The Hawaiian gazette., 1889-04-02

EETDHE JUDD c. J., Il GULLY, PRESTON BICAEH
TON and DOLL, j.
ODalioa oJ the Court per Mr Justjc
McCully.
The defendant appeals from con
victiou in the Police Court Of Homo
lulu for keeping or his premises, il
Honolulu, on the 9Th of November
1855. on King street, five gallons o
spirituous liquor, 10 wit, Of MadeirS
wine and beer, contrary to the pro-
visions Of Section I of Chapter LNVII
Of the Acts of 1855, the defendant being
a licensed storekeeper,
The defendant admitted the facts
charged, but claims that they do not
constitute q criminal offense under
the Constitution and Laws of the Ha-
waiian Islands.
The statute is entitled Z" An Act to
better Prevent Illicit Traffic in Spirit
nous Liquors.
Section ] is as follows: at shall be
unlawful from and after the passage
81 this Act, for any person or persons
conducting or carrying on any bust
ness or trade, for the carrying on of
which q license is required by the
Government, or for any other person
except druggists, physicians and IL
censed dealers in spiTituOus 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 spirituOus 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 spirits. The
definition of the term spirituous
liquor herein shall be the same as is
contained in Section . of Chapter
LNIN. OF the Laws of 1881
II is strongly contended by defend
ants counsel that the section has no
sensible and consistent meaning, and
that the strict reading of its clauses
yields only absuTdities.
Il cannot be denied that the statute
j. 80 lacking in plain meaning that ii
requires close examination to deter
mine what is herein enacted.
What scope and effect is to be given
10 the words - for any other person
except etc. . If we make a paren-
thesis about the excepted matter the
thing said Is that no person holding a
license, and no other person, shall
keep or suffer to be kept on the bust
ness premises of q licensee any spirit
nous liquors. Druggists, physicians
and licensed dealers in spirituous
liquors are excepted. They are not
prohibited from keeping spirituous
liquors on any licensed premises, !
either their own or of other persons. !
On the other hand, the licensee shall |
not permit any person to keep liquor |
on his premises-druggists, etc, not |
excepted. The most favorable inter |
probation which will support the sta |
JuIe and conform TO the supposed i'll |
tenlon OF the Legislature, it being |
presumed not 10 intend absurdity, is |
that these three excepted classes are |
excepted from drawing the penalty |
on one who permits them to DO what |
the law allows them TO do, or we may |
ADOPT the Interpretation that rs the
three excepted classes have premises |
u their own, ii Is intended that they
may keep spirituous liquors on their
own premises, merely by applying
literally the rule roddCBdO SiRquLa |
sHgUlig. Neither of these interpre-
.atiOns Is quite satisfactory to us. But
h the case before Us does not touch
in this exception, we may
5ass by the difficulty.
The counsel for defendant contends
hat the latter part of the section must
ic taken TO mean that it shall be I'M
awful for any person except drug
-lsts- etc, 10 keep spiritUous liquors
N his premises unless ii shall exceed
be prescribed amount; but we do not
ind the difficulty i'm giving the second |
clause u reasonable mean
ng. II Is an appendage. If the SEN
ence closed with a period after "any
pIrirUOus liquors. there would be a !
otal prohibition. Now there is added
except [spirituous liquors for the
se OF those engaged on the pTemieS,
nd which [spirituous liquors shall
.ot exceed, . etc. The words we have
oded in brackets are not requisite TO
gpply omissions or deficiencies; what |
: excepted for usen can mean |
othing else than the Immediately
receding subject, and the relative t
ronOun refers TO its nearest antece- {
ent. :
With the view that the statute GER /
linly enacts that the holders of bust ]
ess licenses shall not keep spirituous t
quOrs on their premises except a !
pecified small quantity for personal !
sc, IS the Act unconstitutional The
rst section is complete in itself so c
II as describing and enacting a GER G
AIN unlawful act. The penalty for S
lis Is contained in the sixth section, t
Mich, i'm a general way, prescribes a 1
enalty for the violation of any pro- q
isiou of the Act, there being sundry a
linCs prohibited in sundry sections. /
What Is prohibited in section first
The mere possession by licensees Of !
1iTitUous liquor without intent to
'afiic in it. But spirituous liquors
lay legally be sold, and legally
ought and possessed. This statute C
GATES n new, distinct Offense. The
lssessiOn of liquor without selling or b
tent 10 sell has hitherto been lawful. &
he possession without intent to Ii
affic is not related to the offense of
lett traffic. How can it be said that L
he who possesses spirituous liquor Il
sing legal goods in which he does s.
81 intend to traffic, and in fact S
aveT does traffic, has violated any a
" for the prevention of traffic? The s
tie of this Act does not, therefore, s
-press the action which is made o
nal by il, mere possession without e
tent, etc. Article Il of the Consti- a
ltion requires that every law shall o
nbrace but one object, and that shall a