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Appellant was convicted of violating Section 89 of Act
During the course of the proceedings below, appellant reserved three bills of exception upon which he now depends for a reversal of his conviction and sentence. Two of these bills are founded upon the alleged unconstitutionality of the penal *Page 799
provisions of Section 89 of Act
The pertinent provisions of Section 89 of Act
"Any person, Clerk of Court or any State, parish or municipal officer refusing or neglecting to discharge any duty imposed upon him, by any provision of this Act, and any person making any false answer under oath or otherwise, to any person who has authority to require an answer, and any person who shall vote more than once at any single primary election, * * * shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than Fifty Dollars nor more than Five Hundred Dollars and imprisoned for not less than six months nor more than two years in the parish jail and shall further beineligible for four years thereafter to be employed by the Stateor any of its political subdivisions or any board, department orcommission thereof either as officer or employee thereof." (Italics ours). *Page 800
Appellant attacks the validity of the italicized portion of the above quoted section. His counsel proclaims that the legislature is without power to provide that State or district officers convicted of violating the primary election law shall be ineligible to hold office forasmuch as such officers are subject to impeachment and removal only for the causes and by the methods prescribed in the Constitution.1 From this premise, it is argued that the entire section of the Act must be declared unconstitutional for the reason that the cumulative penalties contained therein are inseparable — thus precluding the saving of a part by elimination of the objectionable features. The decision in State v. Gravolet,
In the Gravolet case, the defendant was convicted under Section 33 of Act
Section 89 of Act
On the other hand, when we come to consider whether Section 89 should meet the same fate as Section 33 and be declared wholly unconstitutional, we find that the Gravolet case does not control the result to be reached here for the reason that Act
"If any clause, sentence, paragraph, or part of this Act shall, for any reason, be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this Act, but shall be confined in its operation to the clause, sentence, paragraph or any part thereof, directly involved in the controversy in which such judgment has been rendered."
Due to the absence in Act
But, as we have stated, this rule is inapplicable in the instant matter as we are bound to give effect to the separability clause contained in Act
In the case at bar, we cannot discern any good reason why two of the penalties, i. e., fine and imprisonment, cannot be retained without the other penalty. On the contrary, by striking down the objectionable provision relative to ineligibility to hold office and enforcing the other valid provisions, we adopt a course in strict accord with the intention exhibited by the legislature in its enactment of the separability clause. This legislative intention is made more apparent in the instant case when consideration is given to the amendment and reenactment of Section 89 of Act
Therefore, we hold that the concluding clause of Section 89 of Act
The only other bill of exception was taken to the overruling of appellant's motion for a new trial which was based specifically on the ground that no legal evidence was introduced to show that a primary election was held on the date of the alleged offense. Counsel for appellant argues that, since the only evidence introduced by the State to prove that a primary election was held on January 22d 1946 is a resolution of the Orleans Parish Democratic Executive Committee calling a democratic primary to select democratic nominees for municipal and parish offices *Page 806 and the testimony of various individuals that such an election was held (all of which evidence was admitted over timely objection), the State has failed to offer the best evidence; that the best evidence would have been the certificate of the Secretary of State that the election was held and that, in view of the failure of the State to offer such best evidence, it cannot be said that the corpus delicti has been proved.
We fail to see any merit whatever in this contention. The testimony of the Commissioners of election and others, who stated that they were present at the polling booth where voting was conducted, is direct evidence of the fact that there was an election and not violative of the best evidence rule. Moreover, even if it was, the error in not requiring the introduction of the alleged best evidence (the kind which counsel contends for) was inconsequential and would not authorize a reversal of the conviction. Article
In view of our conclusion that the portion of the sentence respecting ineligibility for employment in a public office for a period of four years is null, the case will be remanded for the purpose of resentencing appellant.
For the reasons hereinabove given, the conviction is affirmed and the case is remanded to the Criminal District Court *Page 807 for the Parish of Orleans for the Judge of Section "C" to impose a sentence in accordance with the views herein expressed.
O'NIELL, C. J., absent.
"Any person refusing or neglecting to discharge any duty imposed upon him, by any provision of this act, and any person making any false answer under oath or otherwise, to any person who has authority to require an answer, and any person who shall vote more than once at any single primary election, * * * and any person who buys any vote, * * * shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than Fifty Dollars nor more than Five Hundred Dollars and imprisonment for not less than two months nor more than one year in the parish jail and shall further be ineligible for four years thereafter to hold any office of trust or profit in this State."
"In the absence of such a provision, the presumption is that the Legislature intends an act to be effective as an entirety — that is to say, the rule is against the mutilation of a statute; and if any provision be unconstitutional, the presumption is that the remaining provisions fall with it. The effect of the statute is to reverse this presumption in favor of inseparability, and create the opposite one of separability. Under the non-statutory rule, the burden is upon the supporter of the legislation to show the separability of the provisions involved. Under the statutory rule, the burden is shifted to the assailant to show their inseparability. But under either rule, the determination, in the end, is reached by applying the same test — namely, what was the intent of the lawmakers?"