*231CONCURRING OPINION OP
FRBAR, C.J.I concur in the foregoing conclusions and will briefly state my views upon the main question only.
If the power exists to make the proposed exchange it must be under the law as set forth in section 252 or in section 2Y6 of the Eevised Laws.
I do not think the power exists under section 252. That section no doubt conferred the power until the passage of the comprehensive act of 1895 (E. L., Chap. 22), which inaugurated! a new land policy and in its second section (E. L., Sec. 262),, divided the public land into two classes, one designed mainly for purposes of settlement, the other devoted mainly to public uses, and placed the first class under the minister of the interior. From the passage of that act until the passage of the Organic Act of the Territory the powers conferred by section 252 could be exercised by the minister of' the interior alone and with reference to lands of the second’ class alone. The Organic Act by section Y5 transferred the powers and duties of the minister with reference to lands of the second class, including the powei's and duties conferred by section' 252, to the superintendent of public works, and by section Y3 transferred the powers and duties of the commissioners of public lands as well as those of the minister of the interior as one of" the commissioners to the commissioner of public lands. Pratt v. Holloway, 17 Haw. 539. The commissioner, therefore, does not now have the powers conferred by section 252 unless congress intended by section Y3 of the Organic Act to give him additional powers not previously possessed by the commissioners or minister,, namely, powers with reference to lands of the first class, which the minister, now superintendent, had and has with reference-to lands of the second class under section 252. There evidently was no specific intention to do that. If it was done it was through the operation of the general provision of section Y3 that “commissioner of public lands” should be substituted for “minister of the interior,” but it is obvious that such substitution could not *232be made consistently with the provisions of section 75 in every instance in the laws relating to public lairds. Moreover, the powers of the commissioner of the kind now in question were .already covered by section 276 of the Revised Laws. Section .252 also is by its terms made subject to such restrictions as may from time to time be provided by law, and the act of 1895 in its title and in section 86 (R. L., Sec. 344), purports to control that •section (252). It- is true that the commissioner of public lands ..is included with the superintendent of public works in section 252 .as well as in several other sections of the same chapter. That •chapter is of a general nature and at least some of its provisions .apply- to the commissioner as well as the superintendent, and ■both officers were included in section 252 as well as several other sections as a matter of caution, leaving the proper construction do- the courts. And, 'although the Revised Laws were enacted to a certain extent by the legislature, it was beyond the power of the legislature, and it did not attempt (see L. 1905, Act 3, Sec. 2), to modify the laws relating to lands of the first class, although it has authority to modify those relating to lands of the second ■class. See Org. Act, Secs. 73, 75; also note to R. L., Cli. 20.
I think the power exists under section 276. That section provides that the commissioner with the consent of the governor may (1) sell public lands (2) not under lease (3) in parcels of not over 1000 acres (4) at public auction (5) for cash; also that he may with such consent (1) sell public lands (2) not under lease (3) in parcels of not over 600 acres (4) at public auction ■(5) for part credit and part cash upon conditions of residence or improvement; that upon payment of the consideration or performance of the conditions a land patent shall be issued to the purchaser; and concludes with the following provisos:
“Provided, however, that land patents may be issued in exchange for deeds of private lands or by way of compromise upon the recommendation of the commissioner and with the approval -of the governor without an auction sale, and further provided, that the governor may in his discretion upon such recommendation and approval, execute quitclaim deeds for perfecting the *233titles of private lands wliere sncli titles are purely equitable or where such lands are suffering under defective titles, or in cases of claims to use of lands upon legal or equitable grounds.”
Do these provisos confer, as they purport to, general powers of exchange, compromise, etc., as distinguished from the restricted powers of sale conferred in the body of the section, or do they merely provide that such powers may be exercised without (11 a sale (1) at auction (5) for cash, which must be the case from their A^ery nature, and must there be incorporated into them by implication the conditions that only lands (2) not under lease and (3) not over a specified area shall be subject to such poAvers?
Evidently the language of these provisos Avas suggested by or adajDted from that of sections 252 and 254, which previously permitted the minister of the interior to transfer by Avay of exchange public lands of both classes, Avhether under lease or not and irrespective of area, and Avhich, since the enactment of the act of 1895, AAdiich includes section 276, has conferred that pow er similarly unrestricted upon the minister, now the superintendent, as to lands of the second class. Apparently it was thought by the legislative body that the concurrence of the commissioners (uoav commissioner) and the executive council (now gwernor) under section 276 Avas a sufficient safeguard in cases of exchange of public lands of the first class just as the concurrence of the minister and executive council (now gwernor) formerly as to both classes and uoav the superintendent and governor as to the second class was and is deemed a sufficient safeguard under sections 252 and 254.
It is clear that the restrictions to lands not under lease and to parcels of not over the specified area cannot be implied in the second piwiso, for not only is there no express exclusion of the restriction as to a sale at auction for cash from Avhich the inclusion of the other restrictions might be implied, but the very liature of the poAvers conferred by that proviso, namely, to execute deeds for perfecting titles of private lands, excludes the idea of restrictions to lands not under lease or lands of not over a specified area; and if such restrictions cannot be implied in one *234proviso why should they be implied in the other, especially when it would have been easy and natural to have expressed them in that proviso if they had been intended.
If the words “without an auction sale” had been omitted from the first proviso, there could be no question but that the restriction as to leases and areas could not properly be implied in that proviso, and yet those words add nothing to that proviso, for in that, as well as in the second proviso, the very nature of the transactions authorized is such as to exclude an auction sale, thus necessarily making the words “without an auction sale” redundant and suggesting that they were inserted without much thought or as a matter of course or with the same object for which section 254 was inserted, namely, to make clear, what would be the case without those words or without that section, that in the cases mentioned in these provisos and in that section no auction sale was required. This construction does not fail to give effect — and, too, the natural effect — to those words; the other construction gives them an unwarranted effect. Under either construction those words are surplusage from the very nature of the case so far as their direct meaning is concerned. To say that they were inserted for the ulterior purpose of showing that the restrictions as to leases and areas were intended to apply, would be to attribute to the legislature the selection of an obscure indirect method in preference to a plain direct method of accomplishing that purpose; it would be to read into the proviso two clauses of vast importance which would greatly limit the powers expressed and which the legislature did not even allude to in the provisos — merely in order that some special object might be found for the insertion of the words “without an auction sale.” One construction does not expunge those words but allows them their natural effect; the other gives them an unnatural effect and makes them an excuse for adding other words to the provisos.
That- these provisos were intended as grants of additional general powers 'and not mere modifications of powers conferred in the body of the section, is further shown by the fact that *235they are powers of a different kind. The body of the section relates solely to sales and provides that sales shall be at public auction for cash or part credit and part cash and contains limitations as to the character and area of the lands that may be sold, while the provisos have nothing to do with sales, but, on the contrary, necessarily exclude, either expressly or by implication, all of the three requisites of a transfer under the body in the section,, namely, (1) a sale (4) at public auction, and (5) for cash. The limitations, (2) and (3), as to what may be transferred, which were not expressed in the provisos, should not be implied to restrict transfers of a kind different from those upon which those-limitations were expressly imposed in the body of the section. .
The nature of the powers conferred in the first as well as in the second proviso would seem to exclude such limitations; for the powers given in that proviso must be construed, in the absence of a manifested contrary intention, to be as large as the objects to be accomplished for which those powers were given. For instance, if a patent is to be issued by way of compromise the circumstances of the case might require a patent of lands under lease or of a parcel of over 1000 acres. Likewise,' if the private lands which may be desired are of much value it might be impossible to obtain them by way of exchange except by transferring a parcel of over 1000 acres or a parcel under lease. The object of the body of the section is to dispose of public lands, the payment of the consideration being incidental, while in the provisos the reverse is the case, the object being the acquisition of lands or the effecting of a compromise or perfecting of a title, — the issuance of a patent by way of exchange or otherwise being the incidental means of accomplishing the desired object.
The body of the act does not confer one power to which the provisos make exceptions, but confers two different powers similar in three features, namely, (1) sale, (2) not under lease, (4) at public auction, but differing in the other two features, namely, (3) in respect to the area, and (5) in respect to the terms of sale. If the provisos make exceptions merely in respect to three of these features, namely, 1, 4 and 5, (4 expressly; 1 and 5 by im*236plication), which is conceded, and do not make exceptions as to 2 and 3, as contended, then, conceding that feature 2, which is the same in both powers conferred in the body of the section, presents no inherent difficulty, the question presents itself from which of these two powers feature 3 is to be taken for incorporation into the provisos, this feature differing under the two powers. Under one power the area is limited to 1000 acres, under the other to 600 acres. It would seem that if the legislature had intended either of these restrictions to be operative in the provisos it would have expressed that intention and would have specified which restriction as to area was intended.
Thus from every consideration except that of the supposed ■dangerous extent and character of the powers conferred or that of the general spirit of the land act of 1895 as gathered from its other provisions, it would seem that the provisos confer independent grants of powers free from the restrictions imposed in the body of the section. It may be that these powers are dangerous in extent and character and may be exercised in such a way as to defeat to some extent other purposes of the act; and yet, as already shown, they are not more extensive and not of a character •other than had previously existed beyond question as to both classes of public lands and now exist as to one class under sections 252 and 254; and they are not in themselves against the spirit of the land act as a whole, for the purposes of that act are various ■and include those of acquisition by exchange for public purposes as well as those of disposition by sale for settlement, and indeed the acquisition of lands in large tracts suitable for settlement in ■exchange for lands loss suitable for settlement may be desired for the very purpose of disposition in small lots for settlement. Courts, however, cannot legislate or invade the provinces of the other departments of government in matters of policy. The extent to which power of the kind in question should be conferred upon executive officers is a question of policy for the legislative body; the exercise of the power in a particular case is a question of policy for the executive officers.