The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1908-01-24

DAbN ASlun ADtt- CtV H. III TUT
of franchise, if it fails TO comply with
the requirements of the statute, is the
exclusive remedy, but that mandamus
would not lie because no duty is i'm
posed by law to run ears at any par
ticular time; that the law gives the
corporation discretion as to times of
running its cars and that if there is
any reserve power to control the dis
erection it is the legislature only and
not the court which can exercise such
power, so that until legislative action
neither injunction nor mandamus lies.
The defendant claims that injunc-
ton will not lie upon the facts in
the case, because public convenience
means the convenience of the public
under all the circumstances-such ia
cilities as the traffic will warrant, as
determined by the revenue derived
therefrom, and also because the court
will not usurp the legislative function
and require any particular service
which is shown to be improbable TO
the company, and. further, because
the case shows that no permission was
given by the Superintendent Of Pub
that the proposed schedule could be
carried out, the application for an in
junction being therefore premature.
The defendants brief, while con-
tending that mo case in the highest
court of any State or in the United
States Supreme Court can be found to
sustain the equitable jurisdiction in
this case" goes on to state the rule
as follows: Our decisions are full of
expressions showing that equity will
not interfere with the management of
corporations or grant injunctions ex-
cept in clear cases and as a preven-
tive measuSe against action which is
likely to cause irreparabIe injury" cit
ing wundenberg V. Martin, IA Haw.
167; Brown V. Carter. Is Haw. $50.
On the point that equity has no ju-
risdiction the defendant relies espe-
cially upon ShackIey V. Eastern r. r.
Co., 9S Mass. SO. In that case the
railroad company had become the own
err of the South Reading branch rail-
road under a statute which required
IL to run daily a freight train and
four passenger trains over that road
so as to furnish reasonable accom-
mediation to the public generally and
the business along the line of said
road The plaintiffs brought a petit
ton for an order TO require the re-
spondents to comply with the statute,
alleging that although public conve-
nience and necessity required running
of the freight trains, the respondents,
although often requested, had refused
for ten months to do so, to the great
and unnecessary delay, expense. incon-
venience and damage of the petition
ers and of the public generally in
the transportation of their freight
along the line of this railroad. The
case was treated as a proceeding on
the equity side of the court, the re-
spondents demurring, alleging as one
cause of demurrer that the petition
did not show that the petitioners had
such an interest as entitled them to
maintain it. The petitioners relied
upon a statute providing that in case
of disagreement as to what might be
considered reasonable accommodation
to the public, the Supreme Court, upon
application of any person interested, |
might appoint commissioners to settle |
the disagreement and investing the |
court with full equity power to en-
force the provisions of the statute. |
The court held that the only right
given by the statute was to apply 20
the court for appointment of commits !
sioners to settle any disagreement as
to what may be considered reasonable
1.,+ 4Ao&
of the act which invested the court |
with equity powers to enforce its pro-
visions left the parties and the mode |
of proceeding to be regulated by the |
ordinary practise of chancery, and |
that ANY suit to compel the per-
Torrance of a corporate duty in which !
the petitioners show no interest diff
ferent from that of the whole public |
should be brought in the name of the
General and can not be MAIN |
tanned in the name of these petition
ers," and, further, that sit would
seem that no relief could be afforded |
in equity for the cause stated in the !
petition either at the suit of individ-
uals or of the Attorney General rep
resenting the commonwealth; but that |
the only remedy would be at law by
Indictment or other ap-
propriate process or by proceedings to
annul the respondents charter or /
citing Attorney General V.
Ry. Co, 4 Dec. & S. 30; |
3 NJ. & G. 453; People V. Albany &
Vermont r. R. Co, "a n. Y. 261.
In the former of these cases a rail-
way company, formed in 1876 for the
purpose of making a railway from A
to B with diverging line to c, had
in June, 1851, nearly completed the
line from A to B, but had taken no
steps TO construct the diverging line.
The Attorney General, at the relation
Of certain parties claiming to be in
terested il the diverging line, filed an
to restrain the company
from opening the line from A to B ex-
cept with the intention of completing
also the diverging line. 1t was held
upon demurrer that the neglect to I
the whole line could not be
in the light of public in
Jury so as to warrant the interfer-
ence of the Attorney General. The
,ourt sustained the demurrer, saying.
Undoubtedly the Attorney General
las a right to represent the public,
either in equity or in prosecution at