482 



LOUISIANA. 



Durell, who gave his decision on the 6th of 

 December. In his complaint, Kellogg de- 

 clared that the Governor had appointed su- 

 pervisors of registration who would aid him in 

 a scheme for defeating his (Kellogg's) election, 

 and that 10,000 negroes were refused registra- 

 tion on " various frivolous and unlawful pre- 

 tences;" that he conspired with the super- 

 visors to cause a false count of the votes cast, 

 and that a large number of votes were not 

 counted; that the Returning Board with 

 which the Governor proposed to act was not 

 legally constituted, but that the other was the 

 only lawful authority to canvass the returns; 

 that it was the purpose of Warmoth and his 

 returning officers to mutilate and change the 

 certificates of returns, and finally destroy 

 them, in order to keep them out of the hands 

 of the lawful Returning Board ; that McEnery 

 was cognizant of these schemes, and ready to 

 assist in them ; and that Warmoth's purpose 

 was to overthrow and destroy Republican 

 government in the State of Louisiana. The 

 defendants denied these allegations, and fur- 

 ther claimed that Kellogg, being a Senator of 

 the United States, was not eligible to the office 

 of Governor, and therefore had no interest in 

 the result of the election. They also denied 

 that the court had any jurisdiction in the mat- 

 ter. In his final decision Judge Durell held, 

 first of all, that the court had jurisdiction 

 under the enforcement acts, and sustained his 

 position by elaborate argument ; secondly, he 

 undertook to show that the enforcement acts 

 themsalves were constitutional ; and, finally, he 

 maintained the legality of the Returning Board 

 composed of John Lynch, James Longstreet, 

 Jacob Hawkins, and George E. Bovee. He 

 held that Herron, the acting Secretary of 

 State, could not be removed from office as a 

 defaulter, without judicial inquiry, and that he 

 and Lynch, being a majority of the members 

 of the. Board at the time, had power to com- 

 plete it by filling the vacancies. The new 

 election law, he said, did not change the case, 

 as the returning officers under the old law 

 must continue to perform their duties until 

 their successors were inducted into office. 

 The closing paragraphs of his opinion are as 

 follows : 



The court keeps within the acts of Congress and 

 the fifteenth amendment. It does not pretend in 

 any way to make a Governor of the State, or in any 

 degree to interfere with the voice of the people, ex- 

 pressed through the ballot-box. What it does is, to 

 aid in making known the voice of the people in 

 accordance with sections 3 and 23 of the act of 

 Congress, and with section 15 of the amendment 

 thereto, and in its action is only a clearly-needed 

 adjunct of the legal Returning Board. Many propo- 

 sitions were discussed during the argument, wnich it 

 is not necessary for me to now pass upon. It is 

 enough that I find the statute constitutional, that the 

 court has jurisdiction, and that the Board of Return- 

 ing Officers, composed of H. C. Warmoth and 

 Messrs. Hawkins, Lynch, Longstreet, and Herron, 

 are the legal Board, and as such entitled to the pro- 

 tection of this court. 



As to tl*e question of the ineligibility of the com- 



plainant in the bill to the office of Governor, this 

 question cannot arise under the bill, and could only 

 come before this court in a direct action at law to 

 test the title to the office. It is not, therefore, ne- 

 cessary or proper for me to decide it now ; but, were 

 it otherwise, I would say that the reason of the thing 

 seems to favor his eligibility, the object of the pro- 

 vision of the constitution being to prevent a man 

 serving two masters, and having a divided allegi- 

 ance. Arid the fact that contemporaneously with 

 the adoption of the constitution, which first con- 

 tained this provision, the then Territorial Governor 

 was by the then Constitutional Convention made 

 Governor of the State provisionally, and at the ensu- 

 ing election made by the people the first Governor 

 of the State, would seem to indicate that the mean- 

 ing of the inhibition was understood to be as I above 

 stated. 



He then made an order restraining War- 

 moth, until further order of the court, from 

 canvassing the returns, except in the presence 

 of John Lynch, James Longstreet, Jacob Haw- 

 kins, and George E. Bovee, and from submitting 

 them to any other persons ; enjoining him 

 from altering, suppressing, mutilating, destroy- 

 ing, or searching any certificate, statement, or 

 proof, of the returns ; and ordering him to de- 

 sist from hindering the legal returning officers 

 from complete access to all such papers. The 

 other members of the Warmoth Returning 

 Board were also enjoined from having any thing 

 to do with canvassing the returns. 



Meanwhile Warmoth, apparently assuming 

 that the new election law had abolished the 

 old Returning Board, had appointed a new one 

 nominally to fill vacancies, and on the 4th of 

 December issued the following proclamation: 



STATE OF LOUISIANA, EXECUTIVE DEPARTMENT, ) 

 NEW ORLEANS, December 4, 1872. f 



Whereas, P. S. Wiltz, Gabriel de Feriet, Thomas 

 Isabel, J. A, Taylor, and J. E. Austin, returning 

 officers appointed by the Governor to fill vacancies 

 existing, in accordance with the constitution and 

 laws of the State of Louisiana, have made declara- 

 tion of the result of an election held November 4, 

 1872, and have declared certain persons elected to 

 the Senate and House of Representatives of the State 

 of Louisiana, as will appear from the returns here- 

 with attached and made a part of this proclamation : 

 and 



Whereas, Such returns are compiled from the oifi- 

 cial returns of commissioners of election and super- 

 visors of registration, on file in this office, and are in 

 fact and in form accurate and correct, and made in 

 accordance with law : 



Now, therefore, I, Henry Clay Warmoth, Gov- 

 ernor of the State of Louisiana, do issue this my 

 proclamation, making known the result of said elec- 

 tion aforesaid, and command all officers and persons 

 within the State of Louisiana to take notice of and 

 respect the same. 



Given under my hand and the seal of the State this 

 fourth day of December, A. D. 1872, and of the in- 

 dependence of the United States the ninety-seventh. 

 H. C. WARMOTH. 



By the Governor : 



Y. A. WOODWARD, Assistant Secretary of State. 



Then follows a complete list of persons al- 

 leged to have been elected Senators and Rep- 

 resentatives in the Legislature. 



On the next day Judge Durell issued an or- 

 der in the suit then pending before him, which, 

 after characterizing the action of the Govern- 



