The Ouachita telegraph. [volume] (Monroe, La.) 1865-1889, 1882-12-09
TIE KELLOGG CASE.
[Baton Rouge Capitol Advocate. !

certificate Of MIR. kellogg. Democratic
officials have great difficulties in apply
ing the formal rules governing the sys-
tenn of elections. It is popularity sup
posed that the right to officeis conferr-
ed by an informal expression of public
sentiment, although the exercise of
electoral rights is subjected to certain
constitutional and legislative limita-
tions, which are necessary in every
government subjected to written law.
So, in Mississippi the Board of Canvas
sers are censured, because they have
interpreted their duties as purely min
isterial, and have counted the votes ap-
pearing on the returns for Chambless
instead OF Chalmers. In Louisiana, on
the contrary, it is contended by the op-
position that the duties of the same
Board are ministerial solely, and that
the Governor, sworn as he is to sse the
laws faithfully executed, is in this mat
tor nothing but machine, and that
he must put his signature to the re-
suit Of the canvass, without inquiry
into the legality Of the election. 1t is
thus perceived tn at the Mississippi case
and the Louisiana case involve the
same principles, and a decision in one
State favorable to Democrat will in
the other State be favorable to a Re
will adopt the same theory concerning
the powers of the canvassers that is
claimed by Manning.
The only thing for us to consider is,
which is the right theory.
The first point we make is that the
right of popular suffrage is subjected to
the restrictions imposed by organic
law. The people have the right to
elect representative, provided that he
is twenty-five years old, seven years a
citizen of the United States and an ac-
tual inhabitant of the State. In the
last resort, the Congress is the Judge
whether these limitations on suffrage
have been observed; but the Governors
of the respective States have to make a
preliminary inquiry, in order to give
l'''na0 fucie powers to the very men,
bels of Congress, who arc authorized to
determine this question in the last re-
sort.
The question is, therefore, whether
in deciding this delicate point, the
Governors are but the instrum ent of
an irresponsible and unknown body of
canvassers, who send him up the re-
turns. We trOw not. The judicial
function in this preliminary investiga-
ton must be lodged somewhere, and it
is more in accord with the. theory of
our institutions that it should be lolg-
ed with q responsible officer, of high
dignity, sworn to execute the laws, than
with a hydra-headed local beard, who
can not be reached by popular condem-
nation or by impeachment. That this
judicial function can be exercised by
the Governor has been recognized by
Congress. In Morton VS.. Daily, 3.
Cong. Elec. Cases, p. 4O1, it was held
I,Nf a
cate for fraud which clearly implies
revisory and judicial function, far in
excess of the ministerial function as
signed to Gov. McEnery.
The Picoty10ae'S denial of executive
jurisdiction in the matter is in tho ma
turc of demurrer, and it is a we'll
known rule of law that in the trial of
such an exception, the facts are ad-
mitted as true. This involves the adj
for the purpose Of this inquiry
that Kellogg is not an,inhabitant of the
State. If so, his election is in violation
of the Constitution, and fraud upon
the suffrage of his District Can it be
held that the Governor is so complete
ly an instrument of the electoral ma
chinery that he can not interpose a
veto, to prevent an Infringement ofthe
Constitution, and fraud on the right
Vi SuAAO5Ss kSuClA HAS LOl DCCn the
construction uniformly placed on the
Guberratorial power and responsibility
in Louisiana. This question has been
weighed deliberately by our Courts in
determining the right of controlling
the Governor by nandan1us. The
control by mandamus is substantially
{. test of this point, since mandamus
issues only to enforce the exercise of
ministerial functions. The Supreme
Court of Louisiana, following the cur
rent Of American decisions, has de.
cided that in such a matter, the Co
vernon has a discretion, and that the
writ of mandamus cannot be used to
control him in the exercice of such
functions, where the right to Office is in
constestation.
The Identical question came up in
Cannon VS.. Campbell, in contest for
the seat from Utah. The Governor of
Utah exercicised judicial discretion in
declaring Cannon ineligible on account
of being Il poIygamist. We have not
seen the adjudication of the case before
Congress but it is matter of public
notoriety that Congress has so far re-
cognized the Governors discretion that
the Mormon delegate has been excluded
from his seat.
a -, :,