The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-04-17
OPINION OF THE COURT, BY FREAR, J.

OPINION OF THE COURT, BY FREAR, j..
This issa 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 1880 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 q,
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 struggled in
10 the Republic, solely on the alleged
ground that opium is not an article ca
pable of being struggled within the
meaning of the statute.
Inc master also Hl6O on MS own
behalf a claim for certain articles as
his personal property, namely, 1 chro-
nometer, 1 pistol, seXtants, sundry
maps, epitome of navigation, nautical
almanac, parallel ruler and diyiders,
1 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
ative 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 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 II, 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, t Haw. 1926,
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 it's 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 5discloses
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 1CoIl1SI1fC anu hOI
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 we'll as dutiable ar
ticles. Such intention was inferred |
from Section D of the Act, which is |
found repeated as Section of Act II /
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-
5cribed by the laws of the Hawaiian /
Islands against smuggling" The first |
If these views was taken in the case of |
he Mary Belle Roberts, Haw 1913, in
which the vessel and opium were con-
lemned. The second view was taken
n The King V. Bradley, Haw. 1877. a
criminal prosecution against a person
Both views were set forth in the opin-
on mot reporteO of the trial justice
n the Mary Belle Roberts case.
In view of these decisions and the
urther fact that Act II, Provisional