Newspaper Page Text
THE PACIFIC COMMERCIAL ADVBRTlSVtt: HONOLULU, MAY 6, 1901. n I because the grant is supposed to be made at )f the grantee, and to be drawn up by him or by fore the words used are to be treated as 11. m w" . , IF'" and this rule ot construction is a whole s' jb r j0f the interest of the public against any attempt p v tiu. insertion of ambiguous language, to take I ' obtained in clear and express terms." Oert- n .77 . .... rv,- 1 ?n TT G ,(d. m--T ('. 1 IIIIIIIUII SV ) . kJ. , VyftUTtttf . Warren Bridge, 11 Pet. 420, 544-548. If-' ':' I . . Tfoc flip TTnwaiifm Immwriva PfimTMnTr ,iu-.5tiin J-" " 1 fa railway by electricity ? f ,' , Willi s' R- Austin and associates was silent as 1 i lw in Tirvmpll nity tno para rwsw Vrt IhwaV but Section 4 of the Act permits the grantee I 1 1 . ..ir.n.ifnil eta f l nn n7rr "in 11 i .i.i i ff . at any time he might elect so to do. From this : .jiat it was the intention of the legislature to . ) i,: associates the right and privilege to take r,f and to apply in the operation oi its railway any i I ...;,.. .e In motive nower that would pnnblp tfiia L to keep abreast i weaHeui ceuwuy progress ana to v y t;nic to give what the public has a right to expect rUa modern, up-to-date street car service. That any mod would be strained and unwarranted and would y to condemn the public to the use of "an antiquated t.. ta wimninder of the term of the pnmnanv's b ILT u". - r J - L This argument might appeal to the sympathy or the I - tbe court but fails to command the respect of its jally in the light of the knowledge that this com - s legislative grant, had permission "to use and b flecinc power 101 muviuj; nuu nujciiiiig uieir uars ifljrT goch wires which may be necessary therefor, over m or under the highways and public roads and across fel YiUrS inill luv atcm va. uvw.uauv.ij uuui Ll-Toiiqi- 1 07 and fhflt this nrivilprrA urns nAt gv ii u auuui - , 1 r "t " jud wa permitted to lapse by non-user, iperal nile is as follows: "It is, indeed, questionable lie silence of the ordinance upon this point will not be ji to mean that such motive power only may be used itommon use at the time of the enactment of the I There is reason for presuming that the parties con jjonh such a use of the streets as was at the time or eade by street railway companies.' Elliott, Roads & . p. 561; North Chicago City Ry. Co. v. Lake E207. E& the idea that electricity might be brought into m is a motive power may have been familiar to the legislators in the year 1884, the time of the original piramways Company, the court will take judicial jjthe fact that electricity had not at that time been Ijtosuch general use. In the absence of clear terms ifeintention on the part of the legislature that electric iMl be used by this company in propelling its cars rack, we do not believe that we would be authorized to iaeh an intention into the terms of the grant unless (Sea that such use would impose no additional servitude ta. It is possible that a system of storage batteries or led improved electric motor appliance, not familiar to t, might be substituted for the present motive power 5ny. On this question we do not feel called upon to f time. However we are clear that the company can- He terms of its grant make use of electricity as a raif the same is applied by means of some of the well Ites now in common use, such as the overhead trolley underground cable system for the reason that each I nld impose an additional servitude on the pub- I that in Section 4 of the Act of 1884 permis- p to use a wire or rope cable operated by stationary pnstratr-; conclusively either one of two things that Mwtrie or other traction that would add an additional pfee street was not before the mind of the legislature not intended to give the right to use such traction. wt this right cannot be successfully claimed under fPer. The right if it exists at all must be based on Wet of general knowledge that electricity is a power TOi force and that its use, especially on the public pkdnot be permitted unless guarded by proper and 'ni- Hiis purpose was plainly demonstrated u6 in tlle Act of 1895, amending the Act of 1884, ' Company permission to use electricity as a Pnd the Act of 1S9S, granting the franchise to tne Tramways Company did not consider erignt under the Ant isa tVot iftftfi to f motivf power or at least that it felt great " 511 J6"' h donht in -foot tnnt t nnnliod to iU year 1800 to L n' e say that the company applied to the U lU additional jxrant, for under the rule an- r'wut iourt U. S. 4rlJ, supra; inis Plumed to have been passed at the solicitation ' pany are claiming no rights under this Act of P'4ft rvf ICft- ndatory tliereof, and we only refer ection for tho nr, r v,ot tKo I ''tne. at least, entertained a doubt concerning se rA 3 ' r;"'1 ln this proceeding and for the "wing a legislative interpretation against . lained hv tu L trj . 6 conaderation of tn loot nnpation in the 15 the TT fa ttenolulu Rapid Transit & Land Com- iraek on King street for more than 1700 Kt aQ(i b fact does imply that said com- pany has the right to lay a track on King street for a distance of seventeen hundred feet and the point in controversy is con cerning the existence of the right to lay a track for a greater distance. It will be recalled that in Section 1 of the Act of 18S4, the Tramways Company was granted the right to lay a single or a double track railway on and along the streets enumerated therein and, that said streets constitute the principal thorough fares of the city of Honolulu. In Section 3 of said Act it is provided as follows: "The legislature of the Hawaiian Kingdom or the Minister of the Interior when authorized! thereto by the legislature, may grant to one other corporation and no more the right to use either of the aforesaid streets for a distance of seventeen hundred feet and no more, upon the following conditions: that each company, person or corporation using the said track jointly shall pay an equal portion for the construction and maintenance of the portion of this track so used jointly." Section 6 of the Act granting a franchise to the assignors of the Rapid Transit Company provides: "1st. Authority is hereby conferred upon the said associa tion and others to occupy the streets and use the tracks of the Hawaiian Tramways Company in accordance with the provisions of Section 3 of Chapter 34 of the Laws of 1884, entited 'An Act granting to William R. Austin and his associates,' etc. provided that the said association and others shall comply with the provisions and requirements of this section." 2d. Provides for the manner of making crossings over the tracks of the Tramways Company when necessary. "3d. In the use of any portion of the tracks of the Hawaiian Tramways Company, the cars of the Hawaiian Tramways Com pany or of the said association and others shall not remain stand ing on the portion used jointly, but shall make only such stops as are required to take on and let off passengers." It is conceded that the Rapid Transit Company is the "one other corporation" privileged as provided in Section 3 above quoted and is entitled to all rights reserved by said section as modified or enlarged by Section 6 of the Act of 1898. The claim is urged by the Tramways Company that by said Section 3 it was granted the exclusive right for the term of its franchise to the use of the streets enumerated in Section 1 of the Act of 1884, excepting only the right of the legislature to give one other corporation the right to use any one of said streets for a distance of 1700 feet and no more; that by this grant the exclusive right subject only to the above exception became vested when said streets and each of them were occupied by its railway and that this grant when accepted by the Tramways Company became a contract between the government and the company, the obligations of which are now inviolable by the courts as well as by the legislature. The authorities do not agree on the question of the power of legislatures to grant exclusive rights and privileges to private corporations even for a limited number of years. "There is some conflict in the decided cases," says Elliott, "upon the question of the power of the legislature to grant an exclusive right to a street railway company to occupy and use a highway. The weight of 'authority is that the legislature cannot create a monopoly by granting an exclusive privilege, and this we regard as the sound doctrine." Roads & Streets, p. 566 and cases cited in Note 1. However much doubt there may be on the question where the terms of the grant are plain and show a clear intent on the part of the legislature to grant an exclusive franchise, no doubt or uncertainty can arise where the terms of the grant are am biguous and uncertain. In such cases every presumption is against an exclusive grant. Under the rule of strict construction every ambiguity is construed against the grantee and in favor of the public. Section 3 is clearly ambiguous. The object and purpose of the legislature in its enactment are not apparent on first or even second reading. If it had been the purpose of the legislature to grant an exclusive right to the Tramways Com pany we would naturally look to the first section of the Act, the granting clause of the charter for an expression of such purpose. "We look in vain to that section for any word or phrase indicating an intent to make the grant exclusive. "We are forced to the conclusion that it was not the purpose or intention of the legis lature to give the Tramways Company an exclusive privilege to use the streets named for street railway purposes. It seems that the more reasonable construction is to hold that Section 3 was a limitation on the grant made in Section 1. That in it a right was reserved in the franchise granted or a condition was prescribed on which the grant was made. The right was reserved to the legislature, not to grant to another corporation the right to use the same streets with a separate line of railway, it already had that right and had not parted with it but to grant to one other corporation the right to use either of the "aforesaid streets," i. e., the streets enumerated in Section 1 for a distance of 1700 feet only and in the same manner in which (the Tramways Company was using the aforesaid streets, by having its cars drawn over the tracks of the Tramways Company on condition that it pay an equal proportion of the cost of con struction and maintenance of the portion of the track "so used jointly." If this construction gives expression to the real inten tion of the legislature in enacting Section 3, it may be defended on the ground that it was at that time and is now a matter of common knowledge that some of the streets enumerated in Sec tion 1 were so narrow that two tracks of railway laid parallel on them would occupy the entire street to the great annoyance and inconvenience of the public. As an illustration of this class of legislation we cite Massachusetts statutes of 1864, C. 229, per mitting one street railway to use the track of another and the construction of this statute in Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen 262. "We are not called upon at this time and do not pass on the question whether the condition or reserved right in Section 3 is capable of enforcement, on account of the failure to prescribe any method for determining the amount of the "equal portion for the construction and maintenance of the portion of the track -so used jointly," or the manner and time of payment, It could in no event be held that the property of the Tramways Company could be appropriated by the Rapid Transit Company without making jus't compensation therefor. The right of the Rapid Transit Company to build its line on King street between Xuuanu Stream and Thomas Square is claimed under paragraph 11 of Section 2 of the Act of 1898, granting the franchise to its assignors, which reads as follows: "Whenever the majority of the owners of property on any street or road in said Honolulu shall, in writing, petition said association and others to lay a railway in such street or road, and the Executive Council shall consent thereto, such railway may be laid thereon, and thereafter may be maintained and operated for the unexpired term of the franchise." It is admitted that a majority of the property owners along said proposed route have petitioned the Rapid Transit Company, in writing, asking it to lay a railway along said street, and that the Executive Council has consented thereto. The parties to this case have taken advantage of the provision of the statute authorizing the submission to the Supreme Court of any question of difference between persons that might become the subject of a civil action. This statute affords an expeditious method of settling litigation. By it, however, the parties pre scribe the limits of judicial inquiry by the agreed statement of facts. The court is not bound nor expected to go beyond ths questions raised by the parties. It is scarcely necessary to state that the public or any person not a party to the submission whose interests may be affected adversely are not precluded by the decision. It is not binding except on the parties who have had their day in court in regard to the questions decided. The opinion in this case is based on the construction of the several statutes hereinbefore quoted. The court is not called upon nor does it express an opinion on the question of the valid ity of Act 69 of the Session Laws of 1898, nor on the effect o the passage of the Joint Resolution of Annexation, or the enact ment of the Organic Act thereon. The agreed facts state that the "said Honolulu Rapid Transit and Land Company it the lawful holder of a franchise," etc. For the purposes of this submission and as between -he parties hereto, we assume thia statement to be true, and also that the Rapid Transit and Land Company had the power to acquire the right claimed in the manner provided in the statute and set forth in the agreed facts. It follows that the judgment of the court is, that questioa number one should be answered in the negative and that number two should be answered in the negative with the qualification ex pressed in the opinion, and that question number 'three should be answered in the affirmative; anel that this judgment is give without prejudice to any right the public may have in said street adverse to the parties to the submission or either of them. And it is so ordered. Kinney, Ballou & McClanahan for Rapid Transit Company. Holmes & Stanley and P. Neumann for Hawaiian Tramways Company. SCIENTIFIC MISCELLANY I fiercest gales of the plains are with i stood, and the paper houses hare eren ! remained tight and dry when wooden ! houses have let in water. The secret j of success with these unique structures ' rests in the correct treatment of the j paper, which can only be achieved with i care in summer. Electro-chemical printing has been so far developed that William Friese Greene, of London, claims to have printed 25,000 pamphlets an hour on an ordinary press without the use of inks. In this inventor's process, any paper or textile fabric is impregnated or In corporated with a photographic devel oper like amidol or hydroquinon, and the passage of an electric current gives an instantaneous reproduction in black of any conducting surface in contact with the prepared paper or fabric. It is held to be essential that the Impreg nating material be an oxygen deriva tive of benzine that will reduce a ha loid salt of silver. In ordinary print ing, the type or plate is connected with the negative pole of a direct current source of electricity, and the prepared paper fed upon it passes in front of slightly moistened cloth or blotting pa per, behind which is the conducting surface connected with the positive pole. A direct current of four amperes at a voltage of 100 has been found sufficient. Light radiation, as a rule, increases with the temperature. An attempt to improve the electric arc has been made by Ewald Rasch, of Potsdam, by pro ducing it between the most refractory oxides of the earth metals magnesium, thorium, zirconium, etc. and he has obtained a brilliant sun-white light with about half the expenditure of en ergy per candle-power of the ordinary arc light. A difficulty as in the Nernst incandescent lamp is that the electrodes must be heated before they become conducting. That nations have their diseases seasons of fever, anemia and other de rangement has been already recogniz ed, and a striking instance is now be ing studied by Dr. J. Matignon. This learned French physician regards the uprising of the Boxers in China as a remarkable massing of hysterical pa tients. An investigation just Tegun at the time of the troubles in Peking has given him an impression that nervous disease is exceedingly common among the Chinese, notwithstanding their ap parent calm, and he finds reason for believing that suggestion and hysteria have been leading factors in giving control to the unprincipled leaders of the Boxer movement. The more simple-minded the people the greater has been the effect of the mystical doc trines taught. Experiments have proven that in the ordinary modeling clay used by school children the bacillus of typhoid may survive thirty-two days; that of diph theria, eighteen days, or more; and that of tuberculosis, at least eighteen days. The only effective means of ster ilizing the clay was found to be the use of superheated steam under a pressure of fifteen to twenty pounds for forty five minutes. At Prussian blast furnaces a mixture of one part of granulated slag with eight parts of slag cement is being compressed into bricks weighing 7 pounds, which can be cut into any desired shape when newly made, and are suitable for building purposes after two or three months of hardening in the air. For the ship railway planned by Jas. B. Eads nearly twenty years ago, it was proposed to have a wheeled cradle in which vessels should be shored up for transportation across the Isthmus of Panama. The new plan of A. B. Anderson, a Brooklyn engineer, sub stitutes an immense wheeled tank In which vessels could be hauled overland while resting in water. Try honey instead of secret nos trums, is the advice of Sir J. Sawyer. This is not only a nutricious food, but an efficient soothing and softening agent and evacuent. Viscin is proposed by Professor Reihl of Leipsic as an adhesive agent for medicinal purposes. This material, consisting of several little-known sub stances, is yielded in considerable ! quantity by the berries and the bark of the white mistletoe, and its cost is about a tenth of that of rubber. Solu tions in benzine produce no irritation ! when applied to the skin in medicinal mixtures. The first of a number of paper build ings erected by Prof. A. W. Bickerton near Christchurch, New Zealand, has been standing five years, and the builder believes it will last half a cen tury, or as long as the best wooden houses. The cost is less than one-fifth of that of the cheapest wooden build ings. A wooden lattice framework is first erected, and on this are stretched long rolls of thick brown paper, which is first tarred on both sides, and after ward sprinkled with sand. For the wallB the paper is simply nailed to the framework, wire netting being neces sary to suDDort the paper of the roof. The outside is tarred and sanded and the interior is painted in some light shade. An air space of four inches be tween the hardened inner ana outer walls ensures remarkable warmth. The A curious clue to the food of prehis toric man of forty or fifty centuries ' ago was lately found by Mr. Charters , White. M. R. C. 8. Scraping the thick I coating of tartar from the teeth of an old skull, he made a rough analysis, I thus bringing to light fragments or ; corn, fish, fruit and wool, besides some i sandy particles, and some unidentified I round red bodies. A tour over Canada in quest of snow waves has been made by a British ' physicist, who has succeeded in photo graphing and measuring good examples on frozen rivers and lakes and on the i open prairie. Train of as many as . 100 successive ridges sometimes occur, and their movement is sufficiently rap j id to be visible. True ripples, similar 1 to and ripples, are formed also under ! certain conditions. The steeper face of both ripples and waves is on the lee I side, but in moist snow the wind forms ridges whose steeper side is the windward.