Grieve v. Gulick

5 Haw. 73

• Court: Hawaii Supreme Court
• Decided: February 21, 1884
• Status: Published

Opinions

Opinion oe a Majority oe the Court, by

Austin, J.

This case comes here on appeal from a judgment allowing a peremptory mandamus against the defendant, requiring him to present to the King in Privy Council the plaintiffs’ petition for a charter of incorporation.

Section 1442 of the Civil Code provides, that “The Minister of the Interior shall have full power, subject to the provisions of this Chapter, in his discretion, by and with the advice and consent of the King in Privy Council, to grant charters of incorporation.”

The Minister, then, has no discretion to grant a charter, except with the King’s advice and consent. The King in Privy Council may veto it. That is, a discretion to grant a charter rests in the King and Minister, the King being in Privy Council. But the discretion to grant a charter, by this Section, necessarily includes the discretion to refuse a charter, and this right also rests in the Minister by and with the advice and consent of the King in Privy Council. In any case where, upon this joint action, a charter is not granted, it is refused. The only power of refusal which rests anywhere by the Section, is to be inferred or implied from the power to grant.

In that refusal the Minister necessarily takes part with the King in Privy Council. He has no other discretion to refuse, and none is provided for anywhere. He cannot refuse alone any more than he Can grant alone. The Section must be construed as though it read, “ The Minister shall have full power in his discretion, by and with the advice and consent of the King in Privy Council, to grant (or refuse) charters of incorporation.”

Section 10 of Chapter 3 of the Civil Code provides “ Where the words of a law are dubious, their meaning may be sought by examining the context, with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning. ’.’

Section 12 provides “One of the most effectual ways of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature, to enact it.”

Section 13 provides, “When the words of a law are ambiguous, every construction which leads to an absurdity should be rejected.”

These are wise rules, and are epitomes of the rules of construction universally adopted in England and America.

If there were any doubt of the foregoing construction of See. 1442, the application of these rules will dissipate it.

The object of Chapter XXXI, on corporations, is to promote the industrial enterprises of the country, by allowing the massing of capital in corporate bodies under proper restrictions.

Section 1445 provides for an application for a charter to the Minister of the Interior, by written petition accompanied by proofs that three-fourths of the shares have been subscribed for, and setting forth in detail the objects of the corporation, its location, the amount of stock, if a stock company, and all other incidents attached to it.

If upon such a petition being presented, the Minister of the Interior may suppress it without explanation, and never present it to the King in Privy Council, he may, at his own will, without cause, practically destroy this beneficent statute. The Legislature did not so intend. They intended that every such petition should be presented to the King’ in Privy Council, and there be passed upon for acceptance or rejection. If it had been intended that the Minister should have the right of private suppression of a charter, the Legislature would have expressly so provided.

Section 1441 provides for annual reports by corporations to the Minister of the Interior, and for examinations under oath, and then says: “The annual reports above mentioned, and the results of such examination, the Minister may, in Ms discretion, lay before the King in Privy Council, and also publish.”

Had the Legislature intended that the Minister should have a discretion about laying before the King in Privy Council the original petition for a charier, they would have made a provision for it similar to the one just quoted.

Defendant’s counsel refer to Section 1443, as illustrating their definition of a relative discretion.

This Section says: 6The Minister of the Interior, with the consent of the King in Privy Council, shall also have power, on the expiration of any charter, to renew the same, on application to him for that purpose by two-thirds of the stockholders of such company, and a satisfactory explanation to him of the state of its affairs.”

The defendant’s counsel say, that upon a satisfactory showing of the company’s affairs, “ the power of discretion of acting, refusing or granting ceases upon such a showing being made, and the duty becomes imperative.”

We think this is.so, if the “ King in Privy Council consent,” otherwise not, and the King in Privy Council may refuse. It is no more a case of relative discretion than Sec. 1442. And the defendant’s counsel do not pretend that the Minister can escape the' duty of presenting the application for renewal to the King in Privy Council; and yet there is no direct provision that he shall present it. If the Minister does not wish to renew the charter, why not suppress it, as it is said he may the original charter by Sec. 1442.

The counsel for the defendant say: “Again, suppose the application be for a charter for illegal or seditious'purposes, the Minister would reject it immediately”; and they say “this is an exercise of discretion.” The answer to this is that if such were the nature of the petition, it would manifestly be a petition not in compliance with the law. It would be rejected because not formally in accordance with Sections 1442 and 1445 of the Statute. The examination of an application to see whether it is formal is not an exercise of discretion. There are no two ways of deciding that question, and its decision is the mere exercise of a clerical duty.

When it is found to be formal, thereafter, at the time the Statute prescribes, the right to exercise discretion arises.

Sec. 1445 prescribes a form of petition, and it is upon such a petition and no other that the discretion to grant or reject is to be exercised.

See Bailey vs. Ewart, 52 Iowa, 111, 112; Howland vs. Eldredge, 43 N. Y., 357; San Francisco Gas Company vs. Supervisors, 11 Cal., 42; Carpenter vs. County Commissioners, 21 Pick., 258.

The manifest intention of the Legislature was to refer the important matter of granting or refusing a charter to the King in Privy Council, where he has the aid not only of the Council, but of his entire Cabinet (including the Minister of the Interior) who are ex officio members of that council. Any other construction of the law would make of His Majesty a cipher, instead of treating him, as the Constitution declares, as the executive power of the Government.

A. S. Hartwell and Smith & Thurston, for Petitioners. Attorney-General Neumann and W. A. Whiting, for Respondent. Honolulu, February 21, 1884.

The view that after the matter reaches the King in Privy Council, the Minister has no separate discretion, is in accord with the argument of the defendant’s counsel.

We have examined many of the cases cited by the defendant’s counsel defining and describing what is meant by discretion. We have found n'one which show the act commanded here to be an act resting in the Minister’s discretion.

In the case of Castle et al. vs. Kapena, Minister of Finance, ante, page 27, we have held that a mandamus may issue against a Cabinet Minister. Upon the questions not considered herein, and upon the whole case, we refer to and adopt the opinion of the Court below.

The judgment is affirmed with costs.