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ARGUMENT, WITH STATEMENT OF FACTS 
 
 SWORN TO, AND CITATIONS FROM THE 
 
 CONSTITUTION AND LAWS OF LOUISIANA, 
 
 TO SHOW THAT THE TEMPORARY AND PERMANENT ORGANIZATION OF 
 
 THE HOUSE OP REPRESENTATIVES 
 
 OF THE STATE OF LOUISIANA, 
 
 ON THE 4th of JANUARY, 1875, UNDER WHICH ORGANIZATION 
 
 L. A. ^^^ILTZ, 
 
 REPRESENTING THE DEMOCRATIC CONSERVATIVE PARTY, WAS LAWFULLY ELECTED 
 
 TEMPORARY AND PERMANENT SPEAKER, WERE IN STRICT 
 
 ACCORDANCE WITH LAW AND PR/ECEDENT. 
 
 Clark & Hofeline, Book Printers, 112 Gravier Street. 
 
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 STATEMENT OF FACTS AND LAW. 
 
 To the Honorable Charles Foster, William Walter Phelps, 
 and Clarkson N. Potter, Congressional Committee on 
 Louisiana Affairs, Sitting in New Orleans : 
 
 I. As TO THE Democratic-Conservative Organization. 
 
 The total number of Representatives to which the 
 people of Louisiana were entitled at this session was one 
 hundred and eleven (111). The Returning Board, prior 
 to the 4th of January, 1875, had furnished the Secretary 
 of State with a list of one hundred and six (lOG) mem- 
 bers upon whose election said Board had passed, of which 
 number fifty-four (54) were supposed to be Republicans, 
 and fifty-two (52) Conservatives and Democrats. 
 
 A.t twelve o'clock on the 4th day of January, 1875, 
 the day prescribed by law for the meeting of the General 
 Assembly, the House being assembled, William Vigers, 
 Clei'k of the preceding House of Representatives, whose 
 term of olKce hud expired on the 4th of November, 1874, 
 [)rc)ceeded to call the roll, under the forty-fourth section 
 of Act No. 98, approved November 20th, 1872, which 
 section declares : 
 
 " That it shall -be the duty of the Secretary of State to 
 transmit to the Clerk of the House of Representatives, 
 and the Secretary of the Senate of the last- General As- 
 
• [ 2 ] 
 
 sembly, a list of the names of such persons as, according to 
 the returns, shall have been elected to either branch of the 
 General Assembly ; and it shall be the duty of the said 
 Clerk and Secretary to place the names of the Represent- 
 atives and Senators elect so furnished upon the roll of the 
 Senate and of the House respectively ; and those Repre- 
 sentatives and Senators whose names are so placed by the 
 Clerk and Secretary respectively, in accordance with the 
 foregoing provisions, and no other, shall be competent to 
 organize the House of Representatives or Senate. Nothing 
 in this Act shall be construed to conflict with Article 
 thlrtjj-four of the Constitution of the State." 
 
 Article 34 of the Constitution provides that each house 
 of the General Assembly shall judge of the qualifications, 
 elections and returns of its members ; but a contested 
 election shall be^ determined in such manner as may be 
 prescribed by law. 
 
 Article 33 of the Constitution provides that not less 
 '?'. tlmn ii»j*>«j»«4y of members of each ho use of tlie General 
 Assembly shall form a quorum to transact businessj_but 
 a smaller number may adjourn from day to day, and 
 shall have full power to compel the attendance of absent 
 members. 
 
 Article 20 of the Constitution provides that each parish 
 in the State shall be entitled to at least one Representa- 
 tive. 
 
 Article 36 of the Constitution provides that each house 
 of the General Assembly shall keep and publish weekly 
 a journal of its proceedings, and the yeas and nays of the 
 
 I 
 
[ 3 ] 
 
 members on any question, at the request of any two of 
 tliem, shall be entered on the journal. 
 
 After the completion of the roll-call by William Vigers, 
 Clerk of the former House, as provided by Section forty- 
 four, above recited, L. A, Wiltz was nominated as tem- 
 porary Chairman by a member, and was, upon a viva 
 voce vote, declared elected temporary Speaker, whereupon 
 he took the chair, and announced himself temporary 
 Speaker of the House of Representatives, and as such 
 took his oath of office before Judge Houston, and also 
 had said oath administered to him by a member. He 
 thereupon administered the oaths to the members of the 
 House. He then declared the functions of the former 
 Clerk, Vigers, at an end. A Clerk was then, on motion, 
 nominated and elected. A Sergeant-at-Arms and assist- 
 ants were also elected. 
 
 During this temporary organization, upon motion put 
 
 and adopted, the five members whose elections the 
 Returning Boa rd had not promulgated mid hnd re ferred 
 ~to the House, were admitted as members and sworn in. 
 Thereafter L. A. Wiltz was nominated as permanent 
 Speaker. Th.e roll was called, and Wiltz. and Hahn being 
 in nomination, Wiltz received 55 votes. Hahn 2, and 1 
 blank. Fifty-six being a majority and legal quorum of 
 the whole number, one hundred and eleven, to which \^ 
 the House was entitled, he was thereupon declared duly 
 elected permanent Speaker, and was sworn in and ^ 
 then administered the oath to the members (by fours), 
 including Michael Hahn, Thomas Baker, Murrell and 
 
[ 4 ] 
 
 Drury, Republicans. A Committee on Credentials was 
 then appointed, of which Hahn and Thomas were ap- 
 pointed members and accepted, and withdrew with the 
 Committee. Upon the return to the House of said Com- 
 mittee, Hahn made known that he would make a minor- 
 ity report. 
 
 About this time, resistance being made to the Ser- 
 geant-at-arms of the House, and there being great danger 
 of violence and bloodshed, the force of the Sergeants-at- 
 arms, consisting of only some ten men, the State House 
 being crowded on the inside and outside with Metropoli- 
 tan Police and other unruly persons, said Police, on the 
 outside being supported by a large array of United 
 States soldiers, the Speaker, upon motion of Dupre, a 
 member of the House, put and carried, requested General 
 De Tro1)riaiKl, who had pre i- ion -si ij eidered the State House, ac- 
 companied hy some United States troops, without the hiowledge 
 or request of the Sj)e((hrr,io speak a few words to the persons 
 in the lobby, the Speaker expressing the opinion that the 
 General's remonstrance would prevent a riot, whicli was 
 imminent. The Genai\al complied with the request, and 
 without the use of any force, restored comparative quiet 
 in the lobby. No other intervention by the United 
 States authorities tvas asl-ed for or obtained. This re- 
 quest was made, as above stated, after the General and 
 some soldiers had entered the room. 
 
 About an liour after this, order being full?/ restored, 
 General De Trobriand returned, and informed the 
 Speaker tliat he had been ordered by Governor Kellogg 
 
[ 5 ] 
 
 • 
 
 to replace Vigers as Clerk, and to eject the five mem- 
 bers above referred to, upon whose cases the Returning 
 Board had failed to report, and desired to know whether 
 his orders would be complied with without the use of 
 force. The Speaker replied that he was the lawful 
 Speaker of the House of Representatives of the State of 
 Louisiana, and would obey no order from Governor Kel- 
 logg, or any other source, unless compelled so to do by 
 actual ovei'powering force, whereupon the General re- 
 tired and soon returned with soldiers and requested the 
 Speaker to point out the members indicated in his order 
 from Kellogg for ejectment, the General not knowirvg 
 them personally. This relucst was also promptly re- 
 fused ; whereupon General Campbell and T. C. Ander- 
 son, the former General of Kellogg's militia, by which he 
 was surrounded in and out of the State House, the 
 latter a member of tlie Wells Returning Board, neither 
 being members of the House, were called upon, and 
 pointed out the desired members, who were thereupon 
 seized, each by United States soldiers, with guns and 
 fixed bayonets, and were forced out of the State House 
 against their oft repeated protests. 
 
 Immediately upon this action by the Military Authori- 
 ties of the United States, the Speaker requested the Con- 
 servative members to retire with him, which was done 
 without exception. Genl. De Trobriand then ordered 
 Mr. Vigers to call the roll, whereupon Speaker Wiltz 
 reiterated his refusal to allow him to make such call, 
 Vigers persisting, Wiltz had him forcibly ejected by his 
 
[ 6 ] . 
 
 Sergeant-at-arms. During all of these proceedings, the 
 Speaker reiterated his protests and refusals to submit to 
 any interference, unless compelled by overwhelming force. 
 Such force was used by the United States Military Author- 
 ities, and to it alone he yielded. 
 
 II. As TO THE PRETENDED REPUBLICAN ORGANIZATION. 
 
 After the withdrawal of Wiltz and the Conservative 
 members, Vigers was restored to the position of Clerk, 
 by General De Trobriand, Ilahn was elected by acclama- 
 tion Speaker, and administered the oath to the members 
 in groups of four. Immediately thereafter, a resolution 
 was adopted, seating four persons from the parishes turned 
 over to the legislature by the Returning Board for de- 
 cision. The oath was administered to them, an election 
 for Clerk was then proceeded with ; at which Vigers was 
 declared elected. 
 
 Upon the calling of the roll, for the election of perma- 
 nent Speaker, only fifty answers were made. Both Hahn 
 and Vigers testified on the 6th of January, 1875, before'- 
 your Honorable Committee, that this was the number who 
 answered the roll call when the vote was cast for Speaker, 
 but claimed that two names that had answered upon a 
 previous call of the roll, which call was stopped by Witzl 
 before he retired, were added to make the fifty-two. This 
 in the largest number claimed hy tlie tivo witnesses above men- 
 tioned when under oath before the Committee. Two of 
 this number as before said, were of those who retired with 
 Wiltz, and whose affidavits accompany this statement, 
 
[ " ] 
 
 showing that they were not present when Vigers called 
 the roll de novo. But even if present and properly added 
 they would not have completed a quorum, as under article 
 33 of the Constitution, not less than a majority of the 
 members elect shall form a quorum. The number elected 
 was one hundred and eleven, of which fifty-six is a quo- 
 rum. 
 
 THE LAW OF THE CASE. 
 
 The only measure of the authority of an outgoing 
 Legislature, as to an incoming Legislature, must of neces- 
 sity be the Constitution of the State. 
 
 The House of Representatives which assembled Janu- 
 ary 4th, 1875, in the State House of Louisiana, was as 
 free from any regulation imposed by' the preceding 
 Legislature, as was the first House that assembled in the 
 State, unless a distinct provision can be found in the 
 Constitution authorizing such regulation. 
 
 Does the Constitution of Louisiana of 1868 contain 
 rny clause which warranted the enactment of Section 44, 
 Act No. 98, approved November 20th, 1872? 
 
 The language of this Section is quoted in the above 
 statement of facts and law. What is the extent of the 
 Clerk's powers under this law ? 
 
 " And it shall be the duty of the said Clerk and Secre- 
 tary to place the names of the Representatives and Sena- 
 tors elect so furnished upon the roll of the House and 
 Senate respectively." 
 
 There is no other portion of the Section which relates to 
 
[ 8 ] 
 
 the duties or powers of the Clerk. His duties are strictly 
 limited and entirely ininisterial. 
 
 He calls the roll merely by the grace of the House, in 
 accordance with custom, and the moment he completes 
 the roll call his functions are ended. The manner of or- 
 ganization then belongs exclusively to the House. 
 
 But it is urged that Section 44 of this Act prescribes 
 that no others, than those thus placed on the roll by the 
 Clerk, are competent to organize the House. 
 
 How can the rights of the House which met January 
 4th, 1875, be less than that which adjourned March 1st, 
 1874, unless the House of 1874 was given power in the 
 Constitution to abridge the rights and privileges of its 
 successors ? 
 
 Not a word can be found in the Constitution even look- 
 ing towards such an authorization. On the contrary, 
 Article 34, quoted in the statement of facts and law, 
 specially provides that each house of the General Assem- 
 bly shall judge of the qualifications, elections and returns 
 of its members. 
 
 The plain language of this article shows that the con- 
 vention which formed the Constitution was careful to 
 prohibit the Senate and Executive from any interference 
 with the qualifications, elections and returns of the mem- 
 bers of the House. The specific Constitutional provision 
 as to contesting seats, following immediately the provision 
 in Article 34, that "eocA House of the General Assembly 
 shall judge of the qualifications, elections and returns of 
 its members," excludes the idea that either House of 
 
[ 9 ] 
 
 the General Assembly can be controlled in deciding upon 
 the qualifications, elections and returns of its members 
 by a law which requires the approval of the Senate and 
 Executive. This provision was intended to secure the in- 
 dependence of the House from the influence of the Senate 
 and Executive, and is almost a duplicate of the provisions 
 contained in all of the State Constitutions, and is in the 
 exact words of the first clause of the fifth Section of the 
 first Article of the Constitution of the United States. 
 
 How many are a quorum ? Article 33 of the Constitu- 
 tion declares "that not less than a majority of the members 
 of each house of the General Assembly shall form a 
 quorum to transact business, but a smaller nuinber may 
 adjourn from day to day, and .shall have full power to 
 compel the attendance of absent members." 
 
 The 20th Article of the Constitution provides "that 
 eaeli parish shall be entitled to at least one Representa- 
 tive." 
 
 Construing the thirty-third Article, which requires a 
 majority of the memljers of each house to form a quorum, 
 with Article 20, which requires that each parish shall be 
 entitled to at least oiie Representative, and Article 46, 
 which requires returns of all elections for members of the 
 General Assembly to be made, the conclusion is inevitable 
 that a legal quorum, under the Constitution, must be a 
 majority of the whole number of Representatives to which 
 the State is entitled, to-wit : Fifty-six — a majority of one 
 hundred and eleven. 
 
 To construe Section 44 of Act of 1872, as authorizing 
 
[ 10 ] 
 
 a quorum to be constituted of a majority of the members 
 that may be returned by the Returning Board, is to annul 
 by statute the constitutional provisions contained in Arti- 
 cles 20. 33 and 46. Such a construction leads to a reductio 
 ml ahsnriliim. The Returning Board, who referred in 
 this election the claims of five Representatives, repre- 
 senting /o//y- parishes, to the Legislature for decision, had, 
 under the law, the same rtght to have referred fifty or one 
 hundred; or one hundred and ten, leaving one man to or- 
 ganize the House. 
 
 It is well settled that when the Returning Board had 
 dissolved, referring the decision as to the claims of certain 
 parties to seats, to the House, its powers in the premises 
 were ended. 
 
 12 Barbour's Reports (N. Y. Supreme Court), 217, The 
 People, e:r rel. Alexander H. Bailey, vs. The Supervisors 
 of Greene. 
 
 To deny the right of the House to decide upon the 
 prima facie rights of claimants to seats, would be to deny, 
 altogether, under certain circumstances, the right to or- 
 ganize, and would i2;ivo the Returning Board absolute 
 power to disfranchise the people of the whole State. 
 
 A precedent for the mode of the temporary organization 
 adopted by the House of Representatives of the State of 
 Louisiana on the 4th of January, 1875, was established 
 during the first session of the twenty-sixth Congress of the 
 United States. 
 
 See Congressional Globe, volume 8, from pages 1 to 21 
 inclusive. 
 
Lii ] 
 
 The House of Representatives assembled on Wednesday, 
 December '22)k1, 18o9, On the oth of December, 1839, 
 being still without a temporary organization, Mr, Adams 
 (p. 19) arose and said: "I am under the necessity of 
 appealing to you, fellow-citizens, to set aside the decisions 
 of the Clerk, and act for yourselves. I propose that the 
 House shall act in whatever form it pleases ; it may choose 
 a temporary Clerk or not, as it is thinks proper. I put 
 this question to the majority of the House. It is their 
 dut}' to organize it, and therefore they ought, as a prelimi- 
 nary step, to put themselves in such a situation that no 
 decision of the Clerk can force upon the House an organi- 
 zation in the manner he dictates. The House may set 
 aside the Clerk, but is not forced to obey his despotical 
 dictates." The Clerk had refused, and was refusing, to call 
 the names of the members fr6m New Jersey, their 
 names not appearing on the roll, which he had made up in 
 accordance with past usage. He had omitted to place 
 theni on the roll because two sets of claimants appeared 
 for the seats. Mr. Rhett (p. 19) then offered a resolution 
 that Louis Williams, the oldest member of the House, be 
 api)>inted Chairuan of this meeting until the House 
 orgiiuize. Mr. Williams declining to take the chair, Mr. 
 Rhett (p. 20) ''then varied his motion, so as to call Mr. 
 Adams to the chair instead of Mr. Williams, and putting 
 liimscJf the question to the meeting, it was- carried, and 
 Mr. Adams took the chair." The temporary organization 
 of the House was thus effected. 
 
 During this temporary organization, Mr. Duncan (p. 
 
[.12 ] 
 
 26) observed "that he understood yesterday, that after 
 the appointment of a chairman the rules of the hist House 
 of Representatives were adopted for the governance of 
 this House, for the time being. One of these rules required 
 that the yeas and nays should be called alphabetically. 
 Now he wished to know of the Chair, if the yeas and 
 nays would be called if demanded, and how. The Chair 
 stated that the rule did not apphj, because the organiza- 
 tion of the House was not completed. The yeas and nays 
 therefore could not be called." 
 
 Thereafter the question arose on the second branch of 
 Mr. Rhett's resolution in the following words, " and after 
 the names of such members are called, and before a 
 Speaker is elected, they shall, provided there be a quorum 
 of such present, then hear and adjudge upon the election 
 returns, and qualifications, of all claimants (Messrs. 
 IngersoU and Naylor excepted) to the seats contested on 
 this floor, which motion was carried, yeas, 138, nays, 92.' 
 During the progress of this debate (p. 53). Mr. Wise 
 said : " In order to illustrate the position of my colleague, 
 I will state th;it the Chair decides that he cannot put the 
 question on his appeal while the election is going on. 
 Now, from that very decision my colleague has a right to 
 appeal. The Chair said, the motion of the gentlemen 
 could be offered when a Speaker was chosen, but that he 
 could iiot take an appeal when the House was in the act 
 of electing a Speaker. Mr. Wise then said : '• Here is a 
 decision that an appeal cannot be taken. It is not com- 
 petent for my colleague to take an appeal from thatdeci- 
 ion.' Tlie Chair, ' Certainly not, Sir.' " 
 
[13 ] 
 
 Under the Constitution of Louisiana, before quoted 
 Article 36, no call for yeas and nays is allowable, even in 
 permanent organization, unless demanded by tiuo mem- 
 bers, and there is no- constitutional right of appeal from 
 the decision of the Chair. 
 
 In the organization of the House resulting in the elect- 
 ion of Mr. Wiltz as Speaker, no two members called for 
 yeas and nays, and no appeal of any kind was taken from 
 the ruling of Mr. Wiltz, either as temporary or perma- 
 nent Speaker. 
 
 The temporary organization by which Mr. Wiltz was 
 called to the Chair, was made when there were 102 mem- 
 bers present, an ample constitutional quorum. There was a 
 vote in his favor, and no votes against him. He thus 
 became temporary Chairman, without any opposition of 
 a body composed of 102 members. 
 
 The statute of 1872 cannot be uro:ed a£i;ainst this, be- 
 cause the persons present were the same persons named 
 in the statute, having been returned by the Returning 
 Board.* 
 
 The next step was equally legal. Five members, rep- 
 resenting four parishes, had been elected, and the returns 
 showed that they had been elected. Under Article 4G 
 the Returning Board should have returned their names 
 to the Secretary of State, and he to the Clerk, for the 
 article specifically requires the returns of all elections to 
 be so. made*. 
 
 No one was contesting their seats. Their irrlmii facie 
 title was clearly without dispute. 
 
[ 14 ] 
 
 The seating in no manner affected the right of after- 
 contestation. Mr. Wiltz and his poUtical friends in the 
 House would have violated Article 46 of the Constitution 
 if they had not admitted them to a voice in the election 
 of a permanent Speaker. 
 
 They were therefore properly admitted, care being taken 
 to reserve the right of any one who chose to contest their 
 seats. 
 
 The body then proceeded to elect a permanent Speaker, 
 and upon this vote an ample quorum was present, and 
 more than a legal quorum voted, there being fifty-five 
 votes for Wiltz and three for opposition Republican can- 
 didates. 
 
 Mr. Wiltz thus became legal permanent Speaker. 
 
 A Committee on Credentials was then appointed, of 
 which Michael Hahn was a member, and he retired with 
 the Committee. The Committee returned, after some de- 
 lay, and reported in favor of admitting sundry other 
 members, and Mr. Hahn reserved his right of making a 
 minority report. During the whole proceedings there 
 were no appeals taken from the rulings of either the tem- 
 porary Chairman or permanent Speaker. 
 
 Thus was organized the House of Representatives of 
 Louisiana, the fourth day of January, 1875, in strict ac- 
 cordance with the Constitution of the State and precedent. 
 This organization was destroyed by the interference of 
 Federal troops, to whom the Legislature refiused to sub- 
 mit until overpowered and compelled hy actual force. 
 
 Whether this armed intervention is to stand as a i>rece- 
 
[ 15 ] 
 
 denf becomes a vital question to every State in the 
 Union. 
 
 JOHN H. KENNARD, 
 
 Of Counsel for Committee of Seventy before Congressional Committee. 
 
 L. A. Wiltz, being duly sworn, deposes and says, that" 
 he has carefully read and critically examined the facts 
 and figures contained in the above brief, as to the organi- 
 zation of the House of Representatives of the State of 
 Louisiana, on the 4th day of January, 1875, and of his 
 own knowledge knows them to be true. 
 
 Louis A. Wiltz. 
 Subscribed and sworn to before me on 
 
 this 11th of January, A. d. 1875. 
 
 J. G. EusTis, 
 
 United Sti lies Commissioner for the District of Louisiana.