Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1910-12-06

ccsslty or Justification for requiring
any moro formal. more definite or dit
fcrcnt question" concerning exhibit.
cd ballots than concerning any other
ballots
II would be impracticablc. further,
to hold that questions" refers. In
some classes Of CAGES, to n mental
state or process In the minds or the
inspectors that II is essential, In
other words, that the inspectors In
counting each ballot observe the al
legged ground of the iuvalidity. II II
were so held. would distinction he
made, as to the power of this court to
review, between markings which were
observed by inspectors and markings
which were not? Would Il be made a
question Of fact, In each instance de-
tcrminable upon the evidence Of the
Inspectors? And how would the juris.
diction be affected. for example. by a
failure of memory on the part of the
inspectors as to whether or not they
had at the time observed the possible
deicct?
In our opinion, by receiving and also
by counting the ballots cast after FIVE
o'clock and the exhibited ballots, IL
with knowledge, the inspectors Gacli.
cd, fayorably to the voters, the "qucs
tion" Of the possible invalidity OF those
ballots and those decisions arc now
subject to revision" by this court un-
der section sc, upon a petition duly
filed under section 81
Were the ballots cast after five
o'clock invalid? II. L.. Sec. IS. Pre-.
scribcs that The polls shall be open
cd by the inspectors ut 8 of the clock
upon the morning of the election day.
and shall be kept open continuously
until . of the clock In the afternoon
of said day. unless all Of the register
polled their votes previously to that
time. after which the polls shall be
closed and the votes counted as in
this chapter provided" II may be no
ted In passing that while II is requir.
ed that the polls be kept open until
five o'clock. there Is no express prohi
bition that they may not continue open
after Ave o'clock. II is, indeed pro
vidcd that the votes shall be counted
after five. but how much after OF
whether Immediately after is not stat.
ed. II may be that II was not even an
rrcgularity to receive the sixty.four
votes. particularly IL. as In Kulike VS..
Fern. 10 Haw. 27S, the voters were all
within the polling place before FIVE
o'clock. However that may be. and
even II there was an irrcgularity the
ballots were In our opinion not illegal.
The provision is directory only. There
Is 10 penalty for its violation save
such as may be found IN chapter o..
relating to Offonscs Against Election
'"F, Wy NtN VI hI' VI
for the offending, inspectors or, pos
sibly. any ono melting them to the
commission of the oifcnsc. There Is
no provision that votes cart aftor five
o'clock shall mot be received or shall
be invalid. The object of the election
was to obtain the free and untram-
mclcd expression of the will of the vo-
ters concerning the choice of candi-
dates for the Office of mayor. There
Is no contention that this end was not
accomplished Voting after five
o'clock and until $3.50 did not inter-
fere with the desired expression of
the voters choice. We do not mean
to gay that cases may not occur Of n
violation of the statute In this respect
so gross, as, for example. the recciv.
ing of votes after midnight, as to re-
uuire declaring the votes so received,
and perhaps the whole election, void.
But this is not such a crse,
Tho authorities on this subject are
not in entire accord The weight OF
reason is In support of the view just
prescrs-d. While statutes differ in
different Jurisdictions, and while
therefore, not as much aid is TO be dc,
rived from decisions elsewhere as
might otherwise be the case, still a
few quotations will not be out Of place
| "If the law itself declares. spccl
fed irregularity to be fatal, the courts
will follow that command, prospect
i've OF their views of the Importance
Of the requirement In the absence Of
such declaration, the judiciary will en-
kdeayor. rs best they may to discern
whether tho deviation from the pre-
scribed forms of law had or had not
so vital an influence on the proceed
ings as probably prevented a free ant
full expression of the popular will. u
II had. the irrcgularlty Is held to viii