Lane v. Fern

• Decision Date: 06 December 1910
• Citation: 20 Haw. 290
• Parties: JOHN C. LANE v. JOSEPH J. FERN.
• Court: Hawaii Supreme Court

20 Haw. 290

JOHN C. LANE v. JOSEPH J. FERN.

Supreme Court of Territory of Hawai'i.

December 6, 1910

Argued November 29, 30, 1910.

ELECTION CONTEST.

(HARTWELL C.J., DISSENTING IN PART.)

Syllabus by the Court

The right to contest an election is purely statutory. What constitutes a cause of contest is a question to be determined in accordance with the statutes of the jurisdiction in which the question is raised.

Whether a ballot marked and cast after five o'clock on the afternoon of election day, and whether a ballot wilfully exhibited by a voter to another, after marking and before casting it, should be rejected or counted by the inspectors are, within the meaning of section 56, Act 118, Laws of 1907 questions " as to the validity" of the ballot within the power of the inspectors to decide and of this court to review on a contest under section 57 of that Act.

The mere acceptance and the counting of ballots marked and cast after five o'clock on election day constitute " decisions" within the meaning of sections 56 and 57 of Act 118.

The mere acceptance and the counting of ballots exhibited to others by voters after marking and before casting them constitute " decisions" within the meaning of the sections named, at least if the exhibiting was seen by or known to the inspectors at the time of the occurrence or before such acceptance and counting, and perhaps, also, even if the exhibiting was not thus seen or known.

The word " questions" used in section 56 of Act 118 does not refer to issues expressly raised at the polling place on election day by the candidates or their representatives, but to issues capable of being raised although not raised.

The word " hereof" in sub section 5 of section 94, R L., does not refer to the section itself but to all of the Rules and Regulations for Administering Oaths and Holding Elections promulgated by the president of the Republic in 1894 and now included in chapters 7, 8 and 9, R. L. It refers not only to improper marks on the face of the ballot but also to other causes of invalidity.

A " decision, " within the meaning of sections 56 and 57, R. L., may be made, in proper cases, before as well as after the ballots are physically in the box.

Ballots otherwise valid are not rendered invalid by the mere fact that they were prepared and cast between 5 p. m. and 6:30 p m. on election day.

Ballots wilfully exhibited to others by the voters after marking and before casting are invalid. Whether the inspectors and this court have jurisdiction to so determine (on a contest) with reference to ballots the exhibiting of which was not known to the inspectors, is not decided in this case.

G. A. Davis, A. F. Judd, R. W. Breckons and G. S. Curry for petitioner.

W. W. Thayer and C. W. Ashford for respondent.

HARTWELL, C.J., PERRY AND DE BOLT, JJ.

OPINION

PERRY J.

Briefly summarized, and subject to qualifications hereinafter mentioned, the petition sets up three causes of contest: (1) that in a named precinct the polls were kept open until 6:30 o'clock on the evening of election day and that sixty-four ballots were marked, cast and accepted after five o'clock p. m.; (2) that while a large number of voters were in the polling house engaged in marking their ballots, or about to do so, one McCandless was present and handed pencils to numerous electors and by words and acts endeavored to influence the electors to vote for Fern, and that one Wolter was also present and " instructed" a number of electors " how to vote" and likewise by words and acts endeavored to influence the electors to vote for Fern; (3) that certain voters, their number not being stated, exhibited their ballots, presumably after marking them, to others, and that at times two or three electors were in the same compartment of the polling place marking ballots in plain view of each other. A further statement of the case is contained in the opinion of the chief justice. The demurrer presents two questions, among others, first whether upon the allegations of the petition the court is without jurisdiction to hear the contest, and, second, whether a cause of action is sufficiently set forth. In the view that we take it will be necessary to consider both of these grounds.

It is undoubted that the right to contest an election is purely statutory and must be determined in accordance with the statutes of the jurisdiction in which the question is raised. It is also true that the Hawaiian statutes on this general subject of contests have from time to time undergone change and that the powers of this court other, perhaps, than by writ of quo warranto, are not as extensive as they were at times in the past. Beyond this we have not found a study of the former statutes of much assistance. The question still remains, what are the present powers of this court under the statutes now in force? That is a question of construction.

This was an election held under Act 118 of the laws of 1907, " Incorporating the City and County of Honolulu." The direct source of the authority for the conduct of the election and for any contests arising under it is that act; and so also the source and the limits of our jurisdiction in this case are to be found in that act and in other acts by it made applicable. Section 40 of Act 118 provides that " The general laws and rules governing the election of senators and representatives of the Territory shall apply in the election of city and county officers, wherever applicable, except as herein provided." Those general laws and rules are to be found, in the main, in chapters 7, 8 and 9 of the Revised Laws. Sections 56 and 57 of Act 118 read as follows: " All questions as to the validity of any ballot cast at any election held under this Act shall be decided immediately and the opinion of the majority of the Board of Inspectors of Election at each polling precinct shall be final and binding, subject to revision by the Supreme Court of the Territory as hereinafter provided." " Any candidate directly interested, or any thirty duly qualified voters of any Election District may file a petition in the Supreme Court of the Territory setting forth any cause or causes why the decision of any Board of Inspectors should be reversed, corrected or changed."

While petitioner contends to the contrary, it may be assumed for the purposes of this opinion that section 57, adding nothing in this respect to Section 56, grants no power to this court to consider questions which the inspectors could not have lawfully considered. It was so held in Kanealii v. Hardy, 17 Haw. 9, 12, the court saying, " And likewise the supreme court, in revising any such decision of a board of inspectors, could not consider questions which the board itself could not consider. Section 41" (Section 57) " limits the petition for such revision to causes for reversing, correcting or changing the decision of the board." This assumption is, in other words, that the " decision" mentioned in section 57 is the same decision, and no other, referred to in section 56. It may be assumed also, as is probably the case, that the decision contemplated in these two sections must be " as to the validity of any ballot" and not as to any other cause for invalidating an election, as, for example, not as to any defect in the nomination of the candidate nor as to the latter's eligibility. It may be assumed still further that the causes of invalidity cognizable by the inspectors are simply those mentioned in Sec. 94, R. L., -although perhaps that view is not capable of as much support in the construction of section 56 as it would be in the case of the construction of section 95, the language of which, with the exception of the provision as to revision by the supreme court, is the same as that of section 56, for of section 95 it can be said, as it can not be said of section 56, that it is a part of the same act as section 94 and immediately follows it, whereas section 56 is in a separate statute and at first reading, at least, might not appear to be limited to section 94 by continuity of thought or expression. Nevertheless, with all of these assumptions, we think that the decisions of the inspectors, if decisions within the meaning of the statute were made (that subject is treated below), were " as to the validity of ballots, " both with reference to the sixty-four cast after five o'clock and with reference to those which had been exhibited by voters.

Sec. 94, R. L., reads as follows: " If more names are voted for on a ballot than there are offices to be filled; or

If on a ballot for representatives a larger number of votes are marked than the law authorizes; or

If a ballot contains any mark or symbol whereby it may be identified, or any mark or symbol contrary to the provisions hereof; or

If two or more ballots are found in the ballot box so folded together as to make it clearly evident that more than one ballot was put in by one person; or

If a ballot in any other way be contrary to the provisions hereof; then such ballot and all it contains must be rejected.

But no ballot shall be rejected for containing a less number of names voted for than the law authorizes.

Each ballot which shall be held to be invalid as aforesaid shall be indorsed on the back by the chairman of inspectors, with his name or initials, and the word ‘ rejected’ ." This was originally section 108 (C. L., Appendix, p 821) of Rules and Regulations for Administering Oaths and Holding Elections, promulgated by the president with the approval of the cabinet, under section 79 of the Constitution of the Republic. The word " hereof, " in paragraph five of this section, clearly refers, as we think, not to the section itself, but to all of the rules and regulations so promulgated as one document,...