The Pacific commercial advertiser., 1908-12-15
kauai ELECTION
CONTEST HEARING
Will Follow Immediately That
of the MayOraIty
Contest.

The Supreme Court yesterday over
ruled the demurrer in the Kauai elec
ton contest, and hearing was set tC
follow Immediately after the mayor
| atty election contest, the hearing OF
which is to begin next Monday.
A decision on this demurrer was ex
pected at . % clock yesterday. but Mr.
Blake, the contestant, was not present
| aud the Chief Justice announced that
the decision would go over until 4
o clock. The reason why the court
was anxious that Mr.. Blake should be
present was apparent when, following
the overruling 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. c. Atkin-
son and E. C. Peters, representing
Baker. Chief Justice Hartwell an
nOuneed that the costs in these cleo
equity eases, 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-
fendant, the official return in that pre-
cinet showing 104 ballots for the de-
fendant 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
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 re-
count upon a 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-
fendant.
''The result is the same of a 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 a
contest may be made within the mean
ing of the statute. This was the rul-
ing under statutes similar to our own
in Hadley V. Guthridge, So Indiana,
314; Talkington V. Turner, II Ill.,,
234, and Stegeman V. Cook, 102 s. w.
Reporter (Ky.), S72. Moreover, the
ruling in Fernandez V. Adams, July,
1905, case not reported, controls this
in this case.
"The demurrer is overruled. but be-
fore witnesses are summoned, the
court will call the contestant to tes-
tify to the nature and source of the
information upon which his petition is
based"
Justice Wilder announced that he
eoncurred in the reasoning and the
conclusion of the Chief Justice.
Judge De Bolt, dissenting, said:
81 am unable to concur in the opin-
ion of the court. The petition under
the rules of pleading is fatally defec-
tive. 1t not only fails to comply
with our statute, but with pleadings
in all parts of the civilized world. It
it is a general rule that the petition
must state with particularly the facts
which make the returns complained of
false, fraudulent or untrue. This is a
contest, not an appeal. This court is
not sitting here as a court of appeal.
If this petition were held good, all that
any candidate need allege to get a re-
count is to allege generally that there
was error in the count. do not think
the case of Fernandez V. Adams should
be precedent. The petition in that
case was similar to this, but the uues-
tion raised here was not raised there,
and hence, the rulings there not being
on full argument or consideration,
ought not necessarily to be followed in
this ease.
''The law presumes that every Off
Ger performs his duty. and so it seems
TO me that before the act of any such
officers can be attacked, it must be
specifically alleged that he did not do
his duty in this ease. Fraud is never
presumed. So that in the ease at bar
every doubt should be resolved against
the pleader.
'The purpose of the contest is to
determine what has been the will of
the people. The presumption is that
the result as announced by the officers
of election is the viii of the people
until facts are alleged that overthrow
this presumption. -
The Chief Justice then called the
contestant, Mr.. Blake. to the stand
and asked him what information he had
and where he got it. on which he based
the allegation that five votes east for
him in the Lihue precinct were count
ed for Baker. He said that the Fri
day after the election he went to Jo-
'seph Ii and asked him what he knew
about the count in the Lihue precinct.
Ii told him that he had kept tally as
the inspectors called off the votes and
that he had made the tally 73 for
Blake and 80 for Baker. instead of 6S
for Blake and 104 for Baker. as the
official returns showed. ii said he had
called the attention of the inspectors
of election to it. but they had de-
clared their own tally correct. Ii said
that Kali had also kept tally and the
next day Blake went to see him. His
S+o+ap,an+S opd ta1lv aUrapd with those