The Hawaiian gazette., 1909-01-01
FERN IS MAYOR:
RECOUNT DENIED

u ~ ~ YIN 0ehHt@0
The mayoralty contest is decided. 10.
seph J. Fern is mayor-eleet of the City
and County of Honolulu, and will take
his oath of Office on Thursday. The
Supreme Court yesterday decided ad-
versely to the contentious of the petit
TONERS for recount, reaffirmed its
previous rulings, and the order dismiss
ing the petition stands. There will be
no recount. The decision was by ma
jority IF the court, the opinion being
rendered by Chief Justice Hartwell. 1t
is understood that Judge De Bolt does
not eorcur in the opinion, though he
gave no dissenting opinion.
The decision of the court is based
strictly on the law as the court con.
strues it. AS to the policy of recounts,
Chief Justice Hartwell said that all the
members of the court felt very strongly
that recount should be matter of
course in every instance. This, he sug-
gested, might be done by Board of
for the work and should be done on the
statement of number of voters, per-
haps ten, as is the custom under the
Massachusetts, statute. The Boards of
Supervisors, he suggested, might be ap-
propriate bodies for such duty. I'm
der such a system if the validity of any
ballots in the recount should be made
a question by either side, this, as a mat
ter of law, might then properly come up
before the court.
The opinion of the court is as follows:
According to the practice in former
election contests the defeated candidate
could not obtain denomination of bal
lots unless upon showing, which was
made in each case, that he had knowl-
edge or direct Information of some fraud,
accident or mistake which would invali-
date or change the result of the cleo
ton. 1t must be real and not an as
sumed or hypothetical fraud, accident
or mistake to make an issue on which
controversy between candidates can
arise. There is no contest or issue of
fact or law presented by statement
that a decision of inspectors ought to
be reversed, corrected or changed be-
cause petitioners believe, without def
mite information, that the decision was
incorrect. The petitioners insist that it
is unnecessary that the petition be veri-
fed at all and that the court, after
answer filed, had no jurisdiction, before
hearing evidence, to require the petit
TONERS to prove any of their allega-
tions. This has not been required fur
| Their than to ascertain from the petit
TONERS whether they all had knowledge
or direct information concerning their
charges, the object being to avoid re-
| examining ballots upon mere surmise of
petitioners or others that there were
Irregularities. One of the attorneys of
the petitioners is consistent in claiming
that the law does not require of any
petitioner any knowledge or direct in
formation as to any Irregularities charg.
ed. In this view any qualified voter
if he can get twenty-nine others to join
him in a petition setting forth that
any one believes that there has been
error of the inspectors, can require the
ballots examined and passed upon as
well as counted.
The statute (Section 56) requires that
can questions as to the validity OF
any ballot east at any election helt
under this act shall be decided imme
diately and the opinion of the majorit,
of the Board of Inspectors of Election
at each polling precinct shall be fina
and binding, subject to revision by tn,
Supreme Court of the Territory as here
matter provided" and further (Sec
ton SD that "Any candidate directl,
interested" (it will be observed that
candidate indirectly interested has no
this right cor any thirty duly qualifie,
voters of any Election District ma,
file a petition in the Supreme Cour
setting forth any cause or causes VIII,
the decision of any Board of Inspector
should be reversed, corrected or chang
ed" referring, of course, to decision
as to the validity of any ballots.
The two ways of looking at the sub
ject then are () that any thirty voter
may dispute the decision of the inspec
tors in their own district, meaning
as held, the entire Island of Oahu
whether any of them know or hav