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EVENINO BULLETIN,' HONOLTTLCT. H.. FRIDAY, DEC. n, 1909.
Shades in quaint designs- Good for the room that is most
used for a hall. We have the largest and best assorted stock.
ARTS AND CRAFTS SHOP,
' Tor This Climate r"
FORT BELOW KINO STREET.
iilA -W t Ur i lu r
Supreme Court Decision
Ti:itltlTOUV TOYOTA. APPKAI,
I'HOM DISTRICT MAUISTRATK.
Argued Nmcmbcr 8, 1909. Dcclilcd
Dcrcmlicr 1, 1909.
HARTVi:i.l.. C J., VII,Di:U AND
CniiKtlttitlunal law miction license
Suction 131.1, R. I, , In nut titicoimll
tutlonal In Its requirement fur nn
auction llicnxe of n foe of $000
for t ho itlHtrlct of Honolulu mill
ll for each other taxation dis
trict. Auctions and auctioneers jmlillf
Upon tho nKreod facts the defend
ant conducted a public auction
within the meaning of tho ntatute.
Oplnlon of the Court by Perry, J.
Wilder, J , dlKxentltiK).
Defendant appeals on points of law
from a conviction before the district
magistrate of Honolulu of the of
fenso of "nelllng goods, wares and
ntcrtlinndlho at auction In the dis
trict of Honolulu without first ob
taining a llcetifo as auctioneer." Sec
tion 1.113 of the Rclsed Laws re
rjulirs an annual fee for a license to
i-ell goods, wares and merchandise
or other ptoport "at auction," nam
ing a Tee ot $000 for tho district of
Honolulu and Sl.' for each other tax
ation district. Tho defendant's polnti
are that under that section licenses
nrc required only for sales at public
miction, that the facts proved con
stitute no offense nnd that the sta
tute Improperly discriminates be
tween residents and citizens of the
district uf Honolulu nnd those of the
other districts and Is contrary for
that reason to the Hth amendment
of the constitution. The only other
portion of the statute which can be
Itnoked as throwing nny light on the
meaning of the words "at auction" In
section 1313 Is the requirement In
Sec. 1343 that the bund given by
each auctioneer "upun receiving nn
miction license" shall contnln a incl
usion "that he will not sell goods,
wares, merchandise or other property
except at public auction." It Is not
clear that there Is any difference In
meaning between tho words "at mic
tion" and the words "at public auc
tion." Whatever difference, Jf any,
(hero nut) be. It ma be assumed for
tho purposes of this appeal that, as
contended for tho defendant. It Is a
public auction which Is loutemplat
td by the statute and the question,
then, Is whether on the evidence the
defendant conducted a public auc
tion. Tho ovldotico consisted merely of
on agreed statement of facts, that
statement being as follows:
"That tho Hawaiian Fisheries,
Limited, Is a domestic, corporation,
organized under the laws of Hawaii,
end doing business at Honolulu.
"That said corporation handles
and sells fur a large number of fish
ermen, on commission, fish caught
by such fishermen, and docs so dully,
In tho following manner:
"Tho catch, as soon as It comes In
by boat Is loaded Into wagons nnd
tarried to tho l'lsh Market, In Hono
lulu, and there an ngent of said Ha
waiian fisheries, offers It In basket
lots, each basket containing about
fium TO to 100 pounds, to the retail
de.ilciB of fish only, and tho one bid
ding tho highest price fur same,
Ihciu and then becomes the purchas
er That at such sales no bid Is re
iclved except from BUth retail deal
ers, or the persons conducting fish
tables on the said market. That
fish is hlghl) pei Unable and must be
quickly disposed of after being
hiought to market, and that the
nbovft' plan is followed to facilitate
thr-snle-of flsh when brought to mar
ket. Tho, said corpointton, If It can
not soli the fish brought to market
In tho manner nbovo Indluited, then
must, under contract with the fisher'
mon who are Its patrons, sell suih
fish at retail, That the defendant,
was at the time and place stated in
the complaint against him, as agent;
for tho said corporation, selling and
offering for sale, flsh In basket lots,
In the manner above Indicated, and
not otherwise. That thero are about
thirty-three propiletors of flsh tables
en said market, who with their as
sistants, buy flsh fiom said corpor
ation, In manner ns nboo stated.
"Neither the defendant, nor the
said Hawaiian Fisheries Company,
Limited, has obtained a license as
Auctioneer, In and for the City nnd
Comity of Honolulu, fur the flwul
j ear commencing July (list, 1900, or
nny part of said ear. That the said
Hawaiian I'IhIipiIch Company, Limit
id, has obtained nnd boon operat
ing under a Merthandlso Iliolicu It
cenpc, and now has such license."
That the defendant conducted nn
' Miction sale Is liejond doubt. It was
a sale by competitive bliU where the
Keller Invited and excited competi
tion and disposed of the properly
to the person who made the highest
bid The practice of conducting such
sales "Is said to have originated with
the Romans who gave It the descrip
tive name of auctlu, an Incrcnsc, be
cause the offered property was sold
to him who would offer the most for
It." Crandall v, State, 28 Oh. St.
479, 181, "The essential part is tho
election of a purchaser from a num
ber of bidders," sas Homier after
defining an auction as being "a pub-
i tic salo of property to tho highest
bidder." Whether the sale bo "by
the Inch of candle" or at Dutch auc
tion or In the method ordinnrlly pur
cued at the present time, competi
tion Is a necessary element (Cinndall
v. State, supra, 482) and It Is that
which distinguishes a sale at auction
from oHher sales where the attempt
to sell and to agree on a price Is
mnde with but one prospective pur
chaser at a time.
Docs the fact that bids were ac
cepted from retail dealers of flsh,
and from no othcis, place tho trans
actions without tho class ot snlcs nt
public auction within the meaning
of the statute? We think not. In
the word "auction" Itself theie Is
nothing to lend to tho opposlto con
clusion. In so far as the word "pub-
lit" imports publicity, n salo free
Irom concealment, open to the knowl
edge or view of all, ns opposed to
one In private or unknown to the
community nt large, that element
clearly existed In the transactions
under consideration. Thero was no
attempt at concealment or secrecy.
Aside from this element the word
"public" Is suxteptible of various
shades of meaning. It may be so
used as to have reference to all or
the members of a community, state
oi nation, or as leferrlug to the
community In geneial or a consid
erable iiortlon of It. It Is In the lat
ter sense, we think, that it ls used
In tho statute in question. The sale
was none the less public because of
tho exclusion from bidding of the
clas which was excluded. The sale
as of lots of fish varjlng from TO to
100 pounds each. The class admlt-
td to bid, tho rctnll dealers of flnh,
Included practically all who would be
Ilkelj to offer bids. The main pur
pose of auction sales Is to obtain
the best financial returns for the
owners of the property sold. Some
mcusuie of discretion Is vested In
auctioneers as to the precise meth
ods to bo pursued In attaining that
object, for oxample, bids need not be
accepted from minors or from per
sons Irresponsible either financially
or mentally or from. drunken persons
or from one offering In bad faith or
even from one making but a slight
lalse In his hid over the bid last
announced. See Taylor v. Harnett.
55 N. Y. Suppl. 988, 990, 991. ,
It may well bo conceived that nn
auctioneer may In good fulth and In
the exercise of a proper discretion
deem It to bo to the best Interests ot
his principals, In a series ot Bales
such as described In the agreed state
ment, to refuse to sell to the con
sumers who In rare Instances might
possibly appear and bid to tho finan
cial detriment of the retail dealers
who In luige numbers, and regular
I), attend such sales and purchase
the greater bulk of the fish. If tho
construction contended for by tho
defendant Is correct an auction sale
of in I so nnd sojo, Japanese sauces,
excluding all but Japanese, a sale
ut books excluding all Illiterates, a
sine or carriage lamps excluding all
who have no carriages, a sale of au
tomobile parts excluding all who do
not own or operate automobiles, and
a sale.pf fut steers In lots of twenty
mo to innchers and butchers 'inly,
would not he sales at pubntauo
Hon., If -seems Incredible that such
was the Intention ot the' legislature
That statute, shquld be given a rea
sonable 'construction, not permitting
of easj evasions with no practical
lessening of financial results to the
As to the question of unconstitu
tionality, It Is well settled In this
Jurisdiction that "the legislature In
a matter of this kind mny classify or
discriminate If the classification or
discrimination Is based on some rea
sonable ground which Is furnished
by population in soma instances."
Tiust Compaii) v. Treusuier, 19 Haw.
202, 263, See also Territory v. Pot
tle, lb, :, 104. "Where natural dls
Unctions ipqiilrii discrimination not
to discriminate works Injustice."
Robortsnn v. Prntt, 13 Haw. 600.
"Absolute equality Is all that can rea
sonably be expected." lb. 602. In
Trust Company v. Ticasurcr, supra,
referring to a contention that a sta
tute wis unconstitutional which re
quired a license fee of $750 for a
banking business In Honolulu, ut
$500 for Hllo nnd of $250 for all
other parts of tho Territory, said:
'There is u nnturnl distinction be
tween the different places In this
Tcrrltcr) where banking may be car
ried on. This, of course, allows the
legislature to reasonably and fairly
lasslfy the amount of the license fee
equlred for banking. Even If tho
Judgment exercised by the legisla
ture In a matter ot this kind Is In
our opinion unwlso or perhaps op
pressive, Bttll that Is not of Itseir
sufficient to dcclaro that a statute
passed pursuant to such Judgment
violates tho cqunl protection provl
ilons of Hit constitution." Tho same
may bo said with reference to tho
business of auctioneering. The same
distinctions exist. Tho great bulk
uf the business of the Territory Is
done In Honolulu. It is not for us
to sny whether we would make ins
difference In tho amount of license
fees In this case as large as tho leg
islature has made it. It Is sufficient
that We cannot say that tho differ
ence Is unreasonable or that tho sta
tute Is unequal or arbitrary In Its
operation. Our conclusion Is that
as this objection Is concerned tho
stntuto Is valid. ,
The Judgment appealed from Is
Dissenting Opinion of Wilder, J.
It appears from tho agreed facts
that defendant us an agent of the
Hawaiian Fisheries Co., Ltd., a dom
estic corporation engaged In handling
and selling on commission for n large
number of fishermen flsh caught by
such fishermen, offered for Bale flsh
in basket lots, each basket contain-
Jlng from seventy to one hundred
pounds, to the highest bidder among
th!rt-three retail dealers of flsh or
owners of flsh tables at the flsh mar
ket, no bids being received from any
other persons. It Is well settled that
the highest bona fide bidder of those
who tare to bid nt an auction sale Is
entitled to receive the goods offered
for sale. 'As stated In Howler's law
dictionary. "A public sale Is one made
nt auction to tho highest bidder,"
aim Hint "an auction Is a public sale
of property to the highest bidder."
In this case it appears that the bid
ding was limited to about thlrty-
inree persons and that bids from
other persons even If higher than
any made by nny one of tho thirty-
inree, would not have been receiv
ed or accepted. It follows, therefore
that this, was not a sale to tho high
est bidder from among those who
might choose to bid and consequently
mere was no Bnlo at auction for
which n license Is necessary under
tho stntuto. The stutcment In lllack's
law dictionary applies, namely, thut
" If there can be such a thing as a'
private-auction It must bo one when
the property Is sold 'to tho highest
bidder jut only tortnln persons or a
certain tlass of persons aru permit
ted to be present or to offer bids."
The point to determine Is not what
tho legislature actually Intended but
what Its Intention wus ns disclused
by the statute.
The argument made on bohalt of
plaintiff that the contention or de
fendant If uphold would only invite
ovnslons of tho law as, for Instance,
an auction sale where bids aro re
ceived front all persons except hack
men, Is without merit, us It docs not
necessarily follow that In cmw of the
Instance cited, which would bo sim
ply h scheme to evade tho law, tho
Bamo result would be reached. In
this case, notwithstanding the Inti
mation ot the majority to the con
trary, there Is nothing to suggest,
unci the agreed facts do not permit
the Inferento, that the method pur
sued In selling the flsh was dovlsed
simply to evade the statute relating
to the licensing of auctioneers, ns It
appeals that defendants principal Is
at present operating under u mer
chandise broker's license,
For the foregoing reasons I'thcro
fore dissent from the major!!.
The following wireless has been re
ceived by tho Agents from tho 8. 3.
"Alameda. 8 p. m , Dec, 2, 1909.
"All well. 435 miles. We hnvo had
fresh southeast wind, rough sea and
squally weather since leaving, At pres
ent moderating a little, liar. 30.09;
Suld Richard HI.:
"Upon my word,
That horse gug gives me n pain;
I'll change It n hit
And mal.0 n great lilt
"Mo kingdom for nn aoinplnno!
annt.l litmlnra wilt lift rnrMvPtl llV
the Superintendent of Public Works
until 12 in. of Wednesday, Dcccmbor
15, 1909, for furnishing tho Depart
ment nf Public Works with 18,000
tin. ft nf 12 Inch wooden stave nine.
delivered f. o. b. ship's tackle, Ka
I ulul, Maul.
Specifications and proposal blanks
on flle In tho Department of Public
Tho Sciiierlntcndent ot Public
Works reserves tho right to reject
my or nil bids.
Superintendent of Public Works.
Dent, of Public Works, Honolulu,
Nov. 8, 1909. 4482-71
NOTICE OF SALE OF OENERAL
LEASE OF PUBLIC LANDS,
SITUATED AT WAIKIKI, K0
At 12 o'clock noon, Monday, De
ccmbor 13th, 1909, at the front en
trance to the Capitol, Honolulu,
thero will bo sold nt public auction
under provisions of Part V, Land
Act 189G, Sections 278-285 Inclu
sive, Revised Laws of Hawaii, n gen.
era! lease uf the following described
Lot No. 4A, Mooknhl, area 34.57
Lot No. 5, Knlia, area 22.22 acres;
Nut No. CC, Kaaumoa, area 1.97
Lot 6D, Kapuna, area .53 acres.
Upset rental, $800.00 per annum.
Pa able semi-annually In advance.
Terms of lease, S years from Jan
uary 3rd, 1910.
Cost ot .advertising to bo paid by
For maps and further particulars,
apply to the office of tho Commis
sioner of Public Lands, Honolulu.
Commissioner of Public Lands.
Dated at Honolulu, Oahu, Novem
ber 11, 1909.
44C4 Nov. U, 18, 25. Dec. 3, 10.
lllds for furnishing tho various
services ot the City, and County of
Honolulu with office supplies and
for performing work In accordance
with Ordinance No. 5 of tile City and
County' for the semi-annual period
beginning January 1, 1910, will bo
received by tho Directors ot tho
Rureau of Supplies ot the City and
County of Honolulu ut tho office of
the City nnd County Clerk, not Inter
than tho hour ot noon ot Wednesday,
December 15, 1909, at which tlmo
ull bids received will bo' opened at
Schedule of materials and supplies
equlred and of work io bo per
formed will bo furnished on applica
tion to tho City and County Clork.
Tho Directors of the Durcnu of
Supplies 'created under the provi
sions of said Ordinance do not bind
themselves to accept tho lowest or
December 1, 1909. .
D. KALAUOKALANI. JR.,
City and County Clerk.
City nnd County Auditor.
FRED W. MILVERTON,
First Deputy City and
4480 Dec. 1. 2, 3, 4, 6.
5 B. R. near St. Elizabeth
Home ton nn
2 B. R. Kuakini, nr. Fori St.. 12JS0
IB. R. Alewa, below Judd... 6.00
z a. k. bihnack Tract, Nuu-
2 B.R. Partly furniihed, Ma-
noa vatiey iz,nn
P. E. R. Strauch
Waity Bid. 74 S. Kin St.
American Steam Laundry
W. D. McINTYRE, Manager.
FIRST-CLASS LAUNDRY WORK
1382 Liliha Street, corner Vineyard.
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MRS. E. M. TAYLOR.
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.' "Ill 1 II III
"tttL' 'Ii !'