Bond v. Floyd Jurisdictional Statement and Motion to Advance

    1ST THE

Bupttm ( to r t irt %  Inttrb Btntm
O cto b e r T erm , 1965

No.

J ulian  B ond, D r . M artin  L u t h e r  K in g , J r ., and M rs. 
A rel K eyes, for themselves jointly and severally, and 
for all others similarly situated,

Appellants,
v.

J ames “ S l o ppy ”  F loyd, W illiam  J .  “ B il l ”  L ee , E d T . 
F uleord, J .  T errell W ebb, W . J ones L a ne , and D avid 
L . N ew ton , individually and as members of the House 
of Representatives of the State of Georgia and as Rep­
resentatives of the class of citizens who are presently 
serving as members of the House of Representatives 
of the State of Georgia; George T . S m it h , individually 
and as Speaker of the House of Representatives of the 
State of Georgia and as Chairman of the Rules Com­
mittee of the House of Representatives of the State of 
Georgia and as Chairman of the Challenge Committee 
appointed to consider the seating of Julian Bond, et al.,

On A ppeal  prom  t h e  U nited  S tates D istrict C ourt for 
t h e  N orthern  D istrict of Georgia (A tlanta D ivisio n )

JURISDICTIONAL STATEMENT AND 
MOTION TO ADVANCE

H oward M oore, J r.,
8591/2 Hunter Street N.W., 

Atlanta, Georgia, 30314. 
L eonard B . B oudin ,
V ictor R abinow itz,

30 East 42nd Street,
New York, New York, 10017. 

Attorneys for Appellants,



I N D E X
PAGE

Jurisdictional Statement ..............................    1
Opinions Below . . .............................................. 2
Jurisdiction .....................................     2
Constitutional Provisions and Statutes Involved... 3
Questions Presented .......................    4
Statement of the C ase ................ .............................  4
The Questions Are Substantial .......................   7
Conclusion ..........    11
Motion To Advance .................................................  12
Appendix A—Constitutional Provisions and Stat­

utes Involved......................................   14
Appendix B—Opinions Below .................................  18
Appendix C—Judgment Below ............................... 67

Citations
Cases :

Baggett v. Bullitt, 377 U. S. 360 .........................  11
Baker v. Carr, 369 U. S. 186 ...............................  3, 9
Cramp v. Board of Public Instruction, 368 U. S.

278 ................   11
Cummings v. Missouri, 4 Wall. (71 U. S.) 277.......  10
Florida Lime and Avocado Growers v. Jacobsen,

362 U. S. 73 ................................................. 3
Ex parte Garland, 4 Wall. (71 U. S.) 333 ....... .. 10
Garrison v. Louisiana, 379 U. S. 64 . . . . . . . . . . . . .  9
Grosjean v. American Press Co., 297 U. S. 233.... 8
Idlewild Bon Voyage Liquor Corp. v. Epstein,

370 TL S. 715...............................................  3



11
PAGE

Kingsley In t’l Pictures Corp. v. Regents, 360 U. 8.
684 ......................................................................  8

Konigsberg v. State Bar of California, 353 U. S.
252 ..........    8

Lindsey v. Washington, 301 IJ. S. 397 ..................  10
Pennsylvania v. Nelson, 350 U. S. 497 .................. 8
New York Times Co. v. Sullivan, 376 U. S. 254.... 8
In re Sawyer, 360 U. S. 622 ..................................  8
Schware v. Board of Bar Examiners of New Mex­

ico, 353 U. S. 232 ............................................... 8
Thomas v. Collins, 323 U. S. 516..................... 8
Toombs v. Portson, 241 F. Supp. 65 .................... 4,13
United States v. Brown, 381 U. S. 437 ..........   10
United States v. Johnson, No. 25 Oct. Term 1965.. 9
United States v. Lovett, 328 U. S. 303 .................... 10
United States v. Rumely, 345 U. S. 4 1 .................... 10
United States v. Seeger, 380 U. S. 163 ................  9
Whitney v. California, 274 U. S. 357 .................... 8

U nited  S tates C o n stitu tio n :

Article 1, Section 10 ............................................2, 4,10
Article IV, Section 4 ...........................................  2, 9
Article VI .............................................................  8
First Amendment ..................................................  2, 4, 7
Fifth Amendment ................................................  2
Sixth Amendment ................................................  2
Thirteenth Amendment .........................................  2
Fourteenth Amendment .......................................  2, 4
Fifteenth Amendment ...........................................  2



Ill
PAGE

S ta tu tes :

28 U.S.C. § 1253 ....................................................  3
28 U.S.C. § 1331 ................ ................................... 2
28 U.S.C. §1343(3) and (4) ................................  2
28 U.S.C. §2201 . ..................................................  2
28 U.S.C. § 2281 ....................................................  2, 6
42 U.S.C. § 1971 ...............................    2
42 U.S.C. § 1983 .................................................... 2
42 U.S.C. § 1988 ...........................    2
50 U.S.C. § 456(j) ........................    9
50 App. U.S.C.A. § 462 (a) and (b) .................... 6
Voting Eights Act of 1965, Pub. L. No. 110, 89th 

Cong., 1st Sess....................................................  12

R ules of t h e  S uprem e  Court of t h e  U nited  S tates :

Rule 16(1) .............................................................  12
Rule 48 ..................................................................  12

Georgia Constitution  :

Article III, Section VII, Paragraph I
(§2-1901, Ga. Code Ann.) ..........................   3,11

Article III, Section VI, Paragraph I
('§ 2-1801, Ga. Code Ann.) ............................... 3

Article III, Section IV, Paragraph V
(§2-1605, Ga. Code Ann.) ................................  3,11

Article II, Section II, Paragraph I
(§2-801, Ga. Code Ann.) ..................................  3,9

Article III, Section IV, Paragraph VI
(§2-1606, Ga. Code Ann.) ............................... 3

Article VII, Section III, Paragraph VI
(§ 2-5606, Ga. Code Ann.) ..................................  3



IV
PAGE

R ules and R esolutions of th e  Georgia H ouse of 
R epresentatives :

House Rule 61 ............................. .......................... 4,11
House Resolution 19 .............................................  4, 10

Oth er  A u t h o r it ie s :

Brief of Special Committee Appointed by Associa­
tion of the Bar of the City of New York, In the 
Matter of Louis Waldman, et al........................  7,10

Chafee, Free Speech in the United S ta tes ............. 7
111 Cong. Rec.:

25420-22 (daily ed. Oct. 19, 1965) .....................  9
The New Republic, May 22, 1965 .......................  9
The New York Times:

Nov. 14, 1962, p. 38 .........................................  9
Aug. 9, 1964, Sec. IV, p. 8 ..............................  9



IN THE

Bupnm  Cmtrt of %  Imtefr
O cto b er T erm , 1965 

No.

■o
J ulian  B ond, D r . M artin  L u t h e r  K ing , J r ., a n d  M rs. 

A rel K eyes, fo r  them selves jo in tly  an d  sev e ra lly , an d  
fo r  a ll o th e rs  s im ila r ly  s itu a ted ,

Appellants,
v.

J ames “ S l o ppy ”  F loyd, W illiam  J. “ B il l ”  L ee , E d T . 
F ulpord, J .  T errell W ebb, W . J ones L ane, and D avid 
L. N ew ton , individually and as members of the House 
of Representatives of the State of Georgia and as Rep­
resentatives of the class of citizens who are presently 
serving as members of the House of Representatives 
of the State of Georgia; George T . S m it h , individually 
and as Speaker of the House of Representatives of the 
State of Georgia and as Chairman of the Rules Com­
mittee of the House of Representatives of the State of 
Georgia and as Chairman of the Challenge Committee 
appointed to consider the seating of Julian Bond; 
G l en n  W. E llard, individually and as Clerk of the
House of Representatives of the State of Georgia; 
M addox J. H ale, individually and as Speaker Pro-Tern 
of the House of Representatives of the State of Georgia; 
E lmore C. T h ra sh , individually and as Messenger _of 
the House of Representatives of the State of Georgia; 
D avid P eeples , individually and as Doorkeeper^ of the 
House of Representatives of the State of Georgia; and 
B en  W. F ortson, individually and as Secretary of State 
of the State of Georgia; and J ack T yson, individually 
and as Sheriff of the House of Representatives of the 
State of Georgia.

On  A ppe a l  prom  t h e  U n it e d  S tates D istr ic t  C o urt  por  
t h e  N o r th er n  D istr ic t  op G eorgia (A tla n ta  D iv is io n )

—-------------o---- —-—-----
Jurisdictional Statement

Julian Bond, Martin Luther King, Jr. and Arel Keyes, 
the appellants, having appealed from the order and judg-



2

ment, dated February 14, 1966, of the three-judge court 
of the United States District Court for the Northern 
District of Georgia, Atlanta Division, which (i) denied 
their application for a permanent injunction, (ii) dis­
missed appellants King and Keyes as parties for lack 
of standing, and (iii) dismissed the complaint of appellant 
Bond, submit this statement to show that the Supreme 
Court of the United States has jurisdiction of the appeal 
and that a substantial question is presented.

Appellants have also moved to advance the argument in 
this case, infra, p. 12.

Opinions Below

The opinions below (R. 234-279) have not as yet been 
reported, and are set forth in the Appendix, infra, pp. 18 
to 66.

Jurisdiction

Appellants brought this action in the United States 
District Court for the Northern District of Georgia for a 
judgment (i) enjoining the defendants from excluding the 
appellant Bond from membership in the House of Repre­
sentatives of the General Assembly of Georgia, to which he 
was elected on June 16, 1965, (ii) enjoining the enforce­
ment of certain provisions of the Georgia Constitution and 
a Rule and Resolution of the Georgia House of Representa­
tives, and (iii) declaring that the said constitutional provi­
sions, legislative action and exclusion from office are 
uncontitutional.

The action was brought under Article I, Section 10' and 
under Article IV, Section 4 of the United States Constitu­
tion, and the First, Fifth, Sixth, Thirteenth, Fourteenth and 
Fifteenth Amendments to the Constitution; 28 U. S. C. 
§§ 1331, 1343(3) and (4), 2201 and 2281; and 42 U. S'. C. 
§§ 1971, 1983 and 1988.



3

The judgment below was made on February 14, 1966 and 
entered on February 16, 1966 (infra, p. 68). The notice 
of appeal was filed in the district court on February 16, 
1966 (R. 283-88).

Jurisdiction of this appeal is conferred by 28 U. S. C. 
§ 1253. The following cases sustain the Court’s juris­
diction : Baker v. Carr, 369 TJ. S. 186; Idlewild Bon Voyage 
Liquor Corp. v. Epstein, 370 U. S. 715; Florida Lime and 
Avocado Growers v. Jacobsen, 362 U. S. 73.

Constitutional Provisions and Statutes Involved

The provisions of the Georgia Constitution involved 
in this case are as follows:

Article III, Section VII, Paragraph I (§ 2-1901, 
Ga. Code Ann.), making the House “ the judge of 
the election, returns and qualifications of its mem­
bers” , infra, p. 14.

Article III, Section VI, Paragraph I (§ 2-1801, 
Ga. Code Ann.), setting forth the members’ qualifi­
cations, infra, p. 14.

Article III, Section IV, Paragraph V (§ 2-1605, 
Ga. Code Ann.), specifying the oath of office of rep­
resentatives, infra, p. 14.

The following provisions of the Georgia Constitution 
setting forth the disqualifications for office are also involved 
in this case.

Article II, Section II, Paragraph I ('§ 2-801, Ga. 
Code Ann.), infra, p. 15.

Article III, Section IV, Paragraph VI (§2-1606, 
Ga. Code Ann.), infra, p. 15.

Article VII, Section III, Paragraph VI (§ 2- 
5606, Ga. Code Ann.), infra, p. 16.

Q



4

The legislative actions involved in this case are as 
follows:

House Rule 61 of the Georgia House of Repre­
sentatives adopting the provisions of Article III, 
Section VII of the Georgia Constitution, infra, p. 16.

House Resolution 19 of January 10, 1966, exclud­
ing Mr. Bond from office, infra, pp. 16-17.

Questions Presented

1. Did the exclusion from elected legislative office of 
the appellant Julian Bond solely because of his public 
statements on issues of national concern impair his free­
dom of speech under the First and Fourteenth Amend­
ments.

2. Did that exclusion from office disenfranchise Mr. 
Bond’s constituents in violation of the due process and 
equal protection clauses of the Fourteenth Amendment.

3. Does House Resolution 19 disqualifying Mr. Bond 
from his elected office constitute an ex post facto law or a 
bill of attainder in violation of Article I, Section 10 of the 
United States Constitution.

4. Are the provisions of the Georgia Constitution and 
statutes, as interpreted by the court below, unconstitution­
ally vague under the Fourteenth Amendment.

Statement of the Case

Appellant Julian Bond was elected on June 16, 1965 to 
the Georgia House of Representatives as the Representative 
from the 136th House District, Fulton County, Georgia, for 
the term expiring January 1, 1967 (R. 293). This district 
was created pursuant to legislation enacted following the 
reapportionment decision of the court below in Toombs v.



5

Fortson, 241 F. Supp. 65 (N. D. Ga. 1965). Mr. Bond re­
ceived 82 per cent of the votes cast in an overwhelmingly 
Negro district.1

Mr. Bond, a pacifist and Negro, is also the Communica­
tions Director of the Student Non-Violent Coordinating 
Committee (herein called SNCC), an association dedicated 
to racial equality through non-violence.

The other appellants are constituents of Mr. Bond and 
sued as representatives of that class in the district. Mrs. 
Arel Keyes voted in the election for Mr. Bond; Dr. Martin 
Luther King, Jr., a former resident of the district, trans­
ferred his voting residence to it on January 24, 1966.

The defendant members, employees and officers of 
the state government, excluded Mr. Bond from his 
elected office and rejected his offer to take the oath of 
office because of statements he made when interviewed 
by the press, viz. that he supported a SNCC statement 
critical of American involvement in the war in Vietnam; 
that when asked for his views on the burning of draft cards, 
he “ stated he would not burn his own but admired the 
courage of those who did” and that as a pacifist he sup­
ported the opposition of others to the war (infra, pp. 23-24).

By reason of these statements, exclusion proceedings 
against Mr. Bond were conducted by the Georgia House 
of Representatives upon petitions charging, inter alia, that 
“ Mr. Bond’s actions and statements gave aid and comfort 
to the enemies of the United States, and also violated the

1 In a subsequent election conducted on February 23, 1966 
Mr. Bond was reelected without opposition. A few minutes before 
adjournment on February 18, 1966 the House amended its rules and 
authorized its speaker to appoint a committee during the House recess 
to determine election contests.

2 The SNCC statement is set forth in full in the majority opinion 
below (infra, pp. 21-23).



6

Selective Service Laws, 50 App. U. S. C. A. § 462(a) and 
(b), and tended to bring discredit and disrespect on the 
House of Representatives” (infra, p. 24). It was also 
charged “ that the statements and views of Mr. Bond dis­
qualified him to take the oath to support the Constitution 
of the United States and the Constitution of Georgia, as 
is required of a member of the House of Representatives” 
(infra, p. 25).

Hearings were conducted before a special committee of 
the House which, by majority report, recommended that 
Mr. Bond be excluded (infra, p. 19). The House, adopting 
that report, excluded him by passing House Resolution 19 
by majority vote on January 10, 1966 (infra, p. 19).

Mr. Bond and his constituents thereupon instituted this 
action for injunctive relief and a declaratory judgment that 
the legislature’s action was unauthorized by the state Con­
stitution and violated their rights under the federal Con­
stitution. A three-judge court was convened under 28 
U. 8. C. 2281.

On February 14, 1966, the court rendered final judg­
ment against the appellants. It unanimously held that it 
had jurisdiction because the plaintiffs had asserted substan­
tial First Amendment rights (infra, p. 37). The court, 
Chief Judge Tuttle dissenting, struck from the complaint 
the names of the appellants other than Mr. Bond on the 
ground that they lacked “ such a direct interest in the liti­
gation as would give them standing to bring the complaint” 
(infra, p. 27).8

On the merits, the court was also divided. The majority 
agreed that “ [t]he substantial issue in the case rests on 
the guaranty of freedom of speech or to dissent under the

3 It held, too, that Dr. King, although a resident, was not a 
registered voter (ibid.).



First Amendment as that amendment has long been applic­
able to the state under the due process clause of the Four­
teenth Amendment” (infra, p. 28). Nevertheless, it held 
that “ his [Bond’s] statements and affirmation of the 
8NCC statement as they bore on the functioning of the 
Selective Service System could reasonably be said to be 
inconsistent with and repugnant to the oath which he was 
required to take” (infra, p. 40).

Chief Judge Tuttle, dissenting, was of the view that 
since substantial federal constitutional issues of freedom 
of speech were involved, the court was under a duty to con­
strue the Georgia constitutional provisions “ with an eye 
to the avoiding of the constitutional question if possible” 
(infra, p. 54). He concluded that the Constitution ex­
plicitly stated the qualifications for legislative office, which 
were met by Mr. Bond, and could not be construed to au­
thorize rejection from elected office for a reason not speci­
fied, vis., for making a lawful public statement upon foreign 
affairs (infra, p. 65).

The Questions Are Substantial

1. This is the first case before the Court in which a 
legislative body has refused to seat an elected representa­
tive because of his public expression of opinion. Significant 
precedents, never subjected to judicial review, are authori­
tatively recognized as raising important questions of free­
dom of speech and of franchise.4

The belief of the majority below that the “ SNCC state­
ment is at war with the national policy of this country”

4 John Wilkes in 1768 (See Chafee, Free Speech in the United 
States [1941], 242-247.) ; Victor L, Berger in 1919 (See Chafee, 
247-269.) ; In the Matter of Louis Waldman, August Claessens, 
Samuel A. De Witt, Samuel Orr and Charles Solomon (before the 
Assembly Judiciary Committee, New York State Legislature), 
Brief of Special Committee Appointed by the Association of the 
Bar of the City of New York, headed by former Justice (later Chief 
Justice) Hughes. (See also Chafee, 269-282.)



8

(infra, p. 38) conflicts with our conception of a demo­
cratic society; see Grosjean v. American Press Co., 297 
U. S. 233, 247, 250. Its view that the legislature’s inter­
ference could be justified as having ‘ ‘ a rational evidentiary 
basis” (infra, p. 37) incorrectly assumes that the freedom 
of speech of an elected legislator depends not upon the 
First Amendment but upon the judgment of his colleagues. 
There is no suggestion in this case of any danger which 
could justify a direct impairment of First Amendment 
rights. See, e.g., Whitney v. California, 274 IT. S. 357, 372 
(Mr. Justice Brandeis, concurring opinion); Thomas v. 
Collins, 323 U. S. 516, 530.

The reference of the majority below to a “ rational evi­
dentiary basis ’ ’ may have been based upon the unarticulated 
assumption that the interference with speech was only 
indirect. But the application of even this test could not 
support the exclusion of Mr. Bond from elected office and 
the resulting interference with his constituents’ exercise 
of their right to vote. There was no rational basis for the 
legislature’s action under the critical factual analysis 
employed by this Court in analogous situations; Konigsberg 
v. State Bar of California, 353 IT. S. 252; Schware v. Board 
of Bar Examiners of New Mexico, 353 U. S. 232; In re 
Sawyer, 360 U. S. 622. The impairment of free speech 
cannot be veiled by a reference to the doctrines of “ separa­
tion of powers” and “ our system of federalism” infra, 
p. 35. First, the supremacy clause is an equally controlling 
doctrine, see Pennsylvania v. Nelson, 350 U. S. 497; second, 
there is “ a profound national commitment to the principle 
that debate on jjublic issues should be uninhibited, robust 
and wide open.” New York Times Co. v. Sullivan, 376 U. 8. 
254, 270; see also Kingsley In t’l Pictures Corp. v. Regent, 
360 U. S. 684, 688-689. If the legislature’s conduct impairs 
constitutional rights, the doctrines enunciated by the court 
below are no defense. To hold otherwise is to reject federal 
judicial review of state unconstitutional action.



9

The SNCC statement pales before expressions on the 
same subject by some of the most distinguished public 
figures,5 Its suggestion of exemption for conscientious ob­
jectors and of alternative civilian work is already law; see 
50 U. S. 0. 456( j ) ; United States v. Seeger, 380 U. S. 163. 
The SNCC statement was lawful; so was Mr. Bond’s 
approval of it. In any event, he could not be disqualified 
for office, absent a criminal conviction in court, Georgia 
Constitution, Article II, Section II, Paragraph I (infra, 
p. 15).6

2. Mr. Bond as an elected legislator had an enhanced 
right and a duty to his constituents to speak out on public 
issues even if his views had not been solicited by the 
press; see Garrison v. Louisiana, 379 U. S. 64.7 An elected 
representative must communicate freely with his constitu­
ents as well as engage in legislative debate. He does not 
enjoy the ordinary citizen’s prerogative of silence. To 
circumscribe the legislator’s rights, as did the Georgia 
legislature, is to interfere with representative democracy 
and equal protection of the laws under the Fourteenth 
Amendment in no less degree than by the malapportionment 
which has been the subject of this Court’s recent decisions; 
see, e.g., Baker v. Carr, supra.8

5 See, e.g., Senator Wayne Morse in 111 Cong. Rec. 25420-22 
(daily ed. Oct. 19, 1965) ; Circuit (formerly Chief) Judge Henry 
W. Edgerton in The New Republic, May 22, 1965; The New York 
Times, November 14, 1962, p, 38; August 9, 1964, Sec. IV, p. 8.

6 Mr. Bond’s statement to the legislative committee that he 
never advocated “that people should break laws” (infra, p. 53) is 
not questioned by the court below.

7 See also United States v. Johnson, No. 25, Oct. Term, 1965, 
emphasizing the need to protect legislators’ freedom in matters 
affecting their special responsibilities.

8 While this is a sufficient federal question under Baker v. Carr, 
supra, appellants would also urge, at least in the present context, 
reconsideration of the Court’s view that the impairment of the 
constitutional guaranty of a republican form of government, under 
Article IV, § 4, does not raise a justiciable question.



10

The conception that the majority of a legislature pos­
sesses a veto power over the choice of the electorate is to 
reject “ the essence of constitutional representative govern­
ment.” 9 Nor can the majority secure this veto obliquely 
by denying the member-elect the privilege of taking the 
oath “ because of any alleged opinion, state of mind or 
intent, claimed to be inconsistent with the oath” (ibid.).

The majority was also in error in ruling that Mr. 
Bond’s constituents lacked standing to sue (infra, pp. 26- 
27). They were proper parties under this Court’s decisions 
because Mr. Bond’s expulsion deprived his co-appellants 
and their class in violation of the equal protection clause 
of representation in the Georgia House of Representatives.

3. House Resolution 19, excluding Mr. Bond from office, 
is an ex post facto law and a bill of attainder prohibited by 
Article I, Section 10 of the Constitution. It is a legislative 
act in the classic sense, although promulgated by a single 
house of the legislature.10 It singles out an individual 
because of imputed past misdeeds of a political nature, 
stigmatizes him as disloyal, and punishes him by expulsion 
from office and his constituents by loss of suffrage. The 
resolution is plainly unconstitutional under the Court’s 
decisions on bills of attainder and ex post facto laws; 
United States v. Brown, 381 U. S. 437; Ex parte Garland, 
4 Wall. (71 U. S.) 333; Cummings v. Missouri, 4 Wall. (71 
U. S.) 277; United States v. Lovett, 328 U. S. 303; Lindsey 
v. Washington, 301 G. S. 397.

4. There was sound basis for Chief Judge Tuttle’s dis­
senting view that the exclusion of Mr. Bond was not author­
ized by the state Constitution and statute (infra, p. 65). 
This construction of state law was impelled by the need to 
avoid “ deciding the grave federal question” (infra, p. 66). 
Cf. United States v. Rumely, 345 U. S. 41. Its adoption 
below would have required judgment in appellants’ favor

9 See the Brief of Special Committee, pp. 4, 9, referred to in foot­
note 4.

10 See United States v. Lovett, infra, at p. 315.



11

since the district court correctly held that it had juris­
diction.

The majority’s contrary interpretation of Georgia law 
raises a serious question of vagueness under the Fourteenth 
Amendment. It would turn precise qualifications for 
office 11 into an unlimited discretion by a legislative major­
ity to determine qualifications on an ad hoc basis. It would 
turn a constitutionally prescribed promissory oath 12 into a 
license to investigate the member’s associations and beliefs. 
The pemiciousness of vagueness in the First Amendment 
area, particularly where the oath restricts political expres­
sion, is obvious, Cramp v. Board of Public Instruction, 368 
U. S. 278; Baggett v. Bullitt, 377 U. S. 360. The injury is 
magnified when one considers the historically dangerous 
effect of the test oath for public office. As applied here, it 
negates the electoral decision of the people and usurps their 
inherent censorial power over their elected representatives.

CONCLUSION
The questions are substantial and the Court should 

note probable jurisdiction.
Respectfully submitted,

H oward M oore, J r .,
859% Hunter Street N.W., 

Atlanta, Georgia, 30314.
L eonard B . B o u d in ,
V ictor  R a bin o w itz ,

30 East 42nd Street,
New York, New York, 10017.

Attorneys for Appellants.
March, 1966.

11 Article III, Section VII, Paragraph I of the Georgia Con­
stitution, infra, p. 14, and House Rule 61, infra, p. 16.

12 Article III, Section IV, Paragraph V of the Georgia Constitu­
tion, infra, p. 14.



12

IN THE

( t e r t  itf t ip  In t t f f r
O cto b e r T erm , 1965 

No.

----------------------- 1).------ — -------------

J ulian  B ond, D r. M artin  L u th er  K ing , J r., a n d  M rs. 
A rel K eyes, f o r  them selves jo in tly  an d  severally , and  
fo r  all o th e rs  s im ila r ly  s itu a ted ,

Appellants,

v.

J ames “ S l o ppy ”  F loyd, et al.

O n  A p p e a l  erom  t h e  U n it e d  S tates D istr ic t  C ourt  eor 
t h e  N o r th er n  D istrict1 of G eorgia (A tlanta  D iv is io n )

————■—-—■—o—-----------------

M otion to A dvance

Pursuant to Rule 48 of the Rules of this Court, appel­
lants respectfully move this Court (i) to reduce the ap­
pellees’ time to move under Rule 16(1), (ii) to advance 
the case for argument to the week of May 2, 1966, if the 
Court notes probable jurisdiction or postpones considera­
tion of jurisdiction, and (iii) to dispense with the printing 
of the record.

The reason for this application is the extraordinary 
public importance of this case. Both state and federal 
elections will be held this Fall in which candidates should 
not be threatened with disqualification either for express­
ing their views or as a device for evading federal court de­
cisions and the Voting Rights Act of 1965, Pub. L. No. 110,



13

Motion to Advance

89th Cong., 1st Sess. There is also a continuing and 
irreparable injury to appellants by reason of Mr. Bond’s 
continued exclusion from office. While the general session 
of the legislature ended on February 18, 1966, its standing 
committees continue to function and there is a strong- 
probability that a special legislative session will be called 
by the Governor by reason of motions now pending in 
Toombs v. Fortson, 241 F. Supp. 65 (N. D. Ga. 1965).

Unless this case is advanced it is not likely to be decided 
on the merits before the expiration of Mr. Bond’s term 
of office on December 31, 1966 and hence may he mooted. 
An early decision by the Court will prevent protracted 
litigation which may otherwise result from repeated elec­
tions of Mr. Bond and rejections by the legislature.

Since the only issues, those of law, are adequately pre­
sented by the opinions below, the printing of the record 
is unnecessary.

W herefore, appellants respectfully pray that the Court 
grant this motion to advance.

Respectfully submitted,

H oward M oore, J r .,
8591/2 Hunter Street N.W., 

Atlanta, Georgia, 30314.

L eonard B . B oudin ,
V ictor R abinow itz,

30 East 42nd Street,
New York, New York, 10017. 

Attorneys for Appellants.
March, 1966.



14

APPENDIX A

Constitution and Legislative Acts

Article III, Section VII, Paragraph I, of the Georgia 
Constitution provides in pertinent part as follows:

“ Election, returns, etc.; disorderly conduct.— 
Each House shall he the judge of the election, re­
turns, and qualifications of its members and shall 
have power to punish them for disorderly behavior, 
or misconduct, by censure, fine, imprisonment, or 
expulsion, hut no member shall he expelled, except 
by a vote of two-thirds of the House to which he 
belongs.” (2-1901, Ga. Code Ann.)

Article III, Section VI, Paragraph I, of the Georgia 
Constitution provides in pertinent part as follows:

“ Qualifications of representatives.—The Repre­
sentatives shall be citizens of the United States who 
have attained the age of twenty-one years, and who 
shall have been citizens of this State for two years, 
and for one year residents of the counties from 
which elected. (2-1801, Ga. Code Ann.)

Article III, Section IV, Paragraph V, of the Georgia 
Constitution provides in pertinent part as follows:

“ Oath of members.—Each senator and repre­
sentative, before taking his seat, shall take the fol­
lowing oath, or affirmation, to wit: ‘I will support 
the Constitution of this State and of the United 
States, and on all questions and measures which 
may come before me, I will so conduct myself, as 
will, in my judgment, be most conducive to the in­
terests and prosperity of this State.” (2-1605, Ga. 
Code Ann.)



15

Appendix A—Constitution and Legislative Acts

Article II, Section II, Paragraph I, of the Georgia Con­
stitution provides in pertinent part as follows:

“ Registration of electors; who disfranchised.— 
The General Assembly may provide, from time to 
time, for the registration of all electors, hut the fol­
lowing classes of persons shall not be permitted to 
register, vote, or hold any office, or appointment of 
honor, or trust in this State, to wit: 1st. Those 
who shall have been convicted in any court of com­
petent jurisdiction of treason against the State, of 
embezzlement of public funds, malfeasance in office, 
bribery or larceny, or of any crime involving moral 
turpitude, punishable by the laws of this State with 
imprisonment in the penitentiary, unless such per­
sons shall have been pardoned. 2nd. Idiots and 
insance persons.” (2-1801, Ga. Code Ann.)

Article III, Section IV, Paragraph VI, of the Georgia 
Constitution provides in pertinent part as follows:

“ Eligibility; appointments forbidden.—No per­
son holding a military commission, or other appoint­
ment, or office, having an emolument, or compensa­
tion annexed thereto, under this State, or the United 
States, or either of them except Justices of the 
Peace and officers of the militia, nor any defaulter 
for public money, or for any legal taxes required 
of him shall have a seat in either house; nor shall any 
Senator, or Representative, after his qualification 
as such, be elected by the General Assembly, or ap­
pointed by the Governor, either with or without the 
advice and consent of the Senate, to any office or 
appointment having any emolument annexed thereto, 
during the time for which he shall have been elected, 
unless he shall first resign his seat, provided, how­
ever, that during the term for which he was elected



16

Appendix A—Constitution and Legislative Acts

no Senator or Representative shall be appointed to 
any civil office which has been created during such 
term.” (2-1601, da. Code Ann.)

Article VII, Section III, Paragraph YI, of the deorgia 
Constitution provides in pertinent part as follows:

‘ ‘ Profit on public money.—The receiving, directly 
or indirectly, by any officer of State or county, or 
member or officer of the deneral Assembly of any 
interest, profits or perquisites, arising from the use 
or loan of public funds in his hands or moneys to 
be raised through his agency for State or county 
purposes, shall be deemed a felony, and punishable 
as may be prescribed by law, a part of which punish­
ment shall be a disqualification from holding office.” 
(2-5606, da. Code Ann.)

House Rule 61 of the deorgia House of Representatives 
provides in pertinent part as follows:

“ Each house shall be the judge of the election, 
returns, and qualifications of its members and shall 
have power to punish them for disorderly behavior, 
or misconduct, by censure, fine, imprisonment, or ex­
pulsion ; but no member shall be expelled, except by 
a vote of two-thirds of the House to which he be­
longs.”

House Resolution 19 of January 10, 1966 of the deorgia 
House of Representatives provides in pertinent part as 
follows:

“ Relative to the matter of the seating of Repre­
sentative-Elect Julian Bond; and for other purposes.

“ W hereas, a special committee created pursuant 
to H.R. No. 7 which was appointed for the purpose



17

Appendix A—Constitution and Legislative Acts

of holding a hearing on petitions challenging and 
contesting the seating of Representative-Elect Julian 
Bond of the 136th District has conducted a hearing 
in said matter; and

“ W hereas, said committee has submitted a re­
port in which it is recommended that Representa­
tive-Elect Julian Bond not be allowed to take the 
oath of office as a Representative of the House of 
Representatives and that he not be seated as a mem­
ber of the House of Representatives.

“ Now, THEREFORE', BE IT RESOLVED BY THE HOUSE
of R epresentatives th a t  th e  re p o r t  o f the  a fo re sa id  
com m ittee is h e re b y  a d o p ted  a n d  th e  reco m m en d a­
tio n s  co n ta in ed  th e re in  sh a ll be follow ed.

“ B e it  f u r t h e r  resolved  that Representative- 
Elect Julian Bond shall not be allowed to take the 
oath of office as a member of the House of Repre­
sentatives and that Representative-Elect Julian 
Bond shall not be seated as a member of the House 
of Representatives.

“ B e it  f u r t h e r  resolved that the Clerk of the 
House is hereby instructed to immediately transmit 
a copy of the aforesaid report and a copy of this 
resolution to the Governor, to the Secretary of 
State and to Representative-Elect Julian Bond.”



18

APPENDIX B 

Opinions Below

IN THE

UNITED STATES DISTRICT COURT
F or t h e  N orthern  D istrict op Georgia 

A tlanta D ivision  

Civil Action No. 9895

—--------------- o--------------------
J ulian  B ond, Dr. M artin  L u th er  K ing , J r ., and M rs. A rel 

K eyes, for themselves jointly and severally, and for all 
others similarly situated,

Plaintiffs,
v.

J ames “ S l o ppy”  F loyd, et al.,
Defendants.

—---------- ------- o—-----------------

Before T uttle  and B ell , Circuit Judges, and 
M organ, District Judge.

B ell , Circuit Judge an d  M organ, District Judge-.

Opin io n  and Order

Mr. Bond, one of the plaintiffs in this matter and a 
Negro, was refused his seat as a member of the House of 
Representatives of the General Assembly of Georgia. He 
was a Representative-elect, having been duly elected by 
the voters of House District No. 136 for the session of the 
General Assembly commencing January 10, 1966. This



19

Appendix B—Opinions Below

was a special election for a one year term made necessary 
by the reapportionment decision of this court. Toombs v. 
Fortson, N. D., Ga., 1965, 241 F. Supp. 65.

On the first day of the session, at which time Mr. Bond 
and other members of the House were to take the oath of 
office, Mr. Bond was asked to step aside because of chal­
lenges to his qualifications having been filed by seventy-five 
of the two-hundred-five members of the House. Alter the 
other members were sworn, including seven Negro repre­
sentatives, petitions protesting the seating of Representa­
tive-Elect Bond were referred by the Speaker of the House 
to a special committee designated to hear the contest. This 
committee, after a hearing, recommended that he not be 
seated. This recommendation was accepted by the House 
and he was denied his seat by a vote of one hundred eighty- 
four to twelve.

Dr. King and Mrs. Keyes, the other plaintiffs, seek 
along with Mr. Bond to represent the citizens and voters of 
House District No. 1.36 as a class, and it is affirmatively 
alleged that they are Negro citizens of House District 
No. 136 and that they are registered voters. They allege 
that there are common questions of law and fact affecting 
the civil rights of Negroes to vote and to have members 
of their race represent them in the House of Representa­
tives of the State of Georgia. It is undisputed that Dr. 
King and Mrs. Keyes are residents of the district, but it is 
also undisputed that Dr. King is not registered to vote in 
the district but in the House District No. 132.

The defendants are the Speaker of the House, the 
Speaker Pro-Tern, several members of the House repre­
senting the membership, certain officers of the House, and 
the Secretary of State of the State of Georgia. Jurisdiction 
for declaratory and injunctive relief is asserted under 28 
USCA, §§ 1331, 1343(3), 1343(4), and 2201; and 42 HSCA, 
§§ 1971(d), 1983, and 1988. Three-Judge District Court 
jurisdiction was premised on 28 HSCA, § 2281 by a claim



20

Appendix B—Opinions Below

that the provision of the Georgia Constitution which per­
mits the members of the House to judge the qualifications 
of its members, and House Rule 61 which embodies the same 
provision are unconstitutionally vague, or were unconstitu­
tionally administered with respect to Mr. Bond.

The additional causes of action set forth in the com­
plaint were refined by briefs into claims that Mr. Bond 
was barred from membership because he was a Negro; 
that the action of the House denied him his First Amend­
ment right to free speech; that he was denied procedural 
due process as guaranteed by the due process clause of the 
Fourteenth Amendment; that he was denied substantive due 
process in that there was no rational basis for the action 
of the House; that the House resolution barring Mr. Bond 
constituted an ex post facto law and a hill of attainder; 
and that the House action deprived the residents of the 
House District No. 136 of a republican form of government, 
equal protection of the law under the Fourteenth Amend­
ment, and the right as Negroes under the Fifteenth Amend­
ment to vote. The prayer is that defendants he enjoined 
from excluding Mr. Bond from membership in the House.

The defendants, by motion, have denied the jurisdiction 
of the court. Additionally, in the alternative, they have 
moved to dismiss Dr. King and Mrs. Keyes as plaintiffs. 
They have also answered the complaint. It was stipulated 
that a final judgment might be rendered on the pleadings, 
the stipulated facts and such other evidence as was intro­
duced on the hearing of this matter. We thus proceed to 
final disposition.

The facts which gave rise to the challenge to Mr. Bond 
stem from a statement issued on January 6, 1966 by the 
Student Nonviolent Coordinating Committee, an organiza­
tion active in the civil rights field. Mr. Bond is and was 
Communications Director of this organization. After the 
statement was issued, Mr. Bond, upon inquiry, advised the 
news media that he supported the statement in its entirety.



21

Appendix B—Opinions Below

He added that he admired the courage of persons who 
burned their draft cards; that he was a pacifist who was 
eager and anxious to encourage people not to participate 
in the war in Viet Nam for any reason that they might 
choose; and said that as a second class citizen he did not 
feel that he should be required to support the war in Viet 
Nam.

The SNNC statement follows in full:
“ The Student Nonviolent Coordinating Commit­

tee has a right and a responsibility to dissent with 
United States foreign policy on an issue when it sees 
fit. The Student Nonviolent Coordinating Commit­
tee now states its opposition to United States’ in­
volvement in Viet Nam on these grounds:

“ We believe the United States government has 
been deceptive in its claims of concern for freedom 
of the Vietnamese people, just as the government has 
been deceptive in claiming concern for the freedom 
of colored people in such other countries as the Do­
minican Eepublic, the Congo, South Africa, Rhodesia 
and in the United States itself.

“ We, the Student Nonviolent Coordinating Com­
mittee, have been involved in the black people’s strug­
gle for liberation and self-determination in this 
country for the past five years. Our work, particu­
larly in the South, has taught us that the United 
States government has never guaranteed the freedom 
of oppressed citizens, and is not yet truly determined 
to end the rule of terror and oppression within its 
own borders.

“ We ourselves have often been victims of vio­
lence and confinement executed by United States 
government officials. We recall the numerous per­
sons who have been murdered in the South because 
of their efforts to secure their civil and human rights,



22

Appendix B—Opinions Below

and whose murderers have been allowed to escape 
penalty for their crimes.

“ The murder of Samuel Young in Tuskegee, Ala., 
is no different than the murder of peasants in Viet 
Nam, for both Young and the Vietnamese sought, 
and are seeking, to secure the rights guaranteed 
them by law. In each case the United States govern­
ment bears a great part of the responsibility for 
these deaths.

“ Samuel Young was murdered because United 
States law is not being enforced. Vietnamese are 
murdered because the United States is pursuing an 
aggressive policy in violation of international law. 
The United States is no respecter of persons or law 
when such persons or laws run counter to its needs 
and desires.

“ We recall the indifference, suspicion and out­
right hostility with which our reports of violence have 
been met in the past by government officials.

“ We know that for the most part, elections in 
this country, in the North as well as the South, are 
not free. We have seen that the 1965 Voting Eights 
Act and the 1964 Civil Rights Act have not yet been 
implemented with full federal power and sincerity.

“ We question, then, the ability and even the desire 
of the United States government to guarantee free 
elections abroad. We maintain that our country’s 
cry of ‘preserve freedom in the world’ is a hypo­
critical mask behind which it squashes liberation 
movements which are not bound, and refuse to be 
bound, by the expediencies of United States cold war 
policies.

“ We are in sympathy with, and support, the men 
in this country who are unwilling to respond to a 
military draft which would compel them to contribute 
their lives to United States aggression in Viet Nam



23

Appendix B—Opinions Below

in the name of the ‘freedom’ we find so false in this 
country.

“ We recoil with horror at the inconsistency of a 
supposedly ‘free’ society where responsibility to 
freedom is equated with the responsibility to lend 
oneself to military aggression. We take note of the 
fact that 16 percent of the draftees from this country 
are Negroes called on to stifle the liberation of Viet 
Nam, to preserve a ‘democracy’ which does not exist 
for them at home.

“ We ask, where is the draft for the freedom fight 
in the United States?

“ We therefore encourage those Americans who 
prefer to use their energy in building democratic 
forms within this country. We believe that work 
in the civil rights movement and with other human 
relations organizations is a valid alternative to the 
draft. We urge all Americans to seek this alterna­
tive, knowing full well that it may cost them lives— 
as painfully as in Viet Nam.”

On the same day a newspaper reporter asked Mr. Bond 
for his views on the subject of the burning of draft cards. 
He stated that he would not burn his own but admired the 
courage of those who did.

During a taped interview with a representative of the 
media, Mr. Bond, after endorsing the 8NCC statement was 
asked why he endorsed it, and his answer was as follows:

“ Why, I endorse it, first, because I like to think 
of myself as a pacifist and one who opposes that war 
and any other war and eager and anxious to encour­
age people not to participate in it for any reason 
that they choose; and secondly, I agree with this 
statement because of the reason set forth in it— 
because I think it is sorta hypocritical for us to main-



24

Appendix B—Opinions Below

tain that we are fighting for liberty in other places 
and we are not guaranteeing liberty to citizens inside 
the continental United States.”

When asked if he thought his views were at variance 
with the duties that might be required of him as a Repre­
sentative in the House of Representatives of the State of 
Georgia, Mr. Bond replied:

“ Well, I  think that the fact that the United States 
Government fights a war in Viet Nam, I don’t think 
that I as a second class citizen of the United States 
have a requirement to support that war. I think 
my responsibility is to oppose things that I think 
are wrong if they are in Viet Nam or New York, 
or Chicago, or Atlanta, or wherever.”

These facts were introduced before the House commit­
tee hearing the challenge. Mr. Bond was represented by 
counsel at the hearing and testified. He reaffirmed his 
adherence to all of these statements at the hearing and 
stated that they were still his views. There was no evi­
dence then nor at the hearing before this court that Mr. 
Bond had receded in any way from his views. However, 
by way of explanation, he did state to the House committee 
that he had never suggested or advocated that anyone 
burn his draft card. He stated his willingness and desire 
to take the prescribed oath to support the Constitution 
of the United States and the State of Georgia.

The petitions challenging Mr. Bond which were before 
the special committee of the House contain several grounds, 
including the contention that Mr. Bond’s actions and state­
ments gave aid and comfort to the enemies of the United 
States, and also violated the Selective Service laws, 50' 
App., USCA, § 462(a) and (b), and tended to bring dis­
credit and disrespect on the House of Representatives.



25

Appendix B—Opinions Below

The challenge was also on the basis that the statements 
and views of Mr. Bond disqualified him to take the oath 
to support the Constitution of the United States and the 
Constitution of Georgia as is required of a member of 
the House of Representatives. The theory was that Mr. 
Bond’s statements were so repugnant to and inconsistent 
with his oath as to make it apparent that he could not 
honestly take the oath. This theory presents the central 
issue in the case.

P ending  M otions

Defendants moved to dismiss the complaint on the 
ground that the court lacks jurisdiction over the subject 
matter. Their view is that the determination of the qualifi­
cations of a member of the State House of Representatives 
is a matter which state law vests in the sole and exclusive 
jurisdiction of the House of Representatives, and that 
the federal questions asserted are insubstantial. They 
urge that the absence of any substantial question concern­
ing deprivation of federally protected rights indicates that 
the action of the House is not subject to federal judicial 
review.

The extent of review under the circumstances will be 
discussed hereinafter under the merits of the controversy. 
However, we do hold that the court has jurisdiction over 
the subject matter of the complaint. It could hardly be 
argued that the House could refuse to seat a member be­
cause of his race or for any other reason amounting to 
an invidious discrimination under the equal protection 
clause of the Fourteenth Amendment. Cf. Baker v. Carr, 
1962, 369 U. S, 186, 82 S. Ct. 691, 7 L. Ed. 2d 663. The 
denial of a seat to a Negro representative-elect would also 
violate the Fifteenth Amendment. Cf. Gomillion v. Light- 
foot, 1960, 364 U. S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110. We 
think it follows that the court has jurisdiction over a



26

Appendix B—Opinions Below

denial of First Amendment rights by the state, and that 
the federal rights asserted here are not so insubstantial 
as to warrant our refusing jurisdiction. The motion of 
the state to dismiss will be overruled and an order may 
be presented accordingly.

The defendants also have motions pending to strike 
the plaintiffs King and Keyes on the ground that they 
do not have such a direct interest in the litigation as would 
give them standing. They base their standing on an ab­
sence of representation in the House because Mr. Bond 
was deprived of his seat. The Governor has called an 
election for February 23, 1966 to fill the vacant seat,1

It is settled that one seeking to challenge the constitu­
tionality of the statute must show that he has sustained 
or is in danger of sustaining some immediate direct in­
jury. Liverpool, N. Y. and P. Steamship Company v. 
Comm, of Emigration, 1885, 113 TJ. S. 33, 5 S. Ct. 352, 28 
L. Ed. 899; Commonwealth of Massachusetts v. Mellon, 
1923, 262 U. S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. Dr. King 
and Mrs. Keyes have not “ . . . alleged such a personal 
stake in the outcome of the controversy as to assure that 
concrete adverseness which sharpens the presentation of 
issues . . . ” necessary in determining constitutional ques­
tions. Baker v. Carr, supra.

In a case involving the temporary lack of representa­
tion because a United States Senator had been denied 
his seat pending inquiry into his election and, qualifica­
tions, Barry v. United States, 1929, 279 U. S. 597, 49 S. Ct. 
452, 73 L. Ed. 867, the court said:

“ The temporary deprivation of equal repre­
sentation which results from the refusal of the

1 Mr. Bond is a candidate for the vacant seat and is the only 
candidate. The qualifications closed on February 7, 1966. The 
General Assembly will adjourn its present session on Friday, Feb­
ruary 18, 1966. There will be no other regular session of the 
General Assembly during the year 1966.



27

Appendix B—Opinions Below

Senate to seat a member pending inquiry as to his 
election or qualifications is the necessary conse­
quence of the exercise of a constitutional power, 
and no more deprives the State of its ‘equal suf­
frage’ in the constitutional sense than would a vote 
of the Senate vacating the seat of a sitting member 
or a vote of expulsion.”

We are of the opinion that plaintiffs King and Keyes do 
not have such a direct interest in the litigation as would give 
them standing to bring the complaint. This is particularly 
so in view of the fact that the complaint of Mr. Bond alone 
will resolve every conceivable issue. Moreover, I)r. King is 
not a registered voter in the House District in question. 
The motion of the state to dismiss as to these two plaintiffs 
will be granted and an order may be presented accordingly.

T h e  M erits

The contention that Mr. Bond was denied his seat be­
cause of his race was resolved adversely to him from the 
bench during the hearing of this matter. To support this 
contention it was urged that Mr. Bond was a Negro; that 
SNCC was a militant civil rights organization; and that 
the question of race was inextricably related to each and 
every statement forming the basis of the challenge. This 
logic would create license in the name of race. Furthermore, 
seven Negroes, as stated, were seated on the same day as 
representatives. Two served on the special challenge com­
mittee at the request of Mr. Bond; two Negro senators ap­
peared before the committee as character witnesses for him; 
and two of the Negro representatives spoke on the floor of 
the House for him before the final vote. The charge of 
racial discrimination and thus of denial of equal protection 
of the law is without foundation in fact.



28

Appendix B—Opinions Below

This ruling also disposes of any claim that Mr. Bond or 
the citizens and voters of House District No. 136 have been 
deprived of any right as Negroes under the equal protec­
tion clause of the Fourteenth Amendment or under the 
Fifteenth Amendment. For the reasons stated on the stand­
ing question we reject also the contention that the action 
of the House denied them a republican form of government. 
This is not even a justiciable issue Baker v. Carr, supra.

The substantial issue in the case rests on the guaranty 
of freedom of speech or to dissent under the First Amend­
ment as that amendment has long been applicable to the 
states under the due process clause of the Fourteenth 
Amendment. Gitlow v. New York, 1925, 268 IT. S. 652, 45 
8. Ct. 625, 69 L. Ed. 1138; De Jonge v. Oregon, 1937, 299 
U. 8. 353, 57 S. Ct. 255, 81 L. Ed. 278. But the inquiry does 
not end simply on the question of deprivation of First 
Amendment rights per se. Rather the inquiry must be in 
the context of two fundamental principles of government: 
separation of powers and state government under our 
system of federalism. The right of free speech would not 
long exist absent a government founded on these principles.

James Madison writing in Federalist No. 47 said with 
respect to the separation of powers doctrine:

“ The accumulation of all powers, legislative, ex­
ecutive, and judiciary in the same hands, whether of 
one, a few or many, and whether heredity, self-ap­
pointed, or elective, may justly be pronounced the 
very definition of tyranny.

And from the beginning states have claimed and enjoyed 
the protection of the separation of powers principle as be­
tween their respective branches of government. This, to 
date, has been a part of our federalism.

Georgia adopted the separation of powers principle in 
its first Constitution. Art. I, Const, of 1777. McElreath,



29

Appendix B—Opinions Below

Constitution of Ga., § 239, p. 229. The Constitution of 1789, 
Art. I, § XIII, McElreath, supra, § 314, p. 243, provided that 
each House of the state legislature would be the judge of 
the elections, returns and qualifications of its own mem­
bers and have the power to expel or punish for disorderly 
behavior. Similar provisions have been included in every 
other Georgia Constitution. Ga. Const, of 1798, Art. I, 
§ VIII, McElreath, $ 364, p. 253; Const, of 1861, Art. II, 
§ IY, Par. I, McElreath, § 484, p. 286, Const, of 1865, Art. 
II, $IV, Par. I, McElreath, $ 585, p. 304; Const, of 1868, 
Art. Ill, § IV, Par. I, McElreath, $ 709, p. 328; Const, of 
1877, Art. Ill, $ VII, Par. I, McElreath, $ 882, p. 361.

“ Each House shall be the judge of the election, 
returns, and qualifications of its members and shall 
have power to punish them for disorderly behavior, 
or misconduct, by censure, fine, imprisonment, or ex­
pulsion ; but no member shall be expelled, except by a 
vote of two-thirds of the House to which he belongs.”

This language is to be compared with Art. I, $ 5, Clauses 
I and 2 of the Constitution of the United States:

“ Each House shall be the Judge of the Elections, 
Returns and Qualifications of its own Members, . . . ” 
(Clause 1)

“ Each House may determine the Rules of its Pro­
ceedings, punish its Members for disorderly Be­
havior, and, with the Concurrence of two thirds, ex­
pel a Member.” (Clause 2)

The Georgia courts have consistently refused to take 
jurisdiction over controversies having to do with the quali­
fications of legislators. The Senate or House, as happened 
to be the case, was deemed to have exclusive jurisdiction un­
der the Georgia Constitution. Rainey v. Taylor, 1928, 166 
Ga. 476, 143 S. E. 383; Fowler v. Bostick, 1959, 99 Ga. App.



30

Appendix S —Opinions Below.

428, 108 S. E. 2d 720; and Beatty v. Myrich, 1963, 218 Ga. 
629, 129 S. E. 2d 764. This is the general law in this coun­
try. Indeed we believe that there is no case to the contrary, 
federal or state.

Plaintiff recognizes the separation of powers principle 
as such on both the federal and state levels. He argues 
however that it exists on the state level only insofar as it 
does not conflict with the Federal Constitution and must 
therefore give way to First Amendment rights in view of 
the vertical application of those rights to the states through 
the due process clause of the Fourteenth Amendment. This 
is a correct statement of the law subject to whatever rights 
were left by the Fourteenth Amendment to the state legis­
lative branches for control of their internal affairs under 
our system of federalism. We thus must measure Mr. 
Bond’s freedom to speak in this frame of reference.

Before attempting to resolve this new and substantial 
constitutional question we must concern ourselves with the 
threshold question, not asserted by plaintiffs, of whether the 
legislature had the power under the state Constitution or 
laws to bar Mr. Bond. Our distinguished and able Chief 
Judge is of the firm view that no such power existed. He 
seems to find the power of expulsion, but limits the power 
of judging qualifications to those expressed in the Georgia 
Constitution. We believe this to be a restrictive view, un­
founded in recognized authority and not in keeping with 
our history or the principle of separation of powers.

Judge Story gave the reasons for vesting exclusive juris­
diction in the legislative branch in such cases (Story, Comm, 
on the Const., Vol. II, §831, p. 294) :

“ It is obvious, that a power must be lodged 
somewhere to judge of the elections, returns, and 
qualifications of the members of each house com­
posing the legislature; for otherwise there could be 
no certainty, as to who were legitimately chosen



31

Appendix B—Opinions Below

members, and any intruder, or usurper, might claim 
a seat, and thus trample upon the rights, and privi­
leges, and liberties of the people. Indeed, elections 
would become, under such circumstances, a mere 
mockery; and legislation the exercise of sovereignty 
by any self-constituted body. The only possible 
question on such a subject is, as to the body, in 
which such a power shall be lodged. If lodged in 
any other, than the legislative body itself, its in­
dependence, its purity, and even its existence and 
action may be destroyed, or put into imminent 
danger. No other body, but itself, can have the 
same motives to preserve and perpetuate these 
attributes; no other body can be so perpetually 
watchful to guard its own rights and privileges from 
infringement, to purify and vindicate its own char­
acter, and to preserve the rights, and sustain the 
free choice of its constituents. Accordingly, the 
power has always been lodged in the legislative 
body by the uniform practice of England and Amer­
ica. ’ ’

The Supreme Court in Be Chapman, 1897, 166 U. S. 
661, 17 S. Ct. 677, 41 L. Ed. 1154, a case involving a senate 
investigation of the conduct of some of its members, said:

“ Under the Constitution the Senate of the United 
States has the power to try impeachments; to judge 
of the elections, returns, and qualifications of its 
own members; to determine the rules of its pro­
ceedings, punish its members for disorderly be­
havior, and, with the concurrence of two thirds, 
expel a member; and it necessarily possesses the 
inherent power of self-protection. ”



32

Appendix B—Opinions Below

We believe a state legislative body necessarily possesses 
this same inherent power of self-protection if the separa­
tion of powers doctrine is to have any real meaning on 
the state level. And self-protection goes to the process 
of qualifications as well as expulsion.

In Hiss v. Bartett, 1855, 3 Gray 468, 63 Am. Dec. 768, 
the question concerned the legislative power to expel a 
member. The Massachusetts Constitution contained no 
such power but did contain the power to judge returns, 
elections and qualifications. The court said:

“ The authority to be ‘judge of the returns, elec­
tions, and qualifications of its own members’, does 
not limit their power; they are judges in other re­
spects, in all respects.”

Art. I, § 5, of the United States Constitution, as noted, 
provides that each House shall be the judge of the elec­
tions, returns and qualifications of its own members. Art. 
I, § 3 provides that no person shall be a representative 
unless he meets certain age, citizenship and residential 
requirements. In the Constitutional Convention there was 
an attempt to set up affirmative qualifications. During 
the debate on that draft which was later rejected, Mr. 
Dickinson of Delaware, opposed the formulation because 
it would be held to be exclusive. He stated that he was 
“ against any recitals of qualifications in the Constitu­
tion. It was impossible to make a complete one, and a 
partial one would, by implication, tie up the hands of the 
Legislature from supplying omissions.” Mr. Wilson of 
Pennsylvania took the same view, saying: “ Besides a 
partial enumeration of cases will disable the Legislature 
from disqualifying odious and dangerous characters.” 
(Proceedings in Congressional Record, 80th Congress, First 
Session, January 3, 1947, Vol. 93, p. 12, Senate debate on 
whether Senator Bilbo of Mississippi was disqualified.)



33

Appendix B—Opinions Below

By way of a historical precedent, Mr. Bilbo was denied 
his seat in the United States Senate because, among other 
reasons, his views regarding the right of Negroes to vote 
were repugnant to the oath he would be required to take. 
The Senate did not believe that it was limited to the qual­
ifications expressed in the Constitution.

See Willoughby, The Constitutional Law of the United 
States, 2nd ed., Yol. I, p. 610, where after discussing in 
§340 the subject of qualifications for membership being- 
determined by Congress, the author states:

“ The instances that have been cited make it 
sufficiently clear that the Senate and House have 
repeatedly held it to be proper that they should 
consider whether or not persons should be admitted 
as Senators or Representatives even though pos­
sessing all of the qualifications prescribed by the 
Constitution for membership and bringing creden­
tials in due form of their election.”

In the case of Senator Reed Smoot of Utah who had 
been seated but whose qualifications to continue as a Sen­
ator were questioned, the investigation committee recom­
mended that he be expelled either for reason of his member­
ship in a church that countenanced and encouraged 
polygamy and united church and state contrary to the 
spirit of the Constitution, or because he had taken an oath 
of such a nature and character that he is disqualified from 
taking the oath of office required of a United States Sen­
ator. The question was raised concerning the ability of 
the Senate to add qualifications other than those enumer­
ated in the Constitution and was answered in the report 
as follows:

“ If his conduct has been such as to be prejudicial 
to the welfare of society, of the nation, or its Gov­
ernment, he is regarded as being unfit to perform



34

Appendix B—Opinions Below

the important and confidential duties of a Senator, 
and may he deprived of a seat in the Senate, al­
though he may have done no act of which a court 
could take cognizance.” 1 Hind’s Precedents, 
§§ 481-483.

This situation is analogous to the Georgia Constitution. 
There is nothing in it which limits qualifications of a legis­
lator to those expressed therein. In point of fact there 
is at least one disqualification in the Georgia law which 
is not contained in the Constitution. Ga. Code, § 89-101, 
<§, 5, provides:

“ The following persons are held and deemed 
ineligible to hold any civil office, and the existence 
of any of the following states of facts shall be a suf­
ficient reason for vacating any office held by such 
person, but the acts of such person, while holding a 
commission, shall be valid as the acts of an officer 
de facto, vis.:

# * #

“ Persons of unsound mind, and those who, from 
advanced age or bodily infirmity, are unfit to dis­
charge the duties of the office to which they are chosen 
or appointed.”

The qualifications and disqualifications of legislators in 
the Georgia Constitution are not all inclusive. In sum, we 
find nothing that would compel the House to seat a member 
if a reasonable basis, within the context of due process of 
law as we shall next discuss, exists for the denial.

Having assumed jurisdiction, we come then to the main 
question of whether Mr. Bond was improperly denied his 
seat, but this question is prefaced by the test to be applied. 
With respect to the test, we hold that the free speech issue 
should be resolved in the context of giving effect to the



35

Appendix B—Opinions Below

separation of powers principle, and also our system of 
federalism to the extent that it permits self-government to 
the states under the supremacy of the Federal Constitution.

There is some authority for such an approach. On the 
federal level we have some guidance in the case of Barry 
v. United States, 1929, 279 U. S. 597, 49 S. Ct. 452, 73 L. 
Ed. 867. That case arose out of the refusal to seat Senator 
Vare because of alleged corruption in his election. The 
issue was over whether the District Court could grant 
relief to a witness who had been arrested by the Senate 
because he refused to testify at the subsequent inquiry. The 
Supreme Court pointed out that the Senate was acting 
within its constitutional powers which were judicial in 
character and refused relief. It was said:

“ Here the question under consideration concerns 
the exercise by the Senate of an indubitable power; 
and if judicial interference can be successfully in­
voked it can only be upon a clear showing of such 
arbitrary and improvident use of the power as will 
constitute a denial of due process of law. That con­
dition we are unable to find in the present case.”

On the State level, with respect to state elections and 
thus giving effect to federalism but in no wray involving 
the separation of powers principle, we begin with Wilson 
v. North Carolina, 1898, 169 TJ. S 586, 18 S. Ct. 435, 42 
L. Ed. 865. There the governor suspended a railroad com­
missioner and refused him a hearing. The Supreme Court 
refused relief. In Snowden v. Hughes, 1944, 321 IT. S. 1, 
64 S. Ct. 397, 88 L. Ed. 497, a candidate for the state senate 
alleged that the State Primary Canvassing Board denied 
him his rights under the equal protection clause by a will­
ful, malicious and arbitrary refusal through a conspiracy 
to correctly certify the results of a primary election thereby 
eliminating him as a candidate. He brought his suit in the 
District Court under the Civil Bights Act of 1871. The



36

Appendix B—Opinions Below

Supreme Court refused relief on the ground that Ms case 
did not rise to the level of invidious, purposeful discrimina­
tion cognizable under the equal protection clause of the 
Fourteenth Amendment. The applicable rule of the case is 
to be found in the dissenting opinion of Mr. Justice Douglas, 
as follows:

“ My disagreement with the majority of the Court 
is on a narrow ground. I  agree that the equal protec­
tion clause of the Fourteenth Amendment should not 
be distorted to make the federal courts the supervisor 
of the state elections. That would place the federal 
judiciary in a position ‘to supervise and review the 
political administration of a state government by 
its own officials and through its own courts’ (Wilson 
v. North Carolina, 169 U. S. 586, 596, 42 L. ed. 865, 
871, 18 S. Ct. 435) — matters on which each State 
has the final say. I also agree that a candidate for 
public office is not denied the equal protection of the 
law in the constitutional sense merely because he is 
the victim of unlawful administration of a state elec­
tion law. I believe, as the opinion of the Court in­
dicates, that a denial of equal protection of the laws 
requires an invidious, purposeful discrimination. But 
I depart from the majority when it denies Snowden 
the opportunity of showing that he was in fact the 
victim of such discriminatory action. His complaint 
seems to me to be adequate to raise the issue. He 
chagers a conspiracy to willfully, maliciously and 
arbitrarily refuse to designate him as one of the 
nominees of the Republican party, that such action 
was an ‘unequal’ administration of the Illinois law 
and a denial to him of the equal protection of the 
laws, and that the conspiracy had that purpose . . . ”

Snowden v. Hughes, as well as Baker v. Carr, supra, 
at least teach that there must be a showing of invidious,



37

Appendix B—Opinions Below

purposeful discrimination to give rise to relief under the 
equal protection clause. Here we have the due process 
clause and First Amendment rights. We think these cases 
show that some restraint is to he practiced by the courts in 
considering state political questions concerning particular 
offices as distinguished from whole systems such as are 
prevalent in malapportionment, or racial discrimination. If 
this premise be correct, then there is room for a balance 
between the separation of powers principle, a system of 
federalism and individual rights afforded under the federal 
Constitution.

Being of this view, we conclude that a reasonable test 
under circumstances such as are presented in this case 
would be to assume jurisdiction for the purpose of deter­
mining whether Mr. Bond was denied due process of law, 
either procedural or substantive. Notice, an opportunity to 
be heard, to be represented by counsel, to testify and to offer 
evidence and to cross-examine adverse witnesses are en­
visioned in procedural due process. The transcript of the 
hearing which was held on the challenge to Mr. Bond de­
monstrates no absence of due process. It is true that there 
was no subpoena power but no request for an absent wit­
ness was made. We reject the contention that procedural or 
substantive due process was violated by allowing the chal­
lengers to vote. A holding to the contrary would do violence 
to the power to judge qualifications.

As to substantive due process, we conclude that there 
must be a rational evidentiary basis for the ruling of the 
House to deny Mr. Bond his seat. The act must not have 
been arbitrary.

Does the action rest on any evidence which would sup­
port the denial? Thompson v. Louisville, 1960, 362 U. S. 
199, 80 S. Ct. 624, 4 L. Ed. 2d 654; Garner v. Louisiana, 
1961, 368 U. S. 157, 82 8. Ct, 248, 7 L. Ed. 2d 207.

Mr. Bond’s right to speak and to dissent as a private 
citizen is subject to the limitation that he sought to as-



38

Appendix B—Opinions Below

sume membership in the House. As such he was required 
to take an oath to support the Constitution of the United 
States. This is a legitimate requirement. Indeed, the Fed­
eral Constitution requires it. Art. VI, § 3. One of the 
charges against him was that his statements were incon­
sistent with and repugnant to that oath. Was there any 
basis for this charge?

The SNCC statement is at war with the national policy 
of this country: To make certain that every citizen stands 
equal before the law; to make certain that every citizen 
has a fair chance to benefit in the freedom and opportunities 
and bounties of this country; to export these same principles 
of democracy to the balance of the world wherever and 
whenever possible, even to the extent of lending military 
assistance where self-determination is denied in order that 
those denied may choose freedom if they so desire. A citi­
zen would not violate his oath by objecting* to or criticizing 
this policy or even by calling it deceptive and false as the 
statement did.

But the statement does not stop with this. It is a call 
to action based on race; a call alien to the concept of the 
pluralistic society which makes this nation. It aligns the 
organization with “ . . . colored people in such other 
countries as the Dominican Republic, the Congo, South 
Africa, Rhodesia . . . ” It refers to its involvement in the 
black people’s struggle for liberation and self-determina­
tion . . . ” . It states that “ Vietnamese are murdered be­
cause the United States is pursuing an aggressive policy in 
violation of international law.” It alleges that Negroes, 
referring to American servicemen, are called on to stifle the 
liberation of Viet Nam.

The call to action, and this is what we find to be a 
rational basis for the decision which denied Mr. Bond his 
seat, is that language which states that SNCC supports those 
men in this country who are unwilling to respond to a 
military draft. The fact that the last paragraph calls on



39

Appendix B—Opinions Below

them to devote their energies to the alternative of working 
in the civil rights movement in no way avoids the fact that 
the organization offers support to men who are unwilling 
to respond to a military draft. Cf. Gara v. United States, 
6 Cir., 1949, 178 F. 2d 38.

Mr. Bond was careful to affirm this statement. He 
went further, and he was more than a private citizen; he 
was an officer and employee of SNCC and was about to 
become a member of the House of Representatives of 
Georgia. He stated that he admired the courage of anyone 
who burned his draft card. He stated that as a pacifist 
he was eager and anxious to encourage people not to par­
ticipate in the war in Viet Nam or in any other war for 
any reason that they choose, and lastly, he stated that, 
as a second class citizen, he did not think that he had the 
requirement to support the war in Viet Nam.

The Congress has the obligation under the Federal Con­
stitution for providing for the common defense of this 
nation. The Selective Service System is a part of that 
defense. We are committed in Viet Nam. The Congress 
approved this course in Public Law 88-408, August 10, 
1964, wherein the president was empowered to take all 
necessary measures to repel any armed attack against the 
forces of the United States and to prevent further aggres­
sion from the campaign being waged by the . . Communist 
regime in North Vietnam.” This resolution states that 
the United States ” . . .  regards as vital to its national inter­
est and to world peace the maintenance of international 
peace and security in Southeast Asia.”

Whether Mr. Bond should have been seated was a ques­
tion which presented itself to the House of Representatives 
of Georgia under our system. Whether the wisest course 
was followed is not for us to say. The judgment of the 
court is not to be substituted for that of the House. Our 
function is to determine whether he has been denied some



40

Appendix B—Opinions Below

fundamental federal right to which he was otherwise en­
titled. We find and hold that his statements and affirmation 
of the SNC0 statement as they bore on the functioning of 
the Selective Service System could reasonably be said to 
be inconsistent with and repugnant to the oath which he 
was required to take. This suffices as a rational basis for 
the action of the House. The fact that the statement was 
otherwise freighted with racial overtones and was at vari­
ance with the established national concept of a country 
accommodating all nationalities and ethnic groups is a 
part of the basis of our holding only insofar as it relates 
to the call not to support the Selective Service System.

The charge that the constitutional provision of Georgia 
authorizing the House to judge the qualifications of its 
members and the House rule embodying it are unconstitu­
tionally vague is without merit. It follows from what we 
have said that neither was unconstitutionally applied to 
Mr. Bond. It also follows from what we have said that 
the resolution denying Mr. Bond his seat was not an ex post 
facto law or a bill of attainder. To so hold in the face of 
a finding that there was a rational basis for the action of 
the House would be to destroy the constitutional power of 
judging qualifications.

All relief is denied and the complaint will be dismissed. 
Defendants may present a judgment accordingly.

This 10 day of February, 1966.

Gr if f in  B . B ell 
Griffin B. Bell

United States Circuit Judge

L ew is R . M organ 
Lewis R. Morgan 

United States District Judge



41

Appendix B—Opinions Below

Judge E lbert P. T uttle  dissenting.
T uttle ,, Circuit Judge:

With deference I must dissent. I am convinced that 
Representative-elect Bond was illegally deprived of his 
seat in the House of Representatives of Georgia and that 
this court should so hold.

Julian Bond, the plaintiff in this action, was duly elected 
by the voters of his General Assembly District No. 136 
as their representative in the House of Representatives 
of the Georgia General Assembly for the session com­
mencing January 1, 1966. This is a one-year session, 
made necessary by this Court’s previous decision requir­
ing a reapportionment of the Georgia State Legislature.

Upon his presenting himself along with the other newly 
elected members of the House of Representatives, he was 
asked to step aside because challenges to his qualifica­
tions had been filed by some 75 members of the House. 
After the other members had been duly sworn in, a reso­
lution protesting the seating of Representative-elect Bond 
was referred by the Speaker of the House to a special 
committee designated to hear the contest. The committee, 
after a hearing, recommended that he be not seated. This 
recommendation was accepted by the House, and he was 
denied his seat.

Since the first attack that is made is based upon the 
contention that the House exceeded its authority in voting 
to reject Bond, we turn first to a consideration of the pro­
visions of the Georgia Constitution dealing with the quali­
fications and eligibility of members.

Article III, Section VII, Paragraph I, of the Georgia 
Constitution (§ 2-1901, Ga. Code Ann.) provides as follows:

“ Election, returns, etc.; disorderly conduct.—• 
East House shall be the judge of the election, returns, 
and qualifications of its members and shall have 
power to punish them for disorderly behavior, or 
misconduct, by censure, fine, imprisonment, or expul-



42

Appendix B—Opinions Below

sion, but no member shall be expelled, except by a 
vote of two-tbirds of the House to which he belongs.”

Article III, Section VI, Paragraph I, of the Constitution 
of the State of Georgia (§ 2-1801, Ga. Code Ann.) provides 
as follows:

“ Qualifications of representatives.—The Repre­
sentatives shall be citizens of the United States who 
have attained the age of twenty-one years, and who 
shall have been citizens of this State for two years, 
and for one year residents of the counties from 
which elected.”

Article II, Section II, Paragraph I, of the Constitution 
of the State of Georgia {% 2-801, Ga. Code Ann.) provides 
as follows:

“ Registration of electors; who disfranchised.— 
The General Assembly may provide, from time to 
time, for the registration of ail electors, but the 
following classes of persons shall not be permitted 
to register, vote, or hold any office, or appointment 
of honor, or trust in this State, to-wit: 1st. Those 
who shall have been convicted in any court of com­
petent jurisdiction of treason against the State, of 
embezzlement of public funds, malfeasance in office, 
bribery or larceny, or of any crime involving moral 
turpitude, punishable by the laws of this State with 
imprisonment in the penitentiary, unless such per­
sons shall have been pardoned. 2nd. Idiots and 
insane persons.”

Article III, Section IV, Paragraph VI, of the Georgia 
Constitution (§ 2-1606, Ga. Code Ann.) provides as follows:

“ Eligibility; appointments forbidden.—No per­
son holding a military commission, or other appoint-



43

Appendix B—Opinions Below

ment, or office, having any emolument, or compensa­
tion annexed thereto, under this State, or the United 
States, or either of them except Justices of the Peace 
and officers of the militia, nor any defaulter for 
public money, or for any legal taxes required of 
him shall have a seat in either house; nor shall any 
Senator, or Representative, after his qualification 
as such, be elected by the General Assembly, or 
appointed by the Governor, either with or without 
the advice and consent of the Senate, to any office or 
appointment having any emolument annexed thereto, 
during the time for which he shall have been elected, 
unless he shall first resign his seat, provided, how­
ever, that during the term for which he was elected no 
Senator or Representative shall be appointed to any 
civil office which has been created during such term.”

Article VII, Section III, Paragraph VI, of the Con­
stitution of the State of Georgia (§ 2-5606, Ga. Code Ann.) 
provides as follows:

“ Profit on public money.—The receiving, directly 
or indirectly, by any officer of State or county, or 
member or officer of the General Assembly of any 
interest, profits or perquisites, arising from the use 
or loan of public funds in his hands or moneys to be 
raised through his agency for State or county pur­
poses, shall be deemed a felony, and punishable as 
may be prescribed by law, a part of which punish­
ment shall be a disqualification from holding office.”

Article III, Section IV, Paragraph V, of the Georgia 
Constitution (§ 2-1605, Ga. Code Ann.) provides as follows:

“ Oath of members.—Each senator and Repre­
sentative, before taking his seat, shall take the fol­
lowing oath, or affirmation, to-wit: ‘I will support



44

Appendix B—Opinions Below

the Constitution of this State and of the United 
States, and on all questions and measures which may 
come before me, I will so conduct myself, as will, in 
my judgment, be most conducive to the interests 
and prosperity of this State.’ ”

The foregoing provisions of the Georgia Constitution 
are the only stated qualifications or rules of eligibility con­
tained in the State Constitution touching on the member­
ship in either the Senate or the House of Representatives 
of the Georgia General Assembly.

Julian Bond was denied the right to take his oath as an 
elected member of the Georgia House of Representatives by 
a resolution adopted by the said House on January 10, 1966, 
which said resolution was in the following language:

“ Relative to the matter of the seating of Repre­
sentative-Elect Julian Bond; and for other purposes.

“ W h e r e a s , a special committee created pursuant 
to H.R. No. 7 which was appointed for the purpose 
of holding a hearing on petitions challenging and 
contesting the seating of Representative-Elect Julian 
Bond of the 136th District has conducted a hearing 
in said matter; and

“ W hereas, said committee has submitted a re­
port in which it is recommended that Representa­
tive-Elect Julian Bond not be allowed to take the 
oath of office as a Representative of the House of 
Representatives and that he not be seated as a mem­
ber of the House of Representatives.

“ Now, THEREFORE, BE IT RESOLVED' BY THE H OUSE

of R epresentatives th a t  th e  re p o r t  o f the  a fo re sa id  
com m ittee is h e reb y  ad o p ted  an d  th e  recom m enda­
tio n s co n ta in ed  th e re in  sh a ll be follow ed.



45

Appendix B—Opinions Below

“ B e  it  f u r t h e r  resolved  that Representative- 
Elect- Julian Bond shall not be allowed to take the 
oath of office as a member of the House of Repre­
sentatives and that Representative-Elect Julian Bond 
shall not be seated as a member of the House of 
Representatives.

“ Be it  f u r t h e r  resolved  that the Clerk of the 
House is hereby instructed to immediately transmit 
a copy of the aforesaid report and a copy of this 
resolution to the Governor, to the Secretary of State 
and to Representative-Elect Julian Bond.”

The said resolution expressly “ adopted” the report of 
the special committee which was appointed for the purpose 
of conducting, and did actually conduct, a hearing on the 
matter of the challenge to the seating of Representative- 
Elect Bond. The report of the committee follows:

“ The Special Committee appointed pursuant to 
H.R. #7  conducted a hearing on January 10, 1966, 
beginning at 2:30 o’clock p.m., in the chamber of the 
House of Representatives, State Capitol, on the 
matter of petitions filed challenging and contesting 
the seating* of Representative-Elect Julian Bond of 
the 136th District.

“ Based upon testimony and the evidence and 
documents before this Committee, the Committee 
recommends that Representative-Elect Julian Bond 
not be allowed to take the oath of office as a member 
of the House of Representatives and that he not be 
seated as a member of the House of Representatives.

“ This 10th day of January 1966.”

The contest which was thus submitted to the special 
committee, and thereafter decided by the House, resulted



46

Appendix B—Opinions Below

from charges and specifications filed by certain members 
of the House of Representatives in two separate petitions 
which, in essential part, are as follows:

PETITION I
“ Co u nt  I

“ The Student Nonviolent Coordinating Commit­
tee, an organization and association of which Repre­
sentative-Elect Julian Bond is a member, agent, and 
publicity director, has caused to be made certain 
statements concerning the position of the United 
States in the Viet Nam conflict, a copy thereof being 
attached hereto, marked Exhibit A and by reference 
made a part hereof, and the said Representative- 
Elect Julian Bond did publicly endorse, approve and 
confirm said statement.

“ Count  II
“ Said representative-elect has said that he ad­

mires the courage of those persons who burn their 
draft cards.

1.

“ The actions and statements of said representa­
tive-elect show that he does not and will not support 
the Constitution of the United States and of the 
State of Georgia, as required by law (Constitution 
of Georgia, Article III, Section IV, Paragraph V 
(Code § 2-1605)); Constitution of the United States, 
Article VI, Section 3.

2.

‘ ‘ By said actions and statements, said representa­
tive-elect adheres to the enemies of the United States 
and of the State of Georgia, contrary to the Con­
stitution of Georgia (Article I, Section II, Para-



47

Appendix B—Opinions Below

graph II) and of the United States (Article III, 
Section 3, CL 1).

3.
“ By said actions and statements, said representa­

tive-elect gives aid and comfort to the enemies of 
the United States and of the State of Georgia, con­
trary to the Constitution of Georgia (Article I, Sec­
tion II, Paragraph II) and of the United States 
(Article III, Section 3, Cl. 1).

4.
“ Said actions and statements constitute a viola­

tion of the United States Code, Title 50, § 462(a).
5.

“ Said actions and statements constitute a viola­
tion of the United States Code, Title 50, § 462(b), as 
amended.

6.

“ The statements referred to above are repre­
hensible and are such as tend to bring discredit to 
and disrespect of the House of Representatives and 
constitute actions on the part of Representative- 
Elect Julian Bond sufficient to prevent him from 
being seated as a member of the House of Repre­
sentatives.

7.
“ Such actions and statements show that he is 

unqualified and ineligible to be a member of the 
House of Representatives.”

E x h ib it  A to P etitio n  I
“ The Student Nonviolent Coordinating Commit­

tee has a right and a responsibility to dissent with



48

Appendix B—Opinions Beloiv

United States foreign policy on an issue when it 
sees fit. The Student Nonviolent Coordinating Com­
mittee now states its opposition to United States’ 
involvement in Viet Nam on these grounds:

“ We believe the United States government has 
been deceptive in its claims of concern for freedom 
of the Vietnamese people, just as the government has 
been deceptive in claiming concern for the freedom 
of colored people in such other countries as the Do­
minican Republic, the Congo, South Africa, Rhodesia 
and in the United States itself.

“ We, the Student Nonviolent Coordinating Com­
mittee, have been involved in the black people’s 
struggle for liberation and self-determination in this 
country for the past five years. Our work, particu­
larly in the South, has taught us that the United 
States government has never guaranteed the freedom 
of oppressed citizens, and is not yet truly determined 
to end the rule of terror and oppression within its 
own borders.

“ We ourselves have often been victims of vio­
lence and confinement executed by United States 
government officials. We recall the numerous per­
sons who have been murdered in the South because 
of their efforts to secure their civil and human rights, 
and whose murderers have been allowed to escape 
penalty for their crimes.

“ The murder of Samuel Young in Tuskegee, Ala., 
is no different than the murder of peasants in Viet 
Nam, for both Young and the Vietnamese sought, and 
are seeking, to secure the rights guaranteed them 
by law. In each case the United States government 
bears a great part of the responsibility for these 
deaths.

“ Samuel Young was murdered because United 
States law is not being enforced. Vietnamese are



49

Appendix B—Opinions Below

murdered because the United States is pursuing an 
aggressive policy in violation of international law. 
The United States is no respecter of persons or law 
when such persons or laws run counter to its needs 
and desires.

“ We recall the indifference, suspicion and out­
right hostility with which our reports of violence 
have been met in the past by government officials.

“ We know that for the most part, elections in 
this country, in the North as well as the South, are 
not free. We have seen that the 1965 Voting Eights 
Act and the 1964 Civil Eights Act have not yet been 
implemented with full federal power and sincerity.

“ We question, then, the ability and even the 
desire of the United States government to guarantee 
free elections abroad. We maintain that our coun­
try ’s cry of ‘ preserve freedom in the world ’ is a hypo­
critical mask behind which it squashes liberation 
movements which are not bound, and refuse to be 
bound, by the expediencies of United States cold war 
policies.

“ We are in sympathy with, and support, the men 
in this country who are unwilling to respond to a 
military draft which would compel them to contribute 
their lives to United States aggression in Viet Nam 
in the name of the ‘freedom’ we find so false in this 
country.

“ We recoil with horror at the inconsistency of 
a supposedly ‘free’ society where responsibility to 
freedom is equated with the responsibility to lend 
oneself to military aggression. We take note of the 
fact that 16 percent of the draftees from this country 
are Negroes called on to stifle the liberation of Viet 
Nam, to preserve a ‘democracy’ which does not exist 
for them at home.



50

Appendix B—Opinions Below

“ We ask, where is the draft for the freedom fight 
in the United States'!

“ We therefore encourage those Americans who 
prefer to use their energy in building democratic 
forms within this country. We believe that work in 
the civil rights movement and with other human rela­
tions organizations is a valid alternative to the draft. 
We urge all Americans to seek this alternative, know­
ing full well that it may cost them lives—as painfully 
as in Yiet Nam.”

P etitio n  II
“ (1) That the Constitution of Georgia, Article 

III, Section VII, Paragraph 1 provides that each 
House shall be the judge of the election, returns, and 
qualifications of its members.

“ (2) That the Constitution of Georgia, Article 
III, Section TV, Paragraph 5, specifically requires 
each senator and representative, before taking their 
seat, to take the following oath or affirmation, to-wit:

‘I will support the Constitution of this State 
and of the United States, and on all questions and 
measures which may come before me, I will so 
conduct myself, as will, in my judgment, be most 
conducive to the interest and prosperity of this 
State.’
“ That the said Julian Bond has specifically and 

publicly endorsed in full a policy statement of an 
organization known as the Student Non-Violent Co­
ordinating Committee, which statement reads as 
follows:

‘We are in sympathy with, and support, the 
men in this country who are unwilling to respond 
to a military draft which would compel them to 
contribute their lives to United States aggression



51

Appendix B—Opinions Below

in Viet Nam in the name of the “ freedom” we find 
so false in this country. ’

‘We recoil with horror at the inconsistency of 
a supposedly free society where responsibility to 
freedom is equated with the responsibility to lend 
oneself to military aggression. We take note of 
the fact that 16 per cent of the draftees from this 
country are Negroes called on to stifle the libera­
tion of Yiet Nam, to preserve a “ democracy” 
which does not exist for them at home . . .’

‘We, therefore, encourage those Americans 
who prefer to use their energy in building demo­
cratic forms within this country. We believe that 
work in the civil rights movement and with other 
human relations organizations is a valid alterna­
tive to the draft. We urge all Americans to 
seek this alternative, knowing full well that it 
may cost them their lives—as painfully as in 
Viet Nam.’
“ (4) That the said Julian Bond is not qualified 

under the Constitution of Georgia to take the oath 
as a Member of the House of Representatives rep­
resenting the 136th Representative District of Fulton 
County, Georgia, inasmuch as his full endorsement 
of the aforesaid policy statement of the Student 
Non-Violent Coordinating Committee is totally and 
completely repugnant to and inconsistent with the 
mandatory oath prescribed by the Constitution of 
Georgia for a Member of the House of Representa­
tives to take before taking his seat.

“ (5) That the said Julian Bond cannot justly 
and honestly take the aforementioned mandatory con­
stitutional oath which requires him to uphold the 
Constitution of the United States and the Constitu-



52

Appendix B—Opinions Below

tion of Georgia, having endorsed the aforesaid sub­
versive policy statement.”

At the Committee hearing, the proponents of the contest 
sought to substantiate their claim by having played into the 
record a taped newscaster’s interview with Mr. Bond which, 
although not made by him as a public statement upon his 
own initiative in the normal manner of making a hortatory 
expression, was made, it may be assumed, with the knowl­
edge that it would be broadcast by the newscaster. The 
Committee also invited from Mr. Bond his comment. He 
stated to the Committee that he “ did support” the state­
ment of the SNOG, quoted above, in its entirety.

In support of the charge that Bond had “ said that he 
admires the courage of those persons wdio burn their draft 
cards”, the following question was asked: “ Do you admire 
the courage of persons who burn their draft cards?” after 
which, the following’ question and answer occurred:

“ A. I admire people who take an action, and I 
admire people who feel strongly enough about their 
convictions to take an action like that knowing the 
consequences that they will face, and that was my 
original statement when asked that question.

“ Q. Do you still adhere to that statement? A. 
Yes, I do.

“ Q. Let me see if I have your statement correct, 
that you admire people who are willing to take the 
consequences, to stand up for their principles, is that 
substantially what you said? A. That is correct.

“ Q. And does that admiration of such people go 
to taking such a stand, when such a stand is in viola­
tion of a valid law of the United States ? A. I have 
never suggested or counseled or advocated that any­
one other person burn their draft card. In fact, I 
have mine in my pocket and will produce it if you



Appendix B—Opinions Below

wish. I  do not advocate that people should break 
laws. What I simply try to say was that I admired 
the courage of someone who could act on his convic­
tions knowing that he faces pretty stiff consequences.

“ Q. So that you admire the courage of the per­
sons in the given instance who burn their draft 
cards, or who were willing to take the consequences 
for burning their draft cards? A. That is right.”

In a written response to the charges and during the 
proceedings Representative Bond stated his willingness and 
desire to take the oath to support the Constitutions of the 
United States and the State of Georgia as prescribed by 
the Georgia Constitution.

It is clear that the refusal to seat this elected represen­
tative was upon the charge, adequately proven, of his stated 
support in an interview with a newsman and subsequently 
in the corridor of the House of Representatives (after the 
challenge had been referred to the Committee) of the SNCC 
statement and his views touching on the draft card matter.

The suit before us challenges the authority of the House 
of Representatives, under the provision making it “ the 
Judge of the . . . qualifications of its members” to deny 
an elected member, the right to be seated for any lack of 
qualifications not specifically prescribed in the Georgia 
Constitution. Further, the complaint asserts that the actual 
ground of his rejection as a member was the disapproval 
by the House of his conduct, to-wit: the expression of the 
extremely unpopular (characterized as illegal and disloyal 
by the proponents of the contest) views as above set out; 
that a denial of his seat because of such conduct constitutes 
an abridgment by the State of Georgia of Bond’s freedom 
of speech in violation of the guarantee of the First Amend­
ment to the United States Constitution, which guarantee 
is made effective as against State action by “ absorption”



54

Appendix B—Opinions Below

into the guarantee of due process by the Fourteenth Amend­
ment. See Palko v. Connecticut, 302 U. S. 319, 324, 326.

The complaint requires the convening of a three-judge 
District court under Title 28, Section 2281, United States 
Code Annotated, because it charges that if Article III, 
Section VII, Paragraph 1 of the Georgia Constitution, 
supra (making each House the judge of the qualifications 
of its members), is construed in the manner in which it 
was applied in this case, then the said Section of the 
Georgia Constitution is invalid under the Fourteenth 
Amendment. Once convened properly, such a court has 
jurisdiction to decide every question involved in the litiga­
tion, state as well as federal. Missouri v. Brashear Freight 
Lines, 312 U. S. 621; R. R. Comm, of Calif, v. Pacific Gas 
& Electric Company, 302 U. S. 388.

It is a basic principle of jurisprudence that if, by con­
struction of a statute in a manner that will make it con­
stitutional, this avoids the question whether the statute, 
differently construed, would be unconstitutional, a court 
should first construe the statute with an eye to the avoiding 
of the constitutional question if possible See Rescue Army, 
et al, v. Municipal Court of Los Angeles, 331 U. S. 549, 568, 
et seq.

Thus, we look first to determine whether the challenged 
provision of the Georgia Constitution may properly be con­
strued so as to permit the unseating of Representative- 
Elect Bond on the grounds stated. Of course, if the Georgia 
Supreme Court had construed the statute in such a manner 
this construction of the Georgia Constitution would be bind­
ing on us. The Court has not so construed it.

The State of Georgia claims that, at least within the 
factual context of this contest, the power of the House of 
Representatives to judge Bond’s qualifications is “ plen­
ary.” It offers, in support of this proposition, three 
Georgia Court decisions: Rainey v. Taylor, 166 Ga. 476



55

Appendix B—Opinions Below

(1928); Beatty v. Myrick, 218 Ga. 629 (1963); and Fowler 
v. Bostick, 99 Ga. App. 428 (1959).

In point of fact, in none of these Georgia decisions did 
the court determine that the House or Senate had absolute 
and final jurisdiction to judg*e whether the contesting parties 
lacked qualifications which are not expressly stated as 
“qualifications” or rules of “eligibility” in the Georgia 
Constitution.

The Rainey case dealt with a charge by one Taylor, in 
a quo warranto proceeding against Rainey, that Rainey 
was, at the time of his election to the Georgia General 
Assembly, an acting superintendent of Schools. It being- 
provided in the Georgia Constitution that the “ qualifica­
tions of members” is to be decided by the House of Rep­
resentatives, and, the Constitution in what is now Section 
2-1606, quoted supra, providing that the holder of another 
state office “ shall not have a seat in either House,” it was 
a question for the General Assembly to judge whether 
Rainey was disqualified under a stated ground in the con­
stitution. The Court merely held that a rule of “ eligibil­
ity” was comprehended within the term “ qualifications.”

In the subsequent case of Beatty v. Myrick, in a head- 
note opinion, the Supreme Court of Georgia stated that 
the question was which of two named candidates was le­
gally elected to represent the Third Senatorial District in 
the State Senate. There was thus no question of testing 
the “ qualifications” of the senator-elect. It was simply 
a matter of judging who was the winner of the election. 
This question is expressly confided by the Constitution 
to the State Senate.

Fowler v. Bostick was in all respects similar to the 
Rainey case. It was an action for a declaratory judgment 
seeking to disqualify Bostick as ineligible to be seated as 
Representative of Tift County because he was, at the time, 
alleged to hold the office of Clerk of the Superior Court of 
Tift County. Here, as in Rainey, the court was asked



56

Appendix B-—Opinions Below

to determine whether an elected member met the qualifica­
tions expressly stated in the Georgia Constitution. Of 
course, no criticism can be made of such a decision as these 
three by the Georgia courts. The question, not before 
the Court there, is whether, under the Georgia Constitu­
tion, the Legislature can find a lack of qualifications be­
yond those expressly provided for in the Constitution itself 
and as set out above.

In the absence of a strong showing of judicial inter­
pretation to the contrary, it would seem that simple justice 
would require a holding that where specific qualifications 
are stated for an office and the Legislature is given the 
power to judge whether an aspirant for the office is “ quali­
fied” , the legislature, as judge, should be required to look 
to the stated qualifications as the measuring stick. To hold 
to the contrary and permit the House as judge to go at 
large in a determination of whether Eepresentative-Elect 
“ A ” meets undefined, unknown and even constitutionally 
questionable standards shocks not only the judicial, but 
also the lay sense of justice.

It can be readily understood why there are few legal 
precedents to give guidance in such a situation. In the 
first place, it can be assumed that members of a state or 
national legislature are prone to recognize the right of 
the electorate to choose as their representative whom 
they want to serve them. Thus, there may not be expected 
to be many clear precedents. Further it is readily ap­
parent that in those cases in which a legislative body has 
exceeded its authority the shortness of the term of office 
may make moot any contest in court.

Nevertheless, there are some legislative precedents. In 
a New York state general election held on November 4, 
1919, five members of the Socialist party were elected as 
members of the General Assembly of the State of New 
York. They appeared and took the oath of office, and 
thereupon, as soon as the House was organized, a motion



57

Appendix B—Opinions Below

was made to deprive them of their rights to participate, 
or, in other words, to expel them from membership in the 
House. A resolution for such expulsion was submitted 
and referred to a committee which conducted hearings re­
sulting in a resolution to expel, and the members were 
later, by action of the Legislature, expelled from member­
ship.

During the pendency of the hearings, the annual meet­
ing of the Association of the Bar of the City of New York 
adopted a resolution authorizing appointment of a com­
mittee “ to appear before the Assembly or its Judiciary 
Committee and take such action as may in their judgment be 
necessary to safeguard and protect the principles of rep­
resentative government guaranteed by the Constitution, 
which are involved in the proceedings now pending.”

This Committee, under the Chairmanship of Honor­
able Charles E. Hughes, a former Governor of the state 
of New York and a former member of the United States 
Supreme Court who resigned to be a candidate for the 
presidency of the United States in the elections in 1916, 
and who later was reappointed to the Supreme Court 
of the United States and became Chief Justice, and in­
cluding in its membership Honorable Joseph M. Pros- 
kauer, later an eminent New York Supreme Court Jus­
tice, and Honorable Ogden L. Mills, who later became 
Secretary of the Treasury of the United States (the other 
members, Honorable Morgan J. O’Brien and Honorable 
Louis Marshall, all doubtless men of similar public spirit 
and competence, but their names do not at the moment 
call to mind the character of their other public service) 
filed a careful brief, because, as the Committee said, they 
regarded “ these proceedings as inimical to our institu­
tions, because they tend to subvert the very foundation 
upon which they rest'—representative government.” In 
the course of the discussion of the situation then pending, 
the Committee made it plain that the action was an action



58

Appendix B—Opinions Below

for expulsion rather than an action to determine the quali­
fications of the members under the provisions of the New 
York Constitution similar to that of the State of Georgia. 
In pointing to the reason why they considered the pro­
ceedings not a testing of “ the qualifications” of the mem­
bers, they cited from the proceedings of the United States 
Senate, in which Senator Reed Smoot, of Utah, was the 
subject of proceedings attacking his membership in the 
United States Senate on the charge that he was one of 
the twelve apostles of the Mormon Church, and, therefore, 
a prominent member of the hierarchy, and, though not a 
polygamist, sanctioned polygamy, a practice prohibited 
by the organic act of Congress admitting Utah as a state.

In the course of the Smoot proceedings, Senator Phil­
ander C. Knox, a distinguished Senator from the state of 
Pennsylvania, discussed the question of testing the qualifi­
cations of a member of the Senate under the United States 
Constitutional provisions that are similar to those in Article 
III, Section V, etc., set out above. His statement is a com­
plete answer to the claim that a legislature may require 
any qualifications it chooses. Senator Knox said:

“ I have intentionally referred to the proposed ac­
tion against Senator Smoot as expulsion. I do not 
think the Senate will seriously consider that any 
question is involved except one of expulsion, requir­
ing a two-thirds vote.1 There is no question as to 
Senator Smoot possessing the qualifications pre­
scribed by the Constitution and therefore we cannot 
deprive him of his seat by a majority vote. He was, 
at the time of his election, over 30 years of age and 
had been nine years a citizen of the United States, 
a,nd when elected was an inhabitant of Utah. These

1 Under the United States Constitution, a majority of the Senate 
could find a Senator not qualified, whereas it required a two-thirds 
vote to expel a member. This is similar to the Georgia Constitution.



59

Appendix B—Opinions Below

are the only qualifications named in the Constitution, 
and it is not in our power to say to the States, ‘these 
are not enough; we require other qualifications,’ or 
to say that we cannot trust the judgment of the states 
in the selection of Senators, and we, therefore, insist 
upon the right to disapprove them for any reason. 
This claim of right to disapprove is not even subject 
to any rule of the Senate specifying additional quali­
fications of ivhich the states have notice at the time 
of selecting their senators, but it is said to be abso­
lute in each case as it arises, uncontrolled by any 
canon or theory whatever . . . Subject to these limi­
tations imposed by the Constitution, the states are 
left untrammeled in their right to choose their sen­
ators” (Emphasis supplied).

The record discloses that the Senate declined to expel 
or otherwise deny Senator Smoot his right to sit. However, 
the five members of the New York State Legislature, whose 
cause was so eloquently presented by the Hughes Commit­
tee, did not fare so well. They were denied their seats.

Expressing their own views again on the question of the 
power of the Legislature to disqualify a member for 
grounds other than those stated in the Constitution, the 
Hughes Committee stated:

“ We contend that the opinion expressed by Sen­
ator Knox in the case of Senator Smoot, supra, cor­
rectly defines what is meant by qualification. The 
constitution expressly specifies a number of disqual­
ifications [as is also true in the Georgia Constitution] 
. . . The principle of constitutional interpretation ap­
plicable to this phase of the subject was elaborated 
in classic phrase by Chancellor Sanford in Barker 
v. People, 3 Cowen, 703, which, although decided in 
1824, and therefore involving the interpretation of an



60

Appendix B—Opinions Below

earlier Constitution, is nevertheless as applicable in 
principle to the present Constitution: ‘Eligibility to 
public trust, is claimed as a constitutional right, 
which cannot be abridged or impaired. The Consti­
tution established and defines the right of suffrage; 
and gives to the electors and to their various authori­
ties, the power to confer public trust. . . . Excepting 
particular exclusions thus established, the electors 
and the appointing authorities are, by the Constitu­
tion wholly free to confer public stations upon any 
person, according to their pleasure. The Constitu­
tion giving the right of election and the right of ap­
pointment; these rights consisting essentially in the 
freedom of choice; and the Constitution also declar­
ing, that certain persons are not eligible to office; it 
follows from these powers and provisions, that all 
other persons are eligible. Eligibility to office is not 
declared as a right or principle, by any expressed 
terms of the Constitution; but it results, as a just 
deduction, from the expressed powers and provisions 
of the system. The basis of the principle, is the abso­
lute liberty of electors and the appointing authorities, 
to choose and to appoint any person, who is not made 
ineligible by the Constitution . . .  I, therefore, con­
ceive it to be entirely clear that the Legislature can­
not establish arbitrary exclusions from office or any 
general regulation requiring qualifications, which the 
Constitution has not required.’ . . . He would be in­
deed a bold individual who would assert that any 
American Legislative body can set up an arbitrary 
standard of qualification of its members that finds 
no sanction in the general will of the people and that 
is contrary to the spirit of the Constitution. . . .” 
Brief of Special Committee appointed by the Associ­
ation of the Bar of the City of New York, January 
20, 1920 (Emphasis supplied).



61

Appendix B—Opinions Below

A number of actions of the United States House of Rep­
resentatives or the United States Senate are cited by the 
State as illustrative in its argument that the term “ qualifi­
cation,” is broad enough to encompass a test of the repre­
sentative elect’s general character and loyalty. Based upon 
the excerpts from these cases as contained in the State’s 
brief, each of them is to be distinguished.

The first of these cases is that of Victor Berger, a Con­
gressman from Wisconsin, who had served in the House 
from 1911 to 1913. In 1918, he was again elected to the 66th 
Congress. Before appearing to be sworn in, he was indicted 
by the grand jury in the United States District Court for 
the violation of the Espionage Act. He was found guilty 
and sentenced to 20 years imprisonment. The appeal was 
pending at the time he offered to take the oath of office in 
the United States Congress. The House of Representatives 
adopted the report of the Committee, which found that “ the 
question was ‘whether or not Victor L. Berger was guilty 
of a violation of the Espionage Act, whether or not he did 
give aid or comfort to the enemies of the United States 
during the war with Germany [which, of course, in time of 
war, would amount to treason under the Constitution of the 
United States] and whether or not he was ineligible to a 
seat in the House of Representatives” . The Committee 
found “ after a careful consideration of all the evidence, in 
the opinion of your committee, the admitted acts, writings, 
and declarations of Victor L. Berger . . . giving such acts in 
the language of the writings and declarations their ordinary, 
everyday meaning, and without considering any other evi­
dence, clearly establishes a conscious, deliberate and con­
tinuing purpose and intent to obstruct, hinder and embar­
rass the government of the United States and the prosecu­
tion of the war, and thus to give aid and comfort to the 
enemies of our country. . . . ”

The United States Constitution, in describing the crime 
of treason provides that “ the Congress shall have power



62

Appendix B—Opinions Below

to declare the punishment of treason, ’ ’ Article III, Chapter 
3, Section 3 [2]. Congress has determined that one of the 
punishments for treason is that “ Every person so convicted 
of treason shall, moreover, he incapable of holding any of­
fice under the United States.” This was the language of 
the statute that was in effect at the time of Berger’s contest. 
The present counterpart is found in 18 U. S. C. A., § 2381, 
in which it says that a person so convicted “ shall be in­
capable of holding any office under the United States.”

Thus, although he had been convicted of sedition and 
not treason, Berger ’s rejection by the House of Representa­
tives was on a determination by the House that he had 
committed treason, which, if found by a court would be a 
lack of qualifications prescribed by the United States Con­
stitution. Although in the committee report, it was argued 
that the House was not limited to constitutionally defined 
“ qualifications” in passing upon Berger’s eligibilty, never­
theless the action of the House in rejecting him falls within 
the pattern of what is permissible under the principles 
discussed in the Hughes Committee Report, supra. There 
was no court test of this exclusion.

William Blount, of Tennessee, was expelled from the 
Senate after having been seated. He was expelled “ for 
conduct inconsistent with his public duty, rendering him 
unworthy of further continuance of his present public 
trust.” This action was taken under the provision of the 
United States Constitution which authorizes “ each House 
may determine the rules of its proceedings, punish its mem­
bers for disorderly behavior, and, with concurrence of two- 
thirds, expel a member.” Article I, Sec. 5, Clause 2. It 
has nothing to do with Article I, Section 5, Clause 1, which 
provides that “ each House shall be the judge of the elec­
tions, returns and qualifications of its own members. . . .” 
This is an important distinction because the authority to 
expel, unlike the provision relating to qualifications, is not 
limited by any language in the Constitution prescribing the 
grounds for expulsion.



63

Appendix B—Opinions Below

John Smith, of Ohio, was cited for treason and misde­
meanor as an accomplice of Aaron Burr. The Senate voted 
19 for expulsion and 10 against. On the resolution failing 
to secure the necessary two-thirds, Smith retained his seat. 
Here, again, it was an action of expulsion. It is no precedent 
for giving “ plenary” power to judge qualification.

John M. Niles, of Connecticut, was examined before 
taking the oath of office as to his mental capacities. The 
Committee found that he suffered under a mental physical 
debility, but that he was able to perform his duties, and he 
was seated. Of course, as noted above, insanity is a qualifi­
cation by the Georgia Constitution for members of the 
House and Senate of this State.

John D. Bright, of Indiana, was expelled because it was 
found that he had written a certain letter to assist a member 
of the Confederate states to buy firearms. Note again that 
this was a matter of expulsion for an act of misconduct 
while a member and not a matter of determining qualifica­
tion to be seated.

Joshua Hill and H. V. M. Miller, of Georgia, were re­
fused seats in the United States Senate because of the 
manner in which the Georgia General Assembly, which had 
elected Hill and Miller, was conducting its elections. (Of 
course, this was at a time prior to the adoption of the 17th 
Amendment, and senators were elected by the State Leg­
islatures.) This, of course, went directly to the question 
of judging “ the election,” which is expressly authorized 
by the United States and Georgia Constitutions. The Reed 
Smoot case has been discussed previously. It was again, 
a question of expelling a senator and not one of passing on 
his qualifications at the time he presented himself.

The most recent case involved Senator Theodore G. 
Bilbo, who was not administered the oath pending an in­
vestigation of charges that his action’s dealing with racial 
policies were said to be “ contrary to the public policy,



64

Appendix B—Opinions Below

harmful to the dignity and honor of the Senate, dangerous 
to the perpetuity of free government, and taint [sic] with 
fraud and corruption of the credentials.”

If a substantial part of the charge was the question of 
fraud and corruption of the credentials, this, of course, 
would be a matter of judging “ the election,” which is 
specifically authorized. In any event, Senator Bilbo was 
forced to step aside for an operation and he died before 
action was taken on his seating.

In 1926, William S. Yare, of Pennsylvania, and Prank 
L. Smith, of Illinois, were refused seats for excessive ex­
penditures during their respective election campaigns. 
Once again this was a question of judging “ the election,” 
authority for which is expressly given to the Senate.

If there are other cases involving action by the United 
States Congress in which it is expressly shown that it' 
has assumed the right to expand the list of qualifications 
beyond those stated in the United States Constitution, they 
have not been brought to our attention.

It is quite difficult to ascertain from available materials, 
which, if any, state cases cited in the briefs of the parties 
were decided on a basis that explicitly shows that a state 
House or a state Senate has considered that it can de­
termine a prospective member to be not qualified for 
grounds other than those stated in the respective constitu­
tions as the qualifications or basis of eligibility for the 
office.

Representative-Elect Bond was not challenged on the 
ground that he was not 21 years of age; that he had not 
been a citizen of the State for the requisite two years and 
a resident of the county from which he was elected. Nor 
was he challenged on the ground that he had been con­
victed of treason against the state, embezzlement of public 
funds, misfeasance in office, bribery or larceny or any 
crime punishable by the laws of the state, punishable with



65

Appendix B—Opinions Below

imprisonment in the penitentiary. He was not charged 
with having received any interest, profit or perquisite 
arising from the use or loan of public funds. He offered to 
take the prescribed oath of office.

Since it cannot be claimed that he was found disquali­
fied on some ground other than those of which he was 
charged, as this would be the clearest sort of deprivation of 
due process guaranteed not only by the United States 
Constitution, but also by the Georgia Constitution as well, 
Article I, Section I, Paragraph III, Constitution of the 
State of Georgia, Section 2-103, Ga. Code Ann., it is clear 
that Bond was found disqualified on account of conduct 
not enumerated in the Georgia Constitution as a basis of 
disqualification. This was beyond the power of the House 
of Representatives. It runs counter to the express pro­
visions of the Georgia Constitution giving to the people 
the right to elect their representatives, and limiting the 
Legislature in its right to reject such elected members to 
those grounds which are expressly stated in Georgia’s 
basic document.

As pointed out above, no Georgia decision has held 
that the courts of this state are helpless to intervene where 
a House of the Legislature undertakes to disqualify a 
person on a ground not specified. The decisions thus far 
reach only the proposition that where the Georgia Consti­
tution authorizes the House to pass upon the qualifications 
of its members, all of the provisions in the Constitution 
touching on qualifications may be considered by the House 
in determining whether a member-elect meets the specified 
standards. In view of my conclusion that the action of 
the lower house of the General Assembly was in violation 
of the State Constitution, it would seem that Article I, 
Section IV, Paragraph II, would come into play. This 
section provides: “ Legislative Acts in violation of this 
Constitution, or the Constitution of the United States, are 
void, and the judiciary shall so declare them.” Section



66

Appendix B—Opinions Below

2-402, Ga. Code Arm. Since, therefore, a Georgia Court 
is given the authority to declare such an act void, as in 
violation of the Georgia Constitution, pendent jurisdiction 
places this obligation upon this Court.

While it might be argued that, under normal circum­
stances, if there were nothing before this Court other than 
the charge that the State Legislature violated the Georgia 
Constitution, rules of comity might require that this. Court 
refrain from assuming jurisdiction over such a controversy, 
this is not such a case. If we were to refrain from acting 
on the State constitutional question, we would then be 
faced squarely with the necessity of deciding the grave 
Federal constitutional question. That question is, whether 
the plaintiff has been deprived of his First Amendment 
rights by the action of the Georgia House. The gravity 
of that question cannot be doubted, since it is clear that 
it was for expression of his views that Bond was denied his 
seat. In view of the fact that all of plaintiff’s rights can 
be fully adjudicated by our construction of the Georgia 
Constitution itself, we need not, and, indeed, we should not, 
proceed to a consideration of the Federal constitutional 
issue.

I would find that the act of the Georgia House of Bep- 
resentatives was void as being in violation of the Georgia 
Constitution and would require that he be seated to the 
place to which he was elected.



67

APPENDIX C

Judgment Below

m  THE

UNITED STATES DISTRICT COURT
F ob th e  N orthern  D istrict oe G eorgia 

A tlanta D ivision

Civil Action No. 9895

-------------------- o-------- -— -------- -

J u lian  B ond, D r . M artin  L u t h e r  K in g , J r ., and Mrs. 
A ret, K eyes, for themselves jointly and severally, and 
for all other similarly situated,

Plaintiffs,
— v . —

J ames “ S l o ppy”  F loyd, et al.,
Defendants.

- o -

Order

On the 17th day of January 1966 a complaint was filed 
in the United States District Court for the Northern Dis­
trict of Georgia, Atlanta Division, for injunctive relief in 
the above-styled cause. Pursuant to the prayers of the 
complaint a Three-Judge District Court was convened, 
consisting of Honorable Elbert P. Tuttle, Circuit Judge, 
Griffin B. Bell, Circuit Judge, and Lewis R. Morgan, Dis­
trict Judge. A motion for a preliminary injunction was 
filed on that same day. Various motions and an answer 
were filed by the Defendants, and it was stipulated that a 
final judgment might be rendered on the pleadings, the



68

Appendix C—Judgment Below

stipulated facts and such other evidence as was introduced 
on the hearing of this matter. The Court, having heard 
oral argument on January 28, 1966, and having entered 
its opinion with respect thereto on February 10, 1966, and 
being advised in the premises,

I t is  n o w , t h e r e fo r e , ordered, adjudged  and  degreed 
as follows:

1.

The Motion to Dismiss for lack of jurisdiction is denied. 
The Motion to Strike Plaintiffs Dr. Martin Luther King, 
Jr., and Mrs. Arel Keyes for lack of standing is hereby 
granted.

2.

The prayers of the complaint are denied for the reasons 
set forth in the opinion and the complaint is hereby dis­
missed.

This 14th day of February 1966.

/ s /  Gr if f in  B . B ell , 
United States Circuit Judge.

/ s /  L ew is  R . M organ, 
United States District Judge.

I concur in that part of the Order denying the Motion 
to Dismiss for Want of Jurisdiction.

I dissent from the remainder of the Order.

/ s /  E lbert P. T u ttle , 
United States Circuit Judge.



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