12 Haw. 164 | Haw. | 1899
OPINION OF THE COURT BT
Tbis is a petition for a wilt of mandamus to compel tbe respondent, J. A. King, Minister of tbe Interior, to issue to tbe petitioner, Tai Kee, a license to keep a lodging bouse. Tbe parties and tbe lodging bouse in question are tbe same as in tbe case of Tai Kee v. Minister of the Interior, 11 Haw. 57, and tbe allegationr of tbe petition are much tbe same. In tbat case tbe respondent contended tbat tbe statute gave bim discretionary power to grant or refuse a lodging bouse license but we beld tbat tbe statute made it bis duty to grant tbe license upon tbe applicant’s compliance with the terms of tbe statute. The provisions of tbe statute as it then stood are set forth in tbe decision in that
Assuming that the resolutions are in conformity with the statute (which is not altogether clear) the sole question to be decided is whether that provision is constitutional.
The decision in the former case was based upon the construction of the statute but the court found that it could not very well avoid considering to some extent the question of the' constitutionality of the statute and it was in part to avoid holding the statute unconstitutional that the court construed it to be mandatory. It is -evident from the reasoning in that case that if the statute could have been constructed only as conferring discretionary power upon the Minister to grant or refuse the license, it would have been held unconstitutional. A distinction was drawn between occupations which may be regarded as harmful or dangerous in themselves, such as that of selling intoxicating liquors, which was involved in the case of Bradley v. Thurston, 1 Haw. 523, and those which, like that of keeping a lodging house, involved in the present case, are necessary to the welfare or con
The provision of the statute now in question in terms delegates to the Executive Council arbitrary power with reference to the location of lodging houses, and contains nothing to guide or control the action of that body in this respect. It is clearly unconstitutional. In addition to the authorities, both Hawaiian and American, relied on in the former case, the following, cited by counsel for the petitioner, are referred to as bearing closely upon the present case:
In The City of Richmond v. Dudley, 129 Ind. 112, an ordinance purported to confer power on the Common Council to grant permission to an applicant to keep inflammable or explosive ■oils in quantities greater than five barrels at a time, “if the location,” among other things, should be “deemed suitable and proper.” The ordinance was held invalid, the court saying among other things: “Language better calculated to enable the ■Common Council to arbitrarily control the business, without any fixed or known rules, can not well be imagined. The business of keeping, storing and dealing in such oils is a legitimate business, and every citizen has an inherent right to engage in the business upon equal terms with any other citizen.”
In order to avoid the effect of the reasoning in the former Tai Kee case, three arguments are presented on behalf of the respondent. Eirst, that the Legislature must be deemed to have intended by the Act of 1898 now in question to put the occupation of keeping a lodging house in the category of occupations harmful in themselves, and so to take this case out of the decision in the former Tai Kee case and bring it within the decision in Thurston v. Bradley, supra. But the Legislature did not show any such intention, and it could not constitutionally declare an occupation of this kind to be harmful or dangerous in itself, so as to enable itself to enact a law of this kind in regard to it. Secondly, it is contended that the statute should be held constitutional if possible and that in order to hold it so it should be presumed that the Legislature intended that the Executive Council should act upon legal grounds only and also that the Executive Council did act upon legal grounds only and not arbitrarily. But it is not sufficient that the Executive Council may act fairly under the statute or even that it has acted fairly in any particular case. The statute is unconstitutional because by its terms the Executive Council may act arbitrarily however unlikely it may be to do so. It is contended, thirdly, that the legislature has made the Executive Council a judicial tribunal for the purpose of deciding upon the location of lodging houses and that the decisions of that tribunal are final and cannot be inquired into' by the courts. The former Tai Kee case is cited to show that the provision of the statute which requires the applicant to first obtain a certificate of the Board of Health in regard to certain matters, would be upheld, and, if so, it is argued, the requirement that the applicant shall first obtain the approval of the Executive Council should be
Since this case was submitted the respondent has died and his successor in office has been appointed. The Attorney-General is of the opinion that since the action is against the respondent in his official capacity it will be unnecessary to suggest his death on the record and that the judgment will be binding on his successor, and, no objection being made on either side, we make none ourselves and file the decision.
The judgment of the Circuit Judge for a peremptory writ of mandamus directing the respondent to issue the license to the petitioner is affirmed.