Landry v. Ozenne | Cases | Westlaw

This is a suit involving the Demorcratic nomination for the office of Sheriff of the Parish of Iberia. The suit was brought under the provisions of Act 97 of 1922, as amended, generally known as the ‘Primary Election Law.’ An exception of no cause of action was sustained and plaintiff has appealed from the judgment.

The judge of the district court, in a well considered opinion, has correctly stated and disposed of the numerous points at issue between the parties. In order to better comply with the law requiring that cases of this kind must be promptly decided, we have concluded to adopt his opinion and make it our own. The opinion reads as follows:

‘Plaintiff, Paul Anthony Landry, and defendant, Gilbert Ozenne, were opposing candidates for the Democratic nomination for the office of Sheriff of Iberia Parish at a second primary election held on February 20, 1940.

*860 ‘On February 24, 1940, the newly elected Parish Democratic Executive Committee, but whose authority to act in the premises is questioned by the plaintiff, met and promulgated the returns of the second primary election, and, on the face of the returns, declared the defendant, Gilbert Ozenne, the nominee for said office, this by a majority of 45 votes.

‘Plaintiff has brought the present suit against defendant, Gilbert Ozenne, the Iberia Parish Democratic Executive Committee, which is referred to as the ‘Incumbent Parish Committee,’ as well as the Iberia Parish Democratic Executive Committee, which is referred to as the ‘New Parish Committee,’ contesting said second primary election upon various grounds, and, in the alternative, to have said election declared illegal, null and void.

**17 ‘Plaintiff prays for a recount of certain ballots cast at said election and, after the recount, to be declared the nominee for the office of Sheriff.

‘To this petition, defendant and contestee filed an exception of misjoinder of parties defendant, a motion to strike out certain pleadings of the petition, and an exception of no right and of no cause of action, together with his answer, being a summary proceeding. The newly elected Parish Democratic Committee filed a plea of estoppel, exception of misjoinder of parties defendant and that of no cause and no right of action.

‘The petition of contestant, being quite lengthy, makes the following charges, which I shall endeavor to summarize as briefly as possible:

*861 ‘First, that the returns of the various clerks and commissioners of election from the various precincts and wards are inaccurate, erroneous and false, and that, had an accurate and legal return been made, it would have shown that plaintiff received a clear majority of all the legal votes cast;

‘Second, that in thirteen named precincts a number of ballots, or more, which were spoiled, were counted for defendant, and that accordingly the total vote received by contestee would have been reduced to that extent, had they been properly rejected;

‘Third, that in Precinct 1 of Ward 3, six ballots were called off and credited to defendant which had been actually cast for plaintiff;

‘Fourth, that in Precinct 1 of Ward 8, one absentee vote, specifically the vote cast by Maude Trappey, was not counted, though she was qualified;

‘Fifth, that in Precinct 2 of Ward 8, two absentee votes were not opened or counted, which were cast in his favor by Albert Desonier and one _____ Dejean, who were in turn qualified voters;

‘Sixth, that in all of the precincts and wards referred to in the preceding articles, ballots were called off and credited to defendant and contestee that had been actually cast for plaintiff;

‘Seventh, that at Precinct 1 of Ward 5, forty persons, and at Precinct 2 of Ward 5, thirty-five persons, non-resident and unqualified voters, were permitted to vote, of which fully thirty in the first instance *862 and fully twenty-five in the second instance voted for defendant and contestee;

‘Eighth, that in Precinct 1 of Ward 5, more than one hundred persons, and in Precinct 1 of Ward 7, approximately two hundred and fifty persons received assistance by two commissioners representing defendant in the first instance and by one commissioner representing defendant in the second instance, without the supervision of a commissioner representing plaintiff.

‘Ninth, that in Precinct 1 of Ward 5, commissioners detached the numbered slips from the ballots prior to the actual voting;

‘Tenth, that at said election, general misconduct and illegal procedure were engaged in by unauthorized persons acting as commissioners and by acts of intimidation, undue influence and illegal and improper electioneering by various persons interested in the candidacy of the defendant and contestee;

‘Eleventh, that at Precinct 2 of Ward 8, the polling booths were not properly arranged in that no canvas was placed thereon, resulting in a delay of one hour in the opening of the polls, thereby resulting in several persons leaving the polls without voting at that time;

‘Twelfth, that the official tally-sheet compiled by the election commissioners in Precinct 7 of Ward 6 was not forwarded to the Chairman of the Iberia Parish Democratic Executive Committee, and that the tabulation and promulgation is illegal, null and void;

‘Thirteenth, that in Precinct 1 of Ward 5 and at Precinct 5 of Ward 6, the official *863 ballots reached the commissioners in broken packages.

‘Petitioner further alleges that the counting and crediting of spoiled ballots, and the miscalling and crediting of ballots in favor of defendant warrants the opening of the ballot boxes and a recount thereof.

‘In the alternative, he alleges that, because of the improper procedure, irregularities and illegal and improper conduct, the returns of Precinct 1 of Ward 5, Precinct 5 of Ward 6, Precinct 1 of Ward 7 and Precinct 2 of Ward 8 should be invalidated and rejected and, in the further alternative, that the entire election be annulled and rescinded, and that the proper Parish Democratic Executive Committee be commanded to order another election.

‘Act 97 of 1922, Section 27, as amended by Act No. 28 of 1935, 2d Ex.Sess., § 1, provides: ‘* * * or if it be a municipal, parochial or district office, then to the District Court of the parish in **18 which the contestee resides, which petition shall set forth specifically and in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made; * * *.’

‘I shall hereafter deal with the complaints and charges in their sequence as hereinabove stated.

‘I find thirteen articles of the petition devoted to the alleged irregularity of spoiled ballots being counted and credited to the defendant and contestee.

‘Each of these articles, irrespective of dealing with thirteen different precincts, and irrespective of the greater and lesser *864 number of ballots stated therein, in their phraseology are identical. The verbiage therein used is in the category of stereotyped averments.

*865 ‘In a reading of these numbered articles relative to spoiled ballots, we find no specific or precise reason given that these ballots were spoiled, nor is there a definite number so fixed. Plaintiff simply contents himself with charging every possible and conceivable manner in which a ballot may be spoiled. He does not state that a given number of ballots were spoiled for a given reason, but charges that the ballots were spoiled for every conceivable alternative reason. The effect of such a general charge is that he believes, if these ballot boxes were opened, that upon a recount, he may or may not find ballots to fit the blanket and all-embracing causes alleged by him. By the use of this all-embracing language, he contents himself with the hope that such may or may not be true; that he shall either have a gain or a loss, depending upon whether or not any particular ballot may fall within the all-embracing sphere he has fixed. Our jurisprudence demands that a contestant, if he knows of a certain fact, that he shall so state. Certainly, if plaintiff knew of any specific ballots being spoiled for a specific reason, he should have so stated and not rely upon language which would cover every conceivable means of irregularity. When resort is had to such all-embracing language, with the hope that the ballot may fit one of the particular patterns charged by him, he does nothing more or less than state to the Court ‘certain ballots are spoiled because of irregularities and illegalities.’ The sum and substance of the language he has used is nothing but generalities. He conveys to the Court the averment that, if a certain ballot *866 is not spoiled for one reason, it may or may not be spoiled for some other reason, and this, ad infinitum. Such language as plaintiff has used in these charges now being dealt with are, to say the least, speculative, and only give rise to a mere suspicion and ultimately present a matter purely problematical.

‘In the case of State ex rel. Todd v. Mills, 191 La. 1, 184 So. 350, 353, the Court, after stating that there must be specific allegations of error or mistake made by the commissioners, specific facts or circumstances on which a plaintiff and contestant bases his assertions, stated: ‘These commissioners are sworn officers, and their duties are specifically prescribed. The returns which they make under oath, showing the results of an election are presumed to be correct and are entitled to respect. In the absence of specific allegations of fraud, mistake, error or misconduct, the returns which they make will not be inquired into by courts on the blanket, vague and indefinite allegation that they ‘incorrectly and irregularly’ counted and tabulated the votes.'

‘The Court in that instance cited the case of Edwards v. Logan, a Kentucky case reported in 69 S.W. 800, where grave errors were charged, and which was held not sufficient to show a cause of action. The Court in that instance saying: ‘The primary election law says that one who desires to contest an election shall present a petition to the court setting forth ‘specifically and in detail’ the grounds on which the contest is based, and our decisions are uniform to the effect that general charges of fraud, mistake, intimidation, irregularities, etc., will be disregarded. If a contestant has a solid legal basis for complaint, he can readily state the specific facts on which he bases his complaint. A *868 petition in which the complaints are couched in general terms can be regarded in no other light than as a mere fishing expedition which courts do not countenance.'

‘In the case of McNeely v. Speight, 7 La.App. 719, where a person, who is alleged to have voted, had been convicted of a crime and thus disqualified, the court maintained an exception of no cause of action because plaintiff had failed to allege that the voter had not been pardoned with restoration of his right of franchise.

‘In the case of State v. Michel, 121 La. 374 [46 So. 430, 432] the language of the court in that instance is peculiarly applicable here, the court stating: ‘Hence plaintiff's industry in mustering 21 [charges] would give rise to a suspicion that, having no very great confidence in any one of his grounds being ‘clear, complete, and unmistakable,’ he had sought to make up by quantity what might be lacking in quality. * * *'

‘In the case at bar, plaintiff having resorted to every conceivable method whereby a ballot might be spoiled in an effort to show a cause of action, clearly shows that he has no confidence or certainty in any one of these grounds. He does not state in a clear, definite, fixable and unmistakable manner why certain ballots therein numbered by him are spoiled. He spreads a blanket over the entire subject-matter with the hope that it might warrant the opening of the ballot boxes. Not knowing any specific facts, he has not so charged, and, having failed so to do, the Court will not countenance such averments as stating a cause of action. See *869 Livaudais v. Leovy, La.App., 193 So. 613, decided on February 12, 1940.

‘In McCrary on Elections, 4th Ed., Section 435, we find the following: ‘An application for a recount of the ballots cast at an election will not be granted unless some specific mistake or fraud be pointed out in the particular boxes to be examined. Such recount will not be ordered upon a general allegation of errors in the count of all and giving particulars as to none of the boxes * * *. There must be charges of mistake or fraud sufficiently precise to induce the Court to entertain the complaint, and that a general allegation of errors believed to exist was not enough to authorize the perilous experiment of testing the election return by the result of a recount.’

‘In Thornhill v. Wear, 131 La. 479 [59 So. 909], the Court held, quoting from the syllabus: ‘In a contest of a primary election, the pleading of the contestant should allege not only the number of illegal votes cast, but should allege by whom they were cast, and the reason, as applied to each voter, that his ballot was not legal.’

‘In Perez v. Cognevich, 156 La. 331 [100 So. 444, 446], the Court held: ‘* * * Plaintiff, in order to show that these persons were without right to vote in the election, if such were the case, should have alleged, in his petition, their names and the reasons why they were without right to vote therein.’

‘The Court further holding: ‘Were we to give our sanction to the attack here made, we could do so only by ignoring the methods provided by law for purging the rolls, and by permitting what is equivalent to a collateral attack upon the registration of the voters in question, which, of course, we cannot do. See Turregano v. Whittington, 132 La. 454, 61 So. 525, and Smith v. Police Jury, 125 La. [724] 731, 51 So. [701] 703.’

‘In the case of Cambre v. Brignac, [19 La.App. 437] 140 So. 702, it was held, quoting from syllabus: ‘In primary election case where vote cast by person was counted and his right to vote was never before challenged, it cannot be collaterally *871 attacked in court.’ (See Marrero v. Middleton, 131 La. 432 [59 So. 863]).

‘In Bradley v. Neill [174 La. 702] 141 So. 382, the Court held: ‘In absence of challenge when commissioners deposited ballots of persons who voted at home, such ballots could not be protested in election contest.’

‘Such allegations are not sufficient to state a cause of action, but purely conclusions and generalities, which are not acceptable under our law. There is a presumption that these election officials representing both candidates were fully cognizant of these facts, and that their conduct in so doing was not frauduent, or an attempt on their part to defeat the free expression of the electorate.

‘In the case of Wright v. Heflin, 155 La. 765 [99 So. 592], it was held, quoting from the syllabus: ‘That the commissioner who handed out the ballots in an election for nomination for sheriff tore off the detachable slip bearing the number of the ballot as the ballot was handed to the voter instead of detaching it when the voter had marked his ballot and returned with it to be deposited in the box held not to require the returns from that precinct to be thrown out; there being no fraud, and the commissioner acting under a mistake as to the proper procedure, so that a protest, if one had been made, against the detaching of the ballot numbers, would probably have been heeded.’

‘I might add that, in the case at bar, plaintiff was represented by commissioners, and he makes no allegations that his representatives *874 ever protested or challenged such conduct.

‘In the case of State v. Mason, 14 La. Ann. 505, the Court held, quoting from syllabus: ‘In a suit contesting an election on account of violence used in keeping voters from the polls, it should be alleged that there was a sufficient number prevented from voting to have varied the result; and the absence of such material allegations is fatal to the suit.’

‘Articles 35 and 36 refer to the polling booth arrangement in a particular precinct, in that canvas had not been placed to warrant secrecy, and that this disarrangement brought about a delay because the polls were not opened until 7 o'clock.

‘In Wright v. Heflin, supra, it was held: ‘That the polling place at an election for nomination as sheriff was closed by the commissioners during the noon hour was not, of itself and without proof that any voter was denied the right to vote, a good cause for annulling the election at that precinct or for throwing out the returns.’ (See Heine v. Police Jury, supra, and Womack v. Nettles, 155 La. 359 [99 So. 290]).

‘Article 37 of the petition charges the failure of the commissioners in a named precinct to have forwarded to the Parish **22 Democratic Committee the official tallysheet and official election returns and, because of that fact, the returns as promulgated from said precinct should be nullified.

‘Other than articles 14, 22 and 24 of plaintiff's petition, I must conclude that plaintiff's petition discloses no cause of action. *877 In the three numbered articles, however, relative to six votes in one precinct being called off and credited to defendant, whereas said ballots had actually been cast for plaintiff, one absentee vote in one precinct and two absentee votes in another precinct being rejected, though qualified to vote, if these errors as charged, and which in themselves state a cause of action, be rectified, it would result in nine votes being cast for plaintiff, together with a reduction of six votes in defendant's majority, or a total of fifteen votes. Plaintiff, however, would still be short of the nomination because, by deducting the fifteen votes, it would still leave defendant a majority of thirty votes.

‘In view of the conclusions which I have reached, there is no necessity for me to inquire into the merits of the other exceptions, pleas and motion filed by defendants.

Plaintiff argues that the cases of Lafargue v. Galloway, 184 La. 707, 167 So. 197, cited by the judge of the district court in support of his opinion that plaintiff's allegation concerning the counting of spoiled and identified ballots was a mere conclusion of the pleader, and Todd v. Mills, 191 La. 1, 184 So. 350, 354, cited by the judge of *878 the district court in support of his opinion there must be not only allegations of error or mistake by the commissioners, but also that such allegations must be specific, are not applicable to this case. Plaintiff's argument is not tenable. Both cases, as we read the opinion handed down in each of them, are entirely appropriate for the purpose for which they are cited in the opinion of the district judge. As shown in the opinion of this Court in Todd v. Mills, the primary election law itself (Section 27 of Act 97 of 1922, as amended) provides that a candidate desiring to contest an election must present a petition to the court setting forth ‘specifically and in detail’ the grounds on which his contest is based. This Court further said in the opinion that ‘our decisions are uniform to the effect that general charges of fraud, mistake, intimidation, irregularities, etc., will be disregarded. If a contestant has a solid legal basis for complaint, he can readily state the specific facts on which he bases his complaint. A petition in which the complaints are couched in general terms can be regarded in no other light than as a mere fishing expedition which courts do not countenance.’

There is nothing in plaintiff's allegations that any defeated candidate could not set up after his defeat and thereby throw an *880 election into the courts. If this were permitted it is easy to see that in every case in which a candidate was defeated by a small margin of the votes, two elections would inevitably be held—one at the polls and the other in the courts. Before a candidate in a primary election can be heard in the courts to attack the returns of the election, he must show by the clearness and particularity of the allegations of his petition that he has been deprived of the nomination by the fraudulent or wrongful acts of the election officials. To hold otherwise, would do violence not only to the provisions of the primary election law itself, but also to the interests of the voters, who have even a more vital stake in the result of an election than the candidates themselves.

The cases of Jones v. Stephens, 185 La. 79, 168 So. 500, and Dutel v. Domingues, 166 La. 301, 117 So. 232, are referred to by plaintiff as presenting situations similar to the one in this case. This is not correct. In the Jones case the basis of the contest was an alleged conspiracy, composed of certain named and unnamed persons, which was formed for the purpose of coercing the election commissioners and intimidating and corrupting the electors to the prejudice of the contestant, who would otherwise have been the nominee. The Dutel case was not decided on an exception of no cause of action challenging the sufficiency of plaintiff's allegations. That case was submitted and decided wholly on the merits.

Thornhill v. Wear, 131 La. 479, 59 So. 909, is cited by both plaintiff and defendant. The decision is cited by defendant as authority *881 for the proposition that in a contest of a primary election the pleading of the contestant should allege not only the number of illegal votes cast, but also should allege by whom they were cast and the reason, as applied to each voter, that his ballot was not legal. The decision is cited by plaintiff as authority for the proposition that in a contest of a primary election the contestant need not make his allegation as to ballots cast without detaching the slips as specific, as required in the case of illegal ballots. These rulings were not made on an exception of no cause of action. They were made on objection to evidence offered in support of the contestee's reconventional demand. The reason assigned by the court for the ruling that evidence was admissible as to the ballots that were cast without detaching the slips is, that those ballots were in the box and ordinarily the information is not within the reach of the pleader. It does not appear that the court in making the ruling took into consideration the provisions of the primary election law limiting the right of a defeated candidate to contest a primary election to those cases only where he is able to set forth ‘specifically and in detail the grounds on which the contest **24 is based and the irregularities or frauds of which complaint is made.’ Nor does the reason assigned by the court for making the ruling appear to us to be sufficient. It may be true that such information might not be within the reach of the pleader while the ballots are in the box, but certainly that information comes within his reach when the ballots are removed from the box and *882 counted by the commissioners. If the allegation is made while the ballots are in the box, necessarily it must be made because the pleader is assuming something that may not, as a matter of fact, be true. If, after the ballot box is opened and the count of the ballots is proceeding it should develop that some of the ballots were deposited in the box with the slips attached, information of that fact would be easily obtainable by a candidate through his representatives at the poll, and he would be in a position to give the details in his petition, provided the commissioners insisted on counting the ballots after they had been challenged by the candidate or his representatives.

The appeal in the Thornhill case was prosecuted by the contestant and the judgment of the district court was set aside and the case remanded for a new trial. On the second trial the judgment of the district court was in favor of the contestant and the contestee appealed. This judgment was reviewed and set aside and plaintiff's suit dismissed by this court. In its opinion the Court indicated that the evidence offered by the parties on the first trial, although inadmissible, was considered because it was not objected to by the parties. In referring to the first trial, this Court said, Thornhill v. Wear, 131 La. 739, at pages 747 and 748, 60 So. 228, at page 231, of the opinion: ‘That trial was conducted from first to last—we mean from the filing of the original pleadings down to the conclusion of the evidence, and, indeed, of the arguments—upon the theory of the ballots being admissible in evidence. Acting upon *883 that hypothesis, both parties made allegations in their pleadings and admissions in the note of evidence which would now have to be disregarded, or, rather, which the court would not know how to deal with, if the ballots in these other boxes are to be left out of the computation. The thing is impracticable. And, were it feasible, this court would be powerless to now retrospectively reject this evidence. The judgment rendered in this case on the last appeal is res judicata of the admissibility of all the evidence considered and acted upon by the court on that appeal. Moreover, said evidence was received without objection. By what right, therefore, could this court reject it?’ See Thornhill v. Wear, 131 La. 739, 60 So. 228. We are therefore unable to accept the ruling in the Thornhill case relied on by plaintiff as bearing on the issues involved in this case. This is so for another and insuperable reason. Our examination of the extensive petition filed in this case fails to disclose any direct charge that ballots with attached slips were cast and counted for the contestee to the prejudice of the contestant, unless it be that the contestant proposed or hopes to prove that fact under the vague and general allegation that it is one of the ‘various other irregularities and illegal ways adopted by the voter to mark (identify) his ballot and show how the voter voted,’ which, of course, is not permissible under the express terms of the primary election law.

Plaintiff, in his petition, questions the organization of the so-called New Parish Democratic Executive Committee as being *884 premature and its tabulation and promulgation of the election returns as being unauthorized and of no effect. Plaintiff does not allege that the Committee fraudulently or even incorrectly tabulated and promulgated the election returns. In the prayer, which is attached to his petition, plaintiff does not ask that the tabulation and promulgation of the returns be annulled on the ground that the Committee was prematurely organized and unauthorized to act. On the contrary, apparently acknowledging the authority of the Committee, plaintiff asks for the recount of the ballots cast in certain precincts and, in the alternative, for the rejection of the returns in certain precincts for alleged irregularities occurring in those precincts, and that on those things being done that he have judgment not only against the defendant contestee, but also against the New Parish Democratic Executive Committee, annulling its tabulation and promulgation of the primary election held on February 20, 1940, and declaring plaintiff to have been nominated as the Democratic Candidate for the office of Sheriff and Tax Collector of the Parish of Iberia. From which it is plain that plaintiff is not so much concerned with the authority of the New Parish Democratic Executive Committee to act as he is in securing **25 a recount or rejection in court of certain ballots cast at the primary election and a revision in his favor of the tabulation and promulgation of the election returns as made by the Committee.

For the reasons assigned, the judgment appealed from is affirmed.