The Hawaiian gazette., 1905-01-06
AGAINST
THE CLUB
Judge Whitney Decides
The Celebrated
Case.
tFrom Thursdays Advertiser.)

sion yesterday morning IN tne cele-
brated Club case He found the club
guilty as charged of selling liquor
without a license. The case was imme-
diately appealed and will go before
the Supreme Court as the test liquor
case. Judge whitneys decision, in full,
Is as follows:
1.-THE defendant is charged with hav
ing. at Honolulu, Island of Oahu, on
the 18th day of December, 1904, vio-
lated the provisions of Section 444, of
the Penal Laws of the Territory of
Hawaii, 1897, by selling spirituous
liquors without a license. The follow
ing admissions are made by the defend
ant, which admissions form the agreed
statement of facts on which the briefs
submitted by both parties are predi-
Gated
1.-THE contention of the defendant is
that a bona fide club, organized for le-
Ultimate purposes, can dispense liquors
to its members without procuring any
license under the laws relating to the
sale of liquors, as expressed in Chap
ter Al of the Penal Laws of 1897. To
sustain this contention defendant first
calls this courts attention to long
and weighty list of names. high in office
and large in power in this Territory,
who have not until now moved to bring
the defendant to the bar of justice,
thereby warning this court that it were
bare presumption to hold against the
defendant in the face OF such an ar
ray. Citing then the cases, which to
the mind of counsel for defendant sus-
tain the contention that a bona fide
club may freely dispense liquors to its
members without a license, defendant
closes with another solemn warning to
this court that this court do not, in
deciding against the defendant, violate
his oath of office.
referring to defendants first con-
tention II is sufficient for this court to
say that the only time that it appears
that this matter was brought to the at
tention of the Attorney Generals De-
partment, Mr.. Il. p. Dole, the then At
torney General used the following Ian
guage: Without expressing an opin-
ion that this is legal or Illegal / think
you are justified in warning the Elks
that the Attorney Generals Depart
ment must take the position that sales
for profit and not at cost, and as n
mere incident of the festivities of the
lodge. cannot be recognized as lawful. ;
'As to the cases, lengthy citation
thereof by this court would be as use
less as 1t would be inappropriate Most
of those cited by defendant as sus-
tanning his contention are founded on
the early case of Graft VS.. Evans, S
Exch. 90 Law Reg. 80. This case,
though carefully considered and ex-
eeedingly valuable, would not We be-
lieve from careful reading, have been
decided as it was under our statute,
which is much broader and move in
elusive than the English License Act
of that date. That case was one of an
unincorporated club. The case, too has
been under consideration in many of
the highest State tribunals and been
there expressly and emphatically criti-
cised. many courts refusing to follow
il, holding the reasoning deficient and
the case too restricted to apply gen.
orally.
Many of the cases go off on points
which are not in the case at bar as,
for instance, Commonwealth VS.. Ewig,
las Mass. 12l, and many others of the
same class, where the club was merely
a device to cheat the Government out
Of the prescribed license fee. So, also,
State VS.. Easton, 70 Md. 81 10 L. r. A.
g. and numerous others, where the
charge was one of violating local op-
tion laws. In still other cases the pros
ecution was under laws specifically in
Guiding clubs. So might instances be
multiplied where other elements than
those appearing here have been pres
ent. These decisions have somewhat
clouded what should be simple case
and have made it appear that there
has been no uniformity and little rea-
son in the decisions in club cases.
but certain elementary rules must lie
at the foundation of all decisions. We
believe that the rule of the case at
bar, dictated by reason and established
by authorities. is this; that
First, where the liquor is owned by
an individual or partnership. be the
person or persons natural or corporate
and
Second, where that liquor is sold to
another, be he a member of a club or
q plain citizen, that there is a sale Of
the liquor as contemplated by all the
statutes regulating the sale of liquors
When this sale is made without a IL
eense, then the statute has been vio-
lated.
such being the courts opinion Of
the law, but two points remain TO this
court for decision, namely, ID to whom
did the liquor belong? and 90 was there
a sale?
las to the FIRST OF these, the liquor
was either the property OF the corpora
ton or it was the joint property of all
the members of the association. In
the matter of ownership there can be
no difference between the Pacinc Club
and any other corporation. The stock
holders own no part OF the property
of the club by reason of their shares
OF stock therein. If incorporation
means anything at all II means this
that thereby an entity is formed
against which the shareholders hold
but chooses in action. claims represented
by their certificates OF stock. But were
It held that the shareholders had al
interest in the goods held by the club
l.