FOURNET, Chief Justice.
In compliance with the provisions of R. S. 18:364, requiring disposition of cases of this character within twenty-four hours after submission, we herewith hand down our decision — the reasons for which will follow in due cours.e.
[67] The judgment of the lower court is annulled and set aside, and it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Richard A. Dowling, and against the defendants, Malcolm V. O’Hara and the Orleans Parish Democratic Committee, decreeing that the plaintiff, Richard A. Dowling, has received a majority of the votes legally cast in the second primary election held in New Orleans on February 25, 1958, and accordingly is the nominee of the Democratic party for the office of District Attorney for the Parish of Orleans. Defendants to pay all costs.
HAMITER, J., dissents, being of the opinion that the holding of another second primary should be ordered.
HAWTHORNE, J., concurs in part and dissents in part and will assign written reasons.
McCALEB, J., concurs in the reversal of the judgment but dissents from the ruling that contestant is Democratic nominee and will assign written reasons.
Opinion
FOURNET, Chief Justice.
The plaintiff, Richard A. Dowling, having qualified as a candidate for the Democratic nomination for the office of District Attorney for the Parish of Orleans in the Democratic primary held on February 4, 1958, and received the second highest number of votes, was one of the two candidates in the second primary election for that office held in New Orleans on February 25, 1958, as a result of which his opponent therein, Malcolm V. O’Hara, was certified as the Democratic nominee by the Orleans Parish Democratic Committee; and has instituted suit to contest that election, alleging that he, plaintiff, received a majority of the legal votes cast and is entitled to be the party nominee in the forthcoming General Election, in that all of the 232 absentee ballots cast in the second primary (105 for plaintiff and 127 for O’Hara) were void ab initio because the Legislature has failed to provide a method by which absentee voting can be accomplished where voting machines are used, no provision having been made for ballot boxes wherein the absentee ballots “shall” be deposited; 1 and the elimination of those ballots would leave a majority in his (plaintiff’s) favor of 9 votes in the case of the tabulation of the Orleans Parish Democratic Committee, and 13 votes in the case [69] of the totals obtained from the voting machines by the Parish Custodian of voting machines;2 that the method used by the commissioners of election in the second primary to record said absentee votes, 1. e., opening the envelopes, unfolding and examining the ballots, and recording them on the tabulation sheets as indicated by the vote, destroyed the secrecy of the ballot as provided for in the Louisiana Constitution, Article 8, Section 15; 3 if this Court should hold that such procedure is the method intended by the Legislature, then Act 415 of 1952 (providing for absentee voting) is null and void because violative of the same provisions of the Constitution; and that timely protest was made before the Orleans Parish Democratic Committee of the “void” absentee votes, but to no avail. In the alternative it is alleged that on the day of the election, frauds and irregularities were committed by the commissioners of election throughout the City of New Orleans, particularly in certain named precincts of certain wards, in that (a) names of persons who did not personally appear in the polling places were placed on the poll list, and votes were actually cast through the voting machine; (b) that persons were allowed to vote without the necessity of signing the precinct register; (c) that signatures which are questionable and which are apparently not the signa- _ tures of the persons registered appear on precinct registers; and (d) that a system of fraud has been developed whereby a voter is required to place his signature on the precinct register without the commissioner writing on said register the date that the signature was so placed, as required by law (R.S. 18:256), thus leaving the door open to the casting of unlimited fraudulent votes; and that “such irregularity and fraud are of such a nature and in such quantity that the result of this election would be materially changed if such illegal and fraudulent votes were eliminated.”
It is further alleged, with particularity, that in Ward 17, Precinct 13 — where there was no commissioner representing the plaintiff and all commissioners were of the [71] O’Hara faction — certain named persons, 59 in number,4 whose names appear on an attached photostatic copy of the poll list, were shown as voting on February 25, 1958, but the permanent precinct register contains no entry of a date showing that the said persons voted on that day, and that “the number of undated entries in the permanent precinct register for the election of February 25, 1958, is so excessive, and the indication of fraudulently cast votes [is] so strong, that the court should disregard the returns of the entire precinct;” in the Third Precinct of the Second Ward, there appears on the poll list the names of 17 persons who did not sign the precinct register and there appears on the voting machine 17 more votes than there are signatures on the precinct register; that two other named persons did not go to the polls and did not vote on February 25, although an entry was made in the permanent precinct register indicating that those two persons appeared and cast their votes; that certain other entries on the precinct register are irregular and illegal either because of want of date or commissioner’s signature, signature of the voter, or not the genuine signature of the person; that all commissioners were from the faction supporting O’Hara and plaintiff was unrepresented, or if committed at a time when plaintiff was represented, the fraudulent acts were done surreptitiously, so that there was no opportunity for detection. Plaintiff asserts that these illegal votes should be subtracted from the total votes received in that precinct by O’Hara. The same irregularities are alleged in the Third Precinct of the Tenth Ward; and in the Thirteenth Precinct of the Tenth Ward there is the additional allegation that “somebody was permitted to vote after placing this questionable signature on the precinct register because the name of the registered voter is included in the poll list.” It is alleged that in the First Precinct of the Third Ward, the commissioners voted two absentee votes through the voting machines and in addition thereto added the same two votes to the tally sheet as absentee votes; “that the action of the commissioners was protested by a watcher and supporter of your petitioner, and that the said commissioners in said precinct laughed at and ignored such protest.” In the Twelfth Precinct of the Fifth Ward, where all of the commis[73] sioners were supporters of O’Hara’s political faction, “a commissioner went into the voting machine and voted twelve illegal votes all in favor of * * * O’Hara; that said votes were voted in the names of various persons who are registered voters in said Ward and Precinct but who failed to appear in person * * * to vote * * In the Sixth Precinct of the Second Ward, the plaintiff alleged that a duly registered and qualified voter presented herself to vote, and upon having difficulty with the mechanical operation of the machine called one of the commissioners, and he, after correcting the difficulty, then and there voted in said machine for O’Hara, but upon protest from the voter, permitted her to vote, which she then did in favor of plaintiff; but this served only to nullify the illegal vote cast for O’Hara and deprived plaintiff of one vote. There is the additional allegation, with respect to Ward 7, Precinct 1, that while the poll list shows the names of certain persons, 29 in number (shown on an attached photostatic copy of the poll list) as having voted in the election of February 25, those persons did not vote, “but some person or persons unknown to your petitioner voted the said persons ‘from the book,’ illegally entered their names in the poll list of said precinct and caused said votes to be recorded on the voting machine;” and that the votes cast in the names of the persons listed should be declared illegal and invalid and the number subtracted from O’Hara’s total.5 Lastly, it is alleged that either a vast majority or all commissioners who served were supporters of O’Hara or his political faction6 and therefore any irregularities committed by the commissioners or through their con[75] nivance were committed against plaintiff and in favor of O’Hara. The prayer is for judgment decreeing that the Legislature has failed to provide a method by which absentee voting is permitted where voting machines are used, that therefore the plaintiff received a majority of the votes cast in the second primary election, and is the nominee of the Democratic Party for the office of District Attorney; in the alternative, for judgment declaring that there were sufficient frauds committed by commissioners supporting O’Hara or his faction to determine that without those frauds the plaintiff would have received a majority and would be the Democratic nominee. In the further alternative, the prayer is that the election be declared a nullity and that this Court order the Orleans Parish Democratic Committee to call a new election forthwith for the nomination of the Democratic Party to the said office.
The answers of the defendants were a general denial, with further averments, on the part of the Orleans Parish Democratic Executive Committee, that no fraud or irregularity was alleged on the part of an officer or member in the performance of his duty of tabulating and compiling the returns of the election; that its full legal duty has been performed, and it is without authority to call another primary election; and that therefore it was improperly joined as party defendant and suit as to it should be dismissed. Both defendants assert by special plea that since plaintiff was a candidate in the first primary election held on February 4, 1958, but failed to contend that the method of casting or counting absentee ballots was illegal or unconstitutional — in fact, profited by having included the absentee votes cast for him — and well knew that the same method would be followed in the second primary, he must be considered as having acquiesced in the method of casting and counting absentee ballots and is es-topped from urging illegality and unconstitutionality of the law applicable to absentee voting and also estopped from complaining of the procedure and method employed in the appointment of commissioners used at the polling places to assist in the recordation and tabulation of the votes cast in the second primary election.
Trial was had on the merits, in the course of which the Court restricted proof of fraud and irregularities to the number of 17 fraudulent votes alleged to have been cast in the Third Precinct of the Second Ward; and the defendants having declined to offer any evidence and having rested their case immediately following the plaintiff’s presentation, the trial judge ruled, with respect to the argument that the secrecy of the ballot had been violated, that if there is secrecy at the time the absentee ballot is prepared — in this case, in the Civil Sheriff’s office — then the fact that the ballots are identifiable at a later timé, and [77] the further fact that the commissioners did not place them in a ballot box, does not invalidate those absentee ballots; with respect to charges of illegality and fraud, he observed: “The court is convinced that there are substantial irregularities in the Third Precinct of the Second Ward, and the court believes that seventeen such irregularities were proved beyond peradventure; the court believes that there was proved forgery of two signatures, and the court believes that the other parties who testified, nine or ten in number including the forgeries, did not vote in that precinct on that date, and the court is convinced there were substantial irregularities in that precinct;” but ruled that the law requires not only that irregularities, if proved, would change the result of the election, but places the burden on plaintiff to show that but for these irregularities he would have been elected, and refused to subscribe to plaintiff’s argument that, all commissioners in the Third Precinct of the Second Ward having been of the opposing faction, the court should deduce that the 17 irregular votes were cast against the plaintiff Dow-ling, observing that “The law does not permit this court to indulge in any such presumption.” Accordingly, the plaintiff’s suit was dismissed, and he has appealed.
In this Court counsel for plaintiff is again urging, primarily, that the absentee ballots were void ab initio, or, in the alternative, were illegal; and in the further alternative, he bases his case on these arguments: (a) the trial judge having found that 17 fraudulent votes were cast in one precinct, circumstantial. evidence is admissible to prove how those illegal votes were cast, and it shows (to the exclusion of every other reasonable hypothesis) that they were cast for O’Hara, so that — O’Hara’s majority having been only 9 votes — judgment should be rendered decreeing plaintiff to have received a majority of the legal votes cast and to be the nominee of the Democratic Party; (b) the trial court erred in confining the proof narrowly to the specific allegations of plaintiff’s original petition and should have allowed amendment before trial to exemplify and particularize the original allegations (which in no way would have delayed trial on the merits) and admitted evidence of the facts and matters alleged in the amendments; (c) that the alleged (Article 24 of original petition) and proved system of irregularities in the' Thirteenth Precinct of the Seventeenth Ward showed that commissioners allowed persons to vote without complying with the mandatory provisions of R.S. 18:256, that such votes, 57 in number, should be deemed illegal, and since they were sufficient in number to change the result, the primary should be annulled and a new election ordered.
There is much substance in plaintiff’s alternative initial argument (i. e., in the event we should fail to hold void [79] ab initio the absentee ballots cast in the second primary because of failure of the Legislature to provide for ballot boxes) that the method provided by the Legislature for casting of absentee ballots (R.S. 18 :- 258-260), when used in connection with voting machines, violates the purpose of the constitutional provision decreeing secrecy of the ballot. Under existing absentee voting law, “The commissioners having observed and found the ballot to be regular as far as can be observed from its official endorsements, a commissioner shall deposit it in the proper ballot box”— “without it being unfolded or permitted to be unfolded or examined” (R.S. 18:259); but under present procedure in localities where voting machines are used,7 there being no ballot box, after the envelope containing the absentee ballot is opened in the presence and view of bystanders and the commissioners supporting opposing candidates, as required by law, and after the signature on the application is compared with the signature on the back of the envelope and on the voter’s registration certificate in the precinct register and found to be genuine, if the applicant has not appeared in person and voted at the election, the ballot is unfolded, exaúmned, and tabulated by the commissioners to the benefit of the candidate voted for; and each and every absentee ballot is thus identifiable. It is obvious that with such procedure the secrecy of the ballot is meaningless. Appropriate here— because the Court was considering a case which involved voting procedure similar to that prescribed for absentee balloting8 —are this Court’s observations in a case where an election was decreed set aside due to failure to print and use the official ballot required for primary elections: “The purpose of these provisions is to make effective one of the main objects of the Primary Election Law, and that is that the voter shall be permitted to cast his ballot [81] Whereas, if it were possible for any one else knowing how he voted; the idea being that, in these circumstances, he would come nearer voting his true convictions. Whereas, if it were possible for anyone else to know, or have a check upon how he voted, an improper influence might be thereby exercised upon his choice. * * * ” Hart v. Picou, 147 La. 1017, at page 1021, 86 So. 479, 480. The Court further noted in that case that, as the election had been conducted, the way was left wide open for fraud, stating that (since none was proved) “it is not a question of the proof of fraud, but of the possibility of its being committed, that the law maker intended to guard against.” With these considerations in mind we are impelled to remark that the absentee voting law as written, when adapted to use with voting machines, in addition to exposing the voter to intimidation and other forms of reprisal, presents a ready-made pattern for vote fraud, such as vote buying, and constitutes such a serious situation that the matter addresses itself to the Legislature for prompt correction at its next session.
However, the question of constitutionality as raised by the plaintiff is pretermitted, as we prefer to base our decision on other grounds. The conclusion we have reached is consonant with purity of the ballot, and the only course to insure honest elections and to serve as a deterrent to similar actions in future elections. We therefore pass to the matter which is determinative of the case, i.e., the alleged fraud and irregularities committed by the commissioners of election.
As a general proposition it may be stated that, in the absence of specific facts giving rise to fraud or which cast uncertainty on the result, irregularities in an election will not affect the validity of a nomination or serve to nullify the result (Daigle v. Mayor and Board of Aldermen of Town of Rayne, 222 La. 556, 62 So.2d 833; Womack v. Nettles, 155 La. 359, 99 So. 290; Andrews v. Blackman, 131 La. 355, 59 So. 769); but the rule is otherwise if a contestant is able to show, upon allegations of specific fraud and irregularities, that but for such fraud and irregularities he would have received a majority of the legal votes cast (Landry v. Ozenne, 194 La. 853, 195 So. 14; Lafargue v. Galloway, 184 La. 707, 167 So. 197); and, as an alternative, it has been recognized that if the Court finds the proven frauds and irregularities are of such a serious nature as to deprive the voters of the free expression of their will, it will decree the nullity of the entire election — even though the contestant might not be able to prove that he would have been nominated but for such fraud and irregularities (Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292; Vidrine v. Eldred, 153 La. 779, 96 So. 566). Clearly, the elimination of the total votes cast in the specific precinct or precincts [83] wherein irregularities and fraud were found would be tantamount to the disfranchisement of every voter in that precinct and might defeat the will of the people (State ex rel. Burg v. Folse, La.App., 17 So.2d 32; Dumestre v. Fisher, La.App., 195 So. 25); on the other hand, where the ballots cast by the illegal voters can be identified, they should of course be rejected, the true rule being that the first effort should be to purge the poll by proving for whom the illegal votes were cast, and thus ascertain the real vote; if the true result can be ascertained by eliminating the illegal votes, the election will be upheld (29 C.J.S. Verbo Elections § 219, p. 322); it follows that where it is possible to separate the illegal votes and show for whom they were cast, they will be deducted from the total of the person for whom they were counted, and the court will give effect to the will of the voters and declare the nominee to be the one who received the most legal votes (Lucky v. Police Jury of Bienville Parish, 46 La.Ann. 679, 15 So. 89; McKnight v. Ragan, 33 La.Ann. 398; Duson v. Thompson, 32 La.Ann. 861). Ordinarily (since a voluntary and direct avowal by an illegal voter is seldom had), extrinsic evidence must be employed to determine who the illegal voters were and ascertain how they voted, and circumstantial evidence is competent to prove that fact (29 C.J.S. Verbo Elections §§ 282 and 283, p. 403; 18 Am.Jur. 380, Verbo Elections, Section 309; Hendrickson v. Coign, 304 Ky. 383, 200 S.W.2d 905; Wilkinson v. McGill, 192 Md. 387, 64 A.2d 266; White v. Slama, 89 Neb. 65, 130 N.W. 978; In re Contest of Election of Clerk of Common School Dist. No. 107, Fillmore County, 159 Minn. 438, 199 N.W. 173; Tunks v. Vincent, 106 Ky. 829, 51 S.W. 622; 20 C.J. 247, Verbo Elections, §§ 341 and 342); and “where the facts and circumstances from which the finding is made are clearly established, and the inference is the only one which can fairly and reasonably be deduced therefrom, the court should not hesitate to act on circumstantial evidence and therefrom find the ultimate fact. * * * The party affiliations of the voter, and the relations between the voter and the candidates, or between him and others actively interested in advancing the cause of certain candidates, are circumstances properly to be considered.” 9 R.C.L. 1150, Verbo Elections, Sec. 141; see, also, 24 Ann. Cases 1912C, annotation at pp. 522-524; Talbott v. Thompson, 350 Ill. 86, 182 N.E. 784; Choisser v. York, 211 Ill. 56, 71 N.E. 940; Rexroth v. Schein, 206 Ill. 80, 69 N.E. 240.
The law governing primary elections declares that (R.S. 18:340) the Parish Committee shall select from lists furnished by local candidates containing names of proposed commissioners for each precinct in the parish, five commissioners for each voting precinct, according to a plan outlined in detail; and the remaining persons whose names appear on' the list shall [85] be commissioned as official watchers for the precinct. The provision with regard to second primaries such as that with which we are here concerned (R.S. 18:357(3)) is that the same commissioners shall serve who served in the first primary, the watchers to be those who served in the first primary as representatives of candidates who remain as candidates in the second primary. The law governing the procedure for voting (R.S. 18:256, one of many sections of the Revised Statutes added by the provisions of Act 415 of 1952) is specific with reference to the conditions to be met before a person may vote, all requirements being mandatory; the voter gives his name and address to a commissioner; these are repeated then in a loud and distinct tone of voice, and repeated again on the outside by a watcher designated by the commissioners; if the name is found in the precinct register by the commissioner, he again repeats it; the voter affixes his signature in the space provided on the certificate of registration— former signatures and his registration signature thereon being effectively concealed from him until he has signed; the commissioners then compare .signatures, in the presence and view of bystanders, and if satisfied of the voter’s identity and qualification, “a commissioner shall sign his name in the space reserved for the commissioner’s certification opposite the name written by the voter and shall put the date of election in the proper space. * * * The voter shall then, but not until then, be allowed to vote, and his name shall be entered on the poll list by the commissioners.” With the above system prevailing and carried out, it was clearly an impossibility for any person to enter the voting machine and vote without the knowledge and consent of the commissioners present and unless permitted to do so, because their participation and active assistance was necessary to (a), check the precinct register, (b) write the name of the voter in the poll list, and (c) clear the' voting machine for the next vote.. There is, moreover, the legal presumption that all votes recorded on the voting machine have been so recorded only with the knowledge of the commissioners, since the commissioners are presumed to do their duty. Landry v. Ozenne, 194 La. 853, 195 So. 14; State ex rel. Todd v. Mills, 191 La., 1, 184 So. 350.
The uncontroverted evidence adduced at the trial of the case shows that in the Third Precinct of the Second Ward at least 17 votes were illegally cast, including 2 forgeries,9 and that they could not [87] have been cast by anybody but the commissioners or by someone with the assistance and connivance of the commissioners; that the illegally cast votes were sufficient to make a change in the result of the election and thus flout the will of the people. After hearing the arguments of counsel presented here, we were unanimous in concluding that those votes were, in contemplation of law, fraudulent, and sufficient to set aside the judgment of the lower court naming t)’Hara the "nominee; we "were also' unanimous in the thought that under the law as stated earlier in this opinion, if it is possible to determine for whom the said votes were cast, they should be deducted from the total of the person for whom they were counted; but our point of disagreement was whether it could be reasonably inferred, in view of the uncontroverted evidence that all the commissioners were O’Hara supporters or affiliated with the political faction supporting him, and the further fact that one of the commissioners wrote all the names appearing on the poll list, including names to account for the 17 fraudulent votes, that those votes would have been cast for O’Hara’s opponent — or, as an alternative, whether the second primary election should be declared void.
We wish particularly to state that O’Hara is not even suspected of having had knowledge of or participation in the acts which resulted in the fraud committed in the Third Precinct of the Second Ward. He is a respected member of the Bar, favorably known in the community, and no action taken in this case is connected with him personally or should reflect on his character in any way, shape or form.
Is it reasonable to suppose that the votes would have been cast for plaintiff in preference to O’Hara? Of the five commissioners who served in the precinct where the fraudulent votes, were cast, two testified at the trial, having been, called by the plaintiff; they are William C. Baumann and Adolph J. Zimmerman, both employed by the Clerk of the Civil District Court, Mr. Tom Buckley, who is also the leader of the Second Ward for the political faction supporting O’PIara, the Crescent City Democratic Association, or C.C.D.A. Those witnesses stated that all five commissioners wore O’Hara badges, and Zimmerman said it was he who wrote all the names on the poll list; but he was unable to account for the circumstance that the said list contained names of such a large number of voters who did not sign the precinct register other than to say that “A few times during the day I got behind with the poll list and I had to catch up” with the number shown on the voting machine — the discrepancy [89] having come to light in periodic checks during the course of the day; “so I would say that some of the names on here [poll list] may not be the ones that voted.” Yet the vote was light — only 192 votes were recorded on the one machine in the Third Precinct of the Second Ward during the hours between 6 A.M. and 8 P.M.; and each voter had but two marks to make on his ballot since there were only four candidates in the runoff primary, two each for the nominations for criminal judge and district attorney. No explanation was attempted by defendants; they declined to offer any evidence and their sole defense on this phase was that the plaintiff failed to carry the burden of proof. Since the election officers themselves, according to the uncontradicted testimony, were the only persons in a position to cast the illegal ballots or to permit them to be cast, and since they were supporting O’Hara, it is inconceivable that the votes would have been cast for a candidate other than the one of their choice. We have therefore concluded that the 17 fraudulent votes were cast for O’Hara and should be deducted from the total vote credited to him, thus leaving plaintiff with a clear majority of the legal votes cast and entitling him to the nomination for the Democratic Party for the office of District Attorney of Orleans Parish. To reach any other conclusion would be to lend help to those who are perpetrating fraud, thereby defeating the principle that the sovereign in this land is the people, and the ballot the expression of the sovereign will..
The decision we have reached makes it unnecessary to discuss at length plaintiff’s contention that he should have been permitted to amend his original petition, since the amendments merely amplified, emphasized and substantiated his original allegations of fraud and irregularities in specific locations; and in one instance, that of the First Precinct of the Seventh Ward, though not among those mentioned in the original petition, the amendment should have been allowed under the original allegations of “wholesale irregularities and fraud” and “a system of fraud” and he should have been permitted to show that 27 named persons did not vote and did not sign the precinct register, yet the names of all 27 appeared on the poll list as having voted.10 A perusal of the decision of this Court relied on by the district judge as a basis for his ruling in rejecting the amendments to the petition and excluding the evidence, Bradley v. Neill, 174 La. 702, [91] 141 So. 382, 384, will show that it is not fully applicable, because there it was said: “Plaintiff’s proposed amendment was not an enlargement or amplification of his original petition, but was an entirely new ground of contest which, we think, plaintiff was too late in urging.” 11 Suffice to say that the offered amendments did not, in our view, present a new ground of contest, but merely particularized and amplified the original allegations, and should have been permitted; and the evidence was admissible for the purpose of showing a system and indicating the extent of the fraud practiced in the election.
We also find it unnecessary to discuss further the failure of commissioners to sign the precinct register after the voter has placed his signature thereon, and to enter the date of the election in the proper space, other than to say that such gross irregularities cannot be condoned. A failure to correct those practices would permit a most flagrant manipulation of ballots and would enable a set of officers to substitute their own will for the will of the people. It occurs to us that as a practical matter the method now used in selecting commissioners for primary elections and the present system of having those commissioners serve again if a second primary is held, presents a tempting opportunity — not readily subject to challenge — for the development of illegal and fraudulent practices of the most insidious type. Without intending to cast aspersions on any particular group, and speaking generally, it is highly probable that, since the dominant political faction always presents a full slate for the first primary where the number of offices to be filled is usually large, and since the number of contestants in the second primary is apt to be quite small, the election commissioners appointed for the first primary who serve again in the second are likely to be supporters of the dominant political faction and of the candidate endorsed by that faction (the record in this case reveals that to have been the fact in the election with which we are here concerned). Obviously, if all five commissioners have the same political affiliation, they will dominate the poll, with the result that the candidate without endorsement of that faction is, from a political viewpoint, unrepresented. The matter is one which merits the prompt attention [93] of our lawmakers, with a view to devising a system of selection of commissioners to insure that everyone is represented at the polls in all elections.
For convenience, we repeat here the decree which was handed down by us in this matter on March 20, 1958:
The judgment of the lower court is annulled and set aside, and it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Richard A. Dowling, and against the defendants, Malcolm V. O’Hara and the Orleans Parish Democratic Committee, decreeing that the plaintiff, Richard A. Dowling, has received a majority of the votes cast in the Second Primary Election held in New Orleans on February 25, 1958, and accordingly is the nominee of the Democratic party for the office of District Attorney for the Parish of Orleans. Defendants to pay all costs.
HAMITER, HAWTHORNE and McCALEB, JJ., concur in part and dissent in part.