Gomillion v. Lightfoot Briefs; Complaint; Transcript of Record

    October Term, 1960

C. G. Gomillion, et al., petitioners
v.

P h il  M, L iohteoot, as Mayor op' the City op. 
Tttseegee, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

J. LEE RANKIN,
Solicitor General, 

HAROLD R. TYLER, JR.,
Assistant Attorney General, 

PHILIP ELMAN,
DANIEL M. ERIEDMAN,

Assistants to the Solicitor General, 
HAROLD H. GREENE,
D. ROBERT OWEN,
J. HAROLD ELANNERY, JR.,

Attorneys,
Department of Justice, Washington 25, D.C.



I N D E X

P age

Statement_______________________________ 1
Argument_______________________________ 5
Conclusion_______________________________ 18

CITATIONS
Cases:

Augustus v. City of Pensacola, 1 R.R.L.R.
681________________________________ 15

Bailey v. Alabama, 219 U.S. 219_________ 17
Baskin v. Brown, 174 F. 2d 391__________  17
Brown v. Board of Education, 347 U.S. 483_ 15
Buchanan v. Warley, 245 U.S. 60_________ 16
City of Petersburg v. Alsup, 238 F. 2d 830,

certiorari denied, 353 U.S. 922_________ 15
Colegrove v. Green, 328 U.S. 549-------------  6,

8, 9,10,11,12,13
Cooper v. Aaron, 358 U.S. 1_____________  10
Davis v. Schnell, 81 F. Supp. 872, affirmed,

336 U.S. 933_______________________  17
Dawson v. Mayor and City Council of Balti­

more City, 220 F. 2d 386, affirmed, 350
U.S. 877__________   15

Derrington v. Plummer, 240 F. 2d 922, cer­
tiorari denied, 353 U.S. 924----------------  15

Eubanks v. Louisiana, 356 U.S. 584_______ 18
Frost Trucking Co. v. Railroad Commission,

271 U.S. 583_______________________  17
Gayle v. Browder, 352 U.S. 903, affirming

142 F. Supp. 707____________________ 15
Guinn v. United Slates, 238 U.S. 347_____ 9
562461— 60----1 (i)



Cases—Continued Page
Hayes v. Crutcher, 137 F. Supp. 853______ 15
Henderson v. Mayor of New York, 92 U.S.

259_________ ’_____________________  17
Henry v. Greenville Airport Commission

(C.A. 4), decided April 20, 1960________ 15
Ho Ah Kow v. Nunan, 5 Sawyer 552______ 17
Holley y. City of Portsmouth, 150 F. Supp.

6_________________________________  6
Holmes v. City of Atlanta, 350 U.S. 879, re­

versing 223 F. 2d 93_________________  15
Home Ins. Co. v. New York, 134 U.S. 594  17
Korematsu v. United States, 323 U.S. 214  9
Lassiter v. Northampton Election Board, 360

U.S. 45____________________________  9,17
Lonesome v. Maxwell, 220 F. 2d 386_______ 15
MacDougall v. Green, 335 U.S. 281_______ 8
Miller v. Milwaukee, 272 U.S. 713_________ 17
Mitchell y. Wright, 154 F. 2d 924, certiorari

denied, 329 U.S. 733___    16
Moorhead v. City of Ft. Lauderdale, 152 F.

Supp. 131, affirmed, 248 F. 2d 544______ 15
Moorman v. Morgan, 285 S.W. 2d 146_____  15
Muir v. Louisville Park Theatrical Ass’n.,

347 U.S. 971, reversing 202 F. 2d 275___  15
Myers v. Anderson, 238 U.S. 368_________ 9,10
New Orleans City Park Improvement Asso­

ciation y. Detiege, 358 U.S. 54, affirming
252 F. 2d 122_______________________  15

Nixon v. Herndon, 273 U.S. 536_________  14
Norris v. Alabama, 294 U.S. 587_________ 17
Rice v. Elmore, 165 F. 2d 387, certiorari de­

nied, 333 U.S. 875___________________ 17
Shelley v. Kraemer, 334 U.S. 1__________  8,14
Smiley v. Holm, 285 U.S. 355___________  12

IT



I l l

Cases—-Continued Page
Smith v. Allwright, 321 U.S. 649--------------- 17
South y . Peters, 339 U.S. 276__________ 8, 9, 11
Strauder v. West Virginia, 100 U.S. 303----- 10
Terry v. Adams, 345 U.S. 461___________  11
United States v. Butler, 297 U.S. 1------------ 17
United States v. McElveen, 180 F. Supp. 10, 

affirmed sub nom. United States v.
Thomas, 362 U.S. 58_________________ _ 18

Ward Y. City of Miami, 151 F. Supp. 593,
affirmed F. 2d 787____________________ 15

Yick Wo y. Hopkins, 118 U.S. 356________ 9
Constitution and Statute:

United States Constitution:
Fourteenth Amendment____________  2,

5, 9,10,11,12,14,16,18 
Fifteenth Amendment_____________  2,

5, 9,10,11,12,14,16,18 
Acts of the State of Alabama (Act 140)

(1957)_____________ 2, 3, 8, 9,12,13,16,17,18
Miscellaneous:

Lewis, Legislative Apportionment and the 
Federal Courts, 71 Harv. L. Rev. 1057—  11

New York Times, March 2, 1960, p. 28, col.
7-8________________________________ 17

Report of the United States Commission on 
Civil Rights, 1959 (Gr.P.O.)_--------------- 16



J t i the < { m x \  of the ® n M  States
October T erm , 1960

No. 32
C. G. GO MILLION, ET AL., PETITIONERS 

V.

P h il  M. L ightpoot, as Mayor op the  City op 
T tjskegee, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ST A T E M E N T

Petitioners, Negro citizens, filed a complaint (R. 
2-9) in the United States District Court for the 
Middle District of Alabama alleging that a 1957 Act 
of the State of Alabama (Act 140) changing the 
boundaries of the City of Tuskegee, Alabama, de­
prived them, “on account of their race and color” (R. 
7-8), of their right to vote in Tuskegee municipal 
elections and of certain municipal services,1 in vio- 1

1 It was alleged (E. 7) that petitioners have been deprived of 
the services of city policemen to patrol school-zoned areas dur­
ing certain hours, the benefits of general street improvement, 
and the paving of a certain street as promised by the city 
prior to the passage of the Act.

( 1 )



2

lation of the due process and equal protection clauses 
of the Fourteenth and Fifteenth Amendments.2 The 
defendants are officials of Tuskegee and of Macon 
County, in which it is located (R. 4-5). The relief 
sought was (1) an adjudication that, as applied to 
petitioners, the Act is unconstitutional as charged; 
and (2) that the defendants be enjoined from enforc­
ing the Act against petitioners and others similarly 
situated, and from denying them “the right to vote 
in Tuskegee municipal elections, and to be recognized 
and treated in all respects as citizens of the City of 
Tuskegee” (R. 8-9). The district court dismissed 
the complaint on the ground that it had no authority 
to invalidate Act 140, and the Court of Appeals for 
the Fifth Circuit affirmed by a divided court.

The pertinent allegations of the complaint—which 
must be accepted as true for purposes of testing its 
sufficiency—are as follows:

Prior to Act 140, Tuskegee was a square-shaped 
city containing approximately 5,397 Negroes and ap­
proximately 1,310 white persons. Approximately 400 
Negroes and 600 white persons were qualified voters 
in the city. As a result of the altering of the city’s 
boundaries by Act 140, several thousand Negroes, 
including all but 4 or 5 qualified voters, have been 
“excluded or ‘removed’ ” from the city. No white 
persons were removed. “As redefined by said Act 
140, Tuskegee resembles a ‘sea dragon’, with Negro 
neighborhoods, including the site of the Tuskegee In­

2 The action was brought as a class suit on behalf of peti­
tioners and all other Negro citizens who reside within the city- 
limits of Tuskegee as they existed prior to Act 140 (E. 3-4).



3

stitute, eliminated” (R. 5). (A map showing the 
changes made in the configuration of the city by Act 
140 is included at pages 12-13 of the record.)

Although Act 140 “recites no reasons for the change 
in boundaries * * * its necessary effect and obvious 
purpose” (R. 5) was to deprive plaintiffs “on ac­
count of their race and color” of their “right to vote” 
in Tuskegee municipal elections, to deny them “their 
rights to effective participation in Tuskegee’s munic­
ipal affairs” (R. 8), and to deprive them of certain mu­
nicipal services (R. 7). “Act No. 140 is another 
device in a continuing attempt on the part of the 
State of Alabama to disenfranchise Negro citizens” 
(R. 6).3

The district court dismissed the complaint on the 
ground that “ regardless of the motive of the Legisla­
ture of the State of Alabama and regardless of the 
effect of its actions, insofar as these plaintiffs’ right 
to vote in the municipal elections is concerned, this 
Court has no authority to declare said Act invalid after

3 The complaint stated (R. 6-7) that Macon County had no 
Board of Registrars for more than 18 months between January, 
1956, and June, 1957, for the reason that “almost all of the white 
persons possessing the qualification to vote in said County are 
already registered, whereas thousands of Negroes, who possess 
the qualifications, are not registered and cannot vote” ; that Act 
140 was introduced into the Alabama Legislature by State Sen­
ator Sam Engelhardt of Macon County, who was then Execu­
tive Secretary for the White Citizens’ Council for Alabama, 
“an organization dedicated to the principles of white suprem­
acy and prevention of integration of the white and Negro 
races” ; and that a local newspaper article, published shortly 
before the bill was introduced, “cited the ‘obvious’ purpose of 
the bill, i.e., ‘to assure continued white control in Tuskegee City 
elections.’ ”



4

measuring it by any yardstick made known by the 
Constitution of the United States,” and has no “con­
trol” or “supervision over, and no power to change 
any boundaries of municipal corporations fixed by a 
duly convened and elected legislative body, acting for 
the people in the State of Alabama” (R. 30).

In  affirming, the majority opinion of the court of 
appeals concluded (R. 41) that

in the absence of any racial or class discrimina­
tion appearing on the face of the statute, the 
courts will not hold an act, which decreases 
the area of a municipality by changing its 
boundaries, to be invalid as violative of the 
Fourteenth and Fifteenth Amendments to the 
United States Constitution, although it is al­
leged that the enactment was made for the pur­
pose, not appearing in the Act, and with the 
effect of excluding or removing Negroes from 
the City and depriving them of the privileges 
and benefits of municipal membership, includ­
ing the right to vote in City elections.

Judge Brown, dissenting, was of the view that “the 
courts are open to hear and determine the serious 
charge here asserted” (R. 43). He stated that be­
cause the redistricting of Tuskegee and prescribing 
the qualifications for voting in its municipal elections 
“are solely, or primarily, the initial concerns of Ala­
bama alone does not mean that when it acts it may 
act without regard for the Constitution” (R. 49-50) ; 
and that it is of “ little significance” that Act 140 
“does not * * * demonstrate on its face that [it] is di­
rected at the Negro citizens of that community. I f  
the Act is discriminatory in purpose and effect,



5

‘whether accomplished ingeniously or ingenuously’ 
[it] cannot stand” (R. 57).

A R G U M EN T

I f  a state statute expressly prohibited Negroes in 
a particular city from voting in municipal elections, 
or denied them municipal services available to white 
residents of the city, we think it beyond dispute that 
any court in the country would invalidate it as an 
obviously unconstitutional abridgment of the rights 
of Negro citizens guaranteed by the Fourteenth and 
Fifteenth Amendments. The issue in this case is 
whether the Alabama statute which, according to the 
allegations of the complaint, is designed to, and does, 
achieve the same result, is beyond judicial review 
because that result is accomplished by changing the 
boundaries of the City of Tuskegee rather than by 
affirmatively imposing such prohibitions. Stated dif­
ferently, the question is whether the State of Alabama 
can use its admittedly broad power to define the 
boundaries of its municipalities as a method for ac­
complishing indirectly wliat it could not do directly, 
namely, depriving its Negro citizens of their constitu­
tional rights because of their race.

The majority opinion below held (R. 41) that, since 
the “ enactment by a state legislature of a statute creat­
ing, enlarging, diminishing or abolishing a municipal 
corporation is * * * a political function”, the courts 
will not, “ in the absence of any racial or class discrimi­
nation appearing on the face of the statute,” hold a 
statute “ which decreases an area of a municipality by 
changing its boundaries” invalid under the Fourteenth

562481— 60------2



6

and Fifteenth Amendments, even though it is alleged 
“that the enactment was made for the purpose * * * 
and with the effect of excluding or removing Negroes 
from the City and depriving them of the privileges and 
benefits of municipal membership, including the right 
to vote in City elections.” We shall show, however, 
that the allegations of this complaint go far beyond 
“ political questions” which courts have frequently re­
fused to decide; and that the grounds upon which 
courts abstain from involvement in “ political ques­
tions” are not applicable where, as here, the denial of 
constitutional rights is allegedly based on the facts that 
the victims of the discrimination are Negroes. We 
shall further show that, once it be established that this 
is an appropriate case for judicial intervention, the 
allegations of the complaint, if proven, clearly estab­
lish a violation of petitioners’ constitutional rights and 
warrant the relief sought.

1. The leading recent case in this Court dealing 
with “political questions” involving the electoral proc­
ess is Colegrove v. Green, 328 U.S. 549. This Court 
there upheld the dismissal of a complaint challenging 
the constitutionality of the apportionment of Con­
gressional districts in Illinois. The complaint charged 
that, by reason of subsequent changes in population, 
the Congressional districts that Illinois had created in 
1901 were invalid, and it sought, in effect, to enjoin 
the state officials from conducting the 1946 Congres­
sional elections on the basis of the 1901 districts. Mr. 
Justice Frankfurter, in an opinion in which Justices 
Reed and Burton concurred, stated (p. 552) that this



7

Court “from time to time” “has refused to intervene 
in controversies” of this character “because due re­
gard for the effective working of our Government 
revealed this issue to be of a peculiarly political 
nature and therefore not meet for judicial determina­
tion.” The opinion pointed out that “ [t]he basis for 
the suit is not a private wrong, but a wrong suffered 
by Illinois as a polity” (p. 552); that a court cannot 
“affirmatively re-map the Illinois districts so as to 
bring them more in conformity with the standards of 
fairness for a representative system” but, “ [a]t best”, 
“could only declare the existing electoral system in­
valid”—the result of which “would be to leave Illinois 
undistricted and to bring into operation, if the Illi­
nois legislature chose not to act, the choice of mem­
bers for the House of Representatives on a state-wide 
ticket” (p. 553) ; that “this controversy concerns mat­
ters that bring courts into immediate and active rela­
tions with party contests,” issues from which “this 
Court has traditionally held aloof” (ibid.) ; and that 
the “remedy for unfairness in districting is to secure 
State legislatures that will apportion properly, or to 
invoke the ample powers of Congress” (p. 556). 
“Courts ought not to enter this political thicket” 
(ibid.).

Subsequently, in affirming the dismissal of a suit 
challenging the constitutionality of Georgia’s county 
unit system, this Court stated that “Federal courts 
consistently refuse to exercise their equity powers in 
cases posing political issues arising from a state’s 
geographical distribution of electoral strength among



s

its political subdivisions.” South v. Peters, 339 U.S. 
276, 277.

None of these considerations in favor of judicial 
abstention is, however, applicable to the violations of 
petitioners ’ constitutional rights charged in the instant 
case.

The disenfranchisement here is not the result of a 
long-term population shift, but of a particular statute 
allegedly directed against a particular group solely be­
cause of its race. Cf. infra, pp. 14-18. Furthermore, 
the racial aspect of the discrimination is not merely one 
of the effects of the Act (cf. South v. Peters, supra), 
but is its basic vice. Therefore, here, unlike Golegrove, 
“ [t]he basis for the suit is * * * a private wrong” 
(emphasis added). The alleged wrong has not been 
suffered by the State of Alabama “ as a polity,” but 
by these petitioners, who allege that as a result of the 
Alabama Act they “are suffering irreparable injury 
to their rights to vote, to free speech, press, and peti­
tion, and to property” (R. 8; emphasis added). These 
rights “ are personal rights” (Shelley v. Kraemer, 334 
U.S. 1, 22). This Court has examined on the merits 
even non-racial cases involving state distribution of 
political power where the personal rights of a particu­
lar group were directly impinged. MacDougall v. 
Green, 335 U.S. 281.

In Colegrove, invalidation of “the existing electoral 
system” involved would have left Illinois “ undis­
tricted” and, if the Illinois legislature did not act, 
might have “ defeat [ed] the vital political principle 
which led Congress, more than a hundred years ago,



to require districting” (p. 553). Invalidation of Ala­
bama Act 140, however, would do no more than re­
store the situation as it existed prior to the summer 
of 1957—namely, the Negro community of Tuskegee 
would again become a part of that City, and would 
again be able to exercise the voting and other civic 
rights which it had previously enjoyed.

Finally, and perhaps most significant of all, this 
case does not involve “matters that bring courts into 
immediate and active relations with party contests” 
and would not “involve the judiciary in the politics of 
the people” (Colegrove, at pp. 553-554); and it does 
not pose “political issues arising from a state’s geo­
graphical distribution of an electoral strength among 
its political subdivisions” (South, v. Peters). For al­
though Law 140 on its face purports merely to “alter, 
re-arrange, and re-define the boundaries of the City 
of Tuskegee” (R. 9), the complaint alleges that its 
true purpose and effect is to deny petitioners, “on 
account of their race and color,” their voting and 
other constitutional rights guaranteed by the Four­
teenth and Fifteenth Amendments. Particularly in 
the field of civil rights, this Court has repeatedly 
looked beneath the surface of innocuous-appearing 
legislation to determine its true intent and effect, and 
has tested its constitutionality on the basis of what 
it actually does, not what it merely says. P-fJ., Tick 
Wov. Hopkins, 118 U.S. 356; Guinn v. United States, 
238 U.S. 347, 364-365; Myers v. Anderson, 238 U.S. 
368; Korematsu v. United States, 323 U.S. 214, 216; 
see Lassiter v. Northampton Election Board, 360 U.S.



10

45, 53. “ [T]he constitutional rights of [petitioners] 
not to be discriminated against * * * on grounds of 
race or color * * * can neither be nullified openly 
and directly by state legislators * * * nor nullified 
indirectly by them through evasive schemes * * * 
whether attempted ‘ingeniously or ingenuously’ ” 
(Cooper v. Aaron, 358 U.S. 1, 17). Thus, in Myers 
v. Anderson, supra, this Court struck down a Mary­
land statute which required, as a condition to voting 
in municipal elections, that the voter or his ancestor 
must have voted prior to a certain date. Although 
innocuous on its face, this condition was invalidated 
because its clear effect and design was to disfranchise 
Negro citizens.

If  there is one area from which “this Court has tradi­
tionally [not] held aloof” (Golegrove), it has been at­
tempts by the States to discriminate against members 
of the Negro race. In  one of the first cases which arose 
under the Fourteenth Amendment (.Strauder v. West 
Virginia, 100 U.S. 303), this Court, in striking down a 
state statute that excluded Negroes from serving on 
juries, unequivocally stated (p. 307) that the Four­
teenth Amendment

declar[es] that the law in the States shall be the 
same for the black as for the white; that all 
persons, whether colored or white, shall stand 
equal before the laws of the States, and, in regard 
to the colored race, for whose protection the 
amendment was primarily designed, that no dis­
crimination shall be made against them by law 
because of their color.

See, also, the cases cited infra, pp. 14-16.



11

In short, Colegrove and South v. Peters dealt with 
the “political question” of the diminution of the effec­
tiveness of voting rights in certain geographical areas 
resulting from lack of redistricting. They “ dealt not 
with racial discrimination at the ballot box” (Terry v. 
Adams, 345 U.S. 461, 481, opinion of Mr. Justice 
Clark) or in the provision of municipal services. 
Thus, assuming arguendo the correctness of the hold­
ings in those cases that the question there involved 
was not judicially cognizable (but see Lewis, Legisla­
tive Apportionment and the Federal Courts, 71 Harv. 
L. Rev. 1057), they are not applicable to the instant 
case. For it does not involve a “ political question,” 
but the power of the State of Alabama to use the 
device of the gerrymander to deprive Negro citizens of 
their constitutional rights guaranteed by the Four­
teenth and Fifteenth Amendments.

There is no magic in the words “ apportionment” 
or “redistricting” which includes an immunity from 
judicial review. Cases involving purely political ques­
tions may fall within a special area of governmental 
concern which judges should refrain from entering; 
but it does not follow that every legislative “appor­
tionment” or “ redistricting” is automatically such a 
case. I f  a state were to gerrymander its school dis­
tricts in such a way as to continue racial segregation 
of pupils, and for that very purpose, we cannot con­
ceive that this Court would hold it outside the judicial 
power to review such action, even though the “redis­
tricting” was overtly cast in terms of geographical 
boundaries and there was no explicit reference to race. 
The same considerations apply here.



12

2. Mr. Justice Frankfurter’s opinion in Colegrove 
also adverted to the problems of relief in political 
cases. He stated (pp. 552-553) that petitioners were 
“ask[ing] of this Court what is beyond its competence 
to grant,” since “no court can affirmatively re-map the 
Illinois districts so as to bring them more in conform­
ity with the standards of fairness for a representative 
system.” The relief issue also looms large in the con­
curring opinion of Judge Wisdom below. He stated 
(R. 66) that since “ [cjourts, any courts, are incompe­
tent to remap city limits”, petitioners “ ask for some­
thing courts cannot give” ; and that “ any decree in this 
case purporting to give relief would be a sham: the 
relief sought will give no relief.” “ [T]here is no 
effective remedy” (R. 72).

We submit that Judge Wisdom is in error in con­
cluding that relief cannot here be provided. Peti­
tioners do not, as he suggests (R. 72), ask the court 
to undertake “the determination of * * * bounda­
ries” of “political subdivisions of the state” (R. 71). 
They ask only for an adjudication that this particular 
alteration of the boundaries of Tuskegee, alleged to 
be part of “a continuing attempt on the part of the 
State of Alabama to disenfranchise Negro citizens” 
(R. 6), violates the Fourteenth and Fifteenth Amend­
ments; and that the state officials be enjoined from 
enforcing the Act against them and from denying 
them the right to vote in Tuskegee municipal elections 
(R. 8-9). Thus, the relief here requested is funda­
mentally the same as that recognized as appropriate 
in Smiley v. Holm, 285 U.S. 355, namely, the power 
of an equity court “to declare a state apportionment



13

bill invalid and to enjoin state officials from enforcing 
i t” (Mr. Justice Black, dissenting, in Colegrove v. 
Green, 328 U.S. at 573).

I t  is of course true, as Judge Wisdom pointed out 
(R. 72), that if the court declares Act 140 invalid, 
“ [tjliere is nothing to prevent the legislature of Ala­
bama from adopting a new law redefining Tuskegee 
town limits, perhaps with small changes, or perhaps a 
series of laws, each of which might also be held un­
constitutional * * But it cannot fairly be as­
sumed that, if this Act is declared unconstitutional, 
the State of Alabama will endeavor to evade that 
ruling by reenacting the same law with “small 
changes” in the city boundaries. In any event, the 
court can certainly give effective relief against this 
statute, and that is enough to allow petitioners to go 
to trial. While the relief sought in this case may not 
protect petitioners against future attempts by the 
state to achieve the same illegal result by similar 
means, it can nevertheless effectively eliminate the 
deprivation of constitutional rights resulting from 
this statute. Ho more is necessary to warrant a court 
of equity hearing the case on the merits. I t  is time 
enough to worry about future cases involving minor 
modifications of the statute if and when they arise.

Indeed, in the delicate constitutional area here in­
volved, the mere declaration by a court that the state 
cannot wipe out petitioners ’ voting rights by gerry­
mandering, is itself an important element of relief. 
Bor such a ruling will necessarily have a salutary 
effect in discouraging future attempts in other areas 
to employ like devices for denying the right to vote.



14

“Where * * * it is clear that the action of the state 
violates the terms of the fundamental charter, it is 
the obligation of this Court so to declare” (Shelley 
v. Kraemer, 334 U.S. 1, 23). On the other hand, a 
holding that the courts are powerless to intervene in 
this situation would provide a new and dangerous 
method for avoiding the constitutional mandate that 
“ [t]he right of citizens of the United States to vote 
shall not be denied or abridged * * * by any State 
on account of race [or] color * * *.”

3. Once it be established that this case does not 
involve the kind of “political question” that is not 
subject to judicial scrutiny, there can be no doubt that 
the complaint sets forth a clear violation of the con­
stitutional prohibitions of the Fourteenth and F if­
teenth Amendments.

Petitioners allege (R. 7-8) that they have been 
gerrymandered out of the City of Tuskegee “on ac­
count of their race and color.” Although “[sjtates 
may do a good deal of classifying that it is difficult 
to believe rational, * * * there are limits, and it is 
too clear for extended argument that color cannot be 
made the basis of a statutory classification affecting 
the right set up in this case [right to vote]” (Mr. 
Justice Holmes, in Nixon v. Herndon, 273 U.S. 536, 
541).

This basic constitutional precept that ’Negroes can­
not be singled out and treated differently because of 
their race and color is fundamental to our democracy. 
I t  has repeatedly been reasserted and applied in a long 
list of cases that have unequivocally condemned, in 
whatever form, attempts by the states to deny Negro



15

citizens their constitutional rights. Since Brown v. 
Board of Education, 347 U.S. 483, held segregation 
in the public schools to be unconstitutional, this Court 
and the lower federal courts have condemned segre­
gation in a wide variety of public facilities, including 
beaches and bathhouses,4 golf courses,5 restaurants in 
public buildings,6 intrastate bus lines,7 parks and rec­
reational areas,8 and public theatres.9 I t  would make 
a mockeiy of all of these cases now to hold that the 
states can create a segregated community of Negro 
citizens. The effect would be to enable the states, by

4 Dawson v. Mayor and City Council of Baltimore City, 220 
F. 2d 386 (C.A. 4), affirmed, 350 U.S. 877; see also City of 
Petersburg v. Alsup, 238 F. 2d 830 (C.A. 5), certiorari denied, 
353 U.S. 922.

5 Holmes v. City of Atlanta, 350 U.S. 879, reversing, 223 F. 
2d 93 (C.A. 5); see also Moorhead v. City of Ft. Lauderdale, 
152 F. Supp. 131 (S.D. Fla.), affirmed, 248 F. 2d 544 (C.A. 5); 
Ward v. City of Miami, 151 F. Supp. 593 (S.D. Fla.) affirmed, 
252 F. 2d 787 (C.A. 5); Holley v. City of Portsmouth, 150 F. 
Supp. 6 (E.D. Y a.); Hayes v. Crutcher, 137 F. Supp. 853 (M.D. 
Tenn.); Augustus v. City of Pensacola, 1 R.K..L.K. 681.

6 Derrington v. Plummer, 240 F. 2d 922 (C.A. 5), certiorari 
denied, 353 U.S. 924.

7 Gayle v. Browder, 352 U.S. 903, affirming, 142 F. Supp. 707 
(M.D. Ala.).

sNew Orleans City Parh Improvement Association v. De- 
liege. 358 U.S. 54, affirming, 252 F. 2d 122 (C.A. 5). See also 
Lonesome v. Maxwell, 220 F. 2d 386 (C.A. 4); Augustus v. 
City of Pensacola, supra; Moorman v. Morgan, 285 S.W. 2d 
146 (Ky.).

* Muir v. Louisville Parle Theatrical Ass'n., 347 U.S. 971, 
reversing 202 F. 2d 275 (C.A. 6) and remanding for consid­
eration in light of Brown v. Board of Education and “condi­
tions that now prevail.” See also Henry v. Greenville Airport 
Commission (C.A. 4), decided April 20, 1960 (waiting room in 
a municipal airport).



16

the simple device of redrawing municipal boundaries, 
to bar Negroes from enjoying many of the public 
facilities that have been finally opened to them only 
after protracted and difficult litigation. The ghetto 
has no place in American life, and the Fourteenth 
Amendment prohibits state enactments, the “ pur­
pose * * * and * * * ultimate effect” of which are 
“to require by law, at least in residential districts, 
the compulsory separation of the races on account of 
color” (Buchanan v. Warley, 245 U.S. 60, 81).

The fact that the forbidden discrimination is ac­
complished through the exercise of the state’s admit­
tedly broad power to redefine municipal boundaries 
cannot save this Act. For “ all * * * state activity, 
must be exercised consistently with federal constitu­
tional requirements as they apply to state action” 
0Cooper v. Aaron, 358 U.S. 1, 19), and the Fourteenth 
and Fifteenth Amendment each “refers to exertions 
of state power in all forms” (Shelley v. Kramer, 334 
U.S. 1, 20). I t  is undisputed that Act 140 eliminated 
from the City of Tuskegee its Negro neighborhoods 
and all but 4 or 5 of its approximately 400 Negro 
voters, but eliminated no white voters. Petitioners 
allege (R. 6) that the Act “is another device in a con­
tinuing attempt on the part of the State of Alabama 
to disenfranchise Negro citizens.” 10 No other reason

10 The difficulties that Negro citizens of Macon County, Ala­
bama, hay© had in attempting to register are well known. See 
Mitchell v. Wright, 154 F. 2d 924 (C.A. 5), certiorari denied, 
329 U.S. 733; Report of the United States Commission on Civil 
Rights, 1959 (Government Printing Office), pp. 75-76.



17

than disenfranchisement of the Negroes of Tuskegee 
has been given for the Act. See New York Times,. 
March 2,1960, p. 28, col. 7-8. In these circumstances, 
we submit that it is immaterial that there is no “racial 
or class discrimination appearing on the face of the 
statute” (R. 41; emphasis added). For the issue is 
not whether petitioners’ rights were denied in “ex­
press terms,” but whether they were “denied in sub­
stance and effect” (Norris v. Alabama, 294 U.S. 587,. 
590).11

In “substance and effect” the State of Alabama, 
under the guise of merely changing the boundaries of 
Tuskegee, has denied a substantial number of Negro 
citizens important rights which white citizens in the. 
same area continue to enjoy. The attempt by the 
State of Alabama to deny the Negro citizens of Tus­
kegee their right to vote flies in the face of this 
Court’s admonition in Smith v. Allwright, 321 U.S. 649, 11

11 To the same effect, see Bailey y. Alabama, 219 U.S. 219, 244; 
Tick Wo v. Hopkins, 118 U.S. 356, 373-374; Ho Ah Koto v. 
Nunan, 5 Sawyer 552, 560-564 (Circuit Court, of California); 
Cooper v. Aaron, 358 U.S. 1; Terry v. Adams, 345 U.S. 461; 
Smith v. Allwright, 321 U.S. 649; Miller v. Milwaukee, 272 
U.S. 713, 715; Home Insurance Co. v. New York, 134 U.S. 594; 
Henderson v. Mayor of New York, 92 U.S. 259; Frost Truck­
ing Co. v. Railroad Commission, 271 U.S. 583; Rice v. Elmore, 
165 F. 2d 387, 392 (C.A. 4), certiorari denied, 333 U.S. 875; 
Baskin v. Brown, 174 F. 2d 391, 393 (C.A. 4). And in order 
to discern purpose, the courts do not hesitate to consider the 
legislative setting. See Davis v. Schnell, 81 F. Supp. 872, 880- 
881 (S.D. Ala.), affirmed, 336 U.S. 933; Lassiter v. Northamp­
ton Election Board, 360 U.S. 45, 53; United States v. Butler, 
297 U.S. 1.



IS

662, that “ [ujnder our Constitution the great privilege 
of the ballot may not be denied a man by the State 
because of his color.” The patent discrimination of 
this Act further violates the constitutional “declara­
tion” in the Fourteenth Amendment that “no distinc­
tion shall be made against [the colored race] by law 
because of their color” (Strauder v. West Virginia> 
100 U.S. 303, 307).

CONCLUSION

As we have shown, the controversy in this case does 
not involve a non-racial dilution of the right to vote, 
but the total deprivation not merely of that right but 
of all rights to benefits of citizenship in a municipal­
ity, solely on account of race. I f  the allegations of the 
complaint are proved, we think it clear that Alabama 
Act 140 is patently unconstitutional under both the 
Fourteenth and Fifteenth Amendments,12 and that the 
trial court has ample power to grant effective relief 
against the operation of this Act. Plainly, petitioners 
are entitled to an opportunity to go to trial and to 
prove their case.

12 If  this case is remanded for trial, the state would, of course, 
have an opportunity to introduce evidence to overcome the 
prima facie unconstitutionality of the discriminatory operation 
of the statute. However, the state would have a heavy burden 
to justify the patent discrimination here involved. See United 
States v. McElveen, 180 F. Supp. 10, affirmed sub nom. United 
States v. Thomas, 362 U.S. 58; Eubanks v. Louisiana, 356 
U.S. 584.



19

The judgment of the Court of Appeals should be 
reversed, and the cause remanded with instructions 
to proceed to trial.

Respectfully submitted.
J. L ee R a n k in ,

Solicitor General.
H arold R. T yler, J r . ,

Assistant Attorney General.
P h il ip  E lm an ,
D aniel M. F riedman, 

Assistants to the Solicitor General.

August 1960.

H arold H . Greene,
D. R obert Ow en ,
J. H arold F lannery, Jr.,

Attorneys.

U.S.  GOVERNMENT PRINTING OFFICE: 1960



I n  t i p  ( t o r t  o f  %

IttiUb of Amrs

Spring Term 1960

No. 3260

C. G. GOMILLION, ET AL., Petitioners

v.

PHIL M. LIGHTFOOT, as Mayor of the City of Tuskegee, 
ET AL., Respondents

BRIEF FOR THE PETITIONERS

CHARLES H. BARON 
WILLIAM D. POPKIN

Attorneys for the Petitioners
HENRY M. diSUVERO 
RALPH A. MUOIO 
ROBERT H. NEUMAN 
CARL L. TAYLOR 
THOMAS A. ZIERK

Of counsel on the Brief

BEST PRINTERS, INC., BOSTON, MASS.



TABLE OF CONTENTS

CITATIONS................................................................................ iii

STATEMENT OF THE C A SE..........................................  1

SUMMARY OF THE ARGUM ENT....................................   2

ARGUMENT ............................................................................. 4

I. ACT 140, BY EXCLUDING PLAINTIFFS FROM 
TUSKEGEE, VIOLATES THE FOURTEENTH 
AND FIFTEENTH AMENDMENTS BECAUSE 
ITS SOLE EFFECT AND PURPOSE IS TO DIS­
ENFRANCHISE NEGROES AND TO DE­
PRIVE THEM OF MUNICIPAL BENEFITS . .  4

A. Alabama’s 'power to alter municipal bound­
aries is subject to Federal Constitutional re­
straints ............................................................  4

B. The constitutionality of Act HO must be de­
termined by loolcing beyond the express words
of the Statute to its effect and purpose . . . . . .  5

C. The sole effect and purpose of Act HO is to
discriminate against p la in tiffs ......................  6

D. Act HO violates the Fifteenth and Fourteenth
Amendments because the exclusion of plain­
tiffs from Tuskegee renders them ineligible to 
vote in the city solely on account of race . . . .  8

E. Act HO violates the equal protection clause of
the Fourteenth Amendment because the 
plaintiffs have been deprived of tangible and 
intangible municipal benefits solely on ac­
count of race ..................................................  9 l

l31



II. FEDERAL COURTS HAVE “COMPETENCE”
TO DECIDE THIS CASE, BECAUSE AN AD­
JUDICATION THAT PLAINTIFFS HAVE 
LOST THE RIGHT TO VOTE SOLELY ON AC­
COUNT OF RACE, DOES NOT REQUIRE 
THAT BALANCING OF POLITICAL INTER­
ESTS INHERENT IN A CASE INVOLVING 
THE DILUTION OF A VOTE THROUGH RE­
DISTRICTING ........................................................  10

III. FEDERAL COURTS OF EQUITY SHOULD EX­
ERCISE THEIR DISCRETION TO PRESERVE 
PLAINTIFF’S CONSTITUTIONAL RIGHTS . . 15

A. The effect of an injunction on state adminis­
trative processes would be well within the tra­
ditions of Federal action in state racial dis­
crimination cases..............................................  15

B. The need for equitable relief is especially ur­
gent because this Court alone can give plain­
tiffs the opportunity to attain political ma-
turity ................................................................  18

CONCLUSION........................................................................  20

li 31



CITATIONS

CASES

Browder v. Gayle, 142 F, Supp. 707 (M.D. Ala. 1956), 
aff’d per curiam, 352 U.S. 903 (1956) ..........................  16

Brown v. Bd. of Education, 347 U.S. 483 (1954) ___3,10,17

Brown v. Bd. of Education, 349 U.S. 294 (1955) ..............  17

Byrd v. Brice, 104 F. Supp. 442 (W.D. La. 1952), aff’d,
201 F.2d 664 (5th Cir. 1953 )................ .............................. 13

Colegrove v. Green, 328 U.S. 549 (1946) -----3,10,11,14,15,18

Cooper v. Aaron, 358 U.S. 1 (1958) ..................................  4,17

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949), aff’d 
per curiam, 336 U.S. 933 (1949) ...... ............................. . 7

Giles v. Harris, 189 U.S. 475 (1903) ..................................  15

Gilmore v. City of Montgomery, 176 F. Supp. 776 (M.D.
Ala. 1959) ..................................................................... . . . 1 6

Gomillion v. Lightfoot, 270 F.2d 594 (5th Cir.
1959) ..............................................................  4,5,10,15,17,18

Guinn v. United States, 238 U.S. 347 (1915) ..................  8,14

Harris v. McMillan, 186 Ga. 529, 198 S.E. 250 (1938) ___  8

Harrison v. N.A.A.C.P., 360 U.S. 167 (1959)......................  6

Holmes v. City of Atlanta, 124 F. Supp. 290 (N.D. Ga. 
1954), aff’d, 223 F.2d 93 (5th Cir. 1955), modified 
per curiam, 350 U.S. 879 (1955) ......................    16

iii31



Hunter v. City of Pittsburgh, 207 U.S. 161 (1907) ..........  4

Lane v. Wilson, 307 U.S. 268 (1939) ..................  5,8,9,13,14

Laramie v. County of Albany, 92 U.S. 307 (1875) ..........  4

Mt. Pleasant v. Beckwith, 100 U.S. 514 (1879) ..............  4

Myers v. Anderson, 238 U.S. 368 (1915) ........ .................. 8

Niemotko v. Maryland, 340 U.S. 268 (1951) ..............  13,14

Nixon v. Condon, 286 U.S. 73 (1932) ..................................  9

Oyama v. California, 332 U.S. 633 (1948) ......................  5

Shuttlesworth v. Birmingham Bd. of Education, 162 F. 
Supp. 372 (N.D. Ala. 1958), aff’d per curiam, 358 U.S. 
101 (1958) ..........................................................................  6

Smith v. Texas, 311 U.S. 128 (1940) ................................  5,6

South v. Peters, 339 U.S. 276 (1950) ..........................  11,14

Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315
(1931) ..................................................................................  15

Takahashi v. Fish and Game Comm’n., 334 U.S. 410
(1948) ..................................................................................  9

Terry v. Adams, 345 U.S. 461 (1953) .................................... 16

Williams v. Kansas City, 205 F.2d 47 (8th Cir. 1953), 
cert, denied, 346 U.S. 826 (1953) ...........   16

Yick Wo. v. Hopkins, 118 U.S. 356 (1886) .............. .... 5,9,13

iv 31



MISCELLANEOUS
111. Laws 1947, p. 879 ..........................................................  18

Ky. Acts 1930, ch. 147, p. 442 ..............................................  16

Ky. Acts 1930, ch. 148, p. 462 .................................. ............ 16

Tussman and tenBroek, The Equal Protection of the Laws,
37 Calif. L. Rev. 341 (1949) ..........................................  9

U.S. Const, amend XV, sec. 1 ..............................................  8

31 v



STATEMENT OF THE CASE

Petitioners (plaintiffs-appellants below) are citizens of 
the United States and of the State of Alabama who were 
formerly residents of the City of Tuskegee, Alabama. On 
July 15, 1957, the Alabama legislature enacted Act 140 alter­
ing the city’s boundaries. Tuskegee, which had heretofore 
been in the shape of a square, was reduced in size and trans­
formed in shape into a twenty-eight sided “sea-dragon.” As 
a result of this Statute, several thousand Negroes, including 
all but four or five of the four hundred qualified voters, were 
removed from the city.

Petitioners sought to have Act 140 declared unconstitu­
tional and to enjoin its enforcement by city officials. Jurisdic­
tion in the Federal District Court for the Middle District of 
Alabama was invoked under 28 U.S.C. sec. 1343(3) ; the ac­
tion was authorized by 42 U.S.C. sec. 1983. Both these stat­
utes give Federal Courts authority to afford redress to plain­
tiffs who have been deprived of constitutional rights under 
color of state law. Other statutes were also cited in the com­
plaint. Petitioners claim that they have lost the right to vote 
in Tuskegee elections solely on account of race in violation of 
the Fifteenth Amendment to the United States Constitution, 
and further, that they have been deprived of tangible and in­
tangible benefits of municipal residence solely on account of 
race in violation of the Fourteenth Amendment. In addition to 
the facts mentioned in the first paragraph, above, petitioners 
pointed to various other actions by the State of Alabama and 
to news articles which confirmed that the obvious effect and 
purpose of Act 140 was to discriminate against Negroes.

Respondents (defendants-appellees below) moved to strike 
various portions of the complaint and also to dismiss the ac­
tion for failure to state a claim and for lack of jurisdiction. 
The District Court denied the motion to strike, but granted 
the motion to dismiss on both of the grounds urged. The Dis­
trict Judge refused to look to the effect and purpose of Act 
140, maintaining that the state has traditionally had power to 
do anything it wanted with municipal boundaries without 
hinderance from the Federal Constitution.

On appeal to the Fifth Circuit, the court affirmed with

1 31



one concurring opinion and one dissent. The opinion of the 
court stated that Act 140 was “constitutional on its face,” 
again refusing to look to the effect and purpose of the statute. 
The dissent felt that there was no reason for the court to be 
“blind,” and would, therefore, look beyond the “face” of the 
statute to the realities of the situation. The dissent further 
asserted that state power in any area is always subject to 
limitation by the Federal Constitution. The concurring opin­
ion was based on the assumption that this case presented prob­
lems too difficult for Federal Courts to handle.

Petitioners appeal from the judgment dismissing the ac­
tion and request a reversal and remand to the District Court 
for a consideration of the merits of the case.

SUMMARY OF THE ARGUMENT

The State of Alabama cannot pass laws which are im­
mune from the limitations of the United States Constitution. 
The “plenary power” of a state to act is only a legal conclusion 
that it has not infringed upon constitutional rights.

Nor can a state hide behind the “face” of a statute. The 
effect and purpose of Act 140 must be utilized as the normal 
tools of interpretation. This is especially true, given the 
nature of the statute in this case. Unlike most statutes, 
Act 140 does not lay down a broad standard to be applied 
to specific cases. It directs a specific act to be done and then 
its function is completed. As such, it is like an act of ad­
ministration which is always scrutinized in terms of its ef­
fect and purpose.

A glance at the effect of Act 140 will show that it is dis­
criminatory. The shape of the new city cannot be explained in 
any other way. From this effect and from other facts it ap­
pears that no other purpose than to discriminate can be attrib­
uted to the Alabama legislature. In the absence of some valid 
purpose, there can be no reason to allow the state discretion 
to exclude all the voters of a city whose skin is black.

The exclusion of the plaintiffs from Tuskegee deprived 
them of their residence in the city, a prerequisite to voting 
in municipal elections. Just as a refusal to register Negroes

31 2



because of their race violates the Fifteenth Amendment, so 
does this refusal by the state to let the plaintiffs live in 
Tuskegee. Furthermore, plaintiffs have lost tangible munici­
pal benefits and have been stigmatized as a class unsuited to 
participate in political life, in violation of the equal pro­
tection clause of the Fourteenth Amendment.

No problems in this case can match the difficulty the 
court faced in Colegrove v. Green 328 U.S. 549 (1946). The 
problem there would have required the court to enter the diffi­
cult area of balancing the traditional party interests that go 
into a state gerrymander. Alabama’s use of a constricted 
political boundary cannot make this case resemble Colegrove 
v. Green, supra. Race, not politics, is at the core of Act 
140. Absent a problem of the dilution of the vote, the court 
does not have to resolve a dispute between political interests. 
No dilution occured here; plaintiffs cannot vote at all in 
Tuskegee.

Nor can the defendant claim that the difficulties of equit­
able relief are formidable. The administration of the old 
four-sided city was not too burdensome on July 14, 1957. 
A return to that status is all plaintiffs ask. The “School 
Segregation Cases,” 347 U.S. 483 (1954), presented far more 
dffiiculty than this case, and yet the Federal Courts did not 
refrain from protecting the constitutional rights of the Negro 
plaintiffs. If there is any fear that defendant will disobey 
an adverse decision and create public unrest, the solution 
lies in contempt proceedings and not in withholding from 
plaintiffs the relief they deserve. Federal Courts should not 
be intimidated.

Nowhere else can plaintiffs get relief. Neither Congress 
nor Alabama as a polity will remedy this particular wrong. 
Failure to grant the requested relief will mean that Alabama 
will have successfully prevented the Negro plaintiffs from 
attaining political leadership. Only this Court can give plain­
tiffs the chance to attain political maturity. That the effort 
may fail is apparent. That the effort must be made is the sub­
stance of plaintiff’s appeal.

3 31



ARGUMENT

I. ACT 140, BY EXCLUDING PLAINTIFFS FROM TUS- 
KEGEE, VIOLATES THE FOURTEENTH AND FIF- i 
TEENTH AMENDMENTS BECAUSE ITS SOLE EF­
FECT AND PURPOSE IS TO DISENFRANCHISE 
NEGROES AND TO DEPRIVE THEM OF MUNICIPAL 
BENEFITS.

A. Alabama’s power to alter municipal boundaries is 
subject to Federal Constitutional restraints.

Judge Jones, in the Court of Appeals below, seems to find 
merit in the argument that the area of state power over muni­
cipal corporations is one in which the Federal Constitution 
ceases to operate as a limitation on permissible state action, 
Gomillion v. Lightfoot, 270 F.2d 594, 595-97 (5th Cir. 1959), 
The argument is untenable.

Unquestionably, the Alabama legislature has discretion to 
change the boundaries of her municipal corporations within 
the state. But at the same time, the state’s power over its 
local affairs must be limited by the guarantees of the four­
teenth and fifteenth amendments. Cooper v. Aaron, 358 U.SJ 
1, 19 (1958). The District Court and the Court of Appeals 
cite Hunter v. City of Pittsburgh, 207 U.S. 161 (1907); 
Laramie v. County of Albany, 92 U.S. 307 (1875, and Mi 
Pleasant v. Beckwith, 100 U.S. 514 (1879) as standing for 
the proposition that state power in this area is “plenary” and 
“unrestrained by the Federal Constitution.” Hunter v. Cits' 
of Pittsburgh, supra at 179 (dictum). An examination of 
these cases will show, however, that in each of them the state 
action in question was expressly found by the court to be di­
rected toward an end not prohibited by the Constitution, 
Thus, in fact, these cases stand contrary to the proposition 
for which they were cited. They recognize that state power 
is always subject to constitutional limitations.

4 !l



B. The constitutionality of Act HO must be determined 
by looking beyond the express words of the Statute to 
its effect and purpose.

Judge Jones’ second reason for affirming the dismissal of 
this action was that Act 140 is not unconstitutional “on its 
face,” and that courts cannot inquire beyond the face of stat­
utes to test their constitutionality. Gomillion v. Lightfoot, 270
F.2d 594, 598 (5th Cir. 1959).

The Supreme Court, however, has not hesitated to look 
beyond the bare words of state statutes in order to test their 
constitutionality. Constitutional validity has been held to be 
a question of practical operation and effect, as well as one of 
textual explication. See Lane v. Wilson, 307 U.S. 268 (1939); 
Yick Wo v. Hopkins, 118 U.S. 356 (1886). The scope of the 
court’s inquiry has been

. . .  not merely whether those rights have been denied in ex­
press terms but also whether they have been denied in sub­
stance and effect. We must review independently both 
the legal issues and those factual matters with which they 
are commingled. Oyama v. California, 322 U.S. 633, 636 
(1948).

The case of Yick Wo v. Hopkins, supra, illustrates this 
point. In that case, judicial recognition of extrinsic facts 
caused an ordinance, innocuous on its face, to be held uncon­
stitutional. The ordinance purported to regulate laundries. 
It provided that a license must be obtained to operate a laundry 
unless the laundry was located in a building made of brick or 
stone. On its face, this appeared to be an appropriate regula­
tion as a safety measure. But, in fact, the ordinance operated 
so as to discriminate against persons of Chinese descent.

The willingness of the Court to look to effect and purpose 
when an administrator acts is a persuasive analogy for this 
case. Act 140 is only a direction to administrators to per­
form certain acts. It allows for no discretion in its applica­
tion. In Smith v. Texas, 311 U.S. 128 (1940), the effect of 
no Negroes appearing on grand jury lists was sufficient to 
Prove a denial of equal protection to a Negro defendant. No

31
5



other reason except purposeful discrimination could account 
for this effect, given the administrator’s action. Had Alabama 
given discretion to administrators to remap Tuskegee and 
they had produced the twenty-eight sided figure present in this 
case, the Smith principle would apply and the effect of the 
administrators acts would be used to determine their con­
stitutionality. Surely the Alabama legislature cannot prevent 
this court from making natural inferences from the effect of 
its statutes, merely because the administrative act is in the 
form of a statutory command.

The doctrine of “constitutional on its face” may be prop- 
rerly applied when some subsequent occurence may vitiate the 
possible unconstitutional effects of the statute. Thus, in 
Shuttlesworth v. Birmingham Bd. of Education, 162 F. Supp. 
372 (N.D. Ala. 1958), aff’d per curiam 358 U.S. 101 (1958), the 
court presumed that the statute could be administered in a con­
stitutional manner. Similarly, in Harrison v. N.A.A.C.P., 360 
U.S. 167 (1959), a statute was considered susceptible of a 
judicial construction which would prevent its unconstitutional 
effects. In the instant case, however, the discriminatory 
effect of the statute can be alleviated neither by administra­
tion nor interpretation. The effect complained of here stems 
from the way in which the boundaries of Tuskegee were1 
changed by the Statute. Act 140 cannot be administered or in­
terpreted so as to change the boundaries in any other way.

C. The sole effect and purpose of Act HO is discriminate 
against plaintiffs. i

A  comparison of the old with the new boundaries of Tuske­
gee discloses the change from a simple square-shaped municip­
ality to that of a complex “sea-dragon,” intricately constructed, 
of twenty-eight sides. An examination of the new population 
of Tuskeegee shows that all but four or five of the qualified 
Negro voters have been excluded. (R.5). By contrast no white 
residents have been affected. No reason was offered for this 
action in the act, itself. Act 140 remedies no mischief nor does 
it purport to do so. There is no other rational purpose consis­
tent with this effect other than to exclude Negroes.

In addition, the legislative background and popular un­

6 Si



derstanding rebut any presumption that the legislature did 
not purposefully discriminate against plaintiffs. See Davis 
v. Schnell, 81 F. Supp 872 (S.D. Ala. 1949), aff’d per curiam 
886 U.S. 933 (1949). (R.5-7, 10-13). Defendants answer that 
this evidence as to purpose is “immaterial” and “impertinent.” 
(R.14-15). Certainly, such evidence is not necessary to prove 
the plaintiff’s case. It is the defendants who should come 
forward with some evidence of a valid legislative purpose to 
explain the otherwise obvious discriminatory effect. Unless 
such a valid purpose can be shown, the last reason for allow­
ing the State of Albama to exercise its discretion ceases. For 
unless the purpose of state action is related to some valid local 
interests, there is no remaining reason to defer to the state’s 
competence to manage its local affairs.

In fact, plaintiff’s complaint demonstrates that defendants 
cannot establish any such valid purpose. The Negro vote in 
Tuskegee had grown to forty per cent of the total number of 
those registered to vote in the city. (R.5). The growth of 
Negro voting strength in the city, viewed against the undis­
guised determination of Southern statesman to preserve white 
political dominance, strongly suggests that the result achieved 
was not merely fortuitous, but rather a purposeful attempt to 
remove the Negroes from Tuskegee.

Seen in its larger context, Act. 140 emerges as part of a 
continuing effort to render Negroes politically impotent in 
Alabama. In 1951, Alabama abolished “one-shot,” or cumula­
tive voting, thus preventing minority representation. For a 
year and a half before the passage of Act 140, no Board of 
Registrars existed for Macon County. (R. 5-6). Since almost 
all white persons qualified to vote in the county have already 
registered, whereas thousands of Negroes with the requisite 
qualifications have not yet registered, this device maintained 
the number of voters at a constant figure, entrenching the 
white majority. Act. 140 merely embodies the old theme in a 
new setting. The change in setting does not make the theme 
any less discriminatory.

31 7



D. Act 1U0 violates the Fifteenth and Fourteenth Amend­
ments because the exclusion of plaintiffs from Tuske- 
gee renders them ineligible to vote in the city solely 
on account of race.

The preceding section discussed the discriminatory na­
ture of the Statute in issue. The question here is whether dis­
enfranchisement by discriminatory exclusion from Tuskegee 
is a violation of the Fifteenth and Fourteenth Amendments. 

Section one of the Fifteenth Amendment provides:

The right of citizens of the United States to vote shall 
not be denied or abridged . . .  by any state on account 
of race, color, or previous condition of servitude. U.S. 
Const, amend. XV, sec. 1.

Its prohibitions extend to the right to vote in municipal elec­
tions. Myers v. Anderson, 238 U.S. 368 (1915).

Residence is prerequisite to voting in municipal elections. 
Thus, plaintiffs are disqualified from voting in Tuskegee elec­
tions because Act 140 excluded them from residence in the 
city solely on account of race.

Where Negro citizens have been disenfranchised by the 
discriminatory withdrawal of a prerequisite to voting, the 
Supreme Court has struck down such legislation. For exam­
ple, other states have tried, unsuccessfully, to deprive Negroes 
of their vote by impeding registration or by requiring a liter­
acy test. Lane v. Wilson, 307 U.S. 268 (1939) ; Guinn v. 
United States, 238 U.S. 347 (1915).

The rationale of the above decisions applies to the case 
at bar. Registration or a literacy test may be required in 
order to qualify a person to vote in much the same way as 
residence may be a prerequisite. Cf. Harris v. McMillan, 186 
Ga. 528, 198 S.E. 250 (1938). While all such prerequisites to 
voting are in the state’s discretion, they cannot be withdrawn 
from a citizen or required of him solely on account of his 
race. Since the prerequisite of residence was withdrawn from 
plaintiffs due to the fact that they are Negroes, they have 
been deprived of their right to vote in municipal elections in 
violation of the Fifteenth Amendment.

8 31



Similarly, under the equal protection clause of the Four­
teenth Amendment, denials of voting prerequisites solely on 
the basis of color have been proscribed. Thus, to close mem­
bership in a political party to Negroes, thereby depriving 
them of the vote in primary elections, has been held to be a 
denial of equal protection. Nixon v. Condon, 286 U.S. 78 
(1932).

The ingenious manner in which this Statute achieves its 
discriminatory ends does not successfully veil the familiar 
nature of the attempt, nor does it render these objectives any 
more valid. Justice Frankfurter has w ritten: “The [Fifteenth] 
Amendment nullifies sophisticated as well as simple minded 
modes of discrimination.” Lane v. Wilson, 307 U.S. 268, 275 
(1939). Were this not so, states could do indirectly what they 
cannot do directly and the Fifteenth and Fourteenth Amend­
ments would be impotent.

E. Act 1U0 violates the equal protection clause of the 
Fourteenth Amendment because the plaintiffs have 
been deprived of tangible and intangible municipal 
benefits solely on account of race.

Exclusion from Tuskegee has serious consequences for 
plaintiffs, since they are denied thereby the services and ben­
efits of city life. They have lost the services of police protec­
tion and street improvements. (R.7). Even more important, 
they have lost the benefits of social and political growth 
through participation in municipal affairs.

Of course, plaintiffs have no absolute right to the bene­
fits of living in Tuskegee, but they do have a right not to 
lose them through discriminatory state action. Loss of bene­
fits because of racial hostility is a denial of equal protec­
tion of the laws, a right guaranteed by the Fourteenth Amend­
ment. Takahashi v. Fish and Game Comm’n., 334 U.S. 410 
(1948); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Tussman 
and tenBroek, The Equal Protection of the Laws, 37 Calif. L. 
Rev. 341, 358 (1949). Plaintiffs, in the above cases, had no 
right to carry on their businesses free from state controls like 
licensing. Equal protection does not prohibit classifications to 
further the public interest. But classifications based on race

31 9



are forbidden and must fall as repugnant to the equal protec­
tion clause of the Fourteenth Amendment.

Furthermore, segregation of Negro plaintiffs from Tuskegee 
necessarily brands them as a class of persons somehow unsuited 
to participate in its political and social affairs. To so stig­
matize a race is to deny that they possess the capacity to be 
first-class citizens.

Participation in political affairs is not just a benefit to 
be conferred on a person at the whim of a state. It is not 
an overstatement to say that such participation by all citi­
zens is the major premise of a democracy. When one man 
does not vote in an important election, many consider that he 
has defaulted in his responsibility as a citizen. When a whole 
race is forbidden the vote, the only conclusion can be that 
they lack the capacity to intelligently exercise that responsi­
bility.

This form of second-class citizenship is as much a denial 
of equal protection of the laws as was the second class citizen­
ship proscribed in Brown v. Bd. of Education, 347 U.S. 48B 
(1954). To say that a man can be properly educated but that 
he cannot take part in the political life of the community can 
hardly have been the intention of the unanimous court which 
decided the Brown case, supra. It its against just such techni­
ques of racial subordination that the Fourteenth Amendment 
stands as a bulwark.

II. FEDERAL COURTS HAVE “COMPETENCE” TO DE­
CIDE THIS CASE, BECAUSE AN ADJUDICATION 
THAT PLAINTIFFS HAVE LOST THE RIGHT TO 
VOTE SOLELY ON ACCOUNT OF RACE, DOES NOT 
REQUIRE THAT BALANCING OF POLITICAL IN­
TERESTS INHERENT IN A CASE INVOLVING THE 
DILUTION OF A VOTE THROUGH REDISTRICTING,

Judge Wisdom thinks the instant case must be dismissed, 
even if it be shown that Act 140 violates the Constitution, 
because he feels that “Colegrove v. Green and South v. Peters 
control this case.” Gomillion v. Lightfoot, 270 F.2d 594, 615 
(5th Cir. 1959) (concurring).

Colegrove v. Green, 328 U.S. 549 (1946) (hereinafter

10 31



referred to as Colegrove), and South v. Peters, 339 U.S. 276 
(1950) (hereinafter referred to as South v. Peters), are both 
cases concerning the constitutionality of the malapportion­
ment of legislative districts. In Colegrove, the plaintiffs ob­
jected that the unequal Congressional districting of the state 
so diluted their vote as to deny them equal protection of the 
laws. In South v. Peters, plaintiffs sought to enjoin the use of 
the Georgia county-unit system, by which the larger counties 
were represented far less than their proportion of the popula­
tion, on the ground of violation of the Fourteenth Amendment 
and of the provision of the Seventeenth Amendment that Sena­
tors be “elected by the people.” The opinion in South v. Peters 
is per curiam, resting upon the authority of Colegrove.

Although Judge Wisdom mentions both cases as control­
ling, his emphasis is on Colegrove. The rationale of that case 
is twofold. The one which Judge Wisdom considers especially 
relevant in its application to the case at bar is that of the con­
curring opinion of Mr. Justice Rutledge, Colegrove, at 564, 
which stresses the wisdom of withholding equity relief where 
such relief will raise problems more formidable than those it 
will solve. The other rationale is contained in the controlling 
opinion by Mr. Justice Frankfurter, Colegrove, at 549, and 
declares that Federal Courts have no “competence” to adjudi­
cate cases requiring a balancing of political interests for their 
resolution. While Judge Wisdom does not in so many words 
urge this latter rationale as a basis for dismissing the present 
case; nevertheless, he seems to urge it implicitly in his fre­
quent use of the word “political” and his expressions of doubt 
as to the “competence” of the Federal Courts to deal with the 
problems presented by this case. Since the question of the 
“competence” of the courts to adjudicate logically precedes 
the question of the wisdom of granting relief, the two ration­
ales are discussed in that order (the former in Part II and the 
latter in Part III), although Judge Wisdom appears to con­
sider the equity question the more important of the two.

Mr. Justice Frankfurter felt that the court in Colegrove 
lacked a standard by which to solve the problems presented to 
it. He felt that the factors of “party contests and party in­
terests” made the case unsuitable for judicial determination. 
Colegrove, at 554. His opinion rests on the proposition that

31 1 1



the plaintiff’s right to vote is not just a matter of numerical 
equality. The weighing of such “party interests” as Republi­
can vs. Democrat, urban vs. rural, farm vs. labor, city vs. 
suburb, and finance vs. big business all play their part. He 
seems to be afraid that to decide Colegrove would require the 
court to sit as a legislature in Illinois, receiving testimony 
from all the various lobbying interests in the state, in order 
to ascertain whether or not the vote was diluted fairly. He 
doubts that a court has standards by which to reconcile such 
a dispute concerning “party contests” which have tradition­
ally been left to the political forum. Whether or not Mr. 
Justice Frankfurter’s reasoning in Colegrove was persuasive 
on the facts of that case, the reason for the court’s “incompe­
tence” there are not present in this case.

The first distinguishing characteristic is that the events 
in Tuskegee do not involve any of the usual valid factors of 
“party politics.” Race alone was the determinative factor of 
Act 140 and race alone cannot be considered a valid basis for 
the dilution of a vote in the light of the Fourteenth and 
Fifteenth Amendments. The second distinguishing factor in 
this case is that there is a total deprivation of the right to 
vote in city elections and not merely a dilution of the weight 
of the vote.

Because this case concerns the total deprivation of a 
right to vote solely on account of race, there is no problem 
of finding a standard on which to make a decision. Certainly 
the fact that changing a political boundary is the device used 
to achieve disenfranchisement cannot obscure the fact that 
this is no less a case of discriminatory deprivation of a vote 
than the refusal to register a Negro. Without both dilution 
and “party politics” the court is not called upon to make that 
delicate balancing of political factors among themselves re­
quired to evaluate the situation in Colegrove. In that case, 
it is impossible to tell whether any right to vote has been 
affected without making such political judgments. In the case 
at bar, it is clear that a vote has been lost. Consequently, 
the court can focus on the one problem of discrimination. 
Judge Wisdom’s failure to distinguish between Negroes, and 
Democrats and Republicans is due to his failure to realize 
this facet of the problem. Discrimination has always been a

1 2 31



question with which Federal Courts have dealt. Lane v. Wil­
son, 307 U.S. 268 (1939).

Judge Wisdom’s conception of “incompetence” to deal 
with this case is based on the fear that Alabama will pass new 
laws making boundary changes, perhaps excluding some 
whites as well as Negroes. He does not believe that the court 
can handle such a situation. The difference between this con­
ception of “incompetence” and that of Mr. Justice Frank­
furter will appear from an example.

If one of the voting requirements in a state were proof 
of identity when registering, this would be a valid political 
requirement. However, its administration might result in the 
mixture of the valid factor with invalid racial ones. Byrd v. 
Brice, 104 F. Supp. 442 (W.D. La. 1952), aff’d, 201 F.2d 664 
(5th Cir. 1953). Cf. Yick Wo v. Hopkins, 118 U.S. 356 (1886). 
The difficulty in such a case is to decide if the discrimina­
tion against Negroes is the predominant factor in the adminis­
trator’s action. Of course, borderline cases will be difficult 
to handle. The omission of twelve whites would probably pre­
sent as small a problem as the “twelve-day” registration dead­
line in Lane v. Wilson, supra. The court in Lane v. Wilson, 
supra, did not consider the problem too difficult for adjudica­
tion because a “three-hundred-day” deadline might have been 
written into the statute and might have posed more difficul­
ties.

Judge Wisdom’s concept of “incompetence” is based on 
the difficulty of future borderline cases of total deprivation of 
the vote. For that reason, he would refuse to decide this 
clear-cut case. In Niemotko v. Maryland, 340 U.S. 268, 285 
(1951) (Frankfurter, J., concurring), Mr. Justice Frank­
furter indicated his attitude toward the possible difficulty of 
laying down a standard to solve all future cases:

A mljN^cipal standard may be found inadequate without 
the necessity of explicit dilineation of the standards that 
would be adequate, just as doggerel may be felt not to 
be poetry without the need of writing an essay on what 
poetry is.

Unless courts heed Mr. Justice Frankfurter’s words in Nie-

31 13



motko v. Maryland, 340 U.S. 268 (1951), they will never decide 
clear-cut cases, for clarity in one case must shade off into the 
difficulty of a borderline case just as most important questions 
in the law are a matter of degree.

Nor are Federal Courts as powerless to deal with subse­
quent attempts to evade their decisions as Judge Wisdom sug­
gests. Compare Guinn v. United States, 238 U.S. 347 (1915), 
with Lane v. Wilson, 307 U.S. 268 (1939). It is true that a 
court could never remap Tuskegee; it need not try  any more 
than it tried to revamp the voting system of Oklahoma in the 
Guinn case. The court should declare the law unconstitutional 
and leave it to Alabama to act again if it wishes. Mr. Justice 
Frankfurter has said in another context: “It is not for this 
court to formulate with particularity the terms of a permit 
system which satisfy the Fourteenth Amendment.” Niemotko 
v. Maryland, supra at 285.

There is, indeed, no reason to shy away from the border­
line cases which Judge Wisdom envisions, since they do not 
raise the difficulty of weighing and evaluating political in­
terests. Even where racial and political factors combine as 
in South v. Peters, the problems may be too difficult for a 
court. Not only must the court balance the weight of racial 
factors against the sum total of all the valid political inter­
ests, as in all difficult cases involving discrimination, but 
it must decide if the dilution is valid. This latter task em­
broils the court in the weighing of political factors which it 
seeks to avoid. Nonetheless, the presence of racial consid­
erations in South v. Peters, brings into play factors with 
which courts have always dealt. This Court’s dismissal in 
South v. Peters by refusing to exercise its equity discretion 
rather than for lack of “competence” to adjudicate, can be 
explained on that ground.

The cases discussed thus present a spectrum. Colegrove 
at one end would place courts in the position of the Illinois 
legislative committee on gerrymandering. South v. Peters 
gives courts something to work with by injecting racial factors 
but does not eliminate the weighing of political interests. Once 
there is no dilution, however, as in Judge Wisdom’s borderline 
cases, the problem is manageable, however difficult it may seem 
in some situations. This case sits at the opposite end of the

31 14



spectrum from Colegrove. It is a clear-cut case of “doggerel” 
and the possibility of a future attempt by Alabama to circum­
vent an adverse decision should not dissuade Federal Courts 
from deciding this dispute.

III. FEDERAL COURTS OF EQUITY SHOULD EXERCISE
THEIR DISCRETION TO PRESERVE PLAINTIFF’S
CONSTITUTIONAL RIGHTS.

A. The effect of an injunction on State administrative 
processes would be well within the traditions of Fed­
eral action in State racial discrimination cases.

Judge Wisdom is basically concerned with the problem that 
an equity court will face, because of an “ . . . intrusion of 
national courts in the polity of a state.” Gomillion v. Light- 
foot, 270 F.2d 594, 612 (5th Cir. 1959) (concurring). He 
agrees with Justice Rutledge in Colegrove at 566, that the 
“cure” of federal action is worse than the “disease” of state 
discrimination. Insofar as he uses the term “political” to 
refer to this problem of Federal action in an area affecting 
the “exercise of a political function historically lodged with 
the state.” Gomillion v. Lightfoot, supra at 615, the problem 
is the one faced by a court of equity and is not the problem 
of “party politics” discussed in Part II. This section will 
demonstrate that in cases of racial discrimination like the 
present one federal courts have traditionally intervened and 
that state action in this case is not of a type historically 
immune from a Federal equity court’s decree. Section IIIB 
will show that plaintiff’s appeal to equity is an especially ur­
gent one.

Federal officials will not be called upon to supervise muni­
cipal affairs, as was the fear in Giles v. Harris, 189 U.S. 475, 
488 (1903). Traditional methods of individual complaint and 
contempt proceedings would be used.

Enjoining the defendants from enforcement of Act 140 
will not pose onerous burdens on the administration of city 
affairs. If Act 140 is unconstitutional, the city will return 
to its old boundary of July 14, 1957. See Stiglitz v. Schardieh, 
239 Ky. 799, 809, 40 SAV.2d 315, 320 (1931) declaring un­

31 15



constitutional Ky. Acts 1930, eh. 147, p. 442 and ch. 148, p, 
462. There would only be a return to a well-settled pattern 
of municipal government within the four-sided geographic unit 
that was recently Tuskegee, which must still be familiar to 
most or all city officials. If anything is administratively dis­
ruptive for Tuskegee officials, it must be the difficulty in 
knowing just where their new twenty-eight sided begins and 
ends.

The problems of administration are likely, therefore, to 
be no different from requiring city officers not to discrimin­
ate against Negroes within a city which has always had the 
same boundaries. There is no requirement of any change in 
the overall pattern of administration and consequently, this 
does not have problems analogous to an election at large as in 
Colegrove.

The Court is not being asked, however, to grant relief 
ordering the cessation of all discrimination in Tuskegee. The 
return to the prior city boundaries would only mean that 
municipal officials would not be allowed to discriminate against 
these plaintiffs as to voting, police protection and other muni­
cipal benefits which they received before. The District Court 
would frame the appropriate decree.

Federal equity courts have never been reluctant to require 
state or city officials to cease various discriminatory acts, 
Examples of injunctive enforcement of Negro rights in a few 
representative types of municipal activities follow: Williams 
v. Kansas City, 205 F.2d 47 (8th Cir. 1953), cert, denied, 346 
U.S. 826 (1953) (swimming pool); Gilmore v. City of Mont­
gomery, 176 F. Supp. 776 (M.D. Ala. 1959) (public parks); 
Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala. 1956), aff’d per 
curiam, 352 U.S. 903 (1956) (public busses); Holmes v. City 
of Atlanta, 124 F. Supp. 290 (N.D. Ga. 1954), aff’d, 223 F.2d 
93 (5th Cir. 1955), modified per curiam, 350 U.S. 879 (1955) 
(golf courses).

In the vital area of voting rights, the Supreme Court has 
recently handed down its decision in the case of Terry ft 
Adams, 345 U.S. 461 (1953). The plaintiffs there had requested 
declaratory and injunctive relief to compel the county officials 
of the Jaybird Association to register Negro voters. Recog­
nizing that the right to vote applied to community, state and

16 31



national elections, the court granted the request for injunc­
tive relief and emphasized that this case was part of a long 
tradition of Federal protection of Negro voting rights. The 
Court did not anticipate any difficulty in enforcing the de­
cree and remanded to the district court to grant the ap­
propriate relief.

The only difference between this case and the preceding 
ones is that here Alabama has managed to lump together a 
number of discriminatory acts at one time. Instead of depriv­
ing Negroes of each municipal right separately while they 
were citizens, Alabama has simply removed them from the 
city. Brown v. Bd. of Education, 347 U.S. 483 (1954) and the 
subsequent decision concerning the relief to be granted. Brown 
v. Bd. of Education, 349 U.S. 294 (1955), are the Supreme 
Court’s response to such a problem. Of course, difficulties aris­
ing from the number of people and events with which the 
Brown case dealt far exceeds any problem faced by the court 
in this case; Tuskegee is a city of only 6700 residents. (R.13). 
Yet in that far more complicated situation, the Court felt that 
where constitutional rights were involved the defendants 
would have the burden of showing that there should be any 
delay in the granting of equitable relief. Brown v. Bd. of 
Education, supra, 349 U.S. at 300. The Court noted the tradi­
tional flexibility of equity in granting relief and remanded to 
the lower court to frame the appropriate decree. The attitude 
of Federal equity toward racial discrimination evidenced by 
the Brown case indicates that the number of acts to be coped 
with is no barrier to injunctive relief when the type of dis­
criminatory act is within the usual province of equity. That 
policy should prevail in this case where the difficulties of en­
forcement are far less formidable.

Of course, any possible disruptive effect due to the de­
fendant’s willful disobedience is no reason for this court to 
withhold relief. Judge Wisdom’s suggestion that equity should 
uot act because relations between Federal and State govern­
ments are already strained should be rejected by this court. 
Gomillion v. Lightfoot, 270 F.2d 594, 615-16 (1959). Strained 
relations brought about by the defendant’s themselves cannot 
be a reason for equity to deny the innocent plaintiffs the 
remedy they seek. Cooper v. Aaron, 358 U.S. 1, 16 (1958). In

31 17



that case, the Court explicitly assumed that some residents 
of Little Rock might suffer from a decree ordering desegrega­
tion. But the Court asserted that nothing less than the rule of 
law was at stake if Federal courts were to deny plaintiffs pro­
tection of their constitutional rights because the violators of 
those rights might resort to unruly or unlawful means.

B. The need for equitable relief is especially urgent 
because this Court alone can give plaintiffs the op­
portunity to attain political maturity.

Even if this case posed administrative problems more dif­
ficult than those which Federal equity courts usually under­
take, special considerations in this case make the need for 
equitable relief especially imperative.

None of the other organs of the political process can pro­
vide plaintiffs with a remedy. Congress will not and cannot 
be expected to take the time to legislate concerning these 
more subtle forms of discrimination. Federal registrars or 
referees will be of no avail if Alabama can successfully re­
move Negro citizens from the political unit in which they 
could have registered.

The normal political processes within Alabama are hardly 
adequate to restore the plaintiff’s loss. While Illinois did 
remedy the inequalities noted in Colegrove, 111. Laws 1947, 
p. 879, Alabama will not pass legislation to help these plain­
tiffs.

Not only is this Court the only possible means for plain­
tiff to get relief, but the form of discrimination in this 
case is especially noxious. Judge Wisdom says that in Cole- 
grove there was more reason to intervene than here since Fed­
eral elections were involved. Gomillion v. Lightfoot, 270 U.S. 
594, 618 (1959). That statement again reveals Judge Wis­
dom’s assumption that Negroes are no different from Republi­
cans and Democrats. The Negro already has support in the 
United States legislature. If Alabama prevented Negroes from 
voting in a federal election, there would be voices in Congress 
to speak in their behalf. This case involves the deprivation of 
a right to vote in elections in which that vote is absolutely nec­
essary if the voter is to obtain governmental support for his

1 8
31



interests.
Furthermore, this is not the usual case of a Negro who 

cannot register in a city. This is the first case in which 
Negroes in a southern community were shunted out of the 
city at the moment when they were about to gain political 
leadership. If Alabama is to succeed in this case, it will have 
successfully deprived Negro citizens of their rights just as 
they were taking the first step towards political growth. 
Responsible political leadership is a slowly acquired tra it 
often beginning at the most immediate level of city office. It 
is vital to the future political maturity of the Negroes of 
Tuskegee and throughout the South that they not be severed 
from political life at the very threshhold of their development. 
The Supreme Court is an integral part of the political pro­
cess of this nation. It, alone, can guarantee to the plaintiffs 
these vital constitutional rights.

31 19



CONCLUSION

For the reasons given, Petitioners request the Court to 
reverse the judgment below dismissing the complaint for 
lack of jurisdiction and failure to state a claim.

Petitioners further request that the case be remanded to 
the District Court with the following instructions:

(1) To declare Act 140 unconstitutional if the allegations 
of the complaint are found to be true.

(2) To frame and enter an appropriate decree, enjoining 
Respondents from enforcing Act 140 if it is declared unconsti­
tutional.

Respectfully submitted,

CHARLES H. BARON

WILLIAM D. POPKIN
Attorneys for the Petitioners

HENRY M. diSUVERO 
RALPH A. MUOIO 
ROBERT H. NEUMAN 
CARL L. TAYLOR 
THOMAS A. ZIERK

Of Counsel on the Brief

2 0
51



In %  Bnpxmx (Enurt nf %  
luiteft States nf Arnw

Spring Term 1960

No. 3260

C. G. GOMILLION, ET AL., Petitioners

v.

PHIL M. LIGHTFOOT, as Mayor of the City of Tuskegee, 
ET AL., Respondents

BRIEF FOR THE RESPONDENTS

CRAIG M. McATEE 
ROBERT W. SCRIVNER

Attorneys for the Respondents

DONALD S. GONSON 
CHARLES R. KINNAIRD 
ROBERT S. SMITH 
GWYNNE H. WALES 
JEROME P. WEISS 
LOREN A. WITTNER

Of Counsel on the Brief

BEST PRINTERS, INC., BOSTON, MASS.



TABLE OF CONTENTS

CITATIONS.............................................................................

STATEMENT OF THE C A S E ............................................

SUMMARY OF ARGUMENT .......................... .......... ..

ARGUMENT ..........................................................................

I. PETITIONERS MAY NOT CHALLENGE THE
VALIDITY OF ACT 140 SINCE THEY HAVE
NO CONSTITUTIONAL RIGHT TO REMAIN
CITIZENS OF TUSKEGEE...........................

A. The Alabama Legislature Has Absolute Dis­
cretion To Determine The Boundaries Of Its 
Political Subdivisions.................................... ..

B. Citizens Of A Municipality By A Simple Ma­
jority Of Popular Vote Can Change Muni­
cipal Boundaries............................................ ..

C. Absolute Discretion of State Legislatures Has
Been Recognized Even Where Contract 
Rights Are Affected........................................

D. The Constitutional Validity of Act HO Cannot
Be Made To Depend Upon Legislative Intent 
Or Upon The Effect Of The Act Without The 
Demonstration Of A Prior R ig h t ..................

II. ACT 140 DOES NOT INFRINGE ANY OF PE­
TITIONERS’ R IG H T S..........................................

A. No Property Rights Have Been Denied Peti­
tioners By Act HO ............................................

B. Whatever Rights Petitioners Have To Belong
To A Municipality And To Take Part In Its 
Functioning Have Not Been Im paired ..........

ii

1

2

4

4

4

8

8

10

14

14

14

S2
i



C. Act 1U0 Does Not Deprive Petitioners Of A 
Right To Vole In Contravention Of The F if­
teenth Amendment . . ......................................  15

III. EVEN IF THE COURT FINDS THAT A FED­
ERAL RIGHT HAS BEEN VIOLATED, IT 
SHOULD DENY R E L IE F .....................    17

A. This Case Poses Political Issues Not Within
The Traditional Equity Powers Of The Fed­
eral C ourts .............................................   17

B. Delimitation Of The Boundary Of A Polity Is
A Non-Judicial Or “Political Question” Under 
The Theory Of Separation Of Poivers..........  19

C. Following The Colegrove Doctrine Of Equit­
able Self-Limitation, This Court Should Not 
Grant Discretionary Relief In The Case At 
B a r ......................................................................20

1. The “disease”, or deprivation of voting
rights complained of, is less grave than in 
Colegrove......................................................21

2. There is no effective “cure” for the grav­
amen of petitioners’ complaint.................. 23

D. Federal Courts Should Abstain From Exer­
cising Jurisdiction To Avoid A Premature 
Adjudication Of A Constitutional Issue . . . .  27

E. Equitable Relief Should Not Be Granted In
This Case Since Congress Is Now Moving To 
Insure Petitioners’ Remedy In The State Leg­
islature ..........    28

CONCLUSION..........................................................................30

l i
32



CITATIONS

CASES

Albertson v. Millard, 345 U.S. 242 (1953) ...................... ... 27
American Bemberg Corp. v. City of Elizabethton, 180 Tenn.

373, 175 S.W.2d 535 (1943) .............................................. 9
Arizona v. California, 283 U.S. 423 (1931)..........................  11
Bedel v. Loomis, 11 N.H. 9 (1840)............................ .. 20
Benson v. United States, 146 U.S. 325 (1892)....................  20
Black River Regulating District v. Adirondack League Club

307 N.Y. 475,121 N.E.2d 428 (1954)................................ 5
Browder v. Gayle, 142 F.Supp. 707 (M.D.Ala. 1956), aff’d

per curiam 352 U.S. 903 (1956)..................................... 18
Broivnv. Bd. of Education, 347 U.S. 483 (1954) . . . . .  12,15,30
Buchanan v. Warley, 245 U.S. 60 (1917)..............................  15
Butchers’ Union S.H. & L.S.L. Co. v. Crescent City L.S.L.

& S.H. Co., I l l  U.S. 746 (1884) ........................................ 12
Colder v. Michigan, 218 U.S. 591 (1910) ............................  11
Chung Fook v. White, 264 U.S. 443 (1924) ........................  11
City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61 (1909) 6
City of Winter Haven v. A. M. Klemm & Son, 132 Fla. 334,

181 So. 153 (1938) ..........................................................  9
Claiborne County v. Brooks, 111 U.S. 400 (1883) ..............  6
Colegrove v. Green, 328 U.S. 549 (1946) 4,19,20,21,22,23,24,26
Daniel v. Family Security Life Ins. Co., 336 U.S. 220

(1949) .......................................................    11
Davis v. Schnell, 81 F.Supp. 872 (S.D.Ala. 1949), aff’d per

curiam, 336 U.S. 933 (1 9 4 9 ).............................................  13
Doyle v. Continental Ins. Co., 94 U.S. 535 (1876)................  11
Edwards v. California, 314 U.S. 160 (1941) ......................  15
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)..................  11
Foster v.Neilson, 27 U.S. (2 Pet.) 253 (1829)....................  19
Giles v. Harris, 189 U.S. 475 (1903)...... .......................... 17,18
Gilmore v. City of Montgomery, 176 F.Supp. 776 (M.D. Ala.

1959) ...................................................................................  15
Gomillion v. Lightfoot, 270 F.2d 594 (5th Cir. 1959) . .  9,18,25 
Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945) . .  17
Guinn v. United States, 238 U.S. 347 (1915)......................  23
Harrison v. N.A.A.C.P., 360 U.S. 167 (1959)   ..................  27
32 111



Holmes v. City of Atlanta, 124 F.Supp. 290 (N.D.Ga. 1954), 
aff’d 223 F.2d 93 (5th Cir. 1955), mod. per curiam, 350
U.S.879 (1955)................................................................ 15,18

Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)
..........................................................................  5,6,7,9,10,13,16

James v. Bowman, 190 U.S. 127 (1903) ............................. 16
Jones v. United States, 137 U.S. 202 (1890) ..................... 19
Lane v. Wilson, 307 U.S. 268 (1939) ..........................  10,17,18
Laramie County v. Albany County, 92 U.S. 307 (1875) 6,7,13 
Lassiter v. Northampton County Bd. of Elections, 360 U.S.

45 (1959).............................................................................. 27
Learner v. Casey, 357 U.S. 468 (1958).................................. 11
Meriwether v. Garrett, 102 U.S. 472 (1880) ..................... 5
Nixon v. Herndon, 273 U.S. 536 (1927) ............................. 17
Oyama v. California, 332 U.S. 633 (1948) ..........................  10
Plessy v. Ferguson, 163 U.S. 537 (1896).............................. 12
Port of Mobile v. United States ex rel. Watson, 116 U.S. 289

(1885) ................................................................................ 9,28
Radford v. Gary, 145 F.Supp. 541 (W.D.Okla. 1956), aff’d

per curiam, 352 U.S. 991 (1957) ...................................... 23
Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496

(1941) ....................................................................................27
Remmey v. Smith, 102 F.Supp. 708 (E.D.Pa. 1951), aff’d

342 U.S. 916 (1952) ......................    23,28,30 ;
Shelley v. Kraemer, 334 U.S. 1 (1948) ................................ 15
Shuttlesworth v. Birmingham Bd. of Education, 162

F.Supp. 372 (N.D.Ala. 1958), aff’d per curiam, 358 U.S.
101 (1958)......................  ...................................................  11

Smith v. Texas, 311 U.S. 128 (1940).....................................  10
South v. Peters, 89 F.Supp. 672 (N.D.Ga. 1950), aff’d, 339

U.S. 276 (1950) .......................................................... 12,22,24 [
State v. Dunwell, 3 R.I. 127 (1855) .....................................  20
State v. Rice, 158 N.C. 635, 74 S.E. 582 (1912) .................. 16
State v. Wagner, 61 Me. 178 (1873).......................................  20
State ex rel. Brooks v. Gullatt, 210 Ala. 452, 98 So. 373

(1923) .................................................................................  5
Terry v. Adams, 345 U.S. 461 (1953) .................................  18
Town of Mt. Pleasant v. Becktvith, 100 U.S. 514 (1879) 5,7,13 
United States v. Holt, 168 Fed. 141 (C.C.W.D. Wash. 1909), 

aff’d, 218 U.S. 245 (1910) ...................................................  20

32
IV



United States v. Reese, 92 U.S. 214 (1875)..........................  16
Williams v. Kansas City, 205 F.2d 47 (8th Cir. 1953), cert

denied, 3h6 U.S. 826 (1953) .............................................. 18
Wood v. Broom, 287 U.S. 1 (1932)  ................................  22
Yick Wo v. Hopkins, 118 U.S. 356 (1886)........................  11,12

CONSTITUTION AND STATUTES

Ala. Code Ann. tit. 37, sec. 9 (1940) ....................  14,15,16
Ala. Code Ann. tit. 37, sec. 10 (Supp. 1 9 5 5 )......... 14,15,21
Ala. Code Ann. tit. 37, sec. 11 (1940) ........................  15,21
Ala. Code Ann. tit. 37, sec. 12 (1940) ........................  15,21
Ala. Code Ann. tit. 37, sec. 13 (1940) ........................  16,21
Ala. Code Ann. tit. 37, sec. 237 (1940) .........................   8
Ala. Code Ann. tit. 37, sec. 242 (1940) ..........................  g
Ala. Code Ann. tit. 37, sec. 244 (1940) ..........................  8
Ala. Code Ann. tit .37, sec. 245 (1940) ..........................  8
Ala. Code Ann. tit. 37, sec. 574(5) (Supp. 1 9 5 5 )____ 14,16
U.S. Const, art. I, sec. 2 .......................................................... 29
U.S. Const, art. I, sec. 4 .......................................................... 22
U. S. Const, art. I, sec. 1 0 ........................................................ 28

MISCELLANEOUS

37 Am. Jur. Municipal Corporations sec. 284 (1941)..........  16
Brief for Appellants, South v. Peters, 339 U.S. 279 (1950) 24 
Brief for Appellants, Terry v. Adams, 345 U.S. 461 (1953) 18 
Brief for Appellees, Tery v. Adams, 345 U.S. 461 (1953) . .  18
81 C.J.S. States sec. 2 (1953).................................................. 9
Cooley, Const. Lim. 4th ed. (1878) ................................... . 5
Dodd, Judicially Non-Enforceable Provisions of Constitu­

tions, 80 U. Pa. L. Rev. 54 (1931)...................................... 19
Field, Doctrine of Political Questions in Federal Courts, 8

Minn. L. Rev. 485 (1924) ................ ........... ................  19,20
Finkelstein, Judicial Self-Limitation, 37 Harv. L. Rev. 338

.(1924) .................................................................................  20
Finkelstein, Further Notes on Judicial Self-Limitation, 39 

Harv. L. Rev. 221 (1925) .................................................  20
32

V



L. Hand, The Bill of Rights (Harv. Univ. Press 1 9 5 8 )----  11
Hart and Sacks, The Legal Process: Basic Problems in the 

Making and Application of Laws (Tentative ed. 1958,
Harvard Law Library) ......................................................25

H. R. 10035, 86th Cong., 2nd Sess. (1960) ..........................  29
Note, Judicial Abstention from the Exercise of Federal

Jurisdiction, 59 Coll. Rev. 749 (1959) .............................. 27
N.Y. Times, Feb. 19,1960, p. 10, col. 1 ..................................29
Report of the United States Commission on Civil Rights,

1959 ...................................................................... .............  29
S. 456, 86th Cong., 1st Sess. (1959)...................................  30
S. 499, 86th Cong., 1st Sess. (1959) ...................................... 29
S. 957, 86th Cong., 1st Sess. (1959) ...................................... 30
S. 2391, 86th Cong., 1st Sess. (1959) .................................... 30
S. 2719, 86th Cong., 1st Sess. (1959) ...................................  29
S. 2783, 86th Cong., 2nd Sess. (1960)...................................  29
Weston, Political Questions, 38 Harv. L. Rev. 296 (1924) ..20 
Young,. Discretion to Deny Federal Relief Against State 

Action, 28 Tex. L. Rev. 410 (1950) .................. ...............  27



STATEMENT OF THE CASE

Petitioners reside in an area which was formerly attached 
to the City of Tuskegee, Alabama. The legislature of Alabama 
by Act 140, July 15,1957, detached from Tuskegee a belt of con­
tiguous territory around three sides of the city. In this belt 
reside most of the Negroes who were residents of Tuskegee.

Petitioners, who are Negroes, brought this action in the 
Federal District Court for the Middle District of Alabama, 
seeking to enjoin the enforcement of Act 140 by respondents, 
city officials of Tuskegee. It was alleged that the act vio­
lated the “equal protection” clause of the Fourteenth Amend­
ment in that it denied petitioners’ rights of municipal citi­
zenship on the grounds of race; that it violated the “due pro­
cess” clause of the same amendment by depriving petitioners 
of certain municipal services; and that the act violated the 
Fifteenth Amendment in that it abridged their right of fran­
chise on the basis of race. It was also alleged that the act 
violated the provisions of Title 42, United States Code, §§1981 
and 1983.

The District Court, per Judge Johnson, dismissed for 
failure to state a claim upon which relief could be granted 
and for lack of jurisdiction, stating that the Federal Courts 
have no control over the determination of municipal boundaries 
made by a state legislature.

On appeal the Court of Appeals for the Fifth Circuit, 
per Judge Jones, affirmed on the same grounds, adding that the 
determination of municipal boundaries is a political mat­
ter which is not justiciable. Judge Wisdom concurred speci­
ally, agreeing with the opinion of Judge Jones, adding that 
the petitioners asked relief fraught with greater disadvant­
ages than the conditions it sought to remedy. Judge Brown 
dissented on the grounds that Act 140 deprived petitioners of 
their Constitutional rights, that the discretion of the legis­
lature was subject to review, and that the issues presented 
were justiciable.

Petitioners bring certiorari to this court.

32 1



SUMMARY OF ARGUMENT

Respondents’ case rests on three major contentions: first, 
petitioners’ attack on the constitutional validity of Act 140 
is based on an assertion of non-existent rights; second, Act 
140 does not infringe any rights which petitioners actually 
have; third, there is no feasible remedy which can be applied 
by this court sitting in equity.

Part I argues that petitioners do not have the rights 
which they assert in attack of Act 140. Part IB contends 
that the municipal corporation is created by the state legis­
lature to act as its agent in the administration of state policy, 
The extent of municipal authority, both substantively and ter­
ritorially, is determined by the terms of its delegation from 
the state. The absolute discretion of the state legislature to 
alter this delegation has long been recognized by this court, 
even against constitutional attack. Thus petitioners have no 
constitutional right to attack this exercise of absolute legis­
lative discretion.

Part IB further shows there is no basis on which to at­
tack this contraction of municipal boundaries. Under Alabama 
law a majority of the electorate of a municipality may exclude 
territory from it on the basis of a popular election. This 
court has never invalidated an election on the ground that 
its result was a violation of civil rights. Municipal citizen­
ship, when subject to popular will, is not a right subject to 
judicial protection.

Part IC argues that legislative discretion to alter muni­
cipal boundaries is not disturbed by the courts even where 
constitutionally protected contract rights are involved. Re- , 
lief is limited to preserving the taxing power of the munici­
pality over the excluded territory until the contract rights are 
satisfied.

In Part ID it is contended that rights cannot be cre­
ated by an inquiry into legislative purpose or motive or by 
examining the effect of legislation. A right must be shown to i 
exist before it can be adversely affected by a statute. The 
effect of a statute itself cannot create that right. Likewise 
an allegedly reprehensible motive or purpose cannot taint leg­
islation so as to invalidate it. To base constitutional validity

2



on inquiry into the minds of legislators involves the courts in 
psychoanalysis, a function for which they are ill-suited. In 
the sensitive field of federal-state relationships this test of 
validity is particularly undesirable.

Part II argues that those rights which petitioners pos­
sess are not infringed by Act 140. Part II-A contends that 
none of petitioners property rights are denied since the City 
of Tuskegee is authorized to continue extending services to 
the petitioners. In Part II-B it is shown that Act 140 does 
not deprive petitioners of any rights they may have to belong 
to a municipality and participate in its functions. Alabama 
law provides that any community of seventy-five persons may 
organize themselves into an incorporated municipality. No 
legislative action is required. Part II-C argues that there 
is no deprivation of the right to vote which the Fifteenth 
Amendment protects. The Fifteenth Amendment does not 
create the right to vote; it protects only that right which al­
ready exists. Since the right to vote in a polity depends on 
continued residence in that polity, when the residence ceases, 
the right to vote ceases. Moreover, when a person is no longer 
subject to the control of a government, there is no reason for 
him to have a voice in that government.

Part III points out that, even if petitioners federal rights 
have been violated, this court is unable to provide a proper 
equitable remedy. As indicated in Part III-A equitable relief 
in a federal court will only be granted when it falls within 
the traditional limits of equity power evolved from the English 
Court of Chancery through our present judicial system. His­
torically this court has refused equitable relief where the issues 
have involved questions of the political process. This view 
has remained today and is emphasized by the fact that damages 
at law rather than equitable relief dominate modern-day cases 
involving deprivation of voting rights.

Part III-B shows that the above tradition is based on the 
recognition by the courts of the doctrine of separation of 
powers. The determination of municipal boundaries is a politi­
cal question and thereby reserved to the legislative rather than 
the judicial branch of government.

In Part III-C we put forth two alternative reasons why 
this court in following the doctrine of judicial self-limitation
32 3



as expressed in Colegrove v. Green, 328 U.S. 549 (1946), 
should deny the relief sought. First, the alleged deprivation 
of voting rights was much more serious in the Colegrove case 
than that alleged in the case at bar. Petitioners no longer 
bear the liabilities of government, such as taxes, nor are 
they subject to the exercise of power by a government in 
which they have no elective voice. Second, even if the depri­
vation here is considered serious, there is no effective “cure" 
for the basic “disease” alleged. The Alabama legislature 
and the voters of Tuskegee may easily redefine Tuskegee 
in a manner offensive to the petitioners. More important, 
any decision which involves the court in a determination of 
municipal boundaries, pro tanto involves a determination of 
legal, political, social, and economic rights, which will neces­
sarily require the court to become the governing body of Tus­
kegee. This is both judicially unmanageable and undersirable.

Part III-D argues that the court should permit the state 
courts to first exercise their power so as to prevent premature 
adjudiciation of constitutional issues.

Finally in Part III-E we show that the governmental body 
which can most effectively and adequately provide petitioners 
with relief is now utilizing its legislative process to do so. 
Such action by Congress underscores the onerous and im­
proper burden which suits such as that at bar place on the 
courts.

ARGUMENT

I. PETITIONERS MAY NOT CHALLENGE THE VALID­
ITY OF ACT 140 SINCE THEY HAVE NO CONSTI­
TUTIONAL RIGHT TO REMAIN CITIZENS OF TUS­
KEGEE.

A. The Alabama Legislature Has Absolute Discretion 
To Determine The Boundaries Of Its Political Sub­
divisions.

The municipal corporation is created by the state to carry 
out more efficiently the powers and policies of government 
as expressed by the people through their legislators. The

4 32



primary purpose of its existence is the decentralized and more 
convenient addimistration of government. Its powers emanate 
from the state. Hunter v. City of Pittsburgh, 207 U.S. 161 
(1907). The municipal corporation is then, in effect, the agent 
of the state, exercising only those powers which the state has 
chosen to delegate.

Municipal corporations are mere instrumentalities of the 
state for the more convenient administration of local 
government. Their powers are such as the Legislature 
may confer, and these may be enlarged, abridged or en­
tirely withdrawn at its pleasure. State ex rel. Brooks v. 
Gullatt, 210 Ala. 452, 455, 98 So. 373 (1923), quoting 
Meriweather v. Garrett, 102 U.S. 472, 511 (1880).

Inherent in the delegation of political power by the state 
to its subdivisions is the retention of the power to amend 
or to retract such delegation. Black River Regulating District 
v. Adirondack League Club, 307 N.Y. 475, 121 N.E.2d 428 
(1954).

Powers of a defined character are usually granted to a 
municipal corporation, but that does not prevent the 
Legislature from exercising unlimited control over their 
charters. It still has authority to amend their char­
ters, enlarge or diminish their powers, extend or limit 
their boundaries, consolidate two or more into one, over­
rule their legislative action whenever it is deemed un­
wise, impolitic or unjust, and even abolish them alto­
gether, in the legislative discretion, and substitute in 
their place those which are different. Cooley, Const. Lim., 
4th ed. 232. Town of Mount Pleasant v. Beckwith, 100 
U.S. 514,529 (1879).

United States Supreme Court has recognized only 
hose limitations which the state has imposed upon itself in its 

relations with its municipalities.

Counties, cities, and towns are municipal corporations 
created by the authority of the Legislature, and they

32 5



derive all their powers from the source of their creation, 
except where the Constitution of the State otherwise pro­
vides. . . . Laramie County v. Albany County, 92 U.S. 307, 
308 (1875).
It is undoubtedly a question of local policy with each 
State, what shall be the extent and character of the 
powers which its various political and municipal organ­
izations shall possess; and the settled decisions of its 
highest courts on this subject will be regarded as auth­
oritative by the courts of the United States; for it is a 
question that relates to the internal constitution of the 
body politic of the State. Claiborne County v. Brooks, 
111 U.S. 400, 410 (1883).
The Alabama Supreme Court has made it clear that the 

state Constitution gives the Alabama Legislature absolute 
authority to alter municipal boundaries. City of Ensley v. 
Simpson, 166 Ala. 366, 52 So. 61 (1909). The absolute nature 
of this discretion has been emphatically upheld by this court, 
Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).

In the Hunter case, the issue presented was the constitu­
tional validity of a Pennsylvania statute which permitted the 
annexation by one city of a smaller contiguous city, upon 
approval by a majority of the combined vote of both cities. 
In an election held under this statute, the city of Pittsburg 
annexed the city of Allegheny. The adverse vote of the Alle­
gheny residents was overridden by the heavier Pittsburgh 
vote. The previously incurred Pittsburgh debt caused a tax 
rise in the former city of Allegheny. Hunter, an Allegheny 
property owner, attacked the statute on several constitutional 
grounds, explicitly alleging a violation of due process under 
the Fourteenth Amendment, and a violation of “the law of 
the land, it being unfair, unjust, and unequal.” The court 
“quickly disposed” of the claim by “the application of well- 
settled principles” :

We have nothing to do with the policy, wisdom, justice,: 
or fairness of the act under consideration; those ques-j 
tions are for the consideration of those to whom the

6



state has intrusted its legislative power, and their de­
termination of them is not subject to review or criti­
cism by this court. We have nothing to do with the in­
terpretation of the Constitution of the state and the 
conformity of the enactment of the assembly to that 
Constitution; those questions are for the consideration 
of the courts of the state, and their decision of them is 
final. 207 U.S. at 176.

Municipal corporations are political subdivisions of the 
state, created as convenient agencies for exercising such 
of the governmental powers of the state as may be 
entrusted to them. . . . The state, therefore, at its 
pleasure, may modify or withdraw all such powers . . . 
expand or contract the territorial area, unite the whole 
or a part of it with another municipality, repeal the 
charter and destroy the corporation. All this may be 
done, conditionally or unconditionally, with or without 
the consent of the citizens, or even against their pro­
test. In all these respects the state is supreme, and 
its legislative body, conforming its action to the state 
Constitution, may do as it will, unrestrained by any pro­
vision of the Constitution of the United States. Al­
though the inhabitants and property owners may, by such 
changes, suffer inconvenience, and their property may 
be lessened in value by the burden of increased taxa­
tion, or for any other reason, they have no right, by 
contract or otherwise, in the unaltered or continued ex­
istence of the corporation or its powers, and there is 
nothing in the Federal Constitution which protects them 
from these injurious consequences. The power is in the 
state, and those who legislate for the state are alone 
responsible for any unjust or oppressive exercise of it. 
207 U.S. at 178.

The Hunter case thus reaffirmed the principle of Town 
of Mount Pleasant v. Beckwith, 100 U.S. 514 (1879) and 
Laramie County v. Albany County, 92 U.S. 307 (1875), that the 
state has absolute discretion to alter municipal boundaries. 

Petitioners maintain that “an examination of these cases
32 7



will show however, that in each of them the state action in 
question was expressly found by the court to be directed to­
ward an end not prohibited by the Constitution.” (Brief for 
Petitioners, p. 4). This contention involves two propositions: 
first, that the state action was subjected to constitutional 
scrutiny, and second, that the constitutionality was deter­
mined by some “end.” Respondents do not contend that a state 
action is immune from constitutional scrutiny. However, upon 
such scrutiny, constitutionality itself may turn on the state’s 
absolute power of discretion. In these cases, the constitu­
tionality of state action was upheld on the basis of the dis­
cretion of the state, in the exercise of the same power which 
is in question in the case at bar. The court found the “ends” 
irrelevant in testing the constitutionality of the state action. 
These cases require a recognition of Alabama’s absolute dis­
cretion in prescribing Tuskegee’s boundaries, without consid­
eration of “ends”.

B. Citizens Of A Municipality By A Simple Majority Of 
Popular Vote Can Change Municipal Boundaries.

An Alabama statute providing that territory may be de­
tached from a municipality by majority vote of its citizens 
is an additional demonstration of the absence of a right of 
any Alabama resident to remain a resident of a particular 
municipality. Ala. Code Ann. tit. 37, §237 (1940). Under 
the statute, a resolution describing the territory to be de­
tached is passed by the city council. It is then presented 
to the probate judge, who sets a date on which anyone living 
in the territory to be detached can present his objections. 
The probate judge, if valid objections are presented, may order, 
an election, at which all qualified electors, including those of 
the territory in question, may vote. A simple majority of all 
votes cast is decisive. Continuing membership in a municipity 
is thus subject not only to legislative action, but also to the 
popular vote of the members of the municipality, to whom the 
legislature has delegated such authority. See Ala. Code Ann. 
tit. 37, §§ 242, 244, 245.

C. Absolute Discretion of State Legislatures Has Been 
Recognized Even Where Contract Rights Are Affected.

32
8



Even when constitutionally guaranteed contract rights 
have been found to be infringed by a legislative alteration 
of municipal boundaries, the courts have recognized the legis­
lature’s absolute discretion by limiting the relief to pro­
tection of the contract. They have not interferred with the 
change of boundaries. For example, when the alteration of 
municipal boundaries has been attacked as impairing the rights 
of holders of municipal bonds, the courts have never disturbed 
the newly-set corporate limits. When the courts have granted 
any relief at all, it has been to impose continuing liability 
for the specific municipal obligations upon the newly dis­
connected territory, City of Winter Haven v. A M . Klemm & 
Son, 132 Fla. 334, 181 So. 153 (1938), or upon the corporation 
which has replaced the old municipality which incurred the 
obligation. Port of Mobile v. United States ex rel Watson, 
116 U.S. 289 (1885).

It should be noted that the parties seeking constitutional 
relief in these cases were bondholders, relying upon their 
contract rights. The relationship between a citizen and a 
municipality does not of itself give rise to any contract 
rights upon which to predicate a claim arising out of a bound­
ary alteration. Hunter v. City of Pittsburgh, 207 U.S. 161 
(1907). Petitioners seek constitutional protection of the in­
cidents of their relationship to Tuskegee. Such incidents 
are not afforded constitutional protection.

Continuing membership in a particular political subdi­
vision of a state is at all times subject to the discretion of its 
legislature. As stated by the court below:

The enactment by a state legislature of a statute cre­
ating, enlarging, diminishing or abolishing a municipal 
corporation is, as has been noted, a political function. 
It is a governmental act. American Bemberg Corporation 
v. City of Elizabethton, 180 Tenn. 373, 175 S.W.2d 535 
(1943). Hence it is an act of sovereignty performed 
under a power reserved by the Tenth Amendment, 81
C.J.S. States § 2, p. 858 (1953). Gomillion v. Lightfoot, 
270 F.2d 594 (5th Cir. 1959).

32 9



Petitioners base their prayer for relief on an alleged right 
to remain members of the municipality of Tuskegee. As dem- 
onstated, this right does not exist.

D. The Constitutional Validity of Act HO Cannot Be 
Made To Depend Upon Legislative Intent or Upon 
The Effect Of The Act Without The Demonstration 
Of a Prior Right.

Petitioners argue that the constitutionality of a state 
statute should be determined by looking at its “purpose and 
effect”. (Brief for Petitioners, p. 5). This proposition war­
rants careful examination, because it combines two separate 
criteria. Since petitioners assert that their constitutional 
rights have been denied, the court should first look to see 
if they have the constitutional rights that are claimed. The 
courts surely cannot look to the effect of a statute on rights 
not affirmatively shown to exist. Cf. Oyama v. California, 
332 U.S. 633 (1948). In the passage from Oyama quoted 
at p. 5 of petitioner’s brief, it should be noted that “rights” 
were found to exist before the court looked to “effect”. See 
also Lane v. Wilson, 307 U.S. 268 (1939) (right to vote in 
federal election) ; Smith v. Texas, 311 U.S. 128 (1940) 
(right to an impartial grand ju ry ). Yet petitioners concede the 
absence of the very “constitutional rights” they ask the court 
to assume: “Of course, plaintiffs have no absolute right to 
the benefits of living in Tuskegee. . . . ” (Brief for Pe- 
tioners, p. 9). It is certainly not denied that the court will 
properly look to application and effect of a statute where a 
right of federal citizenship is involved. To be a member 
of a municipal corporation is not such a right, and a court will 
not create this right. See Hunter v. City of Pittsburgh, 201 
U.S. 161 (1907).

Continuation of the quotation, supra, from petitioners' 
brief shows the nature of the alleged “right” on which they 
actually rely: “ . . . [B]ut they do have a right not to lose 
them through discriminatory state action.” This in reality 
is a contention that “bad” purpose or motive can invalidate, 
under the Fourteenth and Fifteenth Amendments, otherwise 
valid state action. The great weight of authority, however,

1 0



supports the contrary proposition: where a state has power to 
do an act, the motive or purpose of the legislature is irrel­
evant. See Doyle v. Continental Ins. C., 94 U.S. 535, 541 
(1876) ; accord, Daniel v. Family Security Life Ins. Co., 336 
U.S. 220, 224 (1949) ; Arizona v. California, 283 U.S. 423, 
455 (1931); Calder v. Michigan, 218 U.S. 591, 598 (1910). 
Courts have applied this doctrine in cases involving civil 
rights as well as property rights. See Lerner v. Casey, 357 
U.S. 468, 474 (1958) ; Shuttlesworth v. Birmingham Bd. of 
Educ., 162 Supp. 372, 381 (N.D.Ala. 1958), aff’d per curiam, 
358 U.S. 101 (1958). Nor did a sympathetic fact situation 
persuade this court to impair valid legislation and thus abridge 
the doctrine. See Chung Fook v. White, 254 U.S. 443, 446 
(1924). Indeed, no case cited by petitioners squarely refutes 
this fundamental proposition. Yick Wo v. Hopkins, 118 U.S. 
356, 373 (1886), heavily relied upon by petitioners, does not 
create a right because of “discriminatory purpose.” The or­
dinances there were invalid “whatever may have been the 
intent” because of delegation of uncontrolled discretion to an 
administrative officer. Yick Wo v. Hopkins, supra.

This judicial approach stems from reasons woven deep in 
the fabric of our federal system. Its historical basis was 
expressed in the opinion of Mr. Chief Justice Marshall in 
Fletcher v. Peck, 10 U.S. (6 Crunch) 87, 130-131 (1810). The 
doctrine of the irrelevancy of legislative motive there set forth 
has come down to the present without significant impairment, 
and is ably propounded today. See Learned Hand, The Bill of 
Rights, (Harvard University Press 1958) : “In theory escape 
would always be possible if courts were free to scrutinize the 
motives of legislators . . . but of all conceivable issues this 
would be the most completely ‘political’ and no court would 
undertake it.” (at p.46). Although the authority of courts to 
annul statutes must be inferred “ . . . this power should be 
confined to ocassions when the statute . . .  was outside the grant 
of power to the grantee, and should not include a review of how 
the power has been exercised.” (at p.66).

Petitioners argue persuasively the apparent lack of logic 
of ignoring what may often seem obvious. But the tele­
ological approach sets it own trap for those who act on the 
basis of what “seems obvious”. Legislative purpose may indeed

32 11



appear clear enough at times, yet the reports are replete 
with the opinions and dissents of divided courts that have 
come to diametrically opposite conclusions about what the 
legislature “meant to accomplish.” Unambigous purpose 
shades off, by imperceptible degrees, through such shadowy 
concepts as “intent of the majority” and “general policy” to 
individual motives of legislators. It is possible to make a 
theoretical argument that “purpose” can be inquired into, 
while “motive” is to be ignored, but, in fact, no clear line be­
tween the two exists, and the courts, in probing behind an act 
valid on its face, of necessity enter the realm of the uncertain 
and subjective. Legislative purpose is an intangible. It is the 
resultant of all the individual and group pressures that gen­
erate legislation. It is not necessarily confined to accom­
plishment of one end, as petitioners recognize in their dis­
cussion of the ‘weighing of factors’ in South v. Peters, 339 
U.S. 276 (1950) : “The difficulty in such a case is to decide 
if the discrimination against Negroes is the predominant 
factor. . . . ” (Brief for Petitioners, p. 13) (emphasis 
supplied). In the case at bar, one “purpose” of Act 140 might 
be to keep small-town conservatives in power politically. Cf. 
South v. Peters, supra. An infinite number of different bound­
aries for Tuskegee can be devised. At what point could 
the court say that racial discrimination was not the “predomi­
nant factor” in setting the boundary? We submit that federal- 
state relations will be ill-served by judicial guesswork in 
this field. Virtually every enactment, on whatever subject, 
alters existing social relationships and thus takes something 
from someone. If this taking deprives a citizen of an af­
firmative, recognized, federally-guaranteed right, then the 
court may intervene, as it has properly done in the cases 
cited by petitioners. Cf. Yick Wo v. Hopkins, 118 U.S. 356 
(1886), where the plaintiff’s affirmative right was defined 
in another case: “the right to follow any of the common oc­
cupations of life is an inalienable right.” Butchers’ Union, 
S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co., 
I l l  U.S. 746,762 (1884) (concurring opinion); cf. also Brown 
v. Board of Education facilities, 347 U.S. 483 (1954), where the 
right to equal educational facilities was acknowledged long be­
fore in Plessy v. Ferguson, 163 U.S. 537 (1896). Courts can­



not protect alleged rights that arise from the subjective con­
cept, “evil legislative purpose.”

Invalidation of a state statute is a highly serious mat­
ter under any circumstances; it is doubly serious in an area 
where state authority has not before been challenged. See 
Hunter v. City of Pittsburgh, 207 U.S. 161 (1907) ; Mt. Pleas­
ant v. Beckwith, 100 U.S. 514 (1879) ; Laramie County v. Al­
bany County, 92 U.S. 307 (1875). Where the validity of such 
a statute is drawn into question, the court should not use the 
wrong tool for the job. Ascertainment of legislative purpose 
is a fundamental and necessary tool of judicial construction, 
where it is necessary to determine whether a particular fact 
situation is within the scope of a statute. Thus purpose is a 
proper criterion of statutory application in cases of ambiguity. 
Cf. Davis v. Schnell, 81 F.Supp. 872, 878-880 (S.D. Ala. 1949), 
aff’d per curiam, 336 U.S. 933 (1949). On the other hand, the 
extent and limits of positive state powers and federal rights 
are the criteria of statutory validity. Any “right” that derives 
from teleogical psychoanalysis will truly be created in de­
rogation of state power.

Indeed, petitioners are forthright about the violence they 
want done to our federal system:

It is the defendants who should come forward with some 
evidence of a valid legislative purpose to explain the 
otherwise obvious discriminatory effect. Unless such valid 
purpose can be shown, the last reason for allowing the 
State of Alabama to exercise its discretion ceases. For 
unless the purpose of state action is related to some valid 
local interests, there is no remaining reason to defer to 
the state’s competence to manage its local affairs. (Brief 
for Petitioners, p. 7).

Whatever the Tenth Amendment does or does not leave to the 
states, this is the first time it has been suggested that a state 
because of allegations of discrimination must come to a Fed­
eral Court, hat in hand, and show that intentions of legislators 
were pure.

32 13



II. ACT 140 DOES NOT INFRINGE ANY OF PETITION­
ERS’ RIGHTS.

A. No Property Rights Have Been Denied Petitioners 
By Act HO.

Petitioners do not claim that any utilities previously 
established have been withdrawn. They allege only two spe­
cific deprivations: the loss of policemen to patrol school zones 
and the loss of street improvements. Taxes to support these 
services are no longer due from petitioners to the city of 
Tuskegee. These monies can be utilized for their own protec­
tion and neighborhood improvement.

Not only may they provide for themselves in this way, 
but Alabama statutes contemplate that the municipality of 
Tuskegee will help provide these services. Ala. Code Ann, 
tit. 37, §9 (1940); Ala. Code Ann. tit. 37, §574(5) (Supp. 
1955). The evident purpose of these statutes is to help persons 
in the position of petitioners secure these benefits to the extent 
to which they do not secure them for themselves. One statute 
extends the police jurisdiction of the municipality into its en­
virons; another makes provision for street improvement by 
Tuskegee in its environs, at the cost of those thereby benefitted. 
Such legislation is further assurance that petitioners’ property 
rights are unimpaired.

B. Whatever Rights Petitioners Have To Belong To A 
Municipality And To Take Part In Its Functioning 
Have Not Been Impaired.

Petitioners, like all Alabama residents, remain members 
of a particular municipality at the pleasure of the legislature. 
So too, they share with all Alabama residents the right to or­
ganize themselves into a municipality. The Alabama Legisla­
ture has provided that a group of over seventy-five residents, 
upon the petition of twenty-five qualified electors, may de­
termine for itself whether it shall become a municipality. 
Ala. Code Ann. tit. 37, §10 (Supp. 1955). Upon such peti­
tion, a probate judge must order an election to be held with­
in thirty days. If a majority of qualified voters favors in­

14 32



corporation, the group is automatically constituted a town or 
city. Petitioners therefore may obtain whatever advantages 
participation in municipal politics brings through the creation 
of a new municipality. The new city will stand on the same 
footing as Tuskegee or any other Alabama municipality. See 
Ala. Code Ann. tit. 37 §§9-13 (1940).

Nor may it be contended that such a community is a “sepa­
rate but equal” entity within the meaning of the phrase con- 
denied by the United States Supreme Court in Brown v. Bd. of 
Education, 347 U.S. 483 (1954). It is to be remembered initial­
ly that Negroes still live and vote in Tuskegee as whites may 
live and participate in the new community. Still more signifi­
cantly, the citizens of either community may freely enter the 
other, and use public facilities without restriction because of 
race. Cf. Gilmore v. City of Montgomery, 176 F.Supp. 776 
(M.D. Ala. 1959); Holmes v. City of Atlanta, 124 F.Supp. 290 
(N.D. Ga. 1954), aff’d, 223 F.2d 93 (5th Cir. 1955), modified 
■per curiam, 350 U.S. 879 (1955). The communities are indeed 
“equal” ; they are not “separate” in the unconstitutional sense 
of the word.

Moreover, the Act drawn in question does not restrain 
the mobility of any individuals. It pertains to the fixing of 
geographical limits. Whether or not petitioners affect the 
creation of a new municipality, the Tuskegee boundary as now 
determined does not prevent them or residents of Tuskegee 
from changing their residence from one side of the boundary to 
the other. Cf. Edwards v. California, 314 U.S. 160 (1941). The 
Act delineates a geographical area and delimits municipal auth­
ority. This is its effect and the extent of its effectiveness. A 
state may not deny to a citizen, on the basis of color, the place 
of residence which he chooses, Buchanan v. Warley, 245 U.S. 
60 (1917), nor may it implement an individual’s attempt to 
deny this right. Shelley v. Kraemer, 334 P.S. 1 (1948). The 
effect of the Act in question is no such denial.

C. Act 1U0 Does Not,Deprive Petitioners Of A Right To 
Vote In Contravention Of The Fifteenth Amendment.

Petitioners claim that their right to vote in Tuskegee 
municipal elections has been infringed in violation of the
32 15



Fifteenth Amendment. It is settled that the Fifteenth Amend­
ment does not create any right to vote; it protects the right 
to vote which otherwise exists. United States v. Reese, 92 
U.S. 214, 217 (1875) ; James v. Bowman, 190 U.S. 127, 138 
(1903). Petitioners’ assertion of infringement assumes its 
conclusion, that is, that they have a right to vote which has 
been denied. The right to vote in a municipal election is predi­
cated on residence in the municipality. The right to remain 
an elector must be predicted on a right to remain a resident 
of the municipality. As shown in Section I, such right does 
not exist. Since the Fifteenth Amendment does not create it, 
no right to vote exists to be denied.

The right to vote finds its justification in a basic precept 
of democracy: the popular control of public officials to whose 
authority the electorate is subject. In the case at bar, peti­
tioners are no longer subject to the governmental powers of 
the municipality of Tuskegee. No longer must they pay taxes 
to Tuskegee. Therefore petitioners have no basis for claiming 
a voice in the control of Tuskegee.

The benefits which are made available to petitioners by 
the municipality of Tuskegee under the Alabama statutes dis­
cussed in Section II, subsection A, do not give rise to such 
obligations as could substantiate a claim to voting rights. 
Ala. Code Ann. tit. 37, §9 (1940) ; Ala. Code Ann. tit. 37, 
§574 (5) (Supp. 1955). Tuskegee’s governmental powers over 
petitioners are closely circumscribed. Only “police jurisdic­
tion”, for petitioners’ health and protection, is conferred on 
Tuskegee, by a statute similar to those in other states. See 
37 Am. Jr. Municipal Corporations §284 p. 918 (1941). “The 
legislature has unquestioned authority to confer upon the town 
authorities jurisdiction for sanitary or police purposes of terri­
tory beyond the city limits.” State v. Rice, 158 N.C. 635, 74 
S.E. 582 (1912).

In the case of a political subdivision, the vote is a con­
trol of merely delegated authority; the powers exercised by 
municipal officials emanate from the state. Hunter v. City 
of Pittsburgh, 207 U.S. 161 (1907). The citizen voting as a 
member of a municipality is exercising a right conferred by 
the state as a concomitant of the state’s creation of author­
ity in the municipality. When authority is withdrawn from

16 32



municipal officials, the right to vote for these officials ends 
as well.

To the extent that municipal powers are withdrawn, they 
abide in the state legislature. Petitioners have the right to 
vote for the legislature, the only body competent to determine 
the limits of municipal authority. Through their vote for 
this body lies their recourse.

III. EVEN IF THE COURT FINDS THAT A FEDERAL
RIGHT HAS BEEN VIOLATED, IT SHOULD DENY
RELIEF.

A. This Case Poses Political Issues Not Within The 
Traditional Equity Powers Of The Federal Courts.

As noted by the Supreme Court in Guarantee Trust Com­
pany of New York v. York, 326 U.S. 99, 105 (1945), equitable 
relief in a federal court will be granted only if the suit is 
“within the traditional scope of equity as historically evolved 
in the English Court of Chancery.” Such “traditional limits of 
proceedings in equity have not embraced a remedy for political 
wrongs”. Giles v. Harris. 189 U.S. 475 (1903).

Petitioners suggest, however, that when such cases involve 
racial discrimination the federal courts sitting in equity have 
“traditionally intervened”. (Brief for Petitioners, p. 15). The 
decisions of the Supreme Court in Giles v. Harris, supra, 
(Brief for Petitioners, p. 15) and Lane v. Wilson, 307 U.S. 268 
(1939) indicate a contrary tradition. The complaint in Giles 
v. Harris, supra, disclosed a clear violation of the political 
rights of five thousand Negroes in the State of Alabama. It was 
admitted by demurrer that the Alabama registration law was a 
“general scheme to disfranchise” the Negroes. (At p. 482). 
Like the case at bar, complainants specifically invoked the pro­
visions of a Civil Rights Act, which authorized the granting of 
equitable relief. Nevertheless, the Court found the subject 
matter to fall outside the sphere of federal equity power.

This fundamental doctrine of limited equity power again 
was recognized by the Supreme Court in Nixon v. Herndon, 273 
U.S. 536 (1927). Judge Brown, in quoting extensively from 
this decision in his dissent in the Court below, fails to note
3 2 17



that the Court in the Nixon case relied on the fact that dam­
ages rather than equitable relief were sought. The Court in 
Lane v. Wilson, 307 U.S. 268 (1939), heavily relied on by 
petitioners (Brif for Petitioner, pp. 5,8,9,13,14), again an­
nounced this fundamental principle of equity. Citing with 
approval Giles v. Harris, 189 U.S, 475 (1903), the Court in­
dicated that a bill in equity would not lie “to enforce political 
rights”. (At p.273).

Petitioners, following the lead of Judge Brown’s dissent 
in Gomillion v. Lightfoot, 270 F.2d 594, 602 (5th Cir. 1959), 
cite the following activities in which equitable relief has been 
granted by the federal courts: Williams v. Kansas City, 205
F.2d 47 (8th Cir. 1953), cert, denied 346 U.S. 826 (1953) 
(swimming pool) ; Browder v. Gayle, 142 F.Supp. 707 (M.D. 
Ala. 1956), aff’d per curiam, 352 U.S. 903 (1956) (public 
busses) ; Holmes v. City of Atlanta, 124 F.Supp. 290 (N.D, Ga. 
1954), aff’d 223 F.2d 93 (5th Cir. 1955), modified per curiam, 
350 U.S. 879 (1955) (golf courses) (Brief for Petitioners, 
p.16). These cases all involve subject matter not related to the 
political process. Such examples of injunctive enforcement of 
non-political rights are not dispositive of this case, since the 
courts have avoided enforcement of political rights.

It is interesting to note that in Terry v. Adams, 345 U.S. 
461 (1953), the Supreme Court decision upon which peti­
tioners ground their view of “traditional intervention” into 
this political area, the Court had no opportunity to hear the 
merits of the traditional rule against equitable intervention 
articulated by Mr. Justice Holmes in Giles v. Harris, supra. 
It was argued by neither counsel. (Brief for Appellants, Brief 
for Appellees, Terry v. Adams, supra.). Furthermore, the 
Court did not overrule Giles v. Harris, supra.

Even assuming that the traditional powers of equity 
courts in the federal system have been modified by the Court’s 
action in the Terry case to include an election context, it does 
not follow that it extends to interference with a state’s geo­
graphical distribution of its sovereign power among its politi- 
ical subdivisions. Certainly such equitable relief would contra­
vene rather than accord with precedent.

B. Delimitation Of The Boundary Of A Polity Is A Non-

18 32



Judicial Or “Political Question” Under The Theory 
Of Separation Of Powers.

The term “political question” has traditionally denoted 
a power of determination which has not been within the power 
of the judiciary, either because it is constitutionally granted 
to another branch, or because it requires the exercise and 
implementation of policy beyond the proper function of a 
judiciary. In Colegrove v. Green, 328 U.S. 549 (1946) (cited 
hereafter as Colegrove), the majority opinion declined to re­
apportion the congressional districts of the State of Illinois 
on the ground that Article I, Section 4 of the Constitution 
has placed the power to determine the manner in wrhich con­
gressional elections should be held in Congress and that the 
controversy was thus a “political question.” (At p. 554). 
Though congressional reapportionment is not an issue in this 
case, another traditionally “political question,” the deter­
mination of the geographical limits of a polity, is present 
in the case at bar. See Field, Doctrine of Political Questions 
in Federal Courts, 8 Minn. L. Rev. 485, 494 (1924), and Dodd, 
Judicially Now-Enforceable Provisions of Constitutions, 80 
Pa. L. Rev. 54, 86 (1931).

This political question was first articulated by Mr. Chief 
Justice Marshall, in Foster v. Neilson, 27 U.S. (2 Pet.) 253 
(1829), and affirmed in Jones v. United States, 137 U.S. 202 
(1890), where the Court stated at p. 212:

Who is the sovereign . . . [over] a territory is not a 
judicial, but a political question, the determination of 
which by the legislative and executive departments of 
any government conclusively binds the judges, as well as 
all other officers, citizens, and subjects of that govern­
ment. This principle has always been upheld by this 
court, and has been affirmed under a great variety of cir­
cumstances.

This aspect of the political question doctrine has been 
adopted on the state level, where the courts have held that 
there is no equity power to adjudicate an executive determi­
nation of the geographical limits of state sovernignty. State
32 19



v. Wagner, 61 Me. 178 (1873), State v. Dunwell, 3 R.I. 127, 
128 (1855), Bedel v. Loomis, 11 N.H. 9 (1840). In the case 
at bar, a federal court is asked to determine the geographical 
limits of another political subdivision, the City of Tuskegee. 
Similarly it should refuse to determine them on the ground 
that the decision here has been conferred on the legislature 
of Alabama. The fact that the power of fixing Tuskegee’s 
municipal limits is conferred upon the state legislature makes 
the reasons for refraining from adjudication even more 
compelling. Not only is the court being asked to perform a 
function vested in the legislative branch of government, but 
it is asked to interfere in the delicate area of federal-state 
relationships.

That the municipal boundary in question in this case is 
within the exterior limits of the sovereign polity does not seem 
to alter the political question involved in its delimitation. In 
an analogous situation the United States Supreme Court has 
held that it has no power to adjudicate the geographical limits 
of a military reservation within the United States. Benson v. 
United States, 146 U.S. 325, 331 (1892) ; also United States v. 
Holt, 168 Fed.141, 145 (C.C.W.D. Wash. 1909), aff’d, 218 U.S. 
245 (1910). The fact that the municipal limits of Tuskegee 
are within the state presents a stronger case for lack of power 
to adjudicate, since the boundary poses no conflict with the 
boundaries of a neighboring state.

C. Following The Colegrove Doctrine of Equitable Self- 
Limitation, This Court Should Not Grant Discretion­
ary Relief In The Case A t Bar.

The doctrine of equitable self-limitation, which depends 
upon the lack of an effective remedy, is often confused with 
the notion of a “political question,” which is derived from 
the theory of separation of powers. See Field, Doctrine of 
Political Questions in Federal Courts, 8 Minn. L. Rev. 485, 
512 (1924) ; Weston, Political Questions, 38 Harv. L. Rev. 
296 (1924). Cf. Finkelstein, Judicial Self-Limitation, 37 
Harv. L. Rev. 338 (1924) ; Finkelstein, Further Notes on 
Judicial Self-Limitation, 39 Harv. L. Rev. 221 (1925). Though 
Mr. Justice Rutledge did not concur with the majority opinion

20 32



in Colegrove on the ground that there was a political question 
in that case, he did concur in the view that the court should 
not exercise its equity power on the ground that there was no 
effective remedy. (At p. 556). The rationale in Colegrove is 
thus based upon the fact that federal courts will balance 
the effectiveness of potential relief against the intrusion upon 
other constitutionally protected rights, especially rights in­
herent in the concept of state sovereignty itself. Mr. Justice 
Rutledge views the scope of this principle:

If the constitutional provisions on which appellants re­
ly give them the substantive rights they urge, other pro­
visions qualify those rights in important ways by vesting 
large measures of control in the political subdivisions of 
the government of the state.........
The right here is not absolute. And the cure sought may 
be worse than the disease. (Emphasis added). Colegrove, 
at p. 556.

Respondents’ position is that the alleged wrong is less 
grave in the case at bar than in Colegrove, and that here, as in 
Colegrove, the “cure” sought is ineffective. Furthermore, in 
order to grant relief, the Court would be required to overturn 
the primary right of a state to deetrmine the limits of a state- 
created municipality.

1. The “disease”, or deprivation of voting rights 
complained of, is less grave than in Colegrove.

Petitioners argue that the need for redress in the case 
at bar is more imperative than in Colegrove, for in this case 
‘there is a total deprivation of the right to vote in city elec­
tions.” (Brief for Petitioners, p. 12). This is not correct, 
since Alabama law allows formation of a municipality upon 
petition of geographical groups of citizens desiring to become 
so organized. Ala. Code Ann. tit. 37, §§10-13 (1940).

Even if petitioners were deprived of the right to vote in 
municipal elections, this would be less grave than in Colegrove. 
1 here, the plaintiffs were governed and taxed by the federal

32 21



government even though they had been denied an effective 
vote. Likewise in each of the cases cited by petitioners in 
which equitable relief was granted to Negroes for denial 
to them of municipal facilities, such as swimming pools 
and public golf courses, the plaintiffs were municipal rest 
dents taxed by that polity. (Brief for Petitioners, p.16). 
In this case, however, the petitioners are not forced to bear 
the essential liabilities of a resident of Tuskegee. Further­
more, as a matter of degree it is difficult to distinguish be­
tween l/122d of an effective federal vote allowed in South v. 
Peters, 89 F.Supp. 672, 683 (N.D.Ga. 1950), aff’d per curiam, 
339 U.S. 276 (1950), and the absence of municipal vote in the 
case at bar.

The alleged deprivation of voting rights in the instant 
case is less grave than in Colegrove due to the basic differ­
ence in powers which would continue to be exercised by the 
municipal government in the case at bar as compared with the 
federal government in Colegrove. Petitioners ask the Court 
to assume that the substantial disenfranchisement of quali­
fied voters for a national representative body, which imposes 
a burdensome federal income tax, determines wide social policy, 
formulates national domestic and foreign policy, and exercises 
criminal jurisdiction in many areas is to be accorded less 
weight than total disenfranchisement from a city which now 
imposes no tax burden upon, formulates no major policy for, 
and exercises no significant criminal jurisdiction over the com­
plaining non-resident.

Congress has constitutional power to determine the man­
ner in which its members are elected. U.S. Const, art. 1, 
§4. Federal Reapportionment Acts have been passed in im­
plementation of this power. See Wood v. Broom, 287 U.S. 1 
(1930). This being so, the legislative body from which re­
lief from the apportionment may be granted is composed of 
members elected by those malapportioned districts. In Cole­
grove, therefore, the plaintiffs were left with a method of 
remedy depending upon legislators with a vested interest in 
the gerrymander. In the case at bar, the remedy lies through 
the Alabama state legislature, none of whose members have 
been elected by and therefore have a vested interest in the 
present shape of the municipality of Tuskegee. Federal

31 i22



courts have declined to reapportion state electoral districts 
even when the political remedy of electing a state legislature 
that would apportion correctly was effectually prevented by 
the very apportionment statutes alleged to be unconstitu­
tional. Remmey v. Smith, 102 F.Supp. 708 (E.D.Pa. 1951), 
aff’d, 342 U.S. 916 (1952) ; Radford v. Gary, 145 F. Supp. 541 
(W.D.Okla. 1956), aff’d per curiam, 353 U.S. 991 (1957). Al­
though it recognized the fact that a civil rights action was 
not before it, the court in Remmey v. Smith, supra, said in 
part:

A fortiori if a court of the United States should not 
compel a State Legislature to effect a reapportionment 
relative to the national representative elective system, 
it should not do so in respect to an apportionment sys­
tem whereby representatives in State legislatures are 
to be chosen. An action such as that at bar may strike 
at the very heart of our dual system of government under 
which the United States and States must remain sover­
eign in their spheres. (At p. 701).

In the instant case, Act No. 140 was passed by the Alabama 
Legislature. It in no way impedes petitioners’ right to seek 
political redress through that soverign body. There is there­
fore less reason to grant relief in this case than in previous 
cases where relief has been denied.

2. There is no effective “cure” for the gravaman 
of petitioners’ complaint.

Not only is the alleged infringement of rights in the 
case at bar less grave than in Colegrove, but the “cure” is 
ineffective and requires a balancing of political interests 
which the Federal Courts have properly declined to undertake 
in the past. Assuming the power of the federal courts to 
affirmatively recreate the delimitation of a state political 
subdivision which has been repealed by the state legislature, 
die boundaries may revert to those defining the city of 
Tuskegee prior to July 15, 1957. Since there is no neces- 
city for a constitutional amendment, as in Guinn v. United
32 23



States, 238 U.S. 347 (1915) (Brief for Petitioners, p. 14), 
the Alabama Legislature can soon act to redefine the limits 
with very slight alterations. Quite possible there will be 
a series of legislative enactments, each of which might also 
be held unconstitutional.

Such case by case consideration merely postpones the 
balancing of competing interests which compels the petition­
ers to admit that “a court could never remap Tuskegee”. (Brief 
for Petitioners, p. 14). For at some point the Court will be 
forced to determine what delineation of the municipal limit 
does properly represent the proper balance of political power 
in Tuskegee. The questions arising from such a geographical 
rearrangement based on racial considerations are beyond the 
scope of established judicial principles.

In Colegrove the Court was faced only with the issue of 
the electoral disposition of qualified voters for federal elec­
tions. In such a situation the criterion for a proper dispo­
sition is substantial equality of population in each district. 
No other legal, political, social or economic rights would be 
disturbed, nor need be considered. In the instant case, how­
ever, the Court’s determination of the limits also determines 
a variety of other rights, such as tax liability, street mainten­
ance, voting rights and similar municipal functions. The 
presence of racial considerations only makes the problem 
more difficult. What ratio of Negroes need be included to 
allow the boundary to stand as constitutional? What weight 
should be given the racial factor as opposed to other valid 
political, social and economic interests? As noted by pe- 
tioners, when such racial and political factors combine “the 
problems may be too difficult for a court.” (Brief for Petition­
ers, p. 14).

Nor can it be said that the fact that there are Negro 
voting rights at issue alters the valid reasons for which the 
Supreme Court has heretofore refused to interfere with a 
state’s geographical distribution of its electorate among its 
political subdivisions. In South v. Peters, 339 U.S. 279 (1950) 
the complaining voters argue strongly that the Georgia 
County Unit System “nearly disfranchises the Negro popula­
tion.” (Brief for Appellants, p. 12, South v. Peters, supra.) 
The dissent by Mr. Justice Douglas clearly shows that the

24 32



Court was cognizant that the case before it had implications 
of such discrimination. Noting that the right to vote in a 
party primary election is protected by the Fifteenth Amend­
ment, he outlined the way in which the Georgia voting system 
“heavily disfranchises the urban negro population.” (At p. 
278). Nevertheless the Court refused to exercise its equity 
power in this political area.

Even if the Court should decide each proposed municipal 
boundary case by case to determine its constitutionality, 
the essential gravemen of petitioners’ complaint will not be 
cured. Their complaint is basically that the majority negro 
population is not proportionally represented in the city of 
Tuskegee. Petitioners admit that “plaintiffs have no abso­
lute right to the benefits of living in Tuskegee.” (Brief for 
Petitioners, p. 9). Petitioners only claim is that once inside 
the city limits, Negroes cannot be excluded. Therefore the 
municipal limits of Tuskegee need only be extended beyond 
the present square to include only the white community in any 
area in which it presently exists or to which it may expand in 
the future. If this device is utilized the number of Negro 
voters in Tuskegee will remain at 400 but the number of white 
voters may constantly be increased beyond the present 600. 
(R.5). Thus, even though the relief sought by petitioners is 
granted, the negro vote can be steadily diluted.

The Court’s entry into this judicially unmanageable area 
can but increase the strain on federal-state relations, as noted 
in the concurring opinion below. Gomillion v. Lightfoot, 
270 F.2d 574, 615 (5th Cir. 1959). Furthermore, it cannot 
be doubted that the prestige of the Court as a body which 
can offer a final disposition of a controversy, whether in terms 
of money damages or specific performance, suffers when the 
relief it grants is known to both parties to be an ephemeral 
event. Professors Hart and Sacks argue th a t:

Adjudication implies a final authority in the deciding tri­
bunal to settle the dispute before it, subject only to review 
by a superior tribunal also exercising adjudicatory pow­
ers. This finality of adjudication, indeed, is one of its prime 
attractions as to a method of social control. Hart and 
Sacks, “Note on the Problems Appropriate for Adjudica­

32 25



tion”, The Legal Process: Basic Problems in the Making 
and Application of Law, Tentative Edition, 1958 (Har­
vard Law Library), P. 662.

Could the stature of the Court as a body which purports to be 
the ultimate arbiter of the law possibly be enhanced by en­
tering into a certain game of rapid move and counter-move 
apparent in this municipal boundary conflict? When entering 
into this arena forces the Court to undercut the hitherto 
sovereign power of a state to define the limits of a municipality, 
the answer to this question must surely be no.

Since the harm complained of is less grave, and the 
“cure” less effective, relief should not be granted to petitioners 
under the doctrine of judicial self-limitation ennunciated in 
Colegrove.

Petitioners do not clearly recognize the principle of 
judicial self-limitation articulated by Justice Rutledge in Cole- 
grove, but distinguish that case from the case at bar on the 
ground that the former was concerned with “politics” while 
the latter is concerned solely with “race”. (Brief for Pe­
titioners, p. 12). It is not clear that “politics” is or ever 
has been exclusive of “race”. Inherent in the American po­
litical system is an interplay of ethnic and racial groups as 
well as labor and business interests. Could it be said, for 
example, that politics in New York is unrelated to the demands 
of that city’s Jewish population as a group? Appellants can­
not successfully maintain that the case at bar is outside of 
“politics” because it is concerned with “race”.

Nor does it follow that a single motive leading to a 
legislative act results in a single political effect. In Cole- 
grove, Mr. Justice Black (dissenting) noted that the malap­
portionment resulted from “a wilfull legislative discrimina­
tion” to disenfranchise the complaining voters. (At p. 568). 
But the presence of that determinative factor did not reduce 
the multiple political implications of the Illinois act con­
cerning which the Court declined to exercise its equity powers. 
Likewise, the allegedly sole determinative racial factor of Act 
No. 140 has not mitigated the existence of manifold political 
effects in this case, such as relief from taxation and allocation 
of municipal services.

26 32



D. Federal Courts Should Abstain From Exercising 
Jurisdiction To Avoid A Premature Adjudication Of 
A Constitutional Issue.

The essential political nature of the issues and the lack 
of an effective judicial remedy in this case argue persuasively 
that it should be held non-justiciable. But even if this Court 
should view these issues differently, there are strong reasons, 
founded in the maintenance of federal-state comity, for the 
federal courts to abstain in the exercise of equity juris­
diction.

Federal equity courts have long refrained from dealing 
with issues of state legislation until action of the state 
courts has resulted in a completed expression of state law. 
See Note, Judicial Abstention From the Exercise of Federal 
Jurisdiction, 59 Col. L. Rev. 749 (1959) ; Young, Discretion 
to Deny Federal Relief Against State Action, 28 Tex. L. Rev. 
410 (1950). This policy is designed to avoid a premature 
adjudication of a constitutional issue. State courts frequent­
ly construe state statutes so that they raise no federal constitu­
tional question. In Harrison v. N.A.A.C.P., 360 U.S. 167 
(1959), the United States Supreme Court ordered abstention 
pending definitive state construction of statutes clearly intend­
ed to limit the activities of the N.A.A.C.P. in Virginia. In 
Albertson v. Millard, 345 U.S. 242 (1953) the Court ordered 
abstention so that the Michigan courts might construe a stat­
ute under constitutional attack. The statute required “Com­
munists”, as very broadly defined, to register with state 
officials. After abstention, the Michigan Supreme Court held 
the act unconstitutional. Albertson v. Millard, 245 Mich. 
519, 77 N.W.2d 104 (1956). See Lassiter v. Northampton 
County Board of Elections, 360 U.S. 45 (1959). The leading 
case in support of this reason for abstention is Railroad Com’n 
v. Pullman Co., 312 U.S. 496 (1941), involving alleged dis­
crimination against Negro “Pullman” porters. The Court said 
(p. 498) :

[There is] undoubtedly tendered a substantial constitu­
tional issue. It is more than substantial. It touches 
a sensitive area of social policy upon which the federal

32 27



courts ought not to enter unless no alternative to its 
adjudication is open. Such constitutional adjudication 
plainly can be avoided if a definitive ruling on the state 
issue would terminate the controversy.

The case at bar is governed by these precedents. The 
Alabama court can construe this statute to mean that police 
protection, street paving and maintenance, sewage facilities, 
garbage collection and all the other tangible benefits of munic­
ipal residence remain for plaintiff’s enjoyment. A similar 
construction of a state statute reducing the area of the Port 
of Mobile prevented a constitutional conflict with the impair­
ment of contracts clause. U.S. Const, art. I, § 10. Port of 
Mobile v. United States ex rel. Watson, 116 U.S. 289 (1885), 
Contraction of the limits of the Port was here not construed 
to necessitate contraction of the tax base securing a previous 
municipal bond issue. Therefore the federal courts should not 
exercise equitable jurisdiction in this case until Act 140 is 
interpreted in the Alabama courts.

E. Equitable Relief Should Not Be Granted In This 
Case Since Congress Is Now Moving To Insure Peti­
tioners’ Remedy In The State Legislature.

In Remmey v. Smith, 102 F.Supp. 708 (E.D. Pa. 1951), 
aff’d, 842 U.S. 916 (1952) (alternative holding) the Court de­
nied equitable relief in the form of reapportionment of state 
elective districts on the ground that the first general assembly 
following the last census had not yet been held. Though the 
assembly had not carried out, in the past thirty years, the 
terms of a constitutional provision requiring reapportionment 
the court held that there was still a strong possibility that legis­
lative action in the coming session might alleviate the apparent 
deprivation of voting rights.

Petitioners argue that this court alone may provide a, 
remedy for their alleged wrong, for federal registrars c a n n o t, 

protect against the loss of municipal residency. (Brief for 
Petitioner, p. 18). Petitioners’ argument is here wide of 
the mark for it is the state legislature of Alabama which has 
power to determine the municipal limits of Tuskegee. If

!!28



Negro vote in the Alabama state legislature is augumented by 
congressional action, the relief petitioners seek in the case 
at bar could come through a non-judicial agency. In pointing 
out the voting deprivations which could be remedied by the ap­
pointment of federal registrars, the Civil Rights Commission 
not only refers to voter registration in Alabama as a whole, 
but specifically refers to the failure to register Negroes in 
Macon County. Report of the United States Commission on 
Civil Rights, 1959, 140. See Recommendation No. 5 p. 141, 
142. The Administration Civil Rights Bill applies to both 
federal and state elections, and states than any person:

. . .  is entitled, upon his application therefore, to an order 
declaring him qualified to vote, upon proof that at any 
elections or (1) he is qualified under state law to vote, and
(2) he has been deprived of or denied under color of law 
the opportunity to register to vote. H.R. 10035, 86th 
Cong., 2nd Sess. (1960) § (a) New York Times, February 
19, 1960, p. 10, col. 1 (Emphasis added).

And though the other current bills establishing federal regis­
trars apply only to “Federal Elections”, such elections are 
defined so that they may include voting for state officers 
as well.1 State authorities could conceivably attempt to 
frustrate these bills by holding elections for federal and 
state officers on different days. However since voters en­
titled to vote for federal officers are those entitled to vote 
for the most numerous branch of the state legislature, U.S. 
Const, art. I, sec. 2, the registration of Negroes by federal 
registrars would seem to involve state authorities in clear 
deprivation of voting rights, if the same persons were not 
allowed to vote in the state election. Furthermore, a number 
of other measures which would protect Negro voting rights 
in state elections are now pending before Congress.* 2 The

<pe,®ella1̂  Bills ^2719, 2783. The latter provides, “Sec.2(a): The term 
,f f ral Election’ means any general or special election held solely or parti- 
y or the purpose of selecting any individual as a candidate or nominee for 

any ol the following Federal officers. . . . ” (Emphasis added.)

2' See S. 499 (Granting of subpoena power to the Justice Department for the

29
32



Court is urged to recognize not only that a remedy for peti­
tioners’ alleged deprivation of municipal residency does lie in 
congressional protection of state voting rights, but also that 
such legislation is not unlikely, as in Remmey v. Smith, 102 F, 
Supp. 708 (E.D.Pa. 1951), aff’d, 342 U.S. 916 (1952), in 
the current session. In view of the current strain on the fed­
eral courts in enforcing Brown v. Board of Education, 347 U.S, 
483 (1954), it is particularly desirable to allow the Congress, 
if it appears likely, to provide a solution to the alleged wrong 
in the case at bar.

CONCLUSION

For these reasons the judgment below should be affirmed.

Respectfully submitted,

CRAIG M. McATEE
ROBERT W. SCRIVNER

Attorneys for the Respondents

S. DONALD GONSON 
CHARLES R. KINNAIRD 
ROBERT S. SMITH 
GWYNNE H. WALES 
GEROME P. WEISS 
LOREN A. WITTNER

Of Counsel on the Brief

production of books, papers, records and other documents in voting ng 
cases), S. 2391 (Giving written requirements for elector-equalification tests;, 
S. 957 (Making it a federal crime not to retain voting registration recor 
for a period of three years), and S. 456 (Allowing the Justice Department 
bring suit for violations of rights under the Fourteenth Amendment wn 
the plaintiff is not able to do so due to financial need, economic pressure, 
or intimidation).

30 5



NO. 32

IN THE

|ftc©-So)w®mf Court U.S,
F I L E D
SEP 19 1960

tAMFS * aaowNtNS. C!§i

Supreme Court ot ®(jt Unites States
October Term, 1960

C. G. GOMILLION, et al.,
Petitioners,

PHIL M. LIGHTFOOT, As Mayor of 
The City of Tuskegee, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS

THOMAS B. HILL, JR., 
Second Floor, Hill Building, 
P. O. Box 116,
Montgomery, Alabama,

JAMES J. CARTER,
Second Floor, Hill Building, 
P. O. Box 116,
Montgomery, Alabama,

HARRY D. RAYMON, 
Tuskegee, Alabama,
Attorneys for Respondents.



INDEX
Page

Opinions Below................................................................................ 1
Questions Presented....................................................................... 1, 2
Statement of the Case.....................................................................  2
Summary of Argument......................... ,....................................... 3
Argument:

I The power of a State to determine territorial bound­
aries of one of its municipal corporations........................ 5

II Legislative motive.............................................................  14
III Should the Federal Courts pass on a political question?

Judicial abstention or self-limitation in political cases...  16
Conclusion ........................................................................... *.........  19

TABLE OF CASES
Arizona v. California, 283 U. S. 423, 455..................................  15
Benson v. United States, 146 U. S. 325...................................... 4, 17
Black River Regulat. Dist. v. Adirondack League Club, 121

N. E. 2d 428................................................................................ 10
Calderv. People of Michigan, 218 U. S. 591................................  15
Carrithers v. City of Shelbyville, 104 S. W. 744.......................... 10
Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1........................ 17
City of Birmingham v. Norton, 50 So. 2d 754............................  9
City of New York v. Village of Lawrence, 165 N. E. 836.........  10
Colegrove v. Green, 328 U. S. 549.............................................. 4, 17
Daniel v. Family Security L. Ins. Co., 3 3 6 U. S. 220, 224...........  15
Doyle v. Continental Ins. Co., 94 U. S. 535, 541..................... 4, 15
Ensleyv. Simpson, 166 Ala. 366, 52 So. 61..................................  12
Faitoute Co. v. Asbury Park, 316 U. S. 502................................  9
Giles v. Harris, 189 U. S. 475......................................................... 4
Halstead v. Rozmiarek, 94 N. \\”. 2d 37......................................  12
Hunter v. Pittsburgh, 207 U. S. 161............. 4, 6, 9, 11, 12, 13, 14,

15, 16, 17
Kelly v. Pittsburgh, 104 U. S. 78................................................ 3, 6
Laramie County v. Albany County, 92 U. S. 307..... 3, 6, 12, 14, 16
Lenox Land Co. v. City of Oakdale, 125 S. W. 1089, 127 S. W.

538 ..............................................................................................  10

1



Page
Madison Metropolitan Sewer Dist. v. Committee, 260 Wis. 229,

50 N. W. 2d 424.......................................................................... 9
Motmt "Pleasant v. Beckwith, 100 U. S. 514....................3, 6, 14, 16
Pawhuska v. Pawhuska Oil Co., 250 U. S. 394............................  9
People v. City of Palm Springs, 331 P. 2d 4................................  12
Poreski, Ex Parte, 290 U. S. 30.....................................................  5
Port of Tacoma v. Parosa, 324 P. 2d 438, 441..... ,......................  12
Shuttlesworth v. Birmingham Board of Education, 3 58 U. S.

101, 162 F. Supp. 372............................................................. 4, 15
South v. Peters, 339 U. S. 276.....................................................4, 17
State v. City of Baton Rouge, 40 So. 2d 447, 483........................  9
State v. Crimson, 188 S. W. 2d 937............................................... 10
State v. Gullatt, 210 Ala. 452, 98 So. 373....................................  12
State v. Welision Sewer Dist., 58 S. W. 2d 988............................  9
Tenny v. Brandhove, 341 U. S. 367............................................... 15
Trenton v. New Jersey, 262 U. S. 182........................................... 9
United States v. Holt, 168 Fed. 141, 218 U. S. 245.................... 17
Williams v. Dalton, 231 F. 2d 646................................................. 18
Yick Wov .  Hopkins, 118 U. S. 356, 370....................................  13
Reference Works:

Cooley’s Constitutional Limitations, Vol. 1, Chapt. VIII,
p. 393 ......................................................................................  6

McQuillin, Municipal Corporations, Vol. 2, 3rd Ed., Sec.
4.05, p. 18................................................................................  10

Constitution and Statutes:
Ala. Constitution of 1901, Sec. 104(18)................................  12
Act 140, Acts of Alabama, 1957 Regular Session.................... 2
Act 232, Acts of Alabama, 1865-1866....................................  13
Act 40, Acts of Alabama, 1868................................................. 13
Act 210, Acts of Alabama, 1869-1870..................................... 13
Act 299, Acts of Alabama, 1872............................................... 13
Act 106, Acts of Alabama, 1898-1899....................................  13
Code of Alabama, 1940, Title 37, Sec. 131, et seq., Sec. 237,

et seq........................................................................................  12
Articles and Law Reviews:

The Bill of Rights, L. Hand (Harvard U. Press 1958, p. 46)... 15
8 Minn. Law Review, 485.........................................................  17
37 Harvard L. Review, 33 8......................................................  17
39 Harvard L. Review, 221.........................   17

11



IN THE

S u p r e m e  C o u r t  o f tP je  M n ite b  fe t a  teg
October Term, 1960 

NO. 32

C. G. GOMILLXON, et

Y.

al.,
Petitioners,

PHIL M. LIGHTFOOT, As Mayor of 
The City of Tuskegee, et al.,

Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS * 1

OPINIONS BELOW
The opinion of the District Court (R. 24) is report­

ed at 167 F. Supp. 405. The opinion of the Court of 
Appeals (R. 34) is reported at 270 F. 2d 594.

QUESTIONS PRESENTED
1. May a State, by and through its duly constituted 

Legislature, conforming to the State Constitution, fix 
and determine the territorial boundaries of a munici­
pal corporation of that State?

2. May, or should, a Federal Court review the fix­
ing and determination of the territorial boundaries of 
a municipality by a State Legislature, and annul and 
set aside the boundaries determined by the State Legis-



2

lature, and fix or substitute different or other bound­
ary lines ?

3. In the consideration of a State statute will the 
Federal Court make inquiry into the motive or motives 
of a legislator or legislators?

4. Should the Federal Courts pass upon a political 
question such as the determination of geographical 
boundaries of a political subdivision of a State?

5. Should the Federal Courts abstain from exercis­
ing jurisdiction or equity powers in cases posing politi­
cal issues arising from a State’s determination of the 
geographical boundaries of a City, one of its political 
subdivisions?

STATEMENT OF THE CASE
The Petitioner’s complaint asks for a declaratory 

judgment that Act 140 of the 1957 Regular Session 
of the Legislature of Alabama, altering, redefining and 
rearranging the boundaries of the City of Tuskegee, 
Alabama, is invalid and in violation of the due process 
and equal protection clauses of the Fourteenth and Fif­
teenth Amendments to the Constitution of the United 
States. The complaint also asks injunctive relief to re­
strain the Mayor and Officers of Tuskegee, and the 
Probate Judge and other officials of Macon County, 
Alabama, from enforcing said Act, and requiring that 
Petitioners and others, who are negroes, and who prior 
to the enactment of Act 140 did, but since the said 
Act do not now, reside within the corporate limits of 
the City, "be recognized and treated in all respects as 
citizens of the City of Tuskegee” (R. 2-9).



3

In the District Court respondents moved to strike 
the complaint and certain exhibits thereto consisting 
of: a copy of a newspaper story, a copy of an article in 
Time magazine, and unrelated legislation and state­
ments (R. 21). Respondents also moved the Court to 
dismiss the action for failure to state a claim, for lack 
of jurisdiction, and upon other grounds (R. 22).

The District Court held the fixing of municipal 
boundaries and limits to be a matter for the Legisla­
ture and not the Courts, and dismissed the action (R. 
24-32). On appeal, the Court of Appeals affirmed. 
The majority opinion of the Court of Appeals essential­
ly followed the reasoning of the district judge (R. 34) ; 
one judge dissented (R. 42) ; and one judge specially 
concurred, stating that in addition to the holding of 
the majority opinion he would apply "the doctrine of 
judicial abstention in political cases” (R. 65).

Petition for writ of certiorari was granted on March 
21, 1960 (R. 74).

SUMMARY OF ARGUMENT

1. The Legislature of The State of Alabama altered, 
redefined and rearranged the boundaries of the City of 
Tuskegee, a political subdivision of the State. A City 
such as Tuskegee is a political subdivision of the State, 
and the State Legislature, within the limits of the State 
Constitution, may, in its absolute discretion, fix and 
determine the boundaries of the political subdivision, 
may extend or limit the boundaries, and may even abol­
ish the municipality altogether. Laramie County v. A l­
bany County, 92 U. S. 3 07; Mount Pleasant v. Beck­
with, 100 U. S. 514; Kelly v. Pittsburgh, 104 U. S. 78;



4

Hunter v. Pittsburgh, 207 U. S. 161. The extension 
or reduction of city limits or boundaries is a purely po­
litical matter within the absolute power of the State 
Legislature. The fixing of territorial boundaries is a 
political function, and in matters of this kind the courts 
follow the action of the political department of the 
government which has made the determination. Cf. 
Benson v. United States, 146 U. S. 325. No one has a 
vested right to be included in or excluded from a local 
governmental unit.

2. The fact that Petitioners are negroes who, after 
the redetermination of Tuskegee’s city limits, no long­
er live within the corporate limits of Tuskegee, gives 
to them no special right to have the new boundaries 
nullified on the ground of the alleged bad motives of 
the legislator who introduced the Act, or of the whole 
Legislature that adopted the Act. It is settled law that 
the Courts have nothing to do with the policy, wisdom, 
justice or fairness of such an Act. Htmter v. Pittsburgh, 
supra. Courts do not undertake a search for motive in 
testing constitutionality. Doyle v. Continental Ins. 
Co., 94 U. S. 53 5. Shuttlesworth v. Birmingham Board 
of Education, 162 F. Supp. (N.D. Ala.) 372, 3 81, af­
firmed 3 58 U.S. 101.

3. The issue sought to be presented for adjudication 
by Petitioners is a political matter not meet for judicial 
determination, or is one as to which the courts should 
decline to exercise jurisdiction, see Colegrove v. Green, 
328 U. S. 549; South v. Peters, 3 39 U. S. 276; or is 
beyond the scope of traditional limits of proceedings 
in equity. Cf. Giles v. Harris, 189 U. S. 475. Declar­
ing the boundary act invalid would not solve Petition­
ers complaint, for the courts cannot re-map Tuskegee,



5

only the Legislature of Alabama can do that, and the 
Alabama Legislature could enact a new law or succes­
sive new boundary laws, with new litigation in the off­
ing, each decision and each new law "progressively in­
creasing the strain on federal-state relations.” Judge 
Wisdom, R. 72.

Previous decisions, already referred to, applied to the 
allegations of the complaint, demonstrate the unsound­
ness of the complaint and that it was due to be dismissed 
by the District Judge. Ex parte, Poreski, 290 U. S. 30.

ARGUMENT
There is no need for a trial in the District Court on 

the merits. The existence of a substantial question of 
constitutionality of the State statute under attack must 
be determined by the allegations of the bill of com­
plaint, and, if the question presented is plainly unsub­
stantial, "either because it is 'obviously without merit’ 
or because 'its unsoundness so clearly results from the 
previous decisions of this Court as to foreclose the sub­
ject and leave no room for the inference that the ques­
tion sought to be raised can be the subject of contro­
versy’ ”, the District Judge clearly has the authority to 
dismiss the action. Ex Parte Poreski, 290 U. S. 30.

I
THE POWER OF A STATE TO DETERMINE 

TERRITORIAL BOUNDARIES OF ONE OF ITS 
MUNICIPAL CORPORATIONS.
We respectfully submit that the judgment of dis­

missal, affirmed by the Court of Appeals, was entirely 
proper, and is supported by an unbroken line of deci­



6

sions by this Honorable Court and other courts. There 
is no conflict of decisions, and no departure from set­
tled law.

That a state legislature has the power to detach ter­
ritory from municipalities or to extend, rearrange, or 
limit the boundaries thereof is universally recognized. 
This Court long ago, and continuously since, has rec­
ognized and announced the rule that counties, cities, 
and towns are municipal corporations, created by the 
authority of the Legislature, deriving "all their powers 
from the source of their creation, except where the 
Constitution of the State otherwise provides. . . .” And 
the State Legislature has authority to amend the Char­
ter, enlarge or diminish its powers, "extend or limit its 
boundaries, divide the same into two or more, consoli­
date two or more into one . . . and even abolish the mu­
nicipality altogether in the legislative discretion. Cooley 
on Const., 2d Ed. 192.” Laramie County v. Albany 
County, 92 U. S. 3 07; Mount Pleasant v. Beckwith, 
100 U. S. 514; Cooley’s Constitutional Limitations, 
8th Ed., Vol. I, Chapt. VIII, 393 et seq.

In Kelly v. Pittsburgh, 104 U. S. 78, a case of an­
nexation of territory, involving argument under the 
Fourteenth Amendment, this Court said:

"What portion of a State shall be within the 
limits of a City and governed by its authorities 
and its laws has always been considered to be a 
proper subject of legislation.”

Then in Hunter v. Pittsburgh, 207 U. S. 161, the 
Court again had occasion to consider the power of a 
State acting through its, duly elected and constituted 
Legislature, and within the limits of the State Consti-



7

tution, to "expand or contract the territorial area” of 
a municipality, without hindrance or interference by 
Federal Courts. In clear, forceful, emphatic language 
the Court "quickly disposed” of the issues by "the ap­
plication of well-settled principles.”

"We have nothing to do with the policy, wis­
dom, justice, or fairness of the act under consider­
ation; those questions are for the consideration of 
those to whom the State has entrusted its legisla­
tive power, and their determination of them is 
not subject to review or criticism by this court. 
We have nothing to do with the interpretation 
of the Constitution of the State and the con­
formity of the enactment of the Assembly to that 
Constitution; those questions are for the consid­
eration of the courts of the State, and their deci­
sion of them is final.” (P. 176.)

Then, after referring to numerous prior decisions, 
the Court continued, saying that the following princi­
ples have been established, "and have become settled 
doctrines of this Court, to be acted upon wherever they 
are applicable.

"Municipal corporations are political subdivi­
sions of the State, created as convenient agencies 
for exercising such of the governmental powers 
of the State as may be entrusted to them. For the 
purpose of executing these powers properly and 
efficiently they usually are given the power to ac­
quire, hold, and manage personal and real prop­
erty. The number, nature, and duration of the 
powers conferred upon these corporations and the 
territory over which they shall be exercised rests



8

in the absolute discretion of the State. Neither 
their charters, nor any law conferring governmen­
tal powers, or vesting in them property to be used 
for governmental purposes, or authorizing them 
to hold or manage such property, or exempting 
them from taxation upon it, constitutes a con­
tract with the State within the meaning of the 
Federal Constitution. The State, therefore, at its 
pleasure, may modify or withdraw all such pow­
ers, may take without compensation such prop­
erty, hold it itself, or vest it in other agencies, ex­
pand or contract the territorial area, unite the 
whole or a part of it with another municipality, 
repeal the charter and destroy the corporation. All 
this may be done, conditionally or uncondition­
ally, with or without the consent of the citizens, 
or even against their protest. In all these respects 
the State is supreme, and its legislative body, con­
forming its action to the state Constitution, may 
do as it will, unrestrained by any provision of the 
Constitution of the United States. Although the 
inhabitants and property owners may, by such 
changes, suffer inconvenience, and their proper­
ty may be lessened in value by the burden of in­
creased taxation, or for any other reason, they 
have no right, by contract or otherwise, in the 
unaltered or continued existence of the corpora­
tion or its powers, and there is nothing in the Fed­
eral Constitution which protects them from these 
injurious consequences. The power is in the State, 
and those who legislate for the State are alone re­
sponsible for any unjust or oppressive exercise of 
it.” (P. 178.)



9

Some of the later United States Supreme Court cases 
citing Hunter v. Pittsburgh with approval are: Paw- 
huska v. Pawbuska Oil Co., 250 U. S. 394; Trenton v. 
New Jersey, 262 U. S. 182; and Faitotite Co. v. Asbury 
Park, 316 U. S. 502.

State Courts have also consistently followed the rule 
so clearly and decisively announced in Hunter v. Pitts­
burgh. In City of Birmingham v. Norton, 255 Ala. 
262, 50 So. 2d 754, the Supreme Court of Alabama 
committed Alabama to the rule announced in Blunter 
v. Pittsburgh, quoting in extenso that portion of the 
opinion set out above. Louisiana has done likewise in 
State v. City of Baton Rouge, 40 So. 2d 477 (483). 
Also see Madison Metropolitan Sewer District v. Com­
mittee, 260 Wis. 229, 5QN.W. 2d 424; State v. Welis­
ion Server District, (Mo. 1933) 58 S.W. 2d 988, 992, 
993:

“Relators also contend that they have certain 
inalienable rights more intangible in nature, such 
as the right to life, liberty, health and the privi­
leges of citizenship, which have been denied them 
by repeal of the sewer law in violation of the sev­
eral sections of the state and federal Constitutions 
cited in this opinion. . . .

"Speaking to the same questions, as bearing on 
the alteration or dissolution of a municipal cor­
poration, the Supreme Court of the United States 
said in Hunter v. City of Pittsburgh, 207 U. S. 
161, 178, 179, 28 S. Ct. 40, 46, 52 L. Ed. 151, 
159: 'Municipal corporations are political sub­
divisions of the state, created as convenient agen­
cies for exercising such of the governmental pow-



10

ers of the state as may be entrusted to them. . . . 
The state, therefore, at its pleasure . . . may ex­
pand or contract the territorial area. . . ”

In Kentucky it has been held that, "The extension 
or reduction of the boundaries of a city or town is held, 
without exception, to be purely a political matter, en­
tirely within the power of the Legislature of the state 
to regulate.” Lenox Land Co. v. City of Oakdale, 125 
S.W. 1089, opinion extended, 127 S.W. 53 8. And, 
"From whatever point it is viewed, the subject returns 
to this: The act of incorporating towns, and enlarging 
or restricting their boundaries, is legislative and po­
litical. In its exercise of discretion in such matters the 
Legislature has plenary power.” Carrithers v. City of 
Shelbyville, 104 S.W. 744. See also State v. Crimson, 
188 S.W. 2d 937.

McQuillin, Municipal Corporations (3rd Ed.) Sec. 
4.05, Vol. 2, at page 18 says:

". . . the legislature, who may enlarge or di­
minish its territorial extent or its functions, may 
change or modify its internal arrangement, or de­
stroy its very existence, with the mere breath of 
arbitrary discretion. Sic volo, sic jubeo, that is 
all the sovereign need say. . . . ”

Black River Regulat. Dist. v. Adirondack League 
Chib, 121 N.E. 2d 428, 433, (N.Y. Ct. of Appeals, 
1954) : "The concept of the supreme power of the 
Legislature over its creatures has been respected and 
followed in many decisions.”

City of New York vs. Village of Lawrence, 165 M.
E. 83 6: "The power to enlarge or restrict the bound­



1 1

aries of an established city is an incident of the legis­
lative power to create and abolish municipal corpora­
tions and to define their boundaries.”

The foregoing are only a few of the many cases which 
might be cited as supporting, following and reaffirm­
ing the rule enumerated in Hunter v. Pittsburgh. To 
cite or discuss them all would unnecessarily prolong 
this brief.

Furthermore, the attem pt to link the state statute 
in question to complaints as to registration for voting 
lodged with or investigated by the Civil Rights Com­
mission, fails to take note of the fact that Act 140 
neither cancelled the registration of any voter, nor put 
any obstacle in the path of any qualified person desir­
ing to register to vote. The right to register or to vote 
is not affected. Any voter who was formerly a resident 
within the boundaries of the C ity  of Tuskegee can still 
vote, except that by reason of his present non-residence 
he may not vote in city elections, and his rights to vote 
or his obligation to pay taxes are no greater or no less 
than the right of any other citizen, white or negro, 
who lives in the County outside the boundaries of a 
municipality. As Judge Jones observed in the majority 
opinion below, when a person removes from a munici­
pal corporation he loses his membership and the rights 
(obligations, duties, taxes, and other burdens) inci­
dent to such membership, "and this is no less true where 
the removal is involuntary and results from a change of 
boundaries than where the resident removes to another 
place. That this is so does not restrict the legislative 
power to alter municipal boundaries.” (R. 39.) Peti­
tioners are no longer inhibit ants of the City of Tuske­
gee, and are no longer subject to its governmental pow­



12

ers and its burden of taxation, and they therefore have 
no valid basis for claiming a direct voice in the con­
trol of its affairs.

Petitioners in their brief1 at last concede that, ob­
viously, the confines and limits of Tuskegee or any oth­
er town, village or municipality in the State of Ala­
bama may be determined by the Alabama Legislature. 
In Alabama, as in most states, we have laws under which 
municipalities and their inhabitants may, by following 
a prescribed procedure and popular vote, initiate the 
extending or reduction of corporate limits. Code of 
Alabama 1940, Title 37, Art. 1, §134, et seq., Art. 6, 
§ 237, et seq. Here, however, as to Act 140, we are 
dealing with direct action of the State, not with some 
action of the municipality or its inhabitants; and the 
Legislature of Alabama has the unquestioned power 
to establish, alter, extend, or contract municipal 
boundaries. Alabama Constitution of 1901, Sec. 104 
(18); Ensley v. Simpson, 166 Ala. 366, 52 So. 61; 
State v. Gullatt, 210 Ala. 452, 98 So. 373.

No one has a vested right to be either included in 
or excluded from a local governmental unit. Petition­
ers now accept this as settled principle.1 2 The determi­
nation of a geographical boundary of a political subdi­
vision of a State is purely political, "no appeal lying

1. P e t i t io n e rs  B r ie f , p . 10.

2. P e t i t io n e rs  B r ie f , p . 10. P e ti t io n e rs  b r u s h  aside Hunter v. Pittsburgh, 207 
U . S. 1 6 1 , a n d  Laramie County v. Albany County, 92  U . S. 3 1 7 , as c re a tin g  a 
" c o n t r a r y  im p re ss io n ”  b y  " b r o a d  la n g u a g e ”  (B r ie f  p . 1 1 ) ,  b u t  th e se  cases are 
c le a r  a n d  d ec is iv e . Hunter v. Pittsburgh, h as  b een  c i te d  a n d  fo llo w e d  as la te  as 
A p r i l  17 , 1 9 5 7 , in  Port of Tacoma v. Parosa, 32 4  P . 2 d  4 3 8 , 4 4 1 ;  a n d  O cto b er, 
1 9 5 8 , in  People v. City of Palm Springs, 331 P . 2 d  4 , w h e re  th e  c o u r t  observed 
t h a t  n o  o n e  " h a s  a v e s te d  r i g h t  to  b e  e i th e r  in c lu d e d  o r  e x c lu d e d  f ro m  a local 
g o v e rn m e n ta l  u n i t . ”  See also Halstead v. Rozmiarek (Neb. 1 9 5 9 ) ,  9 4  N .W . 2d 
37.



13

except to the ultimate tribunal of the public judgment, 
exercised either in the pressure of opinion or by means 
of the suffrage.” Cf. Yick. Wo v. Hopkins, 118 U. S. 
356, 370. The confusion that would inevitably result 
from the vesting in, or assumption by, the Courts of 
the power and authority "to expand or contract the 
territorial area” of municipal corporations or other po­
litical subdivision, is obvious and tremendous. If the 
Courts have the power to supervise or control the leg­
islative authority to expand or contract the territorial 
area of a political subdivision, a city or county, they 
have by the same token the power to create or destroy 
such a political subdivision. If the lower court has the 
power to say to the Legislature of Alabama, "You can­
not reduce the corporate limits of Tuskegee”, then by 
the same authority, the Court would have had the right 
and authority to say to the Legislature, upon petition 
of these same plaintiffs, if the corporate limits prior 
to the act complained of had not included or embraced 
them, "You must expand the corporate limits of Tus­
kegee to please these plaintiffs.” Can anyone seriously 
contend that the Court is possessed of such authority? 
Could anyone seriously contend that the lower Court, 
or any other Court, could say to the Legislature of 
Alabama that either Act 232 of 1865-1866, which 
originally incorporated Tuskegee and fixed its bound­
aries 2l/ 2 miles square; or Act 40 of 1868, which re­
duced the town limits to one mile square; or Act 210 of 
1869-1870, which expanded the boundaries; or Act 
299 of 1872, which defined the boundaries; or Act 
106 of 1898-1899, fixed for all times the boundaries 
of Tuskegee?

Hunter v. Pittsburgh and the other cited cases dem-



14

onstrate that constitutionality may turn upon and be 
decided by the State’s absolute power of discretion in 
some fields, of which municipal boundaries is one,

For the Court below to have granted the relief prayed 
for by plaintiffs in the case at bar, it would have had 
to ignore precedents which have been established and 
repeatedly followed, affirmed, and reaffirmed.

II

LEGISLATIVE MOTIVE

From the inception of this litigation Petitioners have 
attempted to make much of the alleged motive or mo­
tives, which they label as intention or purpose, which 
prompted the passage of Act 140, going so far as to 
set out some of the personal and political background 
of the State legislator who introduced the Act in the 
State Legislature (R. 6), and adding as further back­
ground a newspaper article and the comment of a mag­
azine of national circulation (R. 7). In the petition 
for a writ of certiorari they go even more afield citing 
The New York Times and the Civil Rights Commission 
Report (Petition p. 4, p. 14-15). These references can 
add nothing to their complaint.

The striking down of a state statute is a most serious 
matter under any circumstances, and particularly 
should be avoided in a situation where state authority 
in the field has previously, and consistently been up­
held. Hunter v. "Pittsburgh, 207 U. S. 161; Mount 
Pleasant v. Beckwith, 100 U. S. 514; Laramie County 
v. Albany County, 92 U. S. 3 07. And the claim of bad



15

motive cannot be utilized as a device to strike down a 
constitutional exercise of sovereign power by a State.3

It has long been the settled law of the land that the 
Courts "have nothing to do with the policy, wisdom, 
justice or fairness of the Act.” Hunter v. Pittsburgh, 
supra. "If the State has the power to do an act, its in­
tention or the reason by which it is influenced in doing 
it cannot be inquired into.” Doyle v. Continental Ins. 
Co., 94 U. S. 535, 541. "We cannot undertake a search 
for motive in testing constitutionality.” Daniel v. Fam­
ily Security L. Ins. Co., 3 36 U. S. 220, 224. Also see, 
Calderv. People of Michigan, 21 8 U. S. 591; Tenny vs. 
Brand hove, 341 U. S. 3 67; Arizona v. California, 283 
U. S. 423,455.

The question concerning legislative, motive and in­
tention was considered and laid to rest by Judge Rives 
in the recent case of Shuttlesworth v. Birmingham 
Board of Education, 162 F. Supp (N.D. Ala.) 372, 
3 81; affirmed 3 58 U. S. 101:

"In testing constitutionality 'we cannot under­
take a search for motive5. 'If the state has the 
power to do an act, its intention or the reason by 
which it is influenced in doing it cannot be in­
quired into.5 Doyle v. Continental Insurance Co., 
94 U. S. 535, 541, 24 L. Ed. 148. As there is no 
one corporate mind of the legislature, there is in 
reality no single motive. Motives vary from one 
individual member of the legislature to another.

3. In  th e o r y  escape w o u ld  a lw ay s b e  possib le  i f  c o u r ts  w e re  f re e  to  s c ru t in iz e  
t  ie  m o tives o f  le g is la to rs  . . . b u t  o f  a ll c o n c e iv a b le  issues th is  w o u ld  be  th e  
inost c o m p le te ly  'p o l i t ic a l5 a n d  n o  c o u r t  w o u ld  u n d e r ta k e  i t . 55 The Bill of 

tghts, L earn ed  H a n d ,  ( H a r v a r d  U n iv e r s i ty  P ress 1 9 5 8 ) ,  p . 4 6 , as q u o te d  in  
vies Covipetition, L aw  S ch o o l o f  H a r v a r d  U n iv e r s i ty ,  1 9 6 0 , B r ie f  F o r  T h e  

responden ts , Gomillion v . Lightfoot.



16

Each member is required to 'be bound by Oath or 
Affirmation to support this Constitution.’ Con­
stitution of the United States, Article VI, Clause
3. Courts must presume that legislators respect 
and abide by their oaths of office and that their 
motives are in support of the Constitution.”

Courts have consistently applied this doctrine in 
cases involving civil rights as well as property rights.

Ill
SHOULD THE FEDERAL COURTS PASS ON A 

POLITICAL QUESTION? JUDICIAL ABSTEN­
TION OR SELF-LIMITATION IN POLITICAL 
CASES.
This case is a direct attack upon action of the State 

of Alabama in exercising its power concerning one of 
its political subdivisions.

The concurring opinion of Judge Wisdom (R. 65, 
71) suggests that the Court should not put a "new kind 
of strain on federal-state relations already severely 
strained. Control over the political subdivisions of a 
state including the incorporation of cities and towns 
and the determination of their boundaries, is a political 
function of the state legislature and an attribute of 
state sovereignty in a federal union. So it has always 
been held. Let the chips fall where they may, the courts 
have decided. This is the substance of the holdings in 
Laramie County v. Albany Coimty, 1876, 92 U. S. 
307; Town of Mount Pleasant v. Beckwith, 1879, 100 
U. S. 514; and Hunter v. Pittsburgh, 1907, 207 U. S. 
161. In these and similar cases the citizens who suf­
fered from changes in city limits, by loss of property



17

values or by increased taxation (if the boundaries are 
extended) or from lack of fire and police protection 
(if the boundaries are contracted) and from loss of vot­
ing privileges (in the case of a gerrymander), were in 
the same situation as the plaintiffs are in this case,”

Cases such as Cole grove v. Green, 328 U. S. 549; 
South v. Peters, 3 39 U. S. 276; and The Cherokee Na­
tion v. State of Georgia, 3 0 U. S. (5 Pet.) 1; are illus­
trative of the types of political questions and decisions 
with which the courts will not interfere. A non-jus- 
ticiable political question is one which is under our 
system of government, and separation of powers, com­
mitted either to the executive or legislature for final 
determination.4 Geographical boundaries pose such 
questions. Indeed in cases involving the very life and 
liberty of citizens it has been held that the geographical 
limits of a military reservation is beyond the power or 
competence of the courts; the courts being bound "to 
follow the political department of the government”. 
Benson v. United States, 146 U. S. 325, 331 ; United 
States v. Holt, 168 Fed. 141, affirmed 218 U. S. 245. 
Indeed, the alleged deprivations here are less grave than 
in Cole grove, and much less grave than in Benson where 
a man was on trial for his very life.

Judge Wisdom says Petitioners propose a cure worse 
than the disease (R. 65). Cole grove v. Green, 328 U. 
S- 549, 566. Actually, if Hunter v. Pittsburgh and 
similar cases should be shunted aside, Petitioners claim 
would not be one for judgment in their favor, see Giles 
v. Harris, 189 U. S. 475, and the relief they seek would

4. See F ie ld , Doctrine of Political Questions in Federal Courts, 8 M in n . L aw  
eview , 4 8 5 ; C f .  F in k le s te in , Judicial Self-Limitation, 37  H a r v a r d  L a w  R e v ie w , 

H 8 ,  39  H a r v a r d  L aw  R e v ie w  2 2 1 .



18

not be a solution of their claims, but would create an 
area of "friction” between federal and state relations. 
Cf. Williams v. Dalton, (6 Cir.) 231 F. 2d 646.

If Act 140 should be nullified, what then would be 
the boundaries of Tuskegee? Can any court effective­
ly re-map Tuskegee? An infinite number of different 
boundaries for Tuskegee may be devised by the Legis­
lature of Alabama. At what point could it be said that 
the fixing of the boundary was within the proper sphere 
of the Legislature’s powers and free from tainted mo­
tives. No one could, or would, suggest the application 
of judicial guesswork in this field. Petitioners recog­
nize that the decision in this case can afford no settle­
ment of the political boundary line problem. They ob­
serve, "Needless to say, the state may give Tuskegee 
new limits by enacting another statute. This may ne­
cessitate litigation testing the validity of that legisla­
tion.” (Brief p. 17.) They recognize the power of the 
State to determine the geographical boundaries of Tus­
kegee5 6 7; that there is no right to be included in or ex­
cluded from the city limits of a political subdivision 
of the State8; and that other, and different boundaries 
may be determined at any time by the Legislature.' 
These admitted matters constitute the very elements 
which call for the courts to recognize this a case pos­
ing a political question, one beyond the traditional 
limits of proceedings in equity, and one from which the 
courts should abstain from interfering.

5. B r ie f , p . 10.

6 . B r ie f , p. 10.

7 . B r ie f , p . 17.



1 9

CONCLUSION

It is respectfully submitted that the dismissal of the 
action by the District Court was proper; and that the 
judgment of the Court of Appeals is right and is due 
to be affirmed.

Respectfully submitted,

THOMAS B. HILL, JR., 
Second Floor, Hill Building, 
P. O. Box 116,
Montgomery, Alabama,

JAMES J. CARTER,
Second Floor, Hill Building, 
P. O. Box 116,
Montgomery, Alabama,

HARRY D. RAYMON,
Tuskegee, Alabama,
Attorneys for Respondents.



RECORD

In %  Bnpxm? Court of %  
luttrfc l^tatru of Amro

Spring Term 1960

No. 3260

C. G. GOMILLION, ET AL„ Petitioners

v.

PHIL M. LIGHTFOOT, as Mayor of the City of Tuskegee, 
ET AL., Respondents

On Writ of Certiorari to the 
Court of Appeals for the Fifth Circuit

BEST PRINTERS, INC., BOSTON, MASS.



UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA

C. G. GOMILLION, CELIA B. CHAMBERS,')
ALMA R. CRAIG, FRANK H. BENTLEY, WIL­
LIE D. BENTLEY, KENNETH L. BUFORD,
WILLIAM J. WHITE, AUGUSTUS 0. YOUNG,
JR., NETTIE B. JONES, DETROIT LEE, DELIA
D. SULLIVAN and LYNNWOOD T. DORSEY on 
behalf of themselves and others similarly situated,
Plaintiffs

v.

PHIL M. LIGHTFOOT, as Mayor of the City of 
Tuskegee, G. B. EDWARDS, JR., L. D. GREG- Civil 
ORY, FRANK A. OSLIN, W. FOY THOMPSON f  No. 3260 
and H. A. VAUGHAN, JR., as members of the 
Tuskegee City Council; 0. L. HODNETT, as Chief 
of Police of the City of Tuskegee, Alabama; E. C.
LESLIE, CHARLES HUDDLESTON, J. T. DY­
SON, F. C. THOMPSON and VIRGIL GUTHRIE, 
as members of the Board of Revenue of Macon 
County, Alabama; PRESTON HORNSBY, as 
Sherif of Macon County, Alabama; WILLIAM 
VARNER, as Judge of Probate of Macon County,
Alabama, CITY OF TUSKEGEE, Ala., a Munic­
ipal Corp., Defendants

COMPLAINT

1.
Jurisdiction

Jurisdiction of this Court is invoked under Title 28, United 
States Code, Section 1331. This action arises under the due 
Process and equal protection clauses of the Fourteenth Amend­
ment of the Constitution of the United States, the Fifteenth 
Amendment of the Constitution of the United States, and under 
title 42, United States Code, Section 1981, as hereinafter more 
u% appears. The matter in controversy, exclusive of interest

30
1



and costs, exceeds the sum or value of Ten Thousand ($10,- 
000.00) Dollars.

2.
Jurisdiction

Jurisdiction of this Court is also invoked under Title 28, 
United States Code, Section 1343 (3). This action is author­
ized by Title 42, United States Code, Section 1983 to be com­
menced by any citizen of the United States or other person 
within the jurisdiction thereof to redress the deprivation under' 
color of state law, statute, ordinance, regulation, custom, or 
usage of rights, privileges and immunities secured by the Four­
teenth and Fifteenth Amendments of the Constitution of the 
United States and by Title 42, United States Code, Section | 
1981, providing for the equal rights of citizens and all persons 
within the jurisdiction of the United States, as hereinafter 
more fully appears. This is an action for temporary and 
permanent injunction to restrain the defendants, officers of 1 
the City of Tuskegee, and of Macon County, Alabama, their; 
agents, employees and their successors in Office from theen-r 
forcement, operation and execution of Act No. 140 of the 1951 
Regular Session of the Alabama Legislature (passed July 15,[ 
1957), on the grounds that the aforesaid statute denies rights,; 
privileges and immunities secured by the Fourteenth and 
Fifteenth Amendments of the Constitution of the United States 
and by Title 42, United States Code, Section 1981, as herein­
after more fully appears.

3.
Jurisdiction

This is also a proceeding for declaratory judgment under 
Title 28, United States Code, Sections 2201 and 2202, declarin'! 
the rights and legal relationships of the parties in the matter, 
in controversy, to w it: 5

Whether the enforcement, execution or operation of Act No. . 
140 of the 1957 Regular Session of the Alabama Legislatin' 
(passed July 15,1957), as applied to the plaintiffs and the class; 
which they represent, by redefining the City limits to exclude 
the plaintiffs and the class which they represent from the 
of Tuskegee solely because of their race and color, deprivsi 
them of the right to vote in municipal elections for the City0; 
Tuskegee, Alabama, denies to them their rights, privileges and

Si
2



immunities as citizens of the United States and the equal pro­
tection of the laws as secured by the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States and 
rights and privileges secured to them by Title 42, United States 
Code, Sections 1981 and 1983, and is for the aforesaid reasons 
unconstitutional and void.

4.
Class Action

Plaintiffs bring this action in their own behalf and on be­
half of all other Negro citizens of the United States and of the 
State of Alabama, residing within the City limits of Tuskegee, 
Macon County, as those city limits were constituted prior to the 
passage of Act No. 140 by the 1957 Regular Session of the 
Alabama Legislature, which Negro citizens are similarly situ­
ated and affected with reference to the matters here involved. 
The members of this class are so numerous as to make it im­
practicable to bring them all before the Court. There being 
common questions of law and fact and a common relief being 
sought, as hereinafter more fully appears, this action is 
brought as a class suit pursuant to Rule 23A of the Federal 
Rules of Civil Procedure. The members of this class are fairly 
and adequately represented by the named plaintiffs herein.

5.
Plaintiffs

Plaintiffs are Negro citizens of the United States and of 
the State of Alabama who reside within the City limits of Tus­
kegee, Macon County, as those city limits were constituted 
prior to the passage of Act No. 140 by the 1957 Regular Session 
of the Alabama Legislature.

6.
Defendants

The Defendant, Phil M. Lightfoot, is a resident of Macon 
County, Tuskegee, Alabama, and is Mayor of the City of Tuske­
gee, Alabama. As such he is the chief executive officer of the 
City of Tuskegee.

The Defendants, G. B. Edwards, Jr., L. D. Gregory, Frank 
A. Oslin, W. Foy Thompson and H. A. Vaughan, Jr., are all 
residents of Tuskegee and duly elected members of the Tuske­
gee City Council. As members of the Tuskegee City Council,

30
3



they are the governing body of said City and are charged by 
law with the responsibility for seeing to the enforcement of all 
state statutes and city ordinances affecting the City of Tuskegee,

The Defendant, 0. L. Hodnett, is Chief of Police of the 
City of Tuskegee, and as such Officer, it is his duty to enforce 
all state statutes and city ordinances affecting the City of Tus­
kegee, Alabama.

The Defendants, E. C. Leslie, Charles Huddleston, J. T. 
Dyson, F. C. Thompson and Virgil Guthrie are the duly elected 
members of the Board of Revenue of Macon County, Alabama, 
which Board is the general governing body of Macon County.

The Defendant, Preston Hornsby, is the duly elected Sheriff 
of Macon County, Alabama and as such, he is the chief law en­
forcement Officer of said County and is charged by law with 
the duty to enforce all state statutes affecting Macon County, 
Alabama.

The Defendant, William Varner, is the duly elected Judge 
of Probate, whose duty it is, among other things, to compile a 
list of the qualified registered voters who are eligible to vote in 
municipal elections in the various cities and towns in Macon 
County, Alabama, including the City of Tuskegee. The De­
fendant, the City of Tuskegee, Alabama, is a municipal cor­
poration organized and existing under the law of the State of 
Alabama.

7.
Act No. 140

Act No. 140 of the 1957 Regular Session of the Alabama 
Legislature, passed on July 15, 1957 (attached hereto as plain­
tiffs’ Exhibit No. 1, and made a part of this Complaint), is “an 
Act to alter, re-arrange, and re-define the boundaries of the City 
of Tuskegee in Macon County.” The aforesaid Act recites no 
reasons for the change in boundaries, but a map showing the 
city limits of Tuskegee before and after the passage of the act 
(attached hereto as plaintiffs’ Exhibit No. 2, and made a part 
of this Complaint) reveals its necessary effect and obvious pur­
pose as hereinafter more fully appears. Prior to the time when 
Act. No. 140 became law, Tuskegee was square-shaped. It con­
tained approximately 5,397 Negroes, of whom about 400 were 
qualified as voters in the City of Tuskegee and approximately 
1,310 white persons, of whom approximately 600 were (aw

so4



are) qualified voters in said City. As redefined by said Act 
No. 140, Tuskegee resembles a “sea dragon”, with Negro 
neighborhoods, including the site of the Tuskegee Institute, 
eliminated. In general, no white persons, but several thousand 
Negroes including all but four or five qualified voters, have 
been excluded or “removed” from the City of Tuskegee by Act 
No. 140. The aforesaid Act deprives plaintiffs and those sim­
ilarly situated of the right to vote in municipal elections solely 
on account of their race and color in violation of the Fourteenth 
and Fifteenth Amendments of the Constitution of the United 
States.

8.
Purpose of Act No. 140

Act. No. 140 is another device in a continuing attempt on 
the part of the State of Alabama to disenfranchise Negro citi­
zens. Tuskegee is located approximately forty miles northeast 
of Montgomery, Alabama in Macon County, of which it is the 
County seat. Approximately seven-eighths (%) of the persons 
in Macon County are Negroes.

Macon County had no Board of Registrars to qualify appli­
cants for voter registration for more than eighteen months, 
from January 16, 1956 to June 3, 1957. Plaintiffs allege that 
the reason for no Macon County Board of Registrars is that 
almost all of the white persons possessing the qualification to 
vote in said County are already registered, whereas thousands 
of Negroes, who possess the qualifications, are not registered 
and cannot vote.

The present Act No. 140 was introduced into the Alabama 
State Legislature on June 7,1957 by State Senator Sam Engel- 
hardt of Macon County. Senator Engelhardt was at that time 
Executive Secretary for the White Citizens’ Council for the 
State of Alabama, an organization dedicated to the principles 
of white supremacy and prevention of integration of the white 
and Negro races. In 1951, Senator Engelhardt was the author 
of Act. No. 606, which became law on September 4, 1951 ( a 
c°py of which is attached hereto as plaintiffs’ Exhibit No. 3, 
and made a part of this Complaint). This Act prohibited “sin­
gle-shot” voting in elections where more than one place was to 
oe filled, thereby preventing Negroes in the City of Tuskegee

30
5



from guaranteeing the election of one member of the City 
Commission by use of the “single-shot” vote.

During the week of May 12, 1957, State Senator Engel- 
hardt published a copy of the local bill, which was later passed 
as Act. No. 140, in the Tuskegee News, a weekly newspaper 
(attached hereto as plaintiffs’ Exhibit No. 4, and made a part 
of this Complaint). The bill was made known generally through 
a story, written by Bob Ingram, appearing in the Montgomery 
Advertiser on May 19, 1957 (attached hereto as plaintiffs’ 
Exhibit No. 5, and made a part of this Complaint). The afore­
said newspaper article cited the “obvious” purpose of the bill, 
i.e., “to assure continued white control in Tuskegee City elec­
tions.” According to the same newspaper article, “Engelhardt 
also disclosed he was contemplating a proposal to abolish 
Macon County entirely if it became apparent that Negroes 
might gain control of the ballot boxes.” In December, 1957, 
Alabama voters approved Senator Engelhardt’s constitutional 
amendment to permit the abolition of Macon County (a copy 
of the constitutional amendment is attached hereto as plaintiff’s 
Exhibit No. 6, and made a part of this Complaint; an article 
in Time Magazine, December 30, 1957, page 17 is attached 
hereto as plaintiffs’ Exhibit No. 7 and made a part of this 
Complaint).

9.
Effect of Act No. 140

As a result of their exclusion from Tuskegee under Act. No. 
140, plaintiffs have been deprived of the services of City police­
men to patrol the school-zoned areas during certain hours as 
well as of the benefits of general street improvement and the 
paving of a particular street before August, 1957, as promised 
by the City prior to the passage of Act. No. 140—denials of 
property rights without due process of law and on account of 
their race and color in violation of the Fourteenth Amendment 
to the Constitution of the United States. As result of the alter­
ing, re-arranging, and re-defining of the boundaries of the City 
of Tuskegee, Alabama pursuant to Act No. 140, the plaintiffs 
and the class which they represent are not eligible to vote m 
municipal elections of the City of Tuskegee, Alabama. Plain­
tiffs have suffered and are threatened with further depriva-

6 30



tions of their property without having the right to vote in 
Tuskegee municipal elections as heretofore alleged.

10.
Effect of Act No. 140

Act No. 140 deprives plaintiffs on account of their race 
and color not only of their right to vote in the aforesaid elec­
tions but also of their rights to effective participation in Tus- 
kegee’s municipal affairs, i.e., their rights of free speech, press, 
and petition as residents and citizens of Tuskegee—all in vio­
lation of the due process and equal protection clauses of the 
Fourteenth and Fifteenth Amendments to the Constitution of 
the United States.

Plaintiffs and those similarly situated are suffering irrep­
arable injury to their rights to vote, to free speech, press, and 
petition, and to property by reason of the Act herein com­
plained of. They have no plain, adequate or complete remedy 
to redress these wrongs other than by this suit for declaratory 
judgment and injunctive relief. Any other remedy would be 
attended by such uncertainties and delays as to deny substan­
tive relief, would involve a multiplicity of suits, and would 
cause further irreparable injury, damage and inconvenience to 
plaintiffs and those similarly situated.

Wherefore, plaintiff’s respectfully pray that, upon the 
filing of this Complaint this court advance this cause on the 
docket and order a speedy hearing in this action according to 
law and that upon such hearing:

(1) The Court issue a decree adjudging Act. No. 140 of 
the 1957 Regular Session of the Alabama Legislature, as ap­
plied to the plaintiffs and class which they represent, in viola­
tion of the due process and equal protection clauses of the 
Fourteenth Amendment of the Constitution of the United 
States and in violation of the Fifteenth Amendment of the 
Constitution of the United States, and

(2) That the Court enter a preliminary injunction pend­
ing the final disposition of the case, restraining and enjoining 
the defendants and each of them, and their servants, agents and 
successors in office from enforcing or executing the aforesaid 
Act against plaintiffs and those similarly situated, and from 
denying plaintiffs and those similarly situated the right to vote

so 7



in Tuskegee municipal elections, and to be recognized and 
treated in all respects as citizens of the City of Tuskegee, and

(3) That the Court enter a permanent injunction re­
straining and enjoining defendants and each of them, and their 
servants, agents and successors in office from enforcing or 
executing the aforesaid Act against plaintiffs and those sim­
ilarly situated, and from denying plaintiff’s and those similarly- 
situated the right to vote in Tuskegee municipal elections, and 
to be recognized and treated in all respects as citizens of the 
City of Tuskegee, and

(4) That the Court allow plaintiffs their costs herein, and 
grant such further, other additional or alternative relief as 
may appear to the Court to be equitable and just in the 
premises.

Filed August 4, 1958

EXHIBIT NO. 1
Act No. 140, Reg. Sess., 1957 S.2—Engelhardt

An Act
To alter, re-arrange, and re-deflne the boundaries of the 

City of Tuskegee in Macon County.

Be It Enacted by the Legislature of Alabama:
Section 1. The boundaries of the City of Tuskegee in 

Macon County are hereby altered, re-arranged and re-defined 
so as to include within the corporate limits of said municipality 
all of the territory lying within the following described bound­
aries, and to exclude all territory lying outside such boundaries: 

Beginning at the Northwest Corner of Section 30, Town­
ship 17-N, Range 24-E in Macon County, Alabama; thence 
South 89 degrees 53 minutes East, 1160.3 feet; thence South 
37 degrees 34 minutes East, 211.6 feet; thence South 53 degrees 
57 minutes West, 545.5 feet; thence South 36 degrees 03 min­
utes East 1190.0 feet; thence South 53 degrees 57 minutes 
West, 675.2 feet; thence South 36 degrees 19 minutes Bast, 
743.4 feet, thence South 33 degrees 19 minutes East, 743.4 feet;

8



thence South 33 degrees 50 minutes East, 1597.4 feet; thence 
North 61 degrees 26 minutes East, 122.8 feet; thence North 28 
degrees 34 minutes West, 50.0 feet; thence North 59 degrees 
11 minutes East, 1049.3 feet; thence South 30 degrees 48 min­
utes East 50.0 feen; thence North 50 degrees 08 minutes East, 
341.1 feet; thence North 47 degrees 08 minutes East, 1239.4 
feet; thence South 42 degrees 51 minutes East, 300.0 feet; 
thence South 47 degrees 00 minutes West, 1199.5 feet; thence 
South 64 degrees 09 minutes East, 1422.0 feet; thence South
24 degrees 13 minutes East 488.7 feet; thence South 73 degrees
25 minutes West, 370.8 feet; thence North 79 degrees 25 min­
utes West, 2285.3 feet; thence South 61 degrees 26 minutes 
West, 1232.6 feet; thence South 41 degrees 03 minutes East, 
792.3 feet; thence South 12 degrees 03 minutes East, 842.2 
feet; thence North 88 degrees 09 minutes East, 4403.6 feet; 
thence South 0 degrees 15 minutes West, 6000.2 feet; thence 
North 89 degrees 59 minutes West, 4140.2 feet; thence North 
34 degrees 46 minutes West, 6668.7 feet; thence North 35 de­
grees 00 minutes West, 380.4 feet; thence North 16 degrees 55 
minutes West, 377.2 feet; thence North 54 degrees 29 minutes 
East, 497.8 feet; thence North 35 degrees 02 minutes West, 
717.5 feet; thence South 54 degrees 03 minutes West, 1241.9 
feet; thence North 36 degrees 09 minutes West, 858.4 feet; 
thence North 44 degrees 28 minutes East 452.2 feet; thence 
North 22 degrees 33 minutes East, 4305.9 feet; thence North 
86 degrees 43 minutes East, 236.3 feet to the point of beginning.

Section 2. All laws or parts of laws which conflict with 
this Act are repealed.

Section 3. This Act shall become effective immediately 
upon its passage and approval by the Governor, or upon its 
otherwise becoming a law.

This bill became an Act on July 15, 1957 without approval 
by the Governor.

I hereby certify that the foregoing copy of an Act of the 
Legislature of Alabama has been compared with the enrolled 
Act and it is a true and correct copy thereof.

Given under my hand this 15 day of July, 1957.
J. E. SPEIGHT,

Secretary of Senate.

9



EXHIBIT NO. 2

EXHIBIT NO. 3
Act No. 606, Reg. Sess., 1957 H.7 2 2 -Engelhardt

An Act
Relating to elections; prohibiting single shot voting in 

municipal election; providing that when two (2) or more can­
didates are to be elected to the same office, the voter must ex­
press his choice for as many candidates as there are places to 
be filled.
Be It Enacted by the Legislature of Alabama:

Section 1. A ballot commonly known or referred to as 
“a single shot” shall not be counted in any municipal election. 
When two (2) or more candidates are to be elected to the same

i
10



office, the voter must express his choice for as many candidates 
as there are places to be filled and if he fails to do so, his ballot, 
so far as that particular office is concerned shall not be counted 
and recorded.

Section 2. All laws or parts of laws which conflict with 
this Act are repealed.

Section 3. This Act shall become effective immediately 
upon its passage and approval by the governor or upon its 
otherwise becoming a law.
Approved September 4,1951

EXHIBIT NO. 4 
(Omitted in Printing.)

EXHIBIT NO. 5 
(Newspaper Clipping)

Sunday, May 19, 1957
Montgomery Advertiser-Alabama Journal
‘MOVES’ NEGROES
en gelhardt  b il l
TO SHRINK CITY 

By Bob Ingram
State Sen. Sam Engelhardt of Macon, in another bid to 

maintain total segregation in his county, has prepared a bill 
for introduction in the Legislature designed to assure contin­
ued white control in Tuskegee city elections.

The local bill, advertised for the first time this past week 
ln weekly Tuskegee News, would so rearrange and alter 
the city limits of Tuskegee as to exclude practically all of the 
Negro families.

The bill obviously was conceived as a result of the heavy 
Negro registration in Tuskegee. Negroes have registered in 
such numbers in that city as to make it a distinct possibility 

at a member of their race could be elected to municipal office. 
JUST ‘LOCAL BILL’.

Although no official records are available, it is estimated 
at Negroes comprise from 35 to 40 per cent of the total vote 

ln ^  city of Tuskegee.
While the purpose of the local bill is obvious, neither

30
11



Engelhardt nor Tuskegee Mayor Phil Lightfoot will discuss 
the measure.

“It is nothing but a local bill, affecting the city of Tuskegee 
only,” Engelhardt declared. He would say no more.

Mayor Lightfoot indicated he was not too familiar with 
the measure.

“I frankly haven’t  even studied the bill, but we will take a 
closer look at it real soon,” Lightfoot said. “I guess we will 
have to make a survey to see just what it does.”

Actually a survey has already been made and it shows that 
the city limits of Tuskegee, now perfectly square in shape, will 
be so redefined as to look like the outline of a sea dragon.

Tustegee Institute and the surrounding residential area 
heavily populated with Negroes will be removed entirely from 
the city limits. So will several other sections of the city where 
there are Negro residential areas.

One Tuskegee resident who made a thorough appraisal of 
the bill offered a brief observation:

“He slipped up a couple of places and left about 15 or 20 
Negro families inside the city limits. I guess he wanted to be 
fair about it.”

Engelhardt, head of the pro-segregation Alabama Assn, of 
Citizens Councils, earlier took steps toward lessening the 
chances of Negroes being elected to office in Tuskegee.

In 1951 he pushed through a bill prohibiting “single-shot” 
voting in elections where more than one place was to be filled. 
Had “single-shot” balloting been permitted Negroes in Tuske­
gee could have voted for but one candidate in City Commission 
races and in so doing all but guarantee the election of the per­
son they favored.

However under the law passed in 1951 voters must vote 
for as many candidates as there are places to fill.

Only last week Engelhardt also disclosed he was contem­
plating a proposal to abolish Macon County entirely if it be­
came apparent that Negroes might gain control of the ballot 
boxes.

EXHIBIT NO. 6
Constitutional Amendment Relative to Macon County.

“Legislature may, with or without the notice prescribe" 
by Section 106 of this Constitution, by a majority vote of each

12 9



house, enact general or local laws altering or rearranging the 
existing boundaries, or reducing the area of, or abolishing, 
Macon County, and transferring its territory, or any part 
thereof, and its jurisdiction and functions to contiguous coun­
ties. Toward this end, there shall be a committee composed of 
the senators and representatives who now represent the coun­
ties of Bullock, Elmore, Lee, Macon, Montgomery, and Talla­
poosa in the Legislature to study and determine the feasibility 
of abolishing Macon County or reducing its area, and to formu­
late the legislation deemed necessary for such purpose. The 
committee shall select a chairman and a vice-chairman from 
among their number, shall meet on the call of the chairman, 
and shall report its findings, conclusions, and recommendations 
to the Legislative Council on or before the first Friday in Octo­
ber 1958; and the Legislative Council shall submit such report 
and any legislation proposed by the committee to the Legisla­
ture at the 1959 regular session thereof. The committee shall 
be discharged upon the filing of its report with the Legislative 
Council. Committee members shall be entitled to receive an 
amount equal to their regular legislative per diem and allow­
ances for each day they serve, not to exceed fifty days alto­
gether. The committee may employ such engineering technical, 
clerical, and stenographic personnel as may be necessary for 
the conduct of its work, and may fix their compensation. The 
compensation and expenses of the committee and its employees, 
and the other necessary expenses incurred by the committee, 
shall be paid from any money in the state treasury not other­
wise appropriated, on requisitions certified by the committee 
chairman; provided that the aggregrate amount to be expended 
by the committee shall not exceed the sum of fifty thousand
dollars.”
Passed the Senate August 23,1957 
Passed the House September 13, 1957 
Approved by the Electors December, 1957

EXHIBIT NO. 7
Article in Time Magazine, December 30, 1957, page 17.

30
13



How to Deny a Vote
In the opinion of Alabama’s Racist State Senator Sam 

Engelhardt, Jr., if you can’t  lick ’em, the best thing to do is 
scatter ’em. Panicky because Negro vote strength was rising 
in his county seat of Tuskegee (population 6,700), Engelhardt 
last May authored a gerrymander that jig-sawed more than 
400 Negro residents—and the respected Negro Tuskegee Insti­
tute—outside the city’s limits. Forthwith, the city of Tuskegee 
was hard hit by a Negro boycott (Time, July 8) that slashed 
white merchants’ business 50%, shut down stores that depend­
ed primarily on Negro trade. Incensed at the boycott, alarmed 
because Tuskegee-—encompassing Macon County is 84% Ne­
gro, Senator Engelhardt, officer in the lily-white Alabama Asso­
ciation of Citizens’ Councils, hatched a king-size gerrymander. 
Last week, by a 21,012 vote margin, Alabama voters approved 
his constitutional amendment to abolish Macon County.

Opposition to the Engelhardt proposal was strong, not 
because many Alabamans were suddenly reconciled to Negro 
voting, but because they agreed with the Birmingham News 
that “it leaves unanswered a number of questions as to division 
of tax moneys and the responsibilities for the areas of Macon 
which may be divided.” Nonetheless, the Engelhardt plan can 
now run its course. Whenever they choose, commissioners of 
Macon County can meet commissioners of abutting Tallapoosa, 
Elmore, Lee, Bullock and Montgomery Counties, apportion 
among the other five Macon County’s 618 square miles. Then, 
when the legislature approves, Macon County will disappear.

MOTIONS TO STRIKE 
(Title Omitted.)

I.
Come now the defendants, separately and severally, and 

move the Court to strike plaintiffs’ complaint filed herein on 
the grounds:

1. Said complaint is not in accordance with Rule 8(e) of 
the Federal Rules of Civil Procedure.

2. Said complaint contains matters and exhibits which 
are impertinent.

14 9



Without waiving the foregoing Motions to Strike the en­
tire complaint, come now the defendants, seperately and sev­
erally, and in the alternative, move the Court to strike from the 
plaintiffs’ complaint that portion thereof under the subdivi­
sions designated “8.” and “9.”, and Exhibits 3, 5, 6 and 7, and 
as grounds for said motion say:

1. Said matters and exhibits are redundant.
2. Said matters and exhibits are immaterial.
3. Said matters and exhibits are impertinent.

Filed August 25,1958

II.

MOTIONS TO DISMISS 
(Title Omitted.)

Come now the defendants, separately and severally, and 
move the Court as follows:

1. To dismiss the action because the complaint fails to state 
a claim against defendants upon which relief can be granted.

2. To dismiss the action for lack of jurisdiction.
3. To dismiss the action for that it affirmatively appears 

from the complaint that plaintiffs seek to have declared void 
a duly and lawfully enacted statute of the State of Alabama fix­
ing and determining the corporate limits of a municipality.

4. To dismiss the action for that the fixing of boundaries 
of municipal corporations is a matter for the State Legislature 
acting in accordance with the State Constitution.

5. To dismiss the action for that a State may at its pleas­
ure expand or contract the territorial area of a municipal cor­
poration.

6. To dismiss the action for that plaintiffs seek to have 
the Court strike down a statute of the State of Alabama fixing 

defining the corporate limits of the City of Tuskegee, Ala­
bama, and as to boundaries of municipal corporations the State 
is supreme, and its Legislative body conforming its action to 
the State Constitution, may do as it will, unrestrained by any 
Provision of the Constitution of the United States.

To dismiss the action for that plaintiffs seek to have 
his Court strike down a statute of the State of Alabama fixing

30
15



and defining the territorial limits of a municipal corporation, 
and to have the Court establish new boundaries for the municipal j 
corporation, and this Court is without jurisdiction to do so.

8. To dismiss the action for that the power is in the I 
State alone to fix and determine boundaries of municipal cor­
porations.

9. To dismiss the action for that the Courts have no I 
power to determine the wisdom or policy of the Legislature j 
which acting in accordance with the State Constitution fixes 
and determines the boundaries of a municipal corporation, a 
political subdivision of the State created by the State as a con­
venient agency for exercising such powers of the State in and 
over such limited territory as the State alone may determine.

10. To dismiss the action for that the number, nature, and 
duration of the powers conferred upon a municipal corporation 
and the territory over which they shall be exercised rests in the 
absolute discretion of the State.

11. To dismiss the action for that the action in effect is 
against the State of Alabama and the State is immune to suit.
Filed August 25, 1958

JUDGMENT OF DISMISSAL 
(Omitted in Printing.)

[The opinion of the District Court is reported at 167 F. 
Supp. 405.1

NOTICE OF APPEAL 
(Omitted in Printing.)

JUDGMENT OF AFFIRMANCE 
(Omitted in Printing.)

[The opinion of the Court of Appeals is reported at 278
F.2d 594. A concurring opinion appears at p. 611 and a dis­
senting opinion at p. 599.3

ORDER GRANTING CERTIORARI 
(Omitted in Printing.)

31
1 6



JOINT APPENDIX

TITLE 28, UNITED STATES CODE

§1331. Federal question; amount in controversy; costs.
(a) The district courts shall have original jurisdiction of 

all civil actions wherein the matter in controversy exceeds the 
sum or value of $10,000, exclusive of interest and costs, and 
arises under the Constitution, laws or treaties of the United 
States.

§1343. Civil rights and elective franchise.
The district court shall have original jurisdiction of any 

civil action authorized by law to be commenced by any person:
(3) To redress the deprivation, under color of any State 

law, statute, ordinance, regulation, custom or usage, of any 
right, privilege or immunity secured by the Constitution of 
the United States or by any Act of Congress providing for 
equal rights of citizens or of all persons within the jurisdiction 
of the United States.

§2201. Creation of remedy.
In a case of actual controversy within its jurisdiction, 

except with respect to Federal taxes, any court of the United 
States, upon the filing of an appropriate pleading, may declare 
the rights and other legal relations of any interested party 
seeking such declaration, whether or not further relief is 
or could be sought. Any such declaration shall have the force 
and effect of a final judgment or decree and shall be reviewable 
as such.

§2202. Further relief.
Further necessary or proper relief based on a declaratory 

judgment or decree may be granted, after reasonable notice 
and hearing, against any adverse party whose rights have been 
determined by such judgment.

17



TITLE 42, UNITED STATES CODE

§1981. Equal rights under the law.
All persons within the jurisdiction of the United States 

shall have the same right in every State and Territory to make 
and enforce contracts, to sue, be parties, give evidence, and 
to full and equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by white citi­
zens, and shall be subject to like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, and to no other.

§1983. Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory, sub­
jects, or causes to be subjected, any citizen of the United States 
or other person within the judirdiction thereof to the depriva­
tion any rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceeding for 
redress.

18
*



TRANSCRIPT OF RECORD

Supreme Court of the U nited  States

OCTOBER TERM; 1959 S  I960

n o . m

C. G. GOMILLION, ET AL., PETITIONERS,

vs.

PH IL  M. LIGHTFOOT, AS MAYOR OF 
THE CITY OF THSKEGEE, ET AL.

ON W R IT  O P C ER TIO R A R I TO T H E  U N IT E D  STA TES CO U RT O P A PPEA L S 

PO R  T H E  P IF T H  C IR C U IT

PETITION FOR CERTIORARI FILED JANUARY 30, 1960 
CERTIORARI GRANTED MARCH 21, 1960



S U P R E M E  C O U R T  O F  T H E  U N IT E D  S T A T E S

OCTOBER TERM, 1959

C. G. GOMILLION, ET  AL., PETITIONERS, 

vs.

PH IL  M. LIGHTFOOT, AS MAYOR OF 
THE CITY OF TUSKEGEE, ET AL.

No. 668

C. G. GOMILLION, ET  AL., PETITIONERS, 

vs.

PH IL  M. LIGHTFOOT, AS MAYOR OF 
TH E CITY OF TUSKEGEE, ET AL.

ON W R IT OP C ERTIO RA RI TO T H E  U N IT E D  STA TES CO U RT OP A PPEA L S 

FO R  T H E  F IF T H  C IR C U IT

I N D E X
Original P rin t

Record from the U.S.D.C. for the Middle District 
of Alabama
Caption (omitted in printing) _____________  1 1
Complaint ______________________________  1 1

Exhibit No. 1—Act No. 140—Alabama Law
(Regular Session, 1957) _______________  13 9

Exhibit No. 2—Map showing the city limits of
Tuskegee _____________________________ 16 13

Exhibit No. 3—Act No. 606—Alabama Law
(Regular Session, 1957) _______________  17 14

Exhibit No. 7—Article in Time Magazine of
December 30, 1957 ____________________  18 15

Exhibit No. 4—Copy of clipping from the 
newspaper, “Tuskegee News,” dated May 30,
1957 _______________________________  19 16

R e c o r d  P r e s s , P r i n t e r s , N e w  Y o r k , N .  Y . ,  A p r i l  19, 1960



11 IN D E X

Original Print
Record from the U.S.D.C. for the Middle District 

of Alabama—Continued 
Complaint—Continued

Exhibit No. 5—Photostat of map and clipping 
from the newspaper, “Montgomery Adver­
tiser,” dated May 19, 1957 ______________ 22 19

Exhibit No. 6 — Constitutional Amendment
relative to Macon County ______________  23 20

Motions to strike _________________________  24 21
Motions to dismiss ________________________  26 22
Memorandum opinion, Johnson, J. ___________ 29 24
Judgment _______________________________  39 31
Notice of appeal __________________________  41 32
Cost bond on appeal (omitted in printing) ___  42 33
Designation of record _____________________  44 33
Clerk’s certificate (omitted in printing) ______  46 33

Proceedings in U.S.C.A. for the Fifth Circuit ____  47 33
Minute entry of argument and submission (omit­

ted in printing) __________________________  47 33
Opinion, Jones, J. --------------------------    48 34
Dissenting opinion, Brown, J. -------------------------  59 42
Concurring opinion, Wisdom, J. _______________ 89 65
Judgment _________________________________  100 73
Clerk’s certificate (omitted in printing) ________  101 73
Order extending time to file petition for writ of

certiorari ________________________________ 102 74
Order allowing certiorari ____________________  103 74



1

[fol. 1]
IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA

[Caption omitted]

C. G. G o m il l io n , C e l ia  B . C h a m b e r s , A lm a  R . C raig , 
F ra n k  H. B e n t l e y , W il l ie  I). B e n t l e y , K e n n e t h  L. 
B uford , W il l ia m  J .  W h it e , A u g u stu s  0 .  Y o u n g , J r ,, 
N e t t ie  B. J o n es , D etr o it  L e e , D e l ia  D. S u lliv a n  and 
L ynnw ood  T. D orsey on behalf of themselves and others 
similarly situated, Plaintiffs,

versus
Phil  M. L ig h t fo o t , as Mayor of the City of Tuskegee, 

G. B. E dwards, J r ., L, D. G regory, F r a n k  A. O s l in , 
W . F oy T h o m pso n  and H . A. V a u g h a n , J r . as Members 
of the Tuskegee City Council; 0. L. H o d n ett , as Chief 
of Police of the City of Tuskegee, Alabama; E. C. 
L e sl ie , C h a r les  H u d d lesto n , J .  T . D y so n , F .  C. T h o m p ­
son and V ir g il  G u t h r ie , as Members of the Board of 
[fol. 2] Revenue of Macon County, Alabama; P reston  
H ornsby , as Sheriff of Macon County, Alabama; 
W illia m  V a r n er , as Judge of Probate of Macon Count}7, 
Alabama, C it y  of T u sk e g e e , A la ., a Municipal Corp., 
Defendants.

A p p e a r a n c e s :

For Plaintiffs-Appellants: Mr. Fred D. Gray, 113 Mon­
roe Street, Montgomery, Alabama, Mr. A rthur D. Shores, 
1630 Fourth Avenue, North Birmingham, Alabama.

For Defendants-Appellees: Mr. H arry  D. Raymon, Tus­
kegee, Alabama, Messrs. Hill, Hill, Stovall & Carter, 2nd 
Floor, Hill Building, P. 0. Box 116, Montgomery, Alabama.



C o m pl a in t -— Filed August 4, 1958

1.
Jurisdiction

Jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1331. This action arises under 
the due process and equal protection clauses of the Four­
teenth Amendment of the Constitution of the United States, 
[fol. 3] the Fifteenth Amendment of the Constitution of 
th e 1 United States, and under Title 42, United States 
Code, Section 1981, as hereinafter more fully appears. The 
m atter in controversy, exclusive of interest and costs, ex­
ceeds the sum or value of Ten Thousand ($10,000.00) 
Dollars.

2.
Jurisdiction

Jurisdiction of this Court is also invoked under Title 
28, United States Code, Section 1343 (3). This action is 
authorized by Title 42, United States Code, Section 1983 
to be commenced by any citizen of the United States or 
other person within the jurisdiction thereof to redress 
the deprivation under color of state law, statute, ordi­
nance, regulation, custom, or usage of rights, privileges 
and immunities secured by the Fourteenth and Fifteenth 
Amendments of the Constitution of the United States and 
by Title 42, United States Code, Section 1981, providing 
for the equal rights of citizens and all persons within the 
jurisdiction of the United States, as hereinafter more fully 
appears. This is an action for temporary and permanent 
injunction to restrain the defendants, officers of the City 
of Tuskegee, and of Macon County, Alabama, their agents, 
employees and their successors in Offices from the enforce­
ment operation and execution of Act No. 140 of the 1957 
Regular Session of the Alabama Legislature (passed 
July 15, 1957), on the grounds that the aforesaid statute 
denies rights, privileges and immunities secured by the 
Fourteenth and Fifteenth Amendments of the Constitution



3

of the United States and by Title 42, United States Code, 
[fol. 4] Section 1981, as hereinafter more fully appears.

3.

Jurisdiction
This is also a proceeding for declaratory judgment under 

Title 28, United States Code, Sections 2201 and 2202, de­
claring the rights and legal relationships of the parties in 
tlie matter in controversy, to w it:

Whether the enforcement, execution or operation of Act 
No. 140 of the 1957 Regular Session of the Alabama Legis­
lature (passed July 15, 1957), as applied to the plaintiffs 
and the class which they represent, by redefining the City 
limits to exclude the plaintiffs and the class which they 
represent from the City of Tuskegee solely because of their 
race and color, deprives them of the right to vote in m u­
nicipal elections for the City of Tuskegee, Alabama, denies 
to them their rights, privileges and immunities as citizens 
of the United States and the equal protection of the laws 
as secured by the Fourteenth and Fifteenth Amendments 
to the Constitution of the United States and rights and 
privileges secured to them by Title 42, United States Code, 
Sections 1981 and 1983, and is for the aforesaid reasons 
unconstitutional and void.

4.

Class Action
Plaintiffs bring this action in their own behalf and on 

behalf of all other Negro citizens of the United States 
[fol. 5] and of the State of Alabama, residing within the 
City limits of Tuskegee, Macon County, as those city 
limits were constituted prior to the passage of Act No. 
140 by the 1957 Regular Session of the Alabama Legisla­
ture, which Negro citizens are similarly situated and 
affected with reference to the m atters here involved. The 
Members of this class are so numerous as to make it im­
practicable to bring them all before the Court. There being 
common questions of law and fact and a common relief



4

being sought, as hereinafter more fully appears, this action 
is brought as a class suit pursuant to Buie 23A of the 
Federal Eules of Civil Procedure. The members of this 
class are fairly and adequately represented by the named 
plaintiffs herein.

5.

Plaintiffs
Plaintiffs are Negro citizens of the United States and 

of the State of Alabama who reside within the City limits 
of Tuskegee, Macon County, as those city limits were con­
stituted prior to the passage of Act No. 140 by the 1957 
Eegular Session of the Alabama Legislature.

6.

Defendants
The Defendant, Phil M. Lightfoot, is a resident of Macon 

County, Tuskegee, Alabama, and is Mayor of the City of 
Tuskegee, Alabama. As such he is the chief executive officer 
of the City of Tuskegee.
[fol. 6] The Defendants, Gf. B. Edwards, Jr., L. I). 
Gregory, Frank A. Oslin, W. Foy Thompson and H. A. 
Vaughan, Jr., are all residents of Tuskegee and duly 
elected members of the Tuskegee City Council. As members 
of the Tuskegee City Council, they are the governing body 
of said City and are charged by law with the responsibility 
for seeing to the enforcement of all state statutes and city 
ordinances affecting the City of Tuskegee.

The Defendant, 0. L. Hodnett, is Chief of Police of 
the City of Tuskegee, and as such Officer, it is his duty 
to enforce all state statutes and city ordinances affecting 
the City of Tuskegee, Alabama.

The Defendants, E. C. Leslie, Charles Huddleston, J. T. 
Dyson, F. C. Thompson and Virgil Guthrie are the duly 
elected members of the Board of Eevenue of Macon County, 
Alabama, which Board is the general governing body of 
Macon County.

The Defendant, Preston Hornsby, is the duly elected 
Sheriff of Macon County, Alabama and as such, he is the



5

chief law enforcement Officer of said County and is charged 
by law with the duty to enforce all state statutes affecting 
Macon County, Alabama.

The Defendant, William Varner, is the duly elected 
Judge of Probate, whose duty it is, among other things, 
to compile a list of the qualified registered voters who 
are eligible to vote in municipal elections in the various 
cities and towns in Macon County, Alabama, including 
the City of Tuskegee. The Defendant, the City of Tus- 
kegee, Ala., is a municipal corp. organized and existing 
[fol. 7] under the Law of the State of Alabama.

7.

Act No. 140
Act No. 140 of the 1957 Regular Session of the Alabama 

Legislature, passed on July 15, 1957 (attached hereto as 
plaintiffs’ Exhibit No. 1, and made a part of this Com­
plaint), is “an Act to alter, re-arrange, and re-define the 
boundaries of the City of Tuskegee in Macon County.” 
The aforesaid Act recites no reasons for the change in 
boundaries, but a map showing the city limits of Tuskegee 
before and after the passage of the act (attached hereto 
as plaintiffs’ Exhibit No. 2, and made a part of this Com­
plaint) reveals its necessary effect and obvious purpose 
as hereinafter more fully appears. P rio r to the time when 
Act No. 140 became law, Tuskegee was square-shaped. It 
contained approximately 5,397 Negroes, of whom about 
400 were qualified as voters in the City of Tuskegee and 
approximately 1,310 white persons, of whom approximately 
600 were (and are) qualified voters in said City. As re­
defined by said Act No. 140, Tuskegee resembles a “sea 
dragon”, with Negro neighborhoods, including the site of 
the Tuskegee Institute, eliminated. In  general, no white 
persons, but several thousand Negroes including all but 
four or five qualified voters, have been excluded or “re­
moved” from the City of Tuskegee by Act No. 140. The 
aforesaid Act deprives plaintiffs and those similarly situ­
ated of the right to vote in municipal elections solely 
on account of their race and color in violation of the Four-



6

[fol. 8] teentli and Fifteenth Amendments of the Consti­
tution of the United States.

8.
Purpose of Act No. 140

Act No. 140 is another device in a continuing attempt 
on the part of the State of Alabama to disenfranchise 
Negro citizens. Tuskegee is located approximately forty 
miles northeast of Montgomery, Alabama in Macon County, 
of which it is the County seat. Approximately seven-eighths 
(%) of the persons in Macon County are Negroes.

Macon County had no Board of Registrars to qualify 
applicants for voter registration for more than eighteen 
months, from January  16, 1956 to June 3, 1957. Plaintiffs 
allege that the reason for no Macon County Board of 
Registrars is that almost all of the white persons possess­
ing the qualification to vote in said County are already 
registered, whereas thousands of Negroes, who possess 
the qualifications, are not registered and cannot vote.

The present Act No. 140 was introduced into the Ala­
bama State Legislature on June 7, 1957 by State Senator 
Sam Engelhardt of Macon County. Senator Engelhardt 
was at that time Executive Secretary for the White Citi­
zens’ Council for the State of Alabama, an organization 
dedicated to the principles of white supremacy and pre­
vention of integration of the white and Negro races. In 
1951, Senator Engelhardt was the author of Act No. 606, 
which became law on September 4, 1951 (a copy of which 
[fol. 9] is attached hereto as plaintiffs’ Exhibit No. 3, and 
made a p a rt of this Complaint). This Act prohibited 
“single-shot” voting in elections where more than one place 
was to be filled, thereby preventing Negroes in the City 
of Tuskegee from guaranteeing the election of one member 
of the City Commission by use of the “single-shot” vote.

During the week of May 12, 1957, State Senator Engel­
hardt published a copy of the local bill, which was later 
passed as Act No. 140, in the Tuskegee News, a weekly 
newspaper (attached hereto as plaintiffs’ Exhibit No. 4, 
and made a p a rt of this Complaint). The bill was made



7

known generally through a story, written by Bob Ingram, 
appearing in the Montgomery Advertiser on May 19, 1957 
(attached hereto as plaintiffs’ Exhibit No. 5, and made a 
part of this Complaint). The aforesaid newspaper article 
cited the “obvious” purpose of the bill, i.e., “to assure 
continued white control in Tuskegee City elections.” Ac­
cording to the same newspaper article, “Engelhardt also 
disclosed he was contemplating a proposal to abolish 
Macon County entirely if it became apparent that Negroes 
might gain control of the ballot boxes.” In  December, 
1957, Alabama voters approved Senator Engelhardt’s con­
stitutional amendment to permit the abolition of Macon 
County (a copy of the constitutional amendment is attached 
hereto as plaintiffs’ Exhibit No. 6, and made a p a rt of 
this Complaint; an article in Time Magazine, December 30, 
1957, page 17 is attached hereto as plaintiffs’ Exhibit No. 7 
and made a part of this Complaint).

[fol. 10] 9.
Effect of Act No. 140

As a result of their exclusion from Tuskegee under 
Act No. 140, plaintiffs have been deprived of the services 
of City policemen to patrol the school-zoned areas during 
certain hours as well as of the benefits of general street 
improvement and the paving of a particular street before 
August, 1957, as promised by the City prior to the passage 
of Act No. 140—denials of property rights without due 
process of law and on account of their race and color in 
violation of the Fourteenth Amendment to the Constitu­
tion of the United States. As result of the rearing, re­
arranging, and re-defining of the boundaries of the City 
Tuskegee, Alabama pursuant to Act No. 140, the plain­
tiffs and the class which they represent are not eligible 
to vote in municipal elections of the City of Tuskegee, 
Alabama. Plaintiffs have suffered and are threatened with 
further deprivations of their property without having the 
right to vote in Tuskegee municipal elections as heretofore 
alleged.



8

Effect of Act No. 140
Act No. 140 deprives plaintiffs on account of their race 

and color not only of their right to vote in the aforesaid 
elections but also of their rights to effective participation 
in Tuskegee’s municipal affairs, i.e., their rights of free 
speech, press, and petition as residents and citizens of 
Tuskegee—all in violation of the due process and equal 
[fol. 11] protection clauses of the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States.

Plaintiffs and those similarly situated are suffering 
irreparable injury to their rights to vote, to free speech, 
press, and petition, and to property by reason of the Act 
herein complained of. They have no plain, adequate or 
complete remedy to redress these wrongs other than by 
this suit for declaratory judgment and injunctive relief. 
Any other remedy would be attended by such uncertainties 
and delays as to deny substantive relief, would involve 
a multiplicity of suits, and would cause further irreparable 
injury, damage and inconvenience to plaintiffs and those 
similarly situated.

Wherefore, plaintiffs respectfully pray that, upon filing 
of this Complaint, as may appear proper and convenient 
to the Court will advance this cause or its docket and 
order a speedy hearing thereon according to law and upon 
such hearing:

(1) The Court issue a decree adjudging Act No. 140 
of the 1957 Regular Session of the Alabama Legislature, 
as applied to the plaintiffs and class which they represent, 
in violation of the due process and equal protection clauses 
of the Fourteenth Amendment of the Constitution of the 
United States and in violation of the Fifteenth Amendment 
of the Constitution of the United States, and

(2) That the Court enter a preliminary injunction pend­
ing the final disposition of the case, restraining and en­
joining the defendants and each of them, and their servants, 
agents and successors in office from enforcing or executing

10.



9

[fol. 12] the aforesaid Act against plaintiffs and those 
similarly situated, and from denying plaintiffs and those 
similarly situated the right to vote in Tuskegee municipal 
elections, and to be recognized and treated in all respects 
as citizens of the City of Tuskegee, and

(3) That the Court enter a  permanent injunction re­
straining and enjoining defendants and each of them, and 
their servants, agents and successors in office from en­
forcing or executing the aforesaid Act against plaintiffs 
and those similarly situated, and from denying plaintiffs 
and those similarly situated the right to vote in Tuskegee 
municipal elections, and to be recognized and treated in 
all respects as citizens of the City of Tuskegee, and

(4) That the Court allow plaintiffs their costs herein, 
and grant such further, other additional or alternative 
relief as may appear to the Court to be equitable and just 
in the premises.

Fred D. Gray, A ttorney for the Plaintiffs.
Fred D. Gray, 113 Monroe Street, Montgomery, Alabama.

Duly sworn to by Kenneth L. Buford, jurat omitted in 
"printing.

[fol. 13]
E x h ib it  No. 1 to C o m pl a in t

Each Probate Judge, Sheriff, and the Clerk and Reg­
ister of the Circuit Court is required by law to preserve 
this slip or pamphlet in a book kept in his office until the 
Act is published in permanent form.

Alabama Law.
(Regular Session, 1957.)

Act No. 140 S.291—Engelhardt
An Act.

To alter, re-arrange, and re-define the boundaries of the 
City of Tuskegee in Macon County.



10

Be It Enacted by the Legislature of Alabama:
Section 1. The boundaries of the City of Tuskegee in 

Macon County are hereby altered, re-arranged and re­
defined so as to include within the corporate limits of 
said municipality all of the territory  lying within the fol­
lowing described boundaries, and to exclude all territory 
lying outside such boundaries:
[fol. 14] Beginning a t the Northwest Corner of Section 
30, Township 17-N, Range 24-E in Macon County, 
Alabama; thence South 89 degrees 53 minutes East,
1160.3 feet; thence South 37 degrees 34 minutes East,
211.6 feet; thence South 53 degrees 57 minutes West,
545.4 feet; thence South 36 degrees 03 minutes East,
1190.0 feet; thence South 53 degrees 57 minutes West,
675.2 feet; thence South 36 degrees 19 minutes East,
743.4 feet; thence South 33 degrees 50 minutes East,
1597.4 feet; thence North 61 degrees 26 minutes East, 
1122.8 feet; thence North 28 degrees 34 minutes West,
50.0 feet; thence North 59 degrees 11 minutes East,
1049.3 feet; thence South 30 degrees 48 minutes East,
50.0 feet; thence North 50 degrees 08 minutes East,
341.1 feet; thence North 47 degrees 08 minutes East,
1239.4 feet; thence South 42 degrees 51 minutes East,
300.0 feet; thence South 47 degrees 00 minutes West,
1199.5 feet; thence South 64 degrees 09 minutes East,
1422.0 feet; thence South 24 degrees 13 minutes East
488.7 feet; thence South 73 degrees 25 minutes West,
370.8 feet; thence North 79 degrees 25 minutes West,
2285.3 feet; thence South 61 degrees 26 minutes West,
1232.6 feet; thence South 41 degrees 03 minutes East
792.3 feet; thence South 12 degrees 03 minutes East,
842.2 feet; thence North 88 degrees 09 minutes East,
4403.6 feet; thence South 0 degrees 15 minutes West,
6008.2 feet; thence North 89 degrees 59 minutes West,
4140.2 feet; thence North 34 degrees 46 minutes West,
6668.7 feet; thence North 35 degrees 00 minutes West,
380.4 feet; thence North 16 degrees 55 minutes West,
377.2 feet; thence North 54 degrees 29 minutes East,
497.8 feet; thence North 35 degrees 02 minutes West,



1 1

717.5 feet; thence South 54 degrees 03 minutes West, 
1241.9 feet; thence North 36 degrees 09 minutes West,
858.4 feet; thence North 44 degrees 28 minutes East 
[fol. 15] 452.2 feet; thence North 22 degrees 33 minutes 
East, 4305.9 feet; thence North 86 degrees 43 minutes East,
236.3 feet to the point of beginning.

Section 2. All laws or parts of laws which conflict with 
this Act are repealed.

Section 3. This Act shall become effective immediately 
upon its passage and approval by the Governor, or upon 
its otherwise becoming a law.

This bill became an Act on July 15, 1957 without ap­
proval by the Governor. I

I hereby certify that the foregoing copy of an Act of 
the Legislature of Alabama has been compared with the 
enrolled Act and it is a true and correct copy thereof.

Given under my hand this 15 day of July, 1957.
J . E. S p e i g h t ,

Secretary of Senate.



12

[fol. 16]
E x h ib it  No. 2 to Co m p la in t

(See Opposite) BSP3





13



u
[fol. 17]

Alabama Law.
(Regular Session, 1957.)

Act No. 606 H. 722-Engelhardt
An Act.

Relating to elections; prohibiting single shot voting in 
municipal election; providing that when two (2) or more 
candidates are to be elected to the same office, the voter 
must express his choice for as many candidates as there 
are places to be filled.

Be I t  Enacted by the Legislature of A labam a:
Section 1. A ballot commonly known or referred to as 

“a single shot” shall not be counted in any municipal elec­
tion. When two (2) more candidates are to be elected 
to the same office, the voter must express his choice for 
as many candidates as there are places to be filled and 
if he fails to do so, his ballot, so far as that particular 
office is concerned shall not be counted and recorded.

Section 2. All laws or parts of laws which conflict with 
this Act are repealed.

Section 3. This Act shall become effective immediately 
upon its passage and approval by the governor or upon 
its otherwise becoming a law.

Approved September 4, 1951.
Tim e: 11:18 A.M.

E x h ib it  No. 3 to Co m p la in t



15

Article In Time Magazine, December 30, 1957,
Page 17.

How to Deny A Vote.
In the opinion of Alabama’s Eacist State Senator Sam 

Engelhardt, Jr., if yon can’t lick ’em, the best thing to 
do is scatter ’em. Panicky because Negro vote strength 
was rising in his county seat of Tuskegee (population 
6,700), Engelhardt last May authored a gerrymander that 
jig-sawed more than 400 Negro residents—and the re­
spected Negro Tuskegee Institute—outside the city’s limits. 
Forthwith, the city of Tuskegee was hard hit by a Negro 
boycott (Time, July 8) that slashed white merchants’ busi­
ness 50%, shut down stores that depended prim arily on 
Negro trade. Incensed at the boycott, alarmed because 
Tuskegee-encompassing Macon County is 84% Negro, 
Senator Engelhardt, officer in the lily-white Alabama 
Association of Citizens’ Councils, hatched a king-size gerry­
mander. Last week, by a 21,012 vote margin, Alabama 
voters approved his constitutional amendment to abolish 
Macon County.

Opposition to the Engelhardt proposal was strong, not 
because many Alabamans were suddenly reconciled to 
Negro voting, but because they agreed with the Birming­
ham News that “it leaves unanswered a number of ques­
tions as to division of tax moneys and the responsibilities 
for the areas of Macon which may be divided.” Nonethe­
less, the Engelhardt plan can now run its course. When­
ever they choose, commissioners of Macon County can meet 
[fol. 19] commissioners of abutting Tallapoosa, Elmore, 
Lee, Bullock and Montgomery Counties, apportion among 
the other five Macon County’s 618 square miles. Then, 
when the legislature approves, Macon County will dis­
appear.

[fo l. 18]
E x h ib it  N o. 7 to Co m p la in t



16

E x h ib it  No. 4 t o  C o m p l a i n t  

(Newspaper Clipping.)
5-30-57 Tusk. News

Notice.
State of Alabama,
County of Macon.

Notice is hereby given that a bill substantially as follows 
will be introduced in the Legislature of Alabama and ap­
plication for its passage and enactment will be made, to-wit:
A Bill to be Entitled an Act:

To alter, re-arrange, and re-define the boundaries of 
the City of Tuskegee in Macon County.

Be I t  Enacted by the Legislature of A labam a:
Section 1. The boundaries of the City of Tuskegee in 

Macon County are hereby altered, re-arranged and re­
defined so as to include within the corporate limits of said 
municipality all of the territory  lying within the follow­
ing described boundaries, and to exclude all territory lying 
outside such boundaries:

Beginning a t the Northwest Corner of Section 30, Town­
ship 17-N, Bange 24-E in Macon County, Alabama : thence 
[fol. 20] South 89 degrees 53 minutes East, 1160.3 feet; 
thence South 37 degrees 34 minutes East, 211.6 fee t; thence 
South 53 degrees 57 minutes West, 545.4 feet; thence
South 36 degrees 03 minutes East, 1190.0 feet; thence
South 53 degrees 57 minutes West, 675.2 feet; thence
South 36 degrees 19 minutes East, 743.4 feet; thence South
33 degrees 50 minutes East, 1597.4 feet; thence North 61 
degrees 26 minutes East, 1122.8 feet; thence North 28 de­
grees 34 minutes West, 50.0 feet; thence North 59 degrees 
11 minutes East, 1049.3 fee t; thence South 30 degrees 48 
minutes East, 50.0 feet; thence North 50 degrees 08 min­
utes East, 341.1 feet; thence North 47 degrees 08 minutes 
East, 1239.4 feet; thence South 42 degrees 51 minutes East



17

300.0 feet; thence South 47 degrees 00 minutes West, 1199.5 
feet; thence South 64 degrees 09 minutes East, 1422.0 feet; 
thence South 24 degrees 13 minutes East 488.7 fee t; thence 
South 73 degrees 25 minutes West, 370.8 feet; thence North 
79 degrees 25 minutes West, 2285.3 feet; thence South 
61 degrees 26 minutes West, 1232.6 feet; thence South 41 
degrees 03 minutes East 792.3 feet; thence South 12 de­
grees 03 minutes East, 842.2 feet; thence North 88 degrees 
09 minutes East, 4403.6 feet; thence South 0 degrees 15 
minutes West 6008.2 feet; thence North 89 degrees 59 min­
utes West, 4140.2 feet; thence North 34 degrees 46 minutes 
West 6668.7 feet; thence North 35 degrees 00 minutes West, 
380.4 feet; thence North 16 degrees 55 minutes West 377.2 
feet; thence North 54 degrees 29 minutes East, 497.8 feet; 
thence North 35 degrees 02 minutes W st 717.5 feet; thence 
South 54 degrees 03 minutes West, 1241.9 feet; thence 
North 36 degrees 09 minutes West 858.4 feet; thence North 
44 degrees 28 minutes East 452.2 feet; thence North 22 
degrees 33 minutes E ast 4305.9 feet; thence North 86 de­
grees 43 minutes East, 236.3 feet to the point of beginning
[fol. 21] Section 2. All laws or parts # * # laws which 
conflict with this * * * are repealed.

Section 3. This Act shall be * * * effective immediately 
upon its # # * sage and approval by the * # * or upon its 
otherwise # * law.
(* * #—Printing of newspaper clipping torn a t corner of 

original exhibit and therefore not legible.)



E x h ib it  N o. 5 to Co m p la in t

(See Opposite) B5P3



SUNDAY, MAY 19 , 1997 Mtgy Adv. -  A la Jour

* MOVES1 NEGROES

ENGELHARDT B IL L  
TO SHRINK CITY

By Bob Ingrain

S t a t e  S e n .  Sam E n g e l h a r d t  o f  M a c o n ,  I n  a n o t h e r  b i d  t o  maintain 
t o t a l  s e g r e g a t i o n  i n  h i s  c o u n t y ,  h a s  p r e p a r e d  a  b i l l  f o r  I n t r o d u c t i o n  
i n  t h e  L e g i s l a t u r e  d e s i g n e d  t o  a s s u r e  c o n t i n u e d  w h i t e  c o n t r o l  i n



19



20

Constitutional Amendment Relative to Macon County.
“The Legislature may, with or without the notice pre­

scribed by Section 106 of this Constitution, by a majority 
vote of each house, enact general or local laws altering 
or re-arranging the existing boundaries, or reducing the 
area of, or abolishing, Macon County, and transferring 
its territory, or any p art thereof, and its jurisdiction and 
functions to contiguous counties. Toward this end, there 
shall be a committee composed of the senators and rep­
resentatives who now represent the counties of Bullock, 
Elmore, Lee, Macon, Montgomery, and Tallapoosa in the 
Legislature to study and determine the feasibility of 
abolishing Macon County or reducing its area, and to 
formulate the legislation deemed necessary for such pur­
pose. The committee shall select a chairman and a vice- 
chairman from among their number, shall meet on the 
call of the chairman, and shall report its findings, con­
clusions, and recommendations to the Legislative Council 
on or before the first F riday in October 1958; and the 
Legislative Council shall submit such report and any leg­
islation proposed by the committee to the Legislature at 
the 1959 regular session thereof. The committee shall he 
discharged upon the filing of its report with the Legislative 
Council. Committee members shall be entitled to receive 
an amount equal to their regular legislative per diem and 
allowances for each day they serve, not to exceed fifty days 
altogether. The committee may employ such engineering, 
technical, clerical, and stenographic personnel as may he 
be necessary for the conduct of its work, and may fix 
their compensation. The compensation and expenses of 
the committee and its employees, and the other necessary 
[fol. 24] expenses incurred by the committee, shall be paid 
from any money in the state treasury not otherwise ap­
propriated, on requisitions certified by the committee chair­
man; provided that the aggregate amount to be expended

[ fo l.  23]
E x h i b i t  No. 6  t o  C o m p l a i n t



2 1

by the committee shall not exceed the sum of fifty thousand 
dollars.”

Passed the Senate August 23, 1957.
Passed the House September 13, 1957.
Approved by the Electors December, 1957.

I n  U n i t e d  S t a t e s  D i s t r i c t  C o u r t

M o t i o n s  t o  S t r i k e — Filed August 25, 1958
I.

Come now the defendants, separately and severally, and 
move the Court to strike plaintiffs’ complaint filed herein 
on the grounds:

1. Said complaint is not in accordance with Rule 8(e) 
of the Federal Rules of Civil Procedure.

2. Said complaint contains m atters and exhibits which 
are redundant.

3. Said complaint contains m atters and exhibits which 
are impertinent.

[fol. 25] II.
Without waiving the foregoing Motions to Strike the 

entire Complaint, come now the defendants, separately and 
severally, and in the alternative, move the Court to strike 
from the plaintiffs’ complaint that portion thereof under 
the subdivisions designated “8.” and “9.”, and Exhibits 3, 
5, 6 and 7, and as grounds for said motion say :

1. Said m atters and exhibits are redundant.
2. Said matters and exhibits are immaterial.
3. Said m atters and exhibits are impertinent.

H arry  D. Raymon (H arry D. Raymon), and Hill, 
Hill, Stovall & Carter, Thos. B. Hill, Jr., James 
J . Carter, Attorneys for Defendants.

Harry D. Raymon, Tuskegee, Alabama.
Hill, Hill, Stovall & Carter, Second Floor, Hill Building, 

P. 0. Box 116, Montgomery, Alabama.
Certificate of Service (omitted in printing).



22

I n  U n i t e d  S t a t e s  D i s t r i c t  C o u r t

M o t i o n s  t o  D i s m i s s —Filed August 25, 1958
Come now the defendants, separately and severally, and 

move the Court as follows:
1. To dismiss the action because the complaint fails 

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

2. To dismiss the action for lack of jurisdiction.
3. To dismiss the action for that it affirmatively appears 

from the complaint that plaintiffs seek to have declared 
void a duly and lawfully enacted statute of the State of 
Alabama fixing and determining the corporate limits of a 
municipality.

4. To dismiss the action for that the fixing of boundaries 
of municipal corporations is a m atter for the State Legis­
lature acting in accordance with the State Constitution.
[fol. 27] 5. To dismiss the action for that a State may at
its pleasure expand or contract the territorial area of a 
municipal corporation.

6. To dismiss the action for that plaintiffs seek to have 
the Court strike down a statute of the State of Alabama 
fixing and defining the corporate limits of the City of 
Tuskegee, Alabama, and as to boundaries of municipal 
corporations the State is supreme, and its Legislative body 
conforming its action to the State Constitution, may do 
as it will, unrestrained by any provision of the Constitution 
of the United States.

7. To dismiss the action for that plaintiffs seek to have 
this Court strike down a statute of the State of Alabama 
fixing and defining the territorial limits of a  municipal 
corporation, and to have the Court establish new boundaries 
for the municipal corporation, and this Court is without 
jurisdiction to do so.

[ fo l.  26]



SUNDAY, MAY 1 9 , 1957 Mtgy Adv. -  Ala Jour
1 MOVES1 NEGROES

ENGELHARDT BILL 
TO SHRINK CITY

By Bob Ingram

S ta te  S en . Sam E ngelhardt o f  Macon, In  another b id  to  m a in ta in  
t o t a l  s e g r e g a tio n  in  h is  cou n ty , has prepared a b i l l  fo r  in tr o d u c t io n  
in  th e  L e g is la tu r e  d esig n ed  to  a ssu re  co n tin u ed  white, c o n tr o l  in 
Tuskegee c i t y  e le c t io n s *

The lo c a l  b i l l ,  a d v e r t is e d  fo r  th e  first time this past week in 
th e  w eek ly  Tuskegee News, would so  rearrange and alter the city limits 
o f  Tuskegee as to  ex c lu d e  p r a c t i c a l ly  a l l  of the Negro families.

The b i l l  o b v io u s ly  was co n ce iv ed  as a r e s u l t  o f  th e  heavy Negro 
r e g i s t r a t io n  in  T u sk egee. N egroes have r e g is t e r e d  in such numbers in 
th a t  c i t y  as to  make i t  a d i s t i n c t  p o s s i b i l i t y  th a t  a member o f  t h e ir  
ra ce  co u ld  be e le c t e d  to  m u n ic ip a l o f f i c e .

JUST 'LOCAL BILL*
A lthough no o f f i c i a l  r eco rd s  are a v a i l a b l e ,it is emtimated th a t  

N egroes com prise from 35 to  IpO per cent of the total vote in the city 
o f  T u sk egee.

W hile th e  purpose o f  th e  lo c a l  b i l l  i s  o b v io u s , N e ith er  
E ngelhardt nor Tuskegee Mayor P h il  L ig h tfo o t  w i l l  d is c u s s  th e  m easure.

" I t  i s  n o th in g  but a local bill, 
o n ly ,"  E ngelhardt d e c la r e d . He would

a f f e c t in g  th e  c i t y  o f  Tuskegee 
say  no m ore.

Mayor L ig h tfo o t  in d ic a te d  he was n ot too  fa m ilia r  w ith  th e  
m easure.

*1 fr a n k ly  h a v e n 't  even  s tu d ie d  th e  b i l l ,  
c lo s e r  lo o k  a t i t  r e a l  soon ,"  L ig h tfo o t  s a id ,  
to  make a survey  to  see  ju s t  what i t  d o es ."

b u t we w i l l  tak e  a 
"I g u ess  we w i l l  have

c^ a l l y a su rvey  has a lrea d y  been made and i t  shows th a t  the  
C ij  ° f  T u sk egee , now p e r f e c t ly  square in  sh ap e , w i l l  be so
r e d e f in e d  as to  lo o k  l i k e  th e o u t l in e  o f  a se a  dragon.

Tuskegee I n s t i t u t e  and th e  surrounding r e s id e n t ia l  a rea  h e a v ily  
p o p u la ted  w ith  N egroes w i l l  be removed e n t i r e ly  from th e  c i t y  l i m i t s .  
So w i l l  s e v e r a l  o th er  s e c t io n s  o f  th e  c i t y  where th ere  are Negro 
r e s id e n t ia l  a r e a s . 6

of‘f*«r.2He oTw S ef 0\ r e S ld ! ? t  Wh° made a th orou Sh. a p p r a is a l o f  th e  b i l l  o f f e r e d  a b r i e f  o b se r v a t io n :

- , , ! He ?l l p Ped up a couPl e  of  p la c e s  and l e f t  about 15 or 20 Negro
fa m il ie s  in s id e  th e  c i t y  l i m i t s .  I  g u ess  he wanted to  be f a i r  a W

* haad, o f  th e  p r o -s e g r e g a t io n  Alabama A ssn , o f  C it iz e n s  
C o r n e lls ,  e a r l i e r  took  s te p s  toward le s s e n in g  th e  chances o f  N egroes 
b e in g  e le c t e d  to  o f f i c e  in  T uskegee.

in  pushed t t o w s h  a b i l l  p r o h ib it in g  " s in g le -s h o t"  v o t in g
i ” a c t io n s  where more than  one p la c e  was to  be f i l l e d .  Had " s in g le -  
sh o t b a l lo t in g  been p erm itted  N egroes in  Tuskegee cou ld  have v o ted
S l i - n n f  nc co n d id a te  In C ity  Commission r c - e s  and in  so d o in g  a l l  but 
guarantee th e  e le c t io n  o f  th e  p erson  th ey  fa v o r e d .

However under th e law p assed  in  19di ..
many ca n d id a te s  as th ere  are p la c e s  to  f U l f  ° te  lo r  as

Only l a s t  week E ngelhardt a ls o  d is c lo s e d  ho was contem n!at 
a p ro p o sa l to  a b o lis h  Macon County e n t i r e ly  i f  -ft p ®
th a t  N egroes m ight g a in  c o n tr o l o f  b a l l o t  b o x e s!



24

In U n i t e d  S t a t e s  D i s t r i c t  C o u r t

M e m o r a n d u m  O p i n i o n —October 28,1958
This is an action brought by the plaintiffs, and the 

class they represent, against the defendants, who are 
officials of the municipality of Tuskegee, Alabama, mem­
bers of the Board of Revenue of Macon County, Alabama, 
and officials of Macon County, Alabama, in which county 
the municipality of Tuskegee is located. The action seeks 
a declaratory judgment, rendering invalid Act No. 140 en­
acted by the Legislature of the State of Alabama during 
its 1957 Regular Session. Plaintiffs allege that said Act 
is invalid in that it is, as to them and the class they repre­
sent, in violation of the due process and equal protection 
clauses of the Fourteenth Amendment of the United States 
Constitution and also in violation of the Fifteenth Amend­
ment of the Constitution of the United States. Plaintiffs 
also seek to have this Court enjoin the above-named de­
fendants in their official capacity from enforcing and ex­
ecuting the Act as to them and those that are similarly 
situated.

The m atter is now submitted to the Court upon the 
motion of the defendants seeking to have this Court dismiss 
the complaint. This motion to dismiss raises the issues that 
the complaint fails to state a claim against these defendants 
upon which relief can be granted and lack of jurisdiction 
insofar as this Court is concerned. More specifically, in 
their motion to dismiss, these defendants state that this 
Court, and any other Court, does not have the authority or 
[fol. 30] jurisdiction to declare void a duly and lawfully 
enacted statute of the State of Alabama fixing and deter­
mining the corporate limits of a municipality. The defen­
dants argue that the fixing of boundaries of a municipal 
corporation in the State of Alabama is a m atter for the 
Legislature of the State of Alabama, acting in accordance 
with the State Constitution and is not, in instances such 
as this, subject to the jurisdiction, the control, or the super­
vision of the Federal Courts. The defendants argue, fur­
ther, that it is outside the jurisdiction of the Federal Courts 
to ascertain or inquire into, to question or determine the

[fol. 29]



25

wisdom or tile policy of the Legislature of the State of 
Alabama in fixing and determining the boundaries of a 
municipal corporation in this State.

The m atter is also submitted upon the motion of these 
defendants seeking to have this Court strike plaintiffs’ com­
plaint upon the ground that the complaint is not in accord­
ance with Rule 8(e) of the Federal Rules of Civil Procedure. 
In this motion, defendants state that the complaint contains 
matters that are redundant, immaterial, and impertinent. 
Generally, the matters set out in the complaint, of which 
defendants complain in their motion to strike, relate to 
the motive or motives of the Legislature of the State of 
Alabama in passing the Act in question.

On July 15, 1957, the Legislature of the State of Ala­
bama, in its Regular Session, passed Special Act No. 140. 
This Act is entitled, “An Act To alter, rearrange, and re­
define the boundaries of the City of Tuskegee in Macon 
County.” The Act then describes in detail the territory  the 
Legislature intends to be included within the municipality 
[fol. 31] of Tuskegee, Alabama, and specifically excludes all 
territory lying outside such described boundaries. Prior 
to the passage of Act No. 140, the boundaries of the munici­
pality of Tuskegee formed a square, and, according to the 
complaint the defendants seek to strike and dismiss, con­
tained approximately 5,397 Negroes, of whom approxi­
mately 400 were qualified as voters in Tuskegee, and con­
tained approximately 1310 white persons, of whom approxi­
mately 600 were qualified voters in said municipality. As 
the boundaries are redefined by said Act No. 140, the 
municipality of Tuskegee resembles a “sea dragon.” The 
effect of the Act is to remove from the municipality of 
Tuskegee all but four or five of the qualified Negro voters 
and none of the qualified white voters. Plaintiffs state 
that said Act is but another device in a continuing attempt 
to disenfranchise Negro citizens not only of their right to 
vote in municipal elections and participate in municipal af­
fairs, but also of their right of free speech and press, on 
account of their race and color.

In connection with defendants’ motion to strike plaintiffs’ 
complaint upon the ground that it violates Rule 8(e) of 
the Federal Rules of Civil Procedure, it is the opinion of



26

this Court that the question of whether a complaint or, for 
that matter, any pleading violates said rule is dependent 
upon the circumstances of the particular case. For one of 
the several recent cases upholding this proposition, see At­
wood v. Humble Oil & Refining Company, 5th Cir., 1957, 243
F. 2d 835. In other words, as to what is a short and plain 
statement of claim, as to what constitutes redundant, im­
material, or impertinent matters, within the meaning of this 
rule, depends upon the particular case involved. This Court 
[fol. 32] is of the opinion that in this case the complaint 
does not violate Rule 8(e) and that defendants’ motion 
to strike should be overruled and denied.

In passing upon the merits of defendants’ motion to dis­
miss, it is first necessary to determine by what authority 
the Alabama Legislature in this instance acted. In this 
connection it appears that subsection 18 of §.104 of the 
Constitution of Alabama of 1901 authorizes the Legislature 
of the State of Alabama to pass acts such as Act No. 140 
passed at the 1957 Regular Session. That particular section 
of the Constitution of Alabama reads as follows:

“ (18) Amending, confirming, or extending the charter of 
any private or municipal corporation, or remitting the for­
feiture thereof; PROVIDED, THIS SHALL NOT PRO­
H IB IT THE LEGISLATURE FROM ALTERING OR 
REARRANGING THE BOUNDARIES OF THE CITY, 
TOWN OR VILLAGE.” (Emphasis supplied.)

The Supreme Court of the State of Alabama has the 
same authority insofar as the Constitution of the State of 
Alabama is concerned, that the Supreme Court of the 
United States has insofar as the Constitution of the United 
States is concerned. The authority of each Court in inter­
preting and passing upon questions arising out of the 
respective Constitutions is supreme. See Willys Motors v. 
Northwest Kaiser-Willys, 142 F. Supp. 469 and the cases 
cited therein. The Supreme Court of the State of Alabama 
has held that the above-quoted part of the Constitution of 
Alabama permits legislation by local law concerning the 
alteration or rearrangement of cities, towns, or villages 
[fol. 33] without regard to the general law on the subject. 
See City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61, 
and State v. Gullatt, 210 Ala. 452, 98 So. 373. Thus this



27

Court must and does now conclude that the Legislature 
of the State of Alabama had under the Constitution of the 
State of Alabama and the interpretation of that Constitu­
tion by the Supreme Court of the State of Alabama, the 
authority to pass the Act in question.

This Court must therefore now proceed to a determina­
tion of the question as to whether or not the legislature 
of a state, or the state acting through its duly elected legis­
lature, may, within the limits of its authority and without 
any interference from the Federal Courts, when there is no 
restraint on said acts specifically made by the Federal Con­
stitution, pass an act such as Act No. 140 of the 1957 Regular 
Session of the Legislature of the State of Alabama. To put 
the question more concisely, can the legislature of a state 
arbitrarily change the territorial limits of a municipality 
within the state ? There is a considerable amount of general 
law on the subject. The principles are stated in 16 C.J.S., 
Constitutional Law, page 706, and 37 Am. Jur., Municipal 
Corporations, page 652. However it is not necessary for this 
Court to rely upon general propositions in deciding this 
particular question, since the Federal Courts have been 
faced with similar questions for many years. One of the 
earlier cases, and possibly the leading case on the subject, 
is Laramie County v. Albany County, et ah, 1875, 92 U.S. 
307. In that ease the Supreme Court of the United States 
commenting upon the authority of the legislature to control 
political subdivisions within the state, said:
[fol. 34] “Counties, cities, and towms are municipal corpo­
rations, created by the authority of the legislature; and they 
derive all their powers from the source of their creation, 
except where the constitution of the State otherwise pro­
vides.”

“Unless the Constitution otherwise provides, the legis­
lature still has authority to amend the charter of such a 
corporation, enlarge or diminish its powers, extend or limit 
its boundaries, divide the same into two or more, consoli­
date two or more into one, overrule its action whenever it 
is deemed unwise, impolitic, or unjust, and even abolish the 
municipality altogether, in the legislative discretion. Cooley 
on Const., 2d ed., 192.”



Further in the opinion the Court stated:
“Opposition is sometimes manifested; but it is every­

where acknowledged that Vthe legislature possesses the 
power to divide counties and towns at their pleasure and to 
apportion the common property and the common burdens 
in such manner as to them may seem reasonable and equit­
able. (Cases cited.)”

Approximately four years later, the Supreme Court of 
the United States was faced with a similar question in the 
case of Mount Pleasant v. Beckwith, 1879, 100 U.S. 514. 
Again the Supreme Court recognized the authority of the 
State, acting through its duly elected and convened legis­
lative body, when it stated:

“Counties, cities, and towns are municipal corporations 
created by the authority of the legislature, and they de­
rive all their powers from the source of their creation, 
[fol. 35] except where the Constitution of the State other­
wise provides.”

“Corporations of the kind are composed of all the in­
habitants of the territory  included within the political or­
ganization, each individual being entitled to participate in 
its proceedings; but the powers of the organization may 
be modified or taken away at the mere will of the legisla­
ture, according to its own views of public convenience, and 
without any necessity for the consent of those composing 
the body politic.”

“Powers of a defined character are usually granted to 
a municipal corporation, but that does not prevent the legis­
lature from exercising unlimited control over their charters. 
I t still has authority to amend their charters, enlarge or 
diminish their powers, extend or limit their boundaries, 
consolidate two or more into one, overrule their legislative 
action whenever it is deemed unwise, impolitic, or unjust, 
and even abolish them altogether, in the legislative discre­
tion, and substitute in their place those which are different. 
Cooley Const. Lim., (4th ed.) 232.”

Probably one of the most emphatic statements to come 
from the Supreme Court of the United States on this 
proposition is in the case of Hunter v. City of Pittsburgh, 
1907, 207 U.S. 161, wherein the Court stated:



29

“We have nothing to do with the policy, wisdom, justice 
or fairness of the act under consideration; those questions 
are for the consideration of those to whom the State has 
[fol. 36] entrusted its legislative power, and their deter­
mination of them is not subject to review or criticism by 
this Court.”

In the Hunter v. Pittsburgh case, the Court went on to 
state:

“We have nothing to do with the interpretation of the 
constitution of the State and the conformity of the enact­
ment of the Assembly to that constitution; those questions 
are for the consideration of the Courts of the State, and 
their decision of them is final.”

As to the allegations of the complaint concerning the 
motives of the Legislature of Alabama in passing the Act 
in question, the law is clear that the supremacy and absolute 
control as to the territorial boundaries of municipalities 
is vested in the legislative body of the State, regardless of 
the motive underlying the enactment. See Doyle v. Con­
tinental Ins. Co., 1876, 94 U.S. 535, wherein the Supreme 
Court stated:

“If the State has the power to do an act, its intention or 
the reason by which it is influenced in doing it cannot be 
inquired into.”

“IF  THE ACT DONE BY THE STATE IS LEGAL, 
IS NOT IN VIOLATION OF THE CONSTITUTION OR 
LAWS OF THE UNITED STATES, IT IS QUITE OUT 
OF THE POW ER OF ANY COURT TO INQUIRE WHAT 
WAS THE INTENTION OF THOSE WHO ENACTED 
THE LAW.” (Emphasis supplied.)

Only recently the Doyle case was cited with approval 
hy a three-Judge District Court sitting in Alabama when 
that Court rendered its opinion in Shuttlesworth v. B ir­
mingham Board of Education, D.C. Ala., 1958, 162 F. Supp. 
[fol. 37] 372. That Court, speaking through the Honorable 
Richard T. Rives, stated:

“In testing constitutionality ‘we cannot undertake a 
search for motive.’ ‘If  the State has the power to do an



30

act, its intention or the reason by which it is influenced 
in doing it cannot be inquired into.’ Doyle v. Continental 
Insurance Co., 94 U.S. 535, 541, 24 L. Ed. 148. As there 
is no one corporate mind of the legislature, there is in 
reality no single motive. Motives vary from one individual 
member of the legislature to another. Each member is 
required to ‘be bound by Oath or Affirmation to support this 
Constitution.’ Constitution of the United States, Article 
VI, Clause 3. Courts must presume that legislators respect 
and abide by their oaths of office and that their motives 
are in support of the Constitution.”

Thus this Court must now conclude that regardless of 
the motive of the Legislature of the State of Alabama and 
regardless of the effect of its actions, insofar as these plain­
tiffs’ right to vote in the municipal elections is concerned, 
this Court has no authority to declare said Act invalid after 
measuring it by any yardstick made known by the Con­
stitution of the United States. This Court has no control 
over, no supervision over, and no power to change any 
boundaries of municipal corporations fixed by a duly con­
vened and elected legislative body, acting for the people 
in the State of Alabama.

For the foregoing reasons, the motion of the defendants 
to strike this complaint upon the ground that it violates 
Rule 8(e) of the Federal Rules of Civil Procedure will be 
[fol. 38] overruled and denied ; the motion of the defen­
dants to dismiss this action upon the grounds that the com­
plaint fails to state a claim against these defendants upon 
which relief can be granted and that this Court does not 
have any authority or jurisdiction to declare void this par­
ticular duly enacted statute of the State of Alabama will 
be granted.

A formal judgment will be entered in conformity with 
this opinion.

Done, this the 28th day of October, 1958.
Frank M. Johnson, Jr., United States District Judge.



31

I n  t h e  U n ited  S tates D ist e ic t  C ourt 
F oe t h e  M iddle D istr ic t  oe A labama

E astern  D iv isio n

Civil Action No. 462-E

C. G. G o m il l io n , C elia  B. C h a m b er s , A lm a  R. C raig , F r a n k  
H . B e n t l e y , W il l ie  D . B e n t l e y , K e n n e t h  L . B uford , 
W il l ia m  J .  W h it e , A u g u stu s  0 .  Y o u n g , J r ., N e t t ie  B . 
J o n es , D etro it  L e e , D elia  D . S u lliv a n  and L ynnw ood
T. D orsey , on behalf of themselves and others similarly 
situated, Plaintiffs,

[fo l. 39]

—vs.—
P h il  M. L ig h t fo o t , as Mayor of the City of Tuskegee, 

G. B. E dwards, J r., L. D. Gregory, F ra n k  A. O s l in , W. 
F oy T h o m pso n  and LI. A. V a u g h a n , J r., as Members of 
the Tuskegee City Council; 0 .  L . H o d n ett , as Chief of 
Police of the City of Tuskegee, Alabama; E . C. L e s l ie , 
C h arles  H u ddleston , J. T. D y son , F . C. T h o m pso n  and 
V irg il  G u t h r ie , as Members of the Board of Revenue 
of Macon County, Alabama; P reston  H ornsby , as 
Sheriff of Macon County, Alabama; W il l ia m  V a r n er , 
as Judge of Probate of Macon County, Alabama, City 
of Tuskegee, Ala., a municipal corp., Defendants.

J u d g m en t— October 31,1958
The above-styled action was submitted to this Court upon 

the motion of the defendants seeking to have this Court 
strike the complaint in this action upon the ground that it 
violates Rule 8(e) of the Federal Rules of Civil Procedure, 
and also upon the motion of the defendants to dismiss this 
action upon the grounds that the complaint fails to state 
a claim against these defendants upon which relief can be 
[fol. 40] granted and for lack of jurisdiction insofar as this 
Court is concerned.

Upon consideration of the above motions and for the rea­
sons set forth in the memorandum opinion filed in this cause 
on October 29, 1953, and for good cause shown, it is the 
Order, Judgment and Decree of this Court that the motion



32

of the defendants seeking to have this Court strike the com­
plaint in this action upon the ground that it violates Rule 
8(e) of the Federal Rules of Civil Procedure should be and 
the same is hereby overruled and denied.

I t is the further Order, Judgment and Decree of this 
Court that the motion of the defendants seeking to have 
this Court dismiss this action upon the grounds that the 
complaint fails to state a claim against these defendants 
upon which relief can be granted and for lack of jurisdic­
tion, insofar as this Court is concerned, should be and the 
same is hereby granted. I t  is Ordered that this action he 
and the same is hereby dismissed.

I t  is the further Order, Judgment and Decree of this 
Court that all court costs incurred in this proceeding should 
be and they are hereby taxed against the plaintiffs, for 
which execution may issue.

Done, this the 31st day of October’, 1958.
Frank M. Johnson, Jr., United States District Judge.

[fol. 41]
l x  U n it e d  S tates D istr ic t  C ourt

N otice  oe A ppe a l—Filed November 19,1958 
[Title omitted]

Notice is hereby given that C. 0. Gomillion, Celia B. 
Chambers, Alma R. Craig, Frank H. Bentley, Willie D. 
Bentley, Kenneth L. Buford, William J. White, Augustus 
0. Young, Jr., Nettie B. Jones, Detroit Lee, Delia D. Sulli­
van and Lynwood T. Dorsey, plaintiffs above named hereby 
appeal to the Circuit Court of Appeals for the F ifth  Circuit 
from the Judgment of this Court sustaining the defendants’ 
[fol.42] Motion to Dismiss and dismissing plaintiffs’ Com­
plaint entered on the 31st day of October, 1958, in favor of 
defendants and against said plaintiffs.

Fred D. Gray, A rthur D. Shores, Attorneys for Ap­
pellants.

Fred D. Gray, 113 Monroe St., Montgomery, Ala., Arthur
D. Shores, 1630 Fourth Ave., N., Birmingham, Ala.



33

Certificate of Service (omitted in printing). 

Cost Bond on Appeal (omitted in printing).

[fol. 44]
I n  U n it e d  S tates D istr ic t  C ourt

D esig n a tio n  of R ecord— Filed November 19,1958
To the Clerk of the District Court of the United States for 

the Middle District of Alabama:
You are hereby requested to prepare, certify and transmit 

to the Clerk of the United States Circuit Court of Appeals 
for the F ifth  Circuit, with reference to the Notice of Appeal 
heretofore filed by the plaintiffs in the above cause, a tran­
script of the record in the above cause, prepared and trans­
mitted as required by law and by the rules of said Court, 
and to include in said transcript of record the following 
documents, or certified copies thereof, to-wit: (1) Com­
plaint (2) Motion to Strike (3) Motion to Dismiss (4) Mem­
orandum Opinion of the Court dated October 29, 1958 (5) 
Judgment Decree dismissing complaint and denying defen­
dant’s Motion to Strike and dated October 31, 1958, (6) 
Notice of Appeal, with date of filing the same (7) Appeal 
Bond (8) This Designation of Record.

Fred D. Gray, A rthur D. Shores, Attorneys for the 
Plaintiffs.

Fred D. Gray, 113 Monroe St., Montgomery, Alabama, 
Arthur D. Shores, 1630 Fourth Avenue, North, Birming­
ham, Alabama.

[fol. 45] Certificate of Service (omitted in printing).

[fol. 46] Clerk’s Certificate to foregoing transcript (omit­
ted in printing).

[fol. 47]
I n  t h e  U n it e d  S tates C ourt of A ppea ls  

F or t h e  F if t h  C ir c u it

Min u te  E n tr y  of A r g u m e n t  and S u b m issio n — May 19,1959 
(Omitted in printing.)



Isr t h e  U n it e d  S tates C ourt op A ppea ls  

F or t h e  F if t h  C ir c u it  

No. 17589

34

[fol. 48]

C. Gr. G o m il l io n , et al., Appellants,

P h il  M. L ig h t po o t , as Mayor of the City of Tuskegee, et al.,
Appellees.

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

O p in io n — September 15,1959
Before: Jones, Brown and Wisdom, Circuit Judges. 

J o n es , Circuit Jud g e :
The Legislature of Alabama passed a statute which 

changed the boundaries of the City of Tuskegee in Macon 
County of that State. The boundary changes reduced the 
area of the municipality. The plaintiffs, appellants here, are 
Negroes. They brought a class suit in the District Court 
for the Middle District of Alabama against the Mayor, the 
[fol. 49] members of the City Council, and the Chief of 
Police of the City of Tuskegee, and the members of the 
Board of Revenue, the Sheriff, and the Judge of Probate of 
Macon County, and the City of Tuskegee, alleging that as 
a result of the realignment of the boundaries most of the 
Negroes who had formerly lived in the City and substan­
tially all of the Negroes who had been qualified to vote in 
City elections would no longer reside within the City. No 
white person residing in the City as previously constituted 
was excluded from it by the Act. The named plaintiffs, 
Negroes who had resided within the City limits as they 
formerly existed but beyond those limits as they are rede­
fined by the statute, for themselves and others of such class, 
assert in their complaint that they have been deprived



35

of police protection and street improvements, and have 
been denied the right to vote in mnnicipal elections and 
participate in the municipal affairs of Tuskegee. I t  was 
averred that the purpose of the passage of the statute was 
to deny and deprive the plaintiffs of the right of franchise 
and other rights and privileges of citizenship of the City 
of Tuskegee.

By the prayer of the complaint the plaintiffs asked for 
a declaration that the Legislative Act, as applied to the 
plaintiffs, is in violation of the due process and equal pro­
tection clauses of the Fourteenth Amendment and of the 
Fifteenth Amendment. Temporary and permanent injunc­
tions were sought to restrain the defendants from enforcing 
the statute as to the plaintiffs and those similarly situated, 
and from denying them the right to participate in municipal 
elections and to be recognized and treated as citizens of the 
[fol. 50] City of Tuskegee. The defendants filed a motion to 
dismiss upon the grounds, variously stated, that the courts 
of the United States cannot inquire into the purpose of 
enacting or interfere with the carrying out of State legis­
lation fixing the boundaries of municipalities within the 
State; and that the suit was, in substance, one against the 
State of Alabama which these plaintiffs could not maintain. 
The district court granted the motion to dismiss and in its 
opinion discussed the questions presented, and thus stated 
its conclusions:

“Thus this Court must now conclude that regardless 
of the motive of the Legislature of the State of Alabama 
and regardless of the effect of its actions, in so fa r as 
these plaintiffs’ right to vote in the municipal elections 
is concerned, this Court has no authority to declare said 
Act invalid after measuring it by any yardstick 
made known by the Constitution of the United States. 
This Court has no control over, no supervision over, 
and no power to change any boundaries of municipal 
corporations fixed by a duly convened and elected legis­
lative body, acting for the people in the State of Ala­
bama.”

The Court entered a judgment dismissing the action upon 
the ground that the complaint failed to state a claim against



36

the defendants upon which relief could he granted, and for 
lack of jurisdiction. From this judgment the plaintiffs have 
appealed.

A general statement of the powers of States over munici­
pal corporations has been made in these words:

“The creation of municipal corporations, and the con­
ferring upon them of certain powers and subjecting 
[fol. 51] them to corresponding duties, does not deprive 
the legislature of the State of that general control over 
their citizens which was before possessed. I t  still has 
authority to amend their charters, enlarge or diminish 
their powers, extend or limit their boundaries, consoli­
date two or more into one, overrule their legislative ac­
tion whenever it is deemed unwise, impolitic or unjust, 
or even abolish them altogether in the legislative discre­
tion, and substitute those which are different. The 
rights and franchises of such a corporation, being 
granted for the purposes of government, can never be­
come such vested rights as against the State that they 
cannot be taken away; nor does the charter constitute 
a contract in the sense of the constitutional provision 
which prohibits the obligation of contracts being vio­
lated. * * * Restraints on the legislative power of 
control must be found in the constitution of the State, 
or they must rest alone in the legislative discretion. If 
the legislative action in these cases operate injuriously 
to the municipalities or to individuals, the remedy is 
not with the courts. The courts have no power to inter­
fere, and the people must be looked to, to right through 
the ballot-box all these wrongs.” I  Cooley’s Constitu­
tional Limitations, 8th Ed. 393 et seq.

To this rule Professor Cooley notes exceptions but none 
are here pertinent. A portion of the language above has 
been quoted with approval by the Supreme Court. Mount 
Pleasant v. Beckwith, 100 U.S. 514, 529, 25 L. Ed. 699. 
W ith fewer words it has been said:

[fol. 52] “The power to create or establish municipal 
corporations, to enlarge or diminish their area, to re­
organize their governments or to dissolve or abolish 
them altogether is a political function which rests solely



37

in the legislative branch of the government, and in the 
absence of constitutional restrictions, the power is prac­
tically unlimited.” 37 Am. Jur. 626, Municipal Corpora­
tions, § 7.

In an often cited opinion the Supreme Court has thus 
pronounced governing principles:

“Municipal corporations are political subdivisions 
of the state, created as convenient agencies for exercis­
ing such of the governmental powers of the state as 
may be intrusted to them. For the purpose of executing 
these powers properly and efficiently they usually are 
given the power to acquire, hold, and manage personal 
and real property. The number, nature, and duration of 
the powers conferred upon these corporations and the 
territory  over which they shall be exercised rests in the 
absolute discretion of the state. Neither their charters, 
nor any law conferring governmental powers, or vest­
ing in them property to be used for governmental pur­
poses, or authorizing them to hold or manage such 
property or exempting them from taxation upon it, 
constitutes a contract with the state within the meaning 
of the Federal Constitution. The state, therefore, at 
its pleasure, may modify or withdraw all such powers, 
may take without compensation such property, hold it 
itself, or vest it in other agencies, expand or contract 
the territorial area, unite the whole or a part of it with 
[fol. 53] another municipality, repeal the charter and 
destroy the corporation. All this may be done, condi­
tionally or unconditionally, with or without the consent 
of the citizens, or even against their protest. In all 
these respects the state is supreme, and its legislative 
body, conforming its action to the state Constitution, 
may do as it will, unrestrained by any provision of the 
Constitution of the United States. Although the in­
habitants and property owners may, by such changes, 
suffer inconvenience, and their property may be les­
sened in value by the burden of increased taxation, or 
for any other reason, they have no right, by contract 
or otherwise, in the unaltered or continued existence 
of the corporation or its powers, and there is nothing



38

in the Federal Constitution which protects them from 
these injurious consequences. The power is in the state, 
and those who legislate for the state are alone respons­
ible for any unjust or oppressive exercise of it.” Hun­
ter v. Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 
151. See Pawhuska v. Pawhuska Oil Co., 250 U.S. 394, 
39 S. Ct. 526, 63 L. Ed. 1054; City of Trenton v. New 
Jersey, 262 U.S. 182, 43 S. Ct. 534, 67 L. Ed. 937, 29 
A.L.E. 1471.

In a leading Florida case it is stated:
“The existence of the power [of a State legislature to 

establish, alter, extend, or contract municipal bound­
aries] is freely conceded. But is that power unlimited, 
and the exercise of it entirely beyond the reach of 
judicial review in any and all cases? The weight of 
authority in this country seems to answer this ques­
tion in the affirmative, and to hold that the legisla- 
[fol. 54] tive power in this regard is practically plenary 
and unlimited, in the absence of express constitutional 
restriction thereof.” State ex rel. Davis v. City of 
Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.E. 1307.

I t  is a general rule that the “power of increase and 
diminution of municipal territory  is plenary, inherent and 
discretionary in the Legislature, and, when duly exercised, 
cannot be revised by the courts.” Cooley’ on Municipal Cor­
porations 106 § 32. See 16 C.J.S. 706, Constitutional Law 
§ 145; Cooley’s Constitutional Limitations, supra; State 
ex rel. Davis v. City of Stuart, supra.

I t  is not claimed that any provision of the State Con­
stitution is violated. The Alabama Constitution expressly 
recognizes the legislative power of “altering or enlarg­
ing the boundaries” of municipalities. Ala. Const. Sec. 104 
(18); Ensley v. Simpson, 166 Ala. 366, 52 So. 61; State v. 
Gullatt, 210 Ala. 452, 98 So. 373. Should it be contended 
that a state constitutional question is presented, such con­
tention should not be submitted, in the absence of diversity 
of citizenship, to Federal tribunals. We find no necessity to 
declare the rule that a state legislature may do as it will in 
altering municipal boundaries unrestrained by any provi­



39

sion of the Federal Constitution to he a rule without excep­
tion. We think this case does not present the exception. 
We need not say, for our purposes here, that there may not 
be cases where courts can properly inquire as to whether 
a statute fixing boundaries transcends constitutional limits. 
We think this is not such a case.
[fol. 55] Judicial interposition will be sustained where 
general obligation municipal bonds have been issued and 
thereafter a change in boundaries has diminished the extent 
and value of the property subject to tax liens for servicing 
the bond issue. In such a case the Federal Constitution pre­
vents the contract obligation of the bonds from being im­
paired by the reduction of the security pledged for their 
payment. However, the statute contracting the area is not 
to be declared void. The City’s area would be reduced but 
the City would have a continuing right and be under a con­
tinuing duty to levy taxes upon the territory  outside, but 
which was formerly within, its limits as well as upon its 
remaining area to provide revenue to meet the maturities 
of interest and principal on the bonds. Mobile v. Watson, 
116 U. S. 289, 6 S. Ct. 398, 29 L. Ed. 620. Cf. City of Sour 
Lake v. Branch, 5th Cir. 1925, 6 F. 2d 355, cert. den. 269
U. S. 565, 46 S. Ct. 24, 70 L. Ed. 414; Town of Oneida v. 
Pearson Hardwood Flooring Co., 169 Tenn. 449, 88 S. W. 
2d 998; I Quindry, Bonds and Bondholders 744 §529.

The members of a municipal corporation, its citizens, 
are those residing within the municipal boundaries. They 
and all of them, but none others, are entitled to the bene­
fits, privileges and immunities and they are subject to the 
burdens and liabilities of the municipalities. Property with­
in an incorporated city or town is subject to taxation by the 
corporation. So also, as has been observed, land excluded 
may be subjected to taxation by the municipality to prevent 
impairment of a contract obligation. Sojourners must com­
ply with the City’s police regulations. When a person re- 
[fol. 56] moves from a municipal corporation he loses his 
membership and the rights incident to such membership 
and this is no less true where the removal is involuntary 
and results from a change of boundaries than where the resi­
dent removes to another place. That this is so does not 
restrict the legislative power to alter municipal boundaries.



40

I t is said by Mr. Justice Jackson, a “fundamental tenet 
of judicial review that not the wisdom or policy of legis­
lation but only the power of the legislature, is a fit subject 
for consideration by the court.” Jackson, Struggle for 
Judicial Supremacy 81. See Hunter v. Pittsburgh, supra. 
In the consideration of statutes the courts will refrain from 
making inquiry into the motives of the legislature, and will 
not be influenced by the opinions of any or all the members 
of the legislature, or of its committees or of any other 
person. 82 C.J.S. 745-746, Statutes § 354. I t  has recently 
been stated that “In testing constitutionality we cannot 
undertake a search for motive. If  the State has the power to 
do an act, its intention or the reason by which it is influenced 
in doing it cannot be inquired into.” Shuttlesworth v. Birm­
ingham Board of Education, D.C.N.D. Ala. 1958, 162 F. 
Supp. 372, aft. 358 U. S. 101, 79 S. Ct. 221, 3 L.Ed. 2d 145. 
An attack was made in the Tennessee courts upon an act of 
the legislature of that State which altered the boundaries of 
the City of Nashville. The plaintiffs charged that, among 
other things, the boundaries were arbitrarily drawn with 
irregular lines and numerous angles which subjected plain­
tiffs’ property to municipal taxation while excluding other 
property similarly situated in violation of the due process 
[fol. 57] constitutional provisions. I t was alleged that the 
act was conceived and its passage procured for sinister mo­
tives for the purpose of assessing the property of the plain­
tiffs and excluding the property of others, and this was 
done pursuant to an agreement between the persons bene­
fited and a few members of the legislature. In holding the 
allegations insufficient the court sa id :

“That a bill is inspired by private persons for their 
own advantage and to the detriment of others is clearly 
not a sufficient reason for holding the law void, when 
passed. Nor can the courts annul a statute because the 
legislature passing it was imposed upon and misled by 
a few of its members in conjunction with interested 
third parties. If  the act in question is unwise and op­
pressive, the bill may be remedied by repeal or amend­
ment. The courts have nothing to do with the policy of 
legislation nor the motives with which it is made.” 
Williams v. City of Nashville, 89 Tenn. 487, 15 S. W. 
364.



41

In a case where an issue was presented not wholly dis­
similar to that before us, an attack was made on the County 
Unit System of voting that prevails in Georgia. I t  was as­
serted, among other things, that the statute providing for 
the “System” was unconstitutional because it had the “pres­
ent effect and purpose of preventing the Negro and or­
ganized labor and liberal elements of urban communities, 
including Fulton County, from having their votes effectively 
counted in prim ary elections.” I t was held by a Three-Judge 
District Court that the Federal Constitution does not take 
[fob 58] from states the right to set up their own internal 
organizations and prescribe the manner of state elections. 
South v. Peters, D.C.N.D.Ga. 1950, 89 F. Supp. 672. The 
Supreme Court affirmed, although a dissenting opinion took 
the view that the statute abridged the right to vote on ac­
count of color in violation of the Fifteenth Amendment. 
South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 L. Ed. 834, 
reh. den. 339 IT. S. 959, 70 S. Ct. 980, 94 L. Ed. 1369.

The enactment by a state legislature of a statute creat­
ing, enlarging, diminishing or abolishing a municipal cor­
poration is, as has been noted, a political function. I t  is 
a governmental act. American Bemberg Corporation v. 
City of Elizabethton, 180 Tenn. 373, 175 S. W. 2d 535. 
Hence it is an act of sovereignty performed under a power 
reserved by the Tenth Amendment, 81 C.J.S. 858, States § 2. 
This universally recognized sovereign power should not be 
restricted by prohibiting its exercise where, as an incidence 
of it, Negroes would be purposely excluded from the munici­
pality and from participation in its affairs.

Our consideration of what we regard to be the applicable 
rules of law leads us to the conclusion that, in the absence 
of any racial or class discrimination appearing on the 
face of the statute, the courts will not hold an act, which 
decreases the area of a municipality by changing its bound­
aries, to be invalid as violative of the Fourteenth and F if­
teenth Amendments to the United States Constitution, al­
though it is alleged that the enactment was made for the 
[fol. 59] purpose, not appearing in the Act, and with the 
effect of excluding or removing Negroes from the City and 
depriving them of the privileges and benefits of municipal 
membership, including the right to vote in City elections.



42

Since we have reached this conclusion, it follows that the 
judgment of the district court must be A f f ir m e d .

B r o w n , Circuit Judge, Dissenting.
W isdom , Circuit Judge, Concurring Specially.

B r o w n , Circuit Judge, dissenting:
Feeling that this decision is wrong, I cannot presume 

to speak for the Court. But in sounding this respectful 
dissent from the action of my Brothers who are no less 
sensitive than I  to the compelling obligations of the Con­
stitution, I  would suggest that the Court itself is troubled 
by this decision.

Does the Court really mean to apply the absolute of 
Hunter v. Pittsburgh, 207 U.S. 161? I t  is sweeping and 
unequivocal:

“In all these respects the state is supreme, and its 
legislative body, conforming its action to the state 
Constitution, may do as it will, unrestrained by any 
provision of the Constitution of the United States.”

[fol. 60] If this is the law, then why does not the opinion 
end with it? Why does the Court disavow any purpose to 
hold that it is a rule without exception?1

Does the Court really determine that the question of al­
teration of municipal boundaries is a “political” matter 
and hence beyond the scrutiny of the Judiciary? If  it means 
this, then why does it emphasize time and again that the dis­
criminatory purpose does not appear on the face of the 
Alabama Act? If it is a “political” matter beyond judicial 
scrutiny, then wThat difference does it make whether the

1 “We find no necessity to declare the rule that a state legislature 
may do as it will in altering municipal boundaries unrestrained by 
any provision of the Federal Constitution to be a rule without ex­
ception. We think this case does not present the exception. We 
need not say, for our purposes here, that there may not be cases 
where courts can propery inquire as to whether a statute fixing 
boundaries transcends constitutional limits. We think this is not 
such a case.”



43

purpose is frankly stated or stealthfullv concealed by a rt­
ful sophistication?2

Does the Court mean to recognize that where the pur­
pose of the Act is patent on its face the constitutional 
guaranty or prohibition is then sufficient to invest the 
Judiciary with a power to so declare by an effective order? 
[fol. 61] If  the Judiciary has the power to strike down 
what is plainly forbidden, what is there about the nature 
of the judicial process, traditional notions of separation of 
powers, or the doctrine of judicial abstention from “politi­
cal” matters, that robs the Judiciary of its accustomed role 
of inquiry and ascertainment of legislative purpose?

I do not find the answers to these questions in the 
Court’s opinion. I believe earnestly that analysis will 
demonstrate that satisfactory answers may not be found 
either to them, or to others suggested by them. Like 
analysis will show, I  think, that the courts are open to 
hear and determine the serious charge here asserted.

I.
Unlike the inherent ambiguity of a phrase like “due 

process” or “equal protection” found in the immediately 
preceding Fourteenth Amendment, the 34 words compris­
ing the Fifteenth Amendment are plain. Their command 
is clear:

“The right of citizens of the United States to vote 
shall not be denied or abridged by the United States

2 As much is implied by the Court’s statement:
“The enactment by a state legislature of a statute creating, 

enlarging, diminishing or abolishing a municipal corporation 
is, as has been noted, a political function. It is a governmental 
act. American Bemberg Corporation v. City of Elizabethton, 
180 Tenn. 373, 175 S.W.2d 535. Hence it is an act of sov­
ereignty performed under a power reserved by the Tenth 
Amendment. 81 C.J.S. 858, States § 2. This universally recog­
nized sovereign power should not be restricted by prohibiting 
its exercise where, as an incidence of it, Negroes would be pur­
posely excluded from the municipality and from participation 
in its affairs.”

The last sentence indicates that purposeful exclusion of Negroes 
has a “sovereign” or “political” immunity regardless of its patent 
or latent genesis.



44

or by any State on account of race, color, or previous 
condition of servitude.”

The idea, implicit in the Court’s opinion that being a 
“political” m atter the sanction of the constitutional guar­
anty is to be found in the self-imposed sense of responsi­
bility of the individual states—here Alabama—is a denial 
of history.

[fol. 62] “A few years experience satisfied the 
thoughtful men who had been the authors of the other 
two Amendment that, notwithstanding the restraints of 
those articles on the states, and the laws passed under 
the additional powers granted to Congress, these were 
inadequate for the protection of life, liberty and prop­
erty, without which freedom to the slave was no boon. 
They were in all those states denied the right of suf­
frage. The laws were administered by the white man 
alone. I t  was urged that a race of men distinctively 
marked as was the negro, living in the midst of an­
other and dominant race, could never be fully secured 
in their person and their property without the right 
of suffrage.

“Hence the 15th Amendment, which declares that 
‘the right of a citizen of the United States to vote shall 
not be denied or abridged by any state on account of 
race, color, or previous condition of servitude.’ The 
negro having, by the 14th Amendment, been declared 
to be a citizen of the United States, is thus made a voter 
in every state of the Union.

“We repeat, then, in the light of this recapitulation of 
events, almost too recent to be called history, but which 
are familiar to us a ll; and on the most casual examina­
tion of the language of these amendments, no one can 
fail to be impressed with the one pervading purpose 
found in them all, lying at the foundation of each, and 
without which none of them would have been even sug­
gested; we mean the freedom of the slave race, the 
security and firm establishment of that freedom, and 
the protection of the newly made freemen and citizen 
from the oppression of those who had formerly ex-



45

[fol. 63] ereised unlimited dominion over him. I t  is 
true that only the 15th Amendment, in terms, men­
tions the negro by speaking of his color and his 
slavery. But it is just as true that each of the other 
articles was addressed to the grievances of that race, 
and designed to remedy them as the fifteenth.” The 
Butchers’ Benevolent Ass’n v. The Crescent City Live- 
Stock Landing and Slaughter-House Co. (Slaughter- 
House Cases), 1873, 83 H.S. (16 Wall.) 36, 71-72, 21 
L.Ed. 394.

Tested in this light, these statements of the District 
Court are compelling indeed. As he declared, in dismissing 
Appellants’ complaint,

“Prior to the passage of Act No. 140, the boundaries 
of the municipality of Tuskegee formed a square, and, 
according to the complaint * # * contained approxi­
mately 5,397 Negroes, of whom approximately 400 were 
qualified as voters in Tuskegee, and contained approxi­
mately 1,310 white persons, of whom approximately 600 
were qualified voters in said municipality. As the 
boundaries are redefined by said Act No. 140, the munic­
ipality of Tuskegee resembles a ‘sea dragon.’ The effect 
of the Act is to remove from the municipality of Tuske­
gee all but four or five of the qualified Negro voters 
and none of the qualified white voters. Plaintiffs state 
that said Act is but another device in a continuing a t­
tempt to disenfranchise Negro citizens not only of their 
right to vote in municipal elections and participate in 
municipal affairs, but also of their right of free speech 
and press, on account of their race and color.” Gomil- 
(fol. 64] lion v. Lightfoot, M.D.Ala., 1958, 167 F. Supp. 
405, 407.

The conclusion and judgment of the District Court, which 
we have this day affirmed, is “that the complaint fails to 
state a claim * * # upon which relief can be granted and 
that this Court does not have any authority or jurisdiction 
to declare void this particular duly enacted statute of the



46

State of Alabama.” 3 167 F.Supp. 405, 410. Accordingly, 
the case must now be measured against the allegations of 
the complaint which categorically charges purposeful dis­
crimination for race. For, as we have learned from Conley 
v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d. 
80, “In appraising the sufficiency of the complaint we fol­
low, of course, the accepted rule that a complaint should 
not be dismissed for failure to state a claim unless it ap­
pears beyond doubt that the plaintiff can prove no set of 
facts in support of his claim which would entitle him to re- 
[fol. 65] lief.” And for this purpose the complaint must be 
taken as true. Glus v. Brooklyn Eastern District Terminal, 
1959,.......U.S. ........ , ....... S.Ct......... , 3 L.Ed.2d 770, 774.

Considering the procedural context in which this case 
now finds itself, the Court has permitted the Legislature 
of Alabama to simply abolish a substantial part of one 
of its cities, Tuskegee, and thereby disenfranchise all but 
four or five of its Negro citizens. Almost as anticipating 
the existence of this invincible power, the legislature is 
perhaps presently considering using it to eradicate the 
entire County of Macon.3 4

3 The District Court puts it squarely on the basis that the “court 
does not have any authority or jurisdiction.” Another thing still 
unclear in this Court’s opinion is whether it takes a like view or 
whether, in the expression “the courts will not hold an act # * * 
to be invalid # # # ” this Court is to be understood as recognizing 
that it has the power to review—-and exercising it—affirmatively 
finds the act within the constitutional prerogative of Alabama. 
The Court expresses its conclusion this way:

“Our consideration of what we regard to be the applicable 
rules of law leads us to the conclusion that, in the absence of 
any racial or class discrimination appearing on the face of the 
statute, the courts will not hold an act, which decreases the 
area of a municipality by changing its boundaries, to be invalid 
as violative of the Fourteenth and Fifteenth Amendments to 
the United States Constitution, although it is alleged that the 
enactment was made for the purpose, not appearing in the Act, 
and with the effect of excluding or removing Negroes from the 
City and depriving them of the privileges and benefits of 
municipal membership, including the right to vote in City 
elections.”

4 An amendment to the Alabama Constitution providing that the 
legislature “may # * * by a majority vote of each house, enact



47

Although, to me this is an apt illustration of “burn[ing] 
the house to roast the pig,”5 I agree with much of that 
said by the Appellees, the District Judge and the majority 
of this Court. Zoning and districting regulations are 
primarily for states. Voting regulations are primarily 
for states. As a general rule, the Constitution of the United 
States, the Congress, the Federal Courts, and the Execu­
tive Branch of the Federal Government are not concerned 
with such local matters.

This is not to say, however, as the Court’s opinion tends 
to conclude from the Hunter, Beckwith and Laramie cases,6 
[fol. 66] that the Constitution imposes no limitation upon 
the actions of the states in these areas.

It is axiomatic that in a federal system the laws of the 
individual states cannot be supreme. For even in a field 
reserved expressly to the States or to the people it is the 
Constitution which assures that. The Constitution so pre­
scribes. Article Six of the Constitution provides that “This 
Constitution * # # shall be the supreme Law of the Land; 
* * # any Thing in the Constitution or Laws of any State 
to the Contrary notwithstanding.” Moreover, Alabama, 
like most states, requires that “All members of the legis­
lature, and all officers, executive and judicial, before they 
enter upon the execution of the duties of their respective 
offices **■ * ” must swear to “support the Constitution of 
the United States # # * . ” Ala. Const. Art. 16, §279 (1901).

II,

general or local laws * * * reducing the area of, or abolishing, 
Macon County # # * ” was introduced and passed by the 1957 
session of the Alabama Legislature as Act No. 526. It was sub­
sequently submitted to a referendum, and approved, December 
17, 1957. The Act is reported at 3 Race Rel. L. Rep. 357 (1958).

5 Butler v. Michigan, 1957, 352 U.S. 380, 383, 77 S.Ct. 524, 1 
L.Ed.2d 412 (per Frankfurter, J.).

6 Hunter v. Pittsburgh, 1907, 207 U.S. 161, -----  S.Ct. ----- , 52
L.Ed. 151; Mount Pleasant v. Beckwith, 1880, 100 U.S. 514, -----
S.Ct. ___ , 35 L.Ed. 699; Comm’rs of Laramie County v. Comm’rs
of Albany County, 1876, 92 U.S. 307, -----  S.Ct. ----- , 23 L.Ed.
552. 167 F.Supp. 405, 408-409.



48

The nearly 360 volumes of the United States Reports 
are full of the historical story of the occasional conflict 
between what are in all other respects m atters of wholly 
local concern, and some provision of the Constitution. 
Needless to say, whenever true conflict has in fact existed,, 
the Constitution has always won out. There is no local mat­
ter which is not subject to potential examination for Con­
stitutional defects. To list them all is the task of a case 
digest or encyclopedia, not a judicial opinion. But a few 
examples are helpful to illustrate the broad spectrum of 
constitutional concern.
[fol. 67] A mere cursory examination of the following 
areas will show that they are all typically thought of as 
matters of nearly exclusive local control. And yet the foot­
notes indicate some of the familiar cases in which it was 
determined that, for some reason, the state or local govern­
ment’s treatment was weighed and found constitutionally 
wanting: local education,7 transportation,8 and recreation9 
facilities; athletic contests control ;10 local housing develop-

7 Cooper v. Aaron, 1958,----- U.S.------ , ----- S.Ct.------ , 3 L.Ed,
2d 3, 5, 17 (Little Rock) ; Brown v. Board of Education, 1954, 347 
U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, Anno. 98 L.Ed. 882, 38 A.LR. 
2d 1180; supplemental opinion, 1955, 349 U.S. 294, 75 S.Ct. 753, 
99 L.Ed. 1083; also companion case, Bolling v. Sharpe, 1954, 347 
U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (the original “school segrega­
tion cases”).

8 Gayle v. Browder, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 
114, affirming per curiam, M.D.Ala., 1956, 142 F.Supp. 707 (Mont­
gomery busses).

9 Beal v. Holcombe, 5 Cir., 1951. 193 F.2d 384, cert, denied, 1954, 
347 U.S. 974, 74 S.Ct. 783, 98 L.Ed. 1114 (golf course); City of 
Ft. Lauderdale v. Moorehead, 5 Cir., 1957, 248 F.2d 544, affirming 
per curiam, S.D.Fla., 1957, 152 F.Supp. 131 (same); New Orleans 
City Park Improvement Assn. v. Detiege, 5 Cir., 1958, 252 F.2d 122 
(park) ; Kansas City v. Williams, 8 Cir., 1953, 205 F.2d 47, affirm­
ing, W.D.Mo., 1952, 104 F.Supp. 848, cert, denied, 1953, 346 U.S. 
826, 74 S.Ct. 45, 98 L.Ed. 351 (swimming pool).

10 State Athletic Comm. v. Dorsey, 1959, ___  U.S. -....—, -----
S.Ct. ___ , ___  L.Ed.2d ___  [May 25, 1959, 27 L.W. 3337],
affirming per curiam, E.D.La., 1959, ___  F.Supp. ___  [Judge
Wisdom, 27 L.W. 2289] (statute barring interracial athletic con­
tests) .



49

meri tss tate  taxation11 12 and educational institutions ;13 what 
are essentially state judicial procedure matters like admis- 
[f°l. 68] sion to the state bar,14 appointment of counsel,15 
enforcement of restrictive covenants,16 payment of filing 
fees17 and furnishing of transcripts18 for appeal, and the 
selection of jurors;19 and even a governor’s control of his 
state’s militia,20 and control of highway safety.21

One would be hard-pressed to find an area of “exclu­
sive state action” which has or could not, in some way, 
by legislative design or administrative execution, be found 
to be violative of some constitutional provision. This has 
nothing to do with the occasional strife surrounding over­
lapping congressional and state legislation. No one here 
contends that Congress has the right to redistrict Tuskegee

11 Banks v. Housing Authority of San Francisco, __ , 120 Cal
App,2d 1, 260 P.2d 668, cert, denied, 1954, 347 U.S. 974, 74 S.Ct. 
784, 98 L.Ed. 1114 (public low rent housing).

12 Spector Motor Service, Inc. v. O’Connor, 1951, 340 U.S 602
---- S.Ct.____ , 95 L.Ed. 573.

13 Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed.
1114 (law school); Missouri ex rel. Gaines v. Canada, 305
U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (same).

14 Ivonigsberg v. State Bar of California, 1957, 353 U.S. 252, 77
S.Ct. 722, 1 L.Ed.2d 810; Schware v. Board of Bar Examiners 
1957, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.

15 Powell v. Alabama, 1932, 287 U.S. 45,___ S.Ct.____, 77 L.Ed
158.

16 Barrows v. Jackson, 1953, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 
1586, Anno. 97 L.Ed. 1602; Shelly v. Kraemer, 1948, 334 U.S 1 
68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441.

17 Burns v. Ohio, 1959,___ U.S_____, ___ S.Ct.____ , 3 L.Ed.2d
----  [June 15, 1959].

18 Griffin v. Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
19 Cassell v. Texas, 1950, 339 U.S. 282,____S.Ct. _, 94 L.Ed

839; Smith v. Texas, 1940, 311 U.S. 128, ___S.Ct_, 85 L.Ed.
84; United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d

20 Sterling v. Constatin, 1932, 287 U.S. 378, ___  S.Ct. ___ , 77
L.Ed. 375; and see Cooper v. Aaron, note 7, supra.

21 Bibb v. Navajo Freight Lines, 1959, ___  U.S.
---- , 3 L.Ed.2d 1003 (truck mud guard regulations).

, 79 S.Ct.



50

or prescribe the qualifications for voting in its municipal 
elections. But the fact that these are solely, or primarily, 
the initial concerns of Alabama alone does not mean that 
when it acts it may act without regard for the Constitution, 
[fol. 69] The Supreme Court expressed the standard in 
Cooper v. Aaron, note 7, supra, when they said,

“I t  is, of course, cpiite time that the responsibility for 
public education is primarily the concern of the States, 
but it is equally true that such responsibilities, like all 
other state activity, must be exercised consistently with 
federal constitutional requirements as they apply to
state action.” (Emphasis supplied.) 358 U.S.......... at
.......  [3 L.Ed.2d 5 at 17].

Of course, the same thing could be said of state regulation 
of voting and zoning.

In Sterling v. Constantin, note 20, supra, the Supreme 
Court was confronted with the contention that,

“ * * * the Governor’s order had the quality of a 
supreme and unchallengeable edict, overriding all con­
flicting rights of property and unreviewable through the 
judicial power of the Federal Government.” 287 U.S. 
378 at 397.

A contention, it might be noted, which is not altogether 
dissimilar from that advanced here as to the omnipotence 
of the Alabama legislature. The assertion was quickly 
disposed of by the Court in the very next sentence.

“If  this extreme position could be deemed to be well 
taken, it is manifest that the fiat of a state Governor, 
and not the Constitution of the United States, would 
be the supreme law of the land ; that the restrictions of 
the Federal Constitution upon the exercise of state 
[fol. 70] power would be but impotent phrases, * * * . ’’' 
Id., at 397-98.

I I I .

Nothing in the Hunter, Beckwith and Laramie municipal 
redistricting cases, note 6, supra, primarily relied upon by 
the majority and the District Court, alters this view.



51

Indeed, in those very cases the Supreme Court acknowl­
edged that some limitations were to be imposed upon the 
state’s action.

“Text writers concede almost unlimited power to 
the State Legislatures in respect to the division of 
towns and the alteration of their boundaries, but they 
all agree that in the exercise of these powers they can­
not defeat the rights of creditors nor impair the obliga­
tion of a valid contract. [Citations.]

“Concessions of power to municipal corporations 
are of high importance; but they are not contracts, and, 
consequently, are subject to legislative control with­
out limitation, unless the Legislature oversteps the 
limits of the Constitution.” (Emphasis supplied.) 
Mount Pleasant v. Beckwith, note 6, supra, 100 U.S. 
514, 533.

Moreover, they are not recent cases. Only one was decided 
in the Twentieth Century, and that over 50 years ago. 
Racial discrimination was in no way involved. The problems 
involved concerned property: higher taxes for the an- 
[fol. 71] nexed city (Hunter), and the liability of a newly 
created county for the extinguished county’s debts (Beck­
with and Laramie). Extravagant dicta, taken out of its 
property context, that “the state is supreme, and its legis­
lative body, conforming its action to the state Constitu­
tion, may do as it will, unrestrained by any provision of 
the Constitution of the United States” 22 should not now 
be spread, some 52 years later, to cover and control our 
determination of issues of a different area, and of another 
era.23

22 Hunter v. Pittsburgh, note 6, supra, 207 U.S. 161, 179.
231 make no apologies for the view that the business of judging 

in constitutional fields is one of searching for the spirit of the 
Constitution in terms of the present as well as the past, not the 
past alone. I find respectable authority in the words of Chief 
Justice Hughes in Home Building & Loan Association v. Blaisdell
290 U.S. 398, 442,___ S.Ct_____ , 78 L.Ed. 413:

“It is no answer to say that this public need was not appre­
hended a century ago, or to insist that what the provision of 
the Constitution meant to the vision of that day it must mean



52

[fol. 72] IV.
Of course it is true that there are many and varied areas 

of potential controversy which the courts have held to 
be, for one reason or another, beyond the limits of judicial 
relief. These include, for example, the constitutional 
“guarantee to every State in this Union a Republican Form 
of Government” 24 (Art. IV, §4), the congressional regu­
lation of Indian tribes,25 the legislative and executive con­
trol of foreign relations, recognition of foreign govern­
ments, and the war powers,26 control of civilian and military

to the vision of our time. If by the statement that what the 
Constitution meant at the time of its adoption it means today, 
it is intended to say that the great clauses of the Constitution 
must be confined to the interpretation which the framers, with 
the conditions and outlook of their time, would have placed 
upon them, the statement carries its own refutation. It was 
to guard against such a narrow conception that Chief Justice 
Marshall uttered the memorable warning—‘We must never 
forget that it is a Constitution we are expounding’ (McCulloch 
v. Maryland, 4 Wheat. 316, 407)—‘A Constitution intended for 
ages to come, and consequently, to be adapted to the various 
crises of human affairs.’ * * *. AVhen we are dealing with the 
words of the Constitution, said this Court in Missouri v. Hol­
land, 252 U.S. 416, 433, ‘We must realize that they have called 
into life a being the development of which could not have been 
foreseen completely by the most gifted of its begetters m * *■’ 
The case before us must be considered in the light of our 
whole experience and not merely in that of what was said a 
hundred years ago.”

24 Pacific States Telephone & Telegraph Co. v. Oregon, 1912, 223
U.S. 118,___ S.Ct. „......, 56 L.Ed. 377; Taylor v. Beckham, 1900,
178 U.S. 548, ___  S.Ct. ___ , 44 L.Ed. 1187; Luther v Borden,
1849, 48 U.S. (7 How.) 1, 42, 12 L.Ed. 581.

26 Lone Wolf v. Hitchcock, 1903, 187 U.S. 553, 565, ___  S.Ct.
___ , 47 L.Ed. 299.

26 Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 588-89, 72 S.Ct. 
512, 96 L.Ed. 586; Hirabayashi v. United States, 1943, 320 U.S. 81,
93, S.Ct____ , 87 L.Ed. 1774; United States v. Curtiss-Wright
Export Corp., 1936, 299 U.S. 304, ___  S.Ct. ___ , 81 L.Ed. 255;
Oetjen v. Central Leather Co, 1918, 246 U.S. 297, 302, ___  S.Ct.
___ , 62 L.Ed. 726; Neely v. Henkel, 1901, 180 U.S. 109,___ S.Ct.
___ , 45 L.Ed. 448; Kennett v. Chambers, 1852, 55 U.S. (14 How.)
38, 50-51, 14 L.Ed. 316.



53

appointing power,27 or for that matter, the inherent wisdom 
of any executive or legislative policy or specific action,28 
as, for example, taxation.29

An outstanding illustration is the Supreme Court’s 
traditional reluctance to grant taxpayers relief against 
[fol. 73] governmental action. As that Court declared in 
Massachusetts v. Mellon, 1923, 262 U.S. 447, 487, 488,
...... S .C t.-------, 67 L.Ed. 1078, regarding a citizen’s attack
upon a federal appropriation bill,

“His interest in the moneys of the Treasury # * * is 
shares with millions of others # # #. * * * If  one tax­
payer may champion and litigate such a cause, then 
every other taxpayer may do the same, not only in 
respect to the statute here under review, but also 
in respect of every other appropriation act and statute 
whose administration requires the outlay of public 
money, and whose validity may be questioned. The 
bare suggestion of such a result, with its attendant 
inconveniences, goes far to sustain the conclusion 
which we have reached, that a suit of this character 
cannot be maintained. # # * The party  who invokes the 
power [of courts to declare acts unconstitutional] 
must be able to show not only that the statute is in­
valid, but that he * * * is immediately in danger of 
sustaining some direct injury as the result of its en­
forcement, and not merely that he suffers in some 
indefinite way in common with people generally.”

Such reasoning is hardly applicable here. Appellants’ 
complaint is not one “in common with people generally” 
—only those whose skin is black. And their suffering 
is not indefinite: one day voting citizens of Tuskegee, the 
next they have been deprived of both vote and village.

27 Orloff v. Willoughby, 1953, 345 U.S. 83, 90, 73 S.Ct. 534, 97 
L.Ed. 842.

28 Trop v. Dulles, 1958, 356 U.S. 86, 114, 120, 78 S.Ct. 590, 2 
L.Ed.2d 630 (dissenting opinion).

29 Massachusetts v. Mellon, 1923, 262 U.S. 447, 487-88,----- S.Ct.
-----, 67 L.Ed. 1078.



54

[fol. 74] Nor do the two voter cases applying judicial 
abstention because the cases were political in nature either 
justify or compel a different result.

In Colegrove v. Green, 1946, 328 U.S. 549, ___  S.Ct.
....... , 90 L.Ed. 1432, Illinois citizens sought a redistricting
of the state because of the gross inequality inherent in 
a range of population in congressional districts of from 
112,116 to 914,000. The Court affirmed the dismissal of 
the complaint “because due regard for the effective work­
ing of our Government revealed this issue to be of a 
peculiarly political nature, and therefore not meet for ju­
dicial determination.” 328 U.S. 549, 552. Again, however, 
this case involved no consideration of racial issues. The 
conflict was between rural and urban Illinois, or political 
parties, not races. And, although some citizens only had 
one-ninth the vote of others, they were all still permitted 
to engage in the formality of balloting. I t  may also be 
noted that this was not a determination that the district­
ing was constitutional, that the three dissenters felt that 
the Court should have decided the case, and against the 
constitutionality of the districting complained of, that Mr. 
Justice Rutledge’s concurring opinion expressed the view 
that the Court has the power to provide relief in such 
cases but that here “the cure sought may be worse than 
the disease,” 328 U.S. 549, 566, and that the opinion has 
come under some criticism. See, e.g., Lewis Legislative 
Apportionment and the Federal Courts, 71 Harv. L.Rev. 
1057 (1958).

A case of disenfranchisement of Negroes by redistrict­
ing has apparently never before arisen. But, as I shall 
[fol. 75] point out in detail, the right of Negroes to vote 
equally with whites has been jealously guarded by the 
Supreme Court.

Even in Breedlove v. Buttles, 1937, 302 U.S. 277, ......
S.Ct.......... , 82 L.Ed. 252, in which the Court found that
Georgia’s poll tax did not deny any privilege or immunity 
of the 14th Amendment, the opinion notes that the other­
wise complete freedom of a state to “condition suffrage 
as it deems appropriate” is “restrained by the Fifteenth 
and Nineteenth Amendments and other provisions of the 
Federal Constitution * * 302 U.S. 277, 283.



55

And although the brief per curiam in South v. Peters,
1950, 339 U.S. 276,.......  S.Ct. ....... , 94 L.Ed. 834, affirming
the dismissal of a petition attacking Georgia’s county unit 
voting system for prim ary elections as violative of the 
Fourteenth and Seventeenth Amendments, harks back to 
Colegrove v. Green, supra, and the categorization of “cases 
posing political issues arising from a state’s geographical 
distribution of electoral strength among its political sub­
divisions,” 339 U.S. 276, 277, it  too, does not completely 
disenfranchise any citizen, is primarily concerned with the 
urban-rural conflict, and carries a strong dissent, that be­
gins by acknowledging for all, “I  suppose that if a State 
reduced the vote of Negroes, Catholics, or Jews so that 
each got only one-tenth of a vote, we would strike the law 
down.”
[fol. 76] Y.

When a racial discrimination voting issue is clearly 
posed the Court has evidenced little concern for judicial 
abstention in “cases posing political issues.” Mr. Justice 
Holmes provided this frontal attack for the Court in the 
“white prim ary case” of Nixon v. Herndon, 1927, 273 U. S.
536, 540, 541,.......  S.Ct........ ., 71 L.Ed. 759 “The objection
that the subject-matter of the suit is political is little more 
than a play upon words. Of course, the petition concerns 
political action, but it alleges and seeks to recover for 
private damage. That private damage may be caused 
by such political action, and may be recovered for in a 
suit at law, hardly has been doubted for over two hundred 
years * * *. * # * States may do a good deal of classifying 
that it is difficult to believe rational, but there are limits, 
and it is too clear for extended argument that color can­
not be made the basis of a statutory classification affect­
ing the right set up in this case.” In Smith  v. AUwright,
1944, 321 U.S. 649,.......S.Ct......... 88 L.Ed. 987, the Court
acknowledged that, “Texas is free to conduct her elections 
and limit her electorate as she may deem wise, save only 
as her action may be affected by the prohibitions of the 
United States Constitution # * *.” 321 U.S. 649, 657, and 
then went on to note that, “the Fifteenth Amendment spe­
cifically interdicts any denial or abridgement by a state



56

of the right of citizens to vote on account of color,” (Id.) 
and found the Texas white prim ary procedure unconsti­
tutional. Its teaching was applied to strike down the 
Jaybird Association in Terry  v. Adams, 345 U.S. 461, 73 
S.Ct. 809, 97 L.Ed. 1152. Mr. Justice Black reviewed many 
[fol. 77] of the predecessor cases, took note of the fact that 
the Fifteenth Amendment has been held “self-executing” 
and declared:

“The Amendment bans racial discrimination in vot­
ing by both state and nation. I t  thus establishes a 
national policy, obviously applicable to the right of 
Negroes not to be discriminated against as voters in 
elections to determine public governmental policies or 
to select public officials, national, state, or local.” 345 
U.S. at 467.

Not only have the courts uniformly enforced Negro 
voting rights under the Constitution, but Congress pur­
suant to the constitutional mandate has for nearly 100 
years specifically provided for judicial enforcement of 
civil rights by legislation.30 See, e.g., 18 U.S.C.A. §§ 241-

3018 U.S.C.A. §241:
“If two or more persons conspire to injure, oppress, threaten, 

or intimidate any citizen in the free exercise or enjoyment of 
any right or privilege secured to him by the Constitution or 
laws of the United States, or because of his having exercised 
the same; or

“If two or more persons go in disguise on the highway, or on 
the premises of another, with intent to prevent or hinder his 
free exercise of enjoyment of any right or privilege so secured—

“They shall be fined not more than $5,000 or imprisoned not 
more than ten years, or both.”

18 U.S.C.A. §242:
“Whoever, under color of any law, statute, ordinance, regu­

lation, or custom, willfully subjects any inhabitant of any 
State, Territory, or District to the deprivation of any rights, 
privileges, or immunities secured or protected by the Con­
stitution or laws of the United States, or to different punish­
ments, pains, or penalties, on account of such inhabitant being 
an alien, or by reason of his color, or race, than are prescribed



57

[fol. 78] 243, 28 U.S.C.A. §§ 1343,1443, 42 U.S.C.A. §§ 1981- 
1995.
[fol. 79] I t  is of little significance that the Alabama Tus- 
kegee redistricting act under consideration does not, as 
this Court so greatly emphasizes, demonstrate on its face 
that is directed at the Negro citizens of that community. 
If the act is discriminatory in purpose and effect, “whether 
accomplished ingeniously or ingenuously [it] cannot stand.”

for the punishment of citizens, shall he fined not more than 
$1,000 or imprisoned not more than one year, or both.”

18 U.S.C.A. §243:
Providing that there shall be no discrimination in the selec­

tion of jurors and setting a $5,000 fine for violation.
28 U.S.C.A. §1343:

“The district courts shall have original jurisdiction of any 
civil action authorized by law to be commenced by any person:

“ (1) To recover damages for injury to his person or prop­
erty, or because of the deprivation of any right or privilege 
of a citizen of the United States, by any act done in further­
ance of any conspiracy mentioned in section 1985 of Title 42;

“ (2) To recover damages from any person who fails to pre­
vent or to aid in preventing any wrongs mentioned in section 
1985 of Title 42 which he had knowledge were about to occur 
and power to prevent;

“ (3) To redress the deprivation, under color of any State 
law, statute, ordinance, regulation, custom or usage, of any 
right, privilege or immunity secured by the Constitution of 
the United States or by any Act of Congress providing for 
equal rights of citizens or of all persons within the jurisdiction 
of the United States;

“ (4) To recover damages or to secure equitable or other 
relief under any Act of Congress providing for the protection 
of civil rights, including the right to vote.” (emphasis supplied)

Part (4) added Sept. 9, 1957, 71 Stat. 637. Legislative 
history reported at 2 U.S. Code Cong. & Ad. News 1966, 1974 
(1957).

28 U.S.C.A. §1443:
“Any of the following civil actions or criminal prosecutions, 

commenced in a State court may be removed by the defendant 
to the district court of the United States for the district and 
division embracing the place wherein it is pending:

“ (1) Against any person who is denied or cannot enforce 
in the courts of such State a right under any law providing



58

Sm ith  v. Texas, note 19, supra, 311 U.S. 128, 132. Or, as 
the Court said in Lane v. Wilson, 1939, 307 U.S. 268, 275, 
.......  S.Ct.........., 83 L.Ed. 1281, another case of voting dis­
crimination “The Amendment nullifies sophisticated as well 
as simple-minded modes of discrimination.” Means of dis­
enfranchising Negroes, like fraud, have historically been 
“as old as falsehood and as versable as human ingenuity.” 
Weiss v. United States, 5 Cir., 1941, 122 F. 2d 675, 681, 
cert, denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. And 
“in determining whether a provision of the Constitution 
applies to a new subject matter, it is of little significance 
that it is one with which the farmers were not familiar.”
United States v. Classic, 1941, 313 U.S. 299, 316,.......S.Ct.
....... , 85 L.Ed. 1368.
[fol. 80] VI.

The effect of the act is clear. The District Court so 
found. “As the boundaries are redefined by said Act No. 
140 the municipality of Tuskegee resembles a ‘sea dragon.’ 
The effect of the Act is to remove from the municipality 
of Tuskegee all but four or five of the qualified Negro 
voters and none of the white voters.”

for the equal civil rights of citizens of the United States, or 
of all persons within the jurisdiction thereof;

“ (2) For any act under color of authority derived from any 
law providing for equal rights, or for refusing to do any act 
on the ground that it would be inconsistent with such law.”

42 U.S.C.A. §§1981-1995
1981 (equal rights)
1982 (equal property rights)
1983 (action for deprivation of rights)
1984 (reviewable by Supreme. Court)
1985 (action for conspiracy to interfere with civil rights)
1986 (action for failure to prevent interference)
1987 (officers may institute proceedings)
1988 (proceedings in conformity with common law)
1989 (additional commissioners)
1990 (penalty for failure to execute warrant)
1991 (provision for $5 fee for arrests)
1992 (President may request more speedy proceedings)
1993 (repealed)
1994 (peonage abolished)
1995 (new; fine and imprisonment for criminal contempt)



59

Even if the procedural effect of a motion to dismiss for 
failure to state a claim—admission of allegations—is dis­
regarded the sheer statistics alleged may demonstrate a 
prima facie purpose of discrimination.

It might well be, as was true in United States ex rel. 
Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, that if Ap­
pellants were ever allowed the opportunity of a trial that 
“the naked figures [would themselves] prove startling 
enough.” 263 F.2d 71, 78. In that case, involving exclusion 
of Negroes from juries, the fact that 57% of the population 
of Carroll County, Mississippi was Negro and yet no county 
official “could remember any instance of a Negro having- 
been on a jury list of any kind,” without refutation by the 
State of the reason for such a result was considered enough 
to prove systematic exclusion of Negroes from the juries 
of that county. This was the standard of proof of a prima 
facie case established by such cases as Norris v. Alabama, 
1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, and Her­
nandez v. Texas, 1954, 347 U.S. 475, 74 S.Ct. 667,.......L.Ed.
......  And in United States v. Alabama, o Cir., 19o9, .......
F .2d___  [No. 17684, June 16, 1959], this Court took note
[fol. 81] of the allegations that in Macon County, Alabama, 
the fact that 97% of the eligible whites were registered and 
only 8% of the 14,000 eligible Negroes resulted in the fact 
that whites could outvote Negroes nearly three to one and 
was at least some evidence, if not proof, of discrimination
in registration. - .....F .2 d ------ , ....... , n.3. Perhaps the fact
that in the present case the Act in question excludes 99% 
of the 400 Negro voters from the City of Tuskegee and 
yet not one single one of the 600 white voters will likewise 
be considered on the trial as proof enough of the discrimina­
tory and unconstitutional purpose of the Act. But it is 
again well to point out that the adequacy of the proof in 
this case is not presently before us as we consider it on 
the basis of the complaint alone.

V II .

We need not be that “blind” Court that Mr. Chief Justice 
Taft described as unable to see what “all others can see 
and understand * * Bailey v. Drexel Furniture Co.



6 0

[Child Labor Tax Case], 1922, 259 U.S. 20, 37, ..... .. S.Ct.
....... , 66 L.Ed. 817. Cited in United States v. Butler, 1936,
297 U.S. 1, 6 1 ,.......S.Ct........... , 80 L.Ed. 477; United States
v. Rumely, 1953, 345 U.S. 41, 44, 73 S.Ct. 543, 97 L.Ed. 770;
Uphaus v. Wyman, 1959, .......  U.S.........., ........ S.Ct......... ,
3 L.Ed.2d -----  (dissenting opinion) [June 8, 1959] [dis­
sent p. 17]. “ [T]here is no reason why [we] should pretend 
to be more ignorant or unobserving than the rest of man­
kind.” Affiliated Enterprises v. Waller, Del., ....... , 5 A.2d
257, 261. How it can be suggested that we should, for some 
[fol. 82] reason, not make inquiry in this case is a mystery 
to me. Many cases could be cited but the most recent 
example will do. A little over a month ago, in deciding
Harrison v. NAACP, 1959,.......U.S........... , ....... S.Ct...........,
3 L .Ed.2d....... [June 8, 1959], the Supreme Court took note
of the District Court’s findings that the acts there in ques­
tion were passed “to nullify as far as possible the effect of 
the decision of the Supreme Court in Brown v. Board of 
Education, 347 U.S. 483 # * * as parts of the general plan 
of massive resistance to the integration of schools of the
state under the Supreme Court’s decrees.” .......U. S...........,
....... , quoting from NAACP  v. Patty, E.D.Va., 1958, 159
F.Supp. 503, 511, 515. The dissenting opinion notes the
same findings,.......U.S........... , .......  [slip op. dissent p. 3],
and refers to Guinn v. United States, 1915, 238 U.S. 347,
....... S .C t.____ , 59 L.Ed. 1340, and the celebrated Alabama
case of Schnell v. Davis, 1949, 336 U.S. 933,.......S.Ct.......... ,
93 L.Ed. 1093, affirming per curiam, S.D.Ala., 1949, 81 
F.Supp. 872. The “legislative setting” surrounding the 
statute in the latter case was also alluded to in another case 
decided the same day. Lassiter v. Northampton Election
Board, 1959, - .........U.S........... , .......  S.Ct.........., ___  L.Ed.
.......  [June 8, 1959], In  Guinn the Court observed that an
Oklahoma “Grandfather Clause” statute could have “no 
discernible reason other than the purpose to disregard the 
prohibitions of the [Fifteenth] Amendment,” 238 U.S. 347, 
363, although the statute did not specifically declare as its 
purpose the disenfranchisement of Negroes. The District 
Court opinion in the Schnell v. Davis case discusses the 
legislative background of an “understand and explain the 
Constitution” registration requirement statute for three



61

[fol. 83] pages, 81 F.Supp. 872, 878-81, and concludes, at 
880, 881:

“The defendants argue that the Boswell Amendment 
is not ‘racist in its origin, purpose or effect,’ but, as 
has already been illustrated, a careful consideration of 
the conditions existing at the time, and of the circum­
stances and history surrounding the origin and adop­
tion of the Boswell Amendment and its subsequent 
application, demonstrate that its main object was to 
restrict voting on a basis of race or color. That its 
purpose was such is further illustrated by the cam­
paign material that was used to secure its adoption. 
* * * We cannot ignore the impact of the Boswell 
Amendment upon Negro citizens because it avoids men­
tion of race or color; ‘to do this would be to shut our 
eyes to what all others than we can see and under­
stand.’ ”

And this Court has taken note that such inquiry into 
motive and purpose was a main theme of the Davis case. 
Orleans Parish School Board v. Bush, 5 Cir., 1957, 242 
F.2d 156, 165.

Of course, here, as in Colegrove v. Green, 328 U.S. 549, 
supra, the effect of the statute is not only a demonstration 
of its purpose but is enough to demonstrate its unconstitu­
tionality standing alone. As Justice Black stated for three 
members of the Court,

“Whether that was due to negligence or was a wilful 
effort to deprive some citizens of an effective vote, the 
admitted result is that the Constitutional policy of 
equality of representation has been defeated.” 328 
U.S. 549, 572.

[fol. 84] V III.
The District Court has quoted, and my Brothers have 

echoed, language from cases to the effect that legislative 
motive cannot be inquired into. E.g., Doyle v. Continental 
Ins. Co., 1876, 94 U.S. 535, 24 L.Ed. 148; Shuttlesworth v. 
Birmingham Board of Education, D.Ala., 1958,162 F.Supp. 
372. I t  is necessary to ascertain precisely what they mean



62

by this discussion and quotations. Of course, at this late 
date, to “overrule” the principle of statutory interpretation 
would be somewhat like overruling the principle of stare 
decisis—equally as impossible and undesirable. I t is so 
firmly established—and for so long—that a mere quotation 
from Corpus Juris Secundum is adequate to make the 
point.

“Since the intention of the legislature, embodied in a 
statute, is the law, the fundamental rule of construc­
tion, to which all other rules are subordinate, is that 
the court shall, by all aids available, ascertain and 
give effect, unless it is in conflict with constitutional 
provisions, or is inconsistent with the organic law of 
the state, to the intention or purpose of the legislature 
as expressed in the statute.” 82 C.J.S., Statutes § 321 
(1953). (emphasis supplied)

What the Legislature of Alabama, as distinguished from 
its members, intended and what the purpose of the Legis­
lature, as distinguished from its members, was in the en­
actment of this law is then a traditional matter for concern 
to the Judiciary. Obviously the Legislature of Alabama 
could have had the purpose of discriminating against Negro 
[fol. 85] voters. Many states have had such purpose as the 
cases discussed in P art V, supra, attest. All that Doyle 
can mean is that in the .judicial process of ascertaining 
legislative purpose and intention the individual motives31 
and expression of the individual members is not pertinent.

31 For an interesting discussion of the distinction between in­
quiries into legislative “motive” and legislative “purpose” see 
NAACP v. Patty, E.D.Va., 1958, 159 F.Supp. 503, 515 n. 6, vacated
and remanded for consideration by Virginia courts,___ U.S.......... .
___ S. Ct_____ , ___ L.Ed.2d____  [No. 127, June 8, 1959].

In ordinary usage the shadings of the three terms are subtle. 
Webster’s New International Dictionary (2d ed. 1954) : Purpose: 
“That which one sets before himself as an object to be attained; 
the end or aim to be kept in view in any plan, measure, exertion 
or operation; design; intention.” Intention: “A determination to 
act in a certain way or to do a certain thing; purpose; design; as, 
an intention to go to Rome.” Motive: “That within the individual, 
rather than without, which incites him to action; any idea, need, 
emotion, or organic state that prompts to an action.”



63

But where the collective purpose and intention of the body 
is expressly stated or is ascertained on a trial by the exer­
cise of traditional rules of statutory construction in the 
light of record facts, the judicial ascertainment and de­
claration of that purpose and intention is not prohibited by 
the fact that individual legislators, either in legislative 
chambers or through the press, may have uttered state­
ments of startling candor.

Of course, to say that “If  the State has the power to do 
an act, its intention or the reason by which it is influenced 
in doing it cannot be inquired into,” Doyle v. Continental 
Ins. Co., supra, 94 U.S. 535, 541, quoted in Shuttlesworth 
v. Birmingham Board of Education, supra, 162 F.Supp. 372, 
381, is to beg the question. If the sole and exclusive legisla- 
[fol. 86] tive purpose is to deprive citizens of a state of 
their constitutional rights then the state does not have “the 
power to do [that] act.” Naturally, once this unconstitu­
tional purpose is ascertained, and it is determined that the 
act is unconstitutional and beyond the power of a state 
legislature to enact, then it is unnecessary and unwise to 
try to find why the legislature harbored this purpose, to 
psychoanalyze them individually or collectively, and to try  
and verbalize the motive which prompted them to action.

This was recognized in Doyle, supra, when the Court 
made this almost self-defeating pronouncement: “The 
State of Wisconsin * * * is a sovereign State, possessing 
all the powers of the most absolute government in the 
world.” 94 U.S. 535, 541. That this “most absolute govern­
ment in the world” was nevertheless subject to some re­
straints was acknowledged by the parenthetical phrase 
ellipsed purposely from the quotation just made that “ (ex­
cept so fa r as its connection with the Constitution and laws 
of the United States alters its position)” Wisconsin is an 
absolute sovereign state.

Doyle like Hunter is not really then an aid to decision. 
Each represents only the result once it has been concluded 
that the particular act does not offend the Constitution. 
Each is a sweeping generalization, the effect of which would 
be to supplant all constitutional guaranties if literally 
applied.



64

If  the Courts are not open to perform the traditional 
judicial function of ascertaining legislative purpose and 
intent, then these appellants stand helpless before the law 
[fol. 87] so that, as to the Fifteenth Amendment, in the 
memorable words of Chief Justice Marshall, “ * # * the 
declaration that the Constitution * * * shall be the supreme 
law of the land, is empty and unmeaning declamation.” 
M’Culloch v. Maryland, 4 Wheat. 316, 433, 4 L.Ed. 579, 608. 
The suggestion, implicit if not expressed, that “for protec­
tion against abuses by Legislators the people must resort 
to the polls, not to the Court.” Mmm  v. Illinois, 1877, 94
U.S. 113, 134, .......  S.Ct.........., 24 L.Ed. 77; Williamson v.
Lee Optical of Oklahoma, 1955, 348 U.S. 483, 488, 75 S.Ct. 
461, 99 L.Ed. 563, is here unavailing.

For there can be no relief a t the polls for those who 
cannot register and vote. Significantly the complaint in 
this case further alleged: “Macon County had no Board 
of Registrars to qualify applicants for voter registration 
for more than eighteen months, from January 16, 1956 to 
June 3,1957. Plaintiffs allege that the reason for no Macon 
County Board of Registrars is that almost all of the white 
persons possessing the qualification to vote in said County 
are already registered, whereas thousands of Negroes, who 
possess the qualifications, are not registered and cannot 
vote.” I t  was this fact, incidentally, which gave rise to 
the necessity of the dismissal of a cause of action against 
the Board of Registrars of Macon County for discrimina­
tory practices in registration. United States v. Alabama,
5 Cir., 1959,___ F. 2d ........  [No. 17684, June 16, 1959]. In
Macon County, of which Tuskegee is a geographical part, 
neither the Constitution nor Congress nor the Courts are 
thus fa r able to assure Negro voters of this basic right, 
[fol. 88] That this has occurred demonstrates, I  think, 
that the Fifteenth Amendment contemplated a judicial en­
forcement of its guaranties against either crude or sophisti­
cated action of states seeking to subvert this new right.

If the force of the ballot was to be the sole sanction for 
the effectual enforcement of the constitutional guaranty, 
it really created no right and imposed no prohibition. For

IX.



65

all that a recalcitrant state need do is neglect the imple­
menting of its own election machinery. If a Court may 
strike down a law which with brazen frankness expressly 
purposes a rank discrimination for race, it has—and must 
have—the same power to pierce the veil of sham and, in 
that process, judicially ascertain whether there is a proper, 
rather than an unconstitutional, purpose for the act in 
question.

The Court denies the existence of that power. The Con­
stitution is left to a majority of the Alabama Legislature.

X.
As Mr. Justice Frankfurter has recently said elsewhere, 

“The problem represented by this case is as old as the 
Union and will persist as long as our society remains a
constitutional federalism.” Irvin  v. Dowd, 1959, ...... . 11.8.
......., ....... S.Ct..........., 3 L.Ed. 2 d ....... [May 4, 1959], State
Legislatures are accorded, and rightfully so, great respect 
and a far ranging latitude in their legislative programs. 
Occasionally there comes the time, however, when legislation 
oversteps its bounds. Then “it must * # * yield to an au- 
[fol. 89] thority that is paramount to the state.” Wisconsin 
v. Illinois, 1930, 281 U.S. 179, 197, 50 S.Ct. 266, 74 L.Ed. 
799 (per Holmes, J.).

In such times the Courts are the only haven for those 
citizens in the minority. I believe this is such a time.

I  respectfully dissent.

W i s d o m , Circuit Judge, concurring:
I concur fully in the majority opinion. However, the 

gravity of the issue, the gulf between the majority and 
dissenting opinions, and a few sharp quillets in the dissent 
impel me to make some observations on the application 
to the instant case of the doctrine of judicial abstention in 
political cases.

I .

The plaintiffs propose a cure worse than the disease. 
The Court therefore should withhold the exercise of its



66

equity powers. That was Mr. Justice Rutledge’s view in 
an analogous situation. Colegrove v. Green, 1946, 328 U.S. 
549, 566. That is my view in this case.

An attempt by the federal judiciary to control a state 
legislature’s right to fix the boundaries of a political sub­
division is an intrusion of national courts in the polity of 
a state that in a federal system carries consequences even 
[fol. 90] more serious and far-reaching than the partial 
disfranchisement of plaintiffs unable to vote in municipal 
elections because by legislative definition their voting dis­
trict is not in a municipality. There are other considera­
tions. The plaintiffs ask for something courts cannot give. 
Courts, any courts, are incompetent to remap city limits. 
And any decree in this case purporting to give relief would 
be a sham: the relief sought will give no relief.

There is an obvious rep ly : in a democratic country noth­
ing is worse than disfranchisement. And there is no such 
thing as being just a little bit disfranchised. A free man’s 
right to vote is a full right to vote or it is no right to vote. 
Perhaps so, but in similar situations—to me they are simi­
lar—the United States Supreme Court has made no such 
reply. Instead, in at least two decisions the Supreme Court 
declined jurisdiction when the relief from partial disfran­
chisement would require federal courts to intrude in the 
internal structure and organization of the government of a 
state. Colegrove v. Green, 1946, 328 U.S. 549; South v. 
Peters, 1950, 339 U.S. 276.

When Illinois partially disfranchised the citizens in its 
seventh congressional district by gerrymandering1 away 
ninety per cent of their effective vote as against the vote 
of Illinois citizens in the fifth congressional district, the 
Court declined to interfere. Colegrove v. Green, 328 U.S. 
[fol. 91] 549. In congressional elections, therefore, 100,000 
votes may equal 900,000 votes, and a thirty-five per cent 
minority may outvote a sixty-five per cent majority (over 
the state as a whole). Georgia, by the county-unit device,

1 The Supreme Court of Illinois invalidated a 1931 reapportion­
ment and ordered a return to the statute of 1901. Moran v. Bowley, 
1932, 111. S.Ct. 179 N.E. 526. Legislative inaction resulted in a 
gerrymander as effective as any gerrymander created by legislative 
action reshuffling district lines.



67

disfranchises citizens of Fulton County (Atlanta) by ninety- 
nine per cent as against citizens in certain rural counties.2 
When the constitutionality of the system was attacked in 
the Supreme Court, again the Court held that federal courts 
should not interfere. South v. Peters, 339 U.S. 276.

I  can see no difference between partially disfranchising 
negroes and partially disfranchising Republicans, Demo­
crats, Italians, Poles, Mexican-Americans, Catholics, blue­
stocking voters, industrial workers, urban citizens, or other 
groups who are euchered out of their full suffrage because 
their bloc voting is predictable and their propensity for 
propinquity or their residence in certain areas, as a result 
of social and economic pressures, suggests the technique of 
partial disfranchisement by gerrymander or malapportion­
ment. I  can see no difference between depriving negroes 
of the right to vote in municipal elections in Tuskegee and 
not counting at their full value votes cast in certain dis­
tricts in Illinois in a congressional election or votes cast 
in certain counties in Georgia in a state election. The dis­
senting justices in Colegrove v. Green and in South  v. 
Peters found no sound distinction between those cases and 
the negro-voting cases.
[fol. 92] Colegrove v. Green and South v. Peters may be 
distinguishable at the periphery. At the center these cases 
and the instant case are the same. In the respect that 
Colegrove v. Green involved congressional districts, there 
was more reason for federal courts to intervene in Illinois’ 
gerrymandering affecting federal elections than there would 
be to intervene in Alabama’s gerrymandering that affects 
only municipal elections.

No one thinks that in Colegrove v. Green and South v. 
Peters the Supreme Court gave its constitutional blessing 
to partial disfranchisement. The Court did not reach the 
constitutional question. The Supreme Court was willing 
to assume that malapportionment was unconstitutional. 
“The Constitution”, said Mr. Justice Frankfurter for the 
majority in Colegrove v. Green, “has many commands that 
are not enforceable by the courts, because they clearly fall

2 For a defense of the system see Henson, The County Unit Sys­
tem is Constitution, 14 Ga. Bar J. 22 (1951).



6 8

outside the conditions and purposes that circumscribe judi­
cial action.” 3 In effect, the suit was “an appeal to the fed­
eral courts to reconstruct the electoral process of Illinois”. 
Mr. Justice F rankfurter stated: “ [T]he petitioners ask of 
[fol. 93] this Court what is beyond its competence to grant. 
. . . [T]his Court, from time to time, has refused to inter­
vene in controversies . . . because due regard for the effec­
tive working of our government revealed the issue to be of 
a peculiarly political nature and therefore not meet for 
judicial interference.” Mr. Justice Kutledge, concurring, 
sta ted :

“ [The Court has] power to afford relief in a case of 
this type. . . . But the relief it seeks pitches this Court 
into delicate relation to the functions of state officials 
and Congress, compelling them to take action which 
heretofore they have declined to take voluntarily or to 
aecept the alternative of electing representatives from 
Illinois at large in the forthcoming elections. . . .  If 
the constitutional provisions on which appellants rely 
give them the substantive rights they urge, other pro­
visions qualify those rights in important ways by vest­
ing large measures of control in the political subdivi­
sions of the government and the state. . . .  I think, 
therefore, the case is one in which the Court may 
properly, and should decline to exercise its jurisdic­
tion.”

3 Mr. Justice Frankfurter continued: “Thus, ‘on Demand of the 
executive Authority,’ Art. IV, §2, of a State it is the duty of a 
sister State to deliver up a fugitive from justice. But the fulfill­
ment of this duty cannot be judicially enforced. Commonwealth 
of Kentucky v. Dennison, 24 How. 66. The duty to see to it that 
the laws are faithfully executed cannot be brought under legal 
compulsion. State of Mississippi v. Johnson, 4 Wall. 475. Violation 
of the great guaranty of a republican form of government in States 
cannot be challenged in the courts. Pacific States Telephone & 
Telegraph Co. v. Oregon, 223 U.S. 118. The Constitution has left 
the performance of many duties in our governmental scheme to 
depend on the fidelity of the executive and legislative action and, 
ultimately, on the vigilance of the people in exercising their 
political rights.” Colegrove v. Green, 328 U.S. 549, 556.



69

In South v. Peters, 1950, 339 U.S. 276, a majority of the 
Supreme Court considered that the holding warranted only 
a short per curiam opinion: “Federal courts consistently 
refuse to exercise their equity powers in cases posing politi­
cal issues arising from a state’s geographical distribution 
of electoral strength among its political subdivisions.” 
[fol. 94] Long before these cases the Cherokee Nation 
asked for an injunction to restrain the State of Georgia and 
its officials from asserting certain rights and powers over 
the people of the Cherokee Nation. In defiance of a treaty 
between the United States and the Cherokee Nation, Georgia 
had passed laws dividing the Indian territory into districts 
and subjecting the Cherokees to the jurisdiction of the 
state. The Cherokees had the sympathy of almost all 
Americans. They had no possible haven but the United 
States Supreme Court. The Court refused to take jurisdic­
tion. The Cherokee Nation v. The State of Georgia, 1831, 
30 U.S. (5 Pet.) 1, 8 L.Ed. 1. In the opinion for the Court, 
Chief Justice John Marshall went out of his way to write, 
by way of dictum:

“If  courts were permitted to indulge their sympathies, 
a case better calculated to excite them can scarcely be 
imagined. . . .  A serious additional objection exists 
to the jurisdiction of the court. Is the m atter of the 
bill the proper subject for judicial inquiry and deci­
sion? . . .  The bill requires us to control the Legislature 
of Georgia, and to restrain the exertion of its physical 
force. The propriety of such an interposition by the 
court may be well questioned. I t  savors too much of 
the exercise of political power to be within the proper 
province of the judicial department.”

II.
With due deference to my able associate, it seems to 

me that the rhetorical questions in the opening paragraphs 
[fol. 95] of the dissent assume a process of reaching a 
decision that is inapplicable to political cases. In political 
cases there are few absolutes and few either-or questions. 
There may be some matters that clearly fall within the 
exclusive control of the executive or the legislative branches



70

of government or controversies that these political depart­
ments manifestly may settle more appropriately than the 
judicial department. Courts then apply the doctrine of 
abstention almost automatically. But since every official 
act is political in a sense, in most cases courts are driven 
to inquire. How political? And what are the consequences 
of granting or denying the relief requested? Because of 
this and because discretionary equitable powers usually 
are invoked, courts have considered it proper to take a 
pragmatic approach and to weigh a variety of considera­
tions in reaching a decision, not stopping, for example, 
with the flat statement that the issue is political and non- 
justieiable.4 A weighing of practical considerations along 
with broad principles may blur the line between no-jurisdic­
tion and jurisdietion-but-abstention, yet it has characterized 
[fol. 96] political cases since Luther v. Borden, 1849, 7 
How. (U.S.) 1.

To abstain or not to abstain in a hard case that seri­
ously affects the balance between the federal government 
and the states puts a court to the task of assaying values 
and assessing effects. Here we must weigh the value, in a 
federal system, of preserving the integrity of a state as a 
polity, including a state’s control over its political subdivi­
sions and the state administrative process—against the 
value of an individual’s right to vote in city elections when 
as a consequence of a state law gerrymandering municipal

4 In Colgrove v. Green, for example, the Court attached impor­
tance to these considerations: the court lacked satisfactory criteria 
for a judicial determination; the basis for the suit was not a private 
wrong, but a wrong suffered by Illinois as polity; no court can 
affirmatively remap the Illinois districts; it is hostile to a demo­
cratic system to involve the judiciary in the politics of the people; 
regard for the Constitution as a viable system precludes judicial 
correction, since authority for dealing with the problem resides 
first with Congress and ultimately with the people (to secure a 
state legislature that will apportion properly) ; malapportionment 
is chronic and embroiled in politics, and courts should avoid this 
political thicket; the Constitution has many commands that are not 
enforceable but left to legislative or executive action, and ultimately 
to the people; the possible consequences of decision were of great 
magnitude and the judicial processes inadequate for dealing with 
them; in our system of government it is appropriate that Congress 
have the final determination whether to seat Congressmen.



71

limits he does not live in a municipality. We must weigh 
the effects of federal action against inaction, of judicial in­
tervention against self-limitation. This weighing of values 
and effects is in no sense a play on the word “political”. 
It is a reasonable basis for a decision that may appear in­
defensible only when the ease is sought to be reduced to 
the single question: did the plaintiff have a constitutional 
right of which he was deprived or did he not?

III.
In my judgment, Colegrove v. Green and South v. Peters 

control this case. Even if they were not controlling, I  
would favor withholding the exercise of our equity powers 
for the reasons given and for the following reasons.

(1) Grant of relief would put federal courts in the posi­
tion of interfering with the internal governmental struc- 
[fol. 97] ture of a state, putting a new kind of strain on 
federal-state relations already severely strained. Control 
over the political subdivisions of a state including the in­
corporation of cities and towns and the determination of 
their boundaries, is a political function of the state legis­
lature and an attribute of state sovereignty in a federal 
union. So it has always been held. Let the chips fall 
where they may, the courts have decided. This is the sub­
stance of the holdings in Laramie County v. Albany County, 
1876, 92 IT.S. 307; Town of Mount Pleasant v. Beckwith, 
1879, 100 U.S. 514; and Hunter v. Pittsburgh, 1907, 207 
U.S. 161. In these and similar cases the citizens who suf­
fered from changes in city limits, by loss of property values 
or by increased taxation (if the boundaries are extended) 
or from lack of fire and police protection (if the boundaries 
are contracted) and from loss of voting privileges (in the 
case of a gerrymander), were in the same situation as the 
plaintiffs are in this case.

(2) The plaintiffs ask the Court to hold unconstitutional 
a law that is clearly constitutional on its face. The statu­
tory approach necessary to reach that somewhat unusual 
result would compel the Court to go beneath the surface 
of the law and impute to the legislature an unprofessed 
subjective intention. This ulterior motive, when coupled



72

with inferences from the effect of the law, would then be 
fatal to the constitutionality of the statute. As Mr. Jus­
tice Cardozo put it, this process spreads psychoanalysis to 
unaccustomed fields. United States v. Constantine, 296 U.S. 
287, 299. I  recognize that occasionally there may be statutes 
[fol. 98] which are unconstitutional in the light of their ef­
fect and the legislature’s intentions. Over the long pull, 
however, I believe that the interests of justice lie in the di­
rection of testing a law in the light of what the law says, 
not in the light of what the legislature intends. Rather 
than deviate from that principle in a case involving the 
exercise of a political function historically lodged with 
the state and free from federal supervision, I would heed 
the frequent admonition to avoid a decision upon the con­
stitutional question when there is a tenable alternative 
ground for disposing of the controversy.

(3) This ease differs from all cases involving successful 
complaints of discrimination under the Fourteenth and 
Fifteenth Amendments in that there is no effective remedy. 
An injunction will enable a citizen to vote—if he lives in a 
voting district where an election is held. I t is an empty 
right when he does not live in a voting district. The best 
that this Court could do for the plaintiffs would be to de­
clare Act 140 of 1957 invalid. There is nothing to prevent 
the legislature of Alabama from adopting a new law rede­
fining Tuskegee town limits, perhaps with small changes, or 
perhaps a series of laws, each of which might also be held 
unconstitutional, each decision of the court and each act of 
the legislature progressively increasing the strain on fed­
eral-state relations. As stated in Colegrove: “No court can 
affirmatively remap the Illinois districts. . . .  At best we 
could only declare the existing electoral system invalid.” 
Nor can this Court remap Tuskegee. If we had the com­
petency to determine the proper geographical limits for 
[fol. 99] towns in Alabama, still there would be no way of 
our giving effect to the talents of our judges: the plaintiffs’ 
only real remedy is one we have no right to give—a man­
damus against the legislature of Alabama.

In short, the situation is unmanageable. If we inter­
vene we shall only intensify the very dispute we are asked 
to settle. And federal courts have no mission—from the



73

constitution or from that brooding omnipresence of higher 
law so often an influence on constitutional decisions—to 
find a judicial solution for every political problem presented 
in a complaint that makes a strong appeal to the sympathies 
of the court. To repeat the words of Chief Justice John 
M arshall: “If  courts were permitted to indulge their 
sympathies, a case better calculated to excite them can 
scarcely be imagined. . . . [But] such an interposition by 
the court . . . savors too much of the exercise of political 
power to be within the proper province of the judicial 
department.”

[fol. 100]
I n  t h e  U n i t e d  S t a t e s  C o u r t  o e  A p p e a l s  

No. 17589

C. G. G o m i l l i o n ,  et al.,

P h i l  M. L i g h t p o o t , as Mayor of the City of Tuskegee, et al.

J u d g m e n t — September 15,1959
This cause came on to be heard on the transcript of 

the record from the United States District Court for the 
Middle District of Alabama, and was argued by counsel;

On Consideration Whereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be, and the same is hereby, affirmed;

It is further ordered and adjudged that the appellants, 
C. G. Gomillion, and others, be condemned, in solido, to pay 
the costs of this cause in this Court for which execution may 
be issued out of the said District Court.

“Brown, Circuit Judge, Dissenting.”
“Wisdom, Circuit Judge, Specially Concurring.”

[fol. 101] Clerk’s Certificate to foregoing transcript 
(omitted in printing).



74

[fol. 102]
S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s  

No...... .—October Term, 1959

C. G. G o m i l l i o n , et a l . ,  Petitioners,

P h i l  M. L i g h t e o o t , as Mayor of the City of Tuskegee, et a l .

O r d e r  E x t e n d i n g  T i m e  t o  F i l e  P e t i t i o n  f o r  

W r i t  o f  C e r t i o r a r i

Upon Consideration of the application of counsel for 
petitioner (s),

I t Is Ordered that the time for filing petition for writ of 
certiorari in the above-entitled cause be, and the same is 
hereby, extended to and including February 1, 1960.

Hugo L. Black, Associate Justice of the Supreme 
Court of the United States.

Dated this 4th day of December, 1959.

[fol. 103]
S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s  

No. 668—October Term, 1959

C. G. G o m i l l i o n , et al., Petitioners,

P h i l  M. L i g h t f o o t , as Mayor of the City of Tuskegee, et al.

O r d e r  A l l o w i n g  C e r t i o r a r i — March 21,1960
The petition herein for a writ of certiorari to the United 

States Court of Appeals for the F ifth  Circuit is granted.
And it is further ordered that the duly certified copy 

of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in re­
sponse to such writ.