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bottom, and after the pledge, shall contain a State, and cast in an election, might, and perforated slip with its number displayed in probably would, call for the annulling of the large numerals, which said slips shall be num-election, and the holding of another one, in bered from 1 to 1,000, as may be required. At the event the rejection of such ballots should the top of said ballot, printed in large capital letters, shall be the party designation; then change the result, for, while the requireshall follow the number of the primary district ments of the law must be maintained, yet and location of [the] polling place. Then shall the electors are entitled to ballots complying follow the name of each office, and below the with those requirements. See Hart v. Picou, name of each office, in smaller capital letters, 147 La. 1017, 86 South. 479. However, in shall follow the names of all candidates (alpha- this case, whether the five ballots under conbetically arranged, according to surname) for sideration be counted or not does not change the nomination of said office, in the order in the result. Still, they should not have been which said list of officers shall be arranged by the respective party committees. The names counted, and ought to be deducted from of all candidates shall be printed in type of plaintiff's vote. uniform size and style, and in vertical column.

Ballots Voted With Numbers Attached. Immediately following and opposite the name of each candidate, on the same line, shall be print- [9] When the box from Daisy poll was ed a square space, and all such square spaces / opened during the trial of the case it was shall be of uniform size. Spaces between the round that there were eight ballots in it that names of candidates for each office shall be uniform, and sufficient space shall separate the were cast for defendant, each of which still names of candidates for one office from the had attached to it the slip containing its names of candidates for another office, to avoid number. The law requires that the voter, confusion.

after preparing his ballot, and before cast“The ballot as above set forth * * shall ing it, shall permit one of the commissioners be prepared by the Secretary of State, who of election to detach the slip. Section 16 shall certify to it as the official ballot, on the of Act 97 of 1922. This provision is mandajack of the ballot, over his stamped signature, tory, and the casting of the ballot, with the and who sball furnish the ballot pressed and folded in uniform fold, and creased so as to dis- numbered slip attached, is fatal to the va

The trial court correctplay on the reverse or back of the ballot, when lidity of the vote. folded, the printed or script certificate of the ly refused to count these votes. Secretary of State. (Italics ours). * No primary election ballot shall be

Marked Ballots. used unless the same shall substantially comply (10, 11] When the box. from Belair was with the requirements of this act, and any bal opened, there was found in it a ballot with a lots not in accordance herewith shall be void pencil dot on it, the dot being slightly below for all purposes, and shall not be received, deposited, or counted by any commissioner or

and to the left of one of the squares on the commissioners of such primary election.

* ballot. This ballot was cast for plaintiff. [Italics ours)."

Defendant objected to its being counted on

the ground that it was a ballot marked for If it cannot be held that ballots sent out identification. The trial judge deducted the by the Secretary of State, from which the cer- ballot from the total vote received by plaintificate in question is absent, are nevertheless tiff. In our opinion, he should not have done in substantial accordance with the require- so. The dot, apparently, was put on the ments of the act, then it is clear, under the ballot accidentally, and is so small as to provisions of the act, that such ballots cannot be scarcely noticeable. This ballot should be counted. The purpose of the certificate is be counted for plaintiff. There was found in to identify the ballots as being official, and the Boothville box a ballot, voted for dethereby make it more difficult to substitute fendant, with two dots on it, appearing im. other ballots for the official ones, and in that mediately under the names of two candimanner safeguard better the purity of the dates, and another ballot was found in it, for election.

defendant, with three dots on it. In the [8] In our opinion the certificate of the Doullut box there was found a ballot, for Secretary of State, on ballots sent out by defendant, with a small dot on it, and also him, is essential to their validity, and as the another in that box for him, with two dots ballots in question did not contain this cer- on it. The dots on these ballots are caused tificate, they, therefore, should not be count- by defects in the paper on which the ballots ed. The fact that the absence of the certifi- are printed, and, therefore, are obviously cate was, in all likelihood, due to an acci- not marks of identification. The trial judge dent or to an oversight in printing the bal- was correct in counting these votes. In the lots, and may be accepted as such, does not Doullut box there was found a ballot for dejustify the counting of them, in the face of fendant said to have on it a visible erasure. the provision in the statute prohibiting the We, however, fail to see any erasure on the counting of ballots which do not substan- ballot. The mark, said to be one, is, in our tially comply with the requirements of the view, nothing more than a soiled spot, scarcestatute. However, the absence of the certifi- ly perceptible, caused possibly by a finger cate on ballots sent out by the Secretary of print made in handling the ballot. The trial

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(100 So.) judge counted this ballot for defendant. piration of the 24 hours allowed) the deThere was found in the Boothville box a cree was handed down, with the right reballot for defendant with four or five pencil served to give written reasons later. For dots on it. These dots are scarcely percepti- the purpose of convenience, we repeat here ble, and would hardly serve as marks of iden- the decree rendered, which is as follows: tification. The trial judge was correct in

“The plea to the jurisdiction of the court is counting this ballot for defendant. In the

overruled and the judgment of the lower court Pointe a la Hache box there was found a is affirmed with costs." ballot for defendant with irregular cross marks in the voting squares opposite the O’NIELL, C. J., concurs in the result, but names of the candidates for whom the voter is of the opinion that, on the question of cast his ballot, with the exception of the jurisdiction, it would suffice to say that the Foting space opposite the names of two of nomination in this case is worth more than these candidates. When the ballot is turned $2,000. sideways, these irregular cross marks re

LECHE, J. I do not believe that this case semble inverted fours.

(12) The law requires the voter to indi- is within the jurisdiction of the Supreme
cate for which of the candidates he desires Court, but I concur on the merits.
to cast his ballot by making a cross mark in ST. PAUL, J. (concurring). I concur in
the square opposite the names of such can- the decree, and also in the opinion, as far as
didates, but it does not require that the it goes; but there are some things into which
cross mark be a perfect one. See Vidrine v. the opinion does not go, and into which I
Eldred, 153 La. 779, 96 South. 566. We are think it well to enter.
of the opinion that the lower court was cor-
rect in counting this vote for defendant.

I.
[13] in the boxes opened during the course When the case was first under considera-
of the trial several ballots were found, for tion I entertained serious doubts as to the
plaintiff, with erasures

on them.

These jurisdiction of this court. It is true that the erasures are quickly seen, and are such as primary law, Act 97 of 1922, section 27, pp. might reasonably serve the purpose of marks 196, 197, declares thatof identification. The trial court was cor

"In elections held under the provisions of rect in not counting these votes. Vidrine v. this act all contests shall be made before the

courts of the state, as herein prescribed, which

are hereby fully vested with the necessary powParty Affiliation.

er, authority, and jurisdiction to hear, try, and Plaintiff attacked the votes of Henry Geb- determine the same. * The party cast hauer, Enid Gonzales, Emile Martin, Sr., [in the court of original jurisdiction) shall have and John Friedman on the ground that the the right to appeal as in other cases, precinct register failed to show their party full term being hereby made the test of the ap

Eldred, supra.

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the emoluments of the offices involved for the affiliation at the time they voted. The ap- pellate jurisdiction. plications of these voters' for registration show that they registered as members of the But, ordinarily, the Legislature cannot party holding the primary. The poll lists either give or withdraw jurisdiction from this sent to the respective precincts at which court, the jurisdiction thereof being fixed by these persons voted show that they were the Constitution itself. That jurisdiction members of that party.

does not extend to mere civil or political {14} The fact that the precinct register rights. See Ryanes v. Gleason, 112 La. 612, did not show their party affiliation, did not, 36 South. 608; Conerly v. Democratic Comin our opinion, defeat their right to vote, or mittee, 130 La. 457, 58 South. 148; State v. render their votes invalid, and the trial Lovrano, 146 La. 509, 83 South. 786, and othJudge properly so ruled.

ers therein cited. We find no error in the ruling of the trial Now the emoluments of the office herein court with respect to the vote of Joseph involved amount, for the full term, to more Bernard, or with respect to the ruling as than $2,000, so that if title to the office itself to Mr. and Mrs. Frank Hingle.

were involved there is no doubt that this Our conclusion is that defendant received court would have jurisdiction. Const. 1921, a majority of 11 votes in the primary; and art. 7, § 10, par. 3, p. 39. bence that the lower court properly rejected But the amount (matter) in dispute, in plaintiff's demand.

this case is not the title to the office, but the The law requires us to decide contested right to a party nomination for that office; election cases within 24 hours after they are and whilst the jurisdiction of this court submitted. In this case it was impossible might be maintained on the ground that the for us to decide the case within that time, title to the office itself is involved, I have and give reasons for judgment. Hence, the concluded that the jurisdiction really comes moment the case was decided in consulta- from another source, to wit, the express tion (which was immediately before the ex- grant of authority to the Legislature in ar

100 SO.-29

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ticle 8 of the Constitution of 1921, p. 74, or which hinder or nullify such power must to wit:

yield to the necessities of the situation.

Now, if appellate jurisdiction be made to "Section 12. The Legislature shall provide by law for the trial and determination of con- depend solely on the amount involved, and if tested elections of (for) all public officers, a party nomination can be said not to inwhether state, district, judicial, parochial, mu- volve the emoluments of the office (and, it nicipal, or ward (except Governor and Lieuten- might be said in some cases), then the necesant Governor), which trial shall be by the courts sary consequence thereof would be that all of law, and at the domicile of the party de contested election cases would go to the fendant."

Courts of Appeal. If that were all, it would

signify nothing, for I am satisfied that the And the opening words of section 15 (page able judges who preside in those courts are 75), to wit, “All elections by the people, except quite competent to decide them correctly. primary elections and municipal elections in But that is not all. If the provisions of the towns having a population of less than 2,500, Constitution are to be the sole guide in such etc.," show that, within the meaning of the appeals, then we have section 11 of article Constitution, the word "election” includes 7, p. 41, according to which the judgments primary elections, unless specially excepted. of the Courts of Appeal do not become ex

So that we find in section 12, aforesaid, ecutory until 30 days after an application not only express authority to provide for for rehearing has been denied, and until this "contested elections,” but a mandatory di- court has acted upon an application for a rection to do so. That is to say, the Legis- writ of review if made within said 30 days; lature is commanded to provide for the trial which delays do not begin to run until no of contested primary elections, which con- tice be given in accordance with the rules tests shall be before the courts.

adopted by said Court of Appeal. Const. I take it, then, that since the Legislature art. 7, § 24, p. 45; also Salittes v. Southern is commanded by the Constitution to provide Pub. Co., 140 La. 739, 743, 73 South. 847, and for the trial of contested election cases be- especially Vidrine v. Dupre, 136 La. 820, fore the courts, it is vested by that instru- $23, 67 South. 893. ment itself with all the power necessary to But all the cumbersome procedure (which carry that command into effect; and if, here the defendant, if cast, would certainly in. and there in the Constitution, provisions be sist upon, since, if no final judgment be renfound which, in their general application, dered in time, he would continue the nominee would conflict with the power necessary to [Primary Law, $ 31, p. 201]) would certainly regulate such contests effectively, then such result in no contested election case ever conflicts must yield to the power thus spe- being finally disposed of in time for printcially granted.

ing and distributing the ballots for the genIn Taxpayers' Association v. New Orleans, eral election. And hence the whole plan 33 La. Ann. 568, plaintiffs attacked, as un- for a contested primary would prove abor. constitutional, Act 74 of 1880, relative to tive. liquidating the indebtedness of said city, on Hence it was that the Legislature providthe ground that said act was local and speed for no rehearings, and failed er industria cial, and had not been advertised as requir- to provide for a writ of review to this court ed by article 48 of the Constitution of 1879. in contested election cases appealed to the The court held that even conceding the act Courts of Appeal; thus leaving the judgments to be local and special, yet it was passed by of said courts in such matters final from express command of the Constitution, article date of rendition. 254, and hence the prohibition in article 48 All of which it had the right to do under against passing local and special laws with section 12, page 74, quoted above. out previous notice, was not applicable. I am, therefore, of opinion that the Leg.

In Davidson v. Houston, 35 La. Ann. 493, islature had absolute authority to fis the plaintiff attacked the constitutionality of jurisdiction on appeal in contested election Act 38 of 1880, providing for the publication cases as it thought proper; and I concur of tax advertisement in the French language, in the judgment overruling the exception to in New Orleans, on the same ground that Act our jurisdiction herein filed. 74 of 1880 had been attacked, as aforesaid. It was upon these grounds that on April The court held that the statute was passed 2 1924, we refused a writ of review to the under authority expressly granted in article Court of Appeal for the parish of Orleans, 154 of the Constitution, and hence, again, in the matter entitled James Barrett v. the prohibition in art. 18 did not apply.

Thomas J. Dobbins, 99 South. 855, No. 26,552 From these I conclude that when the Con- of our docket, where we said: stitution expressly grants certain powers to “The writ herein prayed for is refused for the Legislature, and particularly when the the reason that a writ of review does not lie Constitution lays certain definite commands from this court to the Court of Appeal in conupon the Legislature, any provisions of the ment of that court in such cases is final and

tested primary election cases, and the judg. Constitution which conflict with such grant, executory from rendition.”

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(100 So.) II.

not on the manner in which the electors I concur fully in so much of the opinion

voted but on that in which they might swear as in effect refused to entertain an action they voted (without fear of contradiction). to strike from the registration rolls the names

At any rate the statute provides a method of voters in a manner different from that of proving the contents of protested ballots; provided by the Registration W, Act 122 and, in my opinion, that method is exclusive of 1921, $ 9, p. 303; or by article 8, 5, par. of public policy what proof shall be admit:

of all others. For it is essentially a matter 2, p. 73, of the Constitution of 1921 (except. ing those specially denied the right to vote ted to overturn the publicly declared result even though registered, by section 6, p. 73, of an election held by the duly' constituted and paragraph “a” of section 1, p. 69, of the authorities. The electorate in general, the same article, to wit, criminals, idiots, etc.

, people, have a more vital interest in such and those who have removed since register-infinitely more than the individual poter

result than even the candidate himself, and ing).

by whose oath (incapable of refutation) said III.

results might be upset. To admit any deI dissent from so much of the opinion as parture from the method of proof provided in effect permits voters to testify how they by the statute is simply to open the door to would have voted, if allowed to do so. Per- all manner of fraud and corruption, and to sons offering to vote, and claimed to be dis bring scandal into our elections. qualified, should, pone the less,- have been

V. allowed to vote under protest in the manner hereinafter stated (and their votes counted I think the Daisy box should not have or not counted as the commissioners might been opened for a recount; it is not shown decide).

conclusively that THAT box was not tamWhere this was not done, and sufficient pered with. number of them to have changed the result I, therefore, concur in the result. of the election were denied the right to vote by the election officers (without fault of their

(156 La.) own), the election should be annulled, regard

No. 24372.
less of how they might have voted. Payne
F. Gentry, 149 La. 707, 711, 90 South. 104; FIRST NAT. BANK OF ALEXANDRIA v.

HUDSON CONSTRUCTION CO.,
Bartmess v. Hendricks, 150 La. 627, 629, 91

Limited, et al.
South. 68; Hart v. Picou, 147 La. 1017, 86
South. 479; Vidrine v. Eldred, 153 La. 779, (Supreme Court of Louisiana. March 24, 1924.
96 South. 566.

Rehearing Denied by Division B May

14, 1924.)
Where they were not sufficient in number
(offering to vote) to have changed the re-

(Syllabus by Editorial Staff.)
sult, the election must stand, and the elec-

1. Mechanics' liens Ons 315–Substantial change tors (if qualified) relegated to their action for

in building contact held not to relieve suredamages. Bridge v. Oakley, 12 Rob. 638 ty from liability under statutes to laborers (Judge Martin's last opinion).

and materialmen. But this court cannot hold a new (and per. Where an owner under building contract haps different) election at this time and and bond, given in accordance with Act No. place. Whatley v. LaSalle Parish School | 262 of 1916, files a concursus proceeding to Board, 99 South. 603 (our No. 26,359, not compel payment by surety of laborers and mayet officially reported).

terialmen under bond executed in their favor, surety will not be permitted to escape liability

on ground that there has been a substantial IV.

change in contract as between owner and conI further dissent from so much of the tractor; obligation of surety to laborers and opinion as in effect allows voters to attempt, materialmen being statutory and distinct from In effect, to identify their ballots by swear conventional obligation for faithful perform

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ance of contract. ing that they voted this way or that. The primary election law allows every candidate 2. Indemnity em ll-Indemnitors of surety lia& watcher at the polls, and allows every

ble, where surety liable on building construc.

tion contract.
watcher to challenge any voter for any
cause, Act 97 of 1922, § 25, pp. 191, 192; but

Obligation of indemnitors to surety on
It also requires that every protested ballot those of the surety to its indemnitees, where

building construction bond being the same as shall have attached to it a memorandum surety is liable on bond, indemnitors are resetting forth the name of the voter and the sponsible under their contract of indemnity. ground of protest. Section 20, p. 188. This provision was put there for a pur

3. Mechanics' liens w317 – Refusal of judg

ment for surety on building construction bond pose, and that purpose was to identify the and indemnitors against owner of building ballots and prevent the defeat of an election held proper. held according to law, by an ex post facto Where, under Act No. 262 of 1916, an ownelection, the result of which would depend (er was relieved of liability to laborers and ma

9

terialmen when it furnished bond under build-, of labor and materials had filed liens, aggreing construction contract securing payment of gating $19,168.11, against the work. The their claims, it was not error to dismiss demand balance ($8,126.26) due the contractor being of surety and its indemnitors by way of recor

insufficient to discharge these 'liens, the vention, praying judgment against the owner of the building for the amount of such judgment owner, depositing said balance in the reg. as might be rendered against them; a surety'g istry of the court, instituted this proceedobligation being in favor of the owner and ing to have all parties in interest assert their against the surety.

claims in concursus.

Answers were filed by the contractor, the 4. Appeal and error 863—Claims for attor. ney's fees could not be considered on appeal. various lienors, and the surety, who called Where in concursus proceedings against

in warranty four individuals, as indemnitors, building construction contractor, lienors prayed under a contract of indemnity entered into attorney's fees under Act 225 of 1918, and the between the surety and the said indemnitors. surety under its indemnity contract claimed Judgment was rendered in favor of plainattorney's fees from its indemnitors, claims tiffs, canceling the liens filed against the for such fees could not be considered; the lien- work, and in favor of the lienors against the ors appealing from judgments dismissing their contractor and the surety, and in favor of claims against the owner and not from judg- the surety against the indemnitors. The ment in their favor against the surety, and the lienors, the surety and the indemnitors have surety appealing from the judgment rendered against it in favor of the lienors and not from appealed. The contractor has not appealed. the judgment against its indemnitors.

The lienors' appeals were taken in order

to preserve their rights in the event the Appeal from Thirteenth Judicial District surety's defense that it had been absolved

from liability should prevail. Court, Parish of Rapides; Jas. Andrews, Judge.

The contention of the surety, concurred in

by the indemnitors, is substantially that it Action by the First National Bank of was released from its obligations under the Alexandria against the Hudson Construction bond, because plaintiff, without its consent, Company, Limited, and others. Judgment interfered with the work and required matefor plaintiff, and defendants appeal. Af- rial changes in the contract, thereby necesfirmed.

sitating the performance of a large amount White, Holloman & White, of Alexandria, of work not called for, adding to its cost for appellants certain lienholders.

and rendering its execution more hazardous. J. Zach Spearing, of New Orleans, for As against the surety, the indemnitors appellant U. S. Fidelity & Guaranty Co.

claim to be released from liability for the Hawthorn & Stafford and Thornton, Gist & reason that what was actually done by the Richey, all of Alexandria, for appellants contractor was a different undertaking from Foisy, McAdams, and McGinnis.

the one set out in the original contract, which Thornton, Gist & Richey, of Alexandria, was the contract secured by the bond esefor opellant Ransbottom.

cuted by the surety, and which was the only Hakenyos, Hunter & Scott, of Alexandria, contract on which they had agreed to indemfor appellee.

nify the surety company against damages

arising from its violation. By Division A, composed of O'NIELL, C.

We do not find any merit in the contentions J., and ROGERS and BRUNOT, JJ.

of defendants. The law governing this case

is Act 262 of 1916. The bond herein sued ROGERS, J. On February 21, 1919, plain-on was given expressly under the terms of tiff bank entered into a contract with the said statute (1) in favor of the owner, individ. Hudson Construction Company, Limited, for ually, to secure the faithful performance of the excavation of the basement, the con-| the contract, and (2) in favor of the owner, struction of the basement work up to and in- nominally, to insure the payment of the clusive of the first floor slab, and for some laborers and materialmen. work in connection with a party wall, for a Plaintiff is not seeking to enforce the pro10-story bank and office building to be erect- visions of the bond securing to it the faithed on a plot of ground owned by plaintiff ful performance of the contract. Its action in the city of Alexandria.

was instituted, under the statute, for the The contract price was $53,400. The benefit of all persons asserting rights by vir United States Fidelity & Guaranty Company tue of existing recorded claims having the became the surety for the contractor in the effect of liens. sum of $26,700, being 50 per cent. of the con- [1] It is now well settled in this state, in tract price. The contract and bond were line with the overwhelming authority existduly recorded.

ing in the courts of the other states, that The contracting company went into liqui- where an owner, under a building contract dation without completing its contract, and and bond, given in accordance with statutory the owner took charge of and finished the provisions, files a concursus proceeding unwork. In the meantime, various furnishers der the statute solely for the purpose of com

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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