(100 So.) The purpose of the article is to exclude sec-, of the authentic act, or of the act under ondary evidence of the contents of such an in- private signature, duly acknowledged, that strument when it has been made the founda- the original was actually signed by the partion of a suit or defense, unless it has been ties thereto. The article contemplates, howmade to appear that there has been a com- ever, that if the proof of the execution of pliance with the conditions prescribed by the the original be made otherwise, the copy article. However, before it may be held that is admissible under the same conditions as article 2280 excludes the recorded copy of a those imposed for the admission of copies lost deed, or a copy, duly authenticated, made from the record of authentic acts and of from the copy of record, unless the loss be those under private signature, duly acadvertised in a newspaper, it is necessary to knowledged, which conditions do not include, consider article 2270 of the Civil Code, which | but rather exclude, the requirement of article relates exclusively to the admissibility of 2280 as to advertising the loss in a newssuch copies. Article 2270 provides that "When an original title, by authentic act, or by private signature duly acknowledged, has been recorded in any public office, by an officer duly authorized, either by the laws of this state, or of the United States, to make such record, the copy of such record, duly authenticated, shall be received in evidence, on proving the loss of the original, or show ing circumstances supported by the oath of the party, to render such loss probable." paper. [4] The next question for decision is whether it has been proven that plaintiffs signed the deed. The original instrument, judging from the copy offered, purports to have been signed by them in person. Robert White testified that plaintiffs were not present when the instrument was signed; that he signed it for himself, and also for plaintiffs. Plaintiffs testified that they were not present when the instrument was executed, and did not authorize their coheir, Robert White, to sign their This article treats of a particular phase of the admissibility of secondary evidence, names to it. On the other hand, the defendand is in the nature of an exception to the ant Charles White testified that each of the rule established by article 2280; and, being of plaintiff's was present when the deed was exsuch nature is not affected by the require-ecuted, and signed it in person. The official ment as to advertisement found in the latter article. All that article 2270 requires is that the loss of the original be proved, or that circumstances, of sufficient force to render of the loss probable, supported by the oath the party, desiring to offer the copy, be shown [3] Article 2270, however, expressly refers only to copies made from the recorded copies of authentic acts and of private acts, duly acknowledged. In this case the act was apparently intended to be an authentic one, but fell short of being such an act for the reason that the clerk of court and ex officio notary public before whom it was passed acted not only as notary, but also as one of the two subscribing witnesses. The act cannot before whom the deed was passed testified that he has no recollection of its execution, but that he is positive that he has never passed a deed, signed by one or more persons for others, unless it appeared that they had authority to sign for the others, and then, we gather from his evidence, the signatures were so attached as to show who affixed them; and he further testified that he would not have passed the deed in the form in which it appears to have been executed, unless all of those who signed, as vendors, were present and signed their own names or affixed their marks. B. H. Moore, who, properly speaking, is the only attesting witness to the act, testified that while he does not recall signing the be said to be a private one, duly acknowl- instrument as a witness, yet that he has always made it a practice not to attest an edged, for the reason that it was not ac- instrument unless he saw the parties sign knowledged before the officer mentioned, or it or affix their marks to it, or at least, unless before some other officer, authorized to take they acknowledged in his presence that they acknowledgments, in the presence of two wit- had done so, and that he thinks he would not nesses. Therefore the act, being neither an have signed as a witness otherwise. The recauthentic one nor a private one duly acord also discloses that, immediately after the knowledged, is a copy of the recorded copy execution of the deed, the defendant White inadmissible under article 2270, although it appears that it has been proved that plaintiffs took actual possession of the property, lived signed the original, merely because article upon it, and cultivated it, and that, for 2270 refers expressly to copies of the record nearly 14 years thereafter, although all of the of only authentic acts and of acts under plaintiffs lived in the vicinity of the property private signature, duly acknowledged? We during a part of that time, and most of them conclude that the copy offered is not inadmis- during all of it, not one of them entered a sible under the article, if such proof has been protest against the taking of possession of it made. The only reason why the article is by defendant, or claimed any revenues thereworded as it is, is to make it clear that the from, or asserted any right of ownership to copies expressly referred to therein are ad- any part of the property, and did not assert missible without further proof than the proof such ownership until shortly prior to the afforded by the copies made from the record | institution of this suit, and not until defend ant had granted an oil lease on the propererty, and an expectation had arisen that oil might be discovered in and under it. shall be test of appellate jurisdiction in primary election contests, was authorized under Const. 1921, art. 8, § 12, requiring the Legislature to provide for trial and determination of election contests. had no right to vote inadmissible in rebuttal. In primary election contest evidence that certain persons were without right to vote was not proper rebuttal evidence. 5. Elections 154(9%)-Evidence that voters were disqualified inadmissible where right to vote not attacked in pleadings. In our view it was extremely unlikely that an officer of the law intrusted with the power of passing deeds and of receiving acknowledg- 4. Elections 154(10)-Evidence that voters ments would, in the discharge of the duties of his office, so prepare an instrument, and permit it to be signed in such a manner, as to make it appear that the parties to it were present and signed it in person, when, as a matter of fact, such was not the case, We are, moreover, of the opinion that the conduct of plaintiffs in relation to the property, during the long period mentioned, when they were aware that defendant was in possession of it, and enjoying its fruits and revenues, is utterly inconsistent with any other theory than the one that plaintiffs signed the deed. Hence, in view of the evidence or defendant that all the plaintiffs were present and signed the deed, and in view of the foregoing observations, we have no hesitancy in holding that plaintiffs signed the instrument and that the copy of the recorded copy thereof offered in evidence was correctly held to be admissible by our brother of the lower court. The finding that plaintiffs signed the deed defeats their demand, there being no question that the copy offered in evidence shows that the original act was sufficient to convey to defendant plaintiffs' interest in the property. The judgment appealed from is therefore affirmed, plaintiffs to pay the costs. (156 La.) No. 26534. PEREZ v. COGNEVICH. Where, in primary election contest, a party has not attacked the right of certain persons to vote, in his pleadings, evidence that they are disqualified is inadmissible, in view of Act No. 97 of 1922, § 27. 6. Elections 113-Registration of voters not subject to collateral attack in primary election contest. Since Const. 1921, art. 8, § 5, and Act No. 122 of 1921, §§ 8, 9, 11, 12, and 13, provide direct proceedings to purge registration rolls, that voters at primary election had no right to vote because not legally registered or not entitled to registration, could not be raised by collateral attack on registration in primary election contest. 7. Elections 154 (10)-Burden of showing that ballots have not been tampered with in election contest stated. Burden is on one seeking a recount, or who desires to offer ballots in evidence in an election contest to show that they have not been tampered with, and that they have not been placed in position to afford opportunity for tampering with them. 8. Elections 126(5)-Certificate of Secretary of State on ballots essential. By the direct provisions of Act 97 of 1922, (Supreme Court of Louisiana. April 28, 1924.) § 16, certificate of Secretary of State on ballots (Syllabus by Editorial Staff.) 1. Courts 224 (10)-Supreme Court has Jurisdiction of primary election contest for nomination to office of parish assessor. Since, under Act No. 97 of 1922, § 27, test of appellate jurisdiction in contested primary election cases is to be determined by emoluments of office, Supreme Court has jurisdiction of contest for nomination to office of parish assessor, emoluments of which are alleged to be in excess of $2,000. 2. Constitutional law 56-When Legislature may add to jurisdiction of Supreme Court and decrease jurisdiction of courts of appeal stated. is essential to their validity, and ballots not containing such certificate should not be counted, though omission is due to oversight in printing. Legislature can neither add to jurisdiction. Elections 126(5)-Dots on ballots by of Supreme Court nor decrease jurisdiction of defects in paper not identification marks. courts of appeal, where jurisdiction is fixed Dots on ballots caused by defects in paper by Constitution, except when such instrument held not marks of identification. contains provision authorizing such legislation. 12. Elections 3. Courts 203-Statute prescribing test of jurisdiction held constitutional. Enactment of Act No. 97 of 1922, § 27, providing that emoluments of office for full term 126(5)—Irregular cross-mark held not to invalidate ballot. Irregular cross-marks on primary election ballot held not to invalidate it, cross-mark not being required to be perfect. Erasures on primary election ballot, which might serve as identification, held to invalidate ballot. 14. Elections 126(5)-Failure of precinct register to show party affiliations held not to invalidate ballots at primary election. That precinct register did not show party affiliations of voters at primary election held not to render their votes invalid, applications for registration showing that such voters had registered as members of party holding primary, and poll lists showing that they were members of such party. Leche, J., dissenting in part. St. Paul, J., dissenting in part, but concurring in the result. Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; William H. Byrnes, Judge ad hoc. Suit by Eldredge N. Perez against Marc Cognevich, to contest a primary election. Judgment for defendant, and plaintiff appeals. Affirmed. James Wilkinson and John R. Perez, both of New Orleans, for appellant. A. Giffen Levy, of New Orleans, for appel lee. By the WHOLE COURT. OVERTON, J. At the recent Democratic primary election, plaintiff and defendant were opposing candidates for nomination for the office of assessor in the parish of Plaquemines. When the returns were promulgated, it appeared that plaintiff had received 619 votes and defendant 631. Defendant, having, therefore, received a majority of 12 votes over plaintiff, was declared the nominee by the parish Democratic executive committee. Plaintiff then brought this suit to contest the result of the election, basing his cause of action on various grounds. De fendant filed an answer, in which he puts at issue these grounds, and in which he avers, in addition, that certain votes were cast for plaintiff that are illegal, and should be de ducted from the total vote declared by the parish Democratic executive committee to have been received by plaintiff. In his answer defendant also avers that two boxes, if not more, should be opened and recounted, and that, upon a recount of these boxes, and upon the rejection of the illegal ballots therein contained, the result will be to further increase his majority. His prayer is that plaintiff's demand be rejected. The case was promptly tried, the trial lasting approximately two weeks. The trial court found that defendant had received a majority of three votes, and, therefore, rendered judgment in his favor, recognizing him as the Democratic nominee for the office of assessor in the parish of Plaque Plaintiff has appealed from this judgDefendant has filed an answer to the appeal, in which he avers that certain votes not allowed him by the lower court should now be allowed, and that certain votes allowed his opponent by that court should be He has also filed a motion to disrejected. miss the appeal on the ground that this court is without jurisdiction. Motion to Dismiss. It is pleaded that we have no jurisdiction in this case, first, because it is not alleged that the nomination in controversy has any value; and even if it were alleged to have such value as to vest us with, jurisdiction, still, in truth and in fact, there is nothing involved but a political right, not properly appreciable in money; and that, in cases involving such rights, the appeal lies, not to this court, but to the proper court of appeal. It may be said, at the outset, that an ap peal in a case in which a political right is in contest lies to the court of appeal of the circuit in which the case arose, save where it appears that this court has been granted jurisdiction. Sections 29, 35, and 77 of article 7 of the Constitution of 1921. But this observation merely leaves us where we started, and leaves for determination, in all of its fullness, the real question to be determined; that is to say, the one whether it appears that this court has been granted jurisdiction in cases such as the one now before us. There is nothing in the present constitution (that of 1921) which vests us with jurisdiction in contested primary election cases, unless it be the provision in section 10 of article 7 of that instrument, which grants us jurisdiction in all cases in which the amount involved exceeds $2,000, exclusive of interest, or, in other words, in which the value of the thing in contest exceeds that amount. In the present case it is not alleged that the nomination in controversy is worth an amount exceeding $2,000, though it is alleged that the emoluments of the office of assessor in the parish of Plaquemines exceed $5,000. If the office itself were in contest, it could be easily held, under the constitutional provision just cited, in view of the emoluments of the office, that this court has jurisdiction, for then the value of the thing in contest would exceed the lower limit of our jurisdiction. In this case, however, it is only the nomination which is involved, and the nomination does not entitle the one receiving it to the emoluments of the office. Still, as the emoluments of the assessorship exceed $5,000, and as the nomination for that office is one by the dominant, and perhaps the only, political party in the parish of Plaquemines, and as it is unlikely, therefore, that the nominee will meet with defeat at the general election, it might be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes held that the nomination itself is worth over, $2,000, and, hence, that the appeal lies to this court. We are, however, not strongly in clined to the view that the motion to dismiss for want of jurisdiction should be decided on that basis, but rather upon a different one, which is the following: [1] Section 27 of Act 97 of 1922 provides: "That in elections held under the provisions of this act [the primary election law] all contests shall be made before the courts of the state, as herein prescribed, which are hereby fully vested with the necessary power, authority, and jurisdiction to hear, try, and determine The party cast shall have the right to appeal as in other cases, on giving bond for a sum to be fixed by the court to cover cost of all courts, the emoluments of the offices involved for the full term being hereby made the test of the appellate jurisdiction. the same. It is clear from the foregoing legislative provision that the test of the appellate jurisdiction of this court, in contested primary election cases, is to be determined by the emoluments of the office for which the nomination is made. Therefore, when the office has no emoluments, or when the emoluments are $2,000 or less for the full term, then, by reading the provision cited, in connection with the sections of the Constitution defining the jurisdiction of the Courts of Appeal, which it was the manifest intention of the Legislature should be done, it at once be comes clear that an appeal lies and is returnable to the Court of Appeal of the cirIcuit in which the case arose. On the other hand, when the emoluments of the office for which the nomination is made exceed $2,000 for the full term, then, by reading the provision quoted in connection with the section of the Constitution defining the jurisdiction of this court, it at once becomes clear that an appeal lies, and is returnable, to this court. cept Governor and Lieutenant Governor), which trials shall be by the courts of law, and at the domicile of the party defendant." The foregoing section has reference to primary elections as well as to elections by the people. It is a mandate to the Legislature to enact laws for the trial and determination of such cases in the courts of law. The section, it is true, contains no express authority authorizing the Legislature to say to what court the appeal should be taken, in the event the party cast should desire to appeal, but we think that this authority is fairly implied in the command given, and that the exercise of it is necessary in order to fully and properly execute that command. If there should be anything in the Constitution, of a general nature, which apparently stands in the way of the full and proper execution of this special mandate, such provision must be considered as yielding, for the purpose of permitting the full execution of the mandate. Taxpayers' Association v. New Orleans, 33 La. Ann. 568; Davidson v. Houston, 35 La. Ann. 493. For the foregoing reasons, we are not of the opinion that the motion to dismiss should be sustained. The Merits. [4, 5] After both plaintiff and defendant had closed in chief, the former offered evidence to show that a number of persons who cast their ballots for defendant had no right to participate in the election. The effect of this evidence was to inject into the case the right of persons to vote, whose right to do so had not been questioned in the pleadings, nor by any evidence offered up to that time. Defendant objected to this evidence chiefly upon the ground that it was not evidence in rebuttal, but the court overruled the objections. The objections should have been sustained. Plaintiff, in order to show that these persons were without right to vote in the election, if such were the case, should have alleged, in his petition, their names and the reasons why they were without right to vote therein. Section 27 of Act 97 of 1922; Thornhill v. Wear, 131 La. 479, 59 South. 909. He then should have offered this evidence in chief, and not in rebuttal. The evidence was not, in any proper sense, rebuttal evidence. [2, 3] It is argued, however, that the Legislature can neither add to the jurisdiction of this court nor decrease the jurisdiction of the courts of appeal, since the jurisdiction of those courts is fixed by the Constitution, and defendant cites, in support of his position, State v. Mayer, 117 La. 945, 42 South. 435. Such unquestionably, is the rule where the jurisdiction of the courts affected is fixed by the Constitution, except when that The votes of some of those thus brought instrument contains a provision authorizing into question were later allowed by the lowthe Legislature to enact such legislation. er court for the reason that the court was of We think that in this particular instance the opinion that the evidence thus introthe Constitution contains a clause authoriz-duced did not show that those who cast ing the enactment of the provision quoted. these ballots were without right to vote in The clause referred to is section 12 of ar- the primary. However, while defendant was ticle 8 of the Constitution of 1921, and reads not injured in some respects by the ruling as follows: made, yet, in other respects, he was, for up"The Legislature shall provide by law for on the whole he lost 7 votes by the overrulthe trial and determination of contested elec-ing of the objection, which he would not have tions of all public officers, whether state, dis- lost had the objection been sustained. The trict, judicial, parochial, municipal, or ward (ex-votes thus lost by him are those referred to (100 So.) For the foregoing reasons we conclude that the trial judge was correct in refusing to sustain the attack here considered upon the right of these persons to vote. Opening of Ballot Boxes and Recount. in the briefs as the three Dobsons, the two | Smith v. Police Jury, 125 La. 731, 51 South. Gleasons, Grob, and E. A. Schayot. The 703. trial court erred in deducting these votes from defendant's total. They should be allowed. On the other hand, plaintiff objected during the course of the trial, to evidence offered by defendant to show that Mr. and Mrs. Serpas and Will Alfonso, who cast their votes for plaintiff, had no right to vote in the election. The objection was based upon the ground that defendant had not attacked in his answer the right of these persons to vote, and hence that the evidence offered was inadmissible. The objection is well founded, and should have been sustained. As a result of the ruling, plaintiff lost the three votes mentioned. The trial court erred in deducting them from the total vote re ceived by plaintiff. They should be counted. Collateral Attack on Registration. Defendant attacked the votes of 8 persons who voted at the Ostrica poll, Third precinct, Fourth ward, on the ground that these voters resided outside of that precinct, and therefore had no right to vote in it. Defendant also attacked the vote of Anthony Jurgovich, who, he contended, lived at Olga, but who voted at Boothville, in another ward, on the ground that Jurgovich had no right to vote at the latter place. On the other hand, plaintiff attacked the vote of Emile Martin, Sr., the registrar of voters, on the ground that in registering he administered the oath required by law to himself, and hence that his registration was null. The eight voters who voted at Olga did not change their residence after they registered, nor did Jurgovich change his. Each voted at the polling place indicated in his registration papers. If these persons had no right to vote because they were not entitled to a place upon the registration rolls, or because they were not entitled to registration as voters in the precinct in which they registered as such, or because their registration did not comply with the law in other respects, the proper proceeding should have been taken to purge their names from the rolls. Both the Constitution and the enactments of the Legislature contemplate direct proceedings against a voter to strike his name from the rolls, except, of course, when it appears that the voter has died, or it appears that since his registration he has been convicted of a felony, or has been declared insane. Section 5, art. 8, Constitution of 1921; sections 8, 9, 11, 12, and 13 of Act 122 of 1921. [6] Were we to give our sanction to the attack here made, we could do so only by ignoring the methods provided by law for purging the rolls, and by permitting what is equivalent to a collateral attack upon the registration of the voters in question, which, of course, we cannot do. See Turregano v. Whittington, 132 La. 454, 61 South. 525, and Plaintiff, in his petition, demanded a recount of the ballots in certain boxes. Defendant objected to the recount on the ground that it did not appear that the clerk of court had safeguarded the ballots to an extent sufficient to exclude the hypothesis that they had been tampered with. The objection was overruled. [7] The law places the burden upon him who seeks the recount, or who desires to offer the ballots in evidence, to show that they have not been tampered with, and that they have not been placed in a position to afford an opportunity for tampering with them. Thornhill v. Wear, 131 La. 739, 60 South. 228; Koepp v. Crawford, 138 La. 852, 70 South. 858. Plaintiff, we think, has reasonably carried that burden. We may say, however, that the opening of the ballot boxto defective ballots found in them, though it es did not operate to plaintiff's benefit, due may be also said that plaintiff did not lose his case by having the boxes opened. Ballots Without the Certificate of the It was found, on opening the box from The absence of the The "That the primary election ballots used in all primary elections for United States senators, congressmen, governor, and other officers voted for throughout the entire state, or voted for in any district, parish, or ward in this state, 本 * shall be furnished by [the] Secretary of State, at the expense of the state. All said ballots shall be printed upon white paper, of uniform quality, texture, and size, and printed in black ink, and each ballot at the |