The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1910-12-09
FERNS Demurrer Is Sustained
by Supreme Court in Careful
Opinion.
OlsSENTSIN PART
Ballots Cast After Five O'clock
Are VaIid-MoCandIess Is
Roasted.
(From wednesday Advertlser.l }

CFrom Wednesday Advertser.)
Sustaining the demurrer of Mayor Fern
to the Republican petition to unseat him
and denying the Republican petition
for a rehearing, the territorial supreme
court yesterday fairly blasted the hopes
of John c, Lane to become mayor of
Honolulu after January next. George
A. Davis, spokesman of the Republican
! counsel, is now said to be drawing Up
further papers pursuant to the court s
leave to file an amended complaint and
will continue the fight.
The decision Of the court, written by
Justice Perry and concurred in by Jus.
tice De Bolt, was dissented from IN
part by Chief Justice Hartwell. A ma.
jority opinion was rendered by the lat
ter but this found but additional
grounds for sustaining the demurrer and
dissented from the majority report IN
matters of law only.
Both opinions were carefully prepared
and together will probably become one
of the most important rendered by the
tribunal when applied to future cleo
tions. All past election laws whtgn
might have influenced the existing ones
or which might have been applied to
the present case were consulted for The
decision.
After stating that the casting of thr
ballots in the manner described in tue
petition permitted a question of their
validity but the relation of the IN
validity to the petitioner was wholly
distinct matter, the opinion continues:
cit does not appear from the pCti-
tion that the inspectors made any de
cisiOn' concerning the ballots claimed
to have been exhibited (by the voter
to others). Since the petition is heid
amendable in certain respects, it be-
comes necessary in order not to en-
courage the petitioner to return into
court with an amended petition simply
| to be then told that the court has no
! jurisdiction to consider further whether
there was n decision of the inspectors
as TO those ballots. In our opinion
there was. Acts speak louder
than words and what more effective een
there be as an announcement of the
conclusion reached than the acceptance
or the rejection, as the case may be,
of ballot2 For example, the statute,
at least appearing to contemplate n
closing of the polls at five 'clock and
the polls having been kept open until
siX-thirty could anyone have been mis-
led or left in ignorance after the ac-
ceptance and counting of the sixtv-
u four ballots as to the decision of the
inspectors that those ballots were valid ?
4 We think not.
i Valid or Invalid?
"A ballot may be cast which is not
yet physically in the box. 1t is cast
when the voter has exhausted all rea-
sonable efforts to have it placed in the
box. Inspectors certainly are not COM
i pellable, closing their eyes to irreg liar
ity and to all glaring causes of Invalid
ity, to accept every paper offered them
as ballot and put it in the box. If a
J, voter, after receiving blank ballot
| openly and defantly leaves the polling
place and marks his ballot outside aG
) the dictation and in full view of a can
!, didate inspectors may then de
eide that the ballot is invalid and may
! reject the same
"The mere acceptance, therefore, of
the ballot and the placing of it in the
4 box if done with knowledge of the ex-
hibiting was decision within the
!, meaning of the law
After having carried the argument
thus far, the majority opinion continues
to discuss the court 3 power of revision
over the " decisionn of the inspectors
and finally discusses the question of
the validity of ballots, according to
law, cast after five o'clock. After
quoting authorities and statutes, it
says:
!; "There is no provision in the revised
| a ln4 snt. a 4
shall not be received or shall be in.
h valid The object of the election was
a to obtain the free and untrammeled ex.
preston of the viii of the voters con.
r cerning the choice of candidates fol
q the Office of mayor. There is no conten.
tion that this end was not accomplish
!. ed. Voting after five O'Clock and until
six'thirty did not interfere with the de
n sired expression of the voters choice
n We do not mean to say that cases may
!. not occur of violation of the statute
4 in this respect so gross, as, for example
the receiving Of votes after midnight ,
Concluding this argument, the opin
ion says: awe think that the allega
tions in the petition concerning the re
ceipt of votes cast after five oclocl
are immaterial.
Leaders Roasted.
While sustaining the Democratic de
murrer the action of the Democrat,
leaders as complained against in In,
:. petition, was severely criticized, ia,
opinion saying in this regard:
"The acts Of McCaudless and VOL
e ter, In so far as they were contrary I,
a the law, do not Of themselves invalidat
o the election or any of the votes cast
The statutes do moi 80 provide express
. y and must therefore within the rule
above mentioned be regarded as dree
= tory The remedy " any, is by fine o
: Imprisonment under chapter nine OF ~
!, revised laws need scarcely be addo
' that such conduct Is highly repre
7 htnslhe and ought 20 bo punished /
. tue Law permits h,
"ln our opinion the demurrer ahoul
De sustained nu tho ground NOT tha