The Louisiana Democrat. [volume] (Alexandria, La.) 1845-1918, 1873-01-15

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whatever. The judge ought at once
to have said to Kellogg that, in res
pect to the question involved, he had
no standing and could have none in
any court of law. He was legally in
competent to bring the suit by reason
Of his ineligibility.
The other objection, equally fatal
and in some respects far more serious,
is the fact thatthe twenty third Sec
ton of the enforcement act, upon
which Judge Durell based the authori-
t ty of his proceedings, gave him no in.
risdiction over the case when he issued
his orders of injunction and mandamus.
The case Of kellogg against Warmoth
was not such case as this section re-
cites. It's language descriptive of the
case is Us follows: ..4lfs.a
THAT whenever any person shall be
defeated or deprived of his election to
any Office, except elector of President
or Vice President, or representative or
delegate in Congress, Or member of a
State Legislature, by reason of the de-
NAL to any citizen or citizens who shall
offer TO vote of the right to vote on ac-
count OF race, color or previous condi-
ton of servitude, his ri CHIT to hold and
enjoy such office and the emolumrnts
thereof shall not be impaired BY such
denial" .s. l.l.
Now, by the very terms of this Ian
guage, the claimant of Office Under this
act, within the limits stated and for
the reason specified, must be actually
.deprivedoi the office to which he claims
to have been elected. This must be a
TACT, not possible, not anticipated or
feared, but accomplished; aud plainly
no such TACT can exist until the votes
have been officially canvassed aud the
result declared by the legal authority
charged with this duty. Manifestly.
unit! the case has reached this point.
at the very least, the case does not OK.
ist as the one which tile section recites.
and, hence, furnishes no occasion for
judicial relief. Reading the language
OF the statute, and comparing it with
the facts as they existed at the time
when Judge Durell acted, we can come
to no other conclusion than that he is
justly chargeable with gross nsurpa-
ton of power. Wher he issued his
orders there was no case of which he
conld take legal cognizance. The votes
had not been canvassea; nobody had
been declared elected; nobody was in
stalled in office, as the result of the
election and the canvass; and, hence.
neither Kellogg nor McEnery, the OPP
posing candidates, could claim that he
was deprived of the right to hold office
FOR the reason named in the enforce
ment act. Judge Durell, sitting on
the bench as the impartial minister of
law, could not, in conformity with the
express language of the law, entertain
the question brought before him until
the result of the election had been off
cially determined. The enforcement
act gave him no authority to stretch
his Judicial arm over the board of
state canvassers, to anticipate what
would be the result of their canvass !
virtually to displace tie board and
establish another, and then enforce
these proceedings by Federal power.
This is precisely what he did, as it
seems to US, without any authority of
law. ...... .....
There was, moreover, no necessity
for these summary and strange pro-
ceedings to guard the legal rights of
kellogg, provided he had any to be
guarded. The official canvass, by the
provided by State law, would L
not be conclusive as against Kellogg, L
since, if the canvassers had declared
McEnery elected, and if he had been
installed in office, as the consequence, ,
t was perfectly competent for the for
ner, by suit of quo ,ca,vanto, brought