St. Landry democrat. (Opelousas, La.) 1878-1894, 1880-07-24

| 1t is therefore safe to conclude that the three
defunct commissioners had no power or ait
thority III law, to reopen tic box after delivery
thereof TO the clerk, and to take thercfrom the
second sheet which they handed to the clerk,
and which was subsequently considered by the
| returning officer, as statement of votes; and
| that their written statement OF December 8th
was q puny usurpatior of official authority,
| from which no legal effect can flow, and 10
| legal deductions be drawn.
! It therefore fellows that the returning officer
erred il giving effect to both sheets, purporting
each to bereturns OF election from the Leonville
| precinct
| It is admitted by the defendant that the coisl-
nlissoners did not oven pretend to have made,
sworn 10, and delivered, the compiled state
ments, required by section 50 of the election
law, and their only returns were the tally
sheets under consideration.
| Under that law the compiled statements should
be and are required as the best evidence, the
Notwithstanding.
| But in the absence of the best evidence, the
returning officer was perhaps justified in hay
| ing recourse to, and considering secondary
evidence.
|
should have been the tally sheet required by
law to be kept i'll duplicates.
And here recurs again the difficulty which
the officer had to bridge over, when he met
the two documents purportinS each to be he
| statement of the votes cast at that precinct.
Any impartial mind unaided by evidence
aliun,lc or guided by lights beyond the papers,
would End it impossible to solve the problem
! -l,g@I,
gether should be considered as the correct state
ment and would therefore find it impossible
from the face of either or both of the papers to
decide which candidate had received the ma
| jority OF the votes cast.
! And the same impartial mind guided by our
own election law, by McCrary on laws CT cleo
| ton i'll sections 3e2 aud 304, where he provides
a remedy i'll face of the impossibilty OF as
certaining for whom the majority Of votes were
| given, and by our own Supreme Court, i'll 20 An
nual 61o, rejecting the return of a precinct
because the polling place was changed without
due notice to the voters, would irrcststabiy
conclude that both documents No. / and No. .
should be rejected as secondary evidence to
supply the absence of the primary evidence
| consisting of the compiled statements required
by section 49, and that therefore there was no
legal return of the election held at the Leon
vile precinct; and this conclusion the court il
bound to adopt.
| But under American authorities. in order to
seek ami give effect to the will of the voters of
that ward, other evidence if at hand or within
reach, could and Should be used to supply the
| wanting returns.
| This evidence was rendered by plaintiff who
prayed the court to open the box and recount
theballots therein found. Cooley, constitutional
limitations, says: "But back OF the pri,na
facic case {nade by the certificate Of elcction}
| the courts may go, and the determination of
| the State board may be corrected by those of
the district boards, and the later by the ballots
| themselves, when the ballots are still i'll exis-
| tence and have been kept as required by law
To that end our statutes requires that the
boxes locked and sealed be delivered in the
custody of the clerk, who shall keep them il,
his possession in the same condition for ten
months after the election.
Alleging that the ballots had been kept as
required by law, plaintiff moved, and the
district court ordered that the Leonvlle box
he opened and the ballots therein recounted.
Defendant objected, and has retained his bill
of exceptions to the adverse ruling of the court
While the evidence introduced in support OF
plaintiffs motion, does show that the box
opened was the identical Leonvillc box, YET
Justice can be done to the parties without form
ally passing OH Ghis bill of exceptions.
Defendant has offered no other evidence, ant
under our system Of voting by secret ballots
none was within his reach, to show without tht
legal returns, without the duplicate tally sheets
without recount of the ballots, what number
pf hnI ST fnr lin, II.
box.
BY recountng the box as shown by the tally
made Under the directions of TIE court, tht
result would show Duson elected by majority
= of 2S..
1t the court erred i'll re-opening the box, ant
recounting the ballots, there are then n o returns
from the Leonville box, and that shows a resul
electing Duson by a majority OF one hundred ant
twenty-sx Q2Gl
The dilemma is fatal to defendants position
and utterly destroys his prima facie election.
In reference to the appeal taken by the parsl
of st. Landry, complaining of that part of til.
Judgment which condemns the parish to pa,
the costs of this suit, we find that our prede
cessors had so decreed in two celebrated cases
and we concur in the reasons which prompted
their ruling.
we are Ol OullllOu tlttC ACT NO. % OF Apf1
5th, 1880 can have no effect on the cause whfcl
was then pending and we shall not disturb tn,
judgmeat i'll that particular.
1t is therefore ordered, adjudged and dc
creed that the verdict of the jury be Sc
aside; that the Judgment Of the lower court
in SO far as it decrecs c. NJ. Thompson as elected
sheriff Of st. Landry, be avoided, annulled ant
reversed, and in other respects that it b.
affirmed and it is further ordered tha
Cornelius G. Duson be decreed to have bee,
legally elected sheriff of the Parish of st
Landry, at the election held on December ed
1879.
APPLICATION FOR RE-HEARING.
81 JUSTICE LEVY.
Ona careful consideration of the application
for o. re-hea1ng, and after examination o
further authorities applicable to the case, l an
, of the opinion that it was competent for til,
, District Court on the trial of this conteste,