The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1912-01-16
.REAS0NABl[H[SS
IS SUTT0N'S PLEA
Brief Filed In Banana
Case Gets Down to Common
Sense Basis.

That the argument in tho Lucas IA
mana case will be without legal tech.
nicalities when Il comes up in tho %.
preme court is the promise shown in
tho brief fled for the government by
Deputy Attorney General Sutton yes
torday. He takes the reasonable
ness" of the law into consideration
and calls attention to ita provisions
along that line.
He holds that water in containers
artificial or otherwies is a potential
breeding place for mosquitoes, and that
to comply with the provisions of law
In being a menace TO public health the
wrigglers do not have to be present in
the water. As long as the water is
there the eggs are liable to 10 laid and
the wrigglers Matched out.
Mr.. Sutton gets at the meaning Of
the legislature in passing the laws
granting power to the board of health,
shorn Of technicalities.
Taking section 991 of the revised
laws he says:
"The precise meaning Of the phrase
water in which mosquito larvae breed
is of supreme Importance in determin-
ing whether the regulation in question
is within the scope of the authority in
that regard granted by the legislature.
From the phrase itself, it is evident
that the legislature recognized as a
fact that mosquitoes breed in water,
and this fact the court will no doubt
take judicial notice Of It is also plain,
and the legislature must be presumed
to have known the fact, that water,
no matter in what kind of container
1t may be found, is at most only a
potential breeding place for mosquitoes.
Before the water can become a breed
ing place the female must lay eggs in
or upon the water. From these facts
we submit that the Legislature intended
by this phrase not water in which
mosquitoes are actually breeding but
water in which mosquitoes breed or
are liable to breed The narrower con.
struction of this phrase would lead to
absurd results and would be, we sub
nit, inconsistent with the general pur-
pose of the grant of power to the board
of general charge, oversight and care
of the health and lives of the people
of the Territory which contemplates
preventive measures-re regulations in
tended to obviate possible dangers be-
fore they become imminent If this
were not SO, it would be unnecessary
to have granted the power to act for
the abatement Of those things which
are actual present nuisances.
obviously the banana tree or plant
is by virtue Of It's structure capable
Of holding water in the cup formation
where the leaf sheaths are joined to
the main stem of the plant. OF it's
structure and characteristics the court
may certainly take judicial cognizance.
Once the fact is admitted that the ba-
mana plant is capable of holding water,
it is as much container of water and
possible breeding place Of mosquitoes
as the tin can, sagging gutter or the
other containers referred to in the reg
ulation. 1t must of course be admitted
that all banana plants do not always
contain water but neither do all tin
cans or other containers always have
water in them. Before either tin can,
the gutter or the banana can become
a breeding place for mosquitoes, they
must have water, and this necessity is
cared for by the abundant rainfall
which this locality has.
Much of the foregoing discussion
relates really TO the reasonableness of
the regulation but it is almost impossi-
BILE to consider this sixth paragraph of
the regulation from the standpoint of
express legislative authority to pass it
without at the same time considering
whether it is reasonable or whether
the board of health should have given
the individual as wide choice of
| Co. H. -
quito breeding places as it did for the
others. We respectfully submit that q
consideration of the legislative author.
ity and the entire regulation will show
that the sixth section of regulation is
clearly within the scope of the express
legislative authority and that the de.
struction of the banana is the only
practical and efficient method of doing
away with the mosquito breeding
places in that plant. +"
AS to the regulation being a pre-
cautionary measure, he holds:
Although the present regulation
was passed by the board of health with
the intent to meet an emergency which
O#sa**ask#a$&*s 4 ~ .
nance making it an offense to defacc
property.
On motion of Mr.. McInerny the Boy
Scout movement was endorsed as an
aid to good promotion work.
Canadian Prospects.
The committee received the announce
ment that a large number Of the tour
lists visiting Honolulu this winter were
from the Northwest, from Canada and
from the Rocky Mountain region, and
10 was proposed TO continue heavy ad
yertiHing In those districts. Mr.. Brodie
had stated 10 the secretary that Their,
were 70 be a good many expOsitiOns OF
land shows through western Canada
this spring, and eFged the committee
20 advertise Mr., Wood suggested d
large kiosk set with scenes OF Hawaii
20 be carried around 10 each show. II,
suggested, a. an alternative, that
iiitehcoek's painting Of Hawaii DO sent
70 caneda Ia bond, aud heavily in
suFad
Tho secretary L alfo IFeparng 8 cir
euler letter 10 ho cont M M fnpef
i iufaudauia ~ nultIfe instrneffar, IA