The Hawaiian gazette., 1908-12-15
kauai ELECTION
CONTEST HEARING

The Supreme Court yesterday over.
ruled the demurrer in the Kauai elec.
tion contest, and hearing was set to
follow Immediately after the mayor.
atty election contest, the hearing Of
which is to begin. next Monday.
decision on this demurrer was ex-
pected at 2 clock yesterday, but Mr..
Blake. the contestant, was not present,
and the Chief Justice announced that
the decision would 90 over until 4
o clock. The reason why the court
was anxious that Mr.. Blake should be
present was apparent when, following
the overriding the demurrer, he was
called TO the witness stand and sworn
and examined by the Chief Justice as
to the sources of his information as to
the erroneous count in the Lihue pre-.
cinct by which the election certificate
went to Baker, the Republican candi-
date. instead of Blake, the Democratic
candidate.
AT o'clock both Blake and Baker
were present, and e. NJ. Watson and
w. w. Thayer. representing Blake,
and George A. Davis, A. l.. G. Akin
son and f. G. Peters, representing
Baker. Chief Justice Hartwell an.
nounced that the costs in these cleo
ton cases would follow the practise in
equity cases. and would be taxed ac-
cording to the merits of the case. He
then read the decision of the court on
the demurrer, as follows:
"The petition sets forth that in the
seventh precinct five ballots east for
| the petitioner were counted for the de.
| PENDANT, the official return in that pre-
cinct showing 104 ballots for the de-
| PENDANT and sixty eight for the petit
| TONER. The question raised by the de-
murrer is whether this action of the
board of inspectors, termed in the pc
| tition false, fraudulent and untrue, is
n sufficient averment to Justify an ex.
| animation of the ballots in order to
ascertain whether they were counted
wrong. The defendant claims that
this would enable anyone to get a re-
count upon petition setting forth
that he is informed and believes that
the inspectors have not counted right.
The petitioner, on the other hand. says
that he can aver no more than he has
done. since he does not know the cause
or the motives which led the inspec.
tors to count his ballots for the de-
PENDANT.
nThe result is the same of mis-
take of the board of inspectors in
! counting the ballots for the respective
parties incorrectly and of an incorrect
return wilfully made. In either case 8
contest may be made within the mean
ing of the statute. This was the rul
ing under statutes similar to our owl
in Hadley v. Guthridge, So Indiana
3l4; darlington " Turner, II Ill.
. 1884, and Stegeman VI Cook, 102 s. w
! Reporter (Ky), s72. Moreover, thu
ruling in Fernandez V. Adams, July
1905, case not reported, controls thi
in this case.
Q "The demurrer is overruled, but be
s fore witnesses are summoned, tn
q court will call the contestant to ties
L tify to the nature and source of tn
+ information upon which his petition j
? based.'
8 Justice Wilder announced that h
% concurred in the reasoning and tn
conclusion of the Chief Justice.
Judge De Bolt, dissenting, said:
, 81 am unable to concur in the opin
ion of the court. The petition unde
the rules of pleading is fatally defec
, tive. 1t not only fails to compl,
l with our statute, but with pleading
. in all parts of the civilized world l
{ fails to state the essential facts, 70
, it is general rule that the petition
must state with particularly the fact
which make the returns complained o
/ false, fraudulent or untrue. This is
. contest, not an appeal. This court j
not sitting here as court of appeal
If this petition were held good, all tina
any candidate need allege to get a re
; count is to allege generally that Their
was error in the count. / do not thinl
the case of Fernandez V. Adams shout,
be precedent. The petition in tina
case was similar to this, but the ques
tion raised here was not raised there
and hence, the rulings there not bein
on full argument or consideration
ought not necessarily to be followed j
: this case.
"The law presumes that every off
Ger performs his duty, and so it seem
,, TO me that before the act of any sue
! officers can be attacked, it must
specifically alleged that he did not
: his duty in this case. Fraud is neve
: presumed. So that in the case at ba
, every doubt should be resolved agains
thS pituuSi'
"The purpose OF the contest is I
: determine what has been the will @
, the people. The presumption is tina
!, , the result as announced by the officer
of election is the will of the peopl
: until facts are alleged that overthro'
: this presumption.
: The Chief Justice then called til
contestant, Mr.. Blake, to the stan
u and asked him what information he ha
and where he got it. on which he base
q the allegation that five votes cast fl
{, him in the Lihue precinct were coun
a ed for Baker. He said that the Fir
J. day after the election he went to ]
lseph Ii and asked him what he kne
d about the count in the Lihue precinc
J. Ii told him that he had kept tally
the inspectors called off the votes al
J, that he had made the tally 70 f
J Blake and 80 for Baker, instead of
l for Blake and 104 for Baker, as Il
official returns showed. Ii said he hi
II called the attention of the inspecto
!. of election to it. but they had d
n, clared their own tally correct. II sa
I'm. la Ganf tollu and NJ