Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-04-06

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the performance Of what is not duty
under the statute and because the mat
ter in question is within the proper
sphere of another branch of the gov
eminent.
The same argument, II sound, would
apply to some extent, If not with equal
force, to the powers or duties of other
officers who may be called upon to act
at other stages under the election law
For instance, should the inspectors Of
election in any precinct rightfully take
II upon themselves to decline to count
the votes cast for a candidate whom
they believed to be ineligible or to send
the number of votes cast for such can
didate to the high sheriff or sheriff, or
should the latter decline to issue GER
tificate of election to candidate who
has received the largest number Of
votes because he believed him to be
ineligible? Or should the courts step
in at each stage and compel such ac-
ton on the ground that the candidate
Is ineligible? Perhaps the most in
structive case that has come to our
notice in this connection is that of Peo-
pie VS.. Board of Canvassers, 1879 N. Y,
800. In that case candidate for sena-
tor was ineligible but had received the
greatest number of votes. The State
board of canvassers declined to issue
a certificate of election to him. He APP
piled to the court for writ of manda-
mus to compel them to do so. The
court, consisting Of seven judges. was
unanimously of the opinion that the
duty Of the board SO far as 1t went was
ministerial and enforceable by the
courts, but that II could not go behind
the returns and inquire into the eligi-
bility of the candidate. The question
then arose as to whether the court
should compel the board to issue a GER
tificate of election to one who was
clearly ineligible. The question was
the converse of what II Is in the pres
ent case. 1t was what the question
would have been here IL the Secretary
had declined to place Mr. Dreier's name
on the ballots and Mr.. Dreier had
brought proceedings to compel him to
place the name on the ballots.
A majority of the court five Judges al
plying to that case the general prin-
ciple that mandamus should not issue
to accomplish wrong or the violation
OF constitutional provision or except to
secure or protect a clear legal right,
went into the question of eligibility as
a necessary preliminary question to
be determined as basis for determin-
Ing the other question and, having
found that the candidate was ineligi-
Bile, declined to allow the writ to COM
pei the board to issue certificate Of
election. OF course. the candidate
could without the certificate go before
the senate and there establish the
right, If he had right, to seat. The
minority, two judges, were of the opin-
ion that, In view of the constitutional
provision making each house the Judge
OF the elections. returns and qualifca-
tons of its own members, the court
should not go into the question of ELI
gibllity at all but should compel the
board to issue the certificate of cleo
ton, Notwithstanding the general rule
that mandamus should not issue eX-
cept to protect a clear right. In other
words, according to the reasoning OF
the majority in that case, the court
should not compel the Secretary Ia
omit Mr.. Dreier's name and should not
pnn1na1 him n n1a,a . h.
although it was his ministerial duty
to do so. According to the reasoning
OF the minority in that case, the court
should not only compel the Secretary
to omit the name but should, If he did
omit it, compel him to place 1t upon
the ballot.
Citations Not Inconsistent
The cases cited in behalf of the plain,
tin, State S. Lesener, 1913 Mo-, 25S; State
VS.. Allen, SO n. w. CNeb) 80; State VS.
Falley, 76 n. w. IN. d., 1896. are not
inconsistent with the foregoing views
On the contrary they seem rather tC
support them. They go to show that
the officer to whom is committed the
preparation OF the ballots may look
into the question of whether the nomi,
nation has been made as required by
the statute but they also tend to show
by implication at least that ne canno,
90 further and inquire into the ques.
ton OF the eligibility of the candidate
Other instructive cases are State VS.
Van Camp, "a N. w. (NebJ. ll3; Lu.
cas.vs. Ringsrud, SO N. w. Is. d.. 1926;
Atkeson VS.. Lay, ll5 Mo-, 53S; Price VS.
Lush, l.. r. A. MONT, 467: State
vs.. Board of Canvassers, 81 Pac
(MonD, $50; O'Ferral VS.. Colby, .
Mimi, $50; Gulick VS.. New, IA Ind.
80 Maynard VS.. Board of Canvassers
81 Mich, 22S, PAS; Bingham VS.. Jewett
&c n. H., 1882.
In our opinion the Secretary hai
acted according to law so far as ap
pears in this case and the plaintiff Il
not entitled to have tn ename of Mr.
Dreier omitted from the official bal
lot.
Judgment accordingly.