The Hawaiian gazette., 1907-06-18

NOT CAPRICE

] iHe bohru or License commissioners
held another meeting Friday after
noon. At this meeting opinions by At
torney General Peters on several points
OF the new liquor law, which had been
requested, were presented. Among
these was the opinion holding that Act
20 OF the Session Laws of 1906 which
provides for the dispensing OF liquor
to members OF social clubs, Is stu In
force.
In another the Attorney General held
that the board had power to grant
hotel and restaurant licenses and at the
same time to refuse an application to
exercise the license at all times after
the usual closing hours and on Sundays
and during election hours. Such a re-
quest, 1t Is held, is gauged by the Same
rules as any ordinary application for
license and may be refused by the
board should 1t in the exercise of It's
sound discretion deem such action ad-
visable.
An opinion on very important ques-
tion raised by Commissioner Lucas,
holds that the discretion reposed In the
board to grant or refuse licenses is q
sound legal discretion, to be exercised
ing to caprice or prejudice. At the same,
time there is nothing in the opinion, as
there Is nothing in the act. to indicate
how the question can be raised and
tested as to whether any particular act
| of the board was within the legal dis
cretion OF the board or was the result
of whim or caprice, provided the action
was formulated according to the usual
course of proceedings, In fact there
Is a very widespread opinion that so
long as the board carries out the forms
of examination, consideration and ac-
tion, there is no way of showing. even
IL 1t should be the fact. that the ac-
ton itself was the result OF prejudice
or caprice.
During the course OF the meeting At
torney General Peters was asked to
appear before the board and an In
formal conference between him and the
board took place as to the powers and
duties OF the board and appropriate
methods OF procedure.
The text of the Attorney Generals
opinion on the powers and discretion OF
the board is as follows:
June 13. 1907.
opinion No. 524. In the Matter of the
Interpretation Of Section 4 of Act
1l9. Session Laws Of 1907.
To the Honorable the Board of Ii
cense Commissioners of the County
of oahu, Honolulu, H. T.
Gentlemen: Your request for .he
opinion Of this department in the above
entitled matter has met with my con-
sideration and l beg to advise as fol-
lows:
The right of licensing boards to ex-
ercise discretion in granting and re-
fuslng licenses depends on the wording
of the statutes regulating the licensing
system. Under the local act subject to
Sts conditions and limitations, the
board may exercise its discretion in The
grant. refusal, suspension or revocation
of licenses. This discretion is a sound
legal one, to be exercised wisely and
not arbitrarily or according to caprice
or prejudice. The term itself implies
that the decision shall be the outcome
OF examination and consideration. In
other words, II shall constitute the dis
charge of official duty and not mere
expression of personal Will. An arbi-
trary disapproval, without an examina-
tion of relevant facts expressing noth-
ing but the mood Of the officer, IL not
the exercise Of a discretionary power
No better precedent can be followed
than that of Bradley V. Thurston, re-
ported in the 7th of rIaaiiian Reports,
at page 523. That case was an appi.
cation for "A writ of ma liitmus direct
ed to the Minister Of the Interior 20
compel him to grant TO the relator a
license to sell spiritupus 'quor. In his
return, the Minister admitted the re-
fusel to issue the license, aud alleged
that such refusal was for the reason
that he deemed II undesirable in the
public interest that a retail liquor sa-
loon should be established or con-
tinued In the premises for which the
license was requested and set forth
various reasons for arriving at such
conclusion. Obviously there had been
an examination and consideration and
BONA iide exercise of discretion result
ng in decision based thereon.
And the court held
'Havlng decided that the Minister
has a discretion, we are also of the
opinion upon the construction OF the
statute and adopting the authorities
,ited and referred To that such dis
'retion Is absolute and Is not subject
q be reviewed or controlled by the
'ourt."
Power To regulate and control is to
,e Interpreted along similar lines. but
my and all rules and regulations must
% reasonable and calculated only to
AIRY out the purpose OF the act Tho
oregoing is merely in the abstract TO
erve az a possible guide. Whether the
rant or refusal OF license Is the re-
ut or the exercise OF sound discre.
ion or "A rule or regulation IN within
he powers OF the board under ths
rant of power TO regulate AVID cons
rol licenses" depends upon each indi.
ldual case, The scope OF Section 4
an only be realized az questions are
ecided as they arise,
Hoping that the foregoing meets with
our request, | have the honor 10 be,
entlemen. very respectfully yours,
u, q. PETERS,
Attorney General,