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

| slider the question whether such dis
, cretion is absolute or is subject to b.
received or controlled by this Court
, In the case of Zdnone IS. MOunC
city, 103 Ill. $50, cited by Counsel fo
the petitioner, a majority of the COur
held that the right, under the City
/, Ordinance, of the applicant to have {
liquor license was absolute on hi.
complying with the requirements O
the ordinance, and that the Court
would compel the corporate authori
ties by nlanddnlls to grant a license
where it was refused through mere
caprice.
1t is unnecessary for us to say
whether we concur in that decision OIL
not, as from the construction we have
placed upon our statute it is not APP
plicable.
The case of The People rs. Perry,
Is Barb. 206 was also cited. This
was an application for peremptUry
mandamus to compel the Mayor of
Albany to grant to the Telator q
license to carry on the business of
booking emigrant passengers. The
Mayor refused to grant the license for
matter resting in his discretion, and
that in consequence of frauds prac-
ticed upon emigrants passing through
Albany by persons heretofore licens-
ed, he had concluded that the interest
/ and safety of such emigrants would
be better secured and promoted if no
! such licenses were given or granted,
and therefore he had made up his
mind not to give such license to any
/ person.
But the Court held that upon giving
1 Il bond of the tenor aud description
| specified in the Act, under which such
! licenses were authorized to be issued,
any citizen was entitled to such
license as Il matter of legal right.
Under the construction given by the
Court to the statute in question in
that case, the decision was clearly
right; but we do not give the same
construction TO the statute in Question
in the case ut bar.
1t is established by all the authori-
ties, which it is the practice of this
Court to consider that Courts will
not interfere by mandamus with the
discretion of public officers when such
discretion has been exercised.
In The Queen rs. Price, l.. r., @.
B., p. AS, Mr.. Justice Blackburn says
"though this Court can compel by
mandamus the exercise of that dis
erection, it can never require its eXer-
else in any particular way. The Court
can order court of quarter sessions
to entertain Il case, and try whether
or not Il man is guilty; or which is
a better illustration, order q magis-
trate to hear all the evidence brought
against a man and determine whether
be will commit him for trial or not.
The Court could not order Il magis-
trate to commit because a magistrate
has discretion as to a c0mmittal for |
trial, and to order him to commit
would be to direct him to exercise his
discretion in particular way. There
fore, whenever it is q matter of dis
erection, all we can do is to compel the |
officer to take the matter into con-
sideration and decide upon it."
During the argument, and in the |
briefs filed, many English authorities |
were cited, referred to and commented |
upon; but it appears to us that'the |
effect of them upon the points in issue
before us has been miScOnCeiyed, and |
that instead of sustaining the conten-
ton made Oh behalf of the appellants, |
they when properly understood, have
quite the contrary effect. In ali the
cases where n mandamus has been |
asked for or granted, it has been to
direct the licensing authority to hear |
and determine the application.
The earliest ease cited, ReCUS. Young |
rt,.r H.
relied upon as an authority in sup
port of the contention that the dis
cretion should not be exercised arbi-
trarily, and was subject to the control |
Of the Court.
This case was not an application for
4 mandGmus, but was for leave to file
4 criminal information against two
Justices of the peace, for arbitrarily,
and unreasonably refus-
ng to grant a license to one Henry
Day to keep an inn.
In discharging the rule Lord Mans
ield said (pp. 561-562): "That this
Court has no power or claim to re- |
yiew the reasons of justices of the
peace, upon which they form their :
in granting licenses, by
way of appeal from their judg-
nents or Overuling the discretion
to them.n
"But if it clearly appears that the
Justices have been partially, mali t
iously or corruptly Influenced in the !
xercise of this discretion, and have ,
consequently abused the trust re- r
,osed in them, they are liable to
by Indictment or infor-
nation, or even possibly by action if
he malice be very gross md in 2
Irious.n :
Mr.. Justice Denison concurred and +
EXPRESSLY allowed the discretionary +
over of the justices in granting +
censes, without appeal from their =
pigments, or having their Just and +
Onest reasons reviewed by anybody. y
tut yet an improper and unjust eXer- =
Use of the discretion ought to be
nder control But il must be a clear .
nd apparent partiality or wilfUl mis-
ehavior, to induce the Court to grant +
n information, not Il mere error in "
n
Mr., Justice Foster cOncUTred in the Il
eneral principles laid down "He II
ecIared against increasing the num- !,
er of public-houses, and therefore Il
fought the justices far from being to -
anne in having ceme to resolution p,
OF to increase them.n
This case was decided in the year >,
IS, and the principle then laid down i
rs been followed down to the present