council, and this fran
-hisa in question was so granted and
approved by President Mckinley, IN
der the rulings from Washington as to
such matters. This power has now been
taken away from the Minister of the
Interior. and franchises must now be
granted by the local Legislature with
the proyiso that special and exclusive
franchises must also have the consent
of Congress. 1t is, therefore, out of
the question for the superintendent of
Public Works to, at this time, amend
and alter the terms of a franchise by
agreement with the other party thereto,
as. by doing so, he would be granting
a new franchise to the extent of the
amendment or alteration, and this
power has been taken from him.
The question remains whether the
superint endent can extend the time of
said corporation within which it i to
perform certain act. In this particu-
lar. the contract reads as follows:
And if the said corporation shall not
have completed the said railroad or
railroads and branch lines within three
years from the date OF the approval of
the location as aforesaid, then the said
Minister of the Interior shall have the
right and privilege to declare forfeited
the franchise of said company to con-
struct the said railroad or railroads as
aforesaid provided, however. thai such
forfeiture shall not take effect until
written notice that such forfeiture is to
be enforced. is served upon the corpo-
ia ton. and further provided, that moth
ing herein contained shall be construed
to prevent the said corporation from
hereafter, from time to time, locating,
and operating other branch
lines in said districts, subject to the
approval of the Minister of the Inte-
rior."
There is no other proviso whereby
the Minister of the Interior or the Ter
ritory of Hawaii is allowed to extend
the time of said corporation in which
to complete it's work, except upon I'M
foreseen contingencies specified in the
contract, none of which has arisen.
| understand the contention is made,
however, that this provision as to for
fixture is optional with the Minister of
the Interior and that, therefore, they
have unlimited time, within his discre-
ton, to complete the road and within
which to do and complete the various
works set forth. With this view, how
ever ] do not wholly agree. While the
terms of the contract are vague and
uncertain, and there is ground for the
contention that the Minister of the In
terror may use his discretion as to
whether he shall declare a forfeiture
"a of "a fn
strictly comply with the terms of it's
lister of the Interior is acting, not for
himself but for the Territory of Ha-
wall, and L do not believe it would be
right or lawful for him to abuse the
discretion vested in him under this sec
ton by extending such period indef-
nitely, or by making any new terms
with the corporation, in view of which
he agrees to waive said forfeiture.
There is also serious question, it seems
to me, how far, in a public franchise
of this kind the Minister of the In
terror can waive forfeiture, in View of
the fact that he no longer has power
to grant, change, or amend suca fran
chses.
My opinion would be that the most
you could do under this contract would
be to inform the Kohala and Hilo R1:--
way Company that you will not enforce
the forfeiture within a reasonable time
after their failure to comply with the
unless matters should de-
velop wherein injury to the Territory
of Hawaii would result by your fail |
ure to declare such forfeiture. This, |
it seems to me, is the limit to which |
your discretion could go, and we are |
the construction of the fran !
chise, in my opinion, to go as far as |
this
Yours very truly,
(Signed) L. a. ANDREWS.
Attorney-GeHeral. |