The Hawaiian gazette., 1893-05-30

1t is far better that we should abide
by the words of the statute than seel
to reform it according to the sup
posed intention"
Every departure from the
clear language of the statute is il
effect an assumption of Legislative
powers by the Court. 1t has indeed
been intimated that this is the case
whenever the Court permits the con
sideration Of consequences to die
tate the construction of doubtful
act. The judge must decide, but
the law has not spoken. 1t is evident
that his functions necessarily become
to certain extent legislative" End
Itch on the Interpretation of Statutes,
PIP. 1912, and cases cited; Brown vs.,
Blongher, IA Peters, ITS; Cearfess
VS.. State, ~ Ind, 4O3.
The only means the Court has of
finding the intention of the Act is
from the words in which it is ex-
pressed. It would seem clear
from the evidence in this
case that defendant did represent
Congdon & Co. and went about the
country advertising his employers
business and getting people to send
orders to them for liquor. 1t may be
called soliciting or procuring orders;
and it may be that the Legislature
intended to reach people doing this
kind OF business but, in our opinion,
it certainly failed to do so or express
it in Section 2 The section under
which defendant is charged only
makes the act of forwarding the
order a violation of the law. We
cannot make the word torl0drd mean
solicit or procure The meaning of the
word Jor1Oard is defined in the Century
Dictionary as follows: To send for
ward; send toward the place of des-
tination transmit as, to forward a
letter or dispatches" This Act seems
to have been unfortunate in its fail
ure to carry out the supposed inten-
ton of the Legislature, as Sections l
and of the same have been declared
unconstitutional and imperative.
(See Rex VS.. Fernandez, 7th Haw. sos;
Wing Wo Chan & Co. vs.. Hawaiian
Government, 18th Haw., 1857 We do
not consider the fact that the ship
ping receipts, and perhaps the bills,
were sent in one envelope to Andrade
and by him delivered with the goods
to the parties ordering them, can in
any way affect the defendant San
Tana under this charge.
The prosecution in this case con-
tends that the case of Rex vs.. j. r.
Gaspar, 8th Haw., 233, is conclusive
in this case. We are not of that
opinion in that case the defendant
was charged with selling liquor
without license contrary to Chapter
A, Sections % and 81 of the laws of
1882" The circumstances of that
case were entirely different from this
case in the Gaspar case the de-
PENDANT took orders for wine and for
warded them to his employer the
wine was sent to him and ne de-
livered it to the person he got the
order from, and collected the money;
that was held to be a sale by de-
PENDANT. Another point decided in
that case was, that the Hawai-
ian Wine Company, holding a
license to sell spirituous liquors
at designated store in Honolulu,
were not allowed to have branch
stores at other places, or allow Gas
par to sell at Hilo, Hawaii, under
that license. The defense was that |
he, Gaspar, received and forwarded |
orders for the goods, and received |
and delivered them as ordered and |
that he was merely an agent or
servant of the Wine Company. The |
defendant in the case at bar was not |
charged with selling liquors, and |
there was not one iota of evidence
that he forwarded any order, or that
he received or delivered any goods.
We are of the opinion that there
was no evidence, either the defend
ants or that of any other witness,
which showed that he, the defendant,
mad done any act that was a viola
ion of the law under which he was
charged. We therefore sustain the
exceptions, and order new trial.
Deputy Attorney General G.. X.
Wilder for the prosecution; P. Neu-
mann for the defendant.
Honolulu, May Is, 1893.
DISSENTING OPINION OF JUDD, C. }.
1 am obliged to dissent from the
lecision of my associates. The evil
Ience of defendant himself shows
hat he, paid employee of H. Cong
lon & Co., licensed dealers in spirit
Ious liquors, having their place of
in Honolulu), while at Hilo
n the island of Hawaii, went about
mong the Portuguese and others
nd procured orders for liquors to be
emit them by his EMPLOYERS. The