The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-10-31


plic1ut Co keep iufiamurabl. OF cxpin-
siNs oils tn quantities greater than fiy.
barrels az a time. IF the location
amonE other things. should b.
deemed suitable and proper" The or
diuluce Was held invalid. the court
say ing. among other things Ian
Euage better calculated TO cuabl. the
common Council TO arbitrarily control
the business. without any fixed az
known rules. can not well ~ imagined.
ne business OF keeping. STORING and
dealing IN such oils u legitimate bus
inssS. and every citizen has an inherent
right To engage tn the business upon
equal terms with any other citizen
In State -. Tenant. lilo -. e. GO. an
ordinance which provided that NO per
son should erect within the city limits
any house. etc. without having first
obtained permission from IN. Alder
men. was held unconstitutional and
void on the ground that u did not pre-
scribe a uniform rule of action. but
made the enjoyment OF ones oWu de-
pend upon the arbitrary discretion Of
the governing authorities.
In order to avoid the effect OF the
reasoning In the former Tai Ksc cass.
three arguments are presented on BE-
hali OF the respondent. First. that the
Legislature must b. deemed to have
Intended by the Act of iSsS uox in
question to put the occupation uf keep
ing lodEiuE-h house IN the category OF
occupations harmful in themselves. and
so io take this case out of the decision
tn the former Tai ksc case and brine
u within the decision In ThurSton ~
Bradley. supra. HUT the legislature
did not show any such intention. and
IL could not constituttonally declare an
occupation of this Kind to b. harmful
or dangerous in itself. 80 a. to enable
itself To enact n law ot this kind in re-
gard To IL. Secondly. "a - coutcndcd
that the statute should BE- held consti-
tutionai IL possible. and that in order
tU hold IL So IL should b. presumed
that the legislature intended that the
Executive Council should act upon le-
gal grounds only and also that the Ex-
cCutiVe Council did act upon legal
grounds only and not arbitrarily. Hut
IL Is not sufficient that the Executive
Council may act fairly under the
statute or even that IL has acted fair
~ in any particular ease. Tn. statute
u unconstitutional because BY its terms
the Executive Council may act arbi-
trarily however unlikely il may b. TO
do so. IL Is Contcudsd. thirdly. that
the Legislature has made the EN~cu-
tive Council n judicial tribunal for the
pun pose OF deciding upon the location
OF clearinghouse and that the dcCi-
sions of that tribunal are final and can
not be- inquired into by the courts. The
former Tai kcc case Is cited to show
| that the provision Of the statute which
requires the applicant to first obtain n
certificate ot the Beard OF Health In re-
/ gard to certain matters. would be up
held. and. IL So. u Is argued. the r.
| quiTcmcnt that the applicant shall FIRST
obtain the approval of the Executive
| Council should he upheld. hut the aC-
| ton 81 the Board OF Health is con-
trollcd within reasonable limits cor
must b.' in order to be- Cuustituttonan
by the provisions of the statute. while
the action OF the Executive Council Is
not controlled at all. The ease of In
re- Ta,su. 10 Haw. 7Oi. Is cited tn show
that the decision Of the proper cXccu-
tive officer that an alien Is within unr
of the classes prohibited by the statute
from landing Is conclusive and cannot
he reviewed by the courts. and. IL 50
Il Is argued. the Executive Council mas
be- given power to- make final decisions
| in respect tn the location of lodging
houses. But the decision of an immi
| grafton officer relates tu an alien whC
Is not tn the country and has mo- con
stitutional right tn enter. while the ap
pilCaut for license tn keep n lodging
house has or may have n constitutional
right to keep a iodginE-houss. suhiSr
only To reasonable restrictions. If ths
person desiring to land were a citizen
the decision OF the immigration Office,
could not he made final. because th'
citizen has n constitutional right q
land. although he may be required q
submit to- reasonable regulations pre-
sCIibed by law. We may add that tbs
Immigration officer acts I'm an CXCcu
tive. not judicial. capacity.
Since this case was submitted th'
respondent has died and his stiCcesso
in office has been appointed. The At
toTney General is OF the opinion tina
since the action is against the respond
en-; in his official capacity. IL will h
unnecessary To suggest his death OF
the record and that the judgment viii
be binding on his successor. and. NJ
objection being made on either side. ".
max" none ourselves. and file the de
Cision.
Tho judgment of the Circuit Iudg,
for u peremptoTy writ of mandamu
directing the respondent to issue the u
ceuSG to the petttiuuer Is affirmed