Hughes v. Pipkin , 25 La. Ann. 127 ( 1873 )

Taliaferro, J.

The facts ot the case seem to be that Hughes and Kilbourne were opposing candidates for the office of Parish Judge of East Feliciana, at the general election held in November, 1872.. Hughes being returned as elected, Kilbourne on the twelfth day of November brought an action in the district court under the act of 1855,. claiming that he was legally elected, and contested the election as between himself and his competitor, setting up various grounds of illegality and irregularity in the manner ot conducting the election.. Pending this contestation, Hughes filed a rule in the same court on< the twentieth of January, 1873, on the defendant, Pipkin, to compel/ him to vacate the office and give possession of it to the claimant who was commissioned on the seventeentli of December, 1872, by P. B. S.. Pinehback, then acting Governor of the State. Pipkin answered, setting up various exceptions to the plaintiff’s pretensions, and averring that he was holding over until the installment of his successor and that he was not' otherwise interested than in discharge of Ms duty to-hold the office until the party legally declared entitled to the office-presented himself. He plead in defense of his possession all the defenses set up by Kilbourne in his petition of intervention which was rejected by the court. All the issues between the plaintiff and Kilbourne are presented in this ease between the plaintiff and the defendant. It is unnecessary to determine all the exceptions presented by the bills found in the record. That which relates to the plaintiff’s commission, on the ground that it was issued in less than fifty davs from the general election in pursuance of which it was issued, and on the ground that tbe commission was issued by an incompetent person who is only a private citizen, and without authority as Governor of the State, was properly overruled by the court.

The rule taken by the plaintiff was discharged. The plaintiff thereupon took this appeal.

Tbe only question presented is, does the fifty-fourth section of the act of 1870, No. 100, relating to elections repeal section 1430 of the Revised Statutes? The section 1430 of the Revised Statutes, being-section No. 53 of the act of March 15, 1855, prescribing the mode of -contesting elections, provides: “That the Governor shall not issue a •commission until forty days after the day of the election for the parishes within one hundred and fifty miles from the seat of government, •and filty days for those parishes over one hundred and fifty miles from the seat of government. The distance to be computed by the usually ■traveled route.”

The last clause of the fiity-fourth section of the act of ,1870, provides that, “the Governor shall within thirty days thereafter issue ■commissions to all officers thus declared elected, who are required by .law to be commissioned.” By the act of 1870, as well as by the act of .1872, the Governor is required to issue the commissions within thirty days from the publishing in the official journal the returns of the elecition. By the act of 1855 the Legislature prohibits the Governor from ássuing commissions sooner than forty days, iu one case, and fifty days in another case. These two acts clearly conflict in one particular on the same subject matter, and that is, in regard to the time to be observed by the Governor in the issuing of commissions. Here is a point of direct collision. We can not give effect to both enactments. We are, however, relieved from the dilemma by the last section of the act of 1870, which provides “ that all laws or parts of laws contrary to ■the provisions of this act, and all laws relating to the same subject imatter are hereby repealed, and that this act take effect from and ■alter its passage.”

The plaintiff was duly commissioned under the provisions of the .last act, and prima facie is entitled to the office in controversy.

It is therefore ordered, adjudged and decreed, that the judgment of ■the district court be annulled and reversed. It is ordered that the rule be made absolute; and that the defendant, L. M. Pipkin, vacate the •office of Parish Judge of the parish of East Feliciana, and cease ■to discharge the duties thereof, and that he deliver the said office with .all the papers, records and archives appertaining thereto to the plaintiff, the defendant and appellant paying costs in both courts. This ■decree is in no manner to prejudice the rights of the contestant, Kilbourne, in any proceedings he may have instituted, or may hereafter •institute according to law in support of any claim or right he may have to the said office.