The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1863-04-02
PACIFIC
Commercial Advertiser.
SUPREME COURT--Jan. Term. 1863.
REX L. Banso-On app-al. from tie Police
-. tCo.u u H1uOIull.

IL ~ 80 4NAA JUN.
Justice
The defendant i charged with having violated
Section l-t, Chapter 42d Of the Penal Code, and
pleads not guilty. He admits that Cn the 18th
October, 1862. he sold imported spirituOu5 liquors
To Natives Of this Kingdom, in the town Of Homo
lulu.
1t j. admitted on the part Of the Crown that
defendant l. L British subject, licensed 10 sell
liquors under the Act Of Odd Of August, 1862,
and that he i an importer Of sPIrItuous liquors.
The appeal to this court from the decision Of
the court below, has been taken purely upon
points Of law, which have been submitted by
defendants counsel with much labor and care, in
a printed brief of great length, ACCOMPANIED and
enforced by oral argument.
Upon examination, | think the numerous points
made by the defence. may be comprised in Il few
general grounds which will embrace the whole
subject. Ira giving my opinion upon the case,
therefore, | do not propose To take up the points
of delendant's briet seTidihn, but 10 advert, IN
what seems 10 be the most natural and convenient
order, to the general grounds which seem to me
To comprise the whole defence.
And first. it is argued that section LIST, chapter
42d of the Penal Code, under which the defend
ant Is charged, has been repealed, by implication,
through the enactment OF subsequent statutes.
i shall not now take notice OF the argument that
the part Of the Penal Code referred 70 was re-
pealed by the 1881 Article Of the Constitution,
because that point seems To be comprised IN the
general ground Of uncpnstItutIOnality, relied
uIJN Nv ItlEItslLl. Jul II u bliAGIF--G that
section Ist. chapter 42d oG the Penal Code, which
prohibits the sale Of spirituOus liquors, by any
person. TO 4 native Of the Kingdom, Is radically
inconsistent with the provisions Of the Act of the
ODD August, 1862, regulating the sale of spiritu-
Gus LIQUORS. and under which the defendant
obtained his license. Ii is argued that the later
enactment embraces fully the subject matter Of
the former, which has thereby become superseded.
Against this proposition the Acknowledgement
cites the case OF Rex as Ella, decided at the July
term, 1861. In that case the defendant was in
dicted before the Circuit Court at Kauai, for
having sold spirituOus liquors without license, in
contraventiOn Of the law Of 1916, which regula-
ted the sale Of spirituOus liquors previous to the
enactment Of the statute of 1862. The prOsecu-
ton proved that the defendant, who was not
licensed, had sold spIrituOus liquors 10 natives,
and his counsel moved the court to dismiss the
case, on the ground that defendant could only be
prosecuted under section lst, chapt 7 42d Of the
Penal Code. The Circuit Court oyerruled the
motion, and on appeal To this court, the judg-
ment Of the lower court was affirmed, on the
ground that both statutes were in force, and the
District Attorney might elect to prosecute the
under either the one or the other. In
my opinion, the decision of the court in Rex as.
Ella was sound, for the reasons stated az the time,
and as the statute of 1862 has merely taken the
place Of that of 1874, rs IA law to regulate the
vending Of spirituOus liquors, as 4 branch of in
ternal commerce.. the provisions of that statute
do not amount TO an implied repeal OF section
LIST, chapter 42d of the Penal Code, which is
4 special penal enactment for the suppression of
drunkenness among ,the natives. How can the
statute Of 1862 be said to embrace the subject
matter of section /, chapter 40 of the Penal
Code, when that statute, as the defendant con-
tends, contains no provision whatever touching
the selling Of liquors TO natives? The later
statute could only have embraced the matter of
the former either by expressly repeating, modify
ing, or re-enacting the penal provision. The
penal law is left untouched for the mere silence
of the statute of 1862 on the subject matter Of
the penal law, cannot affect that law. The
penal statute being still in force. l presume the
Legislature deemed 1t unnecessary TO repeat, in
the Revenue Law of 1862, the general prohibit
ton against the sale of liquors to natives; but
the subject is guarded with great care, by requir-
ing the insertion in the ycndor's bond OF a cOndi-
ton, subjecting him to its penalty in case he
violates any d,C of the Kingdom. As both stat
utes are alive and in full force, the vendor, by
subiecting himself TO the particular liability Of
his class, under the Revenue Law, does not be-
Come released from the ordinary liability which
presses upon all men, under the provisions Of the
penal law so that in case of his infraction #
that law, he may, 1T the option of the Govern
ment, be prosecuted either criminally, under the
Penal Code, or upon his bond, under the Revenue
Law.
The defendant argues further, that, under the
law Of 1862, licenses To sell spirituOus liquors
NAV be granted TO native, and that as 4 native
vendor would be prevented, by section |, chapter
AZ Of The Penal Code, from purchasing liquors 10
sell again, the provision of the Penal Code Is
Inconsistent with the law of 1862, and
the former law must therefore be regarded as re-
pealed by implication. But the passage Of the
Statute Of 1862 has made no change in the law
touching this subject. hat Is now set up as a
radical inconsistency between the Penal Code and
the Act of 1862. equally existed in the provisions
of the License law of 1916, which while ii did
not prohibit the granting of licenses to native
subjects, did expressly forbid all vendors from
selling to natives. The Statute of 1858 is the
and the law of 1862, while it does not
the granting Of licenses To natives, does
prohibit vendors from selling 10 natives, by bind
ing them not TO violate any IaIc of the land in
the exercise of their trade. The argument. then,
amounts to this, that the provisions Of the license
laws are in themselves radically Inconsistent, and
that therefore the prohibition against selling To
natives Is void. But this is not sound. The cir
cumstIncc that, under the law as it stands, a
native vendor would labor under the disadvantage
Or inconvenience of having TO import his liquors,
Is accidental. or Ut least but an indirect cOnse-
1uencc OF the law. | see no inconsistency IN the
provisions Of the Law which, while ii grants the
privilege of vending liquors To- any one who full
ills certain requirements. and binds himself to
comply with certain conditions, prohibits, Is one
Of those conditions. the selling of liquors 10 ma
subjects The point involved IN this argu-
ment i merely "A branch of the larger argument
against the constitutiOnality OF the statutory
for unless the Legislature has exceed
ID its power in enacting that prohibition, any
Indirect disadvantage that may arise thence 10
individuals. amounts To nothing. Again the
license laws. which regulate any particular branch
IF internal traffic, must be viewed as in subordi-
u, .1,p p. n ya-arYI l tr Of tho land The general |