The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-10-31
is AFFIRMED
Tai kee Gets a Lodging
House License
SUpr sme Court Finally Puts an End
ovsxsd and OFT Repeated
Litigation.

In decision handed down yesterday
the Supreme Court settles the litigation
over the application OF Tai Kee for a
clearinghouse license in the neighbor-
hood of Makiki and Beretania street.
II will be remembered that property
owners in the vicinity endeayored by
petitioning the Government and inyok-
ing the aid OF the courts TO prevent the
issuing OF the license. The law OF the
case is thus laid down in the syllabus:
The provision OF the statute CAct Is.
Laws OF 1881 that no license shall
be issued for any lodging or tenement
house, hotel. clearinghouse or res
taurant to- be established or main
tanned in any location which In the
opinion OF the Executive Council Is
unsuited for the purpose. or which
the Executive Council believes To- be
objectionable is void. for the reason
that IL subjects the constitutional
rights of persons To the arbitrary dis
erection of the Executive Council and
contains nothing to- guide or control
the exercise OF its discretion"
The opinion OF the court Is by Justice
Frear and recites:
This is a petition for n writ OF man
damus to compel the respondent. j. y.
King, Minister OF the Interior. to- issue
to the petitioner. TAI Kee. n license to-
keep a clearinghouse. The parties and
the clearinghouse in question are the
same as in the case OF Tai Kee vs.. Min
lister of the Interior. IL Haw. 80. and
the allegations OF the petition are much
the same. In that case the respondent
contended that the statute gave him
discretionary power toErant or refusea
clearinghouse license. but We held that
the statute made IL mis- duty to- grant
the license upon the applicants COM
pliance with the terms OF the statute.
The provisions OF the statute as II
then stood are set forth in the decision
in that case. Since then the LegiSla-
ture has amended the. statute by pro-
viding (Act IS, Laws OF 1881 that no
license shall be issu ID for any lodging
or tenement house. hotel. boarding
house or restaurant to be established
or maintained in any location which In
the opinion OF the Executive Council Is
unsuited for the purpose, or which the
Executive Council believes to- he objeC-
tionable." Acting under this provision,
the Executive Council. To- which petit
toners application for license was
referred by the respondent. passed the
following resolutions: Resolved, That
in the opinion of the Executive Coun-
ell the maintenance OF a lodging and
tenement house by Tai Kee on the cor
per of Beretania and Pensacola streets
such as he has heretofore carried on
in said locality-is Objectionable; and
that the Executive Council recon-
mend to- the Minister OF the Interior
that we deny the application OF Tai
kee for a renewal OF his license To
maintain a lodging and tenement house
at the corner of Beretania and PenSa-
cola streets" This action OF the Exec
utive Council is the only ground relied
upon by the respondent for his refusal
to issue the license.
Assuming that the resolutions are in
conformity with the statute (Which Is
not altogether clearl the sole question
to be decided Is whether that provision
is constitutional.
The decision in the former case was
based upon the construction OF the
statute. but the court found that II
could not very well avoid considering
| to some extent the question of the con-
stitutionality OF the statute. and 1t was
in part to avoid holding the statute I'M
constitutional that the court construed
L IL tO ut IL - tNAtNAN AttAAs
the reasoning in that case that IL the
statute could have been construed only
as comforting discretionary power upon
the Minister to- grant or refuse the IL
cense. il would have been held uncon-
stitutional. 4 distinction was drawn
between occupations which may be re-
garded as harmful or dangerous in
/ themselves, such as that of selling in
toXicating liquors, which was involved
| in the case OF Bradley vs.. Thurston. .
Haw. 523. and those which, like that ot
keeping n clearinghouse, involved IN
| the present case. are necessary To- the
welfare or convenience of the Commu-
nifty and which are harmful or danger
Gus. if at all. only because OF the par
| ticular way in which they may be con-
Quoted. In the former no person has
an absolute right to engage: in the lat
| ter all citizens have a right and an
| equal right to engage. The latter are
not subject to the same degree OF con
troll as the former. The former may he
re gulated or restrained to any extent
even to the extent of prohibition; the
latter may be regulated only to rea'
| sonab!e extent and with reference q
the evils to be remedied or avoided. In
regard to the latter the court said;
The Legislature itself could not con
lstitutionally impose unreasonable al
arbitrary restrictions upon such pur'
suits: much less could 1t delegate suCt
power to any other person or body. II
may itself impose reasonable Condi
tions or it may place considerable dis
cretionary power in executive officers
but in the latter case there should b'
something in the statute TO guide oi
control the action of the officers.
The provision OF the statute now II
question in terms delegates to the EN
ecutive Council arbitrary power Will
reference TO the location OF lodging
houses. and contains nothing to guild
OF control the action OF that body II
this respect. II is clearly unConstitu
tional. In addition to the authorities
both Hawaiian and American. relie'
on in the former case. the following