Porter v. Conway

• Decision Date: 05 December 1934
• Docket Number: 33147
• Citation: 159 So. 725,181 La. 487
• Court: Louisiana Supreme Court
• Parties: PORTER v. CONWAY, Secretary of State

159 So. 725

181 La. 487

PORTER v. CONWAY, Secretary of State

No. 33147

Supreme Court of Louisiana

December 5, 1934

Original publication withdrawn and opinion here republished with the addition of the order and the dissenting opinions.

Gaston L. Porterie, Atty. Gen., and George M. Wallace and D. M Ellison, both of Baton Rouge, for the State, applicant.

Joseph W. Carroll, L. E. Hall, and Edward Rightor, all of New Orleans, C. E. Hardin and T. A. Edwards, both of Lake Charles, and Vernon Porter and Paul G. Borron, both of Baton Rouge, for respondent.

H. F BRUNOT, J. R. LAND, A. T. HIGGINS, Associate Justices. O'NIELL, C. J., and ROGERS and ODOM, JJ., concur in the result on the ground that this is a moot case, and each of them hands down an opinion.

OPINION

Reasons for Issuance of the Writs of Certiorari, Prohibition, and Mandamus and Making Them Returnable on November 26, 1934.

HIGGINS Justice.

This matter comes before us on an application by the Secretary of State for remedial writs whereby he asks to be relieved from the effect of two preliminary writs of injunctions, which are said to have been illegally and improvidently issued by the district judge.

Plaintiff, claiming to be Democratic nominee for Associate Justice of the Supreme Court of the State of Louisiana for the Third Supreme Court District for a full term of fourteen years, sought a prohibitory injunction from the district judge of the Nineteenth judicial district for the parish of East Baton Rouge, to restrain the defendant, the Secretary of State, from issuing ballots to be used in the primary election called by the Democratic Executive Committee for the Third Supreme Court District for October 9, 1934, and to restrain the defendant from printing on the official ballots to be used in the general election of November 6, 1934, the name of any person other than that of plaintiff as Democratic nominee for the said office; and a mandatory injunction commanding the defendant, Secretary of State, to recognize plaintiff as the nominee of the Democratic Party for the said office and commanding him to compile and canvass the returns of the election of September 11, 1934, and promulgate the same, and to declare plaintiff the Democratic nominee for the said office, and commanding the defendant, the Secretary of State, to print on the official ballots to be used in the said general election, the name of the plaintiff as the Democratic nominee for the office of Associate Justice of the Supreme Court of Louisiana from the Third Supreme Court District.

Plaintiff alleges that the Third Supreme Court District, under article 7, § 9, of the State Constitution, is composed of the parishes of Calcasieu, Jefferson Davis, Allen, Arcadia, Evangeline, Cameron, Beauregard, Lafayette, Avoyelles, Rapides, and Grant; that under section 6 of Act No. 97 of 1922, the State Central Executive Committee of the Democratic Party, on July 3, 1934, called a primary election to be held on September 11, 1934, for the purpose of nominating a Democratic nominee for Associate Justice of the Supreme Court from the Third Supreme Court District, to serve the term from January 1, 1935, until fourteen years from that date; that plaintiff and Justice Winston Overton duly qualified as sole candidates for nomination for the said office; that on September 9, 1934, Justice Winston Overton died, leaving plaintiff as the sole candidate for the nomination for said office; 'that under section 30 of Act No. 97 of 1922, whenever it shall be found there is but one candidate for any particular office for which a primary has been called, the committee ordering the said primary must be immediately convened, and the person so entering and being thus unopposed shall be declared to be the nominee of the party that ordered the said primary for the particular office for which he has offered, without the necessity ofholding a primary election for said office;' 'that under the said section of the said act, if, after the date has passed on which candidates are allowed to enter and file their notification in a primary, one or more of the rival candidates for any particular office dies, additional candidates for that office are permitted to enter and file their notification for a period of 5 days after such death, but not when death occurs within 7 days from the day fixed for the primary election, and that the death of the Honorable Winston Overton occurred within 7 days before September 11, 1934, and it thereupon became the mandatory duty of the said committee to immediately convene and declare your petitioner the nominee of the Democratic party for Associate Justice of the Supreme Court from the Third Supreme Court District, without the necessity of holding a primary election for the said office:' 'that a meeting of the said committee was held on September 15, 1934, whereupon the said chairman, T. Arthur Edwards, notified the committee of the law, and a resolution declaring your petitioner the nominee of the Democratic party for the said position was duly made and seconded, but, in spite of that fact, the said committee declined to pass the said resolution, ignoring the clear provisions of the law, and passed a resolution calling a second primary for said position for October 9, 1934;' 'that the powers of the committee to call a first primary election were exhausted by the committee's call on July 3, 1934, and that under said primary law, and especially section 27 thereof, the said committee has no power to call a second primary under any circumstances whatsoever:' 'that by reason of the fact above set forth and independent of the illegal action of the said committee in refusing to declare your petitioner the nominee for said office and in ordering the second primary, your petitioner is, in truth and fact, the legal nominee for said office and entitled to have his name placed upon the ballots to be used in the general election to be held on November 6, 1934;' that, in the alternative, it was physically impossible for the chairman of the Third District Supreme Court Executive Democratic Committee to immediately convene the committee and declare him the nominee, and stop the primary election of September 11, 1934, from being held, because the members thereofwere scattered throughout the eleven parishes constituting the district, with the result that the said primary election of September 11th was held and plaintiff received a vast majority of the votes cast by the voters of the district for the nomination; that under section 25, paragraph 14, of the Primary Law, returns of a primary election must be made and the returns of the primary election of September 11, 1934, were made to the Secretary of State; that under section 27 of the act, it was the duty of the Secretary of State to immediately proceed to tabulate and compile the said returns and promulgate them in the Official Journal within eight days after the date of the said primary election, and forward a certified copy thereof, under his signature and seal of office, to the chairman of the committee ordering the primary; and that plaintiff has failed to carry out his duties in this respect; 'that it is the duty of the Secretary of State, to print, and it is the right of your petitioner to have printed his name upon the ballots for the general election to held on November 6, 1934, as the nominee of the Democratic party for the Third Supreme Court District, but petitioneris informed and on such information alleges that the Attorney General of Louisiana, has rendered an opinion, advising the Secretary of State not to recognize petitioner as the Democratic nominee for said position and said Secretary of State declares that he will not so recognize petitioner and that he will not print petitioner's name on the ballots to be used in the general election of November 6, 1934, but will print the name of any candidate for the said office who shall receive the greatest number of votes at the electoral and so-called second primary to be held on October 9th, 1934;' 'that the nomination claimed by petitioner is, as a matter of fact, equivalent to an election, and petitioner by virtue of the said nomination, has a vested right in the said office and the deprivation of such right is violative of his rights under the Constitution and laws of the State of Louisiana and Constitution and Laws of the United States of America, particularly section 15 of article 4 of the Constitution of Louisiana and the Fourteenth Amendment of the Constitution of the United States;' 'that the cost to the State of Louisiana and to each of the parishes comprised in said Districtfor an election, runs into many thousands of dollars and that the holding of the said illegal election on October 9th, 1934, will work a great and irreparable injury to your petitioner, both as the legal nominee for said position, and as a citizen and a tax payer, and will cause confusion and impede the clear expression of the public will at the polls at said general election, and that the said threatened injury will not be compensable in money;' and 'that your petitioner has no adequate remedy at law among other things in this that the legal delays incident to petitioner getting a final judgment at law are such that petitioner could not anytime thereby get the relief herein sought so that his rights could be judicially and effectively enforced * * *.'

The defendant filed, separately, certain exceptions and in each instance reserved the benefit of the exceptions previously overruled, as follows:

1. That the court was without jurisdiction ratione materiae, because the question presented was purely a political one, involving a matter placed by the Legislative and Executive Departments of the State of Louisiana, solely within the...