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

each in requiring some fatal fact with
in the knowledge or information Of the
petitioner, when ne is a defeated can
didate. or of the thirty petitioners
when they bring petition.
'Tt is urged by the petitioners that
the court has no authority to raise
the question as to their knowledge or
information. the question not being
raised IN the answer. The answer,
however, neither admits nor denies the
petitioners averment Of their knowl-
edge or information but leaves them
to its proof. In a controversy of a
public nature the court would not per-
form its duty to the public if 1T did
not require the status of the petition
ers not only as qualified voters but
as having information and belief Of
their charges to be shown before hay-
ing the ballot bags opened.
I'm the American cases cited by the
petitioners it is clearly stated that the
object of the notice of contest of an
election is not to perform the function
of a declaration at law, but to APP
prise the opposite party that contest
viii be made on the grounds mention
ed. Our statute on the contrary re-
Qures contest to be presented by
the petition. Even in statutes like
that of Massachusetts permitting any
ten voters to obtain recount of bal
lots upon 'the filing Of the proper
statement in writing by ten or more
qualified voters Of the ward that they
have reason to believe that the re-
turns of the ward are erroneous
Opinion of the Justices, 1876 Mass,
$50, statement by ten or more vot-
ers that others than themselves, or
that any less number than ten had
reason to believe this, would not COM
ply with the statute.
SIN Lawrence V. Norreys, SO 7. r.
Oh. D., 213, also cited upon the claim
of the petitioners that it would be I'M
authorized practise for a court of
equity to question the truth of the
averment in their petition of their in
formation and belief instead of leav-
ing them to put in their entire case,
Stirling, j., said upon this subject:
Now, as to that, it is undoubtedly
true that as rule a plaintiff s al
lowed in this court to state his case
in the first instance without in any
way verifying it by oath; and the
court ought to be slow. as I conceive,
when a plaintiff bona fde brings for
ward a case, in shutting him ont from
stating it, and from trying it in the
manner provided by law (p. 225).
Upon appeal, however, this ruling was
reversed, the appellate court saying
Cotton, l.. j.: BY the jurisdiction
of the court to prevent its process be-
ing abused, and to prevent actions be-
ing brought which are mere vexation,
is original and does not depend on
the general orders of the court.
The plaintiff has not, in my opinion,
shown that he has any reasonable
ground for making those allegations of
fraud, and the conclusion which | draw
is, that they were made without any
reasonable ground for making them
Up. 23D.
"The inquiry made by the court in
this case was justified by precedent as
well as upon principle.
GA majority of the court find no
ground for reversing the former ruling
which is accordingly affirmed. -
After service and The fling of a
demurrer by the defendant the petition
ers fled fifteen affidavits from alleged
voters in one precinct, setting out fol
whom they voted, together with join
der in demurrer and a motion to set the
demurrer for hearing, the defendant
| then filing a motion to strike the affida
Wits from the files. All of these paper.
! the court of its own motion ordered tt
be withdrawn.
The court unanimously ruled that thu
averments were immaterial which re
lated to the inspectors in one precinc
allowing twenty persons to vote aftel
five clock in the afternoon of the elec
ton day when the polls should bav,
been closed, and in another precine
in allowing Crawford within the spac,
set apart for the polling place am
that by conversing in the Chinese Ian
guage he attempted to influence and dit
I influence by words and acts Chimes
voters.
1t does not appear that Crawford wa
within the balloting compartment re
ferred to in Sec. 81 R. L. in which
voter is required to be alone for tn
purpose of marking his ballot Tier
is not enough alleged in regard to thi
matter or in the alleged attempt o
Crawford to influence Chinese voters t.
indicate change in the result, or il
invalidation, of the election.
/ The allegation in regard to invent,
persons voting after five clock wa
also insufficient in the absence of allega
ton of circumstances rendering it prob
able, prima facie, that sufficient of tn
alleged illegal votes were cast for Fer
to invalidate or change the result o
the election. Lehlback V. Haynes. 5
N. J. L. II; Elk parte Murphy, z Cow
153. For all that appears on the fac
of the petition, Lane may have bene
flied by keeping the polls open littl
after the closing time.
Petition dismissed
G.. A. Davis, A. G. NJ Robertson, A
l.. c. Atkinson and A. F. Judd for pet
TONERS; E. M. Watson and W. w. Thay
er for respondent.
Concurring Opinion of Wilder, J.
Section 81 of the Municipal Act Pre-
vides that "Any candidate directly in
, terested, or any thirty duly qualifie,
: voters of any election district NAV fiji
petition in the Supreme Court of tn
: Territory setting forth any cause o
causes why the decision of any boar
: of inspectors should be reversed, col
| 81 Il