The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-12-19

faithfully and impartially execute the duties as
signed by Law TO his department.
Section l4i2 of the Civil Code Is as follows: he
Minister OF the Interior shall have full power, sub
iect to the provisions and conditions OF this chap
Ter in his discretion, by and with the advice and
consent of the King in Privy Council TO grant
charters Of Incorporation, for agricultural, COM
Inercial and manufacturing purposes, and Tor Gem
etery assOclgtIOns as well as 70 charter other IN
corporations either aggregate sole ecclesiastical
OF lay, banking and municipal corporations alone
excepted, which shall be chartered only by the
Legislature"
these are all the statutes which directly relate to
the question at issue.
1t Is claimed that BY the latter Section the de-
PENDANT has a discretion as TO whether or not he
will present prayer for charter 10 the King IN
Priyy Council lnasmuch the section does not
so say, ] am unable TO believe that It can be so
construed.
The only discretion OF which the Section speaks
Is discretion to be exercised ny and ,rt b,c ad-
rice and consent Of tie HING "a PIiry Canned. IN
I'll he has placed himself in position TO receive
that advice and consent under the Section, he can
exercise discretion. If then he rejects the pc
tition and declines TO grant the charter, if he
grants il without presentation he has OF his own
motion, without the Kings advice and consent, as
required by the statute, assumed to exercise dis
erection which be does not possess.
There Is 10 escape from this conclusion. Ifthere
Is then the Kings Minister Of the Interior might
suppress, US In the CIse At bar, without informing
His Majesty every prayer for charter which
relative to corporations would become utterly use
less; if operative. il would be, practically 10
strike ont from the KING constitution that golden
Section Is, which have quoted, and the granting
Of which by his Just predecessor covers him with
honor.
The law Is no RESI- octer OF persons. have no
doubt, as a member Of his Maissty's highest
Court, that he has every disposition fairly ana i'm
partially TO carry out the law.
Without the examination OF authorities have
no doubt, upon plain reason, under the sections of
the code referred TO, and in accordance with the
provisions of the constitution, that the Min
lister OF the Interior. on the filing of a PRAYER
for charter, Is bound to put Himself IN the
position 10 exercise the discretion 10 grant or re-
fuse it. and this he can ony do by presenting il TO
the King in Priyy Council.
But the authorities are abundant to show that
IN officer who has a discretion may be compelled
TO exercise that discretion as the law requires and
that Is all that the plaintiffs ask IN this case.
Tapping on Mandamus, says, side page Il, so
where one is to act according to his discretion and
he VIII not act nor even consider the matter, the
court will by mandamus command him to put
himself in motion to do it,
Many English authorities are referred to- The
principle Is we'll settled and unquestioned.
See also side page III.
See Bailey vs.. Ewart, - Iowa, .. lIl-lI2 How
land vs. Eldredge, i3, y. Y. r., p. 457-i6I. 5. F.
Gas Co. vs.. Supervisors of San Francisco II Cal
~. Carpenter vs. CO-cOmmissioners of Bristol. 9i
Pick, 25S-9.
The case of Ludington vs.. the Minister Of the
interior was cited BY the defence, and ! have
examined II. II in no way conflicts with the views
! have taken herein
The night Of prayer for charter in accordance
with law duly enacted is a valuable right, con-
corning property.
It IS secured TO the plaintiffs by Section II of
the Constitution, which have quoted
Ihls right has been substantially denied 10 them
by the defendant, and for its enforcement thew
have no other remedy than that sought in tins
Let mandamus issue 10 the defendant in sc-
cordance with the prayer of the petition
A. ;. Hartwell and Smith and Thurstou for
defendant.
Dated December II. 1883.