On Application for Rehearing. When this case was decided I had intended to file a concurring opinion,1 but I thought that Judge HIGGINS (obiter dicta put aside) had so clearly disposed of the issues involved that nothing more was needed. However, subsequent events have led me to believe that a restatement of the issues, and of the view which I took of them, which impelled me to the same conclusion as he had reached, would be not inappropriate; for as Lord Mansfield said, "`Tis pity that reporters [and others] sometimes catch at quaint expressions that may happen to be dropped at the bar or bench, and mistake their meaning." Miller v. Race, 1 Burr. 452. *Page 537
I. The question presented in this case is not a new one before this court. Nearly five years ago (November 28, 1927) this court had before it, and disposed of, the case of Melerine v. Democratic Parish Executive Committee of St. Bernard Parish, reported 164 La. 855, 114 So. 711, involving exactly the same point presented in this case. And the court was then constituted as it is at present, except that Mr. Justice Thompson has since then been succeeded by Mr. Justice Odom. The opinion in the case was written by this writer and concurred in, as written, by Justices Overton, Land, Rogers, Brunot, and Thompson. The Chief Justice dissented; but his written reasons do not show that he dissented upon that part of the opinion which deals with the point involved in the case now before the court.
Less than a year ago (December 7, 1931) this court had before it, and disposed of, another phase of this very same question in State ex rel. Hinyub v. Parish Democratic Executive Committee for Jefferson Parish, reported 173 La. 857, 138 So. 862, Mr. Justice Odom wrote the opinion and it was concurred in, as written, by the Chief Justice and by Justices Overton, Land, and Rogers. Justice Brunot and this writer dissented without written reasons, but their concurrence in the Melerine Case argues that their dissent could not have been based on a disagreement with Justice Odom's opinion so far as it dealt with the question with which we are now concerned.
II. Nearly twenty-five years ago (January 9, 1908) this court then composed of Chief Justice Breaux, and Justices Nicholls, Monroe, *Page 538 Provosty, and A.D. Land, speaking through Justice Provosty, in Langridge v. Dauenhauer, reported in 120 La. 450, 45 So. 387, 388, said (unanimously):
"There is nothing in * * * the statute [the Primary Election Law, then Act 49 of 1906], to indicate that it was the purpose of the law makers to obstruct with mere technical difficulties * * *the right, which every citizen has, to seek the approval of his political associates, or of the public at large. To the contrary, the whole spirit of the legislation is to encourage themultiplication of worthy candidates for nominations to public office, in order that the body of voters constituting a political party, or constituting the electorate at large, may have the benefit of a choice, and not be compelled to accept candidateschosen by the minority or thrust upon them in some other way." (Italics mine.)
The Primary Law, then as now, draws no distinction between so-called serious and so-called frivolous candidates (termed "dummies" in the cant of the day), wisely appreciating the fact that it is for the voters themselves, and not for courts of law and political committees, to determine (in advance of anexpression thereon by the voters) who, among the candidates offering for the nomination, are serious, and who are not; and who are worthy and who are not. Those great judges (for they were great judges, all) said nothing about serious and frivolous candidates, and no such distinction was ever heard of until to-day. A serious candidate is simply any candidate who willaccept the office, if he can get it, and takes steps by which he might get it. And no one can injure another by using his law-given right to become a candidate for *Page 539 a public office. "Qui jure suo utitur, nemini facit injuriam."
And for the practical result contemplated by the Primary Election Law, the worthiest and most serious candidate is simply the candidate who gets the most votes — which cannot be known in advance of the election.
III. Eleven years ago almost to the day, there was a primary election for nomination for Judges of the Supreme Court (August 23, 1921). There were two vacancies. I was a candidate for one of the nominations and was defeated, only to be nominated for theother vacancy within the next 60 days. My troubles are my own, and I do not mean to burden any one with them. But the circumstances under which I became the nominee for the othervacancy have a bearing on this case.
The Hon. Emile Godchaux, with whom I had the pleasure and distinction of serving on the Court of Appeal for nearly ten years, who was an honor to that bench and would have been an honor to any bench on which he was called to sit, was one of four candidates for that other vacancy, and was opposed by three able, worthy, and distinguished lawyers. He was the choice of the voters; who paid him the graceful compliment of giving him a majority of 2,000 over all, and of two to one over his nearest competitor.
After the election, and whilst Judge Godchaux was still receiving the congratulations of his admirers and friends, but "within the time prescribed by law," one of his opponents raised before the courts the question of his qualifications, to wit, that he was not a legally "bona fide" resident of the state and *Page 540 district within the meaning of the Constitution.
Just as "all roads lead to Rome," so also do all lawsuits in this state head, directly or indirectly, towards the Supreme Court; and the case of Hall v. Godchaux eventually reached this court. It is reported in 149 La. 733, 90 So. 145, 149.
Under the then existing Primary Election Law (Act No. 49 of 1906), the question of a candidate's "qualifications" could be raised at any time, even after the election, provided it was raised within two days after the promulgation of the returns by the secretary of state.
The case was heard before a court of "seven judges," the new Constitution having added two judges to the former number of five. The regular judges of the court were Monroe, C.J., and Provosty, O'Niell, Dawkins, and Overton, JJ.; and because of vacancies, Judges Porter, of the Court of Appeal, Second Circuit, and Brunot, of the district court of Baton Rouge, were called in to make up a full bench.
The court was unanimous in paying tribute to the sincerity and honesty of purpose of Judge Godchaux; but divided four to three on the question whether or not Judge Godchaux was a legally "bona fide" resident of the state and district.
Mr. Justice Dawkins was the organ of the court. Speaking for the majority, in an able and learned opinion, wherein the law and the facts are exhaustively marshalled and reviewed, he held that: "The record, we think, discloses that Judge Godchaux was in good faith and that he intended to make the De Soto Hotel, [in New Orleans] his voting *Page 541 domicile, if that were legally possible under the facts which we have outlined." But "Unfortunately for Judge Godchaux, the law does not allow one to become an elector by constructive residence, nor is the matter controlled solely by intention, no matter how bona fide it may have been." And thereupon he announced the conclusion of the majority of the court that: "Defendant [Judge Godchaux] was not an elector under the Constitution and laws of this state, in that he was not an actual bona fide resident [of the State] * * *; hence he is precluded from receiving the nomination for the place which he seeks." Chief Justice Monroe, Justice O'Niell, and Judge Brunot concurred. Justices Provosty and Overton, and Judge Porter, dissented; being of opinion that "defendant [Judge Godchaux], at the time of the primary, was an elector of * * * the parish of Orleans, and eligible to the office of Associate Justice of the Supreme Court from the First Supreme Court district."
Whereupon the judgment of the court was "that the nomination of the defendant, Emile Godchaux, be annulled, and the primary election set aside and held to have been without effect." Oct. 3-15, 1921.
Thereupon the state central committee met and was about to name a candidate in the place and stead of Judge Godchaux. Act No. 49 of 1906, § 29.
Whereupon the Governor of the State, on the advice of the Attorney General, canceled the existing call for a "General Election," but issued a new call for a "General Election" shortly afterwards. It was at the primary election which preceded this newly called "General Election" that I became a candidate for the second time, and was nominated. *Page 542
IV. The Hall-Godchaux Case itself has no bearing here, but it is from the history of that case, and the events which gave rise to it, that we learn the genesis of our existing primary law, and the purpose thereof (Act No. 97 of 1922, p. 178), and particularly of section 11, p. 181, of said act, the like of which was not contained in the former Primary Law (Act No. 49 of 1906) under which the Hall-Godchaux Case found its way into the courts; for there was no provision in the former law, as there is in the existing law, requiring that any "objection" to a candidate shall be made before the committee calling the primary, and "shall contain in detail the reasons why such other candidate is not a duly qualified candidate under the qualifications prescribed by the party calling the primary," and requiring further that "such objection shall be made within five days after the last day upon which persons may file notification to become candidates"; and providing that if such objection be not sustained by the committee their action shall be final, and recourse may be had to the courts only when such objection is sustained and only by the person thereby declared disqualified. Vide section 11, aforesaid.
It is urged that the only "qualifications" which must be challenged before the committee are the qualifications "prescribed by the party calling the primary." Well, are we to have another Hall-Godchaux Case, if the ingenuity of counsel can discover some constitutional, or legal, or supposed equitable or moral, ground for disqualifying a candidate, which are not "prescribed by the party calling the primary"? *Page 543
Judge Godchaux was not disqualified because of any lack of "qualifications prescribed by the party calling the primary"; he was declared disqualified for lack of a qualification prescribedonly by the Constitution. Are we to suppose that the Legislature of 1922, which passed the new Primary Law within a few months after the Hall-Godchaux Case was decided, was a body so inane and incompetent that, being intent on preventing a recurrence of such cases, it did everything else but that?
And what judge, sitting to administer the laws of the state, and forbidden to distinguish between "odious laws and laws entitled to favor" (R.C.C. art. 20), has a right to declare, asa judge, that to be "reprehensible" which the law permits.
Every one knows, as an individual, that he has the instincts of a thief who buys real estate, knowing it to have been already sold but the deed not registered. Yet, a great judge, my honored predecessor on this bench, has said that the law does not "discriminate between those who acquire property with knowledge of unrecorded titles and those who acquire without such knowledge," and "it cannot be said that one perpetrates a fraud who merely treats as utterly null and void a contract which the law in terms declares `shall be utterly null and void' [except between the parties thereto]." Monroe, J., in McDuffie v. Walker,125 La. 152, 51 So. 100, 105.
In the eyes of the judge, forbidden to distinguish between laws that are odious and laws entitled to favor, that only can be "reprehensible" which the law forbids, and that is lawful which the law allows. When he goes *Page 544 beyond this he is simply setting himself above the law.
V. "Qui haeret in litera, haeret in cortice." And, "The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it." R.C.C. art. 18; Succession of Baker, 129 La. 74, 85, 55 So. 714, Ann. Cas. 1912d 1181. The spirit of the Primary Law is "to encourage the multiplication of worthy candidates" (Langridge v. Dauenhauer, 120 La. 450, 45 So. 387, 388, supra), and the worthiness of a candidate is to be judged exclusively by the voters. See, supra, and cf. State ex rel. Trosclair v. Parish Democratic Committee, 120 La. 620, 624, 45 So. 526. The cause which induced the Legislature to put section 11 into the Primary Law was to prevent a recurrence of the conditions under which the Hall-Godchaux Case, supra, was decided.
Some stress is laid on the words of section 11 that "said objection [before the Committee] shall contain in detail the reasons why such other candidate is not a duly qualified candidate under the qualifications prescribed by the partycalling the primary." (Italics mine.) But the only qualifications prescribed by the party calling this primary and not also prescribed by the Constitution and by law is that the person shall be a White Democrat.
Now Judge Godchaux had been deprived of the nomination, not (of course) for lack of the qualifications prescribed by the party, but for lack of the qualifications prescribed by the Constitution. It is therefore untenable, without convicting the Legislature of an absurdity, that section 11 (intended, as above *Page 545 said, to meet the Hall-Godchaux Case) gave to the committee the right to inquire only whether the candidate was a "White Democrat." That might have been a reasonable interpretation of the law had it been passed to meet the Trosclair Case,120 La. 620, 45 So. 526, supra, but it is clearly not the proper interpretation to be given to a law passed expressly to meet the Hall-Godchaux Case.
VI. No such meaning for the law was claimed in the Melerine Case,164 La. 855, 114 So. 711, supra, although it would have been advantageous to either side to do so; and no such meaning can be given to it now. So that, under the Hinyub Case, 173 La. 857,138 So. 862, supra, the right of the defendants, who had entered the primary by exactly the same procedure followed by plaintiff, could not be challenged at the time they filed their notification with the chairman of the committee; and under the Melerine Case,164 La. 855, 114 So. 711, it could not be challenged unless opposition was first made before the committee.
VII. And I take it to be self-evident that if defendants were entitled to be candidates they were also entitled to furnish names from which the commissioners at the polls were to be chosen. Section 25 of Primary Law (Act No. 97 of 1922).
VIII. But since the decision in this case, and whilst an application for rehearing was pending, the status of the defendants haschanged.
I have been officially advised by the secretary of state that the defendants have formally withdrawn as candidates. *Page 546
His notice (by wire, which I attach) is dated from the State Capital, September 2, 1932, addressed to me as "Justice of the Supreme Court," signed by "R.H. Flower, Assistant Secretary of State," and reads as follows:
"Ballots to be used in Second Public Service Commission district will have printed thereon the names of Dudley J. LeBlanc and Wade O. Martin only, all other candidates having withdrawn officially."
Hence, if the committee has not already selected the commissioners of election at a time when they were still candidates and entitled to furnish names for commissioners (theirsubsequent withdrawal not affecting their right at the time, nor the regularity of any drawing which then took place), they arenow no longer entitled to furnish names for commissioners, beingnow no longer candidates.
IX. And it is a familiar rule of law that an injunction, though improperly issued, will not be dissolved when a new injunction might issue at once.
I think the injunction herein issued improperly, but that a new injunction might now issue if the commissioners of election have not yet been chosen.
For this reason, and this reason only, I think a rehearing should be granted, and such disposition be then made of the case as the circumstances thereof may then warrant.
Justices OVERTON, BRUNOT, and HIGGINS state that they concurred in granting a rehearing on the ground that, taking judicial cognizance of the records of the state of Louisiana, it appeared that the relators had withdrawn as candidates, and therefore *Page 547 respondent should be granted an opportunity of showing what effect that circumstance had upon the jurisdictional question presented. But respondent has made no effort to favor the court with any brief on the subject and has been content to rest his case upon the original record. Upon a review of the case we find that the original judgment of this court herein is legally sound and in accord with the jurisprudence of the state, and therefore the original opinion should be reinstated and made the final judgment of the court.
1 For the "concurring opinion," see Appendix and note at end of this case.