The Ouachita telegraph. [volume] (Monroe, La.) 1865-1889, 1873-01-04
MONROE, LOUISIANA SATURDAY, JANUARY 4, 1873
The Warmotll-Kell Controversy
{t'ron tho N. v. Iudcpcndont, l>ad.}

1t is very grave question whether,
Enforcement act, and III the 'ssuit or
proceeding" brought by Kellogg
against Warmoth before Judge Durell,
Of the United States District Court of
Louisiana, tho judge proceeded accor-
ding to law, Or was guilty of a high
handed usurpation. Tho spectacle of
two legislatures and two governors,
each claiming to be the rightful State
Government of Louisiana, implies
somewhere gross departure from the
due process OF law.
The one salient fact which appears
i'll all the reports Of these extraor,li-
nary proceedings is that Judge Durcll,
upon application of Kellogg, Senator
of the United States, and candidate for
Governdr of the State of Louisiana,
issued orders of injunction and 1nant,a-
mus, designed to prevent the canvas
of the votes of tho recent election by
tho State Board Of Canvassers provided
for by the laws Of Louisiana, and that
under these orders and rulings another
board Of canvassers came into exis-
tencc, and, without having the clec-
tion RETURNS in their possession, decIar
cd kellogg to have been legally elected
to the office of Governor of the State,
instead of McEncry, the opposing cam
didatc. The ease is exceedingly COM
plicatcd by suits aud countcr-suits; yet
the action Of Judge Durcll, taken prior
to the canvass, which, according to the
laws of Louisiana, was officially to as
certain and declare tho result of tho
election, and virtually determining tho
result by a board unknown to tho State,
out with an unmistakablc and
prominence. It was in
Of this action that Kcl-
logg was, by tho Durcll-Kellogg Board
of Canvassors, declared to be elected
and McEenery defeated. We have read
all the reports from New Orleans as
given by both sides, aud find them CO.
incident In the main facts as above
stated.
There are, aus 1t seems to us, two fatal
objections to tho course pursued by
Judge Durcll. Tho first is tho fact that
Kellogg, tho applicant to tho court for
judicial relief, was, by tho constitution
Of Louisiana, ineligible to tho Office to
which ho claimed to have been elected.
Ic was ut tho time of tho alleged cleo
lion Il Senator of The United States from
that State ; and, moreover, he has not,
wc believe, to this day, resigned his
Office. This fact made il constitutions
ally impossible for him to bo elected as
Governor of that State, even thou gh all
the votes had been east for him. The
of Louisiana expressly
says that ono member of Congress or
any person holding office under the
tho United States Government shall
be eligible to tho oflico of Governor or
Lieutenant Governor" Tho incIigi-
bility hero described makes tho olcc-
ton "n,ll and void'' if it cxiste ut tho
time in which tho vote is cast. TO saw
that this constitutional restriction sim-
ply means That no person shall be II
member Of Congress or n Federal OIL
Ger and Governor or Lieutenant Gov
crnor Of tho state at the same timo is
Il mere 4uibblc, contrary to tho gram
mar and spirit of tho language. Tho
incligibility plainly intended attaches
to tho person at the timc of the pro
tended election and constitutiOnaIIy
him. This is n reasonable
OF the language and no
other is reasonable. That Kellogg was
u Senator of the United States at tho
time in which he claims to have been
elected Governor of Louisiana is fact
and, hence, we find Judge
Durcll, in the strange perdicamcnt of
to supply a remedy in his
behalf whcnlhy the constitution of his
own State he was entitled to no remedy
whatever. Tho judge ought at once to
have eaid to Kellogg that, In respect to
the question involved, he had no stand
ing and could have none in any court
of law. He was legally incompetent
to bring the suit by reason of his inoIi-
gibility.