The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1907-01-12
LANAI EXCHANGE
DECLARES ILLEGAL
Continued from Page one,

mludtion OF The foregoing sections lldl ,
not only is the government prccluded
firm selling public lands under lease but
cam not even lease them while there is
Ian existing lease having more than two
years to run. (scc. 27S, r. I'D More
over, &c win Doe further observed that
Chapter 22, r H., of which Sec. 276
is a part, was enacted I'm 1895 and de-
signated Land Act of 1895" which Act
is clear and explicit i'm it's terms And
that part thereof, now Sec 27G, r. L.,
is a limitation of the general powers
contained in Sec. 252, r. /.
Now, regarding the proviso in Sec
276. 1t is obvious, in the light of the
foregoing examination, that the power
Iof the Commissioner i'm the matter of
Ian exchange, is limited to public lands
not under lease" the same as in sales
for cash or part cash and part credit.
The only office this proviso serves is
that it dispenses with IAN auction sale"
And it would seem from the use of
the phrase an auction sale" that the
Legislature regarded an exchange as
a sale thus combining an exchange to the
same character Of public lands as men
toned in the preceding part Of the Sec
ton.
THE natural and appropriate office Of
the proviso being to restrain or qualify
. some preceding matter, it should be
confined to what precedes it unless it
clearly appears to have been intended
to apply to some other matter" CThere
is nothing in the Section or the pro-
viso itself that would indicate that the
proviso was intended to apply to any
public lands other than those not under
lease. 1T is to be construed in con-
nection with the section of which it
forms a part and it is substantially an
i exception" I'm the matter of an ex-
change IAN auction sale" is excepted,
l. e., an auction is not required.) IF it
be a proviso to a particular section, it
does not apply to other unless plainly
5 intended" CThus it would seem perfect
ly clear that the proviso in question
. does not apply to public lands under
l lease, which are covered by Sections
27S2S5). 1T should be construed with
h reference to the Immediately preceding
parts of the clause to which it is at
tached. The proper function of a pro-
J viso being to limit the language Of the
legislature, it will not be deemed in
tended from doubtful words to enlarge
or extend the act or the provision on
A which it is engrafted. Where it follows
and restricts an enacting clause general
in its scope and language, it is to be
strictly construed and limited to OBJ
iects fairly within its terms"
Lewies' Suth. ST. Const. Sec 532
In u. S. VS.. Dickson, 10 Pet. 141, Mr.
Justice story said: I'VE are led to the
/ general rule of law which has always
prevailed and become consecrated al
most as a maxim in the Interpretation
of statutes, that where the enacting
clause is general in it's language and
objects, and a proviso is afterwards
introduced, that proviso is construed
strictly and takes no case out of its
enaCting clause which does not fall fair
lily within its terms" If then, in the
light of the foregoing authorities the
] proviso is to be confined to what pre-
/ cedes it, and 1T will not be deemed
intended from doubtful words to en-
| large or extend the act or provision or
/ which it is engrafted," and lit is tC
be strictly construed and limited to OBJ
Jects fairly within it's terms" the court
must find that the proviso in question is
limited to the subject matter of the
statute upon which it is engrafted, thai
is, to public lands not under lease il
| parcels of not over 1000 acres" anC
that it was not intended "tO enlarge OF
| extend" the act upon which it was en-
. grated so as to cover public lands
- under lease in parcels of over 41,OOI
acres, more than one-haf of one o.
the islands of this archipelago. If the
proviso is to be strictly construed and
limited to objects fairly within it,
terms how can the court hold that i
extends to and covers public lands
m under lease" and in areas of over 100
M acres each. The lands in question ar
m not fairly or at all within the terms o
the provso "The beneficial purpose,
as well as the policy and spirit of tn
Land Act of 1896" was to limit tn
transfer of any land in parcels of owe
1000 acres. The same policy and spiri
o, should pervade and control the pro
g. viso.
H. Can it be asserted with any show o
- reason, that a construction of the pro
viso allowing the exchange of over Al,
, 600 acres of the public lands, and ever.
- foot of land owned by the Territory OF
% one of our important islands, is in fur
therance Of the general beneficial pur
pose Of the statute, which is to restric
the sale Of public lands in parcels o
y not over 1000 acres each?
- AT the oral argument on the demur
rer it was urged by the Attorney Gen
eral that the bill d.d not show that tn
Commissioner threatened or intende
to dispose of more than 1000 acres o
these lands to any one person.
1t appears from a certain official no
tice, which is made a part of the bill
that the Commissioner "is prepared L