166 So. 157 | La. Ct. App. | 1936
On February 20, 1936, we entered the following decree in this case in open court at Baton Rouge:
"Per Curiam.
"Following the course pursued by the Supreme Court in the case of McConnel v. Salmon,
"For the oral reasons assigned and for the written reasons to be hereafter filed,
"It is now ordered, adjudged and decreed that the judgment of the District Court in so far as it sustained the exception to the jurisdiction of the Court be and the same is hereby reversed, and that, in so far as the judgment of the District Court sustained the exception of no cause of action and dismissed plaintiff's suit, same is hereby affirmed."
In accordance with the above decree, we now give the following written reasons in amplification of the oral reasons assigned at the time of handing down the decree:
Plaintiff and defendant were rival candidates for the office of justice of the peace for the Fourth ward of St. Mary parish at the Democratic primary held on January 21, 1936. In that primary plaintiff received 59 votes and defendant received 264 votes. The plaintiff alleges that the defendant did not, at the time of filing his declaration of intention to become a candidate for said office, nor at the time of filing suit, possess the constitutional qualifications to become a candidate for said office in said primary election, or in the general election following said primary, because of the fact that said defendant was not and is not a freeholder in said parish nor is he able to read and write the English language correctly, as required of a justice of the peace under article 7, § 47, of the Constitution of the state. Plaintiff alleges that, as said defendant was not a legally qualified candidate at said primary election for the reasons stated, all votes cast for defendant were null and void, and should not have been counted; that he, plaintiff, was therefore nominated. He prays that the nomination of defendant be set aside and that he be declared the nominee.
Defendant first filed an exception to the jurisdiction of the court rationæ materiæ; and, with full reservations, of this exception, filed an exception of no cause or *158
right of action; and, again with full reservation of both exceptions, defendant filed an exception of five days' prescription under section 11 of Act No.
It therefore becomes of importance to determine whether or not the qualifications for a justice of the peace prescribed by the Constitution, requiring that he be a property owner and able to read and write the English language correctly, are such as must be passed on by the party committee under section 11. In order to become a candidate in a party primary election, section 10 of the said Primary Act as amended by Act No.
This distinction was made by us in the case of Duplessis v. Harrell,
We do not construe the statements made by the Supreme Court on application for rehearing in the case of Le Blanc v. Hoffmann, supra, as being in conflict with our conclusions in the above-cited case and in *159 the present case, for the reason that the disqualification before the Supreme Court in the Le Blanc-Hoffmann Case did not involve the eligibility of the candidates to hold the office for which they were candidates.
Our conclusion is that the plaintiff was not required to urge before the party committee the alleged disqualifications or ineligibility of defendant to hold the office of justice of the peace. As the plaintiff is claiming the nomination for himself over the defendant, his case comes under section 27 of the primary law (as amended by Act No.
As we have already stated, the qualifications of defendant here challenged affect his eligibility to hold the office of justice of the peace under article 7, § 47 of the Constitution. Defendant is not yet elected to this office, but only nominated by his party. We have no assurance that he will be elected at the general election in April, 1936. Non constat, if and when he is elected, he may then possess the qualifications to hold the office. The attack on the defendant's qualifications to hold the office and discharge its functions is premature, and shows no cause of action. We again quote from the case of Duplessis v. Harrell, supra: "In regard to the complaint that contestee is not qualified to hold the office, because he is not assessed in the sum of at least $500, as required by Act No.
Plaintiff places great reliance in support of his case on the two cases of Hall v. Godchaux,
It will be noted that the ground of ineligibility urged against Godchaux in that case was the fact that he was not a qualified voter, which also disqualified him to become a candidate in the primary, as the primary law then, as now, required that a candidate must be a qualified voter in order to enter the primary. As Godchaux was found not to be a qualified voter, it was held that he could not be a qualified candidate in the primary, and his nomination therein was null. But the disqualification urged against defendant in the present case is not such as would have prevented him from being a candidate in the primary, but, as already stated, only affected his right to be elected to the office and to discharge the functions thereof. In other words, defendant was not a disqualified candidate in the primary, even though, if elected, he may be declared ineligible to hold the office, unless he becomes qualified in the meantime. We cannot declare his nomination null.
The case of Roussel v. Dornier et al., rather supports our conclusions, as it held that, in the absence of any authority in the party committee to pass on the qualifications of candidates entering the primary, *160 as was the law at that time, the right of a candidate who received the most votes in the primary to hold the office cannot be tested in a suit brought by another candidate for the same office, as the alleged ineligibility of the candidate to hold the office raises a question in which the state is concerned.
It was for these reasons that the judgment of the district court in sustaining the exception of no cause of action was affirmed in the decree handed down in this case, and which is copied herein.