St. Landry democrat. (Opelousas, La.) 1878-1894, 1880-07-24
The Sheriff Case.
DECISION OF THE SUPREME CoUE

DECISION OF THE SUPREME COURT.
BY JUSTICE PoCHE.
This is a contested election case growing out
of the election held in this State on December
2d, 1879 From the verdict and Judgment rem
dered in favor Of defendant, plaintiff has ap-
pealcd. And defendant moves for dismissal of
appeal, on the ground that it was not made
retulnahle after ten days from the judgment,
which was rendered on the 5tll of March, 1880,
the appeal having been made returnable on
the 1st Monday of July of the same year. The
return day was suggested and fixed on the
appellants own motion and suggestion, and
the District Judge ovcrruled appelce's motion
suggesting change OF the return day fixed,
ten days after rendition of Judgment. Appellee
contends that the appeal should be governed by
and comply with provisions of law contained
in section of acts No. As, approved March 10th,
1870, which section reads as follows: "That i'll
all cases in which the right to office is involved
and an appeal is taken from the judgment of the
lower court, it shall be returnable in ten days
after Judgment of the lower court, and the
Supreme Court, on the motion of either party,
shall proceed to try the same by preference"
And it concludes with the ,,sualrepealing clause.
o1t piSfi'ieii SoheSiiNte tntt Iiio
right to the appeal as returned should be tested
under the provisions of the act of 1856, incor-
porated in our Revised Statutes as section 40
and 1881, which provides i'll substance: " that in
all contested elections brought before the court
of this State, the party cast shall have the right
of appeal to the Supreme Court, as i'll other
civil cases." ctc, ETC., and that such appeal
shall be considered suspensive in its operation
and effect, any law to the contrary notwithstand-
ing" And he contends that this act is not
repealed by act As of 1870, which covers only
judgments rendered in cases involving title to
office ; that the two statutes are not on the
same subject matter, and that the latter law
not affecting the former, does not repeal it
either directly or by implication. The question
presented for our solution is, therefore, whether
the act of 1856 is in conflict or inconsistent with
section OF act As of 1870 Defendant urges
that the right to Office is the very issue involved
in all contested election cases. That there is no
difference in law or in fact between the two
classes of cases, and that the last expression of
legislation will regulate appeals in cases involv-
ing title to office, should alike govern contested
election cases, and that the act OF 1856, contain
ing a different rule for appeals is necessarily
inconsistent with the act of 1870, and is for that
reason repealed and imperative. This identi-
cal proposition was reviewed and discussed in
12th Annual page 1875, and 18th Annual page
ITS, wherein the courts interpreted the act OF
1853, which was reanactcd in 1855, and contains
the identical provisions subsequently enacted
in section OF act As Of 1870, in connection with
the act of 1856, found in sections 40 and 1884,
and the court reached a different conclusion
than that contended for by appellee's counsel
i'm this case But counsel claim that the court,
then composed Of some of the brightest intel
lects and most learned jurists which ever hon
ored our bench and bar, signally erred in both
cases, and they confidently expect us to over
rule their rulings on this point in both cases.
We are constrained to disappoint appellee and
his counsel in their expectation. The issue i'll a
contested election case is not title to office,
which may result therefrOm, but not necessary,
for the decision may decree that neither party
is entitled to the Office, by reason of the abso-
lutte nullity Of the election, as was the case in
18th Annual page It's. We understand that. in
such cases the inquiry is directed to the manner
andform in which the election was carried on and
in which the results were returned, announced
or promulgated. The action must be begun
before the induction of the candidate returned
and the inquiry gone into, only when prayed
for in petition signed by at least twenty voters
of the parish.
Under our present laws, a case involving
title to office, is an inquiry instituted by the
State itself and is intended to test the right to
Office Of party, already in office, by appoint
ment or otherwise. It may be instituted by
the proper law officer, without joining as party
plaintiff, the person who may claim to be en-
titled to the Office in contest. We conclude
that the two classes of cases are materially
different, and that appeals therein are and
must be regulated by different laws; in other
words: "that all appeals in eases of contested
elections must be considered as falling within
the general rule applicable to appeals in all
civil cases." 18th Annual page s26.
We are fortified in our conclusion, by the
Interpretation given to these various enact
ments by our predecessors in the unreported
case of :: the State ex rel. John Young VS.. Judge
OF the 18th Judicial District" decided in 1879.
In that case, relator, who had appealed from a
Judgment rendered in case of contested cleo
| tion applied for u mandamus to compel the
district Judge to order the appeal to be returned
| in ten days and urged the same reasons now
used by appellee for the dismissal of the appeal
| in this case The mandamtis was refused on
| the ground that appeals of contested elect ons'
should be returned as in all civil cases. After
quoting approvingly from the two decisions In
the 18th and 18th Annual, Chief Justice Manning,
as the organ of the Court says The act OF
1885, thus referred to is the law regulating this
subject now. 1t was re-enaeted todiden'
eerbis and forms section 1854 OF the Revised
Statutes Of 1870 just as the act of 1885, page $50
declaring that appeals in cases where the right
to office is involved, shall be returnable in ten
days, is re-enacted in todident rertis and
forms section 50 of the same revisal, and was
repealed in the same year, and forms section
of the act of March 18th, 1870" The motion tf
dismiss is therefore oEerruled.
i ON THE MERITS.
i At the general election held throughout thi.
State on December I'd, 1879, 6. C. Duson ant
c. u. Thompson were competing candidates fol
the Office Of sheriff Of the parish Of st. Landry