
    No. 12,147.
    State of Louisiana ex rel. Supervisors of Election of Plaquemines Parish vs. A. E. Livaudais, Judge, James Wilkinson Respondent.
    While the courts can have no right to pronounce an abstract opinion upon questions entirely political, to compel officers to perform specific duties imposed upon them by law, whether relating to elections orto any other duty devolving upon them, writ of mandamus issues to compel a proper execution of a purely ministerial duty.
    0 N APPLICATION for Writs of Prohibition and Certiorari.
    jB?. Howard McCaleb, for Relators.
    
      
      James Wilkinson, for Respondents.
    Submitted on briefs April 15, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Breaux, J.

The relators complain of a judgment rendered (at the instance of one of the candidates for a judicial position) by the respondent judge, and pray that the writs of certiorari and prohibition they invoke be made absolute.

The judgment complained of made the writ of mandamus peremptory.

It is true that mere abstract political questions are not within the jurisdiction of the courts. That the litigant has not the power before the court of using or directing the force residing in the body. politic in order that he may stand in judgment.

Thus, in State of Georgia vs. Stanton, 6 Wallace, 50, 78, the Supreme Oourt of the United States held that it would not restrain the defendants, who Represented the executive department of the government, from carrying into execution certain acts of Congress, as the questions presented were entirely political, and the plaintiffs had no personal right or interest in arresting the governmental .action proposed.

In several other cases cited by relator here the courts have declined to assume jurisdiction of questions entirely political in their character. These cases do not apply to the case under discussion.

The case here presented is one in which, it is alleged, a private right is involved, and the testimony, in some respects at least, goes far toward sustaining the allegation.

With the merits of the controversy we are not concerned in these proceedings. It suffices for the maintenance of that writ that the court has jurisdiction and the proceedings are in due form.

As relates to jurisdiction, although it has been held by this court that in the absence of special statutory authorization courts are without jurisdiction to entertain contested election cases, the rule has never been extended. so as to entirely exempt officers from all judicial control and relieve them from all responsibility however much they may violate the statutes adopted for holding elections.

Violations of the statutes may precede the elections requiring judicial action for their redress.

The question is not one of first impression in this court.

This court said in State ex rel. Patton, Register, vs. Judge, 40 An. 393-398, in passing upon the question of judicial cognizance of cases touching the conduct of elections: “No authority is or can be cited exempting public officers charged by law with specific ministerial duties in election matters from the same judicial control which is exercised over all other officers of the State with reference to similar duties.”

The question at this time is more peculiarly one of prematurity than jurisdiction.

In a contested election the questions here involved would be in the court’s jurisdiction if they are questions of violations of the statute and the violations prejudiced the rights of the complainant. •

It follows as a conclusion that there are some violations of the statutes which may be inquired into and passed upon, even prior to the election, when needful to protect rights actually infringed or incontestibly about to be infringed. As far as the right of the complainant is personal, the court has jurisdiction.

In regard to the value of the right involved, it embraces not only the right to hold office, if elected, but the right of franchise; the right to cast one’s vote in the manner and under the security intended by the statute. A great English judge has said: “A right that a man has to vote at the election of a member of parliament to rep - resent him, and there to concur in the making of laws which are to protect him in his liberty and property, is of the highest importance. ”

The right is not always appreciated and exercised with that importance in view. This does not detract from its value and importance.

It is is ordered and decreed that the preliminary order be dissolved and'the writ refused at relator’s costs.

Dissenting Opinions.

Watkins, J.

Upon mature deliberation I am satisfied that the controversy in the respondent’s court of which relators complain were and are purely political, and of which he had no jurisdiction, and our writ of prohibition ought therefore to be made perpetual. State ex rel. Woodruff vs. President, etc., 41 An. 846; State vs. Judge, 13 An. 89; State ex rel. Bonner vs. Lynch, 25 An. 267; State ex rel. Moncure vs. Dubuclet, 28 An. 698; R. S., Secs. 1417 to 1435, as amended by Act 106 of 1892.

The duties of police jurors with regard to the selection and establishment of polling places and the like are vested by the election-law in the discretion of those bodies as political functionaries.

Sections 9 and 10 of Act 181 of 1894; State ex rel. Blackman vs. Strong, Secretary of State, 32 An. 173.

McEnery, J.

The plaintiff is a candidate for a political office. To confer jurisdiction upon the lower court he made a jurisdictional averment as to the value of the office. He asserts no title to-the office. He is only offering himself for the office. His title to the same will depend upon the result of the election. When this is promulgated, if he has cause to complain, it will be time for him to-urge his claim to the office if he finds reasons therefor. No right of plaintiff is alleged to be infringed. I find nothing upon which to predicate an averment to give jurisdiction. A possible contingency, which may or may not happen, gives him no such right to the office that he can make a jurisdictional averment as to its value,

I think it is erroneous to say that the right that each citizen has to see that the election is properly conducted is of a value inappreciable in money, and by inference it exceeds the lower limit of the jurisdiction of the court below. Jurisdiction is given by the law. 2 Barb. 323; 3 Texas, 157.

The jurisdiction of the District Court is fixed by law. After the jurisdiction of the court has been fixed by law, the judge is without authority to assume that a right to which no value can be fixed has an imaginary one.

The conduct of the election is by law devolved upon the executive officers. The courts can not interfere in the manner in which the election is to be conducted without trenching upon the duties of the political department of the government, which is forbidden by the Constitution.

The interpretation of the election law in the manner of conducting the election devolves exclusively upon the political department of the government. In a proper case brought before it, the courts may put the election machinery in motion; that is, compel the election officers to perform a duty imposed upon them by law, but they can not restrain the election officers from the performance of a duty as they construe it. If the duties imposed upon the election officers are employed to perpetrate a fraud in a contest for office, these facts become matters of proper inquiry in determining whether the complainant was elected to the office by virtue of the election.

In my opinion there was an usurpation of jurisdiction by the District Court, and the writ of prohibition should be made perpetual.  