The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1912-03-08

~ MfN uuulthb v. NUiuNUellt ~ IihW,
an, Az, we said that there is an ex.
ception to the doctrine Of constltu-
tiongl law that the power conferred
upon the legislature to make laws can
not be delegated to any other body
or authority I'm that the power to en-.
act regulations concerning the public
health may be delegated to municipal
corporations or local boards of health.
Though this latter he's been held not
to be a delegation Of legislative pow
err, but merely the providing Of an
agency for carrying out the legislative
enactment" also that, 1T has long
been the practice in this country to
invest boards of health with what
seem to be legislative powers relating
to matters affecting the public health,
and, in this connection, to authorize |
the PRONUNCIATION of rules and regula- |
| tions which have for their object the
protection of the public health and
the prevention of disease The validi-
ty of such legislation has been repeat |
eddy affirmed"
Statutory Authority Required.
But boards of health have no i'm
piled or inherent power to make regu-
lations having the obligatory force of
law, and every such regulation, to be
valid, must be shown to rest upon
statutory authority. In this case it is
not questioned, and we therefore as
sumo, that the statute authorizing the
board of health to make regulations
respecting water in which mosquito
larvae breed amounts to a grant of
power to prohibit the having on ones
premises of water in which mosquito
larvae breed. The sixth section of
the regulation, however, according to
the construction to be given to it, con-
tains a prohibition against having
within a certain area either "any ba-
mana tree or amy banana tree capa-
BILE of holding water in which mosqui-
to larvae are liable to breed" In
either case, it is clear, the regulation
: would be much wider in it's scope than
, the statute. There is no such natural
=. or necessary connection between "ba-
mana trees" and water in which mos
quito larvae breed" as would justify,
under even most liberal construc-
4 ton, holding that statutory author
! ity to make regulations respecting the
, latter would authorize a prohibition
: against the former Authority to pro.
. hibit the having of water in which
mosquito larvae breed is not author
:, ity to prohibit the having of tree
: which is merely capable of holding
water in which such larvae are liable
=. to breed 1t would be doing violence
:, to the language used by the legisla
. ture to hold that the authority to make
, regulations respecting water in which
>. MOSQUITO larvae breed was intended tc
2. authorize the condemnation of all ba
mana trees within certain areas If
= respective of whether they contain
:. water in which, according to the
= course of nature, mosquitoes VII
. breed. The charge that the defend
=. ant did have, keep and maintain ba
# mana trees" seems to have been made
:, on the theory that the regulation con
. tanned an absolute prohibition against
:, having such trees within the areas
- mentioned. Counsel for the Territory
~ in their brief, say, 1T must of course
II be admitted that all banana plants dc
=, not always contain water also that
10 1T is only when the water is retained
j., and kept more or less quiet that thu
- mosquito is enabled to lay eggs viii
any degree of certainty that the egg
will hatch larvae form, and eventuall
al an adult mosquito be formed and !
no would appear from the language o
no the regulation that the most the boar
no of health could find as a basis upo
which to rest it's prohibition agains
.oI the maintenance of banana trees wa
ho that they are capable of holding waite
no in which mosquito larvae are liable t
in breed. But counsel assert it to be
tb fact that banana trees habitually d
700 hold water in which mosquito larVa
,d- breed, and ask the court to take Jud
is cial notice of the fact. We may we
take notice of the fact that banan
an trees are capable of holding waite
l,e but it is not an accepted fact that the
es naturally and commonly hold waite
PC for the length of time and under tn
90 circumstances required to breed mo
,k- quito larvae. 1t is urged that If IL
i've court will not take judicial notice
as the fact as requested the prosecute
lie should be given an opportunity
make proof of it. But before a chars
Icb can be entered under which proc
nd may be adduced there must be val
inc regulation.
for When a Regulation Is Void
on. 1t has very properly been held tn
powers conferred upon boards