The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-02-25
SUPREME COURT.
Full Text Of tia Decision in the
MandamuS Cases.


lIandamus against E. w. BAR
NARD, Inspector of Election.
In tie Matter of the application of |
ALBERT HoRNER, for a Writ of /
Mandamus against E. w BAR
NARD, Inspector of Election.
BEFORE JUDD, c. J., FEBRUARY, 23D, 1892
DECISION.
Although there is nothing in the
statute excepting the right Of the
person whose interests are affected
to apply for writ of mandamus, yet
think it is writ which will always
lie against ministerial officer to re-
quire him to do any ministerial duty;
so l think that both the writs are
properly brought. Certainly If this
was not the case, there might a
great many frauds arise, and. if the
position is good one, to wit, that
the opinion of a majority of the in
spectors is final and binding in all
cases, whenever made land they must
make their decisions immediately,
unless there be a contested election
strictly in accordance with this stat
uts, say these frauds could never
be righted.
L suppose that if 1 should find
these two votes in the first precinct,
that were not counted by the inspec-
tors, to be legal and entitled to be
counted, the mandamus would have
to be sustained in that way; that is,
l should direct the inspectors to
count those two ballots for NATION
as improperly rejected, and there
upon to deliver him a certificate Of
election.
1t is very nice question and en-
tirely new to me, because l have not
read the law carefully as regards the
marking of ballots. [ regret very
much indeed that these parentheses
were used in the statute. We know
what parentheses are, and they are
called brackets very often. They are
published both round and in the
square form. They are used to sepa-
rate words geographically where
quotation marks are not used. [ sup
pose they have no greater effect than
that, and L suppose the context of
the law requiring cross mark-re
quiring voter to mark a cross on
the ballot, as the language of the
statute is, should control. regret
very much that this misleading char
acter has been printed go many times
in this Act. It is very unfortunate
with our constituency Of illiterate
voters, whom [ suppose do not know
what parenthesis is, and do not
know what its significance is. But /
am unable to come to the conclusion
that Mr.. Neumann urges upon me,
that that Is the correct method of
marking ballot. If did, ] should
have to come to the other conclusion,
that all the votes that did not contain
that mark should be rejected; that
is contention that I would not sus-
tain. If it had been printed by the
officials who prepared the printed
ballot-that is, if the parentheses had
appeared on the printed ballot and
the cross had been inserted between
them, that wnuld perhaps be differ
ent question than if made 10y the
voter. But, as has been we'll said,
the object of this law is to prevent
marks being made by which a ballot
thereafter could be identified and a
bride secured on the shown fulfill
ment Of the agreement.
l think the people who voted that
way thought they were voting cor
rectly, and it is unfortunate that the
sample cross has been given in this
way in the printed instructions to
voters. But I have got to meet it,
and think that the law intends that
a cross on the right hand side of the
ballot be made by the voter, and
nothing else; and for that reason !
! decline to make the writ peremptory
on the application of Mr. Nation.
And, having come to this conclu-
sion, 1 feel bound to say that in the
second case, the application by Mr.
Horner, that there is enough on the
return made to the Minister of the
Interior to indicate to my mind that
the inspectors did then and there,
. wherever they signed that paper
make new count, and they found
that they had drawn out ballot sc
! as to make the number correspond
with the number of persons voting
| NY uAStdhS, duo III Was BIODSI Ut
count in the withdrawn ballot. Con
2 scientious men should make a re-
count to see if they had made mis-
. take. The answer of Mr.. Barnard
shows that they had conscientiously
thought they had made mistake
through error in not checking off the
name of the Portuguese who hsC
voted in this case. The withdraw
ballot was for NATION, and I thinl
it is proper to count that vote fol
him, and I think it is proper in thai
case not to order a certificate tt
p issue, for the ballots for Mr.. Mattoor
and Mr.. Horner would each be 70
# making a tie. If a new election il
requisite the Legislature will order
= it, cannot.
J. Both petitions are dismissed, petit
TONERS in each case to pay costs.
A. f. JUDD, @. j.
The value of rolling stock in thu