The Hawaiian gazette., 1900-04-10

$200O,OOO or more. If the damages 10
follow are also TO be considered. tne
bill will be enormously swelled. II
losses are to be settled, will that in
clude consequential damages? He
who has lost his store, goods and dwell
ling will also lose months OF business
and income ana perhaps have TO pay
rent to save ais locality. If 1t is de-
ci6ed that tho community must pay,
who shall that mean? Hawaii as a
country or the future municipality Of
Honolulu? For by the time final de
porated city. II the Government (of
today takes the position that 1t 81 not
Liable, perhaps tha individual members
of the Board OF Health will pay. Ger
tainly If they have overstepped the
lines and have destroyed property
which was not unsanitary. there Is
plenty of authority to hold them per-
sonally responsible. 1t is no answer
for them to say that they are mere
agents. The harsh and repulsive doc
;rines lnhaeted from our common law
ancestors will hold them TO the con-
sequences of an innocent error.
The Government holds that II can
not be sued for tort. nor even on con-
tract unless the unfortunate plaintiff
can fulfill all of the requirements of
the Act of 1895, which was passed to
prevent suits for damages arising out
of political differences. If, however,
that barrier could be overcome in a
suit quasi contractu, for instance, then
the Government says it is noC liable
on the law. That those who
have lost must pocket their losses and
take a new start, for no liability at
taches when the pubic takes and des-
troys private property for sanitary rea-
sons.
There are plenty CT cases to sustain
that view, but they will not long re-
main law. They are founded on wrong
principles, and most of them actually
cite, as authority, a class of cases
which have arisen out of destruction
of buildings to arrest the progress of
fires. In these cases the reasoning has
been, that as the building would have
been burned anyway the owner suffers
no loss If it is blown up instead of
burnt up, and so the pubic will not
pay. But the case of the sacrifice of
building TO arrest the progress of
plague stands an another basis. 1t is
a pain taking of private property for
the public benefit and although not
generally classed as within the rules
of eminent domain, where the taking
can not be made without compsnsa-
ton, yet it is hard TO distinguish on
reasonable and logical grounds. 1t is
brutal and of a past age TO compel
4 private loss ror public benefit,
where there is no fault ON the part of
the private owner. 1t is not likely, If
indeed 1t is the law today, that 1t will
long remain so. There is abundance
of good authority to show that the
change Is soon coming, II 1t is not now
at hand, when all OF the people will
suffer, and not a few individual; only,
for the common good
Who will say that the many poor
people who have not only died OF the
plague, but whose property has been
destroyed and their families made pen
niless, were at fault and so deserved
their terrible misfortune. 1t is quite
as logical and correct TO say that the
introduced the plague, |
because 1t owns the wharves and har-
Dor and could have refused to allow |
its introduction!
have said nothing of policy; 1t |
speaks for itself. The matter in the
hands OF the Court OF Claims is of the
greatest importance and should re-
ceive grave consideration from us all. |
Refusing our appropriation looks like
haste, not like careful judgment.
w. r. CASTLE.