The Hawaiian gazette., 1889-04-02

/ IltItDy GSJdDllSucu 10 COullllllGu Will
out an intent to traffic which mus
therefore be affirmatively shown, ant
which admits of defence.
We may also illustrate the differ
ence of this law from other Legislation
and the specific novelty of it by com
parison with the Act of 1882, Chapte
Xiv, Section 80, which has beer
supposed to cover somewhat similar
ground. That enacts that circum
stances existing which tend to show
an intent to traffic, and traffic, sucl
as some significant sign, fitting OF
bar with its apparatus, such as to in
duce q reasonable belief that there i:
a traffic and the possession of more
spirituous liquor than is reasonably
required for the use of persons resid'
ing on the premises, shall be deemed
Orimd fdciG evidence of unlawful sale
of liquor. That is to say, that it is
sufficient proof, until rebutted, with
out evidence of particular sales. No
one is punishable without such evil
dences of intent to commit Illicit
traffic. 1t is n statute rule of evil
dence.
The law we are now considering
establishes as an offense that which
is not illicit traffic, under a title which
is confined to illicit traffic, and does
not express the new offense. 1t must
be held, therefore, that the first sec
ton contravehes Article a of the
Constitution, and is void for this
reason.
Counsel for the defendant contends
that the section is in conflict with
those articles of the Constitution
which guarantee an equality of
rights.
The operation of this Act is con-
fined to one class of the commu-
nifty, viz, those persons whose BUSH
ness or trade requires to be carried on
under a license.
1t is indisputable that the police
power of the State may lawfully be
applied to restrict uses of property
when the welfare or safety of the COM
munity requires it. But it will be
found that these laws are of general and
equal application. The Act of 1882,
which we have cited above, applies to
all persons. It's not only the holder of
q store license, for instance, to whom
the rule of evidence derived from cir
which tend to show an
illicit traffic is applied, but equally
any other person to whom such cir
attach themselves.
The law restricting the storage of
kerosene applies to all persons; so do
the laws relating to gunpowder, to
dynamite, giant powder, etc, the law
nuisances and offensive or
substances; and they all re-
late TO articles and things which the
public welfare, safety or health re-
luire to be guarded, restricted or sup
pressed.
In or view the term dangerous
cannot be applied to spirituous liquors |
in the sense in which it belongs to |
dynamite, gunpowder, benzine, kero-
sene, etc, and there is a fallacy in so |
using it. No one will claim that the |
avs restricting the dealing in spirit
Ious liquors are based on the danger |
rom the inflammable quality of pure
llcOhol. We apply the same word
. dangern to the risk of acquiring an
INJURIOUS or evil habit, and to the liza
)ility of destruction of persons and
by eXplosives-but they are
things. One is subjective, the
Dther is objective. Whoever and what
yer is within the circle of damage of
. dynamite explosion is liable to be
destroyed. Spirituous liquors are to
he majority of people, and to all GER
ainly who do not choose TO partake
# them, not harmful, and not dam
.erOus.
And it does not appear why the pos
ession Of spirituOus liquors is dam
erOUs to the public welfare specially
nd only in the case of persons carry
NO on business under Il license. 1t
will be seen by examining the list of
here is great variety in their char
cter, and that many are of descrip-
ion not suggesting a reason for being
laced under this penal police restric-
ion as to keeping spirituous liquors
n the premises. 1t is not only ven
OTS at wholesale and retail of i'm
orted goods who must be licensed,
ut banks, dairys, livery stables, pork
sellers of salmon, sports
len Ion the island of Oahu, cake !
hacks and hack-drivers, 1
lter-island passenger vessels, shore
oats, must be licensed. On the other (
and, vendors of goods the growth or {
roduct of this Kingdom are, with
w exceptions, e.g. ava, not re-
uired to take license: soda-water
.ands and other vendors of home
lade notwithstanding drinks, require s
o license, although it would seem
lat the evil to be remedied might as
rObably be encouraged in these as in
censed businesses. +
While the police power may be |
lercised severely within the limits {
what is for the public welfare and ! z
fety, it cannot be considered lawful /
make arbitrary determinations, C
u to accomplish other objects under a
l unfounded declaration that they q
e within the proper compass of this t
)wer. d
Mugler Us. Kansas, l28 U. S, at s
lge 661. T
People as. ellison, 100 n. y, $3.50. i
IN re Jacobs, SO n. Y, IS. fl
The King rs. Law Kin, lately de- F
ded in this Court. i
Muglcr Us. Kansas, 12S Z. S., has o
en cited as supporting the Crown in a
is case. We think there is an essen e
Il difference in the cases. P
The Constitution of the State of +
ansas provided that "the manufac- a
re and sale of Intoxicating liquors e
all be forever prohibited in this t,
ate except for medical, scientific 9
id mechanical purposes" and the n
ltute provided that all places where V
ch are manufactured, sold, bartered | q