The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-01-01

as the Legislature, under the governing and con-
trolling power vested in them by the Constitution
may think necessary and expedient.
'This is very different from the right OF emil
nent domain the right of a Government to take
and appropriate private property whenever the
public ~exigency requires 1T, which can be done
only on condition of providing a reasonable COM
pensation therefor. The power we allude to is
rather the police power the power vested IN the
Legislature by the Constitution to make, ordain,
and establish all manner of wholesome and
reasonable laws, statutes, and ordinances, either
with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the
good and welfare of the commonwealth, or the
subjects of the same
Our Constitution contains a similar provision
in Article 4S THE Legislature has full power
and authority from time to time to
make all manner of wholesome laws not Iepug-
nant to the provisions of the Constitution"
1t is, however, urged that the Act we are con-
sidering is repugnant to Article 9 of our Consti-
tuition, which reads 80 No person .
shall be deprived of life, liberty, or property
without due process of law"
Judge Field, in his dissenting opinion in the
slaughter-house cases DC Wallace, 50 says =
- 1t is contended in justification for the Act in
question that it was adopted IN the interest OF
the city, to promote its cleanliness and protect
its health, and was the legitimate exercise OF
what is termed the police power of the State.
That power undoubtedly extends to all regula-
tons affecting the health, good order, morals,
peace and safety, and is exercised on a great
variety OF subjects, and in almost numberless
ways. :" All sorts of restrictions and burdens are
imposed under it and when these are not in
conflict with any Constitutional prohibitions, or
fundamental principles, they cannot be success
fully assailed in n judicial tribunal"
In that case the Legislature of Louisiana had
passed an Act designating n place under the con-
troll of a corporation where cattle could be landed
nnI nnA n"nnnCnA n Of 90
upon whoever should land and slaughter animals
in an area of 1854 square miles, except in the
designated abbatsirs.
The majority of the Supreme Court of the
United States sustained the constitutionality of
the Act and Judge Miller, for the Court, refer
ring to the provision Of the Constitution of the
United States, that " No State shall deprive any
person of life, liberty, or property without due
process Of law says 1t is sufficient to say
that under no construction of that provision that
we have ever seen, or any that We deem admis-
sible, can the restraint imposed by the State of
Louisiana upon the exercise of their trade by the
butchers of New Orleans be held to be a depriva-
ton of property within the meaning of that pro-
vision"
Chief Justice Shaw also says in Commonwealth
VS.. Alger, above cited, p. Sc SO Nor does the
prohibition of such noxiOus use of property "a
prohibition imposed because such use would be
Injurious to the public), although it may diminish
the profits of the owner, make it an appropriation
to q public use, so as to entitle the owner to
compensation. If the owner of a ware
house in a cluster of other buildings could store
quantities of gunpowder in it for himself and
others, he might be saved the great expense of
transportation. If a landlord could let his build
ings for a smallpox hospital or a slaughter-house
he might obtain an increased rent. But he is
restrained not because the public have occasion
to make the like use, or make any use of the
the property, or to take any benefit or profit to
tborocoI-os E-On, - hnt hoaaroo - Mould hoo
noxious use, contrary to the utere tho
1T dHenunl non ldeddS.
I" 1t is not an appropriation OF the property to
n public use, but the restraint of an Injurious
private use by the owner, and is therefore not
within the principle of property taken under the
right of eminent domain But as Chief Justice
Shaw says, ed, p IS - 1t is much easier to
perceive and realize the existence and sources of
this power than to mark its boundaries, or pre-
scribe limits to its exercise"
Says Cooley on Constitutional Limitations, p.
ST. -. The limit to the exercise of the police
power in these cases must be this,-the regula-
tions must have reference to the comfort. safety,
or welfare of society,""
The Act in question does purport to have refe-
renee to the comfort, safety, and welfare of
society. Its object, however injudiciously ex-
pressed, 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 State, by its Legislature, possesses the
right to make such laws as it deems to be whole
some, and the exercise of this power is subject to
no review except by the body of society itself,
except so far as these laws may be inhibited by
the Constitution itself, or be repugnant to it's
provisions. The Judiciary is not vested with the
authority to decide whether laws enact d by the
I --.l,N a., mo La 100 - a Tt
a Court is to judge of such a question at all, it
must go over the same field upon which the
Legislature has acted. 1t must consider the
occasion of the law, the existence of the evil, the
suitableness of the remedy" This would make
it 4 superior Legislature.
Wynehamer vs.. People, IL New York, ALP.
As was said by Senator Verplanck, in 20 Wen
dell, 3Sl :-'' 1t is difficult upon any general
principles to limit the omnipotence of the Sove-
reign Legislative power by judicial interposition,
except SO far as the express words of a written
Constitution give that authority sit is only
in express Constitutional provisions limiting
Legislative power, that l can find a
of Justice to declare void any Legislative enact
Blackstone Il Com, 9l) says =" But if the
will positively enact a thing to be
done which is unreasonable, l know of no power
in the ordinary forms of the Constitution that is
vested with power 20 control It and the eX-
amples usually alleged in support of this sense
Of the rule do none of them prove that when the
main object of q statute is unreasonable, the
Judges are at liberty to reject it for that were
to set the Judicial power above the Legislature,
which would be subversiVe of all government"
Our own law i, that" The Supreme Court
shall have the power to declare null and void any
such law, ordinance, or decree as may, upon
mature elaboration, appear to it contrary to the
Constitution, or opposed to the law of nations,
Or any subsisting treaty with a foreign Power"
Civil Code, Section 823.
What provision of the Constitution is this Act
repugnant to?
1t is not class legislation for all classes of
persons are prohibited from pursuing this bust
of washing for hire within the designated
limits.
The Individual transgressing this Act is not
of the right of trial by jury, for these
are triable in the Supreme Court with a
ury and if the Lower Courts had Jurisdiction,
here would still be an appeal to q jury. To say
hat there must be 4 jury to decide whether the
laundry carried on by the defendant