The Hawaiian gazette., 1905-01-06
MRS. KA|PU
RE:MANDED
Judge Cole Welcomes
Test Of Matter
IN, By Appeal.

Yesterday morning on behalf OF the
petition the Board of Health habeas
corpus case was argued and decided In
the Federal court. Judge Dole dis
missed the petition and remanded Ills
subject, Mrs. Kaipu, to the custody OIL
the Board, in an oral decision wnicn
il reproduced below from Stenographer
Thielen's transcript.
1t Is stated that an appeal from the
decision will be carried to the Ninth
Circuit Court of Appeals. San Francis
CO. which. as will be seen, accords
with Judge Dole's own wishes.
Mr.. Ashford, at the outset of his
closing argument, admitted that me
evidence left no doubt that the subject
was infected with the bacilli OF lepro-
sy but he contended that she did not
come under the statutory class of per-
sons capable of spreading the disease.
There were too many Ifs" in that re-
gard, set forth by the experts.
Attorney General Andrews, replying,
did not occupy a minute but submit
ted the case on the evidence.
Mr. Ashford, after the rendering of
the decision, noted exceptions thereto
and hoped, as he had mentioned to-
the Attorney General, that Mrs. Kali
pu would be kept at the Kalihi sta
ton pending an appeal providing one
should be perfected. He thanked the
court for it's consideration shown him
Throughout the trial and in it's deci-
sion.
Judge Dole, on the noting of excep-
lions, expressed a hope that Mr.. Ash
l. Id 81 1h.al
case up, as he would like to have the
matter thoroughly tested.
DECISION
A writ of habeas corpus was prayed
for by the petitioner for the liberation
of her mother, who was held in custody
by the Board of Health because she
was deemed by them to be capable
of spreading the disease of leprosy.
The case has narrowed down to the
issue of the capability of Mikala Kali
pu of spreading the disease of lepro-
sy; the issue of the existence of the
disease, understand, having been dis
posed of in favor of it's presence in her
person.
The court feels personally much
sympathy for the petitioner and her
mother and a great deal of admiration
for the filial affection and devotion of
the petitioner to her mother and her
perseverance and effort to procure her
liberty.
1 think the statute Is significant in
recognizing the difficulty of having
matter of this kind scientifically
demonstrated, and apparently, in view
of this difficulty, it has used the word
deemed" The statute does not say
that a person who is capable of
spreading the disease shall be placed
in custody, but one who shall be
deemed capable of it, which 1 believe
refers to an expression of opinion by
the medical examiners or medical ex-
perts in such cases. If 1t had been in
tended to be a question of scientific
demonstration, 1 think the, language
would have been different and would
not have made it a matter of opinion
as it appears to have done. Five physi-
clans have examined this case in
meteorological way, and several other
physicians have testified in regard to
the capability Of this person of spread
ing the disease in view of the evidence
of those who made the examinations;
and of all these physicians, not only
those who made the examinations, but
the others also, deem the person in
question capable of spreading the dis
ease of leprosy. l believe that the
court is bound by that. The court has
to depend on those experts for inform
alton in this matter and has nothing
to go on against such information. The
argument of counsel that the capabil-
ity of spreading this disease, when
present depends upon certain condi-
tions of the skin or the presence of
the disease in the nasal cavity or 9TH
er parts of the mucous membrane, does
not entirely cover the case, because,
outside of all those conditions, there
is in the minds of the physicians an
element of danger where the disease
is present, that in some way, not fully
understood by the profession, the dis
ease is communicable. This appears
from the evidence to be the consensus
of medical opinion on the subject and
1 do not feel that the court has any
thing in this case to justify it In ignor-
ing this medical evidence, which is
unanimous.
great value. / have no doubt that 1t
viii influence the Board of Health in
the direction of great care. 1 believe
that the Board of Health officers have
been very conscientious and vers' faith
full in their attention to cases of this
character, but. as petitioners counsel
says, these cases should be conducted
with the utmost care and disregard
of Inconvenience and expense, in or
der that no one should be deprived of
liberty and all that that means unless
1t is satisfactorily determined that he
is capable of spreading this disease.
The disease is so terrible that the pre-
cautions against its being spread have
been made strict. but they are sup
ported by the public sentiment. of
these islands.
should like to compliment the coun-
sci for the petitioner upon his able and
reasonable management of this case,
which has been conducted from first
to last on its merits. The court has
allowed liberty,-more liberty to the
counsel for the petitioner than he was