Hall v. Nagel Transcript of Record and Briefs
Public Court Documents
January 1, 1944 - January 1, 1946

Cite this item
-
Brief Collection, LDF Court Filings. Hall v. Nagel Transcript of Record and Briefs, 1944. 9a943d4d-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/19943db2-430a-45d3-93ed-45f3686e484f/hall-v-nagel-transcript-of-record-and-briefs. Accessed June 13, 2025.
Copied!
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