The Hawaiian gazette., 1906-01-16
OPIUM LAW
ATTACKED

ny nioans VI writ 81 habehs cor
pus obtained by George H. Gear tor
Tom Pong, the opium selling provi-
SONS of the Revised Laws OF 1905 are
attacked The petitioner. Tom Pong.
says he II 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 TO- 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 lruss.
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 Ha-
WALL 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 rs
unconstitutional and void for the fol-
lowing reasons:
THAT II 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, 10
wit, Part XIX of Chapter So of the
Penal Laws of Hawaii. provided for
license to import and sell poisonous
drugs, that said statute was uncon-
stitutional and void in that 1t 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 n new law; that
said Sections 1898, 1899 and 400 are
new statutes never before enacted as
law in said Territory; that said sec
tons never passed three readings ia
each house or either house OF the
Territorial Legislature on separate
days or any day as required by sec
ton &c of the Organic Act of said Ter
! ritory; that the Act attempting To en-
! act said Revised Laws is unconstitu-
/ tional and void in so far as II attempts
to enact said Sections 1893, 1899 and
/ 400 as laws, in that It contravenes
/ and violates Section 45 of the Organic
Act requiring each law to embrace but
one subject, which shall be expressed
in its title.
THAT the said mittmus shows the
! conviction of no offense known - 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
az 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 ,,uly
and legally qualified grand jury. aad
said trial and conviction are therefore
unconstitutional and void and in con-
travention of Article V of the Amend
merits to the Constitution of the Unit
ell States"
Judge Robinson issued the writ cori-
handing Sheriff Brown to have the
body Of Tom Pong before him at his
chambers forthwith, ito do and re-
celye 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 q license
to sell poisonous drugs shall be fifty
dollars
: 1899. The board OF health may, up
, on the conditions to be named in such
| authorization, authorize any duly
J qualified physician or surgeon, or any
; person holding 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 prepare
ton thereof. except upon the written
prescription 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 MOI
II 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 bond, the hearing
OF the case being set for Thursday.