The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1883-01-06
MEDIARY COURT.
(Before the Chief Justice sitting in the place of
the Police Justice Of Honolulu.)
HANG LUNG KEE & Co. VS.. r. F. BICKERToN AND
w. G. PARKE.

NDSlOlC II SuICl clllluE III TIC plbCt VI
the Police Justice OF Honolulu.) :
HANG LUNG KEE 6 Co. VS.. r. F. BICKERToN AND
w. G. PARKE.
JUDGMENT.
The following is a brief summary of the judg-
ment delivered in this case
This is an action of trespass on the case, the
Complaint alleging that on the 9th November last
the plaintiffs premises were searched and the
plaintiffs disturbed, insulted, ill-treated and
assaulted by one F.. Marcos and B.. Oadt and
others, policemen, acting by the unlawful author
ity and orders of R. F. BickertOn, Police Justice,
and w. g. Parke, Marshal of the Kingdom, in
contravention OF the ~pleintihs' private rights
under the law, to their damage $500.
(The circumstances of the issuing of the war
rant ON the 18th October, and it's execution on
the 9Th November, 1882, have been previously
published in these columns, also copies of form
of search warrant used on this occasion)
1t is not claimed that The Marshal had any per-
sonal knowledge OF this process, and the At
torney-General contends that SO far as he is con-
cerned, the form OF the process Is immaterIal, as
he did not receive 1t nor execute it himself, nor by
his deputy, as constables are not appointees or
deputies of the Marshal. Gu the other hand it
is contended that in the eye of the law, the Mar
shall is personally present when any process is ex-
ecuted, and that he is responsible for the acts OF
his deputies and of all officers executing process.
The power Of removal Of constables by Mar
shaIs is not supposed to attach responsibility, for
this is also vested in the Governors, and in the
Judges of the Courts OF Record and Police JUS
tices, the latter NOT being executive officers. To
hold an officer responsible for the acts OF an under
official in the same department whom he does not
appoint would be an anomaly and an injustice.
. The warrant was not received by the
Marshal; nor was it lodged in his Office, and by him
put into the hands of an officer to be executed;
nor did lie take any part in it's execution; nor was
he in any way cognizaut of 1t.
a. cannot hold him responsible for its form or
n i,ris1i0tInn nr far anu HnIanlf in ifS avn.
cution, and accordingly render judgment in his
favor"
The liability of the Police Justice is next con-
sidered. In this clse, the oath made is that f.
Marcos complains and informs = = that the fol-
lowing goods, to wit, Sundry opium, and that lie
hath probable cause to suspect that said goods
are concealed on the premises Of Hang Lung Kee.
etc
In effect, the oath is that the afiant suspects.
The Constitution requires (Article l2) that no
warrants shall issue but on probable cause,
supported by oath or affirmation and describing
the place To be searched, and the person or things
to be seized The Statute also (Penal Code,
chapter AZ, section ~ prescribes that a " Search
Warrant can in no case be granted, but on ai6da-
vat setting forth sufficient facts in the opinion Of
the Magistrate to justify the issuing of such war
rants
Ills Honor considers that the facts of the aft
davit itself must be such as to afford grounds for
belief that the facts exist, and that the magistrate
must be convinced that there is probable cause
for issuing the warrant or making the charge.
The affant must swear to sufficient facts which in
the opinion OF the magistrate would justify the
issuing Of the warrant, and this affidavit must be
according to the ''beliel' OF the afiant.
His Honor failed to understand how a suspicion
that sundry opium is concealed on the premises
Of "A" answers the requirements Of the statute.
1t is not a criminal offense that opium is concealed
on Il PERSONS premises, without the averment
that it is in the possession of some person. The
essence of the offense is the unlawful possession
of opium, not the mere fact of it's existence con-
cealed on a persons premises. | think the afh-
divit should set forth that the afiant believes that
opium is in the unlawful possession of n named
person, concealed on certain specified premises, in
order to authorize the magistrate to issue the war
rant, and anything short Of this is insufficient.
The 18th article of the Constitution also pre-
scribes that the place to be searched shall be de-
scribed. Ii the Magistrate was deceived by the
affidavit in respect to the same, Hung lie Kee, he
is exonerated.
The 18th article of the Constitution in declaring
that every person has tho right to be secured
from all unreasonable searches and seizures of
his person. his mouse, his papers and effects" Sc
cures to the citizen Il highly valued and impor-
tant civil right. Says Judge Cooley, san unlaw-
full search and seizure is an aggravated trespass,
and should be visited with corresponding damages.
Search warrants are allowed to be used only after
a showing of legal cause under oath to the salts
faction of the Court or Magistrate.
The Courts must watch the summary processes
with extreme care, and abuses Of them though
unwItlingly made. must be corrected.
81 ought to say that the form OF complaint
and warrant used in this case, being printed
forms and presumably prepared by the Law
Office Of the Government, were well calculated to
throw the magistrate off his guard: The
search was not conducted with violence or
special indlgnity still there was an unlawful in
vasion Of the plaintiffs premises. The plain
ti0s do not ask for heavy damages, and feeling
assured that the awarding of a small amount
will effect the correcting of the evil complained
OF. | Gud for the plaintiff in the sum OF twenty
dollars and costs against the Police Justice
A. S. Hartwell for plaintiffs. r. f. Bicker-
ton pro Sc. Attorney-GeneraI Preston for the
Marshal. Honolulu, Jan. 4, 1884.