The King v. Young Tang

• Citation: 7 Haw. 49
• Parties: THE KING v. YOUNG TANG.
• Decision Date: 01 April 1887
• Court: Hawaii Supreme Court

7 Haw. 49

THE KING v. YOUNG TANG.

Supreme Court of Kingdom of Hawai'i.

April 1, 1887.

APPEAL FROM THE POLICE COURT, HONOLULU.

Syllabus by the Court

The defendant was convicted in the Police Court, Honolulu, of having opium unlawfully in his possession.

Held that since the passage of the Act of 1886, " To regulate the importation and sale of opium in this Kingdom, " the mere possession of opium is not punishable by any law in force.

Held also, that the Court will not listen to an objection to the constitutionality of an Act by a party whose rights it does not affect.

Judgment of the lower Court reversed.

F. M Hatch and P. Neumann, for the Crown.

J. T Dare, for defendant.

JUDD C.J., MCCULLY, PRESTON and BICKERTON, JJ. FORNANDER, J. absent.

OPINION

This case comes to us on an appeal on points of law from the Police Court of Honolulu. The defendant was charged with the offense of having opium unlawfully in his possession. He pleaded not guilty and the evidence on the part of the prosecution was taken and the Crown rested. The defendant then, by his attorney, Mr. J. T. Dare, moved that the defendant be discharged on the grounds-

" First. The Crown has not proven its charge of unlawful possession of opium.

" Second. That the possession of opium under the law of 1886, is not a crime.

" Third. That the Act of 1886, entitled ‘ An Act to Regulate the Importation and Sale of Opium in this Kingdom, ’ is unconstitutional and therefore void and of no effect."

The Police Justice overruled the motion, and the defendant offering no testimony in defense, the Police Justice found him guilty and sentenced him to pay a fine of one thousand dollars and to be imprisoned at hard labor for the term of two years.

Whereupon the defendant gave notice of and thereafter perfected an appeal to the Supreme Court in Banco, upon the above points of law made on his motion to be discharged.

This being an appeal solely upon points of law, the Court has not only to determine whether the appellant is liable to any punishment under the statute of last session, but whether there is any other law in force which subjects the appellant to punishment, because if we should so find, we must remit the case to the Police Magistrate in order that a legal sentence may be passed.

We must therefore ascertain how far the said statute conflicts with the law as it stood when such statute came into operation.

For this purpose it will not be necessary to go back further than the Law of 1874.

The title of this Act as amended by the Legislature of 1876 is " An Act to Restrict the Importation and Sale of Opium or preparation thereof."

This Act was amended in several particulars, immaterial to be considered in this case, except an Act being Chapter XXV. of the Laws of 1880, which will hereafter be more particularly referred to.

The Act of 1874 is as follows:

Section 1. The importation of opium or any preparation thereof into this Kingdom, except as authorized by Section 2 of this Act, is hereby strictly prohibited; and whosoever shall import, sell, give or furnish opium or any preparation thereof to any person in this Kingdom, except as provided in said Section 2, shall be liable to a penalty of not less than one hundred dollars, and to be imprisoned at hard labor for any term not exceeding two years, one-half of which pecuniary penalty shall be paid to the party giving the information which shall lead to the conviction of the offender.

Section 2. The Board of Health may from time to time import such quantities of opium or preparations thereof, as the said Board shall deem necessary for medical purposes in this Kingdom, and shall furnish it at cost to any physician or surgeon having a diploma or certificate from some medical college or university, and who has a license to practice medicine in this Kingdom, also to the person in charge of the medicines at the Leper Settlement at Molokai, to be used exclusively for medical purposes. And the said Board may also furnish it to the captain or surgeon of any vessel bound to a foreign port for use on board said vessel.

Section 3. Any person who shall have in his possession opium or any preparation thereof, which he shall not have received from the Board of Health, or from a duly licensed physician or surgeon, as prescribed in Section 2 of this Act, shall forfeit such opium or preparation thereof to the Hawaiian Government, and the same shall be seized and delivered to the Board of Health, and such person shall be imprisoned for a term of not more than one year, with or without hard labor, in the discretion of the Court.

(By Chapter XVIII. of the Session Laws of 1880, the punishment was increased to a penalty of not less than $50 nor more than $250 and imprisonment not exceeding one year).

Section 4. Any physician or surgeon who shall sell, prescribe, or furnish opium, or any preparation thereof, to any person in the habit of smoking or otherwise using the same, or to any other person, except as a remedy in case of sickness, shall forfeit to the Hawaiian Government all opium or preparations thereof which may be in his possession, and it shall be seized and delivered to the Board of Health, and he shall be fined in the sum of not less than twenty-five nor more than one hundred dollars, and if he shall violate this Act more than once, he shall not again be furnished with opium by the Board of Health.

Section 5. Nothing in this Act shall be construed to exempt any person or vessel from the pains and penalties prescribed by the laws of the Kingdom against smuggling.

At the session of the Legislature held in 1880, the following law was passed:

" An Act to Authorize the Minister of the Interior to Grant Licenses for the Sale of Poisonous Drugs.

" Section 1. The Minister of the Interior may grant a license to any duly qualified physician or surgeon, or to any other suitable person, who may be recommended by the Board of Health, to import and sell poisonous drugs for the term of one year, in the District of Honolulu, upon receiving the sum of forty dollars, and in any other district the sum of twenty dollars.

" Section 2. No such license shall authorize the licensee to import, sell or furnish opium or any preparation thereof, except on the prescription of a duly qualified physician.

" Section 3. The Board of Health, by its president, may authorize any duly qualified physician or surgeon, or any licensees under this Act, to enter opium and preparations thereof at the Custom House on the payment of the duties thereon, anything in the Act approved on the 8th of August, 1874, entitled ‘ An Act to Restrict the Importation and Sale of Opium and Preparations thereof, ’ to the contrary notwithstanding.

" Section 4. Any person who shall import, sell or furnish any poisonous drug without license, or contrary to the provisions of this Act, shall be fined not less than fifty nor more than five hundred dollars, or to be imprisoned at hard labor, not exceeding six months, in the discretion of the Court. Nothing in this Act contained shall be construed to prevent the Government or the Board of Health from importing any drugs or medicines.

*****

" Section 6. The provisions of Chapter LXXXVIII. of the Penal Code shall apply to all persons holding licenses under this Act."

Chapter LXXXVIII. of the Penal Code, referred to in the last mentioned Act, regulates the sale of deadly poisons, and prescribes the manner in which records shall be kept by persons selling the same; and Section 4 enacts that " Every licensed physician, druggist or apothecary who shall compound, sell or deliver any prescription containing any poisonous drug or substance deleterious to human life, to be used as medicine, shall enter upon his books said prescription written out in full with the date thereof, with his own name appended thereto, or the name of the physician who prescribed the same, and the person to whom the same was delivered; and no such prescription shall be compounded, sold or delivered unless the name of the person compounding, selling or delivering the same, or the name of the physician prescribing the same, be appended to the prescription in full, and every such prescription shall be preserved; and said books and prescriptions shall be subject at all times to the Minister of the Interior or his agent."

5. Any person violating the provisions of this chapter shall forfeit a sum not exceeding one thousand dollars for each offense.

In the session of 1880 another Act was passed relating to Chinese physicians who were thereby allowed to receive licenses to practice medicine " subject to the same laws and restrictions as other licensed physicians."

It would seem that the effect of the law, Chapter XXV. of 1880, was to remove some of the restrictions of the law of 1874, and allowed licenses to be issued to persons outside the physicians mentioned in that law, to sell poisonous drugs, and sell and furnish opium or its preparations to persons having prescriptions from any duly qualified physician.

And it would also seem that all persons dealing in poisonous drugs, of which there can be no doubt opium is one, were compelled to keep records of sales, etc.

And that no physician or surgeon could sell or prescribe or furnish opium or preparations to any person " in the habit of smoking or otherwise using the same."

And also that in consideration of the license-fee, the persons licensed could send for opium themselves, and the Board of Health were relieved from the necessity of importing it.

We now come to the law of 1886, entitled " An Act to Regulate the Importation and Sale of Opium in this Kingdom."

This Act repeals all laws and parts of laws inconsistent with it.

Its provisions are as follows:

Section 1. The...