State ex rel. Hunter v. Capers

37 La. Ann. 747 | La. | 1885

Opinion on the Merits

On the Merits.

At an election held in April, 1884, the relator and defendant were rival candidates for the office mentioned.

On the 22d of May thereafter the defendant received from the Governor a commission, and qualified under it.

*750On the 17th of the following month the relator also received a commission for the office. This commission, containing the recital “ that at an election held on the 22d of April, 1884, * ° >J William Hunter {relator) was declared duly elected j ustice of the peace for Second ward of Red River parish, La., vice R. L. Capers, who was commissioned in error,” etc.

There was judgment in favor of the relator, from which the defendant has appealed.

The only evidence before us are the two commissions referred to.

In an elective office the right and title to the office is not conferred by the commission of the Governor, but by the electors voting at such election—-the one receiving the highest number of votes being legally entitled to the office, unless under some disqualification. The commission is but the evidence that the person named therein was thus duly elected to the office.

Section 40 of Act 58 of 1877.provides : “It shall be the duty of the Governor, not less than thirty days after each general election, to issue commissions to all officers shown by the compilation of the returns to have been elected.” Another section makes it the duty of the Secretary of State to make this compilation.

If, in point of fact, the one commissioned has not been duly elected, has not received the highest number of votes cast, though the commission so declare, he is not entitled to the office.

The question here arises that, if a commission issues thus certifying to a fact that does not exist, does it lie in the power of the Governor or other officer issuing it to correct the error and grant a commission to the party really and legally entitled to it; and will such second commission be of higher authority than the first one,?

We are constrained to answer these questions in the affirmative.

It is an elementary principle that all executive officers, and those exercising ministerial functions—save in exceptional cases, which have no application here—have the right and it is their duty to correct errors or mistakes in returns, reports and other acts done in the discharge of the duties imposed upon them by law. Thus, any error committed by the Secretary of State in tabulating or compiling the returns of election made by the proper returning officers may undoubtedly be corrected by him. And if such compilation, before corrected, should have misled the Governor, or otherwise he should have been led into such error, and under such error should have issued a commission, it was certainly his right and duty to correct it.

*751Again, there is a legal presumption in favor of such officers of having correctly and faithfully discharged their duties. This principle applies with full force in favor of the act of the Governor in this instance with respect to the commission issued to the relator and the recital of the error therein made relative to the former commission. It was in consideration of this principle that the enunciation was made in the case of Hunter vs. Blackman, Manning’s Unfeported Cases, p. 75, that full credit was to he given to the second commission therein referred to, which we approve as a correct exposition of the law.

We have examined with great care all the authorities referred to in the able brief of the defendant’s counsel, but find them not in point.

Judgment affirmed.





Lead Opinion

The opinion of the Court was delivered by

Todd, J.

This ease presents a contest for the office of justice of the peace of the Second ward of the parish of Red River, under the Intrusion into Office Act, being Act 56 of 1868.

There is a motion to dismiss the appeal for want of jurisdiction in this Court, ratlone materice. The relator avers that the office is worth more than five hundred dollars, and the defendant that its value exceeds two thousand dollars.

Talcing the pleadings as the test, without any suggestion that the estimate made therein is fictitious, or any reason to so conclude, we think this Court has jurisdiction, and the motion to dismiss is denied. 33 Ann. 1051.