The Hawaiian gazette., 1882-12-27
Hawaiian Gazette Supplement- Dec. e. 1882
Supreme Court in Chambers. Dec aIst.

HHNG LUG IKE Co, vs.. JuDgr BIcKEEToS AND
MVEsHAI PAma-
The plaintiffs in this case claimed 500 damages
Of the defendants for issuing and authorizing the
service of 4 search warrant upon their premises.
Mr.. Bekerton appeared for himself, Mr.. Preston
for Mr.. Parke.
The record Of the testimony in the case of the
same plaintiffs against officers Marcos and Oadt
was agreed upon as the evidence to be taken in this
case. The substance of the argument of Mr.. Hart
well, counsel for the plaintiffs was as follows:
I. The Constitution, Art. prohibits all seizures
or searches unless for probable cause, supported
by oath and describing the place to be searched
and the person 10 be seizet. This complaint does
not mention the name Of one of these plaintiffs
nor their firm name. 1t does not describe the
place a. in Honolulu or on the island Of Oahu or
elsewhere, simply p Hotel ST.
. BY the provisions of On. Is If Ltc Penal Code
no search warrant can issue unless some one isac
cused If a criminal offence. This complaint
charges no criminal offence against any of these
plaintiffs OF any one else. The only basis for the
warrant Is that sundry opium Is concealed on the
premises Of 10 kee, ch., at No. % Hotel
Street If this is n basis for seizure and
search no houso-holders in this Kingdom are eH-
cmpt from arrests and searches There must be
a charge that the parties charged have done some
criminal act, or been priyy TO ii.
3 BY So s0g Of the Cfr7 C0ls no warrant can
issue but affidavit of personal knowledge or per
sonal belief. In this case the officer who makes
the complaint simply deposes that he suspects
and has cause to suspect that sundry opium is
oealed.n &c. Suspicion Is not and ought not TO be
Lci,ef. warrant issued on suspicion was against
Hags,a CLaTta at common law, and was no iustifi-
cation to court OF officer.
4. This warrant is Illegal, void and process IN
known TO the law. The Magistrate had no iuris-
diction over these plaintiffs by reason of the com
ufaiuf and all searches and TWdgr
Illegal making all concerned IN issuing or serving
or authorizing the service Of The writ liable IN
damages TO the parties iniuriously affected.
Citing numerous American and English decisions
and te1ts.l
;. The Marshal is in the eye of the law present
with his deputies and officers when they serve pro-
cesses and is liable for their acts@H should ses
that they are properly instructed IN these matters
The plaintiffs counsel sand he believed that the
execution Of the opium law IS the source Of cor
ruption and irregularities tending 10 lrng the law
into deserved contempt. He said tie plaintiffs
cared nothing for money damages, hui desired
their rights OF person and property TO respected
by Magistrates and officers Of the law.
Mr.. Bckerton claimed that Magistrate has a
right to discretion IN deciding whether a,proper
basis Is laid for issuing warrant, and that the
statute required him 10 issue il If he was shown
cause 10 suspect that parties were concealing or
smoking opium on their premises. That the form
Of complaint and warrant in this case was print
cd form which he did not prepare but which was
prepared by the authorities whom he must respect.
That II would not be proper for him 70 call upon
officers 10 show him all the facts on which they
proposed to prosecute, as there would be danger
Of prejudicing a case. That no officer is compell-
ed 10 disclose information on which he brings a
criminal prosecution. Finally. that he had not
authorized the officers to delay the service OF the
process.
Mr.. Preston for the Marshal. claimed that how
ever It might be under the law Of England, the
Marshal here is not liable for the acts of the con
stables, the writ being expressly directed To the
Marshal OF his Deputies or any Constable
The arguments were full OF interest. and the
Chief Justice took the case under Amusement