130 La. 590 | La. | 1912
Lead Opinion
On Motion to Dismiss Appeal.
Plaintiff and the defendant Naff were candidates, at a primary election held in the parish of Morehouse, on January 23d of this year, for the Democratic nomination to the clerkship of the district court, and on January 27th, when the Democratic parish executive committee convened to promulgate the result of the election, plaintiff filed a protest, which having been duly considered, the committee declared that the defendant had received the nomination. Thereafter, on February 15th, plaintiff instituted this suit against defendant and the committee, praying; that the action of the committee be reviewed and reversed and that the court declare him the nominee. After hearing, there was judgment, on March 16th, in favor of defendant, and on the same day plaintiff obtained an order for an appeal, as follows:
“Judgment rendered and signed in open court. The counsel for plaintiff, being present in open court, asks for a suspensive appeal to the honorable Supreme Court of Louisiana, made returnable instanter. The counsel for the defendant being present in open court and taking cognizance of the same, the court ruled that such an appeal is hereby granted, as provided for and contemplated in section 25 of Act 49 of 1906, * * * upon plaintiffs giving bond in the sum of $100, * * * said appeal, as per request of attorneys of plaintiff, being made returnable instanter. The said ruling having been made over the objection of the defendant’s counsel, who retained a bill of exception.”
Defendant moves to dismiss the appeal on the grounds: (1) That there is no law authorizing, and that the court is without jurisdiction to entertain, such appeal; (2) that the appeal, if allowable, was improperly made returnable instanter; (3) that the plaintiff applied for, and there was granted him, only “such appeal * * * as provided for and contemplated in section 25 of Act 49 of 1906, * * * ” and that, as all the provisions of that section relative to appeals were omitted in the amendment and re-en
The motion to dismiss the appeal is therefore overruled.
Opinion on the Merits
On the Merits.
In the protest presented to the committee, plaintiff alleges: That he and defendant were the only candidates for the nomination in question. That, on the face of the returns, he received 368, and defendant 372, votes; that the election was null, because of the following alleged illegalities at Jones’ precinct, in the Tenth ward, to wit: (1) That the poll was closed before 7 o’clock p. m.; (2) that W. L. Pugh was a commis
“That any candidate, feeling aggrieved at the result of the said primary, shall, then and there, file his written protest, setting forth, in detail, clearly and distinctly, his grievances, and the committee shall, immediately, proceed to hear and determine same and proclaim the result of said primary; provided, however, that any candidate feeling aggrieved by the decision of the committee shall have the right to have the same reviewed by a court of competent jurisdiction; provided, further, that the committee, hearing and determining the said contest, shall have the authority to summon witnesses and compel their attendance, administer oaths and order the production of any books, papers, or documents that may be necessary, and do any act or thing that it may deem necessary to arrive at a correct decision of said protest or contest.”
“The voter shall be at liberty, if he is unable to prepare his own ballot, to call upon one of the commissioners, or watchers, or clerks of ■election, to assist him.”
And for violation of that provision, the .guilty person is to be punished (under section 31 of Act 49 of 1906) by fine, imprisonment, and disfranchisement. But it is nowhere said that, as a further penalty, the ■election, otherwise legally conducted, and ■whereby a majority of the qualified voters have expressed their will, is to he set aside. The generally accepted doctrine applicable to the point thus presented is stated as follows:
“Where a Legislature declares a certain irregularity in election procedure to be fatal to the validity of the returns, the courts will effectuate that command. And the whole con■duct of election officers may, although actual fraud be not apparent, amount to such gross negligence and such a disregard of their official ■duties as to render their return unintelligible or unworthy of credence. But the power to throw out an entire division is one which ought to be exercised with the greatest care and only under circumstances which demonstrate beyond ¡all reasonable doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever, or where the great body of voters have been prevented by violence, intimidation, and threats from exercising their franchise.” Cyc. vol. 15, p. 373.
See, also, Burton v. Hicks, 27 La. Ann. 514; Madere v. Sellers et al., 120 La. 812, 45 South. 735.
In the instant ease, the great body of the ■voters have been accounted for; that is to say, 26 of, say, 51, who were entitled to vote, and of 46, who voted, were called by plaintiff as witnesses,, and the consensus of their testimony is that the election was fairly conducted. And, as they all voted the same way, so far as the nomination to the clerkship is concerned, we must assume that the other 20 would have testified in the same way, if plaintiff had thought proper to put them on the startd.
Our conclusion is that there is no error in the judgment appealed from, which rejected plaintiff’s demands, and it is, accordingly, affirmed.