The Pacific commercial advertiser., 1900-12-20

against the defendant, the Attorney
General. as a member ex officfo ana 4.
president of the Board, acted in a qua
81 judicial capacity. as did all or the
other members of the Board, callins&
for the exercise of candid and impair
tial judgment and sound legal discre-
tion. Il
State ex rel. Hathaway VS.. State
Board of Health, 103 Mo. 22-2S.
To sit in judgment upon the right OF
one TO practice vocation which Is the
source of support for himself and
family and for which he has qualified
himself by education, study, observa,
ton and experiment, and to humiliate
and degrade him in the estimation OF
the community by abrogating that
right. is a responsibility which ought
not TO be assumed by one who may
even though he does not-direct and
lcontrol the prosecution. Where n sense
OF common fairness does not tell US
what Is right. the law at least should
tell US what Is wrong and telling US
prohibit IL.
| The law provides a penalty for prac-
ticirg medicine or surgery. without
Having first obtained" license as pro-
lNided by the statute. Practicing mediT
lcine after the revocation of the license
i3 not denounced nor IL there any PEN
lalty attached to II. 1t is true, as re-
marked by Judge Bartlett in Collister
Us. Fassett, 163 N. Y. PSI. that mo ease
hls brother" yet the case of Elk parte
McNulty. - Cal. 164. Is as much. like
the case at bar. both as to the facts
and the law under which 1t was sought
to sustain the conviction, as 1T is pos
sible for two cases arising in different
Jurisdictions to be. In that case. Nc
Nulty obtained the requisite license for
he practice of medicine in the State OF
California. which license was subse-
Iquently revoked for unprofeSsiOnal con-
duct. He continued to practice his pro-
fcssion after the revocation Of his liz
Icense and upon being convicted and
sentenced in the Superior Court of the
City and County OF San Francisco OBJ
tanned his discharge In the Supreme
lCourt OF California on habeas corpus,
. the Court holding-seven Judges on the
bench. one dissenting-that as the stat
lute only made IL an offeDse to practice
f'without having first procured a GER
tihcate. and provided no penalty for
practicing after the revocation Of the
certificate. such a conviction could not
BE- upheld
, IL was argued that the case of this
. defendant was clearly within the mis-
chiefs intended to- be prohibited by the
Legislature. 1 am inclined to think so.
too: but i can not find this defendant
guilty of crime by construction. The
, statute under which this prosecution is
based is penal-highly penal in its pro-
visions. 1T provides for a heavy fine,
: and logically results i'm forever prohib-
iting the defendant from practicing a
Z profession TO which he has welded
many Of the best years of his career.
That such statutes are to be construed
strictly against an offender and liber-
r ally In his favor is a proposition which
Z i have never heard disputed. To deter
mine that case is within the intention
> o. statute, its language must au-
thorize US to say so.It would be danger
[ Gus. indeed, TO carry the principle that
. a case which is within the reason OF
mischief of a statute Is within its pro-
visions. so far as to punish crime not
: enumerated in the statute, because II
p tis of equal atrocity. or Of a kindred
!, character with those which are emu
. merated. "If this principle" said Chic
: Justice Marshall in United States VS.
= Wilterberger. Wheat. rs. has evel
been recognized in expounding crimina
llaw. IL has been in cases OF considerable
Irritation. which II would be unsafe t,
= consider as precedents forming a gen
J, era1 rule"
Il See United States VS.. Sheldon.
! Wheat 119: Daggett VS.. State, 6 Conn
!, 4s4.
|. Courts in constituting statutory of
A fenses have always regarded il as thei
m plain duty cautiously to keep clearl
n within the expressed VIII of the Legis
d Iature. lest otherwise they shall hol
% punish II. when in fact the Legislator
m never so intended. IF this rule is vio
,g lated" said Chief Justice Best, eth
!. fate of the accused person is decide
T. by the arbitrary discretion of tn
,a Judges. and not by the express author
a ity of the laws
- Fletcher VS.. Lord Sondes. Bing. SIS,
,r IL will at once be conceded that n
p man should be stripped of very val
~ liable property and consigned to ignom
u
a. that such high penalty have been ar
~ nexed by law to the act which he ha
= committed 'It is more consonant I
"A the principles of liberty" says an en-
"a inent English Judge, that a cou1
o- should acquit when the Legislature ir
IN tended to punish. than that il shou
"a punish when II was intended to di:
or charge him with impunity.'
See United States VS.. Clayton. 2 Dil
a 21s
-. The Attorney General evidently rea
hs lied the difficulties presented by tn
"A case for in drawing the Indictment
- did not follow the language of II
~ statute and charge the defendant wit
-, having practiced medicine "witho'
20 having first obtained" license. but |
~ charges him with practicing medicil
az without having n license so to do
"a Whereas there Is no such offense crea
- led by the laws Of Hawaii.
- / find that there Is no law authori
20 ing the conviction of the defendant
~ this case and IL will be my duty wis
- and so often as he is prosecuted und
- a similar state OF facts. to dischar
he him by the appropriate process of Il
~" Court.
Let defendant be discharged.
~ HUMPHREYS.
~, First Judge. First Circuit Court
Isb Dated. Honolulu. Oahu. Dec. ~. 1s
vi
ne THE BEST PLASTER.