Duson v. Thompson

On Motion to Dismiss. The opinion of the Court was delivered by Poché, J. This is a contested election case, growing out of the election held in this State on December 2,1879. From the verdict and judgment rendered in favor of defendant plaintiff has appealed, and defendant moves for the dismissal of the appeal on the ground that it was not made returnable ten days after judgment, which was rendered on March 5, 1880, the appeal having been made returnable on the first Monday of July of the same year. The return-day was suggested and fixed on appellant’s own. motion, and suggestion, and the district judge overruled appellee’s motion suggesting a change of the return-day from the date fixed to ten days after the rendition of the judgment. Appellee contends that this appeal should be governed by and comply with the provisions of law' contained in section 7 of Act No. 45, approved March 16,1870, which section reads as follows : “ That .in all cases in which the right to office is involved and an appeal is taken from the judgment of the lower court, it shall be returnable in ten days after judgment of the lower court, and the Supreme Court on the motion of either party shall proceed to try the same by preference.” And it concludes with the usual repealing clause. On the other hand, plaintiff contends that his right to this appeal should be tested under the provisions of the act of 1856, incorporated in our Revised Statutes as sections 40 and 1434, which provides in substance : “ That in all contested elections brought before the courts of this-State, the party cast shall have the right of appeal to the Supreme Court as in other civil cases, etc.,” and that “ such appeal shall be considered suspensive in its operation and effect, any law to the contrary notwithstanding and he contends that this act is not repealed by act 45 of 1870, which covers only judgments rendered in cases involving title to. office; that the two statutes are not on the same subject matter, and that the latter law, not affecting the former, does not repeal it, either directly or by implication. The question presented for our solution is, therefore, whether the864 act of 1856 is in conflict or inconsistent with section seven of Act No. 45 of 1870. Defendant urges that the right to office is the very issue involved in all contested election cases ; that there is no difference in law or in fact between the two classes of cases ; and that the last expression of legislative will regulating appeals in cases involving title to office should alike govern contested election cases, and that the act of 1856, containing a different rule for appeals, is necessarily inconsistent with tbe act of 1870, and is for that reason repealed and inoperative. This identical proposition was reviewed and discussed in 12 A. 825, and 13 A. 175, wherein the Court interpreted the act of 1853, which was re-enacted in 1855, and contains the identical provisions subsequently enacted in section 7 of act 45,1870, in connection with the act of 1856, now found in sections 40 and 1434, and the Court reached a different conclusion than that contended for by appellee’s counsel in this case. But counsel claim that the Court, then composed of some of the brightest intellects and most learned jurists which have ever honored our bench and bar, signally erred in both cases, and they confidently expect us to overrule the rulings on this point in both cases. We are constrained to disappoint appellee and his counsel in their expectation. The issue in a contested election case is not a title to office, which may result therefrom, but not necessarily, for the decision may decree that neither party is entitled to the office, by reason of the absolute nullity of the election, as was the case in 13 A. 175. We understand that in such cases the inquiry is directed to the manner and form in which the election was carried on, and in which the results were returned, announced, or promulgated. The action must be begun before the induction of the candidate returned as elected, and the action can be maintained, and the inquiry gone into, only when prayed for in a petition signed by at least twenty voters of the parish. Under our present laws, a case involving a title to office is an inquiry instituted by the State itself, and is intended to test the right to office of a party already in office by appointment or otherwise. It may be instituted by the proper law-officer, without joining as party plaintiff the person who may claim to be entitled to the office in contest. We conclude that the two classes of cases are materially different, and that appeals therein are and must be regulated by different laws ; in other words, “ that all appeals in cases of contested elections must be considered as falling within the- general rule applicable to appeals in all civil cases.” 12 A. 826. We are fortified in our conclusion by the interpretation given to these various enactments by our immediate predecessors in the unreported case of “the State ex rel. John Young vs. Judge of the Thirteenth Judi [865] cial District,” decided in May, 1879. In that case, relator, who had appealed from a judgment rendered in a case of contested election, applied for a mandamus to compel the District Judge to order the appeal to be returned in ten days, and urged the same reasons now used by appellee for the dismissal of the appeal in this case. The mandamus was refused on the ground that appeals in cases of contested elections should be returned as in all civil cases. ’ After quoting approvingly from the two decisions in the 12th and 13th Annuals, Chief Justice Manning, as the organ of the Court, says : “The act of 1856 thus referred to is the law regulating this subject now. It was re-enacted in iotidem verbis, and forms section 1434 of the Revised Statutes of 1870, just as the act of 1853 (p. 250) declaring that appeals in cases where the right to office is involved shall be returnable in ten days, is re-enacted in totidem verbis, and forms section 33 of the same Revisal, and was repeated in the same year, and forms section 7 of the act of March 16,1870.” The motion to dismiss is therefore overruled.