The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1909-01-08

to adduce his evidence in proof of the
controverted fact This right is in
herent and no court can rightfully take
it from him.
These are plain. simple rules, but
/ they are indispensable to the due and
orderly administration of Justice. And,
accordingly as they and the principles
upon which they rest are observed, or
the contrary. determines the difference
! between a government by law and a
government by men. The former pro
notes the good order, happiness and
4 prosperity OF people, while the lat
ter tends to foster tyranny, oppression
/ and injustice.
| 1t IS inevitable, that whenever a
| court departs from the we'll defined
channels of judicial procedure, or
| passes beyond the realms of the law,
however worthy the purpose or motive
may be for SO doing, it at once enters
| upon the boundless domain of arbi-
| trary power. Hence, the preliminary
| examination Of the petitioners by the
| court after an issue of fact was join
ed and the summary dismissal of the
petition, without permitting the petit
| TONERS to offer any evidence in sup
| port thereof, was. in my opinion, in
conflict with those vital principles just
| alluded to, and was wholly unwar
ranted.
| Such procedure, if had in civil actions
| inter parties. would result in the sum
mary dismissal of many a meritorious
cause in which the plaintiff, having no
personal knowledge of the facts set
e. h INT
necessarily would be obliged to rely
for his proof on the testimony of others,
and sometimes even on the testimony
Of the adverse party.
1t cannot be rightfully assumed that
the petitioners expected to maintain
this contest on their information and
belief, but upon the sworn testimony of
their witnesses able to testify of their
own knowledge as to the facts and mat
tiers set forth in their petition, in the
same manner in which parties in any
other cause prove their contentious.
Counsel for petitioners informed the
court that their witnesses were in at
tendance and ready to be sworn and to
testify, but the court refused to hear
them, or allow the petition to be amend
ed by adding other names thereto %
Mont. 497). and thereupon summarily
| dismissed the petition. To my mind
this was repugnant to the inherent prin-
ciples of right and justice.
If the facts as set forth in the petit
tion were true, then it follows that the
summary dismissal of the petition was
a grievous wrong, not only to the de-
| feated candidate, but to the entire COM
munlty.
With regard to the so-ealled prece-
dents cited in justification of the pre-
| liminary examination of the petition
ers, submit that, for the reasons al
ready stated, thew should not be fol
lowed, even though they may be in
point 1t does not appear, however,
that the court in any of them went as
| far as in this case.
/ Presidents, if found to be contrary
to reason and justice, should not be
| followed "For,' as Blackstone says:
off it be found that the former decision
is manifestly absurd or unjust it is
declared, not that such a sentence was
bad law, but that it was not law; that
is, that it is not the established Gus
| tom of the realm, as has been erro
neously determined
Moreover, the doctrine of stare de
cisis, except when the decisions have
settled a rule of property or involve
contractual rights, is not strictly ap
piled.
! With regard to the holding of the
court that each petitioner was obliged
to have. knowledge or direct infOrma
ton of the same irregularity, mistake
or fraud as set forth in the petition
and also that each be required to show
under oath, on preliminary examina
ton conducted by the court, not by
counsel under the supervision of the
court, that such knowledge and infor
nation was correct. before an exam
ination of the ballots could be had,
find it beyond my comprehension tt
conceive upon what possible theory The
court was able to so expand and en-
large the plain and explicit language
of the statute in this regard.
As [ view the matter the court re
, quired something of the petitioner
, which the statute clearly does not re
quire of them The court attempted
: to import into the statute provision
which it does not contain.
All that the statute requires is tina
Inc petition snail SET f0ftn = cause
or causes why the decision of any
Board of Inspectors should be reversed
corrected or changed. 1t will thu
: be observed that the statute does no
require that the petitioners shall hav'
either knowledge or information of thu
grounds of the contest, much less tt
be obliged to submit themselves to
/ preliminary examination such as wa
required of them in this case.
, The statute does not even require
that the petition shall be verified b,
the oath of petitioners. And all tina
is required by way of showing that TIL
3 contest is made bona fide is that TIL
petition be filed by thirty qualified
t voters and at the same time deposi
| $25 as costs of court. The Legislature
deemed this sufficient and the court cal
/ require no more. One qualified vote
l could file the petition as well as an,
: number of voters could, but evidentl,
the legislature, in considering the in
D terest the public has in an election con
S test, concluded that more than one wa
1 necessary or proper as a guarantee o
S good faith. Hence, the reason for re
curing that the petition be fled b.
I thirty duly qualified voters. And thi
hainu compliad with +ba Iaoi tura no