Jensen v. Turner, 3016.
| Citation | 40 Haw. 604 |
| Decision Date | 29 October 1954 |
| Docket Number | NO. 3016.,3016. |
| Parties | ALFRED JENSEN, A DULY REGISTERED VOTER OF THE CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII v. FARRANT L. TURNER, SECRETARY OF THE TERRITORY OF HAWAII, AND LEON K. STERLING, SR., CLERK OF THE CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII; AND GILBERT OGATA, JITSUO ONO AND MASANOBU NAKASONE, THE DULY APPOINTED INSPECTORS OF ELECTIONS OF THE 25TH PRECINCT, 5TH REPRESENTATIVE DISTRICT. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
APPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT, HON. W. Z. FAIRBANKS, JUDGE.
Syllabus by the Court
The Hawaiian election law, providing that only those candidates may be voted for in a final election who have been duly nominated by a political party or a nonpartisan candidate who has received at least twenty per centum of the votes of registered voters cast at the primary, is not unconstitutional or void as an unreasonable regulation of a voter's or candidate's rights.
Act 318, Session Laws of Hawaii 1949, purports to cover two subjects: (1) voting by machines and the purchase of such machines; and (2) authority to write in ballots; only the first of these subjects is mentioned in the title, namely, the authorization for the use and the purchase of voting machines. The portion relative to a write–in or irregular ballot is void as it violates section 45 of the Organic Act “That each law shall embrace but one subject, which shall be expressed in its title.”
Where a portion of a statute is not covered by the title and is void, the part shown in the title may stand if it is separable from and complete in itself without the other provisions which are not shown in the title.
A thing may be within the letter of the statute and yet not within the statute because not within the intention of the legislators.
Where a voter writes in a name upon an official ballot, the ballot and all its contents must be completely rejected as a violation of paragraph 5 of section 237 of the Revised Laws of Hawaii 1945.A. K. Trask (also on the briefs) for plaintiff–appellant.
C. R. Ashford, Deputy Attorney General ( E. N. Sylva, Attorney General, with him on the briefs), for defendants–appellees.
On October 29, 1954, this court filed a per curiam opinion sustaining the declaratory judgment of the circuit judge of the first judicial circuit of the Territory of Hawaii.
The questions before the court below were, in substance, did Act 318, Session Laws of Hawaii 1949, amend the existing election laws of the Territory so as to give qualified voters the privilege to vote for others than those duly nominated and listed on the official ballot by writing a name or names on such ballot or casting a so–called “irregular ballot” as described in such Act; and, if not, whether upon so doing must the entire ballot be rejected or only the vote for the “write–in” candidate?
The circuit judge found that a voter may not cast an “irregular” or “write–in ballot” and, if he does, not only the same may not be counted but the ballot and all the contents must be rejected and this applies in all precincts whether voting machines are used or not; and, further, that the provision of Act 318, Session Laws of Hawaii 1949, which provides for such “irregular” or “write–in ballot” is void but the remainder of the Act which provides for the use of voting machines is severable and valid.
The election laws in effect prior to the passing of Act 318, Session Laws of Hawaii 1949, show conclusively that under the provisions of the statute no write–in ballot was permissible except in case of a special election which is covered by section 174 where a candidate may have died or withdrawn.
Pertinent parts of the election laws prior to the 1949 amendment are sections 204–212, Revised Laws of Hawaii 1945, which provide that all elections shall be by ballot and describe the size, content, etc., of the ballot.
Section 262 provides that all elective officers shall be nominated in accordance with chapter 7.
Section 263 provides: “No person shall be a candidate for any election unless he shall have been nominated in the primary next prior thereto.” (Emphasis added.)
Section 265 provides that the name of no candidate shall be printed on any official ballot unless a nomination paper shall have been filed in his behalf as provided within the chapter.
Section 267 provides for the nomination of nonpartisan candidates and section 276 provides that any nonpartisan candidate receiving at least twenty per centum of the votes of registered voters cast at such primary shall be a candidate at the following election.
Section 222 provides for the method of marking a ballot, namely, with a black lead pencil in the right–hand square opposite the name of the candidate for whom he desires to vote.
Section 237 provides if a ballot contains any mark or symbol whereby it can be identified, or if the ballot in any way be contrary to the provisions of this chapter, such ballot and all its contents must be rejected.
Plaintiff makes no contention that a write–in ballot was, under the language of the statute, expressly permissible prior to this amendment of 1949, but that Act 318, Session Laws of Hawaii 1949, expressly gives the voter the right to vote an “irregular” or “write–in ballot,” that is, to write in the name of a candidate not appearing on the official ballot and, further, that if this Act were construed to apply only to those voting by voting machines it would be discriminatory and void; that to uphold the validity of the law the court must interpret Act 318 as giving such right to all voters voting whether by ballot or machine and that this is a necessary implication though not expressed.
An examination of Act 318 shows that under section 251.01 the term “irregular ballot” is thus defined: “The term ‘irregular ballot’ means a vote cast for a person whose name does not appear on the ballot.” Section 251.14 provides:
It will be noted that the title is “An Act to Provide for the Use of Voting Machines in Elections, Amending Chapter 6 of the Revised Laws of Hawaii 1945, as amended, by Adding Thereto A New Subtitle Pertaining To Voting Machines and Making an Appropriation Therefor; Making Certain Acts a Misdemeanor or Felony, and Providing Penalties.” (Emphasis added.)
The Act purports to cover two subjects, only one of which is mentioned in the title, which in no way intimates that the election laws are to be changed other than to permit the use of voting machines. Nowhere in the title is the subject of write–in ballots mentioned but, further, the title is positively misleading for it specifically states the amendment to the chapter (relating to elections) is “* * * by Adding Thereto A New Subtitle Pertaining To Voting Machines and Making an Appropriation Therefor; * * *.” (Emphasis added.) Thus, it appears to violate section 45 of the Organic Act which provides: “That each law shall embrace but one subject, which shall be expressed in its title.” If the title to the amendment had been merely to amend chapter 6 relating to elections, there would be a much better argument for sustaining the law as this provision of the Organic Act should be liberally construed, particularly as to amendatory statutes. It is satisfied if provisions of the Act are naturally connected and expressed in a general way in the title –– nor need all the provisions be referred to in the title –– yet a sweeping change such as contended for, which would make radical changes in both the primary and election laws, should be included in the title to give proper notice to legislators and to the electorate at large. At least the title should not be so worded as to mislead by appearing to provide merely for the purpose and use of voting machines.
(Hyman v. Kapena, 7 Haw. 76, 77, 78.)
Clearly the Act as written would contravene the second and third purposes of section 45 of the Organic Act relative to the title of an Act.
That this Act did not apprise the legislature of the purported change in the primary law or give any intimation of permitting write–in ballots would appear not only from the words therein but from the report of the ways and means committee of the senate and the combined report of the committees of judiciary and finance of the house.
The senate report made no mention of write–in voting but in so far as it purports to modify the election laws is as follows:
In the house the pertinent portion of the joint report of the judiciary and finance committees in this regard is as follows: ...
To continue reading
Request your trial
-
League of Women Voters of Honolulu v. State
...prevent surprise or fraud upon the Legislature[,]" and to provide notice to the public of proposed legislation) (quoting Jensen v. Turner, 40 Haw. 604, 607-08 (1954) ), with Taomae, 108 Hawai‘i at 255, 118 P.3d at 1198 (noting that one purpose of the three readings requirement is to "ensure......
-
Chapman v. Brown
...the legislature, and therefore cannot be within the statute." This decision has been cited with approval by Hawaii decisions, including the Jensen As stated ante, the Hawaii Supreme Court has even gone so far as to hold that where a statute from another jurisdiction, which has previously be......
-
League of Women Voters of Honolulu & Common Cause v. State
... ... of proposed legislation) (quoting Jensen v. Turner , ... 40 Haw. 604, 607-08 (1954)), with Taomae , 108 ... Hawai'i at 255, 118 ... ...
-
Schwab v. Ariyoshi
...what this court has said to be the purposes of the latter as well as the legal effect we have given to that section. In Jensen v. Turner, 40 Haw. 604, at 607-08 (1954) this court stated the purposes of Section 45 of the Organic Act to First, to prevent hodge-podge or logrolling legislation,......