State ex rel. Langridge v. Harris

• Decision Date: 05 February 1962
• Docket Number: No. 330,330
• Citation: 138 So.2d 197
• Parties: STATE of Louisiana ex rel. Frank H. LANGRIDGE, District Attorney for the 24th Judicial District, v. Michael A. HARRIS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 197

138 So.2d 197

STATE of Louisiana ex rel. Frank H. LANGRIDGE, District Attorney for the 24th Judicial District, v. Michael A. HARRIS et al.

No. 330.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 5, 1962.

Rehearing Denied March 12, 1962.

Certiorari Denied April 12, 1962.

Robert I. Broussard, John E. Fleury, Robert D. Edwards, H. Charles Gaudin, Gretna and George M. Wallace, Baton Rouge, for relator-appellant.

Nathan Greenberg, Gretna, for defendants-appellees; Foley, Cox & Judell, New Orleans, of counsel.

Before YARRUT, JOHNSON and LUTHER E. HALL, JJ.

HALL, J., pro tem.

On June 16, 1959, the Honorable Lether E. Frazer, then acting Governor of the State of Louisiana, issued his proclamation incorporating two communities situated in the Eleventh Ward of the Parish of Jefferson known as Grand Isle and Cheniere Caminada into the 'Town of Grand Isle'.

This action of the Governor was taken by virtue of the authority in him vested by LSA-R.S. 33:52 which reads as follows:

'Whenever two-thirds of the electors of an unincorporated settlement sign and present to the governor a petition setting forth the metes and bounds of their unincorporated settlement, stating the number of inhabitants therein, and praying incorporation, he shall inquire into the facts. If he finds the petition sufficient and sufficiently signed, and it be shown to his satisfaction that it has been published in full for three weeks in some newspaper of the proposed municipality, if there be one, and if not, by posting in at least three conspicuous places in the proposed municipality, and that the proposed municipality contains at least one hundred and fifty inhabitants, he shall, by proclamation, declare the municipality incorporated, defining its limits and boundaries, and fixing its name. This proclamation shall be filed in the office of the Secretary of State, and remain a record thereof.'

After issuance of the proclamation and its due filing in the office of the Secretary of State, a mayor and other municipal officers for the newly created 'Town of Grand Isle' were duly selected and inducted into office.

On September 17, 1959, this suit was filed by the State of Louisiana on the relation of Frank H. Langridge, District Attorney in and for the Parish of Jefferson, alleging that the proclamation of incorporation of the Town of Grand Isle is invalid for a number of reasons, and that the defendants, the Mayor and the Board of Aldermen of the said municipality, were usurpers and intruders into office and were acting in an unlawful and illegal capacity as such municipal officers. The District Attorney's suit was filed by virtue of and pursuant to the authority contained in LSA-R.S. 42:76. See State ex rel. Galloway v. Roberts, 200 La. 36, 7 So.2d 607.

Plaintiff's petition alleges that the incorporation of the Town of Grand Isle is invalid on various grounds as follows:

a) That the petition for incorporation was not signed by some of the persons whose names appear thereon.

b) That the petition for incorporation was signed by sone persons who were not qualified electors.

c) That the names of some persons appear on the petition more than once.

d) That the petition for incorporation was fraudulently misrepresented to a number of the signers.

e) That some persons' names should be struck from the petition for various and miscellaneous other reasons.

After full trial on the merits the District Judge rendered judgment in favor of the defendants and dismissed the suit. Plaintiff prosecutes this appeal from that judgment.

For convenience we shall first review the facts and state our conclusions thereon, reserving to a later part of this opinion a discussion of the law upon which such conclusions are based.

At the outset we wish to commend counsel for both parties for the very excellent briefs filed by them. Without the benefit of such briefs, particularly on the facts, the difficult task of reviewing the thirteen volumes of this record would have been well nigh insurmountable.

In considering the matter of the issuance of his proclamation the Governor had before him, in addition to the signed petition of electors, a certificate of the Registrar of Voters of Jefferson Parish dated May 8, 1959, certifying: '* * * That there are 862 duly qualified registered electors in the Eleventh Ward of the Parish of Jefferson which comprises Grand Isle and Cheniere Caminada. That of the names and signatures subscribed to the attached petitions, 591 are duly qualified registered electors of said Eleventh Ward of the Parish of Jefferson, which is more than two-thirds of the number required for the purpose set forth in the attached petitions.'

Both parties question the accuracy of the Registrar's certificate as to the number of qualified registered electors in the Eleventh Ward.

Plaintiff maintains that as of May 8, 1959, the date of the Registrar's certificate, there were actually three more duly qualified registered electors in the Eleventh Ward than his certificate shows. Plaintiff claims that the Registrar made a mistake in his count and that an accurate count of the electors listed on the Registrar's certified list (Exhibit B) shows a total of 863 names instead of 862. Our count does not bear out plaintiff's contention in this regard. Plaintiff also contends that two persons (Edgar D. Perkins, registered April 23, 1959, and William L. Peters, registered April 6, 1959) should have been certified as being registered as of May 8, 1959, but were not included on the list certified by the Registrar. The record sustains plaintiff's contentions in this regard.

The defendants contend, on the other hand, that there were but 858 qualified registered electors within the metes and bounds of the unincorporated settlements of Grand Isle and Cheniere Caminada as set forth in their petition; that the Registrar's certificate in terms covers the entirety of Ward Eleven whereas the area sought to be incorporated is somewhat less than the area of Ward Eleven, and that the Registrar's count of qualified registered electors includes the names of Lee Qwong Pen and Batiste Nelson who reside in Ward Eleven but outside of the area to be incorporated.

We digress here to state that all testimony sought to be adduced by defendants on this score and on other attempts by defendants to vary, alter, or contradict the Registrar's certificate was objected to by plaintiff on the ground that defendants, having filed and relied on the certificate in obtaining the Governor's proclamation are estopped to deny its accuracy. The District Judge permitted all such evidence to be taken subject to the objection. For the reasons hereinafter set forth we are of the opinion that plaintiff's objection is not well grounded.

Returning now to Lee Qwong Pen and Batiste Nelson, we are of the opinion that the record supports defendants' contention as to Lee Qwong Pen but not as to Batiste Nelson.

Defendants also contend that Irvin Barthelemy and Hervin Barthelemy are one and the same man and the Registrar erroneously included both names in his computation of 862 electors. Defendants produced testimony to the effect that some of the signatures on Irvin's voting records matched some of those on Hervin's records; however, the fact that Irvin and Hervin are two distinct persons is proved by the fact that while their names are similar their registration certificates show that they have different jobs, different parents and different birthdays. We are of the opinion that the Registrar was right in counting both names.

Defendants further contend that Daniel Middleton, registered as an elector from Ward Eleven should not have been counted by the Registrar because he died on or about June 1, 1958. Defendants' contention in this regard cannot be sustained because it constitutes a collateral attack on Middleton's registration.

By counting Perkins and Peters and striking Lee Qwong Pen, we arrive at the figure 863 which constitutes in our opinion the number of qualified registered electors within the area sought to be incorporated.

For the purpose of determining the two-thirds majority necessary for incorporation, we are of the opinion that the petition presented to the Governor must be signed by at least 576 persons whose signatures are valid.

Although the petition presented to the Governor contains 625 names the Registrar for various reasons eliminated 34 names and certified only 591 as being valid.

Defendants contend that 11 of the 34 names should not have been eliminated by the Registrar. In this connection they were met with the same objection that they are estopped to vary, alter or contradict the Registrar's certificate.

These eleven names must be considered individually:

1. Doltie Tillie. Her signature was excluded by the Registrar because the signature on the petition did not appear to correspond with the signature on the registration roll. A Mrs. Doltie T-I-L-L-E being sworn as a witness for defendants testified that she signed 'Doltie Tillie' on the petition but did not offer any explanation as to why she misspelled her true name when she signed the petition; neither did she testify that she is the person who is registered as 'Doltie Tillie'. Her name was properly excluded by the Registrar.

2. Mrs. Cyril Justice. Her signature was excluded by the Registrar for the reason that the signature on the petition did not appear to him to correspond with the signature on the registration roll. However, Mrs. Cyril Justice testified that she is a registered voter and that the signature on the petition was actually placed thereon by her. Her name should be restored to the list.

3. Mrs. Juanita Kimball. Her signature was not counted by the Registrar for the reason that the name 'Juanita Kimball' does not appear on the registration roll although the roll contains a 'Mrs. Juanita Kimbrell'. Mrs. Juanita Kimbrell appeared as a witness and testified that she is a registered voter and that the signature '...