(61 South. 518.)

No. 19,512.

#### LACOMBE v. LABORDE.

(Nov. 18, 1912.

On Rehearing, March 31, 1913.)

*(Syllabus by the Gowrt.)*

On Rehearing.

1. Elections (§ 159*) — Candidate at Primary-Subsequent Eligibility.

Section 27 of Act 49 of 1906 clearly provides that when one has entered a primary for the nomination to an office, and has been defeated, that he shall not be eligible thereafter to be a candidate for that office at the general election. There is a direct and plain inhibition placed upon the candidate.

[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 124; Dec. Dig. § 159.*]

2. Elections (§ 159*) — Candidate at Primary-Subsequent Eligibility.

The inhibition placed upon the candidacy at the general election of one who has been defeated in a primary, however, does not prevent the voter from voting for the candidate defeated in the primary. The law allows to the voter the right to vote for whom he chooses, and this right cannot be denied him merely because the one for whom he votes is prohibited from being an avowed or official candidate. The intent of the law is to allow the voter the greatest freedom in the expression of his will, and this freedom is not to be interfered with by the court, in the absence of a clear and unambiguous expression by the lawmaking power of an intent to limit, or restrict within certain bounds, the exercise by the voter of this freedom of choice.

[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 124; Dec. Dig. § 159.*]

3. Elections (§§ 159, 295*) — Eligibility-Candidate at Primary — Legality or Votes.

To hold that the one receiving the majority of votes at the general election is not entitled to the office because he was not eligible as an official candidate would have the effect of disregarding the will of the people, as expressed by their votes, and this will not be done unless it is clearly shown their votes were illegal. This illegality, however, must be clearly expressed in the law, and is not to be eked out by doubtful inference; and, as no part of the statute authorizes this court to declare vacant an office to which one has been elected by a majority of the voters, the successful candidate at the general election will not be disturbed.

[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 124, 297-299; Dec. Dig. §§ 159, 295.*]

Provosty, J., dissenting.

Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge.

Action by Alfred F. Lacombe against George P. Laborde. From a judgment for defendant, plaintiff appeals.

Affirmed on rehearing.

Coco & Couvillon, of Marksville, for appellant. Wm. H. Peterman, of Marksville, for appellee.

PROVOSTY, J.

Section 27 of Act 49, p. 66, of 1906, known as the “Primary Election Law,” provides:

> “Be it further enacted, etc., that no one who participates in the primary election of any political party, shall have the right to participate _ in any primary election of any other political party, with the view of nominating opposing candidates, nor shall he be permitted to sign any nomination papers for any opposing candidate or candidates; nor shall he be permitted to be himself a candidate in opposition to any one nominated at or through a primary election in which he took part.”

Plaintiff and defendant were rival candidates for the office of police juror at the Democratic primary election, and plaintiff was nominated, and his name was printed as the Democratic candidate for that office on the official ballot furnished by the Secretary of State for use at the regular election. The defendant, notwithstanding his having been a candidate in opposition to plaintiff at the primary, was voted for at the regular election, and was returned as elected. A majority of the voters wrote his name on their ballots and scratched off that of plaintiff. Plaintiff then brought the present suit, contesting the election. The contest is based on the twofold grounds that a *438sufficient number of illegal votes were counted to have changed the result of the election, and that defendant was ineligible. The amount in dispute, which is the salary of the office, is less than the lower limit of the jurisdiction of this court ratione materise; but this court has jurisdiction, irrespective of amount in dispute, of all cases in which a statute has been declared to be unconstitutional, and the appeal, which is by plaintiff, has been brought to this court on the assumption that the lower court declared the above transcribed statute to be unconstitutional in so far as disqualifying a candidate defeated at a primary from being a candidate in opposition to the candidate nominated at the primary. Defendant controverts that assumption, and says that the contrary appears from that part of the reasons for judgment of the learned judge a quo bearing upon the eligibility of defendant, which reads:

> “On the question of eligibility urged by plaintiff’s counsel, the court was of opinion at one time that a: candidate who participated in a primary election, and was defeated by his opponent, had no right to become a candidate at the general election; but some years since the Supreme Court passed on that question, and decided that such a candidate had a perfect right to run at the general election. The decision could not be found, but it is recalled that it was rendered in a case where two candidates for membership of the school hoard had run in a primary election and at the general election. The defeated candidate before the primary ran again at the general election, and was elected, and the Supreme Court held that his election was valid.

> “The court considers that part of the primary election, since the Supreme Court has passed upon it, that it is nothing more than a moral obligation. Just lite candidates for the United States Senators who submitted their names at the last primary election would have a perfect right to become candidates before the Legislature, and, if elected, their election would he a valid election.”

Defendant’s learned counsel say that the learned judge a quo did not mean by this that the said statute was unconstitutional, .but merely that it had application only to primary elections and not to regular elections, and hence had no bearing upon the eligibility vel non of defendant at the general election. In this contention defendant is not correct. The question of whether or not said statute has reference to general elections was raised in the lower court by an exception of no cause of action, and the question of unconstitutionality was raised only in the answer on the merits, and this answer was filed only after the exception of no cause of action had been tried and overruled; so that, when the learned judge a quo handed down his reasons for judgment on the merits, the question of the applicability vel non of said statute to general elections was no longer before him for decision, it having been already decided in disposing of the exception of no cause of action, and therefore our learned brother necessarily had reference to the unconstitutionality of said statute in the above transcribed part of his reasons for judgment, for on no other hypothesis could his decision have then gone against plaintiff. Besides, if the idea intended to be expressed by him had been that said statute had no application to general elections, he would not have said that said statute created a moral obligation on the part of the candidate defeated at the primary not to become a candidate at the general election in opposition to his late competitor at the primary, for a statute that has no application can no more create a moral obligation than a legal obligation. Moreover, if any doubt were possible that our learned Brother meant in his said reasons for judgment to hold said statute to be unconstitutional, such doubt would be removed by the following entry on the minutes of the lower court:

> “On motion of plaintiff’s counsel, made in open court, a devolutive appeal was granted returnable to the Supreme Court of Louisiana on that branch of the unconstitutionality of section 27 of Act 49 of 1906.”

The motion to dismiss the appeal is therefore overruled.

*440Besides the exception of no cause of action already referred to, defendant filed an exception of want of proper parties, meaning by the latter exception that the state should have been a coplaintiff: in the case.

In support of the latter exception defendant cites the decision of this court in the case of Roussel v. Dornier, 130 La. 367, 57 South. 1007, 39 L. R. A. (N. S.) 826. That case is easily distinguished from the present one. In it the plaintiff was not claiming to have been elected, and was not contesting an election. All that he alleged was that there was to be an election at which he was to be a candidate, and that the defendant, although not eligible, was figuring as a candidate, and the parish committee was allowing him to do so. There was not involved in the case the right to an office; but solely the qualification of the competitor of plaintiff to figure as a candidate. The court held that this matter of the qualification of persons to offer as candidates was one of public concern in which the state had an interest, and that to the suit bringing this matter before the courts the state should be made a party. Differently from that suit the present suit does involve the right to an office. Again, that suit was not brought under a special statute, whereas the present one is, namely, under Act 24 of 1894, p. 27, expressly prescribing the mode in which suits like the present to contest election to an office may be brought, and not requiring the state to be made a party. The exception of want of proper parties was therefore rightly overruled.

The exception of no cause of action, as already stated, was founded upon the supposed inapplicability of the hereinabove transcribed section 27 of Act 49 of 1906 to general elections. This section may or may not be unconstitutional, but the election at which it forbids the defeated candidate from becoming a candidate in opposition to his I ' competitor at the primary is most certainly and unquestionably the general election. It cannot in the nature of things be any other, since it is not possible for the defeated candidate at the primary to be a competitor to his late opponent at any other. There are but two elections — the primary and the general. After a person has been nominated at the primary, he is not again a candidate, and no one can possibly be a candidate in opposition to him, except at the general election. The prohibition to his late competitor in the primary to again compete with him necessarily therefore applies to the general election; it cannot possibly in the nature of things apply to any other.

The constitutional provisions said to be violated by the said section 27 of Act 49 of 1906 as applicable to general elections are alleged in the answer to be articles 1, 2, 15, 202, 210, and 212 of our state Oonstitution. Said articles read as follows:

> “Article 1. All government, of right, originates with the people, is founded on their will alone and is instituted for the good of the whole. Its only legitimate end is to secure justice to all, preserve peace and promote the interest and happiness of the people.

> “Art. 2. No person shall be deprived of life, liberty or property, except by due process of law.”

> “Art. 15. This enumeration of rights shall not be construed to deny or impair other rights of the people not herein expressed.”

> “Art. 202. The following persons shall not be permitted to register, vote or hold office or appointment of honor, trust or profit in this state, to wit: Those who have been convicted of any crime punishable by imprisonment in the penitentiary, and not afterwards pardoned with express restoration of franchise; those who are inmates of any charitable institution, except the Soldiers’ Home; those actually confined in any prison; all indicted persons, and all persons notoriously insan'e or idiotic, whether interdited or not.”

> “Art. 210. No person shall be eligible to any office, state, judicial, parochial, municipal or ward, who is not a citizen of this state and a duly qualified elector of the state, judicial district, parish, municipality or ward wherein the functions of said office are to be performed. And whenever any officer, state, judicial, parochial, municipal or ward, may change his residence from this state, or from the district, parish, municipality or ward in which he holds *442such office, the same shall thereby he vacated, any declaration of retention of domicile to the contrary notwithstanding.”

> “Art. 212. All elections by the people, except primary elections and municipal elections in towns having a population of less than twenty-five hundred, when such elections are not held at the same time as general state elections, shall be by official ballot, printed and distributed at the expense of the state; and, until otherwise provided by law, such ballots shall have printed thereon and at the head and immediately preceding the list of names of the candidates of each political party or nominating paper, a specific and separate device by which the political party and the candidates of such political party or nominating paper may be indicated. By stamping such device at the head of the list of candidates of each political party, or nominating paper, the voter may indicate that his vote is for the entire or straight ticket of the particular party or nominating paper employing the particular device allotted to such political party, or nominating paper. When the voter does not desire to vote an entire or straight party ticket, he may vote for candidates of any political party or nominating paper, by stamping a blank space to be left opposite the name of each candidate oh said official ballot.

> “The General Assembly shall provide some plan by which the voters may prepare their ballots in secrecy at the polls. This article shall not be construed so as to prevent names of independent candidates from being printed on the ballots with a device; and names of candidates may be written on the ballot. These provisions shall not apply, to elections for the imposition of special taxes, for which the General Assembly shall provide special laws.”

Nothing is said, in defendant’s brief to inform us in what way articles 1, 2, 15, 202, and 210 can be said to be violated by said section 27 of Act 49 of 1906 as applicable to *general*elections; and, as we have not the slightest idea how such violation is to be deduced, we do not feel called upon to discuss the alleged violation of these articles.

The violation of article 212 is said to consist in that by said article the voter is authorized to write upon-his ballot the name of any person he may choose to vote for, and he is deprived of that right if the person he votes for is made ineligible. Plainly we have here a non seguitur. By making a particular person ineligible, the voter is not deprived of his constitutional privilege of writing the name of that person on his ballot. By doing it he throws away his ballot; that is all. The voter cannot be deprived of his constitutional privilege of writing upon his ballot the name of any person he pleases; but, if he writes the name of a person disqualified for the office in question, he merely throws away his ballot.

Our learned Brother should have trusted more to his own good legal judgment, and not followed this ignis fatuus of some judgment of this court which nobody seems to be able even now to locate.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that there now be judgment in favor of plaintiff and against defendant setting aside the return of the commissioners of election which declared the defendant elected to the office of police juror for the Fifth ward, parish of Avoyelles, at the election held on April 16, 1912, and now declaring the plaintiff to have been duly elected at said election, and to be now entitled to qualify for said office and to hold same during the term prescribed by law, and that defendant pay the costs of this suit.

On Rehearing.

BREAUX, O. J.

The cause is before us on rehearing, in which plaintiff contests the election of police juror of the Fifth ward of Avoyelles parish, held on the 16th day of April, 1912.

The plaintiff and the defendant were opposing candidates for the office at the first and second Democratic primaries held in February, 1912.

Laborde received the larger number of votes, and was declared the Democratic nominee, and his name was printed on the ticket voted at the general election.

1-Iis defeated opponent at the primaries received a majority of the votes at the general election, and was declared elected by the Commissioners.

[t] The propositions of defendant are that *444a candidate at a primary is prohibited as a candidate, tinder the terms of section 27 of Act 49 of 1906, from opposing^the nominee at the general election, and that the prohibition also affects the voter, and puts an injunction upon his voting for a defeated candidate at the primary in opposition to the nominee.

The text of the cited section above in part reads:

> “Nor shall he (the defeated candidate) be permitted to be himself a candidate in opposition to any one nominated at or through a primary election in which he took part.” (Parenthesis ours.)

The contestee may not have been a candidate. The office was of no importance. He may have been elected without much regard to whether or not he was a candidate. It does not follow because one is elected that he necessarily must have been a candidate.

Either the Encyclopedia Británica borrowed from the Century Dictionary or the Century from the Británica the definition of the ■ word “candidacy.” Among the several definitions are the following, to wit: “One who is selected by others for an office or place.” Or one who is “put forward by others for an office.”

But, whether one is a candidate or not the right of the citizen to vote is the rule. If he chooses to vote for a defeated candidate at the primary, unless the law is positive that he should not vote for such a candidate, he certainly should not be made to lose his vote. The prohibition contended for is not expressed in the statute. It might have been expressed in a very few words.

[2] We conclude that one who is defeated at a primary is still eligible to hold office, although he does not have the advantages gained by the successful candidate at the primary. The nominee has the right to have his name printed on the official ballot, a right denied to the defeated candidate who is also not permitted to sign a nomination paper for any opposing candidate. By his defeat he loses the support of his party, while the nominee is entitled to that supj port. If he or his supporters desire for any reason of their own to oppose the nominee and favor an independent, and run the great risk of defeat, it is after all only a right of citizenship. The citizen is given freedom to exercise his right of citizenship as he pleases, provided he violates no law.

[3] A construction that will result in disqualifying one from holding office who is selected by a majority of the electors, and which will further cast out a number of the votes of citizens, can only find support in clear expressions of the statute. There is no such statute. A contrary conclusion has for basis the merest inference. It must be borne in mind we have already found that the law in question has application only to primaries, and is not for the purpose of disfranchising voters. That was the conclusion reached in Labauve v. Michel, Secretary of State, 121 La. 374, 46 South. 430. The title of the Act of 1906 and the text certainly support the view that it was not the intention of the Legislature to adopt a law authorizing the casting out the ballots at the general election of those who chose to vote for a defeated candidate at the preceding primary.

The court of appeals, Judges Porter and Thompson, arrived at a substantially similar conclusion in a recent decision. The Supreme Court of Mississippi (Mayor v. State, 59 South. 873), citing a number of decisions, expressed views having bearing'upon the subject. See, also, Bowers v. Smith (Mo.) 17 S. W. 761. But to return for a moment to the nominated candidate, he certainly has many advantages, particularly in communities in which nearly every citizen is a member of the present dominant party *446in Louisiana. Every one running against him is disadvantaged, and for that reason it is uncommon for any one to become a candidate in opposition. May it not well be that the lawmaking power gave itself very little concern about the disqualification which should follow a candidate who is not elected at the primary; that the expression used in the statute quoted above as held in the Labauve Case was never intended to have any such meaning as imputed to it by the appellant?

We are not of the opinion that the Legislature gave much thought to the subject, else the intention, or what the intention was, as appellant urges, would have been expressed in plain and direct terms. The citizen has freedom of choice between the candidate duly nominated and the one who carries the burden (which must be considerable) of running despite his defeat. The candidate is not to be envied, for it must be a serious undertaking unless the office is of no great importance, and for that reason no serious opposition of any kind is presented. The voter runs the chances of being numbered with the hopeless minority. It happens, strangely though, in this case, that the defeated candidate at the primary election was elected at the general election.

Since sometimes, we infer, the eontestee is in office, discharging the functions of his office, whatever may be thought of the expressions of the statute in regard to primaries and the asserted injunction to the defeated candidate not to run at the general election against his successful opponent in the primary, there is certainly no part of the statute which authorizes the court to declare vacant an office to which a candidate has received a majority of the legally cast votes. He has been elected and qualified, and has been for.some time discharging the functions of his office. Of the result of the election there is no doubt, and it is equally as certain that he is not disqualified from holding office by the expression not very clear before mentioned.

We have already stated that all that follows, in case of failure to obey the statute, his name is not to appear on the official ballot, he cannot sign nomination papers. But it includes nothing empowering the court to oust an elected officer on the grounds urged 'by the contestant.

We add in concluding that, while not the case in this instance, the voters who discover after nomination that an untrustworthy man has been nominated should have the right to vote for and elect another, at least until a statute is adopted to the contrary.

It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered by this court be and the same is hereby avoided, annulled, and reversed. It is now ordered, adjudged, and decreed that the judgment of the district court be affirmed, and that appellant pay the costs of appeal.

PROVOSTY, J., dissents.