The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-03-11
Agents. Honolulu. II. 1.

under. Under a specific allegation
the proofs must be limited to it.
Mr.. TburstOn argued in reply :Article
40 of the Constitution makes it obliga-
tory upon the Court in case an elec-
ton is legally contested to decide first,
whether a legal election has been held
and, second, who was elected. Upon
Mr.. HO!stein's petition, it making a
11rinld f0cie case in his favor, two il
legal ballots being counted for Mr..
Young, and the election having been
declared tie on the sheriff's canvass,
the whole case is opened to the Court
to decide who was elected as Senator.
Upon this point we bold as follows;
Article 40 of the Constitution which
reads, "In case any election to a seat
in either house is disputed and legally
contested, the Supreme Court shall be
the sole Judge of whether or not a
legal election for such seat has been
held and, if it shall find that legal
election has been held, il shall be the
sole judge of who has been electe d"
was designed to remove from tue
| jurisdiction of either house of legisla-
ture and to transfer to the Supreme
! Court ali questions as to the validity
of any disputed or contested election
| and all questions as TO which candi-
date was legally elected. It's object
was to remove ali these exciting ques
tions from the domain of partisan
! feeling and transfer them for settle
ment to a judicial tribunal.
For centuries in England, and for a
lesser time in the United States
and in these islands, constitu-
tions have prescribed that each house
of Legislature should be the sole
judges of the qualifications of it's mem
Uers. The surrender of this important
! jurisdiction to the Court does not
necessarily imply that the strict rules
OF pleading and of admission of evil
dence adopted in civil actions should
control ia election contests. These
contests are not strictly inter parties.
The people have an interest in them
and the burden is cast upon the Court
of ascertaining, if possible, who was
the choice of the people for the. partic
ular Office as expressed legally by
their votes. The main object of the
contest must not be lost sight of. It
! is to sceTtain who is legally elected.
| When an election is contested the
| petitioner should state sufficiently the
grounds of attack 80 as to apprise all
parties interested of its real nature.
But loOseness and Indebtedness of
pleading which might prejudice par
ties by surprise should not be allowed
! In the case before us all the pleadings,
consisting of HOlste MS petition aud
YOung's answer in the first case, and
YOung's petition and Holstein's an
swer in the second case, raise all the
objections by either of the parties
Candidates. TO the ballots claimed to
be illegal. And in Young's petition
not only are n number of ballots OBJ
jected to as illegal and particularly
| Il hA1 EA Ill
other illegal ballots were cast for Hol
stein at said election, and that ballots
legally cast for Young were rejected,
las will more fully appear by an exam
iaatiOn of the ballots cast at the said
election" And HOtstein, in his an
swer to this petition, also asks for a
recount of all the ballots cast, and
prays the Court to decide which of the
said candidates was elected. Thus all
the ballots cast at the election are put
in evidence by both Young's petition
aud HOlstein's answer. AS held in
Cuisick's Election, 1876 Penn. st. 476,
party who puts in evidence all the
ballots cast at an election for the pur-
pose of supporting his allegation of
illegal ballots cast for his opponent
cannot "utiliZe so much of this
evidence as will serve his turn and
reject the remainder" Thus, if we
confine ourselves to the strict rules
of practice in civil actions we are
authorized to pas upon all the ballots
cast whether to the advantage or dis
advantage of either party. And by
article 40 OF the Constitution we are
required to decide upon the pleadings
and evidence before us who is legally
elected.
We have examined the various bal
lots objected to by both parties aud
heard argument upon their legality.
Four ballots were cast for Alex.
Young, numbered by the Clerk of the
Court as Exhibits q, %, "a and 3S in
which the cross (x) made by the
voters was placed in the space in
peared and not in the space provided
for the mark. The statutes applying
are as follows. Section go of the Laws,
Rules and Regulations for Holding
Elections, which reads:
''The names of the candidates shall
be placed upon the ballot in alpha
betical order.
ga horizontal line shall be ruled
between each name and its equivalent,
if any, and the next name.
"Immediately after all the names,
on the right hand side of the ballot,
a vertical line shall be ruled, so that,
in conjunction with said horizontal
lines, rectangular space shall be en-
closed opposite each name and its
equivalent, If any, of sufficient size
to give ample room in which to desig-
nate the choice of the voter in the
manner herein prescribed.
Gail of the names upon ballot
shall be placed at uniform distance
from the left hand edge thereof, and
close thereto"
And Section 100 id. which reads: