Brown v. Democratic Parish Committee , 183 La. 967 ( 1935 )

I find myself unable to subscribe to the majority ruling maintaining defendants' plea of prescription. For my part, I think the plea is untenable.

It is stated in the majority opinion that the relators and their attorneys had absented themselves prior to the time the defendant committee reached and announced its conclusions to those who were present in the courthouse. It is true relators and their attorneys were not present when the committee left its consultation room after reaching its conclusions. But their absence was not due to any willfulness or carelessness on their part. It was due wholly to the agreement which they had entered into in good faith with the defendant committee that they would receive official notice of its findings or rulings.

As I understand the record, it shows that after hearing the protests against the candidacies of a number of persons, among whom were relators, the defendant committee went into executive session for the purpose of considering the protests. This was about 3:30 p.m. on October 28, 1935. The committee under the law had twenty-four hours in which to render a decision. At the time the protests were taken under advisement, no notice nor indication was given relators or their attorneys as to when the committee would reach its decision on the protests. It being late in the evening, counsel for relators living in New Orleans and relators themselves living at widely separated parts of the parish, it was agreed by the relators and the defendant committee that when the committee should render a decision on the protests, official notice of its decision would be served on Louis Bagneris, Jr., a resident of Arabi, St. Bernard parish. It was under these circumstances and because of the agreement in question that relators and their attorneys left the courthouse for their respective homes.

There were eleven contests in all submitted to the committee for its consideration and decision. Apparently neither the relators nor the members of the committee had any reason to expect that the committee would be able to dispose of the protests as promptly as it did. The committee's consideration of the protests and its findings thereon were completed that same afternoon, to wit, at 4:45 p.m. on October 28, 1935.

The so-called announcement of the committee's decision to persons present at the courthouse clearly was nothing more than statements to that effect made by individual members of the committee in casual conversations carried on with the various bystanders. These statements in no sense constituted notice, official or otherwise, of the committee's decision and were not intended as such.

It is conceded in the majority opinion that it was necessary to promulgate the decision of the committee; that is to say, to give relators notice of the decision. It is also conceded in the majority opinion that the law does not provide in what manner the decisions of the committee shall be promulgated; that is to say, in what manner notice thereof shall be given. In these circumstances, no law prohibiting, I see no reason why interested parties could not lawfully agree upon the manner and form of the required notice.

I differ from the view expressed in the majority opinion that the telephone message received by one of relators' attorneys at his home in New Orleans at 11 o'clock on the night of October 28, 1935, was equivalent to the notice required by law or by the agreement of the parties. The chief deputy sheriff called relators' attorney to the telephone at that place and time solely for the purpose of advising him that Louis Bagneris, Jr., the person designated, could not be found for service of notice.

It is true Mr. Bagneris was not at home after 5:15 o'clock on the evening on which the committee rendered its decision, and on which the deputy sheriff called to serve the notice on him. But there was no time limit agreed upon in which Mr. Bagneris was to be served with the notice of the committee's decision, and he had no reason to suppose that the attempt to serve the notice would be made as promptly as it was done.

I see no reason why the deputy sheriff should not have called at the home of Mr. Bagneris the next morning, instead of having the chief deputy sheriff telephone to relators' attorney in New Orleans at 11 o'clock that same night.

The fact that the chief deputy sheriff, in the telephone conversation, incidentally informed relators' attorney of the committee's decision was not, and in the very nature of things could not be considered, an official notice of the committee's decision. It is certain that relators' attorney did not receive the telephone communication as an official service of notice on him. On the contrary, he notified the chief deputy sheriff that he would not accept service of the notice unless the service was made at his office after 9 o'clock the next morning. The chief deputy sheriff acquiesced in that, and, accordingly, another deputy sheriff served the notice on the attorney at his office the next morning.

In my opinion, the only official and binding notice of its decision given by the committee and received by relators was the written notice which was served on relators' attorney and accepted by him in writing at 10:15 a.m. on October 29, 1935. It was from that time only that the two days' prescription relied on by the defendants began to run. Relators' suits were filed at 9:15 a.m. on October 31, 1935, which was within two days from the time the official notice was served on relators' attorney. In these circumstances I fail to see how the case of State ex rel. Dunshie v. Fields, 164 La. 954, 115 So. 45, 46, has any bearing on this case.

I respectfully submit that the views I have herein expressed are sound in law and equity and are wholly in keeping with the announced policy of this court to liberally construe the provisions of the election laws so as to secure to the people the right to choose their public officers. See Rousseau v. Democratic Parish Executive Committee (Champagne v. Democratic Parish Executive Committee) 183 La. 965, 165 So. 166. In refusing writs of review applied for in those cases only last Monday we said ex industria: "If a strict interpretation is placed upon the language of the Primary Election Law (Act No. 97 of 1922, as amended), and the notice of intention to become a candidate and the affidavit accompanying the notice are considered in that light, the candidate has not properly qualified. But, in the previous decisions of this Court, we have repeatedly said that, since the right of the people to choose their public officials is indirectly affected, and, this being the fundamental principle involved in all elections, a liberal construction should be placed upon the provisions of the statute. The Court of Appeal [164 So. 175] treated the case in a liberal manner, which was in accordance with the announced policy of this Court. Therefore, its judgment is correct and the writs are refused."

That declaration of the liberal policy pursued by this court in construing the election laws in the interest of the people was not qualified nor restricted. The prescriptive periods prescribed by the election statutes were not excluded from the operation of the rule of liberal construction thus announced. I see no reason why they should not be included within the rule. In all matters of private litigation, prescription is stricti juris. It is never presumed. It must be specially pleaded and the burden of establishing it is on the pleader. The plea can never be enforced except upon the clearest showing that it is well-founded.

I concur in the rulings contained in the majority opinion on the exceptions of want of jurisdiction, misjoinder of parties, and no right or cause of action.