The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-02-28
A lIMlT TO
DISCRETION

Attorney General Dole rendered an
opinion yestcid day to Treasurer Wright in
which he holds that the discretion of the
Treasurer in the issuance of liquor IL
eenses Is limited. In that It must not be
arbitrary. Mir. Dole sas:
Territory OF Hawaii,
Office OF the Attorney General,
Honolulu, IL. l., Feb. 20, 1902
Honorable VIM. II. Wright. Treasurer of
the Territory OF Hawaii, Honolulu:
Dear Sir:-l beg to acknowledge receipt
OF your communication of February 2lst,
In which you say:
sections i2S-i36 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 iSS provides for the
establishing of limits or boundaries with
In which licenses Issued under above sec
TONS shall carry on and transact such
business Has the Treasurer legal au-
thorlty to restrict the number of licenses
to be issued within the limits or bound.
aries when cstabllshed?'
IT you have power to issue licenses, IL
Is discretionary. Legal discretion is IA
relative term, its meaning depending up
on the sense In which II Is used and tho
subject TO which IL relates. man has
discretionary power to invest and spend
his own money foolishly, as long as hc
does not impoyerlsh himself or injurc
others To that extent his discretion Is
absolute But as guardian or trustee,
he IL bound To invest and spend his
wards money with reasonable prudence
ana good judgment His discretion ~
limited The discretionary power given
by law to 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 H. Bradley w.
Thurston, Haw.. 523. 1t seems TO mo
mat the dissenting opinion of Mr.. Jus
tee Dole In that case. to the effect that
the discretion to be exercised by the IL
censing power. instead of being abso-
Iute, 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 a
sound legal discretion, free from caprice
or prejudice. and uninduenced by motives
OF Self-intercSt. 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, IT authorized TO issue a
license. Is justified In withholding Il
whenever in the exercise Of a reasonable
and honest discretion. keeping the letter
and spirit Of the law In view he IL sat
isied 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
fui subject OF judicial decisions In all
parts OF the United States. and from ev-
cry conceivable point of view, that 1t Is
easy to find respectable authorities for
almost any position that can be taken
relative to them; but j think the weight
OF authority sustains the foregoing state
meht' Very respectfully yours,
IL. u. DOLE, Attorney General