The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-04-04
TWO HORNS OF
A DILEMMA
SUPREME COURT HEARS ARGU-
MENTs IN THE SUIT OF
THE CANDIDATES
SECRETARY COOPER STATES HIS
POSITION.
-Four Attorneys Address the Court civ
ing Interpretations Of the Hawaiian
Election Law

! Election Law
The Supreme Court held special ses
| sion this morning to hear arguments in
| the case of Harris VS.. Secretary Cooper
| The issue was presented by Robertson,
Stewart, Cooper and Kinney and when
! they got through it appeared that the
| court was up against a hard problem.
| If Cooper hadn't the right to consider
the eligibility of candidates, elections
might be a farce, the name even of an
animal getting on official ballots if peo-
pie tried to put it there, while if Cooper
had the power to take up the PROPOSE
ton he would have to tackle and decide
off hand legal problems that puzzle the
highest courts at times.
I'VE expect to finish at noon" said
the Chief Justice. Counsel may de-
vide the two hours time as they see fit"
Secretary Cooper stated that he had
only few words and Robertson sug-
gested that each side take an hour.
Kinney said that he appeared for the
electors who signed Dreier's nominal
| ton and he was allotted half of Sc
cretary Coopers hour for argument.
Robertson opened the argument.
Under the regulations in this Terri
tory" he said there appears to be no
provision for any person or board to
pass upon nominations and it is a ques-
!
duty Of the secretary to do so. In
some states it is provided for and
seems absolutely necessary that there
! should be some one to look after the
proposition 1t seems absurd to sup
pose that it is the duty of the secre-
tary to place upon an official ballot any
name without making Investigations as
to the qualifications of the candidate.
IF person is nominated for an Of
flee and is not eligible and there is no
means of enforcing the statute what is
the use of having the statute at all!
There might be all sorts of disquali-
fed persons on the ballots and we
might have electors nominating women
Cinnamon or dead men, resulting in no
end of confusion in our elections. Elec-
tors might get together for the express
purpose of causing such confusion and
nominate men whose names resembled
those Of legitimate candidates and the
purpose of the Australian ballot law
would be defeated and the way to fraud
left open.
I'VE contend that it is therefore nee
CeSSary that the official who takes
charge Of the ballots shall pass upon
the qualifications of nominees. There is
no express provision for the secretary
to pass upon the regularity of nomina-
tion papers and 1 understand that the
secretary takes the view that he can
not do so and would print a name hand
ed in by tWenty-fOur electors instead of
twenty-five.
'In the states the usual process is TO
have nominees made by parties and the
question there is as to the regularity of
the proceedings of the party, so that
there are few cases that resemble the
one at issue"
Robertson quoted a Missouri case in
which the statute provided for eNecu-
ton of nomination papers with all the
fOrmalities of deed of transfer of
property. One candidates papers were
found defective and the officer refused
to put the name on. Efforts were made
to compel him to do so and the ques-
ton of his right to pass upon the nom
nations was brought up. There was
only one statutory provision for leaving
names off tickets and this was in case
Of a withdrawal In spite of the alb
sence of any statutory authority for
refusing to place a name on a ballot,
the court held that it was the duty of
the Secretary of State to use his dis
cretion, although not a judicial officer.
1t was not his duty to place on the bal
lot the name of any person nominated
whether nominated regularly or not.
A Nebraska case when the law pro-
vided that the Secretary should con-
slider the validity of nominations in
some respects and the court held that
it was his duty to go into other ques-
tions beyond those stated in the sta
tutes.
I'VE submit that whether the secre-
tary has the power or not to pass upon
the question, continued Robertson,
1T stands to reason that the courts
must have the power to compel him to
place a name on a ballot where it
should go or to leave off a name that
should not be on the ballot. If not we
are in confusion. The laws provide for
40 NaaRe i'll,
altogether ignore If the court does not
sustain our position The secretary may
do as he pleases, Notwithstanding the
cleaE provisions of the statute"
This case brings out the fact that
our election laws are not as complete
as those of other places having the Aus !
tralian ballot" said McCant Stewart, !
'and this court in the absence of such !
law must leave us in anarchy or make |
a way for Itself. 1t has done so before |
continued Stewart, referring to a Ha- !
Waiian case of 1860, I'm which the court |
allowed a suit for damages on the |
ground of common sense, reason and /
justice where there was no statutory |
provision allowing such a suit. There |
may not be any statutory language re-
quring the secretary to inquire into the |
eligibility of a candidate; yet all the |
intendments of the law, as well as |
common sense and Justice require that |
he shall do so"
Stewart quoted the law which says
that i'm order to be qualified to be a
member of the legislature person
shall be qualified voter of the district |
he is to represent. The Organic Act
provided that no person should sit i'm
the legislature unless elected under and
in conformity with such act said Ste
wart. 1T is unsound i'm this case to
contend that the legislature shall be the
Judge of the qualification of its own !
members" said Stewart "The iuris-
dicuon of the legislature i'm such mat
ter is not made exclusive. Each house
shall be judge Of the election and quail
hcatiOn, says the statute, but this IS not