The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-10-15

OPINION OF THE COURT BY BECKER
TON, ].
The defendants were charged in
the Police Court of Honolulu on the
2Sth of May, 1890, as follows: "Play-
ing noisy instruments after 10 P. M,
on May 26th, 1890, in Honolulu, con-
trary to the terms of their theatrical
license, and contrary to Section 50 of
the Civil Code as amended"
After a number of continuances,
on June 9th, 1890, defendants coun-
sci filed the following: ut is adj
mitted by defendants that they used
noisy instruments in the Chinese
Theatre during theatrical exhibit
ton on the evening of May Goth,
1890, after 10 o'clock"
June 18th. defendants were found
guilty and were fined one dollar each
and costs. Defendants then ap-
pealed to this Court on two points of
law: First, "That said judgment
should have been rendered in favor
of defendants because the Minister
of the Interior has no authority to
issue any license for carrying on a
theatrical exhibition subject to any
conditions which are not authorized
by the statutes of the Kingdom.
Second, "That the conditions in de-
PENDANTS license for the breach
whereof judgment was rendered
against them, was contrary to Arti-
cIes l., TX. and XIV. of the Consti-
tuition of the Kingdom"
BY THE COURT.
Section Sc, Compiled Laws, pro
| vides that, the Minister of the In
terror may license any theatre, circus
+ for such time, not exceed
ing one year, and upon such terms
and conditions as he may think rea-
| sonable * Section 9S pro-
| vides the penalty for the violation of
! the terms and conditions of such
license.
The first license containing con
dition in regard to musical instru-
ments is dated May 22d, 1890. The
condition reads, Provided there
shall be no playing of musical in
struments, beating of gongs and
other noisy musical instruments
later than 10 O'Clock at night" The
next license is dated May 26th, 1890,
and contains the same condition, in
the same words; this is the license
under which the defendants were
charged and prosecuted. 1t is con-
tended by counsel for defendant that
this condition or restriction was I'M
reasonable. 1t would seem from the
papers before us that the Minister
was of the same mind, for in the
license dated June 9th, 1890, the
condition reads: Provided that
there shall be no beating of gongs or
playing upon noisy instruments
later than 10 o'clock P. NJ, and that
no musical instruments of any kind
shall be played later than IL 80
pm June Both, this hour was
changed to IL o'clock P. NJ, and
continues the same up to July 25th,
the date of the last license before us.
There is no doubt that the statute
gives the Minister of the Interior
authority to impose terms, restric-
tons and conditions in licenses for
theatres, exhibitions, circuses and
shows, but they must be reasonable,
not restrictions that would SO cripple
an entertainment that it would cease
to be what it was intended to be-
For instance, it would be an I'M
reasonable condition to make in a
license issued to an opera company
performing here that they should
not use certain instruments in their
orchestra because they they were
noisy, or that the chorus should not
sing after 10 o'clock, because they
made more noise than a person sing
ing a solo, Notwithstanding the fact
that the performance might not be
finished by that hour. And further,
as in this case, to make 1T condition
that after 10 p. NJ. there should be no
playing of musical instruments at
all. That is the condition in the
license dated May 26th, the one
under which defendants are charged,
and the only one that we have under
consideration in this case Ten
o'clock P. N. is not an unreasonable
hour, and perhaps IL P NJ might be
considered the same, to which a pub
lie entertainment mi ght be extended.
Theatrical performances and enter
tainments of that nature rarely ter
inmate before Il P N. The law as
tregards licenses must apply equally