LOUISIANA. 



447 



more was in fact elected over Dibble by about 

 9,000 majority. 



The returning board met on the 13th of 

 November. Before the adjourned meeting on 

 the next day, Warmoth had removed Herron. 

 Wharton had qualified as Secretary of State, 

 and as member of the board. Pinchback and 

 Anderson, having been candidates, were dis- 

 qualified to serve. There is a conflict of testi- 

 mony with regard to the filling of these vacan- 

 cies. Governor Warmoth, Wharton, Cooley, 

 Bragdon, Sheridan, and others, swear that 

 Hatch and Da Ponte were elected; Lynch 

 and flerron testify to the election of Long- 

 street and Hawkins. This difference gave rise 

 to two boards, known as the Warmoth Board, 

 and Lynch Board. These boards appealed to 

 the court for sanction. Judge Dibble, presid- 

 ing, granted an injunction in both cases. It 

 most be borne in mind that this judge was 

 holding over in office until his successor should 

 be commissioned. So long as these injunc- 

 tions remained in force, so long must he retain 

 office for lack of a legal commission for his op- 

 ponent Elmore, who had been undoubtedly 

 elected. On the 19th of November, Dibble 

 decided in favor of the Lynch Board. On the 

 20th, Warmoth signed and promulgated an act 

 passed by the previous Legislature altering the 

 constitution of the returning board. Under 

 this act he claimed the right of appointing the 

 new board, during the vacation of the Legisla- 

 ture. At the same time, he issued a proclama- 

 tion convening the Legislature on the 9th of 

 December. It is admitted by all parties that 

 only the Legislature elected on the 4th of No- 

 vember, 1872, was authorized to meet under 

 this proclamation. 



( invernor Warmoth, by the assistance of 

 Judge Elmore, having rid himself of the two 

 previous boards, filled the appointments in the 

 new board, commonly called the Do Feriet 

 Board, created by the act of November 20th. 



" We come now to the saddest chapter," 

 says the report, " in this melancholy business, 

 the interference of Federal authority with the 

 affairs of the State of Louisiana." After cit- 

 ing the fifteenth amendment, and the act of 

 Congress of May 81, 1870 (16 statutes at largo 

 140), the report goes on to say that, under this 

 act, a contest between two citizens of the same 

 State in regard to any State office cannot be 

 waged in any Federal court, except the con- 

 testant has been defeated " by reason of the 

 denial of the right to vote on account of race, 

 color, or previous condition of servitude." 



On the 16th of November, 1872, William P. 

 Kellogg filed his bill on the equity side of this 

 court against the Warmoth board, and McEn- 

 cry and the publishers of the official journal 

 of the State. It is at least questionable 

 whether this bill presented a ease within the 

 jurisdiction of the Federal court. Though it 

 alleges in the first part that persons had been 

 denied registration and the right to vote on 

 account of race and color, at the time this 



bill was filed, this wrong was completed, and 

 it was not in the power of the court to undo 

 it. In the subsequent part of the bill the 

 pleader ignores the fact of race or color as an 

 element of jurisdiction. 



Again, it can hardly be claimed at the time 

 this bill was tiled that Kellogg had been de- 

 prived of his office of Governor. It states his 

 apprehension that the board would declare the 

 election of McEnery, and thus embarrass him 

 in the enforcement of his right to the oflBoe. 

 On the other hand, it may reasonably be 

 claimed that if Warmoth should destroy the 

 returns, Kellogg could not establish the fact 

 that he had been defeated because citizens had 

 not been allowed to vote on account of race 

 or color. It was never before pretended that 

 such a question as the right of these contend- 

 ing boards could be settled by suit in equity, 

 and this bill gave no warrant for the subse- 

 quent extraordinary proceedings. The utmost 

 which the court had authority to do, was to 

 restrain the destruction of the returns and 

 documents. They were State records, and the 

 Federal court had no right to tr.ke possession 

 of them. The bill only asked that copies 

 should be filed. 



Warmoth, by the act approved November 

 20th, having abolished all other boards, the 

 De Feriet Board, on December 4th, declared 

 McEnery elected Governor; Penn, Lientenant- 

 Governor; Armistead, Secretary of State; 

 Ogden, Attorney-General; Tusher, Superin- 

 tendent of Education, and the members of the 

 Legislature. Governor Warmoth issued his 

 order proclaiming the result. Governor Wnr- 

 moth was apparently master of the situation, 

 but Judge Durell took a different view of the 

 case. 



Judge Durell " out of court, at his house, late nt 

 night, December 5th, without application by any 

 party, made the following order, which is without 

 I'iiru'lU'l, and it is hoped will remain BO, in judicial 

 proceedings : 



Circuit Court of the United States, Fifth Circuit, 

 and District of Louisiana, in equity, No. 6830. Wil- 

 liam P. Kellogg . II. C. Warmoth ft ah. Whereas 

 Henry C. Warmoth one of the respondents herein, 

 has, in violation of the restraining order herein, 

 issued the following proclamation and returns of 

 certain persons claiming to be a board of returning 

 officers all in violation and contempt of said restrain- 

 ing order, as follows : [Here the proclamation of 

 December 4th is cited.] 



Now, therefore, in order to prevent the further 

 obstruction of the proceedings in this cause, and 

 further, to prevent a violation of the orders of this 

 court, to the imminent danger of disturbing the pub- 

 lic peace, it is hereby ordered that the marshal of 

 the United States for the District of Louisiana shall 

 forthwith tnke possession of the building known as 

 the Mechanics' Institute, and occupied as the State- 

 House for the assembling of the Legislature therein, 

 in the city of New Orleans, and hold the same sub- 

 ject to the further order of this court, and mean- 

 while to prevent all unlawful assemblage therein un- 

 der the guise or pretext of authority claimed by vir- 

 tue of pretended canvass and returns made by said 

 pretended returning-officers, in contempt and viola- 

 tion of said restraining order; but the marshal is 

 directed to allow the ingress and egress to and from 



