(concurring). I concur in the decree, and also in the opinion, as far as it goes; but there are some things into which the opinion does not go, and into which I think it well to enter.
I.
When the case was first under consideration I entertained serious doubts as to the jurisdiction of this court. It is true that the primary law, Act 97 of 1922, section 27, pp. 196, 197, declares that—
“In elections held under the provisions of this act all contests shall be made before the courts of the state, as herein prescribed, which are hereby fully vested with the necessary power, authority, and jurisdiction to hear, try, and determine the same. * * * The party cast [in the court of original jurisdiction] shall have the right to appeal as in other cases, * * * the emoluments of the offices involved for the full term being hereby made the test of the appellate jurisdiction. * * * ”
But, ordinarily, the Legislature cannot either give or withdraw jurisdiction from this court, the jurisdiction thereof being fluted, by the Constitution itself. That jurisdiction does not extend to mere civil or political rights. See Ryanes v. Gleason, 112 La. 612, 36 South. 608; Conerly v. Democratic Committee, 130 La. 457, 58 South. 148; State v. Lobrano, 146 La. 509, 83 South. 786, and others therein cited.
Now the emoluments of the office herein involved amount, for the full term, to more than $2,000, so that if title to the office itself were involved there is no doubt that this court would have jurisdiction. Const. 1921, art. 7, § 10, par. 3, p. 39.
But the amount (matter) in dispute, in this ease is not the title to the office, but the right to a party nomination for that office; and whilst the jurisdiction of this court might be maintained on the ground that the title to the office itself is involved, I have concluded that the jurisdiction really .comes from another source, to wit, the, express grant of authority to the Legislature in ar*347tide 8 of the. Constitution of 1921, p. 74, to wit:
“Section 12. The Legislature shall provide by law for the trial and determination of contested elections of [for] all public officers, whether state, district, judicial, parochial, municipal, or ward (except Governor and Lieutenant Governor), which trial shall be by the courts of law, and at the domicile of the party defendant.”
And the opening words of section 15 (page 75), to wit, “All elections by the people, except primary elections and municipal elections in towns having a population of less than 2,500, etc.,” show that, within the meaning of the Constitution, the word “election” includes primary elections, unless specially excepted.
So that we find in section 12, aforesaid, not only express authority to provide for “contested elections,” but a mandatory direction to do so. That is to say, the Legislature is commanded to provide for the trial of contested primary elections, which contests shall be before the courts.
I take it, then, that since the Legislature is commanded by the Constitution to provide for the trial of contested election cases before the courts, it is vested by that instrument itself with all the power necessary to carry that command into effect; and if, here and there in the Constitution, provisions be found which, in their general application, would conflict with the power necessary to regulate such contests effectively, then such conflicts must yield to the power thus specially granted.
In Taxpayers’ Association v. New Orleans, 33 La. Ann. 568, plaintiffs attacked, as unconstitutional, Act 74 of 1880, relative to liquidating the indebtedness of said city, on the ground that said act was local and special, and had not been advertised as required by article 48 of the Constitution of 1879. The court held that even conceding the act to be local and special, yet it was passed by express command of the Constitution, article 254, and hence the prohibition in article 48 against passing local and special laws without previous notice, was not applicable.
In Davidson v. Houston, 35 La. Ann. 493, plaintiff attacked the constitutionality of Act 38 of 1880, providing for the publication of tax advertisement in the French language, in New Orleans, on the same ground that Act 74 of 1880 had been attacked, as aforesaid. The court held that the statute was passed under authority expressly granted in article 154 of the Constitution, and hence, again, the prohibition in art. 48 did not apply.
From these I conclude that when the Constitution expressly grants certain powers to the Legislature, and particularly when the Constitution lays certain definite commands upon the Legislature, any provisions of the Constitution which conflict with such grant, or which hinder or nullify such power must yield to the necessities of the situation.
Now, if appellate jurisdiction be made to-depend solely on the amount involved, and if a party nomination can be said not to involve the .emoluments of the office (and, it might be said in some cases), then the necessary consequence thereof would be that all contested election cases would go to the Courts of Appeal. If that were all, it would signify nothing, for I am satisfied that the able judges who preside in those courts are quite competent to decide' them correctly. But that is not all. If the provisions of the Constitution are to be the sole guide in such appeals, then we have section 11 of article 7, p. 41, according to which the judgments-of the Courts of Appeal do not become ex-ecutoi*y until 30 days after an application for rehearing has been denied, and until this court has acted upon an application for a writ of review if made within said 30 days; which delays do not begin to run until notice be given in accordance with the rules adopted by said Court of Appeal. Const, art. 7, § 24, p. 45; also Salittes v. Southern *349Pub. Co., 140 La. 739, 743, 73 South. 847, and especially Vidrine v. Dupre, 136 La. 820, 823, 67 South. 893.
But all the cumbersome procedure (which the defendant, if cast, would certainly insist upon, since, if no final judgment be rendered in time, he would continue the nominee [Primary Law, § 31, p. 201]) would certainly result in no contested election case ever being finally disposed of in time for printing and distributing the ballots for the general election. And hence the whole plan for a contested primary would prove abortive.
Hence it was that the Legislature provided for no rehearings, and failed eco industria to provide for a writ of review to this court in contested election cases appealed to the Courts of Appeal; thus leaving the judgments of said courts in such matters final from date of rendition.
All of which it had the right to do under section 12, page 74, quoted above.
I am, therefore, of opinion that the Legislature had absolute authority to fix the jurisdiction on appeal in contested election cases as it thought proper; and I concur in the judgment overruling the exception to our jurisdiction herein: filed.
It was upon these grounds that on' April 2, 1924, we refused a writ of review to the Court of Appeal for the parish of Orleans, in the matter entitled James Barrett v. Thomas J. Dobbins, 155 La. 1017, 99 South. 855, No. 26,552 of our docket, where we said:
“The writ herein prayed for is refused for the reason that a writ of review does not lie from this court to the Court of Appeal in contested primary election cases, and the judgment of that court in such cases is final and executory from rendition.”
II.
I concur fully in so much of the opinion as in effect refused to entertain an action to strilce from the registration rolls the names of voters in a manner different from that provided by the Registration Law, Act 122 of 1921, § 9, p. 303; or by article 8, 5, par. 2, p. 73, of the Constitution of 1921 (excepting those specially denied the right to vote even though registered, by section 6, p. 73, and paragraph “a” of section 1, p. 69, of the same article, to wit, criminals, idiots, etc., and those who have removed since registering).
III.
I dissent from so much of the opinion as in effect permits voters to testify how they would have voted, if allowed to do so. Persons offering to vote, and claimed to be disqualified, should, none the less, have been allowed to vote under protest in the manner hereinafter stated (and their votes counted or not counted as the commissioners might decide).
Where this was not done, and sufficient number of them to have changed the result of the election were denied the right to vote by the election officers (without fault of their own), the election should he annulled, regardless of how they might have voted. Payne v. Gentry, 149 La. 707, 711, 90 South. 104; Bartmess v. Hendricks, 150 La. 627, 629, 91 South. 68; Hart v. Picou, 147 La. 1017, 86 South. 479; Vidrine v. Eldred, 153 La. 779, 96 South. 566.
Where they were not sufficient in number (offering to vote) to have changed the result, the election must stand, and the electors (if qualified) relegated to their action for damages. Bridge v. Oakley, 12 Rob. 638 (Judge Martin’s last opinion).
But this court cannot hold a new (and perhaps different) election at this time and place. Whatley v. LaSalle Parish School Board, 155 La. 797, 99 South. 603 (our No. 26,359).
*352IV.
I further dissent .from so much of the opinion as in effect allows voters to attempt, in effect, to identify their ballots by swearing that they voted this way or that. The primary election law allows every candidate a watcher at the polls, and allows every watcher to challenge any voter for any cause, Act 97 of 1922, § 25, pp. 191, 192; but it also requires that every protested ballot shall have attached to it a memorandum setting forth the name of the voter and the ground of protest. Section 20, p.. 188.
. This provision was put there for a purpose, and that purpose was to identify the ballots and prevent the defeat of an election held according to law, by an ex post facto election, the result of which would depend not on the manner in which the electors voted but on 'that in which they might swear they voted (without fear -of contradiction).
At any rate the statute provides a method of proving the contents of protested ballots; and, in my opinion, that method is exclusive of all'others. For it is essentially a matter of public policy what proof shall be admitted to Overturn the publicly declared result of an election held by the duly constituted authorities. The 'electorate in general, the people,' have a more vital interest in such result than even the candidate himself, and infinitely more than the individual voter by Whose oath (incapable' of refutation) said results might be upset. To admit any departure from the method of proof provided by the statute is simply to open the door to all manner of fraud and corruption, and to bring scandal into our elections.
V.
I think the Daisy box should not have been operied for a recount; it is not shown conclusively that THAT box was not tampered with'.
I, therefore, concur in' the result.