17 So. 2d 337 | La. | 1944
Fieldon D. Courtney, within 48 hours following the action of the Parish Democratic Executive Committee declaring Charles (Bubbie) Abels to be the nominee for the office of assessor for the Parish of Livingston as the result of a second primary election held on February 29, 1944, invoked the provisions of Section 86 of Act No. 46 of 1940, the act under which the contested election was held, seeking to have the ballots cast in certain precincts recounted, and, after such recount, to have himself declared to be the Democratic *306 nominee for this office. Two days later, by supplemental and amended petition, the Parish Democratic Executive Committee was made a party to the suit.
The contestee and the committee, averring that inasmuch as the supplemental and amended petition making the committee a party to the suit was filed more than 48 hours following the official promulgation of the returns by the committee, pleaded exceptions to the jurisdiction of the court rationae materiae and of no cause and no right of action. The contestee individually filed exceptions of no right and no cause of action and of nonjoinder of proper parties defendant.
The trial judge dismissed the supplemental and amended petition on the ground that it had been filed too late, and, being of the opinion that the committee was a necessary party to the suit, maintained the contestee's exceptions of nonjoinder of parties defendant and of no cause of action to the original petition, dismissing the plaintiff's suit.
In Section 86 of Act No. 46 of 1940 it is declared that all contests in elections held under the provisions of the act "shall be made before the courts of the State, as herein prescribed, which are hereby fully vested with the necessary power, authority and jurisdictions to hear, try and determine the same." Subsection (a). Candidates for nomination for municipal, parochial, and district offices claiming that but for irregularities or fraud they would have been entitled to a second primary and desire to contest such election, shall present a petition to the district court of the parish *307 in which the contestee resides declaring in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made. In addition to this action, the act specifically declares that "the contestant or the contestee may,on allegation on information and belief that a proper recount ofany box or boxes in the municipality, district, parish or Stateas the case may be would change the result of said election,require the recount of all or any specified ballot boxes," the only requirement being that a deposit of $20 be made for each box sought to be recounted. It then becomes the mandatory duty of the judge to name sufficient counters in order that such ballots may be recounted and, on the day set for the trial of the contest, to proceed in open court "to cause said boxes to be recounted and the result of such recount to be publicly announced in the court room." Subsection (b). He is further required to render judgment within 24 hours after the case is submitted, subsection (d), the right to appeal being reserved to the party cast upon furnishing adequate bond, provided such is applied for within 5 days from the rendition of the judgment, and the appellate court is also required to decide such matters within 24 hours after submission. Subsection (e). (Italics ours.)
This section (86) also contains the provision that "No contest shall be entertained unless brought within two days after the official promulgation of the result of the election, made by the Secretary of State, or by respective committees as provided herein." Subsection (h). *308
Thus it may be seen that the law-makers, in detailing the procedure to be followed in election contests under this section of the election act, did not require that the respective Democratic Executive Committees be made a party to such suits; nor has the contestee pointed out any other provision of the act requiring that the committee be made a party.
While the identical question here raised has not previously been presented to this court for decision since the adoption of Act No. 46 of 1940, it was presented to this court under the preceding primary election laws, Act No. 49 of 1906 and Act No. 97 of 1922, and in each instance was decided adversely to the contention of the contestee here and the holding of the trial judge. See, Bailey v. Janvier,
Since the 1940 act was adopted, however, this question has been adjudicated on adversely to contestee's contention by the Court of Appeal for the Second Circuit in the case of Beard v. Henry, La.App., 199 So. 468, 472, and that court, citing the case of Vidrine v. Eldred, supra, very aptly pointed out in disposing of the issue:
"The executive committee, after proclaiming the result of the election and declaring the defendant the nominee, stripped itself entirely of jurisdiction in connection therewith. To challenge the validity of the election in whole or part, the committee was not a necessary party. It had no interest in the outcome of the contest between the two candidates. The above-referred tosubsection (b) of Sec. 86 of the 1940 Act clearly directs themode and method by which contests thereunder may be originatedand conducted. The petition of the contestant therein referred to should be presented to the district judge, who, if he finds that the allegations justify him in doing so, `shall issue an order directing the contestee to answer the petition within five (5) days after service upon him', etc. Nothing is said about and noreference is made to the necessity of the committee being made aparty to the action and since this is true, there appears no goodreason for supplementing the procedure thus outlined by requiringsomething to be done which the act specifically omits." (Italics *310
ours.) See, also, State ex rel. Nunez v. St. Bernard Parish Democratic Executive Committee,
The cases relied on by the contestee (Bauer v. Gilmore et al., La.App., 165 So. 739; and State ex rel. Burg v. Folse, La.App.,
Counsel for the defendant contestee have also urged in their argument, both orally and in brief, that the plaintiff has failed to state a cause of action in that he did not allege in his petition that he had been a candidate for the office to which he is now seeking the nomination. We think this contention is without merit for although the plaintiff did not allege specifically that he was a candidate, he did allege that many of the legal ballots cast in his favor were marked spoiled; that in the counting of the ballots many were cast for him that were fraudulently counted for his opponent; and that a recount would show he had received a majority of the votes cast in the election, thus entitling him to the nomination.
For the reasons assigned, the judgment appealed from is annulled and set aside, and the case is ordered remanded for further proceedings consistent with the views herein expressed and according to law. The costs of the proceedings in this court are to be borne by the contestee, Charles (Bubbie) Abels; all other costs are to await the final determination of the case.
PONDER, J., recused.
ODOM, J., absent. *312