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THE PACIFIC COMMERCIAL ADVERTISER, HONOLULU. JANUARY 10, 1907.
6 M'CANDLESS LANAI BRIEF (Continued from Page Five.) definite specifications. If there has been a violation or evasion of the law requiring the awarding of the contract to the lowest bidder, after a public Advertisement for tenders damage is presumed to result to all taxpayers. The object of the suit Is to prevent the violation of the law. The conse quences which may result in case the law is disregarded are so obvious that no proof of actual pecuniary damage is necessary. In Crampton vs. Zabrls kie the court on page 609 says From the nature of the powers exer cised by municipal corporations the great danger of their abuse, and the necessity of prompt action to prevent Irremediable Injuries, it would seem eminently proper for courts of equity to interfere upon the application ot the taxpayers of a county to prevent the consummation of a wrong, when the officers of the corporation assume. In excess of their powers, to create burdens upon property holders. Cer tainly In the absence of legislation re stricting the right to Interfere in such cases to public officers of the state or county, there would seem to be no sub stantial reason why a bill by or on behalf of Individual taxpayers should not be entertained to prevent the mis use of corporate power. The plaintiff comes within the rule, and no further showing as to damages Is necessary under the facts In this case. Lucas vs. Amer.. etc- Co. 16 Haw. 86-87. In the late case of Castle vs. Secre tary, where an injunction was sought against holding an election under, the County Act on the ground that the statute was unconstitutional the court said: The defendant denying that the Act Is Invalid for any of the reasons named In the submission claims that even If the Act were invalid equity has no Jurisdiction to grant an Injunction against him at the suit of a taxpayer or of a bondholder whose bonds are not shown to be In danger of being defaulted. "That the remedy sought by the plain tiff Is available to him in his capacity as a citizen and taxpayer appears to be within the rule in Castle et al. vs. Kapena. 5 Haw. 27 (1S83)" The. court then cites with approval the cases of Crampton vs. Zabriskie 101 U. S. and quotes Mr. Justice Field's opinion, and cites also the case of Larson vs. Olin, 160 Mass. 102. The court then pro ceeds as follows: "State decisions cited for and against the exercise of jurisdiction such as Is claimed by the plaintiff are interesting and of value to the student of law, but as above stated, the question has been decided by this court in favor of the exercise. "The U. S. Circuit Court of Appeals for the Ninth Circuit has held that an early decision of this court modifying a rule of the common law, to the ex tent of giving to legal representatives of a decedent a right of action for fatal Injury had the approval of the Or ganic Act in its provisions for contin uance in force of laws of Hawaii. Schooner Robert Lewers 114, Fed. Rep, 849. The Kapena case was expressly af- nrmea m .uucas vs. Am., etc, Co. p 86, in which the court used the follow ing language: "The right of a taxpayer to brtnj suit to restrain a public officer from doing an Illegal act has been settled In this Jurisdiction since the case cf Castle et aL vs. Kapena. S Haw. 27, C1S83). We see no occasion to depart from this rule, the argument that a taxpayer may not represent the wishes of the majority and that a question f public Interest ought not to be ad judicated at his sole instance, with no opportunity for expression of opposing views, does not In our opinion, affect his right to an adjudication. Any per son citizen or not, accused of an of fense may raise the question of the constitutionality of the law under which he Is tried, and no one but him self and the prosecution is entitled to be hard upon it. Adjudicating the con stitutionality of the act in advance ot county organization avoids unneces sary expense and complication if the decision is adverse to the Act, and, if ax Its favor, furnishes desirable as su ranee of legal protection to those who shall be elected to county offices besides having burdensome and expen save litigation in respect of matters so adjudicated. "while equity has not jurisdiction to determine political rights but is confined to questions affecting rights of property it appears to us that the case presented by the plaintiff Is his capa city as a taxpayer comes within equit able Jurisdiction for protection of prop perty rights against acts of executive officers under unconstitutional stat utes." , Castle vs. Secretary. 16 Haw. 776-7. In the case of Lucas vs. Amer Haw, etc., Co. 16 Haw. 80, the court expressly said that: "It Is not necessary that the plain tiff should show actual damage to bimself and all others similarly situ ated, as is contended by the Assistant Attorney General. The cause of action is the alleged improper awarding of a contract- Again they say: "The object of the suit Is to prevent the violation of the law. The consequences which may re sult in case the law is disregarded are so obvious that no proof of actual pe cuniary damage is necessary. Now in the case Just cited Lucas brought the action for an Injunction solely on the ground of the Illegality of the contract. He was not a party directly Interested excepting as a tax payer. As the court said, the object f the suit Is to prevent the violation of the law.- That Is the object of this action by McCandless. In the Lucas case the Attorney General contended as he contends here "that the plaintiff has no right as a taxpayer to maintain this suit." What was the answer there? We quote it verbatim et literatim. "The right of a taxpayer to bring suit to restrain a public of ficer from doing an illegal act has been settled In this jurisdiction since the case of Castle et al. vs. Kapena. 5 Haw. 87 (1SS3)." That covers exactly and entirely the case at bar. Here Mr. McCandless seeks "to restrain a public officer from doing an illegal act." and as a taxpayer he has the right to do so. It seems stranee indeed that th Attorney General will not bow to the Supreme Court when he has been rapped over the knuckles so hard be fore. In the Lucas case the court pro ceeded to say "it Is not necessary that the plaintiff should show actual dam age to himself and to all others slmi larly situated as is contended by the Assistant Attorney General. The cause of action Is the- alleged improper awarding of a contract, etc." Here it appears that the Attorney General's office made the same claim In the Lu cas case as they make here. But the Supreme Court said It was not neces sary that the plaintiff should show damage to himself and others, and they lay down the broad doctrine, "If there has been a violation or evasion of the law" that "damage Is presumed to result to all taxpayers." They say "the object of the suit is to prevent a violation of the law" and "no proof of actual pecuniary damage is neces sary." If this was so in the Lucas case it is so here. The "object of this suit Is to prevent a violation of the law1 and "no damage need be alleged as damage is presumed to result to all taxpayers." How on earth the Attor ney General can put forward the con tention he has In the teeth of this de cision it is hard to understood unless It be that he thought that neither counsel for the complainant nor the court knew of these decisions or that they would fail to discover them. Unless he ask this court to overrule these cases and refuse to follow them he must abandon the contention made by him on this point. Lucas brought his suit for in Junction on the ground that the con tract was improperly awarded and was therefore illegal. The respondents were the lowest bidders for work, and no pecuniary damage was claimed to re sult to Lucas or to the taxpayers. The Territory would have received its quid pro quo for the money to be expended. There was no contention that they would not get "five dollars pieces for five dollars pieces." They would have received for their money its equivalent in. work labor and. materials. The case was not any different from the cue at bar, excepting that in the latter it is known what the Territory will lose In rent or rental and it is not known what they will receive in exchange therefor. The .case at bar is much stronger than the Lucas case for here there is not merely a presumption of loss, but actual . knowledge that over $15,000.00 In revenue will be lost, with out even a presumption that it will be made up In the exchange. ' In the face of such a declaration of law as . that contained in the Lucas case how can this court view with complacency the statement of the At torney General that "the courts unl formly hold that injunction will not He at the instance of a taxpayer to re strain the actions of public officials no matter how wrongful, fraudulent or U legal such actions may be because the damage, if any, which is suffered by a taxpayer, under such circumstances is precisely the same damage as that suffered by every other resident with in the Jurisdiction?" (Brief p. 6). How can the Attorney General have the nerve to cite cases holding that "a private individual can not maintain a . bill to enjoin a breach ot public trust without showing that he would be specially injured thereby; when no injury result to the Individual tne public only 1 can complain. Hence in a declaration or bill the party com' plaining must allege and prove some special damage different in kind anl degree from that suffered by the gen era! public?" Yet we find these words in his brief (p 6) and some Illinois cases cited to uphold it. But of what use are such cases when our Supreme Court has held directly a number of times that "the right of a taxpayer to bring suit to restrain a public officer from doing an illegal act has been set tled In this jurisdiction" since 1883, and that "Itis not necessary that the plain tiff should show actual damage." In the last case decided by the Supreme Court on this point W. R. Castle as a taxpayer and bondholder sought to enjoin the holding of an election under the County Act on the ground that the Act was unconstitutional. The same contention was again made as had been made before, the Attor ney General again contending that the complainant had shown no damage or danger of damage. The Supreme Court certainly at last lost patience with the Attorney General for after saying that the remedy was available to plaintiff in his capacity as a citizen and tax payer, they said that: State decisions cited for and against the exercise of jurisdiction such as Is claimed by plaintiff are interesting and of value to the student of the law" but the question is settled here.' And again they state that: "The right of a taxpayer to bring suit to restrain a public officer from doing an illegal act has been settled In this jurisdiction" since 1883, "we see no reason to depart from this rule." The court held that the question of the unconstitutionality of the act was enough to authorize the action, and utterly repudiated the contention that it was necessary to show damage or danger of loss. The "doing of an ille gal act" by an officer was a sufficient wrong to authorize a taxpayer to main tain an Injunction. It does seem to us that when a ques tion of law has become so well settled by judicial determination as to call for the remark by the court that a dis cussion upon that question and a clta tion of cases is only "Interesting and of value to the student of law It be comes presumption personified for the officer of the Government to whom those remarks were addressed to claim the contrary rule to be the law. NO POWER TO SELL OR EX CHANGE PUBLIC LAND UNDER LEASE. The bill In equity herein alleges that the "Public Lands on the Island of La- nai" which are sought to be exchanged are "now leased to Charles Gay by the Territory of Hawaii," the lease on 1(.S69 acres contained in lands called Kamoku" and "Paomal" not expiring until January 1, 1916, and being rented for 8300 per annum. The lease on "Maporfa." containing an area of 7900 acres, carries a rental of 8100 per year, and expires November 1. 1907. The lease on "Kalula," containing an area of 6000 acres, carries a rental for 5000 acres of $600 a year, and does not expire until June 2 1925. The lease on "Kafnolu" contains an area of 7400 acres, and carries a rental of 250 per year, expiring February 9, 1907. The lease on "Kealia-Paawili," con taining, an area of 6300 acres, and "Ka mao," containing an area of 2700 acres. carries an annual rental of $150. and expires June 23, 1908. It will be seen, therefore, that out of the 47,669 acres of land on Lanai which tne Government seek to get rid of, Mr. Charles Gay holds existing Government leases on 46,669 acres, or all but 1000 acres of the entire public lands. This land being under lease, the Gov ernment has no power to dispose of it in any manner. They are forbidden to rpII it. for bv the very terms of the law they can only sell "public lands not under lease," in parcels of not over 1000 acres, at public auction. If the tract of land consisted of 999 acres, and was under lease, no sale could be made of it. for there is no authority for such a sale. The authority for making lease of public lands is found in Section 278 of the Revised Laws. This requires tne lease to be sold at public auction. "Subject to the provisions of Section 73 of the Organic Act, the Commission er may at his discretion make general leases of public lands for any number of years, not to exceed twenty-one, at Dublic auction, but no such lease shall contain a privilege of renewal nor be made for anv land already under a lease which has more than two years to run. In no case shall it be lawful to collect rents on any such (lease for more than one year in advance or to receive anything in the nature of a bonus for executing the same," etc. Revised Laws, Sec. 278. Now, the law points out specifically what may be done with such leased land as follows: "Subsequent Disposition of Land. Previous to the last two years of the term of any general lease the Commis sioner shall, with the approval of the Governor, decide in regard to the prem Ises covered by s-jch lease, whether the same shall be demised under a new lease or reserved to the Government for other disposition thereof under this chapter or for forest improvements, or for the development of water supply, or other public uses or otherwise, or whether a part should be so reserved and a part demised under a new lease. and shall promptly notify the lessee of such lease of the nature of such deci sion." Revised Laws, Sec. 279. It will be seen from the foregoing sections that the Government must make all leases at public auction, and that after a lease Is made the Govern ment can not collect rent for more than one year in advance, neither can it ex ecute a new lease of such land while the lease has more than two years to run. It will be seen, therefore, that not only is the Government precluded from selling land "under lease," but they can not even lease it while there is an existing lease having more than two years to run. The court In Interpreting the provisions of the statute must look for the reason of Its enactment and bear in mind the vice to be remedied. and in so doing the court will find that the same reason which has prompted a denial of the right of the Government trt Kn or ipasp nubile land under an existing lease applies with eqsftl force to an exchange. Why, then, did the Legislature restrict the sale of Govern ment land which must be made at auc tion to only such Government land as was "not under lease"? Those are the very words of the statute. .The Com missioner may "sell public lands not under lease in parcels of not over one thousand acres for cash," and he may sell public lands not under lease in parcels of not over six hundred acres at public auction upon part credit and part cash." Revised Laws, Sec. 276. In both cases he is restricted to a sale of lands "not under lease." And this for the reason, among others, that I where land has already been leased at public auction it occupies a different position and is in a different class from land not under lease. It would be erosslv unfair and unjust to sell at auction land under lease, for the Gov ernment would be at the mercy of the lease. Suppose the public lands on La nai were put up at auction for sale, who would bid upon lands which were and are leased to Charles Gay until the year 1925, and other lands leased to the same man until the year 1916? One of the leases of Mr. Gay was made in the vear 1873. and covered "sow acres. lor which the annual rental is but $150 Another lease was given Mr. Gay In 1S80 of 7400 acres, and the rental is $250 a year, jno stronger example or tne reason for restricting sales of land to land not under lease could be shown than the present one. Here are 46,669 acres or lana mi unaer lease to one man, Charles Gay, leases expiring i 1916, 1925, and so on down. Suppose the Government wanted to sell these lands and had the power so to do. Who could bid upon these lands other than Chas. Gay? He has the leases and the right to the continued possession of these lands so long as the Government lease is in existence, and no one could make any immediate use of such lands with out the consent of Mr. Gay. Certainly it must be conceded . that the land would not bring as high' a price with a lease upon it for a long period at a low rental as It would If It were unmeum bered. Again, it would deprive the cit lzens of an equal advantage In bidding for the property. The vast areas of Government land could virtually be sacrificed If the law authorized or countenanced the sale of land under lease. But the law does not authorize the sale of land under lease, and an ex change Is upon a similar footing, we submit. If land under lease can not be sold for cash, nor sold for part cash and part credit, nor even leased, where two years leases are unexpired, then for the same reason it can not be sold or exchanged for other land. It can not be successfully contended that the Legislature Intended to prohibit the sale of leased land for cash, and yet would authorize It to be exchanged. If it could be exchanged for other land why should It not be sold for cash? There can be no reason which could be attributed to the Legislature for al lowing one thing and not the other. Counsel for the Territory have not touched upon the fact that the lands sought to be disposed of by the Gov ernment are now under lease, but bases the right of the Government in this ease upon Sections 252, 253 and 254 of the Revised Laws. He says: The contemplated acts of the Com missioner of Public Lands as alleged in the bill are not to be done under the provisions of Section 276. but under the provisions of Section 254." And he further says that: The fact that there Is this distinc tion between Section 254 and the proviso of Section 276 is vert- siETiIficant. As stated, land patents may be issued in exchange for deeds of private lands, under this proviso, whether such ex changed lands are used for public pur poses or not. Under the provisions of Section 254, however, which ; contains absolutely no limitation in the matter of area it would seem that it was the intention of the Legislature to permit exchanges of the -Government lands irrespective of the area," etc. He cites Section 252 of the Revised Laws, which authorizes the Land Com missioner to sell, lease or otherwise dispose of public lands, and says: "'Under this broad and general power there is no question but that the Land Commissioner could dispose of such lands in any area and in any manner he might deem fit for the general wel fare of the Territory." Brief, p. 16. He admits, however, that "Another limitation .upon the general powers contained in I Section 252 is found in Section, 276, which provides that the Commissioner may, with the consent of the Governor, sell public lands not under lease In parcels of not over 1000 acres, at public auction for cash." Brief, p. 14. In the mad desire to find authority for the transfer of over half the Island of Lanai he bases the right of the Government solely upon Section 254 which, he says, "contains absolutely no limitation in the matter of area," and from which it "would seem that it was the Intention of the Legislature to permit exchanges of the Government lands irrespective of the area," etc. Conceding that counsel Is right, and that it was not the intention to limit the area of land which might be ex changed at the time this act was pass ed, any more than It was intended to limit the area of land which was sold, that was an Intention expressed 30 years ago, and that intention was dia metrically changed by the Land Act of 1895. Whether coursel has attempted to befog the issue and mislead the court, or has erred because of want of knowledge, we do not attempt to say. but when he cites Sections 252, 253 and 2o4 of the Revised Laws and would have the court decide this case upon those sections without a single refer ence to Section 344 of the Revised Laws, we are forced to the conclusion that no reliance can be placed upon his conten tions. Section 344 of the Revised Laws reads as follows: "Section 344. Other sections subject to this chapter Sections 250-254, and Chapter 87 of the Laws or 1892 are sub ject to the provisions of this chapter. Section 253 of the Revised Laws gave the Land Commissioner with the au thority of the Governor "power to lease sell or otherwise dispose of the public lands, ' subject to such restrictions as may, from time to time, be express ly provided by law. This was the Civil Code of 1859. In 1876 the legislature limited this power by providing that "except as otherwise provided all transfers of government lands shall be made at public auction. etc. Revised Laws Section 253. The same legislature then provided that the provisions of Section 253" as to public auction "shall not extend or apply" to cases of exchange or sales of government lands In return for parcels of lands acquired for roads, sites of government buildings, or other gov ernment purposes." Revised Laws Section 254. At the foot of Section 254 appears the following: "Am. (by implication) L. 1895, C. 16, s. 86." This is now Section 344, Revised Laws. In 1895, an entirely new Act called the "Land Act 1895" was passed. This Is now Chapter 22 of the Revised Laws. By the terms of this Act the power of sale of public lands was limited to lands not under lease and in pa -eels of not more than 1000 acres, at public auction for cash, and with the follow ing proviso: "Provided, however, that land pat ents ' may be Issued in exchange for deeds of private lands or by way of compromise upon the recommendation of the commissioner and with the ap proval of the governor without an auc tion sale," etc. Section 278 provides for leases of pub lie lands for not exceeding 21 years at auction, and the section which is Sec tion 344 expressly provides that "Sec tions 250-254, 490 'and chapter 87 of the Laws of 1892 are subject to the provi sions of this chapter. It is clear therefore that if Section 276 is a limitation upon the general powers contained in Section 252, and limits the sale of public land to parcels of 1000 acres each, as Is admitted by the Attorney General (Brief p. 14) it also limits the sale to public lands "not under lease." It must necessarily follow that the proviso to Section 276 is limited also to lands not only less, than 1000 acres in extent but also to such lands not under lease. The subject of Section 276 is "public lands." These "public lands" are "public lands not under lease." The proviso must refer to the same thing. It says "provided however, that land patents may be is sued Iti exchange for deeds of private lands without an auction sale." The proviso then merely takes away the necessity of an auction sale. It; states that land patents may be is sued," etc. Land patents to what? The proviso does not state that land patents to over 1000 acres may be is sued without public auction. It does not state that land patents to public lands under lease may be issued. What then does it refer to when it speaks of land patents? To the subject of the section and nothing else- It must then refer to land patents to "public lands' these must be "public lands not under lease;" and they must be "In parcels of not over one thousand acres. The object of the proviso however, is to eliminate the requirement of "public auction," for it provides that such land patents may be issued "without an auction sale." The court has no right to read Into the proviso matter not found in the subject of the section. The only legal construction which can be given to Section 276 is that there may be a sale of "public lands not un der lease, in parcels of not over one thousand acres, at public auction for cash. provided, however, that land patents may be issued (for public lands not under lease In parcels of not over one thousand acres) in exchange for deeds of private lands without pub lic auction." It will be seen that the proviso of Section 276 entirely covers the whole subject matter of Section 254. They both merely do away with an auction sale. Prior to the nassacre of Sortinn 6 an exchange might have been made under Sections 252 and 254 without an auction of an unlimited area of land. Lnder Section 276 the area is limited to 1000 acres of public land not under lease. ; By the express language of Section 344, Sections 250-254 are sub ject to the provisions of Chapter 22, Revised Laws, and therefore to Section 276 thereof. If then Section 276 limits the issuance of land patents in ex change for deeds of private lands to "public lands not under lease in par cels of not over one thousand acres and Section 254 is subject to Section 276 then the limitation of "public lands not under lease in parcels of not over one thousand acres" applies to Section 254 as well. In, this the law is clear. Counsel expressly admitting that Sec tion 276 is a limitation upon Section 252, must also admit that the proviso is a limitation upon Section 254. He in no word in his brief contends that the proviso to Section 276 is not also limited to the subject of Section 276, and does not claim that the proviso refers to an unlimited area. "The natural and appropriate office of the proviso being to restrain, qualify some preceding matter, it should be confined to what precedes it unless it clearly appears to have been intended to apply to some other matters." Lewis Sutherlands Statutory Con struction 2nd ed. Sec. 352. Citing Pearce v. Bank 33 Alo. 693. Bank v. Collector, 3 Wall, 495. Savings Bank v. United States, 19 Wall, 227. Sutton v. People, 145 111. 279, 34 N. E. 420. Commonwealth v. Kelly, 77 Mass. 221, 58 N. E. 691, School District v. Coleman, 39 Neb, 391, 55, N. W. 1068. ..Leader Printing: Co. v. Nichols, 6 Okl. 302, 50 Pac 100L Bull v. Kirk 37 S. C. 395, 16 S. E. 151 "The proper function of a proviso being to limit the language of the leg islature, it will not be deemed intended from doubtful words to enlarge or ex tend the act or the provision on which it is engrafted. Where it follows and restricts an enacting clause general in its scope and language, it Is to be strictly construed and limited to ob jects fairly within its terms. Idem, p. 674, citing: Re Webb. 24 How. JPr. 247. Bragg v. Clark, 50 Ala. 363. Epps v. Epps, 17 111. App. 196. Roberts v. Yarbaro, 41 Tex. 449. Willingham v. Smith, 48 Ga. 680. " Blood v. Fairbanks 50 Cal. 420. Butts v. R. R. Co., 63 Miss. 462. . McRoe v. Holcomb, 46 Ark. 306. Looker v. Dairs, 47 Mo. 140. Mayor v. Magreder, 34 Md. 381. Southgate v. Goldthwaite, 1 Baiby, 367. :. Clarks Appeal, 58 . Con, 207, 20 At. Rep. 456. ... Covington v. Frank, 77 Miss. 606, 27 SO. 1000. U. S. v. Dickson. 15 Pet. 141. In the case last cited Mr. Justice Story delivered the opinion of the Su preme Court of the United States, say ing: "We are led to the general rule of law which has always prevailed and become consecrated almost as a max im in the interpretation of statutes. that where the enacting clause is gen era! in its language and objects, and a proviso is afterwards Introduced, that proviso is construed strictly and takes no case out of its enacting clause which does not fall fairly within its terms." - U. S. Dickson, 15 Pet. 141, 165; cited in 2 Lewis Sutherland Stat. Const, p. 675. In Illinois "the court said It would seem that the same policy which dic tates a liberal construction of the stat ute In furtherance of its general ben eficial purpose would necessitate a re stricted construction of an exception by which its operation is limited and abridged; but Independent of that con sideration the court held that provisos should be strictly construed." 2 Lewis Sutherland Stat. Const. 2nd Ed. p. 675: citing Epps. v. Epps. 17 111. App. 196. If then "the proviso Is to be confined to what precedes it" and "it will not be deemed Intended from doubtful words to enlarge or extend the act or provision on which it is engrafted and It Is to be strictly construed and limit ed to objects fairly within its terms, the court must find that the proviso in question here Is limited to the subject of the provision upon which it is en grafted here, that is to, "public lands not under lease in parcels of not over 1000 acres," and that it was not in tended 'to enlarge or extend" the pro vision upon which it was engrafted so as to cover "public lands under lease in parcels of over 40,000 acres." If it is to be "strictly construed and limited to obiects fairly within its terms," how can the court hold that it covers pub lie lands "under lease" and in areas of "over 1000 acres each?" These lands are not fairly or at all within Its terms, and we know this court will not legislate them there. And again, if "the same policy which dictates a liberal construction of the statute in furtherance of Its general beneficial purpose would necessitate a restricted construction of an exception by which its operation is limited and abridged" and the proviso "should be strictly construed," how can this court in construing the statute "in further ance of its general beneficial purpose" of restricting the sale of public land to "public land not under lease" and that "In parcels of not over 1000 acres," and requiring such sale to be "at public auction," arrive at any , other con clusion under "the same policy which dictates a liberal construction of the statute In furtherance of Its general beneficial purpose," than to say that the proviso refers to "public land not under lease in parcels of not over 1000 acres," and does away with only the requirement of a public auction in cases of exchange? If the "general beneficial purpose" of the statute Is to be considered In construing the proviso In question, then the court must of necessity limit the proviso to the sub ject and object of the statute. The "general beneficial purpose" of, the statute was to forbid the transfer of any land in parcels of over 1000 acres, and to require such parcels to be sold at auction. The same nnllrv should permeate and control the pro viso, and that policy is effectuated only by eliminating the requirements of a "public auction," in case of the exchange of land. Can it be said that a construc tion of the proviso allowing the ex change of over 47,000 acres of land, the greater half of one of the principal is lands of the Territory and every foot of public land on that Island." is In furtherance of the general beneficial purpose" of the statute restricting th3 sale of such public land to parcels of not over 1000 acres each? It would seem to us to be diametrically opposed to such "beneficial purpose" of the statute. Not only Is It against ths policy of the statute, but against the whole policy of the United States Gov ernment, as well as our own Consti tution, the Organic Act. The Organic Act forbids any corporation to "acqulrs and hold real estate in Hawaii In excess of one thousand acres," and provides for escheat of all real estate so held by a corporation In excess thereof (Sec. 65). It further provides that "No lease of agricultural land shall be granted or renewed by the Government of the Territory of Hawaii for a longer period than five years" (Sec. 73). Again, it is provided that wharves and land ings on any seacoast or harbor shall re main under the control of the Terri tory, which shall enjoy the revenue therefrom, "on condition that said property shall be kept in good condition for the use and convenience of Com merce," etc. (Sec. 89.) If this proviso is construed as con tended for by the Territory, every inch of jublic property on the Island of Lanai will be transferred to private Ownership and no wharves or landings would remain under the control of the Territory of Hawaii. The bill alleges that the land of "Ka moku," containing about 8000 acres of good grazing land, has about three miles of sea frontage and a "good har bor" (p. 6), and that the land of "Pao mai," which is good grazing land, has about 5 1-2 miles of sea frontage and a 'fair harbor or landing" (p. 6). Report of Governor of Hawaii for 1904, p. 64. This report of the Governor refers to the land of "Paomai" as "including one fair landing" (p. 64). Under what pol icy of the law can It be that every inch of public land on an Island can be sold, including a "landing" in a fair harbor, when the Organic Act allows the Territory to control the harbors and landings, "on condition that said prop erty shall be kept in good condition for the use and convenience of com merce," and that the Federal Govern ment shall not be charged for the use thereof? What becomes of the policy of the Organic Act requiring the land ings to "be kept In good condition for the use and convenience of commerce," when the Government of the Territory seeics 10 sea an us yuuuc mou, wuita includes the landings and wharves of Lanai? What will become of "com merce" if the Land Department is al lowed to sell an entire island to one man? That Congress provided ? that some consideration snouia oe snown for the use and convenience of com merce seems to trouoie tne lerruoriai authorities very little, for they not only seek to give up the means of ac cess to this island, but to transfer the whole thing to one man. If the policy, of American law is to allow one man to own a whole island, wharves, land ings and everything on the island, then are we not far removed from the days of barbarism, when the absolute own ership and control of all lands, was vested in the king. Listen, however, to the latest utter ance of President Roosevelt on the sub ject of public lands In the Territory of Hawaii. In his message to Congress of lceiner i, laOS, he uses the follow ing language: ROOSEVELT TO HAWAII. "The needs of Hawaii are peculiar; every aid should be given the Islands, and our efforts should be unceasing to develop them along the lines of a com- mun'ty of small freeholders, not of great planters with coolie-tllled es tates. Situated as this Territory Is, in the middle of the'Paciflc, there are du ties Imposed upon this small community which do not fall in like degree or manner upon any other American community. .This warrants our treat ing it differently from the way in which we treat Territories contiguous to or surrounded by sister Territories or States, and justifies the setting aside of. a 'portion of our revenues to be ex pended for educational and internal improvements therein. Hawaii is now making an effort to secure immigration fit in the end to assume the duties and burdens of full American citizenship. and whenever the leaders in the various industries of those islands finally adopt our ideals and heartily join our admin istration in endeavoring to develop a middle class of substantial citizens, a way will then be found to deal with the commercial and industrial prob lems which now appear to them to serious. The best Americanism is that which aims for stability and perma nency of prosperous citizenship, rather than immediate returns on large masses of capital." Is the transfer of the greater half of an entire island the developing of Ha waii "along the lines of community of small freeholds, not of great planters of coolie-tilled estates"? The Pres. dent's wish that "the leaders in the various Industries of these Islands fi nally adopt our ideals and heartily Join our administration in endeavoring to develop a middle class of substantial citizens" might well have remained locked in his breast if our officials are allowed to dispose of entire islands to one man. If the officials of this Territory only recognized the truth of Mr. Roosevelt's statement rhat "The best Americanism is that which alms for stability and permanency of prosperous citizens, rather than immediate returns on large , masses of capital," then there would be . a ray of hope that we might become "a community of small freeholders, not of great planters with coolie-tilled es tates," and there would be no need of Injunctions to prevent the turning over of an entire island to one man. The poison of feudal ideas blinded ail but a few far-seeing men,- foremost among the Tatter being Hawaii's first citizen, Sanford B. Dole; but now no one is blind but those who will not seej All that remains Is to segregate the public lands not needed for the su gar Industry, Lanai Included, and put them into the hands of cooperative ag ricultural colonies like that which set tied at Wahlawa and. in spite of the croakers, the feudalists and the honest doubters, is now a flourishing society of well-to-do agriculturists. When the policy thus outlined comes to pass, these Islands will enter the greatest era of their prosperity. The question now Is whether the Ter ritory shall make Lanai over into a paying proposition and get tax returns from it, or whether a single man, rep resenting tne reuaai idea of Hawaii s development, shall acquire the island and either benefit by restoring it him self or by selling it to some corporation. No wonder the Land Commissioner (Continued on page eight.)