Perez v. Cognevich

By the WHOLE COURT. OVERTON, J. At the recent Democratic primary election, plaintiff and defendant were opposing candidates for nomination for the office of assessor in the parish of Plaque-mines. When the returns were promulgated, it appeared that plaintiff had received 619 votes and defendant 631. Defendant, having, therefore, received a majority of 12 votes over plaintiff, was declared the nominee by the parish Democratic executive committee. Plaintiff then brought this suit to contest the result of the election, basing his cause of action on various grounds. Defendant filed an answer, in which he puts at issue these grounds, and in which he avers, in addition, that certain votes were cast for plaintiff that are illegal, and should be deducted from the total vote declared by the parish Democratic executive committee to have been received by plaintiff. In his answer defendant also avers that two boxes, if not more, should be opened and recounted, and that, upon a recount of these boxes, and upon the rejection of the illegal ballots therein contained, the result will be to further increase his .majority. His prayer is that plaintiff’s demand be rejected. The case was promptly tried, the trial lasting approximately two weeks. The trial court found that defendant had received a majority of three votes, and, therefore, rendered judgment in his favor, recognizing him ■ as the Democratic nominee for the office of assessor in .the parish of Plaque-mines. Plaintiff has appealed from this judgment. Defendant has filed an answer to the appeal, in which he avers that certain votes not allowed him by the lower court should now be allowed, and that certain votes allowed his opponent by that court should be rejected. He has also filed a motion to dismiss the appeal on the ground that this court is without jurisdiction. Motion to Dismiss. It is pleaded that we have no jurisdiction in this case, first, because it is not alleged that the nomination in controversy has any value; and even if it were alleged to have such value as to vest us with jurisdiction, still, in truth and in fact, there is nothing involved but a political right, not properly appreciable in money; and that, in cases involving such rights, the appeal lies, not to this court, but to the proper court of appeal. It may be said, at the outset, that an appeal in a case in which a political right is in contest lies' to the court of appeal of the circuit in which the case arose, save where it appears that this court has been granted jurisdiction. Sections 2Ó, 35, and 77 of article 7'of the Constitution of 1921. But this observation merely leaves us where we started, and leaves for determination, in all of its fullness, the real question to be determined; that is to say, the one whether it appears that this court has been granted jurisdiction in cases süch as the one now before us. There is nothing in the present Constitution (that of 1921) which vests us with jurisdiction in contested primary election cases, unless it be the provision in section 10 of — 335 — article 7 of that instrument, which grants us jurisdiction in all cases in which the amount involved exceeds $2,000, exclusive of interest, or, in other words, in which the value of the thing in contest exceeds that amount. In the present case it is not alleged that the nomination in controversy is worth an ámount exceeding $2,000, though it is alleged that the emoluments of the office of assessor in the parish of Plaquemines exceed $5,000. If the office itself were in contest, 'it could he easily held, under the constitutional provision just cited, in view of the emoluments of the office, that this court has jurisdiction, for then the value of the thing in contest would exceed the lower limit of our jurisdiction. In this case, however, it is only the nomination which is involved, and the nomination does not entitle the one receiving it to the emoluments of the office. Still, as the emoluments of the assessorship exceed $5,000, and as the nomination for that office is one hy the dominant, and perhaps the only, political party in the parish of Plaquemines, and as it is unlikely, therefore, that'the nominee will meet with defeat at the general election, it might be held that the nomination itself is worth over $2,000, and, hence, that the appeal lies to this court. We are, however, not strongly inclined to the view that the motion to dismiss for want of jurisdiction should be decided on that basis, but rather upon a different one, which is the following: Section 27 of Act 97 of 1922 provides: “That in elections held under the provisions of this act [the primary election law] 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. * * * The party cast shall have the right to appeal as in other cases, on giving bond for a sum to be fixed by the court to cover cost of all courts, the emoluments of the offices involved for the full term being hereby made the test of the appellate jurisdiction. * * *» It is clear from the foregoing legislative provision that the test of the appellate jurisdiction of this court, in contested primary election cas.es, is to be determined by the emoluments of the office for which the nomination is made. Therefore, when the office has no emoluments, or when the emoluments are $2,000 or less for the full term, then, by reading the provision cited, in connectio'n with the sections of the Constitution defining the jurisdiction of the Courts of Appeal, which it was the manifest intention of the Legislature should be done, it at once becomes clear that an appeal lies and is returnable to the Court of Appeal of the circuit in which the case arose. -On the other hand, when the emoluments of the office for which the nomination is made exceed $2,000 for the full term, then, by reading the provision quoted in connection with the section of the Constitution defining the jurisdiction of this court, it at once becomes clear that an appeal lies, and is returnable, to this court. It is argued, however, that the Legislature can neither add to the jurisdiction of this court nor decrease the jurisdiction of the courts of appeal, since the jurisdiction of those courts is fixed by the Constitution, and defendant cites, in support of his position, State v. Mayer, 117 La. 945, 42 South. 435. Such unquestionably, is the rule where the jurisdiction of the' courts affected is fixed by the Constitution, except when that instrument contains a provision authorizing the Legislature to enact such legislation. We think that in this particular instance the Constitution contains a clause authorizing the enactment of the provision quoted. The clause referred to is section 12 of article S of the Constitution of 1921, and reads as follows: “The Legislature shall provide by law for the trial and determination of contested elections of all public officers, whether state, district, judicial, parochial, municipal, or ward (ex — 337 — cept Governor and Lieutenant Governor), -which trials shall he by the courts of law, and at the domicile of the party defendant.” The foregoing section has reference to primary elections as well as to elections by the people. It is a mandate to the Legislature to enact laws for the trial and determination of such cases in the courts of law. The section, it is true, contains no express authority authorizing the Legislature to say to what court the appeal should be taken, in the event the party cast should desire to appeal, but we think that this authority is fairly implied in the command given, and that the exercise of it is necessary in order to fully and properly execute that command. If there should be anything in the Constitution, of a general nature, which apparently stands in the way of the full and proper execution of this special mandate, such, provision must be considered as yielding, for the purpose of permitting the full execution of the mandate. Taxpayers’ Association v. New Orleans, 33 La. Ann. 568; Davidson v. Houston, 35 La. Ann. 493. For the foregoing reasons, we are not of the opinion that the motion to dismiss should be sustained. The Merits. After both plaintiff and defendant had closed in chief, the former offered evidence to show that a number of persons who cast their ballots for defendant had no right to-participate in the election. The effect of this evidence was to inject into the ease the right of persons to vote, whose right to do so had not been questioned in the pleadings, nor by any evidence offered up to that time. Defendant objected to this evidence chiefly upon the ground that it was not evidence in rebuttal, but the court overruled the objections. The objections should have been sustained. Plaintiff, in order to show that these persons were without right to vote in the election, if such were the case, should have alleged, • in his petition, their names and the reasons why they were without right to vote therein. Section 27 of Act 97 of 1922; Thornhill v. Wear, 131 La. 479, 59 South. 909. He then should have offered this evidence in chief, and not in rebuttal. The evidence was not, in any proper sense, rebuttal evidence. The votes of some of those thus brought into question were later allowed by the lower court for the reason that the court was of the opinion that the evidence thus introduced did not show that those who cast these ballots were without right to vote in the primary. However, while defendant was not injured in some respects by the ruling made, yet, in other respects, he was, for upon the whole he lost 7 .votes by the overruling of the objection, which he would not have lost had the objection been sustained. The votes thus lost by him are those referred to in the briefs as the three Dobsons, the two Gleasons, Grob, and E. A. Sehayot. The trial court erred in deducting these votes from defendant’s total. They should be allowed. On the other hand, plaintiff objected during the course' of the trial, to evidence offered by defendant to show that Mr. and Mrs. Serpas and Will Alfonso, who cast their votes for plaintiff, had no right to vote in the election. The objection was based upon the ground that defendant had not attacked in his answer the right of these persons to vote, and hence that the evidence offered was inadmissible. The objection is well founded, and should have been sustained. As a result «of the ruling, plaintiff lost the three votes mentioned. The trial court erred in deducting them from the total vote received by plaintiff. They should be counted. Collateral Attack on Registration. Defendant attacked the votes of 8 persons who voted at the Ostrica poll, Third precinct, Fourth ward, on the ground that these voters resided outside of that precinct, and — 339 — therefore had no right to vote in it. Defendant also attacked the vote of Anthony Jurgovich, who, he contended, lived at Olga, but. who voted at Boothville, in another ward, on the ground that Jurgovich had no right to vote at the latter place. On the. other hand, plaintiff attacked the vote of Emile Martin, Sr., the registrar of voters, on the ground that in registering he administered the oath required by law to himself, and hence that his registration was null. The eight voters who voted at Olga did not change their residence after they registered, nor did Jurgovich change his. Each voted at the polling place indicated in his registration papers. , If these persons had no right to vote because they were not entitled to a place upon the''Registration rolls, or because they were not entitled to registration as voters in the precinct in which they registered as such, or because their registration did not comply with the law in other respects, the proper proceeding should have been taken to purge their names from the rolls. Both the Constitution and the enactments of the Legislature contemplate direct proceedings against a voter to strike his name from the rolls, except, of course, when it appears that the voter has died, or it appears that since his registration he has been convicted of a felony, or has been declared insane. Section 5, art. 8, Constitution of 1921; sections 8, 9, 11, 12, and 13 of Act 122 of 1921. Were we to give our sanction to the attack here made, we could do so only by ignoring the methods provided by law for purging the rolls, and by permitting what is equivalent to a collateral attack upon the registration of the voters in question, which, of course, we cannot do. See Turregano v. Whittington, 132 La. 454, 61 South. 525, and Smith v. Police Jury, 125 La. 731, 51 South. 703. Eor the foregoing reasons we conclude that the trial judge was correct in refusing to sustain the attack here considered upon the right of these persons to vote. Opening of Ballot Boxes and Recount. Plaintiff, in his petition, demanded a recount of the ballots in certain boxes. Defendant objected to the recount on the ground that it did not appear that the clerk of court had safeguarded the ballots to an extent sufficient to exclude the hypothesis that they had been tampered with. The objection was overruled. The law places the burden upon him who seeks the recount, or who desires to offer the ballots' in evidence, to show that they have not been tampered with, and that they have not been placed in a position to afford an opportunity for tampering with them. Thornhill v. Wear, 131 La. 739, 60 South. 228; Koepp v. Crawford, 138 La. 852, 70 South. 858. Plaintiff, we think, has reasonably carried that burden. We may say, however, that the opening of the ballot boxes did not operate to plaintiff’s benefit, due to defective ballots found in them, though it may be also said that plaintiff did not lose his case by having the boxes opened. Ballots Without the Certificate of the Secretary of State. It was found, on opening the box from Doullut’s canal, that it contained four ballots, without the certificate of the Secretary of State printed on them; and when the box from Home place was opened it was found that it contained one ballot without that certificate, These ballots were for plaintiff. Defendant objected to the counting of these votes for the reason that there was not printed on them the certificate mentioned. The contention of plaintiff is that the failure to print the certificate of the Secretary of State on these ballots was due to an accident, or to an oversight of the official printer, in printing them. The absence of the certificate from them, it may be said, was, — 341 — in all likelihood, due to such a cause. The question, however, is: Should these votes, in view of this oversight, be rejected? The answer to this question depends upon the provisions of the primary election law. Section 16 of that law (which is Act 97 of 1922) provides: “That the primary election ballots used in all primary elections for United States senators, congressmen, governor, and other officers voted for throughout the entire state, or voted for in any district, parish, or ward in this state, * * * shall be furnished by [the] Secretary of State, at the expense of the state. * * * All said ballots shall be printed upon white paper, of uniform quality, texture, and size, and printed in black ink, and each ballot at the bottom, and after the pledge, shall contain a perforated slip with its number displayed in large numerals, which said slips shall be numbered from 1 to 1,000, as may be required. At the top1 of said ballot, printed in large capital letters, shall be the party designation; then shall follow the number of the primary district and location of [the] polling place. Then shall follow the name of each office, and below the name of each office, in smaller capital letters, shall follow the names of all candidates (alphabetically arranged, according to surname) for the nomination of said office, in the order in which said list of officers shall be arranged by the respective party committees. The names of all candidates shall be planted in type of uniform size and style, and in vertical column. Immediately following and opposite the name of each candidate, on the same line, shall be printed a square space, and all such square spaces shall be of uniform size. Spaces between the names of candidates for each office shall be uniform, and sufficient space shall separate the names of candidates for one office from the names of candidates for another office, to avoid confusion. * * * “The ballot as above set forth * * * shall be prepared by the Secretary of State, who shall certify to it as the official ballot, on the bach of the ballot, over his stamped signature, and who shall furnish the ballot pressed and folded in uniform fold, and creased so as to display on the reverse or back of the ballot, when folded, the printed or script certificate of the Secretary of State. [Italics ours]. “ * * * No primary election ballot shall he used unless the same shall substantially comply with the requirements of this act, and amy ballots not in accordance herewith shall be void for all pwrposes, and shall not be received,, deposited, or counted by any commissioner or commissioners of such primary election. * * * [Italics ours].” If it cannot be held that ballots sent out by the Secretary of State, from which the certificate in question is absent, are nevertheless' in substantial accordance with the requirements of the act, then it is clear, under the provisions of the act, that such ballots cannot be counted. The purpose of the certificate is to identify the ballots as being official, and thereby make it more difficult to substitute other ballots for the official ones, and in that manner safeguard better the purity of the election. In our opinion the certificate of the Secretary of State, on ballots sent out ■ by him, is essential to their validity, and as the ballots in question did not contain this certificate, they, therefore, should not be counted. The fact that the absence of the certificate was, in all likelihood, due to an accident or to an oversight in printing the ballots, and may be accepted as such, does not justify the counting of them, in the face of the provision in the statute prohibiting the counting of ballots which do not substantially. comply with the requirements of the statute. However, the.absence of the certificate on ballots sent out by the Secretary of State, and cast in an election, might, and probably would, call for the annulling of the election, and the holding of another one, in the event the rejection of such ballots should change the result, for, while the requirements of the law must be maintained, yet the electors are entitled to ballots complying with those requirements. See Hart v. Picou, 147 La. 1017, 86 South. 479. However, in this case, whether the five ballots under consideration be counted or not does not change the result. Still, they should not have been counted, and ought to be deducted from plaintiff’s vote. — 343 — Ballots Voted With Numbers Attached. When the box from Daisy poll was opened during the trial of the case it was found that there were eight ballots in it that were cast for defendant, each of which still had attached to it the slip containing its number. The law requires that the voter, after preparing his ballot, and before • casting it, shall permit one of the commissioners of election to detach the slip. Section 16 of Act 97 of 1922. This provision is mandatory, and the casting of the ballot, with the numbered slip attached, is fatal to the validity of the vote. The trial court correctly refused to count these votes. Marked Ballots. When the box from Belair was opened, there was found in it a ballot with a pencil dot on it, the dot being slightly below and to the left of one of the squares on the ballot. This ballot was cast for plaintiff. Defendant objected to its being counted on the ground that it was a ballot marked for identification. The trial judge deducted the ballot from the total vote received by plaintiff. In our opinion, he should not have done so. The dot, apparently, was put on the ballot accidentally, and is so small as to be scarcely noticeable. This ballot should be counted for plaintiff. There was found in the Boothville box a ballot, voted for defendant, with two dots on it, appearing immediately under the names of two candidates, and another ballot was found in it, for defendant, with three dots on it. In the Doullut box there was found a ballot, for ■defendant, with a small dot on it, and also another in that box for him, with two dots on it. The dots on these ballots are caused by defects in the paper on which the ballots are printed, and, therefore, are obviously not marks of identification. The trial judge was correct in counting these votes. In the Doullut box there was found a ballot for defendant said to have on it a visible erasure. We, however, fail to see any erasure on the ballot. The mark, said to be one, is, in our view, nothing more than a soiled spot, scarcely perceptible, caused possibly by a finger print made in handling the ballot. The trial judge counted this ballot for defendant. There was found in the Boothville box a ballot for defendant with four or five pencil dots on it. These dots are scarcely perceptible, and would hardly serve as marks of identification. The trial judge was correct in counting this ballot for defendant. In the Pointe a la Hache box there was found a ballot for defendant with irregular cross marks in the voting squares opposite the names of the candidates for whom the voter cast his ballot, with the exception of the voting space opposite the names of two of these candidates. When the ballot is turned sideways, these irregular cross, marks resemble inverted fours. The law requires the voter to indicate for which of the candidates he desires to cast his ballot by making a cross mark in the square opposite the names of such candidates, but. it does not require that the cross mark be a perfect one. See Vidrine v. Eldred, 153 La. 779, 96 South. 566. We are of the opinion that the lower court was, correct in counting this vote for defendant. In the boxes opened during the course of the trial several ballots were found, for plaintiff, with erasures on them. These erasures are quickly seen, and are such as might reasonably serve the purpose of marks of identification. The trial court was correct in not counting these votes. Vidrine v. Eldred, supra. Party Affiliation. Plaintiff attacked the votes of Henry Gebhauer, Enid Gonzales, Emile Martin, Sr., and John Eriedman on the ground that the precinct register failed to show their party affiliation at the time they voted. The ap — 345 — plications of these voters for registration show that they registered as members of the party, holding the primary. The poll lists sent to the respective , precincts at which these persons voted show that' they were members of that party. The fact that the precinct register did not show their party affiliation, did not, in our opinion, defeat their right to vote, or render their votes invalid, and the trial judge properly so ruled. We find no error in the ruling of the trial court with respect to the vote of Joseph Bernard, or with respect to the ruling as to Mr. and Mrs. .Frank Hingle. Our conclusion is that defendant received a majority of 11 votes in the primary; and hence that the lower court properly rejected plaintiff’s demand. The law requires us to decide contested election cases within 24 hours after they are submitted. In this case it was impossible for us to decide the case within that time, and give reasons for judgment. Hence, the moment the case was decided in consultation (which was immediately before the expiration of the 24 hours allowed) the decree was handed down, with the right reserved to give written reasons later. For the purpose of convenience, we repeat here the decree rendered, which is as follows: “The plea to the jurisdiction of the court is overruled and the judgment of the lower court is affirmed with costs.”