
    Stanley J. SMITH et al., Plaintiffs-Appellees, v. Mary C. FLOURNOY, Registrar of Voters, Defendant-Appellant (four cases). Stanley J. SMITH et al., Piaintiffs-Appellees, v. Mary C. FLOURNOY, Registrar of Voters, Almond Nash, Intervenor, Defendants-Appellants. Stanley J. SMITH et al., Plaintiffs-Appellees, v. Mary C. FLOURNOY, Registrar of Voters, Thomas Weston, Intervenor, Defendants-Appellants. Stanley J. SMITH et al., Plaintiffs-Appellees, v. Mary C. FLOURNOY, Registrar of Voters, Arthur Holmes, Intervenor, Defendants-Appellants.
    Nos. 9156-9162.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 3, 1959.
    Certiorari Denied Jan. 11, 1960.
    
      Gravel, Humphries, Sheffield & Führer, Alexandria, and J. Y. Fontenot, Opelousas, for appellants.
    Wright & Hamaker, Winnfield, for appel-lees.
   AYRES, Judge.

These are mandamus proceedings wherein plaintiffs seek to enforce the performance of a ministerial duty of a public official. The plaintiffs are electors of Winn Parish, Louisiana, who have challenged the qualifications as voters of seven registrants. The defendant is the registrar of voters. Three of the registrants, whose qualifications as voters are questioned, have intervened in the proceedings directed against them.

Plaintiffs, complying with the provisions of LSA-R.S. 18:133, made and filed affidavits with the registrar of voters reciting that Randell Powell, Almond Nash, Homer Washington, Eva Lee Webster, Thomas Weston, Arthur Holmes, and Oscar Rainwater are illegally registered, or have lost their right to vote, for the various reasons set forth in the affidavits. Despite the execution and filing of these affidavits with the registrar of voters, she has failed and refused to notify the aforesaid registrants, or to make publication thereof, or to cite or summons them to appear and make proof of their right to remain on the registration rolls; whereupon, plaintiffs invoked the provisions of LSA-R.S. 18:134 and instituted these actions against the registrar, and prayed that a peremptory writ of mandamus issue in each of these cases directing and commanding the performance of the duties of the registrar as prescribed in LSA-R.S. 18:133.

The registrar, in each of these cases, filed and urged exceptions of no cause and of no right of action and a plea of unconstitutionality of the aforesaid statute as being inimical to the provisions of both State and Federal Constitutions and being, in particular, in violation of the provisions of Article 1, Section 12, and of Article 8, Section 5 of the Louisiana Constitution of 1921, LSA, and of the Fourteenth and Fifteenth Amendments of the United States Constitution. The exceptions were also predicated upon the alleged unconstitutionality of the Statute. Similar pleas and exceptions were filed and urged by the registrants who intervened.

The exceptions and pleas were overruled and, on the trial of the cases on their merits, judgments were rendered in favor of plaintiffs and against the registrar-defendant directing and commanding the compliance of the registrar with the provisions of the statute aforesaid. The registrar, as defendant in each of the cases, and the intervenors in three of the cases, appealed.

That a registrar of voters is a public officer and that LSA-R.S. 18:133 makes it the mandatory duty of the registrar to mail the notices and cause the publication to be made as therein provided for is not open to question. The statutory duty imposed by the statute on the registrar is of a ministerial character. A public officer charged by statute with the obligation and responsibility of performing ministerial duties is without right or interest to assert the unconstitutionality of the statute as a defense to an action to compel the performance of such duties. Laws are presumed to be constitutional until the contrary is judicially established; the officers upon whom have been imposed the duty of executing those laws are without authority to oppose their execution, however clear it may appear to them that the statutes contravene the Constitution. The inquiry in a mandamus proceeding alleging dereliction of duty in a public officer in the nonperformance of his duties is restricted to the question of the officer’s duty, as prescribed by the statute, and the ministerial character of the duty he is charged to perform. See Smith v. Flournoy, 238 La. 432, 115 So.2d 809, 815, and the authorities therein cited.

All of the issues of the instant case, with the possible exception of the question of the right of the registrants whose registrations are involved to intervene, were presented recently in the aforesaid case between these parties, and the Supreme Court affirmed a judgment of the district court overruling exceptions of no cause and of no right of action and a plea Uf unconstitutionality of the statute herein involved. However, it was urged there, in an exception of nonjoinder, that the registrants, whose right to remain on the registration rolls was challenged, were necessary parties-defendants. In answer to the contention, the court stated:

“There is no reasonable basis for this exception. It is clear from R.S. 18:134 that the only indispensable or necessary party defendant in this suit is the registrar.”

If the registrants had no interest justifying or warranting their inclusion as parties-defendants, neither could it be said they have such an interest as would warrant or justify their intervention.

The statute (LSA-R.S. 18:134) provides for an expeditious and summary proceeding to accomplish the purposes intended by the statute, and the necessary parties to such a proceeding are designated as the persons making the affidavits challenging the registrants’ qualifications and the registrar of voters. No provision is made for the allowance of interventions which would obviously tend to cause delay and thwart the purpose and intent of the statute in providing a summary and expeditious process to assure the prompt performance by the registrars of their ministerial duties. The time required for the filing, making service of, and putting at issue of interventions, if permitted, would cause delays, present issues, and result in complications not contemplated by the statute, the object of which is to secure the prompt discharge of the duties of the registrar. Had the Legislature deemed that the registrants, whose registration was challenged, had sufficient right or interest at that stage of the proceedings, that is, prior to the service of notice on the registrants, it could have, and no doubt would have, made ample provision for their inclusion as parties-defendants or as to their right to intervene. We therefore conclude the registrants were without right or authority to intervene in these proceedings.

The wisdom of the Legislature in its failure to provide for interventions in the statute involved is fully demonstrated by the present record. Plaintiffs’ petition was filed November 19, 1959, and the rule was made returnable at 2:30 p. m. the following day, at which time the petitions of intervention were filed as were the aforesaid pleas and exceptions. Service of the interventions was not made nor were the interventions formally allowed by the court, or answered or put at issue. The record discloses no formal acceptance of service of the petitions of intervention and only from a statement contained in plaintiffs’ brief before this court could it be concluded service was accepted. The time permitted by statute for the fixing and trial of a rule on the registrar is insufficient, as shown hereinabove, for the filing, allowance, service, and the putting at issue of a petition of intervention without unduly delaying and retarding the trial of a rule against a registrar.

Moreover, the rights of such registrants are unaffected until the registrar initiates action by the mailing and publication of notice in accordance with the terms of the statute. Prior to such action, their rights are unaffected. Nor, by the present action, have they been deprived of any constitutional or statutory rights to which they are entitled.

As heretofore pointed out, the issues presented here have already been set at rest by the Supreme Court in a matter between the same parties. This court is bound by the pronouncements of the Supreme Court as set forth in its majority opinion.

We, therefore, find no error in the judgment making the writs of mandamus peremptory. We do find, however, that the judgment should be corrected in some minor respects for the reason, among others, that the period of time in which the registrar was given to comply with the provisions of the statute has expired pending these proceedings. The judgment should be recast.

Accordingly, it is therefore Ordered, Adjudged and Decreed that the writ of mandamus herein prayed for be made peremptory and that Mary C. Flournoy, registrar of voters for Winn Parish, Louisiana, be and she is hereby ordered and directed to mail the notices of challenge to each of the registrants :

Randell Powell,
Almond Nash,
Homer Washington,
Eva Lee Webster,
Thomas Weston,
Arthur Holmes, and
Oscar Rainwater,

and to cause to be made publication of the filing and mailing of said challenges, in accordance with the statute (LSA-R.S. 18:-133), within 48 hours from the finality of this judgment, provided that all proceedings of whatsoever nature or kind are hereby stayed and held in abeyance for a period of 10 days from December 2, 1959 and/or pending the filing and denial, or the granting and final disposition, of applications to the Honorable, The Supreme Court of Louisiana, for writs of certiorari, prohibition, mandamus, and review, and for a stay order.

It is further Ordered, Adjudged and Decreed that all rights of each of the registrants be and they are hereby fully reserved, without prejudice, in any subsequent action or proceeding.

Amended and affirmed.

HARDY, J., concurs in part and dissents in part, assigning written reasons.

GLADNEY, J., concurs.

HARDY, Judge

(concurring in part and dissenting in part).

In view of the well established jurisprudence of our courts, which clearly enunciates the general rule that a public official is without interest or right to question the constitutionality of a statute under the provisions of which a duty is sought to be compelled in a mandamus proceeding, I concur in the judgment of this court as set forth in the majority opinion with reference to Suits Nos. 9156, 9158, 9159 and 9162, each of which is entitled Stanley J. Smith, et als. v. Mrs. Mary Flournoy, Registrar of Voters for Winn Parish.

However, I am in emphatic disagreement with the conclusions of the majority in Suits Nos. 9157, 9160 and 9161, in which the registered voters, Almond Nash, Thomas Weston and Arthur Holmes, against whom challenges are sought by relators, have appeared by intervention.

My brethren of this court have concluded that the above named parties are without right to intervene in this mandamus proceeding which, so they conclude, involves solely and exclusively the right of relators to compel the performance of a ministerial duty. In support of this position the majority opinion relies upon the pronouncement of the Supreme Court in the suit of Smith v. Flournoy, No. 44,836, 238 La. 432, 115 So.2d 809, 815.

The opinion of Mr. Justice Hawthorne in the above cited case makes no pronouncement as to the right of intervention, for this issue was not involved. However, it is urged that the following declaration in the opinion must be considered as appropriate to the issue which is clearly presented in the appeal before us in these cases:

“In support of her exception of non-joinder relator contends that the registrants whose right to remain on the registration roll is being challenged should be made parties defendant. There is no reasonable basis for this exception. It is clear from R.S. 18 :- 134 that the only indispensable or necessary party defendant in this suit is the registrar.”

I have no quarrel with the above statement, but I do take violent issue with reliance upon it as ground for refusing the rights of intervenors in these cases. There is an obvious distinction between the interposition of a technical exception of non-joinder by a public official and the positive assertion of a right by an intervenor who is entitled to an adjudication thereupon.

The right of intervention by any party having an interest in a suit needs no discussion. Nor is the right of intervention dependent upon permission of the Legislature granted in the provisions of a particular statute, as declared in the majority opinion. The interest which supports the right of intervention is clearly defined in Article 390 of our Code of Practice, whch reads:

“Interest sufficient to warrant intervention. — In order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit, or an interest opposed' to both.”

In my .opinion, no amount of argument could possibly sustain the denial of the interest of these intervenors. It is specious reasoning to urge that the intervenors have no presently existing rights which are affected. Prior to this action intervenors held the status of qualified voters in Winn Parish. This status is being seriously jeopardized by the action of relators under an asserted statutory authority which inter-venors contend is clearly unconstitutional. Of course, it is true that intervenors’ rights to continue as qualified voters are not precluded by this peremptory proceeding. But, the effect of this action is to place a burden of inconvenience and expense upon inter-venors in the assertion and protection of a right which they contend is not only constitutionally guaranteed but is safe-guarded by constitutional provisions as to procedure.

Nor can it be urged that an intervention does not lie in mandamus actions which exclusively seek to compel the performance of a ministerial duty. In State ex rel. Union Central Life Insurance Co. v. Dunn, 133 La. 221, 62 So. 639, the court specifically recognized and sustained the right of interested persons to intervene in a mandamus proceeding.

If, as in the above case, the pecuniary and property interest of individuals are entitled to protection against the coercion of a mandamus proceeding, it is my belief that the inestimably more precious right to vote, which is the very foundation of all our governmental processes, is entitled to equal protection and assurance.

The far-reaching importance of this decision cannot be over-estimated. It is my fear that the relators, supported by the judgment which is rendered, have forged a weapon which may destroy the very things they seek to preserve.  