The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1912-05-28
MAKES BROAD RULE
Finds the Territory
Coded Some of It's
Authority
yFroH Saturdays Advertiser.)

noon decided the Rapid Transit street
Pavement ease in a decision, written by
Chief Justice Robertson, and concurred
IN BY Justices Perry and DE Bolt, OF
Ehieh the general trend is in favor Of
the city and county authority as
againsf that q the Territory, in the
matter Of payemeuts the company shall
place on those portions Of the streets,
under fts franchise. IL is required to
nave. The issue was raised by a friend
iy suit. under an agreed submission Of
facts. 20 determine how the company
should proceed 20 pave the streets.
IN the course Of its decision, the
eourt lays down a broad rule which the
lawyer say Will be Of vast Importance
il deciding future cases that may in
volve conflicts between the municipal
and territorial authorities. 1.-THE wor'
Territory a. used in section s64, is
equivalent 10 Government says the
court, and includes street Improvements
made by the municipality"
The court holds under this view that
the passage Of the city and county act
transferred TO the city and county
some Of the powers retained by the
Territory when the Rapid Transit com
pany's franchise was granted, which
was prior TO the establishment of city
and county government.
Sustained Campbell.
Superintendent of Public Works
MarstOn Campbell is definitely sustain
ed in sending to the Rapid Transit com
pany a notice to pave Fort street, in
the bitulithie block, with the same sort
Of pavement as the city and county had
put down. However, on this point, the
decision gives the company leeway, in
the following language:
Notwithstanding what we have
said in regard to the company's obliga'
ton 20 conform its pavements to those
laid down by governmental authority
the provisions of the franchise act, as
contended by counsel, must be given a
reasonable construction and effect. If
at any time the streets should be paved
with such material or in such a man
ner as would clearly be inadequate OI
wasteful or extravagant, it might prop
erly be held that to require the com
pany 70 conform thereto would be an
imposition on the company, and that il
was not within the spirit and intent
Of the act that the company should bc
expected 10 comply under such eircum
stances Counsel for the railway com
pany contend that, in view of the fac
that nearly one.half Of the life of it
franchise has passed, it is unreasonable
20 require the company to lay an eX
pensive and so-called permanent pave
ment, such as bitulithic on a concret
foundation. It is not at all clear tina
the length of the life remaining in tn
franchise IL TO be considered in thi
connection The statute requires tn
eompaBy TO pave and repave, and Il
keep in repair the street surface Oc
cupied by its tracks 50 long as tn
franchise continues In fprep, If tn
character Of the pavement required h
t,t laid Z not open :" objection, We Ut
inclined to think that the duty to la.
IL would be the same whether the re
naming life Of the franchise be long o
short. Whether that is 30 or not, W
are satisfied that it is not at all unrea
s0nable 10 require the company to pu
down the pavement specified in the nc
tice at a time when more than one
half Of the life Of its franchise remain
intact. II il not claimed that the pave
ment IN question is not an approve
one. II II not claimed that the actio
Of the municipality in laying such
pavement was in any way improper {
inappropriate. We think the fact this
At the expiration Of the franchise Il
c0mpany's ties could be taken out {
the concrete base only with much di
Gculty affords no sufficient reason II
relieving the company Of the obligatiC
10 las the pavement
There we're seven questions submi
ted ~ fine court, and IN all OF them,
seen by the following list. the ruliI
of ihe supreme court II in favor Of 4
muHieipnl anthoritics.
Answered "Yeh"
-. Does the action " the mui
fipAl nuthontien Of ihc City aud COt
~ ~ Honolulu in the premises eref
any obligation on the part 0f the ilOl
lUlu ifapid Tfanpit a Land Compa
which eau be- enforced under Sect
= NJ SAID Afi fReeilGn E3s Royil
Laws of llaNMDi
Answsred mo"
"g ilas ibe superintendent 0f =
W. works discretion hH 10 the Kind
paving hf shall direct ibe iiOn0l
liapd 1Hnst Land Company
mHls iH ihe wemlsfsf May he dii
ihHi other tin1e ~ pavement iban d
bg iAf llly hnd County M Homo
49, said street, le lald ~ che Homo
iiRwa 1iHHsli a LHnd fOmpaHyi
Answered "he,"
na. ilas ibe llen0iniu hspid fm
4 iHHd COMPANY bY mHfHdamllinl
ffi Nfih 100 pDdiNH pf lfiuR ~
fffnfff ~ compiled Hlih ihn obi
ilNn ~ ~ fhHliNI Hnd itr lHn ~ !
~ mefaaHmin Ha rei fgfin lu ~
N iiA ~ M my u 1854 lfff
fsf iiellffa innt ~ liHnnlil ~ 3
fiff y N HHy ~ HI Obligation ~