The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1870-01-29

facts, claims that the plaintiff s petition is insufficient
in law to enttle him to the writ prayed for, on the
ground that it sets forth no neglect by the defendants
Of any duties imposed upon them by law, and does
show their full and faithful performance of the same,
and that they should not be compelled to answer
further. The defendants counsel claimed that the
answer was in the nature of n demurrer on which,, l..
over-ruled, judgment would be given to answer over.
and that he had the right to open and close. He was
allowed to open and close. the Court looking upon
the answer rather rs = motion TO dismiss.
Per CURTAIN: A question of pleading arose which
must be referred 10. 4 demurrer is not a plea in
bar. but attacks the plaintiffs right of action, on the
ground that he presents a case insufficient III law,
and il is deemed to admit facts well pleaded II
oyer-ruled, judgment on the whole record is given.
\ plea in abatement suggests defects IN form or
substance, not apparent in the record, as that the
summons is signed by one not authorized to sign it,
of which the plea offers verifcation, and prays that
no further answer be required on such a plea, II
over-ruled, judgment is given to answer over. a
motion made TO dismiss is for defects apparent on the
record, as that the summons is not signed at all.
The answer declines to admit the facts, and claims,
that no further answer be required, but 1t presents
solely the question of the insutlclency IN law OF the
plaintiff case, and is to be treated as u demurrer.
The Constitution provides that every male subject
shall be entitled to vote, who, among other qualihca-
tons, " shall have paid his taxes, y and 8 shall have
caused his name TO be entered on the list of voters Of
his District as may be provided by law"
An argument was made that any law requiring
payment of taxes in November to entite one to vote,
makes n new gu LITIGATION not required by the Con-
stitution, and is therefore unconstitutional. If 1t
were necessary TO decide that point, l should not
hesitate to say, that it is only the right, but the duty
of the legislature to provide a reasonable and conven-
lent mode Of ascertaining who possess the c%onstitu-
tional qualifications of voters.
The statutes require assessors, by September first,
to return to the Governor a list of tax payers, which
list the Governor is TO deliver to the tax collector /;
" and said collector shall proceed Immediately TO col
lect according to the same provided however, that
it shall be his duty to add TO said list any person not
nPlnnn fhplsnnn h 10 oS=nccDnnn - n nffnr
notice by the collector to pay his taxes, any person
shall neglect so until the last day of November the
collector shall levy execution for the taxes. By the
last day Of December the collector is to pay over all
sums collected by him. Civil Code SIS 500, Ell seq
By the act of 1868, assessors register the names of
all voters qualified according 10 the provisions of the
Constitution, and the collector, using the list prepared
by the assessor, and adding names 3 of all who shall
have paid in to him their taxes within the time pre-
scribed by law who may possess the requisite qualifi-
cations to vote, but who may have been omitted to be
registered by the assessor" prepares and furnishes,
on or before the last day of December, a full list to
the Inspectors of Election. For the purposes of
elections, every tax collector shall be supplied by the
Minister of Finance with Il blank tax receipt = .
which shall bear conspicuously upon it, in printed
letters, the words Qualified to vote ) and 1t shall
be the duly of every tax collector, upon receiving the
payment of the taxes due from any person in other
respects entitled to the franchise under the provisions
of Section 2 Of this Act, to fill out and deliver to
every such person one of the tax receipts so impress
ed" (Sec. 10, Act 1861 The Inspectors shall
hold two sessions, the last not less than ten days before
election, : for the purpose of receiving evidence Of
the qualifications of persons who may not have been
previously registered by the assessor or collector and
who may claim a right TO VOTE as well as to correct,
by erasing names improperly ON said lists.
If the Inspectors find any names to have been
omitted from the collectors or assessors lists of per-
sons having the legal and requisite qualifications of
voters, they are to require the collectors to deliver to
such persons q tax receipt endorsed with the words
g Qualified to vote,'' and are to insert such names,
with thOSa uDOu the nreyinuS LIST unon tha InSDecfnrs
list of voters.
Such in substance are the statute provisions. It
will be seen that the duties of the assessor and col
lectOr are ministerial only, and those of the Inspectors
are, to some extent, judicial in their nature, and not
merely mechanical, or ministerial. The collector
thinks he could not give the petitioner the receipt de-
sired, because his taxes were not paid by the end Of
November. But the law does not require this condi-
ton. Certainly, the Inspectors, in examining the
evidence of claimant of the suffrage, are bound by
no such restriction they have a wider field of in
quiry, no less and no more than the laws and Con-
%stitution afford. If they find i'll the laws, and
Constitution nothing which requires them to place on
their list of voters only those who have paid their
taxes voluntarily, by the end of November they will
not assume such payment to be a prerequisite to
voting. No such requirement upon them appears in
the laws. The plaintiff appears to have paid his
taxes December 81, before any levy was made there
for, and 1 am of opinion that his delay has not
caused him to lose the right to vote.
Let a writ issue as prayed for.
A. +. Judd for plaintiff.
S. III. Phillips for defendant.
The defendants counsel stated that although the
facts where probably as charged, yet he desired to
argue that he was entitled to judgment to g answer
and that he should have so argued earlier,
had he not understood from the Court that his an
swer would be treated as a motion to dismiss.
The Court stated that the question would be open
for argument whenever it should arise hereafter.
Exceptions and also an appeal were claimed, but
the Court ruled that no exceptions were allowed by
statute, and that appeals from the issuing of a pro-
or writ were expressly prohibited by statute, but
that the question could be brought to the full Court
on writ of error at any time.
Cotton Growing.