circumstances of his case, notwithstanding his technical success, afford a ground for a later claim. The claimant was allowed two months' extra pay for service outside the United States. He was not entitled to one month's extra pay for service within the United States. See act of May 26, 1900, chap. 586, 31 Stat. at L. 205, 217, U. S. Comp. Stat. 1901, p. 3346. Of course, the claim for travel under the same act (31 Stat. at L. 210, U. S. Comp. Stat. 1901, p. 841) must fail. The claimant was discharged before that act was passed. Judgment affirmed.

APPEAL from the Supreme Court of the

Territory of Hawaii to review a judg ment sustaining a demurrer to a petition to recover from the territory a sum of money as the alternative of the reconveyance of certain property conveyed to the Hawaiian government for the nonfulfilment of the conditions upon which the property was conveyed. Reversed and remanded for further proceedings.

See same case below, 17 Haw. 285.

Statement by Mr. Justice McKenna:
This action was brought in the supreme

TERRITORY OF HAWAII.

Extrinsic evidence to explain writing.

1. Extrinsic evidence of the circum

stances preceding the agreement by which

from the territory the sum of $15,000 as the alternative of the reconveyance of certain property conveyed by the American Board of Commissioners of Foreign Missions in 1849 to the Hawaiian government, for the nonfulfilment of the conditions upon which the property was conveyed. A demurrer was sustained to the petition and thereupon this appeal was taken.

The following is an outline of the principal facts alleged:

tution for the cultivation of sound literature and solid science, and should teach no religious tenet or doctrine contrary to those theretofore inculcated by the mission, as set forth in a confession of faith.* Real property-condition subsequent.

2. A mere technical school which excludes all religious instruction does not satisfy the condition on which a Protestant mission was transferred by the American Board of Commissioners for Foreign Missions to the Hawaiian government, viz., that the government should continue the same as an institution for the cultivation of sound literature and solid science, and should teach no religious tenet or doctrine contrary to those theretofore inculcated by the mission, as set forth in a confession of faith, where the government knew, when accepting the transfer of the mission to its "fostering care and patronage," that the Mission was founded to convert the Hawaiians to Christianity and to educate young men to be Christian ministers, and for more than than fifty years recognized its obligation under the agreement to afford religious instruction in the doctrines represented by the mission.

[No. 195.].

Argued and submitted March 20, 1907. Decided May 13, 1907.

estant mission in the Hawaiian Islands, and, as an essential part of its missionary work, carried on many schools. Its most notable educational work was centered in a school established in 1831 at Lahainaluna, on the Island of Maui, where it possessed a large tract of land. This school and the premises occupied by it were set off by the chiefs to the protestant mission in 1835. On the buildings and other improvements many thousands of dollars were expended, and the school had, in 1850, become a most important factor in the life and progress of the Hawaiian people, and was recognized as the leading educational institution in the kingdom.

The course of instruction comprised not only the usual topics belonging to secular learning, but included also direct religious teaching and training in the doctrines represented by the mission.†

Laws of the High School, as Amended and Adopted by the Mission, June, 1835. Chapter I.

• These facts were established before the board of commissioners to quiet land titles, to which the claim of the American Board to Lahainaluna, as an established part of its system, was duly presented and recognized, and the board of commissioners adjudged as follows: "Lahainaluna, part 5, section 2, claim relinquished before the land commission in consequence of an after-arrangement having been entered into with the Hawaiian government by the mission. Vol. 8 L. C. Award, pp. 143 et seq., upon the final confirmation which was duly made to the said A. B. C. F. M. all the lands claimed were awarded, 'with the exception of section 2, Lahainaluna, which had been withdrawn.'" The "after-arrangement" referred to in the records of the land commissioners was as follows:

"Because of financial stress, and also feeling that the school, which had really become a national institution, should be conducted by the government at its own expense, in April, 1849, the mission, at its general mission held in Honolulu, voted as follows: To make over this seminary to the government, it being understood that it is to be conducted on the same principles as heretofore.'

623

by the said government, the whole property hereby transferred, hereinbefore specified, together with any additions of improvements, should revert to the said mission.""

This offer as made was not accepted by the government, but it instead submitted a counter offer to the mission, by which it offered to take over the school on the conditions made in the mission's original offer, but "provided that, in case of the nonfulfilment on the part of this government of the conditions specified in the letter of the above-named gentlemen, it shall be optional with this government to allow the institution, with all additions and improvements which may have been made upon the premises and all rights and privileges connected therewith, to revert to the said mission, to be held in behalf of the American Board of Commissioners for Foreign Missions, or to pay the sum of $15,000; provided also that, in case this government shall find it expedient to divert this establishment to other purposes than those of education, it shall be at liberty to do so, on condition that it sustain an institution of like character and on similar principles in some other place on the island, or pay the sum of $15,000 to said mission in behalf of the Mission Board in

A more definite form of the "confession of faith" was substituted and accepted by the government, and the whole arrangement ratified by the Hawaiian legislature, Law of 1850 (F. C. 1850) 158, § 1 of Civil Code (1859) § 783, and by the prudential committee of the American Board.

Chapter VII.

Of the Studies of the School. 4. The whole school shall meet between daylight and sunrise each week day for prayer, at which one of the instructors shall preside; the roll shall be called, absentees marked and called to an account at least once a week.

The letter of the mission to the Minister of Public Instruction is inserted in the margin.t

+ Exhibit A.

Honolulu, April 25, 1849. To His Ex. R. Armstrong, Minister of Public Instruction of the Hawaiian Islands. Sir: The undersigned, a committee of the general meeting of the mission of the A. B. C. F. M., at the Sandwich Islands, appointed in reference to the Mission Seminary at Lahainaluna, Maui, beg leave, through your Excellency, to offer a few remarks respecting that institution, and make some proposals in reference to it to his Majesty's government for its consideration.

It is well known to his Majesty, and also to most of the members of his government, that, in the year 1831, the mission com menced the establishment of the institution now known as the Mission Seminary of Lahainaluna, Maui, to promote the diffusion of enlightened literature and Christianity throughout the islands.

• The Hawaiian government at once took possession of the Lahainaluna seminary and carried on the school exactly as it had been conducted by the Mission, both in religious instruction and the inculcation of sound literature and solid science.

For many years after the government had taken over the school the principals of the school continued their relations as missionaries of the American Board in their work in the school, and continued to make reports of their educational and religious work and instruction in the school to the general meetings of the mission.

In 1862 the seminary buildings were burned down. Other buildings were built. The principal, in his report for that year, 1862-63, reviewing the history of the school, says: "The Hawaiian government has always been a liberal friend and benefactor. ... Never in any way have they interfered with our manner of instruction, or in the course of instruction pursued. In our work we have had all the freedom which we possibly could have had under the A. B. C. F. M." Also, referring to pupils who, under the religious instruction at the school, became ministers, he says: "While six who were connected with it since it has been under the care of the Hawaiian government have been ordained to the same office."

or

coming within its appropriate means power have been spared to promote its usefulness and secure the objects of its establishment.

Three missionaries have, for a large portion of the time, been devoted to its interests, and two at all times since the two or three first years of its existence. About $77,000.00 have been expended for its benefit, including the support of the teachers and the dwellings erected for their accommodation.

We need not point you to the fruits of this cherished institution, scattered through. out the islands, filling various posts of honor, responsibility, and usefulness, both in and out of the government. They are well known to his Majesty and the officers of his government, and to none better than yourself.

The institution has been planted and sustained to the present time by the American Board of Commissioners of Foreign Missions, from donations given by the American churches for the spread of the gospel in heathen lands. That board, as we learn by recent intelligence, was, at the close of its last financial year, embarrassed by a debt of $60,000.00, incurred in the prosecution of its labors of benevolence and mercy.

As a consequence of its indebtedness, it has been obliged to curtail its expenditures by diminishing its grants to each one of the missions under its care, and this mission, in common with others, has shared in the general reduction.

Prior to the establishment of the Anglican Church in Hawaii the board of education appointed as instructors such persons as were acceptable to the mission, generally selecting those nominated by the mission. When the Anglican mission was established it was proposed that the forms and probably the substance of religious instruction should be changed, and advice was asked of the Attorney General. His reply reviewed the whole arrangement upon which the government received the seminary, and concluded as follows: "Should the govern

ment not be willing to keep the conditions as far as I have shown, then the property and improvements must be restored to the A. B. C. F. M.”

In 1865 the Hawaiian Gazette, the official mouthpiece of the government, declared that the government had resolved that its support should be given to schools irrespective of their religious teaching, but pointed out that the board of education might be chargeable with partiality for supporting a state church, inasmuch as it paid large sums to defray the expenses of Lahainaluna, where the principles and theology of one particular sect were exclusively taught, although opposed to the belief of all in communion with Roman Catholic and Episcopal churches.

For this reason the mission will be unable to carry forward its operations with the vigor to be desired in all of its departments of labor. Some must almost inevitably suffer for want of pecuniary means.

In view of these facts, and believing that, under present circumstances, the transfer of this institution to the fostering care and patronage of government will promote the highest interests of the Hawaiian people, we beg leave, through your Excellency, to submit to his Majesty's government for its consideration the following proposals, viz:

That the mission of the A. B. C. F. M. at the Sandwich Islands, acting for and in behalf of the said American Board of Commissioners of Foreign Missions, having its headquarters in Boston, state of Massachusetts, in the United States of America, relinquish all of their right, title, and interest to and in the seminary buildings located at Lahainaluna on the island of Maui, and known as the Mission Seminary, together with all of the dwelling houses at that station erected by the mission at the expense of the said A. B. C. F. M., for the use of the teachers in the said Mission Seminary; also the building erected by the mission as a printing office and bindery; also all lands pertaining to and granted for the use of the Missionary Seminary, and also all philosophical and other apparatus procured for the use of the said seminary, also the public library of the said institution, and to transfer the same to the Hawaiian government for its use,

In the following years, upon the suggestion by the mission of certain instructors, a correspondence arose between the board of education and the mission, in which the board of education said that it was understood that the institution was to be continued so as to aid instead of to defeat the purpose for which it had been founded, and that nothing had been done to justify the intimation that the board had any desire to defeat such purpose, and admitted "that a full compliance with agreement consists in appointing persons teaching in the doctrine and after the manner of the Congregational and Presbyterian churches of the United States." And further: "The board are fully aware that if they do not see fit to carry on the institution according to the terms of the contract, they have to reconvey it, or pay the sum of $15,000."

After 1865 the seminary continued to be conducted on the same lines as prior thereto.

of the curriculum at Lahainaluna, as provided in the agreement, on or about September 1, 1903, at which date the religious tenets and doctrines, in accordance with the creed and articles of faith* of the mission, ceased to be taught, and are no longer taught. The "cultivation of sound literature and solid science" has also ceased, and the institution has become a technical school under the name of "The Lahainaluna Agricultural School."

The territory maintains no other institution of like character and on similar principles in any other place on the island.

The appellants are the successors of the American Board of Commissioners for Foreign Missions.

Upon these facts, it is alleged, that appellants have become entitled to a return of the property conveyed or to the payment of $15,000; that the territory has refused to do either, but has elected to retain the property, which election is evidenced by its re

fact that it is proceeding to erect expensive buildings thereon and expend large sums of money in fitting the property and the school to become a technical school,—namely, an agricultural college.

Religious instruction ceased to be a part

benefit, and behoof, to have and to hold the same forever.

Providing, however, and this transfer is made upon the express condition, that the said Hawaiian government agrees that the said institution shall be continued at its expense, as an institution for the cultivation of sound literature and solid science; and, further, that it shall not teach or allow to be taught any religious tenet or doctrine contrary to those heretofore inculcated by the mission, which we represent, a summary of which will be found in the confession of faith herewith inclosed, and in that in case of the nonfulfilment or violation of the conditions upon which this transfer is made by the said government, the whole property hereby transferred, hereinbefore specified, together with any additions or improvements which may have been made upon the premises, and all the right and privileges hereby conveyed or transferred to the Hawaiian government by the said island mission, shall revert to the said mission, to

have and to hold the same for and in behalf of the American Board of Commissioners of Foreign Missions.

These proposals, if accepted, by the Hawaiian government, shall not have binding force until they shall have received the sanction of the prudential committee of the American Board Commissioners of Foreign Missions in Boston; and further, should the said Hawaiian government accept the proposals here presented, and enter forthwith up27 S. C.-40.

The petition was demurred to upon the grounds substantially as follows: 1. That the court had no jurisdiction of on the fulfilment of the conditions, and should the said transfer not meet the approbation of the prudential committee, the mission, on its part, pledges itself to refund to the said government any necessary expenses it may have incurred in carrying on the institution whilst the parties were awaiting the ratification or rejection of this transfer by the said prudential committee. Provided, however, that moneys shall not have been expended in enlargement or improvements. other than what may have been actually necessary to keep the buildings in repair and carry on the institution.

In case of disagreement of the parties as to the amount proper to be refunded, in case of the nonratification of this conveyance by the prudential committee, the sum shall be determined by two arbitrators, one of which shall be chosen by each of the respective parties, and which arbitrators, in case of disagreement, shall elect a third to decide upon the award.

The foregoing remarks and proposals are respectfully submitted for the consideration of his Majesty's government, and I greatly obliged by an early answer.

feel

We have the honor to be, Very respectfully, your ex. friends and most obedient servants,

W. P. Alexander,

C. B. Andrews,

S. N. Castle, Com.,

By S. N. Castle.