226 La. 1026

#### Arthur J. O’KEEFE, Jr. v. Richard F. BURKE.

No. 42235.

Supreme Court of Louisiana.

Feb. 4, 1955.

See, also, 226 La. 1039, 78 So.2d 165.

Leo L. Dubourg and Fred G. Veith, New Orleans, for plaintiff and appellant.

C. Cyril Broussard, New Orleans, for defendant and appellee.

MOISE, Justice.

The plaintiff, Arthur J. O’Keefe, Jr., alleging that the defendant, Richard F. Burke, now residing in the Eleventh Ward, Fourth Municipal District of the City of New Orleans, falsely and unlawfully represented himself to be a resident and a duly qualified elector of said ward in the election held for Assessor of the Fourth Municipal District on January 18, 1955, when, in truth and in fact, the said Richard F. Burke was, during the year 1952, a resident of Houston, Harris County, State of Texas, with his residence listed as 5329 Lapasas Street, and paid his poll taxes there for the years 1952 and 1953 and registered and voted in that city in the presidential election held in November 1952 and did not return to the City of New Orleans until August of 1953 and was, consequently, ineligible to hold said office or to participate in said primary, and the votes cast therein for said Burke were illegal and should not be counted, and that having received the majority of the remaining votes he is entitled to and seeks to be declared (1) the nominee of the office, and, in the alternative, (2) that the election declaring Burke to be the nominee be declared a nullity.

The defendant filed the following exceptions: (1) to the petition and citation, (2) to the jurisdiction of the court rationae materiae, (3) of non-joinder of parties defendant, (4) of no right of action, (5) of no cause of action, (6) of vagueness, (7) of prematurity, and (8) a plea of estoppel.

The trial judge, after hearing argument on the first and second exceptions, while not passing on the first, sustained the ex*162ception to the jurisdiction rationae materiáe on the .ground that the -plaintiff failed to avail himself of the provisions of Section 18:307 of the LSA-Revised Statutes of 1950, requiring objection to the candidacy of any person filing application to become a candidate to be filed with the chairman or the secretary of the committee within five days after the last day upon which notification of intention to become a candidate may be filed, and he dismissed the suit. The plaintiff prosecutes this appeal.

In view of the comparatively short time in which we have to decide cases of this type, the time fixed by law being twenty-four hours from the time the case is submitted, it is practically impossible to make a critical analysis of all of the decisions o'f this court touching on this subject matter. Suffice it to say that a perusal of all of these cases- will- show that they are not controlling under the peculiar factual situation reflected by the pleadings -in this case, with the" excéption of the Case of Hall v. Godchaux, 149 La. 733, 90 So. 145, in which all of the issues here posed were there raised and disposed of in a very able and exhaustive opinion with Justice Dawkins as the organ of the court. In that case wfe maintained the trial judge in his ruling that he had jurisdiction of the cause.

 The contention of counsel for the appellee, in which position he was maintained by the learned trial judge, that the legislature, by its adoption of Act 97 of 1922, the pertinent part of which was, in substance, reproduced as originally passed in 1922 in the LSA-Revised Statutes of 1950 as Section 18:307, has in effect overruled, circumvented, and superseded the decision in Hall v. Godchaux, supra, is untenable.

In the LSA-Constitution of 1921, Article VIII, under the heading, “Suffrage and Elections”, it is made the mandatory duty of the legislature to “enact laws to secure fairness in party primary elections, conventions, or other methods of naming party candidates”, Section 4, and to “provide by law for the trial and determination of contested elections of all public officers, whether State, district, judicial, parochial, municipal or ward * * * *which trials shall he by the courts of law *** * ”, Section 12. In the next section, Section 13, it is declared that “No person shall be eligible to any office, State, district, parochial, municipal or ward, who is not a .citizen of this State and a duly qualified elector1 of the State, district, parish, municipality or ward, wherein the functions of said office are to be performed.”

It necessarily follows that any act of the legislature that would do violence to these articles of the Constitution must fall. Obviously, therefore, that portion of the Revised Statutes adopted with the view of circumventing, superseding, or" otherwise restricting the plaintiff’s right to avail himself of a court of competent jurisdiction to espous.e-a.just cause is unconstitutional.

To say that the courts cannot inquire into and are powerless to adjudicate upon the issue here posed, simply because the plaintiff failed to file a-- protest with the committee within five days following the last day upon which notification of intention to become a candidate may be filed, as required by LSA-Revised Statutes 18:307, would render meaningless and absurd the provisions of the Constitution of 1921 above referred to.

Counsel for the appellee, in brief, rely strongly on the decision of this Court in the case of Reid v. Brunot, 153 La. 490, 96 So. 43, 46, which was also relied on by the trial judge in his reasons for sustaining the exception to the jurisdiction and dismissing the suit. A close study and analysis of that case will show that it not only does not support the contention of the defendant, but, in fact, supports the conclusion reached *163here. While it is true that in the Reid case it is stated that “The decision in Hall v. Godchaux is not authority for the proposition that the courts have jurisdiction to grant such relief” as was there sought, in that case it was not claimed either that the plaintiff or intervenor was nominated, nor was it claimed that the election was null; rather, the plaintiff and the contestant were claiming that the other had been legally eliminated by virtue of the primary election and they were only seeking to have a so-called “second primary” between the contestant and the defendant. But the court, after a very careful and detailed analysis of the case of Hall v. Godchaux, and in distinguishing that decision from the one then under consideration, very aptly observed:

> “We decided that the plaintiff was not entitled to the nomination, because, in consequence of a majority of the votes having been cast for an ineligible candidate, the election was null. *We decided, also, that the plaintiff, as one •of the defeated candidates, had a right of action to have the millity of the election pronounced.*In the case before us, it is not claimed either that the plaintiff or the intervenor was nominated, or that the election was null.” {Emphasis added.)

Thus it may be seen that this Court has, in effect, approved of the holding in the Hall v. Godchaux case after giving full consideration to Act 97 of 1922, the pertinent part of which is admittedly identical with LSA-Revised Statutes 18:307.

For the reasons assigned, the judgment of the lower court is annulled and set aside; the plea to the jurisdiction of the court rationae materiae is overruled; and the case is remanded for further consideration in accordance with law and consistent with the views herein expressed.

SIMON, J., concurs.

HAWTHORNE, J., concurs in the decree.

HAMITER, J., dissents.

McCALEB, J., dissents and will assign written reasons.

1

. Section 1 of Article VIII provides that to be a qualified elector and entitled to participate in elections in this state, the elector must be not less than 21 years of age and must, in addition, have been a bona fide citizen of tbe state for 2 years, of the parish for 1 year, of the ward for 4 months, and of the - precinct for 3 months.

McCALEB, Justice

(dissenting).

I believe that the plea to the jurisdiction rationae materiae was properly maintained by the district judge. It is Hornbook law that all elections and matters relating to and affecting them belong to the political department of government and are, therefore, beyond the control of the judicial power “in the absence of special constitutional or statutory authorization”. Reid v. Brunot, 153 La. 490, 96 So. 43, 44, citing State v. Judge of Second Judicial District, 13 La.Ann. 89; State ex rel. Woodruff v. Police Jury, 41 La.Ann. 846, 6 So. *777;*State ex rel. Rees v. Foster, 111 La. 1087, 36 So. 200; Darbonne v. Village of Oberlin, 121 La. 641, 46 So. 679 and Roussel v. Dornier, 129 La. 930, 57 So. 272, 41 L.R.A.,N.S., 557.

The case at bar is an election contest brought under the provisions of Section 86 of the Primary Election Law, Act 46 of 1940, now LSA-R.S. 18:364, prescribing that any candidate for the nomination for any office “who claims that, but for irregularities or fraud he would have been nominated * * * shall present a petition to the judge of the district court * * The asserted irregularity or fraud is that the contestee, who received an overwhelming majority in the primary, knowingly represented himself to be a qualified elector when he was not.

I fail to see how this charge, even if true, provides a ground for contest as it appears to me that the fraud and irregularities for which a right of contest is provided by the statute refer exclusively to illegal and fraudulent acts committed in the election and have nothing to do with the qualifications of the contestants or their eligibility to hold the "office in the event of election.

It is true that, in Hall v. Godchaux, 149 La. 733, 90 So. 145, the court entertained a *164suit such as this and annulled the primary-election. But that ruling, which was made in the latter part of 1921, was based on the provisions of the Primary Election Law of 1916, which did not prescribe a method for challenging the qualifications of a candidate. However, in the following year, the Legislature adopted a new Primary Law, Act 97 of 1922, containing provisions designed to overcome the ruling in the Hall-Godchaux case. Those provisions, which were contained in Section 11 of the Act, have been recopied (with certain changes not of importance here) in all of the subsequent primary election laws and are presently incorporated in the LSA-Revised .Statutes as R.S. 18:307, which provides, in substance, that any qualified elector or member of any committee calling a primary election may object to the candidacy of any other person; that the objection shall be in writing and contain in detail the reasons therefor; that it shall be filed with the Chairman or Secretary of the Committee calling the primary within five days after the last day upon which the notification of intention to become a candidate may be filed; that, upon timely objection being filed, the Committee shall convene, hear the evidence and render its opinion within 24 hours after the hearing is closed and that each party may appeal to any court of competent jurisdiction for relief, which hearings, both in the lower court and appellate court, shall be, as far as practicable, prosecuted under the same procedure provided for the contesting of elections.

That this was the plain purpose of the Primary Law of 1922 (and its successor statutes) is succinctly pointed out -by this court in an opinion on application for rehearing in the famous “dummy candidate” case, Le Blanc v. Hoffmann, 175 La. 517, 143 So. 393. And, ever since that decision, the courts have uniformly held that all objections to the qualifications of a candidate in a primary election must conform with the provisions of LSA-R.S. 18:307 and that, if they do not, the court is without jurisdiction (or in some cases it is said that the contestant is estopped) to entertain the proceeding. It is unnecessary for me to cite the numerous cases that have made this precise ruling. Suffice it to refer to Farrell v. Orleans Parish Democratic Executive Committee, La.App., 15 So.2d 524 and Courtney v. Singleton, La.App., 27 So.2d 448.

The Singleton case is identical with this one. There, in an election for member of the School Board from the Fifth Ward of St. Helena Parish, the defeated candidate instituted an election contest, such as this one, on the ground that his opponent was not a qualified elector under the Constitution and laws of the State. But the court found that he was estopped from so contending in view of Section 28 of Act *46*of 1940, now LSA-R.S. 18:307, inasmuch as he had not made his attack on the qualification of his opponent within the time prescribed by law.

The decision in this case, holding the provisions of LSA-R.S. 18:307 unconstitutional on the ground that they offend Sections 4 and 12 of Article 8 of the Constitution, is directly in conflict with the ruling in R'eid v. Brunot, supra, and can only be viewed as overruling that landmark case, despite the attempt of the majority to distinguish it. Tó be specific, the argument was made on behalf of appellants in Reid v. Brunot that the court had jurisdiction of the controversy (Judge Reid was claiming that he was entitled to compete in a second primary because Judge Brunot had not received a majority of the legal votes cast), irrespective of the primary law, by virtue of Section 4 of Article 8 of the Constitution providing that the ■ Legislature shall enact laws to secure fairness in party primary elections, etc., and also by reason of Section' 12 of the same Article (relied on by the majority herein) directing the Legislature to provide for the trial and determination of contested elections of all public officers and that such trial shall be by the courts of law. But the court rejected this contention, together with the additional point that jurisdiction had been conferred under Section 35 of Article 7 of the Con*165stitution, making cases involving the right to office or other civil or political rights cognizable in the district courts, on the ground that these constitutional provisions did not include the question of party nominations which, as held in State ex rel. Rees v. Foster, 111 La. 1087, 36 So. 200 must be determined by the party itself or by certain public officials as provided by statute.

Although I am in accord with the rationale of Reid v. Brunot, it must be admitted that the court attempted a somewhat tenuous distinction between that case and Hall v. Godchaux, supra, by stating that, in the latter, the plaintiff had claimed the nomination. In truth, there was no sound distinction as Hall v. Godchaux is plainly antagonistic in principle to Reid v. Brunot. But, be this as it may, it has been long since settled, as I have pointed out above, that the basis for the ruling in Hall v. God-chaux was removed and set aside by the Legislature in the enactment of Act 97 of 1922 containing special provisions for the challenging of the qualifications of a candidate for party nomination.

The obliteration of the provisions of LSA-R.S. 18:307 by the majority, insofar as constitutional requirements of residence are concerned, is of a far-reaching nature forasmuch as henceforward, no candidate in a party primary is required to file his objections to his opponent’s asserted residential qualifications until after the primary is held. In other words, he may pursue the strategy of the contestant in this case of engaging in the primary and making the alleged lack of his opponent’s residential qualifications a principal issue. Then, if rejected by the voters, he may continue his attack in the courts under the rather fatuous allegation that a fraud has been perpetrated upon the electorate.

It is to be borne in mind that this case involves a contest for a party nomination and not an election to office. If it be that the contestee in this case is ineligible, the people have a remedy. The nomination papers of the contestee may be questioned under the general election law, particularly LSA-R.S. 18:628, or, in the event of his election, the district attorney or attorney general may bring a mandamus proceeding for intrusion into office under Act 102 of 1928, Code of Practice Article 873.1.

I respectfully dissent.