Dissenting Opinion of
Mr. Justice Dole.This is an appeal from the Police Court, Honolulu, on points of law.
The defendant being a licensed storekeeper, was arrested for having on his premises in Honolulu, where he carried on his business, five gallons of spirituous liquors contrary to the provisions of Section 1. of “An Act to better prevent illicit traffic in spirituous liquors,” passed by the Legislature of 1888.
The defendant admitted the facts charged, but defended the prosecution on the ground that they did not make a criminal offense under the laws and Constitution.
He was sentenced to pay a fine of twenty-five dollars and costs, and the spirituous liquor mentioned was confiscated.
*512The defendant appealed to the Supreme Court in Banco upon the following points of law, to wit:
“1. Because Section 1 of Chapter LXVII. of the Session Laws of 1888, under which the said charge is brought, is unconstitutional and void, and particularly because the same is in conflict with the provisions of Articles 1, 6, 9, 12, 14 and 47 of the Constitution.
“ 2. Because the Act charged against the defendant is not a criminal offense under the Constitution and Laws of the Hawaiian Islands.
“ 3. Because the judgment herein made against the defendant is contrary to the Laws and Constitution of the Hawaiian Islands, as being based upon an unconstitutional provision of the statute.”
The enactment in question 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 any time one-half gallon of wine or beer, or one quart of ardent spirits.”
There is no question that that -part of the judgment which confiscated the liquor mentioned in the pleadings must be overruled, as there is no law that authorized the forfeiture of liquor so unlawfully held.
The defendant’s counsel in his appeal claims that the law above quoted is unconstitutional, and he argues that a literal construction of the words of the statute produces an absurdity; for instance, that the words, to quote only those necessary to an understanding of this question, it shall be unlawful for any person except druggists, etc., to have or keep or permit on or *513about the premises, “ any spirituous liquors, except for the use of those engaged on the premises, and which shall not exceed at any time one-half gallon of wine or beer, or one quart of ardent spirits,” can only mean that it shall be unlawful for any person, except druggists, etc., to have on his premises any spirituous liquors which shall not exceed one-half gallon of wine, etc.; in other words that no one can have less than that quantity unless he is a druggist, physician or licensed dealer in spirituous liquors.
This is, indeed, an absurd conclusion, and if it is the law the defendant is certainly entitled to a discharge. To reach this interpretation it is necessary to consider the words, “ except for the use of those engaged on the premises,” as a parenthesis, and the defendant’s counsel has, for the elucidation of his point, placed them in brackets in his brief, which is not the case in the statute. If these words are read without considering them as a parenthesis, the interpretation contended for by defendant’s counsel does not belong to them; for instance, it shall be unlawful for any person except druggists, etc., to have “any spirituous liquors except for the use of those engaged on the premises and which (referring to the liquors for the use of those engaged on the premises) shall Dot exceed at any time one-half gallon of wine, etc.” Both of these renderings are possible from the words used : the rule of interpretation compels me to adopt the one that gives the statute effect, rather than the one that leads to absurdity. (Vattel’s 15 and 16 Rule.) “In construing penal statutes, we must not, by defining, defeat the obvious intention of the Legislature,” (Potter’s Dwarris, 247.) I have no difficulty in finding that the offense described is the having more than “ one-half gallon of wine or beer, or one quart of ardent spirits,” under the circumstances mentioned, and overrule the point made upon the construction of the statute.
The defendant’s counsel further contends that the law, under which these proceedings have been taken, is unconstitutional in that it makes it an offense for storekeepers to do that which the rest of the community may do with impunity.
*514Referring to the statute, we find it reads : “ It shall be unlawful * * * 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,” etc., to keep on the premises where such business is carried on any liquor except for the use of those engaged on the premises, and then not more than the quantity limited. The words, “ or for any other person,” extend the application of the statute to the whole community, “ except druggists-, physicians and licensed dealers in spirituous liquors,” they being the only persons excepted by the statute. The evident object of the Legislature in the enactment of this provision, was to prevent such places of general resort as stores and other premises, used for carrying on such public pursuits as require a Government license, from being used for the illicit traffic in spirituous liquors, by forbidding the storage of liquors in such places either by the proprietors, or their customers or clients, or by anyone, except only in a very limited quantity, “ for the use of those engaged on the premises.” Inasmuch as it is comparatively easy for a person carrying on a business which attracts a large number of customers, to evade the law against the unlicensed traffic in liquors, under the fiction of storing liquor belonging to his customers, as well as in other convenient ways, the Legislature may well have considered that the success of the law requires that its provisions should include the whole community. Therefore the only inequality of the law is the exclusion of druggists, physicians and licensed liquor dealers from its provisions; but as they are authorized to sell spirituous liquors in connection with their respective pursuits, by the general “ Act to Regulate the Sale of Spirituous Liquors,” and for perfectly obvious reasons, we need not consider this point further. Even considering the law in its application to bear mainly upon persons conducting some licensed business or occupation, it is not for that reason unconstitutional. “Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application; *515they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders and the like.” (Iowa R. R. Land Co. vs. Soper, 39 Iowa, 112, and Cooley’s Const. Lim., 482.)
The point is also made by defendant’s counsel, that the provision of law in question is unconstitutional because liquor is property, and to make its mere possession criminal would divest it of its property character. This would be true if the law forbade all possession of liquor, inasmuch as its purchase is legally provided for. But under thé police power of the State, may not the possession of liquor be fenced about with precautions in order to diminish the evils arising from an illicit traffic ? The power of the Legislature to limit the right of property in liquor as well as in other things, the possession of which is liable, to abuse or to be productive of injury to society, is generally recognized. The provisions of a former liquor law in this country, making it a penal offense to give liquor to a native Hawaiian, was a limitation of the right of property in liquor; the law compelling the erection of none but fireproof buildings within certain limits, is a limitation of the right of property in land; the law forbidding the storage of more than ten cases of kerosene in one place, is also a limitation of the right of property. “It belongs to that department (legislative) to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health or the public safety.” (Mugler vs. Kansas, 123 U. S., 661.) The ground of such regulations is the public interest, and the Legislature is the judge of this. Because the Legislature has legalized the sale of spirituous liquors, it is not thereby restricted from limiting, controlling and regulating the use of such liquors in the hands of purchasers as it shall deem advisable for public order or public morals. The power of the State to prohibit the sale of spirituous liquors is unquestioned; this includes the lesser power of regulating the use and possession of liquor when the sale is legalized. We see an instance of this power of regu*516lating the use of articles that may be legally possessed, in the restriction of the use of giant powder, which may be legally bought and sold and held in possession, and yet the use of it for taking fish is made a penal offense by law. Judge Grier, of the Supreme Court of the United States, said iu his concurring decision of the License Cases, reported in 16 Curtis, 577: “The police power, which is exclusively in the States, is alone competent to the correction of these great evils (-resulting from intemperance), and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.” The case of Mugler vs. Kansas, above referred to, decided that a law which forbade anyone to manufacture liquor for his own use was Constitutional. The Court use the following language upon this point: “ If, in the judgment of the Legislature, the manufacture of intoxicating liquors for the maker’s own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the Courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question.” With equal truth it may be said that if, in the judgment of the Legislature, the accumulation of spirituous liquors in certain places frequented by the public tends to interfere with or to defeat the attempt to regulate and control the liquor traffic, and thereby to diminish the evils resulting from an unrestricted use of spirituous liquors, it is not for the Courts to disregard the legislative determination of the question, although it may differ from their own views as to what is necessary or expedient under the circumstances. “This Court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that sort must, in general, be addressed to the Legislature. Questions of policy determined there are concluded there.” (License Tax Cases, 5 Wall., 469.) The case of Mugler vs. *517Kansas was finally decided in the Supreme Court of the United States about the end oí the year 1887, and perhaps shows an advance of judicial sentiment in the questions raised in its adjudication ; but I find in the well-known case of Fisher vs. McGirr, decided in the Supreme Court of Massachusetts thirty-five years ago, and reported in 1 Gray, 1-51, the following statement of law by that Court: “We have no doubt that it is competent for the Legislature to declare the possession of certain articles of property, either absolutely or when held in particular places and under particular circumstances, to be unlawful, because they would be injurious, dangerous or noxious.” To include liquors in this category is not a forced application of the principle, for the Legislature may reasonably decide that the possession of liquors in certain localities and in unlimited quantities' would be injurious or dangerous to public order or public morals; and if they so decide, it is not for the Courts to dispute their conclusions. “ Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. (Shaw, Ch. J., in Commonwealth vs. Alger, 7 Cush., 53.)
By this “general police power of the state, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state; of the perfect right of the Legislature to do which, no question ever was, or, upon acknowledged principles, ever can be made, so far as natural persons are concerned.” (Redfield, Ch. J. in Thorp vs. Rutland and Burlington R. R. Co., 27 Vt., 140.) “ A regulation, whatever may be its character, which is instituted for the purpose of preventing injury to the public, and which does tend to furnish the desired protection, is clearly constitutional.” (Tiedeman’s Limitations of the Police Power, 207.) And quoting from Judd, J., in the case of the King vs. *518Tong Lee, 4 Hawn., 341-2, otherwise known as the Chinese Wash-houses Case: “Says Cooley on Constitutional Limitations, 577, ‘the limit to the exercise of the police power in these cases must be this: the regulations must have reference to the comfort, safety or welfare of society.’ The Act in question does purport to have reference to the comfort, safety and welfare of society. Its object, however injudiciously expressed, is plainly to repress what, in the opinion of the Legislature, tends to the dissemination and propagation of disease. We are unable to see that the Act in question violates this provision of the Constitution, as no property of the citizens is appropriated by the state, or destroyed without due process of law. * * * The judiciary is not vested with the authority to decide whether laws enacted by the Legislature are politic, wise or reasonable.” It may with equal correctness be said of the legislative regulation which this Court is asked to set aside, that it “does purport to have reference to the comfort, safety and welfare of society, and that its object, however injudiciously expressed, is plainly to repress what, in the opinion of the Legislature,” creates both an opportunity and a temptation to unlawfully traffic in spirituous liquors, and therefore tends to such traffic. It needs no argument to demonstrate that the /unlimited accumulation of liquors in stores and offices frequented by the public, and where the public may lawfully go, would, in itself, tend to a traffic in such liquors, and so be a menace to the public welfare. There is little force in the argument that the accumulation of liquor in certain places may not be prevented by law, as the accumulation of gunpowder or burning fluids is prevented, because it is not an explosive or a dangerous combustible. Such accumulation may be prevented if it menaces society in any way; the Legislature thinks it tends to illicit traffic in liquor; if this Court doubts the correctness of the legislative conclusion, it may not for that reason interfere, if we accept the foregoing authorities. I think that I have covered, in these conclusions, substantially all of the points raised by the defendant’s counsel in his argument.
*519The notice of appeal specifies Articles VI., IX., XII., and XIV. of the Constitution as being in conflict with the law under consideration ; these are not in conflict with Section 1 of the “ Act to better prevent illicit traffic in spirituous liquors,” and the defendant’s counsel does not claim, in his argument, that there is such conflict; he does indeed argue against the right of seizure of liquors held against the provisions of Section 1 of the said Act, but that Section does not provide for the seizure of such liquors, and Section 5, which does provide for such seizure, has been declared void by the decision in Wing Wo Chan & Company vs. Hawaiian Government (ante, page 498) : moreover, there is nothing in the record to show that the liquors in question had been seized at all.
It therefore seems to me that the judgment appealed from should be affirmed as to the fine and costs, but that that portion of it which decrees the forfeiture of the spirituous liquors mentioned in the complaint, should be overruled.