Peck v. City of New Orleans

• Decision Date: 01 December 1941
• Docket Number: 36417-36419.
• Citation: 5 So.2d 508,199 La. 76
• Court: Louisiana Supreme Court
• Parties: PECK v. CITY OF NEW ORLEANS et al.

5 So.2d 508

199 La. 76

PECK v. CITY OF NEW ORLEANS et al.

Nos. 36417-36419.

Supreme Court of Louisiana

December 1, 1941

Rehearing Denied Dec. 22, 1941. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Francis P. Burns, City Atty., and Wm. F. Conkerton and Henry C. Keith, Jr., Asst. City Attys., all of New Orleans, for appellants.

Eugene Stanley, Atty. Gen., and W. D. Goff, W. C Perrault, and C. Sessions, Asst. Attys. Gen., for Board to Purchase Voting Machines, State Treasurer and State Auditor, appellants.

Kemble K. Kennedy, George M. Wallace, and Wade O. Martin, Jr., all of Baton Rouge, for appellee.

Rosen, Kammer, Wolff & Farrar, of New Orleans, for Shoup Voting Machine Corporation, Intervenor.

James M. Colomb, Jr., H. Crnelius Vosbein, Julius Katz, William A. Porteous, Jr., Moise W. Dennery, George A. Dreyfous, Samuel Rosenberg, Oliver P. Carriere, Herve Racivitch, Gus B. Baldwin, Jr., and Albert L. Dart, all of New Orleans, for Amici Curiae.

McCALEB Justice.

This is a suit for an injunction in which the plaintiff, Alphonse Peck, a taxpayer and a resident of the City of Lafayette, Parish of Lafayette, seeks to restrain certain officials of this State and the City of New Orleans from carrying out the provisions of Act 84 of 1940, which provides for the use of mechanical voting machines in elections in the State of Louisiana and makes such use mandatory with respect to the City of New Orleans. Plaintiff asserts that the statute is unconstitutional, assigning numerous reasons therefor, and additionally proclaims, in the alternative, that the State officials are attempting to exceed aurhority granted to them by the law.

In order that a clear understanding may be had of the many questions presented in the case, it is apt to set forth a brief history of the legislation under attack. Prior to the year 1940, the use of voting machines in elections was not authorized in Louisiana. By Section 7 of Article 8 of the Constitution of 1921, it was provided that 'in all elections by the people the electors shall vote by ballot, and the ballots cast shall be publicly counted.' And Section 15 of the same Article declares in part: 'All elections by the people, except primary elections * * * shall be by official ballot, printed and distributed at the expense of the State; * * *.'

The Legislature, at its regular session of 1940, being of the belief that the use of voting machines in elections would provide an efficient modern method by which votes can be cast and counted, undertook to submit certain constitutional amendments to the people and to pass laws providing for balloting by use of voting machines throughout the State or in one or more parishes or cities. And, by Act 84, legislation was enacted authorizing the use of such machines in all elections to be held in the State. The validity, effect and operation of this statute was made dependent upon the approval by the people of the constitutional amendments proposed by Acts 372 and 375. These two acts were thereafter submitted to the electorate at the congressional election of 1940 and, upon receiving a favorable vote, became a part of the Constitution, amending Sections 7 and 15 of Article 8 thereof so as to read as follows:

Section 7. 'In all elections by the people the electors shall vote by ballot and the ballots cast shall be publicly counted; provided however, that the Legislature may provide for balloting by use of voting machines, and the manner of installation throughout the State, or in one or more parishes or cities, of mechanical voting machines.

'Upon installation of such machines, the provisions of this Constitution which are not appropriate to balloting by use of such machines, shall not be applicable to those places where said machines are being used, but insofar as is practicable and possible, all such provisions shall remain effective.

'In all elections by persons in a representative capacity, the vote shall be by vivavoce.

'Any legislation adopted at the Regular Session of the Legislature of 1940, based upon this proposed amendment relative to the installation of and balloting by use of voting machines shall be validated and ratified by the adoption of this amendment.'

Section 15. 'All elections by the people, except primary elections and municipal elections in towns having a population of less than twenty-five hundred, when such elections are not held at the same time as general State elections, shall be by official ballot, printed and distributed at the expense of the State; and such ballots shall have printed thereon, and at the head and immediately preceding the list of names of the candidates of each political party or nominating paper, a specific and separate device adopted by such political party by which the political party and the candidates of such political party or nominating paper may be indicated. By stamping such device at the head of the list of candidates of each political party, or nominating paper, the voter may indicate that his vote is for the entire or straight ticket of the particular party or nominating paper employing the particular device allotted to such political party, or nominating paper. When the voter does not desire to vote an entire straight party ticket, he may vote for candidates of any political party or nominating paper, by stamping or marking with (X) a blank space to be left opposite the names of each candidate on said official ballot; provided, however, that the Legislature may provide as is provided in Section 7 of this Article for voting in any parish or municipality within the State by means of voting machines, which shall permit the voter to designate his choice in said machine substantially as required by this Section.

'Any legislation adopted at the Regular Session of the Legislature of 1940, based upon this proposed amendment, shall be validated and ratified by the adoption of this amendment.'

Upon the approval of the amendments, the enabling statute (Act 84 of 1940) went into full force and effect.

Act 84, which contains 22 sections, authorizes the use of voting machines in primary, special and general elections throughout the State. The use of the machines is declared to be mandatory in all parishes containing a municipal corporation, the population of which exceeds 150,000 (which means the City of New Orleans) and optional as to any other parish. However, provision is made for the holding of an election by which the voters of any particular parish may determine whether they desire that the parish will be governed by the Statute. In the event that any parish so determines, it is provided in Section 19 that the State will defray one-half of the expenses incident to the purchase, installation, maintenance, etc., of the voting machines and the other half is to be borne by the parish. In the case of the City of New Orleans, where the use of the machines is made mandatory, the expense of purchase, etc., is likewise to be divided equally between the City and the State. Section 19 further provides that the voting machines shall be purchased by a Board composed of the Governor, the Lieutenant Governor, the Secretary of State, the Attorney General and the Speaker of the House of Representatives. This Board is directed to give ten days' notice for the filing of bids in the office of the Secretary of State and to publicly open the bids at the expiration of said ten days.

Pursuant to the provisions of the statute, the Board to Purchase Voting Machines advertised for bids for the purpose of furnishing to the City of New Orleans 435 machines. The lowest bid in response to the call was filed by the Shoup Voting Machine Corporation of Philadelphia which agreed to furnish the necessary machines for a total sum of $494,160 cash. This bid was accepted by the State Board.

Thereafter, the plaintiff filed a petition in the Nineteenth Judicial District Court for the Parish of East Baton Rouge in which he sought to have the State Board, through its component members, the Governor, the Lieutenant Governor, the Secretary of State, the Attorney General and the Speaker of the House of Representatives; the City of New Orleans, through its Mayor, Robert S. Maestri; Andrew P. Tugwell, State Treasurer, and Ludlow B. Baynard, State Auditor, prohibited and enjoined from taking any further action relative to the purchase of, or payment for, voting machines and from renting or leasing any voting machines for use in the City of New Orleans and Parish of Orleans under the provisions of Act 84 of 1940. The grounds advanced by the plaintiff for the injunctive relief prayed for are (1) that Act 84 of 1940 is unconstitutional in its entirety for the reason that it has been enacted in violation of Section 16 of Article 3 of the Constitution of Louisiana; (2) that the statute is arbitrary and discriminatory and denies plaintiff the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States; (3) that it violates the provisions of Section 4 of Article 4 of the Constitution of Louisiana and (4) that it violates the provisions of Sections 7 and 15 of Article 8 of the Constitution of Louisiana as amended by Acts 372 and 375 of 1940 and also, Section 4 of that Article.

It is further alleged that Section 19 of Act 84 of 1940 is unconstitutional because that section contains provisions for the purchase of voting machines in violation of Section 16 of Article 3 of the Constitution and that, if the section is applied so as to permit the defendants to withdraw monies out of the General Fund of the State Treasury for the purchase, installation maintenance, etc., of voting machines, then it violates Sections 1, 9 and 10 of [199 La. 93] Article 4 of the Constitution an...