*237DISSENTING OPINION OP
WILDER, J.I dissent from tlie majority on tbe main question involved in •this case, which is, whether or not the commissioner of public lands with the approval of the governor has the power to exchange for private lands more than 1000 acres of public land under lease.
If that power exists, it is to be found in Sec. 27 0 of the Revised Laws, which, as originally enacted, was a part of the “Land Act of 1895.” That section is as follows:
“The commissioner may with the consent of the governor sell public lands not under lease, in parcels of not over one thousand acres, at public auction for cash. Upon any such sale and the payment of the full consideration therefor, a land patent shall be issued to the purchaser.
“And he may, with such consent, sell public lands not under lease in parcels of not over six hundred acres, at public auction upon part credit and part cash, and deliver possession under an agreement of sale containing conditions of residence on or improvement of the premises sold, or of payment by instalments or otherwise of the purchase price, or all or any of such conditions.
“’And in case of default in the performance of such conditions, the commissioner may, with or without legal process and without notice, demand or previous entry, take possession of the premises and thereby determine the estate created by such agreement. In case of such forfeiture, such land shall be sold at auction either as a whole or in parcels, for cash or on terms of time payments in the discretion of the commissioner; and if such sale shall result in an advance on the original price, the original purchaser shall receive therefrom the amounts of his payments to the government on account of purchase, without the interest and a pro rata share in such advance in projiortion to the amounts of his payments. If such sale shall result, however, in a less price than the original, the amount returnable to him shall be charged with a pro rata amount of such decrease proportioned to the amounts of Ms payments. The treasurer is hereby authorized to pay the amount returnable to the outgoing tenant, upon the requisition of the commissioner, out of any funds available for such purpose.
*238“W hicli agreement sliall entitle the purchaser to a land patent •of the premises upon the due performance of its conditions.
“The commissioner shall have authority to fix any upset price for all such sales for cash or part credit and part cash.
“All such sales shall be held in Honolulu, or in the district where the land to be sold is situated. Any person designated by the commissioner may act as auctioneer at such sales without taking out an auctioneer’s license.
“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 titles of private lands where such 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 eqititable grounds.”
Authority is thus given to the commissioner of public lands with the consent of the governor to sell public lands not under lease in parcels of not over 1000 acres at public auction. Upon fulfilling the conditions of the sale the purchaser becomes entitled to a land patent. The first proviso that “Provided, however, land patents may be issued in exchange for deeds of private lands * * i: without an auction sale” has reference to what precedes, namely, land patents of not over 1000 acres. This is shown not only by the words “provided, however,” which ordinarily and naturally refer to what precedes, but also by the use of the words “without an auction sale,” thus implying that an auction sale was the only condition not a prerequisite to the issuance of a land patent in case of an exchange, leaving the other conditions prerequisite to the issuance of a land patent in force, namely, unleased public lands in parcels of not over 1000 acres. As to the natural meaning of a proviso see Cooper v. Island Realty Co., 16 Haw. 98; Lewis’ Sutherland’s Stat. Con. 352.
The second proviso in Sec. 276 has reference to quitclaim •deeds and has nothing to do with land patents, and so obviously no reference is made therein to any of the conditions prerequisite *239to tlie issuance of land patents imposed in tlie main body of tlie section.
If tlie intention was to allow a power of exchange not limited to quantity or kind of land, wliy were the words “without- an auction sale” specifically inserted in the proviso as being the only prerequisite not necessary to the issuance of a land patent in case of an exchange? To construe the proviso as authorizing an unlimited power of exchange requires the practical elimination of the words “without an auction sale” and treating them as sur-plusage. That such a construction is not justified see Endlich Int. Stat. 23.
It is argued that there is no limit to the right to exchange mentioned in Sec. 276 either as to the amount or kind of land because there is no limit to the right- of exchange mentioned in Sec. 254, E. L. That argument is not sound for the reason that at the time of the passage of Sec. 254 there was an absolute right to lease, sell or otherwise dispose of the public lands in any amount and whether leased or unleased, and also for the reason that the section which preceded and to which Sec. 254 had reference (Sec. 253, E. L.), imposed the one condition of a public auction sale in cases of transfers of government lands, and that one condition was expressly not to be imposed in cases of exchange.
The power contended for by the commissioner of public lands is undoubtedly contrary to the spirit of the Land Act of 1895, which included this section 27 6, and which requires dispositions of public lands to be in small areas, undoubtedly for the reason of encouraging settlers and homesteaders and also of allowing others than the very wealthy the privilege of acquiring portions of the public domain. The majority recognizes that this exchange is contrary to the spirit of that act. In construing a doubtful provision of an act the act as a whole and its reason and spirit may be considered. See E. L., Sec. 12; Ex Parte Higashi, 17 Haw. 437. The course of legislation in these islands shows that the tendency has been to limit rather than to enlarge the power of disposing of public lands, and that was *240recognized by Congress when it passed the Organic Act. Ilcw foolish it was to limit the amount and kind of public land which could be sold and at the same time to allow an unlimited power of exchange; and yet, according to the majority, that is exactly what the legislature of 1895 meant to do. If that is what the legislature meant, it is within the power of the commissioner of public lands and the governor to nullify the whole purpose and object of the Land Act of 1895 by exchanging all of the public domain under that act for, say, building sites in the city of Honolulu or other lands of equal or greater value, but unavailable and undesirable for the purposes of the act. If this exchange is permissible, any exchange is permissible. That the legislature intended to authorize any such power, in view of the clear purposes and objects of the act, I cannot and do not believe.
If there is a power to exchange land under lease, what becomes of Sec. 279 of the Revised Laws, also a part of the Land Act of 1895, which by its terms purports to give to the commissioner of public lands the only power he lias in regard to the disposition of land under a general lease ? There is no conflict between Secs. 276 and 279 if the power of exchange is limited to lands not under lease, otherwise there is. Every construction which leads to a conflict between two sections in the same act should be avoided. Pratt v. Holloway, 17 Haw. 544. See also Bernier v. Bernier, 147 U. S. 246, where it is said that “It is a general rule, without exception, in construing statutes that effect must be given to all their provisions if such a construction is consistent with the general purposes of Ihe act and the provisions are not necessarily-conflicting. All acts of the legislature should be so construed, if practicable, that one section will not defeat or destroy another, but explain and support it. When the provision admits of more-than one construction that one will be adopted which best servos to carry out the purposes of the act.”
For the, foregoing reasons it is my opinion that the decree appealed from should be affirmed.