The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-02-28
A LIMIT TO
DISCRETION
Attorney General Defines Liquor
License Power OF Territorial
Treasurer.

attorney General Dole rendered an
opinion yesterday to Treasurer Wright in
which he holds that the discretion of the
! Treasurer in the issuance of liquor l.
censes is limited, in that it must not be
arbitrary. Mr. Dole sas:
Territory OF Hawaii,
Office of the Attorney General
Honolulu, H. l.. Feb -, 1902
Honorable VIM II. Wright. Treasurer OF
the Territory OF Hawaii. Honolulu:
Dear Sir;--i beg 10 acknowledge receipt
or your communication OF February 2lst
in which you say:
Sections 42S-436 of the Penal Laws of
1897 authorize the Treasurer to grant Ger
tain liquor licenses upon the applicants
conforming with certain conditions nam
ed therein. Section i3S provides for the
establishing of limits or boundaries with
in which licenses issued under above Sec
lions shall carry on and transact such
business Has the Treasurer legal au-
thority to restrict the number OF licenses
to be issued within the limits or bound
aries when estabHshed?"
If you have power to issue licenses, it
IS discretionary. Legal discretion is "a
relative term, its meaning depending up
on the sense in which it is used and the
subject to which it relates. man has
discretionary power to invest and spend
his own money foolishly as long as he
does not impoverish himself or injure
others. To that extent his discretion is
absolute. But as a guardian or trustee,
he is bound to invest and spend his
wards money with reasonable prudence
and good Judgment His discretion is
limited The discretionary power given
by law to a public official is in the ma
ture of public trust, and, generally
speaking, is limited, not absolute
The leading case in these Islands in
regard TO liquor licenses is Bradley VS..
Thurston, Haw., 523. 1t seems to me
that the dissenting opinion of Mr. JUS
tee Dole in that case, to the effect that
the discretion to be exercised by the Ii
censing power, instead of being abso-
lutte, must be fair, reasonable and not
arbitrary, is in full accord with the
weight of American authority and with
the fundamental idea of government by
law and not by men. / think the law con-
templates that the licensing power in
issuing licenses shall be governed by
sound legal discretion, free from caprice
or prejudice, and uninfiuenced by motives
of self-interest, or friendship, or enmity.
The discretionary issuance of a liquor
license involves considerations inapplica-
BILE to pursuits which do not menace the
public welfare | think the Treasurer OF
the Territory, if authorized TO issue a
license, is justified in Withholding it
whenever in the exercise of a reasonable
and honest discretion, keeping the letter
and spirit of the law in view. he is sat
sfed that an increased number of licens
es in the desired locality would substan-
tally increase the difficulty of controlling
and minimizing the liquor evil
Liquor laws have been such a fruit
full subject of judicial decisions in all
parts of the United States, and from ev-
cry conceivable point of view, that it is
easy to find respectable authorities for
almost any position that can be taken
relative to them: but 1 think the weight
IF authority sustains the foregoing state
nent Very respectfully yours.
E. p. DOLE, Attorney General.