Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1912-03-08
court DECISION
|. ON BANANA CASE
(ContInusd from Page u

but still more pleased that the COM
mittce's action has been demonstrated
to he effective in extcrmnating the
mosquito we feared"
Many viii Plant.
WANTED-At once. banana suckers
in any quantity. Apply householder.
This Is just about the state this
morning, following the decision handed
down yesterday afternoon by the STU
preme Court In which the regulations
being grown within $50 feet of house
were upset and the culture of the fruit
left to the householders.
Attorney General Alexander Lindsay
Jr. is satisfied, Judge Lymer of the le-
gal department Of the Board of Health
Is satisfied, Secretary l.. a. Mott
Smith II satisfied. and the Governor
has nothing to say until he has read
the decision through. Harry r. Mills
is not satisfied; he is "tickled to
death"
Il was very glad to see the decision
come down as It did" stated Judge
Lymer this morning Il did not think
the Board Of Health had the power to
pass such resolution. At the same
time. | think that the thanks OF the
community are due to the Supreme
Court for going out of its way to set
tie one matter. In the decision the
court has stated that where we find
mosquitoes breeding we can take ac-
ton. This II n very important point
as far as the Board of Health Is con-
ccrncd."
No Damage Suits.
Judge Lindsay stated that he did not
think there would be any damage suits
arising out of the decision. as the
board had acted In all good faith and
had done what 1t had according to the
law that then existed.
The Decision.
The failure of the regulations. ac-
cording to chief Justice Robertson,
seems to lie In the fact that water
IN which mosquitoes might breed does
not come under the control of the
Board T Health regulations. The
court practically sums up In the fol-
lowing:
Authority to prohibit the having OF
water IN which mosquito larvae might
breed Is not authority to prohibit the
having of II tree which Is merely ca
pablc of holding water In which such
larvae are liable to breed. IL would
be doing violence to the language used
by the Legislature to hold that the au-
thority to make regulations respecting
| water In which mosquito larvae might
breed was intended to authorize the
condemnation of all banana trees with
In certain areas Irrespective of wheth-
or they contain water in which, ac-
cording to the course of nature. mos
quitoes will breed"
The syllabus sums up as follows.
"Boords of health have no implied
or Inherent power to make regulations
having the force of law. Powers con.
/ ''i''' uB'h '''diuN VI W en-
able them to effectually perform their
functions In safeguarding the public
health should receive liberal con
struction, but a regulation Is vol,
which goes beyond the limits Of tn,
power conferred by the Legislature
Section q made by the Territsria
Board Of Health on November 9, 1911
making 1t unlawful to have, kecr
maintain or permit. within certai
areas, any banana tree. or any othe
tree or plant capable of holding wa
ter In which mosquito larvae are liable
to breed, held to he not authorized b.
Section 81 of the Revised Laws. a
amended by Act 49, of the Sessio
Laws Of 1911, providing that the Boar
of Health may make such regulation
respecting water In which mosquit
larvae breed as II shall deem neces
sary for the public health and safety.
Wider Than Scope.
Coming down to the matter of Sec
tion the court states:
II Boards or health have no nipple
or inherent power to make regulation
having the obligatory force OF Law
and every such regulation, to be vail,
must be shown to rest upon statutor
authority. In this case It is not ques
toned, and we therefore assume, thu
the statute authorizing the Board ,
Health to make regulations respectm
water In which mosquito larvae bre,
amounts to grant of power to pre-
hibit the having on ones premises ,
water in WHICH mosquito larvae bree
l The sixth section of the regulatio
however, according to the constructiC
to be given to II, contains prohib
| tions against having within II certa
area either any banana tree or al