On the Meeits.
At the general election held throughout this State on December 2, 1879, C. C. Duson and C. M. Thompson were competing candidates for the office of sheriff of the parish of St. Landry.
Thompson having been returned as elected by the recorder of the parish, acting as returning officer of election for that particular office, Duson at once began proceedings to contest the election.
In his petition of contest, which is supported, as the law requires, by a petition of at least twenty voters of the parish, he charges several irregularities and illegalities which go to invalidate his opponent’s election, but he subsequently has abandoned all other grounds, and on appeal he relies exclusively on the following ground of alleged nullity :
That the votes cast at the third ward poll, known as the Leonville precinct, were not legally returned, in this, that on the day following the election the commissioners of that poll handed to the clerk of the court a document purporting to be their return from said poll (which we shall designate as No. 1), showing the following vote for sheriff: Thompson 128, Duson 75. That later on the same day the commissioners illegally re-opened the box which contained the ballots cast at said poll, and which had been locked, sealed, and delivered by them, as the law required, to the clerk of the court, and took from said box another document, purporting to be a return of the votes cast at said Leonville box (which document we shall designate as No. 2), showing the following-vote for .sheriff: Thompson 164, Duson 31. That by the illegal addition of docu*866ment No. 2, as a return of votes, the result of the whole vote of the parish was changed to his detriment; the whole vote of the parish, including the vote shown by document No. 1, being as follows : Duson 2914, Thompson 2841, or a majority of 73 for Duson.
Plaintiff complains of the act of the returning officer in receiving or compiling the second document purporting to be a return, and alleges that a written statement signed by the commissioners on the 8th of December, in which they certify that both documents or tally-sheets should be considered as a continuous' return of the Leonville box, is a nullity, and should not be considered in the compilation of the votes cast at said election, and charges that the compilation made by said returning officer was erroneous, illegal, null, and void.
To this petition the defendant Thompson answers. He denies that the compiled statements originally returned by the commissioners of election give a majority of votes to the plaintiff. He denies that any amended return of the election at the Leonville poll was made. He denies that the recorder, in making his returns, either considered or used any amended return from that poll. He alleges that the recorder, in compiling the returns of the votes cast at Leonville, took into consideration and based his returns exclusively upon the original returns deposited by the commissioners of election at said poll with the clerk of court and sheriff of the parish ; that said original returns consisted of two sheets, one which is admitted to be a tally-sheet, and the other, though erroneously styled and headed a statement-sheet, is in fact also a tally-sheet, and that the tallies on both sheets must be added together in order to ascertain the total vote cast for sheriff, as well as the vote for all other officers voted for at that poll; that the two taken together constitute the true list of tallies of the votes at said poll, the one being a continuation of the other; that such was the true intent and purpose of the commissioners, as intrinsically shown by the returns themselves, and by their explanatory certificate, which plaintiff erroneously styles an amended statement of votes ; that the commissioners at said poll,'from a want of knowledge of their duties, neither made nor returned a statement of votes, but made and returned only tally-sheets, an error and omission of frequent occurrence in this parish.
The case was tried by a special jury, who, after a protracted trial, found in favor of defendant in a verdict which for its unusual style and novelty is reproduced in full:
“ The special jury empaneled in the above entitled suit, having in full view the great importance of the public interest involved in this case, and the sanctity of our oaths, and after fully and conscientiously weighing the' evidence as elicited, and the law applicable to the case, do find that the majority of the good people of the parish of St. Landry *867■did, on the 2d. day of December, 1879, cast their ballots for O. M. Thompson for the office of sheriff of the parish of St. Landry ; and such being the case, the said O. M. Thompson is entitled to the said office, its responsibilities, duties, privileges, and emoluments. Witness our hands, ■duly signed and indorsed on'the back of this verdict.
“ C. O. Hundley, Foreman; B. E. Hardesty, Fremont Dupré, Acdoille Fontenot, H. Frilot, Edmond Savant, Delosiar May, Ohas. S. Hollier, W7 A. Sandoz, Martin Jones, Thos. D. Cooke, Stephen Stuart.”
From the judgment rendered thereon plaintiff appealed.
The record discloses the following facts and incidents connected with the election at the Leonville poll, and the manner of holding the •same, and of making returns thereon, and which are not disputed by either party:
The election was not held by the three citizens appointed as commissioners by the Police Jury (Rogers, Déjean, and Robin), but by F. C. Garriere, Félix Boudreau, and J. D. Higginbothan, who were selected and sworn as such by one A. L. Durio, justice of the peace, at about '7 o’clock a. m., at which time the appointed commissioners had not yet made their appearance, and it being rumored that they would not act.
After the election was closed, the commissioners, assisted by other citizens, proceeded to count the votes, after which they went together to the courthouse at Opelousas with the box and two duplicate tally-sheets, one of which they delivered to the sheriff, and the other to the clerk. The duplicate which they handed to the clerk is the document designated as No. 1, and it is written on what is technically known as a statement-sheet, on which is a printed statement, subscribed and sworn to by the commissioners, reciting in substance that the votes tallied thereon are the votes cast at the Leonville precinct on the 2d of December, 1879, for and against the ratification of the Oonstitution, for and •against the State debt ordinance, for Governor and other State officers, and for all parish and ward officers which are therein enumerated.
They arrived at the courthouse at about 8 o’clock p. m. .on the 3d of December, and delivered this document and the box without delay, taking ■the clerk’s receipt for the same.
A short time thereafter the three commissioners returned to the ■clerk’s office, asked and obtained from him possession of the box and of the key, re-opened the box, and taking therefrom the document herein-•above designated as No. 2, written on a sheet technically known as a tally-sheet, containing in substance identically the same declaration, signed and sworn to, as that in document No. 1, handed the same to the clerk, who placed it in his office along with the document first •described.
It appears further that on the 6th of December the recorder of the *868parish, who under the law was the returning officer of election for the office of sheriff, as the then sheriff was a candidate for re-election, proceeded to compile the returns of the votes cast for said office, in the whole parish, and to make return thereof to the Secretary of State, and that in compiling the vote of the Leonville precinct he considered and counted the two documents hereinabove described as one return, or as a continuous statement of the votes cast for sheriff at that precinct; and which two statements added together make up the following vote : Thompson 292, Duson 106 ; and it also appears that the vote as thus counted, added to that of all the other precincts of the parish, foots up the following final result for sheriff: Thompson 3005, Duson 2945, or a majority of sixty for Thompson. The record also shows that on the 8th of December the three commissioners subscribed and handed to the clerk a written statement, in which they declared in substance that the two sheets handed by them, as above recited, to the clerk, are one continuous tally-sheet, and that the two sheets must be added together to show the full vote received by each candidate at the Leonville precinct.
All other allegations, charges of fraud, irregularities, and counter charges of conspiracies to swindle, and of ballot-stuffing, contained in the pleadings, are strenuously advanced and positively denied by the respective parties, who introduced, on each side, countless documents and numerous witnesses, all of which forms a voluminous record of bitter venom and galling acrimony which it is fortunately unnecessary to consider for a correct decision of this cause. The election of 1879 was carried on under the provisions of Act No. 58 of the Legislature of 1877, extra session.
Section twenty prescribes that the election shall begin at 7 o’clock a. m. and close at 6 o’clock p. m.
Section fourteen provides that if within one hour after the time fixed none of the commissioners appointed by the police jury has made his appearance, the persons present shall hold a meeting and select three commissioners to preside at the election.
In this case the commissioners at the Leonville precinct were selected by one individual, A. L. Durio, and without allowing to the absent commissioners the' delay of one hour required by the section quoted.
It is conceded that no violation of a directory law on elections shall vitiate the election, but this irregularity is shown for the purpose of establishing the continuous and wanton violation of law which characterized the foundation, as well as the crowning act, of the election held at that precinct. No attempt is made by the defendant to explain, much less to justify, this unusual and illegal haste to organize a poll during the absence of the regularly appointed commissioners; the rumor to *869the effect that these commissioners would refuse to act, for the reason that on a previous similar occasion the parish had refused or failed to compensate them for their services, is no justification of this flagrant irregularity, and as the instigator of the proceeding, Duri'o, is shown by the evidence to have been a political foe of Duson, his motive is easily conjectured; and the subsequent conduct and acts of Commissioner Carriére, at whose house he had slept on the night before, shows that he was wise in the selection of his man in order to carry out his design.
But proceeding further, the question to be solved is this, which of the two documents handed by the commissioners is the legal return of the votes cast at the Leonville precinct ? or is there any return at all from that precinct? While conceding that the correct rule in American elections favors a liberal construction of laws governing returns of elections, and that to give effect to the vote of the citizen, the violation of a directory law by an officer cannot justify the rejection of the votes cast at the polling-place, yet it is equally clear, as stipulated in section 19 of act 58 of 1877, that the election is vitiated where it is impossible to decide what candidate received the majority of votes at the polling-place where the election is contested.
It is also an elementary rule of law that when an act is to be done in writing the instrument must make proof of itself, and this rule is essentially applicable to returns of elections. The rule is laid down by McCrary, Law of Elections, section 82, in substance as follows : “ The canvassing or return judges must receive and count the votes as shown by the returns, and they cannot go behind the returns for any purpose, and this necessarily implies that if a paper is presented as a return, and there is a question as to whether it is a return or not, they must decide that question upon the face of the paper itself.”
If in this case the recorder acting as returning officer in the election for sheriff had been guided by this rule, when he came to consider the effect of the two documents which are described above he would have seen that both documents purported to be separately and singly the return itself of the votes cast at the Leonville precinct; neither paper could by itself show that it was the return, to the exclusion of the other, and neither of the documents shows on its face, or contains in any shape or form, any information, statement, or indication tending to show that the one was the beginning, and the other the continuation, of the return or statement of votes polled at that precinct, so as to justify the addition of the two together, so as to get at the correct vote polled ; the very reverse appears, because to each document is appended the sworn declaration of the three commissioners that the votes therein tallied and added are the votes that were deposited in the box on the 2nd of December, 1879.
*870Where, then, did the recorder obtain his information that the two sheets added together contain the votes cast at the Leonville precinct on that day ?
Defendants deny that the officer derived his information from the statement subscribed by the commissioners-on the 8th of December, in which they pretend to convey that information. Admitting this theory, the question recurs again as to his source of information in the premises. It must then be from the verbal statements of the commissioners, or of one or two of them. If such is the case, he then received evidence out of or dehors the paper itself, or of the two papers separately or jointly, and in thus doing he performed an act reprobated and forbidden by law. It will not be gainsaid that after delivering their returns and the box to the proper officer the official existence of the commissioners was at an end, and they became functi officiis. Their appointment encompasses the performance of a special duty, the completion of which fixes the term of their official capacity. Cooley in his Constitutional Limitations, p. 623, says of boards of canvassers: “ The board themselves having once performed and fully completed their duty, have no power afterward to reconsider their determination and cometo a different con-' elusion.” This is a fortiori the case with commissioners, whose duties under our laws are to be performed and completed, if possible, in one day. It is therefore safe to conclude that the three defunct commissioners had no power or authority in law to re-open the box after delivery thereof to the clerk, and to take therefrom the second sheet which they handed to the elerk, and which was subsequently considered by the returning officer as a statement of votes ; and that their written statement of December 8th was a puny usurpation of official authority from which no legal effect can flow and no legal deductions be drawn.
It therefore follows that the returning officer erred in giving effect to both sheets, purporting each to be returns of election from the Leon-ville precinct. It is admitted by the defendant that the commissioners did not even pretend to have made, sworn to, and delivered the compiled statements required by section 32 of the election law, ard that their only returns were the tally-sheets under consideration. Under that law the compiled statements should' be and are required as the best evidence, the custom invoked by defendant to the contrary notwithstanding. But in the absence of the best evidence, the returning officer was perhaps justified in having recourse to and considering secondary evidence. And this, in the nature of things, would or should have been the tally-sheet required by law to be kept in duplicates. And here recurs again the difficulty which the officer had to bridge over when he met the two documents purporting each to be the statement of the votes cast at that precinct.
*871Any impartial mind, unaided by evidence aliunde or guided by ■lights beyond the papers, would find it impossible to solve the problem as to whether No. 1 or No. 2, or the .two together, should be considered as the correct statement, and would therefore find it impossible from the face of either or both of the papers to decide which candidate had received the majority of the votes cast, and the same impartial mind, guided by our own election law, by McOrary on Laws of Election, in sections 302 and 304, where he provides a remedy in face of the impossibility of ascertaining for whom the majority of votes were given, and by our own Supreme Court in 29 A. 610, rejecting the return of a precinct because the polling-place was changed without due notice to the voters, would irresistibly conclude that both documents, No. 1 and No. 2, should be rejected as secondary evidence to supply the absence of the primary evidence, consisting of the compiled statements required by section 32 ; •and that therefore there was-no legal return of the election held at the Leonville precinct; and this conclusion the Court is bound to adopt.
But under American authorities, in order to seek and give effect to the will of the voters of that ward, other evidence, if at hand, or within reach, could and should be used to supply the wanting returns. This evidence was tendered by plaintiff, who prayed the court to open the box and recount the ballots therein found.
Cooley, Constitutional Limitations, says : “ But back of this prima facie case (made by the certificate of election) the courts may go, and the determination of the State Board may be corrected by those of the district boards, and the latter by the ballots themselves, when the ballots are still in existence and have been kept as required by law.”
To that end our statute requires that the boxes, locked and sealed, be delivered in the custody of the clerk, “ who shall keep them in his possession in the same condition for six months after the election.”
Alleging that the ballots had been kept as required by law, plaintiff moved, and the District Court ordered, that the Leonville box be •opened and the ballots therein recounted.
Defendant objected, and has retained his bill of exceptions to the •adverse ruling of the court.
While the evidence introduced in support of plaintiff’s motion does •show that the box opened was the identical Leonville box, yet justice can be done to the parties without formally passing on this bill of exceptions. Defendant has offered no other evidence, and, under our system ■of voting by secret ballots, none was within his reach, to show, without the legal returns, without the duplicate tally-sheets, without a recount of the ballots, what number of votes had been cast for Mm at the Leon-ville box.
By recounting the box, as shown by the tally made under the direc*872tions of the court, the result would show Duson elected by a majority of twenty-eight. If the court erred in re-opening the box and recounting the ballots, there are then no returns from the Leonville box, and that shows a result electing Duson by a majority of one hundred and twenty-six. '
The dilemma is fatal to defendant’s position, and utterly destroys hie prima facie election.
In reference to the appeal taken by the parish of St. Landry, complaining of that part of the judgment which condemns the parish to-pay the costs of this suit, we find that our predecessors had so decreed' in two celebrated cases, and we concur in the reasons which prompted their ruling. 'We are of opinion that Act No. 59, of April 5,1880, can have no effect on this cause, which was then pending, and we shall not disturb the judgment in that particular.
It is therefore ordered, adjudged, and decreed that the verdict of the-jury be set aside ; that the judgment of the lower court in so far as it decrees C. M. Thompson as elected sheriff of St. Landry be avoided,, annulled, and reversed, and in other respects that it be affirmed; and it. is further ordered that Oornelius C. Duson be decreed to have been legally elected sheriff of the parish of St. Landry at the election held on December 2,1879.