The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-27

W O S0i eoiil eAOeuG leSlSidliFe. EGu
lich on the Interpretation of Statutes
pp- TO II, and cases cited; Brown vs.
Blongher, II Peters, 179; Cearfess
vs.. State, AZ Ind, 403.
The only means the Court has OF
lGdIng the intention OF the Act is
from the words in which it is ex
pressed. 1t would seem clear
from the evidence in this
case that defendant did represent
Congdon x Co. and went about the
country advertising his employers
business and getting people to send
orders to them for liquor. It 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 for1eard mean
solicit or procure. The meaning of the
word t0racard is defined In the Century
Dictionary as follows: To send for
ward; send toward the place OF des
tination transmit {; Us, TO forward q
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 5 of the same have been declared
unconstitutional and imperative.
(See Rex vs.. Fernandez, 7th Haw. sos;
Wing Wo Chan & Co. VS.. Hawaiian
T.h Hovu 400 We 10
not consider the fact that tho ship
ping receipts, and perhaps the bile,
were sent IN one envelope to Audrade
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. e.
Gaspar, 9Th 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 circuIn- tances 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 10
that case was, that the Hawai-
ian Wine Company, holding a
license to sell spirituous liquors
at a 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,
had done any act that was viola
ton of the law under which he was
charged. We therefore sustain the
exceptions, and order a new trial.
Deputy Attorney General G. K.
Wilder for the prosecution; 2. Neu
mann for the defendant.
Honolulu, May Is, 1893.
DISSENTING OPINION OF JUDD, c. j.
I am obliged to dissent from the
decision of my associates. The evil
dence of defendant himself shows
that he, paid employee of IL Cong
don g. Co, licensed dealers in spirit
uous liquors, having their place of
business in Honoiulu}, while at Hilo
on the island of Hawaii, went about
amoug the Portuguese and others
and procured orders for liquors TO be
sent them by his employers. The
method pursued was this: Defendant
would ask a person, A, if he wished
say keg of wine. IL 4 answered
yes, defendant asked him to write a
letter to Congdon & Co. which A
would sign, ordering the wine. If
A WAS unable to write defendant
would write the letter for him. The
letter was then mailed to Congdon g.
Co. and it is immaterial I'd my
mind whether it was mailed 10y
4 or by the defendant himself.
Congdon & Co. in Honolulu would
thereupon ship the wine to Hilo Iii
rected to A and send the shipping
receipt and bill together with others
of the same character, in an envelope
to one Andrade. An
drade's connection with the affair
was this. He had applied for and |
obtained Of defendant the privilege |
of distributing the liquor to the con
signees. His agency in this respect |
was communicated to C0ngdon q |
Co. who approved of it. And when
a lot of liquor arrived at Hilo from |
Congdon & Co. Apdrade would go to
the post office and receive the en-
velope above mentioned, have some
one read the papers for him and he
would then take the receipts to the
and receive the liquor
and load it on pack horses. three
kegs being a load, and deliver it
the district to the custom
ers to whom they were addressed.
Andrade received 25c keg for his
services in delivering the liquor,
which the customer paid. He also |