115 So. 2d 368 | La. | 1959
The relators, Mrs. Una M. Vullo and Bernard R. Martin, claiming the right to be candidates for the offices of Justice of the Peace and Member of the Police Jury, respectively, for Ward Eight of Plaque-mines Parish and contending that the ordinances adopted by the Police Jury of that Parish on February 7, 1959 and on May 22, 1959, purporting to abolish Ward Eight, are unconstitutional and therefore illegal, null and void, seek by mandamus proceeding to have the Plaquemines Parish Democratic Executive Committee meet and order that nominations for ward officers for Ward Eight, including the offices of Justice of the Peace and Member of the Police Jury, be made by direct primary to be held on December 5, 1959, and to certify relators as candidates for nomination to the offices to which they aspire so that their names may be placed on the official ballot to be used in the said primary election. The Police Jury of Plaquemines Parish is also made defendant in the suit.
The events which led to this proceeding, as disclosed by the record, began with the adoption by the Police Jury of the Parish on February 7, 1959, of “An Ordinance To Abolish the Eighth Ward of the Parish of Plaquemines and to consolidate said Ward with the Seventh Ward of the Parish of Plaquemines, to be designated the Seventh Ward * * *.”
On August 24, 1959, prior to the meeting of the Plaquemines Parish Democratic Ex
On September 9, 1959, the Plaquemines Parish Democratic Executive Committee met
On the return day (September 22, 1959) the respondents filed exceptions of lack of jurisdiction ratione materiae, lis pendens, misjoinder of parties defendant, misjoinder of causes, prematurity, no right of action, and no cause of action. Also on the return day, a petition of intervention was filed by James L. Armstrong and Edward John Foster, who alleged they had filed their notification of candidacy accompanied by cash deposit with the Chairman of the Parish Democratic Executive Committee as candidates respectively for Police Juror and Justice of the Peace of the Eighth Ward, and declaring that they were in the same situation, relatively, as plaintiffs and are entitled to be recognized as candidates and to have their names certified, prayed for judgment in their favor to the same effect as any judgment that may be finally rendered in favor of plaintiffs. Following argument, the Trial Judge maintained the exception of lis pendens and dismissed both the main demand and the demands of in-tervenors, and the intervenors immediately perfected an appeal to the Court of Appeal for the Parish of Orleans, made returnable October 7, 1959.
Relators contend that the Ordinance of February 7th is illegal, null, void and unconstitutional in that it (a) merely abolishes and eliminates a single ward of the Parish, instead of redistricting the Parish into not less than five nor more than twelve Police Jury wards, as provided by R.S. 33:1224;
The ordinance of May 22, 1959 is attacked as a nullity because by its terms it changes the boundaries of Wards Seven and Nine and eliminates Ward Eight— a procedure unauthorized in law; and if interpreted as an attempt to redistrict the Parish, it is null and void because of failure (as in the case of the earlier ordinance of February 7th, and for the same reasons) to comply with the requirements of R.S. 33:1224. With allegations throughout that the ordinances are “illegal, null, void and unconstitutional and should be so declared by the Court”, relators prayed that a writ of mandamus issue, as stated above, and for equitable relief.
In this Court the respondents Plaque-mines Parish Democratic Executive Committee and Police Jury filed a document styled Motion to Dismiss, praying that the writs be recalled and the relators’ demands be rejected at their cost, based on the contentions (a) that this Court lacks jurisdiction to review the judgment and decree of the Court of Appeal because such judgment is final and executory from rendition; and (b) relators having failed to appeal within five days from rendition of the judgment in the lower Court, the right of appeal has been lost.
While it is contended on the merits of this case, that in attempting to eliminate and abolish Ward Eight by the said Ordi
It is a universal rule in this country that the validity of an election contest as .well as the machinery controlling such elections presents political rather than judicial questions, in the absence of an express ■constitutional or statutory provision granting to the courts jurisdiction over the controversy. In conformity with the mandate ■of the Constitution of this State
For the reasons assigned, the writ issued in this case, is recalled and vacated and the proceedings in this Court are dismissed, at relators’ cost.
. The ordinance provides: “Whereas, the Eighth Ward is the smallest Ward, both in area and population in the Parish of Plaquemines and the Eighth Ward no longer has an elected member of this Police Jury to represent the people of that Ward on their Parish governing body, and this Police Jury considers it in the best interest and convenience of the people of the Parish of Plaquemines to abolish the Eighth Ward and to consolidate the Eighth Ward with the Seventh Ward, therefore;
“Be It Ordained by the Police Jury of the Parish of Plaquemines, La., that from and after this date, the Eighth Ward of the Parish of Plaquemines be and the same is hereby abolished, and that the areas included within the Seventh and Eighth Wards be and the same are hereby consolidated into the Seventh Ward of the Parish of Plaquemines, and designated as the Seventh Ward, and the area previously included in the Eighth Ward be designated the Third Precinct of the Seventh Ward;” (followed by a repealing clause).
. According to the allegations of the petition, Mrs. Vullo had been elected at the general election of 1956 to the office of Justice of the Peace, Ward Eight, for a term of four years, for which she had received a salary from the Police Jury of $50 per month, but with the adoption of the ordinance of February 7th, the salary was discontinued. We understand that this suit was dismissed on an exception, and that no appeal was taken from that judgment.
.It appears that on the said return day of August 27th, a continuance of ten days was granted (to September 8th) on motion of the Parish Democratic Executive ■Committee’s Secretary, who represented that service had not been made on each •of the fifteen individual members of the ■Committee although they were named in the petition and that, in any event, the •defendants had not been given sufficient time to prepare their defenses. On September 4th, by joint motion of defendants, .and on representing that the fifteen members of the Committee were made defendants (denied by plaintiffs’ counsel) but that none was served with petition or citation, obtained an order “that this cause be continued, to be refixed on the motion of attorneys for plaintiff after they have had service made on said fifteen individual defendants.” On the same date, plaintiffs were required to file a bond for costs in the sum of $250, to cover the cost of such additional services. The bond was furnished, according to petitioners’ written objections, “solely to prevent the dismissal of relators’ suit for failure to give security for costs,” and under protest by plaintiffs’ counsel that the further continuance had been granted without a hearing and the bond for costs had been signed improvidently, since citations and service are not required by law to be made upon individual members of said Committee, and in any event the Clerk of Court always requires prepayment of all costs.
. The Democratic State Central Committee had mot in accordance with legal requirements (R.S. 18:299) and issued its call for a primary election for State offices; the date for said election was fixed for December 5, 1959. Within ten days after that call issued, the Parish Committee met. (R.S. 18:300)
. According to the Committee’s Resolution, the Parish offices to be filled were Sheriff, Clerk of Court, Assessor, Coroner, Representative, and Members at Large of the Democratic Executive Committee; and Ward offices to be filled, for “Wards 1, 2, 3, 4, 5, 6, 7, 9 and 10” were Justices of the Peace, Members of the Police Jury, Constables, and Members of the Parish Democratic Executive Committee.
. The record was actually filed in the Court of Appeal on September 23, 1959.
. In denying the application (October 5th) we said: “The relators have an adequate remedy by appeal inasmuch as the appeal in this case was made returnable to the Court of Appeal for the Parish of Orleans on October 7, 1959, and that Court, under the law, must fix the case by special preference and dispose of the matter in its entirety, including all issues that are presented, within twenty-four hours.”
. In reaching this result the Court reasoned that while the Police Jury of Plaq-uemines Parish was also named defendant, no relief was sought against it; that the Plaquemines Parish Democratic Executive Committee was without authority to make determination of the legality vel non of the ordinances; and conceiving the matter to be a collateral attack on the action of the Police Jury and “not a proceeding by which relators are seeking to have the abolition of Ward 8 of Plaq-uemines Parish by the Police Jury declared illegal and without force or effect,” expressed the firm opinion that “before any court could * * * grant the relief for which the relators pray against the parish executive committee, they should, as a prerequisite, have it judicially declared in a direct action that the ordinances in question which abolished Ward 8 are null and void and that notwithstanding these ordinances former Ward 8 is still in existence.” 115 So.2d 74.
.E.S. 33:1224 provides: “The police jury of each parish may redistrict their parish into not less than five nor more than twelve police jury wards, as the convenience of the people may require, and shall at the same time district these
. Article 7, Section 46, La.Const. of 1921, declares “Any parish of the State, the parish of Orleans excepted, may be divided by the police jury thereof into not more than six nor fewer than three justice of the peace wards, from each of which there shall be elected one justice of the peace; provided, that the Legislature may reduce such number, or even abolish the office of justice of the peace throughout the State.
“The number of justice of the peace wards in the several parishes shall remain as now fixed until rearranged, or until the office of justice of the peace may be abolished, as herein provided.”
. Section 46 of Article 7 is quoted in footnote 10; Section 47 provides that “Justices of the peace * * * shall be elected at the general state election for terms of four years, by the qualified voters within the territorial limits of their jurisdiction.” Section 48 deals with jurisdiction of Justices of the Peace, and Section 49 concerns Constables, their election, term of office, etc.
. That section provides, in part: “ * * the appeal shall be filed in the appellate court within not more than five days from the rendition of the judgment * * *_»
. Article 8, Section 12 provides: “The Legislature shall provide by law for the trial and determination of contested elections of all public officers, whether State, district, judicial, parochial, municipal or ward (except Governor and Lieutenant Governor), which trials shall be by the courts of law, and at the domicile of the party defendant.”