author: Egan, J. Manning, O. J.

text:
    No. 769.
    L. A. Webre vs. William Wilton.
    In. a contest for an elective office all of the relevant facts of the election will be scrutinized by the court, and'all legal evidence tending to show who was the real choice of the suffragans, or who would have been, under an honest execution of the election laws, is admissible.
    'Except when the prescription of an election-law is that a thing shall be done in a certain way, and not otherwise, it will be construed as merely directory.
    'The disregard of a merely directory provision in an election-law, will not invalidate an election held under that law, if such disregard has not admitted the votes of disqualified, nor excluded the votes of qualified voters, nor clothed the result of tho election in doubt.
    'The failure to return the result of a certain poll, within the time prescribed by law, does not of itself authorize tho rejection of the vote of that poll.
    Votes fraudulently east, and those of disqualified persons, must be rejected.
    Votes east at a place clandestinely selected by a supervisor of election, and inconveniently remote from the polling-place legally fixed, and published, must be excluded from tho count.
    'The object of all laws regulating elections is under our system to secure tho great end of carrying out tho popular will; and courts of justice will interpret them so as to secure and not to defeat that end.
    A fundamental principle of American and Louisiana law is, that it is the casting of the ballots, unimpeded by force or fraud, which determines the result of olec■tions. Tho police regulations made to secure that result are merely subsidiary to it.
    It is in the power of no officer or set of officers to substitute their own will for that of the people, and whenever it is attempted, it is the duty of the courts, when properly appealed to, not only to enter upon the inquiry, but to undo the wrong and award the right.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      Claij Knohloeh, J. 8. Billiu, and Isaiah B. Moore, for plaintiff and appellant.

      W. J. Q. Baker, for defendant.
   The opinion of the court was delivered by

Egan, J.

This is a contest for office. The plaintiff claims to have received a majority of the votes cast for the office of sheriff of the parish of Lafourche at the general election in November last, and that he was legally elected sheriff at'said election; but that, notwithstanding, his opponent, the present defendant, who was defeated at the polls, he fears and alleges will be returned elected and put in possession and enjoyment of the office and its emoluments through fraud and other ill-practices on the part of the supervisor of registration, the commissioners of election, and other officers and persons. There are numerous other allegations, and these frauds and irregularities are set out in numerous specifications, some of which are general and some more minute and particular. Among them are that the supervisor, a Republican, opposed in politics to petitioner and his party, failed to give public and general notice of the polling-places and the names of commissioners; that he failed to appoint Democratic commissioners at any of the voting-places as required by law, although professing to so intend and to have done so; that he informed the Republicans of the location of the polling-places several days before the election, and concealed them from the Democrats until twenty-four hours before the election, too late to notify the people in the country in a parish ninety miles long and many parts of which are otherwise accessible slowly and with difficulty; that he issued false and fraudulefit certificates of registration, upon which persons voted at the election; that he repeatedly promised and as often failed to strike from the registration list, when called upon to do so, the names of voters who had died, who had removed from the parish, who were convicts, minors, or otherwise not qualified'to vote; that votes were polled under the names and numbers of such dead or removed voters by other persons1 in sufficient numbers, together with the other frauds and illegalities charged, to change the count of votes to his prejudice; that the supervisor did not provide tally-sheets, sealing-wax, writing-material, etc., necessary for the use of the’commissioners at Democratic polls, and did not even send ballot-boxes to some of them; of which failure and fault he attempted to and did subsequently take advantage, to the prejudice of the petitioner; that he failed to appoint any polling-place in one of the justice’s wards, as required by law, where there were at least forty or fifty Democratic votes, of which petitioner was deprived in the election thereby; that one poll (seventeen) was not held at the place fixed by law and the supervisor, but at a place one and a half or two miles distant, in a private place, a negro quarter, remote from the public road, and without notice to the Democrats, or even to those of them residing on the plantation, or even to the proprietor; that the election at that poll, seventeen, was begun before daylight in the morning, was conducted exclusively by Republican commissioners and against the protest of the United States supervisor of registration, and of Democratic voters, who, after the election had been going on for some time, discovered by accident where it was being conducted, but refused to vote at an illegal voting-place for fear of losing their votes; that said poll seventeen as returned was exclusively Republican, and was returned and counted as such and in favor of the defendant and against the plaintiff to the number of eighty-six votes; that a large number of colored voters, who desired to vote and would have voted for petitioner and the Democratic ticket, were prevented from doing so by intimidation and fraud; that there were many other acts of fraud and illegality on the part of the supervisor, the commissioners of election,-..and other Republicans, whereby it was attempted to defeat the will: of the people and the election of the petitioner and to declare his opponent elected, whpn not so in fact; that the supervisor illegally and fraudulently rejected and refused to compile or count the votes from two polling-places (Nos. 2 and 10), at both of which the election was conducted fairly and peacefully, and at which petitioner and the Democratic ticket received a large majority of the votes polled, sufficient, if counted, to have given the return of the election in his favor and against the defendant; and, finally, that by means of the several frauds, illegalities, and ill-practices charged petitioner and the Democratic ticket generally will be illegally deprived of a majority in the count, compilation, and return of the votes of the parish of Lafourche, which, as he alleges, was, and always had been a Democratic parish, by a large majority, and was so at the late election.

It is proved that, after conference with Republican leaders, at which he was asked if he could carry the parish for the Republicans, and he replied that he would do what he could, one Ledet, a Republican, was appointed supervisor of registration in the place of Panalle, an honest colored Republican, who was called upon to resign under pretexts the falsity of which is shown. From the moment of his appointment Ledet lent himself to the fraudulent purposes of his party and those to whom he owed his appointment, and in every way possible epdeavored to prevent a fair election in the parish, .and the polling of the full Democratic vote, instead of discharging his duty under the law as a public officer.

The record is full of details of the most unblushing usurpations, frauds, deceits, and other ill-practices and illegal acts resorted to by the Republican supervisor and his associates and advisers in order to carry the parish in favor of the Republican ticket and against the Democratic ticket and the plaintiff, and to make count and compilation and return of the votes in the same way.

These things had grown so common and were habitually practiced with such immunity under the recent rule in Louisiana that they excite. no surprise in the mind of any one familiar with the history and conduct of elections in this State for the last few years. Such practices on the part of those charged with the conduct of elections has latterly been a. stepping-stone to preferment and fortune, instead of consigning their authors to a just punishment. Under pretext of preserving the purity and freedom, of elections, the whole machinery for their management had become converted into a means of defeating the popular will, instead of carrying it out, and as a means of keeping in place and power a set of corrupt men whose sole object was personal advancement by any and all means, however vile, and not the public good.

The district judge has exhibited his learning and research to show the enormity of the offenses committed by those who sought to guard •against these frauds and ill-practices and to detect and expose them when committed. The acts themselves which provoked this espionage, as he terms it, and their authors have been passed over by him in silence. They seem to have provoked from him neither censure nor remark. It may be very true, as remarked by him, that the ballot should be kept sacred and secret. That such is the general design of the law is beyond question; but, while severely censuring those citizens of standing and character (as shown by the evidence) who were'engaged in the enforced effort to prevent or expose fraud and illegal voting and practices, it seems entirely to have escaped the district judge that the means of removing from the ballot the veil of secrecy was afforded by those who, for their own purposes and in order to prevent freedom and independence in voting, had placed such marks upon their tickets and those of their political friends, and had made them so distinguishable that not only was it impossible for the ignorant and easily-intimidated colored voter to escape detection if he attempted to vote for his white Democratic friends in whose capacity and fair-dealing he had confidence, tout that the most ordinary observer could readily distinguish the character and political complexion of the ballots. Those who voted such tickets did so with full knowledge of the object, and must be considered as having given their consent to the exposure of their votes, so that by all authority no objection could attach to proof of the fact.

That an independent record of the names of voters should have been kept by the United States supervisor was simply the performance of a legal duty, and if that record could be made a check, as it was designed to be, upon corrupt officials whose habitual practice it .was to use, as in -this case, the police regulations for the conduct of elections as a means of defeating their ends, it is hardly a warrant for the severity of the censure in which it pleased the district judge to indulge in his opinion in this case.

It seems to us a. misuse of the eminent authority from which he quotes, and one against which those from whom he quotes would protest, to make them, instead of a protection to the independence of the individual voter, a means of defeating the will of the body of voters! There are not wanting among the utterances of those eminent judges and authors others to the effect that the whole object of. all laws regulating elections is, under our American system, to secure the great end of carrying out the popular will, and the fact that contests for office are provided for by law presupposes, what has always been practiced in such cases, an inquiry and the introduction of evidence as to who rightfully obtained or would have obtained at a legal, fair, and peaceful election a majority of the votes. 12 An. 239, 366; 13 An. 301; 27 An. 507. How can this be done without proving, by any legal evidence, for whom the suffragans cast their votes ?

A fundamental principle of American and Louisiana law is that it is-the casting of the votes or ballots, unimpeded by force or fraud, which determines with us the result of elections. The laws, the police regulations, which are or should be always framed to secure fair elections and1 a fair polling, count, and report of the votes, are merely subsidiary to-that end, and, while they should be observed and considered, they are of themselves of far less importance than the end to be attained. It is in the power of no officer or set of officers to substitute their own will for the votes and will of the people, and wherever this has been done it. is the duty of the courts where properly appealed to not only to enter-upon the inquiry, but to award the right and undo the wrong, and, if need be, to punish the guilty.

In Auld vs. Walton, 12 An. 139, the language of the court is: “The sovereign in this land is the people, and the ballot the expression of the* sovereign will. The audacious criminal who lays the hand of violence- (and, we may add, fraud) upon the ballot-box in effect usurps the sovereignty of the country. Whenever, therefore, a case of such attempted usurpation is presented, the tribunals charged with the jurisdiction of' contested elections should avail themselves of every legal means within their reach to ascertain whether the popular will has been expressed through the ballot-box; and, if so, what it has decreed.”

There is an essential difference between the act of voting and the police provisions to secure the evidence of the act. The principle that if the votes be deposited the object of the election is attained, and its validity can not be affected by the non-observance of the directory provisions of the law, has been often disregarded in Louisiana of late years,, as it was in this instance. But these principles are well settled in the jurisprudence of our sister States and our own, and have been recognized and announced by the courts, not only as constituted before the-war, but by our immediate predecessors in the case of Burton vs. Hicks, 27 An. 507. See 9 An. 577; 10 An. 732; 13 An. 301; 8 N. S. 67; 14 Barb. 259; Cooley’s Const. Lim. 618. The same author says, page 625: “ It is to be constantly borne in mind that the point of inquiry is the will of the-electors as manifested by their ballots.”

The various provisions oí the statute under which the election of November last was helcl, however often they have been misinterpreted or disregarded, were by their terms and declared intent simply designed to protect and keep pure the ballot and secure its legitimate results. On the subject of the conduct of elections Judge Cooley says (Const. Lim., pages 617 and 618): “Election statutes are to be tested like other statutes, but with a leaning to liberality in view of the great public purposes which they accomplish; and, except where they specially provide that a thing shall be done in the manner indicated, and not otherwise, their provisions, designed merely for the information and guidance of the officers, must be regarded as directory only; and the election will not be defeated by a failure to comply with them, provided the irregularity has not hindered any who were entitled, from exercising the right of suffrage or rendered doubtful the evidences from which the result was to he declared.” Again'the author says, page 618, referring to the leading case of People vs. Cook, 14 Barb. 259: “It was said in the same case that any irregularity in conducting an election, which does not deprive a legal voter of his vote, or admit a disqualified voter to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election.”- Of this the author says: “This rule is an eminently proper one, and it furnishes a very satisfactory test as to what is essential and what is not in election laws.” In note (1), page 618, Cooley says: “ In ex parte Heath, 3 Hill, 42, it was held that where the statute required the inspectors to certify the result of the election on the next day thereafter, or sooner, the certificate made the second day thereafter was sufficient, the statute, as to time, being directory merely.” By this we understand the time for making up and returning the votes and complying with other directory provisions of the law, and not the time at which the election shall be held.

Let us apply these principles to the facts of the case at bar:

We have already referred in general terms to the evidence of acts of omission and commission on the part of the officers of election, and, more especially, the supervisor, which in the light of his declarations and conduct before and after the election, and his evidence on the trial of this case, can not but be viewed as done with fraudulent intent to carry or declare the result of the election adversely to plaintiff and the Democratic ticket generally. He admits a white majority of at least two hundred in the parish, and there is evidence that he stated after the election that Judge Beattie was the only Republican elected in the parish. He permitted or procured another person, a political partisan, to write up his tabulated return, and then indifferently signed it, giving the election against plaintiff and the Democratic ticket.

It is proven that there was no polling-place established in the eighth justice’s ward; that there was no box or other means of holding an election at poll one, a white or Democratic poll, and that voters came and went away without voting or the opportunity to vote, although two commissioners and the United States supervisor state that they went there at five in the morning and remained till six in the evening; that the supervisor did not sign or send out the appointments of Democratic commissioners; that he promised repeatedly, and as often failed, to strike from the registry the names of dead men, persons removed from the parish, infamous by reason of conviction for crime, minors, and others not legal voters; and that a number of persons voted under these names and numbers for the Republican candidates; that others voted twice; that others voted under names and numbers not their own; that sufficient notice of the polling-places was not given to the Democrats, and was given to the Republicans; that the Democrats were refused their proper and legal representation in the appointment of commissioners of election, and that poll No. 17, at which the Republican candidates, including the defendant, got the entire vote, eighty-six in number, was removed surreptitiously, and without the knowledge of the Democrats, to a place other than that which the supervisor had appointed at their instance, and which was suitable and public, and the poll was actually opened and the election held at a place distant at least one mile from the proper one, against the protest of a few Democrats, who discovered the fact after the election had been proceeded with for a considerable length of time and many votes had been received. All these, and many other details which we can not enumerate, and the refusal to receive and count polls two and ten without sufficient legal reason, are, we think, sufficiently shown by the evidence in the record.

Returns from poll two were received but not counted, because not received within twenty-four hours after the election. There is not a particle of evidence in the record to show that the returns from this poll were other than an accurate report of the ballots cast, or that the election at that box was not perfectly peaceful and fair. On the contrary, it is shown affirmatively that it was so, and the district judge so states in his opinion. This poll gave the plaintiff 139 votes and the defendant 103, being a majority of thirty-six for plaintiff. Under the authorities cited, this box should have been, and must now be, counted, and so thought the district judge.

Poll No. 10 was held forty miles away from the court-house. The commissioners’ count (and there were here, as elsewhere, none but Republicans) was completed, according to the testimony of one of them, Hutton, of O’Sullivan, United States supervisor, and of Joseph Legarde, about eleven or twelve o’clock at night. O’Sullivan testifies that he then t;told Erustal that he must, as State commissioner, take the box to Thibodaux. He positively refused to do so, saying that he had no means of transportation. The same excuse was given by the other commissioners.” Legarde swears that “ after the votes were counted he and O’Sullivan started off; they ‘ hollowed’ at us when we got at the door to stop, that we had to bring the box. Mr. O’Sullivan answered them he would not take it unless some of the commissioners would come with him. Mr. Erustal said he had passed the night before (he was one of the commissioners) to find out where the poll ivas, and that he would not pass another night. The other commissioner, Hutton, said the same thing, and they decided to send a constable with us who was there. I offered one of them my place in the buggy with Mr. O’Sullivan, and I would stay down there. They told me they would not come.” Hutton, one of the Republican commissioners, testifies:

“ The votes were counted and the box was sealed, and the box was delivered to the constable and Mr. O’Sullivan. I delivered the box to the Republican constable (whose name he gives as Levi White) and to Mr. O’Sullivan; the reason why we commissioners did not come up is because we had no conveyance to come up; and again I say that the election went on peaceably. My signature to poll ten is genuine. Mr. Erustal also signed it in my presence. Levi White and Lindsey Ingram also signed it in my presence.”

In answer to a question by the court, this witness says: “ The statement which I signed said Mr. Webre received 171 votes; that is about correct.”-

The same witness said: “ Mr. Wilton received 44, 54, or 64 votes, I do not recollect. The vote for the other contestants was about the same, according to the best of my recollection; the Democratic majority at that box was about 125 majority.” The written returns in evidence — -the correctness of which is téstified to by the other witnesses, and which were compared with the tally-sheets and ballots by experts, appointed in the court below — show the vote at this box ten to have been, for Webre 171, for Wilton 44, being a majority for plaintiff of 127 votes,” thus showing how nearly it corresponds with the memory and statement of the Republican commissioner and witness for the defense, Hutton. The genuineness of the return and of the signatures of the three Republican commissioners to it is also shown by other witnesses; and there is no evidence that it was not correctly made. On the contrary, it is confirmed, as we have stated, by the report of experts; and it is further proved that the box was placed in the buggy of O’Sullivan at eleven or twelve o’clock at night; that they traveled all night to get to Thibodaux, only stopping a short time to get some refreshment on the way, and that the box was never out of custody of the Republican constable till they arrived and offered to deliver it to Ledet, the Bepublican supervisor, about eight or half-past eight o’clock the next morning after the election. Ledet refused to receive the box, because, as he said at the time, it was not brought in by the commissioners, and it did not contain the returns. See testimony of O’Sullivan and Legarde, the latter of whom says the box was then placed in the hands of the clerk of the court. O’Sullivan says that he suspected that something was going to be attempted at this poll, from the fact that the supervisor had not supplied writing material, wax, etc., and that about 8:30 on the morning of the election a young colored man, who said he was one of the constables for that poll, arrived with an empty box at the polling-place. Legarde swears that this second box remained there all day; and O’Sullivan swears that these suspicions and the refusal of the commissioners to carry up the box made him determine that he would see it was properly returned. His vigilance alone, no doubt, defeated the purpose of the supervisor, Ledet, and of the Bepublican commissioners, that either another box should be substituted for the true one, or that no return should be made from this strong Democratic box. The fact that they found themselves unable to make this substitution, no doubt, determined them not to return the box at all, and when Ledet found, notwithstanding all their prearrangements to the contrary, that the true returns had been brought up under the eye of O’Sullivan, the United States supervisor, he determined not to receive them. This is the most reasonable conclusion from the evidence.

We omitted to state that a witness, Schmidt, and another, Comeaux, detail a conversation among some of the Bepublican officials and others in the clerk’s office, in which apprehension was expressed that box ten would beat the Bepublicans except Beattie; and the subject of fixing the box to prevent that result was canvassed among them.

The district judge thought that this box ten should be counted, and so think we. That, as we have seen, gives the plaintiff 171 votes, and the defendant 44, a majority for plaintiff of 127 votes. By the return of the supervisor, without boxes two and ten, the defendant received a total of 1872 votes and the plaintiff of 1685; add the votes of the rejected polls, and the total vote of the defendant stands 2019, and of the plaintiff 1995, leaving a majority for the defendant upon a count of all the polls at which elections were held of twenty-four votes in the parish. In this computation we agree with the district judge also. He made a further deduction of six votes, which he thought it was proved that plaintiff had lost in ward eight, owing to no poll being opened there, and one minor and one convict, who had voted illegally, making eight. This, according to the district judge, reduced defendant’s majority to sixteen. The plaintiff claims, we think correctly, to have proved that at least thirty-six illegal and fraudulent votes were received for the Bepubliean ticket, including the defendant, at different polls. We are satisfied there were a sufficient number to change the result. This fact is proved by several respectable witnesses, by the names and numbers under which persons voted fraudulently, and is supported by the general tenor of the testimony. The district judge thought it was not shown with sufficient clearness. The tabulated statements and direct testimony of witnesses, all of which are very minute and circumstantial, afford the best evidence possible in a case of so flagrant fraud, and we think it sufficient. These were composed of one minor and one convict, some who did not live in the parish, some who had not been sufficiently long in the State to acquire the right to. vote, some who had voted twice, some who had voted under false or duplicate certificates, and some who had voted under the names and numbers of other persons, some of whom are proved to have been dead at the time. These facts taken in connection with the refusal of the supervisor to erase from the registry names which had no proper place there, and the well-known fact that at the last election there was unusual interest and effort on the part of the Democrats over the State, the fact Shown in evidence that there was a registered white or Democratic majority in the parish of about two hundred votes, and the facts shown by the testimony, among which is that of Steinberg, himself a Bepubliean, that “ the parish of Lafourche has given Democratic majorities ever since the election of April, 1868,” and that on the trial of this case the Bepubliean supervisor Ledet himself admitted while on the stand that he had said to Judge Beattie that “if Darrell, the Bepubliean candidate for Congress, did not give me (him) a place in the customhouse, I would come out and tell what advantages we Bepublicans had taken in the parish of Lafourche,” and it will be impossible in the light of the other facts of similar character for any impartial mind to arrive at any other conclusion than that either the election in the parish of Lafourche in November last was really carried by the plaintiff and for the Democratic ticket, and a false return made, or that owing to fraud and other illegalities on the part of the Bepublicans, and especially of the officers conducting the election, there was no legal and valid election.

The district judge quotes the Authority of Auld vs. Walton, 12 An. 141, for the position that the decision of the register of voters is a kind of judgment, and that the-commissioners could not go behind his certificate. Even if that be correct, upon which we express no opinion, in the next paragraph of the opinion in the same case the court says further: “We do not hold, however, the judgments of that tribunal to be without appeal. The ninth section of the act — referring to the act to provide a registry for the parish of Orleans — provides a mode of redress by suit against the register for an applicant to whom the register shall refuse a certificate. And the validity of the certificate and the sufficiency of the proof upon which it is based may in all cases be examined upon a contest of election by the tribunals seized of the jurisdiction of such contest.”

We will now consider the facts connected with the election at poll seventeen, which gave to the defendant and to the Republican ticket, as returned, eighty-six votes, and none to the Democrats, and which plaintiff claims should be altogether rejected for several reasons, among which is that it was not held at the place fixed by law and the supervisor, but that without warrant of law and with intent to defraud the plaintiff, the election was held at a place away from the public road, and distant some two miles from that fixed by law and the supervisor. The district judge testified that “two days before the election the plaintiff, Webre, showed him that at several places the polls had been fixed at the quarters, back from the public road. I insisted that they should be placed upon the public road. Mr. Ledet demurred, saying it was too late to change, and that the change would give the Democrats the advantage. I told him that was a matter of opinion in which I differed with both the Democrats and Republican managers, but that it did not look right, and that the change must and should be made. I recollect that one of the polls was fixed for the quarters or sugar-house on the Dixie plantation, belonging to my wife. I insisted that this should be changed to the warehouse on the public road. Mr. Ledet agreed to make these changes. On the Sunday preceding the election, in the afternoon, I understood that the changes had been made.”

Other witnesses testify that they were made, at least as to poll seventeen, and a list of polling-places which appears in the ward, and which the record shows was published after the change, fixes the place for holding the election at poll seventeen at the warehouse on the public road, which is proved to be at a distance of not less than one mile from the place where the election was held. It is proved thát shortly before the time for opening the polls, Mr. Billieu, United States supervisor, Mr. Gilmore, and Mr. Allen, the proprietor of the warehouse and plantation, went to the warehouse.

Allen testifies: “I was at home on»the Rienzi plantation on the day of thelast election, in November, 1876. I understood that the poll was to be held at my warehouse on the front of my plantation. I got up very early in the morning, I understood that the poll was to be opened at six o’clock, for the purpose of opening the warehouse or the pump-mill, which is just adjoining at a distance of about thirty yards from the warehouse. "When I went there there was no person there. I waited an hour, I suppose, and finally Mr. Gilmore arrived, who, I understood, was one of the commissioners to hold the election. We-two waited for a while, and Mr. Gilmore rode to the quarters to see if he could hear any thing of the election. He reported to me that they were holding the election in the quarters. I then went down and protested against the election being held there. After my protest they kept on holding the election there. I had no idea that the poll was to be held at the quarters; it was a perfect surprise to me.”

Gilmore says: “I got up very early in -the morning, before the timé for opening the poll, and went up to the place where notice of election said the poll of election was to be opened, at the warehouse of Mr. R. H. Allen. I there met Mr. Billieu, United States commissioner, I believe. We remained some time, until after the hour when the poll ought to have been opened, and I then borrowed Mr. Billieu’s horse and rode on to the other precinct, to see if any thing wrong had happened; Mr. Billieu was to remain to see if any one was going to come and open the poll. I then returned and found Mr. Billieu gone. In a short time I saw Mr. Allen, who was looking for the poll. After requesting Mr. Allen to remain there, I went toward the quarters to see if I could find Mr. Billieu. When I got there I found them holding the election in one of the houses in the quarters, and Mr. Billieu was there. I told the parties holding the election that notice was stuck up that the election was to be held at the warehouse on the public road. I objected to the poll being held there, and filed a written protest with the commissioner. He answered, ‘ that theij were instructed to hold the election in the quarters, and that they were going to hold it there.’ ”

This witness says he then left and went elsewhere and voted, but that he was put to inconvenience to do so, and that there were some Democrats who would not go to the same inconvenience to vote.

Richard Burton says: “ I am manager of the Allen plantation. The poll was located at an unusual place, remote from'the public road, where the general public, passing back and forth on the public road, could not see it. The establishment of the poll at that spot was done so clandestinely that the white Democrats residing on the plantation knew nothing of it until the day of election.”

M. W. Billieu says: “Was Democratic supervisor at poll seventeen; repaired to the warehouse, where it should have been held, in front on the public road; waited till after six o’clock, the time for opening the poll. I learned by chance that it had been opened at the quarters on the Allen plantation, about one mile from the public road. I went down there and found the poll opened, and the voting going on under the supervision of three Bepiiblican commissioners, one white and two colored. I demanded of the white commissioner what he meant by such arbitrary and unjust proceedings, and was answered that he was acting under instructions. I remonstrated with him, and that night entered a written protest against the reception of the box from that poll by the supervisor of election, Mr. Ledet.” ~

This protest is in evidence. He further states: “ Poll seventeen, as shown in the printed poster, is located at Allen’s warehouse. It is like all the other posters I saw. posted. It is a correct list as published and posted by M. A. Ledet, supervisor.”

Lawson Banks, sworn, says: “ I am a colored man, aged fifty years; I am a carpenter and wheelwright; have been working for forty years on Mr. R. H. Allen’s plantation; was on that plantation on the day of election; the poll was opened in a room in the quarters once occupied by Buck Payne; I do not know at what hour of the night the poll was opened, but lohen I was called up I went to the poll that morning and believe the poll was opened before six o’clock; I could not at that time recognize a man the length of the room, it being so dark”

William Black, sworn, says: “Am a colored man fortv years old; have been working on Mr. Allen’s place since I could as a laborer; was on the plantation the day of election; I could not tell what time I got up; I got up before day; the poll was held in a house called Buck Payne in the quarters; when I found that the box was there I could only discern daybreak; I did not know until that morning that the poll was to be held at the quarters; I thought it was going to be held at the front gate at the warehouse on the public road.”

Without proceeding further with this already lengthy review of testimony, it is enough to say that the record can make no other impression upon any impartial mind than that this poll was not only held at a private place, not the polling-place fixed or published according to law, and too remote from it to be pretended to be a substantial compliance with the law, which is intended for the convenience of all voters, but also that this change was made surreptitiously and with a view to defraud in the interest of the defendant and his political friends, and against that of the plaintiff and his political friends.

Cooley’s Const. Lim., p. 619, says: “Time and place, however, are of the substance of every election, and a failure to comply with the law in these particulars is not generally to be treated as a venial irregularity.” In a note on the same page he cites Commonwealth vs. County Commissioners, 5 Rawle, 75, to the effect that an election adjourned without warrant to another place, as well as an election held without officers required by law, is void. We are also referred by plaintiff’s counsel to an authority not in our reach at this place of session, McCrary on Elections, p. 86, No. 115, where, the counsel say it was held that “ adjourning a poll from a school-house to a vacant lot half a mile off is void,” and other cases are said to be there cited in support of this position. We regret that we have not now access to them and other authorities bearing upon this important question. The reason of the rule invoked is, however, very manifest, and the circumstances attending the removal of poll seventeen from the place fixed by law to another and unauthorized place make it the more manifest. The object of the change is proved to have been to take unlawful advantage of political adversaries; in other words, to defraud the law and prevent a fair, full, and independent expression of the popular will. Courts can not lend their aid to such a purpose. It was no more legal to hold an election where it was held, and to return it as that from poll seventeen, than it was to hold it at any other time than that fixed hy law. It is well settled that can not be done. There was no election held at poll seventeen in the parish of Lafourche on the seventh of November last. We have been unable to find, and have been referred to no case, wnere votes cast under such circumstances have been counted to determine an election. Our conclusion, therefore, is, that what purports to be the return of this poll should not be counted or considered in determining the result of the election. This, of itself, is sufficient to give to the plaintiff, Webre, a clear majority of the votes, and, when considered in connection with the evidence of illegal and fraudulent votes received by his opponent, and which mustbe,considered as not east, and with the cutting off of votes from the plaintiff to which he was entitled, and which he would have received had the election been legally and fairly conducted, makes it impossible that the defendant should retain the office in any event; and, in view of all the facts of the case, we are of opinion that, upon a fair and legal count of all the legal votes given, the plaintiff received a majority.

It is also shown by Republican testimony that there was much intimidation of the colored voters by Republicans, and none of any class by Democrats. The supervisor, Ledet, himself swore on the trial below that he did not establish any voting precinct in the eighth justice’s ward, as required by law; that the people there had always been Democrats, to his knowledge; that if deprived of their full vote, the party and the contestants had lost thirty or forty votes; that “ many of them were poor people, who had no means or facilities to travel to other polls to vote.” He says, further: “ There is a majority of whites of about two hundred in the parish, and I think if we had not taken the advantages that we have the parish might have gone Democratic.”

We think, on the whole case, that the evidence does establish that the illegal acts and matters complained of by the plaintiff did materially affect the result of the election, and that that result was not truly declared by those whose duty it was to do so.

The district judge thought the petition was not specific enough in its allegations. The evidence has supplied any defect of allegation.

We have been consoled in the protracted examination and review of this record of official corruption and deliberate fraud upon the most sacred rights of the people by the reflection that this case may serve as a warning for the future for the same people to guard more sacredly than ever the palladium of their liberties, and with that view, to provide, if need be, by law, and also by the elevation of public morals, against, the possibility of the repetition of such act^. It may also serve to teach the immediate wrong-doers and all who have sought -to profit by their acts, that there is still left a means of redress and a portal on which is written, “ Procul, 0 procul este, profani!”

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed, and that the plaintiff, L. A. Webre, be and he is hereby declared to have been duly elected sheriff of the parish of Lafourche at the general election on the seventh of November last, 1876, and that he is entitled to the fees and emoluments of said office. It is further ordered and decreed that said plaintiff, Webre, be inducted into his said office, and that the defendant and appellee pay the costs of both courts.

We append, as part of this opinion and decree a computation of the vote according to the views announced therein:

Votes.

According to the supervisor’s return defendant, Wilton, received 1872

Deduct for poll seventeen....................................86

Eor other illegal votes......................................36— 122

Leaves................................................. 1750

Add vote at poll two........................................ 103

Add vote at poll ten........................................ 44

Makes a total of........................................ 1897

According to the supervisor’s return plaintiff, Webre, received -1685

Add vote at poll two........................................ 139-

Add vote at poll ten...............................■........■.; 171

Makes total for Webre of................................ 1995-

Deduct Wilton’s vote........................................ 1897

Leaves Webre a majority of............................. 98-

without reference to six votes computed for him from ward eight by the district judge or any greater number proved.

On Application nor Behearing.

Manning, O. J.

It is rightly remarked by the counsel for the defendant, in his brief supporting the application for a rehearing: “ The great underlying principle in all contested election cases is to ascertain the will of the majority.” The problem is to secure first to the voter a free and untrammeled vote; and, secondly, a correct record and return of the vote, and that in all cases, it is incumbent on the contestant to shew that the acts of which he complains changed the result.

And we will add, if the acts of which a contestant complains do not change the result, courts will not intervene, though the conduct of the one or the other may be tainted by fraud, or vitiated by violence. Eor of what concern is it to judicial tribunals to learn what bad and illegal acts either candidate may have been guilty of, if one received so large a majority over the other that he is elected, notwithstanding the deduction from his poll of all the votes that should not have been received nor counted.

But when the case is otherwise — when the object and purpose of the officials who have the machinery of elections in charge is shown by testimony to have been, not the ascertainment of the will of the majority, but the perversion of the expression of that will; not a correct record and return of the vote, but such a return as accomplishes a predetermined result; not an untrammeled vote, but so to trammel it by cunning devices that the suffragan has been deceived or misled — then it is the highest office and the most imperative duty of a court to vindicate the purity and inviolability of the ballot, and to take care that the republic, whose corner-stone is the vote of the citizen, shall receive no harm.

Eor the fundamental principle of every representative government is that it is not the return, but the election, that entitles a party to an office. Hence it has been uniformly held that the official return of an election is only prima facie evidence of its -legality and correctness, and that a court can go behind it to ascertain the true state of the vote. If this were not so, why should the intricate forms for registration be prescribed, or why the necessity of the voter personally offering his vote, or offering it at all, if a power rested anywhere to disregard every thing that had been done at the ballot-box, and elect at the returning-board. The act of casting a vote is not to the citizen an empty form. It is the lever by which the majority raises itself to the summit of the government, and there controls, orders, executes.

Ledet, as supervisor of registration for Lafourche parish, made return of the election, and impeached the truth of his return by his testimony on the trial. We are reminded, in the brief for the rehearing, of Lord Mansfield’s declaration, that “ it is of consequence to mankind that no man shall hang out false colors to deceive them by first affixing his signature to a paper, and afterward giving his testimony to invalidate it.”

But that great jurist would not have felt himself precluded, by the enunciation of this wise maxim, from receiving the testimony of a criminal who had become the State’s witness against his fellows. And in a civil action where the public interests are involved, as in a contested election suit, more than the interests of the individuals who are parties thereto, it is no infringement of that principle to hear from him who hung out the false colors the story of the manner in which they were fashioned, and his intent in displaying them.

Nor is it Ledet alone who details the circumstances preceding and attending this election. Other witnesses, who are reputable citizens, inform us that when notice was given of the election that was to be held, no indication •was made of the places where it would be held, nor was this necessary information supplied publicly until twenty-four hours before the time for opening the polls. This delay or omission might have been attributed perhaps to negligence or forgetfulness, but for the fact, of which the evidence leaves no room for doubt, that information of the location of the polling-places was early given to one of the political parties, and was withheld from the other. The record shows that on the sixth of November the supervisor, Ledet, published for the first time what he termed “ a correct revised list of polling-places to be opened on the seventh throughout the parish for the convenience of the electors of Lafourche.”

The acts complained of by the plaintiff, and which changed the result, are reviewed in extenso in the opinion read by my brother Egan, and we are constrained to say there is too apparent to be unobserved or disregarded a design to thwart rather than promote a fair expression of the popular will by the officers who supervised this election. And this design, the first indication of which is afforded by the omission to give publicity to essential preliminaries, is developed more audaciously as the election-day approaches, and .culminates in excluding from the return two boxes which the judge of the lower court demonstrates should have been counted.

The return of the supervisor, or registrar, which excluded polls two' and ten, was thus:

supervisor’s return.

Wilton’s vote....................................................1872

Webre’s vote.....................................'...............1685-

Wilton’s majority............................................ 187

The district judge properly regarded this return as evidence only that prima facie it was correct, but admitted testimony and testified himself of matters, the object and effect of which was to impugn its correctness. He revised this official return, counted the votes of the two rejected polls, and also counted six votes for Webre which were not cast for him, but which the judge believed from the evidence would have been cast for him, if the voters had not been prevented from voting. He also deducted two votes from Wilton which he thought were improperly received.

DISTRICT JUDGE’S COUNT.

Wilton’s vote by supervisor’s return............................ 1872

Wilton’s vote at poll two....................................... 103

Wilton’s vote at poll ten........................................

2019

Deduct votes.................................................. 2

2017

Webre’s vote by supervisor’s return........................1685

Webre’s vote at poll two................................... 139

Webre’s vote at poll ten.................................... 171

Add votes he would have received.....................;____ -6 — 2001

Wilton’s majority.......................................... 16

We do not count for Webre any vote that was not actually cast for him, nor do we reject any vote for Wilton that was'cast for him, except poll seventeen, and thirty-six votes which are part of a larger number that Webre alleged were improperly received. The lists, made part of his petition, comprised one hundred and nine names, of whom eleven voted on dead men’s papers, eight were convicts, four were persons who had removed from the parish, twenty-three voted twice on that day, and sixty-three voted on fraudulent certificates. The proof satisfied the lower court that two of this number should be rejected. It satisfies us that thirty-six of them should certainly be rejected.

THE CORRECT COUNT.

Webre’s vote per supervisor’s return............................ 1685

Webre’s vote at poll two....................................... 139‘

Webre’s vote at poll ten........................................ 171

1995

Wilton’s vote per supervisor’s return.......................1872

Wilton’s vote at poll two................................... 103

Wilton’s vote at poll ten................................... '4A

2019

Deduct poll seventeen..................................86

Deduct fraudulent votes...............................36— 122 — 1897

Webre’s majority.......................................... 98

The counsel for the defendant urges strenuously for a rehearing upon the erroneous rejection of poll seventeen. If we should concede to the defendant all the votes at that poll, and follow the example of the court a qua in counting those votes for Webre that he would have received at ward eight if an election had been held there, it would not change the result. The court below counted for Webre six votes, as if they had been given him at that poll, though in fact no poll was opened there. But if we are to take that poll into account at all, the evidence establishes a larger number. One set of witnesses say that Webre would have received forty or fifty votes at that poll if it had been opened. The other set say he would have received thirty or forty votes if it had been opened. Give him the smallest number, and count poll seventeen for his adversary:

Webre’s vote ut supra........................................... 1995

Add votes for box eight......................................... 30

2025

Wilton’s vote ut supra......................................1897

Add poll seventeen......................................... 86' - 1983

Webre’s majority........................................... 42

A careful review of our first opinion, and a re-examination of the record, leave upon our minds no doubt of the correctness of our former decree.

Rehearing refused.


source: Caselaw Access Project

author: Manning, G. J.

license: Public Domain

text:
    No. 763.
    W. E. Wamsley vs. J. A. Hunter et al.
    Judgment can not be had on a debt not yet due and exigible.
    A vendor who has guaranteed a good title to the property he has sold, can not collect the price o£ the sale from the vendee until he has made the title good.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Pierson, J.

      L. B. Watkins, for plaintiff and appellant.

      Land & Taylor and William H. Wise, for defendants.
   The opinion of the court was delivered by

Manning, G. J.

This suit is upon three notes, which represent a part of the purchase-price of the “ Wray and Boland Plantation,” and for the enforcement of the vendor’s, privilege thereon. The plaintiff was the vendor. Hunter and Yirgil A. Stewart were the vendees. The other defendant, William B. Stewart, is a surety.

The defendants excepted: First — That the petition discloses no cause of action. Second — That the notes sued on are not yet due.

First — The petition alleges the indebtedness by reason of the execution of the notes, sets forth their date, amount, and maturity, avers the existence of the vendor’s privilege, states specifically the particular land that was sold, and concludes with a proper prayer. We are unable to perceive in what particular the petition was deficient of any allegation necessary to shew a cause of action.

Second — The last maturing note was not due until the tenth of November, 1873. The others matured in 1871 and 1872 respectively. The' suit was filed in August, 1873, and service was made on the sixth of that month. The plaintiff could have omitted the last note from the suit, and prayed that the judgment should be for the two matured notes, and that the terms of sale should be for cash to the amount of those notes, and on a credit to correspond with the maturity of the third note, as they were all secured by the same mortgage. The trial did not take place .until 1876, long after the third note had matured, but that did not justify a judgment upon it, as the plaintiff failed to amend his petition after the maturity of the note.

The defendants answer that the plaintiff obligated himself in the sum of seventy-five hundred dollars to execute a good title to them of the land, for the price of which these notes were given, and that he never complied with that obligation, and can not do it, because his vendors were not paid their price, and these vendors can foreclose their mortgage upon the land. In two supplemental answers they recite the commencement and prosecution of proceedings by the hypothecary creditors of plaintiff against the land, and allege the danger and almost certainty of eviction, and pray that if judgment be rendered against them for the amount of the notes, execution be stayed until the plaintiff shall comply with his obligation to give them a good title, or shall give security against the injury consequent upon their eviction from the land. They also allege that the sale made by the plaintiff to them is liable to dissolution, and pray that the sale be rescinded, and they be restored to the condition they were in when it was made.

There was never any sale by plaintiff to defendants of the Wray and Boland tract of land except that which resulted from the promise or engagement to sell contained in the bond, and his inability to perfect the title is now beyond dispute. The land was eventually sold under the mortgage given by plaintiff to his vendor, and the defendants were evicted. The plaintiff is dead, and his estate is insolvent. There was judgment in favor of the administrator of the plaintiff for the amount of the three notes and interest, but execution was perpetually stayed unless the plaintiff’s representative shall execute a good title to the defendants.

We think the defendants are entitled to judgment in their favor upon the moneyed demand, and to a reservation of their right to pursue the plaintiff’s succession for such damages as they have suffered by non-fulfillment of the obligation of his bond. Therefore

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the defendants have judgment against the plaintiff’s administrator upon the notes, disallowing and rejecting the same, and that their right to a future action for damages for non-fulfillment of the decedent’s bond is reserved; the plaintiff and appellee to pay costs of both courts.


author: Euan, J. DeBlanc, J.

text:
    No. 761.
    John H. Sheen et al. vs. Robert Stothart et al.
    The municipal authority ol a town has a right to remove, or cause to be removed. any obstruction oi the public streets.
    Mere non-usage by the public of the soil forming part of a public street, will not prescribe against the right of the municipal corporation, and the public, to resume its use, and clear it of obstructions.
    The dedication of property to public use may be established by any evidence which shows the intent of its owner to so dedicate it.
    Whoever buys real estate within corporate limits, with reference to a certain plan which sets forth the public streets of a town, is estopped from denying the servitude imposed by those streets.
    Damages can only be allowed by the decree dissolving an injunction, when the judgment which has boon enjoined is for money.
    APPEAL from the Seventeenth Judicial District Court, parish of Rod River. Pierson, J.

      J. F. Pierson, for plaintiffs and appellees.

      L. B. Watkins, for defendants.
   The opinion of the court was delivered by

Euan, J.

The plaintiffs, claiming to bo owners of certain lands in the town of Coushatta, sue the defendants for damages for throwing down their fences, and also enjoin them against further and apprehended repetition of the acts complained of. All of the parties were at the time residents of the town; one of them town marshal, and the other two defendants property-holders as well as residents. The defense is, that plaintiffs were unlawfully obstructing streets and the use of streets necessary and useful to the public and to the defendants and their property, and that the removal had been ordered by the town authorities and was done in accordance with an ordinance so directing, which likewise made it highly penal for any one to obstruct or stop any of the streets of the town ; that it was competent for the town authorities to direct and their marshal to carry out the removal of obstructions in the streets, and for that purpose to employ or obtain assistance, is too well settled and too necessary an exercise of the ordinary police powers of municipal government to be now questioned. 3 An. 563; 11 M. 620; 2 N. S. 317; 3 N. S. 140; same 293. To do so, therefore, is not to commit trespass or to authorize money demand of damages, unless the power is exercised in such violent manner and with such other acts, not here alleged, as would of themselves give rise to an action. Even the proprietor of the soil subject to the public use could not complain of its being kept for that purpose, and such complaint would be clamnum absque injuria. 13 L. 111; 3 L. 563.

Every inhabitant of a town, and even the general public, is interested In keeping open and unobstructed to public use its streets and highways. Property owners are especially interested in so doing, and in .procuring the enforcement of any ordinances provided for that purpose. In Daublin vs. Mayor of New Orleans, 1 M. 187, Judge Martin said: .Streets are “ hors du commerce;” they are the property of no one, not even of the corporation. “ The use of them belongs to the whole world, and that by removing obstructions from them no possession was taken.” He also maintained the right of the city authorities to pass ordinances for that purpose. In that case the plaintiff was renting a house which partially obstructed a street and the authorities sued him and had it pulled down and removed. This right has been too often exercised since to be now questioned. 4 An. 73; 20 An. 226; 3 An. 230; 22 An. 526. It is also well settled that once a dedication to public use has taken place, no silence or length of time or of non-user can deprive a public corporation of its power over public places. See same authorities, and 2 Dillon 531.

Possession can not be pleaded against a public right, unless it has been immemorial. 3 N. S. 293. No person, not even the owner of tha adjacent soil, and who may have a reversionary interest, has a right to obstruct a highway or public road or street. Such obstruction is a public nuisance, and may lawfully be removed or destroyed by the municipal authorities. 3 La. 563; 11 An. 620; 2 N. S. 317; 3 N. S. 140; same, 293.

Let us apply these well recognized principles to the facts of this case.

The town of Coushatta is regularly incorporated, with a mayor and ■council. It was laid off and properly sold and acquired according to a map made by one Armistead, parish surveyor, under authority of the police jury of the parish, in anticipation of the incorporation of the town. This map is deposited in the recorder’s office, and is, and has .been, ever since, recognized by the authorities and inhabitants as the official map of the town, which is the parish seat of Bed Biver parish.. The plaintiffs have both bought and sold property according to this map,, upon which appear the regular designation of lots and streets by name,, as well as direction and dimensions, and the town has been built accordingly.

The property of plaintiffs was acquired from one Hammett, on the-eighteenth of January, 1876, and is described as being in and near the-town of Ooushatta, and as comprising that portion of a certain designated tract east of Bed river, “ except the lots sold by W. W. Armistead, former tutor of the minor heirs of said Cowden, deceased, as of record and on file in the recorder’s office of said parish and State, and being-the same land purchased by said Hammett from T. B. Armistead, tutor,, by notarial act passed before D. H. Hayes, notary public, on the seventh day of January, 1876, which latter title contains the same exceptions and references to former sales of lots by W. W. Armistead, former tutor. Several of these sales appear in the recdrd, and refer directly to the Armistead map, and to the streets upon which they front by name. Among them are titles to lots purchased by two of these defendants, Gohagen and Brown, both of whose properties are in close proximity to that purchased subsequently by the plaintiffs, and the value of which,, as well as the convenience of use, we think it is manifest from the evidence, will be materially impaired by the fact that, a few days after their purchase, the plaintiffs inclosed the whole of the land purchased by them with what their counsel calls boundary fences, and thereby obstructed the streets, the attempt to open which by the town marshal,, assisted by the other defendants, is enjoined in this suit, and made the basis of the claim for damages.

There is no question that these streets appear in the Armistead map-as extending through plaintiffs’ property, and that they had been built, upon in other portions and made use of over plaintiffs’ property before-they acquired it, and that they immediately proceeded to close these avenues by extending the fence which already inclosed a portion of the-property acquired by them. It is, however, claimed by them that a few years before, and shortly after the town was established, the whole of this land was fenced in and cultivated. This, as we have seen, had it continued even longer, could not have interfered with the right of the town authorities to open the street at any time, and it appears they were subsequently opened, voluntarily or otherwise. The destination made by the owner is equivalent to title in regard to such-servitudes as-the streets and other public places of towns and cities. C. C. 767; 18 An. 660; 21 An. 244 No deed or act of conveyance is necessary. Same authorities. Long silence of owners and use by the. public is evidence of dedication-The sale of lots, with reference to a plan or description upon which there-appear certain streets and avenues amounts to an immediate and irrevocable dedication of such streets and avenues to the public, and the vendees and the public generally have a right to their use to their full extent. 2 Dillon, 503; 8 R. 92; 9 An. 244; 15 An. 9. These principles were discussed and fully recognized by us in a late case decided at New Orleans of Burke vs. Wall, ante, p. 38. If, at the time of the purchase of property in a city or town, there existed in its favor an apparent right of servitude between that and other property, it continues to exist actively or passively upon or in favor of the property sold. 12 An. 108.

It is, however, argued on the part of -the plaintiffs that the defendants acquired their title from a tutor, who had no power or right to create servitudes. The evidence satisfies us that the dedication took place before either plaintiffs or defendants acquired, and if it did not, both plaintiffs and defendants acquired from the same source, and the latter first, while the plaintiffs’ acquisition was made, as we have seen, subject and with direct reference to the former sales to the defendants and other persons. It does not, therefore, lie in the mouths of plaintiffs to complain of the want of power or title in their common author to do what was done. Title in defendants was, however, not necessary.

Plaintiffs’ counsel objected and excepted to the reception of evidence of title in this, which they claim to be a possessory action. No one is claiming either title or possession from them, nor seeking to acquire any possession, but only to remove obstructions placed by them in public streets of the town, in violation of the ordinances of the town and the rights and interests of others and of the public. The rules applicable to a possessory action do not, therefore, apply. The evidence was pertinent, and bore directly upon the issues, and was properly admitted, and so, in our opinion, should have been all evidence going to show dedication or use, and the existence and character of a map of the town, and the fact that sales had been made and buildings erected and streets laid off and used according to it.

It would, indeed, have been quite immaterial if the particular streets, the right to close or prevent the use of which is claimed on one side and denied on the other, had never before been used. If they appeared upon the plan of the town, and extending over the property in question, they might have been opened to their full limit at any time, and neither the former proprietor nor plaintiffs could have objected, and especially not the latter, who were themselves aware of the existence of the plan or map of Armistead, as one of them testified, and as is shown sufficiently by their residence in and acquisition and sale of property in the town.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; that the demand of plaintiffs be rejected with costs of both courts, and that the defendants recover against them, and their surety on the injunction bond, G-. W. Carlton, in sólido, two hundred dollars damages as attorney’s fees.

Plaintiffs and defendants have applied for a rehearing of this cause. Their application is granted.

On Rehearing.

The opinion of the court was delivered by

DeBlanc, J.

We have considered with care the elaborate and plausible printed argument submitted by plaintiffs’ counsel in support of his application, and we have again examined, with the attention which should be expected from every court, and more particularly from one of last resort, the pleadings, the evidence, the original briefs, and the authorities in this case, and we remain convinced that, except on one point, our first decision conforms to the pleadings, the evidence, the law, and our jurisprudence.

One of the reasons urged by plaintiffs’.counsel to obtain a rehearing is that “ damages can be allowed, in the decree dissolving an injunction, in only those cases in which the execution of a money judgment has been suspended by the writ.” In this, according to our jurisprudence, he is right.

Were we called upon to establish a precedent, we would look in vain in the Code of Practice for a single provision postponing, as between the parties to the suit, a demand so germane, so connected with, and so eminently incidental to the main action.

As to the sureties on such bonds, the recourse against them should, we admit, be by a direct action on their obligations; for, so far as they are concerned, the action on the bond is independent from that brought by plaintiffs, but, as to the principals, the demand for damages against them, whenever and howsoever made, has but one character, one name; it is a reconventional demand, and it might, it seems, be urged and passed upon in the suit from which it springs. C. P. 375.

However, an adverse construction has been sanctioned by a long list of decisions — perhaps disputable — but no longer disputed, and we are not inclined to now change a precedent which, for so many years, has stood in our reports as a guide to the bar, the bench, and litigants.

It is therefore ordered and adjudged that defendants’ claim for damages be and the same is hereby disallowed, as in case of nonsuit, and their action on the injunction bond specially reserved. It is further ordered that, as above amended, and in all other respects, our former decree remain undisturbed.


author: Egan, J.

text:
    No. 748.
    J. H. Stevens vs. J. L. Helpman.
    An unfair preference given by an insolvent to. one creditor, and his misrepresentations to his creditors, intentionally made to lull them into a deceptive sense of security, will justify them in attaching h'is property.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      N. C. Blanchard, for plaintiff and appellant.

      J. L. Hargrove, for defendant.
   The opinion of the court was delivered by

Egan, J.

Plaintiff sued the "defendant, a small shop-keeper in the city of Shreveport, upon accounts for merchandise sold. He at the same time sued out an attachment and had seized a small stock of goods. The grounds set up for attachment are those embraced in the fourth and fifth clauses of article 240 of the Code of Practice. There was judgment for plaintiff for the amount of his demand and dissolving the attachment. Prom this he has appealed.

The facts are that plaintiff and Eoos and Dillon, all merchants of Shreveport, had supplied the defendant with goods for his small establishment; that he had been at first tolerably prompt in paying for them, but, falling behind, was pressed for payment. On the fifteenth of January, 1877, being indebted to plaintiff and several other persons and being, it appears, insolvent, he presented to the district judge a petition and schedule, praying to be allowed to make a cessio bonorum under the insolvent laws of the State. Without obtaining or waiting for any order of the judge, he at the same time transferred what he said was all his property subject to seizure, consisting of the small stock of goods in his store, to one Heffner, ostensibly and in terms to be administered and disposed of for the common benefit and account of his creditors. Eoos and Dillon immediately transferred their accounts to the plaintiff, Stevens, as he says, to save costs, and with an agreement to pay so much of amounts received, and-he, on the eighteenth of January, sued out this attachment upon his own account and those thus transferred.

The store of defendant was closed, and he had apparently stopped business at the time. He had previously represented to the plaintiff and Dillon that the reason of his being slow to pay was that he had been spending money to improve a farm which he professed to have. On the trial he swore that this farm consisted of forty acres of land entered under the United States homestead law, and to be paid for in five years, only one of which had expired; that the only improvement was the clearing of one acre of ground by a man whom defendant had hired for that purpose, and that he had expended not more than twenty-five dollars on the place, had never lived upon it, and the title was then in litigation between him and one Herold. This, then, was clearly a misrepresentation, designed and calculated to deceive and lull Ms creditors into a false sense of security. His title was at best but inchoate, the amount expended inconsiderable, and the circumstances detailed indicate a purpose on his part to defraud the Government, as one of the conditions of such entries is occupation of the land. Under the circumstances this land was no basis of credit, though attempted to be used as such.

Defendant’s wife owned, before these debts were contracted, a lot, upon which she made improvements with money earned by her as dressmaker since the debts were incurred. She is not' separate in property, but advertises and conducts business in her own name and buys and sells in her business the same way, of which plaintiff complains, we think, without cause.

The defendant put part of his stock in a small establishment kept by his brother-in-law, Koach, in Mugginsville, a suburb of Shreveport, and some time in December, before this attachment, sold the goods to his wife’s sister, Mrs. Koach, as he says, in payment of a debt of one hundred or one hundred and fifty dollars, which he owed her for borrowed money, upon which he claimed still to owe a small balance of fourteen dollars. These goods, so used, were in all probability some of those purchased from plaintiff, Boos, and Dillon.

While defendant may have been to some extent misled by the attorney who found the statute in the books and supposed a cessio bonorum under the insolvent laws of the State might be made without reference to the existence and operation of the United States bankrupt act, it is nevertheless evident from the circumstances detailed that the object of the defendant was, so far as possible, the obstruction and avoidance of the pursuit of his creditors and of the payment of his just debts.

While attended with this novel feature of the so-called assignment, never accepted nor consented to by his creditors, who appear not to have been consulted in the matter, we can not look upon this otherwise than as another of those too frequent cases of an attempt on the part of small tradesmen to defraud their creditors. That an unfair preference was given by defendant to one of Ms creditors, his sister-in-law, under suspicious circumstances, is clearly shown. We think the attachment was warranted and should have been maintained.

We can not give our sanction to the dishonesty attempted to be practiced by the defendant and which has become latterly far too common. So far as it is in the power of the courts to do so it should be stopped.

After the attachment several other non-resident creditors intervened by way of opposition, claiming their right to be paid ratably out of the proceeds of the property attached, upon the ground of the insolvency of the debtor and that this was all his property. Their oppositions were dismissed in the court below, and they have not appealed. It is therefore unnecessary to consider their claims.

It is therefore ordered, adjudged, and decreed that the judgment of the court below dissolving plaintiff’s attachment be annulled, avoided, and reversed; that the attachment be and it is hereby reinstated; that the plaintiff’s privilege as attaching creditor be recognized and enforced by the sale of the property attached; that the judgment of the court below be in all other respects affirmed; and that plaintiff recover against the defendant the costs of appeal as well as of the court below, including those of attachment.


author: Manning, C. J.

text:
    No. 711.
    State ex rel. T. P. Farrar vs. Henry A. Garrett.
    The title of a law, repealing certain sections of the Revised Statutes of 187o, adeauately expresses the object of the law, when it designates the numbers o£ the sections repealed.
    The power to fill the office of district attorney pro tempore vests in the Governor, by virtue of the general law authorizing him. to fill vacancies in office.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      J. Tyson Lane, for relator and appellee.

      Seale & Morrison, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

This is a contest for office under the intrusion act.

The relator was appointed district attorney pro tempore for Tensas parish by Governor Nicholls, and the appointment was confirmed by the Senate on the thirtieth of January, 1877. He was commissioned on the following day, and qualified on fifth or sixth of February.

The respondent was elected to that office by the police jury of Tensas parish on December 21,1876, and 'qualified under that election on the same day. On third of January, 1877, he was appointed to the same office by W. P. Kellogg, then acting as Governor. His appointment was not confirmed by the Senate. He qualified under this appointment on sixth of February, 1877.

The respondent’s title under this appointment is manifestly bad. We take judicial cognizance of the sittings of the General Assembly, and therefore we know that the Senate was in session on the third of January, 1877. There is neither proof nor pretense, that the appointment of respondent was submitted to the Senate, or if submitted, that it was confirmed. The Senate not being in recess at the.time of respondent’s appointment, it was of no’ effect until it was confirmed by that body. Moreover the relator shews by the Senate’s'journals that he was confirmed on thirtieth of January, 1877.

Another question, however, lies behind this, which relates to the mode of filling this office, and since the respondent sets up an election by the police jury,as his title, against the relator’s appointment by the Governor, it is necessary to examine which is the proper authority to confer the office.

In 1868 the office in question was created, and the provisions of the law of that year are incorporated in the Revised Statutes of 1870 in sections 1178 — 1189, inclusive. In 1874 there was passed an act to repeal sections 1178,1179, 2760, and 2761 of these statutes, and for other purposes. Acts 1874, p. 81. These four sections confer the power of appointment of district attorneys pro tempore upon the police juries.

The constitutionality of that act is attacked, because its object is not expressed in its title, .inasmuch as other of its sections provide for the appointment of these officers by the Governor. One of its objects is to-repeal certain sections of the Revised Statutes of 1870, as articles of the Oivil Code and the Code of Practice have been repeatedly repealed or modified by reference to their numbers alone, and that object is sufficiently expressed in the title of this repealing act. The remaining part of the description, “ and for other purposes,” is too vague, and affords no indication of the object of the law, and therefore those clauses of the law of 1874 which confer upon the Governor the appointment of these officers is void.

The office of district attorney pro tempore remains, as created by sections 1180 — 1189, inclusive, of our Revised Statutes of 1870, but the mode of filling that office prescribed in sections 1178 and 1179, no longer exists, since these two sections are repealed. The transfer to the Governor of the authority to appoint, made in section two of the act of 1874, is without effect, since that part of that law is void. But the Governor derives authority to appoint from a general law which declares that whenever a vacancy in any office occurs, either from death, resignation, or from any cause whatever, it shall be filled by the Governor by and with the advice and consent of the Senate. Rev. Stat., 1870, section 1677.

There was a vacancy in the office of district attorney pro tempore of Tensas parish at- the time Governor Nicholls appointed the relator. The terms of these officers are coterminous with district attorneys, and expired after the election of November, 1876. In January, 1877, this vacancy was filled in Tensas parish by the appointment of the relator, who is therefore the rightful occupant of the office. The lower court so held, and

It is ordered, adjudged, and decreed that the judgment of the lower court is affirmed with costs.


text:
    No. 717.
    Betty A. Thornhill et al. vs. Edmund Burthe.
    The validity of a mortgage will not be affected by an error in the number of the “ range” in which the property covered by the mortgage is situated, if the property is otherwise described in the mortgage with such certainty as to clearly identify it.
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne. ' Trimble, J.

      George & Taylor, for plaintiffs and appellants.

      J. G. Egan and J. 8. Young, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

Thomas H. Brown sold a tract of land in Claiborne Xiarish to J. A. Chaleson on the twenty-ninth of January, 1866, and retained a special mortgage upon it to secure the price. There is nothing in this badly-prepared transcript to shew that this deed was ever recorded. Appended to it is the statement by B. D. Harrison, deputy recorder, that one of the witnesses to the deed had appeared, before him, and made oath to its execution, which statement is dated January thirtieth, 1866, but there is no certificate that it had been recorded. All the parties to this suit, however, and their counsel, treat it as recorded, and we shall follow their example.

On the twentieth of December, of same year, Chaleson exeeute’d other notes in lieu of those recited in the act of sale, and gave a special mortgage upon the same land to secure them, which was recorded on the eighteenth day of February, 1867.

Brown sold these notes to one Bryant on March 6,1867, who sold them to P. J. Pavy & Co., on March 24,1871, who in their turn sold them to the defendant on the twenty-sixth of May of same year, and he instituted suit upon them, and on the third of May, 1873, judgment was rendered in his favor against Chaleson for their amount, subject to specified credits, and the mortgage, of date December 20, 1866, and recorded February 18,1867, was recognized.

Previous to this, viz.: on November 1,1871, the plaintiffs had obtained a judgment against Chaleson, whioh they recorded April 26,1873.

Execution issued upon defendant’s judgment for his moneyed demand and for the enforcement of the mortgage which that judgment had recognized, and the land was sold by the sheriff and bought by the defendant on sixteenth of November, 1874.

The plaintiffs institute this hypothecary action to compel the defendant to pay their judgment, or surrender the land to its satisfaction, and they base their demand upon the fact that there was a mis-description of the land in defendant’s mortgage, the number of the “ range ” being different from the proper one, and further, upon the alleged payment of the notes upon which defendant had sued, before the institution of the suit.

Neither ground is tenable. The land is described by numbers of sections, township, and range, and correctly of each except the last, and also by the number of acres, and the further recital is made that the notes secured by the mortgage represent the original purchase-price of the land bought by Chaleson from Brown, and the act of sale yet further designates the land by reference to the title of Brown from his vendor, the date of which is giver^. There could be no mistake as to the tract of land, its location, or boundaries, and there is no pretense that the plaintiffs were misled. The description in the acts sufficiently identifies it, and perfect certitude is attained when the sheriff and recorder testify that Chaleson had no other land in that parish than the tract sold to him by Brown, mortgaged by him to Brown, and bought by Burthe, the defendant, upon the foreclosure of that mortgage. If the description of a tract of land in an act of mortgage informs the public what property is covered by it, without stating the township or other divisions, it will be sufficient (Consol. Asso. Planters vs. Mason, 24 Annual, 518), as, for example, where it is described as being on a particular river in a named parish, adjoining named proprietors (Ells vs. Sims, 2 Annual, 251), or the bayou upon which it is situated is named with the parish, the number of acres it contains, and reference is made to the conveyance by which the mortgageor acquired it. Baker vs. Bank, 2 Annual, 371; Bank vs. Barrow, 21 Annual, 396. It has been said that a distinction may well be made between urban and rural estates in the minuteness and particularity of detail requisite for a proper and sufficient description of them, a greater accuracy being required for the former than the latter. Bank vs. Denham, 7 Rob. 39. And if a part of the description would mislead, it must be read with and be controlled by other parts which explain it. Marcotte vs. Coco, 12 Rob. 167. The error in the number of the range in the description in defendant’s mortgage was cured by other descriptive parts thereof, which left no doubt of the' particular tract that was intended to be mortgaged. The mortgage of plaintiffs was judicial. The inscription of their judgment affected no land of Chaleson except that situated in Claiborne parish. The only land he had in that parish was bought from Brown, and was subject to the mortgage of defendant, which he had acquired by mesne conveyances from Brown, and which secured the payment of notes that represented the purchase-price of the land.

The other ground upon which plaintiffs rely is weaker than that just disposed of. It is that Pavy & Co. were the commission merchants of Chaleson, and their purchase of his notes was in reality a payment of them. On the contrary, the three sales of the notes by which the defendant eventually became their owner, were made by notarial act, with much formality and precision of style and statement, and conclusively negative any construction, such as that adopted by plaintiffs. It is not a matter of doubt upon a fact, nor is it an inference of law, or a legal presumption that we have here to deal with. The recitals in all three acts declare in explicit and unmistakable language what they were intended to be, and what they are.

The transcript of this suit is discreditable to the officer who prepared it, or had it prepared. Rule I. of this court prescribes with particularity how transcripts should be prepared. The directions to the clerks therein given can scarcely fail to be understood, and those rules are accessible to all officers of the courts. Ignorance alone does not explain or account for the preparation of this transcript. Its slovenliness can only be accounted for by negligence. The writing is not a fair and legible hand, the documents, with their superscriptions and filings, are crowded together in undistinguishable confusion, the order of succession in which the documents are placed, or rather the want of order and arrangement,, perplex us at every step in its examination, and there is no note of evidence whatever. The Rule I. provides that transcripts not prepared in accordance with the directions therein contained will be returned, and a new one ordered to be made at the expense of the clerk whose duty is to make it. It may be necessary to enforce this rule hereafter.

The judgment of the court was for the defendant, and

It is ordered, adjudged, and decreed that the judgment.of the lower court is affirmed with costs.

Mr. Justice Egan recused himself in this case.