Roy v. Board of Sup'rs of Elections of Parish of Lafayette

• Court: Louisiana Supreme Court
• Citation: Roy v. Board of Sup'rs of Elections of Parish of Lafayette, 3 So.2d 747, 198 La. 489 (La. 1941)
• Decision Date: 17 July 1941
• Docket Number: 36321.
• Parties: ROY et al. v. BOARD OF SUPERVISORS OF ELECTIONS OF PARISH OF LAFAYETTE et al.

3 So.2d 747

198 La. 489

ROY et al. v. BOARD OF SUPERVISORS OF ELECTIONS OF PARISH OF LAFAYETTE et al.

No. 36321.

Supreme Court of Louisiana

July 17, 1941

Rehearing denied July 22, 1941.

John W. Lewis, of Opelousas, Richard Kennedy, of Lafayette, George M. Wallace and Wade O. Martin, Jr., both of Baton Rouge, for relators.

Eugene Stanley, Atty. Gen., A. M. Suthon, Asst. Atty. Gen., C. B DeBellevue, Dist. Atty., of Crowley, Edward Meaux, Asst Dist. Atty., of Lafayette, N. Curtiss Pettijcan, of Rayne and Chappuis & Chappuis, of Crowley, for respondents.

McCALEB Justice.

Exercising the supervisory powers vested in us by Article 7, Section 2 of the Constitution of 1921, we issued a writ of certiorari herein directing the District Judge to transmit to this court the record of the proceedings complained of by the relators and further ordered that the judge and the respondents, Board of Supervisors of Elections of the Parish of Lafayette, James M. Gardiner, Registrar of Voters of the Parish of Lafayette, and Gaston Hebert, Sheriff of the Parish of Lafayette, show cause why the relief prayed for by the relators in their petition for writs should not be granted.

The transcript of the proceedings had in the District Court reveals the following facts: The relators, J. Maxime Roy and Wilson J. Peck, are duly elected officers of the City of Lafayette, occupying te positions of Trustee of Public Safety (Ex-Officio Mayor) and Trustee of Public Property respectively. Prior to May 31, 1941, a group of electors of the City of Lafayette circulated petitions directed to the Governor in which they requested that an election be called and held in the City of Lafayette for the purpose of recalling the relators, Roy and Peck. On May 31, 1941, James M. Gardiner, the Registrar of Voters, with whom the recall petitions had been filed, issued certificates showing the number of persons who had signed the petitions and also the total number of qualified electors in the City of Lafayette as of the date the certificates were issued and at the last preceding election held on November 5, 1940. This certificate, together with the recall petitions, was transmitted to the Secretary of the State and the latter, acting under the provisions of Section 4 of Act 121 of 1921, Ex.Sess., certified upon the recall petitions that a sufficient number of signatures had been signed to the petitions to authorize the holding of a recall election. Thereafter, on June 9, 1941, the Governor issued a proclamation directing that a special election be held in the City of Lafayette on Tuesday, August 12, 1941, for the purpose og determining whether the relators should be recalled and commanding the Board of Supervisors of Election of the Parish of Lafayette and all other officers charged by law with any duties in connection therewith to cause said election to be held and the return thereof to be made in the manner and form prescribed by law.

On June 23, 1941, the relators instituted this suit seeking to enjoin the holding of the recall election on the following grounds:

(1) That Act 121 of the Extra Session of 1921, which is the general law providing for a recall of State, parish or municipal officers, has no application to them as officers of the City of Lafayette since proceedings for the recall of officers of the City of Lafayette are regulated and governed exclusively by specific provisions contained in the Charter of that City, that is, Act 310 of 1914 as amended, a special law which was not repealed by the enactment of the general recall law (Act 121 of 1921, Ex.Sess.).

(2) In the alternative, that, if the court should hold that Act 121 of 1921, Ex.Sess., is applicable to them, then the respondents should nevertheless be enjoined from carrying out the proclamation of the Governor because the recall petitions do not contain the legal signatures of the percentage of qualified electors of the City of Lafayette required by law to authorize an election for their recall. They specifically charge (a) that the recall petitions contain the signatures of five persons who have withdrawn their names from the petitions; (b) that, in the case of relator Peck there were 269, and in the case of relator Roy there were 279, electors who were unable to write and whose marks were made on the petition by the circulator without having two witnesses subscribing thereto as required by Section 14 of Act 121 of 1921, Ex.Sess.; (c) that there were 49 persons in the case of relator Roy and 44 in the case of relator Peck whose names appear on the petitions but who did not actually sign them and that, therefore none of these names should have been considered by the Secretary of State and the Governor in determining whether the petitions contained the signatures of the required number of electors to authorize the proclamation for the recall election.

Upon the showing made by relators in their petition, the District Judge granted a temporary restraining order and issued a rule nisi for the respondents to show cause why the relief prayed for by relators should not be granted. Upon the return day of the rule nisi, the respondents appeared and filed (1) exceptions of no right or cause of action; (2) exceptions to the jurisdiction of the court ratione materiae and (3) an answer in which they denied that the relators are entitled to the relief sought.

After a hearing on the issues thus presented, the judge sustained the exceptions of no right or cause of action and the exceptions to the jurisdiction of the court and dismissed relators' suit.

We are unable to discern merit in the first proposition advanced by the relators, that is, that the Governor had no right to issue his proclamation for a recall election under the provisions of Act 121 of 1921, Ex.Sess., because the recall of officers of the City of Lafayette is governed exclusively by the Charter of that City. Act 310 of 1914. The provisions of the Charter of the City of Lafayette relating to recall elections, which declare in effect that any officer sought to be recalled shall run as a candidate in the recall election, are in conflict with, and have been repealed by, Article 9, Section 9, of the Constitution of 1921 ordaining that the Legislature may pass laws for the recall of any State, district, parish, municipal or ward officer 'provided, the sole issue tendered at any recall election shall be whether such officer shall be recalled'. Act 121 of the Extra Session of 1921, which was enacted pursuant to and under the authority of Article 9, Section 9 of the Constitution of 1921, is therefore applicable to the relators.

We pass on, therefore, to a consideration of the exceptions to the jurisdiction and the exceptions of no right or cause of action, which were sustained by the District Judge. The relators seek to enjoin the respondents from complying with the proclamation of the Governor on the ground that the proclamation was improvidently issued because the petitions for their recall do not contain the legal signatures of 25% of the electorate of the City of Lafayette as required by Act 121 of 1921, Ex.Sess., under which the recall election has been ordered. They allege that the Registrar of Voters, the Secretary of State and the Governor were in error in accepting as legal signatures to the petitions over 269 names on the petition for Peck's recall and over 279 names on the petition for Roy's recall and that, with the elimination of all or a portion of these illegal signatures, the recall petitions are not signed by the number of voters required by law.

Respondents claim, however, that, notwithstanding this, the court was without jurisdiction to grant the relief prayed for by the relators and that the petition does not set forth a cause of action for the following reasons: (1) that an injunction will not issue to prevent the holding of a recall election at a time when the proclamation has already issued calling the election and (2) that the issuance of an injunction in a case such as this would be premature since the relators have no property rrights in their positions as officers of the City of Lafayette and no injury can be shown by them until after the recall election is held and they have been ousted from their positions.

While it is ordinarily true that an injunction will not issue to prevent the holding of an election (See 32 Corpus Juris, Sections 401 and 402, Roudanez v. Mayor, etc., of New Orleans, 29 La.Ann. 271, Town of Ponchatoula v. Police Jury, 120 La. 1040, 46 So. 16, and Dubuisson v. Board of Supervisors of Elections, 123 La. 443, 49 So. 15), this general rule cannot be maintained in the instant case for the reason that, by Section 15 of Act 121 of 1921, Ex.Sess. (the statute under which the recall election is authorized), the relators are granted the right to contest the recall election or the proceedings leading up to the proposed recall election in any court of competent jurisdiction for fraud or other illegality. That section declares:

'That nothing herein contained shall be construed to deny to any officer recalled, or whose recall is sought, under the provisions of this act, the right to contest any such recall, or any proceedings had in relation thereto, in any Court of competent jurisdiction, for fraud or other illegality.' (Italics ours.)

Counsel for the respondents, however, maintain that Section 15 of the Act cannot be regarded as authority for the right of the court to issue an injunction to prevent the...