The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-08-15
ORPHEuM LICENSE
Chas. S. Desky Loses His
License Suit.
Supreme Court Affirrns Decision of
Mandamus IS Discharged.

| III Lhe- matter OF the application of
Charles S. Desky for a writ of manda-
mus against James A. King. Minister
OF the Interior, on appeal from the
Circuit Judge Of the First Circuit, the
Supreme Court in an opinion by Jus
tice Frear, cOncurred in by Chief
Justice Judd and Justice Whiting. has
affirmed the decision of the lower
court, dismissing the petition and dis
charging the writ.
In it's opinion the Court says among
other things:
This is an application by the owner
and proprietor of the Orpheum Theater
in the City of Honolulu for writ of
mandamus to compel the Minister of
the Interior to issue To nim licenses to
give theatrical performances at certain
times at the said theater. The Circuit
Judge allowed an alternative writ and
after hearing upon that and the re-
turn dismissed the petition and dis
charged the writ. The petitioner now
comes here on appeal
In view of the petition, writ and re-
turn and the arguments thereon, there
seems to be but one question to be de-
cided, namely, whether the provision of
each performance (the refusal to pay
which fee is given as the main reason
for the refusal to issue the licenseS) is
constitutional or not. There is a Stip-
iulatiOn on file that pending these pro-
ceedings the petitioner may apply for
licenses, the Minister grant them, and
the petitioner pay the statutory fees
under protest and without prejudice to
his rights in this case.
~ A.
toner is that the portion of the gen
eral license act which relates to pub
lie shows was intended to impose mere
] ly a license fee as distinguished from
a tax: that is, a fee for the purposes
Of regulation and not for the purposes
of revenue, and that therefore the fee
must be reasonable in amount as de-
termined by the extent of regulation
necessary, and that the fee in question
is excessive and therefore uncOnstitu-
tiOnal.
There is a marked distinction be-
tween a license fee proper and a tax
upon an occupation. The former is i'm
posed in the exercise of the police pow
er and in general must be limited by
the extent to which regulation is rea-
sOnably required. The latter is i'm
posed in the exercise of the power to
tax and is subject to no such restric-
ton. The question whether a fee has
been imposed for purposes Of regula-
ton or of revenue has generally arisen
under ordinances passed by municipal
governments acting under powers del
egated by legislative bodies. In such
cases construction of the statute del
| egating the legislative power has often
| been necessary in order to ascertain
the extent to which the power has been
| delegated. If a municipality is given
power merely to license or to regulate
| occupations, it of course cannot tax
| them. 1t can impose fees for the pur-
poses of regulation only and must be
, limited to such reasonable amounts as
the purposes Of regulation require in
the particular cases. Such fees may
cover the cost of the issuance Of the
license, the expenses of necessary pO-
lice supervision and inspection and the
incidental expenses to which the pub
lie may be put by reason OF the eXer-
else of the occupation. In some cases
any more than a nominal fee might be
excessive. In other cases, as In the
case of vendors of Intoxicating liquors,
the fee may be very large-even so
large as to be prohibitive of the bust
ness, ii he business is regarded as
harmful or dangerous in itself and not
merely by reason of the manner in
which it is carried on in particular
cases On the other hand, If the mu-
nicipality is given the power to tax II
may impose fees without reference 10
the question of regulation. the amount
of which is a matter within the diScre-
/ ton of the power imposing them, sub
iect of course, to constitutional reStrlc-
tions. and Of course the tax could not
be made so large as TO be prOhibitive
of the business. for that would defeat
RI
power to tax was made.
! Whether the fee in the present case
would be excessive if it were imposed
for purposes of regulation only is
question that we need not decide, for
in our opinion it may be sustained as
TO its amount by reference to the pow
er to tax whether it may be sustained
by a reference to the police power or
not. We, however, call attention to
the fact that the business in question
is one that is usually regarded as call
ing for more or less police supervision,
generally requiring the attendance OF
one or more police officers at each per-
Torrance TO control the arrival and de-
parture of vehicles and for other pur-
poses.
! This case differs from those chiefly
relied on for the petitioner in that the
statute in this case was passed by the
I Legislature itself which was free TO act
under either the police power or the
tax power or both subject only to con-
stitutiOnal restrictions, while those
were cases of ordinances passed by mu-
nicipal governments acting under linn
tied delegated powers-with. in fact.
! only power TO license or regulate and
not to tax. 1t is, however, cOntended
on behalf of the petitioner that the
Legislature in passing the portion of
the statute in question intended to act
solely under its police power for pur-
poses of regulation and did not intend
to exercise its power to tax. We can
not so hold. This is a portion of
D., comprehensive act relating to licenses,
some portions OF which apparently
We're intended chiefly for purposes of