Ross v. Naff 130 La. 590, 58. So. 348

On Motion to Dismiss Appeal.

MONROE, J.

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*593actment <3f the section,' as contained in Act 100 of 1908, the order of appeal was not predicated upon any law, but, at the request of plaintiff’s counsel, was granted upon, and limited to, provisions of law which are no longer in force.

[1] I. Section 25 of Act 49 of 1906 provided for a contest of a primary election, such as that here in question; further provided that the aggrieved contestant should have the right to have the decision of the committee reviewed by a court of competent jurisdiction; and, still further, that there should be a right of appeal from the judgment of such court. But, the application to the court of the first instance was required to be made within 24 hours after the decision of the committee; the person against whom the contest was directed (that is, the Xierson declared to be nominee) was required to be ruled into court within 48 hours; the court was required to decide the case within three days thereafter; and the appeal was required to be heard and finally decided within five days from the rendition of the judgment appealed from. By Act 100 of 1908, section 25 of Act 49 of 1906 was amended and re-enacted, and, as thus amended and re-enacted, contains no provision whatever upon the subject of an appeal from the decision of the court of first instance, contains no provision as to the time within which the application for review shall be made to that court, and no provision as to the time within which the person declared the nominee shall answer or the case be decided. It does, however, provide that the decision of the committee may be reviewed by a court of competent jurisdiction, and, as the Constitution provides that the appellate jurisdiction of this court “shall extend to all cases where the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $2,000, exclusive «f interest,” it follows that such jurisdiction extends to the ease here presented, provided the record discloses that the matter in dispute exceeds the amount above stated; and that disclosure is made, in this case, by the allegations of the petition that the emoluments of the office of clerk will amount to more than $3,000 per annum and that “said office and the nomination thereto is worth far in excess of $2,000.”

[2] II. There being no special provision upon the subject, the return of the appeal is governed by the general rule, prescribed by Act 106 of 1908, to the effect that appeals in civil cases shall be made returnable in “not less than 15 nor . more than 60 days from the date of the order.” The law does not, however, prescribe the penalty of dismissal, where appeals are made returnable within a shorter period than that thus provided; the most that could be said in such case being that the appellee would not be obliged to appear, or otherwise act in the matter, within such shorter period.

[3] III. The facts that the appellant made his application, and that the court made the order for the appeal, under a misaxsprehension of the law governing the matter, cannot operate to deprive the appellant of a right conferred on him by the Constitution and regulated by other statutes than that contemplated by him and the court.

The motion to dismiss the appeal is therefore overruled.

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*595sioner of election, candidate for nomination as police juror, and friend of the defendant, and that he repeatedly went with voters into the booth and directed and assisted them in the preparation of their ballots, without their solicitation and contrary to their wishes, none of said voters requiring such assistance, and that he intimidated and otherwise influenced said voters to cast their ballots against petitioner; (3) that the count and returns from, said precinct “were illegal, null, and void,” no particulars being given in connection with that allegation.

[4] It appears from the evidence that the poll was closed about 5 o’clock, after all the registered voters had cast their ballots, save five, of whom four had left the state, and the fifth was sick in bed; that W. L. Pugh was a commissioner of the election, but, having received the nomination to membership of the police jury, without opposition, was not a candidate at said election; that at the request of a number of the voters he aided them in the selection of candidates on the state ticket, and one of the voters testifies that, at his request, Pugh gave him some information about one of the candidates for the office of sheriff. It is said that all the voters were summoned as witnesses, and, as & matter of fact, 26 of them were placed on the stand by plaintiff. Not one of them tes- . tified that Mr. Pugh made any suggestion to him, or to any other voter, save when requested; not one testified that he influenced or intimidated any voter; and not one testified that Pugh saw his ballot for parish •officers or knew how he intended to vote. There were 10 candidates for the parish officers, and defendant and one other received .all the (46) votes cast; plaintiff getting none. On the trial of the case, plaintiff interrogated the witnesses about many things that were not referred to, or suggested, in the protest filed by him before the committee, and the testimony thus sought to he elicited was objected to and excluded. The ruling was correct. The law makes it the duty of the chairman of the committee to cause the returns of such an election to he tabulated and compiled, as soon as they are received, and at 12 o’clock noon, on the fourth day after the election, the committee is required to convene and- promulgate the result. It further provides as follows:

“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.”

[5] What plaintiff was entitled, to, under the law thus quoted, was a review of the decision of the committee, upon the case presented to it. What he sought to do, in the district court, was to ingraft on that case a new and different one, which the court was without jurisdiction to hear and decide. The same thing may be said of an attempt to have the committee reconvened, in order that it might consider another, or supplemental, protest. The law does not authorize it, and the chairman of the committee properly declined to entertain the application. There is absolutely nothing in the record before us to suggest even a suspicion that any voter cast his ballot otherwise than in accordance with the dictates of his judgment and, that being the case, there is no warrant in the law for setting the election aside.

[6] The statute governing primary elections is framed, as to the right of the voter to ask for assistance in the preparation of *597his ballot, in language which, with evident purpose, differs materially from that used in the framing of the general election law; but, even if it were the same, the penalty .for a violation of the provisions on that subject is visited upon the parties to the offense, and not upon the body of the electorate, or public at large. In other words, •section 24 of Act 49 of 1906, as amended .and re-enacted hy Act 240 of 1910, provides that:

“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 conduct 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.