The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1912-08-02
Supreme Tribunal 0verruleS
Demurrer Asked for by
Defendant.
SETTLES LoNG-DRAWN FIGHT.
VioIators of the Ordinance Are
Repulsed at Every Point
by Opinion.

An opinion was handed down in the
supreme court yesterday afternoon in the
ease of the Territory VS.. Hop Kee who
had been charged with violating eoun-
ty ordinance No. 80, relating to the
screening of food products in the fish
market whore defendant is a stall
keeper. The defendant demurred to
the charge on several grounds based
on the validity of the ordinance, the
circuit court to which defendant had
appealed from a conviction in the DIS
trict court reserving the points raised
for the consideration of the supreme
court. In the opinion rendered yester-
day the demurrer was Overruled and
the validity of the ordinance sustained.
The explicit charge against Hop Kee
was that he unlawfully exposed fol
sale certain meat, without having pro-
tected same from DUST, dirt and flies
by screening as required by law.
The following extracts are taken
from the opinion of the supreme court:
Law Beneficial.
"The object of the ordinance in
question, undoubtedly beneficial one,
has been clearly stated in its title, and
the provisions contained in the ordi'
nance, in so far as it is now necessary
to examine them, seem adapted to
further that object. In State VS..
O'Connor, lis MINI. 339, case which
has been rather severely criticized by
counsel for the defendant, but which
we believe was decided, and is in
ha11 hot IN orHinnn q q
providing that AL berries, cherries,
dates and figs exposed for sale in any
store, shop OF building shall be pro-
tected from flies, and all fruits, Der
ries, and candies exposed for sale out
side a building or in any wagon or
cart, shall be protected from both
flies and dust is not an unreasonable
requirement or impossible of perform
ance. and is not contrary to any con
stitutional provision.
at is also contended that the ordi
nance is void because it contains q
delegation to the courts to fix the pen
aHy for its violation, and that the
municipality is without power to make
such delegation. Section, 90 of the
municipal act provides that the board
of supervisors shall have power to pre-
scribe fines, forfeitures, and penalties
for the breach of any ordinance, but
NO penalty shall exceed the amount OF
five hundred dollars or six months i'm
prisonment or both. 1t is not neces
sary that an ordinance such as the ont
involved here should fix an exact ant
invariable penalty for it's violation
Another Contention.
"The contention that the ordinanc,
was beyond the power of the munich
pality to enact because in conflict will
a regulation of the territorial board o
health seems to have grown out of
misapplicatiOn of provision of sec
ton SO, chapter 80 of the Session Law
of 1905, which applied to the countie
and has since been amended. Sectlol
% of the municipal act of 1907, a
amended by Section of Act 10 of tn
Session Laws of 1909. provides that n
ordinance shall be held invalid on tn
ground that it covers subject EN-
braced in statute of the Territor
even though the two conflict. Wit
the wisdom of permitting such dupl
cation of regulations this court ha
nothing to do. We find no merit in tn
defendant g contention on this point
Nothing in Brief.
HWe have examined all the case
ElJeQ III the uSltnudnb , INV anu ~
nothing in any of them that would Jul
tify us in declaring the ordinance !
question TO be void. We hold that tn
provisions of this ordinance, in so ia
as they have been assailed in this cas-
were within the power of the City an
County of Honolulu to enact; that the
do not deprive defendant of his prol
erty without due process of law; tins
thew are not unreasonable, uncertain, II
definite OF impossible of enforcement
and that they do not involve vol
delegation of legislative power.
'The only point sought to be mac
in support of the objection raised
the form of the charge entered again
the defendant is that the kind of met
that the defendant is alleged to hay
exposed for sale and sold has not bee
speeifed. We think that the charge
not demurrable on the ground urge
What other meat other than gan
meat poultry meat or butchers me
the charge might possibly refer to HI
not been suggested. The charge is su
ficient so far as the point sought to
made is concerned. The defendant d
string the specification referred
might obtain it upon motion of a b
of particulars
''The circuit conrt is advised tn
the demurrer should be ovefruled.'
II. w Milverton, deputy city al
county attorney. represented the Ter
tory and A, s. Humphreys appeared I
Che defendant.