The Hawaiian gazette., 1889-02-19

used will be regarded as peremptory
where the public interest or individu-
al rights require that it should be
done,n and in NeWbWgh Turnpike
Co. rs. Miller, 5 Johns. Oh. 113, "that
the word may means must or shall
only in cases where the public inter-
est or third persons have a claim de
j1re that the power should be eNer-
cised.N In the case, however, of the
People rs. Perry, Is Barb 2O6. referred
to by the plaintiff, peremptory
mandamus was granted to compel
the Mayor of Albany to issue a
license for the booking of emigrant
passengers, and the Court say this
license could only be obtained by first
giving a bond of the description and
tenor specified. Upon complying
with all these prerequisites, as / un-
derstand the law, any citizen has
legal right to exercise this VOCATION
Although this case appears at first
sight to be hostile to the view adopted
above, find upon examination, that
it is not necessarily so, for the res
pendent stated by way of defense,
that he refused to grant the license
for the reason that he supposed that it
was n matter resting in his discretion,
and that, in consequence of the frauds
practiced upon emigrants passing
through Albany, by persons heretofore
licensed, he had concluded that the in
terest and safety of such emigrants
would be better secured and promoted
If no such license were given or
granted" In other words he at
tempted to carry his discretion so far
as in effect to repeal the law, which
would be contrary to all the authori-
ties on the subject of official discre-
ton. Therefore, although the case
was correctly decided, the conclusion
of the presiding judge above quoted
was not necessary to the decision of
the case, and cannot be considered as
having weight as Il judicial precedent.
The respondent has shown, as APP
pears by his allegations and the evil
dence, that there were public reasons
against the granting of the license in
question:. and that he was actuateIl
by these reasons in refusing to grant
it, and he denies positively that he
based such refusal solely or at all on
the ground that he chad decided to
issue no more such licenses in said
Having decided that the
law gives the Minister of Interior a
discretion in the matter, it is not for
the Court to pass upon the sufficiency
of the reasons of the respondent for
refusing the license in question,
further than to ascertain whether |
he exercised a real discretion in |
the matter-that is, a conclusion |
based upon public grounds which
he had a right to consider as
an executive officer sworn to execute |
the laws, or whether he acted arbi-
trarily, from caprice or prejudice, and |
| consider an officer under the cir
may act from lofty public |
motives, and still be outside of his !
as, for. instance, if he |
should refuse such a license because |
he believed all traffic in LIQUOR to be |
injurious to the public. The grounds
upon which the respondent claims to |
have acted have been stated above, |
and | consider that there are among
them. reasons which may properly |
appeal to the official discretion of the |
The complaint is therefore dis
with costs.
A. S. Hartwell, for the plaintiffs |
Attorney-General, for the respondent. |
December 8, 1883.