Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1912-06-15
RAPID TRANSIT IS
LOSER
(continusd from Page u

favor, was made on an agreed submits
sion of facts, and was not the result
OF AN action at law between the par
ties opposed. and for that reason juds-
mcnt can not be given.
Up to City and County.
In other words, II explains that the
decision against the company was
given merely as an Interpretation Of
the Territorial law. Since 1t holds the
Territorial statute to be constitutional
and effective. the city and county are
left only the responsibility OF enforc-
ing that regulation and compelling the
company to do the paving. II the COM,
pany fails to obey, the city and county
may do the work and assess the COM
pany for II.
The attorney general and his assist
ants are highly elated over the out
come of the case. They say that It Is
possible the company, II II really de-
sirCs to evade the law and avoid the
actual work of paving for longer
period of time, may bring an indivld-
ual case to prevent the city from I'M
dcrtaking the work, and losing In that,
may carry II on up 10 the United
States Supreme Court on appeal. But
II the Rapid Transit is sincere in Its
desire to do the right thing, they de-
clare. II will not attempt such extreme
measures. and will bow to the verdict
Of the Tcrritory's Supreme Court and
the statute.
The decision says:
Submission of Controversy--judgm
Where, In submission on agreed
facts without action, the case PIE
scented Ii such that an enforceable
judgment can not be entered, the
proceedings should be dismissed.
SUPPLEMENTAL OPINION OF THE
COURT BY ROBERTSON, G. ].
Following the filing of the opinion
In this case reported ante D., counsel
for the railway company informally
notified the court of the company's in
tention to take an appeal. and the
question as to what form the judg-
ment should take having arisen coun-
sci for both parties were notified that
they would be heard on the point Thc
matter has been fully agreed orally
and In briefs. Counsel for the govern
mcnt have taken the position that,
upon several grounds which we will
not stop to review In detail no judg-
mCnt can properly be entered In the
case Counsel for the railway COM
pany contend. first, that the submis-
sion should be regarded as having
taken the place of petition for a
writ of mandamus, In which case the
Judgment should award a percmptory
writ. and, second, and alternatively
that II may be regarded as a bill for
an injunction. In which case the prayer
for an Injunction would be denied and
the bill dismissed.
We think the submission was enter
ed into by the parties without any
thought as to the entry of a judgment
In the case. II seems AS though coun'
sci had In mind only the obtaining
of the views of the court on the ques'
tions stated In the submission. The
case was argued and submitted foi
determination without any reference
being made by counsel as to wha
judgment should be entered, and We
must confess that In rendering oul
opinion we did not consider the point
Notwithstanding what was said II
Bishop V. Judd, Haw. 20, 30. u
regard to the possibility of the statat,
providing for the submission of con
troversics without action being so uset
as to make the court an office of con
sultatlon, we fear that some laxity Ia
entered into proceedings hereottOr
brought under the statute. II IL clca
that the statute contemplates the On
try of an enforceable judgmen Or. l.
See. l75D and we can not give GU
approval to the entry of judgm IN
that merely answers certain question
such as was done in the case of Rapi
Transit Co. V. Than Co, 10 Haw
1868.
There are several reasons why tn
submission should not be regarded a
having taken the place Of a bill for &
injunction to prevent the paving of tn
portion of the street referred to by tn
government. The submission contain
ed no allegation of any threat tina
unless the company should do til
paving the government would do 1t q
the Company's expense; nor was thcr
an allegation that the company ha
been notified that the municipality wa
about to proceed with the work wit
the intention of bringing suit again
the company to recover the cost: II
municipal officials were not made paI
tics; md II Is not likely that an II
junction would have been sougl
against the Territory.
Nor can the submission be regarC
ed as a proceeding for a writ of mat
damus instituted by the Territory.
addition to the fact that the partl'
appear not to have contemplated II
entry of "A judgment, but only that Il
court would answer the questions PR
pounded, the submission itself shov
that the railway company assumed Il
position 0f plaintin in the case. ~
concluding clause of the submission
as follows: Wherefore paintin ~