The Hawaiian gazette., 1905-03-03
PECK WILL
LOSE RIGHT
The Kohala-hi Railway
Franchise Cannot
be Extended.


do, under the opinion Of the Attorcey-
General" said Superintendent Of Pni'-
lie Works Holloway yesterday, Us to
notify the Kohala- .Iilo railway people
that / will not ans )rce the forfeiture
clause of their franchise within rea-
sonable time after their failure to COM
ply with the conditions. unless matters
should develop wherein injury TO the
Territory would result by reason of the
failure to declare such forfeiture. / have
no power to grant them any specific
time to raise money"
And, in effect, that works the end of
the Kohala-Hilo railway enterprise.
When Mr.. Peck was given hearing
before the Governor not long ago, he
stated distinctly that he wanted at least
until the first of August to find out
whether he could raise the funds nee
essary to finance the scheme. Under
it's charter forfeiture would be work
ed in April, and what Peck struggled
for was a distinct assurance from the
Superintendent of Public Works that,
If he could show by the first of August
that he could raise the money, that the
charter would not be forfeited.
Governor Carter expressed himself as
willing to do this, provided the Attor-
ney-General found upon consulting the
authorities. that legal warrant existed
for the extension. The Attorney-Gen-
eral has found that such warrant does
not exist. And so, If o road is built
from Hilo to Kohala, it must now be
built under the provisions of the Dill
bingham franchise. The opinion of the
AttorneyGeneral sets forth:
Honolulu, #. H., March 2. 1906.
Honorable c. S. Holloway, Superintend-
ent of Public Works Territory of
Hawaii
Dear Sir: In answer to your request
of February 18th, as to whether you had
the right to extend the time of the
franchise granted to the Kohala and
Hilo Railway Company, beyond that
stated in the agreement between the
said company and the Minister of the
Interior on the Goth day of June, 1899,
1 would reply as follows:
This franchise was granted during
the transition period, which allowed
the Minister of the Interior to grant
franchises by and with the consent of
the Executive Council, and this fran
chise in question was so granted and
approved by President Mckinley, I'M
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 proviso 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 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
superintendent can extend the time of
said corporation within which it Is 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, that such
forfeiture shall not take effect until
written notice that such forfeiture is to
be enforced is served upon the corpo-
ration; and further provided, that moth
ing herein contained shall be construed
to prevent the said corporation from
hereafter, from time to time, locating,
constructing 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
upon the failure of the company to
strictly comply with the terms of its
contract. on the other hand, the Min
lister of the Interior is acting, not for
hfp,calf ht1f the FTarrifOFV nf Ha- |
wall, and do not believe it would be
right or lawful for him to abuse the |
discretion vested in him under this sec
tion 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. 1t seems |
to me, how far. in a public franchise |
of this kind, the Minister of the In |
terror can waive forfeiture, in view Of |