DISSENTING OPINION OP CASSIDY, J., WITH WHOM WIRTZ, J., JOINS.
I respectfully dissent.
Appellant contends, and the majority agree, that a *444Land Commission award made pursuant to the provisions of Article IV of Chapter VII of Part I of the Second Act of Kamehameha III was, as a matter of law, automatically subject to the same reservation of “mineral rights”1 as is set out in the form of patent prescribed for the sale of Government lands by Section VI of Article II of the same chapter, notwithstanding the Land Commission’s award was made without any such reservation. I am unable to follow the reasoning of the court or to agree with its conclusion in reaching that result. Upon consideration of the pertinent statutory provisions in light of fundamental principles established by our early cases on Hawaiian land law I find myself in full accord — with the Land Court’s holding that Section VI of Article II applied “only *445to grants by the government and not patents issued on awards” and that the reservations of mineral rights contained in the three patents in this case were ineffectual.
Decisions of the Land Commission were subject to appeal to the supreme court and when no appeal was taken a decision of the Commission was final. Art. IV, Sec. VII.2 Unless appealed, an award was “binding upon the minister of the interior and upon the applicant.” Art. IV, Sec. I. Further, the Minister of Interior was mandated to issue patents to claimants of land “pursuant to the terms in which the said board shall have confirmed their respective claims,” and “in accordance with the award of said commissioners.” Art. IV, Secs. IX, XI.
A patent issued on a Land Commission award evidenced the release of commutation due the Government. The award vested and determined the extent of the claimant’s title.
As stated in Brunz v. Minister of Interior, 3 Haw. 783, 787, “Patents based on awards do not therefore confer or confirm titles.” And, in Minister of Interior v. Papaikou Sugar Co., 8 Haw. 125, 126, “The award confirmed title to the land. There remained outstanding, however, the interest of the Government therein.” That interest was extinguished by the payment of commutation and the patent was issued in evidence thereof. “A Eoyal Patent is merely a quit claim of the interest of the government in lands.” Mist v. Kawelo, 11 Haw. 587, 589.
In Minister of Interior v. Papaikou Sugar Co., supra, it is stated (at p. 127) : “The law governing these matters is found in the ‘Principles adopted by the Board of Commissioners to Quiet Land Titles in their adjudication of claims presented to them,’ pp. 81 to 94, Vol. 1, Statute of *4461846 — enacted as law October 26, 1846.”
One of the fundamental principles adopted by the Land Commission was for the contemplated division of land of tbe Kingdom into three parts, viz., one-third retained for the King or Government, another third to the landlords or chiefs, and the remaining one-third to the tenants or common people. This basic formula and the foundation upon which it rested are explained in the Commission’s prefatory remarks to the Statement of Principles (Laws 1847, pp. 82-83), as follows:
“It seems natural then, and obviously just, that the King, in disposing of the allodium, should offer it first to the superior lord, that is to the person who originally received the land in trust from the King; since by doing so, no injury is inflicted on any of the inferior lords or tenants, they being protected by law in their rights as before; and most obviously the King could not dispose of the allodium to any other person without infringing on the rights of the superior lord. But even when such lord shall have received an allodial title from the King by purchase or otherwise, the rights of the tenants and sub-tenants must still remain unaffected, for no purchase, even from the sovereign himself, can vitiate the rights of third parties. The lord, therefore, who purchases the allodium, can no more seize upon the rights of the tenants and dis-posses them, than the King can now seize upon the rights of the lords, and dispossess them. This appears clear, not only from the first principles of justice, but also from the act of 1839, declaring protection for tenants as well as for landlords. That act particularly recognizes but three classes of persons as having rights in the sale, viz: the King or government, the landlords and the tenants. Indeed, section 9, chapter 3 of that statute positively forbids the lord who receives land *447in trust from the King to place another lord under himself, over the tenants. If then any landlord violate this law, he only divides his own rights; he cannot thereby diminish the rights of the King or government, nor the rights of the tenants.
“It being therefore fully established, that there are but three classes of persons having vested rights in the lands, — 1st, the Government, 2nd, the landlord, and Sd, the tenant, it next becomes necessary to ascertain the proportional rights of each(Emphasis added.)
That Land Commission awards to landlords or tenants were intended, upon satisfaction of commutation, to be of full and absolute title, without reservation except only as to corporate rights of the body politic as authorized by law, is plainly laid down by the Sixth Principle adopted by the Land Commission, as follows:
“6th. The share of Government, or the body politic, to be commuted for with the Minister of the Interior, by any confirmed claimant wishing to obtain a fee simple title under chapter 7 of part first of the Act to organize the Executive Departments, this Board understand, from the evidence adduced before them, to be one third part of the value of the land, without improvements, which third part of unimproved value, being paid by the confirmed claimant, should extinguish the private rights of the King in the land, and leave such claimant an allodium, subject only to the corporate rights of the body politic, to be exerted by the King under authorization of the laws, and through the agency of his officers created by the laws. The Board, in asserting this principle, do not mean, however, to restrict the power of His Majesty in Privy Council, to fix upon a less commutation, under section 10th of the article creating this Board, and subject to *448the rights of tenants, if there be any on the land; for the King has no power to convey away the rights of individuals without their consent. They deem it their duty to state the maximum value of the interest retained in all lands of the kingdom at this date, which was never relinquished, and which the Government to this day has never received any valuable consideration for, even from the private chiefs from whom the claimants derive. Claimants cannot derive more than the original proprietor had, neither could the original proprietors grant more than they had to the present claimants. They had a possessory right under the crown, equal to two thirds undivided of the value of the land, provided there were no tenants; and in consideration of the undivided third of the King, they paid an annual rent, in produce of the soil, and in service. The foreign claimants, deriving from these, have not, in all cases, paid the rent which was due from their grantors, and have lost sight of the corporate rights in their lands, pertaining originally to the government. That rent can he sold hy the Minister of the Interior, for not exceeding one third of the unimproved value of the land as aforesaid, which would di/oest the land so commuted for of all interference, save that of the community, for the causes and in the way aforesaid” (Laws 1847, p. 93.) (Emphasis added.)
No serious contention is made or can be made that a reservation of mineral rights in lands subject to a Land Commission award could be justified on the basis that such a reservation was of a corporate right of the body politic under authorization of law and therefore automatically applicable to a Land Commission award by virtue of the provisions of the Sixth Principle. The Land Court properly concluded that the corporate rights referred to in the quoted principle are sovereign rights and *449include “only such items as powers of taxation, of eminent domain or the like, commonly thought of as ‘political powers’ as distinguished from proprietary interests.”
As has been noted, under the provisions of Article IV the Minister of Interior in issuing a patent on a Land Commission award was required to do so in accordance with and pursuant to the terms of the award. In issuing such a patent he performed a purely ministerial function. Territory v. Liliuokalani, 14 Haw. 88, 104. The Minister of Interior had no power beyond that to be found in the express provisions of the law. Bruns v. Minister of Interior, supra, 3 Haw. 783, 788.
In view of the foregoing it is my conclusion that unless there were some authority in law, beyond the provisions of Article IV, requiring or authorizing the reservation of mineral rights to the Government in lands covered by Land Commission awards, the reservation of such rights in a patent issued on an award would be, as the Land Court decreed, “null and void.” Cf., Shaw v. Kellogg, 170 U.S. 312, cited in the court’s opinion.
The majority accept appellant’s contention that the reservation prescribed by Section VI of Article II applied likewise to patents the Minister of Interior was required to issue pursuant to Section IX of Article IV. And in this connection it is said that “While some sections of this Article II related to the sale of government land at a price, section VI relating to the form of patent was not limited to that subject matter.” This conclusion, with which I take issue, is one of the main props upon which the court’s opinion necessarily rests. In my view,-Article II — and every section of it — applied only to Government lands.
The subject matter of Article II is clearly specified and delimited by its title, reading: “Of the Disposition of Government Lands.” As the very term denotes, “Gov-*450eminent lands” were lands that were to be set apart and retained as the public domain.3
The primary function of the Land Commission was to separate and establish the ownership of lands into the three classes designated in the basic formula set out in the declaration of the Land Commission above quoted. One of the classes, as has been seen, was the Government, which then meant the King.4 The lands to be so retained by the King in his sovereign capacity as distinguished from the lands to be awarded to individual landlords or tenants under Article IY, were to be State or public property in the division contemplated by the Second Act of Kamehameha III. The actual division however, was not effectuated until the Mahele of 1848 and the concomitant act of Kamehameha III in ceding a major portion of his reserved lands to the Government. As is summarized in Knudsen v. Board of Education) 8 Haw. 60, 68: “We must bear in mind that it was not until the organization of the Commission to Quiet Land Titles, which was accomplished by the general statutes of 1846, the chiefs and people had any titles to land; and it was not until 1848 that the Mahele or great division was made, by which the interests *451of the King, chiefs and people in the lands of the Kingdom were separated, followed by the final act of the King ceding to the Government a portion of his reserved lands.5 See also Estate of His Majesty Kamehameha IV, 2 Haw. 715; Harris v. Carter, 6 Haw. 195.
Section I of Article II provides: “The minister of the interior shall have power to contract for the absolute sale, in fee simple, of any government land, at a price to be in each instance agreed upon in privy council, under sanction of the king, and when so agreed upon, to be conveyed to the purchaser by royal patent, as hereinafter prescribed.”
The form of the patent referred to in Section I of Article II is prescribed by Section VI of the article and is obviously couched in language for a grant upon payment by the grantee of a monetary consideration and not as “a *452quit claim in confirmation of an award” for which the patentee had commutated his title. See Territory v. Gay, 26 Haw. 382, 392.6
Considering the language of the several sections of Article II in light of the meaningful title of the article,
I can reach no other conclusion than that the patent form prescribed by Section VI thereof, and consequently the reservation of mineral rights contained in it, applied only to Government lands disposed of on a bargain and sale basis. It is my view that Article II is framed to so directly and expressly limit its application to Government lands as to preclude the application of any of its provisions to lands subject to Land Commission award. I am also of the opinion that a contrary result can not be indirectly obtained by any process of inductive reasoning.
I am unable to see any pertinency in Section, 7 of the Joint Resolution of November 7, 1846 (Laws 1847, p. 71) incidentally relied on by the court. By its terms that section applied to a konohiki seeking “his portion of any given Ili or ahupuaa set off to him * * No contention is made by the State, nor does the record permit a holding, that the lands involved in this case would have qualified for treatment under Section 7 of the resolution. Further, the resolution of November 7, 1846 became functus by 1850, if not earlier. See Oni v. Meek, 2 Haw. 87; Territory v. Gay, supra, 26 Haw. 382.
I have no intention or desire to oversimplify but, if I analyze the court’s opinion correctly, its main thrust is formulated in the inductive process I will endeavor to summarize in the next paragraph hereunder.
The Land Commissioners’ cognizance that they were *453limited by “any principle in past legislation”7 stemmed from Section VII of Article IV wbicb provided that, “Tbe decisions of said board shall be in accordance with tbe principles established by tbe civil code of this kingdom,” and moreover, tbe commissioners announced that they were not at liberty to disregard “certain restrictions contained in tbe same act, by tbe 4th Article of tbe 7th chapter of tbe first part of wbicb they are created,” and that “Aliens are not allowed to acquire any allodial or fee-simple estate in lands.” And since tbe matter of aliens’ rights was not enumerated in Section VII of Article IV, ergo:
“Thus the Land Commission deemed tbe precept established by section VII to be of general application and not limited to tbe enumerated topics. Pursuant to this precept, tbe prescriptions of all tbe civil statutes were binding on tbe Land Commission whenever applicable. It would be incompatible with this precept were we to bold that section VI of Article II, prescribing tbe form of £all royal fee simple patents,’ did not govern Land Commission awards as well as other dispositions.”
I think tbe court stretches a point in discounting tbe maxim, Expressio unius est exclusio aMerius, in its consideration of Section VII of Article IV. That section was definitely limited to enumerated topics. It read: “The decisions of said board shall be in accordance with tbe principles established by tbe civil code of this kingdom in regard to prescription, occupancy, fixtures, native usages in regard to landed tenures, water privileges and rights *454of piscary, the rights of women, the rights of absentees, tenancy and subtenancy — primogeniture and rights of adoption; which decisions being of a majority in number of said board, shall be only subject to appeal to the supreme court, as prescribed in the act to organize the judiciary, and when such appeal shall not have been taken, they shall be final.” Construction of this section appears to be a classic instance calling for the application of the maxim above referred to and I see no justification for inferring that the Land Commission deemed it otherwise.
Obviously, there was no principle in past legislation on mineral rights, nor did the Land Commission judicially declare one on the point. Further, establishment of a precept that the Land Commission did not deem Section VII to be limited to the enumerated topics by virtue of its having declared that aliens were not allowed to acquire allodial title rests on, to say the least, a flimsy bottom. The Land Commission’s adoption of that restriction was not generated from taking liberties with Section VII of Article IV but rather rested upon and was required by the specific and generally applicable restriction set forth in Section IV of Article I of Chapter V of Part I of the Second Act of Kamehameha III, as follows:
“All aliens shall, as in Great Britain and the United States of America, continue to be under the following disabilities:
*****
“3. They are not able to acquire any allodial or fee simple estate in lands.”
Being unable to accept the “precept” created by the court, I find no justification for its use in engrafting the mineral rights reservation to Land Commission awards.
With all deference I make one further general comment. I am inclined to the view that while no mention *455in the court’s opinion is made of the State’s contention that the rule of strict construction applies against the landowner in this case, the court’s opinion nevertheless is rendered on that basis.
The State cites Slidell v. Grandjean, 111 U.S. 412, and Coosaw Mining Co. v. South Carolina, 144 U.S. 550, for the rule that where a statute operates as a grant of public property to an individual, the statute should be strictly construed in favor of the sovereign interest. While the rule may be appropriate in some situations, it has no application here. The rule is wholly at odds with the tenet expressed in the preamble to the Principles of the Land Commission, as follows: “From the fact that His Majesty, the intrinsic proprietor, has reposed in this Board, such power of confirming or rejecting, the Commissioners must infer that he intended the utmost liberality to prevail towards the claimants, rather against the pecuniary interests of the body politic than against those of the claimants.” (Laws 1847, p. 90.) See Brunz v. Minister of Interior, supra, 3 Haw. 783; Minister of Interior v. Papaihou Sugar Co., supra, 8 Haw. 125.
I would affirm the decree of the Land Court.
As is seen from the text of Section VI of Article II set out in the court’s opinion, the prescribed reservation was of “all mineral or metallic mines, of every description.” What this language means is not before us but it is obvious that the insertion of the reservation in the form of patent for Government lands was some foreigner’s idea as it is certain that minerals, metals, or mines played no part in the economy or life of Hawaii at the time. It has only been within the last 15 years that the existence of minerals in quantity in the soil of the Hawaiian Islands has come to light and the possibility of the exploitation of such resources has been recognized. See S.L.H. 1957, J.R. 30. Legislation regulating mining, adopted in 1957 and 1963, now appears as R.L.H. 1955, Ohs. 98C and 99A (1965 Supp.).
Many interesting and informative reports on the existence of minerals in the soils of the Hawaiian Islands are available. They include: U.S. Department Interior Bureau of Mines Report 6003 on “Metallurgical Testing of Hawaiian Ferruginous Bauxites” (1962) ; Stanford Research Institute Report March 1957 on “Some Problems in the Evaluation of Hawaiian Bauxite Reserves“Special Publication No. 1, Hawaii Agricultural Experiment Station University of Hawaii June 1954 on “Some of the Mineral Resources of the Hawaiian Islands” by Sherman; Industrial Research Advisory Council Report on “Deposits of Titanium Oxide in the Hawaiian Islands” (February 1954) ; Territory of Hawaii Economic Planning and Coordination Authority Report on “A Preliminary Evaluation of Titanium Ore and Clay Deposits in the Hawaiian Islands” (April 1957).
While it is made evident from these reports that there are extensive deposits of titanium and bauxite in the state there appears to be no prospect for the present economic development of these resources due to many factors including the grade and location of the deposits and the excessive cost of extracting and processing. Only time will determine whether any economic development will be feasible. If such occurs it undoubtedly will become necessary to judicially determine whether or not the reservation upheld by the court in this case applies to open mining extraction of bauxite or titanium.
Unless otherwise indicated, statutory references herein by article and section only will he to the provisions of Ch. VII of Part I of the Second Act of Kamehameha III.
The lands to which Article II was to apply are designated as the “public domain” in Section X of Article I, reading: “The minister of the interior shall, in like manner, cause to be ascertained and defined, all landed property in the respective islands at the time of the passage of this act, belonging in any wise to the government of the Hawaiian Islands; which landed property, together with any and all tracts ceded, as hereinbefore contemplated, shall be in his possession as the public domain of His Majesty, for the purposes defined in the second article of this chapter.”
In Thurston v. Bishop, 7 Haw. 421, 430, it is stated: “The whole context of these ‘Principles’ shows that the land tenures of this Kingdom were to be settled on the basis that the King — meaning the State or Government — had one-third of any given land held by a landlord (generally a chief) ; and if it had tenants upon it (if all parts of the land were equally valuable) the landlord would take one-third, and the tenants the remaining third. An allodial title would be given by the Land Commission to the lord (the chief), an allodial title in severalty to the tenants, and a third would remain in the King or Government. The terms ‘King’ and ‘Government’ are, as we see, used interchangeably. They mean the ‘State’ in each case.”
In King, “Real Property Appraisers Manual” (1942) the exclusive nature of “Government lands” is explained at p. 4, as follows:
“Even before the king’s division with the chiefs, a second division between himself and the government was clearly contemplated. Certainly the king was entitled to lands in his own right as a chief together with the other chiefs, and he realized as well how desirable it was that there be a public domain, the proceeds of the sales and leases of which should go to the national treasury, and from which his subjects could purchase the lands which they needed. Accordingly on the day after the final division was made with the last chief, the king made a further division of the lands which had been surrendered to him, setting apart about two-thirds of them for the government and reserving the remainder for himself as his own private estate. The former are known as GOVERNMENT LANDS and the latter as CROWN LANDS.
“The Land Commission completed its labors and was dissolved on March 31, 1855, and all its records, books and unadjudicated claims were deposited with the Minister of Interior. These records are now on file in the office of the Commissioner of Public Lands. As a result of the work of the Land Commission, the Mahele between the king and the chiefs and the further division between the king and the government, original titles of all lands in Hawaii are derived from but three sources, namely, Land Commission Awards including awards on chiefs’ and commoners’ lands, from the sales of government lands and from the sales of crown lands.”
Government lands is defined in Chinen, “Original Land Titles in Hawaii” (1961), at p. 50, as follows:
“GOVERNMENT LANDS: This term, as distinguished from Crown Lands and Konohiki Lands, refers to those lands set apart to the Government by King Kamehameha III on March 8, 1848, which action of the King was confirmed by the Legislature on June 7, 1848."
The patents in this ease have not been made a part of the record. However, the difference between the recitals in the premises of a patent issued in confirmation of a Land Commission award under Article IV and a patent for a sale of Government land made pursuant to Article II is shown by the forms set forth at pages 22 and 28 in Chinen, “The Great Mahele” (1958).
The full text of the Land Commission’s statement on the point is: "A wide latitude is'thus left to the Commissioners, who must, in passing upon the merits of each claim, first elicit from creditable witnesses, the facts or history of each; and thus assort or reconcile those facts to the provisions of the civil code, whenever there is a principle in past legislation applicable to the point under consideration; but when no such principle exists, they may judicially declare one, in accordance with ancient usage and not at conflict with any existing law, nor at variance with the facts, and altogether equitable and liberal.” (Laws 1847, p. 90.)