Landry v. Ozenne

• Decision Date: 12 March 1940
• Docket Number: 35747.
• Citation: 195 So. 14,194 La. 853
• Court: Louisiana Supreme Court
• Parties: LANDRY v. OZENNE et al.

195 So. 14

194 La. 853

LANDRY v. OZENNE et al.

No. 35747.

Supreme Court of Louisiana.

March 12, 1940

Appeal from Sixteenth Judicial District Court, Parish of Iberia James D. Simon, Judge.

Primary election contest by Paul Anthony Landry against Gilbert Ozenne and others. From a judgment dismissing the contest plaintiff appeals.

Affirmed.

Jacob S. Landry, Knowles M. Tucker, and Edward M Boutte, Jr., all of New Iberia, for plaintiff-appellant.

S. O. Landry, C. Arthur Provost, and Minos H. Armentor, all of New Iberia, Wilbur L. Allain, of Jeanerette, and Ward L. Tilly, of New Orleans, for defendant-appellee.

ROGERS, Justice.

This is a suit involving the Demorcratic nomination for the office of Sheriff of the Parish of Iberia. The suit was brought under the provisions of Act 97 of 1922, as amended, generally known as the ‘ Primary Election Law.’ An exception of no cause of action was sustained and plaintiff has appealed from the judgment.

The judge of the district court, in a well considered opinion, has correctly stated and disposed of the numerous points at issue between the parties. In order to better comply with the law requiring that cases of this kind must be promptly decided, we have concluded to adopt his opinion and make it our own. The opinion reads as follows:

‘ Plaintiff, Paul Anthony Landry, and defendant, Gilbert Ozenne, were opposing candidates for the Democratic nomination for the office of Sheriff of Iberia Parish at a second primary election held on February 20, 1940.

‘ On February 24, 1940, the newly elected Parish Democratic Executive Committee, but whose authority to act in the premises is questioned by the plaintiff, met and promulgated the returns of the second primary election, and, on the face of the returns, declared the defendant, Gilbert Ozenne, the nominee for said office, this by a majority of 45 votes.

‘ Plaintiff has brought the present suit against defendant, Gilbert Ozenne, the Iberia Parish Democratic Executive Committee, which is referred to as the ‘ Incumbent Parish Committee,’ as well as the Iberia Parish Democratic Executive Committee, which is referred to as the ‘ New Parish Committee,’ contesting said second primary election upon various grounds, and, in the alternative, to have said election declared illegal, null and void.

‘ Plaintiff prays for a recount of certain ballots cast at said election and, after the recount, to be declared the nominee for the office of Sheriff.

‘ To this petition, defendant and contestee filed an exception of misjoinder of parties defendant, a motion to strike out certain pleadings of the petition, and an exception of no right and of no cause of action, together with his answer, being a summary proceeding. The newly elected Parish Democratic Committee filed a plea of estoppel, exception of misjoinder of parties defendant and that of no cause and no right of action.

‘ The petition of contestant, being quite lengthy, makes the following charges, which I shall endeavor to summarize as briefly as possible:

‘ First, that the returns of the various clerks and commissioners of election from the various precincts and wards are inaccurate, erroneous and false, and that, had an accurate and legal return been made, it would have shown that plaintiff received a clear majority of all the legal votes cast;

‘ Second, that in thirteen named precincts a number of ballots, or more, which were spoiled, were counted for defendant, and that accordingly the total vote received by contestee would have been reduced to that extent, had they been properly rejected;

‘ Third, that in Precinct 1 of Ward 3, six ballots were called off and credited to defendant which had been actually cast for plaintiff;

‘ Fourth, that in Precinct 1 of Ward 8, one absentee vote, specifically the vote cast by Maude Trappey, was not counted, though she was qualified;

‘ Fifth, that in Precinct 2 of Ward 8, two absentee votes were not opened or counted, which were cast in his favor by Albert Desonier and one _____ Dejean, who were in turn qualified voters;

‘ Sixth, that in all of the precincts and wards referred to in the preceding articles, ballots were called off and credited to defendant and contestee that had been actually cast for plaintiff;

‘ Seventh, that at Precinct 1 of Ward 5, forty persons, and at Precinct 2 of Ward 5, thirty-five persons, non-resident and unqualified voters, were permitted to vote, of which fully thirty in the first instance and fully twenty-five in the second instance voted for defendant and contestee;

‘ Eighth, that in Precinct 1 of Ward 5, more than one hundred persons, and in Precinct 1 of Ward 7, approximately two hundred and fifty persons received assistance by two commissioners representing defendant in the first instance and by one commissioner representing defendant in the second instance, without the supervision of a commissioner representing plaintiff.

‘ Ninth, that in Precinct 1 of Ward 5, commissioners detached the numbered slips from the ballots prior to the actual voting;

‘ Tenth, that at said election, general misconduct and illegal procedure were engaged in by unauthorized persons acting as commissioners and by acts of intimidation, undue influence and illegal and improper electioneering by various persons interested in the candidacy of the defendant and contestee;

‘ Eleventh, that at Precinct 2 of Ward 8, the polling booths were not properly arranged in that no canvas was placed thereon, resulting in a delay of one hour in the opening of the polls, thereby resulting in several persons leaving the polls without voting at that time;

‘ Twelfth, that the official tally-sheet compiled by the election commissioners in Precinct 7 of Ward 6 was not forwarded to the Chairman of the Iberia Parish Democratic Executive Committee, and that the tabulation and promulgation is illegal, null and void;

‘ Thirteenth, that in Precinct 1 of Ward 5 and at Precinct 5 of Ward 6, the official ballots reached the commissioners in broken packages.

‘ Petitioner further alleges that the counting and crediting of spoiled ballots, and the miscalling and crediting of ballots in favor of defendant warrants the opening of the ballot boxes and a recount thereof.

‘ In the alternative, he alleges that, because of the improper procedure, irregularities and illegal and improper conduct, the returns of Precinct 1 of Ward 5, Precinct 5 of Ward 6, Precinct 1 of Ward 7 and Precinct 2 of Ward 8 should be invalidated and rejected and, in the further alternative, that the entire election be annulled and rescinded, and that the proper Parish Democratic Executive Committee be commanded to order another election.

‘ Act 97 of 1922, Section 27, as amended by Act No. 28 of 1935, 2d Ex.Sess., § 1, provides: ‘ * * * or if it be a municipal, parochial or district office, then to the District Court of the parish in which the contestee resides, 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; * * *.’

‘ I shall hereafter deal with the complaints and charges in their sequence as hereinabove stated.

‘ I find thirteen articles of the petition devoted to the alleged irregularity of spoiled ballots being counted and credited to the defendant and contestee.

‘ Each of these articles, irrespective of dealing with thirteen different precincts, and irrespective of the greater and lesser number of ballots stated therein, in their phraseology are identical. The verbiage therein used is in the category of stereotyped averments.

‘ Petitioner starts out and declares that in a certain named precinct, a certain number of ballots, or more, were spoiled. Needless to say, such an averment is a conclusion of the pleader. This was clearly so held in the case of Lafargue v. Galloway, 184 La. 707, 167 So. 197. The reasons in support of this conclusion read as follows: ‘ By reason of visible erasures, improper marking, defacement, mutilation, or by reason of being marked in ink, marked with a check mark, a circle, or an irregular mark, or marked outside the square or proper place, or by reason of being torn or otherwise marked, or by reason of various other irregularities and illegal ways adopted by the voter to mark a ballot; * * *.’

‘ The Courts, on numerous occasions, have reviewed our primary election statute, supra, and have prescribed what requirements are essential to state a cause of action. There are many reasons, with which I shall hereafter deal, which require a pleader to state specifically and in detail the irregularities complained of. The conciseness and precision of a petition seeking to go behind the returns of election officers must clearly appear, for it is universally accepted that the opening of ballot boxes and the recounting of ballots is a perilous experiment. Not only does our jurisprudence command this requirement, but the statute, supra, itself so commands.

‘ In a reading of these numbered articles relative to spoiled ballots, we find no specific or precise reason given that these ballots were spoiled, nor is there a definite number so fixed. Plaintiff simply contents himself with charging every possible and conceivable manner in which a ballot may be spoiled. He does not state that a given number of ballots were spoiled for a given reason, but charges that the ballots were spoiled for every conceivable alternative reason. The effect of such a general charge is that he believes, if these ballot boxes were opened, that upon a recount, he may or may not find ballots to fit the blanket and all-embracing causes alleged by him. By the use of this all-embracing language, he contents himself with the hope that such may or may not be...