The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-02-19

fere with the discretion of the Justice
in this matter. But if we are aske
by them as to the exercise of thei
discretion, we think they wer
wrong.n
The Justices did not, as stated b.
Counsel for the appellants, give as
reason for requiring the applicant t
take out a spirit license, that the pub
lie revenue would suffer; that wa
urged only by Counsel on the argu
ment.
The cases cited in the quotation
from Shortt on Mandamus, do no
appear to us to support the appellants
contention. They are all cases il
which the Court directed the Magis
trates to hear the applications.
Having decided that the Ministe
has discretion, we are also of opin
ion, upon the construction of the sta
tute, and adopting the authorize.
cited and referred to, that such dis
erection is absolute, and is not subject
| to be reviewed or controlled by thi;
| Court.
We are also of opinion that the dis
cretiOn of the Minister, is the same il
| respect to granting what are called by
Counsel for the Petitioners, renewals
of~licenses, as in granting licenses, in
the first instance; we fail to see any
thing in the statute placing such
licenses on different footings. No
| part of the statute can be construed
| as giving to any holder of a license,
or the owner of the premises upon
which spirftuous liquor is licensed to
be sold, any vested interest in, or
legal claim to have such license con
tinued.
1t may be said that the construction
which we have placed upon the sta
l tute, gives to the Minister the right
to refuse the granting of any licenses,
and that the discretion may be arbi-
trarily exercised, and that it is I'M
wise and improper to place such q
wide discretion in one individual, but
that argument we cannot consider.
The legislature having given such
discretion, it belongs to that author
ity and not to this Court to limit it.
Should the discretion be abused, the
Legislature may bya vote of censure
upon the Minister, or by amending
the law, control such discretion, or
provide other means for regulating
the issuance of licenses.
In the case of Sharpe as. Wakefield
L.. X. q q. b. Div. G6, the Justices had
refused to renew license on the
grounds of 1.-THE remOteness of the inn
from police supervision and the
character and necessities of the neigh
borhood, " and the Court held that the
discretion of the Justices was the
same in granting or refusing renewals
of licenses as in granting original
licenses. Wills J. Up. so says as by
the Act there was absolutely no dis
tinction between applications for
licenses made at the annual general
licensing sessions by a person who
did not, and those made by a person
who did already hold a license, it
followed that there was no limit, to
the discretion of the Justices in the
case of renewal any more than in the
case of q grant for the first time.n
As it appears TO us, that there has
been some irregularity in the pro-
ceedings, we think it is proper to
state what in our view the practice in
for Writs of Mandamus
should be, although no question has
been raised in this case, and although, |
The petition in this case was entitled
and drawn according to the practice
which has heretofore prevailed here,
and which appears to prevail in some |
of the States of the United States.
The petition itself should not be en-
titled as personal action. 1t NAV |
be entitled " In the matter of an APP |
pllcatlon of ---- for Writ of |
Mandamus," etc. 1t should present
to the Court prjDlu fdcie case of
duty, Oh the part of the respondent to
perform the act demanded and an
obligation to perform it, and should
also anticipate and answer every
possible objection or argument in
act, which it may be expected will
De argued against the claim.
The truth of the facts set forth in
he Petition should be shown by the
oath of the petitioner and. where
necessary by the afiidavits of others.
10 that the whole of the Petitioners
,ase may be apparent to the Court
when the application is made.
The alternative Writ must be suf1i-
lent III itself to shew precisely what
claimed, and the facts upon which
he claim is made. The petition is
10 part Of the pleadings. The alter
lative writ takes the place of de-
laratlOn and the return, motion to
uash, or demurrer should be to it and
lot to the petition.
If the respondent shows cause, the
should set forth all the facts.
pom which the respondent relies, so
hat the Court may judge whether
he cause shown is sufficient, without Il
aldng oral testimony. Affidavits
1ay be made by other parties than |
ne respondent. If new matter is set 5
p, the Court may, if it sees fit. allow I
in reply.
See Moses on Mandamus, Tapping
II Mandamus, High on Elk. Rem. 7
Looking at the petition in view of a
he opinions hereinbefore expressed, G
e think that the alternative writ t
hight well have been denied, except
nat the Justice issuing it might have I
fought the question was of sufficient t
Importance to require an authorita-
We decision by this Court. !
The appeal must be dismissed with /
)sts. q
A. 5. Hartwell for plaintiffs; Attor- 5
ey-General for Respondent.
Honolulu, Jan. 22d, 1889.
While | agree with the conclusion
rived at in this case, / still hold TO
le reasoning of the decision appealed