Le Blanc v. Hoffmann , 175 La. 517 ( 1932 )

I think the case presents a justiciable issue. This suit and another suit filed in the same judicial district but in a different parish are directed against nine persons who have entered as candidates for the Democratic nomination for public service commissioner in the Second district. By agreement of the parties the decision in this case is decisive of the other case.

Plaintiff makes the direct and serious charge that the nine defendants, in fraud of plaintiff's rights, entered into a conspiracy with one another and, either collectively or individually, lent their names as pretended candidates for the nomination merely for the purpose of adding nine names to the names of the voters in each precinct of the district from which commissioners to serve at the primary election on September 13, 1932, are to be drawn; that it was solely for this purpose that the nine defendants filed notifications of intention to become candidates, although not one of the defendants ever had any such intention; and that they permitted their names to be entered as candidates in order to procure for certain real candidates whom they favor a chance of naming all or nearly all the commissioners of election at the various precincts throughout the district.

Defendants by formal pleas and express objections to evidence challenged the authority of the courts to inquire into the subject-matter of plaintiff's complaint. Their challenge was unsuccessful in the court below, but has been upheld by a majority of the members of this court.

The majority opinion, as I understand it, rests upon the assumption that the question for decision is purely political in character, and, as such, is governed by section 11 of Act No. 97 of 1922 (the Primary Law), which is quoted in full in the opinion. That plaintiff having failed to file his objections before the committee calling the election, as provided by the section, the omission is fatal, and his case must fall. Reid v. Brunot, 153 La. 490, 96 So. 43, is cited in support of the proposition.

The fundamental error, as I see it, in the prevailing opinion is that it fails to recognize the distinction between the quality of defendants as candidates and their qualifications as such. Their quality is expressed by the position they assumed or asserted when they filed their intentions to become candidates; whereas, their qualifications for the assumed or asserted position must be determined from an examination of the requisites prescribed by law therefor. It is the latter which on objection by any member of the committee or by an opposing candidate within the time prescribed by the statute must be passed on by the committee. This clearly appears from section 11, which reads in part as follows, viz.:

"That any member of any committee calling a primary election, or any person who has filed his application to become a candidate, may file in writing an objection to any other person who has filed his application to become a candidate with the committee calling the primary; that said objection shall contain in detail the reasons why such other candidate is not a duly qualified candidate under the qualifications prescribed by theparty calling the primary." (Writer's italics.)

Plaintiff does not deny that defendants possess the qualifications prescribed by the party calling the primary for the office of public service commissioner. Plaintiff's complaint is leveled at the fraudulent assumption by defendants of the status of candidates for that office in violation of the provisions of the Primary Law itself.

It will not be disputed, I take it, that the Primary Law was enacted to regulate and govern the relations among real candidates and not among fictitious candidates. A person may be a real candidate and yet be disqualified for failure to possess one or all of the arbitrary requirements of the law. In other words, he may be unfit to be a candidate, because the law so decrees. But a fictitious candidate may possess all the qualifications prescribed by law, and yet he is not a candidate, because it is not his intention to offer himself to the suffrage of the electors. If a person is a fictitious and not a real candidate, it is not important to inquire whether he possesses the qualifications prescribed by law.

Section 25 of the Primary Law imposes the duty on the parish committees to draw commissioners of election from names furnished them by state officers, district officers, and members of Congress where there are no candidates for local offices to be nominated.

Plaintiff charges that the nine defendants never had any intention of becoming candidates for the office of public service commissioner, and merely entered as such for the sole purpose of participating in the drawing of election commissioners in the interest of certain real candidates whom they favor, with the view of giving control of the election machinery to the favored candidates.

The case, therefore, calls for the interpretation of section 25, which is the statutory authority for the selection of commissioners of election, who can only be selected in the manner prescribed thereby. Under section 25 each candidate for office is entitled to send in to the various parish committees the name of one or more qualified voters for each precinct in the parish, from which names the commissioners of election shall be drawn.

The question to be determined therefore is: Who are candidates within the meaning of the Primary Law entitled to select representatives at the polls? Does the law contemplate that mere "dummy candidates" may compete in such selection with the real candidates? That one who is a real candidate may, through the assistance of "dummy candidates," secure all or a majority of the commissioners at each precinct and thereby control the election machinery in his own interest? In my opinion, the question is a legal and not a political question. When submitted to judicial scrutiny, as it should be, the question answers itself.

The dominant idea pervading the statute is the absolute assurance to a bona fide candidate that he will be properly represented at the polls and that the wishes of the electors as to his candidacy may be expressed through their ballots fairly cast and honestly counted. This is the only way in which there can be put into effective operation in primary elections that fundamental principle of democracy which makes the will of an unfettered majority controlling.

It cannot truthfully be said that the equitable idea of the Primary Law is carried out at an election in which through a subterfuge one of the candidates is wholly in control of the election machinery.

The doctrine announced in the case of Reid v. Brunot, which involved a controversy among bona fide candidates, has never been extended, nor do I think it can be extended, to exempt from judicial control and restraint mere intruders into an election contest.

The plaintiff in this case is seeking to enforce what I conceive is a clear legal right granted him by the primary law. And this court has frequently exercised jurisdiction for the purpose of securing civil or political rights under that law or to prevent the usurpation or derogation of such rights. See State ex rel. Trainor v. St. Paul, 111 La. 714, 35 So. 838; State ex rel. Trosclair v. Democratic Committee, 120 La. 620, 45 So. 526; Maggiore v. Lochbaum, 139 La. 425, 71 So. 727; Hart v. Picou,147 La. 1017, 86 So. 479; State ex rel. Dobbins v. McDermott,155 La. 211, 99 So. 41; State ex rel. Elston v. Democratic Committee,173 La. 844, 138 So. 857; State ex rel. Hinyub v. Democratic Committee, 173 La. 858, 138 So. 862.

Thus, in the case of Dobbins v. McDermott, the court held that the court and not the committee was vested with jurisdiction to interpret and enforce the primary law, where no candidate was nominated at a primary, and the committee proposed to certify the names of the three highest instead of the four highest candidates, there being two offices to be filled.

In State ex rel. Trosclair v. Democratic Committee, at page 625 of 120 La., 45 So. 526, 527, the court said:

"The object of Act No. 49, p. 66, of 1906, in providing for compulsory primaries was to secure to the people, free from political dictation, the right and privilege of choosing their public servants. Read in the light of this purpose, the act reveals the intent to forbid the interference of political committees in the conduct of primaries, except in the cases specially authorized by the provisions of the statute."

In State ex rel. Trainor v. St. Paul, this court ordered the district judge to issue an injunction, enjoining the Democratic parish committee from enforcing a rule providing for the selection of additional election commissioners. The court said, at page 716 of 111 La., 35 So. 838, 839, "We are of opinion that plaintiff was entitled to his remedy by injunction. He has nopractical remedy except a resort to the supervisory powers of this court." (Writer's italics.)

If the courts have jurisdiction to protect by injunction a candidate for membership on a political committee, I cannot see how it can be convincingly argued that they have no jurisdiction to protect by injunction a candidate for the more important office of public service commissioner.

And in Dastugue v. Cohen, 14 La.App. 475, 131 So. 746, in which a writ of review was refused, the court held, in substance, that under the Primary Law party committees are part of the state government and their members are officers of the law; and that under the Constitution and statutes of the state courts should exercise jurisdiction where their failure to do so would result in a denial of justice.

On the merits, the defendants admitted all plaintiff's allegations of fact, except as to the allegations of conspiracy among themselves. Under the admission, the trial judge could not do otherwise than hold that defendants were not candidates within the meaning of the primary law, and to enjoin them from furnishing the names of voters to be placed in the receptacles from which election commissioners are to be drawn for service in the various precincts of the Second public service commission district in the Democratic primary election on September 13, 1932. His judgment should not be disturbed.