The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-06-15
DISCRETION, NOT CARPICE

how the question can be raised ant
tested as to whether any particular ac
of the board was within the legal dis
cretion of the board or was the result
of whim or caprice, provided the actor
was formulated according to the usua
course of proceedings. In fact there
is a very widespread opinion that sc
| long as the board carries out the forms
of examination, consideration and ac-
| if it 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
119, Session Laws of 1907.
To the Honorable the Board of Lii
cense Commissioners of the County
of Oahu, Honolulu, H. T.
Gentlemen: Your request for The
opinion of this department in the above
entitled matter has met with my con-
sideration and / beg to advise as fol-
lows:
The right of licensing boards to ea-
ercise discretion in granting and re-
fusing licenses depends on the wording
of the statutes regulating the licensing
system. Under the local act subject to
it's conditions and limitations, the
board may exercise it's 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 it shall constitute the dis
charge of official duty and not mere
expression of personal will. An arbi-
trary disapproval, without an examina-
ton of relevant facts expressing moth
ing but the mood of the officer, is not
the. exercise of a discretionary power.
No better precedent can be followed
than that of Bradley y. Thurston, re-
ported in the 18th of ITaNailan Reports.
cation for a writ of ma Gtmus dire -
ed to the Minister # the Interior o
compel him to grant to the relator ~
license to sell spirituous ,iquor. TE his
return. the Minister admitted the re-
fusel to issue the license, and alleged
that such refusal was for the reason
that he deemed it undesirable in the
public interest that 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 fide exercise of discretion result
ing in decision based thereon.
And the court held:
Having decided that the Minister
has discretion we are also of the
opinion upon the construction of the
statute and adopting the authorities
cited and referred to that such dis
erection is absolute and is not subject
to be reviewed or controlled by the
court
Power to regulate and control is to
be interpreted along similar lines. but
any and all rules and regulations must
be reasonable and calculated only to
carry out the purpose of the act; The
foregoing is merely in the abstract to
serve as a possible guide. Whether the
grant or refusal of a license is the re-
suit of the exercise of sound discre,
ton or a rule or regulation is within
the powers of the board under the
grant of power to regulate and con.
troll licenses depends upon each indi.
vidual case. The scope of Section 4
can only be realized as questions are
decided as they arise.
Hoping that the foregoing meets with
your request, I have the honor to be.
very respectfully yours,
E. c. PETERS.
Attorney General.