The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-10-23
THE OLD LIQUOR LAWS
REMAIN IN FULL FORCE
Judge Gear in This Instance Discovers That
Constitutional Law is Not Omnipotent
to Override Common Sense.

rem OF the elements OF n complete Jaw
and while prohbitory in form, ia II
fact simply "A declaration Of principles.
and that the provision lis not self.
executing, no common law, no statu
tory provision, existing for its ENFORCE
ment hence 1t remains dormant as 6
restriction upon the citizens, until Civ.
en- life by subsequent legislation. ant
has no force as repeating measure
and that therefore the Territorial IL
cense law Stands in it's entirety" AM
that therefore the defendants impris
onment was not unlawful.
AUTHORITIES ADOPTED.
A case is cited from Massachusetts
where constitutional provision wa!
adopted prohibiting forever the manu-
facture and sale of intoxicating liquors
and directing the Legislature to enac
laws with suitable penalties for carry
ing out such provision. There it wa.
held that the constitutional provision
did not repeal previously existing law:
by implication pending action of tn,
Legislature in the matter. Judge Geal
-, comments as follows:
| l agree with the reasoning OF these
authorities and believe the case at bar
falls within the principles laid down in
the cases cited. These cases go even
farther than the case at bar, for under
both the constitution of Maine and
North Dakota 1t was intended to have
absolute prohibition in the liquor traf-
fic, and yet 1t was held that the former
| liquor laws were not repealed, and
would not be until there had been leg
| islative action. In this case 1t Is clear
| that congress did not intend to pro-
hibit the liquor traffic, but on the con-
| trary to allow 1t under the "regula-
tions and restrictions of the legisa-
| ture. In this connection II seems to
me appropriate to quote from the
| United States Supreme Court as to
| what is commonly called the right of
| citizens to engage in the liquor traffic,
and their statement as to the consti-
| tutionality of the liquor laws and the
| right of the Legislature to regulate the
| traffic. A defendant had been found
guilty of selling liquor without license,
and claimed that this arrest was ille-
gal, as the ordinance under which he
was convicted was unconstitutional.
The court in n unanimous opinion
said per Field, j.:
QUESTION OF RIGHTS.
at is undoubtedly true that 1t is
the right of every citizen of the United
States to pursue any lawful trade or
business, under such restrictions as are
imposed upon all persons of the same
age, sex and condition. But the DOS
session and enjoyment of all rights are
subject to such reasonable conditions
as may be deemed by the governing
authority of the country essential to the
safety, health, peace, good order and
morals of the community.
For the pursuit of any lawful trade
or business, the law imposes similar
conditions Regulations respecting
| them are almost infinite, varying with
the nature of the business. Some &C
| equations by the noise made in their
| pursuit, some by the odors they en-
| gender and some by the dangers ac
companying them, require regulations
as to the locality in which they shall
be conducted. Some by the dangerous
character of the articles used, manu-
featured or sold require, also, special
qualifications in the parties permitted
to use, manufacture or sell them. All
| this Is but common knowledge, and
would hardly be mentioned were it not
for the position often taken, and
vchemcntly pressed, that there Is
something wrong in principle and OBJ
jectonable in similar restrictions when
applied to the business of selling by
retail in small quantities, spirltuous or
intoxicating liquors. 1t Is urged that,
as the liquors are used as n beverage,
and the injury following them, If taxi
en- to excess, is voluntarily inflicted
/ 10 IN "a DrtN off
their sale should be without restric-
tons, the contention being that what
| "a man shall drink, equally with what
he shall eat, is not properly a matter
| for legislation.
DRINK EVIL FAR-REACHING.
"There is in this position an assump-
| ton of a fact which does not exist,
that when the liquors are taken in ex-
cess the injuries are confined to the
party offending. The injury, 1t is true,
first falls upon him in his health, which
the habit undermines: in his morals,
which 1t weakens: and in the self
| abasement which It creates: but, as 1t
leads to neglect of business and waste
OF property and general demoraliza-
| ton, 1t affects those who are imme-
uldtely CoHHeCteu WIFI anu utpeiucht
upon him. BY the general concurrence
of opinion OF every civilized and Chris
tian community, there are few sources
of crime and misery to society equal to
the dram shop, where Intoxicating
liquors, in small quantities, to be
drunk at the time are sold indiscrim-
inately to all parties applying"
CONCLUSION OF COURT.
II is the opinion of the Court that
the statutes of the Republic of Hawaii
relating to the liquor traffic are in full
force and effect excepting as they have
been expressly repealed by the LegisIa-
ture or the Organic act, and that the
section under which this defendant was
indicted is in full force and effect and
that the defendants motion to duash
the indictment should be and it is
hereby denied.
GEO. ID. GEAR,
Second Judge of the First Circuit.
Oct. 81. 1909,