The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-01-10

stated, land patents may be issued II
exchange for deeds of private lands
under this provfso, whether such ex-
| changed lands are used for public pur-
poses or not Under the provisions OF
| Section 254, however, which contains
absolutely no limitation in the matter
OF area it would seem that il
was the intention of the Legislature to
permit exchanges of the Government
| lands irrespective of the area" etc.
He cites Section 252 of the Revised
Laws, which authorizes the Land Com
missioner to sell, lease or otherwise
| dispose of public lands. and says:
Under this broad and general power
there is no question but that the Land
Commissioner could dispose of such
lands in any area and in any manner
he might deem fit for the general wei
fare of the Territory. Brief, p. 16.
He admits, however, that
Another limitation upon the general
powers contained in J Section 252 is
found in Section 276. which provides
that the Commissioner may. with the
consent of the Governor. sell public
lands not under lease In parcels of not
over 1000 acres, at public auction for
cash. Brief p. A.
In the mad desire to find authority
for the transfer of over half the Island
of Lanai he bases the right of the
Government solely upon Section 254,
which, he says, contains absolutely no
limitation in the matter OF area" and
from which it would seem that it was
the intention of the Legislature to
4
lands irrespective of the area etc.
Conceding that counsel is right, and
that 1t was not the intention to limit
the area of land which might be ex-
changed at the time this act was pass
ed, any more than 1t was intended to
limit the area of land which was sold,
that was an intention expressed 80
years ago, and that intention was dia-
metrically changed by the Land Act of
1895. Whether counsel has attempted
to befog the issue aud mislead the
court, or has erred because of want Of
knowledge, we do not attempt to say,
but when he cites Sections 252 253 and
zo4 of the Revised Laws and would
have the court decide this case upon
those sections without a single refer
ence to Section 344 of the Revised Laws.
we are forced to the conclusion that no
reliance can be placed upon his conten-
tons. Section 344 of the Revised Laws
reads as follows:
Section 344. Other sections subject
to this chapter-Sections 250-254, and
Chapter 81 of the Laws OF 1892-are sub
ject to the provisions of this chapter"
Section 253 Of the Revised Laws gave
the Land Commissioner with the au-
thority of the Governor power to lease
sell or otherwise dispose of the public
lands subject to such restrictions
as may, from time to time, be express
ly provided by law.
This was the Civil Code of 1859. In
1876 the legislature limited this power
by providing that except as otherwise
provided all transfers of government
lands shall be made at public auction"
etc. Revised Laws Section 253. The
same legislature then provided that
''the provisions of Section 253" as to
public auction shall not extend or
apply" to cases of exchange or sales Of
government lands in return for parcels
of lands acquired for roads, sites of
government buildings, or other gov
eminent purposes Revised Laws
Section 254.
At the foot of Section 254 appears the
following: Am. (by implication) L.
1895, c. 16, s. 49, This is now Section
344, Revised Laws.
In 1885, an entirely new Act called the
Land Act 1885, was passed. This is
now Chapter % of the Revised Laws.
BY the terms of this Act the power of
sale of public lands was limited to
lands not under lease and in Pc ~cels
of not more than 1000 acres, at public
auction for cash, and with the follow
ing proviso:
provided, however, that land pat
ents may be issued in exchange for
deeds of private lands or by way of
upon the recommendation
Of the commissioner and with the APP
prevail of the governor without an auc-
ton SALE" etc.
Section 278 provides for leases of pub !
lie lands for not exceeding q years at |
auction, and the section which is Sec |
ton 344 expressly provides that "Sec- |
tons 250-254, 490 and chapter 81 of the |
Laws of 1892 are subject to the provi- |
sions Of this chapter.
It is clear therefore that If Section |
ZIG is limitation upon the general |
powers contained in Section 252, and |
limits the sale of public land to parcels |
Of 1000 acres each, as Is admitted by
the Attorney General Grief p. 14) it |
also limits the sale to public lands |
not under lease" It must necessarily |
follow that the proviso to Section 276 Is
United also to lands not only less than
1000 acres in extent but also to such
ands not under lease. The subject of
Section ZIG is public lands" These
public lands are public lands not
lnder lease. The proviso must refer
o the same thing. It says provided
that land patents may be is
sued in exchange for deeds Of private
ands without an auction sale
The proviso then merely takes away
he necessity of an auction sale. 1t
states that land patents may be is
ued," etc. Land patents to what?
rhe proviso does not state that land
,atents to over 1000 acres may be is
ued without public auction. 1t does
lot state that land patents to public
ands under lease may be issued. What
hen does it refer to when 1t speaks or
and patents? To the subject OF the
ection and nothing else. It must then
efer to land patents to public lands"
hese must be public lands not under