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

were among the reasons assigned b,
! the respondent for refusing the license
some which might properly appea
to his official discretion, and therefor
dismissed the petition with costs.
The petitioner appealed and tn
appeal was heard by consent at
specfel sitting of the Court held il
vacation.
Mr.. Hartwell for Petitioner urge,
that the statute left nothing whateve
expressly to the discretion of thu
Minister, and that by plainly pre-
scribing the acts to be performed, t
have implied thai no discretionary
power was intended to be given, anC
the fact that the Minister may by
Sect. Is prescribe Though not arbi
! trarily) regulations in the license
would seem to preclude a discretion
airy power in the granting of the
/ license. None of the predecessors Of
/ the present Minister have claimed
| this. power. Even under the Eng
! lish Statutes which seem 10 confer rs
| absolute discretion as can be expressed
in words, the Courts have held that
the exercise of discretion must not be
unjust as ''partial oppressive, corrupt
or arbitrary
Rer. rs. Young and Pitts, l Burr.
500.
Where Justices refused to grant a
license TO keep an inn, alehOuse, etc,
on the ground that they had decided
to grant no more such licenses, eX-
cept to persons who had during the
past year taken out licenses to sell
spirits because the public revenue
would lose considerably, the Court
held that this is not sufficient legal
ground for refusing"
Reg. rs. Sylvester Ct al, , B. and
s., 80.
This is not the same question as
would be presented by a refusal to
grant license iii a locality not here
tofore allowed to be used by such
business. One Minister may not
bind his successor by his unauthor-
lied acts, but when, acting under his
lawful authority, he has exercised his
discretion of granting license for
particular saloon, then the owner of
the saloon, having expended money
in fitting it up for this purpose, has
right to expect that it will continue
to be so licensed, rs long as he does,
or permits no acts whereby he forfeits
all right or claim for such license.
When dRy Minister has once eXer-
ciSed his lawful discretion in granting
a license there is no room for the eX-
ercise Of such discretion by the same
or by any succeeding Minister, unless
there is some act done by those who
received or have the benefit of such
license, whereby they forfeit the
right.
The English Courts in the follow
ing cases show how under their stat
utes they defined renewed license.
MwWjck rs. CodLiR, L. r. 8, Q. 3.
500.
Reg. rs. Justices Of lancashire, L.
r. s, Q. B. 81.
Reg. rs. Pilgrim, i. r. 6, @. Z. 50.
Mr. Justice Dole in his decision
the demurrer says after a
review of the authorities, These
are clearly opposed to the
right of the Minister of the Interior,
even admitting his discretion to limit !
the number of retail spirit licenses in |
That is a power which |
belongs to the legislature
Even English Courts do not cOnfine |
fdllddn1uS to directing that the APP |
plcation be heard
'In several cases the Court appears |
10 have considered the function of |
licensing Justices as ministerial only, |
md Mandamuses have been granted
where they have not determined ac-
;ording TO law, though they have
heard and determined citing
Reg. rs. De Rut-cR, L. r. l, @. B.
Div. 55.
Reg. as. liddIeScr, L. r. 8, Q. B.
81.
Reg. as. Justices Of Lancashire, L.
R. 6, Q. B. 9O7.
Counsel also cited in support of the
contention that no discretion was
-ested in the Minister.
The People as. Perry, - Barb. 2O6.
ZanOne rs. Mound city, 1O3 Ill. 552,
nd many others.
The Acknowledgement C. w. Ash
ord for the respondent submitted
hat the decision appealed from should
e affirmed.
The Statute (Sec. IA, Chap. fl, Laws
f 1852 confers a discretion upon the
Iinister; and this return shows that
iscretion has been fairly and judi
iOusly exercised.
If the discretion exists, it cannot be
by the judiciary.
High eX Leg. Rem. Secs. a, 10, "A.
The claim that the grant of for
Ter license, constitutes a vested right
unsupported by authority and I'M I
enable III principle.
BY THE CoURT.-There are three
questions raised by these {
rOceedings, and which have to be I
ecided on this appeal
First. Does the Statute of 1882 en- j
tied IAN Act to regulate the sale of
,irituous liquors. confer the right !
pom all persons to obtain a license c
pom giving an approved bond and l
lying the license fee? or has the q
mister of the Interior any discretion |
the matter? a
Second. If the Minister has a dis i
elton is the exercise of such discre-
Oh subject to review or control by 9
lis Court? d
Third. Is the discretion of the Min b
ter affected by the fact that licenses t
I'VE been granted to persons to retail b
irituous liquors on the premises n
yned by the Petitioners?
Section II of the "Act to regulate L
e sale of spirituous liquors. passed h
1882 provides that 1.-THE Minister ii
the Interior SbdH hare the pOWer to
ant licenses 10 retail SDirifuouS Ii
iU0rS, upon application iR Uritinq a
ItjHg the name of the UeHdOr and 81
he L,