The Hawaiian gazette., 1889-04-02

HOtutU. HCHO M CucuCtOit OY COZ
sent.
BEFORE JUDD, c. j.. M'CULLY, PRESTON, BICB
ERToN AND DOLE, J.J.
Dissenting Opinion by Mr.. Justtc
Dole.
: This is an appeal from the Polio,
Court of Honolulu on points of law.
The defendant being licensed
storekeeper, was arrested for having
on his premises in Honolulu, where
he carried on his business, five gal
Ions of spirituous liquors contrary Il
the provisions of Section first of " Al
Act to better prevent illicit traffic il
spirituous liquors." passed by the
Legislature of 1883.
The defendant admitted the facts
charged, but defended the prosecution
on the ground that they did not make
q criminal offense under the laws and
Constitution.
He was sentenced to pay q fine OF
twenty-five dollars and costs, and the
spirituous liquor mentioned was con-
fiscated.
The defendant appealed to the SUI
preme Court in Banco upon the fol-
I 4VNlIS pOilltS VI law w WIZ
~. Because Section l of Chapter
LXVII. of the Session Laws of 1888,
under which the said charge is
| brought, is unconstitutional and void,
and particularly because the same is
in conflict with the provisions/Of Ar
ticles l, 6, 8, L, II and AZ of the Con-
stitution.
go. Because the act charged against
| the defendant is not criminal offence
under the Constitution and Laws of
| the Hawaiian Islands.
"3. Because the Judgment herein
made against the defendant is con-
trary to the Laws and Constitution of
the Hawaiian Islands, as being based
upon an unconstitutional provision of
the statute"
The enactment in question is as fol-
lows: at shall be unlawful from
and after the passage of this Act,
for any person or persons conduct
ing or carrying on any business or
trade, for the carrying on of which
a license is required by the Govern
ment, or for any other person except
druggists, physicians and licensed
dealers in spirituOuS liquors, to have
or keep, or permit on, or about the
premises where such business or any
portion thereof is carried on, or where
any portion of the stock used or kept
for such business is stored, any spirit
uous liquors, except for the use of
those engaged on the premises, and
which shall not exceed at any time
one-half gallon of wine or beer or one
quart of ardent spiIits.n
There is no question that that part
of the judgment which confiscated the
liquor mentioned in the pleadings
must be overruled, as there is no law
that authorized the forfeiture of liquor
so unlawfdlly held.
The defendants counsel, in his APP
peal, claims that the law above quot
ed is unconstitutional, and he argues
that q literal construction of the
words of the statute produces an alb
surdity ; for instance,-th the words |
to quote only those necessary to an
understanding of this question-it
shall be unlawful for any person ex- |
cept druggists, ETC., to have or keep,
or permit on, or about the premises,
"any spirituous liquors, except for
the use of those engaged on the prem |
Uses, and which shall not exceed at |
any time one-half gallon of wine or
beer, or one quart of ardent spirits,n /
can only mean that it shall be unlaw-
full for any person, except druggists,
etc, to have on his premises any |
spirituous liquors which shall not eX
coed one-half gallon of wine, etc. in
other words that no one can have less
than that quantity unless he is
druggist, physician or licensed dealer
IN spirituous liquors.
This is, indeed, an absurd conclu-
sion, and if it is the law the defendant
is certainly entitled to a discharge.
To reach this Interpretation it is nee
essary to consider the words, " except
for the use of those engaged on the
PREMISES as q parenthesis, and the
defendants counsel has for the eluci-
dation of his point, placed them in
brackets in his brief, which is not the
case in the statute. If these words
Are read without considering them as
1 parenthesis, the Interpretation con-
ended for by defendants counsel,
Ices not belong to them for in
stance, it shall be unlawful for any
person except druggists, etc, to
4dNS any SpIlIluOuS llIuOIS, GAG6pI |
or the use of those engaged on the
premises and which (referring to the
liquors for the use of those engaged |
IN the premises) shall not exceed at
my time one-half gallon of wine,
ETC." Both of these renderings are
possible from the words used: the
'ule of Interpretation cOmpels me to
ldOpt the one that gives the statute {
fleet, rather than the one that leads
o absurdity. (Vatters 10 and Is Rule.
In constituting penal statutes, we
must not, by defining, defeat the OBJ !
-ious intention of the Legislature"
Potter's Dwarris, 247). / have no I
in finding that the offence
described, is the having more than t
'One-half gallon of wine or beer, or 5
me quart of ardent spirits" under the /
mentioned, and over
ule the point made upon the con- t
truction of the statute. {
The defendants counsel further con- {
ends that the law, under which these
proceedings have been taken, is I'M |
institutional in that it makes it an t
ffence for storekeepers to do that 6
which the rest Of the community may l
10 with impunity. 6
Referring to the statute, we find it
eads, at shall be unlawful . {
Or any person or persons conducting I
7 carrying on any business or trade, l
Dr. the carrying on of which a license
) required by the Government, or t