OCR Interpretation

The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, April 21, 1898, Image 10

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Persistent link: https://chroniclingamerica.loc.gov/lccn/sn85047084/1898-04-21/ed-1/seq-10/

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Jlwi: Tj-:km, ISO 7.
Fxv.i:ctions From Circuit Court, Third Circuit
Suismittki Junk -s, 1897.
Decided March 24, 1S9S.
Fkkai: and Wnmxo, J .J., and Circuit Judoi: Perry, in
Sec. 71, Act Gl, Laws of 1896, provides that lodging or (tenement "house,
'hotel, boarding house and restaurant licenses shall le issued upon
certain, conditions, 'One of which, is "that no intoxicating liquor
.&hall be furnished or sold therein, except as authorized by law."
The defendant, a licensed restaurant keeper, without a liquor
license, gave intoxicating liquor to various persons at various
times on the restaurant premises. He, his partner and employees
slept on the premises. Held,
That the building did not lose its character as a restaurant because a
portion of it was occupied as a dwelling.
The word "furnish" in the statute may include "gifts" under some
circumstances on the restaurant premises.
Ignorance that an act was a criminal offense loes not excuse, if the
act was done intentionally.
The condition relating to the sale or furnishing of intoxicating liquor
is not unconstitutional either as being class legislation and not
applying to all occupations, or as not being embraced in the
subject of the Act wihich is "An Act to amend, add to and consoli
date the laws relating :to certain licenses," &c.
The defendant was tried and convicted in the District Court
of North Ivona, Hawaii, upon a charge of furnishing liquor to
certain persons at certain times in March last, contrary to the
provisions of Sees. 71 and 72, Act G4, Laws of 189G. Upon
apjyeal ho was tried in the Circuit Court, jury waived, and
convicted, upon the following agreed facts:
"Tho defendant kept a restaurant and eating-house in Ivailua,
District of North Ivona, Island of Hawaii; he held a license as
a restaurant keeper; he had no license to sell spirituous or in
toxicating liquor. The defendant, his partner and two em
ployees slept on the premises, there being rooms provided for
that purpose. On tho 14th day of March, 1897, the same being
the defendant's birthday, he gave a feast in and upon said
restaurant premises, to divers of his friends, furnishing four
bottles of gin for tho occasion. He also gave upon the premises
two bottles of gin to friends from Hamakua, and two bottles
of gin to relatives from AVaipio. He also, on divers occasions
immcdiatelv before and immediatelv after said 14th day of
March, furnished upon the premises spirituous liquor to divers
"For the purposes of this case it is not claimed on behalf of
the Government that any pecuniary consideration was paid for
said liquors, or denied that they were a gift."
The Act in question is a general act relating to licenses.
Sec. G8-74 relate to lodging or tenement house, hotel, boarding
house and restaurant licenses. Sec. 71 provides that such
licenses lhall be issued upon certain express conditions, one of
which is, "o. That no intoxicating liquor shall be furnished or
sold therein, except as authorized by law." Sec. 72 provides
that anyone "who, holding a license, shall violate or fail to
observe any of the requirements or condition of this Act or
of his license, shall be fined," etc.
The points presented on the exceptions upon which the case
comes to this Court will be considered in their order.
1. That the facts stated do not constitute an offense under
the law. Defendant contends that, as he, his partner and two
employees slept on the premises, tho building should be re
garded as a dwelling and not as a restaurant, citing The Kin if
v. Asian, 3 Haw. 474, in which it was held that an entry was
burglarious, though made in the part of a building used as a
store, if some part of the building was used as a. dwelling. But
if a building does not lose its character as a dwelling because
a part of it is used as a store or restaurant, it is equally true
that it docs not lose its character as a store or restaurant because
a part of it is used as a dwelling. The building would have a
dual character. Even if the two parts of tho house could bo
treated separately, the one part as a restaurant and the other
as a dwelling (as to which we express no opinion) it would
not avail the defendant in this case, for it is agreed that the acts
charged took place on the "restaurant premises."
It is contended further that the word "furnish" in the statute
cannot be held to include a gift. Whether it can be held to in
clude a gift of the kind made on the 14th of March, when the
liquor formed merely a part of a birthday feast given by the
defendant, though on the restaurant premises, it is unnecessary
to decide. A furnishing in that way may be analogous to a
providing of liquor for the use of one's family, in which one's
servants and guests may be included. But the agreed statement
shows that the defendant gave liquor in other ways on days other
than his birthdav. "On divers occasions immediatelv before and
immediatelv after said 14th dav of March" he "'furnished (using
the very word of the statute) upon the premises spirituous liquor
to divers persons." "He also gave upon the premises two
bottles of gin to friends from Hamakua, and two bottles of gin
to relatives from "Waipio." It is "not claimed on behalf of the
Government that any pecuniary consideration was paid for said
liquors, or denied that they were a gift." The question, there
fore, is, whether the word "furnish" may include "give" under
any circumstances, within the meaning of the statute, or does the
mere absence of a consideration in all cases take the case out of
the statute? It is contended that the word "furnish" was in
tended to cover cases of barter and exchange. Hut the word
"furnish" has a broader meaning. It means "provide" or "sup
ply" and does not import a consideration. One- object of the
legislature was to provide special means to prevent illicit or
unlicensed traffic in intoxicating liquors in places where the
temptation to carry on such traffic would be great and where it
would be easy to carry it on without detection. There are
many devices by which liquor can bo given away with the
expectation of gain or advantage of some sort and yet so as not
to amount to a sale, exchange or barter. Moreover, a prohibi
tion against giving might be deemed a necessary precaution
in order to prevent evasions of the prohibition against selling.
The statute was made broad designedly with a view to prevent
ing such transactions. Another object of the statute was to
provide for the orderly and quiet conduct of the houses in ques
tion a regulation called for by the public nature of such
houses. No doubt, as argued, the legislature did not intend
to denounce an act as criminal if done by citizens engaged in
one and a legitimate vocation, while innocent if done by citizens
engaged in any other pursuit. But the statute does not denounce
the giving away of liquor by persons who happen to be restaurant
keepers. They may give away liquor, as well as any other class
of persons. They may not, however, give it away to outsiders
upon the restaurant premises. The prohibition is restricted to
tho appropriate places and circumstances which call fur it.
Otherwise it might be open to objection as unconstitutional.
See the third point below. In State r. Jones, :)) Vt. 370, a
hotel keeper gave liquor to a hostler who was employed by him
four days, and to musicians employed by him on the occasion
of dances at his hotel. The court held that the furnishing to the
hostler was not criminal because he was a part of the family,
but otherwise as to the furnishing to the musicians. In State
r. Freeman, 27 Vt. 520, the court held that a charge of "fur
nishing" liquor was sustained by proof of "giving" it. In
State v. Delisting, 33. Minn. 102, the ordinance provided that
no person should "sell, vend, deal in, or dispose of certain
liquors without a license. The court held that the word "dis
pose" included dispositions by way of gift. The words of our
general act to regulate the sale of spirituous liquors are "sell
or dispose of." Comp. L., p. 095. If "dispose of" include gift-,
"furnish" must also include gifts, under the circumstances con
templated by tho Act. The Act should be construed so as to
be made effective and so as to accomplish its purposes and pre
vent evasions.
2. That the defendant did not intend to commit a crime
and that there was not that union of act and intent necessarv
to constitute a crime. The defendant intended to do what he did
do, and if he did not intend to commit an offense it was morel v
because he did not know that what he did and intended to do was
an offense. Ignorance of the law is no excuse.
3. That the hw is repugnant to Sec. 1 of Art. 1 of the Con
stitution, which reads: "God hath endowed all men with certain
inalienable Bights!, among which are Life, Liberty and the
Bight of acquiring, possessing and protecting property, and of
pursuing and obtaining Happiness." The argument upon this
point assumes that the word "furnish" includes "give" and that
the legislature might in the exercise of the police power prohibit
all persons from giving away liquor. The contention is that
the prohibition cannot be placed upon any one class but that
if imposed at all it should extend to all classes. It is well estab
lished that classification for legislative purposes is constitu
tional provided the classification is reasonable and not merely
arbitrary. If the legislation extends to all within the class it is
unobjectionable from the constitutional standpoint. It is not
sufficient, it is true, that all the selected objects merely have
some attribute in common. That might constitute them a class
for some purposes but not for legislative purposes. There must
be some reasonable connection between the common attribute
and the purposes of the legislation, something in the common
attribute that calls for or justifies the particular legislation.
In the present case, provision is made under the police power
of the state for the orderly conduct of quasi-public houses and
for a special means of enforcing under conditions which render
jieculiarly easy and likely of evasion, a rule that is made appli
cable to all under another and more general act, prohibiting the
selling or disposing of liquor without a license. This is sufficient
to justify the legislation. This view is supported by the reason
ing in the cases cited by counsel, among which may be mention
ed The King v. Fernandez, 7 Haw. 505, and Gulf, tCc, Co. v.
Ellis, 105 U. S. 151, both the majority and minority opinions and
cases therein cited. See also Tai Kcc r. Minister of Interior,
ante p. 57; Camphcll r. Sit air, ante p. 112; Republic v.
Yasconeelles, ante p. 22S.
4. That the law is repugnant to Article 03 of the Constitu
tion, which provides that "Each Law shall embrace but one
subject, which shall be expressed in its Title." Here also The
King v. Fernandez, supra, is relied on. In that case it was
held that the subject of the portion of an act that prohibited
the mere possession of spirituous liquor without intent to traffic
in it was not embraced within the title, "An Act to better pre
vent illicit traffic in spirituous liquors." That case is not in
point. Furnishing or giving away intoxicating liquors is more
closely related to selling them than is the mere possession of
them. In State r. Anderson, 14 Ind. 290, in considering a
statute entitled "An Act to regulate and license the sale of
spirituous liquors," crc, the court said: "When we consider the
object for which such a law was passed, viz., to prevent abuses
that might flow from the unrestrained disposal of liquors in
these respects, it would seem that the giving away, under
circumstances which might produce the same evil results as the
selling, would be a matter properly regulated in connection with
the selling. Indeed, it mav be regarded as a necessarv incident
to a statute regulating the sale, to secure its efficient operation.
It is a necessary precautionary provision to prevent evasion of
the prohibition to sell. All experience under license laws
proves this."
But the present case does not involve the question whether
the possession or furnishing or giving of liquors may be pro
hibited under a statute whoso title refers to sales only. I he
title of the Act under consideration does not refer even to sales.
It is "'An Act to amend, add to and consolidate the laws relating
to certain licenses and to repeal the following laws, viz," tfce.
One of these licenses is the restaurant license and the portion
of the statute in question is merely one of the conditions upon
which that license shall be granted. In a statute relating to
certain licenses it is proper to specify the conditions upon which
the licenses may be granted. The constitutional provision
.in question should be construed liberally. Re Walker, 9
Haw. 171.
5. That the law is otherwise partial, unjust and obnoxious
to the Constitution. This point is submitted upon the argu
ments, made upon the other points: also upon Art. 1, Sec. 2, of
the Constitution, which provides that "The Government is con
ducted for the common good, and not for the profit, honor or
private interest of any one man, family or class of men;" al-o
upon Art. S of the Constitution, which provides that "2o per
son shall be deprived of life, liberty or prop
erty, without due process of law." This point is sufficiently
covered, so far as we are called upon to touch upon it, by the
reasoning upon the other points.
The exceptions are overruled.
Deputy Attorney-General E. P. Dole for prosecution.
11. S. Humph reys for defendant.
In Vacation.
JOHN K. SUMNEU r. A. PEUHY, First Judge of the Cir
cuit Court of the First Judicial Circuit, and J. A. KING,
Beceiver of the Estate of John K. Sumner.
Pktitiox fou a Wkit of IVoiiiiutiox.
Original Jriusmcnox.
SuimiTTKD Fkbiiuahy 14, 1S9S.
lH.cinr.n Makcii 2S, lSKS
Jri)D, C.J., AYiiitixo, J., a xi) L. A. Dickkv, Kst., a mkmuki: of
A Circuit Judge had jurisdiction to entertain a bill in equity filed
by the next friend of a person, one. J. K. S.. alleged to be mm
cnnipo, though not under guardianship, he being without tho
Republic, the object of the bill being to cancel certain instruments
in writing affecting said J. K. S.'s property alleged to have been
procured by fraud. The Court had also the power to appoint a
receiver of the property of the said J. K. S.. it deeming it necessary
under the circtimstances. The Judge decreed the relief -pray oil
for. The object of the bill being accomplished the receiver should
be discharged, and the Court orders the writ of prohibition so
far as it forbids the court to act further, to be made perpetual.
This is an application tiled February 1, J 898, by John K.
Sumner for a writ of prohibition directed to the First. Judge of
the Circuit Court, First Circuit, and J. A. King, receiver of the
estate of the said Sumner, forbidding them to proceed further
upon an order made in the case of John K. Sumner, a noit
compos mentis, by his next friend, r. one M. F. Crandell. ap
pointing the said J. A. King receiver. The writ was issued and
the motion to make it absolute was heard bv us on the 14th
February last in vacation. The petition alleges that on Feb
ruary 19, 1895, tho petitioner was out of the Bepublic and
beyond seas. That on that date, without notice to petitioner,
a bill in equity entitled "J. K. Sumner by his next friend Maria
S. Davis r. M. F. Crandell," was filed and leave given said Maria
S. Davis by the Second Judge of the Circuit Court to prosecute
said suit as the next friend of the petitioner; the bill purported
to be "the bill of J. K. Sumner, a lion compos mentis, by Maria
S. Davis his sister and next friend," showing as follows:
1. That the plaintiff now residing in the State of California,
is about 74 years of age and is the owner of a largo amount of
valuable real estate and property in the Hawaiian Islands, to
wit, of the value of $100,000.
2. "That the mind and memory of the plaintiff have for
some time been failing, and that he is now and for some months
last past, has been unable to understand his affairs and to intelli
gently transact business."
0. The bill goes on to aver in substance that the defendant,,
"by appealing to the prejudices of tho plaintiff and by false
representations and by other wicked and corrupt practices has
obtained complete control over the plaintiff, and that by the
means of said false representations and wicked and corrupt
practices, the defendant on the 2!5d day of December, 1894,
induced the plaintiff to give him a power of attorney," being
a very general power, for collecting money, bringing suit for
the same, selling, purchasing, leasing and mortgaging lands,
mortgaging and in any way dealing in goods and other pro
erty. (This power of attorney, which was subsequently riled
and is now p,irt of the record, appears to be one of the gen
eral printed forms used in California).
4. That said next friend is informed and believes "that
the said defendant is making leases and doing other acts under
said power of attorney that are prejudicial to the best inter
ests of the plaintiff ami is negotiating and dealing with the
property of the plaintiff in a manner that will bring loss, dis
aster and ruin upon the plaintiff."
5. That defendant is a person without property and could
not respond in damages for any claims that plaintiff might have
against him by reason of his improper actions and mismanage
ment of plaintiff's proerty under said power of attorney.
(I. "That by fraudulent representations, intimidation, deceit
and duress, made, exercised and practiced by the defend-nt on
the plaintiff, the plaintiff was induced to leave the Hawaiian
Islands in great haste for California upon the 8th day of
February, 1895," and is compelled by the same means to remain
7. That said next friend and also plaintiff's familv were
ignorant that defendant had obtained said power of attorney
and of the power and control that the defendant had acquired
over the plaintiff, and had no knowledge of the proposed depart
ure of the plaintiff until it was too late to prevent the same.
The bill prays "that J. A. King be appointed receiver for the
o.-tate of plaintiff with power to take, collect and receiver all
rents, issues and profits of the estate and proportv of the
That said power of attorney be revoked and defendant
ordered to produce the same in court, for cancellation, with all
documents, papers ami title deeds in his possession or under
his control relating to the estate and property of the plaintiff.
For discovery and account and for injunction against defen
dant's transacting any further business under said power of
The bill is signed by -Maria S. Davis," (-.. Alfred Magoon,
Solicitor for the plaintiff,") and is sworn to by Maria S. Davis.
Summons was issued February 19, 1895, on the bill, together
with an injunction as prayed for.
Defendant's answer dated 3 larch 4, 1895, denies that the
mind or memory of Sumner had been failing or that he was
unable to understand his affairs or to transact business intelli
gently, or that defendant had appealed to his prejudices or
made any false representations or used other or any wicked or
corrupt practices, or thereby obtained any control over Sumner
or induced him thereby to give the power of attornev, or that
under the power of attorney he was making leases or- doinr
other acts prejudiced to Sumner's best interests, or that Sumner
was induced to leave the Hawaiian Islands by defendant's
fraudulent representations, etc., or that he was therebv com
pelled to remain away.
Messrs. Castle and Neumann appeared for defendant.
The respondents answered. The Circuit Judge, after evi
dence and argument, decided on September 30, 1S90, that the
power of attorney and agreement for compensation were fraud
ulently obtained and null and void, and ordered their cancella-

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