91 So. 68 | La. | 1922
This is a contest over an election for the office of mayor of Cedar Grove, a town of less than 2,500- inhabitants. At a primary election previously held plaintiff had been nominated for said office,-but his nomination had been set aside at the suit of defendant, and there was not sufficient time in which to hold another primary.
Defendant (being the incumbent) thereupon surreptitiously had his own name printed on the official ballot for the general election, pursuant to an alleged nomination paper wholly irregular and insufficient under the provisions of sections 50 and 51 of Act 137 of 1896. At said election 232 voters cast their ballots for defendant by marking or
r.
II.
III.
Again in Payne v. Gentry, supra, involving almost the very same facts appearing here, we held that, although an election will not be set aside merely on account of any illegal or improper conduct of some officer or other person in connection therewith, yet, if a sufficient number of innocent voters were thereby deprived of their ballot (or of the effect thereof) to have changed the result, the election would on that account be annulled.
IY.
V.
VI.
The Court of Appeal says:
“Counsel for the appellee (plaintiff) asks that the defendant be declared ineligible to hold the office of mayor for two years, under the provisions of the Corrupt Practices Act No. 213 of 1912. The matter cannot be considered (1) because the appellee has not answered the appeal and (2) because such a judgment would be but declaratory of the language of the statute, and would be premature. It will be time enough to consider that matter when properly presented in a proceeding having that end in view. Non constat that the defendant will offer himself as a candidate within the limit of time prescribed by the statute.”
Of this we approve.-
VII.
The district court annulled the election of defendant, but awarded the office to plaintiff ; and the Court of Appeal affirmed that judgment. This was error; the election should have been annulled in toto.
Decree.
The judgments of the district court and of the Court 'of Appeal are therefore affirmed in so far as they annul the election of defendant, but reversed in so far as they declare plaintiff elected; and it is now ordered that there be judgment in favor of plaintiff and against defendant annulling in toto the election held on April 19, 1921, for mayor of the town of Cedar Grove; plaintiff to pay the costs of this court, and defendant to pay all other costs.