*305OPINION BY
HARTWELL, C.J.,DISSENTING IN PART.
Petitioner, who was a candidate for the office of mayor of the City and County of Honolulu alleges that at the-election held November 8, 1910, there were violations of the election laws in the sixth precinct of the fourth election district by reason of sixty-four electors having “voted after five o’clock and cast their ballots after five o’clock in the afternoon of the said day, whose ballots were counted by the election inspectors for the office of mayor,” the petitioner claiming that those votes “were illegal and should not have been counted and returned,” and that- the “sixty-four voters had no right to vote after five o’clock in the 'afternoon,” wherefore he claims all the ballots cast in the sixth precinct “were illegal and void and should not have been counted;” that after five o’clock in the afternoon of the election day there were over sixty people in the polling booth at said precinct “at one time and two or three electors about to cast their ballots and actually engaged in marking the same were in the same compartment in said polling booth talking to one another, and marking their ballots in the presence of each other openly;” that Lincoln L. McCandless, candidate for the office of delegate to congress, was in the polling booth after five o’clock and handed “pencils to numerous electors for the purpose of marking their ballots and was trying to influence electors by words and acts to vote for” Eern (who has been officially declared to have been elected mayor), and that Wolter, a candidate for the office of representative of the fourth district, was in the booth and “instructed a large number of electors after five o’clock * * * how to vote and endeavoring by acts and words to influence certain electors in said polling booth to vote” for Fern for mayor, wherefore, as the petitioner claims, the votes cast in the sixth precinct were illegal and none of them should be counted 'and he “received a majority of twenty-six votes legally cast over the said Joseph J. Eern for the said office of mayor;” that between four o’clock and half-past five o’clock in the afternoon of the election day *306“there were at all times two or three electors in each compartment of the polling booth marking their ballots together and in the presence of each other without secrecy, openly and in flagrant violation of law,” and that by reason thereof the votes in that precinct, deposited in the ballot box for the office of mayor were illegally cast and that- about sixty-four votes were so cast and illegally deposited in the ballot box and should'have been rejected and not counted and that by reason thereof Lane received a majority of twenty-six of 'all the legal votes cast for the office of mayor; that the secrecy of the ballot was no.t observed nor the provisions of Sec. 87 R. L. (relating to secrecy of the ballot) carried out or followed in the polling booth of the sixth precinct where the election was being conducted, nor the provisions of Sec. 85 R. L. (as to method of voting) observed or followed, from 2 p. m. until 6:30 p. m. of the election day; “that divers electors exhibited their ballots and marked the same openly in said polling booth, and divers electors marked their ballots two or three together in the same compartment at the same time.” The petitioner prays that the finding and declaration of the election inspectors of the sixth precinct that Eern received 230 votes and the petitioner 150 votes be declared null and void; that the same be reversed; that it be adjudged that no legal votes were cast there and that all the ballots counted by the inspectors for the office of mayor be declared illegal, and that the total vote in that precinct be rejected and that upon proof of these allegations the court adjudge that the petitioner was elected to the office of mayor, and for such further order and relief as the circumstances of the case may require and as the law, pleadings and proofs shall warrant.
The petition alleges, and it appears by the annexed copies of tabulated returns, that 3206 votes were cast for Eern and 3154 for Lane, making a majority of 52 for Fern, and that of the votes cast in all other precincts than the sixth precinct Lane received a majority of 26.
*307The respondent demurred to the petition on the ground that it does not show that the court has jurisdiction of the subject matter thereof and does show that the court is without jurisdiction in the premises; that the petition is indefinite -and insufficient in failing to set forth facts or circumstances rendering it probable prima facie that sufficient of the alleged illegal votes were cast for the respondent to- invalidate or change the result of the election or that the sixty-four votes were not cast for the petitioner and hence did not change the result of the election; that the petition does not show that any votes were illegally cast or that the alleged illegal course at the election in anywise influenced its result, and that the relief prayed for is not authorized by any law of Hawaii.
The petitioner’s motion to dismiss the demurrer as not -authorized by the statute relating to election contests was denied and the demurrer was argued.
Sec. 57 of Act 118, S. L. 1907, entitled “An Act to Incorporate the City and County of Honolulu,” reads as follows:
“Any candidate directly interested, or any thirty duly qualified voters of any Election District may file a petition in the Supreme Court of the Territory setting forth any cause or causes why the decision of any Board of Inspectors should be reversed, corrected or changed.”
It is claimed by the petitioner that the case presented in his petition is properly brought under the provisions of Sec. 57 above quoted; .and that the “cause or causes” for reversing “the decision of any Board of Inspectors” include not only decisions by the inspectors upon the validity of ballots, in rejecting ballots not in accordance with the requirements of Sec. 9d R. L., but also their action in counting ballots cast after five o’clock and -allowing the violations of the election laws alleged in the petition.
The respondent’s contention is that the provisions of Sec. 57 refer to those of Sec. 56, or, as he puts it, that Sec. 57 is the complement of Sec. 56. Sec. 5.6 reads as follows:
*308■ “All questions as to the validity of any ballot east 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.”
The respondent insits that none of the alleged violations of the election laws, whether on the part of unauthorized persons in the polling booth or of the inspectors in keeping the polling booth open after five o’clock and allowing votes cast after that hour to be counted, were decisions by the board of inspectors on any “questions as to the validity of any ballot.”
There is much diversity in the statutory causes for which elections may be contested in the several states. In California, for instance, a contest may be made for “malconduct” and not merely for express violations of the election laws on the part of any judge of elections and also “on account of illegal votes.” The California Code of Civil Procedure is as follows:
“Title ii. Of Contesting Certain Elections. §1111 Who may Contest, and Grounds of Contest. Any elector of a county, city and county, city or any political subdivision of either, may contest the right of any person declared elected to an office to be exercised therein, for any of the following causes:
“1. Eor malconduct on the part of the board of judges, or any member thereof.
“2. When the person whose right to the office is contested was not, at the time of the election, eligible to such office.
“3. When the person whose right is contested has given to any elector or inspector, judge, -or clerk of the election, any bribe or reward, or has offered any such bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in title four, part one, of the Penal Code.
“4. On account of illegal votes.”
Under this law, since neither voters nor candidates have any control over election officers, and to upset elections because such *309officers have failed strictly to comply with the law, as in matters relating to arrangement of polling places, would be to encourage irregularities committed for the very purpose of invalidating an election, an election is not invalidated by reason of such non-compliance with the requirements of the election law. Hayes v. Kirkwood, 136 Cal. 396. An entire vote of ward or of city should not be rejected for malconduct of the election board when it appears that everything was done in good faith and that, no fraud was committed. Atkinson v. Lorbeer, 111 Cal. 419. The fact that a candidate wrongfully procured, his nomination or had his name illegally placed upon tickets is not ground for contest under the law quoted. Powers v. Hitchcock, 129 Cal. 325. Aiding and abetting a registering officer in the illegal registry of voters does not constitute ground for contesting an election. Meredith v. Christy, 64 Cal. 95. It is not cause for an election contest that the candidate declared elected had not complied with the purity of election law. Treanor v. Williams, 145 Cal. 315.
Hawaiian legislation upon election contests has undergone many changes. During the time when only representatives were elected, and, under the constitution of 1852, the legislature sat in. separate houses of nobles and representatives, whenever fifty or more of the voters of any district should petition the house setting forth that any person chosen as representative for the district had “been elected through bribery or any other unfair means, or that he is not qualified, according to law,” the house was required to institute an inquiry as to. the truth of the charges ’and if they found them to. be true to “immediately declare his election null and void.” Sec. 196 C. C-. The constitution of 1881, which retained the single house legislature, under the constitution of 1864, consisting of nobles and representatives sitting together, in Art. 58, made the nobles elective.
In Act 16, S. L. 1888, amending and consolidating the election laws of the Kingdom, introducing the Australian ballot law, are the following provisions for annulling elections and *310vacating seats of elective members: It is declared in Sec. 75 that the seat of any elective member of the legislature should become vacant if he should die, resign or be convicted of any of the offenses disqualifying persons from being elected or of a violation of 'any of the provisions of the act, as well as for bribery, fraud, miscarriage or default of the member or of his agent whereby his election might be vitiated, and in Sec. 76 that upon petition of not less than thirty voters of the district in which there was an alleged vacancy setting forth “any cause or causes alleged for such vacancy,” the legislature should examine the question of the vacancy or dispute thereon and take full evidence “on all matters pertaining thereto” and if it found the seat vacant or that it ought to be so declared a new election should immediately be ordered by the Minister of the Interior on notice of such vacancy from the President, of the Legislature.” Sec. 78 provides for proceedings in court for annulling elections- that: “In addition to- the methods hereinbefore set forth for vacating any seat in the Legislature, any candidate, or any ten persons who have voted or were entitled to vote in the district, may file a petition addressed to the Chief Justice of the Supreme Court, setting forth any cause of causes, why -an election shall be vacated or a seat be declared vacant.” Sec. 80 declares that, at the hearing the justice “shall cause the evidence to be reduced to writing in full or sufficiently to ascertain all of the facts involved, and shall thereupon give judgment, stating all of his findings of fact and the law thereupon, which shall then be transmitted in full to the Minister of the Interior, provided, no appeal shall be taken. If such finding shall be that the election was invalid, and the seat therefore vacant, a new election shall at once be ordered.” This law enumerates in Sec. 75 the causes of vacating the seat of any elective member of the legislature. Under Sec. 78 the petition may set forth “any cause or causes.”
It is unnecessary for the purpose of the present, case to say whether under that statute an election could be vacated for any *311“cause or causes” not therein enumerated. The act makes no pther provisions for correcting decisions'of inspectors as to the validity of ballots, but provides, Sec. 62: “All questions as to the validity of any ballot shall be decided, immediately, and the opinion of a majority of the Inspectors shall be final and binding, except as hereinafter provided.”
Act 86 S. L. 1890, amending and consolidating the election laws of the Kingdom, contains in Sec. 87 the same provisions for proceedings in court for vacating elections, with the amendment that “The hearing may be- had before any Justice of the Supreme Court and shall be held in the judicial circuit wherein the election is disputed,” and further providing that the court should “have no jurisdiction over any such case during the session of the legislature.”
The constitution of 1894 (Art. 38), vesting the legislative power of the Republican a legislature consisting of two houses styled the senate and house of representatives, sitting separately, provides (Art. 40) : “In case any election to a seat in either House is disputed, and legally contested, the Supreme Court shall be the sole judge of whether or not a legal election for such seat has been held; and, if it shall find that a legal election has been held, it shall be the sole judge, of who has been elected.” It will be observed that the power is very great under this article -and authorizes the supreme court to determine generally whether an election is legal or not.
Act 8 of the Laws of the Republic of Hawaii, relating to elections and contested seats in the legislature, enumerates in Sec. 7, the causes for which the seat of any elective member of the legislature shall become vacant, being substantially the same as those enumerated in the former law, and provides in Sec. 8: “Any candidate directly interested, 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 -an election shall be declared void, or a seat in the Legislature vacant, or the decision of any Board of Inspectors, or of the Marshal *312or any Sheriff, reversed or changed.” Sec. 12 provides that if at a hearing of such j>etition the “finding shall be that the election was invalid or the seat vacant a new election shall at once be ordered.”
In none of the laws cited was there any authority for the court to declare who was elected, its power being confined to declaring an election void in any of the cases enumerated.
By the Organic Act the legislature passes upon the qualifications of its members and by implication the supreme court could not take jurisdiction of any petition to declare void the election of a senator or representative or to determine what candidate was legally elected. Act 39 S. L. 1905, commonly referred to as the County Act, as well as Act 118 S. L. 1907, incorporating the City and, County of Honolulu, contains only that portion of the above cited laws which authorizes this court to hear petitions in contested elections to reverse, correct or change the decision of any board of inspectors on “questions as to the validity of any ballot.”
The legislature has not granted to this court the authority to declare elections void for illegal acts other than are shown in inspectors’.decisions upon the validity of ballots, and those are the only decisions which can be reversed or changed in a proceeding brought under Sec. 57, Act 118, S. L. 1907. The petitioner does not aver in his petition that any such question came before the board, for its decision or was decided, unless counting the sixty-four ballots cast after five o’clock is a decision, in the absence of any qrrestion raised, that those ballots were valid.
But it is conceded in argument by the petitioner that the “questions” for the board of inspectors to pass upon in reference to the “validity of any ballot” are confined to the provisions of Sec. 94 R. L. (Sec. 108, Ap. C. L.), reading as follows : r>
“Rejected ballots. If more names are voted for on a ballot than there are offices to be filled; or,
*313“If on a ballot for representatives a larger number of votes are marked than the- law authorizes; or,
“If a ballot contains any mark or symbol whereby it may be identified, or any mark or symbol contrary to the provisions hereof; or,
“If two or more ballots are found in the ballot box so folded together as to make it clearly evident that more than one ballot was put in by one person; or,
• “If a ballot in any other way be contrary to the provisions hereof; then such ballot and all it contains must be rejected.
“But no ballot shall be rejected for containing a less number of names voted than the law authorizes.
“Each ballot which shall be held to be invalid as aforesaid shall be indorsed on the back by the chairman of inspectors, with his name or initials, and the word ‘rejected.’ ”
It is apparent, that this section only is referred to in the following section:
“Sec. 95. Validity of ballot decided immediately. All questions as to the validity of any ballot shall be decided immediately, and the opinion of a majority of the inspectors shall be final and binding.”
It is true that by Sec. 40 of Act 118 S. L. 1907, “The general laws and rules governing an election of senators and representatives of the Territory shall apply in the election of city and county officers, wherever applicable, except as herein provided,” but these laws and rules governing such elections, if they had not been repealed expressly or by implication, 'as they have been, would not authorize this court to hear any election contests other than those which are provided for in Act 118. In re Contested Election, 15 Haw. 323, 332.
No question then is presented in this case upon any of the matters referred to in Sec. 94, and while the term “illegal votes” or “illegal ballots” is frequently used to include votes or ballots cast by a person disqualified to vote or who has been illegally induced by bribes or intimidated, a ballot which is legal in form and legally marked before five o’clock is equally a legal ballot after five o’clock and does not become illegal merely because it is cast after that hour. The validity of the *314ballot requires that it be iu the form required and that it be marked by the voter in accordance with the requirement of the statute and not otherwise. A question of the validity of the ballot is not involved in the inspectors’ duty, if such be their duty, to close the polls at live o’clock. If 'any wrong is done or mistake made by them in keeping open longer it might come under the head, of “malconduct” and be the cause of contest under such statutes as those of California, above cited. Giving the broadest scope then to our statute and assuming solely for the purpose of this case, and not as a precedent for future eases, that it was unnecessary 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 a case, such as is authorized, by the statute, is not presented by the petitioner. Nothing is gained, by considering decisions made elsewhere under statutes unlike our own.
“The diversity of state legislation upon the subject renders the local decisions of one state of little aid in construing the election laws of another. Each act must be viewed in the light of the legislative will, as expressed, and hence the citations of authorities by appellee under the particular enactments of different states, such as California and Pennsylvania, are inapplicable here. Bull v. Southwick, 2 Gildersleeve (N. M.) 321, 340.
Thus the case from 125 Cal. 16, relied on by the petitioner, was brought under a statute similar to our quo warranto^ as amended by the act of 1901, authorizing actions for usurpation of -an office and authorizing the court to determine whether the incumbent of the office held it lawfully or unlawfully. The only question in that case argued by counsel or discussed by the court was whether at the election of the mayor of San Francisco the polls had been legally closed in two of the city wards at five o’clock, as required by the general state law, or, as was done in the other wards, at sundown, as required by the mayor’s proclamation issued, under an ordinance claimed to *315have been authorized by the city charter. The court, holding that the charter authorized the ordinance and therefore that sundown was the correct hour for closing the polls, necessarily held that the election was invalid in the wards in which the polls were closed at five o’clock.
In Kentucky the law appears to authorize the court to annul an election if it is illegal; and it was held in the cases cited from 86 Ky. 596, and 104 Ky. 842, relied upon by the petitioner, that keeping the polls open long after sundown, the time required by the constitution, in connection in the second of these cases with other grave violations of the elections laws, made the elections illegal.
On the other hand, the considerable number of decisions cited by the respondent, that non-compliance with statutory requirements do not invalidate an election on the ground that no harm was done or that the statutory requirements were merely directory, have no bearing upon the present case which rests upon the lack of judicial power, on any of the grounds named in the petition, to annul an election or to declare who was elected.
As held in Ellingham v. Mount, 43 N. J. L. 470, 473:
“These proceedings calling; in question this election, were instituted by the authority of the provisions of the election law embraced under the ninth head, which relates to contested elections of county and township officers. Rev., p. 355. The entire remedy thus given is a statutory device, and no part of it has any existence outside of this enactment; and,, upon inspection, it will be found that the extent of this remedy has been carefully defined. The act, plainly, does not give this method of redress in every case in which an illegal election has occurred. If such had been' the design, judicial jurisdiction over the subject would have been given in general terms; but, so far is this from having been done, the grounds of such jurisdiction are carefully specified and described; such grounds being distributed under seven distinct heads.”
“The statute enumerates the causes for which an election may be put in contest by force of its provisions, and conse*316quently an election cannot be called in question in such a procedure except for one of tbe causes so designated.”
In Clarke v. Rogers, 81 Ky. 43, it was held that the statute having provided the means of contesting elections “where no provision has been made applicable to the particular case, the result, as certified by those holding the- election, must determine the issue.”
To summarize: The petition alleges violation of election laws on the part of voters in showing their ballots by marking them so that the marks could be seen by another on the side of the polling booth or in company with another voter in the voting compartments, contrary to the provisions of Secs. 87, 88, R. L., whereby, if the exhibition of the ballot is “wilful,” such voter, by Sec. 88 R. L., “shall forfeit his right to vote;” and on the part of the board of inspectors in permitting more persons than are authorized by the statute, Sec. 79 R. L., to be within the space around the polling place set apart in order to prevent interference with the conduct of the election, and in keeping the polls open for about an hour after five o’clock and counting the ballots, about sixty-four in number, cást in that time by voters who had voted after that hour, Sec. 78 R. L. prescribing that the polls be kept open until, five o’clock, unless all the voters registered in the precinct shall have voted sooner, “after which the polls shall be closed and the votes counted.”
No question is presented as to the invalidity of any ballot for noncompliance with the provisions of Sec. 94 R. L. in any of the ways therein enumerated or in any other way contrary to the provisions of that section, in any of which cases the inspectors are required to mark “rejected” on the ballots.
The court being agreed that no cause of contest is shown by the action 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 upon the necessity of a decision upon the validity of ballots cast by voters who had wil*317fully exhibited them. If acceptance and counting of such ballots were regarded as deciding that they are valid, and if the inspectors have not set' the ballots apart for identification in order that their decision may be reviewed in a contest upon its correctness, then in every such instance, and whether the inspectors were right or wrong, as those ballots are not before us, it would be impossible to take evidence of the voter or of others of the exhibiting or of its wilfulness, for it may be done innocently and others may not have seen the names voted on the ballot.
Hence the necessity of a decision being made, however informally, by the insptctors upon a question as to the validity of any ballot cast at an election if a contest is to be made upon the correctness of the decision. Whether the question of the validity of any ballot be presented when it is presented or after the polls are closed, it is ballots which are 'cast’ to which the decision of the board of inspectors relates.
If ballots are accepted and counted without objection, and perhaps without the attention of more than one inspector having been drawn to the fact that they were marked so that others might, and perhaps did, see the marks, or if he thought there was no exhibition of the ballots, or none wilfully made, there would be no decision on the subject, made by the board, and no contest on the decision could be made.
If violations of election laws by inspectors, voters, candidates or others make an election illegal, it might he so decided in quo warranto' proceedings in which the court passes upon the seriousness of the violations of law from their possible effect upon the election or upon the law being mandatory, whatever the result of its violation, but not on a contest upon decisions of inspectors which have not been made and to which the statute authorizing election contests does not refer. The effect of this conclusion on future elections will perhaps be that the inspectors, voters and candidate will be more alert *318and, observe the requirements of the law and. any violations thereof.
I agree that this case is not to be decided on “technicalities,” a term often used for refinements of law, but on the broad 'and only safe ground for any judicial tribunal to take, namely, that, as I think, the law does not authorize the case to be heard or decided on any of the grounds named in the petition. • To decide otherwise wo-uld be to usurp legislative functions, — a' thing which is abhorrent to free institutions. 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.
I agree that the demurrer should be' sustained and the petition dismissed on the grounds named in the opinion of the majority, but I also think that for the reasons above named there was no decision in fact or substance of any ballots having been wilfully exhibited, and that the demurrer ought to be sustained on that ground also. -In that respect only I non-concur with the opinion of the court.