Harris v. Cooper

• Decision Date: 05 April 1902
• Citation: 14 Haw. 145
• Parties: WILLIAM W. HARRIS v. HENRY E. COOPER, SECRETARY OF THE TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

14 Haw. 145

WILLIAM W. HARRIS

v.HENRY E. COOPER, SECRETARY OF THE TERRITORY OF HAWAII.

Supreme Court of the Territory of Hawai‘i.

SUBMITTED APRIL 4, 1902.

DECIDED APRIL 5, 1902.

ORIGINAL.

Syllabus by the Court

Under the provisions of the election law that candidates shall be nominated by writing signed by not less than twenty-five qualified electors of the district and deposited together with twenty-five dollars with the Secretary of the Territory not less than a prescribed time before the election, and that the ballots shall contain the names of all candidates so nominated and no other name, the Secretary cannot lawfully inquire into and pass upon the qualifications of a candidate or decline to place his name upon the ballots if he is duly nominated, even though he, the Secretary, may believe him to be disqualified, nor can the courts compel him to do so,—although the Secretary may inquire into and pass upon the question of due nomination and omit from the ballots the name of a candidate if the law prescribing the requirements of a due nomination has not been complied with and may be compelled by the courts to perform his duty in that respect.

Robertson & Wilder and T. McCants Stewart for the plaintiff.

The Secretary in person.

Kinney, Ballou & McClanahan for the nominators of August Dreier.

FREAR, C.J., GALBRAITH AND PERRY, JJ.

OPINION OF THE COURT BY FREAR, C.J.

This is a submission on agreed facts under Civil Laws, Section 1255, as amended by the Laws of 1898, Act. 18. The practical question for our determination is whether under the election law the Secretary of the Territory, who has charge of the printing of ballots, should omit therefrom the name of a candidate for representative who though duly nominated is not eligible. More broadly stated, the question is whether the Secretary can go behind the question of due nomination and inquire into and pass upon the question of the qualifications of the candidate.

The facts agreed on are in substance as follows: A special election was called for April 9, 1902, to fill a vacancy caused by the death of a member of the house of representatives. The plaintiff was duly nominated and is qualified to be a representative. One August Dreier also was duly nominated but is not qualified to be elected. On April 1, 1902, the plaintiff filed a protest with the Secretary against placing Mr. Dreier's name upon the ballot. On the next day the Secretary overruled the protest and notified the plaintiff of his, the Secretary's, determination to place Mr. Dreier's name upon the ballots. The Secretary is now causing the ballots to be prepared and printed with Mr. Dreier's as well as the plaintiff's name upon them. The Secretary's sole reason for overruling the plaintiff's protest and determining to place Mr. Dreier's name on the ballots is his belief that he is without authority to inquire into and pass upon the qualifications of a duly nominated candidate.

The ground stated for Mr. Dreier's disqualification is his failure to meet the requirement of Section 40 of the Organic Act, “that in order to be eligible to be a member of the house of representatives a person shall, at the time of election,” besides possessing other enumerated qualifications, “be qualified to vote for representatives in the district from which he is elected.” The reason why he is not qualified to vote for representatives in that district is not stated, though we understand it to be that he is not a registered voter in that district as required, among other qualifications, by Section 60 of the same Act, “in order to be qualified to vote for representatives.”

The fact being undisputed for the purposes of this case that Mr. Dreier is not eligible to be a representative, the sole question is whether the Secretary should omit his name from the official ballot, or rather whether this court should compel him to do so. The statutory provisions involved are Sections 56 and 89 of the election rules, Civil Laws, pp. 804, 815, as amended by Section 64 of the Organic Act. These read as follows:

Ҥ 56. No person shall be permitted to stand as a candidate for election to the legislature unless he shall be nominated and so requested in writing, signed by not less than twenty-five duly qualified electors of the District in which an election is ordered, and in which he is requested to be a candidate. Such nomination shall, except as hereinafter provided, be deposited with the Secretary of the Territory not less than thirty days before the day of a general election or twenty days prior to a special election, except on the Island of Oahu, where such nomination shall be deposited not less than ten days before the day of any election.

“Each nomination shall be accompanied by a deposit of twenty-five dollars, on account of the expenses attending the election, which amount shall be paid into the Treasury as a Government realization.

“Upon receipt at the office of the Secretary of the Territory of a nomination of a candidate, the day, hour, and minute when it was received shall be endorsed thereon.

“Provided, however, that in case of the withdrawal or death of a candidate, a new nomination or nominations to replace the name of the person who has died or withdrawn, may be made, irrespective of such limit of time, with the Inspectors of Election of the Districts in which death or withdrawal has taken place, and the fee herein required deposited with them.

“In such case a voter, while voting, may write the name of any such new candidate upon the ballot, and vote for it as herein provided.”

Ҥ 89. The ballots used in any Representative election district for the election of Representatives, shall be of uniform size, weight, shape, thickness, and of the same sizing color.

“Except as provided in Section 56 hereof, the ballots for each Representative election district shall contain the names of all candidates for Representatives for such district who have been duly nominated in manner herein provided, and shall contain no other name.”

The last part of Section 89 is clear. On the one hand the ballot shall contain the names of all candidates who have been duly nominated in manner herein provided, that is, duly nominated under Section 56. On the other hand it shall not contain the name of any person not duly nominated. In other words the Secretary not only may but should decline to place upon the ballots the name of any candidate if his nomination is not signed by at least twenty-five persons, or if among the signers there are not at least twenty-five qualified electors of the district, or if it is not filed with the Secretary within the prescribed time, or if it is not accompanied by a deposit of twenty-five dollars, etc. The first part of Section 56 is to the same effect, that “no person shall be permitted to stand as a candidate for election to the legislature unless,” etc. The duty of the Secretary in these respects is clearly prescribed by the statute. This duty also is ministerial and the courts may enforce its performance. But the Secretary is not authorized to omit the name of a candidate who has been duly nominated, much less...