49 La. Ann. 565 | La. | 1897
The opinion of the court was delivered by
The plaintiff appeals from the judgment dismissing his petition contesting the election of defendant as sheriff of the parish of Natchitoches.
The petition charges, in substance, that the Board of Supervisors excluded in their compilation of the votes cast at the election the vote east at Ward 3 of the parish, and thus deprived petitioner of the count in his favor of a majority of one hundred and eighty-seven he claims to have received at that poll as a candidate for sheriff. At other polls he charges the receiving of illegal votes, the exclusion of legal votes and other wrongful acts on the part of the commissioners to his prejudice by which he claims he was deprived in the count of a number of votes cast in his favor, and he allegés that the votes cast for him, but not counted by the Board of Supervisors, were
The plaintiff by motion and the plea in bar, as it is termed, sought to exclude from the defendant’s answer, all defences, excepc those relating to the grounds of contest stated in the petition. There were other preliminary questions arising on the applications to count the votes before the trial; on rules to compel security for costs, and other questions which have been discussed in the brief. But in our view these questions require no consideration under the agreement of the parties as to the issue for decision.
The plaintiff excepted to the allowance of the jury, the plaintiff' insisting that under the law the trial must be by the court without a jury. The Revised Statutes prescribed the jury trial and a majority verdict as the mode to determine contested election cases. Under-the later act of 1877 and that of 1894, now in force, the method of trial is to be that for ordinary cases, save that election contests are to have a preference. As trial by jury is secured to all suitors who-claim it, we find no basis to deny a jury in a contested election case. Act No. 24 of 1894, No. 24 of 1877. Code of Practice, Arts. 494, 495,
On the trial the plaintiff offered in evidence the compilation of the votes and. the proclaimed result announcing defendant’s election;. there was the admission that the compilation embraced no votes at-
The argument for plaintiff is, substantially, that the paper accompanying the box and the ballots in it showed the plaintiff’s election. The election law provides that the duly appointed commissioners shall conduct the election, count the ballots, replace them in the box sealed, and deliver the tally lists, list of voters, compiled statements and ballot boxes to the Board of Supervisors. On the returns thus made the board is to compile the total vote at all the polls, proclaim the result, and on that proclamation the commission issues to the successful candidate thus announced. Act 181 of 1894, Secs. 36,37, 40, 42. In this ease the paper relied on by plaintiff is not attested by the commissioners appointed by the board, but is signed by one only and two persons not shown to have had any official relation to the election. It is urged on behalf of the plaintiff that the law authorizes one of the commissioners to act, and to appoint others. But
We have given attention to the discussion in the brief, whether the jury should have considered the affidavit of the two commissioners detailing the occurrence at poll 8, and stating that the votes claimed by plaintiff at that poll were illegal. The affidavit is shown to have been offered in connection with defendant’s objections to the testimony, and also to have been offered on the merits. On the rule for new trial, the contention was the paper should not have been considered by the jury. Its only function, it is claimed, was to support the objections to the testimony. The learned counsel for plaintiff evinces the sincerity of his appreciation that the affidavit should be restricted to the objections. On the other hand, the counsel for defendant certainly understood the paper was before the jury on the merits. In that faith, relying on the minutes, the defendant closed his case. The argument to the jury on both sides, we gather from the affidavits, was to some extent devoted to that paper. Under these circumstances, we do not feel at liberty to set aside a verdict upon the ground that notwithstanding the note of evidence the affidavit is not to be deemed offered in evidence, and on the assumption it exerted an improper influence on the jury.
The election law makes liberal provision to maintain the actual election by the votes cast. No election, it is declared and repeated, shall be vitiated by the omission of duties on the part of the commissioners or of any other instrumentality to conduct the election. While it gives prima facie effect to the proclaimed result, the party aggrieved by that proclamation is reserved the fullest opportunity to overthrow that announcement by proof that he received the majority of votes. The carefully framed petition of the plaintiff contained all the averments to give him the office, if sustained by the proof. It must be borne in mind that had he chosen to offer the testimony, the defendant would have had the right to offer opposing proof.
The rule for the new trial was mainly devoted to the influence supposed to be exerted upon the jury by the affidavit, and, on that ground the application for another trial is earnestly insisted upon here. We have already expressed our views on that point, and our conclusion is the court did not err in refusing'the new trial.
We have considered the case in all its aspects and find no basis on which we can disturb the verdict.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.