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SUNDAY BULLETIN, HONOLULU. H. T., SUNDAY,
APUIL , ' 1902.
w , m
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PIANO taught In six months; new
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DOWERS' MERCHANT PATROL AND
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WANT your whiskers nmputatcd? Go
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WANTED 500 pianos to tunc. Ad
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TO LET Modem house on Llllha St.;
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TOR RENT Furnished housekeeping
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FOR RENT A nice largo room, suit
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Pilvato family. Board If desired.
169 School St. bet. Fort and Emma.
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KELLETT &. ROBINSON Attorneys-at-Law;
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Phono Main 153.
F. M. BROOKS Attorney; rooms 9-10,
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CARLOS A. LONG Attorney; 15 Kaa
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J, M. DAVIDSON Attorney-at-Law;
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GARDNER K. WILDER
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E. J. WALKER Coffee Broker; room
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C. A. COWAN 1186 Union SL, opp.
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FOR SALE Eggs from puro bred
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DR. ALBERT E. NICHOLS Dentist,
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DR. DERBY Dentist; Fort and Hotel
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KATHARINE J. MaeKAY, M.D., CM,
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V. H. P0UL8EN minting and paper
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JUDD & CO, LTD. Building lots nnd
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M. G. 8ILVA Agent for real estate,
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PRIMO BEER Is good If It Is kept
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E. MORIKUCHI U Hotel St, nr. Nu
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ALBERT BERNDT Tailoring and re
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G. DIETZ Watchmaker nnd Jeweler,
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J. W. A. REDHOUSE Watch and
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ISLAND OF MAUI, LAHAINA.
8UGAR ESTATES, MAGNIFICENT
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Weekly edition of trTe Bulletin $1 a
On the Ballots For Election
"In our opinion the Secretary has
acted according to law to far as ap
pears In this case and the plaintiff Is
not entitled to have the name of Mr.
Dreler omitted from the official ballot.
Tho foregoing Is the conclusion of
tho unanimous opinion of tho Su
preme Court upon tho submission with
out action of William W. Harris vs.
Henry E. Cooper, Secretary of tho
Territory of Hawaii. Robertson &
Wilder for W. W. Harris; II. E. Cooper
In person; Kinney, Ballon & McClan
alian for the nominators of August
By the syllabus of opinion the law
of the case Is thus laid down:
"Under the provisions of tho elec
tion law that candidates shall bo
nominated by writing signed by not
less than twenty-five qualified electors
of the district and deposited together
with twenty-five dollars with tho Sec
retary of the Territory not less tlinn a
prescribed time before tho election,
and that the ballots shall contain the
names of nil candidates so nominated
and no other name, tho Secretary can
not lawfully Inquire Into nnd pass up
on tho qualifications of a candidate or
dccllno to place his namo upon tho
ballots If he Is duly nominated, even
though he, Wo Secretary, may believe
him to lie disqualified, nor can the
courts compel him to do so, al
though tho Secretary may Inqulro In
to and pass upon the question of due
nomination and omit fioin tho ballots
the name of a candidate if the law
prescribing the requirements of a duo
nomination hns not been complied with
and may be compelled by tho courts to
perform his duty in that repect."
Chief Justice Frear Is the writer of
the opinion. Justices Gnlbratth nnd
Perry signing It with him. The body
of the opinion Is ns follows:
This Is a submission on ngrecd facta
under Civil Laws. Section 1255, as
amended by the Laws of 1893, Act 18.
Tho practical question for our deter
mination Is whether under the election
law the Secretary of the Territory, who
has chnrgo of the printing of ballots,
should omit thcrcfiom the name of a
candidate for representative who though
duly nominated is not eligible. Moro
broadly staled, the question Is wheth
er tho Secretary can go behind tlw
question of due nomination and Inquire
Into and pass upon the question of tho
qualifications of the candidate.
The facts agreed on are In substnnco
as follows: A special election was call
ed for April U, 1902, to fill a vacancy
caused by the death of a member of tho
Houso of Representatives, Tho plain
tiff was duly nominated and Is quali
fied to bo a leprcscntutlvc. One August
Dreler was also duly nominated but
Is not qualified to be elected. On
April 1, 1902, the plaintiff filed n pro
test with tho Secietary against placing
Mr. Drclcr's nnmo upon the ballot. On
the next dny the Secretary overruled
the protest and notified tho plaintiff ot
his, the Secretary's determination to
place Mr. Dreler's name upon the bal
lots. Tho Secretary Is now causing the
ballots to bo prepared and printed
with Mr. Dreler's as well as the plain
tiff's namo upon them. Tho Secre
tary's solo leason for overruling tho
plaintiff's protest und determining to
place Mr. Dreler's name on the ballots
Is his belief that he Is without author
ity to Inqulro Into and pass upon the
qualifications of a duly nominated can
didate. How Disqualified.
Tho gt omul stated for Mr. Order's
disqualification Is his failure to meet
the requirement of Section 40 of tho
Oiganlc Act, "that In order to bo ellgl
blo to be a member of the House of
Itepiesentntlves u person shall, at the
time of election," besides possesslnti
other enumerated qualifications, "be
qualllleu to vote for representatives in
the dlstrkt fiom which ho Js elected."
Tho reason why he Is not qualified to
vote for representatives in that dis
trict Is not stated, though wo under
stand It to bo that he Is not a registered
voter in that district as required,
among other qualifications, by Section
CO of tho Bame Act, "In order to bo
qualified to vote for representatives."
The fact being undisputed for the
purposes ot this case that Mr. Dreler
Is not eligible to be a representative,
the solo question Is whether tho Secre
tary should omit his namo from the
official ballot, or rather whether this
court should compel htm to do so. The
statutory provisions Involved are Sec
tions 50 nnd 89 of tho election rules.
Civil Laws, pp, 804, 815, as amended bi
Section 64 of tho Organic Act. Tlics
read as follows:
Conditions of Candidacy.
"Section 56. No person shall be nor-
milted to stand as a candidate for elec
tion to tho logiBlatuio unless he shall
bo nominated nnd sa requested In writ
Ing, signed by not less than twenty-fivo
uiuy qualllleu electors of tho dlstilct In
which nn election Is ordered, and In
which he Is requested to bo n candidate.
Such nomination shall, except as hero
limftcr provided, be deposited with thu
Secietaiy of tho Teirllory not less than
thirty days before the day of a gen
eral election or twenty days prior to o
special election, except on the Island
of Oahu, where such nomination glmli
be deposited not less than ten days
before the day of any election,
"Each nomination Bhall be accom
panied by a deposit of twenty-five dol
lars, on account of tho expenses at
tending the election, which amount
Cooper Right In
PLACINQ DREIER'S NAME
shall be paid Into the treasury as a
"Upon receipt at the omce of the Sec
retary of the Territory of a nomina
tion of n cnndldate, the day, hour and
minute when It was received shall ba
"Provided, however, that In case of
the withdrawal or death of a candidate,
a new nomination or nominations to
replace the name of the person who has
died or withdrawn, may be made, Ir
respective of such limit of time, with
the Inspectors ot election of the dis
tricts in which death or withdrawal
has taken place, and the fee herein re
quited deposited with them. In such
case a voter, while voting, may write
th cnamc ot any such new candidate
upon tho ballot, and vote for It as hero
"Section 89. The ballots used In any
representative election district for the
election of representatives shall be of
uniform size, weight, shape, thickness,
nnd of tho snmo sizing color,
"Except ns provided In Section 50
hercof( the ballots for each rcprcsen
tatlvc election district shall contain
the names ot all candidates for repre
sentatives for such district who liavo
been duly nominated in manner herein
provided, and shall contain no other
Limitations on Secretary.
The last part ot Section 89 Is clear.
On the ono hand tho ballot SHALL
CONTAIN the names of ALL CANDI
DATES who have, been DULY NOMI
NATED IN MANNER HEREIN PRO
VIDEO, that is, duly nominated under
Section 66. On the other hand It shall
not contain the name of any person not
duly nominated. In other words tho
Secretary not only may but should de
cline to place upon tho ballots the
name of any candidate If his nomina
tion Is not signed by at least twenty
flvo persons, or If among the signers
there arc not at least twenty-five quali
fied electors of the district, or It It is
liot filed with the Secretary within tho
prescribed time, or If it Is not accom
panied by a deposit of twenty-fivo dol
lars, etc. Tho first part of Section G!
Is to the same effect, that "no person
shall be permitted to stand ns a can
didate for election to tho legislature
unless," etc. Tho duty of the Secretar
In theso respects Is clearly prescribed
by the statute. His duty nlso Is minis
terial and the courts may enforce Its
performance. But tho Secretary Is not
authorized to omit the nnme of a can
didate who has been duly nominated,
much less Is there a duty on his part to
do so even though ho believes tho
candidate to bo Ineligible, and the
court cannot compel him to do what It
Is not his duty to do .
Possible Evils Imaginary.
Counsel for the plaintiff suggest
many evils ns possible, or as likely to
occur, if the names of persons whoyire
ineligible nrc allowed to be placed up
on the ballots and counsel for tho
nominators of Mr. Dreler suggest other
evils If the many dcllcato and diffi
cult questions that might arise as tn
the eligibility of a candldato were to be
determined by a single executive offi
cer. Such evils ara largely Imaginary.
Practically few of them would be like
ly to occur at all ami they but seldom
and there arc other remedies provided
than through the Secretary or the
court. If tho electors should vote for
an Ineligible candidate nnd If he should
receive the largest number of votes and
if a certificate of election should bo Is
sued to him, tho houso of which ho
might claim to be a member could so
ascertain and declare him not elected.
The very fact that "each house shall
be the judge of the elections, returns,
and qualifications ot Its members" (Or
ganic Act, Sec. 15) Is sufficient reason
why neither the Secretary nor tho
courts should undertake to pass upon
tho question ot the eligibility of a can
didate except when It Is clearly their
duty to do so. The Jurisdiction of each
house of the legislature is exclusive In
such cases. Each branch of the gov
ernment must respect the prerogatives
of each of tho others. The action ot
the courts In requiring executive ofll
ers to perform ministerial duties under
the election law is not a usurpation ot
Jurisdiction vested exclusively In the
respective houses of the legislature,
but on the contrary Is often an aid to
that jurisdiction by compelling the per
formance of nets necessary to enable
the houso to act. The question of the
eligibility of a candidate Is different, It
may be, though as lo this wo express
no opinion, that even that question
would have to ba passed upon by tho
courts In somo cases Incidentally and
oven that It would bo the duty of ench
house to apply the law as so construed
by the courts, though not compellable
to do so.
Prevention of Absurdity.
As nhcady stated it Is agreed for the
purposes of this case that Mr. Dreler
is Ineligible to membership in tho
House of Representatives, and since
the statute does not In terms author
ize the Secretary to pass upon tho
question of eligibility, the only ground
that can Le urged In- suppqrt ot tho
view that ho should omit tno name
from tho ballots or that the court
should compel him to omit It, Is the
supposed absurdity of placing on tho
ballots tho namo of a person who can
not bo elected to or hold a seat In the
house, and that therefore the Secretary
Is on general principles or by Implica
tion given the power to pass upon the
question ot eligibility and to omit the
namo of an Ineligible person, or at
least that tho covt maV prevent the
perpetration of an absurdity. The ans
wer to this Is that the duties of tho
Secretary aro pi escribed by tho sta
tute and tho court Is not n panacea for
all wrongs or evils. The courts act
within certain defined limits. The mat
toi In question is without those limits
both because the court cannot compel
the performance of what Is not a duty
under the statute and because the mat
ter In question Is within the proper
sphere of another branch of the gov
The samo argument, If sound, would
apply to some extent, If not with equal
force, to tho powers or duties of other
officers who may be called upon to act
at other stages under tho election law.
For Instance, should the Inspectors of
election In any precinct rightfully take
It upon themselves to decline to count
tho votes cast for a candidate whom
they bcllovcd to bo Ineligible or to send
the number of votes cast for such can
didate to tho high sheriff or sheriff, or
should the latter decline to Issue n cer
tificate of election to a candidate who
has received the largest number of
votes bccatiso ho believed him to be
Ineligible? Or Should the courts step
In nt each stage and compel bucIi ac-
tlon on the ground that the cnndldate
Is Ineligible? Perhaps tho most In
structive ease that has come to our
notice In this connection is that of Peo
ple vs. Board of Canvassers, 129 N, Y
360. In that caso a candidate for sena
tor was Ineligible but bad received the
greatest number of votes. The State
board of canvassers declined to Issue
a certificate of election to him. He ap
plied to the court for a writ of manda
mus to compel them to do so. Tho
court, consisting of seven Judges, was
unanimously of tho opinion that tho
duty of the board so far os It went was
ministerial and enforceable by the
courts, but that It could not go behind
the returns and inquire Into the cllgl-
unity ot tnc candidate. The question
then arose as to whether the court
should compel the board to Issue a cer
tificate of election to one who was
clearly Ineligible. The question was
tho converse of what it Is In the pres
ent caso. It was what the question
would have been hcio If the Secretary
had declined to place .Mr. Dreler's namn
on the ballots and Mr. Dreler had
brought proceedings to compel him to
place tho namo on tho ballots.
A majority of the court.nvejudges.np
plying to that casd tho general prin
ciple that mandamus should not Issue
to accomplish n wrong or the violation
of constitutional provision or except to
secure or protect n clear legal right,
went Into the question of eligibility as
a necessary picllmlnary question to
be determined as a basis for determin
ing the other question and, having
found that the candldato was Ineligi
ble, declined to allow the writ to com
pel the boaid to Issue a certificate of
election. Of couise, the candidate
could without tho certificate go before
the senate and there establish the
right, If he had a light, to a seat. The
minority, two Judges, were of the opin
ion that, In view of the constitutional
provision making each house the Judge
nt the elections, returns and qualifica
tions of Its own members, the court
should not go Into tho question of eli
gibility nt all but should compel tho
board to Issue tho certificate of elec
tion, notwithstanding tho general rule
that mandamus should not Issue ex
cept to protect n clear right. In other
words, according to the reasoning of
tho majority In that case, the court
should not compel the Secretary to
omit Mr. Dreler's name and rhould not
compel him to place It on the ballots.
although It was his ministerial duty
to do so. According to the reasoning
of tho minority In that case, the court
should not only compel the Secrctnry
to omit the name but should, If he did
omit It, compel him to plnco It upon
Citations Not Inconsistent
Tho cases cited In behalf of the plain
tiff, State s. Lesencr, 103 Mo., 258; State
vs. Allen, 63 N. W. (Neb.) 35; State vs.
Falley, 70 N. W. (N. D.). 996, nro not
Inconsistent with the foregoing views.
On the contrary they seem rather to
support them. They go to show that
tho officer to whom Is committed tho
preparation of the ballots may look
Into tho question of whether tho nomi
nation lias been made as l en. u I red by
tho statute but they also tend to sho'iv
by Implication nt least that ho cannot
go further and Inqulio Into the ques
tion of the eligibility of the candidate.
Other Instructive cases are State vs.
Van Camp, 51 N. W. (Neb.), 113; Lu
tas.vs, Rlngsrud, 53 N. W. (S. D.), 426;
Atkesou vs. Lay. 113 Mo.. 53S; Pi Ice vs.
Lush. 9 L. R. A. (Mont.), 467; State
vs. Boaid of Canvassers, 31 Pac.
(Mont), 536, O'Fcrrnl vs. Colby, 2
Minn., 180; Qullck vs. New. 14 Ind..
93 ;Muynnrd vs. Board of Canvassers,
84 Mich., 228, 245; Bingham vs. JewetL
60 N. H, 382.
In our opinion the Secietnry has
acted according to law so far as ap
pears In this case and the plaintiff Is
lot entitled to have th enamo of Mr.
Dreler omitted from the official
For His Vacation
Washington, Mnich 23. Picsldent
I oovovelt will spend tho larger pa-t
of summer at his home at Oystei
Dny. If the sfato of public business
will o.low he will leavo Wasntngton
Immediately after the adjournment of
Congress In Juno and remain away
during tlie warm months, it is barely
I i.vslblo that somo timo In fiio fall ho
may go to tho Adirondack for a brief
hunting trip, but no plans looking be
yond his summer vacation at Oyster
Biy liuvo been made.
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On Fixed per cent
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For 12 months 4
For 6 months xj
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AT HAMOA, MAUI.
Mill Machinery, comoleto or In Dart.
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Primary, Secondary or Tertiary Blood Poison
rtrataaati Cirl. Tt fc trttttl ft! ! (
tt (! If J km Ukt mrrirj. Uiit pUi
Hl till fcttf ukii ! ptlM, Fttfcti U twlb,
trt TfcrttJ, ritH't rppr Cslartd ! TlftM
7 M r Ut Uijt Dlr ;thrwi hlllaf (, vrlU
Cook Remedy Co.
101 BamiI Tm1(fct"f, llUrrprtrffirt. 1h
kll00,000. W Mltfh ll atil Wild f.t, Wtt
y " tf