Thornhill v. Wear

• Decision Date: 07 November 1912
• Docket Number: 19,658
• Citation: 131 La. 479,59 So. 909
• Court: Louisiana Supreme Court
• Parties: THORNHILL v. WEAR

59 So. 909

131 La. 479

THORNHILL v. WEAR

No. 19,658

Supreme Court of Louisiana

November 7, 1912

Appeal from Thirtieth Judicial District Court, Parish of Caldwell W. M. Wallace, Acting Judge.

Action by Commodore Perry Thornhill against George Wear to contest a primary election. From a judgment for the contestee, the contestant appeals. Reversed and remanded.

Hundley & Hawthorn, of Alexandria, and Grisham & Oglesby, of Winnfield, for appellant.

Hudson Potts & Bernstein, of Monroe, Foster, Milling, Brian & Saal of New Orleans, George Wear, Jr., of Jena, and N. S. Woody of New Orleans, for appellee.

OPINION

BREAUX, C. J.

This suit was instituted by plaintiff in order to have annulled the action of the judicial executive committee for the district of La Salle and Caldwell in proclaiming on the 7th day of September, 1912, that defendant had received four votes majority over the plaintiff, and in declaring him the nominee. Plaintiff claims the nomination, and wishes to have his name substituted to that of defendant as the nominee to be elected on the 5th day of November, 1912.

The lower court decided on plaintiff's petition that he received 712 legal votes and the defendant 713, a majority of 1, which was sufficient to declare the defendant the nominee, if the findings of the court be correct.

From this judgment the contestant appealed.

Defendant joins in the appeal, and asks that the judgment be amended by sustaining his exception, overruled by the district court, to the jurisdiction of the court, and by sustaining the plea of prescription, filed on the ground that over two days had elapsed from the date of promulgation of the returns by the district committee to the date that the contest was filed.

Following the reverse of the order followed by defendant, we take up the plea of prescription first, for, if sustained, it will dispose of the suit.

Defendant invokes the statute:

"No contest should be entertained unless brought within two days after the official promulgation of the result of the election."

The petition was filed and an illegal order was obtained from the clerk of court authorizing the contest to be filed and directing the defendant to answer. This illegal order was served upon the defendant over a week after the two days had elapsed from the date of the official promulgation of the result of the election.

No question but that a petition should have been addressed to the contestee asking him to recuse himself, and appoint a judge ad hoc. This was not done, although the judge was in the parish in which the suit was brought, and in which he is domiciled.

After the two days had elapsed, a petition was presented to him. He recused himself, and a judge ad hoc was appointed to try the case. This judge issued the order required by Act No. 198, section 6, of 1912.

The contestee was in no way at fault. The contestant had it within his power within the two days after the promulgation to apply for and obtain a proper order. In this he failed. The judge ad hoc decided that no legal order had been given; the clerk having signed such an order while the judge of the district was present in the parish. He overruled the exception, and signed a proper order, which was duly served, over a week after the required time, as before stated.

We hold that the exception of prescription was properly overruled.

We pass to the next objection which is that the reconventional demand of defendant was not filed within the two days. Plaintiff specially invokes the statute in question; that is, No. 198 of 1912. Although he took the position that the contest was filed in time, he now takes the contrary position that the reconventional demand was not filed in time. It does not appear that there was considerable difference on part of plaintiff between the two positions. We will state one pleading in reconvention should have the right to be heard to prove facts necessary to his defense. "The term of forfeiture," words used in several decisions in regard to this prescription, should not bar a reconventional demand in defense or necessary to the maintenance of a defense. Plaintiff would scarcely have time to present his reconventional demand within the two days allowed to institute this suit. Plaintiff could not well institute a suit without knowing whether the action of the judicial executive committee would be questioned by contestant.

The next proposition argued by defendant is that the Act of 1912 relative to primary elections, does not in its title express its object. Such a ruling, if possible in law, would be a very happy solution. It would in great part put an end to the jurisdiction of courts in matter of elections. The jurisdiction in political cases is not very desirable in any way so far as we have been able to discover. The courts have ample to do without that jurisdiction; but it is too late in the day to set it aside for unconstitutionality.

It was conceded by defendant in argument that the court has heretofore declared that Act 138 of 1912 was not unconstitutional. In State v. Michel, 121 La. 374, 46 So. 430, its constitutionality was sustained.

That decision speaks for itself, and is here cited as a precedent.

The statute is not illegal on the ground urged. The title is sufficiently broad to cover the object of the statute. The right of appeal to the courts is favored. The whole statute shows that it was the intention to confer jurisdiction. The main purpose of a title is to avoid the mixing in one act things that have no proper relation to each other. Jurisdiction of the courts here is not an independent subject.

The title need not mention "the means, method or instrument" by which it is intended to accomplish a general purpose. The modus operandi may not be indicated or stated.

If the title does not mislead, or if it be not such as to take one by surprise, it may be good, although it may not be as ample as it might be. On the Merits.

The names of places, creeks, and stores at which precinct elections were held have become familiar.

Plaintiff, Thornhill, received yellow or sample ballots in the following boxes: Olla, 14 votes; Tullus, 24 votes; Nickle, 42, all in La Salle parish; Clark's, 1; ward 6, 12, all in Caldwell -- a total of 93. And plaintiff charges the defendant with having received 66 votes at Olla, 6 at Tullus, 4 at Nickle, and at ward 6, 23, a total of 99 votes. The contention of plaintiff is that, if none of the yellow ballots are legal, a majority of 4 in favor of defendant will be changed to a majority of 2 in his favor.

The ballots cast at Grayson's Creek, in the parish of La Salle, were written, instead of printed. Here it is said that plaintiff received only 8 votes, while defendant received 18. If these ballots are not to be counted, 10 votes will have to be deducted from the votes credited to defendant. (Ten votes to be deducted.) Plaintiff avers that at Taver's store, in ward 1 of La Salle, the commissioners improperly permitted 5 persons, nonresidents, to vote -- J. R. Norma, W. M. Norman, H. C. Green, J. H. Franklin, J. W. Turner, all of whom voted for contestee, Wear. (Five votes to be deducted.) At Olla he received 6 votes to contestant's 14, yellow or sample ballots; at any rate, not official ballots. (Fifty-two votes to be deducted.) At Doyle's Branch, another voting place, the commissioners returned 4 votes for contestant and 4 for contestee. Contestant was entitled to 6 votes. He asked to have the box opened and the votes recounted. (Number of votes to be deducted, two.)

Another complaint of contestant is: That he received one vote which was on a stamped ballot that was stamped also for two school board candidates, and on that ballot only one candidate should have been voted for. Plaintiff claims this vote. (One vote to be added.) That at Sardis all the votes were yellow or sample ballots. That, as a result, upon a recount, it would appear that plaintiff had a majority of good votes of 77 votes.

The contention of contestee, Wear, is that the written ballots were valid, and that the box at Grayson's Creek was properly counted and returned; that, as the commissioners were not furnished with official ballots, they had a right to hold the election at that place, and receive the written ballots; that the voters are not in the least to blame, and should not be deprived of their right to vote. Contestee claims the five votes before named; that is, those of Norman and others. He also claims that the sample votes cast were properly counted at all the precincts. He claims the votes at Olla, at Sardis, in ward 6 of the parish of Caldwell, and avers that plaintiff is not entitled to any votes other than those counted at Doyle's Branch.

Contestee Wear's contention, after stating some further details, is that he received a larger number of the votes than those counted for him and the contestant considerably less.

In his reconventional demand, contestee complains of the action of the commissioners in counting 23 votes for contestant at Taver's and 27 votes at Tullus; at Nickle, 42 votes, all in La Salle; at Summerville, 33 votes; at Peters Church, ward 2, 16 votes; at Kelley's, same parish, 39 votes; at Grayson's, 25; at Clark's 52 votes; at Vixen, ward 5 23 votes; at Fredericksburg, ward 7, 10 votes; at Brown's sawmill, 22 votes; at Union Church, 37 votes; and at Shiloh Church, 37 votes, all in Caldwell parish. A sweeping averment is made by contestee against these votes. The grounds are that the voters were nonresidents, minors, and had failed to register and neglected to pay their poll...