The Hawaiian gazette., 1889-02-19

| IOuhti anu IL timely " ouiiCI IL titS
future if the license should be re-
newed.
1t is necessary to the settlement OF
this case that the question of the dis
erection on the part of the Minister OF
Interior in the matter of issuing re-
tail liquor licenses, should be first
disposed Of The 14th section of the
Act to regulate the sale of spiTituOus
liquors, of the Laws of 1889, defines his
authority in the following words:
"The Minister of the Interior shall
have the pOWer to grant licenses to
retail spirituous liquors, upon appli-
cation in writing, stating the name of
the vendor and where the applicant in
tends to establish his place of business
in each district Our laws in giving
| powers to officials use a variety of
words which 1)T'imd fdcie denote a dis
erection; besides the words "shall have
the power above quoted, we find the
expressions, "may," "authorized'
and ''it shall be lawful In addition
to these are words expressly confer
ring discretion, such as, ''shall have
| power to prescribe such rules and
| regulations for the keeping of billiard
tables and bowling alleys as he may
! deem necessary and proper for the
public good;u Civil Code, Section
49, "The Minister of Interior may,
in his discretion, grant to any suita-
bic person or persons applying there
for in writing a license for one year
to establish a shipping Office" &C.,
| Civil Code Section 1870; see also laws
of 1852, Chap. 10, and laws of 1856,
Chap. 3, Sect L. But the words
"shall have the power' belong to the
| class of expressions primarily denot-
| ing Il discretion but which sometimes
| are mandatory on the officer to whom
| they apply. The circumstances in
| which these expressions are peremp-
tory are, when public interests or the
rights of third persons require them
to be so construed, and when there
are other words in the statute which
show that they are meant to be i'm
perative. (FQULGl' rs. Perkins, II H.,
273 and People rs. Supervisors, IS n.
Y, 1872 In the case at bar, it can
hardly be argued that the public
interests require that n license should
be granted for the sale of liquors at
retail at the keystone Saloon, even if
it should be conceded that they re-
quire that such traffic be carried on
in the city. The plaintiffs, however,
make the point that relying upon the
approval by the official predecessors
of the respondent, of the premises in
question as a suitable place for the
sale of liquors, they have expended
money in improving the same
whereby they have enhanced the
HrOlI no of pptN n sol nd
that the respondent has no right to
deprive them of this enhanced value
by refusing the license. applied for.
1t does not appear from the evidence
in the case how much money was eX-
pended in improving the premises
after the first liquor license was
granted for them in the year 1878.
The petition for the writ of man
damus alleges "that large expense,
tO-wit; over three thousand dollars
was incurred by your petitioners in
fitting up said premises as saloon
for the purpose of said business" No
further evidence was introduced upon
this point; it may have been that the
whole or the greater part of the said
three thousand dollars were expended
in fitting up the saloon upon the oc-
casion of the institution of the liquor
business there in 1875, in which case
such expenditure could not be said in
any sense whatever to have created Il
right on the part of the plaintiffs or
either of them to license. Nor do l
think that the expenditure of money
in improving saloon after it had
been licensed as such could bind
the discretion of. an official in such
case, if he had a discretion [
find no authority for snch con-
clusion of law. Does the stat
ute elsewhere show that the legis-
lature meant that the words shall |
have the pOWer,n should be manda-
tory on the Minister of Interior? | |
can find no evidence of such inten-
ton; on the contrary there is intrin-
sic evidence that the legislature at |
the time of passing the act, consider
ed that these words conferred dis
erection, inasmuch, as in the 18th |
section of the act they have used the
same words and followed them with |
other words making them mandatory, |
as follows: "The Minister of the In |
terror shall have the power, |
and it shall be his duty to fix the |
limits or boundaries Within which
those obtaining a license contem-
plated by this act shall carry on and
transact such business,p etc. There
being no such explanatory words
denotihg that the words "shall have
the power" as used in the 18th section
of the act authorizing the Minister to
grant licenses, are meant to be
they must be taken in
their ordinary meaning which is that
they confer a discretionary power.
q PriDla ,facie those words ft shall be
lawful import a discretion, and they
must be construed as discretionary
unless there be anything in the sub
ject matter to which they are applied,
or in any other part of the statute, to
show that they are meant to be inn
perative." Gin re Newport Bridge, 2
E. & f., BID. This authority is
quoted with approval in Queen as.
Bishop Of Oxford, / Q. B. Div. l.. r.
257-S and in the same case on appeal
id 553. In the latter it was laid down
that the burden dis upon those who
assert that such words are imperative,
to prove it. 1t therefore seems clear
to me that q discretion is conferred
IN the Minister OF Interior by the
statute in the matter of granting
retail liquor licenses.
This view is consistent with the
opinion of the Justices of the Su-
Dreme Court furnished to the Legisla-
5ure of 1888 upon certain questions
submitted to them by that body in
'egard to the discretion of the state
N iSsuiDr licenses and with ChaDtar