The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-03-13
under. Under q specific allegation,
the proofs muet be limited to ii.

Mr.. TburstOn argued in reply ARTICLE
40 OF the Constitution makes il obliea-
tory upon the Court in case an cleo
ton is legally contested to decide first,
whether legal election has been held
and, second, who was elected. Upon
Mr., Holstein's petition, it making a
priDd fdcie case in his favor, two il
legal ballots being counted for Mr..
Young, and the election having been
declared tie on the sheriffs canvass,
the whole case is opened to the Court
to decide who was elected as Senator.
Upon this point we hold as follows:
Article40 of the Constitution which
reads, h'HIrcase any election TO a seat
in either fiotfse is disputed ami legally
contested. tbe Supreme Court shall be
the sole judge Of whether or not q
legal elk gion for such seat has been
held; and, il it shall find that legal
election has been held, il shall be the
sole .ttdge Loft who has been elected"
! was Eesigned to remove from the
jurisdiction OF either house Of Iegisla-
ture kndQo 1ifahsfer to the Supreme
Curt fnsaestfStiSns to the validity
DfapY di7pqted. pr contested election
and affSlis+ tj0pst AS 10 which candi-
date was legally elected. It's object
waAItDEeu9ove aiicthese exciting ques
lions from the domain of partisan
feeliBgHnH taarefer them for settle
nentstca jadir'altribnnal
For Gehturies ID England, aud for a
lessef ifime al " the Uuited States
and ~ jig these ISLANDS, constitu-
tiQps have- prescribed that each house
ofmieeislatupee should be the sole
judges of the qualifications of its mem.
oeSs9 IL he 'sdrfehde4 of this important
jurisdiction to 'thae Court does not
necessaftf q imply that the strict rules
Of pleading and OF admission OF evil
dence adopi ed in civil actions should
control in 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 partjc
ular office as expressed legally by
their votes. The main object of the
contest must not be lost sight of. 1t
is to ascertain who is legally elected.
| When al election is contested the
petitioner should state efficiently the
grounds of attack go as to apprise all
parties interested of its real nature.
| But lOOseness and Indebtedness of
pleading which might prejudice par
tlPs by surprise shoul1 not be allowed.
In the case before us all the pleadings,
consisting of Holste' MS petition aud
Young's answer in the first case, aud
Youpg's petition and HOlstein's an.
swer in the second case, raise all the
objections by either of the parties
| (c4ndidates) to the ballots claimed TO
be illegal. Aud in YouDg's petition
not only are number OF ballots OBJ
jected to IS Illegal end particularly
described, but he alleges that many
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 Holstein, in his an
swer IT, 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
Cuisfck's Election, 1875 Penn. st. AS,
a 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 10 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 and
heard argument upon their legality.
Four ballots were cast for Alex.
Young, numbered by the Clerk of the
Court as Exhibits 81, %, "a and 3S in
which the cross (x) made by the
voters was placed in the 81 ace in
which the name of the candidate ap-
peared aud not in the space provided
for tue mark. The statutes applying
are as follows Section 80 of the Laws,
Rules and Regulations for Holding
Elections, which reads:
"Fhe 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, a 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.
"All of the names upon a ballot
shall be placed AZ uniform distance
from the left hanJ edge thereof, and
close thereto"
And Section 100 id. which reads:
IA vnter shall designate his choice
for senators by making a cross, thus
(x) on the right hand side of the bal
lot in tue space or spaces provided for
such purpose, opposite the name or
names OF the candidate or candidates
for whom he desires to vote"
The ballots so marked are clearly
illegal and should be rejected.