Hall v. Godchaux

• Decision Date: 20 September 1921
• Docket Number: 24920
• Citation: 149 La. 733,90 So. 145
• Court: Louisiana Supreme Court
• Parties: HALL v. GODCHAUX

90 So. 145

149 La. 733

HALL v. GODCHAUX

No. 24920

Supreme Court of Louisiana

September 20, 1921

Dissenting Opinions, October 3, 15, 1921

Appeal from Civil District Court, Parish of Orleans; Porter Parker Judge.

Suit by Luther E. Hall against Emile Godchaux. Judgment for defendant, and plaintiff appeals.

Reversed, with directions.

George Wesley Smith, of Rayville, and Thomas E. Furlow, Paul A Sompayrac, and L. E. Hall, all of New Orleans, for appellant.

Gustave Lemle, R. E. Milling, Esmond Phelps, and R. C. Milling, all of New Orleans, for appellee.

DAWKINS J. PROVOSTY, OVERTON, and PORTER, JJ., dissents.

OPINION

DAWKINS, J.

The plaintiff, J. Zach Spearing, Harry P. Gamble, and defendant were candidates in the Democratic primary 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.

However, within the time prescribed by law, plaintiff brought this suit attacking Godchaux's right to the nomination, upon 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, and 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 materiae, 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.

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 1916 (Act No. 35, § 25), as amended by the Act No. 210, § 6, of 1920. Neither is any other cause specifically declared. The section in 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 11 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. * * *"

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 be 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 So. 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 Right of Action.

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 cast 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. Picou, 147 La. 1017, 86 South. 479, all of the ballots might be void and 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 he were compelled to allege facts to sustain his 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 opposedhe 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...