The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-10-22
THE OLD LIQUOR LAWS
REMAIN IN FULL FORCE
Judge Gear in This instance Discovers That
Constitutional Law is Not Omnipotent
to Override Common Sense.

morning rendered his decision on the
finding that they are in full force and
effect under the Territory excepting as
they have oeen expressly repealed by
the Legislature or the Organic Act. It
was on a motion to quash the indict-
without license. Much of the courts
deliverance is taken up with quota
tons from the brief of defendants
counsel in support of the motion. The
extracts given below, as connected by
the reporter, will give complete un-
Outstanding Of the decision.
THE DEFENDANTS CLAIM
After stating the case and quoting
at length from defendants brief, the
court says:
Defendant claims that by the express
| term of section six of the Organic Act
only 1.-The laws of Hawaii not incon-
| sistent with the Constitution or laws
| of the United States or the provisions
| of this act shall continue in force etc,
and that as the Hawaiian laws rela ting
to the liquor traffic have not been en-
acted by the Territorial Legislature
they are inconsistent with Section SO
of that act prohibiting the sale of such
| liquor except under such regulations
| and restrictions as the Territorial Leg
| islature shall provide"
| Defendant claims that this limits the
i and racfriotiapS RI of
! the Territorial Legislature as disfin-
lguished from the Legislature of the ISL
ands prior to annexation, and that it
must be future legislation considered in
Preference to the time of the passage of
| the Organic Act
| Counsel for defendant says in his
brief: rs there any legal power within
the Territory of Hawaii at the present
| time to issue licenses for the sale of
lspirituous liquors?
Sec 80 of the Organic act provides:
| Nor shall spirituous or intoxicating
liquors be sold except under such regu-
lations and restrictions as the Terri
torial Legislature shall provide
This Act was approved April 80, 1903,
and became operative on June IA, of the
same year. The wording, as plainly az
Language can express. makes a positive
prohibition of the sale of spirituous or
Intoxicating liquors, unless such sale is
regulated by the Territory
INTENT OF CONGRESS.
Judge Gear quotes the defendant s
contention, with references to debates
in Congress, that the intention of Con-
gress was clearly to prohibit the liquor
traffic in Hawaii until the Legislature
of the Territory might permit it under
| ''such regulations and restrictions as
it might provide. On this the court
says:
From review of the congressional
debates it seems to me that while the
amendment to the Organic Act under
dispute was originally inserted in the
bill for the purpose of prohibi ing the
sale of liquo, at retail, it is also appar-
ent that the amendment finally adopted
was -Cr the purpose of once for all
|settling the question as to whether Con-
gress or the local Legislature should
have control of the liquor legislation
Cor this Territory.
| If the contention of defendants
counsel is correct this provision Jnust
licensed and unlimited sale of liquor
in this Territory until the Territorial
Legislature shall act, thus giving to
the amendment an effect Numerically
opposite to that which even counsel for
defendant contends was the intent of
Congress- and instead of absolute pro-
hibition we will have an unlimited and
absolute, unrestricted liquor traffic.
| AS stated in the language of another
court:
1T follows then, on REALTORS theory,
! that the constitutional convention
which sought to give the state absolute
prohibition, in fact gave it untrammel-
ed liquor traffic. and provided that sucil
untrammeled traffic should continue in
definitely, unless some Legislature. TO
be elected in the future should volun-
tarily elect to check the flood OF in
/ toMcants that the constitution turned
| loose on the state. Such a conclusion
is SO at variance with all past legis-
lation on the subject so at vari-
ance with the intent and expectation
of the trainers of our constitution, that
this court ought not to reach it unless
forced thereto by the clear rules f
construction, or the obvious meaning of
the language employed"
North Dakota ex rel Olguist VS..
Swan, 1 North Dakota, p. II.
NORTH DAKOTA CASE.
The court quotes from the language
used in a North Dakota case and COM
ments thus:
In the case cited it appears that while
Dakota was a territory certain liquor
laws were enacted. Thereafter the
State of North Dakota was organized,
and a constitution adopted which pro-
vided that no one should within the
state manufacture, import or keep for
sale any intoxicating liquors "or offer
the same for sale or gift, barter or
trade as a beverage" THE legisla tive
assembly shall by law prescribe reg
ulations for the enforcement of the pre-
visions of this article, and shall thereby
provide suitable penalties for the vio-
lation thereof =
Defendant contended that the liquor
laws of the Territory lin so far as it
provides for the issuance OF a license"