The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1910-12-06

be reversed or changed in a proceed
ing brought under Section 81, Act lis,
S. L. 1907 The petitioner does, not
aver in his petition that any such
question came before the board for it's
decision or was decided, unless count
ing the sixty-four ballots cast after
five, o'clock is a decision, in the abb
sence of any question raised, that
those ballots were valid. A ques-
ton of the validity of the ballot is
not involved in the inspectors duty,
if such be their duty, to close the
polls at five o'clock. If any wrong is
done or mistake make by them in
keeping open longer it might come
under the head of 'malconduct' and be
the cause of contest under such sta
tutes as those of California. Giving
the broadcast scope then to our sta
tute and assuming solely for the pur-
pose of this case, and not as a prece-
dent for future cases, that it was un
necessary that any question should be
presented for the inspectors to pass
upon concerning the validity of the
ballots but that their mere act of
counting ballots is to be treated as a
decision, still it is clear that case
such as is authorized by the statute,
is not presented by the petitioner.
THE court being agreed that no
cause Of contest is shown by the ac-
ton of the inspectors IN keeping the
polls open and counting the votes cast
after five o'clock, the only question on
which the court has not agreed is up
on the necessity of a decision upon
the validity of ballots cast by voters
who had wilfully exhibited them. If
acceptance and counting of such bal
lots were regarded as deciding that
they are valid, and if the inspectors
have not set the ballots apart for iden-
LITIGATION in order that their decision
may be reviewed in a contest upon it's
correctness, then in every such in
stance, and whether the inspectors
were right or wrong, as those ballots
are not before us, it would be impos-
sible to take evidence of the voter or
of others of the exhibiting or of its
wilfulness, for it may be done limo
Gently and others may not have seen
the names voted on the ballot.
IF violations of election laws by
inspectors, voters, candidates or 9TH
ers make an election illegal, it might
be so decided in quo warranto pro.
ceedings in which the court passes up.
on the seriousness of the violations OF
law from their possible effect upon the
election or upon the law being manda
tory, whatever the result of its VIC
lation, but not on a contest upon de-
cisions of inspectors which have not
been made and to which the statute
authorizing election contests does moi
refer The effect of this conclusion
on future elections will perhaps be
that the inspectors, voters and can
didate will be more alert and observe
, the requirements of the law and any
violations thereof.
81 agree that this case is not to be
decided on 'technicalities,, term oft
en- used for refinements of law, but
on the broad and only safe ground fol-
any judicial tribunal to take, namely
trat, as / think, the law does not au
thorise the case to be heard or decided
on any of the grounds named in the
petition. To decide otherwise would
be to usurp legislative functions,-a
thing which is abhorrent to free insti
buttons. No matter how urgent the
demand for the exercise by the court
of authority not granted to it by the
legislature, the answer must be, the
court declares and does not make the
law
81 agree that the demurrer should
be sustained and the petition dismiss
ed on the grounds named in the OPT
MON of the majority, but also think
that for the reasons above named
there was no decision in fact or sub
stance of any ballots having beer
wilfully exhibited, and that the demur
err ought to be sustained on thai
ground also. In that respect only