Republic of Hawaii v. Vasconcelles

• Decision Date: 30 October 1897
• Parties: REPUBLIC OF HAWAII v. LOUIS VASCONCELLES.
• Court: Hawaii Supreme Court

11 Haw. 228

REPUBLIC OF HAWAII v. LOUIS VASCONCELLES.

Supreme Court of Republic of Hawai'i.

October 30, 1897

Submitted June 21, 1897.

EXCEPTIONS FROM CIRCUIT COURT, THIRD CIRCUIT.

Syllabus by the Court

Sec 78, Act 64, Laws of 1896, reads: " No person holding a merchandise license shall be permitted by virtue thereof, to sell or furnish opium or any preparation thereof, nor any poisonous drugs, nor alcohol, spirituous liquors or other intoxicating drink." Held, this section does not prohibit the selling or furnishing of the enumerated articles, but merely provides that the selling or furnishing of these things are not permitted by the merchandise license and hence the defendant, who while holding a merchandise license furnished spirituous liquor to certain persons should have been charged if at all, not under this section but under some other section or statute prohibiting the furnishing of spirituous liquor without a license.

Dep. Atty. Gen'l. E. P. Dole for prosecution.

Thurston & Stanley for defendant.

FREAR AND WHITING, JJ., AND CIRCUIT JUDGE CARTER, IN PLACE OF JUDD, C.J., ABSENT.

OPINION

FREAR J.

The defendant was tried and convicted in the Circuit Court of the Third Circuit, jury waived, on appeal from the District Court of North Kona, upon a charge of furnishing spirituous liquor to certain persons contrary to the provisions of Secs. 78 and 79, Act 64, Laws of 1896, and now comes here on various exceptions. One of these exceptions raises the question of the construction of these sections of the statute.

This Act is a general act relating to various licenses and these sections are in that portion of the Act which relates to " merchandise licenses."

Sec. 78 reads thus: " No person holding a merchandise license shall be permitted by virtue thereof, to sell or furnish opium or any preparation thereof, nor any poisonous drugs, nor alcohol, spirituous liquors or other intoxicating drink."

Sec. 79 reads thus: " Any person who shall sell imported goods, wares or merchandise without a license under this Act; *** or who shall otherwise violate or fail to observe any of the terms, conditions, or requirements of this Act, or of his license, shall be fined, " & c.

The defendant held a merchandise license, but no liquor license. He gave some liquor to certain persons in a small room used as an office in the same building with his store. He was charged with " furnishing, " not " selling, " and there was no proof of a sale, and therefore the first part of Section 79 (which relates only to selling) is not involved. The latter part of the section, however, prescribes a penalty for violating any of the terms, conditions or requirements of the Act, and the question in this case is whether the terms, conditions or requirements of Sec. 78 were violated. This section relates to " furnishing" as well as " selling" spirituous liquors and certain other articles. But does it prohibit the selling or furnishing, or does it merely provide that a merchandise license shall not authorize the selling or furnishing of those articles?

The section reads: " No person holding a merchandise license shall be permitted by virtue thereof, to sell or furnish" the enumerated articles. It is contended on the one hand that the words " by virtue thereof" should be construed to mean " on the premises where the licensed business is conducted." This is in order to avoid the objection that the section might be unconstitutional if it should be held to apply to the licensee personally and apart from his merchandise business. On the other hand it is contended that the section should be construed to mean merely that a merchandise license shall not cover these enumerated articles; in other words, that if a person wishes to sell or furnish these articles he must procure the special licenses required for the selling or furnishing of those articles; that is, a person is not permitted to sell these things " by virtue of" the merchandise license; the merchandise license would not protect him in case he should be prosecuted under another statute or portion of this statute for selling or furnishing these things without the appropriate license. It seems to us that the latter is the correct construction, although much can be said in favor of the other construction. These sections are penal and should be strictly construed. If it were clear that the Legislature intended that the section should be contrued as in the nature of a prohibition and not in the nature of an exception, no doubt, even though the section is penal, the court should, if it reasonably could construe it so as to effectuate the intention. But where there is a doubt as to the intention of the Legislature, the court should lean to the construction favorable to the accused. A general merchandise license would naturally be taken to permit the selling or furnishing of all classes of merchandise. Hence, if the Legislature intended that there should be exceptions for which other special licenses should be procured, it would naturally insert a section of the kind in question-providing that the selling or furnishing of the excepted articles should not be permitted " by virtue of" the merchandise license. It is more natural to read the section as providing that the enumerated articles shall not be sold or furnished by virtue of the license than to read it as providing that they shall not be...