Brown v. Democratic Parish Committee

FOURNET, Justice. This is a mandamus proceeding by candidates for public offices to compel the Democratic Parish Executive Committee of St. Bernard Parish to certify their names for the respective offices for which they filed their notices of intention to run. They were duly protested before the committee which sustained the protests and the present proceeding resulted. The district judge overruled an exception of ratione materise to the jurisdiction of his court but maintained a plea of prescription. The relators have appealed. The exception to the jurisdiction of the court is predicated upon the fact that the trial judge fixed the hearing twelve days after the application for writs of mandamus was filed, instead of within five days, as is expressly provided in the Primary Election Law under sections 11 and 27 of Act No. 97 of 1922, as amended by Act No. 110 of 1934 (section 1) and Act No. 28 of the Second Extra Session of 1935 (section 1). The record shows that the trial' judge accepted full responsibility for having fixed the hearing seven days beyond the time provided for by the statute, stating in effect that it was impossible for him to fix it at an earlier date. He, therefore, concluded that since the relators were in no way at fault in fixing the hearing beyond the five-day period, they could not be deprived of their rights to a judicial hearing. While it is true that it is through the primary election statute that the courts have jurisdiction of political matters of this nature and the provisions of the statute, fixing certain periods of time within which action must be taken, should be obeyed or carried out, nevertheless we do not feel that any act of the district judge in fixing the hearing beyond the five-day period should be construed as completely divesting him of jurisdiction over the case. The defendants could have objected to this action on the part of the trial court, as well as relators; but it appears that neither of them did so, except when defendants filed the exception to the jurisdiction of *971 the court ratione materiae. The court having accepted jurisdiction of the matter by signing the order, it can neither logically nor reasonably be said to have automatically divested itself of jurisdiction by placing the hearing beyond the period provided by the statute. Vial v. Elfer et al., 120 La. 673, 45 So. 545. The defendants also filed an exception of misjoinder of parties defendants, contending that under section 11 of Act No. 97 of 1922, as amended by Act No. 110 of 1934, § 1, the Parish Executive Committee alone should be made a party defendant. The pertinent part of this section reads as follows: “Either party shall have the right to appeal from the decision of the committee, * * * procedure and appeal shall in' all things and as far as applicable be as provided for contested election cases under Section 27 of this act, except that the executive committee whose ruling is complained of shall be made party defendant.” We do not construe this language to mean that the Parish Committee’ should be the only defendant to the exclusion of other parties who may be vitally interested in the litigation. The contestors opposed to relators were real parties in interest and, therefore, were properly joined as defendants. Porter v. Conway, 181 La. 487, 159 So. 725. Defendants also filed exceptions of no right or cause of action on the ground that the relators failed to allege that they were residents of the parish of St. Bernard, qualified electors of that parish for the particular ward for which they offered themselves as candidates, and that they were affiliated with the Democratic Party calling the election. In the case of Melerine v. Democratic Parish Executive Committee for Parish of St. Bernard, 164 La. 855, 114 So. 711, we held that such allegations were not necessary ; it being sufficient to allege due filing of application and intention to become a candidate and sustaining of objection to candidacy by the committee, since the Primary Election Law of this state requires objection to be set forth in detail, and this court can only review the decision of the committee. The allegations of the petition bring this ‘ case within the ruling of the above authority. The plea of prescription is based upon sections 11 and 27 of Act No. 97 of 1922, as amended by Act No. 110 of 1934 (section 1), and Act No. 28 of the Second Extra Session of 1935 (section 1), the pertinent parts of which read as follows: “Section 11. * * * Either party [meaning the Contestor or the Contestee] shall have the right to appeal from the decision of the committee to any court of competent jurisdiction, and that the jurisdiction of the court, time of filing petition and answer:, procedure and appeal shall in all things and as far as applicable be as provided for contested election cases under Section 27 of this act.” “Section 27. * * * No contest shall be entertained unless brought zuithin two days after the official promulgation of the result *973 of the election, made by the Secretary of State, as provided herein.” (Italics ours.) The word “promulgate” is defined in Funk & Wagnalls Standard Dictionary as follows: “To make known or announce officially and formally to the public.” (Italics ours.) See, also, Webster’s New International Dictionary, Second Edition. 50 Corpus Juris, p. 720: “Promulgate— To publish; to announce officially; to make public as important or obligatory.” (Italics ours.) The record shows that the committee met on October 28, 1935, and closed its hearing about 3:30 o’clock p.m. There was an agreement between the relators’ counsel and the members of the committee that Mr. Louis Bagneris at Arabi would be notified of the committee’s decision. The committee reached its conclusions about 4:45 o’clock p.m. and announced it to those who were present at the courthouse, but it appears that the relators and their attorneys had absented themselves prior thereto. The deputy sheriff went to the home of Mr. Louis Bagneris at the address agreed upon, but was informed by Mr. Bagneris’ father that he had departed and would not be back for some time to come. The deputy sheriff returned several times for the purpose of serving Mr. Bagneris, but each time he failed to find him at home. At 11 o’clock that night, October 28, 1935, the chief deputy sheriff telephoned one of the attorneys for relators of the action of the committee and of his inability to serve Mr. Bagneris, due to the fact that he was not at home, although several attempts had been made to reach him. The attorney then requested the deputy to serve the notice of the committee’s decision upon him at his office in New Orleans the following morning (October 29, 1935) at 10:15 a.m. This was done. The present mandamus proceeding was instituted at 9:15 a.m. on October 31, 1935. The lavo does not provide in what manner the decisions of the committee shall be promulgated. The purpose of promulgation is to give notice. The record clearly shows that the attorneys for the relators were notified and had knowledge of the committee’s action on October 28, 1935, at 11 o’clock p.m. Relators from that time, therefore, had to bring the mandamus suit within two days under the express provisions of the statute. By mathematical calculation it is obvious that they failed to do so. This court has repeatedly placed a liberal construction upon the language of the Primary Election Law in favor of those offering themselves as candidates for public office, but it has consistently and uniformly enforced the prescriptive periods of the statute. To extend these provisions in order to allow a greater time than expressly set forth in the statute is equivalent to legislating by the court. This is the province of the Legislature and not the judiciary. In the instant case, after two full days had elapsed from the time that the relators’ attorneys had actual knowledge of the committee’s action, the relators instituted their action in court. Under the plain provisions of the statute this was too late. State ex rel. Dunshie v. Fields et al., 164 La. 954, 115 So. 45, 46, 57. We, therefore, conclude that the *975 trial court properly sustained the plea of prescription of two days. There are certain other points with reference to the merits which were heard by the trial court because he had referred the exceptions to the merits. The above expressed views make it unnecessary to consider the other issues. For the reasons assigned, the judgment appealed from is affirmed.