HIGGINS, Judge ad hoe.
This case is before us on a writ of certiorari directed to the Honorable Robert B. Butler, judge of the Seventeenth judicial district court for the parish of Lafourche. The question presented for our consideration is the propriety of the action of the trial judge in issuing a preliminary injunction “restraining, pendente lite the defendants E. R. Hoffmann, Hubert A. Lafargue, G. E. Payne and P. D. Martinez from submitting to the respective Parish Committees in the Second Public Service Commission District of the State of Louisiana any names of voters to be placed in the respective receptacles from which the five commissioners of election are to be drawn for each Precinct in the Democratic Primary Election to be held on September 13th, 1932.’’
It is alleged in the petition for the injunction that the plaintiff, Dudley J. Le Blanc, is a bona fide candidate for the Democratic nomination for the office of member of the Louisiana public service commission, Second public service commission district of Louisi
ana, in the Democratic primary election to be held on the 18th day of September, 1932; that as such candidate he has the right to submit to each parish committee in each parish in the said public service commission district, the name of one duly qualified voter to act as commissioner of election for each voting place in the respective parishes, except in such parishes and precincts as there are local candidates; that the four persons named as defendants “have conspired together, and have, either collectively or individually, lent their names as pretended candidates for the Democratic nomination for the office of member of Public Service Commissioner in said district, merely for the purpose of adding four additional names of voters in each precinct of said Public Service Commission District where there are no local candidates”; that “for such purpose the said four defendants have each of them filed with the Chairman of the Democratic Executive Committee for the Second Public Service Commission District of Louisiana notification of intention to become a candidate for the Democratic nomination for member of the Public Service Commission of Louisiana in said district”; that “if said four defendants are permitted as candidates to furnish each one name for each precinct in each parish to the respective parish Democratic committees in said Public Service Commission District, it will increase by four the number of names in each precinct in said district, and petitioner’s chance of having a commissioner representing him to be drawn will be very much lessened and decreased”; that “not one of the said four defendants has ever had any intention to becoming a candidate for the office of Public Service Commissioner at said primary”; that “each of the said four defendants has merely permitted the use of his name to be entered as a candidate in order to procure for certain real candidates, whom they favor, a chance of naming all or nearly all of the commissioners to serve at the various precincts in said Public Service Commission District at said primary election”; and that “such action on the part of said defendants constitutes a fraud upon the rights of petitioner as a real and bona fide candidate at said primary election, and that if they are permitted to have names submitted by them as aforesaid placed in the receptacle from which the names of commissioners are drawn for each precinct, the injury will be irreparable.”
To this petition for injunction the defendants, through their counsel, filed an exception to the jurisdiction of the court ratione materia and an exception of no right or cause of action. They further pleaded the fact that they had complied with all the láws of the state regarding the method of qualifying as candidates for the position for which they announced their intention to be candidates; and that, no objection having been filed before the proper committee, as required by the provisions of the primary law, and their names having been duly certified to the secretary of state, they contend that neither the plaintiff nor any other person whatsoever has any legal right or interest to impugn their motives.
On the trial of the rule nisi, the respondent judge, after having heard argument upon the exceptions, reserved his ruling, declaring that his conclusions in that respect would be thereafter announced and proceeded to try the rule on the merits.
During the course of the trial the plaintiff called one of the defendants, Edward It. Hoffmann, to the stand for the purpose of cross-examination. He was ashed concerning his good faith in offering for the position of public service commissioner. His counsel promptly objected upon the ground that the testimony sought to be elicited was not responsive to any of the allegations in the petition, and upon the further ground that the court was without jurisdiction to inquire into the bona fides of the defendants. These objections were overruled, whereupon counsel for defendants admitted, subject to his objections and with" reservation of his rights under vhis exceptions, “that the witness on the stand, if examined in this case, and the other three defendants in this case, if placed on the stand and examined, would testify in accordance to the allegations of facts contained in the plaintiff’s petition, except as to those allegations of a conspiracy among themselves.” In other words, it was admitted that none of the four defendants were bona fide candidates in the respect that they had no intention to run for the office for which they had announced and had qualified merely for the purpose of putting additional names in the list from which the commissioners of election were to be drawn, for the purpose of favoring a candidate other than the plaintiff in this ease.
The first question for our consideration is the jurisdiction of the court a qua. It is conceded that all four of the defendants are white men, qualified electors, registered and affiliated with the Democratic Párty, and all reside in the proper parish and district. In other words, that they possess all of the qualifications essential to a candidate for the office of public service commissioner (except a bona fide- intention to run for the office) and that they properly qualified to become candidates in accordance with the primary-election law.
It is also admitted that no objection to-their entry as candidates was made before the district executive committee for the Second public service commission district of Louisiana, and that their names were certified by that committee* to the secretary of •state for the purpose of being placed upon the official ballot. In other words, no objection to, nor contest of the right of defendants to become candidates, was made in accordance with the provisions of section 11 of the Primary Act (Act No. 97 of 1922). |
Plaintiff relies upon article 7, section 35, of the Constitution of 1921, which, in general terms, confers jurisdiction upon district courts, “in all cases where the tiile to real estate, or the right to office, or other public position, or civil or political rights are involved,” and contended that no specific legislative authority is necessary for the court to exercise jurisdiction thus conferred.
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HIGGINS, Judge ad hoe.
This case is before us on a writ of certiorari directed to the Honorable Robert B. Butler, judge of the Seventeenth judicial district court for the parish of Lafourche. The question presented for our consideration is the propriety of the action of the trial judge in issuing a preliminary injunction “restraining, pendente lite the defendants E. R. Hoffmann, Hubert A. Lafargue, G. E. Payne and P. D. Martinez from submitting to the respective Parish Committees in the Second Public Service Commission District of the State of Louisiana any names of voters to be placed in the respective receptacles from which the five commissioners of election are to be drawn for each Precinct in the Democratic Primary Election to be held on September 13th, 1932.’’
It is alleged in the petition for the injunction that the plaintiff, Dudley J. Le Blanc, is a bona fide candidate for the Democratic nomination for the office of member of the Louisiana public service commission, Second public service commission district of Louisi
ana, in the Democratic primary election to be held on the 18th day of September, 1932; that as such candidate he has the right to submit to each parish committee in each parish in the said public service commission district, the name of one duly qualified voter to act as commissioner of election for each voting place in the respective parishes, except in such parishes and precincts as there are local candidates; that the four persons named as defendants “have conspired together, and have, either collectively or individually, lent their names as pretended candidates for the Democratic nomination for the office of member of Public Service Commissioner in said district, merely for the purpose of adding four additional names of voters in each precinct of said Public Service Commission District where there are no local candidates”; that “for such purpose the said four defendants have each of them filed with the Chairman of the Democratic Executive Committee for the Second Public Service Commission District of Louisiana notification of intention to become a candidate for the Democratic nomination for member of the Public Service Commission of Louisiana in said district”; that “if said four defendants are permitted as candidates to furnish each one name for each precinct in each parish to the respective parish Democratic committees in said Public Service Commission District, it will increase by four the number of names in each precinct in said district, and petitioner’s chance of having a commissioner representing him to be drawn will be very much lessened and decreased”; that “not one of the said four defendants has ever had any intention to becoming a candidate for the office of Public Service Commissioner at said primary”; that “each of the said four defendants has merely permitted the use of his name to be entered as a candidate in order to procure for certain real candidates, whom they favor, a chance of naming all or nearly all of the commissioners to serve at the various precincts in said Public Service Commission District at said primary election”; and that “such action on the part of said defendants constitutes a fraud upon the rights of petitioner as a real and bona fide candidate at said primary election, and that if they are permitted to have names submitted by them as aforesaid placed in the receptacle from which the names of commissioners are drawn for each precinct, the injury will be irreparable.”
To this petition for injunction the defendants, through their counsel, filed an exception to the jurisdiction of the court ratione materia and an exception of no right or cause of action. They further pleaded the fact that they had complied with all the láws of the state regarding the method of qualifying as candidates for the position for which they announced their intention to be candidates; and that, no objection having been filed before the proper committee, as required by the provisions of the primary law, and their names having been duly certified to the secretary of state, they contend that neither the plaintiff nor any other person whatsoever has any legal right or interest to impugn their motives.
On the trial of the rule nisi, the respondent judge, after having heard argument upon the exceptions, reserved his ruling, declaring that his conclusions in that respect would be thereafter announced and proceeded to try the rule on the merits.
During the course of the trial the plaintiff called one of the defendants, Edward It. Hoffmann, to the stand for the purpose of cross-examination. He was ashed concerning his good faith in offering for the position of public service commissioner. His counsel promptly objected upon the ground that the testimony sought to be elicited was not responsive to any of the allegations in the petition, and upon the further ground that the court was without jurisdiction to inquire into the bona fides of the defendants. These objections were overruled, whereupon counsel for defendants admitted, subject to his objections and with" reservation of his rights under vhis exceptions, “that the witness on the stand, if examined in this case, and the other three defendants in this case, if placed on the stand and examined, would testify in accordance to the allegations of facts contained in the plaintiff’s petition, except as to those allegations of a conspiracy among themselves.” In other words, it was admitted that none of the four defendants were bona fide candidates in the respect that they had no intention to run for the office for which they had announced and had qualified merely for the purpose of putting additional names in the list from which the commissioners of election were to be drawn, for the purpose of favoring a candidate other than the plaintiff in this ease.
The first question for our consideration is the jurisdiction of the court a qua. It is conceded that all four of the defendants are white men, qualified electors, registered and affiliated with the Democratic Párty, and all reside in the proper parish and district. In other words, that they possess all of the qualifications essential to a candidate for the office of public service commissioner (except a bona fide- intention to run for the office) and that they properly qualified to become candidates in accordance with the primary-election law.
It is also admitted that no objection to-their entry as candidates was made before the district executive committee for the Second public service commission district of Louisiana, and that their names were certified by that committee* to the secretary of •state for the purpose of being placed upon the official ballot. In other words, no objection to, nor contest of the right of defendants to become candidates, was made in accordance with the provisions of section 11 of the Primary Act (Act No. 97 of 1922). |
Plaintiff relies upon article 7, section 35, of the Constitution of 1921, which, in general terms, confers jurisdiction upon district courts, “in all cases where the tiile to real estate, or the right to office, or other public position, or civil or political rights are involved,” and contended that no specific legislative authority is necessary for the court to exercise jurisdiction thus conferred.
On the other hand, it is contended by the defendants that the provisions of the Primary Election Law of 1922, as construed by the Supreme Court in a number of cases, has been beld to be exclusive of all rights and remedies of candidates in primary elections^ That the method there provided for the questioning of the qualifications of candidates .is the only method by which the qualifications of a candidate may be contested.
It must be conceded that if the court had jurisdiction and, consequently, the power and authority to determine or inquire in
to the bona tides of aspirants for office in political primaries, the defendants were properly disqualified. To countenance the practice here resorted to would lend judicial sanction to the destruction of the objects and purposes of the Primary Law, the most important of which was to insure fairness in primary elections. But, however reprehensible the practice may be, and though attended with unwholesome and unjust consequences, we cannot justify judicial encroachment upon the legislative domain upon that ground; consequently, if the courts are without authority to inquire into the real or pretended character of a candidate in a primary election because of the lack of judicial authority so to do, no consideration of the gravity of the situation should properly induce the court to overstep the bounds of its jurisdiction by trespassing upon the legislative field ■simply because we believe the law should be different. We cannot under the guise of interpreting a statute, a proper judicial function, amend it or “remold it nearer to the heart’s desire.”
It is said that the general provisions of the Constitution relied upon by plaintiff, to the effect that district courts shall have jurisdiction, “in all cases Where the title to real estate, or the right to office or other public position or civil or political rights are involved,” confers jurisdiction of this controversy. Our answer is that this court has held to the contrary.
In Reid v. Brunot, 153 La. 490, 96 So. 43, the plaintiff unsuccessfully sought to have the court exercise jurisdiction under the same general provision of the Constitution. The court said at page 493 of 153 La., 96 So. 43, 44:
“The first question to be determined is as to the source and extent of the courts’ jurisdiction and power over the parties and subject-matter of this controversy.
“It is a well-settled and established principle of law that all elections and all matters relating to or affecting the same, belong to the political department of the government and are, therefore, beyond the control of the judicial power, in the absence of special constitutional or statutory authorization. No person has a right to invoke the aid of the courts in an election contest, unless there be some express law vesting the courts with- jurisdiction and conferring such right of action upon the contestant.
“ ‘The right to contest an election is not a natural right but exists, if at all, in the Constitution or statutes.’ 20 C. J. 222.
“In State v. Judge, 13 La. Ann. 89, this court said:
“ ‘The contesting of votes is not a judicial function, only so far as made such by special statutes. Indeed, some-may have gone so far as to question whether it is not
wholly
a matter of administration which cannot with propriety be referred
to the
judicial tribunals at all. At any rate it is clear that such tribunals cannot usurp any greater control over this business than is specially im
posed upon them by
law. In the absence of a statutory authorization, they are without jurisdiction of the matter, ratione materiie.’
“During the lapse of more than 60 years since that decision was rendered, this court has never questioned its correctness. On the contrary, it has been expressly affirmed in many cases. It was cited with approval in State v. Police Jury,
41
La. Ann. 846, 6 So.
777, and its doctrine was accepted and adopted in State v. Foster, 111 La. 1087, 36 So. 200; Darbonne v. Village of Oberlin, 121 La. 641, 46 So. 679; and Roussel v. Dornier, 129 La. 930, 57 So. 272, 41 L. R. A. (N. S.) 557.
“It is argued on behalf of appellants, however, that whatever may be said about the contesting of elections and of votes being a political question heretofore, the people of the state of Louisiana in constitutional convention, through their delegates, have made it a judicial question and that plenary power is now lodged in the courts to hear, try, and determine all contested election cases. In support of this contention, counsel cite article 8, § 4, of the Constitution of 1921, providing, among other things:
“ ‘The Legislature shall enact laws to secure fairness in party primary elections, conventions, or other methods of naming party candidates.’
“And section 12 of the same article, reading:
“ ‘The Legislature shall provide by law for the trial and determination of contested elections of all public officers, whether state, district, judicial, parochial, municipal or ward (except Governor and Lieutenant Governor), which trials shall be by the courts of law, and at the domicile of the party defendant.’
“Counsel also rely upon section 27 of .Act •No. 97 of 1922, enacted by the Legislature in pursuance of the constitutional mandate.
“It is likewise urged that, under the constitutional grant to the courts to hear and determine the
right to office
or other civil and political rights, the present controversy is cognizable by the judicial tribunals.
“In so far as the last-mentioned contention is concerned, it is to be noted that section 35 of article 7 of the Constitution of 1921, conferring jurisdiction upon the courts, in cases where the right to office or other political position or civil or political rights are involved, is the same provision as was contained in article 109 of the Constitutions of 1898 and 1913.
“In State v. Foster, cited supra, this court interpreted this provision as contained in the Constitution of 1898, holding that the grant of authority therein did not include the question of party nominations, ‘which must be determined by the paffy itself or by certain public officials as provided by statute.’ ”
The courts of this state have jurisdiction in matters involving the proper administration of the Primary Law by the officials charged with its execution, and a mandamus will lie to compel the performance of a ministerial duty imposed by the primary law, and an injunction will issue to restrain an attempted act in violation of its provisions. State ex rel. Elston v. Parish Democratic Executive Committee, 173 La. 844, 138 So. 857; State ex rel. Trainor v. St. Paul, 111 La. 714, 35 So. 838; State ex rel. Trosclair v. Democratic Committee, 120 La. 620, 45 Sc 526; State ex rel. Hinyub v. Committee, 173 La. 858, 138 So. 862; Parker v. Democratic Committee, 5 La. App. 712; State ex rel. Labauve v. Michel, 121 La. 374, 46 So. 430: 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; Dastugue v. Cohen, 14 La.
App. 475, 131 So. 746; Melerine v. Democratic Committee et al., 164 La. 855, 114 So. 711; Langridge v. Dauenhauer et al., 120 La. 451, 45 So. 387. There is no such issue in the case before us. The objection to the candidacy of the defendants is based upon their alleged disqualification. It is not pretended that they have failed in any express requisite of the Primary Law. On the contrary, it is admitted that they have met every one of the conditions mentioned in that act. But, it is said, they are nevertheless disqualified for the reason that by necessary implication one of the essential requisites of a candidate is a bona fide intention to run for the office for which he announces, and that the question of whether or not he is a bona fide candidate may properly be considered by the court. We are met with the provisions of the primary law which provides that objections to the qualifications of a candidate ¡must be made before the executive committee of the district, and if the defendants in this case are disqualified because of their failure to meet an implied condition under the Primary Law the question must be presented to the executive committee and, if maintained, may thereafter be brought before the courts. See section 11, Act No. 97 of 1922.
It is also contended that the disqualification urged in this case goes further than the failure to comply with ene of the express requisites of the act for the reason that the defendants, not being in good faith, are not candidates at all and, therefore, the Primary Law has no application to them because it is intended only to relate to candidates for office. But this is only another way of saying that they are disqualified for the reason that it makes no difference what particular essential is lacking, whether it be nonresidence, or the failure to possess poll taxes, or the failure to register, or to declare party affiliations, or, as is contended in this ease, the failure to possess a bona fide intention to become a candidate. The result is the same, the candidate is disqualified in each and every instance or, as it is stated, no candidate, by reason either of the expressed or implied provisions of the primary law.
Section 11 of the Primary Law provides:
“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 the party calling the primary; provided, however, that any such objection shall be made within five day^ after the last day upon which persons may file notification to become candidates. Where-ever such objection shall have béen filed the committee calling the primary shall convene 48 hours after the objection shall have been placed in the hands of the chairman of the committee and served upon the person interested, and determine within 24 hours after the objection and answer to same, if one be filed, shall have been heard, whether or not the person applying to be a candidate is qualified, and in event that the committee shall determine that such person is so qualified, the decision shall be final; in event the committee shall determine that such person is not so qualified, such person shall have the right to appeal from the decision of the com
mittee to any court of competent jurisdiction, and. that the jurisdiction of the court, time of filing petition and answer procedure and appeal shall in all things and as far as applicable be as provided for contested election cases under Section 27 of this Act, except that the Executive Committee whose ruling is complained of shall be made party defendant and a certified copy of the petition served on the chairman, and the petition so presented an'd served shall set forth the error, whether of fact or law, complained of.”
The failure of the plaintiff in this case to appeal to the executive committee is fatal for the reason that it is only after resort has been had to the executive committee that the courts have any jurisdiction in the premises. It may be said that resort to the executive committee is frequently useless, as they are often controlled by individuals hostile to the contestant because affiliated with opposing factions or for other reasons and, if that be true, it is a situation beyond the control of the courts. It is the result of the imperfection of human institutions or the failure of the Legislature to circumvent partisanship in the committee, but, whatever nlay be the cause, it is in no sense a matter which the courts have any authority to correct. State v. McDermott, 155 La. 211, 99 So. 41.
Our conclusion is that the plaintiff’s case must fail.
For the reasons assigned it is ordered that the alternative writ of certiorari heretofore issued be and it is hereby made peremptory and, accordingly, it is ordered that the judgment of the Seventeenth judicial district court, under review, be annulled, avoided, and reversed, and it is now ordered that the exception of jurisdiction ratione materias filed by the defendants herein be and the same is maintained and plaihtiff’s case dismissed.
O’NIELL, C. J., and ROGERS and ODOM, JJ., dissent.