The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-02-15

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favor of even date herewith. in which
/ you say:
] Il would most respectfully ask for
! your advice as to the proper course for
me to pursue in view of the decision rem
/ dered by Judge Estee yesterday in the
matter of Messrs Macfarlane & Co,
/ Ltd. ct al, vs. William II. Wright.
Treasurer of the Territory of Hawaii. re
| Chapter 46 of the Session Laws of the
Territory of 1883. entitled, Sale of Malt
, Liquors. is unconstitutional and void"
Prior 10 November 2ith, 1900. the Ter
ritory collected substantial part of its
/ revenue under the Merchandise License
Act 1t was so clear, after the reorgan-
ization of the Republic of Hawaii as the
Territory of Hawaii, that this act came
in conflict with the Constitution of the
United States. that enforcing it seemed
like collecting money under false pre-
lenses; and, as the Territory was the
only party interested in enforcing it, 1
felt 1t my duty to advise against any
further attempt without waiting for the
adjudication of the courts.
The case just decided by Judge Estee,
although it may involve like questions of
law, does not come before the Territorial
government under like circumstances. 1t
Is true that the Territory has an interest
in license fees, which may ultimately be
increased or decreased by Judge Estees
decision. the natural consequences of
which would be fewer licenses at higher
rates. 1t is also true that the Territory
has deep interest in minimizing the
evils of the liquor traffic. But if this
case were entitled according to the in
terests most directly involved, it would
be. The General Liquor Trade of the Ter
ritory VS.. Honolulu Beer. Assuming that
Judge Estee's decision declaring the law
unconstitutional is correct, and that
appeal on that branch of the case IS
hopeless, still the defeated party is legal
IL flad hot in, n To
the constitutional question and the juris
diction of the court. 1 think the fact
that the Treasurer of the Territory is the
nominal defendant gives the Territory no
moral right to preclude the real defend
ant from an appeal to the court of last
resort. On the other hand, / think it is
not the duty of the Treasurer of the
Attorney Generals department TO pros
ecute such appeal. 1t seems to me that
the wisest course, and the faiIest to all
concerned. If appeal is taken, is TO
await results. and. meantime, issue no
more of the licenses in question.
Very truly yours,
E p DOLE.
Attorney General.
HONOLULU BREWERY MAY RUN. =
Relative to the reinsurance of license
to the Honolulu Brewery, the Attorney
General in an opinion submitted to
Treasurer Wright yesterday holds as
follows:
Territory of Hawaii,
Office of the Attorney General,
Honolulu H. l., Feb. IA. 1892.
VIM. H Wright Treasurer OF
the Territory of Hawaii. Honolulu:
Dear Sir:-I am in receipt of your re-
quest of even date herewith for my opin-
ion whether you have lawful authority
to reissue a license to the Honolulu
Brewing and Malt Company. Limited,
and 10 collect annual license fees there
for and the special tax of five cents
gallon: in other words. whether Chapter
Y of the Session Laws of 1856 being Sec
tons 472 and AIS, inclusive, of the Penal
Laws of 1897 conflicts with the Constitu-
ion of the United States
The subject matter of this chapter is
separate and distinct from that of Chap
Ter As of the Session Laws of 1888, being
Sections 479 to 4S3, inclusive, of the Penal
Laws of 1887 and. 1 understand, Is IN
10 way affected by the decision which
Judge Estee has just rendered. declaring
he latter chapter unconstitutional
Section 5 of Chapter ~ of the Session
Laws of 1856. being Section 474 of the
Penal Laws of 1897, declares that: The
Minister of Finance is hereby authorized
o remit import duties upon such articles
Ised for the purpose of brewing mart
liquors. as may be admitted free of m
,ort duties without conflicting with exist
ng treaties" This section conflicts with
he Federal Constitution, and has become
iull and void in consequence of the IN
of the Hawaiian Islands as
IN integral part of the United States.
1t would be assuming great deal to
ay that no constitutional objections TO
ne remainder of this chapter can be
ound. But. If they exist, they are not
lear and patent, and. so far as am
ware. none have been suggested. The
resumption that an act of the leg1sla-
ure does not violate constitutional prin-
ipIes is strong until the contrary ap-
ears / think you are justified in issu-
1g the license and collecting the license
ees and special tax.
Very truly yours,
z. p. DOLE,
Attorney General.