Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1909-12-03


referring to a contention that a sta
tute was unconstitutional which re-
uuired license fee Of $3.50 for a
banking business in Honolulu, OF
$500 for Hilo and of $3.50 for all
other parts of the Territory, said:
There is natural distinction be-
tween the different places in this
Territory where banking may be car
lied on. This. of course, allows the
legislature to reasonably and fairly
classify the amount of the license fee
required for banking. Even IL the
ture In matter of this kind is In
our opinion unwise or perhaps OPP
pressive. still that is not of itself
sufficient to declare that a statute
passed pursuant to such judgment
violates the equal protection provi-
sions Of the constitution" The same
may be said with reference to the
business Of auctioneering. The same
distinctions exist. The great bulk
of the business of the Territory is
done In Honolulu. II is not for us
to say whether We would make the
difference in the amount OF license
fees In this case as large as the leg
islature has made II. II is sufficient
that we cannot say that the differ
ence Is unreasonable or that the sta
tute is unequal or arbitrary in It's
operation. Our conclusion Is that
as this objection is concerned the
statute is valid.
The judgment appealed from is
a fIirmed.
Dissenting Opinion of Wilder, J.
II appears from the agreed facts
that defendant as an agent OF the
Hawaiian Fisheries Co., Ltd, a dom
estic corporation engaged In handling
and selling on commission for a large
number of fishermen Ash caught by
such fishermen, offered for sale Ash
In basket lots, each basket contain
. Ing from seventy to one hundred
pounds. to the highest bidder among
thirty-three retail dealers OF fish or
owners Of fish tables at the fish mar
ket, no bids being received from any
,other persons. II Is well settled that
the highest bona flde bidder of those
who care to bid at an auction sale ia
entitled to receive the goods offered
for sale. As stated in Bowler's law
dictionary. "A public sale is one made
at auction to the highest bidder"
and that IAN auction is a public sale
OF property to the highest bidder"
In this case 1t appears that the bid
ding was limited to about thirty
three persons and that bids from
other persons even IL higher than
any made by any one of the thirty
three, would not have been receiv-
ed or accepted. 1t follows, therefore,
'that this, was not sale to the high
est bidder from among those who
might choose to bid and consequently
there was no sale at auction for
which license is necessary under
the statute. The statement In Blacks
law dictionary applies, namely, that
| II there can be such a thing as a
private auction II must be one when
the property Is sold to the highest
bidder nut only certain persons or a
certain class of persons are permit.
ted to be present or to offer bids"
The point to determine is not what
the legislature actually intended but
what Its Intention was as disclosed
by the statute.
| The argument made on behalf OF
Iplaintiff that the contention or de-
PENDANT II upheld would only invite
evasions of the law as, for instance,
an auction sale where bids are re-
ceived from all persons except hack
men, is without merit, as It does not
necessarily follow that in case OF the
instance cited. which would be sim
ply a scheme to evade the law, the
same result would be reached. In
this case. Notwithstanding the init
nation of the majority to the con-
trary. there Is nothing to suggest,
and the agreed facts do not permit
the inference, that the method pur-
sued In selling the Ash was devised
simply to evade the statute relating
to the licensing OF auctioneers, as II
appears that defendant $ principal Is
lat present operating under mer-
chandise brokers' license.
For the foregoing reasons ! there
fore dissent from the majority.