Bright v. Fern

OPINION OF THE COURT BY

PERRY, J.

(De Bolt, J., dissenting in part.)

This is a petition praying that the election of respondent as mayor of the City and County of Honolulu be set aside and that John C. Lane be declared elected to that office. It was filed on December 7, 1910, and was signed by and brought in the name of thirty-one alleged duly qualified voters of the sixth precinct of the fourth election district of this Territory. On December 14, before an answer filed, two of the voters who signed the petition, appearing in person, in open court expressed a desire to withdraw as petitioners and to- have the proceedings discontinued as far as it lies in their power to do so. Respondent thereupon moved to dismiss the petition for failure of parties plaintiff.

This is an adversary proceeding. While the public may to some extent have an interest in it, it has not control of it so as to prevent any or all of the petitioners from withdrawing from the contest. The public is not a party. The ordinary rules as to the control of petitioners over their own case apply in this respect. Before issue joined any one or more of the parties plaintiff may withdraw subject to such order as may be made concerning costs and, perhaps, to certain other limitations which do not apply in the case at bar. If leave to discontinue is ordinarily requisite at this stage no reason occurs to us for withholding it. The presumption is that the election was validly conducted and the court should not place itself in the position of encouraging litigation by compelling the continuance of the contest against the will of the petitioners.

The withdrawal of two of the petitioners requires the dismissal of the petition. While the language of Section 57, Act 118, L. 1907, is that any thirty voters may “file a petition,” the statute contemplates, we think, that thirty voters are requi^ site not only to the institution but also h> the continuance of the proceeding. The intent of the legislature evidently was that no contest should be permitted unless (aside from action by the defeated candidate himself) thirty voters could be found who agreed that a contest would be justified by the facts and neces-sary or desirable. If any of the thirty, at least before answer, lose faith in their petition or for any reason alter their views as to the desirability of further litigation, the contest becomes that of the remainder only. If one of the thirty may withdraw and. still leave vitality in the proceeding, twenty-nine may withdraw with the same result. We are unable to conclude that the legislature contemplated the continuance by one voter, or by ten or by any number less than thirty, of a contest, even though properly instituted by the required, number.

G. A. Davis, A. F. Judd, B. W. Breckons and G. 8. Gurry for petitioners.

W. W. Thayer and O. W. Ashford for respondent.

After oral announcement of this ruling, a motion was made to amend the petition by adding the names of five other voters as parties plaintiff, reliance being had in that connection upon R. L., §1738, relating to amendments of pleadings and process. That statute in its provision permitting the amendment of ‘any petition “by adding * * * the name of any party” contemplated that there should be remaining in the case before the amendment a party to add to, — something to amend by. In this case there is no plaintiff to add to. The statute- of 1907 creates for cases of this nature a unit, to wit, thirty voters, to serve .as a party plaintiff. As already held, that unit has been destroyed by the withdrawal of "the two petitioners. It no longer exists and there is nothing to amend by. With the discontinuance by the two the court lost jurisdiction in the matter save in the respect above stated. This is not a case of ordinary co-plaintiffs in which the rights of those remaining may survive the withdrawal of other co-plaintiffs.

The motion for leave to amend is denied and the petition is dismissed.