32 La. Ann. 861 | La. | 1880
Lead Opinion
On Motion to Dismiss.
The opinion of the Court was delivered by
This is a contested election case, growing out of the election held in this State on December 2,1879. From the verdict and judgment rendered in favor of defendant plaintiff has appealed, and defendant moves for the dismissal of the appeal on the ground that it was not made returnable ten days after judgment, which was rendered on March 5, 1880, the appeal having been made returnable on the first Monday of July of the same year.
The return-day was suggested and fixed on appellant’s own. motion, and suggestion, and the district judge overruled appellee’s motion suggesting a change of the return-day from the date fixed to ten days after the rendition of the judgment.
Appellee contends that this appeal should be governed by and comply with the provisions of law' contained in section 7 of Act No. 45, approved March 16,1870, which section reads as follows :
“ That .in all cases in which the right to office is involved and an appeal is taken from the judgment of the lower court, it shall be returnable in ten days after judgment of the lower court, and the Supreme Court on the motion of either party shall proceed to try the same by preference.”
And it concludes with the usual repealing clause.
On the other hand, plaintiff contends that his right to this appeal should be tested under the provisions of the act of 1856, incorporated in our Revised Statutes as sections 40 and 1434, which provides in substance :
“ That in all contested elections brought before the courts of this-State, the party cast shall have the right of appeal to the Supreme Court as in other civil cases, etc.,” and that “ such appeal shall be considered suspensive in its operation and effect, any law to the contrary notwithstanding and he contends that this act is not repealed by act 45 of 1870, which covers only judgments rendered in cases involving title to. office; that the two statutes are not on the same subject matter, and that the latter law, not affecting the former, does not repeal it, either directly or by implication.
The question presented for our solution is, therefore, whether the-
Defendant urges that the right to office is the very issue involved in all contested election cases ; that there is no difference in law or in fact between the two classes of cases ; and that the last expression of legislative will regulating appeals in cases involving title to office should alike govern contested election cases, and that the act of 1856, containing a different rule for appeals, is necessarily inconsistent with tbe act of 1870, and is for that reason repealed and inoperative. This identical proposition was reviewed and discussed in 12 A. 825, and 13 A. 175, wherein the Court interpreted the act of 1853, which was re-enacted in 1855, and contains the identical provisions subsequently enacted in section 7 of act 45,1870, in connection with the act of 1856, now found in sections 40 and 1434, and the Court reached a different conclusion than that contended for by appellee’s counsel in this case. But counsel claim that the Court, then composed of some of the brightest intellects and most learned jurists which have ever honored our bench and bar, signally erred in both cases, and they confidently expect us to overrule the rulings on this point in both cases.
We are constrained to disappoint appellee and his counsel in their expectation. The issue in a contested election case is not a title to office, which may result therefrom, but not necessarily, for the decision may decree that neither party is entitled to the office, by reason of the absolute nullity of the election, as was the case in 13 A. 175. We understand that in such cases the inquiry is directed to the manner and form in which the election was carried on, and in which the results were returned, announced, or promulgated. The action must be begun before the induction of the candidate returned as elected, and the action can be maintained, and the inquiry gone into, only when prayed for in a petition signed by at least twenty voters of the parish.
Under our present laws, a case involving a title to office is an inquiry instituted by the State itself, and is intended to test the right to office of a party already in office by appointment or otherwise. It may be instituted by the proper law-officer, without joining as party plaintiff the person who may claim to be entitled to the office in contest.
We conclude that the two classes of cases are materially different, and that appeals therein are and must be regulated by different laws ; in other words, “ that all appeals in cases of contested elections must be considered as falling within the- general rule applicable to appeals in all civil cases.” 12 A. 826.
We are fortified in our conclusion by the interpretation given to these various enactments by our immediate predecessors in the unreported case of “the State ex rel. John Young vs. Judge of the Thirteenth Judi
’ After quoting approvingly from the two decisions in the 12th and 13th Annuals, Chief Justice Manning, as the organ of the Court, says :
“The act of 1856 thus referred to is the law regulating this subject now. It was re-enacted in iotidem verbis, and forms section 1434 of the Revised Statutes of 1870, just as the act of 1853 (p. 250) declaring that appeals in cases where the right to office is involved shall be returnable in ten days, is re-enacted in totidem verbis, and forms section 33 of the same Revisal, and was repeated in the same year, and forms section 7 of the act of March 16,1870.”
The motion to dismiss is therefore overruled.
Opinion on the Merits
On the Meeits.
At the general election held throughout this State on December 2, 1879, C. C. Duson and C. M. Thompson were competing candidates for the office of sheriff of the parish of St. Landry.
Thompson having been returned as elected by the recorder of the parish, acting as returning officer of election for that particular office, Duson at once began proceedings to contest the election.
In his petition of contest, which is supported, as the law requires, by a petition of at least twenty voters of the parish, he charges several irregularities and illegalities which go to invalidate his opponent’s election, but he subsequently has abandoned all other grounds, and on appeal he relies exclusively on the following ground of alleged nullity :
That the votes cast at the third ward poll, known as the Leonville precinct, were not legally returned, in this, that on the day following the election the commissioners of that poll handed to the clerk of the court a document purporting to be their return from said poll (which we shall designate as No. 1), showing the following vote for sheriff: Thompson 128, Duson 75. That later on the same day the commissioners illegally re-opened the box which contained the ballots cast at said poll, and which had been locked, sealed, and delivered by them, as the law required, to the clerk of the court, and took from said box another document, purporting to be a return of the votes cast at said Leonville box (which document we shall designate as No. 2), showing the following-vote for .sheriff: Thompson 164, Duson 31. That by the illegal addition of docu
Plaintiff complains of the act of the returning officer in receiving or compiling the second document purporting to be a return, and alleges that a written statement signed by the commissioners on the 8th of December, in which they certify that both documents or tally-sheets should be considered as a continuous' return of the Leonville box, is a nullity, and should not be considered in the compilation of the votes cast at said election, and charges that the compilation made by said returning officer was erroneous, illegal, null, and void.
To this petition the defendant Thompson answers. He denies that the compiled statements originally returned by the commissioners of election give a majority of votes to the plaintiff. He denies that any amended return of the election at the Leonville poll was made. He denies that the recorder, in making his returns, either considered or used any amended return from that poll. He alleges that the recorder, in compiling the returns of the votes cast at Leonville, took into consideration and based his returns exclusively upon the original returns deposited by the commissioners of election at said poll with the clerk of court and sheriff of the parish ; that said original returns consisted of two sheets, one which is admitted to be a tally-sheet, and the other, though erroneously styled and headed a statement-sheet, is in fact also a tally-sheet, and that the tallies on both sheets must be added together in order to ascertain the total vote cast for sheriff, as well as the vote for all other officers voted for at that poll; that the two taken together constitute the true list of tallies of the votes at said poll, the one being a continuation of the other; that such was the true intent and purpose of the commissioners, as intrinsically shown by the returns themselves, and by their explanatory certificate, which plaintiff erroneously styles an amended statement of votes ; that the commissioners at said poll,'from a want of knowledge of their duties, neither made nor returned a statement of votes, but made and returned only tally-sheets, an error and omission of frequent occurrence in this parish.
The case was tried by a special jury, who, after a protracted trial, found in favor of defendant in a verdict which for its unusual style and novelty is reproduced in full:
“ The special jury empaneled in the above entitled suit, having in full view the great importance of the public interest involved in this case, and the sanctity of our oaths, and after fully and conscientiously weighing the' evidence as elicited, and the law applicable to the case, do find that the majority of the good people of the parish of St. Landry
“ C. O. Hundley, Foreman; B. E. Hardesty, Fremont Dupré, Acdoille Fontenot, H. Frilot, Edmond Savant, Delosiar May, Ohas. S. Hollier, W7 A. Sandoz, Martin Jones, Thos. D. Cooke, Stephen Stuart.”
From the judgment rendered thereon plaintiff appealed.
The record discloses the following facts and incidents connected with the election at the Leonville poll, and the manner of holding the •same, and of making returns thereon, and which are not disputed by either party:
The election was not held by the three citizens appointed as commissioners by the Police Jury (Rogers, Déjean, and Robin), but by F. C. Garriere, Félix Boudreau, and J. D. Higginbothan, who were selected and sworn as such by one A. L. Durio, justice of the peace, at about '7 o’clock a. m., at which time the appointed commissioners had not yet made their appearance, and it being rumored that they would not act.
After the election was closed, the commissioners, assisted by other citizens, proceeded to count the votes, after which they went together to the courthouse at Opelousas with the box and two duplicate tally-sheets, one of which they delivered to the sheriff, and the other to the clerk. The duplicate which they handed to the clerk is the document designated as No. 1, and it is written on what is technically known as a statement-sheet, on which is a printed statement, subscribed and sworn to by the commissioners, reciting in substance that the votes tallied thereon are the votes cast at the Leonville precinct on the 2d of December, 1879, for and against the ratification of the Oonstitution, for and •against the State debt ordinance, for Governor and other State officers, and for all parish and ward officers which are therein enumerated.
They arrived at the courthouse at about 8 o’clock p. m. .on the 3d of December, and delivered this document and the box without delay, taking ■the clerk’s receipt for the same.
A short time thereafter the three commissioners returned to the ■clerk’s office, asked and obtained from him possession of the box and of the key, re-opened the box, and taking therefrom the document herein-•above designated as No. 2, written on a sheet technically known as a tally-sheet, containing in substance identically the same declaration, signed and sworn to, as that in document No. 1, handed the same to the clerk, who placed it in his office along with the document first •described.
It appears further that on the 6th of December the recorder of the
All other allegations, charges of fraud, irregularities, and counter charges of conspiracies to swindle, and of ballot-stuffing, contained in the pleadings, are strenuously advanced and positively denied by the respective parties, who introduced, on each side, countless documents and numerous witnesses, all of which forms a voluminous record of bitter venom and galling acrimony which it is fortunately unnecessary to consider for a correct decision of this cause. The election of 1879 was carried on under the provisions of Act No. 58 of the Legislature of 1877, extra session.
Section twenty prescribes that the election shall begin at 7 o’clock a. m. and close at 6 o’clock p. m.
Section fourteen provides that if within one hour after the time fixed none of the commissioners appointed by the police jury has made his appearance, the persons present shall hold a meeting and select three commissioners to preside at the election.
In this case the commissioners at the Leonville precinct were selected by one individual, A. L. Durio, and without allowing to the absent commissioners the' delay of one hour required by the section quoted.
It is conceded that no violation of a directory law on elections shall vitiate the election, but this irregularity is shown for the purpose of establishing the continuous and wanton violation of law which characterized the foundation, as well as the crowning act, of the election held at that precinct. No attempt is made by the defendant to explain, much less to justify, this unusual and illegal haste to organize a poll during the absence of the regularly appointed commissioners; the rumor to
But proceeding further, the question to be solved is this, which of the two documents handed by the commissioners is the legal return of the votes cast at the Leonville precinct ? or is there any return at all from that precinct? While conceding that the correct rule in American elections favors a liberal construction of laws governing returns of elections, and that to give effect to the vote of the citizen, the violation of a directory law by an officer cannot justify the rejection of the votes cast at the polling-place, yet it is equally clear, as stipulated in section 19 of act 58 of 1877, that the election is vitiated where it is impossible to decide what candidate received the majority of votes at the polling-place where the election is contested.
It is also an elementary rule of law that when an act is to be done in writing the instrument must make proof of itself, and this rule is essentially applicable to returns of elections. The rule is laid down by McCrary, Law of Elections, section 82, in substance as follows : “ The canvassing or return judges must receive and count the votes as shown by the returns, and they cannot go behind the returns for any purpose, and this necessarily implies that if a paper is presented as a return, and there is a question as to whether it is a return or not, they must decide that question upon the face of the paper itself.”
If in this case the recorder acting as returning officer in the election for sheriff had been guided by this rule, when he came to consider the effect of the two documents which are described above he would have seen that both documents purported to be separately and singly the return itself of the votes cast at the Leonville precinct; neither paper could by itself show that it was the return, to the exclusion of the other, and neither of the documents shows on its face, or contains in any shape or form, any information, statement, or indication tending to show that the one was the beginning, and the other the continuation, of the return or statement of votes polled at that precinct, so as to justify the addition of the two together, so as to get at the correct vote polled ; the very reverse appears, because to each document is appended the sworn declaration of the three commissioners that the votes therein tallied and added are the votes that were deposited in the box on the 2nd of December, 1879.
Defendants deny that the officer derived his information from the statement subscribed by the commissioners-on the 8th of December, in which they pretend to convey that information. Admitting this theory, the question recurs again as to his source of information in the premises. It must then be from the verbal statements of the commissioners, or of one or two of them. If such is the case, he then received evidence out of or dehors the paper itself, or of the two papers separately or jointly, and in thus doing he performed an act reprobated and forbidden by law. It will not be gainsaid that after delivering their returns and the box to the proper officer the official existence of the commissioners was at an end, and they became functi officiis. Their appointment encompasses the performance of a special duty, the completion of which fixes the term of their official capacity. Cooley in his Constitutional Limitations, p. 623, says of boards of canvassers: “ The board themselves having once performed and fully completed their duty, have no power afterward to reconsider their determination and cometo a different con-' elusion.” This is a fortiori the case with commissioners, whose duties under our laws are to be performed and completed, if possible, in one day. It is therefore safe to conclude that the three defunct commissioners had no power or authority in law to re-open the box after delivery thereof to the clerk, and to take therefrom the second sheet which they handed to the elerk, and which was subsequently considered by the returning officer as a statement of votes ; and that their written statement of December 8th was a puny usurpation of official authority from which no legal effect can flow and no legal deductions be drawn.
It therefore follows that the returning officer erred in giving effect to both sheets, purporting each to be returns of election from the Leon-ville precinct. It is admitted by the defendant that the commissioners did not even pretend to have made, sworn to, and delivered the compiled statements required by section 32 of the election law, ard that their only returns were the tally-sheets under consideration. Under that law the compiled statements should' be and are required as the best evidence, the custom invoked by defendant to the contrary notwithstanding. But in the absence of the best evidence, the returning officer was perhaps justified in having recourse to and considering secondary evidence. And this, in the nature of things, would or should have been the tally-sheet required by law to be kept in duplicates. And here recurs again the difficulty which the officer had to bridge over when he met the two documents purporting each to be the statement of the votes cast at that precinct.
But under American authorities, in order to seek and give effect to the will of the voters of that ward, other evidence, if at hand, or within reach, could and should be used to supply the wanting returns. This evidence was tendered by plaintiff, who prayed the court to open the box and recount the ballots therein found.
Cooley, Constitutional Limitations, says : “ But back of this prima facie case (made by the certificate of election) the courts may go, and the determination of the State Board may be corrected by those of the district boards, and the latter by the ballots themselves, when the ballots are still in existence and have been kept as required by law.”
To that end our statute requires that the boxes, locked and sealed, be delivered in the custody of the clerk, “ who shall keep them in his possession in the same condition for six months after the election.”
Alleging that the ballots had been kept as required by law, plaintiff moved, and the District Court ordered, that the Leonville box be •opened and the ballots therein recounted.
Defendant objected, and has retained his bill of exceptions to the •adverse ruling of the court.
While the evidence introduced in support of plaintiff’s motion does •show that the box opened was the identical Leonville box, yet justice can be done to the parties without formally passing on this bill of exceptions. Defendant has offered no other evidence, and, under our system ■of voting by secret ballots, none was within his reach, to show, without the legal returns, without the duplicate tally-sheets, without a recount of the ballots, what number of votes had been cast for Mm at the Leon-ville box.
By recounting the box, as shown by the tally made under the direc
The dilemma is fatal to defendant’s position, and utterly destroys hie prima facie election.
In reference to the appeal taken by the parish of St. Landry, complaining of that part of the judgment which condemns the parish to-pay the costs of this suit, we find that our predecessors had so decreed' in two celebrated cases, and we concur in the reasons which prompted their ruling. 'We are of opinion that Act No. 59, of April 5,1880, can have no effect on this cause, which was then pending, and we shall not disturb the judgment in that particular.
It is therefore ordered, adjudged, and decreed that the verdict of the-jury be set aside ; that the judgment of the lower court in so far as it decrees C. M. Thompson as elected sheriff of St. Landry be avoided,, annulled, and reversed, and in other respects that it be affirmed; and it. is further ordered that Oornelius C. Duson be decreed to have been legally elected sheriff of the parish of St. Landry at the election held on December 2,1879.
Dissenting Opinion
Dissenting Opinion.
Stress of official engagements and the extremely limited' delay allowed after the conclusion of the earnest deliberations of the-Court upon this important case prevent me from stating, with the fullness which I would desire, the reasons and legal principles upon which I basó my dissent from the opinion of the májority of the Court in this, case. The doctrine quoted in the majority opinion from McCrary on Elections, that “ canvassing and return judges must receive and count the votes as shown by the returns, and cannot go behind the returns for any purpose, and this necessarily implies that if a paper is presented as-a return and there is a question as to whether it is a return or not, they must decide that question from what appears upon the face of the paper itself,” is undoubtedly correct within the limits of its application. But it applies only to the functions of canvassing and returning officers,, which are purely ministerial, and not judicial, in their nature. The same rule does not, however, in my opinion, control the action of a court of' justice exercising judicial functions in the determination of cases of contested elections. On the contrary, the same author, in treating of' judicial proceedings in such cases, distinctly declares that “it is impossible to define exactly the degree of irregularity and illegality in the-
While I am not prepared to say that the recorder, acting merely as a returning officer, was justified in accepting either or both of the papers returned by the commissioners of election as a return, in view of their apparent contradictory character, and in absence of any power on his part to explain them by extrinsic evidence, I still think the court had the right to receive such extrinsic evidence as to these documents, for the purpose of establishing their genuineness, their meaning, and their relation to each other.
The evidence received without objection cbnclusively establishes that these two papers were both prepared and signed by the commissioners of election ; that they were returned to the proper officer, at the same time, the one outside, the other inside, the ballot-box ; that the lattér was taken out of the ballot-box by the commissioners themselves, in presence of the officer in custody thereof, and immediately delivered to him ; that its inclusion in the ballot-box was the result of an accident; that the two documents taken together showed the result of the count of the ballots as ascertained by the commissioners, and constituted the return made and intended to be made by said commissioners.
I think it clear that from these returns, thus aided by extrinsic evidence, the voice of the people, as shown and intended to be shown by the return of the commissioners, is made to appear not only “ with reasonable clearness and certainty,” but with absolute certainty.
I think these returns, thus established and explained, are entitled to the same weight which would be attached to a regular return showing the same result, perfect in form, and complying with all the technical requirements of law.
The effect of the return was to establish a prima facie case in favor of the election of the defendant herein, subject to the right of plaintiff herein to impeach the same. In order to overthrow this prima facie •case by a recount of the ballots in the ballot-box, it was necessary to •establish satisfactorily the identity of the box, that it remained in the same condition in which it was at the moment when it passed from the hands of the commissioners, and that its contents had not been altered ■or tampered with.
This was among the issues submitted to the jury. Yoluminous ■evidence was submitted, full of contradictory and irreconcilable statements of witnesses on either side.
Fraud had unquestionably been committed on one side or the other;
A jury, the fairness of whose composition is not questioned, taken from the vicinage, acquainted with the witnesses, and familiar with all the surroundings of the transactions, determining questions péculiarly within the province of a jury to determine, have rendered an unanimous verdict in favor of the defendant.
I cannot find a sufficient reason in the evidence to justify me in disturbing their verdict.
Concurrence Opinion
Concurring Opinion.
On a careful consideration of the application for a rehearing, and after examination of further authorities applicable to the case, I am of the opinion that it was competent for the District Court, on the trial of this contested election suit, to receive testimony going to show or establish the fact that the two papers or statements purporting together to constitute the return of the Leonville box, did constitute the proper return, and that for the purpose of showing this fact extrinsic evidence could be received. I think that the irregularities as to the returns are not fatal and do not justify the exclusion of the votes cast in that box, but that it was competent to resort to a count of the ballots which had been deposited in the box, for the purpose of ascertaining the true voice'of the voters, as expressed by the ballots themselves. While the law points out certain formalities to be observed as to the returns of the commissioners, a failure to comply with its directions does not per se vitiate the election, and if there are means by which the true vote can be ascertained, such means must be resorted to by the court before which the contest is pending. In this case the irregularities and uncertainties as to the validity of the return of the Leonville commissioners, the doubt arising on their inspection and on their faces as to whether either of the papers was, of itself, an entire return, or whether both together made up and constituted the legal return, justified the introduction of extrinsic evidence to prove the facts in regard to these
Dissenting Opinion
Dissenting Opinion.
The doctrines set forth in the opinion of Mr. Justice Levy, concurred in by the Chief Justice, touching the power of the judicial tribunals to receive extrinsic evidence for the purpose of curing irregularities and formal defects in election returns, and recognizing the prima facie effect of such returns, and touching the foundation to be laid for their impeachment and for resort to a recount of the ballots, substantially accord with the views expressed in my dissenting opinion, and receive my concurrence.
My objections, however, to a reversal of the findings of the jury upon the questions of fact submitted to them in this case are not removed, and on that ground I maintain my dissent from the decree.
By the Court. On an intimation of counsel that in the reasons of the Court overruling the motion to dismiss expressions occur painful to their feelings, we have, in a spirit of conciliation, taken the pains of reviewing the opinion, which was unanimously concurred in by all the ■members of the bench, and correctly announced by bis Honor the Justice who delivered it as their organ, and find that the language which it con
While on this subject we take occasion to say that verbal suggestions of that character, however respectfully intended and uttered, are irregular, and, in future, will not be entertained.
Rehearing
On Application eor Rehearing.
The majority of the Court seeing no reason to disturb the decree previously rendered herein, it is ordered that the petition for a rehearing herein be refused, and that said decree now become final.
