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

OPINION OF TIE COURT BY BICKEBTO3, J
The case came on for hearing al
the May term, 1892, of the Circuit
Court of the Third Judicial Circuit
held at Hilo, Hawaii, before the Chief
Justice aud jury. After the close
OF the evidence. the Court refused to
instruct the jury to acquit the de
PENDANT, as requested by defendants
counsel, but instructed them to fnd
him guilty, ''as, by his own admis-
sions, he had violated the statute,
Section 2, Chapter 81, of the Laws OF
1888, In procuring orders for spiritu-
Gus liquors, to be sent to III. Congdon
& Co, with the intent that the same
be supplied to these parties" Under
the instruction given, the jury, with
out retiring, returned a verdict of
guilty. To the refusal of the Court
to charge ia requested by defendants
counsel, and to the above charge as
given, exceptions were taken, and the
matter now comes here on bill of
exceptions. 1t appears from the
record that the charge against the
defendant WAS violating Section 2,
Chapter 81, Laws of 1883, at Hilo,
Hawaii, in January, February and
March, 1892" The evidence of the
defendant is as follows:
am employed by Henry Congdon
& Co. of Honolulu; this is their
license; my business Is to collect on
this island and on Oahu, and / write
letters for what people want. take
orders for them. This is power OF
attorney from Congdon to me. I write
letters for people to Henry CODgdon
& Co. have been In the employment
eight years. I have never received
or delivered any liquor; I write
letters for such people who don't
know how to write themselves. If
they know how to write themselves
of course / do not write for them.
wrote a letter for Oliveira, he got his
wine, I have collected money from
him and the other witnesses. 1 know
Andrade, he came to me and asked
me to allow him to deliver the liquor.
/ told him 1 would write to my EN-
ployer and let him know. Bills and
receipts are sent to persons who order
them by Andrade, to whom they are
sent with the shipping receipt. All
the packages are marked with and
directed to the names of the persons
who order them; / am paid salary,
no commissions, and get no other
compensation. 1 am not interested in
the profit on the liquor; 1 live in
Honolulu; / write letters for those
who order liquors; they send the
letters to Honolulu themselves.
never wrote for more than one In
each letter; write separate letter
for each one; they sign it. have
written letters in English and in
Portuguese.
The section of the law under which
the defendant Is charged Is as fol-
lows:
at shall be unlawful for any
licensed peddler, trader, or store
keeper, or any bookkeeper, clerk or
employee of such pedd!er, trader or
storekeeper, except such as are
licensed to deal in spirituous liquor,
to forward to any other person any
order for the forwarding, sale or
purchase of spirituous liquors, with
intent that such spirituous liquors
shall be forwarded, sold or furnished
either directly or indirectly by the
person or persons to whom such
order is sent or given, to or for the
use of any person or persons other
than the person or persons who shall
forward such order"
The question then is: Has the de
PENDANT admitted in his evidence any
act done by him which would be a
violation of this particular law2 The
fact of his being in the employ of
Copgdon & Co, or that he collects
for them on Hawaii CT Oahu, or that
he writes letters to Congdon & Co.
for people who signed and forwarded
those letters themselves, ordering
wine, or that he wrote to his
employers asking them to allow
Andrade to deliver the wine to the
people ordering it, does not make
him guilty of violating this law. In
one part of his evidence he says: II
take orders for them;" this is ex-
planned in the latter part of his evi
dence; but nowhere does he or any
other witness say that defendant for
warded any order for liquor. If the
law provided that soliciting or pro
curing orders for liquor IS unlawful,
undoubtedly defendant would have
to be convicted under this charge;
but it does not. We cannot change
the language of the statute, supply
want, or enlarge upon it In order to
made it suit a certain state OF facts.
We do not legislate or make laws.
Even where the Court is convinced
in its own mind that the Legislature
really meant and intended something
not expressed by the phraseology OF
the Act, it has no authority to depart
from the plain meaning of the Ian
guage used. 81 cannot Doubt" says
Lord Campbell, "what the intention
of the Legislature was, but that in
tention has not been carried into
effect by the language used.
1t is far better that we sholld abide
by the words of the statute than seek
to reform it according to the sup
posed intention" =
Every departure from the
clear language OF the statute is in
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 a doubtful
act. The Judge must decide, but