The King v. Fernandez , 7 Haw. 505 ( 1888 )

Opinion of the Court, by

McCully, J.

The defendant appeals from a conviction in the Police Court of Honolulu, for keeping on his premises, in Honolulu, on the 5th of November, 1888, on King street, five gallons of spirituous liquor, to wit, of Madeira wine and beer, contrary to the provisions of Section 1 of Chapter LXVII., of the Acts of 1888, the defendant being a licensed storekeeper.

The defendant admitted the facts charged, but claims that they do not constitute a criminal offense under the Constitution and Laws of the Hawaiian Islands.

The statute is entitled “ An Act to better Prevent Illicit Traffic in Spirituous Liquors.”

Section 1 is as follows : “ It shall be unlawful from and after the passage of this Act, for any person or persons conducting or carrying on any business or trade, for the carrying on of which a license is required by the Government, or for any other person except druggists, physicians and licensed dealers in spirituous liquors, to have or keep or permit on or about the premises where such business or any portion thereof is carried on, or where any portion of the stock used or kept for such business is stored, any spirituous liquors, except for the use of those engaged on the premises, and which shall not exceed at anytime one-half-gallon of wine or beer, or one quart of ardent spirits. The definition of the term spirituous liquor herein shall be the same as is contained in Section 2 of Chapter LXIV. of the Laws of 1882.”

It is strongly contended by defendant’s counsel that the section has no sensible and consistent meaning, and that the strict reading of its clauses yields only absurdities.

It cannot be denied that the statute is so lacking in plain meaning that it requires close examination to determine what is herein enacted.

What scope and effect is to be given to the words “ for any other person except,” etc. ? If we make a parenthesis about the excepted matter, the thing said is that no person holding a license, and no other person, shall keep or suffer to be kept on the business premises of a licensee any spirituous liquors; druggists, physicians and licensed dealers in spirituous liquors are excepted. They are not prohibited from keeping spirituous liquors on any licensed premises, either their own or of other persons. On the other hand, the licensee shall not permit any person to keep liquor on his premises — druggists, etc., not excepted. The most favorable interpretation which will support the statute and conform to the supposed intention of the Legislature, it being presumed not to intend absurdity, is that these three excepted classes are excepted from drawing the penalty on one who permits them to do what the law allows them to do, or we may adopt the interpretation that as these three excepted classes have premises of their own, it is intended that they may keep spirituous liquors on their own premises, merely by applying liberally the rule reddendo singula singulis. Neither of these interpretations is quite satisfactory to us. But as tbe case before us does not touch anything in this exception, we may pass by the difficulty.

The counsel for defendant contends that the latter part of the section must be taken to mean that it shall be unlawful for any person except druggists, etc., to keep spirituous liquors on his premises unless it shall exceed the prescribed amount; but we do not find the difficulty in giving the second excepting clause a reasonable meaning. It is an appendage. If the sentence closed with a period after “any spirituous liquors,” there would be a total prohibition. Now there is added “except [spirituous liquors] for the use of those engaged on the premises, and which [spirituous liquors] shall not exceed,” etc. The words we have added in brackets are not requisite to supply omissions or deficiencies; what is excepted for use can mean nothing else than the immediately preceding subject, and the relative pronoun refers to its nearest antecedent.

With the view that the statute certainly enacts that the holders of business licenses shall not keep spirituous liquors on their premises except a specified small quantity for personal use, is the Act unconstitutional ? The first section is complete in itself so far as describing and enacting a certain unlawful act. The penalty for this is contained in the sixth section, which, in a general way, prescribes a penalty for the violation of any provision of the Act, there being sundry things prohibited in sundry sections.

What is prohibited in section first is the mere possession by licensees of spirituous liquor without intent to traffic in it. But spirituous liquors may legally be sold, and legally bought and possessed. This statute creates a new, distinct offense. The possession of liquor without selling or intent to sell has hitherto been lawful. The possession without intent to traffic is not related to the offense of illicit traffic. How can it be said that one who possesses spirituous liquor, being legal goods in which he does not intend to traffic, and in fact never does traffic, has violated any law for the prevention of traffic ? The title of this Act does not, therefore, express the action which is made penal by it, mere possession without intent, etc. Article 77 of the Constitution requires that every law shall embrace but one object, and that shall be expressed in the title. The title of what is enacted in this law should be to prohibit the possession of liquor and illicit traffic in it. Á comparison with other sections of the law will show the necessity of expressing that an act, lawful otherwise, must be done with unlawful intent in order to make it criminal. Section 2. prohibiting the forwarding of orders for liquor, applies only to orders with intent that the spirits shall be delivered to another person, which is a traffic. Section 3 prohibits receiving into possession spirituous liquor with intent to sell, transfer or dispose of it to others. Section 4 requires that the shipment without labels, which is prohibited, shall be with intent to deliver or traffic it to third persons. And no one of the three offenses hereby established is committed without an intent to traffic, which must therefore be affirmatively shown, and which admits of defense.

We may also illustrate the difference of this law from other legislation and the specific novelty of it, by comparison with the Act of 1882, Chapter XLIV., Section 33, which has been supposed to cover somewhat similar ground. That enacts that circumstances existing which tend to show an intent to traffic and a traffic, such as some significant sign, a fitting of a bar with its apparatus, such as to induce a reasonable belief that there is a traffic, and the possession of more spirituous liquor than is reasonably required for. the use of persons residing on the premises, shall be deemed prima facie evidence of unlawful sale of liquor. That is to say, that it is sufficient proof, until rebutted, without evidence of particular sales. No one is punishable without such evidences of intent to commit illicit traffic. It is a statute rule of evidence.

The law we are now considering establishes as an offense that which is not illicit traffic, under a title which is confined to illicit traffic, and does not express the new offense. It must be held, therefore, that the first section contravenes Article 77 of the Constitution, and is void for this reason.

Counsel for the defendant contends that the section is in conflict with those articles of the Constitution which guarantee an eqality of rights.

The operation of this Act is confined to one class of the community, viz., those persons whose business or trade requires to be carried on under a license.

It is indisputable that the police power of the State may lawfully be applied to restrict uses of property — when the welfare or safety of the community requires it. But it will be found that these laws are of general and equal application. The Act of 1882, which we have cited above, applies to all persons. It is not only the holder of a store license, for instance, to whom the rule of evidence derived from circumstances which tend to show an illicit traffic is applied, but equally any other person to whom such circumstances attach themselves.

The law restricting the storage of kerosene applies to all persons; so do the laws relating to gunpowder, to dynamite, giant powder, etc., the law respecting nuisances and offensive or corrupt substances; and they all relate to articles and things which the public welfare, safety or health require to be guarded, restricted or suppressed.

In our view the term “dangerous” cannot be applied to spirituous liquors in the sense in which it belongs to dynamite, gunpowder, benzine, kerosene, etc., and there is a fallacy in so using it. No one will claim that the laws restricting the dealing in spirituous liquors are based on the danger from the inflammable quality of pure alcohol. We apply the same word “danger” to the risk of acquiring an injurious or evil habit, and to the liability of destruction of persons and buildings by explosives ; but they are different things. One is subjective, the other is objective. Whoever and whatever is within the circle of damage of a dynamite explosion is liable to be destroyed. Spirituous liquors are to the majority of people, and to all certainly who do not choose to partake of them, not harmful and not dangerous.

And it does not appear why the possession of spirituous liquors is dangerous to the public welfare specially, and only in the case of persons carrying on business under a license. It will be seen by examining the list of businesses required to be licensed, that there is a great variety in their character, and that many are of a description not suggesting a reason for being placed under this penal police restriction as to keeping spirituous liquors on the premises. It is not only vendors at wholesale and retail of imported goods who must be licensed, but banks, dairys, livery stables, pork butchers, sellers of salmon, sportsmen (on the Island of Oahu), cake peddlers, hacks and haek-drivers, inter-island passenger vessels, shore-boats, must be licensed. On the other hand, vendors of goods the growth or product of this Kingdom are, with few exceptions, e.g., awa, not required to take license; soda-water stands, and other vendors of homemade non-intoxicating drinks, require no license, although it would seem that the evil to be remedied might as probably be encouraged in these as in licensed businesses.

While the police power may be exercised severely within the limits of what is for the public welfare and safety, it cannot be considered lawful to make arbitrary discriminations, nor to accomplish other objects under an unfounded declaration that they are within the proper compass of this power. Mugler vs. Kansas, 123 U. S., at page 661; People vs. Gillson, 109 N. Y., 389; In Re Jacobs, 98 N. Y., 98; The King vs. Lau Kiu, lately decided in this Court, ante, page 489.

Mugler vs. Kansas, 123 U. S., has beeen cited as supporting the Crown in this case. We think there is an essential difference in the cases.

The Constitution of the State of Kansas provided that “ the manufacture and sale.of intoxicating liquors shall be forever prohibited in this State except for medical, scientific and mechanical purposes; ” and the statute provided that all places where such are manufactured, sold, bartered or given away are common nuisances, etc. The prohibition is total, and to all classes. It is obvious that rulings of the Court on such legislation do not apply to the case where the liquor is a lawful commodity, and to the prohibition of a certain class of the community to possess it without unlawful intent.

C. W. Ashford (Attorney-General), for the Crown. A. S. Hartwell, for defendant.

It was submitted in argument by defendant’s counsel that a condition to the effect proposed by this section might, if there were such a law, be added to licenses, with the penalty of a cancellation for breach. In view of the observations made in the recent case of Wing Wo Chan vs. The Hawaiian Government, ante, page 498, and of The King vs. Lau Kiu, ante, page 489, this seems very, doubtful; but such a case is not before us. The licensees find that a lav? applicable only to themselves prohibits them in a common right. We consider that this is in contravention of the equal property rights guaranteed by the first article of the Constitution.

Upon these several considerations we hereby pronounce Section 1 of the Act in question void.

The judgment of the Police Court is reversed — the defendant acquitted. By virtue also of the decision in Wing Wo Chan’s case, the liquor seized could not be confiscated.