OCR Interpretation

The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, April 10, 1888, Image 2

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Persistent link: https://chroniclingamerica.loc.gov/lccn/sn85047084/1888-04-10/ed-1/seq-2/

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Pacific Cjuyercial Advertiser
Justice Dole Renders an Impor
tant Decision
iKuns or Nunsrui ition.
r anuaui. ..rS 00
Per montn..... 50c
o4rulcrtJuii Frtyable Alwnysiu
TUESDAY : : : : : April 10th
Iu (be Case of the Collector General
Against Macfarlane and I.uee,
Assumpsit-The Defendant
Demurrers Allowed.
following de-
General of
Since oar evening contemporary has
broached the subject of the Post Office
in connection with the outgoing foreign
Lit til, the present time is perhaps oppor
taae for a suggestion thereo.i. The re
marks alluded to are perfectly reasona
ble as far as they go, but we would go a
stjp farther. It is stated that the bulk
of the mails for the Australia were not
lodged in the box until a considerable
time after the specified hour of closing,but
that the time was nevertheless extended
to accommodate those who were late.
Tne official courtesy which prompted
this indulgence was no doubt duly ap
preciated, but we incline to the belief
titat the fault did not lie entirely with
ttie public. Possibly the Postmaster
General thought so too, and was conse
q jjntly induced to oe lenient. Proba
bly it would be impossible to obtain any
' co . rect analysis of the causes which led
to this procrastination, but we have a
suspicion that a great deal of it was due
to loss of time in attending to the varied
wants at -the window. This might be
avoided in a great measure by a division
of labor. It is very evident that the
work of attending to applicants at the
window during the two or three hours
immediately prior to the departure of
the mail steamer for the Coast is too
much lor one clerk. If the Postmaster
General could see his way clear to give
additional facilities on those occasions,
h iving special reference to the rusli of
business, we believe it would be advan
tageous to the public and the depart
ment. Either the entire duties of the
present clerks might be divided as they
are, or one window might be reserved
for the sale of stamps solely and exclu
sively, other things, such as weighing
letters, answering inquiries, etc., being
transferred. When people are under
the necessity of waiting ten, fifteen or
twenty minutes before they can be
aerved, it scarcely admits of argument
that some change is urgently needed. -
The ordinary political squabbles
the day are generally passed upon in a
partisan light at home. Outside few
read or care what we do. Again, there
are matters that not only concern polit
ical and friendly relations, but in some
sense our financial standing. The latter,
however, interest those who have, or are
looking forward to a financial interest in
us. Such people are covered by both
legal and financial minds, and are the
first to discover anything in questionable
legislation. Ever since the formation of
our law Courts we have been favored
with men at their head of good average
legal ability, and to-day our Supreme
Bench is filled with gentlemen who are
lawyers, mostly of acknowledged abili
ties. The decisions of our Courts have
given us a prestige from abroad as re
gards the government of our country that
could not have been acquired in any
other manner.
Legislation is part of a constitutional
government, and much depends on it
for the future, as no retrospective laws
i j. 1 r
can ever De enacrea. ror years nacK
there has always been an uneasy feeling
in the community while the Legislature
was in session; the last extra session was
no exception. The public look to the
conservatism of the House and the
Executive for protection from despotic
The extra session was composed
largely of men who had no legislative
experience; good men in the ordinary
walks of life, but entirely ut of place as
legislators, and who knew - only how to
be guided by leaders who proved to be
partisans only. Therefore the extra ses
sion filled a blank in the requirements of
the Constitution. Otherwise it did no
good, but much harm.
We have been shown a letter from
England from a part' who is interested
in our Government financially, and .who
says: "Nothing has, transpired in -our
country within the past six months to
weaken its best interests in this so much
as the passage of an Act repealing an
Act under which Justices of your Su
preme Court were appointed under the
Constitution. People here, especially
the legal fraternity, view such Acts with
alarm. Your Supreme Court will doubt
less pass on this Aet as well as the veto,
and put both where they belong. At
the same time the condition of things is
t-.tr from RMtiftf-mtorv to those who are
financially interested, and will continue
to be while the present Administration
remains in power."
In the Supreme Court yesterday Mr.
Justice Dole rendered the
cision :
A. S. Cleirhorn, Collector
Customs, vs. W. S. Luce.
Ruling on defendant's demurrer.
The following grounds of demurrer are
offered by defendant's counsel :
1. The statute peremptorily requires
that "there shall always be annexed to
the petition a .liberal copy of the voucher
upon which it is predicated.
2. The form of the action should be
debt instead of assumpsit.
3. The declaration fails to show any
right of action in the Collector General
of Customs.
4. The only fact alleged is that "de
fendant withdrew and received from the
Custom House in said Honolulu, with
out the payment of duty thereon, the
several amounts of, liquor mentioned
and referred to iti said bill of particulars,
which said liquor had before its said
withdrawal and receipt by said defend
ant, b'.'en imported and introduced into
this Kingdom from abroad;" and the
other averments are not traversable,
being merely conclusions of law sought
to be based, as all matters of law must
rest on such facts as are pleaded.
5. There is no averment negativing
the exceptions in the statute which pro
vides that no import duties shall be
levied upon goods imported for naval
stores, for foreign diplomatic represent
atives, for the King and Queen, or for
the use of the Government.
In regard to the first ground of de
murrer, i. e., the requirement that the
orders referred to in the bill of particu
lars should have been made a part of the
complaint, the case of Shawmut vs.
Stevens, 9 Allen, 332, is authority that
such an objection may properly be
raised by demurrer. I think that the
defendant is entitled to have the orders
in question annexed to the petition,
under the provisions of sections 1100
and 1102 of the Civil Code. Such orders
appear to De tne written eviuence or
vouchers uoon which the action is Dredi
cated. The bill of particulars attached ma not claim a rht to Hcidl acco,
t.n rho npHtinn is not :i hill nf rvirrw-nhir '"odation or exceptional leniency on the
low as a proposition of law that because
: 1 : . 1 I 1. .1 ,1.. i:Alilr rrrnAtl I
from the Custom House without secur
ing or paying duty thereon, he is liable
to the Government for the duties.
It is also contended by the defendant
that the allegations of the petition are
insufficient, because the goods referred
to are described as "liquors." which are
not necessarily dutiable by the statute.
I think that this a defect in pleading, j
but as the demurrer is allowed on other 1
grounds I need not further consider it.
In regard to the objection that the
declaration should have averred that the
goods in question were not within the
exceptions of the statute. I have not
been able to satisfy mvself fullv. The
case of Spieres vs. Parker, in 1 Durn
ford & East's Reports, 141, which sup
ports the doctrine that such allegation is
essential in actions forja penalty under
an Act of Parliament, does not seem to
be closely applicable to this case.
The third ground of demurrer, that
the declaration fails to show, any right
of action in the Collector General of
Customs, appears to me to be a valid
objection upon the reassuring on the
same point in the ruling on the demurrer
in the caseof the Collector General vs.
G. W. Macfarlane & Co.
I therefore allow the demurrer on the
first, third and fourth grounds.
A. S. Cleghorn, Collector General of
Customs, vs. G. W. Macfarlane & Co.
Ruling on defendants' demurrer'.
The grounds of the demurrer are as
follows :
1. The declaration shows that the
liquois referred to were drawn from the
Custom House more than six months
before the action was begun, wherefore
the action is barred by the statute of
limitations set forth in section 681 of the
Civil Code, which is as follows: "All
suits brought against any person, vessel,
goods or other property for the violation
of any provisions of the revenue laws,
and all suits brought against any officer
of the Customs, or other person for any
thing done in pursuance of the revenue
laws, shall be commenced within six
monts after such violation is discovered
or such thing done."
2. If this action is not a suit for viola
tion of any provisions of the revenue
laws, the Collector General had no
authority to bring it.
In the first place, in reference to the
contention of the Attorney General, that
a more liberal standard should prevail
where the rights of the Government are
at stake than in the case of a private in
dividual, it is clear to me that in any
proceeding in which the Government is
a party, unless it is allowed some privi
lege or advantage by law, it stands upon
the same footing with other litigants and
rams m
As my Hot Cross Buna on Good Friday last
bare given so general satisfaction on account of
Very Fine Quality,
I I am continually requested to continue to make
! th same. I take pleasuie in informing my cus
tomers and the public general! that I intend to
Buiis of Still Finer Quality,
Called in Germany the "Emperor Francis Joseph
Buns." venturing to say that no other establish
ment in Honolulu can produce, as the practical
makinc? of them is only known to me in Hono
F. H0KN,
71 "1 "1 t --1
tun hrniflArifls ti.m hvmM
Popular Millinery H
Practical Confectioner and Pastry Cook.
Fire Insurance Co., of Liver
104 Fort St., Honolulu,
Union Fire and Marine Insurance Co.
of New Zealand.
-Hamburg: and Swiss Edrinrs!
Sun Insurance
Co., Shu Francisco
Hamburg and
Metfarbiirs General Irs. Co., of Megar
burg (Marine).
FIRE INSURANCE effected on all kinds of
insurable property, and (MARINE INSURANCE
on vessels, cargoes, commissions and freights at
current rates.
Children's Embroiderv Flounces ! T o i'
- - iuuica j-.n.i.iv.i
In Skirt and Holoku Lengths.
Ladies Box Suits!
m F,
J. S. Walker,
Agent for Hawaiian Islands.
saving , the United States Duty. The Entire Lot
will 1
Importer and Dealer in
dents Ladies and iChtldren'a
& Slippers.
Astonishing Prices ! Astonishing Pii
to the Pule of
Cigars and Tobacco
Kept on Hand.
3TOrders from the other islands solicited.
in any exact sense: and furnishes little
detailed information to the defendant.
The plaintiff has expressed his will
ingness to furnish copies of the orders
in question, wnicn n done witmn a
reasonable time would probably satisfy
the defendant on this point if this were
the only ground of demurrer.
The objection that the form of action
should be debt instead of assumpsit I
will consider in connection with the
fourth ground of demurrer, that the facts
alleged do not justify the inference
drawn from them by the declaration. If
it had been alleged that the defendant,
being the owner or consignee or the
authorized agent of the owner or con
signee of the liquors in question, had
withdrawn them without securing or
paying the duties payable on them, in
that case I think it is clear that debt
would be the proper form of the action.
(United States vs. Lyman, 1 Mason,
481.) But the declaration in this case
sets forth no statutory obligation on the
part of the defendant to pay the duties
in question ; and the inference of law
set forth by the declaration that "said
several sums of money should have been
ground that it is the Government.
If this action is a suit for the violation
of a provision of the revenue laws, as
contemplated by the above quoted sec
tion, there is no doubt in ray mind that
the Government would be barred by the
But this does not seem to me to be a
suit for the violation of a provision of the
revenue laws as contemplated by the
statute. The Collector General is author
ized by section 666 of the Penal Code to
bring such suits in his own name on be
half of the Hawaiian Government. The
title ot arucie zu or tne uivn uoae, in
which these sections are found, is, "Of
Smuggling and Other Frauds Against
the Revenue Laws," and it appears to
me from a careful reading of the whole
article that the violations of the provis
ions of the revenue laws contemplated in
r r
sections ooo ana bsi are sucu as are
described in the 26th article, such as
smuggling, the case of a police officer re
iusing 10 assist, an omcer oi customs in
making a search or seizure (sec. 664), in
terfenng with the officers of customs
while making a search or seizure (sec
665) and others of a somewhat similar
For sale by HANSON & SMYTH. We are
now prepared to receive all orders for the above
Fertilzer of a superior quality, thoroughly cured
and warranted one of the best' articles of the
kind in the market.
Orders may be left with
L. P. HANSON, 200 Queen steet.
Q. M. SMYTH. Hawaiian Hotel St.
Win. (i. Irwin & Co
In Barrels,
Half Barrels,
And 30-pound Boxes.
In Hal Barrels
And 25-pound Boxes-
In 30-pound Boxes.
In Half Barrels
Ladies or gentlemen who contemplate giving orders for the abovearv
respectfully requested to call at the Honolulu Pioneer Steam Caiulv Fad
Bakery, established 1863, before going to any other house, as my estalilisk
lOblllVLrLY the only establishment in Honolulu, notwithstanding allil'
ulous, empty, and pom nous newspaper blowing and puflinjr, where a wbv
procured to give the greatest satisfaction to the most refined tastes, an.l:
ornament of exquisite workmariship on vour table which will not rra
pieces when cut, but be a credit to the fine art of the Confectionery, wh&te
only for twenty-five years, but still bids competition defiance to this day. i
tempts in any other establishment are inferior to mine, and not worth
you pay. It is an indisputable fact that all over the world a good workup;
ductions are always cheaper than halfmade ones are. Having had over hai'i
tury's practical exierience, the undersigned is enabled to ornament Calr
and the highest styles of the art.
The only Practical Confectioner in all branches Proprietor Honolulu
Candy Factory and Bakery. Hotel between Fort and Niiuanu .Streets, II '
H. I.
Blue Mottled Soap
Cases Corned .Beef.
paid or secured by said defendant to the character, and that the suits that the H I i ( ) IT
r-t ii x-. . .. . ' Collector General is Aiit.hnrizAr! fn hrlna-I
Collector Oeneral of Customs," etc..
does not follow from the allegations of
fact, for it is nowhere averred that de
fendant was the owner or consignee or
authorized agent of the owner or con
signee of the liquors in question, whereas
section .556 of the Civil Code provides
"No person shall enter any goods and
secure the duties of them as principal
in the bond, unless he is the owner or
consignee at the time the vess enters
port, or unless he is the authorized
agent of such owner or consignee."
Therefore, as the defendant does not
appear to have any statutory relations
with the Government in connection
with these- goods as an owner or con
signee, I do not see how the Govern
ment has an action of debt against him,
and for the same 'reasons I do not see
how the Government could bring an
action to collect the said duties from this
defendant except by indebitatus as
sumpsit or by an action of tort, and I
am doubtful if the law would imply a
contract under the circumstances.
But the complaint is demurred to on
the ground that the facts alleged do not
support the plaintiff's claim. The facts
are that the defendant withdrew liquor
from the Custom House, which had
been imported from abroad, presumably
by other parties. It is not stated that
he was the owner or consignee. The
declaration proceeds to claim that "bv
law there was collectable and payable
and due from said defendant as dutv
upon and in respect of said several
amounts of liquor the said several sums
of money," etc. Now, it does "not fol-
Collector General is authorized to briner
for such violations are proceedings for
the seizure and forfeiture of goods and
for the arrest of persons and their pun
ishment by fine, and in some cases
by either tine or imprisonment.
This is an action of assumpsit for
money which it is claimed is due the
Government from the defendants by
virtue of an implied promise to pay it,
but it is not a suit for a violation of pro
vision of the revenue laws : the basis of
the action is a promise to pay and not a
violation of law. This conclusion is
borne out by section 522 of the Civil
Code, whieh provides that if a bond for
the payment of duties shall not be paid
when due the Collector General shall
cause a prosecution to be begun for the
recovery of the money due thereon. This
I think shows that the Legislature did
not regard the prosecution of a bond for
duties as a suit for the violation of the
revenue laws, and therefore deemed it
necessary to give the Collector General
special authority for the prosecution of
such bonds.
It has suggested in argument that the
circumstances of the claim before the
Court were not contemplated by the
Legislature. This is almost a matter of
course ; the Legislature could not have
expected that the Collector General
would ever allow dutiable goods to be
withdrawn without the payment or pro
vision for the payment of the duties, and
they certainly have not given him the
authority to bring in his own name an
action to collect such unpaid duties.
The demurrer is therefore allowed on
the -second ground, i. e., that the Col
lector General had no authority to bring
the case.
Cs Medium Bread.
Galvanized Iron Eoofing.
Sugar Bags-22x36.
Manila and Sisal, Panana Twine, Wh&l Lin.
Reed's Felt Steam Pi
and Boiler Covei-ing.
75 and 77 Kino- Street, - - - - Honolrf
Bell Telephone No. 275.
Mutual Telephone 5'
7. . 'Vrfr-ir
Stores, Ranges and Housekeeping fc,ofls
Plumbing, Tin, Copper and Sheet Ii
THE. R. Mclntyre & Bro,
A TKNT8, (suitable for
log una surveying parti a'.
2 tf
Groceries, Provisions an
New Goods received by every pacnet from tbe Eastern States 5flJjSJ fii
Produce by every steamer. All orders faithfully attended to, and Goods a- l f.
city free of charge. Island orders solicited. Satisfaction uuaranteea. . j
Telephone No. 92 i

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