The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-11-09
WRIT OF MANDANUS.
Decision by MIR, Justice Dole in the
Keystone Saloon Matter.

q petition for q writ of mandamus
to compel the Minister of Interior to
grant license for the Keystone
saloon. A writ was issued requir-
ing the Minister TO issue license
or show cause why he should not do
so. To this the defendant demurr-
ed, and Mr.. Justice Dole yesterday
filed the following decision overrul-
ing the demurrer:
SUPREME COURT OF THE HAWAIIAN
IsLANDs--AT CIIANIBERS---BEFoRE
MIR. JUSTICE DOLE.
William r. Chiffon and Henry
Bradley vs.. Lorrin A. Thurston,
Minister of Interior. Petition for
Mandamus.
Decision on Demurrer.
This is an application for writ
of mandamus to compel the Minis
ter of Interior to issue to one of the
plaintiffs a retail spirit license. An
alternative writ was issued and the
defendant has demurred to the petit
ton, on the grounds that it does
not allege that one thousand dollars
had been paid, and an approved
bond given to the minister as con-
dition precedent to the issue of a
license under the statute. The pc
tition however alleges that both the
one thousand dollars license fee
and bond with surety to be APP
proved by the minister, were tend
cred. l consider this to be sufli-
cient; an officer under the crcum-
stances, would not be likely to re-
ceive the fee or to consider the
surety Of the bond after he had de-
cided to refuse the application.
The second ground OF the demurrer
is, that under our statute, the grant
ing of a retail spirit license is en-
tircly within the discretion of the
Minister of Interior, and the allega-
tion of the petition consequently Of
fer no legal reason for the issue of
u mandamus in the premises. The
petition alleges that the application
for license was refused "solely on
the ground that the defendant has
decided to issue no more such Ii
censes in Honolulu" | find upon
the examination of those cases which
form precedents TO the question
raised by the second ground of the
demurrer, that Where discretion is
admitted in an officer authorized to
grant similar licenses, it is nowhere
allowed that he should exercise am
arbitrary discretion or one founded
upon caprice.
Rex VS.. Young ct al. Burrows 556.
Reg. VS.. Sylvester 2 B. & S. 332.
Reg. VS.. Walsall G. S. r. 100.
Zanone VS.. Mound City l03 Ill.
558.
1t is admitted by the pleadings
that the application is refused
"solely on the ground that the de-
fendant has. decided to issue no
more such licenses in Honolulu" 1
find in the late case of Sharpe VS..
Wakefield, 81 Queens Bench Div.
l.. r. 80, that the discretion was
admitted, but Judge Wills in his
concurring opinion excluded from
the exercise of such discretion ga
case in which the ground of refusal
had absolutely nothing to do with
the question in hand, as for in
stance, where the justices refused
the license because the applicant
had not taken out spirit license.
Reg. VS.. Sylvester 2 b. & S. 1922,
or where they had laid down gen.
eral rule that they would grant no
more licenses in the locality.
Reg. VS.. Walsall 3 G. l.. r. 100.
In such cases there is really no
exercise of discretion at all, and it
is very much as if the license had
been refused because the applicant
wore blue coat or white hat.
These authorities, which appear to
me to be based upon sound legal
principles, are clearly opposed tc
the right of the Minister of Interior
even admitting his discretion, tt
limit the number of retail spirit
licenses in Honolulu. That is /,
power which belongs to the Legisla
ture only.
Having reached these conclusions
it is unnecessary for me at thi
stage of the proceedings, to decide
whether or not the wording of tn
Statute gives the minister u discre
ton in the granting of the license il
question, for in either case l shoulC
regard the allegation of the petition
as sufficient TO make prim0 .Jact
case.
The demurrer is therefore over
ruled, and the defendant is allowed
until Monday the l1th instant, al
10 O'Clock a. m, to obey the alter
native writ issued herein.
A. S. Hartwell for plaintiffs; AT
torney-General for respondent.
SANFORD b. Dole,
Justice of the Supreme Court.
November 8th, 1888.
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