The Hawaiian gazette., 1896-04-17

:
ing TO be limo ent OF the lilegality.
OPINION OF THE COURT, BY FREAR, ].
This is libel in admiralty for the
/ forfeiture of the British schooner Hen
rietta, her boats, tackle, apparel and
! furniture, and sixty cases and pack
ages containing $3.50 tins of opium or
preparation thereof, weighing 1898
pounds, under Section 655 of the Civil
Code relating to smuggling.
The master of the schooner, in be-
half of the owner thereof, answered,
admitting, as alleged in the libel, that
the schooner is registered under the
laws and flag of Great Britain and
halls from Victoria, British Column
bia; that she arrived at Keau, Oahu,
within this Republic, December 81,
1895, with said opium on board, and
without the consent or authority of
the Hawaiian Board of Health or any
other person legally authorized to
bring the same or permit the same
to be brought into this Republic, but
denied that the same was smuggled in
to the Republic, solely on the alleged
ground that opium is not an article ca
pable of being smuggled within the
meaning of the statute.
The master also filed on his own
behalf a claim for certain articles as
his personal property, namely, l chro-
nometer, l pistol, 2 sextants, sundry
maps, epitome of navigation, nautical
almanac, parallel ruler and dividers,
l pair marine glasses and clothing.
The crew of five men also filed a
claim for wages amounting to from $50
to $50 for each.
The Circuit Judge, from whose de-
cree this appeal is taken, disallowed
the claim for wages, allowed the mas
ter's personal claim only as to his
clothing, the marine glasses and the
pistol, and condemned the schooner,
her boats, tackle, apparel, and furni-
ture and the opium.
AS to the schooner and opium, the
only question presented is whether
under our statutes opium is an article
capable of being smuggled.
The principal argument for the neg
alive of this question is, that Act u,
1893, Provisional Government Laws,
which prohibits the importation of OPT
um except by the Board of Health, re-
pealed, as inconsistent Herewith, the
clause in the general tariff laws which
imposed a duty on opium, and thereby
removed opium from the operation of
Section 655 of the Civil Code, which
limits smuggling to the importation of
goods subject TO duty, without paying
or securing the payment of such duty
This question cannot now be consid-
cred as if raised for the first time. Oh.
90, Laws of 1874, in so far as it bears up
on this question, was identical with
Act u, Provisional Government Laws,
now under consideration. In constru-
ing this Act of 1874 in connection with
the general tariff law, the court held
in the case of the Kalakaua, Haw. 325,
that opium was still within the pur-
view of Section 655 of the Civil Code,
and affirmed the decree condemning the
libelled vessel and opium. 1t is true
the court did not state its reasons for
so holding further than to say that the
questions of law raised had been set
tied in former cases. But the question
was necessarily involved and was in
fact raised by the claimants counsel,
as appears by reference to their brief
on file in the case. An examination of
the former cases referred to discloses
that two views had been taken by the
court, first, that the Act of 1874, as
shown by both its title and its body,
was merely restrictive and not prohib-
tive, and, therefore, left opium still
dutiable, and. secondly, that, whatever
the effect of the Act was upon the duty,
it was manifestly intended by the Leg
islature that opium should remain a
subject of smuggling, the effect of the
Act, if regarded as prohibitive and not
merely restrictive, having been to en-
large the definition of smuggling, SO
far as opium was concerned, so as to in
clude prohibited as well as dutiable ar
ticles Such intention was inferred
from Section 5 of the Act, which is
found repeated as Section of Act ~.
Provisional Government Laws, as fol-
lows: Nothing in this Act shall be
construed to exempt any person or yes
sci from the pains and penalties pre-
scribed by the laws of the Hawaiian
Islands against smuggling" The first
of these views was taken in the case of
the Mary Belle Roberts, 8 Haw 1923, in
which the vessel and opium were con-
demned. The second view was taken
in The King V. Bradley, Haw. 1877, a
criminal prosecution against a person.
Both views were set forth in the opin-
ion mot reported) of the trial justice
in the Mary Belle Roberts case.
In view of these decisions and the
further fact that Of 10 proririonnl