State ex rel. Noe v. Knop

• Decision Date: 12 June 1939
• Docket Number: 17205.
• Citation: 190 So. 135
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE EX REL. NOE v. KNOP, CIVIL SHERIFF.

190 So. 135

STATE EX REL. NOE v. KNOP, CIVIL SHERIFF.

No. 17205.

Court of Appeal of Louisiana, Orleans.

June 12, 1939

Rehearing Denied Oct. 2, 1939.

Appeal from Civil District Court, Parish of Orleans, Division A; Hugh C. Cage, Judge.

Mandamus proceeding by the State of Louisiana, on the relation of James A. Noe, against Louis Knop, Jr., Civil Sheriff for the Parish of Orleans, to compel defendant to permit relator to take photographs of the poll books containing names of voters of the Parish of Orleans. Judgment for relator and defendant appeals suspensively.

Affirmed.

D. M Ellison, Atty. Gen., and Frank Wm. Hart and Charles J. Rivet both of New Orleans, for appellant.

James David McNeill, of New Orleans, for appellee.

JANVIER, Judge.

The relator, James A. Noe, prays for the issuance of alternative writs of mandamus, seeking thereby to compel Louis Knop, Jr., Civil Sheriff for the Parish of Orleans, to permit relator " to take photographs of the poll books containing the names of voters of the Parish of Orleans".

He alleges that on Tuesday, March 7, 1939, at about 10:30 a. m., he " presented himself at the office of the said Louis Knop, Jr. and requested permission of the said Louis Knop, Jr. in his capacity as Civil Sheriff for the Parish of Orleans, to take photographs of the poll books containing the names of the voters of the Parish of Orleans" ; that he was provided " with all of the equipment necessary for the taking of said photographs" and that he " offered to make the said photographs in such a way as would not interfere with the Civil Sheriff in the performance of his duties".

Knop filed exceptions of vagueness and of no cause of action and, with a reservation of his rights under these exceptions, filed answer admitting that he is the Civil Sheriff and in effect admitting that the poll registration books of the Parish of Orleans are in his custody, but averring that " * * relator's visit to respondent's office with the equipment referred to, disrupted the operations of his office and delayed the performance of his duties as the executive officer of this court; that relator's equipment required for its use the consumption of electrical current, which is paid for with public funds" ; and Knop further averred that " if the law did permit of the taking of photographs, the taking of such in the manner proposed by the relator would cause serious inconvenience to the operations of respondent's office, to the detriment of the duties which he and his deputies and employees are required to perform * *".

Both exceptions were overruled and, after trial on the merits, there was judgment in favor of Noe making peremptory the writ of mandamus and, accordingly, ordering respondent to give permission for the photographing of the said poll books.

From this judgment Knop has appealed suspensively to this court.

According to the brief filed on behalf of Knop, the exception of vagueness is directed at the fact that the prayer of Noe does not in detail " designate any specific acts which he demands of respondent".

The answer to this contention lies in the fact that Noe does not demand of the Sheriff any affirmative act at all. He merely asks that the Sheriff refrain from interfering with the taking of the photographs; only that the Sheriff grant permission--not that he do anything else. In other words, while relator seeks a mandamus, he in effect requests that he be granted the effect which would follow from the issuance of an injunction. This demand was set forth with sufficient clarity to permit of compliance by anyone desiring to comply.

The questions on which the entire legal issue depends are presented by the exception of no cause of action, which we shall next consider.

Through this exception Knop maintains that, as a matter of law, the constitutional provision on which Noe relies does not give to him, nor to anyone else, the right to demand the permission which is sought.

Prior to the approval by the People of this State of Act No. 230 of 1934 as a constitutional amendment to Section 2 of Article VIII of the Constitution of 1921, it was required of any prospective voter, as one of the prerequisites to the right to vote in any year, that he produce poll tax receipts showing the payment by him of a poll tax during the two preceding years. By the constitutional amendment referred to, there was substituted the requirement that each prospective voter should, during the two preceding years, register his name in records to be kept for that purpose and obtain certificates showing those registrations. That constitutional amendment reads as follows:

" No person less than sixty (60) years of age shall be permitted to vote at any election in the State who shall not, in addition to the qualification above prescribed, on or before the 31st day of December, of each year, for two years next preceding the year in which he offers to vote, register in the poll book, such book to be kept by the sheriff of each parish. Such registration shall be made by the voter signing his name on the poll book, and if he is unable to write, by the sheriff or one of his deputies signing the voter's name and the voter making his mark thereto in the presence of two witnesses attesting to the same thereon. The post-office address, his precinct and ward, and where there is such the street address of the voter, shall also be entered on the said poll book. The said sheriff shall keep the said poll book open for registration and inspection at least eight hours between eight o'clock A. M. and six o'clock P. M. on all days except Sundays and legal holidays, and the said poll book shall be a sewed, bound volume; any one desiring to take a photograph of the same or any part thereof shall be permitted so to do by the said sheriff. The said sheriff or his deputies shall legibly write the name of such voter registering immediately beside the voter's signature. Within five days after the first day of each month the said sheriff shall forward to the Registrar of Voters of the Parish the names of those registering, together with their post office address, ward and precinct, and where possible the street address of said voters, separating the list of those whose registration has not been made by their own signatures, with the names in each case of the sheriff or deputy sheriff signing such voters' names and the witnesses attesting to the same. Registration in said poll book for the year 1934 may be made up to and including the 31st day of May, 1935. Poll book for the Parish of Orleans shall be in the office of the Civil Sheriff.

" Every person, before being allowed to vote, shall exhibit to the commissioners of election his certificates of registration, issued by the sheriff, on the official form, or duplicates thereof in the event of loss, for two years as above prescribed. Or proof of registration on such poll books may be made by certificate of the sheriff, which shall be sent to the commissioners of the several voting precincts, showing a list of those who have so registered as above provided, and the dates of registration. It is hereby declared to be forgery, and punishable as such for any sheriff, or other person to antedate or alter, or fraudulently issue a poll book registration certificate. The provisions of this Article as to registration in the poll book shall not apply to persons who are deaf and dumb, or blind, nor to persons under twenty-three (23) years of age who have registered in accordance with this Article, nor, in time of war, to citizens of the State, in the military or naval service of the United States. These provisions shall not apply during 1934 to any person who shall have paid a poll tax during the years 1932 and 1933. * * *"

The contention of Noe is that he, or anyone else, without assigning any reason, may demand permission to photograph any such poll book, or any part thereof, and to take as many photographs as he desires. This right is said to be based on the following provision, which we again quote from the above set forth amendment: " * * * any one desiring to take a photograph of the same or any part thereof shall be permitted so to do by the said sheriff."

The sheriff makes the following contentions:

(1) That throughout the entire amendment, with one exception (where the books of the various parishes are referred to), the word " book" is used in the singular and that, since it is conceded that in the Parish of Orleans there are many books, it is obvious that it could not have been the intention of the framers of the amendment and of the people who adopted that it should apply to the poll " books" which are kept in the Parish of Orleans.

(2) That the provision requires that permission be granted for the taking of " a" photograph and that, therefore, the demand of Mr. Noe, who requests permission to take more than one photograph, exceeds the right granted even if any right at all is actually granted by the amendment.

(3) That there is no provision in the amendment which places upon the " Civil" Sheriff of the Parish of Orleans any duty other than that of merely allowing the poll books to remain in his office and that nowhere in the amendment is there placed upon said Civil Sheriff of the Parish of Orleans the duty of permitting the said books to be photographed.

(4) That even if it be conceded that the people of the state, in adopting the amendment, intended that the word " book" in the singular should contemplate the many books which are required in the Parish of Orleans, and even if it be conceded that, in declaring that the poll books for the Parish of Orleans " shall be in the office of the Civil Sheriff" it was intended that the said Civil Sheriff should perform, in connection with the books, the...