The Hawaiian gazette., 1884-07-02
3awaiiall Gazrtte,
wEpNRspAY, JuLY :. -.


4 women and children confined Al haiaWAc ard
Kakaako fer having The leProsy, and As the
tact q "a person having said disease IS not a
crime uuder the laws or constitution; there
| fore be il
R-sair-i, That this Honorable Legislative
Assembly request the Judges Of the Supreine
/ Cpufs to state their legal opinion on the fol-
lowing questions;
lsi Is il erirns to he afiieie3 with leprosy
that these people are eoufned At Halavao and
KakaAkos
2ad. Is not such eonaseHsus eOaiFaIy to the
C0assitutioas
sra. Is pcs the existing Law relating to lep-
rosy contrary to the COnsHiauon.
| The krsi question sabenilisd Is whether lep-
rosy. the cause for which these people Are de-
taiued al Nolekai. is crime. The preamble
to The resolution eoneedes that leprosy is net =
crime, and certainly j. is not. Il disease.
There nay Re instances where person having
the disease Of leprosy, willfully eoutamlnates
otbers or transmits il 10 bis offspring or, being
free frou it. recklessly exposes himself to in
freticn, ard these may be called wroog or
criminal acts, bet unleSs these acts are pro-
bihiied BY Law they are not Csenses or pun
ishable as such BY law.
The seocod ard thira questions may be tax
en- and answered together, fer If the law au-
!
lalicu q the Cous,itutior, then the restraint
| is itself illegal
| The fact that since the enactment Of the law
segresatiBg the lepers, some uineteen years
Az, It's ccnstituiiouaiity has not becn tested
~ an application for a wit Of Habess Cor
pcs, or Otherwise, uiay lie taken as general
/ acqrieseence BY the cuumuuiiy II the wisdom
., the law. II such = course had been taken,
the Supreuie Court would then Save had TIE
| advantage Of argunent from learned counsel
o. both sides q The question ard the decision
thea made Wczld have been much more sat-
isfaetory.
his presumed BY Us tia, the provisions Of
the Consultation which the mover Of the reso-
lutiou eonceives TO be violated BY the LepTVsy
Act are Articles s, ., n, y, and IA. They
read as follows;
article s. No persou shall be subject to
Punishment for any oSsuse, except On due and
legal c0nvicticn thereof, in a court having Iur-
isdiction Of the case.
Article 9. Nc person shall be eonpellcd In
any criminal case, &c be witness against him
self. nor be deprived Of life, liberty or prvP-
erty without due process OF law.
@Article II. Involuntary servitade, except
for crime, is forever prohibited in this King
den: wheBeysr slave shall enter Hawaiian
Territory be shall be free.
Article Il. Every person has the right to be
secure from all unreasonable searches ard
seizures Of bis person, his hcuse, his papers
and effects: and PC warrants shall issue, bat
on probable Cause, supported b. oath or Affirm
atiSn, AID describing the place to be searched,
aud the persons or things TO be seized.
Article IA Each member Of society has a
right to be protected BY It, in the enjoyment
CT his life, liberty or property, according to
law"
The preamble Of the Act to prevent the
spread Of lsprOsy, is as follows
~wHEKEAs, the disease Of leprusy has spread
&c considerable extent among the people,
ard the spread thereof has excited well
grounded alarms; and rbsrslS further scu,e
doabts have been expressed regarding the
powers Of the Board Of Health in the prem
ises, notwithstanding the 503nd Section Of
the Civil Code, AID lctsreas in the opinion
Of this Assembly, the s93ni Section Is prop
eriy applicable 70 the treatment Of persons
afflicted with the leprgsy; yet for the greater
certainty and for the more sure protection
Of the people, be il enacted" etc.
The Section 5a21d Of the Civil Code referred
te, is as follows
ssWhen any person shall be infected with
the smallpox, or other sickness dangerous tJ
the public health, the Board Of Health or is
| agent, nav for the safety Of the Inhabitants
remove such sick or infected person to sep
arate house, and provide for him with nurses
and other neeessaries, which shall be AZ the
charge Ct the person himself his parents O.
master, # able, otherwise at the charge Of the
government.
Inacase decided in 1879 BY the Supreme
Court Of the United States, treported in Il
Wallace Js) Judge Field says Of the law tbs
Co4rt were then considering, which concerned
tie slaughter hcnses Of New Orleans, that ils
enactment vas considered as the legitimate
exercise Of What IS termed the Police poorer q
he Sdts. That power undoubtedly extends
70 all regulations affecting the health, good
order, morals, peace and safety and Is e1sr-
cised on a great variety Of subjects and n
almost uumberisSs ways All sorts CT rsstric-
dcus and burdens are imposed under it. and
when these are not in eunfiet With any con-
stitutioual pruvisions or fundamental princi-
pies, they cannot be successfully assailsd in !
JUDICIAL tribunal In the sane case, JEdsy
Miller saws. This power Is and must be fruul
its very nature incapable Of any very e1lct
tsfnificu Or limitation Jpeu it depends the
social ouier, he llfs l7s,f h-uth y he cfi-lis
the comfort Of an existence in a thickly pop
ulated community. the enjoyment Of private
aud social life and the beneficial use ct pip
The Sgprsme Court Of Vermont, in p Yer.
Reports lGg, SAYS. The police power Of the
STATE extends 70 the protection Of the lives,
limbs, health, comfort and qgist OF all persons
aad the protection Of all property within the
St1ts, and persons and property are subjected
10 al kinds Of restraints and burdens 10 order
to secure the general comfort, health and pros
perity ct the STATE. OF the perfect right CT
4 = 4 -
was, or upon acknowledged general principles,
ever can be made 50 far As uItgral persons ars
concerned"
Ira kent's Commentaries, $40, the agthor
says. HCuvhol.sous trades, slaughter houses,
operations Offensive 10 the senses, the deposit
| Of powder, the application Of steam power C
pTupsl carS, the building with cUmbgstibie
materials and the burial Of the dead, may all
be iaterticted By law, IN the midst q dense
masses and po1glatieu, On tie general and
rational principle that every person ought to
50 use bis private property as not &c inlzre
bis nsighbors, and that private interests must
be made sahssrvieut to the general interests Of
the community"
Judge shaw, II ! case reported IN : Cush-
ing. IS, says The police power Il power
vested IN the Lsgislatzrs By the Constitution,
70 make, ordaia and establish ali manner Of
I wuctesGne and reasou1Die avs slituies and
I ordinances, either with penalties or withcut,
not rspggnaat 70 the constitution, as they shall
| Judge fer the good AID welfare Of he eomucn-
wealth. and Of the subjects Of the sane"
/ Tie ike authority - conferred % the Leg
isiatHre b. The HzEaiiln Constitution in Art
icie -. The Legislature has full authority
frum time to tlm= to MAKE all manner Of whole
some laws not repu-uaHt to the PruTisiaOs Of
I the Constellation p
Il has been truly sand thai self-Preservaiion
is the 6rst Law CT nature This Il eqgally true
CT state. @Salus PoPuli suprsna est lex
The state has the astloritT inherent Ia itself
to enact laws to secnTt the health, welfare and
| safety Of the individual, and We have seen
above thaE this authority - expressly euu-
/ ferrsd By the Cnusttafinn-
In DWarris On Statutes the police power q
the state Is called '-ths law OF srg7lliaJ ssczs-
| sstg." W state cuHld exist rithsut Il Ii i;
Gid not exist IN tins kiaE5am cur population
! rUali be liable q be svsFs away b any aai
every Contagious disease that might come 70
l cur shores and nc measures Of sGaFaztlae &C
r-sCriErion cr1l& be taken against II
| The Legislature, By The Act Ct SIS, n the
exercise Ct is constitutional authority % make
Wholesome laws, we're Of the CPinioH that 10
/ order 20 secure the healrh AID welfare CT he