17 Haw. 243 | Haw. | 1905
OPINION OF THE COURT BY
This is an. appeal by the respondent in a quo warranto proceeding from a judgment ousting him, at the instance of an opposing candidate, from the office of supervisor of the county of Kauai, on the ground that the signature upon his nomination petition, which was required (R. L. Sec. 31) to be signed by not less than twenty-five qualified electors and deposited with the secretary of the Territory, were forged. The statute (Id., Secs. Yl, Y2), provides also that the ballots, which are prepared by the secretary, shall contain the names of all candidates “who have been duly nominated in the manner in this chapter provided, and shall contain no other name.” These and other provisions of the general election laws, so far as applicable and except as otherwise provided, are extended to county elections by the county act-. Laws of 1905, Act 39, Sec. 29.
The principal question, and the only one that need be decided, is whether these provisions in regard to nominations are mandatory in the sense that noncompliance with them vitiates the election or merely iii the sense that the officers or persons to whom they apply are obliged and may be compelled to comply with them prior to an election and are subject to the penalties prescribed by the statutes relating to offenses against election laws or to forgery or other statutes. In our opinion, in the absence of a provision to the contrary, the latter is the correct view in so far as noncompliance with the law in regard to nominations does not prevent a fair vote. It was deemed unnecessary to go into this question in the previous cases of Kanealii v. Circuit Judge, on mandamus and prohibition respectively, ante, pp. 1, 9.
The case most relied upon by the petitioner is that of Price v. Lush, 10 Mont. 61 (9 L. R. A. 467), in which the court held
“In Price v. Lush, the doctrine (as to the adoption of the construction of a statute with the statute itself) should have been taken with a modification, which escaped the attention of the court. The Ausralian ballot law was adopted from a monarchical government, — a limited monarchy, perhaps, but still of the nature of a monarchy. The law was brought from such a government to a republic. In the former the tendency is to limit and restrict the electoral franchise. In the latter the tendency is to extend the same. The particular form of ballot law known as the ‘Australian System’ was new to our jurisdiction, but construction of election laws generally was not with us a new field of law; and in the construction of election laws, the whole tendency of American authority is towards liberality, to the end of sustaining the honest choice of the electors.” See also State v. Fransham, 19 Mont. 273 (48 Pac. 1).
Other distinctions between the English and American systems are pointed out elsewhere.
From Blackmer v. Hildreth, 181 Mass. 29, we quote at some length as follows:
“Under our system of elections the voter receives at the polls from the election officers an official ballot, of which he does not know and is not expected to know anything except what appears upon its face; and as a rule it is impossible, as in this case, by an inspection of the ballot to ascertain whether or not there has been any irregularity in the preparation of it. He takes this ballot, sees upon it the names of the candidates, and, having expressed thereon in due form his choice, deposits it in the ballot box. Thus he duly expresses his will upon the paper pr.e-
In Jones v. Stale, 153 Ind. 440, the court says:
“It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in a full and fair expression of the public will, and, from the current of authority, the following may be stated as the approved rule: All provisions, of the election law are mandatory if enforcement 'is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to affect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. Parvin v. Wimberg, 130 Ind. 561; Boyd v. Mills, 53 Kan. 594, 608, 37 Pac. 16, 25, L. R. A. 486; Miller v. Pennoyer, 23 Ore. 364, 31 Pac. 830; Stackpole v. Hallahan,, 16 Mont. 40, 40 Pac. 80, 28 L. R. A. 502; Blankinship v. Israel, 132 Ill. 514, 24 N. E. 615; Adsit v. Osmun, 84 Mich. 420, 18 N. W. 31, 11 L. R. A. 534; McCrary on Elect. §§ 27, 28, 29; Endlich, Int. of Stat. § 433.”
This seems to be a correct statement. See also Brandon v. Navarre, 102 Mich. 259; Bowers v. Smith, 111 Mo. 45; Allen v. Glynn, 17 Colo. 338; Baker v. Scott, 4 Idaho 596.
In some cases emphasis is put upon the constitutional provision that the person or persons receiving the highest number of legal votes shall be declared elected, but we have a somewhat similar provision (in R. L., Sec. 99), which was enacted by reference by the Organic Act (Sec. 64), namely, that “the number of persons to be elected receiving the highest number of votes in any election district shall be declared to be elected.”
In some cases also much has been made of statutory provisions, which are not found in our laws, providing for contests in regard
None of the cases that have come to our attention have gone ■so far as to hold that a fraudulent nomination as distinguished from a merely illegal nomination does not invalidate the election, but, on the other hand, no case, so far as we are aware, has held or intimated the contrary. It seems to us that the reason ■of the rule, which is based upon rights of the voters and the ■absence of a provision making the election void for noncompliance with the requirements for nomination, applies equally in 'both cases.
The circuit judge did not find that the respondent himself was implicated in the fraud or forgery. If he was, and should be convicted, doubtless the office would be vacated or he could be ousted from it under section 18 of the Organic Act.
The judgment appealed from is reversed.