The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-01-16
OPIUM LAW
ATTACKED
Attorney Gear Brings 1t
Up by Habeas
Corpus.

| By means of a writ of habeas cor
pus obtained by George D. Gear for
| Tom Pong, the opium selling provi-
sions of the Revised Laws of 1905 are
| attacked. The petitioner, Tom Pong,
says he is unlawfully imprisoned by
| the sheriff of the county of Oahu, by
virtue of mittimus and sentence is
| sued by District Magistrate W. L.
Whitney which stated that he had been
| convicted of having at Honolulu on
January 10, 1906, mot being thereto
| authorized by the Board of Health
| of the Territory of Hawaii, and then
and there not being a duly qualified
physician or surgeon or person thereto
licensed by law, to sell poisonous drugs,
unlawfully sold to one Tai Lin opium
or preparation thereof was sold with
out written prescription of a duly
licensed physician, contrary to Sec
ton 1899 of the Revised Laws of I1a-
waii,' and sentenced to pay a fine OF
fifty dollars and costs, or to be i'm
prisoned until said fine and costs be
! paid.
The petition says that said section
1899 of said Revised Laws of Hawaii is
unconstitutional and void for the fol-
lowing reasons:
THAT it appears from said Revised
Laws that said Section 1899 is a Dor
ton of a Chapter relating to poisonous
drugs, that before the enactment of
said statute the former statute, TO
Penal Laws of Hawaii, provided for
license to import and sell poisonous
drugs that said statute was uncon-
stitutional and void in that it required
the payment of a license for the i'm
portation of such drugs; that the COM
mission to compile the Revised Laws
could not be legally authorized by the
Legislature to enact a new law; that
said Sections 1898, 1899 and 1400 are
new statutes never before enacted as
law in said Territory; that said sec
tions never passed three readings in
each house or either house of the
Territorial Legislature, on separate
days or any day as required by Sec
ton 46 of the Organic Act of said Ter
ritory: that the Act attempting to en-
act said Revised Laws is unconstitu-
to enact said Sections 1898, 1899 and
400 as laws, in that it contravenes
and violates Section As of the Organic
Act requiring each law to embrace but
one subject, which shall be expressed |
in its title.
THAT the said mittimus shows the
conviction of no offense known ID the |
law of the said Territory of Hawaii.
That the said District Court was
without jurisdiction to try the defend |
ant and applicant herein, as the pun |
ishment of the offense under Section |
III of the Penal Laws of Hawaii could |
have been by Imprisonment at hard
labor not exceeding six months and |
that therefore the defendant could not |
have been tried for said alleged Of |
Tense until after indictment by a duly |
and legally qualified grand jury, and |
said trial and conviction are therefore |
unconstitutional and void and in con-
travention of Article V of the Amend |
ments to the Constitution of the Unit |
ed States
Judge Robinson issued the writ, cor1- |
nlanding Sheriff Brown to have the |
body of Tom Pong before him at his |
chambers forthwith, ito do and re
ceive what shall then and there be |
considered concerning the said Tom
Pong, together with the time and cause
of his detention" etc
The sections of the Revised Laws
attacked are as follows:
1898. The annual fee for a license
to sell poisonous drugs shall be fifty
dollars.
1889. The board of health may, up
on the conditions to be named in such
authorization, authorize any duly
qualified physician or surgeon, or any
person holding a license to sell poison
Gus drugs, to sell for medical purposes
only, opium and preparations thereof;
provided, however, that no person shall |
sell or furnish opium or any prepara-
ton thereof, except upon the written
of a duly licensed physi-
clan signed by him.
"1400 Any person who shall sell or
furnish any poisonous drugs without
a license so to do; or who shall vio-
late sny of the terms of this chapter. |
shall be fined not less than fifty norI
n ore, than five hundred dollars, or be |
imprisoned at hard labor not exceed
ing six months in the discretion of the |
court
Tom Pong was brought into court |
and released under a bond the hearing
Of the case being set for Thursday.