Buras v. Orleans Parish Democratic Executive Committee

• Decision Date: 26 July 1965
• Docket Number: No. 47873,47873
• Parties: Rodney BURAS, Individually and on Behalf of a Class Applying for Declaratory Judgment, Consolidated with James E. Comiskey, Individually and on Behalf of a Class Applying for a Declaratory Judgment, v. ORLEANS PARISH DEMOCRATIC EXECUTIVE COMMITTEE et al.
• Court: Louisiana Supreme Court

Page 576

177 So.2d 576

248 La. 203

Rodney BURAS, Individually and on Behalf of a Class Applying

for Declaratory Judgment, Consolidated with James

E. Comiskey, Individually and on Behalf

of a Class Applying for a Declaratory Judgment, v. ORLEANS PARISH DEMOCRATIC EXECUTIVE COMMITTEE et al.

No. 47873.

Supreme Court of Louisiana.

July 26, 1965.

Reasons for Judgment July 28, 1965.

John D. Tamberella, A. J. Fortier, Jr., New Orleans, Alvin J. Liska, City Atty., Alden W. Muller, Beuker F. Amann, Ernest L. Salatich, Asst. City Attys., for defendants-appellants.

Forrest L. Bethay, Garvey & Salvaggio, by Richard J. Garvey, New Orleans, for plaintiffs-appellees.

Martin L. C. Feldman, of Weinstein, Bronfin & Heller, New Orleans, for defendant-appellee.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Henry J. Roberts, Jr., Rudolph O. Vorbusch, Asst. Attys. Gen., Thomas M. Brahney, III, Sp. Counsel to Atty. Gen., for Attorney General.

Montgomery, Barnett, Brown & Read, Wood Brown, New Orleans, for amicus curiae.

HAMLIN, Justice.

Giving particular consideration to the exigencies of this matter as relate to time, we herewith hand down our decision, the reasons for which will follow in due course.

The judgments appealed from are annulled and set aside, and the suits of plaintiffs dismissed at their costs.

Reasons for Judgment

In these consolidated cases, defendants, City of New Orleans, Orleans Parish Democratic Executive Committee, and Henry J. Engler, Chairman of the Orleans Parish Democratic Executive Committee, appeal directly to this Court (Art. VII, Sec. 10, La.Const. of 1921) from a judgment of the trial court in favor of plaintiffs decreeing Act 153 of 1965 of the Louisiana Legislature to be unconstitutional and of no legal effect and ordering and decreeing that a permanent injunction issue enjoining and restraining the Orleans Parish Democratic Executive Committee and the Orleans Parish Republican Executive Committee from taking any action pursuant to said Act 153 of 1965.

On June 25, 1965, Rodney Buras, individually and on behalf of a class,¹ instituted the present suit for a declaratory judgment. Plaintiff alleged that Act 153 of 1965 is unconstitutional in that it violates the spirit and intention of the Home Rule Charter of the City of New Orleans in that it imposes upon the citizens of New Orleans changes in the voting laws without said citizens having an opportunity to express their opinion. He prayed that a preliminary injunction issue enjoining and restraining the Orleans Parish Democratic Executive Committee from meeting to call a primary election in accordance with Act 153 of 1965. After alleging that he was an affiliated member of the Democratic Party, a resident of the City of New Orleans, State of Louisiana, and a registered voter of the Parish of Orleans, plaintiff stated that he desired to and would be a candidate for the office of Civil Sheriff for the Parish of Orleans in the forthcoming Democratic primary previously scheduled for January, 1966 but changed to November, 1965 by Act No. 153 of 1965 of the Louisiana Legislature. Plaintiff further stated that he anticipated the expenditure of approximately $25,000.00 in campaign expenses. By amended petition, plaintiff named the Orleans Parish Republican Executive Committee as a party defendant; he reiterated the allegations of his original petition and urged the same demands against the additional defendant; he prayed for service of citation on both Committees and on the City of New Orleans through its Mayor.

On June 28, 1965, James E. Comiskey, individually and on behalf of a class, instituted suit urging the same demands as those contended for by plaintiff Rodney Buras. Named as defendants were the City of New Orleans through its Mayor, the Orleans Parish Democratic Executive Committee, and Henry J. Engler, Chairman of the Orleans Parish Democratic Executive Committee. Plaintiff, Tax Assessor for the First District of the City of New Orleans, alleged that he desired to and would be a candidate for re-election to the office he held and that the primary was previously scheduled for January, 1966, in accordance with Title 18, Section 304 and Section 4--201 of the Home Rule Charter for the City of New Orleans, but was changed to November, 1965 by Act 153 of 1965.

Plaintiff James E. Comiskey alleged that Act 153 of 1965 is unconstitutional for the reasons that it violates the spirit and intention of the Home Rule Charter of the City of New Orleans, authorized by Section 22 of Article XIV of the Louisiana Constitution of 1921; it imposes upon him and the citizens of the City of New Orleans changes in the voting laws without an opportunity of expression of opinion; it violates Article IV, Section 4, of the Louisiana Constitution of 1921, in that Act 153 of 1965 is a local or special law; and, it violates Article III, Section 16, of the Louisiana Constitution of 1921, in that the statute has more than one object and the title of the statute is not indicative of the object.

By supplemental petition, the Orleans Parish Republican Executive Committee was also made a party defendant.

Exceptions of no right and no cause of action were filed on behalf of certain parties defendant and thereafter referred to the merits of the case; they were subsequently overruled.

All parties defendant answered. The Orleans Parish Republican Executive Committee averred that Act 153 of 1965 disfranchised all voters who had changed their political affiliations in registration within the month of June, 1965, and is therefore unconstitutional. The Attorney General was cited and responded to plaintiffs' petitions under Article 1880 of the Louisiana Code of Civil Procedure.

The two suits were consolidated for trial, and after trial on the merits² the court rendered the judgment set forth supra. In scholarly reasons for judgment, it concluded:

'A careful consideration of the jurisprudence, the wording of the Act and the constitutional provisions, leads the Court to the inescapable conclusion that Act 153 of 1965 is a local or special law for the holding and conducting of elections and that it therefore violates the provisions of Article IV, Sections 4 and 5 of the Constitution of Louisiana. It is therefore null and void and without force and effect.'

Appellants contend that the district court was in error in holding Act 153 of 1965 unconstitutional as a local or special law prohibited by Article IV, Section 4, of the Louisiana Constitution of 1921.

A study of the history of Act 153 of 1965 is pertinent to a solution of this case.

Act 46 of 1940 was an act 'To provide for calling, holding, conducting and regulating primary elections by political parties and to define the term political party; * * *' Section 25 provided that 'The respective committees of the political parties authorized to order primary elections for the purpose of nominating municipal or ward officers in any municipality, coming under the provisions of this Act, when the election of such officers falls on a date different from that at which a general State election for State officers is held, or on a date different from that at which members of Congress are elected, shall meet one hundred and eleven (111) days prior to the date fixed for the holding of said elections and order a primary election to be held for the purpose of nominating candidates for such municipal and ward offices. The date fixed, by said committee, for holding such primary election shall be not less than sixty (60) and not more than seventy (70) days prior to the date fixed for the election of said officers.'

Act 351 of 1946 amended a number of the sections of Act 46 of 1940; Section 2 amended Section 25 of the 1940 Act so as to provide that the committees should meet not less than one hundred and eleven days nor more than one hundred twenty-six days prior to the date fixed for the holding of the primary elections.

Chapter 2 of Book 14 of the Louisiana Revised Statutes, LSA-R.S. 18:281--484 of 1950, provides for 'Primary Elections.' LSA-R.S. 18:304 of 1950 (Source, Sec. 25 of Act 46 of 1940 and Sec. 2 of Act 351 of 1946) provided that the committees should meet at the same times as provided for by Act 46 of 1940. The heading of the section recited, 'Municipal or ward officers; separate election; date of primary.'

Act 630 of 1954 was an act 'To amend and re-enact Section 304 of Title 18 of the Louisiana Revised Statutes of 1950 relative to meeting of Committee for the purpose of ordering primary election to nominate municipal or ward officers; and repealing all laws, or parts of laws, in conflict herewith.' The amendment recited:

'The respective committees of the political parties authorized to order primary elections for the purpose of nominating municipal or ward officers in any municipality coming under the provisions of this Part, when the election of such officers falls on a date different from that on which a general state election for state officers is held or on a date different from that on which members of Congress are elected, shall meet not less than one hundred and eighteen days nor more than one hundred and thirty-three days prior to the date fixed for the holding of the elections and order a primary to be held for the purpose of nominating candidates for such municipal and ward officers. The date fixed by the committee for holding the primary shall be not less than sixty nor more than seventy days prior to the date fixed for the election of the officers.'

Act 153 of 1965 was an act 'To amend and re-enact Section 304 of Title 18 of the Louisiana Revised Statutes of 1950 so as to fix the dates of the first and second primary elections for the nomination of Parochial and Municipal Officers in the City of New Orleans, and to provide for the meeting of the respective political party committees for the purpose of ordering such primary elections; and repealing all laws, or parts of laws, in conflict...