Territory v. Sing High , 1909 Haw. LEXIS 74 ( 1909 )

OPINION OF THE COURT BY

HARTWEDL, C.J.

(Wilder, J., Dissenting.)

The defendant was charged with carrying on a laundry business without obtaining a license therefor which is required by Sec. 1418 I, Act 96 S. L. 1907. The defendant demurring to the charge on the ground that the act denies him equal protection of the laws in contravention of the fourteenth amendment, the court reserved the question whether the demurrer should be sustained or overruled. The act provides that the treasurer may issue licenses “to maintain and operate a laundry, dyeing or cleaning or dyeing and cleaning works upon such conditions as to location and otherwise as shall be set forth in the license,” and that “such license shall not be issued except upon a certificate of the Board of Health setting forth that the location at which it is proposed to operate such laundry, dyeing or cleaning or dyeing and cleaning works is suitable for the purpose. The annual fee for a license for either a laundry, dyeing or cleaning or dyeing and cleaning works shall be Twenty-five Dollars.” The defendant claims that the act “vests an unrestrained, unguided discretion both in the Treasurer and the Board of Health, to impose such purely ‘arbitrary and burdensome conditions upon one who may desire to conduct the necessary and legitimate business of operating a laundry, which may not be applied to others similarly circumstanced, and which may absolutely prohibit him from carrying on his business, while others may be permitted to do so,” and that “this case seems to be clearly within the Rule laid down in Tai Kee’s case, 12 Haw. 164, and cases there cited.”

The act was probably not intended to authorize the treasurer to impose conditions for granting an application for a laundry license and it is only if such meaning is clear that the act ought to be declared invalid; but even if such power were given to the treasurer the remainder of the act would not therefore be invalid provided the certificate of the board of health is properly required.

In the Tai Kee case, 12 Haw. 164, it was held that a statute giving the minister of the interior power to refuse a license for a lodging house “in any location which in the opinion of the Executive Council is unsuited for the purpose, or which the Executive Council believes to be objectionable” was unconstitutional because it “delegates to tbe Executive Council arbitrary power with reference to lodging houses and contains nothing to guide or control the action of that body in this respect.” The court remarked (p. 168), “But the action of the Board of Health is controlled within reasonable limits, or must be in order to be constitutional by the provisions of the statute, while the action of the Executive Council is not controlled at all.” The act under consideration in the Tai Kee case, 11 Haw. 57 (Act 64 S. L. 1896), required the applicant for a lodging or tenement house license to secure from the board of health a certificate setting forth that an agent of the board had examined the house supposed to be used for the purpose and that it was in good sanitary condition and suitable to be used for the purpose, and stating the number of persons which by law could be lodged therein. It was held that one who had complied with the requirement was entitled to a license. The act now under consideration does not give to the board any power on the subject but requires its certificate that the location is “'suitable for the purpose.” The board has “general charge, oversight and care of the public health” (Sec. 988 E. L.) and the duty to “examine into all nuisances, sources of filth and sickness” and cause the same “to be prevented” as well as “destroyed or removed.” (Sec. 994.) This general oversight and duty cannot be reduced to precise terms, for instance, what shall or shall not be a nuisance injurious to the public health is left to the board to determine. If like power were given to the treasurer it would be so incongruous with his official duties as to suggest capricious and unjust conduct such as would not be imputable to the board of health whose official duty in respect of certifying to laundry sites would presumably be done in performance of its general duty to care for the public health. A statutory provision would not be inappropriate requiring the board of health to see that none but suitable locations for laundries be licensed, the evident intent of such statute being that ihe locations conform to sanitary conditions.

King v. Tong Lee, 4 Haw. 335, held that an act was valid which prohibited public laundry business in Honolulu except in laundries erected by the minister of the interior and under the supervision and control of the board of health. The court remarked that under the general law giving the board power “to enter upon any land, building or vessel for the purpose of examining and preventing any nuisance or source of filth” it had “all the power over this business of crashing * * * to enable it to carry out its functions as guardians of the public health;” and that laundries “are not manifestly and palpably nuisances. With proper drainage or sewerage whereby to dispose of the contaminated water and soapsuds, a laundry is far from being unwholesome or capable of affecting the public health. The want of sewerage in this town of Honolulu was undoubtedly the ground for the enactment of this law. The proper disposition of the contaminated water from either public or private laundries is a legitimate matter for the regulation of the Board of Health.” But the court held that the object of the act, “however injudiciously expressed, is plainly to repress what in the opinion of the Legislature tends to the dissemination and propagation of disease.”

While laundries may not be “manifestly and palpably nuisances” and with proper attention to sewerage and drainage they may not per se be “unwholesome or capable of affecting the public health,” they may be injurious to the health of persons residing near them for clothing not disinfected is capable of carrying germs of disease, especially in an epidemic, and the risk of their being sprayed as in Territory v. Ah Choy and Ah Tuck, 17 Haw. 331, would render their proximity unsafe in a sanitary point of view.

We see no reason why the legislature could not properly regard a laundry as liable to be harmful to the public health and not in the same category as a lodging house, nor why the suitableness of its location is not appropriately left for the board of health to determine. If at- any time the board in determining such matters should go outside of its legitimate functions in caring for the public health and act arbitrarily it could be required to grant the certificate.

F. W. Milverton, Deputy City and County Attorney (J. W. Cathcartj City and County Attorney, with him on the brief) for plaintiff. A. S. Humphreys for defendant.

The demurrer should be overruled.