In the recent Democratic primary election held September 8, 1942, there were *Page 706 four candidates, Charles A. Holcombe, W. Carruth Jones, Leslie A. Fitch, and James D. Womack, seeking Democratic nomination for the offices of the two district judges of the Nineteenth Judicial District Court. There were 14,345 electors of the district who cast ballots for these offices, each voting for two of the candidates under the provisions of Section 72 of the Act under which the election was held. (Act 46 of 1940). The Democratic executive committee after tabulating the returns of the election showing Holcombe had received 8,025 votes; Jones, 7,855; Womack, 7,530; Fitch 5,280, certified the names of the first two to the Secretary of the State as the Democratic nominees.
Womack, who also received a clear majority of the votes cast, contending that under the provisions of the primary law of this state he is entitled to enter into a second primary election with Jones for one of the offices, instituted these proceedings.
The issues presented for our determination in this case are res novo never having been adjudicated upon by this court. In disposing of them the trial judge dictated into the record his reasons, which in my opinion, when considered with the history and background of our primary election laws, are logical and reasonable and in keeping with our Democratic form of government — the people should be given an opportunity to determine for themselves which of the two candidates they prefer to serve them in this important office. The pertinent part of the judge's reasons are as follows: *Page 707
"The matter is one of great importance, and there are many serious issues in it, and the case is one that should go to the Supreme Court and be settled once and for all under the present primary law, and if clarification is needed, the Legislature should give attention to the matter at its next session, because this whole question of plural candidates is open to great confusion, as I see it, in these various provisions of the statutes.
"First of all I will pass on the exceptions. All of the defendants except Fitch have filed exceptions to the jurisdiction of the Court, exceptions of no right of action, and exceptions of no cause of action. Those three exceptions raise the same questions that are raised on the merits of the case, the principal point being, Is the plaintiff entitled under the law to demand a second primary? If he is not, the Court would lack jurisdiction to order one. Similarly, the plaintiff might be said to be without cause of action or right of action. Since those exceptions raise the same points as are raised on the merits, I will consider them along with the case on its merits and will refer them to the merits.
"The Committee, I believe, filed an exception of misjoinder of parties and of causes of action. That exception is not well founded, in my opinion, and I will overrule it.
"The Primary Law confers very broad jurisdiction on the courts of the State in connection with the enforcement of the provisions of that law. It also outlines the procedure for contests based on irregularities *Page 708 and fraud, and the general spirit of the act is, as I see it, that the Courts have power to issue any necessary writs or decrees to carry out the purposes of the law, namely, to insure fairness in primary elections and see that the will of the people is properly recorded.
"In my opinion, the various complaints made by the plaintiff all relate to the same matter. His principal demand is for a second primary between himself and the defendant Jones. All the other matters relate to that main proposition. In other words, he seeks an injunction against the Secretary of State to prevent him from using the previous certification of the Committee. That pertains to the main cause of action. He seeks a mandamus against the Committee to order it to certify himself and Judge Jones as the candidates in the second primary. He seeks a mandamus against the Secretary of State to compel him to certify to the Committee the returns as compiled by the Secretary of State. The purpose of that is in aid of the main demand.
"Furthermore, the modern trend is against technicalities in pleadings wherever the court can avoid them. The theory, today, is that courts of justice are open to hear all complaints of litigants and to remedy those complaints if they are found to be well founded, and not to encourage technicalities of one kind or another that have a tendency to obstruct the trial of cases on their merits. To force the Secretary of State into one suit against him, the Committee in another suit, and the candidates in another suit, would provoke a *Page 709 needless multiplicity of suits. Therefore, I overrule the exception of misjoinder of parties and actions.
"There was a plea of estoppel filed by Holcombe against Fitch's demand in his answer for a second primary to be participated in by all four candidates. That plea of estoppel is based on the fact that Fitch was a member of the Committee and, through proxy, voted for the resolution which the Committee adopted. Fitch acted in his official capacity as member of the Committee, not as an individual candidate. He naturally followed the opinion of his legal adviser, the Attorney General, and I do not think it is fair to say that when a public official, acting in a public capacity, following the opinion of the State's highest law officer, does some act to carry that opinion out, he should be bound in his individual capacity and estopped from asserting such rights as he might have as a candidate. The plea of estoppel is overruled.
"The defendant Holcombe filed a plea of prescription against Fitch's demand for a second primary. That demand was filed by Fitch for the first time in his answer to the suit, which was filed more than two days after the resolution of the Committee was adopted, in fact, some six or seven days afterwards.
"The plaintiff abandoned, at the outset of the trial, his demand for a second primary to be participated in by all four candidates. The plaintiff had acted in time, but with his demand abandoned, the defendant Fitch's demand must stand on its own bottom, and I think that plea of prescription *Page 710 is well founded and should be sustained, and that there should be judgment dismissing the demand of Fitch for a second primary to be participated in by all four candidates.
"That brings us to the consideration of the exceptions of no cause of action and no right of action, and lack of jurisdiction, along with the merits of the case.
"The principal point in the case is whether the plaintiff, Womack, is entitled to participate in a second primary with the defendant Jones. All parties, as far as the record now stands, concede the election of Judge Holcombe under the wording of the primary law. I think they are all correct in that conclusion. So the sole matter for the Court to determine is whether the Committee was correct in certifying both Judge Holcombe and Judge Jones as nominees for the office, or whether the Committee should certify only Judge Holcombe and order a second primary to be held between Judge Jones and Judge Womack.
"Now, that point turns on the interpretation to be given to Section 76 of the Primary Act, which is Act 46 of 1940. That section contains two paragraphs. The first paragraph deals with certain named officers, namely, United States Senators, Congressmen, State officers voted for throughout the State and throughout the respective Congressional districts and Supreme Court districts, State boards and commissions, and any other state officers whose election is provided by law, and it requires that in those cases the Secretary of State shall tabulate and compile the returns and promulgate *Page 711 them and forward a certified copy to the chairmen or secretaries of the committees which ordered the primary. It shall be the tabulation to be used by them.
"It then goes on and provides that immediately upon receipt of such certification it shall be the duty of the chairman or secretary to convene the committee to declare the nomination of the person, or persons, shown by the certification of the Secretary of State as having received the greatest number of votes. It further provides that it shall certify the name, or names of such person, or persons, to the Secretary of State.
"The following paragraph provides that in all other primary elections, instead of using the returns compiled by the Secretary of State and certified to the Committee, the Committee itself shall compile and tabulate the vote from the returns received by it and certify the result from those returns, rather than from the returns of the Secretary of State. Otherwise, there is no distinction between the two paragraphs of Section 76.
"So that in the final analysis the matter turns on the meaning of the words `declare the nomination of the person or persons who received the greatest number of votes.' Can more than one person running in the same election for plural offices of the same kind receive `the greatest number of votes'? If that section means that the Committee shall certify, where there are two officers to be elected, as here, the two with the greatest number of votes — if that expression can be grammatically used — then, of course, the Committee is correct. If there *Page 712 can be only one candidate with the greatest number of votes in a situation of this kind, then, of course, the Committee was incorrect, and its duty was to certify only the top man.
"There are a great many factors to be considered in determining the meaning of this section. Of course, we have an unusual situation here. Three men have actually been elected to two offices. That is, there were two judgeships to be filled and the voters have by majority vote elected three to fill two offices, which is impossible.
"The first factor to be considered would be the meaning of the language as used. Grammatically speaking, it is impossible for two candidates for the same office to receive the greatest number of votes. Greatest is the superlative and, of course, means only the top. I say it is impossible for two to receive the greatest number unless, of course, there is a tie. If there is a tie, there may be more than one person receiving the greatest number of votes. The Legislature has used the term in the superlative. The Court would have to indulge in a certain amount of judicial legislation to add the comparative. On the other hand, we have to give some meaning to the words `person, or persons' and the expression `name, or names, of such person, or persons,' but if we read that in connection with the entire paragraph — the first paragraph of Section 76 — it seems to me that the meaning is fairly clear, because in connection with this certification of the nomination of `the person, or persons' and the certification of `the name, or names,' reference is made to certain returns received by the committee, *Page 713 or committees, and those returns relate to all those various offices mentioned in the first sentence of Section 76, namely, United States Senators, Congressmen, and State officers voted for throughout the entire State and respective Congressional Districts, and Supreme Court Districts, or State boards and commissions and other state officers.
"In other words, taking the paragraph as a whole, it would appear that what the Legislature said was that the Secretary of State shall send these various compilations to the chairmen of the respective committees, and, of course, they receive them; and if it is merely to fill one office only, in that event the committee certifies only one person. Therefore, it would be `a person.' On the other hand, some committees would receive returns on numerous offices, and therefore they would have to certify not one name, but many names of persons who have received the greatest number of votes for those different kinds of offices.
"The plural office proposition, as you have it here, is a rather peculiar thing. The law provides that they are not to be considered separately and independently of each other. Unfortunately, the Legislature has not provided, as it has in New Orleans, for separate divisions of the court, where each candidate runs for one office only. In this situation, where you have plural places involved, all candidates run for both. So, therefore, Judge Holcombe ran for both offices, Judge Jones ran for both offices, Judge Womack ran for both offices, and Judge Fitch ran for both offices, and three *Page 714 of them were elected to two offices by majority vote. You cannot, however, say that more than one person received the greatest number of votes, because Judge Holcombe, as he was running for both offices, necessarily received the greatest number of votes for both, and Judge Jones necessarily ran second for both offices, rather than second for one and first for the other, because if we construe it in the latter way, we would be making them separate offices, whereas, the law considers them together and not independently. So it seems to me, from any grammatical construction which you can put on it, the Legislature has said that where you have separate offices such as district attorney, judge, or school board member or in the case of the committee having jurisdiction over state offices such as Register of the Land Office and Secretary of State and so on, then they take the man receiving the highest number of votes, or the greatest number of votes, as the statute says for each office, and certify him.
"If the Committee has only one office under its jurisdiction, it certifies one name; if it has these various offices, it certifies the highest man for each place. Of course, the Legislature may have intended it would include plural offices, in spite of the grammatical construction, but it has not said so clearly, and it would be inconsistent with the theory of plural offices, as I see it, and at best it looks like a hiatus in the law.
"Unfortunately, there are so many things to be considered by the Legislature in adopting these long statutes that the *Page 715 members and committees cannot think of every situation that might come up.
"With respect to the authorities, there is really no Supreme Court decision interpreting this provision, so it is really from the standpoint an open question.
"There has been cited to the Court the case of McBurney versus McGregor, decided in 1920, where four candidates were running for the Legislature and three of them received a majority. The Committee certified two names, and the District Court and the Circuit Court sustained the committee. If that decision were strictly in point, I would feel, as a district judge sitting in this parish, bound to follow it, but the point in that case construed the primary law in existence at that time, which was Act 35 of 1916. Now, Act 35 of 1916 did not have in it this requirement that the Committee certify the name or names of the person or persons shown as having received the greatest number of votes, and there was no such language in the statute at that time. That language was put into the law for the first time by, I think it was, Act 8 of the Second Extra Session of 1934. So that Court of Appeal, when it construed the 1916 act did not pass at all on the proposition which the court here is called upon to pass on today.
"The decision, therefore, would only have a bearing if the present statute did not have this requirement in it.
"On the other hand, there has also been cited to the Court the case of Bauer v. Gilmore, which involved a legislative race in the Parish of St. Mary in 1936. There *Page 716 were three candidates there, and all three received majorities, so the Committee was faced with the same situation and it asked for an opinion of the Attorney General. The Attorney General, giving his opinion under this new provision of the law which has been inserted in 1934, advised the Committee to certify the name of the top man only and to order a second primary between the other two. The Committee followed that advice and the candidate who received the highest vote was certified, and then a lawsuit resulted between the other two; Bauer filing suit against Gilmore. The Court of Appeal dismissed the suit because of lack of a necessary party defendant. The committee was not made party to the suit. So the decision is not in point. Nevertheless, it may have some persuasive effect, for this reason, that the ruling was made under the new law and it was made a matter of judicial record in this case.
"Subsequently, the plaintiff in that suit, Bauer, was elected and served as Speaker of the House, and this primary law of 1940 came before that same session. In a matter of so much public interest it would appear that if the Legislature wanted to change this law as thus interpreted it would have done so, but it not only did not change the provisions, but re-enacted this particular sentence in the identical language. If that had been a Supreme Court decision, instead of a ruling of the Attorney General rendered to the Committee and put into operation, there would be no question but that it would amount to a legislative ratification of that interpretation. In other words, where the Supreme Court interprets the law and the Legislature meets later *Page 717 and does not change it, the recognized rule is that the Legislature has approved the interpretation of the Supreme Court.
"However, this was not a Supreme Court decision, and the Attorney General's opinions do not have the same force. Nevertheless, I may construe this provision in the light of that history, which is very persuasive, even though not conclusive. So that with one case cited to the Court having reference to an old statute which did not have this provision at all, and the other case which did not decide the point, but nevertheless has some persuasive effect, the authorities, if they may be called such, may be said to support, even though weakly, plaintiff's position in the matter.
"Now, there is one final factor which I think should be controlling in the light of the other factors, and that is this: Wherever possible, the Supreme Court has always construed the primary law to give as much latitude as possible to the people in the selection of their public officials. Here you have two possible interpretations of the statute, one, in my opinion, sounder than the other; but granting for the sake of argument that both are of equal weight, it would seem to me that in determining which interpretation to adopt, the Court should take that interpretation which gives to the people in a Democratic government full and free power to select their public officials rather than that which vests the determination of that question in a committee or in the court.
"In other words, if both interpretations are entitled to equal weight, the people should be the ones to determine the candidate *Page 718 rather than the committee or the court, and I think that is particularly true in days like these when Democratic government is fighting for its existence. Of course, if the statute were clear and open to one construction only, the Court would be bound to accept that construction, whether it took that power away from the people or not. If the statute were clear in reserving it to the people, the Court could not take it away, even though the Court thought it should. But where you have two constructions equally sound, certainly the primary law should be resolved that way which would leave to the voters of the State, in this instance of this parish, freedom to determine which of the candidates they wish to serve as their official.
"There is one other serious point, and that is the argument made by the defendants that the primary law does not provide for a second primary in cases of this kind. It is argued that Section 80 provides for second primaries only where no candidate receives a majority. That section, too, is badly worded, because it begins by saying: `If any candidate has failed to receive a majority of votes cast' there shall be a second primary. If that is taken literally, there must be a second primary wherever there is a first primary. There is always some candidate who does not receive a majority. That would be a ridiculous interpretation to put upon that language. Taking the section as a whole, it means wherever there has been no choice in the first primary there must be a second primary.
"I think that section must be construed along with Section 76. The usual rule is *Page 719 that all sections must be construed with reference to each other. If Section 76 means that the committee can only certify the top man, the man with the greatest number, then Section 80, in the light of that, means wherever there has been no choice by virtue of the fact that there has been only one man with the greatest vote and there is still some position to be filled, then there is no majority within the meaning of the statute, and a second primary must follow. Otherwise, you would have a situation where it would be impossible to fill the second position, and the Legislature could not have contemplated any such result. In other words, construing both sections together, I think Section 80 means that where there has been no choice in the first primary as required by the statute, then there must be a second primary in order that the people may make that choice.
"Considerable time during the argument was given to the question of whether this was a state or local office. Very strong argument has been made that since judges perform state functions they are state officers within the meaning of the act. Also, a strong argument has been made that local offices are defined in a restricted way in this statute, and the Court must apply that restricted meaning of local offices; and, therefore, the judges come under the heading of state officers.
"Frankly, I do not see that it is necessary for the Court in this case to determine that point. The evidence shows that the returns compiled by the Secretary of State and the returns compiled by the committee show exactly the same result. There would be nothing but a waste of time gained by *Page 720 requiring the Secretary of State to compile these returns and certify them to the committee and then require the committee to make a new certification. It would only entail delay and result in no good, and the law abhors delay in cases of this kind. The statute provides for a speedy trial and a speedy determination of the issues in order that the primaries may be held within the time fixed by law. If the matter has to go back to the Committee, there might not be time to go through the formality of a new certification and a new law suit.
"The evidence shows that the Secretary of State has never compiled the returns for judges throughout the state. I see no reason to disturb the Secretary of State's administrative interpretation of that provision over a long period of time.
"If the first paragraph of Section 76 and the second paragraph of Section 76 were different in their provisions in so far as the certification of nominees is concerned, that is as to who should be certified, then it would be necessary to pass on that question, but as I read that whole section, there is no difference between the proceedings in the first and second paragraphs except as to what compilation shall be used by the committee. Since both compilations show the same result, and since the Secretary of State has never compiled the returns for elections for judges, I am of the view that it is not necessary to determine that question, in this case, and that it is not necessary to disturb the practice which has been in force so long.
"I think, therefore, that the exception of no right of action, no cause of action and *Page 721 lack of jurisdiction should be overruled, and that there should be judgment for plaintiff in conformity with this opinion. The Judgment will be prepared by the parties in accordance with the practice in this district."
I therefore respectfully dissent from the majority opinion.