Kulike v. Fern

— 279 — OPINION OF THE COURT BY HARTWELL, C. J. (Circuit Judge Be Bolt Dissenting.) This is a petition by Tamos Kulike and thirty-five others, filed December 2, alleging that they are “duly qualified voters of the election districts of the County of Oahu,” signed and sworn to by all of them, their jurat setting’ forth that “the facts, statements and allegations in the petition were just and true to the host of their knowledge and belief except such matters therein set forth and alleged to be upon information and belief, and as to these matters, things, allegations and statements they verily believe them to be true,” the petitioners praying that upon legal proof being adduced on the “facts, statements and allegations in the petition the court adjudge and decree that John Ü. Lane was duly and legally elected Mayor,” and further that the court require all the ballots cast at the election to be produced before it and that they be inspected and counted in support of the allegations in the petition and that such other order and relief be given the petitioners as is in accordance with law and that the respondent Fern be cited to appear and answer, the allegations being upon the petitioners’ information and belief. The petition itself alleges in substance, beside certain formal averments, that all the votes legally cast for Lane were not counted and that there were forty-six not counted; that in the eleventh precinct of the fifth district more than one-hundred-fifty-seven votes were counted for Fern which were not legally cast for him and that if all the votes legally cast for Lane had been counted for him and only the legal votes for Fern counted Lane would have received a majority of one-hundred-twenty-five and been duly elected; that in the third precinct of the fifth district the inspectors counted only forty-three votes for Lane and failed to count four votes legally cast for him; that in the second precinct of the fifth district the inspectors counted only eight votes for Tumo and failed to count eight which were cast for — 280 — him; that in the ninth precinct of the fifth district the inspectors failed to count five votes for Lane counting for him in all seventy votes instead of seventy-five; that in the fourteenth precinct of the 'fifth district the inspectors counted only seventy-seven votes for Lane instead of one-hundred-four which were cast for him, and that one Crawford, acting as clerk and keeping a tally sheet, did not keep a correct count of the votes cast for Lane, which were one-hundred-four and not seventy-seven as shown by the tally sheet kept by Crawford and returned by the inspectors ; that Crawford, in violation of Sec. 81, Oh. 1, It. L., remained in the space set apart for the polling place and influenced Chinese voters favoring Achi’s election — offered to bet that Achi would receive a majority of the votes from there; that in the eighth precinct of the fourth district the inspectors counted ’only one-hundred-ten votes for Lane instead of one-hundred-twelve which were cast for him; that in the eleventh precinct of the fifth district the inspectors allowed twenty persons to vote after five o’clock p. m. when the polls should have been closed so that the votes so cast were illegally cast, making all the votes cast-in that precinct, being one-hundred-fifty-seven for Fern, seventy for Lane and one-hundred for Achi,” illegally cast; that Lane received twenty-one-lmndred-eighty-eight votes and not twontytwo-lmndred-twelve as tabulated by the clerk of the county and that Lane was duly elected by a majority of one-hundred-twenty-five over Fern. The defendant’s demurrer to the petition, based upon four grounds, the principal one of which was that it did not appear from the petition that the petitioners in any election district or districts had joined in bringing the proceeding, was overruled. Justice Wilder thought that the election districts intended by the statute were those designated in Sec. 2 of the Municipal Act, but acquiesced in the overruling of the demurrer. The Chief Justice and Judge De Eolt thought that the district intended was the one designated in Sec. 1, including the “Island — 281 — of Oahu and all other islands in the Territory of Hawaii not included in any other county and the waters adjacent thereto.” Thereupon the defendant filed his answer including therein the averment that the petitioners were not duly qualified voters of any election district within the meaning of Sec. 57 of the act. At the time set for hearing the petitioners appeared voluntarily at the suggestion of the court as in Brown v. Iaukea, 18 Haw. 131, Cornwell v. Kaine, 18 Haw. 167, and Blake v. Baker, 19 Haw. 264, or in obedience to subpoenas taken out by their attorneys and were examined by the court as well as their attorneys in respect of their qualifications as voters, the districts in which they voted and their knowledge or information concerning the averments made in the petition. From this examination it appeared that thirty of the petitioners had not direct knowledge or information concerning any one or more irregularities which would invalidate or change', the result of the election. Host of the petitioner's had acquired their information from each other or from persons having no knowledge of the irregularities relied upon. The, court then calk'd for argument on the materiality of the averments in the petition relating to the presence of ('raw-ford in one of the polling booths, his talking in Chinese to Chinese voters, and the keeping open of the polls after five o’clock, finally ruling that the averments were immaterial to the cast'. After argument upon the subject the petition was dismissed on the morning of December 22 on the ground that it appeared from the testimony of the petitioners, and was admitted by them, that they had no direct knowledge or information concerning any irregularity which would defeat or change the result of the election, the court filing the. following opinion, Judge I)('. ‘ I Jolt dissenting: “JlAitTWKim, O. J. The opinion of the court is that the' petition must be dismissed upon the ground, amongst other things referred to in the rulings upon the questions argued yesterday, that it appears from the testimony of the petitioners that there are not thirty of them having knowledge or information with — 282 — reference to alleged irregularities in any one voting precinct. The opinion upon this matter, as well as upon the otñers ruled upon this morning, will be prepared and filed. I will now state a few considerations which have led the majority of the court to this conclusion. To begin with the Australian ballot system in force here, which has been adopted in the states gradually during the last twenty years, has undoubtedly accomplished what it was intended to do in removing a great many of the opportunities previously existing for the exercise of coercion, intimidation and cheating at the polls, and it is a significant fact that in the contested election cases before the -court I believe I am correct in saying there has been no instance showing actual fraud as contradistinguished from the legal fraud resulting from violations of the regulations of the voting law, the opportunities still remaining, and as long as human nature continues they will remain- — as long as it continues as it is — of mistakes — honest mistakes— made on the part of the officials — of the inspectors — whether they be in counting wrongly or in improperly or erroneously rejecting or accepting ballots for the one side or the other. And it is also true, that in no community is the result, especially in a close contest, going to be accepted with satisfaction by the losing party. How can they do so knowing the fallibility of human nature — the liability to mistakes of perfectly upright and honest men? Consequently you will find, I believe, in the states and the other territories generally that there are statutes, which we have not, ■which authorize and require a recount and a reexamination of the ballots either upon the request or petition of the defeated party or of a stated number of the electors. The tribunal which entertains those petitions verifies the official results as a matter of simple counting for one thing; they hear any objections made at the time of the reexamination of the ballots as to the validity of special ballots — individual ballots— and pass upon those objections. Exceptions may be taken by either side to the ruling of that, tribunal on matters of law which are taken 'up like ordinai’y bills of exceptions in actions at law to an appellate court which passes upon them. I feel so strongly upon the natural and proper wishes of any community for such a tribunal that it is my intention to recommend an enactment — 283 — on the subject to the legislature, but as the law now stands the legislature has seen fit to intrust to this court the serious responsibility of deciding whether a contest is presented — causes of contest — or not, and if so, the duty of reexamining the ballots. That function was formerly performed with reference to elective representatives by the legislature of Hawaii. Why the legislature transferred that duty to the supreme court I cannot say. it may be — I should like to feel that it was — because it thought that this court would be of a non-partisan nature and that it might safely enough rely upon its integrity. But however that may be, there is the responsibility and we have to meet it. We have no time to examine statutes elsewhere to see what are their requirements of petitions. Under this title “Elections,” and subtitle “Contests,” our statute gives either the losing candidate or thirty of the qualified voters in any election district the right to file a petition in the supreme court of the Territory setting forth any cause or causes why the decision of any hoard of inspectors should be reversed, corrected or changed. “Now what is a contest? It is not an imaginary affair — not that certain voters think there probably were errors — and it is almost sure that there were and always will be errors. Is a contest based on mere belief or upon information more or less definite ? That is to say, is it to be a guessing contest ? We have all agreed that it cannot be, that there must be something definite before this court will consider that a cause making a contest is before it upon which reexamining the ballots either of one precinct or of all is justified, and it is seen that ordinarily recounting the entire vote results from examining the votes of one precinct, since a result in favor of the contestant requires the other party to insist upon our going through with the other precincis to see how they would bring him out. “Now we have come to the conclusion — a majority of us — that the information which would justify us in regarding a contest as presented by thirty qualified voters requires that they shall know or have information, not secondhand, but direct information from those who have personal knowledge of irregularities in at least some one precinct requiring the bags containing the ballots in that precinct to be examined, otherwise any voter having information about iiTcgularities in various precincts can state to twenty-nine others that he has heard so or can state to — 284 — four or five voters that he has heard of irregularities in another precinct, and so on, and the thirty be made up in that way. We think that the statute does not contemplate this. There is something more than responsibility or good faith in signing the peti- ■ tion which is required to present, a contest. I take it that any one of the voters in this county would properly have felt justified, upon hearing from any other voter of the things' alleged concerning the fourteenth precinct and being advised by counsel that those irregularities would be sufficient to invalidate the entire election, in joining with the twenty-nine others in signing the petition, being, unconsciously perhaps, influenced by the feeling that a recount is almost a matter of course, to ascertain 'the correct result of the vote and that it ought in common fairness to be made. “The petition will have to be dismissed. “AYjxixeií, J. I haven’t anything to add except this, that I agree with the conclusion that the petition will have to be dismissed and will put my views in writing and file them later. “J uncus Dio Bolt. I find that I am obliged to dissent. It seems to me that the statute .clearly does not contemplate, as set forth in the reasoning announced by the chief justice, that thirty persons cognizant of the one fact are necessary to sign the petition. As I view it, a duly qualified voter might stand by and observe in vain some act, by which the rights of the citizens would be grossly violated and which -would clearly nullify an election but still be helpless. If the reasons given for the opinion of the court as announced are sound, no matter what rights of the citizen might be thus violated, as contemplated by the election laws, he could not act because twenty-nine others could not be had to join with him upon information and belief, (dearly, the legislature never contemplated that such a thing should exist. “Dautwvell, O. J. T will add this suggestion, that there might be such grave violations of law, known only to one voter present, which -would justifv him or any other voter receiving the information from him, in bringing a wilt of quo ivarranto. I’he courts are not agreed whether the statutory remedies are exclusive or not.’-’ Upon the evening of December 24 an attorney for the petitioners orally requested the court to hear argument upon the — 285 — question whether the statute required that in order that thirty qualified voters sustain a contest they must have knowledge or direct information of any one irregularity which, if shown by the evidence, would invalidate the election. The request was granted and counsel, although unnecessarily, filed a motion for rehearing in which they submit a point not heretofore presented, namely, that the court had no authority to examine the petitioners as to their knowledge or information of the matters charged in their petition. Strictly the motion could be struck from the files but this was not. done and counsel were heard on the new matter as well on December 28. December 29 the following opinion was filed by the court: “According to the practice, in former election contests the defeated candidate could not obtain reexamination of ballots unless upon a showing, which was made in each case, that he had, knowledge or direct information of some fraud, accident or mistake which vould invalidate', or change the result of the election. It must, be a real and not an assumed or hypothetical fraud, accident or mistake to make an issue on which a controversy between candidates can arise. There is no contest or issue of fact or law presented by a statement that a decision of inspectors ought to be reversed, corrected or changed because' petitioners believe, udthout definite information, that the decision was incorrect. The petitioners insist that it is unnecessary that the petition be verified at all and that the court, after answer filed, had no jurisdiction, before hearing evidence, to require the petitioners to prove, any of their allegations. This has not been required further than to ascertain from the petitioners whether they all had knowledge or direct information concerning their charges, the object being to avoid reexamining ballots upon mere surmise of petitioners or others that there were irregularities. One -of the attorneys of the petitioners is consistent in claiming that the law does not require, of any petitioner any knowledge or direct information as to any irregularities charged. In this view any qualified voter, if he can get twenty-nine others to join him in a petition setting forth that any one believes that there has been error of the inspectors, can require the ballots examined and passed upon as well as counted. — 286 — “The statute (Sec. 56) requires that ‘All questions as to the validity of any ballot cast at any election held under this Act shall be decided immediately and the opinion of the majority of the Board of Inspectors of Election at each polling precinct shall be final and binding, subject to revision by the Supreme Court of the Territory as hereinafter provided;’ and further (Sec. 57) that ‘Any candidate directly interested’ (it will be observed that a candidate indirectly interested has not this right) ‘or any thirty duly qualified voters of any Election District may file a petition in the Supreme Court setting forth any cause or causes why the decision of any Board of Inspectors should be reversed,' corrected or changed,’ referring, of course, to decisions as to the validity of any ballots. “The two ways of looking at the subject then are (1) that any thirty voters may dispute the decision of the inspectors in their own district, meaning, as held, the entire Island of Oahu, whether any of them know or have heard of any fatal irregularities or not; (2) that all must have such knowledge or information. In the former view it was suggested by the petitioners at their first argument that their case is like that of a creditors’ bill in which one or more creditors represent all others. In the latter view all of the thirty voters and not merely one or any less number than thirty must combine to present a cause in order to make a contest. In the former case the only responsibility in bringing the petition is that thirty voters desire a reversal of the inspectors’ decision which they believe to be eiToneous. In the latter case, in order to obtain reconsideration of election results, emphasis is placed upon the necessity of a contest or a cause of action by each of the thirty voters in respect to some one or more decisions, which controversy could not exist unless each of them had at least heard of an alleged wrong decision. “The petitioners’ attorneys say that those whom they represent do not understand why the court .allows a contest to be made and ballots reexamined on the petition of one person, he being a defeated candidate, and not on the petition of thirty voters. This is a misunderstanding of the causes, for the court places the petitioners on the same basis applying the same rule to each in requiring some fatal fact within the knowledge or — 287 — information of the petitioner, when he is a defeated candidate, or of the thirty petitioners when they bring a petition. “It 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 knowledge or information but leaves them to its proof, in a controversy of a public nature the court would not perform its duty to the public if it did not require the status of the petitioners not only as qualified voters but as having information and belief of their charges to be shown before having the ballot bags opened. “In the American cases cited by the petitioners it is clearly stated that the object of the notice of a contest of an election is not to perform the function of a declaration at law but to apprise the opposite party that a contest will be made on the grounds mentioned. Our statute on the contrary requires a contest to be presented by the petition. Even in statutes like that of Massachusetts permitting any ten voters to obtain a recount of ballots upon ‘the filing of the proper statement in writing by ten or more qualified voters of the wurnl that they have reason to believe that the returns of the vard are erroneous’ (Opinion of the Justices, 180 Mass. 580), a statement by ten or more voters that others than themselves, or that any less number than ten had reason to believe this, would not comply with the statute. In Lawrence v. Norreys, 39 L. R. Ch. D. 213, also cited upon the claim of the petitioners that it would be unauthorized practice for a court of equity to question the truth of the averment in their petition of their information and belief instead of leaving them to put in their entire case, Stirling, J., said upon this subject: ‘Now, as to that, it is undoubtedly true that as a rule a plaintiff is allowed 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 couceive, when a plaintiff bona jido brings forward a case, in shutting him out 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.): ‘But the jurisdiction of the Court to prevent its process being abused, and to prevent actions being brought which are mere vexation, is original and does not depend — 288 — on the general orders of the Court. * * * * The Plaintiff has not, in my opinion, shewn that he has any reasonable ground for making those allegations of fraud, and. the conclusion which I draw is, that they were made without any reasonable ground for making them.’ (p. 231.) “The inquiry made by the court in this case was justified by precedent as well as upon principle. “A majority of the court find no ground for reversing the former ruling which is accordingly affirmed.” - After service and the filing of a demurrer by the defendant the petitioners filed fifteen affidavits from alleged voters in one precinct, setting out for whom they voted, together with a joinder in demurrer and a motion to set the demurrer for hearing, the defendant then filing a motion to strike the affidavits from the files. All of these papers the court of its own motion ordered to be withdrawn. The court unanimously ruled that the averments were immaterial which related to the inspectors in one precinct allowing twenty persons to vote after five o’clock in the afternoon of the election day when the polls should have been closed, and in another precinct in allowing Crawford within the space set apart for the polling place and that by conversing in the Chinese language he attempted to influence and did influence by words and acts Chinese voters. Tt does not appear that Crawford was within the balloting compartment referred to in Sec. 81 R. L. in which a voter is required to be alone for the purpose of' marking his ballot. There is not enough alleged in regard to this matter or in the alleged attempt of Crawford to influence Chinese voters to indicate a change in the result, or in invalidation of, the election. The allegation in regard to twenty persons voting after five o’clock was also insufficient in the absence of allegation of circumstances rendering it probable, prima facie, that sufficient of the alleged illegal votes were cast for Fern to invalidate or change the result of the election. Lehlback v. Haynes, 54 N, — 289 — J. L. 77; Ex parte Murphy, 7 Cow. 153. For all that appears on the face of the petition, Lane may have benefited by keeping the polls open a little after the closing time. G. A. Davis, A. G. M. Robertson, A. L. G. Atkinson and A. F. Judd for petitioners. E. M. Watson and IF. IF. Thayer for respondent. Petition dismissed.