The authority of the Government to purchase land for the use of highways, etc., is subject to the prior decision of a jury in favor of the propriety of the proposed improvement.
After such decision of a jury, the Minister of the Interior can settle with owners of land taken for street purposes without proceeding to ascertain the damages in the statutory method.
Department op the Judiciary,
Honolulu, March 14, 1889.
To His Excellency L. A. Thurston, Minister of the Interior.
Sir : The Justices of the Supreme Court have had the honor to receive your note of yesterday’s date, in which the Cabinet request the opinion of the Justices of the Supreme Court upon the following questions:
Section 184 of the Civil Code, as amended by Chapter XXXII. of the Laws of 1872, provides a method of deciding upon the propriety of opening, widening and altering streets. Section 185 as amended provides a method of ascertaining who the claimants for damages are and for filing their claims. Section 186, as amended, provides the method of ascertaining the damages, viz: by agreement between the Minister of the Interior and the owner, or if no agreement can be arrived at, by commission or jury.
Section 41 authorizes the Minister of the Interior, under conditions, to purchase * * * lands for the use of * * * highways, etc.
Query 1. Is the authority given in Section 41 subject to the prior consent of the jury provided for in Section 184?
Query 2. If the answer is in the affirmative, can the Minister, if he knows all the parties interested, and can agree on a settlement with them, make such settlement after the decision of the *782jury rendered under Section 184, or is it imperative that he should proceed under Section 185 before he can make an agreement?
A matter in point and now pending is as follows: The Government proposes to widen King Street near Palama, at a certain place. The owners are desirous of giving up their land and settling the damages without waiting for the forms to be gone through with mentioned in Sections 185 and 6, as their obtaining a tenant depends upon the immediate settlement of the widening.
If the Court are of the opinion that the Minister can proceed under Section 41 without regard to the other Sections, he can arrive at an immediate settlement, otherwise he will proceed under Sections 184-5-6.
We are of opinion in response to Query 1, that the authority to the Government to purchase land for the use of highways, etc., is subject to the prior decision of a jury in favor of the propriety of the proposed improvement, as set forth in Section 184 of the Civil Code, as amended.
In answer to Query 2, we are of opinion that the Minister of the Interior, in pursuance of the authority conferred by Section 41 of the Civil Code, can purchase land for the,use of highways,' after the favorable decision of a jury under Section 184, and settle with the owners of such land without proceeding under Sections 185 and 186 for the ascertainment and liquidation of the damages to the owners of the land taken.
Respectfully submitted.
A. F. Judd, L. McCully, Edward Preston, R. F. Bickerton, S. B. Dole.