The Hawaiian gazette., 1886-03-30

of the Civil Code Section 554 prescribes that thu
collectors of the several ports shall be eI-offui
inspectors, appraisers and examiners at their re
spectlve ports IN all cases requiring inspection
appraisment or examination of goods or proper,
coming II any way into such port without inv6.ce
or when undervalued or in any other case vhe1
! the same may be deemed necessary by the col
lector.
This section Is under Article Is of the Code en-
titled "Of the arrival and entry of vessels" and
section 545 requires manifest TO be furnished the
collector by the commanding officer Of every mer-
chant vessel arriving from foreign port or from
domestic port with foreign merchandise or
board. By foreign merchandise Is meant mer.
chaudlse from foreign ports that has not been en-
tered at a custom house. When goods have been
entered and have passed the custom house they
| become domestic goods. within the scope of this
Article No manifest Is required Of coasting YES
sells on arriving at any port. But it is not neces-
sary TO discuss this section further in the case
/ before Us the officer whJse examination of goods
was resisted by the defendant was not the CoIlec.
tor OF the port of hahului but the Port Surveyor,
TO whom this law does not apply.
Section 662 is especially relied upon BY the pro
secution. II reads;
| 1T shall be lawful for any Collector OF other
ofhcer Of customs employed for the prevention OF
smuggling, or for any sheriff constable or police
! officer to 90 on board any vessel when he shall
have reason to suspect any goods subject TO duty
! are concealed on board of such vessel and upoa
| producing his commission or appointment to Of
nee, to search for, seize and secure any such
goods
This section occurs under Article XVI of the
Civil Code under the title 'ot smuggling and
other frauds against the reyenus laws" These
sections presumably apply to vessels from foreign
ports.
But it Is urged that a vessel from foreign port
might transfer foreign goods 10 coasting vessel
outside of any OF our ports and unless the right of
search OF coastlng vessels was allowed the goods
could be thus introduced without paving duty and
TINS smuggling TO great extent could be engaged
IN with complete immunity. We think the law is
iull enough TO cover such cases. for section 6I5
pTescrbes that all boats, vessels and craft of
whatever description in any way used or engaged
IN such smuggling or attempt to smuncle shall be
forfeited. But the connection in the use of a
coastlnC vessel under this law as auIilliarv to
foreign vessel TO carry out smuggling, would have
would undoubtedly exist.
In the case before US however, the goods were
not attempted 70 be searched by the officers on
board of any vessel. They had been landed from
an lnter-lsland steamer and no connection is
sought to be established between her and a vessel
bringing forfeitahie goods from a foreign port
The goods had been landed and were In a ware
house Of the steamship company 10 which by pre-
mission of the owner the customs officers were al
lowed access and which was used for customs pur-
poses as occasion required.
The Attorney General contends that their status
should be considered as the same As if still on
board the vessel. The fact remains however that
they were not then on board of any vessel and tie
right TO search for them without warrant is not
within the letter of the Law. The warehouse in
TINS case was near the shore but the principle must
be the same if 1t was miles inland; and to allow
customs officers, without warrant to search baggage
and cases of merchandise all over the islands
niles away from the sea coast and at any interval
OF time would be intolerable and lead to great
abuses.
Section Cos gives the necessary authority to Of
hcers of the customs, also police officers when
the concealment of smuggled goods is suspected
70 procure search warrant and thus be entitled
Fnr rNar rr0iu-
search and TO break open doors &c. If resisted
This should be followed in case of goods after thev
are landed. The law allows the arrest without
varraut of person charged with or suspected of
the otense Of smuggling or attempting TO smucsle
and also the selziuC of any specific article of mer
chandise liable TO forfeiture anywhere on land or
water, without warrant by any person employed
for the prevention Of smuggling or bv any police
officer; but we can find no authority for opening
ordinary articles ot merchandise after they are
landed, not being baggage, by a customs officer
nor the Collector himself, without search war
rant.
We are aware that there may be incouyeniepces
arising from our construction of the law. Many
of our ports Of entry have been created of late
years and provision has not been made for the ap-
pointmeut of magistrates TO reside at these porfs
to whom application can speedily be made for the
search warrants when required. Some legislation
may be found necessary 10 give officers, where the
concealnent OF substances occupying but little 4
space, like opium Is suspected. greater authority
We must remember that the Constitution Article |
Il, provides that every person has the right to be
secure from all unreasonable searches and seizures
OF his person, his house, his papers and effects
and we are not authorized 70 make this right of i
no value TO the individual by enlarginC the scope
o. statutes beyond their plain meaning and in |
tendment
Officer Wagner not being in the discharge of |
hls othclal duty when the acts complained Of on
the part Of defendant took place. defendant 1
should not have been convicted for resisting him
and the charge of the Court was erroneous So far
as II is contrary to the view nov held.
1he exceptions are sustained ana a new trial
ordered.
HoSoruIU, March Sth. 1856.
THE CouRT FEB McCU1Lr J.-After the above
decision had been fled, the Attorney General
the Court for a rehsarino uyinciralIv l
IN the ground that the identity of the rght 10 sei
FOODS on board of any vessel with the right 10 I
real them in tins warehouse quasi they were on
he vessel, had not been fully presented in his
ormer argument. The Court consented TO hear |
mother argument, desiring that the decision If
question of importance TO the public service should
,e based upon consideration of every element of
he case.
Upon further review of the statutes we are nm
ble to came to different conclusion Section
o. Is placed among sections which relate to
mugciug which Is defined in section 655 the first
this article, as the importation, landing or tran
hipping of any goods subject TO duty without
ne entry, payment Of duties DC. at the custom
ouse, and transhipmeut of merchandise from one
orslgn vessel to another was subject to transit
uty, as per section 562 until repealed IN 1860 by
n act requiring still a permit from the custom 4
ouse, under the penalties Of smuggling
Importation and introduction can mean NOTHING /
ut bringing into this Kingdom from a foreirn !
ountry, and transhipping can mean nothing but |
tra1shipment from a vessel arrived from abroad |
another foreign bound. Section Col providss
nat custom house officers may board and examine
ny vessel on her entry into and departure from
lncdom. Section co. provides that for the ure
antl0n of smuggling i.e the introduction of goods
ON a foreign port, customs officers and police
Ulcers may board any vessel on suspicion of foods
'ncealed ON board aud after exhibiting their
or appointments, search for, seize and
cure such concealed goods.
o our apprehension no other construction can he
aced on the language of the section than that
my vessel means vessel from foreign port
OF only Goes the whole context show this, but the
ference to be be drawn from the provision thar
e officer exhibit his commission or appointment
ut1ce. For surely 1t cannot be intended that
police officer having duty to execute on an
ter-lsland vessel must produce his commission
nd II would be a perTersion of language to hold
at package which has been landed and placed
a warehouse which is also used as a custom
use store, Is concealed on vessel. This section
Is plain obvious meaning, and all rules Of con-
ructlon require this TO be given. 1t means there
authority given to search a vessel for concealed |
ods. IL fits the case OF vessel suspected OF
wing made fraudulent or defective manifest.
e may have discharged everything as reported
d lie in port as i discharged ship ostensibly |
1ting cargo, bat also waiting the opportunity
smuggle her Concealed goods She may be
arched
The next section, 66S, provides for search. bgt
der search warrant, for goods suspected to be
luegled and concealed anywhere on shore.
ctions a54 and 555 provide for inspection and ex-
linstion of goods Other sections provide for
z1re and forfeiture Of baggage which has been
The Acknowledgement Is necessariiv nblios5 fo-