Tai Kee v. King
| Decision Date | 30 October 1899 |
| Citation | 12 Haw. 164 |
| Parties | IN THE MATTER OF THE PETITION OF TAI KEE FOR A WRIT OF MANDAMUS TO JAMES A. KING, MINISTER OF THE INTERIOR. |
| Court | Hawaii Supreme Court |
Submitted September 25, 1899.
APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
The provision of the statute (Act 38, Laws of 1898) " that no license shall be issued for any lodging or tenement house hotel, boarding house or restaurant to be established or maintained in any location which in the opinion of the Executive Council is unsuited for the purpose, or which the Executive Council believes to be objectionable, " is void, for the reason that it subjects the constitutional rights of persons to the arbitrary discretion of the Executive Council and contains nothing to guide or control the exercise of its discretion.
Humphreys & Hankey for the petitioner.
Attorney-General Cooper and H. P. Weber for the respondent.
OPINION
This is a petition for a writ of mandamus to compel the respondent J. A. King, Minister of the Interior, to issue to the petitioner, Tai Kee, a license to keep a lodging house. The parties and the lodging house in question are the same as in the case of Tai Kee v. Minister of the Interior, 11 Haw. 57, and the allegation of the petition are much the same. In that case the respondent contended that the statute gave him discretionary power to grant or refuse a lodging house license but we held that the statute made it his duty to grant the license upon the applicant's compliance with the terms of the statute. The provisions of the statute as it then stood are set forth in the decision in that case. Since then the legislature has amended the statute by providing (Act 38, Laws of 1898) " that no license shall be issued for any Lodging or Tenement House, Hotel, Boarding House or Restaurant to be established or maintained in any location which in the opinion of the Executive Council is unsuited for the purpose, or which the Executive Council believes to be objectionable." Acting under this provision, the Executive Council, to which petitioner's application for a license was referred by the respondent, passed the following resolutions: " Resolved, That in the opinion of the Executive Council, the maintenance of a lodging and tenement house by Tai Kee on the corner of Beretania and Pensacola streets-such as he has heretofore carried on in said locality-is objectionable" and " that the Executive Council recommend to the Minister of the Interior that we deny the application of Tai Kee for a renewal of his license to maintain a lodging and tenement house at the corner of Beretania and Pensacola Streets." This action of the Executive Council is the only ground relied upon by the respondent for his refusal to issue the license.
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, 7 Haw. 523, and those which, like that of keeping a lodging house, involved in the present case, are necessary to the welfare or convenience of the community and which are harmful or dangerous, if at all only because of the particular way in which they may be conducted. In the former no person has an absolute right to engage; in the latter all citizens have a right and an equal right to engage. The latter are not subject to the same degree of control as the former. The former may be regulated or restricted to any extent even to the extent of prohibition; the latter may be regulated only to a reasonable extent and with reference to the...
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