The Hawaiian gazette., 1884-07-02
9aluaiialt 6azette.
WEDNESDAY,, july ?, 1854.
Supreme Court of the Hawaiian Islands

Assembly:
SIR:-The Justices of the Supreme Court
have received from the Legislative Assembly
a resolution upon which their opinion was re-
quested and now transmit through you their
answer to the same. The resolution is as fol-
lows:
"WHEREAs, there is large number Of men,
women and children confined at Kalawao and
Kakaako for having the leprosy, and as the
fact ola person having said disease is not
crime under the laws or constitution; there
fore be it
Resolred, That this Honorable Legislative
Assembly request the Judges of the Supreme
Court to state their legal opinion on the fol-
lowing questions:
LIST. Is it crime to be afflicted with leprosy
that these people are confined at Kalawao and
| Kakaako?
End Is not such confinement contrary to the
| Constitution?
3rd. Is not the existing law relating to lep-
rosy contrary to the Constitution"
The first question submitted is whether lep-
rosy, the cause for which these people are de-
tanned at Molokai, is a crime. The preamble
to the resolution comedies that leprosy is not a
crime, and certainly it is not. 1t is disease
There may be instances where person having
the disease of leprosy, willfully contaminates
others or transmits it to his offspring or, being
free from it. recklessly exposes himself to in
lection, and these may be called wrong or
criminal acts, but unless these acts are pro-
hibited by law they are not offenses or pun
ishable as such by law.
The second and third questions may be TAX
en- and answered together; for if the law au-
thoriZing the restraint of the lepers be in VIC
lation of the Constitution, then the restraint
is itself illegal.
The fact that since the enactment of the law
segregating the lepers, some nineteen years
ago, its constitutionality has not been tested
by an application for a writ of Habeas Cor
pus, or otherwise, may be taken as general
acquiescence by the community in the wisdom
OF the law. If such a course had been taken,
the Supreme Court would then have had the
advantage of argument from learned counsel
on both sides of the question and the decision
then made would have been much more sat
isfactory.
1t is presumed by us that the provisions Of
the Constitution which the mover of the reso-
luton conoeives to be violated by the Leprosy
Act are Articles 6, 0, IL, IL, and IA. They
read as follows:
"Article 6. No person shall be subject to
punishment for any offense, except on due and
legal conviction thereof, in court having iur-
isdiction of the case.
"Article o. No person shall be compelled in
any criminal case, to be witness against him.
self; nor be deprived of life, liberty or prop
erty without due process OF law.
"Article IL. Involuntary seryitude, except
for crime, is forever prohibited in this King
dom; whenever a slave shall enter Hawaiian
Territory he shall be free.
Article IL. Every person has the right to be
secure from all unreasonable searches and
seizures Of his person, his house, his papers
and effects; and no warrants shall issue, but
on probable cause, supported By oath or affirm
alton, and describing the place to be searched
and the persons or things to be seized.
"Article II. Each member of society has d
right to be protected by it, in the enjoyment
of his life, liberty or property, according tc
law"
The preamble of the Act to prevent the
spread of leprosy, is as follows:
"WHEREAs, tue disease of leprosy has spread
to a considerable extent among the people
and the spread thereof has excited well
grounded alarms; and lchereaS further some
doubts have been expressed regarding The
| powers of the Board of Health in the prem.
Uses, notwithstanding the 3O2nd Section o.
the Civil Code; and ICheredS in the opinion
Of this Assembly, the 3O2nd Section is prop
erly applicable 10 the treatment of persons
afflicted with the leprosy; yet for the greater
certainty and for the more sure protection
of the people, be it enacted;" etc.
The Section 302nd of the Civil Code referred
TO, is as follows:
"When any person shall be infected will
the smallpox, or other sickness dangerous t.
the public health, the Board of Health or it,
agent, may for the safety of the inhabitants
remove such sick or infected person to a sep.
arate house, and provide for him with nurse.
and other necessaries, which shall be at thu
charge of the person himself, his parents Of
master, if able, otherwise at the charge Of tn,
government"
In case decided in 1872 by the Suprem,
Court of the United States, reported in II
Wallace 36) Judge Field says of the law thu
Court were then considering, which concerned
the slaughter honses of New Orleans, that it
enactment was considered as the Legitimate
exercise of what is termed the Police polcer O
he STATE "That power undoubtedly extendt
to all regulations affecting the health, good
order, morals, peace and safety and is exer-
cised on a great variety of subjects and il
almost numberless ways. All sorts of restric.
tons and burdens are imposed under it; anC
when these are not in conflict with any con.
pies, they cannot be successfully assailed in {
Judicial tribunal" In the same case, Judge
Miller says: "This power is and must be from
its very nature incapable of any very exac
definition or Limitation. Upon it depends til,
social order, ble life and health efMe citizens
the comfort of an existence in thickly pop.
ulated community, the enjoyment of private
aud social life and the beneficial use of prep.
erty."
The Supreme Court of Vermont, in p Yer
Reports l49, says: 'The police power of the
State extends to the protection of the lives
limbs, health, comfort and quiet of all persons
and the protection of all property within the
State, and persons and property are subjected
to all kinds of restraints and burdens in order
to secure the general comfort, health and pros
perity of the State. OF tue perfect right Of
the Legislature to do this, no question evel
was, or upon acknowledged general principles
ever can be made so far as natural persons are
concerned"
lr2 Kent's Commentaries, $40, the author
says: "Unwholesome trades, slaughter houses
operations offensive TO the senses, the deposit
of powder, the application of steam power tc
propel cars, the building with combustiblC
materials and the burial of the dead, may all
be interdicted by law, in the midst of dense
1 ihoooSo auh pOpuidliOu, VII tue HGUeEdl auO
rational principle that every person ought tc
so use his private property as not to injure
his neighbors, and that private interests mus
be made subservient to the general interests Of
the community"
Judge Shaw, in case reported in CuslI-
ing, S., says: "Tbe police power is a power
vested in the Legislature by the Constitution
to make, ordain and establish all manner oil
wholesome and reasonable laws, statutes and
ordinances, either with penalties or without
not repugnant to the constitution, as they shall
judge for the good and welfare of the common
wealth, and of the subjects of the same"
The like authority is conferred on the Leg
islature by the Hawaiian Constitution in Art
icie IS. "The Legislature has full authority
from time to time to MAKE all manner of whole
some laws not repugnant to the provisions Of
the Constitution"
1t has been truly said that self-preservalior
is the first law Of nature. This is equally true
Of state. "Salus populi suprema est lex
The state has the authority inherent in itself
to enact laws to secure the health, welfare and
safety of the individual, and we have seer
above that this authority is expressly con-
ferred by the Constitution.
In Dwarris on Statutes the police power of
the state is called "the law of oreyTulin0 aeces.
Sity." No state could exist without it. If
did not exist in this Kingdom our population
would be liable to be swept away by any and
every contagious disease that might come ia
Il -- Il.