Hall v. Godchaux

DAWKINS, J. The plaintiff, J. ■■ Zack . Spearing, Harry P. Gamble, ánd defendant were- candidates in the Democratic, primary — 735 — of August 23, 1921, for nomination by that party as its representative in a special election ordered pursuant to'the Constitution of 1921 to fill the vacancy upon this court caused by the retirement of the Chief Justice. Defendant received, in round figures, -12,000, plaintiff 6,000, Spearing 3,000, and Gamble 1,000, first choice votes, thus giving defendant a clear majority, and which, in the absence of contest, would have made him the nominee. I-Iowever, within the time prescribed bylaw, plaintiff brought this suit attacking Godchaux’s right to the nomination, up^on the ground that the latter is not a qualified elector, as required by the Constitution and laws of this state, and therefore ineligible to receive the nomination. For this reason, plaintiff alleges and contends that the votes cast for defendant were illegal, should not be counted, rind that, as between himself and the other two candidates, he received a majority of the valid first choice votes, and hence should be declared the nominee. Defendant .excepted to the jurisdiction ratione materias, and, this being overruled, excepted further that the petition disclosed no cause of action. The exception of no right or cause of action was, in effect, referred to the merits, and there was judgment on the merits below rejecting plaintiff’s demands and declaring defendant the nominee. Plaintiff prosecutes this appeal, and defendant has answered, reurging the exceptions above mentioned. Opinion. [1] The first question to be determined is the plea to the jurisdiction. It is based upon the proposition that the question raised is a political one, and the courts have no power to pass upon it, unless that power be expressly 'given, by the law. In support of this proposition abundant authority, including decisions of this court, is cited, which we deem unnecessary to review. Counsel say that ineligibility is not a ground of contest under the Primary Election Law of 1910 (Act No. 35, § 25), as amended by the Act No. 210, § 6, of 1920. Neither is any other cause specifically declared. The section hi question (No. 25) reads: “Any candidate * * * who shall claim to have been nominated, and shall desire to contest the election, shall present a petition to the judge of the district court, * * * which petition shall set forth specifically and in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made.” The act, in its title, declares, among other things, its purpose “to prescribe the qualifications of electors participating in and of candidates for nomination to be voted for at said primary election”; and section 9 provides: “That the qualifications of voters and of candidates, in all primary elections held under this act, shall be the same as now required by the Constitution and election laws of this state for voters at general elections and the further qualifications prescribed by this act; and subject to an additional political qualification which may be prescribed by the state central committees of the respective political parties coming under the provisions of this act. * * * ” As above indicated, we look in vain for any provision declaring what violations of the statute shall be cause for contest of an election; nor do we find any for contesting the qualifications of a voter, for the very good reason in the latter case, no doubt, that the Constitution (article 201) at that time, as does the one of 1921, provided the method and causes for contesting the exercise of the elective franchise. But we do find in section li the further requirement: “That any person desiring to become a candidate * * * shall * •* * file * * * his written notification * * * accompanied by a declaration that he is a duly qualified elector under the Constitution and laws of this state. * * *” — 737 — In addition to these statutory requirements, the Constitution of 1913 provides: “Art. 210. No person shall be eligible to any office, state, judicial, parochial, municipal or ward, who is not a citizen of this state and a duly qualified elector of the state, district, parish, municipality or ward, wherein the functions of said office are to be performed. * * * ” Can it he said that a requirement so uniformly and emphatically prescribed, both by the statute and the Constitution, is one which may not be met, and yet the courts be without power to hear an opposing candidate complain of such failure? especially where the statute in the broadest terms prescribes: “That in elections held under the provisions of this act all contests shall be made before the courts of the state, as herein prescribed, which are hereby fully vested with the necessary power, authority and jurisdiction to hear, try and determine the same.” Then, again, the Constitution of 1913, art. 209, directs the Legislature to provide for contested elections in the following language: “Art. 209. The General Assembly shall provide by law for the trial and determination of contested elections of all public officers, whether state, judicial, parochial or municipal (except Governor and Lieutenant Governor), which trials shall be by the courts of law and at the domicile of the party defendant.” It would seem that, under this article, no tribunal other than-the courts could be vested with power to try election contests. And in article 109 district courts are given jurisdiction to try “all cases where the title * * * to office, or other public positions, or civil or political rights, * * * are involved.” In view of these provisions of the law, we think it clear that the courts are given ample authority to determine the qualifications of a candidate for office. Counsel cite and rely upon the case of Roussel v. Dornier, 130 La. 367, 57 South. 1007, 39 L. R. A. (N. S.) 826. That was a case in which a candidate for sheriff sought to have the Democratic committee, under a provision vesting jurisdiction in it to try contests, declare him the nominee, and, failing, appealed to the courts. What the court held was that the Legislature had not vested in the committee jurisdiction to test the eligibility of a candidate. It follows that the courts as appellate tribunals could not try an issue which could not be raised before the committee. The plea to the jurisdiction was therefore properly overruled. Exception of no Cause or Eight of Action. [2] This exception is based upon the contention that, inasmuch as plaintiff alleges that defendant received a majority of the votes cast, and does not attack the validity of those votes except to the extent that they were east for an alleged ineligible candidate, he does not state a case entitling him to the nomination, and is therefore without interest to challenge the qualifications of defendant. In support of this contention it is pointed out that while the Act No. 49 of 1906 provided that any candidate who “should feel aggrieved’.’ might file a contest, the act of 1916, limits the right to a candidate “who shall claim to have been nominated.” It is said that the contestant must not only claim to have been nominated, but that he must allege facts which, if proven, would entitle him to the nomination. Not only does the statute not so declare, or that the court must so find to give relief, but, if the question of his nomination were the only one the allegation of facts sufficient to support which would sustain the action, it would follow that those facts would be the only ones which could be proved, no matter how far or in what respects the primary election law might have been violated, even though, as in the case of Hart v. Picon, 147 La. 1017, 86 South. — 739 — 479, all of the ballots might be void arid no one nominated. The Legislature had the power to say that any voter might initiate the contest. In the act of 1906 it said any candidate who might feel aggrieved, and in the act of 1916 any one claiming to have been nominated. It did not see fit to add the requirement that he should allege or prove facts to support his nomination, and we do not feel that the court can supply it. If ho were compelled to allege facts to sustain Ms nomination, it follows that he would have to prove them, and, when he had done this, he would not need to show that his .opponent was disqualified. Beyond this, when the courts are given the jurisdiction to try and determine such contests, in .the unlimited terms of the act, we do not believe that the Legislature intended to or could, in view of article 209 of the Constitution and the mandatory requirements of the statute with reference to the qualifications of a candidate, which are but the reiteration of those of the Constitution itself, limit the inquiry to the question of plaintiff’s nomination. It was the right of plaintiff under both to be opposed by one qualified, and until he has been so opposed he has not had a fair contest at the hands of the voters. We think it could hardly be said that one who was in no wise eligible, either because of his residence or of having in. no sense otherwise complied with the lay by filing his declaration, etc., but had induced the Secretary of State to print his name on the ticket at tlie last moment, would be inimune tc a suit of this character, even though he received á majority of the qualified votes. If sol then we might follow it a step further and' say that, if the voters of a party met in niáSs meeting, cast their ballots on forms provided' by the Secretary of State, and were able 'to' induce him to promulgate the result, .the minority candidate therein could not be heard to assail the result. We think the petition discloses a cause of action. Plea of Estoppel. [3] Counsel for appellee also contend that by entering the election with defendant, with knowledge of the facts upon which he now relies, and having taken his chances of election, plaintiff cannot be heard to question the result. If he had not been a candidate, he certainly would now have no standing to bring this contest. I-Iis only other choice was to withdraw from the race. We take it that counsel do not rely seriously upon this plea. See Hart v. Picou, supra. On the Merits. [4] The facts are not disputed; the situation being that defendant claims they show a compliance with the law, while plaintiff contends tliey do not. Plaintiff’s sole ground of complaint is that defendant is not and was not an elector because of his failure to reside within the state two years, the parish one year, and the precinct six months. Defendant was born and reared in the city, of New Orleans, and has always had his business interests, wiiicli are quite extensive, here. He was from 1909 to 1918, inclusive, judge of the Court of Axipeal for the parish of Orleans. For many years he owned what was said to have been quite a handsome home on one of the principal thoroughfares of this city in the Fourteenth ward; and in 1910 also purchased what is termed a summer home at Pass 'Christian, Miss., which he says is worth in excess of $35,000. Thereafter, for several years, the defendant, his wife and guests occupied alternately the two places, the one in the city principally in the winter and one on the Mississippi coast mostly in the summer. In June, 1917, while residing at Pass Christian, defendant sold his home in the — 741 — Fourteenth ward and never afterwards returned to said ward to live. He returned to the city in the fall and went to tlie He Soto Hotel, which is situated in the Second precinct of the Third ward, the exact date not appearing, and obtained apartments for himself and wife. He was required by the hotel to take them for six mouths, and, since the lease included at least a part of April, it must have commenced towards the latter part of October or first of November. Defendant informed the manager that it was his intention to make the hotel his home, and the rooms were renovated and arranged to suit his requirements. On the 4th of October of the year 19X7 he registered in the Fourteenth ward, for the reason, as he says, that he had not been absent therefrom six months, and could not therefore register from the hotel. Judge Godchaux had been trying for some time to obtain a place in tlie Eed'Cross service for himself and wife, which he finally did, and on the 14th of March, 1918, left for France, whore he and his wife were assigned to the military forces of this country, which was then at war, and served until January, 1919, when he returned to the city of New Orleans; the Armistice having been signed and his services in France being no longer necessary. The apartments at the hotel had been given up in April,. 191S, defendant’s furniture, or at least a good part of it, had been sent to his summer home in Mississippi and other portions stored, and all connection with the hotel severed; except the declaration, acquiesced in by the management, that he wanted to make .it his home. When he returned in January, 1919, he registered and obtained a room, for which he paid while occupying it, being in and out of the city, one or more .days nearly every week, surrendering his key, and re-registering upon return just as any other, guest. This condition continued until about the-1st of-August, 1919, when, his wife having in the meantime returned from France to the hotel some time in the summer, defendant went to his summer home, again severing .all connection with the hotel. August 6, 1919, he registered for the purpose of voting from the De Soto Hotel. About October of the same year Mrs. Godchaux went to New York, as was her custom, and remained there until about January. While there certain relatives expressed a desire to visit them, and Mrs. Godchaux suggested that because of the heavy expénse at the hotel (they having paid $150 per week for their apartments in 1917-1918) a furnished house he leased for a few months. This Judge Godchaux did, but was required to take the house from October, 1919, to October, 1920. When Mrs. Godchaux knd her guests arrived in January, 1920, the family took up its residence in. the house so leased, which was on Palmer avenue, in neither the Third or Fourteenth wards. Defendant’s connection with the hotel in which he had been occupying a room, paying for it as it was used, as above stated, was again severed. The month of January, and possibly the month of February, was spent in this residence, known as the Bell house, when the defendant and his family went to Pass Christian, remaining there until April, again'' returning to the Bell place in April. In May, Mr. Bell agreed to cancel the lease, and the lessee with his family went back to the Mississippi coast. There they remained un't^i . the fall of 1920, when Mrs.' Godchaux again -went to New York and the judge came back' to New Orleans and again occupied-a room under the circumstances above mentioned, that is, while in, the city, registering, being assigned a room, and paying for it as he p.sed. it. Mrs. Godchaux returned from the Bast around Christmas time of 1920, and they again took up apartments • at the Be Soto — 743 — Hotel. There they remained through January, February, and a part of March, 1921, when the judge and his wife wont to Brown’s Wells, Miss., for his health, giving up the apartments, stayed there two or three weeks, and came back to the hotel for two or three days. Again relatives came to visit them the latter part of April, 1921, or first of May, and they then went to Pass Christian, where they remained to the day of the trial below and where, we are informed by the argument, they are still residing. On leaving the hotel about the 1st of May, connection therewith was again severed as before. While residing at his summer home in Mississippi, Judge Godchaux registered as a voter of the Third ward, giving his residence as the Be Soto Hotel. The record, we think, discloses that Judge Godchaux was in good faith and that he intended to make the De Soto Hotel his voting domicile, if that were legally possible under the facts which wc have outlined. For the purposes of this ease, we are relegated to the provisions of the Constitution of 1913 and the statutes passed pursuant thereto, for the reason that, by its terms, article 7 of the Constitution of 1021 does not become effective until January 1, 1922. Article 197 of the Constitution of 1913 reads: “Every male citizen of this state and of the United States, native born or naturalized, not less than twenty-one years of age, and possessing the following qualifications, shall be an elector, and shall be entitled to vote at any election in the state by the people, except as may be herein otherwise provided. “Section 1. He shall have been an actual bona fide resident of this state for two years, of the parish one year and of the precinct in which he offers to vote six months next preceding the election; provided, that removal from one precinct to another in the same parish shall not operate to deprive any person of the right to vote in the precinct from which he has removed, until six months after such removal. “See. 2. He shall have been, at the time he-offers to vote, legally enrolled as a registered voter on his personal application, in accordance with the provisions of this Constitution, and the laws enacted thereunder.” As shown by the terms of section 9 of the act of 1916, the qualifications of an elector in a primary election are made the same as those in a general election, with additional qualifications prescribed by that act. Hence it becomes our duty to construe what is meant by the words “actual bona fide resident,” as used in the law, constitutional and statutory. We do not think it is necessary, as contended by counsel for appellee, that we should find Judge Godchaux to have been a citizen of Mississippi. Neither do we find that the petition rests upon that allegation alone, although counsel for the contestant insist that such is the status of the defendant. In articles 10, 11, and 12 the petition charges that Godchaux was not a resident of the state for two years, the parish one year, and the precinct six months next preceding the .election, virtually in the language of the Constitution; and we take it that, if it be shown that because of his failure to comply with any one of these requirements he is not in law an elector, then he has been shown to be ineligible. Hence that allegation would have been sustained. We think it can hardly be denied that the moment Judge Godchaux sold his home in the Fourteenth ward in June, 1917, while residing at Bass Christian, he commenced to lose his right to vote in that ward, even though he had remained elsewhere in the city, and at the end of six months was no longer an elector of that ward. See second clause of section 1, art. 197, of the Constitution. Admittedly, he did not take up a residence in any other ward until he returned to the city in October, 1917, and commenced stopping at the De Soto Hotel. Therefore he could not, though he remained a resident of the state and parish, become an elector in that ward (the Third) until he had — 745 — resided in it six months. Hence he undoubtedly lost his status as such some time in December, 1917 (being out of the Fourteenth ward six months, June to December), and could not have gained the quality of an elector in the Third ward until about April 1, 191S. Therefore, when he left for France on March 14, 1918, he did not possess the qualifications of an elector in any ward of the city. But granting that article 208 of the Constitution preserved and continued his residence at the De Soto Hotel while he was in France, and that he might have legally registered in the Third ward upon his return in January, 1919, provided he had again taken up an actual bona fide residence there, that constitutional reservation ceased upon his return, and he was again put to the necessity of complying with the law the same as any other citizen. The evidence, mainly of the defendant, himself, is undisputed that he never thereafter commenced or maintained any other relation to the hotel than that heretofore described of registering and paying for the rooms which he occupied while so used and surrendering them when he checked out, until the winter of 1920-21, when he took up apartments about Christmas time and retained them until some time in March, 1921. Therefore defendant has not, by the transient and uncertain character of his stopping at the hotel other than while occupying apartments, resided at the De Soto Hotel continuously for a period of six months since his return from France in January, 1919. [5] Unfortunately for Judge Godchaux, the law does not allow one to become an elector by constructive residence, nor is the matter controlled solely by intention, no matter how bona fide it may have been; but we are called upon to apply and interpret the meaning of the words “actual bona fide resident,” and we take it that those words are to be given their ordinary meaning and significance. In the nature of things, they cannot be said to mean that he must occupy his place of abode every moment during the period of time necessary to become a resident in the sense of qualifying him as an elector; for the necessities of the case require that he should be permitted to pursue the ordinary affairs of life. However, we think that he is required to maintain such a relation with the place or premises so selected as will entitle him at-his will, and without making new arrangements therefor upon each return, to occupy such i>lace whenever his necessities or pleasure require, and this without having to ask the permission of some one else. This cannot be said to have been true of Judge Godchaux while ho was stopping at the De Soto Hotel, under the circumstances which we have outlined. If so, then any one or any number of persons might, by simply declaring their purpose to establish a voting domicile at a hotel, register there, occupy a room occasionally, as their pleasure might dictate, and become lawful voters in such ward. In our opinion such a ruling would be in the very teeth of the Constitution and statute. If the individual maintains a place to which he can return, as above indicated, he does in law have an actual bona fide residence, and when away under the call of business or pleasure is an absent actual bona fide resident. But we cannot see how it can be said that he is such a resident when he possesses no other right than that of going to a hotel, registering, and being assigned a room, with no fixed relation thereto, as has been shown, to have been the case with Judge Godchaux. Defendant relies upon the cases of Caufield v. Cravens, 138 La. 283, 70 South. 226, Estopinal v. Vogt, 121 La. 883, 46 South. 908, and State ex rel. Hodges v. Joyce, 128 La. 434, 54 South. 932, as supporting his contention. We do not think that any one of these — 747 — cases fits that of defendant. In the first case Caufield was a railroad conductor who had for many 'years resided, voted, paid street and poll taxes, and in every way maintained his identity with the town of Wilson, in the parish of East Feliciana. He found it necessary to send his wife and children to the city of Baton Rouge for the purpose of educating the latter, rented a house, and established them there for that purpose. His duties included runs on several different branches of the same railroad, but he was required to report at Wilson, where he had always resided, for the purpose of obtaining orders and assignments for his different runs. When in Wilson he sometimes stopped at a place called the Valley Hotel, and always occupied one of the two rooms, Nos. 2 and 5, set apart for conductors, for which he paid 25 cents per night. And at others he stopped at the home of his father-in-law, for which he paid board. But he did have the privilege at all times of occupying these same quarters. He was, presumably, a man of limited means, and did not maintain a separate domestic establishment to be occupied by no one but himself. His situation was dictated by necessity, and not by choice, but he did maintain a fixed place of abode in the sense and to the extent which the circumstances permitted. In the present case no such condition obtained, and the defendant’s action was controlled solely by choice and was supported purely by intention while away from the hotel. The Caufield Case, we think, goes as far as could be done in view of the necessities of his situation; but we do not feel justified in going to tlie extent which we are asked to do in this case. With reference to the Vogt Case, the citation is probably erroneous, and counsel no doubt intended to cite Estopinal v. Michel et al., on page 879 of the same report (121 La.), 46 South. 907, 19 L. R. A. (N. S.) 759. In the latter case the defendants, whose right to vote was challenged, were bar pilots who kept their families in the city of New Orleans, but who resided at Bilot Town, in Plaquemines parish, while discharging their duties as bar pilots. They did have a place there known as the “barracks,” which they jointly maintained and' occupied, but each had the unqualified right to occupy the same as he saw fit. In the' Hodges Case the evidence showed that one Cannon, who had reached liis majority in February, 1911, went for a short while to the state of Mississippi and worked on a railroad, but soon returned and took up his residence again in the same place. The court found his absence was only temporary, and that he still had this home or residence to which he could return, although it was a box car. We do not think the case sustains the defendant’s contention. We conclude that defendant was not an elector under the Constitution and laws of this state, in that he was not an actual bona fide resident of the Second precinct of the Third ward of the city of New Orleans at anytime subsequent to January, 1919; hence he is precluded from receiving the nomination for the place which he seeks. Plaintiff contends that we should not consider the votes cast for Judge Godchaux, and that he should be held to be the nominee because he received a majority' of the remaining votes. However, this is contrary to the ruling of the national Congress and the courts of all the states of the American Union, with the exception of Indiana; although in England it has been held that where the voters had knowledge of the ineligibility of a candidate votes for him would be disregarded and the next highest candidate declared elected. Even if we were to consider the question of notice, which we cannot in this case, it consisted merely' of a newspaper controversy between the candidates, and the voters had the right, in these circumstances,. — 749 — to assume that those charged, with the responsibility of seeing that the law hacl been complied with had done their duty. They were lawful voters, entitled to vote for an eligible candidate, and wo cannot declare one the nominee who has not received even a plurality of the lawful votes. We conclude that the nomination of defendant will have to be set aside. Hart v. Picou, 147 La. 1017, 86 South. 479. ITor the reasons assigned, the judgment appealed from is annulled and set aside, and it is now ordered, adjudged, and decreed that the nomination of the defendant, Emile Godeliaux, be annulled, and the primary election set aside and held to have been without effect as far as the nomination of a successor to the Chief Justice is concerned. Defendant, appellee, is to pay all costs. PROVOSTY, OAERTON, and PORTER, JJ., dissent and reserve their right to file written reasons.