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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 642 A primary election was held in the Nineteenth Judicial District, comprising the Parish of East Baton Rouge, for the purpose of nominating two candidates of the Democratic party for the two offices of judge of the district court, to be voted for in the general election to be held on November 3rd. There were four candidates for the nominations, namely, Judge Charles A. Holcombe and Judge James D. Womack, who are the incumbents, and Judge W. Carruth Jones and Judge Leslie A. Fitch. The candidates were not required to designate the one of the two judgeships to which each of them aspired. In such a case the primary election law, Act 46 of 1940, requires merely that each voter shall vote for two of the candidates for nomination for the two judgeships. There were 14,345 ballots cast, and hence a total vote of 28,690 for all of the four candidates. According to the official returns furnished by the commissioners to the parish executive committee, Judge Holcombe received 8,025 votes, Judge Jones 7,855, Judge Womack 7,530, and Judge Fitch 5,280. The committee met on the fourth day after the date of the primary, as required by the 76th section of the statute, and received from the chairman and approved the tabulated statement showing the result of the primary. Accordingly, the committee then adopted a resolution, proclaiming the result of the primary and declaring that Charles A. Holcombe, *Page 644 having received the highest number of the votes cast, and W. Carruth Jones, having received the next highest number, were the nominees of the Democratic party for the two judgeships. The committee therefore directed the Secretary of State to place the names of Holcombe and Jones on the official ballot as the nominees for the two judgeships. Within the two days allowed in paragraph (h) of section 86 of the statute, Judge Womack brought suit against W. Carruth Jones, Charles A. Holcombe, Leslie A. Fitch, the Democratic Executive Committee and its chairman, and the Secretary of State, to annul the resolution of the committee by which Judge Holcombe and Judge Jones were declared the nominees of the Democratic party for the two judgeships. Judge Womack prayed that the committee should be ordered to declare that Judge Holcombe alone was nominated for one of the judgeships and to order a second primary for the nomination of the other candidate for the other judgeship, in which second primary only James D. Womack and W. Carruth Jones should be voted on. Judge Womack prayed, in the alternative, and only in the event that the court should not hold that a second primary should be had between him and Judge Jones, then that a second primary should be held in which James D. Womack, Charles A. Holcombe, W. Carruth Jones, and Leslie A. Fitch, "being all of the candidates in the first primary (the said Leslie A. Fitch having failed to receive a majority), should be voted upon." Each of the defendants filed an exception to the jurisdiction of the court, an exception of no cause or right of action, and an answer, denying that there *Page 645 should be a second primary. The judge ruled that the exceptions had reference to the merits of the case, because, if the resolution of the committee was violative of the primary law, as Judge Womack contended it was, he had a right of action and the court had jurisdiction to hear and decide his complaint. After hearing the case on its merits, the judge gave judgment for Judge Womack annulling the resolution adopted by the Executive Committee on September 12, 1942, so far only as the committee had certified the name of W. Carruth Jones as one of the nominees. The judge held that the resolution was valid so far as it certified Charles A. Holcombe as one of the nominees, and the judge ordered the committee to convene again and order a second primary to be held, in which James D. Womack and W. Carruth Jones should be the only candidates for the other judgeship, and ordered the committee to certify their names as such to the Secretary of State. All of the defendants have appealed from the decision.
Section 80 of the act of 1940 is the section which provides for the holding of a second primary in cases where no candidate has received a majority of the votes cast in the first primary. It is observed in the opinion rendered by the judge who heard this case — and rightly observed — that that section of the statute is badly worded, and that to interpret it literally would be a ridiculous interpretation, for it would require the holding of a second primary in every instance where there is a primary election. What the Legislature intended to say in section 80 is *Page 646 that if every candidate fails to receive a majority of the votes cast for the office for which he is a candidate in a primary election, a second primary shall be held, at which only the two candidates who received the highest number of votes for any one office in the first primary shall be voted on. In the third paragraph of this section it is declared that where it is necessary in the second primary to nominate two or more candidates for two or more offices of the same character there shall be twice as many candidates in the second primary as there are offices of the same character to be filled, and no more than twice as many candidates. The part of the section which is badly worded, as the trial judge has pointed out, is the declaration that, if it shall be found that any candidate has failed to receive a majority of the votes cast for the office for which he is a candidate in the first primary, a second primary shall be held. What the Legislature intended to say is that if it shall be found that every candidate has failed to receive a majority of the votes cast for the office for which he was a candidate in the first primary, there shall be a second primary. That part of this section of the law cannot be construed literally, because, as the trial judge has pointed out, it is not possible for both or all of the candidates for the same office to receive a majority of the votes cast in any primary, or in any other election. The court is obliged therefore to give this section of the law its true meaning, and to say that if there is not any candidate who has received a majority of the votes cast for the office for which he was a candidate in the first primary there shall *Page 647 be a second primary. The error in the wording of the statute is as obvious as if the Legislature had said that the candidate receiving the smallest number of votes, instead of the largest number of votes, for the office for which he is a candidate shall be the nominee. Surely if that error had been made the court would be obliged to correct it. The function of the courts of justice is to interpret the laws so as to give them the meaning which the lawmaker obviously intended them to have, and not to construe them so rigidly as to give them absurd or ridiculous meanings.
The law books are full of authority for giving to the word "any", when it is used incorrectly, as in this instance, the meaning of the word "every" or "all". Several decisions to that effect are cited in 3 Words and Phrases, Perm. Ed., pp. 530 to 533. In the case of Roedler v. Vandalia Bus Lines, 281 Ill. App. 520, it was decided, in construing a statute, that the word "any" was equivalent to the word "every" or "all". In the case of the Catholic Order of Foresters v. State, 67 N.D. 228, 271 N.W. 670, 109 A.L.R. 979, the Supreme Court of North Dakota said that the word "any" had a diversity of meanings, its meaning in any particular case depending upon the context or subject-matter of the statute or document in which it is used. For other decisions to the same effect, see Egan v. Laemmle, 5 Misc. 224, 25 N.Y.S. 330; Falk v. Tax Commission, 218 Wis. 130, 259 N.W. 624; Tuten v. Bowden, 173 S.C. 256, 175 S.E. 510, 94 A.L.R. 1443; Mayor, etc., of City of Savannah v. Solomon's Lodge, No. 1, F. A.M., *Page 648 53 Ga. 93; Jones v. Whitworth, 94 Tenn. 602, 30 S.W. 736; In re Licenses for Sale of Used Motor Vehicles, Iowa, 179 N.W. 609; Southern Ry. Co. v. Gaston County, 200 N.C. 780, 158 S.E. 481; Coelho v. Truckell, 9 Cal.App.2d 47, 48 P.2d 697; Ferguson v. Brogan,112 N.J.L. 471, 171 A. 685; 3 Words and Phrases, Perm. Ed., pp. 530 to 533. See also 3 C.J. pp. 230-249; and 3 C.J.S., verbo Any, p. 1400, where it is explained that the word "any" may be construed to mean "all", if that construction is necessary to make sense.
This error which appears in the 80th section of Act 46 of 1940 — where the word "any" is used instead of the word "every" — has appeared in every primary election law that Louisiana has had; and the word "any" has been construed consistently by the Democratic committees, and by the courts, as meaning "every". It has never been doubted by any committee, or by any court, as far as we know, that there shall not be a second primary for any office unless every candidate for the office has failed to receive a majority of the votes cast for that office in the first primary. In Act 49 of 1906, which was the first primary law of this state, in the 3rd paragraph of section 25, on page 78, the error which is repeated in the 80th section of the act of 1940, appeared thus:
"In case any candidate should fail to receive a majority of the votes cast for the office for which he is a candidate, a second primary election shall be held," et cetera.
And in the 8th paragraph of the same section of the act of 1906, on page 79, the error is repeated, thus: *Page 649
"That after the committee has met and proclaimed the results as hereinabove provided, and it shall be found that any candidate failed to receive a majority of the votes cast for the office for which he was a candidate, a second primary shall be held," et cetera.
The error was repeated, in the same words, in the 5th paragraph of section 25 (on page 86) of Act 35 of 1916, which was the second primary law of this state; and the error was repeated again, in the same words, in the 6th paragraph of section 27 (on page 199) of Act 97 of 1922; which was the last primary law previous to the act of 1940. And, as the trial judge has pointed out, the error is repeated again in the first paragraph of section 80 (on page 208) of Act 46 of 1940 — thus:
"After the Committee has met and proclaimed the results as herein provided, and it shall be found that any candidate has failed to receive a majority of the votes cast for the office for which he was a candidate, * * * a second primary shall be held," et cetera.
In the case of State ex rel. Dobbins v. McDermott, 155 La. 211, 99 So. 41, 42, the court had under consideration the paragraph which, in Act 97 of 1922, is exactly the same as the paragraph which we have just quoted from Act 46 of 1940; and the court construed the paragraph thus:
"With respect to primaries for offices of the character here involved, the statute [Act 97 of 1922], section 27, p. 199, provides: *Page 650
"`That after the committee has met and proclaimed the results as hereinbefore provided, and it shall be found that any candidate failed to receive a majority of the votes cast for the office for which he was a candidate, a second primary shall be held. * * *'
"This, of course, requires that to be nominated in the first primary a candidate must obtain a majority of the votes cast for the office, which no one received in this case."
We must bear in mind that it was in the light of that judicial interpretation that the Legislature, in the session of 1940, repeated literally the paragraph which was interpreted by this court in the case of State ex rel. Dobbins v. McDermott.
There is no provision in the act of 1940 for the holding of a second primary in a case where there are only four candidates for nomination for two similar offices, and where each one of the two — or the three — highest of the four candidates has received a majority in the first primary.
In the second paragraph of section 80 of the act of 1940 it is declared:
"In the second primary only the two highest candidates in the first primary shall be voted on."
That paragraph, of course, has reference only to candidates for one and the same office.
In the third paragraph of section 80 of the act of 1940 is a provision which was not in Act 97 of 1922, which governed the case of State ex rel. Dobbins v. McDermott. That provision, in the act of *Page 651 1940, is that where in a second primary it is necessary to fill by nomination two or more offices of the same character there shall be twice as many candidates, and not more than twice as many candidates, in the second primary, as there are positions to be filled. That provision in the statute is not applicable to a case where there are only four candidates for two similar offices to be filled by nomination in the first primary, as in the present case. The reason why that provision is not applicable to a case where there were originally only four candidates for nomination for two similar offices is that the statute would then require merely the holding of another primary for the same four candidates for the same two nominations. That provision in the statute conforms with the decision rendered by this court in the case of State ex rel. Dobbins v. McDermott, in 1924. In that case there were eleven candidates for nomination for the offices of two members of the Legislature from the Third Ward in New Orleans; and, as none of the candidates received a majority of the votes cast in the first primary, it was necessary to have a second primary; and the question was whether all except the three highest candidates, or all except the four highest, were eliminated as a result of the first primary. The committee ruled that only the three highest candidates in the first primary should be permitted to be candidates in the second primary. Dobbins, who was the fourth highest candidate in the first primary, sued to compel the committee to certify his name also as a candidate in the second primary. A majority of the members of the court ruled that *Page 652 Dobbins was right in his contention that the four highest candidates in the first primary should be allowed to be candidates in the second primary. But, in a case where there are only four candidates for two offices of the same character in the first primary, and where two or more of the four candidates receive a majority of the votes cast, there is no reason why there should be a second primary, either among all four candidates, or between the second and third highest candidates. Immediately after that provision in the third paragraph of section 80 of the statute, it is declared that in the event that one of the candidates entitled to be voted for in the second primary should die or withdraw, then the remaining candidate for that office who received the highest number of votes shall be declared the nominee, and only the names remaining shall be voted on. That provision, necessarily, has reference only to a case where no candidate has received a majority of the votes cast in the first primary, and where, therefore, it is necessary to have a second primary. In the present case there is no necessity for a second primary, because the two highest of the three candidates who received a majority in the first primary were entitled to be declared the nominees for the two offices to be filled. The last candidate, Leslie A. Fitch, recognized that fact when he voted as a member of the committee to declare the two highest candidates, namely, Charles A. Holcombe and W. Carruth Jones, the nominees for the two offices. Fitch did not waive any right to be a candidate in a second primary. He had no right to be a candidate in a second *Page 653 primary, because there was no occasion for the holding of a second primary. A second primary with Fitch and the three other candidates running would be merely a repetition of the first primary. No such proceeding was contemplated by the Legislature in making provision for a case like State ex rel. Dobbins v. McDermott, where there were more than twice as many candidates as there were offices to be filled in the first primary, and where no candidate received a majority of the votes cast.
In a decision rendered by the Court of Appeal for the First Circuit on February 10, 1920, in the case of Ralph W. McBurney v. John McGregor, et al. [not reported], the essential facts were exactly the same as in this case. There were four candidates for nomination for the two offices of members of the House of Representative from the Parish of East Baton Rouge. The candidates were Carruth Jones, who received 1869 votes in the first primary, Dan D. Cline, who received 1591, Ralph W. McBurney, who received 1485, and Leslie A. Fitch, who received 976. Therefore each one of the three highest candidates received a majority of the votes cast in the first primary — just as they did in the present case. The Democratic Executive Committee of the parish met and tabulated the returns and declared that Carruth Jones and Dan D. Cline, having received the greatest number of votes, were the nominees for the two offices. McBurney, who was the third highest candidate, but who also had received a majority of the votes cast, brought suit to compel the committee to declare only Jones the nominee for one of the offices, *Page 654 and to order a second primary to be held between Cline and the plaintiff, McBurney, for nomination for the other office. The district court rejected McBurney's demand, and the court of appeal affirmed the judgment. In deciding the case the court of appeal, in an unanimous opinion, said:
"It is admitted by the parties to this suit that a majority of the votes were received by plaintiff [McBurney], Carruth Jones and D.D. Cline, defendant. Although plaintiff [McBurney] received a majority, the returns show that Cline had gotten in the primary one hundred and six votes more than were cast for plaintiff [McBurney], and Jones a still larger plurality of the majority over plaintiff [McBurney]. As two candidates had to be nominated, and not three, the committee was driven to the necessity of making a decision upon the face of the returns between them, as they had all received a majority, which precluded the possibility of ordering another primary under the provisions of the primary law of 1916. If no majority had been obtained, a second primary could have been demanded for a final settlement of the contest between the parties, and only in that event. Such being the situation the committee adopted the only course which we think could have been pursued under the circumstances, and that was to declare Carruth Jones and Cline the nominees, because they had not only received a majority of the votes but also a larger number than had been cast for plaintiff [McBurney]. In adopting this course we fail to see where the committee has violated the provisions of Act 35 of 1916 or *Page 655 the legislative purpose as expressed in that statute. So finding, we do not think we are called upon to interfere with the action of the committee."
The trial judge in the present case conceded, in the opinion which he dictated to the court stenographer, that he would feel constrained to follow the opinion in the case of McBurney v. McGregor but for the fact that Act 35 of 1916, under which that case was decided, did not contain the provision which appears in section 76 of the Act of 1940, requiring the committee to certify the name "or names" of the person "or persons" receiving the greatest number of votes. The trial judge points out that that provision in the act appeared for the first time in Act No. 8 of the Second Extra Session of 1934, amending section 27 of Act 97 of 1922. The fact that this amendment of the law was made subsequent to the deciding of McBurney v. McGregor only adds to the logic and force of that decision as authority. Before the amendment was made there was some reason to doubt that the committee should certify the names of two persons as having received the greatest number of votes, in a situation such as we have here; but the subsequent amendment of the statute eliminated all doubt that the committee should certify the two or more persons having received the greatest number of votes, when there were two or more nominations to be made, and when two or more persons received a majority of all of the votes cast in the first primary. There is no reason therefore why the decision in McBurney v. McGregor should not be regarded as authority. *Page 656
The trial judge in this case rested his decision upon his interpretation of section 76 of the act of 1940. That section is composed of two paragraphs, the first paragraph having reference, specifically, to nominees for United States Senators, Congressmen and state officers voted for throughout the entire state or in Congressional Districts, and Supreme Court Districts, or for any other state board or commission, or for any state officer whose election may be provided for by law. The second paragraph has reference to all other primary elections, which, apparently, means all primary elections for the nomination of local candidates, such as for district offices or parish offices.
It is contended by the attorneys for Judge Womack that the office of district judge is a state office and therefore that the returns on which the committee proclaimed the results of the primary election should have been tabulated and compiled by the Secretary of State, and by him forwarded to the chairman or secretary of the committee. If the office in contest is not a state office, but a local office, in the meaning of the statute, the returns of the election should have been furnished directly to the committee, as they were furnished in this case, by the commissioners of election. Judge Womack therefore, in his petition in this case, contended primarily that the tabulating and compiling by the committee, of the returns received directly from the commissioners of election, was not a valid tabulating or compiling of the returns, and that the Secretary of State should be ordered to forward to the committee the *Page 657 returns tabulated and compiled by him, and that the committee should reconvene and again proclaim the results from the official returns as tabulated and compiled by the Secretary of State. The trial judge concluded that there was no necessity for deciding whether this was a state office or a local office, within the meaning of the statute, and that it was not necessary to decide whether the returns should have been compiled and tabulated by the Secretary of State and furnished to the committee; because the result of the tabulation and compilation which was made by the Secretary of State produced substantially the same results which had been proclaimed by the committee from the compilation and tabulation of the commissioners of election. In fact, all of the parties to this suit made the admission, which was dictated to the court stenographer during the trial of the case, that the returns from the Secretary of State would show that, in the first primary, Leslie A. Fitch received 5,207 votes, that James D. Womack received 7,530 votes, that W. Carruth Jones received 7,865 votes, and that Charles A. Holcombe received 8,030 votes. The judge who heard this case therefore held that it would be only a waste of time for the court to order the Secretary of State to compile the returns and certify them to the committee, and to require the committee to meet again and proclaim the results. The judge was right in so holding.
The judge rested his decision in this case upon his interpretation of section 76 of Act 46 of 1940, and upon his opinion that there was a grammatical error, and *Page 658 hence a hiatus in the law, in the phrase in the first paragraph of that section of the statute, "the person, or persons, shown by the certification of the Secretary of State as having received the greatest number of votes", and also in the clause "they shall certify the name, or names, of such person, or persons, to the Secretary of State." The judge found that the only difference between the first and the second paragraph in section 76 of the statute is that the first paragraph refers to the state offices mentioned therein, and the second paragraph refers to the so-called local offices, such as district offices and parish offices.
The judge therefore held that the provision in section 76 of the statute, requiring the committee to declare the nomination of the "person, or persons," having received the greatest number of votes, and the provision requiring that the committee "shall certify the name, or names, of such person, or persons, to the Secretary of State", had reference to the office of district judge, whether it should be regarded as a state office, as contended by the attorneys for Judge Womack, or as a local office, as contended by the attorneys for the defendant in this suit. That conclusion of the judge is correct, for, otherwise there would be, as the judge says, a hiatus in the law, in that there would be no provision for declaring the nomination for certifying the names of two or more candidates for two or more offices of the same character, such as two judgeships, as in this case.
The trial judge said that, grammatically speaking, it was impossible for two *Page 659 candidates for offices of the same kind or character, such as two district judgeships, to receive "the greatest number of votes". We do not consider it ungrammatical to speak of two or more persons having the greatest number of votes. Strictly speaking of course only one candidate can have the greatest number of votes, except in the case of a tie vote. But there is no doubt about the meaning when a person speaks of two or more candidates having the greatest number of votes. In the second paragraph of section 80 of this very statute the expression "the two highest candidates" is used. And in the third paragraph reference is made to the remaining candidate who received the highest vote; and in the next paragraph appears the expression, "should one of the two persons receiving the highest number of votes", et cetera. And in the case of State ex rel. Dobbins v. McDermott, which we have referred to, the expressions "two highest candidates", and "three highest", and even "four highest", are used repeatedly in both of the opinions that were rendered.
The trial judge contends that inasmuch as there can be only one greatest number of votes in such a case, that phrase in the statute is applicable only to a case where there are more than two candidates for each of two or more separate and distinct offices, such as the office of judge and the office of district attorney. It seems unreasonable, though, to believe that the Legislature deemed it necessary to use the phrase, "person, or persons * * * having received the greatest number of votes", and the phrase "the name, or names, of such *Page 660 person, or persons", for the purpose merely of instructing the committee with reference to two or more separate and distinct offices, such as the office of judge and the office of district attorney. Any committee would know that it should declare the nomination and certify the name not only of the person having received the greatest number of votes for one of two or more separate offices, but also the name of the person having received the greatest number of votes for the other office or offices. No committee would ever need any such instructions with regard to two or more separate and distinct offices. The conclusion, therefore, is inescapable, that the phrase, the name or names of the person or persons having received the greatest number of votes, was intended to apply particularly to a case like this, where there are more than two candidates having a majority of the votes cast and where the committee cannot certify the names of more than two nominees. The trial judge in this case was right in saying that this provision in section 76 must be read in connection with section 80, which, when correctly construed, declares that there shall not be a second primary except where no candidate has received a majority of the votes cast for the office for which he was a candidate in the first primary. The two sections together require that for a candidate's name to be certified by the committee as a nominee he must have received a majority of the votes cast, and if there are two or more similar offices to be filled by nomination, and if more candidates have received a majority than there are offices to be filled, the committee must certify the necessary *Page 661 number of the names of the persons receiving the greatest number of votes. Where there are two candidates for each one of several distinct offices, such as for the office of judge and for the office of district attorney, each candidate who receives the greatest number of votes cast for the office for which he is a candidate receives a majority, and in such a case there is no occasion for speaking of the person or persons receiving the greatest number of votes. If the Legislature had intended that this phrase in the primary law should be applicable only to a case where there are two candidates for each of several separate and distinct offices, such as the office of judge and the office of district attorney, the Legislature would have used the word "majority" instead of the word "greatest number", and certainly the Legislature would not have used the phrase "name or names", or the phrase "person or persons".
The trial judge in this case cites the case of Bauer v. Gilmore, 165 So. 739, decided by the Court of Appeal on February 19, 1936. In that case there were three candidates in the primary for the nomination of two representatives from the same parish, and, as each voter was obliged to vote for two candidates, twice as many votes were cast for all of the candidates as there were voters, and the result was that each one of the candidates received a majority of the votes cast. In response to an inquiry from the Chairman of the Parish Democratic Executive Committee, the First Assistant Attorney General advised that the committee should declare the nomination of the candidate who received *Page 662 the highest number of votes cast, namely, C.R. Brownell, and should order a second primary to be held between the two other candidates, namely, R. Norman Bauer, and Walter T. Gilmore, for the remaining office of representative. Brownell had received 3,608 votes, Bauer 2,738, and Gilmore 2,561 votes. Bauer brought suit against Gilmore and the committee, praying that he, Bauer, should be adjudged the nominee for the office of representative, and that the resolution of the committee ordering a second primary between him and Gilmore should be declared null. The defendants filed exceptions to the jurisdiction of the court, and with reservation of these exceptions the committee filed an exception of misjoinder of parties defendant, and with reservation of both exceptions, the defendants filed exceptions of no cause or right of action. The district judge overruled the exception to the jurisdiction of the court and the exception of no right of action, maintained the exception of misjoinder of parties defendant, and referred the exception of no cause of action to the merits, and after hearing the case on its merits gave judgment for the defendant dismissing Bauer's suit. Bauer appealed to the Court of Appeal and that court affirmed the judgment so far as it maintained the exception of no cause of action and dismissed the plaintiff's suit. But the Court of Appeal based its decision exclusively upon the ruling that Bauer should have prayed for the court to order the committee to declare him the nominee and to certify his name to the Secretary of State, instead of praying merely, as he did pray, that the court should declare him the nominee and *Page 663 that the action of the committee in calling a second primary should be declared null and of no effect. That decision therefore has no relation to the true meaning either of section 76 or of section 80 of the act of 1940, or to the corresponding sections in the Act 97 of 1922, which, as amended by Act 28 of the 2nd Extra Session of 1935, was the primary law in force at the time when Bauer v. Gilmore was decided. The trial judge in the present case says that, although the decision in Bauer v. Gilmore is not in point, it should have some persuasive effect, because, subsequently, Bauer was elected to the office of Speaker of the House of Representatives and served as such in the session of 1940, in which session the present primary election law was enacted. The trial judge said that he considered it highly significant that the Legislature, with Bauer presiding as Speaker of the House, in the session of 1940, did not change the law, so as to give it a meaning different from that which the Assistant Attorney General had given to it in the opinion which he had rendered to the Parish Executive Committee in the case of Bauer v. Gilmore. The opinion rendered by the Assistant Attorney General in that case, which opinion is published in the Reports and Opinions of the Attorney General for 1934-1936, page 397, consists only of a quotation of section 27 of Act 97 of 1922, as amended by Act 28 of the 2nd Extra Session of 1935, and the expression of opinion that the statute did not amply cover the situation, but that the spirit and intent of the law was to allow the voters the greatest freedom in the expression of their will, and hence that the committee should declare Mr. Brownell *Page 664 the nominee for one office and call a second primary in which Bauer and Gilmore should be the candidates for the other office. The fact that Bauer, as Speaker of the House of Representatives, in the session of the Legislature in 1940, did not make any attempt, as far as the record shows, to change the primary law so as to make its meaning different from that which the Assistant Attorney General had attributed to it, does not necessarily imply that Bauer acquiesced in the interpretation that the Assistant Attorney General had given to the statute, much less does it amount to a legislative interpretation. Another Attorney General, under a previous administration, on September 18, 1930, had given an opinion directly opposite to that given by the Assistant Attorney General in the case of Bauer v. Gilmore. See Reports and Opinions of the Attorney General from 1930-1932, page 165. We observe also that Attorney General Porterie himself, on May 2, 1934, rendered an opinion declaring, in a case where there were five candidates for nomination for three members of the board of aldermen of a municipality, that, if more than three candidates received a majority, "the three highest with majority votes should be nominated". See Reports and Opinions of Attorney General, 1934-1936, p. 484. And, in the present case, the Attorney General advised the committee that the decision in the case of McBurney v. McGregor was the correct interpretation of the law; and the committee acted upon that advice.
In this case Judge Jones not only received a majority of the votes cast, as required by section 80 of the act of 1940, but *Page 665 he was one of the two persons who received the greatest number of votes, as required by section 76, to entitle him to one of the two nominations. Judge Womack, who also received a majority of the votes cast, was not one of the two persons receiving the greatest number of votes; and, as there were only two offices to be filled, the committee could not certify the names of more than the two candidates who received the highest number of votes. Judge Holcombe and Judge Jones together received a clear majority over Judge Womack and Judge Fitch. There is no provision in the statute to justify declaring Judge Holcombe the nominee for one of the judgeships, with a plurality of only 170 votes over Judge Jones, without declaring Judge Jones the nominee for the other judgeship, with a plurality of 325 votes over Judge Womack. There is no reason why Judge Jones should be obliged to compete with Judge Womack again, in a second primary, without allowing Judge Jones an opportunity to compete also with Judge Holcombe, except, of course, that the statute requires that there shall be twice as many candidates as there are offices to be filled in a second primary where there are two or more offices of the same character to be filled. The provisions of sections 76 and 80 of the act of 1940, taken together, prohibit the holding of a second primary in a case where the result of the first primary is as it is in this case.
The judgment appealed from is annulled and the demand of the plaintiff is rejected and his suit is dismissed at his cost.