In re Tai Kee

• Decision Date: 14 June 1897
• Citation: 11 Haw. 57
• Parties: IN THE MATTER OF THE APPLICATION OF TAI KEE FOR A WRIT OF MANDAMUS.
• Court: Hawaii Supreme Court

11 Haw. 57

IN THE MATTER OF THE APPLICATION OF TAI KEE FOR A WRIT OF MANDAMUS.

Supreme Court of Republic of Hawai'i.

June 14, 1897

Submitted April 1, 1897.

APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.

Syllabus by the Court

Act 64, Laws of 1896, provides in Sec. 1 that " The Minister of the Interior may, upon application of any person, issue to such applicant any license hereinafter enumerated, upon the terms and conditions hereinafter set forth, " and prescribes in Secs. 68-74 the terms and conditions upon which lodging-house licenses may be issued. Held, that the word " may" in Sec. 1 should be construed as " shall" with reference to lodging-house licenses, and that the Minister has not discretionary power to refuse to issue a lodging-house license to an applicant who has complied with the terms and conditions set forth in Secs 68-74.

A. S Humphreys, for the applicant.

Dep Att'y Gen'l E. P. Dole, for respondent.

FREAR AND WHITING, JJ., AND CIRCUIT JUDGE CARTER, IN PLACE OF JUDD C.J., ABSENT.

OPINION

FREAR J.

This is an application by one Tai Kee for a writ of mandamus directing J. A. King, Minister of the Interior, to issue to him a lodging-house license. The applicant alleges that he is possessed of a leasehold interest in a certain lot of land at the north angle of Beretania and Pensacola streets in Honolulu; that he has expended a thousand dollars in erecting on said lot a building designed and intended to be used as a lodging house; that the same cannot without great expense be adapted to any other purpose; that on January 4, 1897, he demanded of J. A. King, Minister of the Interior, a license for a lodging house to be conducted in said building, at the same time tendering the fee required by law and presenting a certificate from the Board of Health as required by law; but that the said Minister arbitrarily and in violation of law refused to issue such license.

An alternative writ was allowed directing the Minister to issue the license or show cause to the contrary.

The Minister answered, admitting the refusal to issue the license, denying that he refused arbitrarily or in violation of law, and alleging that he refused in good faith in the exercise of his discretion under the statute and for the reasons following, namely: " 1. Because the lodging house theretofore maintained upon said premises under a license granted to the petitioner under the name of Tai Kee had been so conducted as to cause great annoyance to residents in that locality. 2. Because the premises had become notorious as a place of resort for gamblers and disreputable persons. 3. Because many persons residing in the neighborhood had protested against the granting of such license. 4. Because that under all of the circumstances the respondent believed it to be in the public interests and for the common good that the petitioner's request be refused."

Affidavits were attached to and made part of the answer in support of the grounds on which the refusal was based, and a counter-affidavit was filed by the applicant.

The Circuit Judge was of the opinion that the Minister was vested by law with discretionary power in the matter of the issuance of lodging house licenses and dismissed the application. The case comes here on appeal from this decision.

Counsel for the applicant concedes that if the Minister has discretionary power under the statute he has properly exercised it in this case; also that a grant of such power to the Minister would be constitutional; but he contends that the statute cannot, upon a proper construction thereof, be held to confer such power.

The statute (Act 64, Laws of 1896) is a comprehensive Act amending, adding to and consolidating nearly all former laws relating to licenses, and repealing such former laws. Its first section is as follows:

" Section 1. The Minister of the Interior may, upon application of any person, issue to such applicant any license hereinafter enumerated, upon the terms and conditions hereinafter set forth."

Then follow various general provisions, and after these the special provisions relating to the various classes of licenses. The part relating to lodging house licenses is as follows:

" LODGING OR TENEMENT HOUSE; HOTELS, BOARDING HOUSES AND RESTAURANTS.

FEE.

Section 68. The annual fee for a license to keep a lodging or tenement house shall be two dollars.

Section 69. The annual fee for a license to keep a hotel, hoarding house or restaurant shall be fifty dollars.

CERTIFICATE OF BOARD OF HEALTH.

Section 70. No license shall be issued for a lodging or tenement house, hotel, boarding house or restaurant, until the applicant shall secure from the Board of Health, and present to the Minister, a certificate setting forth that an Agent of the Board has examined the house or houses proposed to be used for such purposes, with a description thereof sufficient to identify and locate the same; and that the same are in good sanitary condition and suitable to be used for such purpose; and stating the number of persons which, by law, can be lodged therein.

CONDITIONS OF LICENSE.

Section 71. A lodging or tenement house, hotel, boarding house or restaurant license shall be issued upon the following express conditions, which shall be incorporated in the license, viz.:

1. That the licensee shall not keep a noisy or disorderly house;

2. That no prostitute shall be allowed to reside therein or resort thereto;

3. That no intoxicating liquor shall be furnished or sold therein, except as authorized by law;

4. That no more persons shall at any time be lodged therein than are permitted by the license;

5. That the buildings and premises licensed shall be kept in good sanitary condition, in accordance with law and with the orders of the agent of the Board of Health;

6. That the police and agents of the Board of Health shall at all times have access thereto for purposes of inspection;

7. That no gaming shall be allowed therein.

PENALTY.

Section 72. Any person who shall keep a lodging or tenement house, hotel, boarding house or restaurant without a license under this Act; or who, holding a license, shall violate or fail to observe any of the requirements or condition of this Act or of his license, shall be fined not less than ten nor more than one hundred dollars, and the court, in its discretion, may cancel his license.

PRIVATE FAMILIES EXCEPTED.

Section 73. Nothing in this Act contained shall be construed to prevent a private family from incidentally taking not more than three hoarders or lodgers without taking out a license thereunder.

EXEMPTION OF COUNTRY HOTELS.

Section 74. The Minister may also, in his discretion, permit hotels at which both meals and lodgings are furnished, at points other than in Honolulu, where they are a public convenience, to be carried on without a license under this Act."

The Minister contends that the word " may" in Section 1 imports " discretion, " and he relies on Bradley v. Thurston, 7 Haw. 523, in support of this contention. In that case the statute provided that " The Minister of the Interior shall have the power to grant licenses to retail spirituous liquors, " etc. Mr. Justice Dole, who heard the case originally, held in substance that the words, " shall have the power, " " it shall be lawfull, " " may, " and " authorized, " found in our various statutes relating to licenses, prima facie import a discretion and should be so construed unless the public interest or the rights of third persons or the subject matter or the other parts of the statute show that they were meant to be imperative; that there was nothing in that case to show that the words in question were meant to be imperative, but that on the contrary other parts of the statute tended to show that the words were intended to confer a discretion; that, the statute having conferred a discretion upon the Minister, it was not for the court to pass upon the sufficiency of the reasons for refusing the license, further than to ascertain whether a real or legal discretion was exercised, that is, a discretion based upon the grounds that might properly be considered, or whether it was exercised arbitrarily or capriciously; and that in that case the Minister had in fact exercised a legal discretion. On appeal the Supreme Court held, without setting forth the reasons, that the decision appealed from was correct in so far as it held that discretionary power was conferred on the Minister, but all the Justices, with the exception of Mr. Justice Dole, who adhered to his original opinion, went further and held that the discretionary power was absolute and that the court could not inquire whether it was exercised legally or arbitrarily.

Assuming that the decision in Bradley v. Thurston has established the law for subsequent cases to which it is applicable, we are of the opinion that it is not applicable to the present case. That case is distinguishable from this in respect of both the subject matter and the language of the statute, either of which, as recognized in that case, might be such as to require the word " may" to be construed as " shall."

Take first the subject matter. The portion of the statute now under consideration relates to licenses for keeping lodging or tenement houses, hotels, boarding houses, or restaurants-occupations not only harmless in their nature but actually necessary to the welfare and convenience of the public. Such occupations are not subject to the same degree of control as are those which, like that of selling intoxicating liquors, involved in Bradley v. Thurston, are believed to be harmful or dangerous in themselves. The latter may be regulated or restricted to any extent, even to the extent of prohibition. The former, being harmful, if at all not...