The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-09-03

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physicians certificate that opium is
4 proper remedy for the disease
from which he is suffering, who
shall be concerned in carrying or
dealing in opium shall be punish
ed" etc.
- Section 5. All ships, etc, hav~
ing opiam not imported by or be-
longing to a licensed dealer or pur-
chased by any person having a
physicians certificate shall
be forfeited"
1t is enough to say that the libel
is not drawn 10 meet the Act as 50
modified. The illustration shows
/ that such a result or meaning could
not be extracted from the July Act
consistently with the object eN-
pressed in its title.
".
The still later Act Of September
IL. 1888, re-enacting in terms the
Act of 1880, prohibiting the import
alton of opium except by the Board
of Health, and expressly repeating
the Act of October Is, 1856, does
not operate 10 re-ensct the Act of
July IL, 1856.
In the King cS Young Hong, this
Court recently held that the Act of
1880 was not in force, by reason of
the attempted, but as the Court
held uncertain and provisional re-
&aetment AT the Special Session of
1889.
In the King rS. Young Tang,
April Term 1887, the Court had
also held that the Act of 1880 max
! ing the possession of opium an Of
Tense was not in force after the Act
of October Is, 1886.
The Act of September IL, 1855,
contains q clause 10 the effect that
no person or vessel is thereby eX-
empted from the penalty ''pre-
>cribed by the laws of the Kingdom
against smuggling But this libel
Is not brought TO enforce 4 penalty
+ prescribed by the laws against
smuggling, but under the remark
ably sweeping and peremptory Act
of 1856, whereby, ss,ll ships COM
I ing into any port in this Kingdom
having opium on board, concealed
in any secret or disguised place
( whatsoever constructed in such
I ships S1hH b. forfeited"
In considering whether this Act
OF July u, 1886, i now in force,
the decision in the King rs. Brad
I fsy, 1 Haw., Isl, is immaterial, for
that case decided that q conviction
on an indictment for smuggling
opium required sentence of fine
and imprisonment under the pro-
hibiting Act Of 1874, and did not
allow a sentence of fane or impris-
onment under the 655th Section OF
! the Civil Code, re-enacted in Sec
ton II, Chapter Ink. of the Penal
Code.
In the Bradley case, the defend
ant, by importing opium had vio-
lated the express prohibition against
its Importation contained in the
Act Of 1874, and it was immaterial
, whether in so doing he had or had
not violated the provision against
smuggling contained in the 655th
Section.
The remark of the Court in the
Bradley case, that, :. uOtwithStand-
ing that opium Is now prohibited,
it Is still an object Of smuggling"
was in no way necessary in order
10 decide that the defendant could
be sentenced under no other Act
but that Of 1874, which he had in
Z terms violated. But whether that
view, which the Court then ex-
pressed 81 to the meaning of the
word - smuggling" was O6itsr die
tJEHE or not, the case presented by
this libel i not affected by il, for
the sole question now arising l.
whether the Act Of July II, 1856,
IS still in force.
By the reasoning Of the Court in
the Young Tang case, the Act of
July u was repealed by the Act Of
I October Is.
II, Is this Court held in the
Young Tang case, the October Act
repeats by Implication the Act of
1850 prohibiting private importa-
tion of opium, it mast by force of
the same reasoning De held that it
repe4Is the July Act, which pun
ishes anyone concerned in or deal
ing with opium, and confscating
every ship having it On board in
any secret place
V.
To cOustrUe the Act 50 a. 10 re-
quire the forfeiture Of the vessel
for no act, negligence or fault of
either the owner or captain, but
from the mere fact that on It's az
rival here opium was on board in q
concealed place, would violate the
provisions Of the treaty by which
the property Of American citizens
i entitled 10 g ample PTotectiOHH
Such = view Of the law would not
be ample protection, fOr il TOuII
allow the cU1fsc4tiOn Of the whole
feet Of American merchant vessels
doing business with this COUNTY,,
=fr-Sz r.7 ye==eI ran h. ah-oIufeIv