The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-10-18

sideration is, Has the court power I'M
| der the law, pleadings and evidence TO
| enjoin the respondent as prayed for ?
In my opinion this question must be
| answered in the affirmative.
| 1t appears to me that the facts here
! in resolve themselves into two simple
questions, namely, What does section
/ SAL mean and is it enforceable? 1t viii
| be observed that this statute is manda-
! tory and not permissive.
| That the franchise granted and ac-
! cepted is a contract, there can be no
question. And il is d principle of law
as we'll as of natural justice, that he
who claims the benefits of a mutual
contract or other like undertaking,
must also bear the corresponding bur-
| dens Incident thereto.
The court has no more power to
eliminate this section, which is a part
of the franchise, than it has to inter-
polate other provisions therein; and
surely, this section was inserted for
a purpose, which is to be ascertained
from the language used and the con-
text, as we'll as from the purpose OF
the act. The language used is plain,
and it would seem that the Legislature
has, accordingly, clearly. and beyond
question expressed it's intention.
Booth on Street Railways, Sec. 8, says:
Both on reason and authority, a char
ter lawfully granted and duly accept
ed and acted upon, has all the elements
of a contract and is binding upon all
the parties to it, and enforceable, if
not always in the same manner yet to
the same extent, as an ordinary agree
ment between natural persons. From
the Dartmouth College case to the pres
ent time this has been the American
doctrine. In nearly all charters, while
many of the terms and conditions are
expressed, others are implied
The same authority at Sec. 234, rela-
tive to requiring cars to run during
certain hours and at fixed intervals,
says: Regulations respecting the fire.
quency of trips, and the hours during
which the railway shall be operated,
are clearly proper subjects of local
legislation; or of contract between the
public corporation and the private COM
pany. Duties of this character, when
lawfully imposed or assumed, may be
enforced by appropriate remedies /!
Courts may grant relief for the failure |
to discharge an obligation of this kind |
even though the hours and intervals |
are not fixed, and the duty to furnish |
proper railway service is expressed in |
general terms only, as, for instance, the |
running of cars along a particular
street daily, at such regular intervals |
as may be right and proper"
The distinction between an ordinary
railway and a street railway is impor-
tant, and a clear mental grasp of this |
distinction will assist materially in de-
termining their respective duties and
to the public.
The former, being incorporated for
private gain and having the right to
exercise the power of eminent domain
only. is not so burdensome upon the
public; consequently, it's obligations to |
the public are correspondingly less;
while, on the other hand, the street
railway, being organized chiefly to sub
serve the public convenience and not
only enjoying the power of eminent
domain but also the right to a public
whereby it may cucumber
the public streets and highways and
otherwise become a burden and danger
% the public, it's duties to the public
must, accordingly, correspond with it's
greater rights and powers. And, when
We add to this the distinction between
oermissive and mandatory statutes the
conclusion to be reached would seem |
o be clear. The franchise was granted
% respondent not for its profit alone or
hat of its stockholders, but in a large $
Measure for the public benefit.
peculiar privileges were conferred {
lpon it in consideration that it would s
provide facilities for communication ,
nd intercourse for the public" II
State ex rel. V. Spokane st. Ry., Al |
= r. A. SIS. Il
1t can not fail of observation that ,
he chief consideration exacted by ,
he public for the numerous rights, | !
covers and privileges conferred upon {
nd to be enjoyed by the respondent | I
Inder it's franchise, was and is the | s
ublic convenience and service to be | f
endered by respondent. What the
ublic convenience in this respect may t
equire is to be determined by the pub +
c rather than by respondent To hold +
therwise would necessarily result in i
otal disregard and annullment of the +
lain language of Section SAL. ,
The requirements of the public con- G
'enience, as 1 view 1t, does not lie \
olely in the discretion of the re- G
pendent or its directors. And, in this r
if by any possibility a r
oubt as to the construction of Sec =
ion S41 should be perceived it viii be ,
bserved that words and phrases in +
tatutes comforting franchises on cor
orations must receive that interpre-
alton which is most favorable to the
ublic. :
In the case at bar the evidence con- =
lusively shows that the public con-
enience requires the continuation of
Ia ten-rOjr11fa schedule The cr71r+