The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-08-23
OPINION OF THE COURT BY FREAR. ]


This application by the and proprietor of the Or
pheum Iheaer the city of Honolulu for of mandamus
compel the Minister of the him licenses
give theatrical performances certain times the said theaer
The Circuit Judge allowed and hearing
upon that and the dismissed the petition and discharged
the writ. The petitioner comes here appeal.
In view of the petition writ and return and the arguments
thereon there seems question decided namely,
whether the provision of the prescribing fee of five dol
lars for each performance he refusal to which fee given
as the main reason for the refusal to issue the lcene)
There stipulation file that pending these
proceedings the petitioner apply for licenses the Minister
grant Them and the petitioner the statutory fees under
and without prejudice to his rights in this
The contention behalf of the petitioner that the portion
of the general license which relates to public shows econs
9O93 Act Ga of 1896; Sections 1912 Civil Laws
intended impose merely license fee distinguished from
that is fee for the purposes of regulation and not for the
purposes and that therefore the fee be
able amount determined by the extent of regulation nec
sa and that the fee in question excessive and therefore I'M
constitutional
There marked distinction license fee proper and
upon occupation. The former imposed in the exercise
of the police power and general must be limited by the extent
which regulation reasonably required The latter imposed
in the of the and subjec such restrlc
question whether fee has been imposed for purposes
regulation has generally under ordinances
passed by municipal governments acting under delegated
by legislative bodies In such construction of the statute
deegang the Legislative power has often been necessary III order
the which the power has been delegated If
municipality is power merely license regulate
cupao it of course cannot tax them 1t can impose for
purposes of regulation only and must be limited such
able the purposes of regulation require in partcu
Such the of the of the lie
and the incidental expenses which the public be by
of the exercise of the occupation In
than nominal fee might be In other in the
case of vendors of Intoxicating liquors. the fee be LARGE
large be protive of the business if the business
regarded harmful dangerous itself and merely by
of the which carried particular
On the other hand if the municipality given the power
impose fees without reference the question of regulation,
the amount of which within the discretion of the
power imposing them, of constitutional
and of the could be made large be
pobve of the business for that would defeat the purposes
for which the grant of power made
Whether the fee in the would be excessive if it
imposed for purposes of regulation only that
need decide for opinion be sustained
its by reference the whether be
sustained by reference the police We how
call attention to the fact that the business question
that usual regarded calling for less police
vision generally requiring the attendance of police
officers each performance control the arrival and departure
of vehicles and for other purposes.
This differs from those chiefly relied petitioner
(see Tn Wan Yin, Rep. 7O1 City of
Otnna,rn Zeknd % Ia 622; ChHrers People, Mich
49, in that the statute in this passed by the legislature
itself which free under either the police power the
both subject only constitutional restrictions while
those were cases of ordinances passed by municipal governments
acting under limited delegated powerh in fact only power
license regulate and 1t Is however, contended
behalf of the petitioner that the legislature in passing the
portion of the in question intended solely under It's
police for of regulation and did intend
ercise We hold This portion of
a comprehensive relating licenses portions which
apparently intended chiefly purposes and
others clearly chiefly for purposes of We
select certain parts and that in passing them the eia
intended to exercise its police only and that in passing
other parts intended exercise its taxing only It pre-
naby intended the that it did by virtue of
every power had We could hardly attribute the legislature
the absence of clear proof intention act in the
of of its powers the be held unconstitutional
unauthorized OF that when might have
passed the consttutionay in the exercise of different
power which it undoubtedly possessed The presumption is in
favor of the constutionaly provisions
question be upheld valid exercise of the police
power probably designed partly for and
partly regulation and therefore passed in the exercise of both