Hall v. Nagel Transcript of Record and Briefs

    M ITCH El, f. 
WR 1 G H











TRANSCRIPT OF RECORD

U N I T E D  S T A T E S

CIRCUIT COURT OF APPEALS
FIFTH CIRCUIT.

No. 11,534

EDWARD HALL,
Appellant,

versus

T. J. NAGEL, Registrar of Voters, St. John the Baptist 
Parish, Louisiana,

Appellee.

Appeal from the District Court of the United States for 
the Eastern District of Louisiana.

(ORIGINAL RECORD RECEIVED DEC. 17/45.)





INDEX.

PAGE

Caption...... .........................................................................  1

Complaint .......................................................................... 2

Motion of Defendant to dismiss ...................................  11

Amended Complaint ..................................................... 14

Reasons and Authorities in Support of Motion to
dismiss filed by Defendant .................................  23

Hearing on Motion of Defendant to dismiss and
Submission ............................................................  26

Judgment, entered 9/17/45 ...........................................  27

Notice of Appeal ............................................................  27

Appeal Bond ...........................   28

Appellant s Designation of Contents of Record on
Appeal ....................................................................  30

Appellee’s Designation of Contents of Record on
Appeal ....................................................................  31

Clerk’s Certificate ..........................................................  32





UNITED STATES DISTRICT COURT, EASTERN DIS­
TRICT OF LOUISIANA, NEW ORLEANS DIVISION.

No. 1273—Civil Action

EDWARD HALL,
Plaintiff

versus

T. J. NAGEL, Registrar of Voters, St. John the Baptist 
Parish, Louisiana.

Appearances:
Messrs. Thurgood Marshall, Joseph A. Thornton and

A. P. Tureaud, Attorneys for Edward Hall, Plaintiff 
Appellant.

Messrs. John E. Fleury, Frank J. Looney and E. Wayless 
Browne, Attorneys for T. J. Nagel, Registrar of Vot­

ers, St. John the Baptist Parish, Louisiana, Defend­
ant-Appellee.

APPEAL from the District Court of the United States for 
the Eastern District of Louisiana, to the United States 
Circuit Court of Appeals for the Fifth Circuit, return­
able within forty (40) days from 16th day of Octo­
ber, at the City of New Orleans, Louisiana.

EXTENSION of time granted by the Honorable Adrian J. 
Caillouet, Trial Judge, bringing the return day up to 
and including the 19th day of November, 1945.

TRANSCRIPT OF THE RECORD



2

COMPLAINT.

Filed July 24, 1945.

2 (Title Omitted)

To the Honorable, the United States District Court for the 
Eastern District of Louisiana:

Now comes the plaintiff, Edward Hall, suing in behalf of 
himself and all other Negroes possessing the qualifications 
to register as electors in Saint John the Baptist Parish, 
State of Louisiana, and respectfully shows:

I

That the jurisdiction of this Court is invoked under sub­
division 14 of Section 41 of Title 28 of the United States 
Code, this being an action authorized by law to be brought 
to redress the deprivation under color of law, statute, regu­
lation, custom and usage of a state of rights, privileges and 
immunities secured by the Constitution of the United 
States, viz, sections 2 and 4 of Article 1 and Amend­
ments 14, 15 and 17 to said Constitution, and of rights se­
cured by laws of the United States, viz., sections 31 and 43 
of Title 8 of the United States Code, all of which will ap­
pear more fully hereafter.

II

Plaintiff shows further that this is a proceeding for a 
declaratory judgment under section 400 of Title 28 of the 
United States Code (section 274(d) of the Judicial Code) 
for the purpose of determining a question in actual con­
troversy between the parties, to wit; the question whether 
the practice of the defendant in enforcing and maintaining 
the policy, custom and usage by which plaintiff and other 
Negro citizens similarly situated possessing all the qualifi-



3

cations of electors are subjected to unreasonable tests not 
required of white electors and who are thereby denied the 
right to register solely on account of their race or color, 
violates sections 2 and 4 of Article I and Amendments 14, 
15 and 17 of the Constitution of the United States.

Ill
All parties to this action, both plaintiff and defendant, 

are citizens of the United States and are residents and 
domiciled in Saint John the Baptist Parish, State of Louisi­
ana.

IV
That this is a class action authorized by Rule 23(a) of 

the Rules of Civil Procedure for the District Courts of the 
United States. The rights involved are of common and 
general interest to the members of the class represented 
by the plaintiff, namely, Negro citizens of the United States, 
and residents and citizens of the State of Louisiana, simi­
larly situated, who are duly qualified electors under the 
Constitution and laws of the United States and of the State 
of Louisiana. Members of this class are so numerous as to 
make it impracticable to bring them all before the Court 
and for this reason plaintiff prosecutes this action in his 
own behalf and in behalf of the class without specifically 
naming said members herein.

V
Tha tthe qualifications of a person entitled to register 

and vote in the State of Louisiana are:

1. He must be a citizen of the United States and of the 
State of Louisiana, not less than twenty-one years of age;

2. He shall have been an actual bona fide resident of the 
parish one year;



4

3. He shall be, at the time he offers to vote, legally en­
rolled as a registered voter on his own personal application, 
in accordance with the provisions of this Constitution and 
the laws enacted thereunder;

4. He shall be of good moral character and shall under­
stand the duties and obligations of citizenship under a re­
publican form of government; he shall be able to read and 
write, and shall demonstrate his ability to do so when he ap­
plies for registration by making, under oath, administered 
by the registration officer or his deputy, written application 
therefor, in the English language or his mother tongue, 
which application shall contain the essential facts nec­
essary to show that he is entitled to register and vote, and 
shall be entirely written, dated and signed by him except 
that he may date, fill out, and sign the blank application for 
registration hereinafter provided for, and, in either case, in 
the presence of the registration officer or his deputy, with­
out assistance or suggestion from any person or any memo­
randum whatever, other than the form of application set 
forth;

5. He shall also be able to read any clause in this Consti­
tution, or the Constitution of the United States and give a 
reasonable interpretation thereof. (Constitution of Lou­
isiana, Article 8, sections 1 and 6; Dart’s General Statutes, 
sections 2615.10; 2615.11; 2615.14; 2615.15; 2615.16; 2615.19; 
2615.21).

VI
Plaintiff, Edward Hall, shows further that he is colored, 

a person of African descent and of Negro blood and is over 
the age of twenty-one years; that he is a native born citizen 
of the United States of America and of the State of Louisi­
ana; that he has resided in the fifth ward of the Parish of 
Saint John the Baptist, State of Louisiana, continuously, 
for more than ten years; that he is of good moral character 
and understands the duties and obligations of citizenship 
under a republican form of government. Plaintiff fur­
ther shows that he can read and write the English langu-



5

age; that he can fill the application form required by law 
for registering as a qualified elector, correctly and that he 
has never been convicted of any crime and that he is not 
an idiot or insane person. Plaintiff further shows that by 
reason of the allegations hereinabove made, he was in all 
particulars on August 4th, 1944, and still is possessed of 
the qualifications of an elector and as such was and is en­
titled to be registered as such elector.

VII
That the defendant, T. J. Nagel, holds office pursuant to 

the laws of Louisiana as an administrative officer of the 
State of Louisiana (Dart’s General Statutes of Louisiana, 
section 2629; Louisiana Constitution, Article 8, section 18). 
“A registrar of voters for each parish of this State (the 
parish of Orleans excepted) shall be appointed by the 
police jury or other governing authority of such parish 
provided by section 18 of Article 8 of the Constitution of 
the State of Louisiana of 1921, and all of whom shall be 
commissioned by the governor, and the said registrar shall 
hold office at the pleasure of the board of registration, 
created under said section 18 of Article 8 of the Constitu­
tion of the State of Louisiana of 1921.”

VIII
That on August 9, 1944, the defendant, T. J. Nagel was, 

and at the present time, is the duly appointed, qualified 
and active registrar of Saint John the Baptist Parish, State 
of Louisiana, in which parish plaintiff was residing and in 
which parish, it was the duty of the defendant to enforce 
the registration laws equally as to all applicants and to 
register all applicants and to register all applicants quali­
fied for registration as electors, including your petitioner.

IX

That under the laws of the State of Louisiana (Louisiana 
Constitution, Article 8, section 1) registration is a prerequi-



6

site to the right of the citizen of said State to vote in any 
election held in said State, and unless and until said plain­
tiff and other members of the class on whose behalf this 
suit is brought are registered, as provided by the said laws 
of Louisiana, the said plaintiff and other members of the 
class on whose behalf this suit is brought will not be en­
titled to vote at any election held in the state of Louisiana 
and said Parish and Ward.

X

That defendant has established and is maintaining a 
policy, custom and usage of denying to plaintiff and others 
on whose behalf this suit is brought the equal protection 
of the laws by requiring them to submit to tests not re­
quired of white electors applying for registration and have 
continued the policy of refusing to register qualified Negro 
electors while at the same time registering white electors 
with less qualifications than Negro applicants, solely on 
account of race and color.

XI

That on or about the 4th day of August, 1944, during the 
regular registration period while the defendant T. J. Nagel 
was conducting the registration of persons qualified to 
register, plaintiff presented himself at the Saint John the 
Baptist Parish Courthouse at Edgard, Louisiana, the place 
for registration of electors of said parish and there request­
ed of the said registrar of voters to register him as 
a qualified elector of the State of Louisiana; that in­
stead of the said registrar giving him an application 
form to be filed by plaintiff in order to test his ability 
to read and write and furnish in said application 
the essential facts necessary to show that plaintiff is en­
titled to register and vote, the said defendant, T. J. Nagel,



7

had plaintiff to go into a back room of his office and ques­
tioned his as follows:

“What judicial district do you live in?”
Answer: “Twenty-fourth.”
“What congressional district?”
Answer: “Second.”
“What senatorial district?”
Answer: “I don’t know.”

Whereupon, the said registrar, being not satisfied with 
the answer given by plaintiff then and there refused to 
register him. That the said act of defendant in refusing to 
register plaintiff was arbitrary and capricious and not 
warranted by law. (Constitution of Louisiana, Article 8, 
section 1 (2).) “Said applicant shall be able to read any 
clause in this Constitution, or the Constitution of the United 
States, and give a reasonable interpretation thereof.”

XII

That during such registration period, on or about August 
4, 1944, white persons presenting themselves for registra­
tion were not subjected to any such test above required 
of plaintiff, but were registered forthwith, upon their 
filling the application form. Defendant following the 
policy, custom and usage set out in paragraph ten (10) of 
this complaint, while registering white persons without any 
questioning whatsoever such as was experienced by plain­
tiff as hereinabove stated, denied plaintiff’s application to 
register and wrongfully refused and illegally failed to reg­
ister plaintiff solely on account of his race and color. That 
this action of the defendant in refusing to register plaintiff 
followed the general policy, custom and usage of the pres­
ent defendant and his predecessors in office.



8

That the defendant in refusing to register plaintiff and 
other qualified Negroes pursuant to the policy, custom and 
usage set out in paragraph ten (10) herein were acting 
under color of authority of Saint John the Baptist Parish 
and the State of Louisiana and the refusal to register plain­
tiff and others on whose behalf this suit is brought is a 
violation of the Constitution of the State of Louisiana and 
sections 2 and 4 of Article I and Amendments 14, 15 and 
17 of the United States Constitution and sections 31 and 43 
of Title 8 of the United States Code.

XIY

There is between the parties an actual controversy as 
hereinbefore set forth.

XIII

X V

That said defendant by his said illegal and wrongful acts 
has damaged this plaintiff in the sum and to the extent of 
Five Thousand Dollars.

XVI

That plaintiff and others similarly situated and affected, 
on whose behalf this suit is brought, are suffering irrepar­
able injury and are threatened with irreparable injury in 
the future by reason of the acts herein complained of; they 
have no plain adequate or complete remedy to redress the 
wrongs and illegal acts herein complained of, other than 
this action for damages, for a declaration of rights and an 
injunction; any other remedy to which plaintiff and those 
similarly situated could be remitted would be attended 
by such uncertainties and delays as to deny substantial re-



9

lief, would involve multiplicity of suits, cause further ir­
reparable injury, damage, and inconvenience to the plain­
tiff and those similarly situated.

Wherefore, plaintiff respectfully prays the Court that 
upon filing of this complaint, as may appear proper and 
convenient to the Court, the Court advance this case on 
the Docket and order a speedy hearing of this action ac­
cording to the law, and upon such hearings:

1. That this Court adjudge and decree, and declare the 
rights and legal relations of the parties to the subject mat­
ter herein controverted, in order that such declaration 
shall have the force and effect of a final judgment or de­
cree.

2. That this Court enter a judgment or decree declaring 
that the policy, custom or usage of the defendant, in refus­
ing to register as electors plaintiff and other qualified Ne­
groes solely on account of their race or color, is unconsti­
tutional as a violation of Amendments 14 and b&"of the 
United States Constitution.

3. That this Court issue a permanent injunction forever 
restraining and enjoining the defendant from denying to 
Negroes possessing the qualifications of an elector the 
right to be registered as an elector solely because of color.

4. That this Court enter a judgment or decree declaring 
that the policy, custom and usage of the defendant in sub­
jecting Negroes to tests not required of white applicants 
as a prerequisite to registering is unlawful and in violation 
of the Fourteenth Amendment to the Constitution of the 
United States.

5. That the plaintiff have judgment for Five Thousand 
($5,000.00) Dollars damages.



10

6. That this Court will allow plaintiff his costs herein, 
and such further, other, additional or alternative relief as 
may appear to the Court to be just and equitable in the 
premises.

(Signed) EDWARD HALL,
(Edward Hall),

Plaintiff,
Reserve, Louisisana

(Sgd) THURGOOD MARSHALL, 
(Thurgood Marshall).

69 Fifth Avenue,
New York, New York.

(Sgd.) JOSEPH A. THORNTON, 
(Joseph A. Thornton),

(Sgd.) A. P. TUREAUD,
(A. P. Tureaud).

Attorneys for Plaintiff.
612 Iberville Street,
New Orleans, Louisiana

State of Louisiana,
Parish of Orleans.

Before me, the undersigned authority, personally came 
and appeared Edward Hall, who, being by me first duly 
sworn, deposes and says that he is the petitioner in the 
above and foregoing complaint; that he has read the same 
and that all of the allegations therein contained are true 
and correct.

(Sgd.) EDWARD HALL.

Sworn to and subscribed before me this 24 day of July, 
1945.

(Seal)
(Sgd.) JEWELL A. SPERLING, 

Notary Public.



11

MOTION TO DISMISS 
Filed Aug. 17, 1945.

11 (Number and Title Omitted)
Now comes T. J. Nagel, Registrar of Voters, St. John the 

Baptist Parish, Louisiana, made defendant in the above en­
titled and numbered cause, and appearing herein specially 
only, files this his motion to dismiss plaintiff’s petition, on 
the following grounds, to-wit: ^

L • / .  •
* H , >That plaintiff has failed to state a claim upon which re­

lief can be granted, and has not presented any jurisdic­
tional Federal question.

2 .

Plaintiff does not allege that the Registration Act or any 
other statute of Louisiana, or the Constitution of said state, 
is discriminatory, and that same operates or has operated 
to discriminate against him, or deprive him of any of his 
rights, privileges and immunities secured to him by the 
Constitution of the United States, or by any law of the 
United States providing for equal rights of citizens of the 
United States, or of all persons within the jurisdiction 
thereof.

3.
That plaintiff’s petition at best alleges merely that “De­

fendant has established and is maintaining a policy, custom 
and usage of denying to defendant and others on whose 
behalf this suit is brought the equal protection of the laws 
by requiring them to submit to tests not required of white 
electors,” and has “ Continued the policy of refusing to reg­
ister qualified Negro electors, while at the same time reg­
istering white electors with less qualifications than Negro 
applicants, solely on account of race and color,” as set out

J '

/



12

in paragraph ten of said petition, and that plaintiff makes 
no allegations sufficient to show that said acts of defendant 
were under authority of the Statutes or Constitution of the 
State of Louisiana, but, on the contrary, alleges that said 
acts were violative of the Constitution and laws of said 
state.

4.
Plaintiff’s said petition contains no allegations to support 

the filing of same as a class suit.

5.
Plaintiff does not allege that he has either pursued or 

exhausted the rights and remedies plainly accorded him 
under the Constitution and laws of the State of Louisiana 
applicable to the registration of voters.

6.

That plaintiff, even if otherwise entitled to institute a 
class action on the purported grounds set out in the peti­
tion, cannot, as a matter of law, maintain such an action 
in the form of a suit for a declaratory judgment.

7.
Plaintiff does not allege that at the time of the purported 

application to register, he could read and reasonably in­
terpret the Constitution of Louisiana and of the United 
States, as required by law, although his petition sets out 
such requirement in full in paragraph eleven thereof.

8 .

That plaintiff’s allegation to the effect that he was re­
fused registration on account of his color is a mere con­
clusion of the pleader, and is not supported by any allega­
tion of fact.



13

9.

That in paragraph thirteen plaintiff sets out as a con­
clusion of law that defendant in refusing to register him 
“ and others on whose behalf this suit is brought” was act­
ing under “color of authority of St. John the Baptist Parish 
and the State of Louisiana,” but in the same paragraph of 
his petition he alleges that such refusal “ is a violation of the 
Constitution of the State of Louisiana,” thereby admitting 
that defendant was not acting under the color of, or au­
thority of any law of the state or any subdivision thereof.

10.

Plaintiff does not set forth any facts entitling him to a 
declaratory judgment and injunction, or a judgment for 
damages, and has improperly cumulated his demands for 
relief herein.

Wherefore, he prays that this motion be filed, and on 
due hearing and hereof, the same be sustained, and that 
plaintiff’s suit be dismissed without cost to defendant. 

(Sgd.) JOHN E. FLEURY,
(John E. Fleury),

Atty. for Defendant.
Gretna, Louisiana.

(Sgd.) FRANK J. LOONEY,
(Frank J. Looney),

Atty. for Defendant,
Ricou-Brewster Building,

Shreveport, Louisiana.
(Sgd.) E. WAYLES BROWNE,

(E. Wayles Browne),
Atty. for Defendant,

Giddens-Lane Building,
Shreveport, Louisiana.



14

The above motion to dismiss has been duly served upon 
plaintiff by mailing same to his attorneys of record, at the 
addresses given in the petition.

(Sgd.) JOHN E. FLEURY,
Atty.

AMENDED COMPLAINT.

Filed Sept. 10, 1945.

14 (Number and Title Omitted)

To the Honorable, the United States District Court for the 
Eastern District of Louisiana:

Now comes the plaintiff, Edward Hall, suing in behalf of 
himself and all other Negroes possessing the qualifications 
to register as electors in Saint John the Baptist Parish, 
State of Louisiana, and in his Amended Complaint shows:

I

That the jurisdiction of this Court is invoked under sub­
division 11 of Section 41 of Title 28 of the United States 
Code, this being an action to enforce the right of citizens 
of the United States to vote in the several states, and sub­
division 14 of Section 41 of Title 28 of the United States 
Code, this being an action authorized by law to be brought 
to redress the deprivation under color of law, statute, regu­
lation, custom and usage of a state of rights, privileges 
and immunities secured by the Constitution of the United 
States, viz., sections 2 and 4 of Article 1 and Amendments 
14, 15 and 17 to said Constitution, and of rights secured by 
laws of the United States, viz., sections 31 and 43 of Title 
8 of the United States Code, all of which will appear more 
fully hereafter.



15

II

Plaintiff shows further that this is a proceeding for a 
declaratory judgment under section 400 of Title 28 of the 
United States Code (section 274 (d) of the Judicial Code) 
for the purpose of determining a question in actual con­
troversy between the parties, to wit: the question whether 
the practice of the defendant in enforcing and maintain­
ing the policy, custom and usage by which plaintiff and 
other Negro citizens similarly situated possessing all the 
qualifications of electors are subjected to unreasonable 
tests not required of white electors and who are thereby 
denied the right to register solely on account of their race 
or color, violates sections 2 and 4 of Article I and Amend­
ments 14, 15 and 17 of the Constitution of the United States.

III

All parties to this action, both plaintiff and defendant, 
are citizens of the United States and are residents of and 
domiciled in Saint John the Baptist Parish, State of Louisi­
ana.

IV

That this is a class action authorized by Rule 23(a) of 
the Rules of Civil Procedure for the District Courts of the 
United States. The rights involved are of common and gen­
eral interest to the members of the class represented by 
the plaintiff, namely, Negro citizens of the United States, 
residents and citizens of the State of Louisiana, similarly 
situated, who are qualified to register as voters in Saint 
John the Baptist Parish, Louisiana, under the Constitu­
tion and laws of the United States and of the State of Louis­
iana. Members of this class are so numerous as to make 
it impracticable to bring them all before the Court and 
for this reason plaintiff prosecutes this action in his own



16

behalf and in behalf of the class without specifically nam­
ing the said members herein.

That the qualifications of a person entitled to register 
and vote in the State of Louisiana are:

1. He must be a citizen of the United States and of the 
State of Louisiana, not less than twenty-one years of age;

2. He shall have been an actual bona fide resident of the 
parish one year;

3. He shall be, at the time he offers to vote, legally 
enrolled as a registered voter on his own personal 
application, in accordance with the provisions of the Con­
stitution and the laws of Louisiana.

4. He shall be of good moral character and shall under­
stand the duties and obligations of citizenship under a re­
publican form of government; he shall be able to read and 
write, and shall demonstrate his ability to do so when he ap­
plies for registration by making, under oath, administered by 
the registration officer or his deputy, written application 
therefor, in the English langnage or his mother tongue, which 
application shall contain the essential facts necessary to show 
that he is entitled to register and vote, and shall be entirely 
written, dated and signed by him except that he may date, 
fill out, and sign the blank application for registration here­
inafter provided for, and, in either case, in the presence of 
the registration officer or his deputy, without assistance or 
suggestion from any person or any memorandum whatever, 
other than the form application hereinafter set forth;

5. He shall also be able to read any clause in the Consti­
tution of Louisiana, or the Constitution of the United States 
and give a reasonable interpretation thereof. (Constitution 
of Louisiana, Article 8, section 1 and 6; Dart’s General Sta­
tutes, sections 2615.10; 2615.11; 2615.14; 2615.15; 2615.16; 
2615.19; 2615.21).



17

Plaintiff, Edward Hall, shows further at all times ma­
terial herein he was and is colored, a person of African de­
scent and of Negro blood, and over the age of twenty-one 
years; that he is a native born citizen of the United States 
of America and of the State of Louisiana; that he has re­
sided in the fifth ward of the Parish of Saint John the Bap­
tist, State of Louisiana, continuously, for more than ten 
years; that he is of good moral character and understands 
the duties and obligations of citizenship under a republican 
form of government. Plaintiff further shows that he can 
read and write the English language; that he can fill the 
application form required by law for registering as a quali­
fied elector, correctly and that he has never been convicted 
of any crime and that he is not an idiot or insane person; 
that plaintiff was and is able to read any clause in the 
Constitution of the United States and Louisiana and give 
a reasonable interpretation thereof. Plaintiff further shows 
that by reason of the allegations hereinabove made, he was 
in all particulars on August 4th, 1944 and still is possessed 
of the qualifications of an elector and as such was and is 
entitled to be registered as such elector.

VII

That the defendant, T. J. Nagel, holds office pursuant to 
the laws of Louisiana as an administrative officer of the 
State of Louisiana (Dart’s General Statutes of Louisiana, 
section 2629; Louisiana Constitution, Article 8, section 18). 
“A registrar of voters for each parish of this State (the 
parish of Orleans excepted) shall be appointed by the 
police jury or other governing authority of such parish 
provided by section 18 of Article 8 of the Constitution of 
the State of Louisiana of 1921, and all of whom shall be 
commissioned by the governor, and the said registrar shall 
hold office at the pleasure of the board of registration, 
created under said section 18 of Article 8 of the Constitu­
tion of the State of Louisiana of 1921.”



18

That on August 4, 1944, the defendant, T. J. Nagel was, 
and at the present time, is the duly appointed, qualified 
and active registrar of Saint John the Baptist Parish, State 
of Louisiana, in which parish plaintiff was residing, and 
in which parish it was the duty of the defendant to enforce 
the registration laws equally as to all applicants and to 
register all applicants qualified for registration as electors, 
including your petitioner, without regard to race or color 
of applicant.

VIII

IX

That under the Constitution and Laws of the United 
States and the Constitution and Laws of the State of Lou­
isiana registration is a prerequisite to the right of the citi­
zens of the United States and of said state to vote in any 
election in the state, including election of federal officers, 
and unless and until plaintiff and other members of the 
class on whose behalf this suit is brought are registered, as 
provided by said laws, the plaintiff and other members of 
the class on whose behalf this suit is brought will not be en­
titled to vote at any election held in the State of Louisiana, 
including election of federal officers. Plaintiff and others 
on whose behalf this suit is brought have sought and are 
seeking to register in order to exercise their rights as citi­
zens to participate in the choice of presidential electors, 
United States Senators and Congressmen, as well as their 
rights as citizens of the State of Louisiana to participate in 
the choice of state officers.

X

That defendant has established and is maintaining a 
policy, custom and usage of denying to plaintiff and others 
on whose behalf this suit is brought the equal protection



19

of the laws by requiring them to submit to tests not re­
quired of white electors applying for registration and has 
continued the policy of refusing qualified Negro electors 
while at the same time registering white electors with less 
qualifications than Negro applicants, solely on account of 
race and color.

XI

That on or about the 14th day of August, 1944, during 
the regular registration period while the defendant T. J. 
Nagel was conducting the registration of persons qualified 
to register, plaintiff presented himself at the Saint John 
the Baptist Parish Courthouse at Edgard, Louisiana, the 
place for registration of electors of said parish and there 
requested to the said registrar of voters to register him as 
a qualified elector of the State of Louisiana; that plaintiff 
was ready, able and willing to comply with all lawful re­
quirements for registration; that instead of the said regis­
trar giving him an application form to be filled by plaintiff 
in order to test his ability to read and write and furnish 
in said application the essential facts necessary to show 
that plaintiff is entitled to register and vote, the said de­
fendant, T. J. Nagel, had plaintiff to go into a back room 
of his office and questioned him as follows:

“What judicial district do you live in?”
Answer: “Twenty-fourth.”
“What congressional district?”
Answer: “ Second.”
“What senatorial district?”
Answer: “ I don’t know.”

Whereupon, the said registrar, being not satisfied with 
the answer given by plaintiff then and there refused to 
register him. That the said act of defendant in refusing 
to register plaintiff was arbitrary and capricious and not 
warranted by law. (Constitution of Louisiana, Article 8,



20

section 1(2).) “Said applicant shall be able to read any 
clause in this Constitution, or the Constitution of the United 
States, and give a reasonable interpretation thereof.”

XII

That during such registration period, on or about August 
4, 1944, white persons presenting themselves for registra­
tion were not subjected to any such test above required 
of plaintiff, but were registered forthwith, upon their fil­
ling the application form. Defendant following the policy, 
custom and usage set out in paragraph ten (10) of this com­
plaint, while registering white persons without any ques­
tioning whatsoever such as was experienced by plaintiff as 
hereinabove stated, denied plaintiff’s application to regis­
ter and wrongfully refused and illegally failed to register 
plaintiff solely on account of his race and color. That this 
action of the defendant in refusing to register plaintiff 
followed the general policy, custom and usage of the pres­
ent defendant and his predecessors in office.

XIII

That the defendant in subjecting plaintiff to tests not re­
quired of white applicants for registration and in refusing 
to register plaintiff and other qualified Negroes pursuant 
to the policy, custom and usage set out in paragraph ten 
(10) herein was acting under color of authority of Saint 
John the Baptist Parish and the State of Louisiana, and 
the refusal to register plaintiff and others on whose behalf 
this suit is brought is a violation of sections 2 and 4 of Ar­
ticle 1 and Amendments 14, 15 and 17 of the United States 
Constitution and sections 31 and 43 of Title 8 of the United 
States Code.



21

There is between the parties an actual controversy as 
hereinbefore set forth.

XIV

XV

That said defendant by his said illegal and wrongful acts 
has damaged this plaintiff in the sum and to the extent of 
Five Thousand Dollars.

XVI

That plaintiff and others similarly situated and affected, 
on whose behalf this suit is brought, are suffering irre­
parable injury and are threatened with irreparable injury 
in the future by reason of the acts herein complained of; 
they have no plain adequate or complete remedy to re­
dress the wrongs and illegal acts herein complained of, 
other than this action for damages, for a declaration of 
rights and an injunction; any other remedy to which plain­
tiff and those similarly situated could be remitted would 
be attended by such uncertainties and delays as to deny 
substantial relief, would involve multiplicity of suits, cause 
further irreparable injury, damages, and inconvenience to 
the plaintiff and those similarly situated.

Wherefore, plaintiff respectfully prays the Court that 
upon filing of this complaint, as may appear proper and 
convenient to the Court, the Court advance this case on the 
Docket and order a speedy hearing of this action according 
to the law, and upon such hearings:

1. That this Court adjudge and decree, and declare the 
rights and legal relations of the parties to the subject mat­
ter herein controverted, in order that such declaration shall 
have the force and effect of a final judgment or decree.



22

2. That this Court enter a judgment or decree declaring 
that the policy, custom or usage of the defendant, in refus­
ing to register as electors plaintiff and other qualified Ne­
groes solely on account of their race or color, is unconsti­
tutional as a violation of Amendments 14, 15 and 17 of the 
United States Constitution.

3. That this Court issue a permanent injunction forever 
restraining and enjoining the defendant from denying to 
Negroes possessing the qualifications of an elector the 
right to be registered as electors because of color.

4. That this Court enter a judgment or decree declaring 
that the policy, custom and usage of the defendant in sub­
jecting Negroes to tests not required of white applicants 
as a prerequisite to registering is unlawful and in violation 
of the Fourteenth Amendment to the Constitution of the 
United States.

5. That the plaintiff have judgment for Five Thousand 
($5,000.00) Dollars damages.

6. That this Court will allow plaintiff his costs herein, 
and such further, other, additional or alternative relief as 
may appear to the Court to be just and equitable in the 
premises.

(Sgd.) EDWARD HALL 
Plaintiff.

Reserve, Louisiana.
(Sgd.) THURGOOD MARSHALL, 

(Thurgood Marshall),
69 Fifth Avenue,

New York, New York.
(Sgd.) JOSEPH A. THORNTON, 

(Joseph A. Thornton),
(Sgd.) A. P. TUREAUD,

(A. P. Tureaud),
Attorneys for Plaintiff

612 Iberville Street,
New Orleans, Louisiana.



23

State of Louisiana,
Parish of Orleans.

Before me, the undersigned authority, personally came 
and appeared Edward Hall, who, being by me first duly 
sworn, deposes and says that he is the petitioner in the 
above and foregoing complaint; that he has read the same 
and that all of the allegations therein contained are true 
and correct.

(Sgd.) EDWARD HALL.

Sworn to and subscribed before me this . . .  day of Sep­
tember, 1945-

fSgd.) JEWELL A. SPERLING,
(Seal) Notary Public.

REASONS AND AUTHORITIES IN SUPPORT OF MO­
TION TO DISMISS.

Filed Aug. 22, 1945.

24 (Number and Title Omitted)

In connection with the motion to dismiss filed herein, 
defendant now assigns additional reasons, and amplifies 
those set out in the motion, as follows:

The Federal Court has no jurisdiction:

1. Because plaintiff did not exhaust his remedies under 
the State Constitution.

2. Because the plaintiff did not allege sufficient grounds 
to secure registration in that he failed to state in his alle­
gations that he possessed all the required qualifications,



24

or pursued the requirements of the law in making appli­
cation for registration.

3. Plaintiff did not set forth the basis of a class action, 
because no common relief is possible under the allegations, 
and no specific person or persons are in any way or manner 
identified as members of a class. Further, that plaintiff 
makes no allegations that any other member of the pur­
ported class referred to in the complaint has been denied 
or would be denied the right to register on the grounds 
set forth in the complaint, or any other ground; and no 
remedy can be accorded herein to a class by a single judg­
ment.

4. That for the reasons above given, in te r  alia , the com­
plaint fails to state a claim upon which relief can be 
granted.

5. Complainant herein cannot ask a declaratory judg­
ment under the facts set out in the complaint, as he does 
not allege any attempt to comply with the procedure pro­
vided under the Constitution and laws of the State of 
Louisiana, and as far as the petition shows, plaintiff’s rights 
are fully protected by appropriate proceedings in the state 
Courts, as specially provided by law. Judgment on the 
allegations would not settle the controversy, inasmuch as 
other requirements of the Constitution would have to be 
followed before plaintiff would have had a right to register, 
and declaratory relief should not be given when it would 
not settle the controversy.

List Of Authorities.

Porter vs. Investors Syndicate, 286 U. S., 461 and same 
case 287 U. S., 346.

Kellar vs. Potomac Electric Power Company, 261 U. S., 428.



25

Smith vs. Allwright, 321 U. S., 657.
Bowman vs. Lewis, 101 U. S., 22.
Giles vs. Harris, 189 U. S., 475.
Farmer’s Cooperative Oil Company vs. Socony Vacuum 

Oil Company, 43 Federal Supp. 735, same case 133 
Federal (2d) 101.

Duart Company vs. Philad Company, 31 Federal Supp. 548. 
Cromwell vs. Hillsboro, etc., County, 149 Federal (2d) 617 

(Advance Sheets, August 6, 1945).
Coffman vs. Breeze Corporation, Inc., Advance Opinions 

Supreme Court, law Edition, No. 5, Jan 15, 1945, page 
255.

(Sgd.) JOHN E. FLEURY,
(Sgd.) FRANK J. LOONEY,
(Sgd.) E. WAYLES BROWNE,

Attorneys for Defendant.

Copy of the above has been served upon all opposing 
counsel by mailing to them, at the address given in the 
complaint This August 20, 1945.

(Sgd.) E. WAYLES BROWNE,
Of Counsel.



26

HEARING ON MOTION OF DEFENDANTS TO DIS­
MISS AND SUBMISSION.

Extract from the Minutes, May Term, 1945.

New Orleans, Wednesday, September 12, 1945.

Court met pursuant to adjournment;

Present: Hon. Adrian J. Caillouet, Judge.

26 (Number and Title Omitted)

This cause came on this day to be heard on motion of 
defendants to dismiss.

Present:
J. G. Fleury, Esq.,
F. J. Looney, Esq.,
E. Wayles Browne, Esq.,

Attorneys for Defendants.

Thurgood Marshall, Esq.,
Joseph A. Thornton, Esq.,
A. P. Tureaud, Esq.,

Attorneys for Plaintiff.

Whereupon, after hearing argument of counsel for the 
respective parties, the matter was submitted when the 
Court took time to consider, plaintiff to have until Septem­
ber 15 to file further memoranda.



27

ORDER MAINTAINING MOTION TO DISMISS, 

Extract from the Minutes, May Term, 1945.

New Orleans, Monday, September 17th, 1945.

Court met pursuant to adjournment;

Present: Hon. Wayne G. Borah, Judge.

27 (Number and Title Omitted)

This matter came on for hearing on September 12th, 
1945 on defendants motion to dismiss and was argued and 
submitted when the Court took time to consider;

Now, therefore after due consideration, it is ordered that 
the motion to dismiss be, and the same is hereby, maintained 
and this suit dismissed at plaintiff’s costs.

Initialed (A. J. C.)

NOTICE OF APPEAL TO CIRCUIT COURT OF AP­
PEALS,

Filed Oct. 16, 1945.

In the United States District Court for the Eastern Dis­
trict of Louisiana.
Edward Hall, Plaintiff

vs. Civil Action No. 1273
T. J. Nagel, Registrar of Voters, St. John the Baptist Parish, 

Louisiana, Defendant.

Notice is hereby given that Edward Hall, plaintiff above 
named, hereby appeals to the Circuit Court of Appeals for



28

the Fifth Circuit from the order sustaining defendant’s 
motion to dismiss and dismissing plaintiff’s suit, entered 
in this action on September 17,1945.

(Sgd.) THURGOOD MARSHALL, 
(Thurgood Marshall,)

69 Fifth Avenue,
New York, New York.

(Sgd.) JOSEPH A. THORNTON, 
(Joseph A. Thornton),

(Sgd.) A. P. TUREAUD,
(A. P. Tureaud),

Attorneys for Appellant, 
Edward Hall.

612 Iberville Street,
New Orleans, Louisiana.

29 APPEAL BOND

Filed Oct. 16, 1945.

Know all men by these presents, that we Edward Hall 
and Theodore L. Miller as surety are held and firmly bound 
unto T. J. Nagel in the full and just sum of two hundred 
and fifty dollars to be paid to the said T. J. Nagel, certain 
attorney, executors, administrators, or assigns: to which 
payment, well and truly to be made we bind ourselves, our 
heirs, executors, and administrators, jointly and severally, 
by these presents. Sealed with our seals and dated this 13th 
day of October, in the year of our Lord one thousand nine 
hundred and forty-five.

Whereas, lately at a session of the United States Dis­
trict Court, holding sessions in and for the Eastern District 
of Louisiana, in a suit depending in said Court, between



29

Edward Hall, as plaintiff and T. J. Nagel, as defendant, 
No. 1273 of its docket an Order was rendered against the 
said Edward Hall and the said Edward Hall having ob­
tained an order of appeal and filed a copy thereof in the 
Clerk’s Office of the said Court to reverse the order in the 
aforesaid suit, and a citation directed to the said T. J. Na­
gel citing and admonishing him to be and appear before 
the United States Circuit Court of Appeals for the Fifth 
Circuit, to be holden at New Orleans, Louisiana, within 
30 days from the date thereof.

Now, the condition of the above obligation is such, That 
if the said Edward Hall shall prosecute his to effect, and 
answer all damages and costs if he fail to make his plea 
good, then the above obligation to be void; else to remain 
in full force and virtue.

(Sgd.) PORTIA L. GRAINGER

Sealed and delivered in presence of—
(Sgd.) CHARLES CURTIS 

(Signed) EDWARD HALL (Seal)
(Signed) THEODORE L. MILLER (Seal)

Approved by.

United States of America,
Eastern District of Louisiana, ss:

Personally appeared, Theodore L. Miller who, being 
duly sworn, deposes and says that he is the surety on the 
within bond; that he resides in New Orleans, State of 
Louisiana, and is worth the full sum of two hundred and 
fifty dollars, over and above all his debts and liabilities and 
property exempt from execution.

(Sgd.) THEODORE L. MILLER

Subscribed and sworn before me this 13th day of October 
1945.

(Sgd.) JOHN T. CHARBONNET
(Seal) Notary Public.



30

DESIGNATION OF CONTENTS OF RECORD ON
APPEAL

30 (Title Omitted)

Clerk, United States District Court,
Eastern District of Louisiana.

In the above numbered and entitled cause, it is respect­
fully requested that the following shall be contained in 
the record on appeal, in accordance with rule 75, Federal 
Rules of Civil Procedure:

1. Amended complaint of plaintiff
2. Motion to dismiss filed by defendant
3. Order of Hon. Adrian J. Caillouet sustaining motion 

to dismiss and dismissing suit.
4. Notice of appeal to Circuit Court of Appeals
5. Bond of Appeal
6. Any other pleadings, documents or exhibits required 

under rule 75, Federal Rules of Civil Procedure to make up 
the entire record.

(Sgd.) THURGOOD MARSHALL, 
(Thurgood Marshall),

69 Fifth Avenue,
New York, New York.

(Sgd.) JOSEPH A. THORNTON, 
(Joseph A. Thornton), 

(Sgd.) A. P. TUREAUD,
(A. P. Tureaud),

Attorneys for Appellant.
612 Iberville Street,
New Orleans, La.



31

Copy of the above designation served upon appellee by 
mailing same to his counsel of record, October 13, 1945. 

(Sgd.) A. P. TUREAUD,
(A. P. Tureaud),

Of Counsel for Appellant.

DESIGNATION BY APPELLEE OF ADDITIONAL POR­
TIONS OF RECORD.

31 (Title Omitted)

Hon. A. Dallam O’Brien, Jr. Clerk, United States District 
Court, Eastern District of Louisiana.

In the above cause request is made that you include in 
the record on appeal all documents required for the record 
under Rule 75 (g.), Federal Rules for Civil Procedure, and 
particularly the following:

1. Plaintiff’s original complaint.

2. Reasons and authorities filed by defendant in support 
of his motion to dismiss.

FRANK J. LOONEY 
E. WAYLES BROWNE,
E. WAYLES BROWNE, 

Attorneys for Appellee.

Copy of the above supplemental designation served upon 
appellant by mailing same to his counsel of record this 
October 23, 1945.

E. MAYLES B BROWNE,
Of Counsel.



32

CLERK’S OFFICE:

I, A. DALLAM O’BRIEN, Jr., Clerk of the United States 
District Court for the Eastern District of Louisiana, do 
hereby certify that the foregoing 31 pages contain and 
form a full, true and complete transcript of the record, 
in the cause entitled “Edward Hall, Plaintiff vs. T. J. 
Nagel, Registrar of Voters, St. John the Baptist Parish, 
Louisiana, Defendant” , No. 1273 Civil Action of the docket 
of this Court, as made up in accordance with designations 
copied therein.

Witness My Hand and the seal of said Court at the City 
of New Orleans, La., this 17th day of December, A. D., 1945.

A. DALLAM O’BRIEN, Jr.,
(Seal) Clerk.

By C. O. WAGNER, JR.,
Deputy Clerk.





'





U PTO N  P R IN T IN G  C O .,  N EW  OR LE AN S— 82818



IN THE

llwxtth &tatro Ctrntit Court of Appeals
F i f t h  C i r c u i t

No. 11,534

EDWARD HALL,

v er s u s
A p p e lla n t ,

T. J. NAGEL, Registrar of Voters, St. John 
the Baptist Parish, Louisiana,

A p p e l le e .

APPEAL FROM TH E  DISTRICT COURT OF T H E  U N ITED  STATES 
FOR TH E  EASTERN DISTRICT OF LOUISIANA

JL------------------ " ,  i . '■ le v

BRIEF FOR APPELLANT

A. P. T u r e a u d ,
J o s e p h  T h o r n t o n ,

612 Iberville Street,
New Orleans, La.

W i l l i a m  H .  H a s t i e ,
615 F Street, N. W., 
Washington, D. C.

T i i u r g o o d  M a r s h a l l ,
20 West 40th Street,
New York, N. Y.

A tto r n e y s  f o r  A p p e lla n t.
R o b e r t  L. C a r t e r ,

New York, N. Y.
O f C ou n sel.





TABLE OF CONTENTS.

Statement of C ase-------------------------------------------------------- 1
Statement of F acts------------------------------------------------------  2
Specifications of E rror-------------------------------------------------  4

Argument
I Federal Courts Have Jurisdiction of the Present 

Cause of A ction --------------------------------------------------  5
A. Section 41 (11) and (14) of Title 28 of the
United States Code Gives the Federal Courts 
Jurisdiction of Appellant’s Cause of Action___  5
B. Appellant’s Failure to Pursue or Exhaust
His Eights Under State Law Does Not Oust the 
Federal Courts of Jurisdiction----------------------------  6

II Appellee’s Eefusal to Register Appellant Solely 
Because of His Race or Color Violated the Consti­
tution and Laws of the United States-------------------  9

A. The Right to Vote Is Secured by the F if­
teenth Amendment Against Restrictions Based
on Race or C olor------------------------------------------------  9
B. The Right of Qualified Electors of the Several
States to Choose Members of Congress Is Se­
cured and Protected by Article I, Section 2 and 
by the Seventeenth Amendment of the United 
States Constitution ____________________________ 11
C. The Policy of Requiring Negro Applicants
for Registration to Submit to Tests Not Re­
quired of Other Applicants Violates the Four­
teenth Amendment ____________________________ 12

III Appellant May Properly Maintain This Suit as a
Class Action Under Rule 23 (a) of the Federal 
Rules of Civil Procedure________________________  15

IV Appellant May Properly Seek a Declaratory Judg­
ment _____________________________________________  19

PAGE



11

Y  Action of Appellee in Refusing to Register Appel­
lant Makes Him Liable to the Appellant for Dam­
ages Under the Provisions of Sections 31 and 43

PAGE

of Title 8 of the United States Code--------------------  23
VI Conclusion ______________________________________  24
Appendix A ------------------------    27
Appendix B _________________________________________  30
Appendix C -------------------------------------------------------------- 38

Table of Cases.

Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 57
S. Ct. 461, 81 L. Ed. 617 (1937)__________________20,21

Alston v. School Board, 112 F. (2d) 992 (C. C. A. 4th,
1940) ___________________________________________ 19, 22

Atwood v. Natl. Bank of Lima, 115 F. (2d) 861 (C. C.
A. 6th, 1940) ______________________________________  18

Bacon v. Rutland R. Co., 232 IT. S. 134, 34 S. Ct. 283,
58 L. Ed. 538 (1914)_______________________________ 7

Berry v. Davis, 15 F. (2d) 488 (C. C. A. 8th, 1926)------ 6
Breedlove v. Suttles, 302 U. S. 277, 58 S. Ct. 205, 82 L.

Ed. 252 (1937) ____________________________________  H
Chew v. First Presbyterian Church of Wilmington, 237

Fed. 219 (D. C. Del., 1916)________________________ 16
Clarke et ai. v. Goldman, 124 F. (2d) 491 (C. C. A. 2nd,

1941) _____________________________________________ 18
Cloyes v. Middlebury Electric Co., 80 Vt. 109, 66 A.

1039 (1907) ____________________________________—  18
Cromwell v. Hillsborough T. P., Somerset County, N.

J., 149 F. (2d) 617 (C. C. A. 3d, 1945) affm. U. S. 
Supreme Court, Oct. Term 1945, decided Jan. 29,
1946 ______________________________________________  22

Davis v. Cook, 55 F. Supp. 1004 (N. D. Ga., 1944)------- 19, 22
Ex Parte Virginia, 100 U. S. 346, 25 L. Ed. 676 (1880) 13
Ex Parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L.

Ed. 274 (1884) ___________________________________ 10,12
Farmers Co.-Op. Oil Co. v. Socony Vacuum Oil Co. Inc.,

133 F. (2d) 101 (C. C. A. 8th, 1942)_________________  18



I ll

Gilchrist v. Interborough Rapid Transit Co., 279 U. S.
159, 49 S. Ct. 282, 73 L. Ed. 652 (1929)____________  7

Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926,
59 L. Ed. 1340 (1915) _________________________ 6,10,11

Harworden v. Youghengheny & L. Coal Co., I l l  Wis.
545, 87 N. W. 472 (1902)_________________________ 16,18

Home Telephone & Telegraph Co. v. Los Angeles, 227
U. S. 278, 33 S. Ct. 312, 57 L. Ed. 510 (1913)______  13

Hunter v. Southern Indemnity Underwriters, 47 F. 
Supp. 242 (E. D. Ky., 1942)-----------------------------------  17

Independence Shares Corp. et al. v. Deckert, et ah, 108
F. (2d) 51 (C. C. A. 3rd, 1939)__________________17,19

Iowa-Des Moines Natl. Bank v. Bennett, 284 U. S. 239,
52 S. Ct. 133, 76 L. Ed. 265 (1931)_________________ 14

Heavy v. Anderson, 2 F. R. D. 19 (R. I., 1941)------------  18
Kvello v. Lisbon, 38 N. D. 71, 164 N. W. 305 (1917)___ 18
Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L. Ed.

1281 (1939)___________________________________ 6,7, 8,9,
10,11, 24

McDaniel v. Board of Public Instruction, 39 F. Supp.
638 (N. D. Fla., 1941)___________________________ 19, 22

Myers v. Anderson, 238 U. S. 368, 35 S. Ct. 932, 59 L.
'E d . 1349 (1915) ______________________________10,11,24

Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300, 58
S. Ct. 199, 82 L. Ed. 276 (1937)__________________  7

National Hairdressers & Cosmetologists Assn. Inc. v.
Phil. Co., 41 F. Supp. 701 (D. C. Del., 1941)______17,18

Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed.
984 (1932) ____________________________________ 6,13,15

Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed.
759 (1927) ___________________________ ________ 6,13,15

Oppenheimer, et al. v. T. J. Young & Co. Inc., 144 F.
(2d) 387 (C. C. A. 2d, 1944)______________________ 17,19

Pacific Telephone & Telegraph Co. v. Kuykendall, 265
U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975 (1924)._____.7, 8

Porter v. Investors Syndicate, 286 U. S. 461, 52 S. Ct.
617, 76 L. Ed. 1226 (1932) affm. on rehearing 287 
U. S. 346, 53 S. Ct. 132, 77 L. Ed. 354 (1932)

PAGE

7



IV

18

Prentiss v. Atlantic Coast Line Co., 211 U. S. 210, 29
S. Ct. 67, 53 L. Ed. 150 (1908)------------------------------  7,8

Railroad & Warehouse Commission Co. v. Duluth Street 
R. Co., 273 U. S. 625, 47 S. Ct. 489, 71 L. Ed. 807 
(1927) ___________________________________________  8

Skinner v. Mitchell, 108 Kan. 861, 197 P. 569 (1921)-... 18 
Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L.

Ed. 987 (1943) _____________________________ 10,11,14,
17, 24

Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed.
497 (1944) ---------- ------------------------ — -------------------- 15

State Corporation Commission v. Wichita, 290 U. S.
561, 54 S. Ct. 321, 78 L. Ed. 500 (1934)-------------------  7

Trade Press Pub. Co. v. Milwaukee Type Union, 180
Wis. 499, 193 N. W. 507 (1923)------------------------------

Trice Products Corp. v. Anderson Co., 147 F. (2d) 721
( C C A .  7th, 1945)_______________________________ 21

Trudeau v. Barnes, 65 F. (2d) 563 (C. C. A. 5th, 
1933) _____________________________________________ 8> 9

United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031,
85 L. Ed. 1368 (1941)-------------------------------- 10,11,14,15

United States v. Mosely, 238 U. S. 383, 35 S. Ct. 904,
59 L. Ed. 1335 (1915)---------------------------------------------  10

United States v. Reese, 92 U. S. 214, 23 L. Ed. 563
(1876) ____________________________________________ 10

United States v. Sing Tuck, 194 U. S. 161, 24 S. Ct. 621,
48 L. Ed. 917 (1904)-----------------------------------------------  8

Weeks v. Bareco Oil Co., 125 F. (2d) 84 (C. C. A. 7th,
1941) ________________________________________ 17,18,19

Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed.
84 (1899) _________________________________________ 10

Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L.
Ed. 220 (1886) __________________________________13>15

York v. Guaranty Trust Co. of New York, 143 F. (2d)
503 (C. C. A. 2d, 1944)---------  18,19

PAGE



V

U n i t e d  S t a t e s  C o n s t i t u t i o n

p a g e

Section 2, Article I ----------------------------------------- 3, 4, 6,10,11
Fourteenth Amendment_____________________ 4, 6,12,13,15
Fifteenth Amendment __________________________ 4,6,9,17
Seventeenth Amendment_______________________ 4, 6,10,11

L o u i s i a n a  C o n s t i t u t i o n

Section 1, Article V III------------------------------------------- 3,10,12
Section 5, Article V III_____________________________  6
Section 6, Article V III_____________________________  3
Section 17, Article V III____________________________  12
Section 18, Article V III___________________________ 12,15

S t a t u t e s

Section 31, Title 8, U. S. Code__________________ 4, 6, 23, 24
Section 43, Title 8, U. S. Code__________________ 4, 6, 23, 24
Section 400, Title 28, U. S. Code (Section 274, Judicial

Code) ------------------------------------------------------------------- 19
Section 41 (11), Title 28, U. S. Code___________________  4, 5
Section 41 (14), Title 28, U. S. Code___________________  4, 6
La. Gen. Stat. (Dart), 1939, Sec. 2614.10; 2615.11;

2615.14; 2615.16; 2615.19; 2615.21__________________ 3
26 Okla. Stat. Sec. 74________    9

T r e a t i s e s  a n d  A r t i c l e s

Anderson, Declaratory Judgments (1940)___________  20
Borchard, Declaratory Judgments (2nd Ed. 1941)__  20
Wheaton, Representative Suits Involving Numerous

Litigants, 19 Corn L. Q. 399, 407, 433 (1934)______16,17
Moore, Federal Practice (1938)_____________________16,17
18 Am. Jur. 332 Section 62_____________ ___ _________  20





IN  THE

llnxtth States (Eirrmt (Uiutrt of Appeals
F o r  t h e  F i f t h  C i r c u i t

No. 11,534

E d w a r d  H a l l ,

A p p e lla n t ,

v s .

T. J. N a g e l , Registrar of Voters, St. John the Baptist 
Parish, Louisiana,

A p p e l le e .

APPEAL FROM T H E  DISTRICT COURT OF T H E  U N ITED  STATES 

FOR TH E  EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLANT

P A R T  O N E  

Statement of the Case

This is an appeal by the plaintiff, Edward Hall, from an 
order entered in the District Court of the United States for 
the Eastern District of Louisiana, New Orleans Division, 
on September 17, 1945, sustaining the Motion to Dismiss 
tiled by appellee and dismissing the suit of the appellant 
(R. 27).

The amended complaint, filed on September 10, 1945 (R. 
14-23) alleged that on or about August 4,1944 the defendant 
below, as registrar of voters of St. John the Baptist Parish, 
following a general policy, custom and usage of refusing



2

to register qualified Negro electors, refused to register 
plaintiff below solely on account of race and color. It is 
alleged that defendant below maintained a policy, custom 
and usage of denying to plaintiff below and other qualified 
Negro electors the equal protection of the laws by requir­
ing them to submit to tests not required of white electors 
and refusing to register qualified Negro electors while at 
the same time registering white electors with less qualifica­
tions than Negro applicants solely on account of race and 
color. In addition, the allegation was made that this re­
fusal and denial were violative of the Constitution and laws 
of the United States. The complaint prayed for a declara­
tory judgment, a permanent injunction and Five Thousand 
Dollars in damages (R. 9, 21-22).

Defendant filed a motion to dismiss the complaint on 
August 17,1945 and reasons and authority in support thereof 
on August 22, 1945. On September 12, 1945 a hearing was 
held on defendant’s motion to dismiss, and oral argument 
was presented in support of and against said motion (R. 
26). Thereupon on September 17, 1942 Judge A d r i a n  J. 
C a i l l o u e t  issued the following order: ‘ ‘ Now, therefore
after due consideration, it is ordered that the motion to dis­
miss be, and the same is hereby, maintained and this suit 
dismissed at plaintiff’s costs”  (R. 27). The Court did not 
file an opinion.

Statement of Facts

The allegations of the complaint set forth that: Appel­
lant is a colored person of African descent and of Negro 
blood. He is a native-born citizen of the United States. 
He has maintained a bona fide residence in the fifth war d of 
the Parish of St. John the Baptist in the State of Louisiana 
for more than ten years and is over twenty-one years of 
age. He is of good moral character and understands the



3

duties and obligations of citizenship under a republican 
form of government. He lias never been convicted of any 
crime. He is not an idiot or insane person. He can read 
and write the English language, can correctly fill the applica­
tion form required by law for registering as an elector, and 
can read any clause in both the Constitution of the United 
States and that of the State of Louisiana (R. 4, 5, 17). In 
short, appellant has met all the requirements of the Consti­
tution and laws of the United States and of the State of 
Louisiana necessary to entitle him to register and vote. 
(Constitution of United States, Article I, Section 2 and 
Amendment X Y II ; Constitution of Louisiana, Article VIII, 
Section 1 and 6, Dart’s General Statutes, Sections 2615.10, 
2615.11, 2615.14, 2615.15, 2615.16, 2615.19, 2615.21).

Both parties to this action are citizens of the United 
States and are residents of and domiciled in St. John the 
Baptist Parish, State of Louisiana (R. 3, 15).

Appellee is the duly appointed, qualified and active 
registrar of voters of St. John the Baptist Parish (R. 5) 
and was acting in that capacity on August 4, 1944 when 
appellant presented himself for registration. At such time 
appellee refused to give him an application form to be filled 
in order to test his ability to read and write and to furnish 
on said application under oath the essential facts necessary 
to show that he was entitled to register and vote. Instead 
appellee took appellant aside and questioned him as follows:

“ What judicial district do you live in?”
Answer: “ twenty-fourth.”
“ What congressional district?”
Answer: “ Second.”
“ What senatorial district?”
Answer: “ I don’t know.’ ’

Not being satisfied with the answer, appellee refused to 
register him (R. 19).



4

P A R T  T W O

Specifications of Errors

The District Court erred:
1. In maintaining appellee’s motion to dismiss and in 

dismissing appellant’s suit.
2. In refusing to find that the Court had jui isdiction 

under subdivisions 11 and 14 of Section 41 of Title 28, and 
under sections 31 and 43 of Title 8, of the United States
Code.

3. In refusing to find that appellee’s wrongful acts as 
set forth in the amended complaint deprived appellant and 
all those similarly situated of the equal protection of the 
laws in violation of the Fourteenth Amendment to the 
United States Constitution.

4. In refusing to find that by virtue of appellee’s wrong­
ful acts as alleged in the amended complaint appellant and 
others on whose behalf this suit was brought were denied 
the rights secured by Section 2 of Article I and by the 
Seventeenth Amendment of the United States Constitution 
to all citizens of the United States to participate in an 
election of federal officers.

5. In refusing to find that appellee’s acts as alleged in 
the amended complaint deprived appellant of the right to 
vote solely on account of race or color in violation of the 
Fifteenth Amendment to the United States Constitution.

6. In refusing to find that appellee’s conduct as alleged 
in the amended complaint made him liable to appellant in 
damages under the provisions of Section 31 and 43 of Title 
8 of the United States Code.

7. In refusing to find that appellant could properly 
bring this action on his own behalf and on behalf of all



other qualified Negro electors residing in St. John the 
Baptist Parish under the provisions of Rule 23 (a) of the 
Federal Rules of Civil Procedure.

8. In refusing to find that appellant could properly 
maintain this suit in the form of an action seeking a de­
claratory judgment.

P A R T  T H R E E  

ARGUMENT 

I

Federal Courts Have Jurisdiction of the Present 
Cause of Action.

A. Section 41 (11 ) and (14) of Title 28 of the 
United States Code Gives the Federal Courts 
Jurisdiction of Appellant’s Cause of Action.

Jurisdiction is invoked pursuant to subdivisions 11 and 
14 of Section 41 of Title 28 of the United States Code. 
Subdivision 11 of Section 41 provides:

“ The district courts shall have original jurisdic­
tion as follows: * * * ‘ Of all suits brought by any 
person to recover damages for any injury to his per­
son or property on account of any act done by him, 
under any law of the United States, for the protec­
tion or collection of any of the revenues thereof, o r  
to  e n fo r c e  th e r ig h t o f  c i tiz en s  o f  th e  U n ited  S ta te s  
to  v o te  in  th e s e v e r a l  s ta t e s . ’ ”  (Italics ours.)

This is an action to recover damages for refusal of ap­
pellee, registrar of voters in St. John the Baptist Parish, 
to register appellant and Negro qualified applicants simi­
larly situated solely on account of their race and color. 
Since such registration is a prerequisite to the right of a 
citizen of the United States to vote in any election in the 
State of Louisiana, including the election of federal officers, 
the refusal of appellee was an effective deprivation of the



6

voting privilege. As such the federal courts clearly have 
jurisdiction: N ix o n  v. H ern d o n , 273 U. S. 536, 47 S. Ct. 446 
71 L. Ed. 759, (1927); N ix o n  v. C on d on , 286 U. S. 73, 52 S. 
Ct. 484, 76 L. Ed. 984 (1932); L a n e  v. W ils o n , 307 U. S. 
268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939); G uinn  v. U n ited  
S ta te s , 238 U. S. 347, 35 S. Ct. 926, 59 L. Ed. 1340 (1915); 
B e r r y  v. D a v is , 15 F. (2d) 488 (C. C. A. 8th, 1926).

Subdivision 14 of section 41 of Title 28 provides:
“ The district court shall have original jurisdic­

tion as follows: * * * ‘ Of all suits at law or in equity 
authorized by law to be brought by any person to 
redress the deprivation, under color of any law, 
statute, ordinance, regulation, custom, or usage, of 
any State, of any right, privilege, or immunity, se­
cured by the Constitution of the United States, or of 
any right secured by any law of the United States 
providing for equal rights of citizens of the United 
States or of all persons within the jurisdiction of 
the United States.’ ”

Appellant’s suit also is an action at law to redress the 
deprivation under color of law, statute, regulation, custom 
or usage of a right, privilege, or immunity secured by the 
Constitution, namely, Section 2 of Article I, Fourteenth, 
Fifteenth and Seventeenth Amendments, and of a right se­
cured by law of the United States providing for equal rights 
of citizens, namely, sections 31 and 43 of Title 8 of United 
States Code.

B. Appellant’s Failure to Pursue or Exhaust His 
Rights Under State Law Does Not Oust the 
Federal Courts of Jurisdiction.

The Constitution of Louisiana, Article VIII, Section 5 
provides the following redress for any applicant who is re­
fused registration:

“ Any person possessing the qualifications for 
voting prescribed by this Constitution, who may be



7

denied registration, shall have the right to apply for 
relief to the district court having jurisdiction of 
civil causes for the parish in which he offers to regis­
ter. Said court shall then try the cause, giving it 
preference over all other cases, before a jury of 
twelve, nine of whom must concur to render a ver­
dict. This verdict shall be a final determination of 
the cause. The trial court may, however, grant one 
new trial by jury. In no cases shall any appeal lie 
or any other court exercise the right of review. ’ ’

The redress herein provided is not an administrative 
remedy but is in the nature of a conventional judicial pro­
ceeding, and the rule is firmly fixed that the remedy avail­
able in the State courts need not be exhausted before an 
action is maintainable in federal courts where the State 
remedy is judicial in nature. S ta te  C o r p o r a t io n  C o m m is­
sion  v. W ich ita , 290 U. S. 561, 54 S. Ct. 321, 78 L. Ed. 500 
(1934); P o r t e r  v. I n v e s to r s  S y n d ica te , 286 U. S. 461, 52 S. 
Ct. 617, 76 L. Ed. 1226 (1932) affm. on rehearing- 287 U. S. 
346, 53 S. Ct. 132, 77 L. Ed. 354 (1932); B a co n  v. R u tla n d  
R . C o., 232 U. S. 134, 34 S. Ct. 283, 58 L. Ed. 538 (1914); 
P acific  T e lep h o n e  & T e le g r a p h  C o. v. K u y k en d a ll , 265 U. S. 
196, 44 S. Ct. 553, 68 L. Ed. 975 (1924); L a n e  v. W ils o n ,  
supra. Whenever the question has been presented the 
United States Supreme Court has examined the remedy 
provided to determine whether it was legislative or ju­
dicial in nature. P r e n t i s s  v. A tla n t ic  C o a s t L in e  Co.,- 211 
U. S. 210, 29 S. Ct. 67, 53 L. Ed. 150 (1908); L a n e  v. W ils o n ,  
su p ra : P a cific  T e le p h o n e  & T e le g r a p h  C o . v. K u y k en d a ll , 
su p ra ; P o r t e r  v. I n v e s to r s  S y n d ica te , su p ra . Only in the 
former instance was it deemed necessary that the remedies 
open in the state be utilized before a suit could be per­
fected in the federal courts. N a tu ra l G as P ip e l in e  C o . v. 
S la ttery , 302 U. S. 300, 58 S. Ct. 199, 82 L. Ed. 276 (1937); 
P o r te r  v. I n v e s to r s  S y n d ica te , s u p r a ; G ilch ris t v. I n t e r ­
b orou gh  R a p id  T ra n s it  C o ., 279 U. S. 159, 49 S. Ct. 282, 73



8

L Ed. 652 (1929); R a ilro a d  and W a r e h o u s e  C om m ission  
C o. v. D u lu th  S tr e e t  R . C o ., 273 U. S. 625, 47 S. Ct. 489, f l  
L. Ed. 807 (1927); P a cific  T e le p h o n e  <& T e le g r a p h  C o . v. 
K u y k en d a ll , s u p r a ; P r e n t is s  v. A tla n tic  C o a s t  L in e  Co.,, 
s u p r a ; U n ited  S ta te s  v. S in g  T u ck , 194 U. S. 161, 24 S. Ct. 
621, 48 L. Ed. 917 (1904).

In L a n e  v. W ils o n , su p ra , in answering an objection that 
remedies in the courts of Oklahoma should have been ex­
hausted before the immediate action could be maintained in 
the Federal Court, the Court said at page 274:

“ Normally, the state legislative process, some­
times exercised through administrative powers con­
ferred in state courts, must be completed before re­
sort to the federal courts can be had * * *■ But the 
state procedure open for one in the plaintiff’s situa­
tion (Sec. 5654) has all the indicia of a conventional 
judicial proceeding and does not confer upon the 
Oklahoma courts any of the discretionary or initia­

tory  functions that are characteristic of administra­
tive agencies * * *. Barring only exceptional circum­
stances, * * * or explicit statutory requirements, * * * 
resort to a federal court may be had without exhaust­
ing the judicial remedies of state court. ’ ’ 1

The Oklahoma Statute (26 Okla Stat. Sec. 74) under 
consideration provided a remedy for failure to registei a

1 Compare Trudeau v. Barnes, 65 F. (2d) 563 (C. C. A. 5th, 
1933). This was an appeal from a judgment in the court below 
dismissing a petition to recover damages_ for deprivation of the right 
to register as a voter in the state of Louisiana. The petition attempted 
to allege two inconsistent causes of action. In one petitioner con­
tested the arbitrary refusal of the registrar to register him on the 
ground that such action was contrary to the Constitutian and laws 
of Louisiana. The other was based on the ground that the “ under­
standing clause” of the Louisiana Constitution was violative of the 
Fourteenth and Fifteenth Amendments. This Court stated as to the 
first cause of action that the petition failed to allege facts sufficient to 
show that the petitioner was entitled to register. As to the other

Continued on page 9.



9

qualified voter similar to the constitutional provision in 
Louisiana discussed, su p ra . The Oklahoma statute pro­
vided in part “ and provided further, that wherever any 
elector is refused registration by any registration officer 
such action may be reviewed by the district court of the 
county by the aggrieved elector by his filing within ten days 
a petition with the Clerk of said Court whereupon summons 
shall be issued to said registrar requiring him to answer 
within ten days, and the district court shall be an expedi­
tious hearing and from his judgment an appeal will lie at 
the instance of either party to the Supreme Court of the 
State as in civil cases. * * * ”

II

Appellee’s Refusal to Register Appellant Solely
Because of His Race or Color Violated the Consti­

tution and Laws of the United States.

A. The Right to Vote Is Secured by the Fifteenth 
Amendment Against Restrictions Based on 
Race or Color.

The State of Louisiana makes registration a prerequi­
site to the right to qualify as an elector and vote in any
Continued from page 8.

cause of action, this Court found that the understanding clause vio­
lated neither the Fourteenth nor the Fifteenth Amendments since it 
applied equally to all voters and was not based on race or color. This 
was all that was necessary for this Court’s decision, but the opinion 
goes further to consider the provisions of the Louisiana Constitution, 
Article VIII, Section 5, supra, and said that it was necessary for the 
remedy afforded under the state constitution to be exhausted before 
the right to sue for damages in a federal court could accrue. Since 
the latter statement was not essential to the Court’s holding it cannot 
be considered persuasive or determinative. At any rate, it is incon­
sistent with Supreme Court cases discussed above which have con­
sistently held that where the remedy afforded is judicial in nature 
it need not be exhausted before resort can be had to the federal 
court. If Trudeau v. Barnes is contrary therewith, it cannot stand. 
This seems an inescapable conclusion in view of the opinion of the 
Supreme Court in Lane v. Wilson, supra, where the remedy provided 
was almost identical to that here and much more adequate.



1 0

election held within the State. Section 1, Aiticle VIII, 
Louisiana Constitution. This requirement by the very 
terms of Article 1, Section II and the Seventeenth Amend­
ment to the United States Constitution is incorporated 
therein and becomes a prerequisite for voting in any elec­
tion in the State held to choose Louisiana’s Congressional 
and Senatorial representatives/

Precedents of the United States Supreme Court have 
firmly fixed the rule that all regulations which are designed 
to prevent persons from qualifying to vote solely on the 
basis of race or color cannot stand in the face of the expiess 
terms of the Fifteenth Amendment. L a n e  v. W ils o n , su p r a ;  
M y e r s  v. A n d er so n , 238 U. S. 368, 35 S. Ct. 932, 59 L. Ed. 
1349 (1915); G uinn  v. U n ited  S ta te s , su p ra . This consti­
tutional guaranty still leaves the states free to enact rea­
sonable regulations concerning suffrage and to demand that 
its electors meet reasonable requirements and standards as 
long as such regulations, requirements and standards are 
not based on considerations of race or color. U n ited  S ta tes  
v. R e e s e , 92 U. S. 214, 23 L. Ed. 563 (1876); L a n e  v. W ils o n ,  
s u p r a ; G uinn  v. U n ited  S ta te s , s u p r a ; S m ith  v. A llw r ig h t ,  
321 U.’ S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1943). See anno­
tation on effect of the Fifteenth Amendment in 23 L. Ed. 563.

Despite the wide authority and discretion which a state 
may validly exercise in regulating the election process, the 
right to vote is considered as a right grounded in the Fed­
eral Constitution. U n ited  S ta te s  v. C la ss ic , 313 U. S. 299, 
61 S. Ct. 1031, 85 L. Ed. 1368 (1941); E x  p a r te  Y a rb ro u g h ,  
110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274 (1884); W ile y  v. 
S in k ler , 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 84 (1899); 
U n ited  S ta te s  v. M o s e ly , 238 U. S. 383, 35 S. Ct. 904, 59 L. 
Ed 1355 (1915). But cf. U n ited  S ta te s  v. R e e s e ,  su p ra ; 2

2 See infra a detailed discussion of this question.



11

B r eed lo v e  v. B u ttle s , 302 U. S. 277, 58 S. Ct. 205, 82 L. Ed. 
252 (1937) and annotation in 23 L. Ed. 563, su p ra .

It is now clearly settled that the provisions of the F if­
teenth Amendment may effectively reach each and every 
stage of the electoral process. Wherever in that process, 
restrictions of race and color are erected, such restrictions 
violate the Fifteenth Amendment. M y e r s  v. A n d er so n ,  
su p ra ; G uinn  v. U n ited  S ta te s , s u p r a ; L a n e  v. W ils o n ,  
su p ra ; U n ited  S ta te s  v. C la ssic , s u p r a ; S m ith  v. A llw r ig h t,  
supra . Refusal to permit one to register, therefore, solely 
on the basis of race and color is clearly within the prohibi­
tions of the Fifteenth Amendment and has been so held. 
L a n e  v. W ils o n , s u p r a ; M y e r s  v. A n d e r s o n , s u p r a ; G uinn  
v. U n ited  S ta tes , su p ra .

B. The Right of Qualified Electors of the Several 
States to Choose Members of Congress Is Se­
cured and Protected by Article I, Section 2 and 
by the Seventeenth Amendment of the United 
States Constitution.

Section 2 of Article I of the Constitution of the United 
States provides that members of House of Representatives 
shall be chosen every second year by the people of the 
several states and that the electors in each state shall have 
the qualifications requisite for electors of the most numer­
ous branch of the State Legislature.

The Seventeenth Amendment of the United States Con­
stitution provides that the United States Senate shall con­
sist of two Senators from each state chosen by electors in 
each state with the qualifications requisite for electors of 
the most numerous branch of the state legislature.

The right of electors of the several states to choose 
their representatives is a right secured and guaranteed by



12

the Federal Constitution to those citizens of the several 
states entitled to exercise that power. Since these constitu­
tional provisions are without qualifying limitations, the 
rights therein guaranteed run against individual as well as 
state action. E x  p a r te  Y a rb ro u g h , s u p r a ; U n ited  S ta te s  v. 
C la ssic , su p ra .

This Court may take judicial notice of the fact that in 
1944, elections were held throughout the United States, in­
cluding Louisiana, for the election of members of the House 
of Representatives and that simultaneously therewith an 
election Avas held in Louisiana for the choice of one of its 
Senatorial representatives. Registration is a prerequisite 
for participation in such elections in the State of Louisiana 
and is therefore an integral part of the election process.

C. The Policy of Requiring Negro Applicants for 
Registration to Submit to Tests Not Required 
of Other Applicants Violates the Fourteenth 
Amendment.

The appellee in the present proceeding was a state ad­
ministrative officer exercising authority in connection with 
functions of the State of Louisiana (Louisiana Constitu­
tion, 1921, Section 1, 17, 18 of Article V III). The acts of 
appellee were committed in the course of the performance 
of his official duty of registering qualified electors within St. 
John the Baptist Parish, pursuant to the Constitution and 
laws of the state.

Appellee contends that since no allegations Avere made 
that any state laAv, statute or Constitution operated in a 
discriminatory manner and since appellee’s acts were viola­
tive of the Constitution and laws of the State, that there 
was no showing of state action; hence this action is not 
AVithin the reach of Federal poAver.



13

The pertinent provision of the Fourteenth Amendment 
which has been held to forbid discrimination with respect 
to the exercise of the franchise is that clause commonly 
called the equal protection clause which provides that: “ No 
state shall deny # * * to any person within its jurisdiction 
the equal protection of the laws.”  N ix o n  v. H ern d o n , su p r a ;  
N ixon  v. C on d on , su p ra . This provision is clearly violated 
where a law however fair on its face is administered in a 
discriminatory manner. T ick  W o  v. H o p k in s , 118 U. S. 356, 
6 S. Ct. 1064, 30 L. Ed. 220 (1886). Although this Amend­
ment reaches state action only, state action within the mean­
ing of its provisions is action of any agent who is a reposi­
tory of state authority. Said the Court in E x  P a r te  V irg in ia , 
100 U. S. 339, 346, 347, 25 L. Ed. 676 679 (1880):

“ We have said the prohibitions of the Fourteenth 
Amendment are addressed to the States. * * * They 
have reference to actions of the political body denom­
inated a State, by whatever instruments or in what­
ever modes that action may be taken. A State acts 
by its legislative, its executive or its judicial authori­
ties. It can act in no other way. The constitutional 
provision, therefore, must mean that no agency of 
the State or of the officers or agents by whom its 
powers are exerted, shall deny to any person within 
its jurisdiction the equal protection of the laws. 
Whoever, by virtue of public position under a State 
government, deprives another of property, life, or 
liberty, without due process of law, or denies or takes 
away the equal protection of the lawTs, violates the 
constitutional inhibition; and as he acts in the name 
and for the State, and is clothed with the State’s 
power, his act is that of the State. This must be so, 
or the constitutional prohibition has no meaning. 
Then the State has clothed one of its agents with 
power to annul or to evade it.”

In H o m e T e le p h o n e  & T e le g r a p h  C o m p a n y  v. C ity  o f  
L o s  A n g e le s , 227 U. S. 278, 287, 33 S. Ct. 312, 57 L. Ed. 510,



14

515 (1913), the Court s p e a k i n g  through Chief Justice 
W h i t e  s a i d :

“ * * * the theory of the (14th) Amendment is 
that where an officer or other representative of a 
state, in the exercise of the authority with which he 
is clothed, misuses the power possessed to do a 
wrong forbidden by the Amendment, inquiry con­
cerning whether the state has authorized the wrong 
is irrelevant, and the Federal judicial power is com­
petent to afford redress for the wrong by dealing 
with the officer and the result of his exertion of 
power * * *.”

In Io w a -D e s  M o in es  N a tio n a l B a n k  v. B e n n e tt , 284 U. S. 
239, 246, 52 S. Ct. 133, 76 L. Ed. 265, 272 (1931), the United 
States Supreme Court said:

“ When a state official, acting under color of state 
authority, invades, in the course of his duties, a 
private right secured by the federal Constitution, 
that right is violated, even if the state officer not only 
exceeded his authority but disregarded special com­
mands of the state law.”

Recently in U n ited  S ta te s  v. C la ss ic , su p ra , the Court 
said:

“ Misuse of power, possessed by virtue of State 
law and made possible only because the wrongdoer is 
clothed with the authority of State Law, is action 
taken ‘ under color o f ’ State Law.”

The instant case is similar in context to the situation 
presented in the C la ss ic  case, and in S m ith  v. A llw rig lit. 
The rationale of the decision in the C la ss ic  case applies to 
the instant proceeding since there can be no doubt that 
appellee was an officer of the state. He is commissioned by 
the Governor, receives one-half of his salary from the state 
and one-half from the parish in which he serves and is sub­



15

ject to removal by a majority vote of the Board of Regis­
tration (Constitution of Louisiana, Section 18, Article 
VIII).

It is alleged that appellee was pursuing a policy, custom 
or usage of subjecting qualified Negro electors to tests not 
required of white applicants, nor by the laws and Constitu­
tion of the State in determining the qualifications of an 
elector. Appellee further was pursuing a policy, custom or 
usage of denying to Negro qualified applicants the right to 
register while at the same time registering white electors 
with less qualifications than those possessed by colored ap­
plicants (R. 18-19). This is clearly a denial of equal pro­
tection of the laws within the meaning of the Fourteenth 
Amendment. N ix o n  v. H e rn d o n , su p ra , N ix o n  v. C on d on , 
supra , U n ited  S ta te s  v. C la ssic , su p ra . See also S n o w d en  
v. H u g h es , 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1944), 
Y ick  W o  v. H o p k in s , su p ra . Whether the acts were in con­
formity with or in violation of state law is no longer the 
controlling issue in determining what constitutes state ac­
tion. Even though the action complained of is contrary to 
state law, if the power which is misused is possessed by 
virtue of state law and state authority, the action is under 
color of state law within the meaning of the Fourteenth 
Amendment.

Ill

Appellant May Properly Maintain This Suit as a 
Class Action Under Rule 23 (a) of the Federal 

Rules of Civil Procedure.

Under Rule 23 (a) of the Federal Rules of Civil Pro­
cedure one or more persons adequately representative of 
all may bring an action on behalf of all members of a class, 
where the persons constituting the class are sufficiently



16

numerous to make it impracticable to bring them all before 
the court, and where the character of the right under litiga­
tion is “ several, and a common relief is sought” . Appel­
lant instituted the present proceeding in the Court below 
on behalf of himself and as a representative of a class, 
composed of Negro citizens of the United States, residents 
and citizens of the State of Louisiana, similarly situated, 
who are qualified to register as voters in St. John the Bap­
tist Parish of the aforesaid state, under the Constitution 
and laws of the United States and of the State of Louisiana 
(R. 15-16). The question herein presented—whether a 
registrar may maintain a policy, custom or usage of deny­
ing to members of this class equal protection of the laws by 
requiring them because of their race and color to submit to 
tests not required of white electors and of refusing to 
register them on grounds not required by the Constitution 
and laws of Louisiana—involve rights of common and gen­
eral interest to all members of the class represented by 
appellant.

The class suit evolved early in English equity3 as a 
device to escape the difficulties inherent in compulsory 
joinder and to permit a single litigation of group injuries 
in cases of common interest.4 With Federal Rule 23 (a)

3 See on whole development 2 Moore, Federal Practice (1938), 
2224 et seq.

4 Common interest has been variously defined. See Wheaton, 
Representative Suits Involving Numerous Litigants (1934) 19 Loin 
I O 399 407, 433. (Composite definitions of common interest.) 
In addition to the difficulty in defining common interest, the courts 
have been in disagreement as to whether the common interest need 
be only in question of law. Harworden v. Youghengheny & L. 
Coal Co., I l l  Wis. 545, 87 N. W . 472 (1902) or in both questions 
of law and fact, Chew v. First Presbyterian Church of Wilmington 
237 Fed 219 (D  C. Del. 1916). The codifiers of Rule 23 (a) must 
have been aware of these conflicts and difficulties however for it 
expressly provided that the common interest may be either in law or
fact.



17

this age-old doctrine was reformulated to suit the needs of 
modern practice.5 * * 8

Under this provision it is not necessary that all mem­
bers of the class join in the suit. It is merely necessary 
that one or more persons adequately representative of the 
entire class institute an action. The other members of the 
class may join as they see fit.0 The present litigation is 
that type of class action labeled “ spurious” , In d ep en d en ce  
S h a res C o rp . e t  al. v. D e c k e r t , et a l ,  108 F. (2d) 51 (C. C. A. 
3d, 1939); W e e k s  v. B a r eco  O il C o., 125 F. (2d) 84 (C. C. A. 
7th, 1941); see H u n te r  v. S o u th ern  In d e m n ity  U n d er­
w riters , 47 F. Supp. 242 (E. D. Ky., 1942); N a tl. H a ir ­
d ressers  & C o s m e to lo g is ts  A ssn . In c . v. P h il. C o ., 41 F. 
Supp. 701 (D. C. Del., 1941); O p p en h e im er , e t  al. v. T . J . 
Y ou n g  & C o . In c ., 144 F. (2d) 387 (C. C. A. 2d, 1944); see 
also Moore op. cit. su p ra  note 3, and requires nothing more 
than a group with a common interest, seeking common re­
lief, to constitute the class.

The instant proceeding cannot be viewed merely as the 
discriminatory practices of an individual administrative 
officer against an individual seeking to qualify for registra­
tion but must be viewed in context as part of a scheme or 
device to effectively disfranchise all qualified Negroes. 
Although the Fifteenth Amendment was specifically de­
signed to prevent barriers to the franchise being imposed 
based on race or color, it has been necessary for the Su­
preme Court to invalidate hurdle after hurdle erected 
to circumvent this constitutional guaranty and deprive 
Negroes of the right to vote. The last of these barriers, 
the right to participate in a primary election, was leveled 
in S m ith  v. A llw r ig h t , su p ra . Under the authority of that

5 Every state today has a statute permitting class actions. The pro­
vision common to all these statutes is the “ common or general inter­
est” of many persons. See Wheaton, op. cit. supra. Note 4.

8 See Moore, op. cit. supra. Note 3.



1 8

decision, Negro citizens of the United States and residents 
of Louisiana possessing the necessary qualifications of 
electors attempted to register as voters.

In refusing to register appellant and in subjecting him 
to tests not required by the state constitution and to which 
white applicants were not subjected, appellee was pursuing 
a policy, custom or usage of denying registration to Negro 
applicants. All Negroes similarly situated to appellant 
have a common interest in the questions herein presented 
because of appellee’s wrongful acts, and in having these 
questions clarified and determined as they affect the exer­
cise of a fundamental right secured to them by the Federal 
Constitution. The courts have never based their decision 
on the propriety of a class suit on whether the persons 
similarly situated actually formed a class in esse before 
the injury complained of occurred, but only on whether the 
proceeding under inquiry met the statutory requirements. 
See Y o r k  v. G u a ra n ty  T ru s t  C o. o f  N ew  Y o r k , 143 F. (2d) 
503 (C. C. A. 2nd, 1944); K e a v y  v. A n d e r s o n , 2 F. R. D. 19 
(R. I., 1941) ; A tw o o d  v. N a tl. B a n k  o f  L im a , 115 F. (2d) 
861 (C. C. A. 6th, 1940); F a r m e r s  C o .-O p . O il C o. v. S o co n y  
V a cu u m  O il C o . In c ., 133 F. (2d) 101 (C. C. A. 8th, 1942); 
C la rk e , e t  al. v. G old m an , 124 F. (2d) 491 (C. C. A. 2nd, 
1941) Where a group of people are similarly injured by 
common practices of another, it is recognized that scope of 
the injury creates the required class.7 Although registra- 7

7 Harworden v. Youghenglieny, 111 Wis. 547, 87 N. W . 472 
(1901) ; Trade Press Pub. Co. v. Milwaukee Type Union, 180 Wis. 
499, 193 N..W . 507 (1923) class action permitted to enjoin a wrong­
ful conspiracy; Weeks v. Bareco Oil Co., supra, class action permitted 
to recover damages caused by unlawful conspiracy; Cloyes v. Middle- 
bury Electric Co., 80 Vt. 109, 66 A. 1039 (1907) class suit permitted 
to enjoin a nuisance; Natl. Hairdressers & Cosmetologists Assn. Inv. 
v. Phil. Co., supra, class suit permitted to declare patent invalid and 
to enjoin defendants from asserting that plaintiff's infringed their 
patent rights; Skinner v. Mitchell, 108 Kan. 861, 197 P. 569 (1921); 
Kvello v. Lisbon, 38 N. D. 71, 164 N. W . 305 (1917), class action 
permitted to enjoin an invalid tax.



19

tion concededly presents individual questions, these inde­
pendent issues have not been considered relevant in deter­
mining whether a class suit could be instituted so long as 
apart from the independent questions which had to be 
settled, there was presented some fundamental question of 
common interest. See Y o r k  v. G u a ra n ty  T r u s t  C o ., s u p r a ;  
In d ep en d en ce  S h a res  C o rp . v. D e c k e r t , su p r a ;  O ppen h  e im e r , 
et al. v. T . J. Y o u n g  C o. In c ., s u p r a ; A ls to n  v. S ch o o l B o a rd , 
112 F. (2d) 992 (C. C. A. 4tli, 1940); M cD a n ie l v. B o a r d  o f  
P u blic In s tru c tio n , 39 F. Supp. 638 (N. D. Fla., 1941); D a v is  
v. C ook , 55 F. Supp. 1004 (N. D. Ga., 1944).

As the Court said in W e e k s  v. B a r e c o  O il C o ., s u p r a :

“ The history of class suit litigation, its history 
over a century of growth, the origin and status of 
present Rule 23 of the Federal Rules of Civil Pro­
cedure, are all persuasive of the necessity of a liberal 
construction of this Rule 23, and its application to 
this class of litigation. It should be construed to 
permit a class suit where several persons jointly act 
to the injury of many persons so numerous that their 
voluntarily, unanimously joining in a suit is con­
cededly improbable and impracticable. Under such 
circumstances injured parties who are so mindful 
may present the grievance to Court on behalf of all, 
and the remaining members of the class may join as 
they see fit.”

IV

Appellant May Properly Seek a Declaratory Judgment.

Judicial Code, section 274d (28 U. S. C. 400) provides:

“ In cases of actual controversy (except with re­
spect to Federal taxes) the courts of the United 
States shall have power upon petition, declaration, 
complaint, or other appropriate pleadings to declare 
lights and other legal relations of any interested 
party petitioning for such declaration, whether or



2 0

not further relief is or could be prayed and such 
declaration shall have the force and effect of a final 
judgment or decree and be revieAvable as such.”

It is well established that a prayer for relief by declara­
tory judgment may be joined with prayers for consequen­
tial relief. Anderson on Declaratory Judgments (1940 at 
p. 253); Borchard on Declaratory Judgments (2d ed. 1941) 
at 432; 18 Am. Jur. (Declaratory Judgments) sec. 62, p. 
332; see also: Buie 18, Federal Buies of Civil Procedure.

The leading case on declaratory judgments is the case 
of A e tn a  L i f e  In su ra n ce  C o m p a n y  v. H a w o rth , 300 U. S. 
227, 57 S. Ct. 461, 81 L. Ed. 617 (1937) where the Court 
speaking through Mr. Chief Justice H u g h e s  stated:

“ The Declaratory Judgment Act of 1934, in its 
limitation to ‘ cases of actual controversy’ manifestly 
has regard to the constitutional provision and is op­
erative only in respect to controversies which are 
such in the constitutional sense. The word ‘ actual’ 
is one of emphasis rather than of definition. Thus 
the operation of the Declaratory Judgment Act is 
procedural only. In providing remedies and defining 
procedure in relation to cases and controversies in 
the constitutional sense the Congress is acting within 
its delegated power over the jurisdiction of the fed­
eral courts which the Congress is authorized to estab­
lish. * * * Exercising this control of practice and 
procedure the Congress is not confined to traditional 
remedies. The judiciary clause of the Constitution 
‘ did not crystallize into changeless form the proce­
dure of 1789 as the only possible means for present­
ing a case or controversy otherwise cognizable by 
the federal courts. N a sh v ille , C. & S t. L . B y . C o . v. 
W a lla ce , 288 U. S. 249, 264. In dealing with methods 
within its sphere of remedial action the Congress 
may create and improve as well as abolish or restrict. 
The Declaratory Judgment Act must be deemed to 
fall within this ambit of congressional power, so far



2 1

as it authorizes relief which is consonant with the 
exercise of the judicial function in the determination 
of controversies to which under the Constitution the 
judicial power extends.”

The decision in the A e tn a  case has been uniformly followed. 
Iu one of the latest Circuit Court of Appeals decisions 
T rice  P ro d u c ts  C o r p o ra tio n  v. A n d e r s o n  C o ., 147 F. (2d) 
721 (C. C. A. 7th, 1945), following this case in upholding 
the right to a declaratory judgment in a cross-complaint in 
a patent case it was stated:

“ Equity abhors multiplicity of actions and when 
it takes jurisdiction for one purpose should do so for 
all germane purposes and dispose of all issues neces­
sary to a complete final adjudication. We agree, 
therefore, with the reasoning of the decision cited 
and with that of C o v e r  v. S ch w a rts , 2 Cir. 133 F, 
(2d) 54.”

The Amended Complaint herein alleges that registra­
tion is a prerequisite to voting in any election in Louisiana; 
that appellee is maintaining a policy, custom and usage of 
requiring Negroes to submit to tests not required of white 
electors and of refusing to register qualified Negro electors 
while at the same time registering white electors with less 
qualifications on account of race and color (R. 6, 18); that 
during the regular registration period while appellee was 
conducting registration, appellant presented himself at the 
regular place and requested to be registered; that appel­
lant was ready, able and willing to comply with all lawful 
requirements for registration; that instead of giving appel­
lant a registration blank he asked him certain questions 
and refused to register appellant (R. 7-22); that during 
such registration period white persons were not subjected 
to any such test but were registered forthwith and that 
appellee acting pursuant to policy, custom and usage set



22

out above denied appellant’s application and wrongfully 
refused to register him solely on a ccou n t o f  h is ra ce  o r  
co lo r , and in doing so followed the general policy, custom 
and usage of appellee and his predecessor (R. 8, 20). It is 
clear that appellant would be entitled to a declaratory 
judgment declaring unconstitutional a statute which would 
provide that Negro applicants for registration be required 
to submit to tests not required of white electors or that 
white applicants for registration could have less qualifica­
tions than is required of Negroes. The only allegations 
necessary to support relief in such a case would be the 
statute, qualifications of appellant and an allegation that he 
was refused registration because of the statute. In the in­
stant case we do not have such a statute but have a policy, 
custom and usage of a state officer equivalent thereto.

The case of C ro m w ell v. H illsb o ro u g h  T . P ., Somerset 
County, N. J., 149 F. (2d) 617 (C. C. A. 3d, 1945) affmd. by
U. S. Supreme Ct., Oct. Term 1945, decided Jan. 29, 1946, 
affirmed the decision of the District Court in issuing a 
declaratory judgment against the policy of state officers in 
assessing appellant’s property higher than like property as 
being in violation of the Fourteenth Amendment.

In the line of cases on the question of the equalization 
of teachers’ salaries it has been uniformly held that Negro 
teachers as a class have a right to a declaratory judgment 
declaring unconstitutional the practice, custom and usage 
of paying Negro teachers less salary than paid to white 
teachers. A ls o n  v. S ch o o l B o a rd , s u p r a ; M cD a n ie l'v. B oa rd  
o f  P u b lic  In s tru c t io n , s u p r a ; D a v is  v. C o o k , su p ra .

The allegations in the complaint herein set out a claim 
for relief by way of damages and an injunction. There­
fore, the same allegations are sufficient to set forth an ac­
tual controversy within the meaning of Declaratory Judg­
ment Act.



23

V

Action of Appellee in Refusing to Register Appel­
lant Makes Him Liable to the Appellant for Dam­
ages Under the Provisions of Sections 31 and 43 

of Title 8 of the United States Code.

Section 31 of Title 8 provides

“ Race, color, or previous condition not to affect 
right to vote.

“ All citizens of the United States who are other­
wise qualified by law to vote at any election by the 
people in any State, Territory, district, county, city, 
parish, township, school district, municipality, or 
other territorial subdivision, shall be entitled and 
allowed to vote at all such elections, without distinc­
tion of race, color, or previous condition of servitude; 
any constitution, law, custom, usage, or regulation of 
any State or Territory, or by or under its authority, 
to the contrary notwithstanding.”

and Section 43 of Title 8 provides:

“ Civil action for deprivation of rights.
“ Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 
or Territory, subjects or causes to be subjected, any 
citizen of the United States or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Con­
stitution and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other proper 
proceeding for redress. R. S. sec. 1979.”

H. R. 1293, 41st Congress, Second Session, which was 
later amended in the Senate and which includes Section 31 
and 43 of Title 8, was originally entitled, “ A  bill to enforce 
the right of citizens of the United States to vote in the 
several States of this Union who have hitherto been denied 
that right on account of race, color or previous condition



24

of servitude. ’ ’ When the bill came to the Senate its title 
was amended and adopted to read, “ A bill to enforce the 
right of citizens of the United States to vote in the several 
States of this Union and for other purposes.”

The language of Section 31 is so clear as to leave no 
doubt as to its purpose. Section 43 of Title 8 has been used 
repeatedly to enforce the right of citizens to vote. See 
M y e r s  v. A n d e r s o n , s u p r a ; L a n e  v. W ils o n , su pra .

In the recent decision of S m ith  v. A llw r ig h t , a suit for 
damages under these sections was sustained by the United 
States Supreme Court. The facts in the instant case are 
basically similar to those in the S m ith  v. A llw r ig h t, supra .

Since registration is a prerequisite to voting, the refusal 
of appellee to register appellant and those similaily situ­
ated solely on account of race and color gives rise to an 
action for damages and an injunction under Section 31 and 
43 of Title 8.

Conclusion

This litigation presents questions of grave importance 
not only to appellant but to all those on whose behalf this 
suit has been instituted. Over many years the courts have 
been successful in giving life and substance to those con­
stitutional provisions expressly designed to secure for 
Negro citizens of the United States a political voice in our 
democratic processes. Now there is before this Couit a 
discriminatory practice which must he struck down if these 
provisions are not to be miscarried. It is respectfully sub­
mitted, therefore, that the decision of the lower Court be 
reversed and an order be entered more consistent with the 
line of decision which has prevailed in the development of



25

American jurisprudence that restrictions of race or color 
cannot live in the face of our constitutional guarantees.

Kespectfully submitted,

A. P. T u r e a u d ,

J o s e p h  T h o r n t o n ,

612 Iberville Street,
New Orleans, La.

W i l l i a m  H .  H a s t i e ,

615 F Street, N. W., 
Washington, D. C.

T h u r g o o d  M a r s h a l l ,

20 West 40th Street,
New York, N. Y.

A t to r n e y s  f o r  A p p e lla n t.

R o b e r t  L. C a r t e r ,

New York, N. Y.
O f C ou n sel.

(.Appendices Follow.]





27

APPENDIX A

Constitution of the United States— 1787

ARTICLE I

Section 2.— The House of Representatives shall be com­
posed of Members chosen every second Year by the People 
of the several States, and the Electors in each State shall 
have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature.

A m e n d m e n t  1 4

Section 1.—All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection 
of the laws.

A m e n d m e n t  1 5

Section 1.— The right of citizens of the United States to 
vote shall not be denied or abridged by the United States 
or by any State on account of race, color, or previous condi­
tion of servitude.

Section 2. The Congress shall have power to enforce 
this article by appropriate legislation.

A m e n d m e n t  1 7

The Senate of the United States shall be composed of 
two Senators from each State, elected by the people thereof, 
for six years; and each Senator shall have one vote. The



28

electors in each State shall have the qualifications requisite 
for electors of the most numerous branch of the State legis­
latures.

United States Code

Title 8— Section 31—Race, color, or previous condition 
not to affect right to vote.

All citizens of the United States who are otherwise quali­
fied by law to vote at any election by the people in any 
State, Territory, district, county, city, parish, township, 
school district, municipality, or other territorial sub-divi­
sion, shall be entitled and allowed to vote at all such elec­
tions, without distinction of race, color, or previous condi­
tion of servitude; any constitution, law, custom, usage, oi 
regulation of any State or Territory, or by or under its au­
thority, to the contrary notwithstanding. E. S. Sec. 2004.

Section 43— Civil action, for deprivation of rights.

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, sub­
jects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to 
the deprivation of any rights, privileges, or immunities se­
cured by the Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity or other 
proper proceeding for redress. R. S. Sec. 1979.

Title 28— Section-41— Subdivision 11— Suits for injuries 
on account of acts done under laws of United States. 
Eleventh.

Of all suits brought by any person to recover damages 
for any injury to his person or property on account of any 
act done by him, under any law of the United States, for 
the protection or collection of any of the revenues thereof,



29

or to enforce the right of citizens of the United States to 
vote in the several States. R. S. Sec. 629.

Subdivision 14— Suits to redress deprivation of civil 
rights.—Fourteenth.

Of all suits at law or in equity authorized by law to he 
brought by any person to redress the deprivation, under 
color of any law, statute, ordinance, regulation, custom, or 
usage, of any State, of any right, privilege, or immunity, 
secured by the Constitution of the United States, or of any 
right secured by any law of the United States providing for 
equal rights of citizens of the United States, or of all per­
sons within the jurisdiction of the United States. R. S. Sec 
563.



30

APPENDIX B 

Constitution of Louisiana

ARTICLE VIII 

Section 1.— Qualifications of electors
After January 1, 1922, the right to vote in Louisiana 

shall not exist except under the provisions of this Consti­
tution.

Every citizen of this State and of the United States, 
native born or naturalized, not less than twenty-one yeais 
of age, and possessing the following qualifications, shall be 
an elector, and shall be entitled to vote at any election in 
the State by the people:

(a) Residence—He shall have been an actual bona fide 
resident of the State for two years, of the parish one yeai, 
of the municipality in municipal elections four months, and 
of the precinct, in which he offers to vote, three months 
next preceding the election; provided, that removal from 
one precinct to another in the same parish shall not opeiate 
to deprive any person of the right to vote in the precinct 
from which he has removed until three months after such 
removal; provided, that removal from one parish to an­
other shall not deprive any person of the right to vote in 
the parish from which he has removed for district officers 
to be elected in a district which includes the parish to which 
he has removed, or for State officers, whether the parish 
be in the same district or not, until he shall have acquired 
the right to vote for such officers in the parish to which he 
has removed.

(b) Registration—-He shall be, at the time he offers to 
vote, legally enrolled as a registered voter on his own per­
sonal application, in accordance with the provisions of this 
Constitution, and the laws enacted thereunder.



31

(c) Character and literacy—He shall be of good charac­
ter and shall understand the duties and obligations of 
citizenship under a republican form of government. He 
shall be able to read and write, and shall demonstrate his 
ability to do so when he applies for registration by making, 
under oath, administered by the registration officer or his 
deputy, written application therefor, in the English lan­
guage, or his mother tongue, which application shall con­
tain the essential facts necessary to show that he is entitled 
to register and vote, and shall be entirely written, dated, 
and signed by him, except that he may date, fill out, and 
sign the blank application for registration hereinafter pro­
vided for, and, in either case, in the presence of the regis­
tration officer or his deputy, without assistance or sugges­
tion from any person or any memorandum whatever, other 
than the form of application hereinafter set forth; pro­
vided, however, that, if the applicant be unable to write his 
application in the Ehglish language, he shall have the right, 
if he so demands, to write the same in his mother tongue 
from the dictation of an interpreter; and, if the applicant 
is unable to write his application by reason of physical dis­
ability, the same shall be written at his dictation by the 
registration officer or his deputy, upon his oath of such 
disability.

Until and unless otherwise provided by law, the appli­
cation for registration above provided for, shall be a copy 
of the following form, with the proper names, dates and 
numbers substituted for the blanks appearing therein, to 
wit:

I am a citizen of the State of Louisiana. My name is
Mr--------------------- , Mrs-------------------- , Miss________________
I was born in the State (or country) of__________________,
Parish, (or county) of______________ , on the ________ day
o f ---------------------- , in the year_________ I am now_______
years,--------------months an d_________ days of age. I have



32

resided in this State since_________  in this parish since
_________ , and in precinct No------------, in Ward No---------- ,
since____________ , and I am not disfranchised by any pro­
vision of the Constitution of this State.

Said applicant shall also be able to read any clause in 
this Constitution, or the Constitution of the United States, 
and give a reasonable interpretation thereof.

(d) Understanding of Constitution—If he is not able to 
read or write, then he shall be entitled to register if he shall 
be a person of good character and reputation, attached to 
the principles of the Constitution of the United States and 
of the State of Louisiana, and shall be able to understand 
and give a reasonable interpretation of any section of either 
Constitution when read to him by the registrar, and he 
must be well disposed to the good order and happiness of 
the State of Louisiana and of the United States and must 
understand the duties and obligations of citizenship under 
a republican form of government.

(e) Identity to be established—He must in all cases be 
able to establish that he is the identical person whom he 
represents himself to be when applying for registration, 
and when presenting himself at the polls for the puipose 
of voting in any election or primary election.

Section 5.—Remedy for denial of registration.
Any person possessing the qualifications for voting pie- 

scribed by this Constitution, who may be denied registra­
tion, shall have the right to apply for relief to the district 
court having jurisdiction of civil causes for the parish in 
which he offers to register. Said court shall then try the 
cause, giving it preference over all other cases, before a juii 
of twelve, nine of whom must concur to render a verdict. 
This verdict shall be a final determination of the cause. The 
trial court may, however, grant one new trial by jury. In



33

no cases shall any appeal lie or any other court exercise the 
right of review * * * .

S e c t i o n  6 .— D i s q u a l i f i c a t i o n s .

The following persons shall not be permitted to register 
vote, or hold office or appointment of honor, trust, or profit 
in this State, to w it: Those who have been convicted of any 
crime which may be punishable by imprisonment in the peni­
tentiary, and not afterward pardoned with express restora­
tion of franchise; those who are inmates of any charitable 
institution, except the Soldiers’ Home; those actually con­
fined in any public prison; all interdicted persons, and all 
persons notoriously insane or idiotic, whether interdicted 
or not.

Section 17.— State-wide registration.

The Legislature shall provide for the registration of 
voters throughout the State.

Section 18.—Registrars of voters.

There shall be a registrar of voters for the parish of 
Orleans, who shall be appointed by the Governor, and one 
for each parish in the State, who shall be appointed by the 
police jury or other governing authority of such parish.

The Governor shall issue a commission to each registrar 
who shall thereupon make such bond, subscribe to such 
oath, and receive such compensation as the legislature may 
prescribe; provided, that the State and the parish shall 
each pay one-lialf of such compensation.

The Governor, Lieutenant-Governor, and speaker of the 
House of Representatives shall compose the board of regis­
tration and any two members of same shall have power to 
remove, at will, any registrar in this State.



34

The first registrar in each parish shall be appointed on 
or before December 15, 1921, and a new and complete regis­
tration shall be had under this Constitution in every palish 
beginning January 2, 1922.

Should a registrar be not appointed by December 15, 
1921, or any subsequent vacancy be not filled, within thirty 
days after its occurrence, by the above constituted au­
thority, a majority of the board of registration shall appoint 
and the Governor shall commission a registrar of voters in 
each parish which has none.

No registrar of voters shall be elected or appointed to 
any other office within twelve months after vacating that of 
registrar.

No other officer or person shall exercise any of the 
powers or duties of the registrar of voters after December 
15, 1921; provided, this shall not be construed to forbid the 
Legislature to authorize the appointment, by the registrar, 
of deputy registrars.

Louisiana General Statutes (Dart 1939)

A b t i c l e  2615.10. Qualifications for registration.

Every citizen of the United States and of this state, 
native born or naturalized, not less than twenty-one years 
of age and possessing the following qualifications, and who 
shall have complied with the provisions of this act, shall he 
eligible for registration as a voter.

1. He shall have been an actual bona fide resident of 
the state for two years, of the parish for one year, and of 
the municipality in municipal elections four months, and of 
the precinct in which he offers to register as a voter, three 
months next preceding any election.

2. He shall be of good character, and shall understand 
the duties and obligations of citizenship under a republican



form of government. Unless the applicant for registration 
qualifies under the provisions section 6 (2615.15) of this 
article, he shall be able to read and write, and shall demon­
strate his ability to do so when he applies for registration, 
by making, under oath administered by the registrar or his 
deputy, written application thereof in the English language, 
or in his mother tongue, which application shall contain the 
essential facts necessary to show that he is entitled to 
register, and shall be entirely written, dated and signed by 
him, except that he may date, fill out and sign the blank 
application for registration herein provided for, in the 
presence of the registrar or his deputy without assistance 
or suggestion from any person or any memorandum what­
ever, other than the form of application hereinafter set 
forth; provided, however, that if the applicant is unable to 
write his application in the English language, he shall have 
the right, if he so demands, to write the same in his mother 
tongue from the dictation of an interpreter.

If the applicant is unable to write his application by 
reason of physical disability, the same may be written at 
his dictation by the registrar or his deputy, upon the appli­
cant taking an oath before such officer of his disability, or 
of his inability to write same in the English language, or 
aforesaid. In case the applicant is able to sign his name, 
he shall be required so to do; if not, then, he shall sign 
same with his mark, authenticated by the registrar or 
deputy registrar, who shall then read such application to 
him, if necessary through an interpreter, and the applicant, 
whether signing individually or by a mark, shall make affi­
davit to the truth of the fact therein stated.

A r t ic l e  2615.11. Application—Form of.

The application for registration above provided for 
shall be a copy of the following form, with the proper names,



3G

dates, and numbers substituted for the blanks appearing 
therein, to w it:

“ I am a citizen of the United States and of the 
State of Louisiana. My name is Mr----------------- , Mrs.

_______} M iss___________ I was born in the state
(or country) of -----------------  Parish (or county) of
__________ , on the____day o f -----------------in the year

I am now _____... years, ------ months and
____days of age. I have resided in the state since

, in this Parish since --------- , and in Precinct
No. __________ , in Ward No. ______  of this Parish
continuously since ----------  I am not disfranchised
by any provisions of the Constitution of this state. 
The name of the householder at my present address
is _________________  My occupation i s --------------------
My color i s ___________ My sex i s ----------------  la m
not now registered as a voter in any other AVard or
Precinct of this state, except ------------ • My last
registration was in W ard-------------Precinct — --------- ,
Parish ___________ I am now affiliated with the
_____________ party.

Signature

Sworn to and subscribed before m e:

Deputy Registrar. ’ ’

Said blanks shall also be provided with an additional 
space in a form convenient for the notation thereon 
o f __________ :

1. Change of address of said applicant within the 
parish, as hereinafter provided in this act; and

2. Changes of name of the applicant as hereinafter pro­
vided; and

3. Remarks.



37

Article 2615.14. Applicants—Understanding of state and 
federal constitutions.

Applicants for registration shall also be able to read 
any clause in the constitution of this state or of the consti­
tution of the United States, and give a reasonable interpre­
tation thereof.

Article 2615.15. Applicants unable to read or write.

If the registrant is not able to read or write, then he 
shall be entitled to register if he shall be a person of good 
character and reputation, attached to the principles of the 
constitution of the United States and of the state of Louisi­
ana, and shall be able to undersand and give a reasonable 
interpretation of any section of either constitution when 
read to him by the registrar or his deputy, and he must be 
well disposed to the good order and happiness of the state 
of Louisiana and of the United States and must understand 
the duties and obligations of citizenship under a republi­
can form of government. In such case, the registrar or his 
deputy shall fill out at the dictation of the applicant, the 
facts set forth in the blank application, which, when com­
pleted, shall then be read to him, and the applicant shall 
sign his name, and if able so to do, otherwise shall sign his 
mark, attested by the registrar or his deputy and shall make 
affidavit to the truth of the facts therein set forth.

A r t ic l e  2615.16. Proof of i d e n t i t y .

The applicant must, in all cases, be able to establish that 
he is the identical person whom he represents himself to 
he when applying for registration, and if the registrar shall 
have good reason to believe that he is not the person whom 
he represents himself to be, he may require the applicant 
to produce two credible registered voters of his precinct to 
make oath to that effect.



38

A rticle 2615.19. Appearance in person required.—Place.
Every applicant for registration must appear person­

ally before the registrar or his deputy, at a designated place 
of registration, and comply with the provisions of this act, 
and it shall be unlawful for any applicant to be otherwise 
registered by the registrar, or to be allowed to register at 
any other place than herein permitted.

A rticle 2615.21. Persons ineligible for registration.

The following persons shall not be permitted to register, 
to w it: Those who have been convicted of any crime which 
may be punishable by imprisonment in the penitentiary, 
and not afterwards pardoned with the express restoration 
of the franchise; those who are inmates of any charitable 
institutions except the soldiers’ home; those actually con­
fined to any public prison; all interdicted persons, and all 
persons notoriously insane or idiotic, whether interdicted 
or not.

APPENDIX C 

26 Oklahoma Statutes

S e c t i o n  7 4 — Registration of electors— Time for cer­
tificate to certain voters—Review of 
refusal of registration— School district 
elections excepted.

It shall be the duty of the precinct registrar to register 
each qualified elector of his election precinct who makes 
application between the thirtieth day of April 1916, and the 
eleventh day of May 1916, and such person applying shall 
at the time he applies to register be a qualified elector in 
such precinct and he shall comply with the provisions of 
this act, and it shall be the duty of every qualified elector 
to register within such time; provided, if any electoi



39

should be absent from the county of his residence during 
such period of time, or is prevented by sickness or unavoid­
able misfortune from registering with the precinct regis­
trar within such time, be may register with such precinct 
registrar at any time after the tenth day of May, 1916, up 
to and including the thirtieth day of June, 1916, but the 
precinct registrar shall register no person under this pro­
vision unless he be satisfied that such person was absent 
from the county or was prevented from registering by sick­
ness or unavoidable misfortune, as hereinbefore provided, 
and provided that it shall be the mandatory duty of every 
precinct registrar to issue registration certificates to every 
qualified elector who voted at the general election held in 
this state on the first Tuesday after the first Monday in 
November, 1914, without the application of said elector for 
registration, and, to deliver such certificate to such elector 
if he is still a qualified elector in such precinct and the 
failure to so register such elector who voted in such elec­
tion held in November 1914, shall not preclude or prevent 
such elector from voting in any election in this state; and 
provided further, that wherever any elector is refused 
registration by any registration officer such action may be 
reviewed by the district court of the county by the aggrieved 
elector by bis filing within ten days a petition with the 
Clerk of said court, whereupon summons shall be issued 
to said registrar requiring him to answer within ten days, 
and the district court shall be a (give an) expeditious bear­
ing and from his judgment an appeal will lie at the instance 
of either party to the Supreme Court of the State as in civil 
cases; and provided further, that the provisions of this act 
shall not apply to any school district elections. Provided 
further, that each county election board in this state shall 
furnish to each precinct election board in the respective 
counties a list of the voters who voted at the election in 
November, 1914, and such list shall be conclusive evidence 
of the right of such person to vote.



'

.





L awyers P ress, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300



f





UNITED STATES CIRCUIT COURT OF APPEALS
FIFTH  CIRCUIT

No. 11,534

EDWARD HALL,

Appellant.

v e r s u s

T. J. NAGEL, Registrar of Voters, St. John the 

Baptist Parish, Louisiana
Appellee.

APPEAL FROM THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

U. S. CIRCUIT COURT OF APPEALS

FILED'
MAR 1 5  1946





SUBJECT INDEX

Page
Statement of C ase ............................................................  1
No Right of Action..........................................................  5
As to Administrative Review.........................................  7
Class S u it ..........................................................................  10
Color of Authority............................................................. 12
Declaratory Judgm ent....................................................  13

*
AUTHORITIES CITED

Sec. 5 Art. VIII Louisiana Constitution..................... 1,4,5
Aetna Casualty and Surety Company v.

Quarles, 92 Fed. (2d) 321..........................................  15
Alabama State Federation of Labor v.

McAdory, Adv. Ob. L., Ed. Yol. 89, p. 1270.............. 14
Arizona v. California, 283 U. S. 423.............................  6
Blackman v. Stone, 101 Fed. (2d) 500.............................  13
Brillhart v. Excess Ins. Co., 316 U. S. 491.................... 15
Corbett v. Printers & Publishers Corp., 127

Fed. (2d) 195..............................................................  14
Giles v. Harris, 189 U. S. 475..................................... 10,13
Great Lakes Dredge, etc., Co. v. Huffman,

319 U. S. 293-98............................................................  7
Gutterson v. Kansas City S. R. R. Co.,

140 Fed. (2d) 950......................................................... 13
Hansberry v. Lee, 312 U. S. 32.......................................  11
Keller v. Potomac Elec. Power Co., 261 U. S. 428.......  9
Maryland Cas. Co. v. Pacific Coal Co., 312 U. S. 270.. . 14
McCain v. Des Moines, 174 U. S. 168.............................  12
Myers v. Bethlehem Shipbuilding Co., 303 U. S. 41.......  7
Natural Gas Pipe Line Co. v. Slattery, 302 U. S. 300. . 8
Porter v. Investors Syndicate, 286 U. S. 461................ 8
Smith v. Allwright, 321 U. S. 649...............................  16
Trudean v. Barnes, 65 Fed. (2d) 563.......................... 9,10
West Publishing Co. v. McColgin, 41 Fed. Supp. 163. . 13



-

.



UNITED STATES CIRCUIT COURT OF APPEALS
FIFTH  CIRCUIT

No. 11,534

EDWARD HALL,
Appellant.

v e r s u s

T. J. NAGEL, Registrar of Voters, St. John the 
Baptist Parish, Louisiana

Appellee.

APPEAL FROM THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

BRIEF OF APPiELLEE 
STATEMENT OF THE CASE

Edward Hall, alleging that he sues for himself and all 
other negroes, brings this action under T. 28, Sec. 41, Sub­
division 14, U. S. Code, to redress the deprivation of rights, 
privileges and immunities secured by the Constitution of 
the United States, Article 1, Section 2 and 4, Amendment 
14,15 and 17, and of T. 18, Secs. 31 and 33, U. S. Code, R. 3.

He alleges that he brings suit in the form of a declara­
tory action to determine the question as to whether unrea­



2

sonable tests not required of White’s are required of Ne­
groes on account of their race or color. R. 2, 3.

He then alleges some but not all of the qualifications 
for registration and voting in Louisiana. R. 3, 4.

We here quote the Constitution of Louisiana on this 
subject:

“ ARTICLE VIII.
StTFFBAGE AND ELECTIONS.

Section 1. After January 1, 1922, the right to vote 
in Louisiana shall not exist except under the provisions 
of this Constitution.

Every citizen of the State and of the United States, 
native born or naturalized, not less than twenty-one 
years of age, and possessing the following qualifica­
tions, shall be an elector, and shall be entitled to vote 
at any election in the State by the people:

(a ) . He shall have been an actual bona fide resi­
dent of the State for two years, of the parish one year, 
of the municipality in municipal elections four months, 
and of the precinct, in which he offers to vote, three 
months next preceding the election; Provided, that re­
moval from one precinct to another in the same parish 
shall not operate to deprive any person of the right to 
vote in the precinct from which he has removed until 
three months after such removal; provided, that re­
moval from one parish to another shall not deprive any 
person of the right to vote in the parish from which he 
has removed for district officers to be elected in a dis­
trict which includes the parish to which he has re­
moved, or for State officers, whether the parish be in 
the same district or not, until he shall have acquired 
the right to vote for such officers in the parish to which 
he has removed.

(b ) . He shall be, at the time he offers to vote, legal­
ly enrolled as a registered voter on his own personal 
application, in accordance with the provisions of this 
Constitution, and the laws enacted thereunder.

(c )  . He shall be of good character and shall under-



3

stand the duties and obligations of citizenship under a 
republican form of government. He shall be able to 
read and write, and shall demonstrate bis ability to 
do so when he applies for registration by making, 
under oath, administered by the registration officer or 
bis deputy, written application therefor, in the English 
language, or his mother tongue, which application 
shall contain the essential facts necessary to show that 
he is entitled to register and vote, and shall be entirely 
written, dated, and signed by him, except that he may 
date, fill out, and sign the blank application for regis­
tration hereinafter provided for, and, in either case, 
in the presence of the registration officer or his deputy, 
without assistance or suggestion from any person or 
any memorandum, whatsoever, other than the form of 
application hereinafter set forth; provided, however, 
that, if the applicant be unable to write his application 
in the English language, he shall have the right, if he 
so demands, to write the same in his mother tongue 
from the dictation of an interpreter; and, if the appli­
cant is unable to write his application by reason of phy­
sical disability, the same shall be written at his dicta­
tion by the registration officer or his deputy, upon hi  ̂
oath of such disability.

I am a citizen of the State of Louisiana. My name
is Mr......................................., Mrs..................................... ,
Miss..................................  I was born in the State (or
country) o f ................................. , Parish (or county) of
........................... , on t h e ...........day o f ............................ ,
in the year...............  I am now..............years,...............
months and..............days of age. I have resided in this
State since............. , in this parish since..............., and
in precinct No............... , in Ward No.................. , since
................................., and I am not disfranchised by any
provision of the Constitution of this State.

Said applicant shall also be able to read any clause 
in this Constitution, or the Constitution of the United 
States, and give a reasonable interpretation thereof.

(d). I f he is not able to read or write, then he shall 
be entitled to register if he shall be a person of good



4

character and reputation, attached to the principles of 
the Constitution of the United States and of the State 
of Louisiana, and shall be able to understand and give 
a reasonable interpretation of any section of either 
Constitution when read to him by the registrar, and he 
must be well disposed to the good order and happiness 
of the State of Louisiana and of the United States and 
must understand the duties and obligations of citizen­
ship under a republican form of government.

(e). He must in all cases be able to establish that he 
is the identical person whom he represents himself to 
be when applying for registration, and when presen­
ting himself at the polls for the purpose of voting in 
any election or primary election.”

We call the Court’s attention to the fact that no ref­
erence is made in the complaint to the prescribed form of 
“ Application for Registration,”  which is shown above in 
the third paragraph of subsection (c) under Article VIII, 
Section 1, and it has also omitted mention of subsections 
(d) and (e).

He does not allege the filling out of “ a copy of the xx 
form,”  nor any endeavor to show that he could comply with 
the other requirements.

He further alleges that he “ presented himself”  for reg­
istration, that the registrar did not give him “ an applica­
tion form ” . R. 6.

That certain questions as to his residence quoad various 
political districts were asked by the registrar; that to one 
he answered “ I don’t know.”  R. 7.

“ Whereupon, the said registrar, being not satisfied with 
the answer given by plaintiff, then and there refused to 
register him. ’ ’

He then alleges that this “ was arbitrary and capricious 
and not warranted by law. ”  R. 7.

“ That during such registration period, or about August 
4, 1944, white persons presenting themselves for registra­



5

tion were not subjected to any sucli test”  and that the 
registrar “ followed the general policy, custom and usages 
of the present defendant and his predecessors in office. ’ ’

That this was “ under color of authority of St. John the 
Baptist Parish and the State of Louisiana.”  E. 7, 8.

He alleges five thousand dollars damages and at the 
same time asks for an injunction on the ground that he and 
others “ are suffering irreparable injury,”  without rem­
edy. E. 8.

He prays for a declaratory judgment, for judgment that 
the custom is unconstitutional; for a permanent injunction; 
that the tests are unlawful and unconstitutional. He also 
prays for $5,000.00 damages. E. 9.

The registrar filed a motion to dismiss: E. 11-13, on the 
ground that there was no claim made on which there could 
be relief; that no jurisdictional federal question was raised.

ARGUMENT 

On No Right of Action
Since the constitutionality of the provisions of the Lou­

isiana Constitution are in no wise questioned, we assume 
that there is no dispute as to the power of the State of 
Louisiana to make qualifications for registration and for 
voting. In addition to the requirements set forth in the 
previous quotations from the Constitution of Louisiana, we 
would ask the Court’s consideration of Section 5 of Article 
VIII, which reads in part as follows:

“ Sec. 5. Any person possessing the qualifications 
for voting, prescribed by this constitution, who may be 
denied registration shall have the right to apply for 
relief to the district court having jurisdiction of civil 
causes for the parish in which he offers to register.”

In accordance with this section, relief must be first 
sought in the district court of the State before the appli­
cant or the pollicitant, as in this case, can be said to have



6

been denied his civil rights, and before he would have a 
right to go into the United States Courts at all. His appear­
ance now is not only premature but is the sort of contention 
that was denied in the case of Arizona vs. California, 283 
U. S. 423 where, on page 462, the Court said:

‘ ‘ This contention cannot prevail because it is based 
not on any actual or threatened impairment of * * * 
rights but upon assumed potential invasion.”

In other words, the plaintiff here is assuming that he 
would ultimately be denied such rights as he might have 
before they are, in fact, and conclusively, denied.

We would call the Court’s attention to the blank form 
which we have above quoted in subsection (c) of Article 
VIII, Section 1 and to the paragraph preceding this blank 
application, wherein it is said:

“ The application for registration above provided 
for shall be a copy of the following form, with the 
proper names, dates, and numbers substituted for the 
blanks appearing therein. ’ ’

This plainly declares that there is no specific printed 
application which must be presented when a person wishes 
to register. All that the constitution requires is that the 
application should be a copy of the form set forth. In the 
complaint of Edward Hall, Article XI, it is alleged:

“ That instead of the said registrar giving him an 
application form to be filed by plaintiff in order to 
test his ability to read and write, etc., the said defen­
dant, T. J. Nagel, had plaintiff to go into a back room 
of his office, etc.”

There is nothing in the constitution which requires the 
registrar to give an application to a person who desires to 
register but the presentation of the application completely 
filled out by the applicant must be made to the registrar 
and, as the constitution requires, the application must be 
dated, filled out and signed “ in the presence of the regis­



7

tration officer or his deputy, without assistance or sugges­
tion from any person or any memorandum whatever other 
than the form of application hereinafter set forth.”

There is no allegation that the plaintiff ever requested a 
proper blank form, nor that he requested the right to fill 
out a copy of the form set forth in the constitution and to do 
this in the presence of the registrar or his deputy. We must 
conclude from this that no real attempt was made to reg­
ister and on the face of it, in spite of the allegations in the 
complaint that the plaintiff had certain qualifications, the 
fact that he did not try to take the very first step necessary 
to register is almost a confession that he did not have the 
qualifications which the blank form was supposed to show 
that he had. The prerequisite of presenting the form filled 
out in the presence of the registrar or his deputy would 
naturally precede any suggestion of the registrar that the 
applicant would be tested by his ability to read a clause in 
the constitution and give a reasonable interpretation there­
of, because the registrar would not be required and is not 
required by law to apply such a test, except to an actual 
legal applicant for registration.

In the case of Great Lakes Dredge, etc., Co. vs. Huffman, 
319 U. S. 293, the Court said, page 298:

“ It is in the public interest that federal courts of 
equity should exercise their discretionary powers so as 
to avoid needless obstruction of the domestic policies of 
the State.”

As To Administrative Review

In Myers vs. Bethlehem Shipbuilding Co., 303 U. S. 41, 
pages 50 and 51, the Court said:

“ The long settled rule of judicial administration 
that no one is entitled to judicial relief for a supposed 
or threatened injury until the prescribed administra­
tive remedy has been exhausted. ’ ’



8

And in Natural Gas Pipe Line Co. vs. Slattery, 302 U. S. 
300, the Court said:

“ The rule that a suitor must exhaust his adminis­
trative remedies before seeking the extraordinary re­
lief of a court of equity (citing cases) is of especial 
force when resort is had to the federal courts to re­
strain the action of state officers.”

In this particular case the Court will note that while an 
injunction is prayed for as part of the relief, not only is 
restraint demanded but the prayer also includes compulsion 
of a state official.

In Porter vs. Investors Syndicate, 286 U. S. 461, the 
Supreme Court, without a dissent, said, page 468:

“ We are of opinion that the appellee failed to ex­
haust the administrative remedy before applying to the 
District Court for injunctive relief. The granting and 
revocation of permits is an exercise by the appellant 
of delegated legislative power. Section 4038 of the 
Code (supra) confers on any interested person dis­
satisfied with a finding or decision by the Commis­
sioner the right, within thirty days to bring an action 
against him in a state district court to vacate his order 
and set it aside as unjust or unreasonable and directs 
that on the hearing the judge ‘ may set aside, modify 
or confirm said * * * decision as the evidence and the 
rules or (sic) equity may require’ * * clearly the func­
tion of the state district court is not solely judicial. 
* * * * The legislative process remains incomplete 
until the action of that court shall become final.”

And again, page 471:
“ As we have seen under the Montana Statute, the 

administrative proceeding is not complete until the 
court shall have acted in revisiop and correction of the 
commissioner’s decision.”

On rehearing in the Porter case the Court said in 287 
U. S. 346, 7:

“ The statute plainly affords a remedy which,



9

though in certain respects judicial is in others admin­
istrative. ’ ’

In Keller vs. Potomac Elec. Power Co., 261 U. S. 428, 
a decision cited in the Porter case, the Court considered 
an act of Congress dealing with the District of Columbia 
and said, page 442:

“ We cannot escape the conclusion that Congress in­
tended that the court shall revise the legislative discre­
tion of the commission by considering the evidence and 
full record of the case and entering the order it deems 
that the commission ought to have made. ’ ’

The Supreme Court distinguished between the power 
denied to U. S. Courts and the courts of the District and 
held, page 443, that Congress “ possesses a dual authority, 
over the District and may clothe the courts for the District 
not only with the jurisdiction and powers of Federal 
Courts in the several states, but with such authority as a 
state may confer on her courts. ’ ’

The Court then dismissed the appeal, saying, page 444:
“ Such legislative or administrative jurisdiction, it 

is well settled, cannot be conferred on this court, either 
directly, or by appeal. ’ ’

The rule thus announced has been uniformly recognized, 
and was followed by this Court in Trudeau v. Barnes, 65 
Fed. (2d) 563. There, the Court assigned as one of the 
grounds for its holding that the provisions of the Constitu­
tion of Louisiana did not contravene the Fourteenth and 
Fifteenth Amendments of the Federal Constitution, the fact 
that the Louisiana Constitution does not vest arbitrary 
powers in the Registrar, and that said Constitution pro­
vides an administrative remedy for any unjustifiable re­
fusal on his part to register an applicant.

The Court further held that prior to attempting to bring 
an action for damages against the Registrar, the plaintiff 
was required to exhaust this administrative remedy. Said



10

the Court, speaking through Mr. Justice Bryan:
“ The Louisiana Constitution protects every citizen 

who desires to register from being arbitrarily denied 
that right by the registrar of voters by giving the ap­
plicant a right to apply without delay and without 
expense to himself to the trial court for relief, to sub­
mit his qualifications to vote to a jury, and to have 
them finally passed upon by an appellate court. It is 
idle to say that the defendant as registrar had the 
arbitrary power to deny plaintiff the right to vote. We 
cannot say, and refuse to assume, that, if the plaintiff 
had pursued the administrative remedy that was open 
to him, he would not have received any relief to which 
he was entitled. At any rate, before going into court 
to sue for damages he was bound to exhaust the remedy 
afforded him by the Louisiana Constitution. First Na­
tional Bank of Greeley, Colo., v. Weld County, 264 
U. S. 450, 44 S. Ct. 385, 68 L. Ed. 784; First National 
Bank v. Gildart (C. C. A.) 64 F. (2d) 873, Fifth Circuit, 
decided April 22,1933.”

On the Question of a Class Suit

Consideration of the allegations in the present suit brings 
to mind the case of Giles vs. Harris, 189 U. S. 475.

That suit was a registration suit, “ brought by a colored 
man on behalf of himself ‘ and on behalf of more than five 
thousand negroes, citizens of the County of Montgomery, 
Alabama,’ similarly situated and circumstanced as him­
self. ’ ’

The Supreme Court sums up the allegations of the bill, 
Justice Holmes speaking for the Court:

The plaintiff is subject to none of the disqualifica­
tions set forth in the Constitution of Alabama and is 
entitled to vote—entitled, as the bill plainly means, 
under the Constitution as it is. He applied in March, 
1902, for registration as a voter, and was refused arbi­
trarily on th e  g ro u n d  o f  h is c o lo r , together with large



11

numbers of other duly qualified negroes, while all white 
men were registered. The same thing was done all over 
the State.”  (Italics ours.)

It is to be noted that in the Giles case the refusal was 
“ on the ground of his color.”

We find no such allegation in the present complaint, 
but in paragraph X I the plaintiff alleges:

“ Whereupon, the said registrar, being not satis­
fied with the answer given by plaintiff, then and there 
refused to register him. ’ ’

The unsatisfactory answer had nothing to do with race, 
sex, color or condition of servitude, but was an inquiry as to 
the Senatorial district of plaintiff’s residence, and was met 
with the answer, “ I don’t know.”

In paragraph X  plaintiff alleges that the “ defendant 
has established and is maintaining a policy, custom and 
usage of denying, etc.” , and requires colored persons “ to 
submit to tests not required for white electors.”

Furthermore, a class suit is supposed to be one in which 
all the persons of the class are bound by the judgment, but 
in this case since no specific persons are named and only in 
a general way negroes are mentioned, the real requirements 
as to a class suit are not shown.

In the case of Hansberry vs. Lee, 312 IJ. S. 32, the Court 
said, page 42-3:

“ It is familiar doctrine of the federal courts that 
members of a class not present as parties to the litiga­
tion may be bound by judgment where they are, in fact, 
adequately represented by parties who are present or 
where they actually participate in the conduct of the 
litigation in which members of the class are present as 
parties, etc.” , 

and on page 45:
“ It is quite another (thing) to hold that all those 

who are free alternately either to assert rights or to



12

challenge them are of a single class, so that any group 
merely because it is of the class so constituted may be 
deemed adequately to represent any others of the class 
in litigating their interest in either alternative. Such a 
selection of representatives for purposes of litigation, 
whose substantial interests are not necessarily or even 
probably the same as those whom they are deemed to 
represent, does not afford that protection to absent 
parties which due process requires. The doctrine of 
representation of absent parties in a class suit has not 
hitherto been thought to go so far. ’ ’

The Court will note that in the complaint there is no 
allegation that anything was said or done by the registrar 
to indicate that he refused to register Hall because he was 
a negro and, furthermore, the allegation is specifically 
made that he did refuse to register Hall because “ the said 
registrar, being not satisfied with the answer given by 
plaintiff, then and there refused to register him. ”  R. 7.

As has previously been shown, the answer was made by 
Hall in the words “ I don’t know,”  when the registrar asked 
him as to what Senatorial district was his residence.

It is absurd to contend that all the members of any class 
would have been asked that question, which question and 
which answer, the plaintiff himself alleged, caused the reg­
istrar to refuse to register him.

Color of Authority

The plaintiff alleged in paragraph 13 of the complaint 
(R. 8) that the defendant “ were acting under color of au­
thority of St. John the Baptist Parish and the State of 
Louisiana * * * and is a violation of the Constitution of the 
State of Louisiana. ’ ’

In McCain vs. Des Moines, 174 U. S. 168, the Court 
said, page 175:



13

“  ‘ Color of law’ does not mean actual law. ‘ Color,’ 
as a modifier, in legal parlance means ‘ appearance as 
distinguished from reality’. ”

Since the plaintiff is basing his contention on the right 
to vote because of his possession of the qualifications re­
quired by the Constitution of Louisiana, and since he claims 
that the action of the registrar was in violation of the Con­
stitution of Louisiana, it is impossible to conclude that the 
registrar is alleged to have been acting under authority of 
the law, or even under appearance of the law, as distin­
guished from its reality.

The allegations made by the plaintiff followed, to a 
great extent, those made in the previously cited case of 
Giles vs. Harris. However, plaintiff does not make his alle­
gations as broad as made in that case, hut confines himself 
to St. John the Baptist Parish. In the Giles case the suit 
was dismissed for want of jurisdiction and the Court said:

“ Unless we are prepared to supervise the voting in 
this State by officers of the Court, it seems to us that 
all that plaintiff could get from equity would be an 
empty form .”  189 U. S. 488.

Declaratory Judgment

This suit is in essence one for a declaratory judgment, 
although damages and an injunction are made dependent on 
the declaratory judgment. In Guttersohn v. K. C. Southern 
R. R. Co., 140 Fed. (2nd), 950, the Court said of a declara­
tory judgment (p. 953), “ No executory process follows as 
of course.”

In Blackman v. Stone, 101 F (2d), 500, the Court held 
there could be no award of damages in a declaratory judg­
ment.

In 46 Fed. Sup. 163, West Pub. Co. v. McColgin, it was 
held that there could be no declaratory judgment in federal 
court where state law provides an adequate remedy.



14

In this case the Court cited Corbett v. Printers & Pub­
lishers Corp. 127, P. (2d), 195, in which the Circuit Court 
of Appeals held, in an action to enjoin the collection of a 
tax, that the statute provided “ a plain, speedy and efficient 
remedy, ’ ’ and dismissed the suit for want of jurisdiction.

In Maryland Casualty Co. v. Pacific Coal Co., 312 U. S. 
270, referring to a “ controversy”  under the declaratory 
judgment the Court said (p. 273) :

‘ ‘ Basically, the question in each case is whether the 
facts alleged, under all the circumstances, show that 
there is a substantial controversy, between parties 
having adverse interests, of s u f f ic ie n t  im m ed ia n cy  and 
r e a lity  to warrant the issuance of a declaratory judg­
ment.”  (Italics ours).

In Alabama State Federation of Labor v. McAdory, 
Advance opinion Law Ed., Vol. 89, No. 17, page 1270, the 
Court said:

“ The requirements for a justiciable case or contro­
versy are no less strict in a declaratory judgment pro­
ceeding than in any other type of suit”  (p. 1276, citing 
the Breeze case.) “ This court is without authority to 
give advisory opinions.”  And on page 1277, “ It has 
long been the considered practice not to decide ab­
stract hypothetical or co n tin g en t  questions.”  (Italics 
ours.)

In this latest case on declaratory judgments, after 
making the following statement (p. 1283):

“ In any event the parties are free to litigate in the 
state courts the validity of the statute when actually 
applied to any definite state of facts with the right of 
appellate review in this court. ’ ’

(The action of the State Officer has a similar status). 
The Court then said:

‘ ‘ In the exercise of this court’s discretionary power 
to grant or withhold the declaratory judgment remedy 
it is of controlling significance that it is in the public 
interest to avoid the needless determination of consti­



15

tutional questions and the needless obstruction to the 
domestic policy of the states by forestalling state ac­
tion in construing and applying its own statutes.”

The basis must be laid before rights or privileges can be 
claimed, in other words, what the law requires must be fol­
lowed and accomplished before a right to registration 
arises.

One of the most comprehensive explanations of the 
Declaratory Judgment Act is given in Aetna Casualty & 
Surety Co. v. Quarles, 92 Fed. (2nd), 321. First, it de­
clares, citing the Supreme Court, that it “ is not one that 
adds to the jurisdiction of the Court.”  (p. 323). Second, 
“ The question is x x whether in exercising x jurisdiction, 
a discretion exists with respect to granting the remedy 
prayed fo r ”  (p. 324). Third, it “ expressly provides for the 
exercise of discretion.”  (p. 324). Fourth, “ it is not to 
draw into the Federal Courts the adjudication of causes 
properly cognizable by courts of the states.”  Fifth, “ the 
court should refuse to entertain the bill”  where judgment 
“ would have meant a piecemeal trying of the controversy 
without benefit to anyone. ’ ’ Sixth, ‘ ‘ the right of jury trial 
in what is essentially an action at law, may not be denied a 
litigant merely because his advisory has asked that the con­
troversy be determined upon the declaratory procedure.”  
Seventh, “ the two principal criteria x x are (1) When the 
judgment will serve as useful a purpose in clarifying and 
settling the legal relations in issue, and (2) when it will 
terminate and afford relief from the uncertainty, insecurity 
and controversy giving rise to the proceedings.”

“ It follows that when neither of these results can be 
accomplished the court should decline to remedy the decla­
ration prayed. ’ ’

This case was quoted approvingly in Brillhart v. Excess 
Ins. Co. 316 U. S. 491 on page 494.



16

The case of this complainant is based wholly on the as­
sumption that he was entitled to request registration with­
out fulfilling all of the requirements of the law, or offering 
to do so.

While no question has been raised as to the constitution­
ality of the provisions of our law affecting registration, it 
cannot be out of place to call the court’s attention to the 
fact that the qualifications of electors are confided by the 
Constitution to the States.

In the late case of Smith v. Allbright, 321 U. S. 649, a 
suit brought for damages for refusing to permit plaintiff to 
participate in a primary election, in other words, a suit 
brought to vindicate a right claimed by a plaintiff whose 
right was not contested on the ground that he had not fully 
complied with the law so as to be eligible to vote in a general 
election but because the election was a primary, operating 
under fixed rules, the Supreme Court said (p. 657):

‘ ‘ Texas is free to conduct her elections and limit her 
electorate as she may deem wise, save only as her ac­
tion may be affected by the prohibitions of the United 
States Constitution or in conflict with powers dele­
gated to and exercised by the National Government.”

The above authorities are we think more than sufficient 
to support the .-judgment appealed from. These authorities 
abundantly show that federal courts will not lightly disturb 
the delicate balances between the rights reserved to the 
states in matters of suffrage and elections and federal 
guarantees designed to operate in cases where real rights 
are actually invaded.

In the instant case appellant alleges no facts in support 
of his claim that he was denied registration because of his 
race or color, and the facts alleged,—taking them to be true, 
-—show that registration was refused on an entirely dif­
ferent ground,—that he did not know in what senatorial



17

district he resided. But even if he had been denied registra­
tion on the grounds which appellant claims,—but fails to 
support by any factual averments,—he could not and can­
not under the settled jurisprudence above set out, apply to 
the federal courts for relief prior to invoking and exhaust­
ing the administrative remedies provided under the Con- 
situation which he relies upon and makes a part of his com­
plaint.

Of course he shows no basis for a class suit or for a 
declaratory judgment.

We respectfully submit that the judgment of the trial 
court is correct, and that same should be affirmed.

JOHN E. FLEURY,
Gretna, Louisiana.

E. W AYLES BROWNE,
610 Marshall Street,
Shreveport, Louisiana.

FRANK J. LOONEY,
425 Milam Street,
Shreveport, Louisiana.

Attorneys For Appellee.









TRANSCRIPT OF RECORD.

U N I T E D  S T A T E S

CIRCUIT COURT OF APPEALS
FIFTH CIRCUIT.

No. 11,538

W ILLIAM P. MITCHELL,

Appellant,

versus

MRS. GEORGE C. WRIGHT, ET AL.,

Appellees.

Appeal from the District Court of the United States for 
the Middle District of Alabama.

(ORIGINAL RECORD RECEIVED DEC. 19/45.)





INDEX.

PAGE

Caption ...........................................................................................  1

Plaintiff’s Amended Complaint and Order thereon 2

Motion of Defendants to Dismiss the Complaint . . .  9

Defendants’ Demand for Jury Trial ................................  20

Defendants’ Amendment to Motion to Dismiss the
Complaint .........................................................................  21

Motion of Defendants to dismiss Complaint as
Amended ...........................................................................  23

Opinion of the Court ............................................................. 25

Judgment, entered 10/12/45 .................................................  35

Notice of Appeal .......................................................................  36

Appellant’s Designation of Contents of Record on 
Appeal and Agreement thereto by Appellees 
thereon ................................................................................  37

Clerk’s Certificate ..................................................................... 39





CAPTION.

BE IT REMEMBERED that at a regular term of the United 
States District Court, in and for the Eastern Division 
of the Middle District of Alabama, the Honorable 
Charles B. Kennamer, United States District Judge 
for the Middle District of Alabama, presiding, and 
holding its session at Montgomery, Alabama, which 
said term began on the 2nd day of April, 1945, and 
continued from time to time thereafter, up to and in­
cluding the 12th day of October, 1945, there came on 
to be heard and determined, among other causes pend­
ing on the docket, while Court was regularly in ses­
sion, the following cause:

Civil Action No. 102-0.

WILLIAM P. MITCHELL,
Plaintiff,

versus

MRS. GEORGE C. WRIGHT and VIRGIL M. GUTHRIE,
Defendants.

Appearances:
Arthur D. Shores, 1630-Fourth Avenue, No., Birming­

ham 3, Alabama., Thurgood Marshall, 20 West 40th 
Street, New York, N. Y., Attorneys for Plaintiff and 
Appellant.

Robert B. Harwood, Attorney General of Alabama, Mont­
gomery, Ala., W. W. Callahan, Assistant Attorney 

General of Alabama, Montgomery, Ala.

Hill, Hill, Whiting & Rives, Montgomery, Ala., Attorneys 
for Defendant and Appellee.



2

2 AMENDED COMPLAINT.

In the District Court of the United States for the Middle 
District of Alabama, Eastern Division.

William P. Mitchell, Plaintiff,

vs. Civil Docket No. 102-0 

Mrs. George C. Wright and Virgil M. Guthrie, Defendants.

To The Honorable Judge Of Said Court:
Now comes the plaintiff suing in behalf of himself and 

all others similarly situated, and respectfully shows unto 
this Honorable Court as follows:

1. The jurisdiction of this Court is invoked under sub­
division 11 of Section 41 of Title 28 of the United States 
Code, this being an action authorized by law to enforce 
the rights of citizens of the United States to vote, and 
under subdivision 14 of Section 41 Title 28 of the United 
States Code, this being an action authorized by law to be 
brought to redress the deprivation under color of law, 
statute, regulation, custom and usage of a State of rights, 
privileges and immunities secured by the Constitution of 
the United States, viz., sections 2 and 4 of Article 1 and 
Amendments 14, 15 and 17 to said Constitution, and of 
rights secured by laws of the United States, viz., sections 
31 and 43 of Title 8 of the United States Code, all of which 
will appear more fully hereafter.

2. Plaintiff shows further that this is a proceeding for
a declaratory judgment under section 400 of Title 28 of 
the United States Code (Section 274 (d) of the Judicial 
Code) for the purpose of determining a question in actual 
controversy between the parties to wit: the question
whether the practice of the defendants in enforcing and



X

maintaining the policy, custom and usage by which 
plaintiff and other Negro citizens similarly situated pos­
sessing all the qualifications of an elector are subjected to 
unreasonable tests not required of white electors and who 
are thereby denied the right to register solely on account 
of their race or color, violates sections 2 and 4 of Article 1 
and Amendments 14, 15 and 17 of the Constitution of the 
United States.

3. All parties to this action, both plaintiff and defend­
ants are citizens of the United States and of the State of 
Alabama, and are residents and domiciled in said State.

4. That this is a class action authorized by Rule 23(a) 
of the Rules of Civil Procedure for the District Courts of 
the United States. The rights involved are of common and 
general interest to the members of the class represented 
by the plaintiff, namely, Negro citizens of the United 
States and residents and citizens of the State of Alabama 
and Macon County, Alabama who possess all of the quali­
fications to be registered as voters and they possess none 
of the disqualifications of voters. Members of this class 
are so numerous as to make it impracticable to bring them 
all before the Court and for this reason plaintiff prose­
cutes this action in his own behalf and in behalf of the 
class without specifically naming the said members herein.

5. That persons entitled to register as electors are:
(Alabama Code 1940 Section 32) First: Those who can
read and write any article of the Constitution of the United 
States in the English Language, and those who are physi­
cally unable to work; and those who can read and write 
any article of the Constitution of the United States in the 
English Language and who have worked or been regularly 
employed in some lawful employment, business or occupa­
tion, trade or calling for the greater part of twelve months 
next preceding the time they offered to register and those

3



4

who are unable to read and write, if such inability is due 
to physical disability.

Second: The Owner in good faith in his or her right,
or the husband of woman or the wife of any man who is 
the owner in good faith in his or her own right of forty 
acres of land situated in this State, upon which they re­
side, or the owner in good faith in his or her own right or 
the husband of any woman or the wife of any man who is 
the owner in good faith in his or her own right of real 
estate situated in the State assessed for taxation at the 
value of Three Hundred Dollars or more . . .  provided that 
the taxes due upon such real or personal property for the 
next year in which he or she offers to register shall have 
been paid, unless the assessment shall have been legally 
contested and it is undetermined, and is subject to none 
of the disqualifications providing for registration of elec­
tors.

6. Plaintiff, William P. Mitchell, is colored, a person 
of African descent and Negro blood, is over the age of 
twenty-one years. He is a taxpayer of the State of Ala­
bama, and pays tax on real property with an assessed valu­
ation in excess of Three Hundred Dollars. Plaintiff alleges 
that he is able to read and write any passage of the United 
States Constitution, that he has never been adjudged guilty 
of felony or any crime and that he is not an idiot or insane. 
Plaintiff further alleges that by reason of the allegation 
herein above made, he was in all particulars on the 5th 
day of July, 1945, and still is possessed of the qualifica­
tions of an elector and as such was and is entitled to be 
registered as such elector.

7. Defendants’ Mrs. George C. Wright and Virgil M. 
Guthrie, hold office pursuant to the laws of Alabama as 
Administrative officers of the State of Alabama (Ala­
bama Code of 1940 Title 17 Section 21). “Registration



5

shall be conducted in each County by a board of three repu­
table and suitable persons to be appointed by the Gover­
nor, Auditor and Commissioner of Agriculture and Indus­
tries, or by a majority of them acting as a board of ap­
pointment, and who must be also qualified electors and 
residents of the County and who shall not hold an elec­
tive office during their term” . That on the 5th day of 
July, 1945, the defendants, Mrs. George C. Wright and 
Virgil M. Guthrie, were and at the present time are duly 
appointed, qualified and active as registrars of Macon 
County, Alabama, in which County plaintiff resides and 
whose duty was to enforce the registration laws equally as 
to all applicants and to register all applicants qualified for 
registration as electors, including your petitioner.

8. That under the laws of the State of Alabama (Ala­
bama Code of 1940) Title 17 Section 12) registration is a 
pre-requisite to the right of the citizen of said State to 
vote in any election, federal, state or local, held in said 
State, and unless and until said plaintiff and other mem­
bers of the class in whose behalf this suit is brought are 
registered, as provided by said laws of Alabama, the said 
plaintiff and other members of the class on whose behalf 
this suit is brought will not be entitled to vote at any elec­
tion held in the State of Alabama, and in said County and 
Precinct including the election of federal officers.

9. That defendants have established and are maintain­
ing a policy custom and usage of denying to plaintiff and 
others on whose behalf this suit is brought the equal pro­
tection of the laws by requiring them to submit to tests 
not required of white electors applying for registration 
and have continued the policy of refusing to register quali­
fied Negro electors while at the same time, registering 
white electors with less qualifications than those of Ne­
gro applicants solely because of race or color.



6

10. That on or about the 5th day of July, 1845, during 
the regular registration period while defendants, Mrs. 
George C. Wright and Virgil M. Guthrie, were acting as 
registrars of voters under the laws of Alabama in conduc­
ting the registration of persons qualified to register, plain­
tiff made application at the Macon County Court House, 
the place for registration of persons qualified to register, he 
filled out the regular form for registration, he produced 
two persons to vouch for him, as required by the board, 
he correctly answered such questions as were asked in 
proof of his qualifications, and was ready, willing and able 
to give any further information and evidence necessary to 
entitle him to be registered; that by reason of the said fact 
hereinbefore made, plaintiff was entitled to be registered 
as a voter. Plaintiff appled for registration in order to 
be eligible to vote in future federal as well as state elec­
tions.

11. Plaintiff further shows that during such registration 
period and on or about the 5th day of July, 1945, white 
persons presenting themselves for registration were not 
required to present persons to vouch for them, but were 
registered forthwith, whereas your petitioner solely be­
cause of his race and color was required to wait long hours 
before being permitted to file his application, was re­
quired to present persons to vouch for him, after which 
the said defendants denied plaintiff application and wrong­
fully refused and illegally failed to register plaintiff on 
said July 5, 1945, solely on account of his race, color and 
previous condition of sevitude. Plaintiff further states 
that it has become the general habitual and systematic 
practice of said Board of Registrars, including these de­
fendants, Mrs. George C. Wright and Virgil M. Guthrie/ 
and their predecessors in office to refuse to register Ne­
gro residents of Macon County, including the plaintiff, 
William P. Mitchell.



7

12. That the defendants in refusing to register plaintiff 
and other qualified Negroes pursuant to the policy, custom 
and usage set out in paragraph nine (9) herein were acting 
under color of authority of Macon County and the State 
of Alabama, and the refusal to register plaintiff and others 
in whose behalf this action is brought is a violation of sec­
tions 2 and 4 of Article 1 and Amendments 14, 15 and 17 
of the United States Constitution and sections 31 and 43 
of Title 8 of the United States Code.

13. There is between the parties as actual controversy 
as herein before set forth.

14. That said defendants by their said illegal and wrong­
ful acts have damaged this plaintiff in the sum of and to 
the extent of Five Thousand (5,000.00) Dollars.

15. That plaintiff and others similarly situated and af­
fected on whose behalf this suit is brought, are suffering 
irreparable injury and are threatened with irreparable in-, 
jury in the future by reason of the acts herein complained 
of; they have no plain adequate or complete remedy to re­
dress the wrongs and illegal acts herein complained of, 
other than this action for damages, for a declaration of 
rights and an injunction; and other remedy to which plain­
tiff and those similarly situated could be remitted would 
be attended by such uncertainties and delays as to deny 
substantial relief, would involve multiplicity of suits, cause 
further irreparable injury, damage and inconvenience to 
the plaintiff and those similarly situated.

Wherefore, plaintiff respectfully prays the Court that 
upon filing of this complaint, as may appear proper and 
convenient to the Court,, the Court advance this case on 
the Docket and order a speedy hearing of this action accord­
ing to the law and upon such hearing;



8

1. That this Court adjudge and decree, and declare the 
rights and legal relations of the parties to the subject mat­
ter herein controverted, in order that such declaration shall 
have the force and effect of a final judgment or decree.

2. That this Court enter a judgment or decree declar­
ing that the policy, custom or usage of the defendants, and 
each of them, in refusing to register as electors plaintiff 
and other qualified Negroes solely on account of their race 
or color, is unconstitutional as a violation of Amendments 
14 and 15 of the United States Constitution.

/  3. That this Court enter a judgment or decree declar­
ing that the policy, custom and usage of the defendants in 
subjecting Negroes to tests not required of white appli­
cants as a pre-requisite to registering is unlawful and in 
violation of the Fourteenth Amendment of the Constitu­
tion of the United States.

. 4. That this Court issue a permanent injunction for­
ever restraining and enjoining the defendants and each of 
them from subjecting Negroes to tests not required of 
white applicants as a pre-requisite to register.

5. That the plaintiff have judgment for Five Thou­
sand ($5,000.00) Dollars damages.

6. That this Court will allow plaintiff his costs herein, 
and such further, other, additional or alternative relief as 
may appear to the Court to be just and equitable in the 
premises.

ARTHUR D. SHORES,
1630 Fourth Avenue, North

Birmingham, Alabama.
THURGOOD MARSHALL, 

Attorneys for Plaintiff.
69 Fifth Avenue,

New York, New York.



9

I hereby cortify that I am counsel for the plaintiff in 
this case; that I have this day mailed, postage prepaid, a 
duplicate copy of the foregoing amended complaint in this 
case to Counsel for defendants as follows: Hon. W. W. 
Callahan, Esq., Assistant Attorney General, Montgomery, 
Alabama, and Hill, Hill, Whiting and Rives, Montgomery, 
Alabama.

ARTHUR D. SHORES.

It is ordered by the Court that the foregoing amended 
complaint be allowed and that the same be filed in this 
cause.

This the 3rd day of October, 1945.
C. B. KENNAMER,

United States District Judge.

Filed October 3, 1945.

MOTION TO DISMISS THE COMPLAINT.

10 (Title Omitted.)

Come the defendants and move the Court to dismiss the 
complaint in this cause and for grounds thereof assign the 
following:

1.

The complaint shows that plaintiff’s cause of action is 
based upon the Fourteenth and Fifteenth Amendments to 
the Federal Constitution and U.S.C.A., Sections 31 and 43, 
Title 8, all of which declare rights and inhibitions against 
state action and the complaint fails to state any facts show-



10

ing that the Board of Registrars as a Board did any act 
violative of the plaintiff’s rights.

2.
The Court is without jurisdiction to entertain this action 

which is based solely upon alleged personal wrongs by 
these defendants.

3.

The bill fails to allege any facts authorizing the Court 
to take cognizance of the alleged rights and grant relief to 
other parties alleged to be similarly situated, nor is any 
fact shown justifying the Court to assume such jurisdiction 
to avoid a multiplicity of suits.

4.
There is no allegation of facts in the complaint that the 

alleged Negro residents of Macon County, referred to, 
were legally entitled to be registered.

5.

The defendants, Mrs. George C. Wright and Virgil M. 
Guthrie, individually have no authority to act or refuse to 
act in the matter of registration of a voter, nor has this 
Court jurisdiction to make any order, judgment or decree 
requiring them individually to register the plaintiff. The 
Board of Registrars is a legal entity and it only can grant 
or refuse registration, and it only is subject to orders by 
the Court with reference to registration.

6.

The complaint fails to allege any facts to show that the 
plaintiff was ever refused registration by the Board of 
Registrars of Macon County, Alabama.



1 1

7 .

These defendants individually were without authority of 
law to pass upon the application of the plaintiff to register.

8.

Under the facts alleged in the complaint the plaintiff did 
not apply to the Board of Registrars for registration.

9 .

Under the Alabama laws, referred to in the complaint, 
and under the State Constitution there is no discrimination 
against the plaintiff because of his color or race, and there 
are no facts alleged in the complaint that the defendants 
claim that they were acting under and by authority of any 
State Constitution or statute of the State of Alabama in 
denying the registration of the plaintiff.

10.

From all that appears from the allegations of the com­
plaint the defendants, after hearing the application and 
all evidence offered thereon, denied registration to the 
plaintiff because he failed to establish by evidence to the 
reasonable satisfaction of the defendants or the Board of 
Registrars, of which they were members, that he was 
qualified under the law to be registered.

11.

The complaint fails to allege any facts sufficient to show 
that the plaintiff was entitled to register at the time his 
application for registration was presented and passed upon.



12

12.

The Board of Registrars in this matter acted in a judicial 
capacity and its determination that the evidence was insuf­
ficient to entitle the plaintiff to registration is not review- 
able by this Court, unless it is made to appear by alleged 
facts that the Board acted arbitrarily.

13.

The respondents are shown to have a legal discretion in 
passing upon the plaintiff’s qualifications for registration, 
and the complaint fails to allege facts showing that they 
are liable in damage by reason of wilfully and wrongfully 
refusing plaintiff’s right to registration.

14.

The complaint, by its allegations, recognizes that the 
Constitution and statutes of the State of Alabama govern­
ing registration are lawful and fair on their face. The un­
lawful administration of such constitution and laws by these 
defendants or the Board of Registrars so as to result in 
their unequal application to the Constitution and laws of 
the State is not a denial of the equal protection under the 
Federal Constitution, unless the complaint alleges a state­
ment of facts to show that there was present in the minds 
of the defendants at the time of refusing to register the 
plaintiff an intention to discriminate against the plaintiff 
because of his color or race.

15.

The complaint fails to allege facts to show that there 
was an actual discrimination against the plaintiff because 
of his color or race.



13

16.

The complaint shows that the plaintiff is not seeking 
redress because the State by its laws, customs, or usage is 
discriminating against plaintiff or because its laws fail 
to afford him equal protection, but rather it shows that 
the plaintiff was denied registration by their individual 
acts and claims damages against them for such acts.

17.

The bill alleges no facts to show that the plaintiff had 
all the positive qualifications required by law to entitle 
him to be registered and it also fails to allege facts suf­
ficient to show that he had none of the qualifications af­
fixed by law.

18.

The complaint alleged no facts that the defendants or 
the Board of Registrars have established and are main­
taining a policy, custom, or usage of denying to plaintiff 
and others the equal protection of the law to submit to 
tests not required of white electors applying for registra­
tion as alleged in Section 9 of the complaint.

19.

The complaint alleges no statement of facts showing 
that it has become the general, habitual, systematic prac­
tice of the Board of Registrars and these defendants and 
their predecessors to refuse to register Negro residents in 
Macon County, including the plaintiff, as alleged in Section 
11 of the complaint.



14

20.

The complaint sets out no statement of facts showing any 
illegal and wrongful acts that are alleged to have damaged 
the plaintiff in the sum of $5,000 alleged in Section 14 of 
the complaint.

21.

The complaint shows that the alleged defendants were 
acting as individuals in the alleged wrongs to the plaintiff 
for which damages are claimed.

22.

The Board of Registrars and the members thereof in 
passing upon the application of the plaintiff to register and 
in refusing the same acted in a judicial capacity and are 
not liable in damages claimed to have been sustained by 
plaintiff in refusing him registration.

23.

No facts are stated in the complaint sufficient to show 
that a justiciable issue exists between the plaintiff and 
these defendants.

24.

No facts are alleged in the complaint to show irreparable 
injury to the plaintiff of that he is presently threatened 
with such injury as is baldly alleged in Section 15 of the 
complaint.

25.

The allegation in Section 9 of the complaint that the de­
fendants have established a policy, custom, and usage of



15

denying to plaintiff and others the equal protection of the 
law by requiring them to submit to tests not required of 
white electors and have continued the policy of refusing 
to register qualified Negroes because of race or color is a 
mere conclusion, unsupported by any statement of facts.

2 6 .

The allegation in section 10 of the complaint, that the 
plaintiff filled out the regular form for registration and 
that he correctly answered such questions as were asked 
him and that he was ready, willing and able to give any 
further information and evidence are all bald conclusions, 
wholly unsupported by the allegations of any facts to sup­
port the same.

2 7 .

There are no allegations of facts in the complaint tend­
ing to show that at the time of the application for regis­
tration and the hearing hereon that plaintiff then and there 
made known to the defendants or to the Board that he did 
possess all the constitutional and statutory qualifications 
to entitle him to register, nor is there any allegation of 
fact that he made known to the defendants or the Board 
that he was ready and willing to answer any other ques­
tions, and that he did make known to them then and there 
that he had none of the disqualifications set forth in the 
State statute disqualifying parties from registration.

2 8 .

The allegation in section 11 that the plaintiff was denied 
registration on July 5, 1945, solely on account of race and 
color and the further allegation in this section that it has 
become the general, habitual and systematic practice for 
the Board and these defendants to refuse registration to



16

Negro residents of Macon County are mere conclusions 
and no facts are alleged to sustain the same,

29.

The complaint fails to allege sufficient facts to confer 
jurisdiction upon this Court to entertain this suit, either as 
a suit for declaratory judgment or a judgment at law grant­
ing redress to the plaintiff.

30.

The complaint fails to state facts showing that the plain­
tiff suffered the wrongs or was denied his rights com­
plained of by reason of the acts of the defendants claiming 
to act under color of any state statute or state custom or 
usage.

31.

The allegations of the complaint do no more than claim 
that the defendants and their predecessors had established 
and maintained a custom or usage for Macon County that 
Negroes should be refused application to register. There 
are no allegations or statement of facts to show that such 
custom or usage had become state custom or state usage.

32.

The Court is without jurisdiction in this case because 
the complaint alleges that the plaintiff wTas refused regis­
tration solely on account of race or color. In so acting the 
defendants were acting without authority of law and the 
Constitution of Alabama and in violation thereof.



17

33.

The Court lacks jurisdiction because under the 1940 
Code of Alabama, Title 17, Sections 25, the defendants as 
registrars are judicial officers, and act judicially in all 
matters pertaining to the registration of applicants, and 
further that their said judicial acts are subject to review 
on appeal as provided by Section 35 of said Title 17 of said 
Code of Alabama, and this Honorable Court has no juris­
diction to review the judgments or acts of said judicial of­
ficers and has no jurisdiction of this action against them 
for or on account of their judicial acts.

34.

The complaint fails to aver or allege that the plaintiff 
established by evidence to the reasonable satisfaction of the 
board of registrars that he was qualified to register.

35.

The complaint fails to aver or allege that the plaintiff 
established by evidence to the reasonable satisfaction of 
the board of registrars that he was qualified to register, 
and the complaint further fails to aver or allege any facts 
showing or tending to show that the action of the defend­
ants in denying plaintiff’s application to register was pur­
posely discriminatory against the plaintiff.

36.

For aught that appears, on July 5, 1945, the plaintiff was 
not qualified to register as an elector of Macon County, 
Alabama.



18

37.

There can be no actual or bona fide controversy between 
the parties that a person who is denied by State action the 
right to register solely on account of his or her race or 
color is deprived of a right or privilege guaranteed by the 
Constitution of the United States.

38.

The only controversy between the parties relates to the 
denial of plaintiff’s application to register, and whether in 
fact plaintiff’s said application was properly denied, and 
if not properly denied, whether the defendants denied 
plaintiff’s application with the purpose of wrongfully dis­
criminating against the plaintiff.

39.

The complaint fails to state a claim against defendants 
upon which relief can be granted.

40.

The jurisdiction invoked under subdivision 14 of Sec­
tion 41, Title 28 of the United States Code is only to re­
dress the deprivation of certain rights, privileges and im­
munities, and there is no jurisdiction in this Honorable 
Court to make or enter a declaratory judgment as to such 
rights, privileges and immunities.

41.

It does not appear that the other parties in whose behalf 
the plaintiff sues have been deprived of any right, privil­
ege or immunity.



19

42.

It does not appear that any of the other parties in whose 
behalf the plaintiff sues have made application to register, 
or that the application of any of them has been denied.

43.

The plaintiff and the parties in whose behalf he sues 
have a full, adequate and complete remedy under the laws 
of the State of Alabama.

44.

The rights sought to be enforced are several and individ­
ual and should be determined on the merits of each sep­
arate case.

45.

The rights sought to be enforced are several, they do not 
affect any specific property involved in the action and 
there is no common question of law or fact affecting the 
several rights, and the relief sought is several and no com­
mon relief is sought.

46.

This action can not properly be prosecuted as a class 
action.

47.

The plaintiff’s individual claims in this action are ad­
verse or hostile to the claims of the parties for whom he 
sues.



20

48.

It is not avered or alleged that Negroes possessing the 
qualifications to register as electors in the County of Ma­
con and State of Alabama and whose applications to regis­
ter have been denied constitute a class so numerous as 
to make it impracticable to bring them all before the Court.

49.

The one plaintiff does not fairly insure the adequate 
representation of all of the parties on behalf of whom he 
sues.

50.

It does not' sufficiently appear that the plaintiff has 
been deprived of any right, privilege or immunity secured 
by the Constitution and laws of the United States.

ROBERT B. HARWOOD, 
Attorney General of Alabama. 

W. W. CALLAHAN,
Assistant Attorney General of 

Alabama.
HILL, HILL, WHITING &. RIVES, 

Attorneys for Defendants.

The defendants demand a trial by jury of any and all 
issues in this cause triable of right by a jury.

ROBERT B. HARWOOD, 
Attorney General of Alabama.

Assistant Attorney General of 
Alabama.

HILL, HILL, WHITING & RIVES, 
Attorneys for Defendants.



21

I hereby certify that I am of counsel for the defendants 
in this case; that I have this day mailed, postage prepaid, 
a duplicate copy of the foregoing motion to dismiss the 
complaint in this case to Arthur D. Shores, counsel of rec­
ord for the plaintiff at his address, 1630 Fourth Avenue, 
North, Birmingham 3, Alabama.

Dated August 29, 1945.
W. W. CALLAHAN,

Assistant Attorney General, 
State of Alabama.

Filed August 30,1945. 

Re-filed Oct. 5,1945.

AMENDMENT TO MOTION TO DISMISS THE COM­
PLAINT.

19 (Title Omitted.)

Come the defendants and amend their motion to dismiss 
the complaint by adding thereto the following additional 
grounds:

51.

Section 43 of Title 8 of the United States Code is un- 
constitutionel and void, would deprive persons of property 
without due process of law in violation of the Fifth Amend­
ment to the Constitution of the United States in that it au­
thorizes the recovery of punitive or exemplary damages 
but provided no ascertainable standard of guilt.



22

52.
Section 43 of Title 8 of the United States Code violates 

the Fifth Amendment of the Constitution of the United 
States.

53.

Section 43 of Title 8 of the United States Code is so in­
definite as not to enable it to be known what is forbidden 
and therefore amounts to a delegation by Congress of leg­
islative power to Courts and juries to determine what acts 
shall be held to be punishable.

54.
The plaintiff has not pursued the remedies open to him 

under the laws of Alabama.

55.
There has been no final action of the State of Alabama, 

either administrative or judicial, which denies registra­
tion to the plaintiff, as an elector, in that the plaintiff had 
a right to apply without delay without expense to himself 
to the Circuit Court of Macon County for relief, to sub­
mit his qualifications to vote to a jury, and to have them 
finally passed on by the Supreme Court of Alabama.

56.
The action of which the plaintiff complains is judicial 

and is not the action of the State unless and until the 
highest Court of the State confirms such action.

57.

If the action of which the plaintiff complains is admin­
istrative then it is not final administrative action of the 
State unless and until the plaintiff has pursued the ad-



23

ministrative remedies open to him under the laws of 
Alabama.

58.

If the action of the Board of Registrars in passing upon 
the plaintiff’s application to register is administrative and 
not judicial, then that is likewise true as to action of the 
Circuit Court and of the State Supreme Court on appeal 
under the provisions of Code of Alabama 1940, Title 17, 
Section 35, and there has been no final action of the State 
denying the plaintiff registration as an elector.

ROBT. B. HARWOOD,
Attorney General of Alabama.

W. W. CALLAHAN,
Asst. Attorney General of 

Alabama.
HILL, HILL, WHITING & RIVES, 

Attorneys for Defendants.

Filed Sept. 20,1945. 

Re-Filed Oct. 5, 1945.

MOTION TO DISMISS THE COMPLAINT AS AMENDED 

21 (Title Omitted.)

Come the defendants and move the Court to dismiss the 
complaint as amended in this cause and for grounds there­
for assign the following:

51. The defendants refile the motion to dismiss the 
comnlaint heretofore filed in this cause to the original com­
plaint.



24

52. The plaintiff is not entitled to any relief growing 
out of the alleged violation of the guaranties of the Four­
teenth and Fifteenth Amendments to the Federal Consti­
tution because these amendments inhibit only state action 
and these defendants are sued individually.

53. The plaintiff is not entitled to have relief in this 
suit for any alleged injury due to any discrimination 
against him because of his race or color.

54. The complaint affirmatively shows that to entitle 
a person to vote in any election by the people in the State 
of Alabama he must have been duly registered as an elec­
tor; that the plaintiff has not been so registered; that the 
plaintiff does not have the qualifications requisite for an 
elector of the most numerous branch of the State Legis­
lature; and that, unless and until the plaintiff has regis­
tered and qualified as such elector, he has no right, privil­
ege or immunity secured by Sections 2 and 4 of Article I 
and Amendment Seventeen of the Constitution of the 
United States or by either of said provisions.

The defendants pray the judgment of the Court on this 
motion to dismiss.

ROBERT B. HARWOOD, 
Attorney General.

HILL, HILL, WHITING & RIVES. 
W. W. CALLAHAN,

Assistant Attorney General.

I, one of the counsel of record for the defendants, hereby 
certify that I have this day mailed a copy of the foregoing 
motion, postage prepaid, to Arthur D. Shores, of counsel 
for the plaintiff of record, 1630 Fourth Avenue, North, 
Birmingham, Alabama.

This the 4th day of October, 1945.
W. W. CALLAHAN.

Filed Oct. 5, 1945.



25

24 In the District Court of the United States for the 
Middle District of Alabama, Eastern Division.

William P. Mitchell, Plaintiff,
vs. Civil Action No. 102-0.

Mrs. George C. Wright and Virgil Guthrie, Defendants.

The named plaintiff, William P. Mitchell, brings this 
suit on behalf of himself and all others similarly situated 
against Mrs. George C. Wright and Virgil M. Guthrie, de­
fendants, as individuals. In paragraph 7, of the amended 
complaint, the defendants are described as administrative 
officers of the state of Alabama, whose manner of appoint­
ment and qualifications are set out in section 21, title 17, 
Alabama Code of 1940.

Plaintiff William P. Mitchell further avers in paragraphs 
8, 9, 10, 11, and 12 of the complaint, as follows:

“That under the laws of the State of Alabama (Alabama 
Code of 1940) Title 17 Section 12, registration is a pre­
requisite to the right of the citizen of said State to vote in 
any election, federal, state or local, held in said State, and 
unless and until said plaintiff and other members of the 
class in whose behalf this suit is brought are registered, 
as provided by said laws of Alabama, the said plaintiff and 
other members of the class on whose behalf this suit is 
brought will not be entitled to vote at any election held 
in the State of Alabama, and in said County and Precinct 
including the election of federal officers.

That defendants have established and are maintaining 
a policy, custom, and usage of denying to plaintiff and 
others on whose behalf this suit is brought the equal pro­
tection of the laws by requiring them to submit to tests 
not required of white electors applying for registration and 
have continued the policy of refusing to register quali­
fied Negro electors while at the same time register-



26

ing white electors with less qualifications than those of 
Negro applicants solely because of race or color.

That on or about the 5th day of July, 1945, during the 
regular registration period while defendants, Mrs. George 
C. Wright and Virgil M. Guthrie, were acting as registrars 
of voters under the laws of Alabama in conducting the reg­
istration of persons qualified to register, plaintiff made 
application at the Macon County Court House, the place 
for registration of persons qualified to register, he filled 
out the regular form for registration, he produced two per­
sons to vouch for him as required by the board, he correctly 
answered such questions as were asked in proof of his 
qualifications, and was ready willing and able to give any 
further information and evidence necessary to entitle him 
to be registered; that by reason of the said fact herein be­
fore made, plaintiff was entitled to be registered as a voter. 
Plaintiff applied for registration in order to be eligible to 
vote in future federal as well as state elections.

Plaintiff further shows that during such registration 
period and on or about the 5th day of July, 1945, white 
persons presenting themselves for registration were not 
required to present persons to vouch for them, but were 
registered forthwith, whereas your petitioner solely be­
cause of his race and color was required to wait long hours 
before being permitted to file his application, was required 
to present persons to vouch for him, after which the said 
defendants denied plaintiff application and wrongfully re­
fused and illegally failed to register plaintiff on said July 
5, 1945, solely on account of his race, color and previous 
condition of servitude. Plaintiff further states that it has 
become the general habitual and systematic practice of 
said Board of Registrars, including these defendants, Mrs. 
George C. Wright and Virgil M. Guthrie, and their pre­
decessors in office to refuse to register Negro residents of 
Macon County, including the plaintiff, William P. Mitchell.



27

That the defendants in refusing to register plaintiff and 
other qualified Negroes pursuant to the policy, custom and 
usage set out in paragraph nine (9) herein were acting 
under color of authority of Macon County and the State 
of Alabama, and the refusal to register plaintiff and others 
in whose behalf this action is brought is a violation of sec­
tion  ̂ 2 and 4 of Article 1 and Amendments 14, 15, and 17 
of the United States Constitution and section 31 and 43 of 
Title 8 of the United States Code.”

The plaintiff asks (1st) for a declaratory judgment, (2) 
that this Court issue a permanent injunction, and (3rd) 
that the plaintiff have a judgment for $5,000 damages.

The defendants, through their attorneys and the At­
torney General of Alabama, have filed a motion to dismiss 
the amended complaint on fifty or more separate grounds, 
many of the grounds being in substance repetitions, but 
the motion as a whole raises the question of the jurisdic­
tion of this Court and the sufficiency of the complaint as 
to form.

The amended complaint in no manner brings into ques­
tion any provisions of the Alabama State Constitution or 
any statutes of the State of Alabama as being in conflict 
with any provision of the Constitution of the United States.

Oral arguments have been heard by the Court by able 
counsel for both the plaintiff and the defendants, and 
briefs in support of said arguments have been presented 
by counsel for the plaintiff and the defendants. All have 
been carefully studied and considered by the Court, and 
the Court has made diligent research for enlightment. The 
Court now renders the following opinion and order:

The Motion To Dismiss The Cause As A Class Action . 
Will Be Granted.

“A class action is an action brought in behalf of other 
persons similarly situated.” Calabrese v. Chiumento. 3 
F. R. D. 435.



28

For the plaintiff Mitchell to be able to prosecute this 
action as a class action, it must be brought in behalf of 
other persons similarly situated. And for these other per­
sons to be similarly situated, it must be more than a like­
lihood that there are such other persons similarly situated, 
the situation must actually exist, and the “Class” must be 
a reality, not a possibility.

Does a class actually exist here, or is there, according 
to the complaint, as amended, an implied allegation, or 
belief, that such a group or class is in the making, or that 
there is a possibility of such a class developng.

“The purpose of a class action is to enable the Court to 
determine finally the rights of a numerous class of individ­
uals by one common final judgment.” Farmers Co-op Oil 
Co. vs. Socony Vacuum Oil Co. 43 Fed. Supp. 735.

Registration is an individual matter, each case is con­
sidered on its own merits and demerits, and whether a 
person is entitled to be registered or not, is determined 
solely by weighing his qualifications and disqualifica­
tions, if any, by the standards outlined in the Constitution 
and Statutes of the State of Alabama, which standards are 
not questioned by the plaintiff in this action. The question 
of unconstitutional discrimination in registration cannot be 
determined by groups or classes but must be determined 
as to each individual.

The plaintiff here relies on 39 Fed. Supp. 638, McDaniel 
v. Board of Public Instruction for Escambia County, Flori­
da, for his authority for bringing this suit as a class action; 
however, there is a clear distinction in the mind of this 
Court as between “Negro school teachers” and a “portion 
of a race of people, unclassified and without further iden­
tification, who would be entitled to be registered as quali­
fied voters, if they possessed certain qualifications and do 
not possess certain disqualifications.” One— : school teach­
ers,” is specific and definite, easily recognizable as a group 
or class, whereas, the other, “Negro citizens of the United 
States and residents and citizens of the State of Alabama



29

and Macon County, Alabama, who, (as alleged in the com­
plaint) possess all the qualifications to be registered as 
voters and possess none of the disqualifications of voters,” 
is indefinite, unclassified, and is not recognized by the pub­
lic or anyone as a group or class. What marks them as a 
class? What characteristics do they possess that sets them 
apart as a specific group or class? Where and how are they 
identified as such a group or class? There is a difference 
between a group or class such as school teachers, stock­
holders, employees, or bondholders, wherein the very 
word or phrase itself carries with it the thought of several 
or numerous persons similarly situated and identified, and 
the broad and general allegation of Negro citizens who 
possess all the qualifications to be registered as voters and 
possess none of the disqualifications of voters.

This Court could not determine by one common final 
judgment the rights of such a group as is named party 
plaintiffs in this suit. There is not such a group or class 
in esse as to make it a class action. The mere allegation 
that the defendants discriminated against other members 
of the Negro race in Macon County in refusing registration 
to them because of their race and color would not suffice 
to place them in a class with the plaintiff Mitchell, unless 
it was determined by this Court that such person, or per­
sons, possessed all the qualifications required by law and 
none of the disqualifications, and that refusal to register 
said person or persons by the defendants was solely on 
account of race discrimination, which can only be done 
by considering all the facts and circumstances of each par­
ticular case, and only after such finding, if true, would 
that person become a member of such class.

In the opinion of this Court, it is not a matter for the 
Court to first organize a class in order for a class action 
to be prosecuted. It is not for the Court to devise such a 
class, and it is not for the Court to set up a class and de­
scribe them and identify them so that they might have 
the necessary characteristics to be denominated a class for



30

the purpose of bringing a class action. Such a class must 
be in existence and must possess such characteristics or 
identity to make it ascertainable and recognizable as a 
group possessing similar likeness. It must be more than 
a request to the Court to find others who have suffered 
the same fate as the plaintiff, with the same qualifications 
and none of the disqualifications, and designate them as 
being similarly situated and therefore entitled to become 
members of the class for the purposes of prosecuting a class 
action.

The Motion To Dismiss The Complaint As To A Declara­
tory Judgment And Permanent Injunction Against The 
Defendants Will Be Granted.

“Defendants, (as alleged in plaintiff’s complaint), hold 
office pursuant to the laws of Alabama as Administrative 
officers of the State of Alabama. (Alabama Code of 1940, 
Title 17, Section 21.”

This law under which the defendants hold office as regis­
trars of Macon County, Alabama, Section 21, Title 17, of 
the Code of 1940, is as follows:

“Registration shall be conducted in each county by a 
board of three reputable and suitable persons to be ap­
pointed by the governor, auditor and commissioner of 
agriculture and industries, or by a majority of them acting 
as a board of appointment, and who must be also qualified 
electors and residents of the county and who shall not 
hold an elective office during their term. One of said mem­
bers shall be designated by the Board of appointment as 
chairman of the board of registrars for each county. Pro­
vided, however, that in counties of over three hundred and 
fifty thousand population, according to the last or any sub­
sequent federal census, that the governor shall appoint the 
chairman of the board of registrars.”



31

No challenge is made by the plaintiff of the law under 
which the defendants hold office as members of the board 
of registrars of Macon County, or that said defendants are 
or have been illegally or unconstitutionally appointed, or 
that they have no right to hold the office of registrars of 
Macon County, Alabama, or that they have no authority to 
examine applicants for registration as to their qualifi­
cations and disqualifications, under oath or affirmation, 
and to take testimony touching such qualifications.

Section 32, of Title 17, Alabama Code of 1940, sets forth 
who shall be qualified to register, provided they shall not 
be disqualified under the laws of the state, and it is as 
follows:

“ 1st. Those who can read and write any article of the 
constitution of the United States in the English language, 
and those who are physically unable to work; and those 
who can read and write any article of the constitution of 
the United States in the English language and who have 
worked or been regularly employed in some lawful em­
ployment, business or occupation, trade or calling for the 
greater part of twelve months next preceding the time they 
offer to register, and those who are unable to read and 
write, if such inability is due solely to physical disability; or

2nd. The owner in good faith in his or her own right, 
or the husband of a woman or the wife of any man who 
is the owner in good faith in her or his own right of forty 
acres of land situated in this state, upon which they reside; 
or the owner in good faith in his or her own right, or the 
husband of any woman or the wife of any man who is the 
owner in good faith in his or her own right of real estate 
situated in this state, assessed for taxation at the value 
of Three Hundred Dollars, or more; or the owner in good 
faith, in his or her own right, or the husband of any wo­
man or the wife of any man who is the owner in good



32

faith in her own or his own right, of personal property 
in this state assessed for taxation for Three Hundred Dol­
lars or more; provided that the taxes due upon such real 
or personal property for the next year preceding the year 
in which he or she offers to register shall have been paid, 
unless the assessment shall have been legally contested 
and is undetermined.”

Section 33, of Title 17, is as follows:

“Any person making application to the board of regis­
trars for registration who fails to establish by evidence to 
the reasonable satisfaction of the board of registrars that 
he or she is qualified to register, may be refused regis­
tration.”

Section 34, of Title 17, is as follows:

“The action of a majority of the board of registrars shall 
be the action of the board, and a majority of the board shall 
constitute a quorum for the transaction of all business.”

And Section 35, provides for the right of appeal from 
registration, as follows:

“Any person to whom registration is denied shall have 
the right to appeal, without giving security for costs, within 
thirty days after such denial, by filing a petition in the 
circuit Court or Court of like jurisdiction held for the 
county in which he or she seeks to register, to have his 
or her qualifications as an elector determined. Upon the 
filing of the petition, the clerk of the Court shall give notice 
thereof to the solicitor authorized to represent the state 
in said county, who shall appear and defend against the 
petition on behalf of the state. Upon such trial the Court 
shall charge the jury only as to what constitutes the quali­
fications that entitle the applicant to become an elector at



33

the time he or she applied for registration, and the jury 
shall determine the weight and effect of the evidence, and 
return a verdict. From the judgment rendered an appeal 
will lie to the supreme Court in favor of the petition to be 
taken within thirty days. Final judgment in favor of the 
petitioner shall entitle him or her to registration as of the 
date of his or her application to the registrars.”

The action of the defendants, of which the plaintiff com­
plains, is the failure by them to perform an administra­
tive act, the act of placing plaintiff’s name on the roll of 
qualified electors of Macon County, Alabama, solely on 
account of his race; however, the action of the board of 
registrars in denying him registration is but the first step 
in the procedure set up by the^aws of Alabama through 
which his request for registration must travel before it 
becomes final. Section 35, of Title 17, provides for the 
right of appeal from the action of the board of registrars, 
without giving security for costs, to the circuit Court of 
that county, and from the circuit Court to the supreme 
Court of Alabama.

“An action by a national bank to recover the amount 
of taxes levied by a State and paid under protest, upon 
the ground that they were excessive, discriminatory and 
violative of Rev. State. Sec. 5219, held not maintainable in 
the district Court, where the plaintiff failed to avail itself 
of an administrative remedy afforded by the state law as 
conclusively established by a decision of the State Su­
preme Court. 1st National Bank of Greely, vs. Board of 
County Commissioners of the County of Weld. 264 U.S. 
450.”

An action such as this cannot be maintained in the fed­
eral Courts until the plaintiff has availed himself of that 
administrative remedy afforded by the laws of Alabama, 
which, in this case, is an appeal from the section of the



34

board of registrars to the circuit Court of Macon County, 
Alabama, and from that Court to the Supreme Court of 
Alabama. And this is not in conflict with the opinion of 
Justice Frankfruter in Lane v. Wilson, 307 U. S. 268, where 
the law itself worked discrimination against the colored 
race, and the Court held that resort to the federal Court 
may be had without first exhausting the judicial (distin­
guished from administrative) remedies of the state Courts.

The plaintiff, at the time he presented himself for regis­
tration to the board of registrars of Macon County, Ala­
bama, nor at any time since, or now, made, or makes, ob­
jection to the administrative machinery extablished by 
state law for registration of voters, but, on the contrary, 
took advantage of the initial step in such machinery to 
present himself to the board of registrars at the proper 
time and place for registration, however, after he was 
denied registration by the board, he forsook the remaining 
parts of the machinery, or the other steps open to him by 
the same law which created the initial step, the board of 
registrars, and which remaining parts or other steps he 
nowhere complains of as being unfair or unconstitutional, 
and shifted his quest for registration from the adminis­
trative machinery of the state of Alabama, to the federal 
district Court for the middle district of Alabama, in which 
district Macon County is located.

He makes no charge in this Court that if he pursued the 
course open to him in the state machinery that he would 
not be registered, and from aught that appears here, had 
he followed the procedure open to him by state law, he 
might have found relief in the circuit or the supreme 
Courts of Alabama.

A case very much in point to the case now before this 
Court is Trudeau v. Barnes, 65 Fed. 2nd. 563, and in that 
case, Circuit Judge Bryan says:

“It is idle to say that the defendant as registrar had the 
arbitrary power to deny plaintiff the right to vote. We



35

cannot say, and refuse to assume, that, if the plaintiff 
had pursued the administrative remedy that was open to 
him, he would not have received any relief to which he 
was entitled. At any rate, before going into Court to sue 
for damages, he was found to exhaust the remedy afford­
ed him by the Louisiana Constitution.”

In the event the. plaintiff follows the administrative 
remedy afforded by the Alabama Law, and is granted reg­
istration, at whatever step in such machinery registration 
is granted, such registration, under Alabama law, shall be 
as of the date of his application to the board of registrars, 
therefore, throughout the machinery, registration remains 
an administrative act.

This Court is of the opinion that the plaintiff is preclud­
ed from shifting from the initial step of the state machin­
ery to the federal Court and must avail himself of that ad­
ministrative remedy afforded by the state laws of Ala­
bama.

Order Of The Court.

It is ordered, adjudged, and decreed by the Court that 
the motion to dismiss the complaint, as amended, be, and 
the same is, granted, and the complaint, as amended, is 
dismissed.

Done this the 12th day of October, 1945.
C. B. KENNAMER,

United States District Judge.

Filed October 12, 1945.



36

33 NOTICE OF APPEAL TO CIRCUIT COURT OF
APPEALS.

In the District Court of the United States for the Middle 
District of Alabama.

William P. Mitchell, Plaintiff,
vs. Civil No. 102-0.

Mrs. George C. Wright and Virgil M. (Guthrie, Defendants.

Notice is hereby given that William P. Mitchell, plain­
tiff above named, hereby appeals to the Circuit Court of 
Appeals for the Fifth Circuit from the order sustaining 
defendant’s motion to dismiss and dismissing plaintiff’s 
suit entered in this action on October 12, 1945.

ARTHUR D. SHORES,
1630 Fourth Avenue, N.,

Birmingham, Alabama.
THURGOOD MARSHALL,

20 West 40th Street,
New York, New York.

Attorneys for Appellant.

I hereby certify that I have this day mailed a copy of 
the foregoing, postage prepaid, to Hon. W. W. Callahan 
one of counsel for the Defendants of Record, at Montgom­
ery, Alabama.

This 27th day of November, 1945
ARTHUR D. SHORES.

Filed Nov. 29, 1945.



37

DESIGNATION OF CONTENTS OF RECORD IN
APPEAL.

34 (Title Omitted.)

William P. Mitchell, Plaintiff,
vs. Civil No. 102-0.

Mrs. George C. Wright and Virgil M. Guthrie, Defendants.

William P. Mitchell, plaintiff in this cause, hereby desig­
nates the following records and proceedings to be included 
in the record on appeal, to the Circuit Court of Appeals 
Fifth Circuit, as provided by the rules of the Court:

First: Amended Complaint.

Second: Motion to Dismiss Complaint.

Third: Motion to Complaint as Amended.

Fourth: Opinion of the Court and Decree of Dismissal.

Fifth: Notice of Appeal, with date of filing the same.

Sixth: This Designation of Record.
ARTHUR D. SHORES,

1630-Fourth Avenue, No.
Birmingham 3, Alabama.

THURGOOD MARSHALL,
20 West 40th Street,

New York, New York.
Attorneys for Appellant.



38

I hereby certify that I have this day mailed a copy of 
the foregoing, postage prepaid, to Hon. W. W. Callahan 
one of counsel for the Defendants of Record, at Montgom­
ery, Alabama.

This 27th day of November, 1945.
ARTHUR D. SHORES.

The Defendants agree to the foregoing designation of 
contents of the record on appeal.

This Dec. 1,1945.
WILLIAM N. McQUEEN, 

Attorney General of Alabama.
W. W. CALLAHAN,

Assistant Attorney General of 
Alabama.

HILL, HILL, WHITING & RIVES, 
Attorneys for Defendants.

Filed Nov. 29, 1945.



39

CERTIFICATE.

United States of America,
Middle District of Alabama.

I, 0. D. STREET, JR., Clerk of the United States Dis­
trict Court, Middle District of Alabama, do hereby certify 
that the foregoing pages numbered one to thirty-four, both 
inclusive, contain a full, complete, true and perfect trans­
cript of the procedings on appeal in the case of William P. 
Mitchell, Plaintiff, versus Mrs. George C. Wright and 
Virgil M. Guthrie, Defendants, Civil Action No. 102-0 of the 
Docket of said Court.

Witness my hand and the seal of said Court at the City 
of Montgomery, Alabama, on this the 17 day of December,
1945.

O. D. STREET, JR.,
(Seal) Clerk, United States District

Court, Middle District of 
Alabama.







E. S . U PTON  P R IN T IN G  C O ..  NEW  O RLEAN S— 82975



U N I T E D  S T A T E S

CIRCUIT COURT OF APPEALS
FIFTH CIRCUIT.

No. 11,538

WILLIAM P. MITCHELL,

versus
Appellant,

MRS. GEORGE C. WRIGHT, ET AL.,
Appellees.

Appeal from the District Court of the United States for 
the Middle District of Alabama.

BRIEF FOR APPELLEES.

HILL, HILL, WHITING & RIVES, 
Montgomery, Alabama,

E. C. BOSWELL,
Geneva, Alabama,

W. C. HARE,
Tuskogee, Alabama,

Of Counsel.

WILLIAM N. McQUEEN,
Attorney General of the State of Ala­

bama, Montgomery, Alabama,
W. W. CALLAHAN,

Asst. Attorney General of the State 
A labama’ Montgomery, Alabama, 

RICHARD T. RIVES,
107% Washington Street,

Montgomery, Alabama,
Attorneys for Appellees.

\





TABLE OF CONTENTS.

STATEMENT OF THE CASE ..................................... 1

BRIEF OF THE ARGUMENT ..................................... 3
I The plaintiff had not exhausted his adminis­

trative remedies under the State law . . .  3
II For appellant to be entitled to relief action

by the State is necessary .........................  9
III Appellant may not properly maintain this suit

as a class action ..........................................  16
IV Appellant may not properly maintain this suit

as an action for declaratory judgment . . .  18
V The appellees individually are not liable to the

appellant for damages ...............................  20

CONCLUSION .................................................................. 23

TABLE OF CASES.

American Auto Co. v. Freundt (7th C. C. A.) 103
Fed. 2d 613, 617, 618 ........................................... 19

Barney v. N. Y., 193 U. S. 430, 48 L. ed. 737 .......... 14
Breedlove v. Suttles, 302 U. S. 277, 82 L. ed. 252 . . .  12
Brillhart v. Excess Ins. Co., 316 U. S. 491, 86 L. ed.

1620 .......................................................................... 19
Commonwealth, ex rel. Dimmit v. O’Connell, 298 Ky.

44, 181 S. W. (2d) 691, 696 (1944) ..................  11
Encyclopedia Americana, Vol. 27, page 467 .................  13
Ex p. Virginia, 100 U. S. 339, 25 L. ed. 676, 680 . . . .  6
Ex p. Yarbrough, 110 U. S. 651, 28 L. ed. 274 . . .  .10,13,14 
Felix v. United States (1911, 5 C. C. A.) 186 Fed. 685,

689 .............................................................................10,13
Gilchrist v. Interborough Rapid Transit Co., 279 U. S.

159, 208, 73 L. ed. 652, 664 ...............................  16
Giles v. Harris, 189 U. S. 475, 47 L. ed. 909 .............. 18

PAGE



TABLE OF CASES— (Continued)

Henderson Water Co. v. Corporation Commission,
269 U. S. 278, 70 L. ed. 273 ........................... :. 4

Hill v. Mendenhall, 88 U. S. 453 ................................. 20
Keller v. Potomac Elec. Power Co., 261 U. S. 428,

67 L. Ed. 731 ........................................................  4,6
Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L. ed.

1281 ...................................................................3,6,14,15
Murphy v. Ramsey, 114 U. S. 15 ................................. 21
Pacific Telephone Co. v. Kuykendall, 265 U. S. 196,

68 L. ed. 975 ........................................................  6
Pacific States Box & Basket Co. v. White, 296 U. S.

185 ............................................    21
Package Clothier Corp. v. Sealright Co., 4 Fed. Rules

and Decisions, 114, 118 .....................................  21
Pope v. Williams, 193 U. S. 621, 632, 48 L. ed. 817, 822 12
Porter v. Investor’s Syndicate, 286 U. S. 461, 76 L.

ed. 1226, 287 U. S. 346, 77 L. ed. 354 .............  4,6
Prentis v. A. C. L. R. Co., 211 U. S. 210, 226, 53 L.

ed. 150, 159 ..........................................................  4,6
Raymond v. Chicago Union Traction Co., 207 U. S.

20, 41, 52 L. ed. 8 9 ............................................... 14
Screws v. U. S., 89 L. ed. 1029 (Adv. Ops.) ..........9,12,15
Snowden v. Hughes, 321 U. S. 1, 13, 17, 88 L. ed. 497,

505, 507 (collecting cases) .................................  15
Southern Railway Co. v. King, 217 U. S. 525 .............  20
State v. Crenshaw, 138 Ala. 506, 35 So. 456 .............  8
Straus v. Foxworth, 231 U. S. 162 ...............................  20
Trudeau v. Barnes (5th C. C. A.) 65 F. 2d 563, 564,

certiorari denied 290 U. S. 659, 78 L. ed. 571 . .4, 6,7
U. S. C. A. Title 28, Sec. 400, Notes 25 and 2 6 ........ 18,19
United States v. Aezel, 219 Fed. 917, 931 ...................  10
United States v. Classic, 313 U. S. 299, 315, 85 L. ed.

1368, 1377 ..............................................................  10
United States v. Reese, 92 U. S. 218, 23 L. ed. 564 14 
Wiley v. Sinkler, 179 U. S. 58, 66. 45 L. ed. 84, 89 . .. 11

II

PAGE



m

UNITED STATES CONSTITUTION.

Article 1, Sections 2 and 4 .....................................9,11,13
Seventeenth Amendment ..............................................  9,11
Fourteenth Amendment ............................................. 9,14,18
Fifteenth Amendment ........................................... 9,13,14,18

ALABAMA CONSTITUTION.

Section 178, (1901) ......................................................2,12,21
Section 181 .......................................................................  2,21

STATUTES.

Section 21, Title 17, Alabama Code 1940 ..................  5,17
Section 22, Title 17, Alabama Code 1940 ..................  17
Section 35, Title 17, Alabama Code 1940 .................  5, 20
Section 4-3, Title 8, U. S. Code ..................................... 9
Section 41, Subdivision 14, U. S. Code .....................  9,18
Section 41, Title 28, U. S. Code ................................... 18

TREATISES AND ARTICLES.

18 American Jurisprudence, 232, Elections Sec. 84 .. 11
42 American Jurisprudence, Public Administrative

Law, Sections 72 and 74 ................................... 19
Rule 23(a) Rules of Civil Procedure .........................  17

PAGE





UNITED STATES CIRCUIT COURT OF APPEALS, 
FIFTH CIRCUIT.

No. 11,538.

WILLIAM P. MITCHELL,
Appellant,

versus

MRS. GEORGE C. WRIGHT, ET AL.,
Appellees.

Appeal from the District Court of the United States for 
the Middle District of Alabama.

BRIEF FOR APPELLEES.

STATEMENT OF THE CASE.

Appellant’s “statement of the case” needs correction in 
a few respects:

1. The averments to the effect that the defendants had 
established a general policy, custom or usage of refusing 
to register qualified Negro electors and that pursuant to 
that policy, custom or usage, they refused to register



2

plaintiff, and other similar averments were made as con­
clusions unsupported by any averments of fact (R. 5, 
Para. 9, R. 7, Para. 12, R. 13, 14, 15, Grounds 19, 25, 26, 
28).

2. The averments that the plaintiff possessed the quali­
fications of an elector, and as such was entitled to register as 
such elector were “by reason of the allegation hereinabove 
made” (R. 4, Para. 6), and “by reason of the said fact here­
inbefore made” (R. 6, Para. 10), and hence were based on 
the facts particularly alleged. The motion to dismiss (R. 
17, Ground 36, among others) made the point that for 
aught that appears, the plaintiff was not qualified to 
register as an elector of Macon County, Alabama. The 
complaint did allege that plaintiff resides in Macon Coun­
ty, Alabama (R. 5, Para. 7), but nowhere did it allege 
that he had resided in the State at least two years, in 
the County one year, and in the precinct or ward three 
months at the date of the next general election after 
July 5, 1945, the date on which he offered to register 
(Alabama Constitution 1901, Sections 178 and 181).

3. The class whom the plaintiff claimed to represent 
was defined by paragraph 4 of the amended complaint
(R. 3) as:

“The rights involved are of common and general 
interest to the members of the class represented by 
the plaintiff, namely, N e g r o  c itiz en s  o f  th e  U nited  
S ta tes  an d  r e s id e n ts  an d  c itiz en s  o f  th e  S ta te  o f  A la­
bam a and  M a co n  C o u n ty , A la b a m a  w h o  p o ss ess  all of 
th e  q u a lifica tio n s  to  b e  r e g is te r e d  as v o te r s  an d  they  
p o ss ess  n o n e  o f  th e  d isq u a lifica tion s  o f  v o te r s . Mem-



3

bers of this class are so numerous as to make it im­
practicable to bring them all before the Court and 
for this reason plaintiff prosecutes this action in his 
own behalf and in behalf of the class without speci­
fically naming the said members herein.” (Italics 
ours.)

Though the point was expressly raised by grounds 42 
(R. 19) and 48 (R. 20) of the motion to dismiss, there 
was never any averment that any of the parties in whose 
behalf the plaintiff sued had made application to register, 
or had been denied registration.

BRIEF OF THE ARGUMENT.

We shall, so far as practicable, discuss the legal proposi­
tions in the same order in which they are argued in Ap­
pellant’s brief.

I.

The District Court properly declined to take jurisdic­
tion because th e  p la in tiff  had  n o t  ex h a u s ted  his ad m in is­

tra tiv e  r e m e d ie s  u n d e r  th e  S ta te  law .

The opinion of the learned District Judge is so clear 
and, we submit, conclusive, on this point, that we respect­
fully request the members of this Court to re-read par­
ticularly that part of the opinion appearing on pages 33, 
34 and 35 of the Record.

In the case of L a n e  v . W ilso n , 307 U. S. 268, 59 S. Ct. 
872, 83 L. ed. 1281, relied on by Appellant, Mr. Justice 
Frankfurter, speaking for the Court, said at page 274:



4

“Normally, the state legislative process, sometimes 
exercised through administrative powers conferred 
in state courts, must be completed before resort to 
the federal courts can be had.”

In that case, however, the Supreme Court held that the 
state procedure provided by the Oklahoma statute was a 
conventional judicial proceeding and, of course, resort to 
a federal court may be had without exhausting the judi­
cial remedies of state courts. On the other hand, this 
Court in T ru d ea u  v . B a rn es  (5th C. C. A.) 65 F. 2d 563, 
564; certiorari denied 290 U. S. 659, 78 L. ed. 571, held 
that the remedy afforded by the Louisiana Constitution 
was an administrative remedy which the plaintiff was 
bound to exhaust before going into the Federal Court to 
sue for damages.

From those decisions involving the registration of 
electors as well as from the uniform holdings of the 
Supreme Court, there can be no doubt that if the plain­
tiffs remedy by appeal provided by State law is an ad­
ministrative remedy, then the plaintiff must exhaust 
that remedy before suing for damages in the Federal 
Court.

P r e n t is  v . A . C. L . R. C o., 211 U. S. 210, 226, 53 
L . ed . 150, 159.

H e n d ers o n  W a te r  C o. v . C o rp o ra tio n  C om m ission , 
269 U . S. 278, 70 L . ed . 273.

K e l l e r  v . P o to m a c  E lec . P o w e r  C o ., 261 U. S. 428, 
67 L . ed . 731.

P o r t e r  v . I n v e s to r ’s S y n d ica te , 286 U. S. 461, 76 
L . ed . 1226.

S a m e ca se , 287 U. S. 346, 77 L . ed . 354.



5

Appellant does not dispute that proposition of law, but 
contends that the remedy provided under Section 35 of 
Title 17 of the Alabama Code of 1940 is judicial rather 
than administrative, and that is the chief point of differ­
ence between us. A la ba m a  C o d e  1940, T itle  17, S e c t io n  35 
reads as follows:

“Sec. 35. Right of appeal from registration.—Any 
person to whom registration is denied shall have the 
right of appeal, without giving security for costs, 
within thirty days after such denial, by filing a peti­
tion in the circuit court or court of like jurisdiction 
held for the county in which he or she seeks to 
register, to have his or her qualifications as an elector 
determined. Upon the filing of the petition, the 
clerk of the court shall give notice thereof to the 
solicitor authorized to represent the state in said 
county, who shall appear and defend against the 
petition on behalf of the state. Upon such trial the 
court shall charge the jury only as to what consti­
tutes the qualifications that entitle the applicant to 
become an elector at the time he or she applied 
for registration, and the jury shall determine the 
weight and effect of the evidence, and return a ver­
dict. From the judgment rendered an appeal will lie 
to the supreme court in favor of the petitioner to be 
taken within thirty days. Final judgment in favor 
of the petitioner shall entitle him or her to regis­
tration as of the date of his or her application to the 
registrars.”

That statute is a v e r b a t im  copy from the sixth sub­
division of Section 186 of the 1901 Constitution of Ala­
bama having to do with the registration of electors until 
the first day of January, 1903, and which is copied at the 
bottom of page 47 and top of page 48 of appellant’s brief.



6

There could, therefore, hardly be any claim that the statute 
is unconstitutional and, as the District Judge noted (R. 34) 
the appellant made and makes no such claim.

The question is whether the remedy of appeal provided 
by the Alabama statute is administrative or judicial. 
W h e th e r  an  a c t  is ju d ic ia l o r  a d m in is tra tiv e  is determ ined  
b y  its  ch a ra c te r  and  n o t  b y  th e  ch a ra c te r  o f  th e  a gen t.

E x  p. V irg in ia , 100 U. S. 339, 25 L . ed . 676, 680.
P ren tis  v . A . C. L . R . C o ., 211 U. S. 226, 53 L. ed. 

159.
K e l l e r  v . P o to m a c  E lec . P o w e r  C o., 261 U. S. 428, 61 

L . ed . 731.
P o r te r  v . I n v e s to r ’s S y n d ica te , 286 U. S. 461, 76 L. 

ed . 1226.
S a m e ca se , 287 U. S. 346, 77 L . ed . 354.
P a c if ic  T e le p h o n e  C o. v . K u y k en d a ll ,  265 U. S. 196, 

68 L . ed . 975.

It is respectfully but earnestly submitted that a reading 
of the opinions in the six cases just cited will make clear 
the distinction between L a n e  v . W ils o n , su p ra , and Tru­

d ea u  v . B a rn es , supra .

The Oklahoma statute considered in L a n e  v . W ilson  is 
copied on pages 52 and 53 of Appellant’s brief. It pro­
vides that:

“Wherever an elector is refused registration by any 
registration officer su ch  a ctio n  m a y  b e  r e v iew ed  by 
the district court of the county by the aggrieved 
elector by his filing within ten days a petition with 
the Clerk of said court, whereupon su m m o n s shall be



7

issu ed  to  said  r e g is tra r  requiring him to answer with­
in ten days, and the district court shall be a (give 
an) expeditious hearing and from his judgment an 
appeal will lie at the instance of e i th e r  p a r ty  to the 
Supreme Court of the State as in  c iv il  ca ses .”  (Italics 
ours.)

The appeal, under the Oklahoma statute, is simply a 
“ r e v ie w ”  of the action of the registration officer; the 
aggrieved elector and the registrar are the two p a rties  
to the proceeding; the appeal to the Supreme Court lies 
“ as in  c iv il  ca s es ” . In Oklahoma, neither the District 
Court nor the Supreme Court can grant any affirmative 
relief, or can go any further than to “ r e v i e w ”  the action 
of the registration officer.

The provision of the Constitution of Louisiana con­
sidered in T ru d ea u  v . B a rn es , su pra , is copied on page 51 
of Appellant’s brief. Under that provision a person denied 
registration “ shall have the right to a p p ly  fo r  r e l i e f  to 
the district court” ; the verdict there “ shall be a fin a l d e ­

term ination  of the cause” . (Italics ours.)

In Oklahoma, the district court simply r e v ie w s  the ac­
tion of the registrar, apparently either to affirm that 
action or to reverse or quash the action and send the ap­
plication back to the registrar for further proceeding. In 
Louisiana, the district court grants r e l ie f , and the ver­
dict there is a fin a l d e te rm in a tio n  of the cause. The 
“r ev iew ”  of the Oklahoma district court is clearly a judi­
cial proceeding. The application for “ r e l i e f ”  in the Louis­
iana district court is clearly an administrative proceeding. 
There is no conflict between L a n e  v . W ils o n , su p ra , and



8

T ru d ea u  v . B a rn es , su pra . Both decisions are sound and 
a clear understanding of the distinction between them 
points unerringly to the proper decision of the case at 
bar.

In Alabama, a person denied registration may appeal to 
the Circuit Court “ w ith o u t  g iv in g  s e c u r ity  fo r  c o s ts ” ; the 
appeal is by petition “ to  h a v e  his o r  h e r  q u a lifica tion s  as 
an e l e c to r  d e te r m in e d ” ; the only charge to the jury is 
“as to w h a t c o n s titu te  th e  q u a lifica tion s  th a t e n t i t le  the 
a p p lica n t to  b e c o m e  an e l e c to r  at th e  t im e  h e  o r  she 
a p p lied  fo r  r e g is tr a tio n ” ; there is no review of the pro­
ceedings already had before the registrar, but the jury 
returns a verdict upon the single issue of whether the 
applicant possessed the qualifications that entitle him to 
become an elector at the time he applied for registration; 
“final judgment in favor of the petitioner shall entitle 
h im  o r  h e r  to  r e g is tr a tio n  as of the date of his or her 
application to the registrars.”

In Alabama the State has no right of appeal where the 
applicant is granted registration.

S ta te  v . C ren sh a w , 138 A la . 506, 35 S o. 456.

That is true also under the Louisiana Constitution, but 
not under the Oklahoma statute which gives “ either 
p a r ty ”  the right to appeal to the Supreme Court of that 
State.

Clearly, we submit, under all of the foregoing authori­
ties, the remedy provided by the Alabama Legislature is 
administrative, and the appellant must avail himself of



9

that administrative remedy before coming into the Federal 
Court.

The same result follows also from a principle of sub­
stantive law which we shall argue in a subsequent divi­
sion of this brief, viz: action of the registrars taken not in 
accordance with, but rather in defiance of their duties 
under Alabama law cannot be deemed the action of the 
State, certainly not until the applicant has pursued his 
administrative remedies provided by state law.

n.
For appellant to be entitled to relief, a ctio n  b y  th e  

State is n ec e s s a ry .

Title 8, Section 43 and subdivision 14 of Section 41, 
United States Code, provide for actions or suits for de­
privation of civil rights “under color of any statute, ordi­
nance, regulation, custom, or usage of any state or terri­
tory.”

The Fourteenth and Fifteenth Amendments to the Con­
stitution of the United States protect only against action 
by the State, and when the deprivation claimed is of a 
right secured by those amendments, action by the State 
must be established.

S cre w s  v . U n ited  S ta tes , 89 L . ed . 1029 ( A d v . O p s .) .

On the other hand, the right to vote in Congressional 
elections is provided by Article 1, Sections 2 and 4 of the 
Constitution, and by the 17th Amendment.



10

“And since the Constitutional command is without 
restriction or limitation, the right, unlike those guar­
anteed by the 14th and 15th amendments, is secured 
against the actions of individuals as well as of 
States.”

U. S. v . C la ssic , 313 U. S. 299, 315, 85 L . ed . 1368,
1377.

S e e  also: F e l ix  v . U. S., (5 th  C . C. A . )  186 F ed . 685, 
108 C . C. A . 503.

V . S. v . A e z e l ,  219 F ed . 917, 931.
E x  p . Y a r b r o u g h , 110 U. S. 651, 28 L . ed . 274.

To think clearly upon the subject, we must have a clear 
understanding of just what constitutional right the appel­
lant can claim under each provision of the Constitution.

“ T h e  r ig h t o f  q u a lified  v o te r s  to cast their ballots and 
have them counted at Congressional elections” (Italics 
ours) is the right secured by the Constitution of the 
United States insofar as Congressional elections are con­
cerned.

U. S. v . C la ssic , 313 U. S. 299, 315, 85 L . ed . 1368, 
1376.

E x  p . Y a r b r o u g h , 110 U. S. 651, 28 L . ed . 274.

In the C la ssic  case the charge was that the defendants 
wilfully altered and falsely counted and certified the 
ballots of votes cast in a primary election for members 
of Congress. There was no question of the qualification of 
the voters. Every case holding that the right to vote for a 
member of Congress is fundamentally based upon the Con­
stitution of the United States has been a case where a 

f q u a lified  voter undertook to cast his ballot, or complained 
that his ballot had not been properly counted or certified.



11

It has never been held that the right secured by the Con­
stitution of the United States extends to the qualifications 
of the voters.

To be qualified under Article 1, Sections 2 and 4, or 
under the 17th Amendment, “ the electors in each State 
shall have the qualifications requisite for electors of the 
most numerous branch of the State Legislatures” . Hence 
the right to vote for members of Congress or of the Senate 
of the United States is dependent upon the possession of 
such qualifications by the elector.

Whether registration merely provides a means of fur­
nishing proof of the required qualifications, or is itself one 
of the qualifications of an elector within the meaning of 
Article 1, Section 2, and Amendment 17 of the United 
States Constitution, whether direct legislation by Con­
gress providing for the registration of voters in Congres­
sional elections would be constitutional—these questions 
are .not here presented.

See C o m m o n w ea lth , e x  re l. D im m it v . O ’C o n n e ll, 
298 K y .  44, 181 S. W. (2 d )  691, 696 (1 9 4 4 ).

18 A m . J u r isp ru d en ce , 232, E le c t io n s  S ec . 84.

Certainly in the absence of legislation by Congress, it 
cannot be debated that compliance with the state law as 
to registration is a prerequisite to the right to vote for 
members of Congress.

For one to insist on his right to vote for a member of 
Congress “he must not only have the requisite qualifica­
tions of an elector, but he must have been registered” . 

W ile y  v . S in k ler , 179 U. S. 58, 66, 45 L . ed . 84, 89.



12

The appellant, until he has become registered as a 
qualified elector, is not in position to complain that he 
is deprived of the right of a qualified voter to vote in 
Congressional elections secured by the Constitution of the 
United States.

To hold otherwise would, we submit, result in unwar­
ranted interference with the right of a State to ascertain 
the qualifications of its own electors (subject, of course, to 
the requirement of the 15th Amendment that the State 
not discriminate on account of race, color, or previous 
condition of servitude). If the civil action is here main­
tainable, and if the same act be done wilfully, then the 
Federal Government may intervene by criminal prosecu­
tion.

S c r e w s  v . U n ited  S ta tes , 89 L . ed . 1029 ( A d v . O ps.).

Thus, under appellant’s contention, the United States 
might control the in d iv id u a l co n d u c t  of State Registrars in 
passing on the qualifications of electors for State offices.

Registration as an elector is one of the qualifications 
to vote in “ any election by the people” , State, County or 
municipal.

A la b a m a  C o n s titu tio n  1901, S e c t io n  178.

Privilege to vote in a State is within the jurisdiction of 
the State so long as there is no discrimination.

P o p e  v . W illia m s, 193 U. S. 621, 632, 48 L . ed . 817, 
822.

B r e e d lo v e  v . S u ttles , 302 U. S. 277, 82 L . ed . 252.



13

Only indirectly (and possibly only in the absence of 
Congressional action on the subject) do the actions of 
the State Registrars ascertain the qualification of an 
elector to vote in a Congressional election.

“The States in prescribing the qualifications of 
voters for the most numerous branch of their own 
Legislatures, do not do this with reference to the 
election for members of Congress. Nor can they 
prescribe the qualification for voters for those eo  
n o m in e . They define who are to vote for the popu­
lar branch of their own Legislature, and the Con­
stitution of the United States says the same persons 
shall vote for members of Congress in that State. It 
adopts the qualification thus furnished as the qualifi­
cation of its own electors for members of Congress.”

E x  p. Y a r b r o u g h , 110 U. S. 651, 28 L . ed . 274, 278.
F e l i x  v . U n ited  S ta tes  (1911 , 5 C. C. A . )  186 F ed .

685, 689. W  /

Article 1, Section 2 has been in the Constitution of the V V  'J 
United States since its adoption, but has never been held / 
to confer any right upon a Negro possessing the necessary >'■'
qualifications to vote in Congressional elections. Until 
the adoption of the 15th Amendment negroes were openly 
discriminated against not only by Southern but by North­
ern States. “Vermont, Massachusetts, New Hampshire and 
New York alone before 1861 did not disfranchise them. 
* * * As late as 1868 most of the Northern States gave 
them no political privileges.”

T h e  E n c y c lo p e d ia  A m er ica n a , V o l. 27, p a g e  467.

The Fifteenth Amendment conferred a new constitu­
tional right.



14

The Fifteenth Amendment “has invested the citizens 
of the United States with a new constitutional right which 
is within the protecting power of Congress. T h at r igh t  
is an  e x e m p t io n  fr o m  d iscr im in a tion  in  th e  e x e r c i s e  of the 
e l e c t iv e  fra n ch is e  o n  a cco u n t o f  ra ce , c o lo r  o r  p rev io u s  
co n d itio n  o f  s e r v itu d e .”  (Italics ours.)

U n ited  S ta tes  v . R e e s e ,  92 U. S. 218, 23 L . ed . 564.
E x  p . Y a r b r o u g h , 110 U. S. 651, 28 L . ed . 274, 278.
See L a n e  v . W ilso n , 307 U. S. 273, 274, 83 L. ed.

1281, 1287.

It is by virtue of this new right invested by the Fifteenth 
Amendment and not by virtue of Article 1, Section 2, or 
of any other part of the original Constitution that the 
plaintiff has a right to complain of discrimination in as­
certaining his qualification to vote even in Congressional 
elections. That consideration shows the significance of 
the statement of Mr. Justice Frankfurter speaking for the 
Court in the case of L a n e  v . W ilso n , 207 U. S. 268, 274, 83 
L. ed. 1281, 1287:

“The basis of this action is inequality of treat­
ment, though under color of law, not denial of the 
right to vote.”

The 14th and 15th Amendments protect only against 
action by the State. Can action of the Board of Registrars 
taken in defiance of the duties of the Board under Ala­
bama law be deemed the action of the State? Upon that 
question, the cases seem to be divided.

See B a r n e y  v . N . Y .,  193 U. S. 430, 48 L . ed . 737.
R a y m o n d  v . C h ica g o  U n ion  T ra c tio n  C o., 207 U. S.

20, 41, 52 L . ed . 89.



15

S n o w d e n  v . H u g h es , 321 U. S. 1, 13, 17, 88 L . ed .
497, 505, 507 (collecting cases).

S c r e w s  v . U . S., 89 L . ed , 1029 (A d v .  O p s .) .

No case, however, has gone so far as to hold that when 
the State law' is fair and constitutional, and the State 
has provided a clear administrative remedy, free from 
expense, for the enforcement of that law, that the action 
of subordinate officers contrary to the State law can be 
considered the action of the State itself until such ad­
ministrative remedy has been exhausted.

Appellant relies upon the case of L a n e  v . W ils o n , 307 
U. S. 268, 59 S. Ct. 872, 83 L. ed. 1281, and on pages 9 and 
10 of his brief severely criticizes the opinion of the Dis­
trict Judge for distinguishing this proceeding from that 
case on the ground that in that case the “law itself worked 
discrimination against the colored race” . Mr. Justice 
Frankfurter, wdio wrote the opinion in L a n e  v . W ilso n , 
supra, drew a very similar distinction in his concurring 
opinion in S n o w d en  v . H u g h es , 321 U. S. 1, 17, 88 L. ed. 
497, 507, 508:

“I am clear, therefore, that the action of the Can­
vassing Board taken, as the plaintiff himself ac­
knowledges, in defiance of the duty of that Board 
under Illinois law, cannot be deemed the action of 
the State, certainly not until the highest court of the 
State confirms such action and thereby makes it the 
law of the State. * * * And the case is wholly un­
like Lane v. Wilson, 307 U. S. 268, 83 L. ed. 1281, 59 
S. Ct. 872, in which the election officials acted not 
in defiance of a statute of a state but under its au­
thority.”



16

ID.

The appellant may not properly maintain this suit as a 
class action. The opinion of the learned District Judge 
from the bottom of page 27 of the record to the top of 
page 30 is such a complete refutation of the attempt to 
maintain this suit as a class action, that we respectfully 
request the members of this Court to re-read that part of 
the opinion.

In addition we call attention that the other parties on 
whose behalf the plaintiff attempts to sue, are not even 
similarly situated to the plaintiff. The plaintiff had ap­
plied for and been denied registration. There was no 
averment that any of the other parties in whose behalf 
the plaintiff sued had made application to register, or had 
been denied registration. The District Court had no juris­
diction to register electors ab in itio , or to pass upon their 
qualifications when those qualifications had not been 
submitted to a Board of Registrars provided by the State 
Legislature.

“ Under the doctrine approved in Prentis v. At­
lantic Coast Line Co., 211 U. S. 210, 231, 53 L. ed. 
150, 160, 29 Sup. Ct. Rep. 67, and Henderson Water 
Co. v. Corporation Commission, 269 U. S. 278, 70 L. ed. 
273, 46 Sup. Ct. Rep. 112, the Interborough Company 
could not have resorted to a federal court without 
first applying to the commission as prescribed by 
the statute.”

G ilch r is t  v . I n te r b o r o u g h  R a p id  T ra n sit C o., 279 
U. S. 159, 208, 73 L . ed . 652, 664.



17

It is necessary, we submit, for the members of the 
class to want to register and to evidence that desire by 
making application, and for such application to be denied. 
Until then there would be no parties similarly situated to 
plaintiff, and hence no class on whose behalf the suit 
could be filed.

Further, to represent the class for which he sues, the 
plaintiff must fairly insure the adequate representation 
of all of the class. Rule 23 (a), Rules of Civil Procedure. 
The single plaintiff, with his own individual claim for 
damages, does not fairly insure such representation. This 
plaintiff has a full, adequate and complete remedy by ap­
peal under the State law to have his qualifications to 
register as an elector determined. If the defendants are 
in fact guilty of establishing and maintaining the unlawful 
policy, custom, usage or practice charged in the complaint, 
it would seem that more than one applicant for registra­
tion would join here as a plaintiff so as to insure the 
adequate representation of the class.

Further, before coming into the Federal Court, the mem­
bers of the alleged class must have exhausted their efforts 
under the State administrative procedure to have the 
alleged iniquitous policy, custom, usage or practice dis­
continued. Certainly they must have remonstrated with 
the Board of Registrars, and, we submit, they should 
further have gone to the Governor, Auditor and Commis­
sioner of Agriculture and Industries, who have the right 
to remove the registrars at will.

C od e 1940, T it le  17, S ecs . 21 an d  22.



18

At least until they have taken such sensible and usual 
steps to correct an alleged prejudicial administrative pro­
cedure, they have no right to come into the Federal Court 
seeking injunctive relief.

IV.

No case is made for a declaratory judgment, nor for 
consequential relief. Such relief is sought on behalf 
of the alleged class, and if we are correct in arguing that 
this action is not maintainable as a class action, then a 
declaratory judgment, injunction, etc. are not proper 
remedies.

The effect of the declaratory judgment prayed for 
would be merely to declare the substance of the 14th and 
15th Amendments to be the law of the land, a result 
which no sane person could dispute, and as to which there 
is no “actual controversy” . 28 U. S. C. 400.

The statute (Title 28, U. S. C., Sec. 41(14)) allows a 
suit in equity only when that is the proper proceeding 
for redress, and such a suit is not available to supervise 
State electoral processes.

G ile s  v . H a rris , 189 U. S. 475, 47 L . ed . 909.

The defendants are sued as individuals (R. 1, 2, 4, 5) 
for the recovery of damages. If either or both should 
cease to be members of the Board of Registrars, their 
successors in office would not succeed to their liability, 
if any, for damages. The relief sought is in a double 
aspect: first, for the recovery of damages from the de­
fendants, second, for relief for a class against alleged 
discrimination by the Board of Registrars.



19

No relief can be granted by way of declaratory judg­
ment or consequential relief in this case because the suit 
is not against the Board of Registrars as a legal entity, 
not even against the defendants in their capacity as Regis­
trars, but simply against the defendants individually.

The Board of Registrars is a legal entity and acts as a 
body. Its powers and duties cannot be exercised by in­
dividual members separately. The Board’s acts are official 
only when done by the members convened in regular ses­
sion. 42 Am. Juris., Public Administrative Law, Sections 
72 and 74. In making orders to carry out the decree of 
the Court, such orders must be addressed to and be en- 
forcible against the Board of Registrars for it is the only 
body or legal person authorized to perform the duties 
required by the decree.

Grounds of motion numbers 2, 5, 6, 7, 8 and 21 raise 
the foregoing principles of law.

Further, the District Court, in the exercise of a sound 
judicial discretion had a right to decline to exercise juris­
diction to enter a declaratory judgment.

B rillh a rt v . E x c e s s  Ins. C o., 316 V . S. 491, 86 L  ed  
1620.

U. S. C. A . T itle  28, S ec . 400, N o tes  25 an d  26.

“The Court will refuse a declaration where a spe­
cial statutory remedy has been provided.”

A m e r ic a n  A u to  C o. v . F r eu n d t  (7 th  C. C. A . )  103 
F ed . 2d  613, 617, 618.

The plaintiff and any others denied registration had a 
right of appeal to the Circuit Court, and then to the



20

Supreme Court of the State without even giving security 
for costs.

A la b a m a  C o d e  1940, T it le  17, S ec. 35.

V.

The appellees are not liable to the appellant for dam­
ages, for the reasons already argued under Subdivisions 
I and II of this argument, and for the following additional 
reasons:

PLAINTIFF’S CLAIM FOR RELIEF IS BASED ON 
ALLEGATIONS OF LEGAL CONCLUSIONS.

The office of pleading is to inform the court and the 
parties of facts, conditions; the Court that it may declare 
the law on the facts, and the parties that they may know 
what to meet by their proof.

H ill v . M en d en h a ll, 88 U. S. 453.

The proof must conform to the allegations, and with­
out allegations testimony cannot be admitted. A pleading 
must state facts, and not mere conclusions; and a want of 
definite allegations renders pleadings subject to demurrer. 
General statements that a statute is in violation of the 
commerce clause of the Federal Constitution, is a direct 
burden on interstate commerce, and injures the pleader, 
is a mere conclusion, and not a statement of facts.

S o u th ern  R a ilw a y  C o . v . K in g , 211 U. S. 525.

An allegation attacking the validity of a tax deed that 
the sales were not sufficiently advertised is a conclusion 
of law.

S tra u s v . F o x w o r th ,  231 U. S. 162.



21

In stating facts the pleader must allege all the facts 
necessary to show, as a matter of law, that they were 
qualified voters and, to this end, it is necessary that they 
should negative all disqualifications provided by law.

M u r p h y  v . R a m sey , 114, U. S. 15.

The plaintiff must specifically allege fa c ts  from which 
the Court can determine that there has been a violation 
of the law with resultant damages proximately caused 
thereby to the defendant.

P a ck a g e  C lo th ie r  C o rp o ra tio n  v . S ea lr ig h t C o., 4 
F ed . R u les  a n d  D ec is io n s , 114, 118.

P a c if ic  S ta tes  B o x  and  B a s k e t  C o. v . W h ite ,  296 
U. S. 185.

Grounds of motion numbers 11, 18, 19, 23, 25, 26, 27, 28, 
29, 30 and 31 present the question of law here involved.

QUALIFICATIONS AS TO RESIDENCE.

The right to register as electors is restricted to “the 
following persons, and no others, who, if their place of 
residence shall remain unchanged, will have, at the date 
of the next general election, the qualifications as to resi­
dence prescribed in Section 178 of the Constitution” .

A la b a m a  C o n s titu tio n  1901, S ec . 181.

Section 178 of the Alabama Constitution referred to pro­
vides in part: “To entitle a person to vote at any election 
by the people, he shall have resided in the State at least 
two years, in the county one year, and in the precinct or



22

ward three months, immediately preceding the election 
at which he offers to vote, etc.” The complaint avers only 
that the plaintiff is a taxpayer of the State of Alabama 
(Par. 6, R. 4), and resides in Macon County (Par. 7, R. 5), 
it does not aver even by way of conclusion that the plain­
tiff has all the qualifications of an elector, but only “by 
reason of the allegation herein above made” (Par. 6, R. 4), 
or “by reason of the said fact hereinbefore made” (Par. 
10, R. 6).

Ground 36 of the motion (R. 17) among others pre­
sented the question here involved.



23

CONCLUSION.

We would present no brief in support of any effort to 
keep Negroes from voting when they are qualified under 
the Constitution and laws. If appellees are guilty of mak­
ing any such effort, redress should be sought in the manner 
prescribed by law. It is only by observing the law and 
the Constitution, that appellant and those similarly situated 
can hope to enjoy their benefits and blessings.

Wherefore, it is respectfully submitted that this Court 
should affirm the judgment of the district court dismissing 
appellant’s amended complaint.

Respectfully submitted,

WILLIAM N. McQUEEN,
Attorney General of the State of 

Alabama, Montgomery, Alabama,
W. W. CALLAHAN,

Asst. Attorney General of the State 
of Alabama, Montgomery, Ala­
bama,

RICHARD T. RIVES,
107% Washington Street, 

Montgomery, Alabama,
Attorneys for Appellees.

HILL, HILL, WHITING & RIVES,
Montgomery, Alabama,

E. C. BOSWELL,
Geneva, Alabama,

W. C. HARE,
Tuskogee, Alabama,

Of Counsel.







E. S . U PTO N  P R IN T IN G  C O ..  N EW  OR LE AN S— 83726



IN THE

luttrfc States Ctrrmt Court of Appeals
F oe the F ifth Circuit

No. 11,538

WILLIAM P. MITCHELL,
A p p e l la n t ,

v e r s u s

MRS. GEORGE C. WRIGHT, et al.,
A p p e l le e s .

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF ALABAMA

BRIEF FOR APPELLANT

A rthur D. S hores,
1630 Fourth Avenue, No., 
Birmingham 3, Ala.

W illiam II. H astie,
615 F. Street, N. W., 
Washington, D. C.

T hurgood M arshall,
20 West 40th Street,
New York, N. Y.

A t to r n e y s  f o r  A p p e lla n t .
Robert L. Carter,

New York, N. Y.
O f C ou n sel.

W





TABLE OF CONTENTS

PAGE
Statement of Case_________________________  p

Statement of Facts___________________________________  2

Specifications of Error_______________________________ 3
Argument __________________________  _ 5

I Federal Courts Have Jurisdiction of the Present 
Cause of Action__________________________________ 5

A. Section 41 (11) and (14) of Title 28 of the
United States Code Gives the Federal Courts 
Jurisdiction of Appellant’s Cause of Action...._  5
B. Appellant’s Failure to Pursue or Exhaust
His Rights Under State Law Does not Oust the 
Federal Courts of Jurisdiction_________________ 7

n  Appellees’ Refusal to Register Appellant Solely 
Because of His Race or Color Violated the Con­
stitution and Laws of the United States________  13
A. The Right to Vote is secured by the Fifteenth 
Amendment Against Restrictions Based on Race
or C olor______________________________________  13
B. The Right of Qualified Electors of the Sev­
eral States to Choose Members of Congress Is 
Secured and Protected by Article I, Section 2 
and by the Seventeenth Amendment of the 
United States Constitution____________________  14
C. The Policy of Requiring Negro Applicants
for Registration to Submit to Tests Not Re­
quired of Other Applicants Violates the Four­
teenth Amendment ____________________________ 16

III Appellant May Properly Maintain This Suit as a 
Class Action Under Rule 23 (a) of the Federal 
Rules of Civil Procedure________________________  19



11
PAGE

IV  Appellant May Properly Seek a Declaratory Judg­
ment —

V  Action of Appellees in Refusing to Register Appel­
lant Makes them Liable to the Appellant for Dam­
ages Under the Provisions of Sections 31 and 43 of 
Title 8 of the United States Code--------------------------

Conclusion-----------------------------------------------------------------
Appendix A  --------------------------------------------------------------
Appendix B -------------------------------------------------------------
Appendix C --------------------------------------------------------------
Appendix D -------------------------------------------------------------

23

27
28 
31 
41
51
52

Table of Cases.

_Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 57
S. Ct. 461, 81 L. Ed. 617 (1937)-----------------------------23,

^ A lston  v. School Board, 112 F. (2d) 992 (C. C. A. 4th,
1940) _____________________________ ______ _______ 22>

Atwood v. Natl. Bank of Lima, 115 F. (2d) 861 (C. C. 
A. 6th, 1940)-------------------------- ------------------------------

V
24

/
26

V

,—  Bacon v. Rutland R. Co., 232 U. S. 134, 34 S. Ct. 283, 58
L. Ed. 538 (1914)_________________________________

t^Berry v. Davis, 15 F. (2d) 488 (C. C. A. 8th, 1926)------
__-Breedlove v. Suttles, 302 U. S. 277, 58 S. Ct. 205, 82 L.

Ed. 252 (1937)-------------- ---------------------------------------

8
6/

Chew v. First Presbyterian Church of Wilmington, 237 
Fed. 219 (D. C. Del., 1916)

14

20 J
v/Clarke et al. v. Goldman, 124 F. (2d) 491 (C. C. A. 2nd,

1941) ------------------------------ ------------------------------------
./Cloyes v. Middlebury Electric Co., 80 Vt. 109, 66 Atl.

1039 (1907)

22# '

22 v/
\/ Cromwell v. Hillsborough T. P., Somerset County, N. 

J., 149 F. (2d) 617 (C. C. A. 3d, 1945), aff’d. U. S. 
Supreme Court, Oct. Term 1945, decided Jan. -9, 
1946 ___________________ —------------------------------------- 26J .



I ll

PAGE

V Davis v. Cook, 55 F. Supp. 1004 (N. D. Ga., 1944)__  22, 26
/Devoe v. United States, 103 F. (2d) 584 (C. C. A. 8th, ’ /

1939) ______________________________  ’ 15 Z
Ex Parte Siebold, 100 U. S. 371, 25 L. Ed. 717 (1879)__ 15 —
Ex Parte Virginia, 100 U. S. 346 25 L. Ed. 676 (1880).... 16 ----- -
Ex Parte Yarbrough, 110 U. S. 651, 4 S. Ct, 152, 28 L.

Ed. 274 (1884)___________________ ._______________14> 15------
/Farmers Co.-Op. Oil Co. v. Socony Vacuum Oil Oo. Inc , < /

133 F. (2d) 101 (C. C. A. 8th, 1942)________________ 22
Gilchrist v. Interborough Rapid Transit Co., 279 U S

159, 49 S. Ct. 282, 73 L. Ed. 652 (1929)____________  9 ___
Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926, 59

L. Ed. 1340 (1915)------------------------------------------- 6,13,14 -----
/  Hawarden v. Youghiogheny & L. Coal Co., I l l  Wis. /

545, 87 N. W. 472 (1901)_________________________20, 22 ̂
Henderson Water Co. v. Corporation Commission, 269

U. S. 279, 46 S. Ct. 112, 70 L. Ed. 273 (1925)_______  9 -------
Home Telephone & Telegraph Co. v. Los Angeles, 227
i U. S. 278, 33 St. Ct. 312, 57 L. Ed. 510 (1913).........._. 17 --- -
Hunter v. Southern Indemnity Underwriters, 47 F.

Supp. 242 (E. D. Ky., 1942)_______________________  20V
Independence Shares Corp. et al. v. Deckert, et a l ,

108 F. (2d) 51 (C. C. A. 3rd, 1939)...5..b.iuAvWl„„20, 22 ^  
Iowa-Des Moines Natl. Bank v. Bennett, 284 U. S. 239
✓  52 S. Ct. 133, 76 L. Ed. 265 (1931)_____________ 17 - " -

YKeavy v. Anderson, 2 F. R. D. 19 (R. I., 1941)____  22 ' V
vKvello v. Lisbon, 38 N. D. 71, 164 £T. W. 305 (1917)_ 22 v /

Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L. Ed.
r 1281 (1939) -------------------------------- 6, 8, 9,10,12,13,14, 28-------

/McDaniel v. Board of Public Instruction, 39 F. Supp.
638 (N. D. Fla., 1941)_________________________  22, 26 ^

Myers v. Anderson, 238 U. S. 368, 35 S. Ct. 932, 59 L.
Ed. 1349 (1915)-----------------------------------------------13,14,28 -----

Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300, 58 
S. Ct. 199, 82 L. Ed. 276 (1937)_____________________  8

/ ]

/L

Natl. Hairdressers & Cosmetologists Assn. Inc. v. Phil.
_ Co., 41 F. Supp. 701 (D. C. Del., 1941)____________ 20, 22

Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed.
984 (1932) ------------------------------------------- -----------------6, 19 -J-



IV
PAGE

Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed.
759 (1927) _______________________________________ 6>19

AOppenheimer, et al. v. F. J. Young & Co. Inc., 144 F.
V  (2d) 387 (C. C. A. 2d, 1944)--------------------------------- 20, 22 V

Pacific Telephone & Telegraph Co. v. Kuykendall, 265
U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975 (1924)------8, 9,10

Porter v. Investors Syndicate, 286 U. S. 461, 52 S. Ct.
617, 76 L. Ed. 1226 (1932) aff’d on rehearing 287
U. S. 346, 53 S. Ct. 132, 77 L. Ed. 354 (1932)---------  8 “

Prentiss v. Atlantic Coast Line Co., 211 U. S. 210, 29
S. Ct. 67, 53 L. Ed. 150 (1908)------------------------------  8,9 —-

Railroad & Warehouse Commission Co. v. Duluth Street
R. Co., 273 U. S. 625, 47 S. Ct. 489, 71 L. Ed. 807 _
(1927)___________________________________________  9

V/lSkinner v. Mitchell, 108 Kan. 861, 197 P. 569 (1921)-. 22 V  
Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L.

Ed. 987 (1943)______________________ 13,14,15,18, 21, 28 —
Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed.

497 (1944) ______________________ - --------------------- 19 ~
State Corporation Commission v. Wichita, 290 U. S.

561, 54 S. Ct. 321, 78 L. Ed. 500 (1934)-------------------8,10 -
v/Trade Press Pub. Co. v. Milwaukee Type Union, 180 .

i Wis. 449, 193 N. W. 507 (1923).------------------------------ 22 V
J  Trice Products Corp. v. Anderson Co., 147 F. (2d) 721 >

( C C A  7th, 1945)___________ ____ ____ 24^
s j  Trudeau v. Barnes, 65 F. (2d) 563 (C. C. A. 5th, 1933)..ll, 12 

United States v. Classic, 313 U. S. 299, 61 S. Ct, 1031,
85 L. Ed. 1368 (1941)_____________________ 14,15,18,19

United States v. Mosely, 238 U. S. 383, 35 S. Ct. 904, 59
L. Ed. 1335 (1915)________________________________  14

United States v. Reese, 92 U. S. 214, 23 L. Ed. 563
(1876)______________________________________________13>14 " "

United States v. Sing Tuck, 194 U. S. 161, 24 S. Ct. 621,
. 48 L. Ed. 917 (1904)____________________    9

x/W eeks v. Bareco Oil Co., 125 F. (2d) 84 (C. C. A. 7th, \J
1941)____________________________________________ 20’ 22

Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 84 _
(1899)_________________________________________ —  14

Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. _
/  Ed. 220 (1886)__________________________________ 16>19

■ m  York v. Guaranty Trust Co. of New York, 143 F. (2d) I 
503 (C. C, A . 2d, 1944)___________________________  22V



V

United States Constitution.

Section 2, Article I ------------------------------------------3, 5, 6,13,14
Fourteenth Amendment_______________________ 4, 6,11,16
Fifteenth Amendment ___________________5, 6,11,13,14, 21
Seventeenth Amendment______________________ 5, 6,13,14

Alabama Constitution.
Section 177, Article V III_____________________________ 3
Section 178, Article V III____________________________  3
Section 181, Article V III____________________________  3
Section 182, Article V III_____________________________ 3
Section 184, Article V III____________________________  13
Section 186, Article VIII.__________ _________________3,18

Louisiana Constitution.
Section 5, Article V III______________________________  11

Statutes.
Section 31, Title 8, U. S. Code_____________ 4, 5, 7,15, 27, 28
Section 43, Title 8, U. S. Code_____________ 4, 5, 7,15, 27, 28
Section 400, Title 28, U. S. Code (Section 274, Judicial

Code) ___ - __________________  23 33
Section 41 (11), Title 28, U. S. Code___________________ 4, 5
Section 41 (14), Title 28, U. S. Code__________________4, 5, 6
Section 51, Title 18, U. S. Code_________________________15, 34
Section 54, Title 18, U. S. Code_________________________15, 34
Section 55, Title 18, U. S. Code_______________________ 15
Section 56, Title 18, U. S. Code_______________________ 15
Section 57, Title 18, U. S. Code_______________________ 15
Section 58, Title 18, U. S. Code_______________________ 35
Sections 61a-h, Title 18, U. S. Code___________________  15
Section 21, Title 17, Alabama Code 1940____13,16,18
Section 24, Title 17, Alabama Code 1940________  18
Section 32, Title 17, Alabama Code 1940_   3
Section 35, Title 17, Alabama Code 1940____________ 7, 9,18
26 Okla. Stat. Sec. 74__ _______________________________9, 52

Treatises and Articles.
Anderson, Declaratory Judgments (1940)____________  23
Borchard, Declaratory Judgments (2nd Ed. 1941)_____  23
Wheaton, Representative Suits Involving Numerous

Litigants, 19 Corn L. Q. 399, 407, 433 (1934)_______  20
Moore, Federal Practice (1938)_____________________ 20, 21
18 Am. Jur. 332, Section 62__________________________  23

PAGE





IN THE

■Huttrft Ctrrmt Court of Appralo
F oe the F ifth Circuit.

No. 11,538

W illiam P. Mitchell,
A p p e lla n t ,

v s .

Mrs. George C. W right, et al.,
A p p e l le e s .

appeal from the district court of the united states
FOR THE MIDDLE DISTRICT OF ALABAMA

BRIEF FOR APPELLANT

P A R T  O N E  

Statement of the Case

This is an appeal by the appellant, William P. Mitchell, 
from an order below entered in the District Court of the 
United States for the Middle District of Alabama on 
October 12, 1945 (E. 35) in the above entitled cause on mo­
tion to dismiss appellant’s complaint, as amended.

The amended complaint, filed on October 3, 1945, alleged 
that on July 5, 1945, the defendants below, as the registrars 
of voters of Macon County, Alabama, pursuant to a general 
policy, custom or usage of refusing to register qualified 
Negro electors, refused to register plaintiff below solely



2

on account of race and color (R. 6). It is also alleged that 
the defendants below have maintained a policy, custom or 
usage of denying to plaintiff below and other qualified Negro 
electors, the equal protection of the laws by requiring them 
to submit to tests not required of white electors and re­
fusing to register qualified Negro electors while at the same 
time registering white electors with less qualifications than 
Negro electors (R. 5). In addition the allegation was made 
that this refusal and denial violate the Constitution and 
laws of the United States (R. 3). The complaint prayed 
for a declaratory judgment, a permanent injunction and 
Five Thousand dollars in damages (R. 7). The appellees 
filed a motion to dismiss on August 30, 1945 (R. 9-21), an 
amendment to such motion on September 20, 1945 (R. 21- 
23), and a motion to dismiss the amended complaint on 
October 5, 1945 (R. 23-24). On October 12, 1945, Judge
C. B. K ennaner issued an order sustaining appellees’ 
motion to dismiss and dismissing the complaint as amended 
(R. 35), and filed an opinion setting forth reasons and 
authority for the issuance of the aforesaid order (R. 25-35).

Statement of Facts

The complaint, as amended, alleges that: appellant is 
a colored person of African descent and Negro blood. He 
is a native-born citizen of the United States, a bona fide 
resident of the State of Alabama and is over twenty-one 
years of age. He is a taxpayer of the aforesaid state, pays 
taxes on real property with an assessed evaluation in ex­
cess of three hundred dollars ($300.00) and has paid in full 
the taxes due on said property prior to the time he offered 
to register. He is neither an idiot nor an insane person; 
nor has he been convicted of any felony or crime. He is 
able to read and write any passage in the United States 
Constitution in the English language. In short, appellant



3

possesses all the qualifications and none of the disquali­
fications requisite for registration and voting under the 
Constitution and laws of the United States and of the State 
of Alabama. (The Constitution of United States, Article I, 
Section 2 and the Seventeenth Amendment. The Constitu­
tion of Alabama Sections 177, 178, 181, 182, 186; Alabama 
Code of 1940, Section 32 of Title 17.) All parties to this ac­
tion, both appellant and appellees, are citizens of the United 
States and are residents of and domiciled in the State of 
Alabama (R. 3). Appellees are the duly appointed, quali­
fied and active registrars of voters of Macon County, 
Alabama (R. 4), and were acting in that capacity on July 
5, 1945 when appellant presented himself and made appli­
cation for registration at the Macon County Court House, 
the regular place for the registration of persons qualified 
to register. Appellant filled out the required form for 
registration, produced two persons to vouch for him as re­
quired by appellees, correctly answered such questions as 
were asked in proof of his qualifications and was ready, 
willing and able to give any further information and evi­
dence necessary to entitle him to be registered (R. 6). 
Appellees did not require white persons presenting them­
selves for registration to present other persons to vouch 
for them but registered such persons forthwith (R. 6). 
Appellant, however, was required to wait long hours before 
being permitted to file his application and was required to 
present persons to vouch for him as aforesaid (R. 6) . In 
presenting himself at the Macon County Court House on 
July 5, 1945 to register, appellant was seeking to qualify 
to vote in any forthcoming election of federal or state 
officers (R. 6). Despite the fact that appellant possessed 
those qualifications necessary to entitle him to register, ap­
pellees refused to register appellant solely on the basis of 
his race and color (R. 6).



4

P A R T  T W O

Specifications of Error

The District Court erred:

1. In sustaining appellees’ motion to dismiss and in dis­
missing appellant’s amended complaint.

2. In sustaining appellees’ motion to dismiss the com­
plaint, as amended, on the grounds that appellant could 
not properly bring this action as a class suit under Rule 
23 (a) of the Federal Rules of Civil Procedure.

3. In sustaining appellees’ motion to dismiss on the 
ground that appellant could not properly maintain this suit 
in the form of an action seeking a declaratory judgment.

4. In refusing to issue a permanent injunction forever 
restraining and enjoining the appellees from subjecting 
Negroes to tests not required of white applicants as a pre­
requisite to registration.

5. In refusing to find that the Court had jurisdiction 
under subdivisions 11 and 14 of Section 41 of Title 28, and 
under Sections 31 and 43 of Title 8, of the United States 
Code.

6. In refusing to deny appellees’ motion to dismiss 
since appellant’s complaint clearly shows that appellees 
wrongful acts deprived appellant and all those similarly 
situated of the equal protection of the laws in violation of 
the Fourteenth Amendment to the United States Constitu­
tion.

7. In refusing to deny appellees’ motion to dismiss 
since appellant ’s complaint clearly shows that by virtue of 
appellees’ wrongful acts, appellant and others similarly 
situated, were denied rights secured to all citizens of the



5

United States by Section 2, Article I and by the Seven­
teenth Amendment of the United States Constitution to 
participate in elections of federal officers.

8. In refusing to deny appellees’ motion to dismiss 
since appellant clearly shows in his complaint that the 
acts of appellees deprived appellant of the right to vote 
solely on account of race and color in violation of the F if­
teenth Amendment to the United States Constitution.

9. In refusing to deny appellees’ motion to dismiss 
the complaint since appellant clearly shows in his complaint 
that the appellees’ conduct made them liable to appellant 
in damages under the provisions of Section 31 and 43 of 
Title 8 of the United States Code.

P A R T  T H R E E

ARGUMENT

I

Federal Courts Have Jurisdiction of the Present 
Cause of Action.

A. Section 41 (11 ) and (14 ) of Title 28 of the 
United States Code Gives the Federal Courts 
Jurisdiction of the Appellant’s Cause of Action.

Jurisdiction is invoked pursuant to subdivisions 11 and 
14 of Section 41 of Title 28 of the United States Code. Sub­
division 11 of Section 41 provides:

“ The district courts shall have original jurisdic­
tion as follows: . . . ‘ Of all suits brought by any 
person to recover damages for any injury to his per­
son or property on account of any act done by him, 
under any law of the United States, for the protec­
tion or collection of any of the revenues thereof, or



6

to  e n fo r c e  th e r ig h t o f  c itiz en s  o f  th e U n ited  S ta tes  
to  v o te  in  th e  s e v e r a l  s ta t e s . ’ ”  (Italics ours.)

This is an action to recover damages for the refusal of 
appellees, who are registrars of voters in Macon County, 
Alabama, to register appellant and qualified Negro appli­
cants similarly situated, solely on account of their race and 
color. Since such registration is a prerequisite to the right 
of a citizen of the United States to vote in any election in 
the State of Alabama including the election of federal offi­
cers, appellees’ refusal was an effective deprivation of the 

__voting privileges. As such the federal courts have undis­
puted jurisdiction. N ix o n  v. H ern d o n , 273 U. S. 536, 47 S. 
Ct. 446, 71 L. Ed. 759 (1927); N ix o n  v. C on d on , 286 U. S. 
73, 52 S. Ct. 484, 76 L. Ed. 984 (1932); L a n e  v. W ilso n , 307 
U. S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939); G uinn  v. 
U n ited  S ta te s , 238 U. S. 347, 35 S. Ct. 926, 59 L. Ed. 1340 
(1915); B e r r y  v. D a v is , 15 F. (2d) 488 (C. C. A. 8th, 1926).

Subdivision 14 of section 41 of Title 28 provides:

“ The district court shall have original jurisdic­
tion as follows: . . . ‘ Of all suits at law or in equity 
authorized by law to be brought by any person to 
redress the deprivation, under color of any law, 
statute, ordinance, regulation, custom, or usage, of 
any State, of any right, privilege, or immunity, se­
cured by the Constitution of the United States, or 
of any right secured by any law of the United States 
providing for equal rights of citizens of the United 
States or of all persons within the jurisdiction of the 
United States.’ ”

Appellant’s suit also is an action at law to redress the 
deprivation under color of law, statute, regulation, custom 
or usage of a right, privilege, or immunity secured by the 
United States Constitution, namely Section 2, of Article I, 
the Fourteenth, Fifteenth and Seventeenth Amendments,



7

and of a right secured by law of the United States providing 
for equal rights of citizens, namely, Sections 31 and 43 of 
Title 8 of United States Code.

B. Appellant’s Refusal to Pursue or Exhaust His 
Rights Under State Law Does Not Oust the 
Federal Courts of Jurisdiction.

The State of Alabama, under Section 35 of Title 17 of 
the Alabama Code of 1940 gives the right of appeal when 
registration is denied as follows:

“ Any person to whom registration is denied shall 
have the right to appeal, without giving security for 
costs, within thirty days after such denial, by filing 
a petition in the circuit Court or Court of like juris­
diction held for the county in which he or she seeks 
to register, to have his or her qualifications as an 
elector determined. Upon the filing of the petition, 
the clerk of the Court shall give notice thereof to 
the solicitor authorized to represent the state in said 
county, who shall appear and defend against the 
petition on behalf of the state. Upon such trial the 
Court shall charge the jury only as to what consti­
tutes the qualifications that entitle the applicant to 
become an elector at the time he or she applied for 
registration, and the jury shall determine the weight 
and effect of the evidence, and return a verdict. 
From the judgment rendered an appeal will lie to 
the supreme Court in favor of the petition to be 
taken within thirty days. Final judgment in favor 
of the petitioner shall entitle him or her to regis­
tration as of the date of his or her application to 
the registrars.”

The remedy herein provided cannot be considered ad­
ministrative. On the contrary, it is the type of proceeding 
traditionally considered judicial. The aggrieved party may 
go into the c ircu it  c o u r t  or a co u r t  of like jurisdiction in 
the county in which he seeks to have his registration deter-



8

mined. The solicitor of the state is authorized to appear 
as the representative of the state and defend the action 
of the registrars on behalf of the state. A  tr ia l b y  ju r y  is 
provided, and the court is required to ch a rg e  th e  ju r y  as 
to what constitutes the qualifications entitling an applicant 
to become an elector at the time of his application for regis­
tration. T h e  ju r y  is  r e q u ired  to  d e te rm in e  the w eig h t and 
e f fe c t  o f  th e  ev id en ce  and r e tu rn  a  v erd ic t . A n  a p p ea l to 
th e  S u p re m e  C o u r t  o f  th e  S ta te  may be taken from an 
adverse decision in the circuit court. It is difficult to con­
ceive of a procedure having more of the earmarks of an 
ordinary and conventional judicial proceeding than that 
provided herein.

State remedies that are judicial in nature need not be 
pursued or exhausted before an action can be maintained 
in the federal courts. S ta te  C o r p o r a t io n  C o m m issio n  v. 
W ich ita , 290 U. S. 561, 54 S. Ct. 321, 78 L. Ed. 500 (1934); 
P o r t e r  v. I n v e s to r s  S y n d ica te , 286 U. S. 461, 52 S. Ct. 617, 
76 L. Ed. 1226 (1932) a ff’d on rehearing, 287 U. S. 346, 53 
S. Ct. 132, 77 L. Ed. 354 (1932); B a c o n  v. R u tla n d  R . Co., 
232 U. S. 134, 34 S. Ct. 283, 58 L. Ed. 538 (1914); Pacific  
T e le p h o n e  & T e le g r a p h  C o . v. K u y k en d a ll , 265 U. S. 196, 
44 S. Ct. 553, 68 L. Ed. 975 (1924); L a n e  v. W ils o n , supra. 
Whenever the question has been presented the United 
States Supreme Court has examined the remedy provided 
to determine whether it was legislative or judicial in nature. 
P r e n t is s  v. A tla n t ic  C o a s t  L in e  C o ., 211 U. S. 210, 29 S. Ct. 
67, 53 L. Ed. 150 (1908); L a n e  v. W ils o n , s u p r a ; Pacific 
T e le p h o n e  <& T e le g r a p h  C o . v. K u y k en d a ll , s u p r a ; P o r t e r  v. 
I n v e s to r s  S y n d ica te , su p ra . Only in the former instance 
was it deemed necessary that the remedy be exhausted 
before suits could be perfected in the federal courts. Nat­
u ra l G as P ip e l in e  C o . v. S la t te r y , 302 U. S. 300, 58 S. Ct. 
199, 82 L. Ed. 276 (1937); P o r t e r  v. I n v e s to r s  S yndicate,



9

su p ra ; G ilch ris t v. In te r b o r o u g h  R a p id  T ra n s it  C o ., 279 
U. S. 159, 49 S. Ct. 282, 73 L. Ed. 652 (1929); R a ilro a d  and  
W a reh o u se  C o m m issio n  C o. v. D u lu th  S tr e e t  R . C o ., 273 
U. S. 625, 47 S. Ct. 489, 71 L. Ed. 807 (1927); H e n d ers o n  
W a te r  C o. v. C o r p o ra tio n  C om m ission , 269 U. S. 279, 46 S. 
Ct. 112, 70 L. Ed. 273 (1925); P a cific  T e lep h o n e  & T e le ­
g ra p h  C o. v. K u y k en d a ll , s u p r a ; P r e n t is s  v. A tla n t ic  C o a s t  
L in e C o ., s u p r a ; U n ited  S ta te s  v. S in g  T u ck , 194 U. S. 161, 
24 S. Ct. 621, 48 L. Ed. 917 (1904).

In its opinion sustaining appellees’ motion to dismiss 
the court below attempted to distinguish this proceeding 
from that before the United States Supreme Court in L a n e  
v. W ilso n , su p ra , on the grounds that in the latter case the 
“ law itself worked discrimination against the colored race”  
(R. 34). Counsel for appellant after a careful examination 
of the facts before the Court and the opinion in L a n e  v. 
W ilson  can find no conceivable basis for this attempted dis­
tinction.

In L a n e  v. W ils o n  there was before the Court an Okla­
homa statute (26 Okla. Stat. Sec. 74) which in effect denied 
to Negroes the right to register and vote solely on the basis 
of race and color. The state provided an appeal from the 
refusal of a registration officer to register a qualified elector 
similar to that provided by the Alabama Code, su p ra .1 In 
answer to objections that the remedies provided by the 
state should have been exhausted before the instant pro-

1 The Oklahoma Statute (26 Okla. Stat. Sec. 74) provided in 
part: “ and provided further, that wherever any elector is refused 
registration by any registration officer such action may be reviewed 
by the district court of the county by the aggrieved elector by his 
filing within ten days a petition with the Clerk of said Court where­
upon summons shall be issued to said registrar requiring him to 
answer within ten days, and the district court shall be (give an) an 
expeditious hearing and from his judgment an appeal will lie at the 
instance of either party to the Supreme Court of the State as in civil 
cases. * * * ”



1 0

ceeding could be maintained in the federal courts, Mr. Jus­
tice Frankfurter, speaking for the Court, said at page 274:

“ Normally, the state legislative process, some­
times exercised through administrative powers con­
ferred in state courts, must be completed before 
resort to the federal courts can be had. . . . But 
the state procedure open for one in the plaintiff’s 
situation . . . has all the indicia of a con v en tion a l  
ju d ic ia l p r o c e e d in g  and d o es  n o t  c o n fe r  u p o n  the 
O klah om a co u r ts  a n y  o f  th e  d is c r e t io n a r y  o r  in itia ­
t o r y  fu n c tio n s  th a t a r e  ch a r a c te r is t ic  o f  adm inis­
tr a t iv e  a g en cies . . . . B a r r in g  o n ly  e x c ep tio n a l cir­
cu m sta n ces , . . .  o r  e x p l ic i t  s ta tu to r y  r eq u irem en ts , 
. . . r e s o r t  to  a fe d e r a l  c o u r t  m a y  he had  w ithout 
ex h a u stin g  th e  ju d ic ia l r e m ed ie s  o f  s ta te  c o u r ts .”  
(Italics ours.)

The Supreme Court did not indicate that its ruling— 
that judicial remedies need not be exhausted before resort 
could be had to a federal court—would apply only where a 
statute involved was discriminatory on its face. On the con­
trary, the opinion expressly states that the rule would be 
applicable e x c e p t  in unusual circumstances or by virtue of 
ex p lic i t  statutory requirements. The remedy provided by 
Alabama for an appeal for refusal to register a qualified 
elector, even more so than that under consideration in 
L a n e  v. W ils o n , has all the distinguishing characteristics 
which England and America have come to associate with 
a judicial proceeding. Under the rule of L a n e  v. W ilson , 
s u p r a ; S ta te  C o r p o r a t io n  C o m m iss io n  v. W ic h ita , supra ; 
P a cific  T e le p h o n e  & T e le g r a p h  C o . v. K u y k en d a ll ,  supra, 
appellant is authorized to institute an action in the federal 
courts for wrongful refusal of appellees to register him 
Avithout first pursuing or exhausting the remedy provided 
by the State of Alabama.



1 1

Tlie court below also cites T ru d ea u  v. B a rn es , 65 F. (2d) 
563 (C. C. A. 5th, 1933) as authority for its position that 
appellant must first pursue the remedies open in the State 
of Alabama before being allowed to seek redress in the 
federal courts. This case was an appeal from a judgment 
in the court below dismissing a petition to recover damages 
for the deprivation of the right of appellant to register as 
a voter in the State of Louisiana. Petitioner attempted 
to pursue two inconsistent causes of action. In one the 
arbitrary refusal of the registrars to register appellant 
was contested on the ground that such action was contrary 
to the Constitution and laws of Louisiana. The other at­
tempted to show that the “ understanding clause”  of the 
Louisiana Constitution violated the Fourteenth and F if­
teenth Amendments to the United States Constitution. This 
Court found, as to the first cause of action, that the peti­
tion failed to state facts sufficient to show that the applicant 
was entitled to register. As to the second cause of action, 
this Court found that the “ understanding clause”  of the 
Louisiana Constitution did not violate any provision of the 
Federal Constitution since it applied equally to all appli­
cants for registration and was not based on race or color. 
However, in considering Article 8, Section 5 of the Louisi­
ana Constitution 2 which provides a state remedy to appeal

2 Article 8, Section 5, La. Constitution provides: “ Any person 
possessing the qualifications for voting prescribed by this Constitu­
tion, who may be denied registration, shall have the right to apply 
for relief to the district court having jurisdiction of civil causes for 
the parish in which he offers to register. Said court shall then try 
the cause, giving it preference over all other cases, before a jury of 
twelve, nine of whom must concur to render a verdict. This verdict 
shall be a final determination of the cause. The trial court may, 
however, grant one new trial by jury. In no cases shall any appeal 
lie or any other court exercise the right of review * * *.



1 2

the refusal of a registrar to register an applicant, Judge 
B r y a n  of this Court said:

“ It is idle to say that the defendant as registrar 
had the arbitrary power to deny plaintiff the right 
to vote. We cannot say and refuse to assume, that, if 
the plaintiff had pursued the a d m in is tra tiv e  rem ed y  
that was open to him, he would not have received 
any relief to which he was entitled. At any rate, be­
fore going into Court to sue for damages, he was 
bound to exhaust the remedy afforded him by the 
Louisiana Constitution.”  (Italics ours.)

If this portion of the opinion means that all state reme­
dies, whether judicial or administrative, must he exhausted 
before resort can be had to the federal courts, it is in­
consistent with L a n e  v. W ils o n , su p ra , and the long line 
of decisions cited a n te  which have held that only where 
the state remedy was legislative did it have to be com­
pleted before the federal courts could entertain juris­
diction. T ru d ea u  v. B a r n es , therefore, cannot be consid­
ered persuasive or authoritative if contrary to these rul­
ings and precedents of the United States Supreme Court. 
There this Court properly stated the rule that adminis­
trative remedies had to be exhausted before resort could 
be had to the federal courts. The rule, however, was wrong­
fully applied since the state remedy under consideration 
was judicial and not administrative. L a n e  v. W ils o n , supra. 
Further than that, as will be developed in a subsequent por­
tion of this brief, the instant litigation is the especial con­
cern of the federal courts since appellant and those similarly 
situated were attempting to qualify as electors in order to 
participate in the election of federal as well as of state 
officers.



13

II

Appellees’ Refusal to Register Appellant Solely 
Because of His Race or Color Violated the 

Constitution and Laws of the United States.

A. The Right to Vote Is Secured by the Fifteenth 
Amendment Against Restrictions Based on 
Race or Color.

The State of Alabama makes registration a prerequisite 
to the right to qualify as an elector and vote in any election 
held within the State. Constitution of Alabama, Section 
184, Alabama Code of 1940, Title 17, Section 21. This re­
quirement by the very terms of Article I, Section 2 and 
the Seventeenth Amendment to the United States Constitu­
tion is incorporated therein and becomes a prerequisite for 
voting in any election in the State held to choose Alabama’s 
Congressional and Senatorial representatives.3

Precedents of the United States Supreme Court have 
firmly fixed the rule that regulations which are designed to 
prevent persons from qualifying to vote solely on the basis 
of race or color cannot stand in the face of the express 
terms of the Fifteenth Amendment. L a n e  v. W ils o n , s u p r a ;  
M yers  v. A n d e r s o n , 238 U. S. 368, 35 S. Ct. 932, 59 L. Ed. 
1349 (1915); G uinn  v. U n ited  S ta te s , su p ra . This constitu­
tional guaranty still leaves the states free to enact reason­
able regulations concerning suffrage and to demand that 
its electors meet reasonable requirements and standards 
as long as such regulations, requirements and standards 
are not based on considerations of race or color. U n ited  
States v. R e e s e ,  92 U. S. 214, 23 L. Ed. 563 (1876); L a n e  v. 
W ilson , s u p r a ; G uirm  v. U n ited  S ta te s ,  s u p r a ; S m ith  v. A ll-  
w right, 321 U. S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1943).4

3 See infra, pp. 14-16.
1 See annotation on effect of the Fifteenth Amendment in 23 L. 

Ed. 563.



14

Despite the wide authority and discretion which a state 
may validly exercise in regulating the election process, the 
right to vote is considered a right grounded in the Fed­
eral Constitution. ■ U n ited  S ta te s  v. C la ss ic , 313 U. S. 299, 
61 S. Ct. 1031, 85 L. Ed. 1368 (1941); E x  p a r te  Y a rbrou gh , 
110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274 (1884); W ile y  v. 
S in k ler , 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 84 (1899); 
U n ited  S ta te s  v. M o s e ly , 238 U. S. 383, 35 S. Ct. 904, 59 L. 
Ed. 1355 (1915). But cf. U n ited  S ta te s  v. R e e s e ,  supra ; 
B r e e d lo v e  v. S u ttle s , 302 U. S. 277, 58 S. Ct. 205, 82 L. Ed. 
252 (1937), and annotation in 23 L. Ed. 563, on the effect of 
the Fifteenth Amendment.

It is now clearly settled that the provisions of the Fif­
teenth Amendment may effectively reach each and every 
stage of the electoral process. Wherever in that process 
restrictions of race or color are erected, such restrictions 
violate the Fifteenth Amendment. M y e r s  v. A n d erson , 
s u p r a ; G uinn  v. U n ited  S ta te s , s u p r a ; L a n e  v. W ilson , 
s u p r a ; U n ited  S ta te s  v. C la ssic , s u p r a ; S m ith  v. A llw right, 
su p ra . Refusal to permit one to register, therefore, solely 
on the basis of race and color is clearly within the prohibi­
tions of the Fifteenth Amendment and has been so held. 
L a n e  v. W ils o n , s u p r a ; M y e r s  v. A n d e r s o n , s u p r a ; Guinn 
v. U n ited  S ta te s , su pra .

B. The Right of Qualified Electors of the Several 
States to Choose Members of Congress Is Se­
cured and Protected by Article I, Section 2 and 
by the Seventeenth Amendment of the United 
States Constitution.

Section 2 of Article I of the Constitution of the United 
States provides that members of the House of Represen­
tatives shall be chosen every second year by the people of 
the several states and that the electors in each state shall



15

have the qualifications requisite for electors of the most 
numerous branch of the state legislature.

The right of electors of the several states to choose their 
representatives is a right secured and guaranteed by the 
Federal Constitution to those citizens of the several states 
entitled to exercise that power. Since these constitutional 
provisions are without qualifying limitations, the rights 
therein guaranteed run against individual as well as state 
action. E x  p a r te  Y a rb ro u g h , su p r a ; U n ited  S ta te s  v. C la s­
sic, su p ra .

Registration is a prerequisite to participate in any elec­
tion held in the State of Alabama for the election of federal 
officers and is an integral part of the electoral process. 
Failure of appellant to be a registered elector prior to such 
forthcoming federal elections will disqualify him to cast 
his vote for the election of federal representatives of the 
State of Alabama. The protection of the right of a citizen 
of the United States to participate in the election of federal 
officers has long been considered the particular and especial 
concern of the United States Government. E x  p a r te  S ieb o ld , 
100 U. S. 371, 25 L. Ed. 717 (1879); E x  p a r te  Y a rb ro u g h ,  
su p ra ; U n ited  S ta te s  v. C la ss ic , s u p r a ; S m ith  v. A llw r ig h t ,  
su p ra ; D e v o e  v. U n ited  S ta te s , 103 F. (2d) 584 (C. C. A. 8th, 
1939). The federal government has also been deemed to 
have sufficient authority under the Constitution to enact 
legislation designed to keep the federal elections free from 
fraud, force and coercion. Title 18, Sections 51, 54, 56, 57, 
58 and. 61 and Sections 31 and 43 of Title 8 of the U. S. 
Code.

Appellant therefore is no requesting this Court to per­
form any new or unusual duty but is requesting that the 
Court exercise its authority over a subject matter which has 
been traditionally considered within the jurisdiction of .the 
federal courts.



16

C. The Policy of Requiring Negro Applicants for 
Registration to Submit to Tests Not Required 
of Other Applicants Violates the Fourteenth 
Amendment to the United States Constitution.

Appellees in the instant proceedings are state officers 
and hold such office pursuant to provisions of Section 21, 
Title 17 of the Alabama Code of 1940. The acts of appel­
lees were committed in the course of the performance of 
their administrative duties of registering all qualified elec­
tors within Macon County pursuant to the constitution and 
laws of the State of Alabama. In requiring appellant to 
submit to tests not required of white applicants, and in re­
fusing to register appellant solely on the basis of race and 
color, appellees violated the equal protection clause of the 
Fourteenth Amendment, which provides that “ . . . No state 
shall deny to any person within its jurisdiction the equal 
protection of the laws.”  This provision is clearly violated 
where a law, however fair on its face, is administered in a 
discriminatory manner. Y ick  W o  v. H o p k in s , 118 U. S. 
356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). Although this 
amendment only reaches state action, such action within 
the meaning of its provisions is the action of any agent who 
is a repository of state authority, whether a part of exec­
utive, legislative or judicial departments of the state gov­
ernment. As the United States Supreme Court said in E x  
p a r te  V irg in ia , 100 U. S. 313, 346, 347, 25 L. Ed. 676, 679 
(1880):

“ We have said the prohibitions of the Fourteenth 
Amendment are addressed to the States. . . . They 
have reference to actions of the political body de­
nominated a State, by whatever instruments or in 
whatever modes that action may be taken. A State 
acts by its legislative, its executive or its judicial 
authorities. It can act in no other way. The consti­
tutional provision, therefore, must mean that no



17

agency of the State or of the officers or agents by 
whom its powers are exerted, shall deny to any per­
son within its jurisdiction the equal protection of 
the laws. Whoever, by virtue of public position 
under a State government, deprives another of prop- 
erty, life, or liberty, without due process of law, or 
denies or takes away the equal protection of the laws, 
violates the constitutional inhibition; and as he acts 
in the name and for the State, and is clothed with 
the State’s power, his act is that of the State. This 
must be so, or the constitutional prohibition has no 
meaning. Then the State has clothed one of its 
agents with power to annul or to evade it.”

In H o m e  T e lep h o n e  <jc T e leg ra p h  C o m p a n y  v. C ity  o f  
L os A n g e le s , 227 U. S. 278, 287, 33 S. Ct. 312, 57 L. Ed. 510, 
515 (1913), the Court speaking through Chief Justice 
White said:

“  • • • the theory of the [14] Amendment is that 
where an officer or other representative of a state, 
in the exercise of the authority with which he is 
clothed, misuses the power possessed to do a wrong 
forbidden by the Amendment, inquiry concerning 
whether the state has authorized the wrong is irrele­
vant, and the Federal judicial power is competent 
to afford redress for the wrong by dealing with the 
officer and the result of his exertion of power . . . ” .

In Io iv a -D e s  M o in es  N a tio n a l B a n k  v. B e n n e tt , 284 U. S. 
239, 246, 52 S. Ct, 133, 76 L. Ed. 265, 272 (1931), the United 
States Supreme Court said:

“  • • • When a state official, acting under color of 
state authority, invades, in the course of his duties, 
a private right secured by the Federal Constitution, 
that right is violated, even if the state officer not 
only exceeded his authority but disregarded special 
commands of the state law.”



18

Recently in U n ited  S ta te s  v. C la ss ic , su p ra , the Court 
said:

“ Misuse of power, possessed by virtue of State 
law and made possible only because the wrong-doer 
is clothed with the authority of State law, is action 
taken ‘ under color o f ’ State law.”

The instant case is similar in context to the situation 
presented in the C la ss ic  case, and in S m ith  v. A llw rig lit. 
The rationale of the decision in the C la ss ic  case applies 
to the instant proceedings since there can be no doubt that 
appellees were officers of the state. Section 21 of Title 17 
of the Alabama Code of 1940 and Section 186 of the Alabama 
Constitution provide that registrars shall be appointed by 
the Governor and the commissioners of agriculture and of 
industries, or by a majority of these officers acting as a 
board of appointment. Section 24 of Title 17 of the Alabama 
Code provides that the state shall pay to each registrar 
five dollars for each day’s attendance upon the sessions of 
the Board. Section 35 of Title 17 of the Alabama Code and 
Section 186 of the State Constitution provide that wherever 
an appeal is taken under its provisions by any person to 
whom registration is denied the solicitor authorized to rep­
resent the State shall appear and defend the action of the 
registrars on behalf of the State. Registration, being a pre­
requisite to voting, is an integral part of the election process 
and in performing the duties of registering qualified appli­
cants, appellees are performing an important state function. 
Appellees were pursuing a policy, custom or usage of sub­
jecting qualified Negro electors to tests not required of white 
applicants, nor by the laws and constitution of the State in 
determining the qualifications of an elector. Appellees 
further were pursuing a policy, custom, and usage of deny­
ing to Negro qualified applicants the right to register, while 
at the same time registering white electors with less qualifi-



19

cations than those possessed by colored applicants. This 
is clearly a denial of the equal protection clause within the 
meaning of the Fourteenth Amendment. N ix o n  v. H ern d o n , 
su p ra ; N ix o n  v. C on d on , s u p r a ; U n ited  S ta te s  v. C la ssic , 
supra . See also S n o w d en  v. H u g h es , 321 U. S. 1, 88 L. Ed. 
497, 64 S. Ct. 397 (1944); Y ick  W o  v. H o p k in s , su p ra . As 
such it is within the reach of federal power.

Ill

Appellant May Properly Maintain This Suit as a 
Class Action Under Rule 23 (a) of the 

Federal Rules of Civil Procedure.

Under Rule 23 (a) of the Federal Rules of Civil Pro­
cedure one or more persons, adequately representative of 
all, may bring an action on behalf of all members of a class, 
where the persons constituting the class are sufficiently 
numerous to make it impracticable to bring them all before 
the court, and Avhere the character of the right under litiga­
tion is “ several, and a common relief is sought” . Appel­
lant instituted the present proceeding in the Court below 
on behalf of himself and as a representative of a class, com­
posed of Negro citizens of the United States, residents and 
citizens of the State of Alabama and of Macon County 
similarly situated, who are qualified to register as voters 
in Macon County of the aforesaid State, under the Constitu­
tion and laws of the United States and of the State of Ala­
bama (R. 3). The question herein presented—whether 
registrars individually or a Board of Registrars collectively 
may maintain a policy, custom or usage of denying to mem­
bers of this class the equal protection of the laws, by re­
quiring them because of their race and color to submit to 
tests not required of white electors, and of refusing to regis­
ter them on grounds not required by the Constitution and 
laws of the United States and of the State of Alabama__



20

involve rights of common and general interest to all mem­
bers of the class represented by appellant.

The class suit evolved early in English equity5 * as a 
device to escape the difficulties inherent in compulsory 
joinder and to permit a single litigation of group injuries 
in cases of common interest.0 With federal Eule 23 (a) 
this doctrine was reformulated to suit the needs of modern 
practice.7

Under this provision it is not necessary that all mem­
bers of the class join in the suit. It is merely necessary 
that one or more persons adequately representative of the 
entire class institute the litigation. The other members of 
the class may join as they see fit.8 The present litigation is 
that type of class action labeled “ spurious” , In d ep en d en ce  
S h a res  C o rp . e t  al. v. D e c k e r t ,  e t  al., 108 F. (2d) 51, (C. C. 
A. 3rd, 1939); W e e k s  v. B a r e c o  O il C o ., 125 F. (2d) 84 (C. 
C. A. 7th, 1941); see H u n te r  v. S o u th ern  In d em n ity  U n d er­
w r ite r s , 47 F. Supp. 242 (E. D. Ky., 1942); N a tl. H a ir ­
d r e s s e r s  & C o s m e to lo g is ts  A ssn . In c . v. P h il. C o ., 41 F. 
Supp. 701 (D. C. Del., 1941); O p p en h e im er , e t  al. v. F . J.

5 See on whole development 2 Moore, Federal Practice (1938) 
2224 et seq.

0 Common interest has been variously defined. See Wheaton, 
Representative Suits Involving Numerous Litigants (1934) 19 Corn. 
L. Q. 399, 407, 433. (Composite definitions of common interest.) 
In addition to the difficulty in defining common interest, the courts 
have been in disagreement as to whether the common interest need 
be, only in questions of law, Hawarden v. Youghiogheny & L. 
Coal Co., I l l  Wis. 545, 87 N. W . 472 (1902), or in both questions 
of law and fact, Chezv v. First Presbyterian Church of Wilmington, 
237 Fed. 219 (D. C. Del. 1916). The codifiers of Rule 23 (a) must 
have been aware of these conflicts and difficulties, however, for it is 
expressly provided that the common interest may be either in law 
or fact.

7 Every state today has a statute permitting class actions. The 
provision common to all these statutes is the “ common or general 
interest” of many persons. See Wheaton, op. cit. supra. Note 4.

8 See Moore, op. cit. supra. . Note 3.



21

Y o u n g  & C o. In c ., 144 F. (2d) 387 (C. C. A. 2d, 1944); see 
also 2 Moore op. cit. su p ra  note 3, and requires nothing 
more than a group with a common interest, seeking com­
mon relief, to constitute the class.

The instant proceeding cannot be viewed merely as the 
discriminatory practices of individual state officers against 
an individual seeking to qualify for registration but must 
be viewed in context as part of a scheme or device to effec­
tively disfranchise all qualified Negro electors. Although 
the Fifteenth Amendment was specifically designed to pre­
vent barriers to the franchise being imposed based on race 
or color, it has been necessary for the United States Su­
preme Court to invalidate hurdle after hurdle erected to 
circumvent this constitutional guaranty and deprive Ne­
groes of the right to vote. The last of these barriers, the 
right to participate in a primary election, was leveled in 
S m ith  v. A llw r ig h t , su p ra . Under the authority of that 
decision, Negro citizens of the United States and residents 
of Alabama possessing the necessary qualifications of elec­
tors attempted to register as voters.

In refusing to register appellant and in subjecting him 
to tests not required by the Constitution and laws of the 
United States and of the State of Alabama, and to which 
white applicants were not subjected, appellees were pursu­
ing a policy, custom, or usage of denying registration to 
Negro applicants solely on the basis of race or color. All 
Negroes similarly situated to appellant have a common in­
terest in the questions herein presented because of appel­
lees’ wrongful acts, and in having these questions clarified 
and determined as they affect the exercise of a fundamental 
right secured by the Federal Constitution. The courts 
have never based their decision on the propriety of a class 
suit on whether the persons similarly situated actually 
formed a class in esse before the injury complained of oc-



22

curred, but only on whether the proceeding under inquiry 
met the statutory requirements. See Y o r k  v. G u a ra n ty  
T r u s t  C o . o f  N ew  Y o r k , 143 F. (2d) 503 (C. C. A. 2nd, 
1944); K e a v y  v. A n d e r s o n , 2 F . (2d) 19 (1941); A tw o o d  v, 
N a tl. B a n k  o f  L im a , 115 F. (2d) 861 (C. C. A. 6th, 1940); 
F a r m e r s  C o .-O p . O il C o . v. S o c o n y  V acu u m  O il C o . Inc., 
133 F. (2d) 101 (C. C. A. 8th, 1942); C la rk e , e t  al. v. G old­
m an, 124 F. (2d) 491 (C. C. A. 2nd, 1941). Where a group 
of people are similarly injured by common practices of an­
other, it is recognized that scope of the injury creates the 
required class.9 Although registration concededly presents 
individual questions, these individual issues have not been 
considered relevant in determining whether a class suit 
could be instituted, so long as apart from the independent 
questions which had to be settled, there was presented some 
fundamental question of common interest. See Y o r k  v. 
G u a ra n ty  T r u s t  C o ., s u p r a ; In d e p en d e n ce  S h a res  C o rp . v. 
D e c k e r t ,  e t  al., s u p r a ;  O p p en h e im er , e t  al. v. T . J . Y oung  
C o. In c ., s u p r a ; A ls to n  v. S ch o o l B o a rd , 112 F. (2d) 992 
(C. C. A. 4th, 1940); M cD a n ie l v. B o a r d  o f  P u b lic  In s tru c­
tio n , 39 F. Supp. 638 (N. D. Fla., 1941); D a v is  v. C o o k , 55 
F. Supp. 1004 (N. D. Ga., 1944).

As the Court said in W e e k s  v. B a r e c o  O il C o ., s u p r a :

“ The history of class suit litigation, its history 
over a century of growth, the origin and status of

9Hawarden v. Yougliiogheny, 111 Wis. 545, 87 N. W . 472 
(1902) ; Trade Press Pub. Co. v. Milwaukee Type Union, 180 Wis. 
449, 193 N. W . 507 (1923), class action permitted to enjoin a wrong­
ful conspiracy; Weeks v. Bareco Oil Co., supra, class action per­
mitted to recover damages caused by unlawful conspiracy; Cloyes v. 
Middlebury Electric Co., 80 Vt. 109, 66 Atl. 1039 (1907), class suit 
permitted to enjoin a nuisance; Natl. Hairdressers & Cosmetologists 
Assn. Inc. v. Philad Co., supra, class suit permitted to declare patent 
invalid and to enjoin defendants from asserting that plaintiff’s in­
fringed their patent rights; Skinner v. Mitchell, 108 Kan. 861, 197 
P. 569 (1921) ; Kvello v. Lisbon, 38 N. D. 71, 164 N. W . 305 (1917), 
class action permitted to enjoin an invalid tax.



23

present Rule 23 of the Federal Rules of Civil Pro­
cedure, are all persuasive of the necessity of a liberal 
construction of this Rule 23, and its application to 
this class of litigation. It should be construed to 
permit a class suit where several persons jointly act 
to the injury of many persons so numerous that their 
voluntarily, unanimously joining in a suit is con- 
cededly improbable and impracticable. Under such 
circumstances injured parties who are so mindful 
may present the grievance to Court on behalf of all, 
and the remaining members of the class may join as 
they see fit.”

IV

Appellant May Properly Seek a Declaratory Judgment.

Judicial Code, Section 274d (28 U. S. C. 400) provides:

“ In cases of actual controversy (except with re­
spect to federal taxes) the courts of the United 
States shall have power upon petition, declaration, 
complaint, or other appropriate pleadings to declare 
rights and other legal relations of any interested 
party petitioning for such declaration, whether or not 
further relief is or could be prayed and such declara­
tion shall have the force and effect of a final judgment 
or decree and be reviewable as such.”

It is well established that a prayer for relief by declara­
tory judgment may be joined with prayers for consequential 
relief. Anderson on Declaratory Judgments (1940, at p. 
253); Borchard on Declaratory Judgments (2d ed. 1941) 
at 432; 18 Am. Jur. (Declaratory Judgments) sec. 62, p. 
332; see also Rule 18, Federal Rules of Civil Procedure.

The leading case on declaratory judgments is the case 
of A e tn a  L i f e  In s u ra n c e  C o m p a n y  v. H a w o r th , 300 U. S. 227,



24

57 S. Ct. 461, 81 L. Ed. 617 (1937), where the Court speak­
ing through Mr. Chief Justice Hughes stated:

“ The Declaratory Judgment Act of 1934, in its 
limitation to ‘ cases of actual controversy’ manifestly 
has regard to the constitutional provision and is 
operative only in respect to controversies which are 
such in the constitutional sense. The word ‘ actual’ 
is one of emphasis rather than of definition. Thus 
the operation of the Declaratory Judgment Act is 
procedural only. In providing remedies and defining 
procedure in relation to cases and controversies in 
the constitutional sense the Congress is acting within 
its delegated power over the jurisdiction of the fed­
eral courts which the Congress is authorized to 
establish . . . Exercising this control of practice 
and procedure the Congress is not confined to tradi­
tional remedies. The judiciary clause of the Con­
stitution ‘ did not crystallize into changeless form 
the procedure of 1789 as the only possible means 
for presenting a case or controversy otherwise cog­
nizable by the federal courts.’ N a sh v ille , C. & S t. L. 
R y . C o. v. W a lla ce , 288 U. S. 249, 264. In dealing 
with methods within its sphere of remedial action 
the Congress may create and improve as well as 
abolish or restrict. The Declaratory Judgment Act 
must be deemed to fall within this ambit of congres­
sional power, so far as it authorizes relief which is 
consonant with the exercise of the judicial function 
in the determination of controversies to which under 
the Constitution the judicial power extends.”

The decision in the A e tn a  case has been uniformly followed. 
In one of the latest Circuit Court of Appeals’ decisions, 
T r ic e  P r o d u c ts  C o r p o r a t io n  v. A n d e r s o n  C o ., 147 F. (2d) 
721 (C. C. A. 7th, 1945), following this case in upholding 
the right to a declaratory judgment in a cross-complaint 
in a patent case it was stated:

“ Equity abhors multiplicity of actions and when 
it takes jurisdiction for one purpose should do so for



25

all germane purposes and dispose of all issues neces­
sary to a complete final adjudication. We agree, there­
fore, with the reasoning of the decision cited and with 
that of C o v e r  v. S ch w a rtz , 2 Cir. 133 F. 2d 54.”

The Amended Complaint herein alleges that registra­
tion is a prerequisite to voting in any election in Alabama; 
that appellees are maintaining a policy, custom and usage 
of requiring Negro applicants to submit to tests not re­
quired of white electors and of refusing to register qualified 
Negro electors while at the same time registering white 
electors with less qualifications on account of race and color 
(R. 5 ); that during the regular registration period while 
appellees were conducting registration, appellant presented 
himself at the regular registration place and requested to 
be registered; that appellant is ready, able and willing to 
comply with all lawful requirements for registration; that 
instead of registering appellant, appellees required appel­
lant to wait long hours and to present two persons to vouch 
for him; that although appellant was ready and willing to 
answer all questions and give all information necessary 
for his registration, appellees illegally and wrongfully re­
fused to register him (R. 6 ); that white persons present­
ing themselves for registration were not required to wait 
or to present persons to vouch for them but were registered 
forthwith (R. 6 ); that appellees acting pursuant to policy, 
custom and usage set out above denied appellant ’s appli­
cation and wrongfully refused to register him solely on 
account of race and color, and in so doing followed the 
general policy custom and usage of the Board of Registrars, 
including these appellees and their predecessors in office 
(R. 6). It is clear that appellant would be entitled to a 
declaratory judgment declaring unconstitutional a statute 
which would provide that Negro applicants for registration 
be required to submit to tests not required of white ap-



2 6

plicants or that white applicants for registration could have 
less qualifications than is required of Negroes. The only 
allegations necessary to support relief in such a case would 
be the statute, qualifications of the applicant and an alle­
gation that he was refused registration because of the 
statute. In the instant case we do not have such a statute 
but have a policy, custom and usage of a state officer equiva­
lent thereto.

The case of C ro m w ell v. H illsb o ro u g h  T P  o f  S o m ers e t  
C o u n ty , N . J ., 149 F. (2d) 617 (C. C. A. 3d, 1945), aff’d 
by U. S. Supreme Ct. Oct. term 1945, decided Jan. 29, 1946, 
affirmed the decision of the district court in issuing a decla­
ratory judgment against the policy of state officers in 
assessing plaintiff’s property higher than like property as 
being in violation of the Fourteenth Amendment.

In the line of cases on the question of the equalization 
of teachers’ salaries it has been uniformly held that Negro 
teachers as a class have a right to a declaratory judgment 
declaring unconstitutional the practice, custom and usage 
of paying Negro teachers less salary than paid to white 
teachers, A ls to n  v. S ch o o l B o a rd , su p r a ; M cD a n ie l v. B oard  
o f  P u b lic  In s tru c t io n , su p ra , D a v is  v. C o o k , su pra .

The allegations in the complaint herein set out a claim 
for relief by way of damages and an injunction. There­
fore, the same allegations are sufficient to set forth an 
actual controversy within the meaning of Declaratory 
Judgment Act.



27

V

Action of Appellees in Refusing to Register Appellant 
Makes Them Liable to the Appellant for Damages 
Under the Provisions of Sections 31 and 43 of Title 
8 of the United States Code.

Section 31 of Title 8 provides:

“ Race, color, or previous condition not to affect 
right to vote.

“ All citizens of the United States who are other­
wise qualified by law to vote at any election by the 
people in any State, Territory, district, county, city, 
parish, township, school district, municipality, or 
other territorial subdivision, shall be entitled and 
allowed to vote at all such elections, without distinc­
tion of race, color, or previous condition of servitude; 
any constitution law, custom, usage, or regulation of 
any State or Territory, or by or under its authority, 
to the contrary notwithstanding. R. S. sec. 2004. ’ ’

and Section 43 of Title 8 provides:

“ Civil action for deprivation of rights.
“ Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 
or Territory, subjects or causes to be subjected, any 
citizen of the United States or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Con­
stitution and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other proper 
proceeding for redress. R. S. sec. 1979.”

H. R. 1293, 41st Congress, Second Session, which was 
later amended in the Senate and which includes Sections 31 
and 43 of Title 8, was originally entitled, “ A  bill to enforce 
the right of citizens of the United States to vote in the sev­
eral States of this Union who have hitherto been denied



28

that right on account of race, color or previous condition 
of servitude.”  When the bill came to the Senate its title 
was amended and adopted to read, “ A  bill to enforce the 
right of citizens of the United States to vote in the several 
States of this Union and for other purposes.”

The language of Section 31 is so clear as to leave no 
doubt as to its purpose. Section 43 of Title 8 has been used 
repeatedly to enforce the right of citizens to vote. See 
M y e r s  v. A n d e r s o n , s u p r a ; L a n e  v. W ils o n , su p ra .

In the recent decision of S m ith  v. A llw r ig h t, su p ra , a suit 
for damages under these sections was sustained by the 
United States Supreme Court. The facts in the instant case 
are basically similar to those in the S m ith  v. A llw rig h t, 
su pra .

Since registration is a prerequisite to voting, the 
refusal of appellees to register appellant and those simi­
larly situated solely on account of race and color gives rise 
to an action for damages and an injunction under Sections 
31 and 43 of Title 8.

CONCLUSION

The present cause of action arises as the result of at­
tempts on part of state officers to circumvent the mandate 
of the United States Supreme Court in S m ith  v. A llw rig h t. 
It is another of the many efforts to keep Negroes from exer­
cising their rights and performing their political duties as 
citizens of a democracy by voting and taking part in the 
selection of their governmental representatives. Freedom 
to exercise such rights and to perform such duties is con­
sidered one of the basic virtues and blessings of our politi­
cal system and fundamental to our way of life. Action 
such as that under present inquiry, therefore, which at­
tempts to interfere with that freedom must be declared in­
valid if our democratic institutions are to prosper. Wher-



29

ever restrictions to the exercise of the voting privilege are 
erected based on race and color, whether open or devious, 
simple minded or sophisticated, they run counter to our 
fundamental law and must be struck down.

Wherefore it is respectfully submitted that this 
Court reverse the judgment of the court below dis­
missing appellant’s amended complaint.

Robert L. Carter,

A rthur D. Shores,
1630 Fourth Avenue, No., 
Birmingham 3, Ala.

W illiam H. Hastie,
615 F. Street, N. W., 
Washington, D. C.

Thurgood Marshall,
20 West 40th Street,
New York, N. Y.

A t to r n e y s  f o r  A p p e lla n t.

New York, N. Y.
O f C ou n sel.

[A ppendices F ollow]





31

APPENDIX A

Constitution of the United States— 1787

ARTICLE I

Section 2.— The House of Representatives shall be com­
posed of Members chosen every second Year by the People 
of the several States, and the Electors in each State shall 
have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature.

A m e n d m e n t  1 4

Section 1.—All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United States; 
nor shall any State deprive any person of life, liberty, or 
property, without due process of law; nor deny to any per­
son within its jurisdiction the equal protection of the laws.

A m e n d m e n t  1 5

Section 1.— The right of citizens of the United States to 
vote shall not be denied or abridged by the United States 
or by any State on account of race, color, or previous condi­
tion of servitude.

Section 2.— The Congress shall have power to enforce 
this article by appropriate legislation.

A m e n d m e n t  1 7

The Senate of the United States shall be composed of 
two Senators from each State, elected by the people thereof,



32

for six years; and each Senator shall have one vote. The 
electors in each State shall have the qualifications requisite 
for electors of the most numerous branch of the State legis­
latures.

United States Code

Title 8— Section 31—Race, color, or previous condition 
not to affect right to vote.

All citizens of the United States who are otherwise quali­
fied by law to vote at any election by the people in any 
State, Territory, district, county, city, parish, township, 
school district, municipality, or other territorial sub-divi­
sion, shall be entitled and allowed to vote at all such elec­
tions, without distinction of race, color, or previous condi­
tion of servitude; any constitution, law, custom, usage, or 
regulation of any State or Territory, or by or under its 
authority, to the contrary notwithstanding. R. S. Sec. 2004.

Section 43— Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, sub­
jects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to 
the deprivation of any rights, privileges, or immunities se­
cured by the Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity or other 
proper proceeding for redress. R. S. Sec. 1979.

Title 28—Section 41— Subdivision 11— Suits for injuries 
on account of acts done under laws of United States.— 
Eleventh.

Of all suits brought by any person to recover damages 
for any injury to his person or property on account of any 
act done by him, under any law of the United States, for



33

the protection or collection of any of the revenues thereof, 
or to enforce the right of citizens of the United States to 
vote in the several States. R. S. Sec. 629.

Subdivision 14^-Suits to redress deprivation of civil 
rights.—Fourteenth.

Of all suits at law or in equity authorized by law to be 
brought by any person to redress the deprivation, under 
color of any law, statute, ordinance, regulation, custom, or 
usage, of any State, of any right, privilege, or immunity, 
secured by the Constitution of the United States, or of any 
right secured by any law of the United States providing for 
equal rights of citizens of the United States, or of all per­
sons within the jurisdiction of the United States. R. S. 
Sec. 563.

Title 28— Section 400—Declaratory judgments author­
ized; procedure.

(1) In cases of actual controversy (except with respect 
to Federal taxes) the courts of the United States shall have 
power upon petition, declaration, complaint, or other ap­
propriate pleadings to declare rights and other legal rela­
tions of any interested party petitioning for such declara­
tion, whether or not further relief is or could be prayed, 
and such declaration shall have the force and effect of a 
final judgment or decree and be reviewable as such.

(2) Further relief based on a declaratory judgment or 
decree may be granted whenever necessary or proper. The 
application shall be by petition to a court having jurisdic­
tion to grant the relief. If the application be deemed suffi­
cient, the court shall, on reasonable notice, require any 
adverse party, whose rights have been adjudicated by the 
declaration, to show cause why further relief should not be 
granted forthwith.



34

(3) When a declaration of right or the granting of 
further relief based thereon shall involve the determination 
of issues of fact triable by a jury, such issues may be sub­
mitted to a jury in the form of interrogatories, with proper 
instructions by the court, whether a general verdict be re­
quired or not.

Title 18— Chapter 3—Offenses Against Elective Fran­
chise and Civil Rights of Citizens.

Section 51. Conspiracy to injure persons in exercise of 
civil rights.

If two or more persons conspire to injure, oppress, 
threaten, or intimidate any citizen in the free exercise or 
enjoyment of any right or privilege secured to him by the 
Constitution or laws of the United States, or because of 
his having so exercised the same, or if two or more per­
sons go in disguise on the highway, or on the premises of 
another, with intent to prevent or hinder his free exercise 
or enjoyment of any right or privilege so secured, they 
shall be fined not more than $5,000 and imprisoned not 
more than ten years, and shall, moreover, be thereafter 
ineligible to any office, or place of honor, profit, or trust 
created by the Constitution or laws of the United States. 
R. S. 5508.

Section 54. Conspiring to prevent officer from perform­
ing duties.

If two or more persons in any State, Territory, or Dis­
trict conspire to prevent, by force, intimidation, or threat, 
any person from accepting or holding any office, trust, or 
place of confidence under the United States, or from dis­
charging any duties thereof; or to induce by like means any 
officer of the United States to leave any State, Territory, 
District, or place, where his duties as an officer are required 
to be performed, or to injure him in his person or property



on account of his lawful discharge of the duties of his office, 
or while engaged in the lawful discharge thereof, or to in­
jure his property so as to molest, interrupt, hinder, or im­
pede him in the discharge of his official duties, each of such 
persons shall be fined not more than $5,000, or imprisoned 
not more than six years, or both. E. S. 5518.

Section 55. Unlawful presence of troops at polls.

Every officer of the Army or Navy, or other person in 
the civil, military, or naval service of the United States, 
who orders, brings, keeps, or has under his authority or 
control any troops or armed men at any place where a 
general or special election is held in any State, unless such 
force be necessary to repel armed enemies of the United 
States, shall be fined not more than $5,000 and imprisoned 
not more than five years. R. S. 5528.

Section 56. Intimidating voters by Army or Navy offi­
cers.

Every officer or other person in the military or naval 
service of the United States who, by force, threat, intimi­
dation, order, advice, or otherwise, prevents, or attempts 
to prevent, any qualified voter of any State from freely 
exercising the right of suffrage at any general or special 
election in such State shall be fined not more than $5,000 
and imprisoned not more than five years. R. S. 5529.

Section 57. Army or Navy officers prescribing qualifi­
cations of voters.

Every officer of the Army or Navy who prescribes or 
fixes, or attempts to prescribe or fix, whether by procla­
mation, order, or otherwise, the qualifications of voters at 
any election in any State shall be punished as provided in 
Section 56 of this title. R. S. 5530.



36

Section 58. Interfering with election officers by Army 
or Navy officers.

Every officer or other person in the military or naval 
service of the United States who, by force, threat, intimi­
dation, order, or otherwise, compels, or attempts to compel, 
any officer holding an election in any State to receive a 
vote from a person not legally qualified to vote, or who 
imposes, or attempts to impose, any regulations for con­
ducting any general or special election in a State different 
from those prescribed by law, or who interferes in any man­
ner with any officer of an election in the discharge of his 
duty, shall be punished as provided in section 56 of this 
title. R. S. 5531.

Section 61. Intimidating or coercing voters; Presiden­
tial and Congressional elections.

It shall be unlawful for any person to intimidate, 
threaten, or coerce, or to attempt to intimidate, threaten, 
or coerce, any other person for the purpose of interfering 
with the right of such other person to vote or to vote as he 
may choose, or of causing such other person to vote for 
or not to vote for, any candidate for the office of President, 
Vice President, Presidential elector, Member of the Senate, 
or Member of the House of Representatives at any election 
held solely or in part for the purpose of selecting a Presi­
dent, a Vice President, a Presidential elector, or any Mem­
ber of the Senate or any Member of the House of Represen­
tatives, Delegates or Commissioners from the Territories 
and insular possessions.

Section 61a. Administrative employees, use of official 
authority.

It shall be unlawful for (1) any person employed in any 
administrative position by the United States, or by any de-



37

partment, independent agency, or other agency of the 
United States (including any corporation controlled by the 
United States or any agency thereof, and any corporation 
all of the capital stock of which is owned by the United 
States or any agency thereof), or (2) any person employed 
in any administrative position by any State, by any political 
subdivision or municipality of any State, or by any agency 
of any State or any of its political subdivisions or munici­
palities (including any corporation controlled by any State 
or by any such political subdivision, municipality, or agency, 
and any corporation all of the capital stock of which is 
owned by any State or by any such political subdivision, 
municipality, or agency), in connection with any activity 
which is financed in whole or in part by loans or grants 
made by the United States, or by any such department, in­
dependent agency, or other agency of the United States, 
to use his official authority for the purpose of interfering 
with, or affecting the election or the nomination of any 
candidate for the office of President, Vice President, Presi­
dential elector, Member of the Senate, Member of the House 
of Representatives, or Delegate or Resident Commissioner 
from any Territory or insular possession.

Section 61b. Promising reward for political activity.

It shall be unlawful for any person, directly or indirectly 
to promise any employment, position, work, compensation, 
or other benefit, provided for or made possible in whole or 
in part by any Act of Congress, to any person as considera­
tion, favor, or reward for any political activity or for the 
support of or opposition to any candidate or any political 
party in any election.

Section 61c. Depriving persons receiving relief funds 
of work or compensation because of race, creed, color, or 
political activity.



38

Except as may be required by the provisions of sub­
section (b), section 9 of this Act (Sec. 61h of this title), it 
shall be unlawful for any person to deprive, attempt to 
deprive, or treaten (threaten) to deprive, by any means, 
any person of any employment, position, work, compensa­
tion, or other benefit provided for or made possible by any 
Act of Congress appropriating funds for work relief or 
relief purposes, on account of race, creed color, or any 
political activity, support of, or opposition to any candidate 
or any political party in any election.

Section 61d. Receiving contributions for political pur­
poses from persons on relief.

It shall be unlawful for any person to solicit or receive 
or be in any manner concerned in soliciting or receiving any 
assessment, subscription, or contribution for any political 
purpose whatever from any person known by him to be en­
titled to or receiving compensation, employment, or other 
benefit provided for or made possible by any Act of Con­
gress appropriating funds for work relief or relief pur­
poses.

Section 61e. Furnishing names of persons on relief for 
political purposes.

It shall be unlawful for any person for political purposes 
to furnish or to disclose, or to aid or assist in furnishing 
or disclosing, any list or names of persons receiving com­
pensation, employment, or benefits provided for or made 
possible by any Act of Congress appropriating, or author­
izing the appropriation of, funds for work relief or relief 
purposes, to a political candidate, committee, campaign 
manager, or to any person for delivery to a political can­
didate, committee, or campaign manager, and it shall be 
unlawful for any person to receive any such list or names 
for political purposes.



39

Section 61f. Relief appropriations; use to restrain vot­
ing rights.

No part of any appropriation made by any Act, hereto­
fore or hereafter enacted, making appropriations for work 
relief, relief, or otherwise to increase employment by pro­
viding loans and grants for public-works projects, shall be 
used for the purpose of, and no authority conferred by any 
such Act upon any person shall be exercised or adminis­
tered for the purpose of, interfering with, restraining, or 
coercing any individual in the exercise of his right to vote 
at any election.

Section 61g. Penalty for violations of Secs. 61 to 61f.

Any person who violates any of the foregoing provisions 
of this Act (Secs. 61 to 61f of this title) upon conviction 
thereof shall be fined not more than $1,000 or imprisoned 
for not more than one year, or both.

Section 61h. Government employees influencing elec­
tion or taking part in political campaigns; exceptions; 
penalty.

(a) It shall be unlawful for any person employed in 
the executive branch of the Federal Government, or any 
agency or department thereof, to use his official authority 
or influence for the purpose of interfering with an election 
or affecting the result thereof. No officer or employee in 
the executive branch of the Federal Government, or any 
agency or department thereof, except a part-time officer or 
part-time employee without compensation or with nominal 
compensation serving in connection with the existing war 
effort, other than in any capacity relating to the procure­
ment or manufacture of war material, shall take any active 
part in political management or in political campaigns. All 
such persons shall retain the right to vote as they may 
choose and to express their opinions on all political sub-



40

jocts and candidates. For the purposes of this noction Hits 
form “ officer”  or “ employee)”  hIiiiII not he construed to 
include (I) the President and Vice President of the United 
States; (2) persons whose compensation is paid from the 
appropriation for (lie office of the President; (8) heads and 
assistant heads of executive departments; (4) officers who 
are appointed hy the President, by and with the advice and 
consent of the Senate, and who determine policies to be 
pursued by the United States in its relations with foreign 
powers or in the Nation-wide administration of Federal 
laws.

(b) Any person violating the provisions of this section 
shall be immediately removed from the position or office 
held by him, and thereafter no part of the funds appro­
priated by any Act of Congress for such position or office 
shall be used to pay the compensation of such person.



41

APPENDIX B 

Constitution of Alabama

ARTICLE VI11

Section 177.—Qualifications of voters.

Every male citizen of this State, who is a citizen of the 
United States, and every male resident of foreign birth, 
who, before the ratification of this Constitution, shall have 
legally declared his intention to become a citizen of the 
United States, twenty-one years old or upward, not labor­
ing under any disabilities named in this article, and pos­
sessing the qualifications required by it, shall be an elector, 
and shall be entitled to vote at any election by the people; 
provided, that all foreigners who have legally declared 
their intention of becoming citizens of the United States, 
shall, if they fail to become citizens thereof at the time they 
are entitled to become such, cease to have the right to vote 
until they become such citizens.

Section 178.—Residence requirement— registration.

To entitle a person to vote at any election by the people, 
he shall have resided in the State at least two years, in the 
county one year, and in the precinct or ward three months, 
immediately preceding the election at which he offers to 
vote, and lie shall have been duly registered as an elector, 
and shall have paid on or before the first day of February 
next preceding the date of the election at which he offers 
to vote, all poll taxes due from him for the year nineteen 
hundred and one, and for each subsequent year; provided, 
that any elector who, within three months next preceding 
the date of the election at which he offers to vote, has 
removed from one precinct or ward to another precinct or



42

ward in the same county, incorporated town or city, shall 
have the right to vote in the precinct or ward from which 
he has so removed, if he would have been entitled to vote 
in such precinct or ward but for such removal.

Section 181.—Literacy and land ownership qualifica­
tions.

After the first day of January, nineteen hundred and 
three, the following persons, and no others, who, if their 
place of residence shall remain unchanged, will have, at the 
date of the next general election, the qualifications as to 
residence prescribed in section 178 of this Constitution, 
shall be qualified to register as electors, provided, they shall 
not be disqualified under section 182 of this Constitution.

First. Those who can read and write any article of the 
Constitution of the United States in the English language, 
and who are physically unable to work; and those who can 
read and write any article of the Constitution of the United 
States in the English language, and who have worked or 
been regularly engaged in some lawful employment, busi­
ness or occupation, trade or calling for the greater part of 
the twelve months next preceding the time they offer to 
register; and those who are unable to read and write, if 
such inability is due solely to physical disability; or,

Second. The owner in good faith, in his own right, or 
the husband of a woman who is the owner in good faith, in 
her own right, of forty acres of land situate in this State, 
upon which they reside; or the owner in good faith, in his 
own right, or the husband of any woman who is the owner 
in good faith, in her own right, of real estate, situate, in this 
State assessed for taxation at the value of three hundred 
dollars or more, or the owner in good faith in his own 
right, or the husband of a woman who is the owner in good



43

faith, in her own right, of personal property in this State 
assessed for taxation at three hundred dollars or more; 
provided that the taxes due upon s-ueh real or personal 
property for the next preceding year in which he offers to 
register shall have been paid, unless the assessment shall 
have been legally contested and is undetermined.

Section 182.—Disqualifications of voters.

The following persons shall be disqualified both from 
registering and from voting, namely:

All idiots and insane persons; those who shall by reason 
of conviction of crime be disqualified from voting at the 
time of the ratification of this Constitution; those who shall 
be convicted of treason, murder, arson, embezzlement, mal­
feasance in office, larceny, receiving stolen property, ob­
taining property or money under false pretences, perjury, 
subornation of perjury, robbery, assault with intent to rob, 
burglary, forgery, bribery, assault and battery on the wife, 
bigamy, living in adultery, sodomy, incest, rape, miscegena­
tion, crime against nature, or any crime punishable by im­
prisonment in the penitentiary, or of any infamous crime 
or crime involving moral turpitude; also any person who 
shall be convicted as a vagrant or tramp, or, of selling or 
offering to sell his vote or the vote of another, or of making 
or offering to make false return in any election by the 
people or in any primary election to procure the nomina­
tion or election of any person to any office, or of suborning 
any witness or registrar to secure the registration of any 
person as an elector.

Section 184.— Qualifications for voting in local elections.

No person, not registered and qualified as an elector 
under the provisions of this article, shall vote at the gen­
eral election in nineteen hundred and two, or at any subse-



44

quent State, county, or municipal election, general, local or 
special; but the provisions of this article shall not apply to 
any election held prior to the general election in the year 
nineteen hundred and two.

Section 186.—Registration.

The Legislature shall provide by law for the registra­
tion, after the first day of January, nineteen hundred and 
three, of all qualified electors. Until the first day of Janu­
ary, nineteen hundred and three, all electors shall be regis­
tered under and in accordance with the requirements of 
this section, as follows:

First. Board of Registrars—Registration shall be con­
ducted in each county by a board of three reputable and 
suitable persons resident in the county, who shall not hold 
any elective office during their term, to be appointed within 
sixty days after the ratification of this constitution, by the 
Governor, Auditor and Commissioner of Agriculture and 
Industries, or by a majority of them, acting as a board of 
appointment. If one or more of the persons appointed on 
such board of registration shall refuse, neglect, or be un­
able to qualify or serve, or if a vacancy or vacancies occur 
in the membership of the board of registrars from any 
cause, the Governor, Auditor and Commissioner of Agri­
culture and Industries, or a majority of them, acting as a 
board of appointment, shall make other appointments to 
fill such board. Each registrar shall receive two dollars per 
day, to be paid by the State, and disbursed by the several 
judges of probate, for each entire day’s attendance upon 
the sessions of the board. Before entering upon the per­
formance of the duties of his office, each registrar shall take 
the same oath required of the judicial officers of the State, 
which oath may be administered by any person authorized 
by law to administer oaths. The oath shall be in writing



45

and subscribed by the registrar and filed in the office of 
judge of probate of the county.

Second. First registration—Prior to the first day of 
August, nineteen hundred and two, the board of registrars 
in each county shall visit each precinct at least once, and 
oftener, if necessary to make a complete registration of all 
persons entitled to register, and shall remain there at least 
one day from eight o ’clock in the morning until sunset. 
They shall give at least twenty days’ notice of the time 
when, and the place in the precinct where, they will attend 
to register applicants for registration, by bills posted at 
five or more public places in each election precinct, and by 
advertisement once a week for three successive weeks in a 
newspaper, if there be one published in the county. Upon 
failure to give such notice, or to attend any appointment 
made by them in any precinct, they shall, after like notice, 
fill new appointments therein; but the time consumed by 
the board in completing such registration shall not exceed 
sixty working days in any county, except that in counties 
of more than nine hundred square miles in area, such board 
may consume seventy-five working days in completing the 
registration, and except that in counties in which there is 
any city of eight thousand or more inhabitants, the board 
may remain in session, in addition to the time hereinbefore 
prescribed, for not more than three successive weeks in 
each of such cities; and thereafter the board may sit from 
time to time in each of such cities not more than one week 
in each month, and except that in the county of Jefferson 
the board may hold an additional session of not exceeding 
five consecutive days duration for each session, in each 
town or city of more than one thousand and less than eight 
thousand inhabitants. No person shall be registered ex­
cept at the county site or in the precinct in which he resides. 
The registrars shall issue to each person registered a certifi­
cate of registration.



46

Third. Supplementary registration — The board of 
registrars shall not register any person between the first 
day of August nineteen hundred and two and the Friday 
next preceding the day of election in November, nineteen 
hundred and two. On Friday and Saturday next preceding- 
the day of election in November, nineteen hundred and two, 
they shall sit in the court house of each county during such 
days, and shall register all applicants having the qualifi­
cations prescribed by section 180 of this Constitution, and 
not disqualified under section 182, who shall have reached 
the age of twenty-one years after the first day of August, 
nineteen hundred and two, or who shall prove to the reason­
able satisfaction of the board that, by reason of physical 
disability or unavoidable absence from the county, they had 
no opportunity to register prior to the first day of August, 
nineteen hundred and two, and they shall not on such days 
register any other persons. When there are two or more 
court houses in a county, the registrars may sit during 
such two days at the court house they may select, but shall 
give ten days’ notice, by bills posted at each of the court 
houses, designating the court house at which they will sit.

Fourth. Third registration— The board of registrars 
shall hold sessions at the court house of their respective 
counties during the entire third week in November, nine­
teen hundred and two, and for six working days next prior 
to the twentieth day of December, nineteen hundred and 
two, during which sessions they shall register all persons 
applying who possess the qualifications prescribed in sec­
tion 180 of this Constitution, and who shall not be dis­
qualified under section 182. In counties where there are 
more than two court houses the board of registrars shall 
divide the time equally between them. The board of regis­
trars shall give notice of the time and place of such sessions 
by posting notices at each court house in their respective



47

counties, and at each voting place and at three other public 
places in the county, and by publication once a week for 
two consecutive weeks in a newspaper, if one is published 
in the county; such notices to be posted and such publica­
tions to be commenced as early as practicable in the first 
week of November, nineteen hundred and two. Failure on 
the part of the registrars to conform to the provisions of 
this article as to the giving of the required notices shall not 
invalidate any registration made by them.

Fifth. Oath— The board of registrars shall have power 
to examine, under oath or affirmation, all applicants for 
registration, and to take testimony touching the qualifica­
tions of such applicants. Each member of such board is 
authorized to administer the oath to be taken by the appli­
cants and witnesses, which shall be in the following form, 
and subscribed by the person making it, and preserved by 
the board, namely: “ I solemnly swear (or affirm) that in 
the matter of the application of . . . for registration as an 
elector, I will speak the truth, the whole truth, and nothing 
but the truth, so help me God. ’ ’ Any person who upon such 
examination makes any wilfully false statement in refer­
ence to any material matter touching the qualification of 
any applicant for registration, shall be guilty of perjury, 
and upon conviction thereof, shall be imprisoned in the 
penitentiary for not less than one nor more than five years.

Sixth. Appeal— The action of the majority of the board 
of registrars shall be the action of the board and a ma­
jority of the board shall constitute a quorum for the trans­
action of all business. Any person to whom registration is 
denied shall have the right of appeal, without giving se­
curity for costs, within thirty days after such denial, by 
filing a petition in the Circuit Court or court of like juris­
diction held for the county in which he seeks to register, 
to have his qualifications as an elector determined. Upon



48

the filing of the petition the clerk of the court shall give 
notice thereof to any solicitor authorized to represent the 
State in said county, whose duty it shall be to appear and 
defend against the petition on behalf of the State. Upon 
such trial the court shall charge the jury only as to what 
constitutes the qualifications that entitle the applicant to 
become an elector at the time he applied for registration, 
and the jury shall determine the weight and effect of the 
evidence and return a verdict. From the judgment ren­
dered an appeal will lie to the Supreme Court in favor of 
the petitioner, to be taken within thirty days. Final judg­
ment in favor of the petitioner shall entitle him to registra­
tion as of the date of his application to the registrars.

Seventh. Printing of registrars— The Secretary of 
State shall, at the expense of the State, have prepared and 
shall furnish to the registrars and judges of probate of the 
several counties a sufficient number of registration books 
and of blank forms of the oath, certificates of registration 
and notices required to be given by the registrars. The 
cost of the publication in newspapers of the notices required 
to be given by the registrars shall be paid by the State, the 
bills therefor to be rendered to the Secretary of State and 
approved by him.

Eighth. Fraudulent registration — Any person who 
registers for another, or who registers more than once, 
and any registrar who enters the name of any person on 
the list of registered voters, without such person having 
made application in person under oath on a form provided 
for that purpose, or who knowingly registers any person 
more than once, or who knowingly enters a name upon the 
registration list as the name of a voter, without any one 
of that name applying to register, shall be guilty of a 
felony, and upon conviction thereof shall be imprisoned in 
the penitentiary for not less than one nor more than five 
years.



49

Code of Alabama 1940
Title 17

Sec. 21. Registrars; Appointment of.—Registration shall 
be conducted in each county by a board of three reputable 
and suitable persons to be appointed by the governor, 
auditor and commissioner of agriculture and industries, or 
by a majority of them acting as a board of appointment, and 
who must be also qualified electors and residents of the 
county and who shall not hold an elective office during their 
term. One of said members shall be designated by the 
board of appointment as chairman of the board of registrars 
for each county. Provided, however, that in counties of 
over 350,000 population, according to the last or any sub­
sequent census, that the governor shall appoint the chair­
man of the board of registrars.

Sec. 24. Fees, compensation of registrars.—Each registrar 
shall receive five dollars per day to be paid by the state and 
disbursed by the several judges of probate for each day’s 
attendance upon the sessions of the board.

Sec. 32. Persons qualified to register. The following per­
sons and no other, who, if their places of residence shall 
remain unchanged, will have at the date of the next gen­
eral election the qualifications as to residence prescribed 
by Section 178 of the constitution of 1901, shall be qualified 
to register as electors, provided they shall not be disquali­
fied under the laws of the state:

1st. Those who can read and write any article of the 
constitution of the United States in the English language, 
and who have worked or been regularly employed in some 
lawful employment, business or occupation, trade or calling 
for the greater part of twelve months next preceding the 
time they offer to register, and those who are unable to 
read and write if such inability is due solely to physical 
disability; or



50

2nd. The owner in good faith in his or her own right, 
or the husband of a woman or the wife of any man who 
is the owner in good faith in her or his own right of forty 
acres of land situated in this state, upon which they reside; 
or the owner in good faith in his or her own right, or the 
husband of any woman or the wife of any man who is the 
owner in good faith in his or her own right of real estate 
situated in this state, assessed for taxation at a value of 
three hundred dollars, or more; or the owner in good faith, 
in his or her own right, or the husband of any woman or the 
wife of any man who is the owner in good faith in her or 
his own right of personal property in this state assessed 
for taxation for three hundred dollars or more; provided 
that the taxes due upon such real or personal property for 
the next year preceding the year in which he or she offers to 
register shall have been paid, unless the assessment shall 
have been legally contested and is undetermined.
Sec. 35. Right of appeal from registration.—

Any person to whom registration is denied shall have 
the right to appeal, without giving security for costs, within 
thirty days after such denial, by filing a petition in the 
circuit Court or Court of like jurisdiction held for the 
county in which he or she seeks to register, to have his or 
her qualifications as an elector determined. Upon the filing 
of the petition, the clerk of the Court shall give notice 
thereof to the solicitor authorized to represent the state in 
said county, who shall appear and defend against the peti­
tion on behalf of the state. Upon such trial the Court shall 
charge the jury only as to what constitutes the qualifica­
tions that entitle the applicant to become an elector at the 
time he or she applied for registration, and the jury shall 
determine the weight and effect of the evidence, and return 
a verdict. From the judgment rendered an appeal will lie 
to the supreme Court in favor of the petition to be taken 
within thirty days. Final judgment in favor of the peti­
tioner shall entitle him or her to registration as of the date 
of his or her application to the registrars.



51

APPENDIX C 

Constitution of Louisiana

ARTICLE VIII

Section 5.—Remedy for denial of registration.

Any person possessing the qualifications for voting pre­
scribed by this Constitution, who may be denied registra­
tion, shall have the right to apply for relief to the district 
court having jurisdiction of civil causes for the parish in 
which he offers to register. Said court shall then try the 
cause, giving it preference over all other cases, before a 
jury of twelve, nine of whom must concur to render a ver­
dict. This verdict shall be a final determination of the 
cause. The trial court may, however, grant one new trial 
by jury. In no cases shall any appeal lie or any other court 
exercise the right of review. * * *



52

APPENDIX D 

26 Oklahoma Statutes

Section 74— Registration of electors— Time for certifi­
cate to certain voters—Review of refusal 
of registration— School district elections 
excepted.

It shall be the duty of the precinct registrar to register 
each qualified elector of his election precinct who makes 
application between the thirtieth day of April 1916, and the 
eleventh day of May 1916, and such person applying shall 
at the time he applies to register be a qualified elector in 
such precinct and he shall comply with the provisions of 
this act, and it shall be the duty of every qualified elector 
to register within such time; provided, if any elector should 
be absent from the county of his residence during such 
period of time, or is prevented by sickness or unavoidable 
misfortune from registering with the precinct registrar 
within such time, he may register with such precinct regis­
trar at any time after the tenth day of May, 1916, up to and 
including the thirtieth day of June, 1916, but the precinct 
registrar shall register no person under this provision 
unless he be satisfied that such person was absent from the 
county or was prevented from registering by sickness or 
unavoidable misfortune, as hereinbefore provided, and 
provided that it shall be the mandatory duty of every pre­
cinct registrar to issue registration certificates to every 
qualified elector who voted at the general election held in 
this state on the first Tuesday after the first Monday in 
November, 1914, without the application of said elector for 
registration, and, to deliver such certificate to such elector 
if he is still a qualified elector in such precinct and the fail­
ure to so register such elector who voted in such election



53

held in November 1914, shall not preclude or prevent such 
elector from voting in any election in this state; and pro­
vided further, that wherever any elector is refused registra­
tion by any registration officer such action may be reviewed 
by the district court of the county by the aggrieved elector 
by his filing within ten days a petition with the Clerk of 
said court, whereupon summons shall be issued to said 
registrar requiring him to answer within ten days, and the 
district court shall be a (give an) expeditious hearing and 
from his judgment an appeal will lie at the instance of 
either party to the Supreme Court of the State as in civil 
cases; and provided further, that the provisions of this act 
shall not apply to any school district elections. Provided 
further, that each county election board in this state shall 
furnish to each precinct election board in the respective 
counties a list of the voters who voted at the election in 
November, 1914, and such list shall be conclusive evidence 
of the right of such person to vote.



L awyers P ress, I nc., 165 William St., N. Y. C .; ’Phone: BEekman 3-2300







IN  THE

Itutrfc States (Hirorit (Heart of Apprats
F or the F ifth Circuit

No. 11,538

WILLIAM P. MITCHELL,
A p p e lla n t ,

v e r s u s

MRS. GEORGE C. WRIGHT, et al.,
A p p e l le e s .

APPEAL FROM  T H E  DISTRICT COURT OF T H E  UNITED STATES 
FOR T H E  MIDDLE DISTRICT OF ALABAM A

SUPPLEMENTAL BRIEF FOR APPELLANT

Robert L. Carter, 
New York, N. Y.

O f C ou n sel.

A rthur D. Shores,
1630 Fourth Avenue, No., 
Birmingham 3, Ala.

W illiam H. Hastie,
615 F. Street, N. W., 
Washington, D. C.

Thurgood Marshall,
20 West 40th Street,
New York, N. Y.

A t t o r n e y s  f o r  A p p e lla n t .





TABLE OF CONTENTS

PAGE

Preliminary Statement _____________________________  1

Argument __________________________________________  2

I. Article I, Sections 2 and 4 and Seventeenth 
Amendment to the United States Constitution 
Have Been Violated___________________________  2

II. Appellees’ Acts Constitute State Action Under 
the Constitution and Laws of the United States.. 4

Conclusion _________________________________________  10

Table of Cases.

Barney v. New York, 113 U. S. 430, 48 L. Ed. 737 
(1904) L----------------------------------------------------- ---- ....5,6,9

Home Telephone & Telegraph Co. v. Los Angeles, 227 
U. S. 278, 33 S. Ct. 312, 57 L. Ed. 510 (1913)_______  6

Iowa-Des Moines Nat’l Bank v. Bennett, 284 U. S. 239,
52 S. Ct. 133, 76 L. Ed. 265 (1931)_________________ 6

Raymond v. Chicago Union Traction Co., 207 U. S. 20,
28 S. Ct, 7, 52 L. Ed. 78 (1907)___________________  5

Screws v. United States, ___ U. S . __ , 88 L. Ed.
1039 _____________________________________________ 7, 9

Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L.
Ed. 987 (1943) ___________________________________  4,7

Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed.
497 (1944) _______________________ ________________  7,9



11

PAGE

United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031,
85 L. Ed. 1368 (1941)..______________________3, 4, 6, 7, 8

Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 85 
(1898) __________________________________________  2

Other Citations.

Constitution of Alabama, Art. VIII, Section 184---------  2
Alabama Code of 1940, Title 17, Section 21___________  2



IN’ THE

JUittrii States (Hirmit (Emtrf nf Apprals
F oe the F ifth Ciecuit.

No. 11,538

W illiam P. Mitchell,
A p p e lla n t ,

v s .

Mbs. Geoege C. W eight, et al.,
A p p e l le e s .

APPEAL FBOM  T H E  DISTBICT COUBT OF TH E  U N ITED STATES 
FOE T H E  MIDDLE DISTBICT OF ALABAMA

SUPPLEMENTAL BRIEF FOR APPELLANT

PRELIMINARY STATEMENT

Appellant files this supplemental brief before the call 
of the case for argument in order to clarify certain points 
which have been raised in the appellees’ brief. No attempt 
will be made to answer all of the arguments raised since 
most of these contentions have been adequately covered in 
appellant’s original brief.



2

ARGUMENT

I

Article I, Sections 2 and 4 and 17th Amendment to 
the United States Constitution Have Been Violated.

Registration is a prerequisite to voting in any state or 
federal election held in the State of Alabama. C o n s titu tio n  
o f  A la b a m a , A r t ic le  V I I I ,  S e c t io n  184; A la b a m a  C o d e  o f  
1940, T itle  17, S e c tio n  21. In order to qualify to vote for 
members of Congress or of the Senate of the United States, 
one must have the necessary qualifications for an elector of 
the most numerous branch of the state legislature. Appel­
lees contend that in order for appellant to assert that his 
right to vote for a member of Congress has been violated, 
he must not only have the requisite qualifications of an 
elector but must be registered as required by state law. In 
substance, appellees argue that appellant must not only 
meet all the requisite qualifications for an elector in the 
most numerous branch of the legislature of Alabama but 
must be actually registered as such before he can complain 
of being denied rights secured by Article I, sections 2 and 4 
and the 17th Amendments to the United States Constitu­
tion. On its surface this contention is persuasive and ap­
pellees properly cite W ile y  v. S in k ler , 179 U. S. 58, 66, 21 
S. Ct. 17, 45 L. Ed. 85, 89 (1898) where the United States 
Supreme Court said:

“ The Constitution and the laws of the state thus 
require that, in order to entitle anyone to have his 
vote received at any election, he must not only have 
the requisite qualifications of an elector, but he must 
have been registered. By elementary rules of plead­
ing both these essential requirements must be dis­
tinctly alleged by the plaintiff in any action against



3

the managers of an election for refusing his 
vote . .

There the plaintiff was attempting to cast his ballot in a 
general election for choice of United States Congressmen. 
There was not before the Court any attempt on the part of 
the state officers to prevent plaintiff from registering and 
thereby prohibit him from meeting the qualifications of an 
elector as required by the Constitution and laws of the 
United States and of the state in question. Had this situa­
tion been before the Court, it seems abundantly clear that 
a different conclusion would have been reached. The com­
plaint had merely alleged that the plaintiff was a duly quali­
fied elector, but it contained no allegation that he had ever 
registered or had even made application to register. Be­
cause of this omission it was held that the complaint did not 
state facts sufficient to constitute a cause of action.

Whatever doubts this decision may have raised were 
conclusively settled in U n ited  S ta te s  v. C la ssic , 313 U. S. 
299, 61 St. 1031, 85 L. Ed. 1368 (1941). There a primary 
election was involved, and an argument similar to that pre­
sented by appellees here was raised. The Court held that 
the primary in Louisiana was an integral part of the pro­
cedure for the choice of Congressmen and that the right 
of qualified voters to vote in a Congressional primary elec­
tion and to have their ballots counted was in actuality the 
right to participate in that choice. And said the Court at 
page 318:

“ Where the state law has made the primary an 
integral part of the procedure of choice, or where in 
fact the primary effectively controls the choice, the 
right of the elector to have his ballot counted at the 
primary, is likewise included in the right protected 
by Article I, § 2. And this right of participation 
is protected just as is the right to vote at the 
election, where the primary is by law made an in-



4

tegral part of the election machinery, whether the 
voter exercises his right in a party primary which 
invariably, sometimes or never determines the ulti­
mate choice of the representative.”

Here registration is a prerequisite to voting in a Congres­
sional election held in the state of Alabama and is an in­
tegral part of the election machinery of the State. Refusal 
to permit a qualified elector to register is as effective a 
deprivation of the right to vote in Congressional elections, 
as is the original refusal to permit one to cast a ballot in a 
general or primary election. Article I, sections 2 and 4 and 
the Seventeenth Amendment, to have any real meaning, 
must apply to each and every step in the electoral process 
which is an integral part of that machinery. This the Court 
recognized in U n ited  S ta te s  v. C la ssic , su p ra . The rationale 
of that decision is clearly applicable here.1 That there has 
been a violation of the Fourteenth and Fifteenth Amend­
ments as well is no basis for concluding that Article I, Sec­
tions 2 and 4 and the Seventeenth Amendment have not 
been breached also.

II

Appellees’ Acts Constitute State Action Under the 
Constitution and Laws of the United States.

In order to bolster their basic contention that the refusal 
to register appellant is not state action, appellees interpose 
the argument above that such refusal does not violate 
Article I, sections 2 and 4 and the Seventeenth Amendment, 
which run against individual as well as state action. Ap­
pellees argue that the only provision of the federal Consti-

1 See also Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L. 
Ed. 987 (1943).



5

tution which could possibly have been violated are the Four­
teenth and Fifteenth Amendments under which the wrong 
complained of must be the action of the state. Since appel­
lees’ action violates the Constitution and laws of the state of 
Alabama, they argue that such action cannot be considered 
the action of the state and that, therefore, there is no basis 
for the assertion of federal authority. For this argument 
appellees apparently rely on B a r n e y  v. N ew  Y o r k , 113 U. S. 
430, 48 L. Ed. 737 (1904) where the United States Supreme 
Court held that where a state official acted without authority 
and contrary to state law, such action was not state action 
within the meaning of the Fourteenth Amendment. In this 
situation the proper procedure, it was felt, was to seek 
redress in the state courts. This ruling has been so greatly 
limited and restricted by subsequent Supreme Court de­
cisions, however, as to be no longer persuasive.

In R a y m o n d  v. C h ica go  U n ion  T ra c tio n  C o m p a n y , 207 
U. S. 20, 35, 36, 28 S. Ct. 7, 52 L. Ed. 78, 87 (1907), in consid­
ering the legality of the actions of a State Board in assess­
ing plaintiff’s property allegedly in violation of the Four­
teenth Amendment the Court said:

“ Acting under the constitution and laws of the 
state, the board therefore represents the state, and 
its action is the action of the state. The provisions 
of the 14th Amendment are not confined to the 
action of the state through its legislature, or through 
the executive or judicial authority. Those provisions 
relate to and cover all the instrumentalities by which 
the state acts, and so it has been held that whoever 
by virtue of public position under a state government 
deprives another of any right protected by that 
Amendment against deprivation by the state, violates 
the constitutional inhibition; and as he acts in the 
name of the state and for the state and is clothed 
with the state’s powers, his act is that of the state.”



6

In the R a y m o n d  case, it was required by the state Con­
stitution that the assessing board levy a tax on every per­
son based on the value of property owned. It was pointed 
out that this constitutional provision had been ignored by 
the Board, thus resulting in an illegal discrimination. The 
Court differentiated the B a r n e y  case, on the ground that 
there the act complained of was forbidden by the state legis­
lature, and that no such situation existed in proceedings 
presently before it.

In H o m e  T e le p h o n e  T e le g r a p h  C o m p a n y  v. L o s  
A n g e le s , 227 U. S. 278, 293, 33 S. Ct. 312, 57 L. Ed. 510, 517 
(1913), the Court in commenting on the B a r n e y  case said:

“  . . . ,— the B a r n e y  Case,—it might suffice to say, 
as we have already pointed out, was considered in 
the R a y m o n d  Case, and if it conflicted with the doc­
trine in that case and the doctrine of the subsequent 
and leading case of E x  P a r te  Y o u n g , is now so dis­
tinguished or qualified as not to be here authoritative 
or even persuasive. But . . . there is no ground for 
saying that that case is authority for overruling the 
settled doctrine which, abstractly, at least, it recog­
nized. If there were room for such a conclusion, . . . 
it would be our plain duty to qualify and restrict 
the B a r n e y  Case in so far as it might be found to 
conflict with the rule here applied.

Whatever doubt may have been held that the definition 
of state action in the B a r n e y  case was still controlling was 
finally dissipated in U n ited  S ta te s  v. C la ss ic  where the 
Court said at page 326:

“ Misuse of power possessed by virtue of state 
law and made possible only because the wrongdoer 
is clothed with the authority of state law, is action 
taken ‘ under color o f ’ state law.”  2

2 In accord see IoWa-Des Moines Nat’l. Bank v. Bennett, 284 
U. S. 239, 52 S. Ct. 133, 76 L. Ed. 265 (1931).



7

Such action was, therefore, held to be within the reach of 
federal power.3

Attempts were made to resurrect the moribund doctrine 
of B a r n e y  v. N ew  Y o r k  in S n o w d en  v. H u g h es , 321 U. S. 
1, 64 S. Ct. 397, 88 L. Ed. 497 (1944), but the Court on page 
13 in referring to the B a r n e y  case said:

“ As we conclude that the right asserted by peti­
tioner is not one secured by the Fourteenth Amend­
ment and affords no basis for a suit brought under 
the sections of the Civil Rights Acts relied upon, we 
find it unnecessary to consider whether the action by 
the State Board of which petitioner complains is 
state action within the meaning of the Fourteenth 
Amendment. The authority of Barney v. New York 
. . .  on which the court below relied, has been so re­
stricted by our later decisions, [referring to the cases 
cited supra] that our determination may be more 
properly and more certainly rested on petitioner’s 
failure to asert a right of a nature such as the Four­
teenth Amendment protects against state action.”

Again in S cre w s  v. U n ited  S t a t e s ,___U. S .___ , 88 L. Ed.
1029, an effort was made to have the Court redefine action 
under color of law as only such action as is taken by govern­
mental officials in conformity to state law. Again the Court 
refused to take this position and restated its definition of 
state action announced in U n ited  S ta te s  v. C la ssic , s u p r a ;  
said Mr. Justice Douglas in the majority opinion at page 
1039:

“ It is said, however, that petitioners did not act 
‘ under color of any law’ within the meaning of Sec­
tion 20 of the Criminal Code. We disagree. . . .

“ Some of the arguments which have been ad­
vanced in support of the contrary conclusions sug­
gest that the question under section 20 is whether

3 See also Smith v. Allwright, supra,



8

Congress has made it a federal offense for a state 
officer to violate the law of his State. But there is 
no warrant for treating the question in state law 
terms. The problem is not whether state law has 
been violated but whether an inhabitant of a State 
has been deprived of a federal right by one who acts 
under ‘ color of any law’. He who acts under ‘ color’ 
of law may be a federal officer or a state officer. He 
may act under ‘ color’ of federal law or of state 
law. ’ ’

The Court then refers to and quotes with approval that 
portion of the opinion in the C la ssic  case which we have 
quoted on page six and of this brief and continued at page 
1041:

“ It is said that we should abandon the holding of 
the C la ssic  case. It is suggested that the present 
problem was not clearly in focus in that case and 
that its holding was ill-advised. A  reading of the 
opinion makes plain that the question was squarely 
involved and squarely met. It followed the rule an­
nounced in E x  p a r te  V irg in ia , . . . that a state judge 
who in violation of state law discriminated against 
[Negroes] in the selection of juries violated the Act 
of March 1, 1875, 18 Stat. 336. It is true that the 
statute did not contain the words under ‘ color’ of 
law. But the Court in deciding what was state action 
within the meaning of the Fourteenth Amendment 
held that it was immaterial that the state officer ex­
ceeded the limits of his authority. ‘ . . .  as he acts 
in the name and for the State, and is clothed with the 
State’s power, his act is that of the State. This must 
be so, or the constitutional prohibition has no mean­
ing. Then the State has clothed one of its agents 
with power to annul or to evade it ’. . . . Reference is 
made to statements of Senator Trumbull in his dis­
cussion of Section 2 of the Civil Rights Act of 1866, 
14 Stat. 27, and to statements of Senator Sherman 
concerning the 1870 Act as supporting the conclusion 
that ‘ under color of any law’ was designed to include



9

only action taken by officials pursuant to state law. 
But those statements in their context are inconclu­
sive on the precise problem involved in the C la ssic  
case and in the present case. We are not dealing 
here with a case where an officer not authorized to 
act nevertheless takes action. Here the state officers 
were authorized to make an arrest and to take such 
steps as were necessary to make the arrest effective. 
They acted without authority only in the sense that 
they used excessive force in making the arrest effec­
tive. It is clear that under ‘ color’ of law means 
under ‘ pretense’ of law. Thus acts of officers in the 
ambit of their personal pursuits are plainly excluded. 
Acts of officers who undertake to perform their offi­
cial duties are included whether they hew to the line 
of their authority or overstep it.”

In his concurring opinion Mr. Justice R u t l e d g e , at page 
1043, rejected these contentions in the following terms:

“ Strange as the argument is the reason. It comes 
to this, that abuse of state power creates immunity 
to federal power. Because what they did violated 
the state’s laws, the nation cannot reach their con­
duct. It may deprive the citizen of his liberty and 
his life. But whatever state officers may do in abuse 
of their official capacity can give this Government 
and its court no concern. This, though the prime 
object of the Fourteenth Amendment . . . was to se­
cure these fundamental rights against wrongful de­
nial by exercise of the power of the states.

“ The defense is not pretty. Nor is it valid. By 
a long course of decision from E x  P a r te  V irg in ia  . . . 
to U n ited  S ta te s  v. C la ss ic  . . .  it has been rejected. 
The ground should not need plowing again. It was 
cleared long ago and thoroughly.”  4

4 One Justice of the Supreme Court, however, would appear to 
view the doctrine of the Barney v. New York with favor. See the 
concurring opinion of Mr. Justice F r a n k f u r t e r  in Snowden v. 
Hughes, supra, at pages 16, 17 and his dissenting opinion in Screws 
v. United States, supra.



10

It is conclusively settled, therefore, that the action of 
appellees in refusing to register appellant, although he pos­
sessed the requisite qualifications, solely because of his race 
and color and pursuant to a policy, custom and usage of 
denying the equal protection of the laws to Negro applicants 
by refusing to register qualified Negro electors while at the 
same time registering white electors with less qualifications 
than Negroes, was state action within the meaning of the 
14th and 15th Amendments.

CONCLUSION

Appellant has clearly shown by virtue of his original 
brief and this supplemental brief that the judgment of the 
court below was erroneous.

Wherefore, it is respectfully submitted that this 
Court reverse the judgment of the District Court dis­
missing appellant’s amended complaint.

A rthur D. Shores,
1630 Fourth Avenue, No., 
Birmingham 3, Ala.

W illiam H. Hastie,
615 F. Street, N. W., 
Washington, D. C.

T hurgood Marshall,
20 West 40th Street,
New York, N. Y.

A t to r n e y s  f o r  A p p ella n t.

R obert L. Carter,
New York, N. Y.

O f C ou n sel.





L awyers P ress, Tnc., 165 William St., N. Y. C .: ’Phone: BEekman 3-2300



IN THE

United States Circuit Court of Appeals
FOR THE FIFTH CIRCUIT.

No.  11538
--------------- ?

WILLIAM P. MITCHELL, 

versus
Appellant,

MRS. GEORGE C. WRIGHT, ET AL.,
Appellees.

Appeal from the District Court of the United States 
for the Middle District of Alabama.

(April 24, 1946.)

Before HOLMES, McCORD, and LEE,
Circuit Judges.

HOLMES, Circuit Judge: This is an action by appellant, 
suing in behalf of himself and all others similarly situ­
ated. It was brought against appellees for their refusal, 
solely on the ground of his race or color, to register him. 
He prayed for a declaratory judgment, a permanent in­
junction, and damages in the sum of five thousand dollars.



2 M itchell v. W right, et al.

On motion of the defendants, the court below dismissed 
the complaint in its entirety on the ground that the 
plaintiff had failed to exhaust his administrative remedy 
in the state courts of Alabama.

The motion to dismiss, as a matter of law, admitted all 
of the well-pleaded facts alleged in the complaint. From 
these facts it appears in substance as follows: The plaintiff 
is a Negro over the age of twenty-one years; he resides 
in Macon County, Alabama; he is a citizen of that state 
and of the United States; he pays taxes on real property 
with an assessed valuation of over three hundred dollars; 
is able to read and write any provision in the federal con­
stitution; is not an idiot or an insane person; has never 
been convicted of a felony or other crime, and was onJLuly 
5, 1945, possessed of all of the qualifications and none of 
tlie"**disqualifications of registered voters in Alabama.

He executed and filed the written form furnished by the 
registrars to applicants for registration; as filled out by 
him, his application showed that he was qualified to regis­
ter and vote, but the defendants refused to register him 
and others, when they applied for registration on the date 
aforesaid, solely on the ground of their race or color. This 
refusal was pursuant to the policy, custom, and usage of 

| the defendants, acting under color of state authority, to 
! deprive Negroes of the right to vote in Alabama. Since 
registration is a prerequisite to the right to vote in any 
election in Alabama, including the election of federal 
officers, the action of the registrars did effectively deprive 
appellant of the right to vote.

The jurisdiction of the court below was invoked pursu­
ant to several applicable statutes 1 and constitutional pro­
visions.2 Pertinent authorities uphold appellant’s conten-
1 i~U. S. C. A. 31 and 43; 28 U. S. C. A. 41 (11) and (14).
2 Sections 2 and 4 of Article 1 of the 14th, 15th, and 17th Amend­
ments to the Constitution of the United States.



M itchell v. W right, et al. 3

tion that the court below had jurisdiction to grant relief 
in this case,3 but we are urged to affirm the judgment 
under review on the ground that appellant’s failure to 
exhaust his administrative remedy in the state courts of 
Alabama ousted the jurisdiction of the federal court.

It is true that, under the laws of Alabama, any person 
denied registration has the right to appeal to the proper 
circuit court of the state, thence to the Supreme Court;4 
but the remedy so provided is not deemed by us to be 
purely of an administrative nature; it is of the type of 
proceeding traditionally considered judicial. The ag­
grieved party may go into the state circuit court, which is 
a judicial court of general jurisdiction of law and equity, 
or into a court of like jurisdiction. A trial by jury is pro­
vided, and the court is required to charge the jury as to 
the qualifications of voters. The weight and effect of the 
evidence are for the determination of the jury. The re­
viewing court may enter final judgment, which shall en­
title the petitioner to register as of the date of his applica­
tion, but neither the circuit court nor the Supreme Court 
possesses the power to substitute its order for that of the 
registrars.5

The Alabama circuit court has no power to register the 
applicant, though when its jurisdiction is invoked it may 
find as a fact, and adjudicate as the law, that he is entitled 
to registration, and though it may issue an extraordinary
3 Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926, 59 L. Ed. 
1340; Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed. 759; 
Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed. 984; Lane v. 
Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L. Ed. 1281; Smith v. All- 
wright, 321 U. S. 649; Berry v. Davis, 15 F. (2) 488.
4 Section 35, Title 17, of the Alabama Code of 1940.
5 Cf. Bacon v. Rutland R. R. Co., 232 U. S. 134, where the court 
could affirm or reverse and remand, and the review was held judicial. 
Also compare Prentis v. Atlantic Coast Line, 211 U. S. 210, where 
the court, if it reversed, was to substitute such order as in its opinion 
the commission should have made, and the review was held legislative. 
See also City Bank Farmers Trust Co. v. Schnader, 291 U. S. 24, 
where the review was held to be judicial because the court could de­
termine liability for the tax as well as all questions of valuation.



4 M itchell v. W right, et al.

writ commanding the registrar particularly to obey the 
law and to perform the specific ministerial act of registra­
tion. These things, and the use of juries, are quintes­
sential^ judicial; they are the indicia of a judicial court, 
not of an administrative board or office; the final judg­
ment of such a court is res  ju d ica ta . What was said in 
L a n e v . W ilso n , 307 U. S. 268, with reference to the Okla­
homa state procedure having all the indicia of a conven­
tional judicial proceeding, applies to the Alabama remedy 
that is afforded to aggrieved applicants for registration; 
and we hold that appellant was authorized to institute 
this action without appealing to the state circuit court or 
any court of like jurisdicton.

We are also urged to affirm this judgment because the 
complaint averred only inferentially that the plaintiff was 
qualified to register, and did not allege that he had resided 
in the state at least two years, in the county one year, 
and in the precinct or ward three months immediately 
preceding the election at which he offered to vote. This 
would dispose of the case on a technicality of pleading, 
though the new rules provide that all pleadings shall be 
so construed as to do substantial justice.6 The court below 
did not put its decision on this ground.7 If it had, the 
plaintiff might have amended his complaint so as to obvi­
ate the point; and his attorneys now ask leave to amend 
if this cause is remanded for trial, which leave is required 
to be freely given when justice so requires.8

If the office of pleading is to inform the court and the 
parties of the facts in issue; the court, that it may declare 
the law; and the parties, that they may know what to 
meet by their proof:9 we think the wrong and injury for
« Rule 8 (f) of the Federal Rules of Civil Procedure.
7 Mitchell v. Wright, 62 Fed. Supp. 580.
8 Rule 15(a) of Federal Rules of Civil Procedure.
9 Hill v. Mendenhall, 88 U. S. 453.



M itchell v. W right, et al. 5

which redress is here sought sufficiently appear from the 
pleading.10 As in L a n e  v . W ilso n , su pra , the basis of this 
action is inequality of treatment under color of law. The 
fact that the law is fair upon its face is not a defense if 
it is administered in a discriminatory manner.11
10 Paragraphs 3, 6, 10, and 11 of the complaint are as follows:

“ 3. All parties to this action, both plaintiff and defendants 
are citizens of the United States and of the State of Alabama, 
and are residents and domiciled in said State.

“ 6. Plaintiff, William P. Mitchell, is colored, a person of 
African descent and Negro blood, is over the age of twenty-ona 
years. He is a taxpayer of the State of Alabama, and pays tax 
on real property with an assessed valuation in excess of Three 
Hundred Dollars. Plaintiff alleges that he is able to read and 
write any passage of the United States Constitution, that he has 
never been adjudged guilty of felony or any crime and that he is 
not an idiot or insane. Plaintiff further alleges that by reason 
of the allegation herein above made, he was in all particulars on 
the 5th day of July, 1945, and still is possessed of the qualifications 
of an elector and as such was and is entitled to be registered as 
such elector.

“ 10. That on or about the 5th day of July, 1945, during the 
regular registration period while defendants, Mrs. George C. Wright 
and Virgil M. Guthrie, were acting as registrars of voters under 
the laws of Alabama in conducting the registration of persons 
qualified to register, plaintiff made application at the Macon 
County Court House, the place for registration of persons quali­
fied to register, he filled out the regular form for registration, he 
produced two persons to vouch for him, as required by the board, 
he correctly answered such questions as were asked in proof of his 
qualifications, and was ready, willing and able to give any further 
information and evidence necessary to entitle him to be registered; 
that by reason of the said fact hereinbefore made, plaintiff was 
entitled to be registered as a voter. Plaintiff applied for registra­
tion in order to be eligible to vote in future federal as well as 
state elections.

“ 11. Plaintiff further shows that during such registration 
period and on or about the 5th day of July, 1945, white persons 
presenting themselves for registration were not required to present 
persons to vouch for them, but were registered forthwith, whereas 
your petitioner solely because of his race and color was required 
to wait long hours before being permitted to file his application, 
was required to present persons to vouch for him, after which the 
said defendants denied plaintiff application and wrongfully re­
fused and illegally failed to register plaintiff on said July 5, 1945, 
solely on account of his race, color and previous condition of servi­
tude. Plaintiff further states that it has become the general 
habitual and systematic practice of said Board of Registrars, in­
cluding these defendants, Mrs. George C. Wright and Virgil M. 
Guthrie, and their predecessors in office to refuse to register Negro 
residents of Macon County, including the plaintiff, William P. 
Mitchell.”

11 Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220.



6 M itchell v . W right, et al.

The judgment appealed from is reversed, and the cause 
remanded for further proceedings not inconsistent with 
this opinion.

LEE, Circuit Judge, specially concurring:

While I am in accord generally with the reasons as­
signed by my associates in M itch e ll  v . W r ig h t , No. 11,538, 
and H all v . N a g el, No. 11,534, decided today, involving the 
denial of registration to Negro applicants, I prefer to 
predicate my concurrence in the reversal of the lower 
courts on the doctrine of the exhaustion of legal remedies. 
Well-pleaded facts pointed out in the majority opinions, 
admitted by and for the purpose of the motions to dismiss, 
render futile, as respects said motions, the other defenses 
urged.

Where a statute provides corrective relief from a legis­
lative determination by an administrative agency, the 
doctrine of the exhaustion of administrative remedies re­
quires that an aggrieved person, before resorting to the 
judiciary, must first exhaust his statutory administrative 
remedy.1 Federal courts apply the doctrine in actions to 
enjoin state officials.2 While the rationale given for the 
doctrine varies,3 self-restraint on the part of the judiciary 
from interference in legislative functions4 is the under­
lying basis. The doctrine has no application to a statutory 
review of a determination devoid of any legislative func­
tion.5
1 See 42 Am. Jur. 580-581.
2 Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300.
3 42 Am. Jur. 580-581, §197.
4 See Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 S. Ct. 67; 
Porter v. Investors Syndicate, 286 U. S. 461, 52 S. Ct. 617, affirmed on 
rehearing, 287 U. S. 346, 53 S. Ct. 132; Natural Gas Pipeline Co. v. 
Slattery, 302 U. S. 300, 58 S. Ct. 199.
5 Lane v. Wilson, 307 U. S. 268.



M itchell v. W right, et al. 1

In the case of L a n e v . W ilso n , 307 U. S. 268, 1938, the 
Supreme Court has already considered the application of 
the doctrine of the exhaustion of administrative remedies 
to a situation where election officials in Oklahoma refused 
to register a Negro citizen and the Negro brought suit 
under the Civil Rights Law for resulting damages. Justice 
Frankfurter discusses the doctrine at page 274:

“The other preliminary objection to the main­
tenance of this action is likewise untenable. To 
vindicate his present grievance the plaintiff did not 
have to pursue whatever remedy may have been 
open to him in the state courts. Normally, the state 
legislative process, sometimes exercised through 
administrative powers conferred on the state 
courts, must be completed before resort to the 
federal courts can be had. Prentis v. Atlantic 
Coast Line Co., 211 U. S. 210. * * * But the state 
procedure open for one in the plaintiff’s situation 
(§ 5654) has all the indicia of a conventional 
judicial proceeding and does not confer upon the 
Oklahoma courts any of the discretionary or 
initiatory functions that are characteristic of ad­
ministrative agencies * * * Barring only ex­
ceptional circumstances, * * * or explicit statu­
tory requirements, * * * resort to a federal 
court may be had without first exhausting the 
judicial remdies of state courts. * * *”

To better understand what Justice Frankfurter had in his 
mind, quotation from P ren tis  v . A tla n tic  C oa st L in e  C o ., 
su pra , cited by him is in point:

“A judicial inquiry investigates, declares, and 
enforces liabilities as they stand on present or 
past facts and under laws supposed already to



8 M itchell v . W righ t, et al.

exist. That is its purpose and end. Legislation, 
on the other hand, looks to the future and changes 
existing conditions by making a new rule, to be 
applied thereafter to all or some part of those 
subject to its power. The establishment of a rate 
is the making of a rule for the future, and there­
fore is an act legislative, not judicial, in kind, as 
seems to be fully recognized by the supreme 
court of appeals * * *.

“Proceedings legislative in nature are not pro­
ceedings in a court, * * * no matter what may 
be the general or dominant character of the 
body in which they may take place. * * * That 
question depends not upon the character of the 
body, but upon the character of the proceed­
ings. * * *”

Another element of distinction between legislative and 
judicial functions, not mentioned in the L a n e v. W ilso n  
case, is the element of generality or particularity. 42 
American Jurisprudence, §40, pages 332, 333, says:

“Legislative and judicial functions have been 
distinguished by the element of generality in the 
former and particularity in the latter, that is, 
legislation operates against a class and judgments 
against individuals.”

Thus, we have several elements with which we may dis­
tinguish legislative and judicial functions, to-wit: the ele­
ment of futurity or retrospect, that of generality or par­
ticularity, that of discretion, and that of initiation. A good 
example of the element of discretion is the determination 
of a legislative body on the basis of public interest. The 
judiciary will not interfere with this type of discretion.8
8 P. C. C. V. Pottsville Broadcasting Co., 309 U. S. 134, 138.



M itchell v. W right, et al. 9

One must be careful, however, not to confuse this legisla­
tive discretion with judicial discretion. Justice Frank­
furter in L a n e  v . W ilso n , as quoted above, refers to the 
element of initiation in his distinction between legisla­
tive and administrative functions. He quite likely meant 
by the term “ initiatory functions” the power or ability 
to begin a proceeding in a tribunal.7

42 American Jurisprudence, at pages 328 and 329, § 35 
'ays:

“The principal reason which has given rise to 
the necessity for ‘Administrative Law’ as a new 
classification of the law is the fact of the endow­
ment of administrative authorities with ‘legisla­
tive’ and ‘judicial’ powers. The distinguishing 
factors of the powers here considered are that the 
result of their exercise operates in the future, 
rather than on past transactions and circum­
stances, and generally, rather than particularly. 
Such powers are of three types: (1) rule making 
by reason of particular delegation of authority;
(2) rule making by the construction and interpre­
tation of a statute being administered; (3) determ­
ination under a delegated power whether a statute 
shall go into effect.”

The Oklahoma statute under consideration in L a n e  v. 
W ilso n  provides:

“It shall be the duty of the precinct registrar 
to register each qualified elector of his election 
precinct who makes application * * * and such 
person applying shall at the time he applies to 
register be a qualified elector in such precinct and

7 See 42 Am. Jur. 323, 324.



10 M itchell v. W right, et al.

he shall comply with the provisions of this Act
* * *; and provided further, that wherever any 
elector is refused registration by any registration 
officer such action may be reviewed by the district 
court of the county by the aggrieved elector by his 
filing within ten days a petition with the clerk 
of said court, whereupon summons shall be issued 
to said registrar requiring him to answer within 
ten days, and the district court shall be [sic] an 
expeditious hearing and from his judgment an 
appeal shall lie at the instance of either party to 
the Supreme Court of the State as in civil cases;
*  *  *  >9

Section 35, Title 17, of the Alabama Code (1940) pro­
vides that:

“Any person to whom registration is denied 
shall have the right of appeal * * * by filing a 
petition in the circuit court or court of like juris­
diction held for the county in which he or she 
seeks to register, to have his or her qualifica­
tions as an elector determined. * * * Upon such 
trial the court shall charge the jury only as to 
what constitutes the qualifications that entitle the 
applicant to become an elector at the time he or 
she applied for registration, and the jury shall 
determine the weight and effect of the evidence, 
and return a verdict. From the judgment rend­
ered an appeal will lie to the supreme court in 
favor of the petitioner to be taken within thirty 
days. Final judgment in favor of the petitioner 
shall entitle him or her to registration as of the 
date of his or her application to the registrars.”



Section 5, Article 8, of the Constitution of Louisiana 
provides:

“Any person possessing the qualifications for 
voting prescribed by this Constitution, who may 
be denied registration, shall have the right to 
apply for relief to the district court having juris­
diction of civil questions for the parish in which 
he offers to register. Said court shall then try 
the cause * * * before a jury of twelve, nine 
of whom must concur to render a verdict. This 
verdict shall be a final determination of the cause.
The trial court may, however, grant one new 
trial by jury. In no cases shall any appeal lie 
or any other court exercise the right of review.”

Do the Alabama and Louisiana courts have any legisla­
tive functions that would distinguish these cases from 
L a n e  v . W ils o n ?  j  In the first place, neither the Alabama 
nor the Louisiana statutory and constitutional provisions 
provide the court with any initiatory function. The ap­
plicant for registration must start proceedings before the 
court.

Secondly, the Statutes and Constitutions of Alabama and 
Louisiana require the juries to determine the qualifica­
tions or disqualifications of the applicant by determining 
the facts and applying them to the law as charged by the 
court. No legislative function is delegated. A jury’s func­
tion is the finding of facts. The legislative function pre­
supposes the delegatee possesses qualifications of expert­
ness.8 A jury possesses no such qualifications. More­
over, the Alabama statute provides that “the jury shall 
determine the weight and effect of the evidence and return 
a verdict.” The terms “ weight” and “evidence” clearly 
denote a finding of fact, and “verdict,” the application of
8 Natural Gas Pipeline Co. v. Slattery, 302 U. S. 30o!

M itchell v . W right, et al. 11



12 M itchell v. W right, et al.

the fact to the law as charged by the court. / The Louisi­
ana Constitution provides:

“Said court shall then try the cause, giving it 
preference over all other cases, before a jury of 
twelve, nine of whom must concur to render a 
verdict.”

The term “ cases” and “verdict,” likewise, denote mere 
questions of fact and the application of the fact to the 
law as charged by the court.

In the third place the determination of the Alabama 
courts and the Louisiana courts have neither an element 
of futurity, illustrated by rule-making powers, nor an ele­
ment of generality, illustrated by a dispensary power.

My brethren place great reliance in the Alabama case 
and, by inference, in the Louisiana case, on the reviewing 
courts’ lack of power “to substitute its order for that of the 
registrars” and their lack of power to register the appli­
cant. I do not think that the lack of these powers de­
termine the legislative or judicial quality of the review­
ing courts’ determination.

Under both the Alabama Code and the Louisiana Con­
stitution and Statutes the juries decide the same questions 
of qualifications determined by the registrars, and the 
juries give no weight to the previous determinations of the 
registrars. For these reasons, any element of legislative 
function exercised by the registrars would never influence 
the final determination of the applicant’s right to registra­
tion. Therefore, the reviewing courts’ lack of power “ to 
substitute its order for that of the registrars” is irrelevant 
in deciding the legislative or judicial quality of the re­
viewing courts’ functions.



M itchell v. W right, et al. 13

After a court in the light of a jury verdict has de­
termined the right of an applicant to register, the pres­
ence or absence of power in the court manually to register 
the applicant does not determine the legislative or judicial 
quality of its functions. Where a statute provides an 
officer with a duty purely ministerial in character, a court 
may compel the officer to act without any regard to the 
exhaustion of administrative remedies.9 A court of equity 
in some states may direct an officer to execute a deed,10 
but the court of equity would not thereby be exercising a 
legislative function.

Neither F ed era l R ad io C om m ission  v . G en e ra l E le c tr ic ,  
281 U. S. 464, nor F ed era l R a d io  C o m m issio n  v . N elson , 
289 U. S. 266, cited by appellees, is apposite to the prob­
lem before this court. In those cases the statute predi­
cated the grant of radio licenses on a determination by 
the Commission of the “public convenience, interest or 
necessity.” In the earlier case the Supreme Court held 
that the statutory appeal to the Court of Appeals of the 
District of Columbia made the functions of that court 
essentially legislative or administrative because

“ * * * the powers confided to the commission 
respecting the granting and renewal of station 
licenses are purely administrative and that the 
provision for appeals to the court of appeals does 
no more than make that court a superior and re­
vising agency in the same field.”

In the later case, after the provisions for a statutory re­
view of the Commission’s determination had been altered 
so as to take from the Court of Appeals the right as re­
vising agent to determine the “public convenience, inter­
est and necessity” and to permit a review only of ques­
9 See 42 Am. Jur. 575, §195.
19 30 C. J. S. 1011, 1012.



14 M itchell v. W right, et al.

tions of law, the Supreme Court held that the functions 
of the Court of Appeals of the District Of Columbia then 
had become purely judicial. The determination of the 
“public convenience, interest or necessity” in the Federal 
Radio Commission cases involved the exercise of dis­
cretionary powers, hence, was essentially legislative in 
character. The determination of the qualifications of an 
applicant for registration involves no discretionary powers.

On the basis of the foregoing authorities and reasons, 
I believe that in both the Alabama and Louisiana cases 
legislative functions, prerequisite to an application of the 
doctrine of the exhaustion of administrative remedies, 
were non-existent in the reviewing courts under the state 
laws.

A True copy: 
Teste:

Clerk of the United States Circuit Court of 
Appeals for the Fifth Circuit.





11
98

7 
A



IN THE

Supreme (Enurt of the Initefc States
October Term, 1946

No.

MRS. GEORGE C. WRIGHT, et a l ,
P e t i t io n e r s ,

v.

WILLIAM P. MITCHELL,
R esp o n d en t.

Mate 3IGV

MEMORANDUM BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

T hurgood Marshall, 
Arthur D. Shores, 

C o u n sel f o r  R esp o n d en t.

R obert L. Carter,
o f  C ou n sel.





SUBJECT INDEX

PAGE

Statement of C ase__________________________ ...----------  2
Questions Presented_____________________ ___________ 5
Summary of Argument________________________ __ - 6
Argument __________________________________________  7
I. The Decision of the Court that Failure to Pursue

or Exhaust Remedy Provided Under State Law 
Which Is In the Nature of a Conventional Judicial 
Remedy Does Not Oust the Federal Courts Is Con­
sistent With Precedents of This Court _________  7

II. The Characterization of The Remedy Afforded 
Under Table 17, Section 35, Alabama Code of 1940,
By The Circuit Court of Appeals, As A Judicial 
Remedy Is Clearly Right ____      8

Conclusion__________________________________________  11

Table of Cases

Bacon v. Rutland R. Co., 232 U. S. 134. ____ ___ 8,10
Henderson Water Company v. Corporation Commis­

sion, 269 U. S. 279______     7
Lane v. Wilson, 307 U. S. 268__________ __ __________ 8
Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300 7
Pacific Telephone & Telegraph Co. v. Kuykendall, 265

U. S. 196___________ ________________ ___ __________ 7, 8
Porter v. Investors Syndicate, 286 U. S. 461, aff’d on

rehearing 287 U. S. 346___________________ _____  7, 8
Prentiss v. Atlantic Coast Line Co., 211 U. S. 210 ___ 7,10
Railroad & Warehouse Commission v. Duluth Street 

R. Co., 273 U. S. 625_____________________________ _ 7
State Corporation Commission v. Wichita, 290 U. S. 561 8
United States v. Sing Tuck, 194 U. S. 161________ ____  7



11

United States Constitution
PAGE

Article I, Section 2___________________________________ 6
Amendment XIV  ________ ______  ______________ 6
Amendment X V ____________________   6
Amendment XVII ______________________________  2, 6

Alabama Constitution

Section 177, Article VIII___________________________  2
Section 178, Article VIII_____________________    2
Section 181, Article VIII _________________________  2
Section 182, Article VIII ____________    2
Section 186, Article V III___________________________  2

Statutes

Section 31, Title 8, U. S. Code________________________  6
Section 43, Title 8, U. S. Code ... ____  __________  6
Section 41 (11) (14), Title 28, U. S. Code_________ 6
Section 32, Title 17, Alabama Code of 1940 ____  ____  2
Section 35, Title 17, Alabama Code of 1940___  _____  6, 8
26 Okla. Stat., Sec. 74________________________________ 10



IN THE

&upr?mp (Knurl of tiro lltttlrb States
October Term, 1946

No.

Mrs. George C. W right, e t a l ,
P e t i t io n e r s ,

v .

W illiam P. Mitchell,
R esp o n d en t,

MEMORANDUM BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

T o  th e H o n o ra b le , th e C h ie f  J u s tic e  o f  th e U n ited  S ta tes  
and th e  A s s o c ia te  J u s tic e s  o f  th e  S u p rem e  C ou rt o f  th e  
U n ited  S ta te s :

Respondent opposes the granting of a writ of certiorari 
in this case on the grounds that the decision of the Circuit 
Court of Appeals for the Fifth Circuit is correct, proper 
and consistent with prior decisions and precedents of this 
Court. Petitioners seek a review here of a judgment ren­
dered upon the pleadings. The judgment of the Circuit 
Court of Appeals does not accomplish a final disposition of 
respondent’s cause but merely decides that the amended 
complaint states a valid cause of action and provides 
grounds legally sufficient for a trial of the controversy to 
determine the actual merits of the case.



o

Statement of the Case
Respondent, as plaintiff in the District Court of the 

United States for the Middle District of Alabama, filed his 
complaint against the defendant Board of Registrars, peti­
tioners herein, seeking five thousand ($5,000) dollars in 
damages, a permanent injunction against, and a judgment 
declaratory of, an alleged unconstitutional policy, custom 
and usage of the defendant Board of Registrars and their 
predecessors in office in subjecting Negroes to tests not 
required of whites, and in refusing to register qualified 
Negro electors, while at the same time registering white 
persons less qualified than Negro applicants, because of 
race or color.

Respondent, a colored person of African descent, duly 
meets all the requirements for registration and voting 
under the Constitution and laws of the United States and 
the State of Alabama.1 He is a citizen of the United States 
and a bona fide resident of the State of Alabama. He is 
over 21 years of age. He is neither an idiot nor insane and 
has not been convicted of any felony or crime. He is a 
taxpayer of the State and paid taxes in full on real prop­
erty with an evaluation in excess of three hundred ($300.00) 
dollars prior to the time he offered to register. In short, 
respondent possesses all the qualifications and none of the 
disqualifications for registering and voting under the laws 
of the United States and of the State of Alabama (R. 5).

On July 5, 1945, respondent made due application to 
petitioners, the official registrars of voters of Macon 
County, for registration in order to be eligible to vote in

1 The Constitution of the United States, Article I, Sections 2 and 
4, the 17th Amendment, and the Constitution of Alabama, Article 
VIII, Sections 177, 178. 181, 182, 186; Alabama Code of 1940, Sec­
tion 32, Title 17.



3

future federal as well as state elections. Respondent was 
refused registration solely on account of his race or color 
after being required to answer questions and to produce 
two persons to vouch for him, while white persons were 
being registered forthwith without being subjected to such 
tests, all pursuant to a general, habitual and systematic dis­
criminatory practice of petitioners (R. 6).

Respondent did not bring this cause of action because 
of the sole act of the petitioners in refusing him registra­
tion but instituted suit to contest the constitutionality of a 
policy, custom and usage established by petitioners’ prede­
cessors in office and maintained by them to prevent Negroes 
from registering and voting in the county of Macon. The 
core of respondent’s amended complaint may be found in 
Paragraphs 6, 9, 10 and 11 thereof, where it is alleged:

“ 6.

Plaintiff, William P. Mitchell, is colored, a per­
son of African descent and Negro blood, is over the 
age of twenty-one years. He is a taxpayer of the 
State of Alabama, and pays tax on real property with 
an assessed valuation in excess of Three Hundred 
Dollars. Plaintiff alleges that he is able to read and 
write any passage of the United States Constitution, 
that he has never been adjudged guilty of felony or 
any crime and that he is not an idiot or insane. 
Plaintiff further alleges that by reason of the alle­
gation herein above made, he was in all particulars 
on the 5th day of July, 1945, and still is possessed 
of the qualifications of an elector and as such was 
and is entitled to be registered as such elector.”

” 9.
That defendants have established and are main­

taining a policy custom and usage of denying to 
plaintiff and others on whose behalf this suit is



4

brought the equal protection of the laws by requiring 
them to submit to tests not required of white elec­
tors applying for registration and have continued 
the policy of refusing to register qualified Negro 
electors while at the same time registering white 
electors with less qualifications than those of Negro 
applicants solely because of race or color.”

” 10.

That on or about the 5th day of July, 1945, dur­
ing the regular registration period while defendants, 
Mrs. George C. Wright and Virgil M. Guthrie, were 
acting as registrars of voters under the laws of 
Alabama in conducting the registration of persons 
qualified to register, plaintiff made application at the 
Macon County Court House, the place for registra­
tion of persons qualified to register, he filled out the 
regular form for registration, he produced two per­
sons to vouch for him, as required by the board, he 
correctly answered such questions as were asked in 
proof of his qualifications, and was ready, willing 
and able to give any further information and evi­
dence necessary to entitle him to be registered; that 
by reason of the said fact hereinbefore made, plain­
tiff was entitled to be registered as a voter. Plain­
tiff applied for registration in order to be eligible to 
vote in future federal as well as state elections.”

” 11.

Plaintiff further shows that during such regis­
tration period and on or about the 5tli day of July, 
1945, white persons presenting themselves for regis­
tration were not required to present persons to 
vouch for them, but were registered forthwith, where­
as your petitioner solely because of his race and 
color was required to wait long hours before being 
permitted to file his application, was required to 
present persons to vouch for him, after which the 
said defendants denied plaintiff application and



5

wrongfully refused and illegally failed to register 
plaintiff on said July 5, 1945, solely on account of 
his race, color and previous condition of servitude. 
Plaintiff further states that it has become the gen­
eral habitual and systematic practice of said Board 
of Registrars, including these defendants, Mrs. 
George C. Wright and Virgil M. Guthrie, and their 
predecessors in office to refuse to register Negro 
residents of Macon County, including the plaintiff, 
William P. Mitchell.”

The cause was heard in the District Court upon a motion 
to dismiss the amended complaint on the ground that said 
complaint failed to state a cause of action. Upon the hear­
ing of said motion, the District Court sustained petitioners’ 
motion to dismiss and issued an order dismissing the com­
plaint. From that order respondent appealed. The Circuit 
Court of Appeals for the Fifth Circuit reversed the judg­
ment of the District Court and remanded the cause.

Questions Presented

I. Where a Registrar or Board of Registrars of 
Voters, Pursuant to a Policy, Custom and Usage, Sub­
jects Respondent and All Other Qualified Negro 
Applicants to Tests Not Required of White Appli­
cants Who Apply for Registration in Order to 
Qualify to Vote in Forthcoming Federal and State 
Elections Can Relief Be Sought in the Federal Courts 
in the Form of a Class Action Seeking Declaratory 
Judgment and Injunction Restraining Such Registrar 
or Board of Registrars from Subjecting Negroes to 
Tests Not Required of White Applicants, Without 
First Exhausting Remedies Under State Law?



6

II. Does the Action of a Registrar or Board of 
Registrars of Voters, in Refusing to Register Respon­
dent and Other Qualified Negro Applicants on Ac­
count of Race and Color, Amount to a Deprivation 
of the Rights Secured Under the Laws and Constitu­
tion of the United States, Namely Article I, Section 2, 
14th, 15th and 17th Amendments to the Constitution, 
Subdivisions 11 and 14 of Section 41 of Title 28, 
Sections 31 and 43 of Title 8 of the United States 
Code.

Summary of Argument

I

The Decision of the Circuit Court of Appeals That 
Failure to Pursue or Exhaust the Remedy Provided Under 
State Law in the Nature of a Conventional Judicial Pro­

ceeding Does Not Oust the Federal Courts of Jurisdiction 
Is Consistent with Precedents of This Court.

II

The Characterization of the Remedy Afforded Under 
Title 17, Section 35, Alabama Code of 1940, by the Circuit 
Court of Appeals as a Judicial Remedy Is Clearly Right.



-

A R G U M E N T

I

The Decision of the Circuit Court of Appeals 
That Failure to Pursue or Exhaust the Rem­
edy Provided Under State Law in the Nature 
of a Conventional Judicial Proceeding Does 
Not Oust the Federal Courts of Jurisdiction Is 
Consistent with Precedents of This Court.

This Court has been careful to make a distinction be­
tween judicial and administrative remedies in determining 
whether the remedies in question need be exhausted before 
application can be made to federal courts for relief. When 
the remedy is administrative or legislative, the rule of this 
Court is that the state remedy must be pursued and com­
pleted before the aggrieved party can have any standing in 
the federal courts. N a tu ra l G as P ip e l in e  C o. v. S la t t e r y ;2 
P o r t e r  v. I n v e s to r s  S y n d ic a te ;3 4 5 6 R a ilro a d  & W a re h o u se  
C o m m issio n  C o . v. D uluth  S tr e e t  R . C o.;*  H en d erso n  W a te r  
C o m p a n y  v. C o r p o ra tio n  C o m m iss io n ;B P a cific  T e lep h o n e  & 
T e leg ra p h  C o m p a n y  v. K u y k e n d a ll ;8 P r e n t is s  v. A tla n tic  
C o a s tlin e  C o m p a n y ;7 U n ited  S ta te s  v. S in g  T u c k }

On the other hand, remedies provided under state law 
that are judicial in nature need not be invoked or pursued 
before an action can be maintained in the federal courts.

2302 U. S. 300.
3 286 U. S. 461; aff’d on rehearing, 287 U. S. 346.
4273 U. S. 625.
5 269 U. S. 279.
6265 U. S. 196.
7211 U. S. 210.
8 194 U. S. 161.



8

S ta te  C o r p o ra tio n  C o m m iss io n  v. W ic h ita ; 9 P o r t e r  v. I n ­
v e s to r s  S y n d ica te , s u p r a ; B a co n  v. R u tla n d  R . C o . ; 10 L a n e  
v. W ils o n ; 11 P a cific  T e lep h o n e  & T e le g r a p h  C o m p a n y  v. 
K u y k en d a ll , su p ra .

Whenever the question has been presented, this Court 
has carefully examined the remedy provided to determine 
whether it was legislative or judicial in nature. P r e n t is s  
v. A tla n t ic  C o a s tlin e  C o ., s u p r a ; L a n e  v. W ils o n , su p r a ;  
P a cific  T e lep h o n e  & T e leg ra p h  C o m p a n y  v. K u y k en d a ll , 
s u p r a ; P o r t e r  v. I n v e s to r s  S y n d ica te , su p ra .

The Circuit Court of Appeals in applying the rule that 
judicial remedies need not be exhausted before application 
can be made to the federal courts was following a A v ell- 

established rule of law consistently adhered to in the deci­
sions of this Tribunal. There is, therefore, no basis or rea­
son for this Court to review or examine the decision of 
the court below.

II
The Characterization of the Remedy Afforded 
Under Title 17, Section 35, Alabama Code of 
1940, by the Circuit Court of Appeals as a 

Judicial Remedy Is Clearly Right.

Under Section 35, Title 17 of the Alabama Code of 1940, 
a right of appeal is provided when registration is denied. 
The pertinent provisions of the statute are set out below:

“ Any person to whom registration is denied shall 
have the right to appeal, without giving security for

9290 U. S. 561.
10 232 U. S. 134.
11 307 U. S. 268.



9

costs, within thirty days after such denial, by filing 
a petition in the circuit Court or Court of like juris­
diction held for the county in which he or she seeks 
to register, to have his or her qualifications as an 
elector determined. Upon the filing of the petition, 
the clerk o f the Court shall give notice thereof to 
the solicitor authorized to represent the state in said 
county, who shall appeal and defend against the peti­
tion on behalf of the state. Upon such trial the Court 
shall charge the jury only as to what constitutes the 
qualifications that entitle the applicant to become an 
elector at the time he or she applied for registration, 
and the jury shall determine the weight and effect 
of the evidence, and return a verdict. From the 
judgment rendered an appeal will lie to the supreme 
Court in favor of the petition to be taken within 
thirty days. Final judgment in favor of the peti­
tioner shall entitle him or her to registration as of 
the date of his or her application to the registrars.”

The remedy therein provided is the type traditionally con­
sidered judicial. The aggrieved parties may go into a cir­
cuit court or court of like jurisdiction in the county in which 
he seeks to have his registration determined. Trial by jury 
is provided, and the court is required to charge the jury 
as to what constitutes the qualifications necessary for an 
applicant to become an elector at the time of his application 
for registration. The jury is required to determine the 
weight and effect of the evidence and return a verdict. 
From an adverse decision the aggrieved party may take an 
appeal to the Supreme Court of the State of Alabama.

Under this statute, the court has no initiatory func­
tions. The proceedings must be commenced by the ag­
grieved person who contests the decision of the Board of 
Registrars. Normally administrative agencies are not so 
circumscribed but have the authority to commence a hear­
ing on their own application, to call parties before them and



10

to make a determination of the issues involved. P r e n t is s  v. 
A tla n t ic  C o a s tlin e  C o ., su p ra . A court merely has the 
authority to declare and enforce liabilities, rights and duties 
as they exist on present or past facts and under a rule of 
law already operative. Legislative functions, on the con­
trary, have an element of futurity and generality which is 
not characteristic of judicial inquiries. P r en tis s  v. A tla n tic  
C o a s tlin e  C o m p a n y , su pra .

The remedy provided herein is similar in nature to that 
provided under the Oklahoma statute in the case of L a n e  
v. W ils o n , su p ra , which this Court characterized as judi­
cial.12 The Circuit Court of Appeals has gone thoroughly 
into this phase of the proceedings. A substantial portion 
of the majority opinion and the entire concurring opinion 
are devoted to a careful analysis of the state remedy pro­
vided and to a determination of its classification as admin­
istrative or judicial. In deciding that it was a judicial 
remedy, the Circuit Court of Appeals was merely following 
the rules and the yardstick which this Court has consistently 
used in making such determination in previous decisions.

12 The Oklahoma Statute (26 Okla. Stat. Sec. 74) provided in 
part: “ and provided further, that wherever any elector is refused 
registration by any registration officer such action may be reviewed 
by the district court of the county by the aggrieved elector by his 
filing within ten days a petition with the Clerk of said Court, where­
upon summons shall be issued to said registrar requiring him to 
answer within ten days, and the district court shall be a (give an) 
expeditious hearing and from his judgment an appeal will lie at the 
instance of either party to the Supreme Court of the State as in civil 
cases. * * * ’ ’



1 1

Conclusion.

The decision of the Circuit Court of Appeals is neither 
ambiguous nor confused. It in essence holds that the com­
plaint states a cause of action and that federal courts have 
jurisdiction to grant the relief applied for upon proof that 
such relief is warranted according to the facts and evidence 
adduced in a trial on the merits. Under these circum­
stances, the public interest and the interest of the litigators 
will be best served by refusing to grant the writ of cer­
tiorari as prayed for by petitioners and by allowing a com­
plete adjudication of all the issues involved in this litiga­
tion in a trial on the merits as ordered by the Circuit Court 
of Appeals.

W herefore, for the reasons hereinabove advanced, the 
petition for writ of certiorari should be denied.

Respectfully submitted,

T hurgood Marshall, 
A rthur D. Shores, 

C o u n sel f o r  R e s p o n d e n t .

Robert L. Carter,
o f  C ou n sel.







212 [5388]

L a w y e r s  P r e s s , I n c . ,  165 William St., N. Y. C.; ’Phone: BEekman 3-2300