The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-11-06

hqor TO certain contrary the Secs IS
and - Act Oh Laws of 1896 and here
exceptions One Of these exceptions the question the
construction of these sections of the
This Act general relating licenses and these
sections III that portion Of the which relates
chandise licenses.
Sec. rs reads thus: NO person holding a merchandise
license shall be permitted by thereof sell furnish
opium preparation thereof any poisonous drugs
alcohol pirituous liquors other Intoxicating drink
Sec - reads thus ANY person who shall sell imported
goods wares or merchandise without license under this Act
or who shall otherwise violate fail observe any
OF the terms conditions requirements of this Act his
license, shall be fned' &c.
The defendant held merchandise license but liquor
license lie gave some liquor certain persons in small
room used as office in the building with his store. He
charged with furnishing, selling, and there
proof of SALE and therefore the part Section (Which
relates only eng) is involved The latter part of the
sectlon however, prescbes penalty for violating of the
terms conditions requirements of the Act and the question in
this whether the conditions requirements of Sec
20 We're violated lhs section relates to furnishing as well
selling sprtuou liquors and certain other articles But
does prohibit the selling furnishing, does merely pro-
vide that merchandise license shall authorize the selling
furnishing Of those articles!
reads: No person holding merchandise license
shall be permitted by virtue thereof sell furnish the
enumerated articles 1t is contended the hand that the
words y thereof should be construed ION the
premises where the licensed business conducted" This in
order avoid the objection that the section might be uncons
tuona if should be held apply the censee personally
and apart from his merchandise business On the other hand it
is conended that the section should be construed to mean merely
that merchandise license shall these enumerated
articles words that if person wishes sell or furnish
these articles he must procure the special licenses required tor
the selling furnishing of those articles that person not
permitted sell these things by of the merchandise
license the merchandise license would not protect him IN case
he should be under another statute portion OF this
selling furnishing these things without the apprO
pirate license 1t to that the latter the correct con-
srucion although much be said in favor OF the other con-
scton These sections penal and should be strictly con-
srued If it clear that the Legislature intended that the
should be conrued the OF prohibition and
the of exception doubt though the
section penal should if reasonably could consue
to- lnten
the intention of the Legislature the court should lean to
the construction favorable the accused general mercha
disc license would naturally be taken to permit the selling or
furnishing of all classes of merchandise Hence II the Legs
intended there should be exceptions for which other
special licenses should be procured would naturally insert
of the kind in question that the selling OF
furnishing of the excepted articles should not be permitted by
virtue of the merchandise license 1t natural to read
the section providing that the enumerated articles shall not
sold furnished by of the license than to read as
providing they shall be sold furnished the licensed
premises This differs the clause in Section H.
relating lodging and houses hotels boarding houses
and restaurants which expressly provides that Intoxicating
liquor shall be furnished sold the licensed premises
This section perhaps capable of three constructions 1t
may that the enumerated articles shall not be sold by the
licensed CD anywhere % the licensed premises or
( the license heher the licensed premises
anywhere ese The natural construction IS the last The Leg
stature we'll have intended this construction and to
this the the need be read merely they
written Under the these constructions the section
might be unconstitutional At least the Legislature probably
did place restriction of this kind upon certain
class of merely because they held merchandise licenses
Moreover reading in this would render useless
the words be permitted by virtue thereof, to- The second
construction like the third well have been intended by the
Legislature but would require the elimination of the words "by
virtue thereof before the words to sell furnish and the
insertion the words con the licensed after the words
'sel furnish"
The defendant did not furnish the liquor in question "by
virtue of merchandise license; he did furnished by
virtue any license He should have been charged if all
that prohibited the furnishing of
spirituous liquor without a license.
In of conclusion upon this point, it will be
the other points raised by the exceptions
These other points relate the construction of the word fu
nh and the consituonaitv of the section question
The exceptions sustained and the defendant discharged
Dep. Atty Gent f. p Dole for prosecution.
Th,rstOn G Stanley for defendant
DISSENTING OPINION WHITING, J..
respectfully dissent from the decision of the majority of
the Court
Act "a Laws of 1896 in an amending and
soidating the laws regulating licenses.