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

Legislature, rs manifested by their
words, is to be overruled but that
in cases where the intention is not
distinctly perceived, where, with
out violence to the words or appar-
ent meaning of the Act, il may be
construed TO embrace or exclude a
particular case, where the mind
balances and hesitates between the
two constructions, the more re-
Stricted construction ought to pre-
vail; especially in eases where the
act TO be punished is in itself in
different, and is rendered culpable
only by positive law The .AG-
rS&ture and Cargo, l Broken
brough'S r., 935.
On the whole, counsel for the
owners claim that the ship ought
not 70 be forfeited on this libel.
BY THE COURT The point in
the demurrer numbered three spe-
officially sets up that that the Act
under which this libel is brought
has been repealed by later statute,
by being in conflict with the pro-
visions of it and by the general
clause found in Section IL that laws
in conflict are hereby repealed.
The former Act is Chapter VII.
Of the laws of 1886, approved July
u, the latter is Chapter LXXIIL.
Of the same year, approved October
10. Chapter LXXIII. is an "Act
to regulate the importation and sale
of opium in this Kingdom" 1t
provides that 4 license may be
granted TO one person TO import and
sell opium in this Kingdom. The
licenSee is authorized "a to import
opium through the Custom House,
paying duty of fifteen per cent.
Gd rGiOreH and stamp charge of
one dollar on each half pound i'm
ported. All opium seized which
has been brought into the Kingdom
without paying duty, and all opium
which has not been stamped shall
be forfeited to the Government and
shall be stamped and may be dis
posed of to the party who has re-
eeived the license, upon his paying
the duty and the stamp.
This is all which this Act con-
tainS relating TO the importing of
opium, and it is impossible to con-
ceive in what way it conflicts with
and so repeats the provision in
Chapter VII, that all ships coming
into any port of the Kingdom hav-
ing opium on board concealed in
false buIkheads, false bows, double
sides or bottom, or in any secret or
disguised place whatsoever, con-
strueted in such ships or boats,
shall be forfeited. Opium concealed
in the manner described must be
deemed to be so with 3 fraudulent
intent, and in violation of the laws
restricting the importation of OPT
um. rs well as of those prohibiting
it. 1t would equally be so, if it
could be supposed, as was suggested
in the argument, that 1t was done
by the one licensed dealer who was
authorized to import, for he must
pay duty and have his tins stamp
ed. The provision in Chapter VII.
is enc of the projections given to
the licensed importer against illicit
traffic.
By no rational inference can it be
held that the later Act authorizing
a limited importation with duties
to be paid and stamps to be affixed
to every tin, is repugnant to the
former in respect to the prohibition
of cOncealment of opium in dis
guised and secret places.
But if this Chapter VII. was not
repealed by its repugnancy TO Chap
ter LX&III-, it was not necessary
to re-enact it in the Act of Septem-
Der IL, 1888, passed in consequence
Uf the decision of this Court in The
King rs. Young Hong. Chapter
VII Is an Act supplementary to
Article % of the Civil Code. '0f
smuggling and other frauds against
the revenue laws" The clause
under which this libel is brought
supplements the previous provisions
against smuggling by making it an
offense 10 have opium on board a
vessel under the circumstances
given, without regard to any at
tempt TO land it. 1t Is distinctly
different in its scope from the stat
utes concerning the possession and
Use of opium, which had to be re-
pealed when a license had been
granted to sell and use it, and TO
be expressly re-enacted when the
statute authorizing license was in
its turn repealed
The contention that the Court
will not decree the forfeiture Of a
vessel unless the completely Of the
master or other officer in the Illicit
act Is shown, Is not in our view
supported by the Hawaiian cases
cited, and Is not supported by the
text OF the statute. In re the Mary
Belle Roberts, 3 Haw., 523, where
the captain had concealed opium, a
part Of which he had landed, the
question was raised whether the
ship, which Is the property Of in
n0cens third parties. be forfeited