Concurring Opinion.
Levy, J.On a careful consideration of the application for a rehearing, and after examination of further authorities applicable to the case, I am of the opinion that it was competent for the District Court, on the trial of this contested election suit, to receive testimony going to show or establish the fact that the two papers or statements purporting together to constitute the return of the Leonville box, did constitute the proper return, and that for the purpose of showing this fact extrinsic evidence could be received. I think that the irregularities as to the returns are not fatal and do not justify the exclusion of the votes cast in that box, but that it was competent to resort to a count of the ballots which had been deposited in the box, for the purpose of ascertaining the true voice'of the voters, as expressed by the ballots themselves. While the law points out certain formalities to be observed as to the returns of the commissioners, a failure to comply with its directions does not per se vitiate the election, and if there are means by which the true vote can be ascertained, such means must be resorted to by the court before which the contest is pending. In this case the irregularities and uncertainties as to the validity of the return of the Leonville commissioners, the doubt arising on their inspection and on their faces as to whether either of the papers was, of itself, an entire return, or whether both together made up and constituted the legal return, justified the introduction of extrinsic evidence to prove the facts in regard to these *875returns. If irregularity in the returns or errors of form therein cannot be explained by extrinsic evidence, and irregularity and error are fatal defects, which operate to vitiate the election, it would follow by logical reasoning that when the returns are regular in form they will be conclusive, and, being on their face correct, cannot be attacked. The consequence would be that the voters would be bound by the returns of the commissioners, and bad or corrupt men could with impunity, if they were so disposed, substitute their will, as set forth by their returns, for that of the people, and these returns, being sacramental, could not be attacked or even investigated, either with a view to show their incorrectness through fraud, or otherwise, or on the other hand to establish their correctness, and the right of contest would then be a barren right, from which no remedy could follow. In this case the' issues as to the regularity or irregularity of the returns being before the court, the allegations of fraud, error, etc., being also made, and evidence on that score introduced, the court had the right and properly resorted to the means of determining the true vote cast at the Leonville poll by opening the ballot-box and counting the ballots. To justify this, and to entitle the ballots to consideration as evidencing the true vote, it was necessary to prove that the box containing them had not been tampered with, that its contents were the same as when sealed and closed by the commissioners, and the requirements of law as to its custody and preservation had been complied with. The ballots in this box were counted in court in presence of the judge and the jury. This count showed a different result from that set forth in either of the statements or returns, or in the aggregate statements, if construed and taken together, or in the return of the recorder. The question then to be decided was whether the recorder’s return, based upon these statements of the commissioners,, was the true return of the votes east at the Leonville poll, and did the ballot-box contain the ballots as cast by the voters at that poll, and had' it or not been tampered with. A careful examination of all the testimony satisfies me that the box opened in court contained all the ballots which had been cast on the day of election at the Leonville poll, and none others ; that it had not been tampered with, that the ballots counted on the trial were the ballots as cast by the voters, and that the result of these votes was 145 for Duson and 243 for Thompson, and these being respectively added to the votes received by them at the other polls of the parish, viz.: Duson 2839, Thompson 2713, gave Duson 2984 and Thompson 2956 votes, and Duson was therefore elected by a majority over Thompson of 28 votes. The testimony shows that the box was in the custody of the proper officer and his deputies, and the presumption that officers perform their duty, under the maxim as applicable to them, “ Omnia- presumuntur rite acta,” is justified by their positive testimony *876that the box had not been tampered with, and that it was produced and opened in court on the trial of the case just as it was received by them from the commissioners. Consideration of all the testimony adduced as to the identity of the box and absence of interference with the ballots convinces me on these points. ■ I cannot allow mere surmises and vague suspicions, unsupported by positive testimony or substantial facts, to outweigh the evidence which has convinced me. While not in any manner assailing the integrity of the jury or the sincerity of their belief in the correctness of their conclusions on the. facts and testimony, and disposed to accord great weight to the finding of j uries on questions of fact submitted to them, I am still compelled on my own investigation and consideration of the facts and testimony in the record to differ with them in my conclusions, but diffidence in that respect is entirely overcome by the earnest and solemn conviction in my own mind of the correctness of the views which I have taken. I, therefore, see no reason for disturbing the decree of the court rendered herein, and with these reasons for concurrence in the decree, think the rehearing applied for should be refused.
The Chief Justice concurs in this opinion.