Plaquemines Parish Democratic Executive Committee v. Board of Supervisors of Election 90 So. 2d 868, 231 La. 146

MOISE, Justice.

Owing to the importance of this case, it is necessary that a prompt decision be rendered herein, and being of the opinion that the judgment of the lower court is violative of LSA-R.S. 18:555 and is therefore null, void, and without effect, as will be hereafter pointed out in written reasons;

It is Ordered,- Adjudged, and1 Decreed that the writs issued herein be made 'peremptory; that the judgment of,the district-court be annulled, reversed, and set aside; that the preliminary injunction issued herein by the lower court .be .recalled and set aside; and that plaintiff’s suit be dismissed.

HAMITER, J., dissents with written reasons.

' HAWTHORNE, J..,--concurs in-the decree. ' : .

, McCALEB, J., dissents with written reasons to be- assigned. .

MOISE, Justice.

Writs, accompanied by-'a stay order, were grantéd under our supervisory jurisdiction, Article VII, Sec. 2, Louisiana Constitution of 1921, LSA, to review a judgment of the trial -court, restraining the Board of Supervisors of Election,- for the Parish of Plaquemines, et al., from appointing commissioners, or certifying any person to serve in the Géneral Election, to be held 'in the Parish, on November 6, 1956, whose name does not appear on a list furnished to the Board of Supervisors Of Election, by -the Parish Democratic .Committee, on September 15, 1956, and ordering the Board to-appoint election officials 'from the list submitted by the Parish Committee.

The facts leading up to. .this controversy over the appointment of election officials to-serve at the polls in Plaquemines Parish,, for the General Election to be held on November 6, 1956, show that the Board of Election Supervisors for that parish, selected the officials partially from a list submitted by the .Parish Democratic Commitee, the so-called Independent Democratic Organization, and the Republican Party. The Independent Democratic Organization and the Republican Party are .not parties in these proceedings.

Relator argues that the list submitted by the Parish' Committee was not a valid list, *870because it was not approved by the State Central Committee in accordance with Act 224 of 1940, Sec. 12, as amended by Act 439 of 1952, LSA-R.S. 18:555.1

The respondent takes the position that the Board of Supervisors of Election could not name any of the election officials except those contained on the list submitted by the Parish Committee. It further contends that it has not been the custom to secure the approval of the State Central Committee of lists of officers to serve at the polls compiled by the Parish Committee, conceding that the list of names presented to the Board of Supervisors of Election by the Parish Democratic Committee was not approved by the State Central Committee.

The simple answer to respondent’s position is that the contention of custom cannot prevail over positive law. We are substantiated by the following statement in American Jurisprudence, Volume 50, Paragraph 513, page 524:

“Generally. — All acts not in terms limited in their operation to a particular term of time are in legal contemplation perpetual; that is, they continue in force until duly altered or repealed by competent authority. * * * ”

We find from the record that the chairman of the Parish Committee was a mem- ber of the State Central Committee, and had knowledge of the directions of LSA-R.S. 18:555. In fact, he introduced a resolution in January or February of 1956, which was adopted by the State Central Committee, granting a blanket approval of lists to be used in the General Election of April, 1956. The act of 1952 reiterates the law, and the chairman of the Parish Committee gave effect to that law in the early part of 1956 by introducing the aforementioned resolution.

Respondent rely on the decision in the case of Cranmer v. Fidelity & Casualty Co. of New York, La.App., 18 So.2d 220, 222, which we refused to review on writ of certiorari. In that case, the Court of Appeal in construing the phrase “ ‘subject to the approval of the court’ ”, LSA-R.S. 23:1206, held that it was not intended by the Workmen’s Compensation Law that such approval be a condition precedent to adjustment of differences, but what was meant was that the inquisitorial power of the court was not removed. This case is clearly inapposite both from a factual and legal standpoint. In fact, it supports our conclusion here. That case was decided in accordance with statutory construction that a statute must be construed consonant with and in order to give full effect to its object.

The Court of Appeal in deciding that case followed that rule and gave the subject phrase a meaning that would make effective the object of our Workmen’s Compensation Law, that the injured employee would receive compensation or sustenance during the period of his disability.

In reaching our conclusion, that the Parish Committee must secure the approval of the State Central Committee of *871lists of officers to serve at the polls, we have followed the same rule, as set forth in the Cranmer case, supra, basing our decision, so as to give an effect to the subject phrase consonant with the object of Act 224 of 1940, LSA-R.S. 18:555, expressed in the title thereof;. that is,

“To preserve the purity of the ballot, * * * >’

It is apt to observe that the conclusion we have reached here carries out the intention of LSA-R.S. 18:555 as therein expressed, that:

“Insofar as is practicable, the commissioners shall be so apportioned as to represent equally all the political parties authorized to make nominations. * * *»

The issue here is Sui Generis. In such cases we cannot, as judges, be mere technical legal experts, with our noses in leather bound books of decided cases. We can find no such case; therefore, this suit demands more specifically the absence of the idolatry of precedent worship, a less devotion to legal abstractions of matters supposed, a greater notice of a fair apportionment of commissioners and clerks of election, so as to insure the object of the enactment expressed in its title constitutionally imposed ; and, we must be imbued with the spirit of what is right, is right.

HAMITER and McCALEB, JJ„ dissent with written reasons.

HAWTHORNE, J., concurs in the decree, with written reasons.

HAMITER, Justice

(dissenting).

LSA-R.S. 18:555 (as amended), the source of which is Section 12 of Act 224 of 1940, recites that in every parish the board of supervisors shall appoint the necessary commissioners and clerks for general elections from lists containing names furnished by each political party. It concludes: “The parish committee, subject to the approval of the state central committee of each political party, shall select the names which are to be sent to the board as provided herein.”

In this cause (I did not participate in the granting of the writs which brought it here) an interpretation of the quoted provision is necessary, and for determination is the question of whether or not such provision requires that the names submitted by the parish party committee to the board of supervisors, in' order for the list containing them to be acceptable, valid and legal, be specifically approved by the party’s state central committee.

Considering the history of the development of the legislation under consideration, along with the construction heretofore given to it by the affected agencies with the apparent sanction of the Legislature, I am of the opinion that such question should be answered in the negative.

For many years prior to 1934 our statutory law, Act 130 of 1916, directed the board of supervisors to make the appointments of commissioners and clerks from lists of names compiled and furnished by each of the several political parties. Although there was no provision then as to who. should prepare the lists the compilations (at least since 1926 according to the record) were made and submitted by the parish party committee without any objection from the state central committee, and they were acted upon by the board of supervisors.

By an Act of 1934 (No. 6 of the First Extra Session) and another in 1936 (No. 125) the election law was changed by deleting the requirement that the boards’ appointments be made from lists of names furnished by each political party: "However, by Act 224 of 1940 (the source of LSA-R.S. 18:555) the Legislature restored the previously deleted requirement. It enacted as Section 12 of such statute the identical language contained in the same *872numbered section of Act 130 of 1916 and, in connection therewith, added the provision in dispute herein. This addition clearly was a recognition of the discussed historic act of the parish party committee (providing the board with lists of names) when performed with the approval of the state central committee, which approval for many years prior to the 1934 statute had been tacitly given. And, according to the record, continuously since 1940 — a period of 16 years in which at least seven general elections were held — the same tacit approval of the lists .submitted by the parish party committees throughout the state has been accepted by the various boards without any objection from them or even from the Legislature which undoubtedly was aware of the practice followed.

True, the record discloses that in February, 1956 the Democratic State Central Committee adopted a resolution authorizing the parish party committees to prepare and submit to the boards of supervisors the necessary lists in.-connection with the holding of the April, 1956 general election. But -this action had no effect on the discussed tacit approval granted-by it during the previous sixteen', years • or that which might be given thereafter. Rather, it indicates that the names' actually selected by the parish party committees do not themselves. have to be' approved by the state central committee.., T

Of course, had the Democratic State Central Committee at its meeting in February, 1956 expressed disapproval of the parish party committees’ custom of selecting and submitting the'.names,-it might be successfully’ argued that thereafter a .resumption of the former practice would require specific approval.- -But the mentioned adopted resolution indicated no intention of discontinuing the tacit approval that had been extended' and accepted through the years. ' -

It is my view, therefore, that in the absence of specific objection on the part of the appropriate state central committee the lists of names prepared and submitted by-parish party committees to the boards of supervisors, as provided for in LSA-R.S. 18:555, are legal and valid and must be acted upon by such boards. Incidentally, I cannot bring myself to believe that the Legislature ever intended to require the state central committee to convene in special session shortly before every general election for the purpose of scrutinizing and specifically approving at least six names submitted from each of the 2,041 precincts in this state — a minimum total of 12,246 names.

I respectfully dissent.

MeCALEB, Justice

(dissenting).

I adhere to my previous view that the writs herein were improvidently granted •because of the fact that the case. will be moot- (election being November 6, 1957) before any decision this Court is able to render, will become final and effective. See State v. Hayes, 199 La. 269, 5 So.2d 768; Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660; Pellegrin v. City of Gretna, 222 La. 527, 62 So.2d 824; Freret Civic Ass’n v. Orleans Parish School Board, 223 La. 407, 65 So.2d 893; Hirt v. City of New Orleans, 225 La. 589, 73 So.2d 471; Jefferson 7th Ward Social Club v. Grevemberg, 225 La. 607, 73 So.2d 777; State ex rel. Jackson v. Madden, 225 La. 786, 74 So.2d 29; Succession of Washington, 229 La. 862, 87 So.2d 9 and particularly State ex rel. Jones v. Slater, 205 La. 1077, 18 So.2d 627.

But, apart from this, I have no difficulty in concluding that the trial judge was right in restraining the Board of Supervisors from appointing commissioners from any list other than that submitted by the Parish Democratic Committee as that committee was the only committee, representing a political party that submitted a' list of names in accordance with law. The pertinent portion of R.S. 18:555 provides:

“In every parish the board of supervisors shall, thirty days prior to any *873election, appoint three commissioners and one clerk to preside over the election at each polling precinct. They shall be qualified voters of the ward of which the polling precinct forms a part and shall be appointed from lists to contain not less-than six names furnished by each political party. These lists shall be furnished to the board at least thirty-five days before the day of the election. Any list offered after that date shall not' be received, nor shall any such list be received or acted upon or recognized by the board of supervisors of election which shall contain the name of any person not registered as affiliated with the party handing in the list. * * * The 'parish committee, subject to the approval of the state central committee of each political party, shall select the names which are to be sent to the board as provided herein. (Italics mine.)

The foregoing is clear and explicit, spelling out the authority and' duties of each parish Board of Supervisors. The power of appointment granted these boards is limited to appointment from a list to be furnished by the political party.- The only authority these boards have to reject any list is plainly stated to be (1) when the list has not been received within 35 days before the date of election and (2) it may refuse to act on any such list when it contains the name of any person not registered as affiliated with the political party handing in the list.

In the instant case, the Board of Supervisors concedes that the list was timely furnished by the Plaquemines Parish Democratic Executive Committee and it does not contend that any person on that list is not registered as a member of the Democratic Party. The Board’s .sole and only reason for refusing recognition of the list is because it does not contain the specific stamp of approval of the' Democratic State Central Committee.

My answer to this contention is that the. law neither requires nor does it envision that the state central committees of the recognized political parties of this State shall be submitted lists by the 64 parish committees or that the names on such lists shall be investigated and specifically approved. On the contrary, since the insertion in Act 224 of 1940 of the provision subj ecting the lists of the parish committees to the approval of the state central committees, the Democratic State Central Committee has at no time required the various parish .committees to submit their lists to it for specific approval.

The majority have interpreted the phrase “subject to the approval of” to mean that the selections of the parish committee are without validity unless they are given the express approval of the state central committee. It seems clear to me that, had the legislature intended that such approval be a condition precedent to the validity of the selections, it would have employed appropriate mandatory language, such .as “The board of supervisors shall not consider any list selected by the parish committee unless it has been approved by the state central committee of the political party.” But the words “subject to the approval of” import no such mandatory requirement. The express approval of the state central committee is not contemplated — this body is simply given the power to disapprove. The absence of disapproval is equivalent to tacit approval.

At any rate, the matter of the approval of the list is one which concerns the Democratic State Central Committee alone and the Board of Supervisors is without interest in refusing to honor the list save in cases where the real party in interest, the Democratic State Central Committee, has notified the Board that it disapproves the list submitted to the Board.

I respectfully dissent.

HAWTHORNE, Justice

(concurring in the decree).

•I .cannot subscribe to the judgment of the district court which enjoined the Board *874of Supervisors of Election for the Parish of Plaquemines from appointing commissioners or certifying any person as a commissioner or clerk to serve in the General Election to be held in that parish on Tuesday, November 6, whose name does not appear on the list furnished to the board of supervisors by the Plaquemines Parish Democratic Executive Committee, and which directed and ordered the board of supervisors of election to certify and issue commissions as provided by law to three commissioners and one clerk for each polling precinct of Plaquemines Parish from the list furnished to it by the Plaquemines Parish Democratic Executive Committee.

R.S. 18:555 reads as follows:

“In every parish the board of supervisors shall, thirty days prior to any election, appoint three commissioners and one clerk to preside over the election at each polling precinct. They shall be qualified voters of the ward of which the polling precinct forms a part and shall be appointed from lists to contain not less than six names furnished by each political party. These lists shall be furnished to the board at least thirty-five days before the day of election. Any list offered after that date shall not be received, nor shall any such list be received or acted upon or recognized by the board of supervisors of election which shall contain the name of any person not registered as affiliated with the party handing in the list. Insofar as is practicable, the commissioners shall be so apportioned as to represent equally all the political parties authorized to make nominations. The parish committee, subject to the approval of the state central committee of each political party, shall select the names which' aré to be sent to the board as provided herein.”' (Italics mine.)

The testimony adduced in the court below, any conclusions of law in the pleadings to the contrary notwithstanding, shows in fact that both the Republicans and the Democrats, two political parties, furnished -lists to the board of supervisors, and that the board in. selecting the commissioners and clerks chose names that were on the lists furnished by these two political parties. Consequently, if it is conceded for the sake of argument that the approval of the list by the state central committee of the Democratic Party was unnecessary, and that the Plaquemines Parish Democratic Executive Committee in the instant case submitted a legal and valid list, even then respondent is not entitled to the relief it here seeks — that is, that all commissioners and clerks be selected and appointed from the list which it furnished.

Moreover, the effect of the judgment of the court below, ordering that all commissioners and clerks be selected from the list submitted by the Democratic Party, is to remove from the list of commissioners and clerks selected by the board of supervisors any names thereon contained on the Republican list, without that political organization being made a party to the suit, and without the list furnished, by it being declared invalid.

The statute makes it the mandatory duty of the board of supervisors to appoint the commissioners and clerks from lists furnished by each political partyj The statute therefore prohibits the board of supervisors from appointing all the commissioners and clerks from a list submitted by one political party in a case, such as the instant one, where more than one political party has submitted a list.

The statute here is to govern the holding and conducting of generad, elections, and the object and purpose of R.S. 18:555 is to give tO' each political party fair and just apportionment of the commissioners and clerks who serve in a general election; and to say that any political party is entitled to have its members serve as all commissioners and clerks would in my opinion defeat the very object and purpose of the statute. In fact, this section itself provides: “Insofar as is practicable, the commissioners shall be so apportioned as to represent equally all the political parties *875authorized to make nominations.” In the instant case respondent Plaquemines Parish Democratic Executive Committee does not complain or allege that it is being denied a fair apportionment of commissioners and clerks, and in fact it concedes in argument before this court that the names of some commissioners and clerks chosen to serve at the General Election were on the list furnished by it. In the absence of any such allegation or proof, it has no cause for complaint.