
    Louis C. PENDLETON, Plaintiff-Appellant, v. Alphonse JACKSON, Jr. et al., Defendants-Appellees.
    No. 11819.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1972.
    Writ Refused Feb. 8, 1972.
    
      Graham W. Rogers, Bossier City, Henry C. Walker, Margrett Ford, Shreveport, for plaintiff-appellant.
    Stone & Thompson by Jessen Stone, Jr., Shreveport, for defendant-appellee Jackson.
    Hamilton & Sermons by Joel M. Sermons, Shreveport, for defendant-appellee Representative District Democratic Committee No. 2.
    Before AYRES, BOLIN and HEARD, JJ-
   BOLIN, Judge.

Louis C. Pendleton seeks to have the court declare him the Democratic nominee for Louisiana House of Representatives, District No. 2, Caddo Parish, Louisiana. In the alternative, he seeks to have the second Democratic primary election, held on December 18, 1971, wherein his opponent, Alphonse Jackson, Jr., was elected as the Democratic nominee for District No. 2, declared a nullity.

Defendant filed exceptions of prescription, jurisdiction ratione materiae, and a plea of unconstitutionality of the residency requirements of Article 3, Section 9 of the Louisiana Constitution. All of the exceptions were referred to the merits.

After trial the lower court rendered judgment overruling the exceptions of jurisdiction and prescription. The trial judge declined to pass on the exception of unconstitutionality in view of his finding that the defendant did, in fact, meet the residency requirements of Article 3, Section 9 of the Louisiana Constitution. He rejected the demands of plaintiff, who has appealed. Defendant answered, reurging each exception and alternatively seeking af-firmance of the lower court’s judgment. In order to reach the merits of this case, we affirm the judgment of the trial court overruling the exceptions. For reasons hereinafter expressed, we also affirm the judgment on the merits.

Plaintiff concedes the correctness of the lower court’s ruling on the exceptions but specifies as error the court’s finding that the defendant, Alphonse Jackson, Jr., met the residency requirements of Article 3, Section 9 of the Louisiana Constitution.

On August 24, 1971, the United States District Court for the Eastern District of Louisiana, in a case entitled Bussie et al. v. Governor of Louisiana et al., 333 F.Supp. 4S2, ordered a reapportionment plan which created single-member legislative districts and abolished multi-member districts in many of the parishes in Louisiana, one of which was Caddo. The judgment declared that the reapportionment order in no way affected the residence requirements for candidates for the Louisiana House of Representatives or the Senate as provided for by the Constitution and/or laws of the State of Louisiana. On September 14, 1971, this decision, insofar as Caddo Parish and more particularly District No. 2 were concerned, was affirmed by the United States Court of Appeals, Fifth Circuit. Application for writs to the United States Supreme Court were subsequently refused.

The facts as stipulated by the parties were: Mr. Jackson is 44 years old, a lifelong resident of Caddo Parish, and resided at 106 West 87th Street in the City of Shreveport until July 1970, when he moved to 108 Plano Street. It was further stipulated 106 West 87th Street lies outside of House District No. 2, but is in Caddo Parish, and 108 Plano Street, also in Caddo Parish, is encompassed within District No. 2.

Prior to reapportionment of the legislature and creation of House District No. 2, and the other house districts carved out of Caddo Parish, Mr. Jackson was and had been for a period of more than two years immediately preceding his election a qualified elector of Caddo Parish. As such he was eligible to run for the office of representative, since the district at that time included the whole of Caddo Parish and all candidates ran at large. However, after reapportionment Jackson could no longer qualify as a candidate in the district where he had formerly lived and under the interpretation of Louisiana Constitution Article 3, Section 9, sought by plaintiff, he could not run from District No. 2. Consequently, if we were to adopt the position of plaintiff, defendant would be ineligible to qualify as a candidate from any district in Caddo Parish.

The issue presented by the above facts and stipulations is whether defendant, Alphonse Jackson, who resided in House District No. 2 on August 24, 1971 [the effective date of the reapportionment order] is qualified to represent that district in the Louisiana Legislature even though he had not lived at an address within House District No. 2 for more than two years prior to the election.

Louisiana Constitution Article 3, Section 9, provides in pertinent part:

“Section 9. Every elector under this Constitution shall be eligible to a seat in the House of Representatives, and every elector who has reached the age of twenty-five years shall be eligible to a seat in the Senate; provided, that no person shall be eligible to the Legislature unless at the time of his election he has been a citizen of the State for five years, and an actual resident of the district or parish or ward of the parish of Orleans from which he may be elected for two years immediately preceding his election

Plaintiff asserts the quoted article of the Constitution should be literally interpreted and, since defendant has not resided at his present address within House District No. 2 for two years, he is not qualified to represent that district in the legislature. In opposition, defendant contends that since he has been for two years a resident and qualified elector of Caddo Parish, the former election district, out of which House District No. 2 was carved, and, further, since he was a resident of the area comprising House District No. 2 at the time of its creation, the court should construe Article 3, Section 9 so as to recognize his right to represent the people of that district in the legislature. He contends to hold otherwise would be a judicial deprivation of a constitutional right which he possessed on the date of the reapportionment order.

There have been no appellate cases in Louisiana decided on this point. Made a part of the record in this case is a written opinion by Judge Melvin A. Shortess in the recent case of Loyd J. Rockhold vs. McKeithen, et al, No. 151,397 on the docket of the 19th Judicial District Court. While district court cases are not binding on this court, we take the liberty of referring to it as its logic appears sound. In Rockhold the plaintiff sought a declaratory judgment of his right to qualify as a candidate for election to the legislature from House District No. 67. On appeal to the First Circuit Court of Appeal, the case was dismissed on a finding that the issues initially presented to the trial court had become moot. See Rockhold v. McKeithen (La.App. 1st Cir. 1971), 253 So.2d 246. The facts of that case and the questions presented are almost identical with those before us now. Mr. Rockhold had lived in East Baton Rouge Parish for more than two years and prior to August 24, 1971 was eligible to qualify for representative from the whole of East Baton Rouge Parish. However, he had lived at an address which became part of House District No. 67 [carved out of East Baton Rouge Parish] for less than two years prior to the election. The decision which was rendered in favor of Mr. Rockhold contained, language to the effect that a strict interpretation of Article 3, Section 9 would mean no one could qualify for the legislature until the new districts, created on August 24, 1971, were two years old. We do not agree with this broad statement in the court’s opinion. However, we hold that, under the facts in this case, the result is correct, based on what we believe to be the controlling rationale of the opinion that it would be “patently unjust” to deny a citizen, who could qualify as a candidate for the legislature under the law as it existed prior to August 24, 1971, the right to qualify after August 24, 1971.

The reapportionment of the legislative districts in Louisiana was achieved by judicial order, rather than by legislative enactment. Since we have no recourse to legislative intent, the duty devolves on this court to make a reasonable interpretation of the effect of the reapportionment on the residency requirements of Article 3, Section 9 of the Louisiana Constitution.

We hold, as did the court in Rockhold, that Article 3, Section 9 of the Louisiana Constitution does not render ineligible any person who satisfied the requirements of Louisiana law prior to August 24, 1971 from qualifying as a candidate for the Louisiana House of Representatives so long as that person actually resided in the newly created district as of the date of its creation on August 24, 1971.

For the reasons assigned the judgment of the lower court is affirmed at plaintiff’s cost.

AYRES, Judge

(concurring):

I am in full accord with the findings of the majority as to the merits of this cause and concur in the conclusions reached and in the decree rendered.

Nevertheless, I am of the opinion that the pleas to the jurisdiction of the court and of prescription and the exception of no cause of action are meritorious and should have been sustained.

This action involves the regularity of a second Democratic primary held on December 18, 1971, in House of Representative District No. 2 of Caddo Parish, Louisiana, and the validity of defendant’s nomination for the office by the Democratic Party and his right to compete for that office in the general election to be held on February 1, 1972.

Plaintiff and defendant competed for the Democratic nomination as candidates in the first primary with a third party who, as a result thereof, was eliminated, leaving plaintiff and defendant as the sole contenders for the party nomination to be determined in a second primary. This action involves a question of the nomination by the Democratic Party of its nominee for representative in House District No. 2 of Caddo Parish, Louisiana, to be voted on in a general election to be held on February 1, 1972. It is not contended, nor does the record disclose, there was any object or purpose of this judicial action other than the nomination by the Democratic Party of its candidate and of his right to appear as such on the ballot in the general election.

Appropriate to the pleas and the exception in my opinion are the provisions of LSA-R.S. 18:307, which provide:

“Objection to candidacy; certificate; suit; appeal
“A. Any person who has filed his application to become a candidate, a qualified elector, or a member of any committee calling a primary election may object to the candidacy of any other person. The objection shall be in writing and shall contain, in detail, the reasons for the obj ection.
“The objection shall be filed with the chairman or the secretary of the committee within five days after the last day upon which notification of intention to become a candidate may be filed.
“B. At the time of the filing the party making the objection shall file a certificate with the chairman or the secretary, in which he shall specifically declare that he has served or caused to he served upon the person whose candidacy he is objecting to an exact copy of the protest or objection, and shall state the time and the place such service was made. The service of the objections and protests shall be personal or domiciliary.
“The person whose candidacy is thus objected to has forty-eight hours within which to file his answer.
“C. Within seventy-two hours after the answer has been filed the committee shall convene and hear the evidence offered by any of the parties or their counsel, and within twenty-four hours after the hearing is closed shall render its opinion. Each party may appeal to any court of competent jurisdiction for relief. If suit is filed by either party to have the decision or ruling of the committee annulled or set aside, the committee is a necessary party, and service of a copy of the petition and a copy of all other court proceedings shall be made upon its chairman or the secretary. The jurisdiction of the court, the time within which suit must be filed, the delay for answering, the method of procedure and trial, the time within which a decision shall be rendered by the lower court, the time within which an appeal may be taken and prosecuted, and the time within which the appellate court must render a decision, shall, as far as practicable, be as is hereinafter provided for contesting elections.”

With respect to the aforesaid provisions of the law, it appears appropriate to point out that plaintiff does not contend, nor does the record disclose, that he objected to defendant’s candidacy at any time, either before or after the first primary. Thus, the only basis upon which the jurisdiction of either the trial court or any appellate court may be invoked lies in instances where the appropriate Democratic Party Committees have failed to perform a ministerial act. The record is void of any contention or proof of any ministerial duty which the party committee was obligated to perform but failed to do. The statute, the provisions of which are quoted above, prescribes certain acts to be asserted by a candidate within specified delays in objecting to or protesting the candidacy of any other person as a prerequisite to the institution of judicial proceedings to determine the opposing candidate’s qualifications. None of these prerequisites are asserted or were proved to have been performed by plaintiff.

Thus, it occurs to me that plaintiff could have tested defendant’s qualifications only as provided by the terms of the aforesaid statute, that is, by filing a written objection detailing reasons for the same with the Chairman or the Secretary of the Committee calling the primary election within five days of the last day upon which notification of intention to become a candidate could be filed. Having failed to exercise this right, plaintiff is not entitled to have his complaints heard in the courts.

The jurisprudence seems to be fairly well settled that, since the enactment of Act 97 of 1922, Section 11, which is the source of LSA-R.S. 18:307, the courts are without jurisdiction to entertain an action testing the qualifications of a candidate unless objection to his candidacy has been made before the Committee as and within the delay provided by the statute. Le Blanc v. Hoffmann, 175 La. 517, 143 So. 393 (1932); Blessing v. Levy, 214 La. 856, 39 So.2d 84 (1949). See, also, Labouisse v. Koppel, 229 So.2d 161 (La.App., 4th Cir. 1969 — writ refused), wherein the above-stated principle of law was upheld. It may be noted that the only possible exception to this line of jurisprudence is O’Keefe v. Burke, 226 La. 1026, 78 So.2d 161 (1955), and, as pointed out by Judge Regan, of the Fourth Circuit, in quoting from Judge S. Sanford Levy, as the trial judge, and which has been pointed out by the late Henry G. McMahon in XVI La.L.Rev. 308, that case is distinguishable from the La-bouisse case, which is likewise, in my opinion, distinguishable from the instant case. From any adverse action by the Party Committee, the statute, after its provisions have been complied with, affords any aggrieved party or candidate appropriate, adequate relief in court. The statute thus complies with the constitutional requirements.

Hence, plaintiff, having failed to comply with statutory requirements, the court is without jurisdiction, and plaintiff’s petition discloses no cause of action, and, moreover, whatever cause he had, if any, has prescribed.  