The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1906-12-07
THE ARGUMENT.

Mr.. Kinney. after the conclusion of
points. He began with the reserved
question ON rejection of ballots as n
whole upon which more votes for n
particular office We're marked than con-
didates to be elected. There was pro-
vision in the Organic Act that no votes
of certain classes shall be counted. In
the matter of county ballots the only
ruling was an oral one in the Fernan-
DEE case. 1t is a vital point in this
case, Mr.. Kinney represented. where 1t
was the sword that moved down 200
votes for Iaukea. Brown, as matter
of fact and in the eye of the public,
is beaten man. The courts have
ruled on the question of a surplus vote
as an identifying mark This court
ruled on it under the statute. The
general law made provision that such
ballots should be rejected before there
was a county election or any county
officers.
This law provided that there should
be separate ballots for Senators. Rep-
resentatives and Delegate. 1t was a
commons sense provision. Now the
mandate OF the law Is brought in to
apply to an entirely different PROPOSE
ton. AS to legislative offices it was
a necessary and wholesome provision.
Applied to the various county offices it
is misft and results in shocking of
,le public conscience. 1t was against
reason to apply it to the election of the
many different officers as Sheriff, Dep
uty Sheriff, Supervisor at Large, Attor-
ney, Treasurer, Auditor, Clerk and
District Supervisors. When its orig
inal purpose is carried out it Is all
right. but when it is applied so as to
shock the reason the court is not re-
quired to enforce the rule. The County
Act does not require 1t. That meas
ure speaks of the number" as well
as the color of the ballots. Joining
these ballots-intended to be separate
from the analogy of legislative ballots
on one paper does not alter their legaf
status as separate ballots.
Mr.. Kinney here quoted authorities
In support of his views. saying con-
trary decision of South Carolina was
not contrary with regard to the cross
as distinguishing mark.
Chief Justice Frear said counsel
would require to present evidence on
this point as no count was kept of bal
lots thrown out for that reason.
There will be no contest If this point
IS conceded" Mr.. Kinney remarked.
However. the ballots themselves are in
evidence"
The court had declared that it had
no authority to make a recount. 1t
H. II, ..I,
the responsibility was on the court.
It was computation OF how many
voted for too many men, how many
cut the cross inside, etc If a vote
vas erased so as to leave a distinguish
ng mark II should be rejected, but
when II is rubbed out so that a magni,
wing glass is required to find the
marks of erasure 1t is different mat
err. II fifty sets of judges of most UNI
mpeachable integrity had to decide
'uch fine point, the speaker doubted
( any two sets would hit it off the
anne
Brown, II was submitted, must estab-
ish his case with a preponderance of
violence. one or five or a dozen votes
n such a rigid investigation OF the
'ahpAs a
II evidence one way or the other. II
here was a recount there must be a
ecision one way or the other on every
'allot. 1t was question of the courts
onviction as matter OF fact. The
curt must ask itself II there are not
number of ballots here which are so
lose in point of legality that 1t can not
verrule the returns of the inspectors.
I is at liberty to say, I'VE find no pre-
of evidence" The re-
pondent was entitled to the benefit OF
he same rule of preponderance OF evil
ence which the court itself appliea,
nd juries are instructed to apply. to
ivil cases at law.
'URTHER SCRUTINY SUGGESTED.
Mr.. Kinney suggested that. since the
began. the court had been
through a process OF education In the
ounting OF these ballots Its later rul-