While I believe that this case was correctly decided in the court below, I am not in accord with all of the reasons given in the majority opinion for the affirmance of the judgment.
I fully coincide with the view expressed by my associates that, in determining who was the successful candidate, the court is without authority to invalidate, and eliminate from consideration, the returns from *Page 29 any one or more election precincts in the district on the ground that fraud was committed by the election commissioners.
The only other question involved in the case has reference solely to the action of the trial judge in refusing to reopen and recount the ballot boxes of certain precincts in view of the contestant's charge that the votes therein were deliberately miscounted to his detriment by the commissioners of election. The allegations of the petition with respect to these precincts are couched in substantially the same language. For example, in article 10 of the petition, the contestant avers that in Ward 3, Precinct 2 of Jefferson Parish, "the commissioners deliberately falsified the returns and that there were cast for him 104 votes more than were counted for him by the commissioners of election and tallied and returned for him to the Tenth Senatorial District Committee". In the majority opinion, it is declared that these charges were "simply the statement of a conclusion without specific allegations of specific fraud". McCrary on Elections, 4th Ed., Section 435; State ex rel. Todd v. Mills, 191 La. 1,184 So. 350; Landry v. Ozenne, 195 So. 14, decided by the Supreme Court on March 12, 1940, not yet reported [in State reports]; Molero v. Rowley, 194 So. 7, decided by the Supreme Court on February 9, 1940, not yet reported [in State reports]; Livaudais v. Leovy, La.App., 193 So. 613; Bradley v. Neill, 174 La. 702,141 So. 382; and Treadaway v. Plaquemines Parish Democratic Committee et al., La.App., 193 So. 609, are cited in support of the conclusion reached.
I am unable to agree with this view and I do not believe that it is sustained by the authorities cited in the majority opinion. This is not a case where the contestant seeks to have certain votes, which he claims were illegally cast and counted, eliminated notwithstanding his failure to protest, nor is it a case where the contestant fails to allege that the illegal votes were given to his opponent. On the contrary, the contestant claims that the commissioners deliberately and fraudulently miscounted the votes and tallied votes in favor of his opponent which were actually cast for him. This, in my conception, is a succinct statement of fact which, if supported by evidence of its truth, would authorize a recount of the ballots in the precincts where the fraudulent miscount is said to have occurred. I cannot see how the averments could be more specific unless it be that the contestant is required to plead his evidence. Surely, it cannot be fairly said that it was intended by the Primary Act (even though it prescribes that the charges be stated with clarity and precision) that the contestant should be forced to supply his opponent with a detailed account of the proof he will submit at the trial.
While I disagree with the majority opinion as to the sufficiency of the allegations of Dumestre's petition, I fully subscribe to the conclusion reached by the district judge that the ballot boxes of the precincts complained of should not have been reopened and recounted because the contestant failed to offer any evidence whatever (except as to Precinct 1 of Ward 6 of Jefferson Parish where the court ordered a recount of the votes in that ballot box) to sustain the charges made by him in his pleadings. All of these charges were denied by Fisher in his answer. It was therefore incumbent upon Dumestre to adduce some extraneous proof to support his allegations. Since he was unable to do so, the district judge properly refused to order the ballot boxes reopened.
For the reasons given, I respectfully concur in the decree.