State ex rel. Tebault v. Michel

• Decision Date: 28 October 1908
• Docket Number: 17,342
• Citation: 122 La. 188,47 So. 460
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. TEBAULT v. MICHEL, Secretary of State

47 So. 460

122 La. 188

STATE ex rel. TEBAULT v. MICHEL, Secretary of State

No. 17,342

Supreme Court of Louisiana

October 28, 1908

Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Walter Byers Sommerville, Judge.

Application by the state, on the relation of William G. Tebault, for writ of mandamus against John T. Michel, Secretary of State. Writ denied, and relator appeals. Affirmed.

Clarence Samuel Hebert, for appellant.

Walter Guion, Atty. Gen., James Clark Henriques, Dinkelspiel, Hart &amp Davey, and Legier & Gleason, for appellee.

MONROE J., NICHOLLS, J., absent.

OPINION

MONROE J.

Statement of the Case.

Relator and other persons, desiring to have their names placed upon the official ballot as nominees to the various parochial and municipal offices which are to be filled in this parish and city at the election to be held in November proximo, filed certain nomination papers in the office of the Secretary of State. Within the legal delay thereafter, James C. Henriques as a qualified elector, member of the Democratic party, and chairman of the Democratic parish committee, representing the nominees of that party in this parish, made written objections to the papers so filed, attaching thereto his affidavit to the effect that he had notified the candidates named, that he had protested against their papers, by mailing letters directed to each at the address given in such papers. And, thereupon, also within the legal delay, a "Contest Board" was organized, as required by law, before which relator and his associates, through their representative, and said Henriques appeared and were heard with respect to the objections so made by the latter, with the result that, after duly considering said objections, the board decided that they should be sustained, and that relator and his associates should be denied the right to have their names appear on the official ballot.

Some two weeks later, relator and his associates appeared in the civil district court for this parish, and, alleging the filing of their nomination papers and the protest thereto, as herein above stated, further alleged that said protest --

"was considered and acted upon by the protest board * * *; that said board sustained said protest and declared said nomination papers to be irregular, and accordingly declared that the nominees, your petitioners herein, were not entitled to have their names placed upon the official ballot * * *; whereupon, your petitioners, in conformity with section 58, Act No. 152, p. 281, * * * for the year 1898, proceeded to file new nomination papers, which said papers were signed by the required number of duly qualified voters * * * and were presented to the registrar of voters * * * with the request that he issue a certificate certifying to the number of qualified signers to said nomination papers * * *; that said registrar * * * refused * * * to issue the certificate * * *; that, under the law * * *, they have the right to file the new nomination papers, when, as in this case, the original nomination papers are declared by the protest board to be irregular, at any time before the 5th Tuesday next preceding the day of election."

And they prayed for a writ of mandamus commanding the registrar to issue the desired certificate. The district court found, after hearing the parties, that, under the law, the right to file new nomination papers must be exercised before a primary election is held, and that the Democratic primary having already been held, relators' application came too late. The mandamus was, therefore, refused, and relators, so far as appears acquiesced in the judgment. They, however, then, instituted the present proceedings (that is to say, W. G. Tebault, candidate for the office of mayor, brought this suit, and his associates, candidates for other offices, united in bringing a similar suit, entitled "State of Louisiana ex rel. Wm. F. Piper et als. v. John T. Michel, Secretary of State," now bearing the number 17,343 of the docket of this court, 47 So. 464 ^[1]), in which they pray for a mandamus ordering the Secretary of State to put their names on the official ballot, alleging (inter alia) that --

"James C. Henriques, appearing before the board of contest * * *, first, as a duly qualified elector in the parish of Orleans and a member of the Democratic party * * *; second, in his official capacity as chairman of the Democratic parish committee, * * * and, as such, the representative of all the nominees of the Democratic party, * * * protested against the nomination of petitioners, on various and sundry grounds, but, particularly, for this, to wit, that, under the primary election law, * * * no person can sign a nomination paper who has participated in a primary election which has been called to nominate candidates for said party * * *; that, on September 5, 1908, the board of contest met and decided that * * * those who were alleged to have participated in the Democratic primary election of September 1, 1908, must be eliminated from the nomination papers of your appearers and others, and that, for that reason, the said nomination papers did not contain the required number of signatures, and, accordingly, the names of your petitioners and others must be excluded from the official ballot."

The petition further alleges that the Secretary of State is proceeding to prepare the official ballot without placing the names of petitioner thereon, and --

"that there was no contest before said board of contest, for the reason that James C. Henriques, individually, as an elector and a Democrat, and as chairman of the Democratic parish committee * * *, was absolutely without right or authority or interest in appearing as a contestant, * * * and, under the law, the papers having been received and filed by the Secretary of State, the action of the board of contest is absolutely null * * *; that the said board * * * is without right or authority in law to examine and pass upon any question in connection with the nomination papers, * * * except irregularities in the formal preparation of said papers; that the papers bore the signatures, duly certified by the registrar * * * of more than the required number of electors, and the board of contest had no right or authority to examine into the eligibility of said signers, and more particularly into the question whether or not said signers had subsequently participated in the primary of another party; that, inasmuch as said decision of said board of contest is not based in any particular on matters over which the board has jurisdiction by law, its decision is null."

By supplemental petition, it is also alleged that there was no contest before said board, for the further reason --

"that no notice of contest, as required by law, was ever served on relator in a legal manner."

Relator prays for a writ of mandamus commanding the Secretary of State to place his name upon the official ballot --

"* * * as the candidate of the Independent Democratic League for mayor, * * * jointly with the other candidates of said league and under the emblem 'Liberty Bell.'"

The Secretary of State, having been ordered to show cause why the writ prayed for should not issue, excepted, and answered that the power to determine questions arising from objections to nomination papers is political and is vested in a contest board, whose decision is final, and that the courts are therefore without jurisdiction; that, even if the courts had jurisdiction, the petition discloses no cause of action, since it admits that James C. Henriques, as citizen, elector, Democrat, and chairman of the Democratic parish committee, made objections before the contest board, that the board considered the objections and acted on them, excluding relator's name from the official ballot, and that there is, under the circumstances, no ministerial duty devolving on the Secretary of State to place the name of relator on said ballot; and, further, that relator acquiesced in the decision of the board by attempting to file new nomination papers, and is thereby estopped.

The exception of no cause of action was not acted upon, and the exception to jurisdiction was referred to the merits.

...