464 



LOUISIANA. 



Senate, and was thus disabled from any legislation 

 that would be valid even in the judgment of its own 

 party. The Commission found it to be very difficult 

 to ascertain the precise extent to which the respect- 

 ive Governments were acknowledged in the various 

 parishes outside of New Orleans, but it is safe to say 

 that the changes which had taken place in the par- 

 ishes after the organization of the two Governments 

 on the 9th of January, 1877, were in favor of the 

 Nicholls Government. The claim to the legality of 

 the Supreme Court, composed of Chief Jastice Man- 

 ning and associates, who were nominated by Gov- 

 ernor Nicholls and confirmed by his Senate, rests 

 upon the same basis as the title of Governor Ni- 

 cholls and his Senate. The claim to legality of the 

 Supreme Court, composed of Chief Justice Ludeling 

 and his associate?, rests either upon their right to 

 hold over in case the Nicholls court is illegal, or 

 upon the legality of the Kellogg-Packard Senate 

 which confirmed the Judges upon the nomination of 

 Governor Kellogg, and while it had a Returning 

 Board quorum. 



We have briefly sketched the actual position as we 

 found it. We will now state the legal question, 

 upon which the rights of these respective Govern- 

 ments depend. 



The Constitution of the State of Louisiana requires 

 that " returns of all elections for members of the 

 General Assembly shall be made to the Secretary of 

 State." It also provides that " the qualified elect- 

 ors shall vote for Governor and Lieutenant-Governor 

 at the time and place of voting for Representatives. 

 The returns of every election shall be sealed up and 

 transmitted bv the proper returning officers to the 

 Secretary of State, who shall deliver them to the 

 Speaker of the House of Representatives, on the sec- 

 ond day of the General Assembly then to be holdep. 

 The members of the General Assembly shall meet in 

 the House of Representatives and examine and count 

 the votes." It will be observed that this provision 

 of the Constitution requires the returns of votes for 

 Governor and Lieutenant-Governor to be sealed up 

 and transmitted by the proper returning officers to 

 the Secretary of State, and the same provision is 

 made in substance as to the members of the General 

 Assembly. But in 1870 the Legislature passed an 

 act, amended in 1872, which created a body called 

 the Returning Board, consisting of five members to 

 be appointed by the Senate, and to " be the return- 

 ing officers for all elections in the State." The act 

 provides that the Commissioners of Election at each 

 poll or voting- place shall count the votes, making 

 a list of the names of all persons voted for, and the 

 offices for which the votes were given, the number of 

 votes received by each, the number of ballots con- 

 tained in the box, and the number rejected, and the 

 reasons therefor, and to make duplicates of such 

 lists, and send one to the Supervisor of Registration 

 of the Parish of Orleans and one to the Secretary of 

 State. The law further requires the Supervisors of 

 Registration to consolidate the returns received from 

 the different polling-places and forward them, with 

 the originals, to this Returning Board. The act fur- 

 ther provides that, if there shall be any riot, tumult, 

 acts of violence, intimidation and disturbances, bribe- 

 ry or corrupt influence at any place within said par- 

 ish, at or near any poll or voting-place, or place of 

 registration, which riot, tumult, acts of violence, in- 

 timidation and disturbance, bribery and corrupt in- 

 fluence, shall prevent or tend to prevent a fair, free, 

 peaceable, and full vote of all the qualified electors, 

 it shall be the duty of the commissioners to make a 

 statement of such facts and to forward the same to 

 the Supervisor of Registration, with his returns of 

 the election, and the Supervisor^ of Registration shall 

 forward the same to the Returnirig^Board. The Re- 

 turning Board is required to investigate the state- 

 ments of intimidation, and to exclude from the re- 

 turns which it makes to the Secretary of State the 

 returns received by it from those polls or voting- 



places where a fair election has been prevented by 

 the causes above named. 



The same law further declares : " It shall be the 

 duty of the Secretary of State to transmit to the Clerk 

 of the House of Representatives, and to the Secretary 

 of State of the last General Assembly, a list of the 

 names of such persons as, according to the returns, 

 shall have been elected to either branch of the Gen- 

 eral Assembly, and it shall be the duty of the Clerk 

 and Secretary to place the names of the Representa- 

 tives and Senators elect so furnished upon the roll 

 of the House and of the Senate respectively, and 

 those Representatives and Senators whose names are 

 so placed by the Clerk and Secretary respectively, 

 in accordance with the foregoing resolutions, and 

 none other, shall be competent to organize the House 

 of Representatives or the Senate." 



It is claimed by the counsel for the Nicholls Gov- 

 ernment that, this act, so far as it interposes a Re- 

 turning Board, exercising these powers of exclusion 

 between the Parish Supervisor of Registration, with 

 his consolidated returns, and the Secretary of State, 

 is, when applied to the election of members of the 

 General Assembly, of the Governor, and of the Lieu- 

 tenant-Governor, a plain violation of those provisions 

 of the Constitution of Louisiana which say that the 

 returns of all elections for members of the General 

 Assembly shall be made to the Secretary of State, 

 and in reference to the Governor and Lieutenant- 

 Governor, the returns of every election shall be 

 sealed up and transmitted by the proper returning 

 officers to the Secretary of State, and who shall de- 

 liver them to the Speaker of the House of Representa- 

 tives. On the other hand, it is insisted by the 

 counsel for the Packard Government, that the Legis- 

 lature has power to create this Raturning Board and 

 give it the authority with which the act clothes it. 

 It is also claimed by them that the constitutionality 

 of the act has been settled by the Supreme Court of 

 the State. But the Nicholls party denied that the 

 question was decided by the Supreme Court in a 

 manner that could be considered authoritative. 



It should be further stated that it is not claimed 

 by the counsel for the Nicholls Government that the 

 Legislature could not create a returning board and 

 clotho it with these powers in regard to the appoint- 

 ment of Presidential Electors, since the provisions 

 of the State Constitution, on which they rely, relate 

 only to the election of members of the Legislature, 

 of the Governor and Lieutenant-Governor. Wo 

 quote the following sentences from one of their print- 

 ed arguments : 



" Indeed, as to Presidential Electors, then the mode 

 of their appointment is by the Constitution of the 

 United States left to the discretion of the Legisla- 

 ture of a State. Therefore, the General Assembly of 

 Louisiana might create any tribunal whatever, and 

 confide to it the appointment of Electors for Presi- 

 dent and V ice-President. Consequently it may prop- 

 erly authorize such a tribunal in case of the election 

 of Presidential Electors by the people, to count the 

 votes and decide and declare who were entitled to 

 seats in the Electoral College." 



As matters stood on our arrival here, the legal title 

 of the respective claimants to the office of Governor 

 depended upon the question we have stated. There 

 was no judicial tribunal acknowledged to be author- 

 ity by both parties, by whicli it could be solved, for 

 reasons already given. The only hope of a practi- 

 cal solution wa's by the union of'so many members 

 of the rival Legislatures as would make a Legisla- 

 ture with a constitutional quorum in both the Senate 

 and House of Representatives whose title to their 

 seats is valid under either view of the law. With a 

 Legislature of undisputed authority a settlement of 

 the other questions could, as stated in the letter of 

 instructions to our Commission from the Secretary 

 of State, be gradually worked out by the prevalent 

 authority which the legislative power, when undis- 

 puted, is quite competent to exert in composing 



