The Royal Origins Of "Police Power" Hawaii-Style: The King v. Tong Lee (1880)

by Robert Thomas, Inverse Condemnation, March 25, 2020

Here's one for our Hawaii folks, in case you all are curious about the origins of the analytical framework which courts use to review the legality of measures taken by the authorities in the name of "public health" that have an impact on the uses of private property.  

As far as we can tell, The King v Tong Lee, 4 Haw. 335 (Kingdom 1880) (in banco), is the first Hawaii case which uses the term "police power," and which upheld the broad – and nearly unreviewable – authority of the government to limit the uses of property, as long as there’s a colorable argument that the property's use is contrary to the public health.

There, the Kingdom's legislature (one of the joys of practicing law in Hawaii is that you get to deal with cases involving the Kingdom; things like Privy Council, the royal prerogative, and the like) prohibited the laundry business within a small radius of Nuuanu and King Streets in downtown Honolulu, because "the increasing number of laundries and wash-houses within the limits of the City of Honolulu tends to the propagation and dissemination of disease."

We think we can safely conclude that this prohibition was – in whole or at least in large part – more of an anti-Chinese than a true health measure because (1) the statute only barred laundering for money (it didn’t limit large-scale private washing or the dumping of wastewater, which you would think it would do if the activity itself was truly harmful to the public's health), and (2) did not prohibit the laundry business anywhere else on Oahu, or in the kingdom for that matter.

Then, like now, the part of town that the corner of Nuuanu and King Street conjures up in your mind is Chinatown. (We all understand the ethnic and racial geography of our town: there’s a historical reason, for example, why there’s a First Hawaiian Bank on that corner (for Chinese customers), when the main bank was just a couple of blocks down on Bishop Street (Big 5 customers.)

Tong Lee challenged the statute as a violation of the due process clause of the Hawaii Constitution (yes, the Kingdom had a written constitution). He asserted he had the right to use his property (his laundry business and his land), which this statute unreasonably deprived him of without a good reason: if public health was the real reason for this law, it was both too narrow (it didn't prohibit all commercial laundries), and was not tailored (there was no showing that Tong Lee's laundry was unsanitary).

The Supreme Court easily disposed of this argument:

The authority to enact a law of this character is derived from the inherent power which every sovereign State possesses to protect the life, property and health of its citizens. Says Judge Shaw, in Commonwealth vs. Alger, 7 Cushing, 84: “We think it is a well settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations on their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient.”

“This is very different from the right of eminent domain; the right of a Government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, or the subjects of the same.”

Tong Lee, 4 Haw. at 339-40.

It doesn't take much to see how this argument can be stretched beyond its breaking point, because nearly anything these days can be spun as a public health crisis (see, e.g., a state senator's recent proposal that physicians should write prescriptions for housing, to address the public health crisis of homelessness). But even though challenges might come at the margins, on the whole, the courts still defer to the legislative judgment about just what constitutes a health crisis, and what uses of property might be injurious to the public health. And it all started here in Hawaii law:

Chief Justice Shaw also says in Commonwealth vs. Alger, above cited, p. 86: “Nor does the prohibition of such noxious use of property (a prohibition imposed because such use would be injurious to the public), although it may diminish the profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. *** If the owner of a warehouse in a cluster of other buildings could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his buildings for a small-pox hospital or a slaughter-house, he might obtain an increased rent. But he is restrained, not because the public have occasion to make the like use or make any use of the property, or to take any benefit or profit to themselves from it, but because it would be a noxious use, contrary to the maxim sic utere tuo ut alienum non laedas.

Id. at 341.

There’s a lot about this case that has not necessarily survived the 140 years since it was issued. The racial overtones, for example. But the police power principle is still a very strong thread, and the court’s holding remains valid today: “[t]he State, by its Legislature, possesses the right to make such laws as it deems to be wholesome, and the exercise of this power is subject to no review except by the body of society itself, except so far as these laws may be inhibited by the Constitution itself, or be repugnant to its provisions.” Id. at 342.

In other words, voting – not suing – is the usual remedy.

PDF: The King v Tong Lee, 4 Haw. 335 (Kingdom 1880) (in banco)