Year: 1872

Warmoth.


District Attorney Beckwith-I ask thai


the rule for contempt in the case 0f Kellogg


vs.. Warmoth be set down for tomorrow.


The court assented.


Mr.. E. G. Billing5-In the close of my


argument yesterday | showed that the


court had jurisdiction over case which


may be presented either under the penal


statutes or under a civil action by de.


feated candidate where denial had been


made of the franchise on account of race,


color or previous condition. 1t having be-


come necessary, said the counsel, speaking
| ct the amendments. to throw around the


negro the irresistible arm Of the federal
government lit was not the fault OF the
government that the negro was ignOrant),
the amendments were passed. And in this
it will be found that the war brought rs to


the true principles Of Christianity at last,
| and the amendments protect all citizens OF
| whatsoever description, and he who here
| after shall analyze our civilization will be
| impressed most with this provi&on, protect


ing all men practically in Their right Of
| suffrage.


[The counselor here read from the first


MasoD.l This case, | submit, is properly


before The Circuit Court, provided the bill
of complaint is under the statute 1t seems


to me that the bill, as drawn by BIr Beck
| with, might take its place in the text books
| as model Of equity pleading, and the pur-
| view is this: The first aspect is that the
| votes were denied registration, and the sec
| ond that the votes SO denied would, if cast.
| have resulted in the election of plaintiff,
! Kellogg; and an injunction is asked for, that
| the returning board may not proceed and
| count the result Of the votes deposited be-
| cause unless enjoined the allegation is
| thatthe complainant viii suffer an apparent
| defeat. Now, ii this is not q case properly
;,, harn 10ar II Ne
The suit is this: Ten thousand colored
men come into court and, through their
candidate, say that they have been denied
their franchise under the amendment on
account Of race, color and previous condi-
tion. To what should any officer owe his
election if not to returns theretrom which
can not be mutilated or destroyed2 The
fifteenth section Of the amendatory act ex-
pressly confers jurisdiction on this and all
such matters.


The legal board of canvassers must CON
tinue to discharge their duties until their
successors are appointed,


The State law upon election under which
the board Of returns is drafted disqualites
any member of the board who shall be a
candidate for office. The members of the
board are officers in the intent of the law.
Considering the new election law lately
published, we have plainly a provision
which simply provides for the successors of
the former board for board Of officers.
Bg constitutional provision, all officers
shall remain in office until their successors
are appointed, and i'll any event the return
ing board must continue IN their duties IN
til the successors come.


In the new act section two provides thar
the Senate shall select the board Of can
vassers, but how is the Senate to be seo
lected The new act provides that a list
of the names Of the members Of the House
OF Representatives, of all who, according
to the returns, are elected, shall be made
up by the Secretary OF State, and none
other are entitled to act, But IN case Of no
board of returns, how are we to know the
list! Therefore, we never can have Sen
ate unless there is returning board, nor
a board Of canyaSserS Unle95 We have q
Senate


Can it be possible Legislature framed
law regulating elections so as to terminate
the government Of the State! Would not
such a view be idle Then, are we not re.
duced to the conclusion that the intent was
for the board Of returns to remain in office
until their successors are appointed Or
was a hiatus contemplated! The former
returning board must, then, continue in
their duties.


Had the Governor approved that act on
the morning of the fourth OF November it
would have had no more effect on the cleo
ton than il it had never been passed. Il
would have interrupted The election. And
/ should like to know the difference in law
Of interrupting it at midday or at night3


Do the counsel desire the election to be
regarded as nullityo Ii not, they must
conclude that the old board must 20 on and
perform the duties imposed upon them and
make returns.


In the broadest way. the States have pro
hibited retroactive and OK post facto laws.
After the election had been concluded,
some one had right there. and the votes
must be counted by somebody.


Mr. Christian Roselius has said that "in his
opinion, after the Legislature has ceased to
exist, it is out of the power of the Gov
ernor to approve an act, for he must send
it back TO the House where it originated
and how can he return the bill if the Legis-
Iature has ceased to exist.


The returning board must go on and con
tinue their duties.


This board is clothed with enormous
power Ii three persons come forward and
state that there las been in any parish |
fraud or intimidation, the board can throw
out the vote, and it is an easy matter at |
any time to procure those three men. With |
the single exception Of Arkansas, no can
vaesers, the world over, shave any such |
power. Hence the reason, we can see@o |
the tenacity with which Governor WarmOth |
contests for the board, because, as he |
thinks, thew would decide in his favor.


Now. as to the construction Of the board, |
it is patent that Mr.. Lynch never CODCCrred |
in the appointment of the substitute for |
Heron. And here l must say that, being !
perfectly familiar with the career of Gen |
eral Heron, | am satisfied no braver man, |
no truer ever lived. He rose from lieuten-
ant in the army to the position Of major /
general / am sorry that the counsel |
o1lIT6a +O
as be did.


Aud the removal of Heron by the police
was one of the most unblnshing acts Of eX- t
ecutive power and usurpatiOn ever per-
formed. Supposing the Governor should
come into court and tell You he had met Mr.
Heron in the street and removed him by
means of pistol bullet through the head.
It would not have been more without the
law The supreme executive power" as it
g called, power beyond the constitution
and the laws-in old times such story told
would look very much like despotism.


The machinery of the State stopped today
because the Governor was not allowed TO
make up the new board as he wished, and
% suit his own purposes.


1t seems to me that the approval of the
lew act had but one objeet-to throw af
airs into such confusion that the Legislas
ure was to be called and to carry out
chene of personal ggrandizemenr-tha
S all. It seems to me the intent Of the pro
of the new act was that the ex.
cutive might, by excluding those he did
lot want in places, organize the House and
senate as he chose, the police to be dis
ributed and deployed in the usual manner
What is it but plunging us anew into COM
,lications which have SO impoverished us.
low Is it to be undope unless the people
az we have enough of executive power
unless they say this, if we