On Application for Rehearing. ■
O’NIELL, J.This is a contest over the election of a marshal of the town of Abbe-ville. The election was held on the 5th of April, 1920. Plaintiff and defendant were opposing candidates for the office, and defendant was declared elected. In this suit, plaintiff contended, first, and for reasons specifically set forth in his petition, that he was elected to the office, and, in the alternative, that is, if the court should hold that he was not elected, then that the election should be declared null, for reasons specifically set forth in the petition.
Defendant excepted to the petition, averring that the two demands were so inconsistent that they could not both be urged, even in the alternative. He prayed, therefore, that plaintiff be compelled to elect which one of the two demands he would prosecute. The judge so ordered; and, there being no right of appeal in eases of this character, plaintiff invoked the supervisory jurisdiction of this court.
Our first impression was that the ruling complained of was correct — that it was inconsistent and illogical for plaintiff to demand, first, that he be declared validly elected, and, in the alternative, that the election be declared invalid. But, on further reflection, the alternative demands appear to be strictly in accord with the statute. Section 1422 of the Revised Statutes, providing for such contests, declares:
“The trial shall be conducted and submitted to the jury according to the laws by which other jury trials are governed. A majority only of the jurors shall be required to return a verdict. The jury shall have power to determine by their verdict which of the parties is entitled to the office, or to refer the same again to the people. The court shall have no power to grant a new trial as in other cases, and no appeal shall be allowed.”
It is conceded, in the opinion of the district judge, that plaintiff might have urged both of the alternative demands in one suit, if he had reversed their order, demanding’ primarily an annulment of the election, and secondarily that he be declared elected. We do not see how that would have made the demands more consistent. In fact, there is no inconsistency in plaintiff’s contending that he was elected, and that, if he was not elected, it was not because he was fairly defeated, but because the election was not legal.
For these reasons, it is ordered that the ruling complained of be reversed, and that *889the case be proceeded with in the district court according to law and in accord with the foregoing opinion. Defendant is to pay the costs of the present proceeding in the Supreme Court; all other costs are to depend upon the final judgment. The right is reserved to defendant to make application for a rehearing.
PROVOSTY and SOMMERVILLE, JJ., adhere to the original opinion.