The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-06-26

city may Icons
persons they find proper engage temporary
transient business &c The held the statute uncon
stitutional, SAYING
The Legislature has full power regulate business
but Its regulation be by different principles
from those which the regulations business
dangerous the public business no citizen
has an absolute right to the other all citizens have
the right and equal right engage The difference vital
What the regulation prescribed by this Act? It simply
prohibition of the business unless license is obtained from the
officers of the municipality conducted
If the terms which such license should be granted de-
fined different question would be presented If the Legislature
believes that fraud and deception increasingly liable be
pracced in the conduct of kind of business
ness may undoubtedly require by of security against
such fraud and deception the persons engaging in such business
TO take out licenses prescribed by law and applying
equally to all citizens In Massachusetts, AN Act prevent
and punish fraud in sales of goods and merchandise
public private sale by tnean vendors and regulate such
sales recently passed The Act attempted define timer
vendors include ordinary transient business provided
security for their by requiring deposit of money
be made with the State and by other regulations and required
the of the license fee charged be ascerand accord
ing to law and license to be issued to whoever complied with
the law This Act held violate the Massachusetts
Constitution by majority of the Supreme Court Common
Gdh CFOUeH 156 Mass 215 However such an act might
be regarded under Constitution it wholly different from
the Act under discussion which only forbs the transaction
of the business without license but permits the local authority
grant license and refuse another pusu-
of discretion unguded and unraned by law 1t
The license such persons he finds be proper
persons temporary business for the sale of goods,
wares and merchandise and amy person IN such nu
without obtaining license therefor shall be guilty of
memeanor The unresraned of selecting the favored
recipients of license the all persons who
obtain this special privilege forbidden the
business under penalty that extend fine of 5000 and
Imprisonment in the jail for six months If the word
may here used could be given the effect of SHALL the qres
would be presented little different form. 1t would be
duty may shal necessary give effect to
Act and the would permit such construction. But
here the plainly forbds that construction The
dtions of the Act do support mandate to license
upon compliance with rules established by law; the contrary
they clearly provide for the exercise of discretion unreraned
by law The phrase such persons he finds proper to
engage temporary business is vague support any
definite judicial quasi judicial action. There not regula
established which the licensees bound by law to observe
and there absolutely legal test and indication of who
may be proper person. Without test fixed by law
person be proper person conduct
ordinary and lawful business The mayor authorized to select
those legally presumed be proper persons such he
finds proper the legal effect of this phrase is such
persons he peases So that may construed SHALL
would then say the shall license such
he pleases'
We have cited referred length the
question of the consutionay of statute like that in
on it could be construed only comforting absolute
discretionary power But do decide question of
the constionaty of statute unless obliged to- and then
possible only after full argument 1h question has not been
argued all in this and already stated counsel for the
applicant expressly comedies that the would be cons
tona even construed absolute discretion But
we'll consider the question of the construction OF
the coming pretty close the question of its
constituonaty should be construed the Minister
contends be- If that construction should be placed
upon the would be either constitutional unconst
tuona unconstitutional the Court should if possible,
said in State COnlOn conrue not conferrng
discretion give effect it, If constitutional
enough said show that should not be construed
placing such extraordinary the hands of person.
unless the Legislature shown very clearly that intended
case therefore, ay should in this instance be
strued as "shall," if possible.
u.s. therefore, look secondly the language of the statute
ITSELF capable of this construction The statute
relates to classes of licenses of widely different
The word ay used in the first section as ap
pcabe to all these have been used in
elastic if used with reference and in close connec-
ton only, the with the words IN
question in Bradley Thston In the portion of the statute
which relates licenses importation and sale of alcohol
and poisonous drugs the substance of the first secon prtG
facie enong discretion is repeated namely the words
(Sec o. Minister of the Interior hereby authorized to
grant, &c general the portion of the statute relating
to particular of licenses contains such words but Is
framed the portion in question relating to odgnghouses
Among these NAV that relating the sale OF