Mitchell v. Wright Brief for Appellant
Public Court Documents
January 1, 1946
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Brief Collection, LDF Court Filings. Mitchell v. Wright Brief for Appellant, 1946. ffe9cf0b-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6943a6a9-58e8-4533-92ae-4679ab215515/mitchell-v-wright-brief-for-appellant. Accessed April 30, 2025.
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IN T H E
Intteft States Ctmtil €mtrt of Kppmhz
F oe t h e F if t h C ircuit
No. 11,538
WILLIAM P. MITCHELL,
Appellant,
versus
MRS. GEORGE C. WRIGHT, e t a l .,
Appellees.
A P PE A L FRO M T H E DISTRICT COURT OF T H E U N IT E D STATES
FOR T H E M IDDLE DISTRICT OF A LAB A M A
I » ■; " .........""r'1" ..... - - ..................... V . . ' - ^ ■—pSy
BRIEF FOR APPELLANT
-------------: ------------------- r— - - - - - ■ ■■■TT===--r---r— ................v. .....
A r th u r D . S hores,
1630 Fourth Avenue, No.,
Birmingham 3, Ala.
W illiam II . H astie , '
615 F. Street, N. W.,
Washington, D. C.
! \ V v
R obert L. Carter,
New York, N. Y.
Of Counsel.
T hurgood M arsh all ,
20 West 40th Street,
New York, N. Y.
Attorneys for Appellant.
TABLE OF CONTENTS
PAGE
Statement of Case__________________________________ 1
Statement of Facts____________________________ _____ 2
Specifications of Error______________ 3
Argument __________ _________________________ 5
I Federal Courts Have Jurisdiction of the Present
Cause of Action___ _____________________________ 5
A. Section 41 (11) and (14) of Title 28 of the
United States Code Gives the Federal Courts
Jurisdiction of Appellant’s Cause of Action____ 5
B. Appellant’s Failure to Pursue or Exhaust
His Rights Under State Law Does not Oust the
Federal Courts of Jurisdiction_________________ 7
II Appellees’ Refusal to Register Appellant Solely
Because of His Race or Color Violated the Con
stitution and Laws of the United States---------- 13
A. The Right to Vote is secured by the Fifteenth
Amendment Against Restrictions Based on Race
or C olor_____________________________________ 13
B. The Right of Qualified Electors of the Sev
eral States to Choose Members of Congress Is
Secured and Protected by Article I, Section 2
and by the Seventeenth Amendment of the
United States Constitution___________________ 14
C. The Policy of Requiring Negro Applicants
for Registration to Submit to Tests Not Re
quired of Other Applicants Violates the Four
teenth Amendment ----------------1------------------------ 16 III
III Appellant May Properly Maintain This Suit as a
Class Action Under Rule 23 (a) of the Federal
Rules of Civil Procedure —----------------------------- 19
11
IV Appellant May Properly Seek a Declaratory Judg
PAGE
ment ____________________________ 23
V Action of Appellees in Refusing to Register Appel
lant Makes them Liable to the Appellant for Dam
ages Under the Provisions of Sections 31 and 43 of
Title 8 of the United States Code_______________ 27
Conclusion_________________________________________ 28
Appendix A _____ 31
Appendix B _______________________________________ 41
Appendix C _______________________________________ 51
Appendix D ______________________________________ 52
Table of Cases.
Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 57
S. Ct. 461, 81 L. Ed. 617 (1937)_L________________ 23, 24
Alston v. School Board, 112 F. (2d) 992 (C. C. A. 4th,
1940) -------------------------------------------------------------- 22,26
Atwood v. Natl. Bank of Lima, 115 F. (2d) 861 (C. 0.
A. 6th, 1940)______ :_____________________________ 22
Bacon v. Rutland R, Co., 232 U. S. 134, 34 S. Ct. 283, 58
L. Ed. 538 (1914)________________________________ 8
Berry v. Davis, 15 F. (2d) 488 (C. C. A. 8th, 1926)___ 6
Breedlove v. Suttles, 302 U. S. 277, 58 S. Ct. 205, 82 L.
Ed. 252 (1937)__________________________________ 14
Chew v. First Presbyterian Church of Wilmington, 237
Fed. 219 (D. C. Del., 1916)_______________________ 20
Clarke et al. v. Goldman, 124 F. (2d) 491 (C. C. A. 2nd,
1941) __________________________________________ 22
Cloyes v. Middlebury Electric Co., 80 Vt. 109, 66 Atl.
1039 (1907) _____________________________________ 22
Cromwell v. Hillsborough T. P., Somerset County, N.
J., 149 F. (2d) 617 (C. C. A. 3d, 1945), aff’d. U. S.
Supreme Court, Oct. Term 1945, decided Jan. 29,
1946 ____________________________________________ 26
PAGE
Davis v. Cook, 55 F. Supp. 1004 (N. D. Ga., 1944),.__ 22,
Devoe v. United States, 103 F. (2d) 584 (C. C. A. 8th,
1939) __________________.________ _______________
Ex Parte Siebold, 100 U. S. 371, 25 L. Ed. 717 (1879)__
Ex Parte Virginia, 100 U. S. 346 25 L. Ed. 676 (1880)-...
Ex Parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L.
Ed. 274 (1884)_________ — ____________________ 14,
Farmers Co.-Op. Oil Co. v. Soeony Vacuum Oil Co. Inc.,
133 F. (2d) 101 (C. C. A. 8th, 1942)_______________
Gilchrist v. Interborough Rapid Transit Co., 279 U. S.
159, 49 S. Ct. 282, 73 L. Ed. 652 (1929)____________
Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926, 59
L. Ed. 1340 (1915)____________ ...______ ________6,13,
Hawarden v. Youghiogheny & L. Coal Co., I l l Wis.
545, 87 N. W. 472 (1901)_______________ ________20,
Henderson Water Co. v. Corporation Commission, 269
U. S. 279, 46 S. Ct, 112, 70 L. Ed. 273 (1925)_______
Home Telephone & Telegraph Co. v. Los Angeles, 227
U. S. 278, 33 St. Ct. 312, 57 L. Ed. 510 (1913)______
Hunter v. Southern Indemnity Underwriters, 47 F.
Supp. 242 (E. D. Ky., 1942)________________ ______
Independence Shares Carp, et al. v. Deekert, et al.,
108 F. (2d) 51 (C. C. A. 3rd, 1939)--.,___________20,
Iowa-Des Moines Natl. Bank v. Bennett, 284 U. S. 239,
52 S. Ct. 133, 76 L. Ed. 265 (1931)________________
Heavy v. Anderson, 2 F. R. D. 19 (R. I., 1941)________
Kvello v. Lisbon, 38 N. D. 71, 164 N. W. 305 (1917)____
Lane v. Wilson, 307 U. S. 268, 59 S, Ct. 872, 83 L. Ed.
1281 (1939) ____________________ 6, 8, 9,10,12,13,14,
McDaniel v. Board of Public Instruction, 39 F. Supp.
638 (N. D. Fla., 1941) - . . .___________...___________22,
Myers v. Anderson, 238 U. S. 368, 35 S. Ct. 932, 59 L.
‘ Ed. 1349 (1915)— — ______________________ 13,14,
Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300, 58
S. Ct. 199, 82 L. Ed. 276 (1937)____________________
Natl. Hairdressers & Cosmetologists Assn. Inc. v. Phil.
Co., 41 F. Supp. 701 (D. C. Del., 1941)____________20,
Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed.
984 (1932) ____________________ __________________6,
26
15
15
16
15
22
9
14
22
9
17
20
22
17
22
22
28
26
28
8
22
19
IV
Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed.
759 (1927) _______________________________ _______6,19
Oppenheimer, et al. v. F. J. Young & Co. Inc., 144 F.
(2d) 387 (C. C. A. 2d, 1944)_____________________ 20, 22
Pacific Telephone & Telegraph Co. v. Kuykendall, 265
U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975 (1924)____8, 9,10
Porter v. Investors Syndicate, 286 U. S. 461, 52 S. Ct.
617, 76 L. Ed. 1226 (1932) aff’d on rehearing 287
IT. S. 346, 53 S. Ct. 132, 77 L. Ed. 354 (1932)______ 8
Prentiss v. Atlantic Coast Line Co., 211 IT. S. 210, 29
S. Ct. 67, 53 L. Ed. 150 (1908)___________________ 8,9
Railroad & Warehouse Commission Co. v. Duluth Street
R. Co., 273 U. S. 625, 47 S. Ct. 489, 71 L. Ed. 807
(1927) _______________________________________ ___ 9
Skinner v. Mitchell, 108 Kan. 861, 197 P. 569 (1921) _ 22
Smith v. Allwright, 321 IT. S. 649, 64 S. Ct. 757, 88 L.
Ed. 987 (1943)_____________________ 13,14,15,18, 21, 28
Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed.
497 (1944) _______ .1_____________________________ 19
State Corporation Commission v. Wichita, 290 U. S.
561, 54 S. Ct. 321, 78 L. Ed. 500 (1934)._________ - - 8,10
Trade Press Pub. Co. v. Milwaukee Type Union, 180
Wis. 449, 193 N. W. 507 (1923)________________ 22
Trice Products Corp. v. Anderson Co., 147 F. (2d) 721
(C. C. A. 7th, 1945)_____________________________ 24
Trudeau v. Barnes, 65 F. (2d) 563 (C. C. A. 5th, 1933)Ml, 12
United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031,
85 L. Ed. 1368 (1941)____________________ 14,15,18,19
United States v. Mosely, 238 U. S. 383, 35 S. Ct. 904, 59
L. Ed. 1335 (1915)....______________________________ 14
United States v. Reese, 92 U. S. 214, 23 L. Ed. 563
(1876)___________ _______________ -_____ „_______ 13,14
United States v. Sing Tuck, 194 U. S. 161, 24 S. Ct. 621,
48 L. Ed. 917 (1904)____________________________ 9
Weeks v. Bareco Oil Co., 125 F. (2d) 84 (C. C. A. 7th,
1941)____________________________ _____________ 20, 22
Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 84
(1899)___________________________________________ 14
Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L.
Ed. 220 (1886)_______________________ -_________16,19
York v. Guaranty Trust Co. of New York, 143 F. (2d)
503 (C. C. A. 2d, 1944)___________________________ 22
PAGE
V
United States Constitution.
PAGE
Section 2, Article I___________________________3, 5, 6,13,14
Fourteenth Amendment_______________________4, 6,11,16
Fifteenth Amendment __________________ 5, 6,11,13,14, 21
Seventeenth Amendment______________________ 5, 6,13,14
Alabama Constitution.
Section 177, Article VIII____________ 3
Section 178, Article VIII__________ 3
Section 181, Article VIII________________________ 3
Section 182, Article VIII___________________________ 3
Section 184, Article VIII___________________________ 13
Section 186, Article VIII—__________________,_______ 3,18
Louisiana Constitution.
Section 5, Article VIII_____________________________ 11
Statutes.
Section 31, Title 8, U. S. Code_____________4, 5, 7,15, 27, 28
Section 43, Title 8, U. S. Code_____________4, 5, 7,15, 27, 28
Section 400, Title 28, U. S. Code (Section 274, Judicial
Cod©) __________ _ __ __ 23 33
Section 41 (11), Title 28, U. S. Code__________________ 4, 5
Section 41 (14), Title 28, U. S. Code_____________ 4, 5, 6
Section 51, Title 18, U. S. Code________________________ 15, 34
Section 54, Title 18, U. S. Code________________________ 15, 34
Section 55, Title 18, U. S. Code__________ 15
Section 56, Title 18, U. S. Code____________ _■_________ 15
Section 57, Title 18, U. S. Code____________________ 15
Section 58, Title 18, U. S. Code_____________________ 35
Sections 61a-h, Title 18, U. S. Code__________________ 15
Section 21, Title 17, Alabama Code 1940___13,16,18
Section 24, Title 17, Alabama Code 1940_______ 18
Section 32, Title 17, Alabama Code 1940______ 3
Section 35, Title 17, Alabama Code 1940____________ 7, 9,18
26 Okla. Stat. Sec. 74_______________________<________9; 52
Treatises and Articles.
Anderson, Declaratory Judgments (1940)____________ 23
Borchard, Declaratory Judgments (2nd Ed. 1941)_____ 23
Wheaton, Representative Suits Involving Numerous
Litigants, 19 Corn L. Q. 399, 407, 433 (1934)_______ 20
Moore, Federal Practice (1938)____________________ 20, 21
18 Am. Jur. 332, Section 62_________________________ 23
IN TH E
luitrfr ^fatru Ctmrit Court of Appraio
F oe th e F if t h C ircu it .
No. 11,538
W il l ia m P. M it c h e l l ,
Appellant,
vs.
M es. G eoege C. W eig h t , et al .,
Appellees.
A P PE A L FR O M T H E DISTRICT COURT OF T H E U N IT E D STATES
FOR T H E M IDDLE DISTRICT OF ALAB A M A
BRIEF FOR APPELLANT
P A R T O N E
Statement of the Case
This is an appeal by the appellant, William P. Mitchell,
from an order below entered in the District Court of the
United States for the Middle District of Alabama on
October 12, 1945 (E. 35) in the above entitled cause on mo
tion to dismiss appellant’s complaint, as amended.
The amended complaint, tiled on October 3, 1945, alleged
that on July 5, 1945, the defendants below, as the registrars
of voters of Macon County, Alabama, pursuant to a general
policy, custom or usage of refusing to register qualified
Negro electors, refused to register plaintiff below solely
2
on account of race and color (R. 6). It is also alleged that
the defendants below have maintained a policy, custom or
usage of denying to plaintiff below and other qualified Negro
electors, the equal protection of the laws by requiring them
to submit to tests not required of white electors and re
fusing to register qualified Negro electors while at the same
time registering white electors with less qualifications than
Negro electors (R. 5). In addition the allegation was made
that this refusal and denial violate the Constitution and
laws of the United States (R. 3). The complaint prayed
for a declaratory judgment, a permanent injunction and
Five Thousand dollars in damages (R. 7). The appellees
filed a motion to dismiss on August 30, 1945 (R. 9-21), an
amendment to such motion on September 20, 1945 (R. 21-
23), and a motion to dismiss the amended complaint on
October 5, 1945 (R. 23-24). On October 12, 1945, Judge
C. B. K ennaner issued an order sustaining appellees’
motion to dismiss and dismissing the complaint as amended
(R. 35), and filed an opinion setting forth reasons and
authority for the issuance of the aforesaid order (R. 25-35).
Statement of Facts
The complaint, as amended, alleges that: appellant is
a colored person of African descent and Negro blood. He
is a native-born citizen of the United States, a bona fide
resident of the State of Alabama and is over twenty-one
years of age. He is a taxpayer of the aforesaid state, pays
taxes on real property with an assessed evaluation in ex
cess of three hundred dollars ($300.00) and has paid in full
the taxes due on said property prior to the time he offered
to register. He is neither an idiot nor an insane person;
nor has he been convicted of any felony or crime. He is
able to read and write any passage in the United States
Constitution in the English language. In short, appellant
3
possesses all the qualifications and none of the disquali
fications requisite for registration and voting under the
Constitution and laws of the United States and of the State
of Alabama. (The Constitution of United States, Article I,
Section 2 and the Seventeenth Amendment. The Constitu
tion of Alabama Sections 177, 178, 181, 182, 186; Alabama,
Code of 1940, Section 32 of Title 17.) All parties to this ac
tion, both appellant and appellees, are citizens of the United
States and are residents of and domiciled in the State of
Alabama (R. 3). Appellees are the duly appointed, quali
fied and active registrars of voters of Macon County,
Alabama (R. 4), and were acting in that capacity on July
5, 1945 when appellant presented himself and made appli
cation for registration at the Macon County Court House,
the regular place for the registration of persons qualified
to register. Appellant filled out the required form for
registration, produced two persons to vouch for him as re
quired by appellees, correctly answered such questions as
were asked in proof of his qualifications and was ready,
willing and able to give any further information and evi
dence necessary to entitle him to be registered (R. 6).
Appellees did not require white persons presenting them
selves for registration to present other persons to vouch
for them but registered such persons forthwith (R. 6).
Appellant, however, was required to wait long hours before
being permitted to file his application and was required to
present persons to vouch for him as aforesaid (R. 6) . In
presenting himself at the Macon County Court House on
July 5, 1945 to register, appellant was seeking to qualify
to vote in any forthcoming election of federal or state
officers (R. 6). Despite the fact that appellant possessed
those qualifications necessary to entitle him to register, ap
pellees refused to register appellant solely on the basis of
his race and color (R. 6).
4
P A R T T W O
Specifications of Error
The District Court erred:
1. In sustaining appellees’ motion to dismiss and in dis
missing appellant’s amended complaint.
2. In sustaining appellees’ motion to dismiss the com
plaint, as amended, on the grounds that appellant could
not properly bring this action as a class suit under Rule
23 (a) of the Federal Rules of Civil Procedure.
3. In sustaining appellees’ motion to dismiss on the
ground that appellant could not properly maintain this suit
in the form of an action seeking a declaratory judgment.
4. In refusing to issue a permanent injunction forever
restraining and enjoining the appellees from subjecting
Negroes to tests not required of white applicants as a pre
requisite to registration.
5. In refusing to find that the Court had jurisdiction
under subdivisions 11 and 14 of Section 41 of Title 28, and
under Sections 31 and 43 of Title 8, of the United States
Code.
6. In refusing to deny appellees’ motion to dismiss
since appellant’s complaint clearly shows that appellees
wrongful acts deprived appellant and all those similarly
situated of the equal protection of the laws in violation of
the Fourteenth Amendment to the United States Constitu
tion.
7. In refusing to deny appellees’ motion to dismiss
since appellant’s complaint clearly shows that by virtue of
appellees’ wrongful acts, appellant and others similarly
situated, were denied rights secured to all citizens of the
5
United States by Section 2, Article I and by the Seven
teenth Amendment of the United States Constitution to
participate in elections of federal officers.
8. In refusing to deny appellees’ motion to dismiss
since appellant clearly shows in his complaint that the
acts of appellees deprived appellant of the right to vote
solely on account of race and color in violation of the Fif
teenth Amendment to the United States Constitution.
9. In refusing to deny appellees’ motion to dismiss
the complaint since appellant clearly shows in his complaint
that the appellees’ conduct made them liable to appellant
in damages under the provisions of Section 31 and 43 of
Title 8 of the United States Code.
P A R T T H R E E
ARGUMENT
I
Federal Courts Have Jurisdiction of the Present
Cause of Action.
A . Section 41 (1 1 ) and (1 4 ) of Title 28 of the
United States Code Gives the Federal Courts
Jurisdiction of the Appellant’s Cause of Action.
Jurisdiction is invoked pursuant to subdivisions 11 and
14 of Section 41 of Title 28 of the United States Code. Sub
division 11 of Section 41 provides:
“ The district courts shall have original jurisdic
tion as follows: . . . ‘ Of all suits brought by any
person to recover damages for any injury to his per
son or property on account of any act done by him,
under any law of the United States, for the protec
tion or collection of any of the revenues thereof, or
6
to enforce the right of citizens of the United States
to vote in the several states.’ ” (Italics ours.)
This is an action to recover damages for the refusal of
appellees, who are registrars of voters in Macon County,
Alabama, to register appellant and qualified Negro appli
cants similarly situated, solely on account of their race and
color. Since such registration is a prerequisite to the right
of a citizen of the United States to vote in any election in
the State of Alabama including the election of federal offi
cers, appellees ’ refusal was an effective deprivation of the
voting privileges. As such the federal courts have undis
puted jurisdiction. Nixon v. Herndon, 273 U. S, 536, 47 S.
Ct. 446, 71 L. Ed. 759 (1927); Nixon v. Condon, 286 U. S.
73, 52 S. Ct. 484, 76 L. Ed. 984 (1932); Lane v. Wilson, 307
U. S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939); Guinn v.
United States, 238 U. S. 347, 35 S. Ct. 926, 59 L. Ed. 1340
(1915); Berry v. Davis, 15 F. (2d) 488 (C. C. A. 8th, 1926).
Subdivision 14 of section 41 of Title 28 provides:
“ The district court shall have original jurisdic
tion as follows: . . . ‘ Of all suits at law or in equity
authorized by law to be brought by any person to
redress the deprivation, under color of any law,
statute, ordinance, regulation, custom, or usage, of
any State, of any right, privilege, or immunity, se
cured by the Constitution of the United States, or
of any right secured by any law of the United States
providing for equal rights of citizens of the United
States or of all persons within the jurisdiction of the
United States.’ ’ ’
Appellant’s suit also is an action at law to redress the
deprivation under color of law, statute, regulation, custom
or usage of a right, privilege, or immunity secured by the
United States Constitution, namely Section 2, of Article I,
the Fourteenth, Fifteenth and Seventeenth Amendments,
7
and of a right secured by law of the United States providing
for equal rights of citizens, namely, Sections 31 and 43 of
Title 8 of United States Code.
b / a ,
/ R
Appellant’s Refusal to Pursue or Exhaust His
Rights Under State Law Does Not Oust the
Federal Courts of Jurisdiction.
The S^ate of Alabama, under Section 35 of Title 17 of
the Alabama Code of 1940 gives the right of appeal when
registration's denied as follows:
/ “ Any person to whom registration is denied shall
have the right to appeal, without giving security for
costs, within thirty days after such denial, by filing
a petition in the circuit Court or Court of like juris
diction held for the county in which he or she seeks
to register, to have his or her qualifications as an
elector determined. Upon the filing of the petition,
the clerk of the Court shall give notice thereof to
the solicitor authorized to represent the state in said
county, who shall appear and defend against the
petition on behalf of the state. Upon such trial the
Court shall charge the jury only as to what consti
tutes the qualifications that entitle the applicant to
become an elector at the time he or she applied for
registration, and the jury shall determine the weight
and effect of the evidence, and return a verdict.
From the judgment rendered an appeal will lie to
the supreme Court in favor of the petition to be
taken within thirty days. Final judgment in favor
of the petitioner shall entitle him or her to regis
tration as of the date of his or her application to
the registrars.”
The remedy herein provided cannot be considered ad
ministrative. On the contrary, it is the type of proceeding
traditionally considered judicial. The aggrieved party may
go into the circuit court or a court of like jurisdiction in
the county in which he seeks to have his registration deter
8
mined. The solicitor of the state is authorized to appear
as the representative of the state and defend the action
of the registrars on behalf of the state. A trial by jury is
provided, and the court is required to charge the jury as
to what constitutes the qualifications entitling an applicant
to become an elector at the time of his application for regis
tration. The jury is required to determine the weight and
effect of the evidence and return a verdict. An appeal to
the Supreme Court of the State may be taken from an
adverse decision in the circuit court. It is difficult to con
ceive of a procedure having more of the earmarks of an
ordinary and conventional judicial proceeding than that
provided herein.
State remedies that are judicial in nature need not be
pursued or exhausted before an action can be maintained
in the federal courts. State Corporation Commission v.
Wichita, 290 U. S. 561, 54 S. Ct. 321, 78 L. Ed. 500 (1934);
Porter v. Investors Syndicate, 286 U. S. 461, 52 S. Ct. 617,
76 L. Ed. 1226 (1932) aff’d on rehearing, 287 U. S. 346, 53
S. Ct. 132, 77 L. Ed. 354 (1932); Bacon v. Rutland R. Co.,
232 U. S. 134, 34 S. Ct. 283, 58 L. Ed. 538 (1914); Pacific
Telephone & Telegraph Co. v. Kuykendall, 265 U. S. 196,
44 S. Ct. 553, 68 L. Ed. 975 (1924); Lane v. Wilson, supra.
Whenever the question has been presented the United
States Supreme Court has examined the remedy provided
to determine whether it was legislative or judicial in nature.
Prentiss v. Atlantic Coast Line Co., 211 TJ. S. 210, 29 S. Ct.
67, 53 L. Ed. 150 (1908); Lane v. Wilson, supra; Pacific
Telephone & Telegraph Co. v. Kuykendall, supra; Porter v.
Investors Syndicate, supra. Only in the former instance
was it deemed necessary that the remedy be exhausted
before suits could be perfected in the federal courts. Nat
ural Gas Pipeline Co. v. Slattery, 302 U. S. 300, 58 S. Ct.
199, 82 L. Ed. 276 (1937); Porter v. Investors Syndicate,
9
supra; Gilchrist v. Interborough Rapid Transit Co., 279
U. S. 159, 49 S. Ct. 282, 73 L. Ed. 652 (1929); Railroad and
Warehouse Commission Co. v. Duluth Street R. Co., 273
IT. S. 625, 47 S. Ct. 489, 71 L. Ed. 807 (1927); Henderson
Water Co. v. Corporation Commission, 269 U. S. 279, 46 S.
Ct. 112, 70 L. Ed. 273 (1925); Pacific Telephone & Tele
graph Co. v. Kuykendall, supra; Prentiss v. Atlantic Coast
Line Co., supra; United States v. Sing Tuck, 194 U. S. 161,
24 S. Ct. 621, 48 L. Ed. 917 (U " ' x
In its opinion sustaining appeiiees’ motion to dismiss
the court below attempted to distinguish this proceeding
from that before the United States Supreme Court in Lane
v. Wilson, supra, on the grounds that in the latter case the
“ law itself worked discrimination against the colored race”
(II. 34). Counsel for appellant after a careful examination
of the facts before the Court and the opinion in Lane v.
Wilson can find no conceivable basis for this attempted dis
tinction.
In Lane v. Wilson there was before the Court an Okla
homa statute (26 Okla. Stat. Sec. 74) which in effect denied
to Negroes the right to register and vote solely on the basis
of race and color. The state provided an appeal from the
refusal of a registration officer to register a qualified elector
similar to that provided by the Alabama Code, supra.1 In
answer to objections that the remedies provided by the
state should have been exhausted before the instant pro
1 The Oklahoma Statute (26 Okla. Stat. Sec. 74) provided in
part: “ and provided further, that wherever any elector is refused
registration by any registration officer such action may be reviewed
by the district court of the county by the aggrieved elector by his
filing within ten days a petition with the Clerk of said Court where
upon summons shall be issued to said registrar requiring him to
answer within ten days, and the district court shall be (give an) an
expeditious hearing and from his judgment an appeal will lie at the
instance of either party to the Supreme Court of the State as in civil
cases. * * * ”
10
ceeding could be maintained in the federal courts, Mr. Jus
tice F raxkftjrteb, speaking for the Court, said at page 274:
“ Normally, the state legislative process, some
times exercised through administrative powers con
ferred in state courts, must be completed before
resort to the federal courts can be had. . . . But
the state procedure open for one in the plaintiff's
situation . . . has all the indicia of a conventional
judicial proceeding and does not confer upon the
Oklahoma courts any of the discretionary or initia
tory functions that are characteristic of adminis
trative agencies, . . . Barring only exceptional cir
cumstances, . . . or explicit statutory requirements,
. . . resort to a federal court may he had without
exhausting the judicial remedies of state courts
(Italics ours.)
The Supreme Court did not indicate that its ruling—
that judicial remedies need not be exhausted before resort
could be had to a federal court—would apply only where a
statute involved was discriminatory on its face. On the con
trary, the opinion expressly states that the rule would be
applicable except in unusual circumstances or by virtue of
explicit statutory requirements. The remedy provided by
Alabama for an appeal for refusal to register a qualified
elector, even more so than that under consideration in
Lane v. Wilson, has all the distinguishing characteristics
which England and America have come to associate with
a judicial proceeding. Under the rule of Lane v. Wilson,
supra; State Corporation Commission v. Wichita, supra;
Pacific Telephone & Telegraph Co. v. Kuykendall, supra,
appellant is authorized to institute an action in the federal
courts for wrongful refusal of appellees to register him
without first pursuing or exhausting the remedy provided
by the State of Alabama.
11
The court below also cites Trudeau v. Barnes, 65 F. (2d)
563 (C. C. A. 5th, 1933) as authority for its position that
appellant must first pursue the remedies open in the State
of Alabama before being allowed to seek redress in the
federal courts. This case was an appeal from a judgment
in the court below dismissing a petition to recover damages
for the deprivation of the right of appellant to register as
a voter in the State of Louisiana. Petitioner attempted
to pursue two inconsistent causes of action. In one the
arbitrary refusal of the registrars to register appellant
was contested on the ground that such action was contrary
to the Constitution and laws of Louisiana. The other at
tempted to show that the “ understanding clause” of the
Louisiana Constitution violated the Fourteenth and Fif
teenth Amendments to the United States Constitution. This
Court found, as to the first cause of action, that the peti
tion failed to state facts sufficient to show that the applicant
was entitled to register. As to the second cause of action,
this Court found that the “ understanding clause” of the
Louisiana Constitution did not violate any provision of the
Federal Constitution since it applied equally to all appli
cants for registration and was not based on race or color.
However, in considering Article 8, Section 5 of the Louisi
ana Constitution 2 which provides a state remedy to appeal
2 Article 8, Section 5, La. Constitution provides: “ Any person
possessing the qualifications for voting prescribed by this Constitu
tion, who may be denied registration, shall have the right to apply
for relief to the district court having jurisdiction of civil causes for
the parish in which he offers to register. Said court shall then try
the cause, giving it preference over all other cases, before a jury of
twelve, nine of whom must concur to render a verdict. This verdict
shall be a final determination of the cause. The trial court may,
however, grant one new trial by jury. In no cases shall any appeal
lie or any other court exercise the right of review * * *.
12
the refusal of a registrar to register an applicant, Judge
B ryan of this Court said:
“ It is idle to say that the defendant as registrar
had the arbitrary power to deny plaintiff the right
to vote. We cannot say and refuse to assume, that, if
the plaintiff had pursued the administrative remedy
that was open to him, he would not have received
any relief to which he was entitled. At any rate, be
fore going into Court to sue for damages, he was
hound to exhaust the remedy afforded him by the
Louisiana Constitution.” (Italics ours.)
If this portion of the opinion means that all state reme
dies, whether judicial or administrative, must he exhausted
before resort can be had to the federal courts, it is in
consistent with Lane v. Wilson, supra, and the long line
of decisions cited ante which have held that only where
the state remedy was legislative did it have to be com
pleted before the federal courts could entertain juris
diction. Trudeau v. Barnes, therefore, cannot he consid
ered persuasive or authoritative if contrary to these rul
ings and precedents of the United States Supreme Court.
There this Court properly stated the rule that adminis
trative remedies had to be exhausted before resort could
be had to the federal courts. The rule, however, was wrong
fully applied since the state remedy under consideration
was judicial and not administrative. Lane v. Wilson, supra.
Further than that, as will be developed in a subsequent por
tion of this brief, the instant litigation is the especial con
cern of the federal courts since appellant and those similarly
situated were attempting to qualify as electors in order to
participate in the election of federal as well as of state
officers.
13
II
Appellees’ Refusal to Register Appellant Solely
Because of His Race or Color Violated the
Constitution and Laws of the United States.
A. The Right to Vote Is Secured by the Fifteenth
Amendment Against Restrictions Based on
Race or Color.
The State of Alabama makes registration a prerequisite
to the right to qualify as an elector and vote in any election
held within the State. Constitution of Alabama, Section
184, Alabama Code of 1940, Title 17, Section 21. This re
quirement by the very terms of Article I, Section 2 and
the Seventeenth Amendment to the United States Constitu
tion is incorporated therein and becomes a prerequisite for
voting in any election in the State held to choose Alabama’s
Congressional and Senatorial representatives.3
Precedents of the United States Supreme Court have
firmly fixed the rule that regulations which are designed to
prevent persons from qualifying to vote solely on the basis
of race or color cannot stand in the face of the express
terms of the Fifteenth Amendment. Lane v. Wilson, supra;
Myers v. Anderson, 238 U. S. 368, 35 S. Ct. 932, 59 L. Ed.
1349 (1915); Guinn v. United States, supra. This constitu
tional guaranty still leaves the states free to enact reason
able regulations concerning suffrage and to demand that
its electors meet reasonable requirements and standards
as long as such regulations, requirements and standards
are not based on considerations of race or color. United
States v. Reese, 92 U. S. 214, 23 L. Ed. 563 (1876); Lane v.
Wilson, supra; Guinn v. United States, supra; Smith v. All-
wright, 321 U. S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1943).4
3 See infra, pp. 14-16.
1 See annotation on effect of the Fifteenth Amendment in 23 L.
Ed. 563.
14
Despite the wide authority and discretion which a state
may validly exercise in regulating the election process, the
right to vote is considered a right grounded in the Fed
eral Constitution. United States v. Classic, 313 U. S. 299,
61 S. Ct. 1031, 85 L. Ed. 1368 (1941); Ex parte Yarbrough,
110 IT. S. 651, 4 S. Ct. 152, 28 L. Ed. 274 (1884); Wiley v.
Sinkler, 179 TJ. S. 58, 21 S. Ct. 17, 45 L. Ed. 84 (1899);
United States v. Mosely, 238 U. S. 383, 35 S. Ct. 904, 59 L.
Ed. 1355 (1915). But cf. United States v. Reese, supra;
Breedlove v. Suttles, 302 U. S. 277, 58 S. Ct. 205, 82 L. Ed.
252 (1937), and annotation in 23 L. Ed. 563, on the effect of
the Fifteenth Amendment.
It is now clearly settled that the provisions of the Fif
teenth Amendment may effectively reach each and every
stage of the electoral process. Wherever in that process
restrictions of race or color are erected, such restrictions
violate the Fifteenth Amendment. Myers v. Anderson,
supra; Guinn v. United States, supra; Lane v. Wilson,
supra; United States v. Classic, supra; Smith v. AUwright,
supra. Refusal to permit one to register, therefore, solely
on the basis of race and color is clearly within the prohibi
tions of the Fifteenth Amendment and has been so held.
Lane v. Wilson, supra; Myers v. Anderson, supra; Guinn
v. United States, supra.
B. The Right of Qualified Electors of the Several
States to Choose Members of Congress Is Se
cured and Protected by Article / , Section 2 and
by the Seventeenth Amendment of the United
States Constitution.
Section 2 of Article I of the Constitution of the United
States provides that members of the House of Represen
tatives shall be chosen every second year by the people of
the several states and that the electors in each state shall
15
have the qualifications requisite for electors of the most
numerous branch of the state legislature.
The right of electors of the several states to choose their
representatives is a right secured and guaranteed by the
Federal Constitution to those citizens of the several states
entitled to exercise that power. Since these constitutional
provisions are without qualifying limitations, the rights
therein guaranteed run against individual as well as state
action. Ex parte Yarbrough, supra; United States v. Clas
sic, supra.
Registration is a prerequisite to participate in any elec
tion held in the State of Alabama for the election of federal
officers and is an integral part of the electoral process.
Failure of appellant to be a registered elector prior to such
forthcoming federal elections will disqualify him to cast
his vote for the election of federal representatives of the
State of Alabama, The protection of the right of a citizen
of the United States to participate in the election of federal
officers has long been considered the particular and especial
concern of the United States Government. Ex parte Siebold,
100 U. S. 371, 25 L. Ed. 717 (1879); Ex parte Yarbrough,
supra; United States v. Classic, supra; Smith v. Allwright,
supra; Devoe v. United States, 103 F. (2d) 584 ( 0. C. A. 8th,
1939). The federal government has also been deemed to
have sufficient authority under the Constitution to enact
legislation designed to keep the federal elections free from
fraud, force and coercion. Title 18, Sections 51, 54, 56, 57,
58 and 61 and Sections 31 and 43 of Title 8 of the U. S.
Code.
Appellant therefore is no requesting this Court to per
form any new or unusual duty but is requesting that the
Court exercise its authority over a subject matter which has
been traditionally considered within the jurisdiction of the
federal courts.
16
C. The Policy of Requiring Negro Applicants for
Registration to Submit to Tests Not Required
of Other Applicants Violates the Fourteenth
Amendment to the United States Constitution.
Appellees in the instant proceedings are state officers
and hold such office pursuant to provisions of Section 21,
Title 17 of the Alabama Code of 1940. The acts of appel
lees were committed in the course of the performance of
their administrative duties of registering all qualified elec
tors within Macon County pursuant to the constitution and
laws of the State of Alabama. In requiring appellant to
submit to tests not required of white applicants, and in re
fusing to register appellant solely on the basis of race and
color, appellees violated the equal protection clause of the
Fourteenth Amendment, which provides that “ . . . No state
shall deny to any person within its jurisdiction the equal
protection of the laws.” This provision is clearly violated
where a law, however fair on its face, is administered in a
discriminatory manner. Yick Wo v. Hopkins, 118 U. S.
356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). Although this
amendment only reaches state action, such action within
the meaning of its provisions is the action of any agent who
is a repository of state authority, whether a part of exec
utive, legislative or judicial departments of the state gov
ernment. As the United States Supreme Court said in Ex
parte Virginia, 100 U. S. 313, 346, 347, 25 L. Ed. 676, 679
(1880):
“ We have said the prohibitions of the Fourteenth
Amendment are addressed to the States. . . . They
have reference to actions of the political body de
nominated a State, by whatever instruments or in
whatever modes that action may be taken. A State
acts by its legislative, its executive or its judicial
authorities. It can act in no other way. The consti
tutional provision, therefore, must mean that no
17
agency of the State or of the officers or agents by
whom its powers are exerted, shall deny to any per
son within its jurisdiction the equal protection of
the laws. Whoever, by virtue of public position
under a State government, deprives another of prop
erty, life, or liberty, without due process of law, or
denies or takes away the equal protection of the laws,
violates the constitutional inhibition; and as he acts
in the name and for the State, and is clothed with
the State’s power, his act is that of the State. This
must be so, or the constitutional prohibition has no
meaning. Then the State has clothed one of its
agents with power to annul or to evade it.”
In Home Telephone & Telegraph Company v. City of
Los Angeles, 227 U. S. 278, 287, 33 S. Ct. 312, 57 L. Ed. 510,
515 (1913), the Court speaking through Chief Justice
W h ite said:
“ . . . the theory of the [14] Amendment is that
where an officer or other representative of a state,
in the exercise of the authority with which he is
clothed, misuses the power possessed to do a wrong
forbidden by the Amendment, inquiry concerning
whether the state has authorized the wrong is irrele
vant, and the Federal judicial power is competent
to afford redress for the wrong by dealing with the
officer and the result of his exertion of power . . .
In lowa-Hes Moines National Bank v. Bennett, 284 U. S.
239, 246, 52 S. Ct. 133, 76 L. Ed. 265, 272 (1931), the United
States Supreme Court said:
“ . . . When a state official, acting under color of
state authority, invades, in the course of his duties,
a private right secured by the Federal Constitution,
that right is violated, even if the state officer not
only exceeded his authority but disregarded special
commands of the state law.”
18
Recently in United States v. Classic, supra, the Court
said:
“ Misuse of power, possessed by virtue of State
law and made possible only because the wrong-doer
is clothed with the authority of State law, is action
taken ‘ under color o f ’ State law.”
The instant case is similar in context to the situation
presented in the Classic case, and in Smith v. Allwright.
The rationale of the decision in the Classic case applies
to the instant proceedings since there can be no doubt that
appellees were officers of the state. Section 21 of Title 17
of the Alabama Code of 1940 and Section 186 of the Alabama
Constitution provide that registrars shall be appointed by
the Governor and the commissioners of agriculture and of
industries, or by a majority of these officers acting as a
board of appointment. Section 24 of Title 17 of the Alabama
Code provides that the state shall pay to each registrar
five dollars for each day’s attendance upon the sessions of
the Board. Section 35 of Title 17 of the Alabama Code and
Section 186 of the State Constitution provide that wherever
an appeal is taken under its provisions by any person to
whom registration is denied the solicitor authorized to rep
resent the State shall appear and defend the action of the
registrars on behalf of the State. Registration, being a pre
requisite to voting, is an integral part of the election process
and in performing the duties of registering qualified appli
cants, appellees are performing an important state function.
Appellees were pursuing a policy, custom or usage of sub
jecting qualified Negro electors to tests not required of white
applicants, nor by the laws and constitution of the State in
determining the qualifications of an elector. Appellees
further were pursuing a policy, custom, and usage of deny
ing to Negro qualified applicants the right to register, while
at the same time registering white electors with less qualifi
19
cations than those possessed by colored applicants. This
is clearly a denial of the equal protection clause within the
meaning of the Fourteenth Amendment. Nixon v. Herndon,
supra; Nixon v. Condon, supra; United States v. Classic,
supra. See also Snowden v. Hughes, 321 II. S. 1, 88 L. Ed.
497, 64 S. Ct. 397 (1944); Yick Wo v. Hopkins, supra. As
such it is within the reach of federal power.
Ill
Appellant May Properly Maintain This Suit as a
Class Action Under Rule 23 (a) of the
Federal Rules of Civil Procedure.
Under Rule 23 (a) of the Federal Rules of Civil Pro
cedure one or more persons, adequately representative of
all, may bring an action on behalf of all members of a class,
where the persons constituting the class are sufficiently
numerous to make it impracticable to bring them all before
the court, and where the character of the right under litiga
tion is “ several, and a common relief is sought” . Appel
lant instituted the present proceeding in the Court below
on behalf of himself and as a representative of a class, com
posed of Negro citizens of the United States, residents and
citizens of the State of Alabama and of Macon County
similarly situated, who are qualified to register as voters
in Macon County of the aforesaid State, under the Constitu
tion and laws of the United States and of the State of Ala
bama (R. 3). The question herein presented—whether
registrars individually or a Board of Registrars collectively
may maintain a policy, custom or usage of denying to mem
bers of this class the equal protection of the laws, by re
quiring them because of their race and color to submit to
tests not required of white electors, and of refusing to regis
ter them on grounds not required by the Constitution and
laws of the United States and of the State of Alabama—
20
involve rights of common and general interest to all mem
bers of the class represented by appellant.
The class suit evolved early in English equity5 as a
device to escape the difficulties inherent in compulsory
joinder and to permit a single litigation of group injuries
in cases of common interest.6 With federal Rule 23 (a)
this doctrine was reformulated to suit the needs of modern
practice.7
Under this provision it is not necessary that all mem
bers of the class join in the suit. It is merely necessary
that one or more persons adequately representative of the
entire class institute the litigation. The other members of
the class may join as they see lit.8 The present litigation is
that type of class action labeled “ spurious” , Independence
Shares Corp. et al. v. Deckert, et al., 108 F. (2d) 51, (C. C.
A. 3rd, 1939); Weeks v. Bareco Oil Co., 125 F. (2d) 84 (C.
C. A. 7th, 1941); see Hunter v. Southern Indemnity Under-
luriters, 47 F. Supp. 242 (E. D. Ky., 1942); Natl. Hair
dressers & Cosmetologists Assn. Inc. v. Phil. Co., 41 F.
Supp. 701 (D. C. Del., 1941); Oppenheimer, et- al. v. F. J.
5 See on whole development 2 Moore, Federal Practice (1938)
2224 et seq.
6 Common interest has been variously defined. See Wheaton,
Representative Suits Involving Numerous Litigants (1934) 19 Com.
L. Q. 399, 407, 433. (Composite definitions of common interest.)
In addition to the difficulty in defining common interest, the courts
have been in disagreement as to whether the common interest need
be, only in questions of law, Hawarden v. Youghiogheny & L.
Coal Co., I l l Wis. 545, 87 N. W . 472 (1902), or in both questions
of law and fact, Chew v. First Presbyterian Church of Wilmington.
237 Fed. 219 (D . C. Del. 1916). The codifiers of Rule 23 (a ) must
have been aware of these conflicts and difficulties, however, for it is
expressly provided that the common interest may be either in law
or fact.
7 Every state today has a statute permitting class actions. The
provision common to all these statutes is the “ common or general
interest” of many persons. See Wheaton, op. cit. supra. Note 4.
8 See Moore, op. cit. supra.. Note 3.
21
Young & Co. Inc., 144 F. (2d) 387 (C. C. A. 2d, 1944); see
also 2 Moore op. cit. supra note 3, and requires nothing
more than a group with a common interest, seeking com
mon relief, to constitute the class.
The instant proceeding cannot be viewed merely as the
discriminatory practices of individual state officers against
an individual seeking to qualify for registration but must
be viewed in context as part of a scheme or device to effec
tively disfranchise all qualified Negro electors. Although
the Fifteenth Amendment was specifically designed to pre
vent barriers to the franchise being imposed based on race
or color, it has been necessary for the United States Su
preme Court to invalidate hurdle after hurdle erected to
circumvent this constitutional guaranty and deprive Ne
groes of the right to vote. The last of these barriers, the
right to participate in a primary election, was leveled in
Smith v. Allwright, supra. Under the authority of that
decision, Negro citizens of the United States and residents
of Alabama possessing the necessary qualifications of elec
tors attempted to register as voters.
In refusing to register appellant and in subjecting him
to tests not required by the Constitution and laws of the
United States and of the State of Alabama, and to which
white applicants were not subjected, appellees were pursu
ing a policy, custom, or usage of denying registration to
Negro applicants solely on the basis of race or color. All
Negroes similarly situated to appellant have a common in
terest in the questions herein presented because of appel
lees ’ wrongful acts, and in having these questions clarified
and determined as they affect the exercise of a fundamental
right secured by the Federal Constitution. The courts
have never based their decision on the propriety of a class
suit on whether the persons similarly situated actually
formed a class in esse before the injury complained of oc
22
curred, but only on whether the proceeding under inquiry
met the statutory requirements. See York v. Guaranty
Trust Co. of New York, 143 F. (2d) 503 (C. C. A. 2nd,
1944); Keavy v. Anderson, 2 F. (2d) 19 (1941); Atwood v.
Natl. Bank of Lima, 115 F. (2d) 861 (C. C. A. 6th, 1940);
Farmers Co.-Op. Oil Co. v. Socony Vacuum Oil Co. Inc.,
133 F. (2d) 101 (C. C. A. 8th, 1942) ; Clarke, et al. v. Gold
man, 124 F. (2d) 491 (C. C. A. 2nd, 1941). Where a group
of people are similarly injured by common practices of an
other, it is recognized that scope of the injury creates the
required class.9 Although registration concededly presents
individual questions, these individual issues have not been
considered relevant in determining whether a class suit
could be instituted, so long as apart from the independent
questions which had to be settled, there was presented some
fundamental question of common interest. See York v.
Guaranty Trust Co., supra; Independence Shares Corp. v.
Deckert, et al., supra; Oppenheimer, et al. v. T. J. Young
Co. Inc., supra; Alston v. School Board, 112 F. (2d) 992
(C. C. A. 4th, 1940); McDaniel v. Board of Public Instruc
tion, 39 F. Supp. 638 (N. D. Fla., 1941); Davis v. Cook, 55
F. Supp. 1004 (N. D. Ga., 1944).
As the Court said in Weeks v. Bareco Oil Co., supra:
“ The history of class suit litigation, its history
over a century of growth, the origin and status of
9Hawarden v. Youghiogheny, 111 Wis. 545, 87 N. W . 472
(1902) ; Trade Press Pub. Co. v. Milwaukee Type Union, 180 Wis.
449, 193 N. W . 507 (1923), class action permitted to enjoin a wrong
ful conspiracy; W eeks v. Bareco Oil Co., supra, class action per
mitted to recover damages caused by unlawful conspiracy; Cloyes v.
Middlebury Electric Co., 80 Vt. 109, 66 Atl. 1039 (1907), class suit
permitted to enjoin a nuisance; Natl. Hairdressers & Cosmetologists
Assn. Inc. v. Philad Co., supra, class suit permitted to declare patent
invalid and to enjoin defendants from asserting that plaintiff’s in
fringed their patent rights; Skinner v. Mitchell, 108 Kan. 861, 197
P. 569 (1921 ); Kvello v. Lisbon, 38 N. D. 71, 164 N. W . 305 (1917),
class action permitted to enjoin an invalid tax.
23
present Rule 23 of the Federal Rules of Civil Pro
cedure, are all persuasive of the necessity of a liberal
construction of this Rule 23, and its application to
this class of litigation. It should be construed to
permit a class suit where several persons jointly act
to the injury of many persons so numerous that their
voluntarily, unanimously joining in a suit is eon-
cededly improbable and impracticable. Under such
circumstances injured parties who are so mindful
may present the grievance to Court on behalf of all,
and the remaining members of the class may join as
they see fit.”
IV
Appellant May Properly Seek a Declaratory Judgment.
Judicial Code, Section 274d (28 U. S. C. 400) provides:
“ In cases of actual controversy (except with re
spect to federal taxes) the courts of the United
States shall have power upon petition, declaration,
complaint, or other appropriate pleadings to declare
rights and other legal relations of any interested
party petitioning for such declaration, whether or not
further relief is or could be prayed and such declara
tion shall have the force and effect of a final judgment
or decree and be reviewable as such.”
It is well established that a prayer for relief by declara
tory judgment may be joined with prayers for consequential
relief. Anderson on Declaratory Judgments (1940, at p.
253); Borchard on Declaratory Judgments (2d ed. 1941)
at 432; 18 Am. Jur. (Declaratory Judgments) sec. 62, p.
332; see also Rule 18, Federal Rules of Civil Procedure.
The leading case on declaratory judgments is the case
of Aetna Life Insurance Company v. Haworth, 300 U. S. 227,
24
57 S. Ct. 461, 81 L. Ed. 617 (1937), where the Court speak
ing through Mr. Chief Justice H ughes stated:
“ The Declaratory Judgment Act of 1934, in its
limitation to ‘ cases of actual controversy’ manifestly
has regard to the constitutional provision and is
operative only in respect to controversies which are
such in the constitutional sense. The word ‘ actual’
is one of emphasis rather than of definition. Thus
the operation of the Declaratory Judgment Act is
procedural only. In providing remedies and defining
procedure in relation to cases and controversies in
the constitutional sense the Congress is acting within
its delegated power over the jurisdiction of the fed
eral courts which the Congress is authorized to
establish . . . Exercising this control of practice
and procedure the Congress is not confined to tradi
tional remedies. The judiciary clause of the Con
stitution ‘ did not crystallize into changeless form
the procedure of 1789 as the only possible means
for presenting a case or controversy otherwise cog
nizable by the federal courts.’ Nashville, C. & St. L.
Ry. Co. v. Wallace, 288 U. S. 249, 264. In dealing
with methods within its sphere of remedial action
the Congress may create and improve as well as
abolish or restrict. The Declaratory Judgment Act
must be deemed to fall within this ambit of congres
sional power, so far as it authorizes relief which is
consonant with the exercise of the judicial function
in the determination of controversies to which under
the Constitution the judicial power extends.”
The decision in the Aetna case has been uniformly followed.
In one of the latest Circuit Court of Appeals’ decisions,
Trice Products Corporation v. Anderson Co., 147 F. (2d)
721 (C. C. A. 7th, 1945), following this case in upholding
the right to a declaratory judgment in a cross-complaint
in a patent case it was stated:
“ Equity abhors multiplicity of actions and when
it takes jurisdiction for one purpose should do so for
25
all germane purposes and dispose of all issues neces
sary to a complete final adjudication. We agree, there
fore, with the reasoning of the decision cited and with
that of Cover v. Schwarts, 2 Cir. 133 F. 2d 54.”
The Amended Complaint herein alleges that registra
tion is a prerequisite to voting in any election in Alabama;
that appellees are maintaining a policy, custom and usage
of requiring Negro applicants to submit to tests not re
quired of white electors and of refusing to register qualified
Negro electors while at the same time registering white
electors with less qualifications on account of race and color
(R. 5 ); that during the regular registration period while
appellees were conducting registration, appellant presented
himself at the regular registration place and requested to
be registered; that appellant is ready, able and willing to
comply with all lawful requirements for registration; that
instead of registering appellant, appellees required appel
lant to wait long hours and to present two persons to vouch
for him; that although appellant was ready and willing to
answer all questions and give all information necessary
for his registration, appellees illegally and wrongfully re
fused to register him (R. 6) ; that white persons present
ing themselves for registration were not required to wait
or to present persons to vouch for them but were registered
forthwith (R. '6) ; that appellees acting pursuant to policy,
custom and usage set out above denied appellant’s appli
cation and wrongfully refused to register him solely on
account of race and color, and in so doing followed the
general policy custom and usage of the Board of Registrars,
including these appellees and their predecessors in office ■
(R. 6). It is clear that appellant would be entitled to a
declaratory judgment declaring unconstitutional a statute
which would provide that Negro applicants for registration
be required to submit to tests not required of white ap
26
plicants or that white applicants for registration could have
less qualifications than is required of Negroes. The only
allegations necessary to support relief in such a case would
be the statute, qualifications of the applicant and an alle
gation that he was refused registration because of the
statute. In the instant case we do not have such a statute
but have a policy,, custom and usage of a state officer equiva
lent thereto.
The case of Cromwell v. Hillsborough TP of Somerset
County, N. J., 149 F. (2d) 617 (C. G. A. 3d, 1945), aff’d
by U. S. Supreme Ct, Oct. term 1945, decided Jan. 29, 1946,
affirmed the decision of the district court in issuing a decla
ratory judgment against the policy of state officers in
assessing plaintiff’s property higher than like property as
being in violation of the Fourteenth Amendment.
In the line of cases on the question of the equalization
of teachers’ salaries it has been uniformly held that Negro
teachers as a class have a right to a declaratory judgment
declaring unconstitutional the practice, custom and usage
of paying Negro teachers less salary than paid to white
teachers, Alston v. School Board, supra; McDaniel v. Board
of Public Instruction, supra, Davis v. Cool, supra.
The allegations in the complaint herein set out a claim
for relief by way of damages and an injunction. There
fore, the same allegations are sufficient to set forth an
actual controversy within the meaning of Declaratory
Judgment Act.
27
V
Action of Appellees in Refusing to Register Appellant
Makes Them Liable to the Appellant for Damages
Under the Provisions of Sections 31 and 43 of Title
8 of the United States Code.
Section 31 of Title 8 provides:
“ Race, color, or previous condition not to affect
right to vote.
“ All citizens of the United States who are other
wise qualified by law to vote at any election by the
people in any State, Territory, district, county, city,
parish, township, school district, municipality, or
other territorial subdivision, shall be entitled' and
allowed to vote at all such elections, without distinc
tion of race, color, or previous condition of servitude;
any constitution law, custom, usage, or regulation of
any State or Territory, or by or under its authority,
to the contrary notwithstanding. R. S. sec. 2004. ’ ’
and Section 43 of Title 8 provides:
“ Civil action for deprivation of rights.
“ Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Con
stitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress. R. S. sec. 1979.”
H. R. 1293, 41st Congress, Second Session, which was
later amended in the Senate and which includes Sections 31
and 43 of Title 8, was originally entitled, “ A bill to enforce
the right of citizens of the United States to vote in the sev
eral States of this Union who have hitherto been denied
28
that right on account of race, color or previous condition
of servitude.” When the bill came to the Senate its title
was amended and adopted to read, “ A bill to enforce the
right of citizens of the United States to vote in the several
States of this Union and for other purposes.”
The language of Section 31 is so clear as to leave no
doubt as to its purpose. Section 43 of Title 8 has been used
repeatedly to enforce the right of citizens to vote. See
Myers v. Anderson, supra; Lane v. Wilson, supra.
In the recent decision of Smith v. Allwright, supra, a suit
for damages under these sections was sustained by the
United States Supreme Court. The facts in the instant case
are basically similar to those in the Smith v. Allwright,
supra.
Since registration is a prerequisite to voting, the
refusal of appellees to register appellant and those simi
larly situated solely on account of race and color gives rise
to an action for damages and an injunction under Sections
31 and 43 of Title 8.
CONCLUSION
The present cause of action arises as the result of at
tempts on part of state officers to circumvent the mandate
of the United States Supreme Court in Smith v. Allwright.
It is another of the many efforts to keep Negroes from exer
cising their rights and performing their political duties as
citizens of a democracy by voting and taking part in the
selection of their governmental representatives. Freedom
to exercise such rights and to perform such duties is con
sidered one of the basic virtues and blessings of our politi
cal system and fundamental to our way of life. Action
such as that under present inquiry, therefore, which at
tempts to interfere with that freedom must be declared in
valid if our democratic institutions are to prosper. Wher
29
ever restrictions to the exercise of the voting privilege are
erected based on race and color, whether open or devious,
simple minded or sophisticated, they run counter to our
fundamental law and must be struck down.
Wherefore it is respectfully submitted that this
Court reverse the judgment of the court below dis
missing appellant’s amended complaint.
A rth u r D , S hores,
1630 Fourth Avenue, No.,
Birmingham 3, Ala.
W illiam H . H astie,
615 F. Street, N. W.,
Washington, D. C.
T htjroood M arsh all ,
20 West 40th Street,
New York, N. Y.
Attorneys for Appellant.
R obert L . Carter,
New York, N. Y.
Of Counsel.
[A ppendices F ollow ]
31
APPENDIX A
Constitution of the United States— 1787
ARTICLE I
Section 2.—The House of Representatives shall be com
posed of Members chosen every second Year by the People
of the several States, and the Electors in each State shall
have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.
A m e n d m en t 14
Section 1.—All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any per
son within its jurisdiction the equal protection of the laws.
A m en d m en t 15
Section 1.—The right of citizens of the United States to
vote shall not be denied or abridged by the United States
or by any State on account of race, color, or previous condi
tion of servitude.
Section 2.—The Congress shall have power to enforce
this article by appropriate legislation.
A m en d m en t 17
The Senate of the United States shall be composed of
two Senators from each State, elected by the people thereof,
32
for six years; and each Senator shall have one vote. The
electors in each State shall have the qualifications requisite
for electors of the most numerous branch of the State legis
latures.
United States Code
Title 8—Section 31—Race, color, or previous condition
not to affect right to vote.
All citizens of the United States who are otherwise quali
fied by law to vote at any election by the people in any
State, Territory, district, county, city, parish, township,
school district, municipality, or other territorial sub-divi
sion, shall be entitled and allowed to vote at all such elec
tions, without distinction of race, color, or previous condi
tion of servitude; any constitution, law, custom, usage, or
regulation of any State or Territory, or by or under its
authority, to the contrary notwithstanding. R. S. Sec. 2004.
Section 43— Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, sub
jects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities se
cured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity or other
proper proceeding for redress. R. S. Sec. 1979.
Title 28—Section 41—Subdivision 11—-Suits for injuries
on account of acts done under laws of United States.—
Eleventh.
Of all suits brought by any person to recover damages
for any injury to his person or property on account of any
act done by him, under any law of the United States, for
33
the protection or collection of any of the revenues thereof,
or to enforce the right of citizens of the United States to
vote in the several States. R. S. Sec. 629.
Subdivision 14—Suits to redress deprivation of civil
rights.—Fourteenth.
Of all suits at law or in equity authorized by law to be
brought by any person to redress the deprivation, under
color of any law, statute, ordinance, regulation, custom, or
usage, of any State, of any right, privilege, or immunity,
secured by the Constitution of the United States, or of any
right secured by any law of the United States providing for
equal rights of citizens of the United States, or of all per
sons within the jurisdiction of the United States. R. S.
Sec. 563.
Title 28—Section 400—Declaratory judgments author
ized; procedure.
(1) In cases of actual controversy (except with respect
to Federal taxes) the courts of the United States shall have
power upon petition, declaration, complaint, or other ap
propriate pleadings to declare rights and other legal rela
tions of any interested party petitioning for such declara
tion, whether or not further relief is or could be prayed,
and such declaration shall have the force and effect of a
final judgment or decree and be reviewable as such.
(2) Further relief based on a declaratory judgment or
decree may be granted whenever necessary or proper. The
application shall be by petition to a court having jurisdic
tion to grant the relief. If the application be deemed suffi
cient, the court shall, on reasonable notice, require any
adverse party, whose rights have been adjudicated by the
declaration, to show cause why further relief should not be
granted forthwith.
34
(3) When a declaration of right or the granting of
further relief based thereon shall involve the determination
of issues of fact triable by a jury, such issues may be sub
mitted to a jury in the form of interrogatories, with proper
instructions by the court, whether a general verdict be re
quired or not.
Title 18—Chapter 3—Offenses Against Elective Fran
chise and Civil Rights of Citizens.
Section 51. Conspiracy to injure persons in exercise of
civil rights.
If two or more persons conspire to injure, oppress,
threaten, or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of
his having so exercised the same, or if two or more per
sons go in disguise on the highway, or on the premises of
another, with intent to prevent or hinder his free exercise
or enjoyment of any right or privilege so secured, they
shall be fined not more than $5,000 and imprisoned not
more than ten years, and shall, moreover, be thereafter
ineligible to any office, or place of honor, profit, or trust
created by the Constitution or laws of the United States.
R. S. 5508.
Section 54. Conspiring to prevent officer from perform
ing duties.
If two or more persons in any State, Territory, or Dis
trict conspire to prevent, by force, intimidation, or threat,
any person from accepting or holding any office, trust, or
place of confidence under the United States, or from dis
charging any duties thereof; or to induce by like means any
officer of the United States to leave any State, Territory,
District, or place, where his duties as an officer are required
to be performed, or to injure him in his person or property
35
on account of his lawful discharge of the duties of his office,
or while engaged in the lawful discharge thereof, or to in
jure his property so as to molest, interrupt, hinder, or im
pede him in the discharge of his official duties, each of such
persons shall be fined not more than $5,000, or imprisoned
not more than six years, or both. R. S. 5518.
Section 55. Unlawful presence of troops at polls.
Every officer of the Army or Navy, or other person in
the civil, military, or naval service of the United States,
who orders, brings, keeps, or has under his authority or
control any troops or armed men at any place where a
general or special election is held in any State, unless such
force be necessary to repel armed enemies of the United
States, shall be fined not more than $5,000 and imprisoned
not more than five years. R. S. 5528.
Section 56. Intimidating voters by Army or Navy offi
cers.
Every officer or other person in the military or naval
service of the United States who, by force, threat, intimi
dation, order, advice, or otherwise, prevents, or attempts
to prevent, any qualified voter of any State from freely
exercising the right of suffrage at any general or special
election in such State shall be fined not more than $5,000
and imprisoned not more than five years. R. S. 5529.
Section 57. Army or Navy officers prescribing qualifi
cations of voters.
Every officer of the Army or Navy who prescribes or
fixes, or attempts to prescribe or fix, whether by procla
mation, order, or otherwise, the qualifications of voters at
any election in any State shall be punished as provided in
Section 56 of this title. R. S. 5530.
36
Section 58. Interfering with election officers by Army
or Navy officers.
Every officer or other person in the military or naval
service of the United States who, by force, threat, intimi
dation, order, or otherwise, compels, or attempts to compel,
any officer holding an election in any State to receive a
vote from a person not legally qualified to vote, or who
imposes, or attempts to impose, any regulations for con
ducting any general or special election in a State different
from those prescribed by law, or who interferes in any man
ner with any officer of an election in the discharge of his
duty, shall be punished as provided in section 56 of this
title. R. S. 5531.
Section 61. Intimidating or coercing voters; Presiden
tial and Congressional elections.
It shall be unlawful for any person to intimidate,
threaten, or coerce, or to attempt to intimidate, threaten,
or coerce, any other person for the purpose of interfering
with the right of such other person to vote or to vote as he
may choose, or of causing such other person to vote for
or not to vote for, any candidate for the office of President,
Yice President, Presidential elector, Member of the Senate,
or Member of the House of Representatives at any election
held solely or in part for the purpose of selecting a Presi
dent, a Vice President, a Presidential elector, or any Mem
ber of the Senate or any Member of the House of Represen
tatives, Delegates or Commissioners from the Territories
and insular possessions.
Section 61a. Administrative employees, use of official
authority.
It shall be unlawful for (1) any person employed in any
administrative position by the United States, or by any de
37
partment, independent agency, or other agency of the
United States (including any corporation controlled by the
United States or any agency thereof, and any corporation
all of the capital stock of which is owned by the United
States or any agency thereof), or (2) any person employed
in any administrative position by any State, by any political
subdivision or municipality of any State, or by any agency
of any State or any of its political subdivisions or munici
palities (including any corporation controlled by any State
or by any such political subdivision, municipality, or agency,
and any corporation all of the capital stock of which is
owned by any State or by any such political subdivision,
municipality, or agency), in connection with any activity
which is financed in whole or in part by loans or grants
made by the United States, or by any such department, in
dependent agency, or other agency of the United States,
to use his official authority for the purpose of interfering
with, or affecting the election or the nomination of any
candidate for the office of President, Vice President, Presi
dential elector, Member of the Senate, Member of the House
of Representatives, or Delegate or Resident Commissioner
from any Territory or insular possession.
Section 61b. Promising reward for political activity.
It shall be unlawful for any person, directly or indirectly
to promise any employment, position, work, compensation,
or other benefit, provided for or made possible in whole or
in part by any Act of Congress, to any person as considera
tion, favor, or reward for any political activity or for the
support of or opposition to any candidate or any political
party in any election.
Section 61c. Depriving persons receiving relief funds
of work or compensation because of race, creed, color, or
political activity.
38
Except as may be required by the provisions of sub
section (b), section 9 of this Act (Sec. 61h of this title), it
shall be unlawful for any person to deprive, attempt to
deprive, or treaten (threaten) to deprive, by any means,
any person of any employment, position, work, compensa
tion, or other benefit provided for or made possible by any
Act of Congress appropriating funds for work relief or
relief purposes, on account of race, creed color, or any
political activity, support of, or opposition to any candidate
or any political party in any election.
Section 61d. Receiving contributions for political pur
poses from persons on relief.
It shall be unlawful for any person to solicit or receive
or be in any manner concerned in soliciting or receiving any
assessment, subscription, or contribution for any political
purpose whatever from any person known by him to be en
titled to or receiving compensation, employment, or other
benefit provided for or made possible by any Act of Con
gress appropriating funds for work relief or relief pur
poses.
Section 61e. Furnishing names of persons on relief for
political purposes.
It shall be unlawful for any person for political purposes
to furnish or to disclose, or to aid or assist in furnishing
or disclosing, any list or names of persons receiving com
pensation, employment, or benefits provided for or made
possible by any Act of Congress appropriating, or author
izing the appropriation of, funds for work relief or relief
purposes, to a political candidate, committee, campaign
manager, or to any person for delivery to a political can
didate, committee, or campaign manager, and it shall be
unlawful for any person to receive any such list or names
for political purposes.
39
Section 61f. Relief appropriations; use to restrain vot
ing rights.
No part of any appropriation made by any Act, hereto
fore or hereafter enacted, making appropriations for work
relief, relief, or otherwise to increase employment by pro
viding loans and grants for public-works projects, shall be
used for the purpose of, and no authority conferred by any
such Act upon any person shall be exercised or adminis
tered for the purpose of, interfering with, restraining, or
coercing any individual in the exercise of his right to vote
at any election.
Section 61g. Penalty for violations of Secs. 61 to 61f.
Any person who violates any of the foregoing provisions
of this Act (Secs. 61 to 61f of this title) upon conviction
thereof shall be fined not more than $1,000 or imprisoned
for not more than one year, or both.
Section 61h. Government employees influencing elec
tion or taking part in political campaigns; exceptions;
penalty.
(a) It shall be unlawful for any person employed in
the executive branch of the Federal Government, or any
agency or department thereof, to use his official authority
or influence for the purpose of interfering with an election
or affecting the result thereof. No officer or employee in
the executive branch of the Federal Government, or any
agency or department thereof, except a part-time officer or
part-time employee without compensation or with nominal
compensation serving in connection with the existing war
effort, other than in any capacity relating to the procure
ment or manufacture of war material, shall take any active
part in political management or in political campaigns. All
such persons shall retain the right to vote as they may
choose and to express their opinions on all political sub
40
jects and candidates. For the purposes of this section the
term “ officer” or “ employee” shall not be construed to
include (1) the President and Vice President of the United
States; (2) persons whose compensation is paid from the
appropriation for the office of the President; (3) heads and
assistant heads of executive departments; (4) officers who
are appointed by the President, by and with the advice and
consent of the Senate, and who determine policies to be
pursued by the United States in its relations with foreign
powers or in the Nation-wide administration of Federal
laws.
(b) Any person violating the provisions of this section
shall be immediately removed from the position or office
held by him, and thereafter no part of the funds appro
priated by any Act of Congress for such position or office
shall be used to pay the compensation of such person.
41
APPENDIX B
Constitution of Alabama
ARTICLE VIII
Section 177.—Qualifications of voters.
Every male citizen of this State, who is a citizen of the
United States, and every male resident of foreign birth,
who, before the ratification of this Constitution, shall have
legally declared his intention to become a citizen of the
United States, twenty-one years old or upward, not labor
ing under any disabilities named in this article, and pos
sessing the qualifications required by it, shall be an elector,
and shall be entitled to vote at any election by the people;
provided, that all foreigners who have legally declared
their intention of becoming citizens of the United States,
shall, if they fail to become citizens thereof at the time they
are entitled to become such, cease to have the right to vote
until they become such citizens.
Section 178.—Residence requirement—registration.
To entitle a person to vote at any election by the people,
he shall have resided in the State at least two years, in the
county one year, and in the precinct or ward three months*
immediately preceding the election at which he offers to
vote, and he shall have been duly registered as an elector,
and shall have paid on or before the first day of February
next preceding the date of the election at which he offers
to vote, all poll taxes due from him for the year nineteen
hundred and one, and for each subsequent year; provided,
that any elector who, within three months next preceding
the date of the election at which he offers to vote, has
removed from one precinct or ward to another precinct or
42
ward in the same county, incorporated town or city, shall
have the right to vote in the precinct or ward from which
he has so removed, if he would have been entitled to vote
in such precinct or ward but for such removal.
Section 181.—Literacy and land ownership qualifica
tions.
After the first day of January, nineteen hundred and
three, the following persons, and no others, who, if their
place of residence shall remain unchanged, will have, at the
date of the next general election, the qualifications as to
residence prescribed in section 178 of this Constitution,
shall be qualified to register as electors, provided, they shall
not be disqualified under section 182 of this Constitution.
First. Those who can read and write any article of the
Constitution of the United States in the English language,
and who are physically unable to work; and those who can
read and write any article of the Constitution of the United
States in the English language, and who have worked or
been regularly engaged in some lawful employment, busi
ness or occupation, trade or calling for the greater part of
the twelve months next preceding the time they offer to
register; and those who are unable to read and write, if
such inability is due solely to physical disability; or,
Second. The owner in good faith, in his own right, or
the husband of a woman who is the owner in good faith, in
her own right, of forty acres of land situate in this State,
upon which they reside; or the owner in good faith, in his
own right, or the husband of any woman who is the owner
in good faith, in her own right, of real estate, situate, in this
State assessed for taxation at the value of three hundred
dollars or more, or the owner in good faith in his own
right, or the husband of a woman who is the owner in good
43
faith, in her own right, of personal property in this State
assessed for taxation at three hundred dollars or more;
provided that the taxes due upon such real or personal
property for the next preceding year in which he offers to
register shall have been paid, unless the assessment shall
have been legally contested and is undetermined.
Section 182.—Disqualifications of voters.
The following persons shall be disqualified both from
registering and from voting, namely:
All idiots and insane persons; those who shall by reason
of conviction of crime be disqualified from voting at the
time of the ratification of this Constitution; those who shall
be convicted of treason, murder, arson, embezzlement, mal
feasance in office, larceny, receiving stolen property, ob
taining property or money under false pretences, perjury,
subornation of perjury, robbery, assault with intent to rob,
burglary, forgery, bribery, assault and battery on the wife,
bigamy, living in adultery, sodomy, incest, rape, miscegena
tion, crime against nature, or any crime punishable by im
prisonment in the penitentiary, or of any infamous crime
or crime involving moral turpitude; also any person who
shall be convicted as a vagrant or tramp, or, of selling or
offering to sell his vote or the vote of another, or of making
or offering to make false return in any election by the
people or in any primary election to procure the nomina
tion or election of any person to any office, or of suborning
any witness or registrar to secure the registration of any
person as an elector.
Section 184.—Qualifications for voting in local elections.
No person, not registered and qualified as an elector
under the provisions of this article, shall vote at the gen
eral election in nineteen hundred and two, or at any subse
44
quent State, county, or municipal election, general, local or
special; but the provisions of this article shall not apply to
any election held prior to the general election in the year
nineteen hundred and two.
Section 186.—Registration.
The Legislature shall provide by law for the registra
tion, after the first day of January, nineteen hundred and
three, of all qualified electors. Until the first day of Janu
ary, nineteen hundred and three, all electors shall be regis
tered under and in accordance with the requirements of
this section, as follows:
First. Board of Registrars—Registration shall be con
ducted in each county by a board of three reputable and
suitable persons resident in the county, who shall not hold
any elective office during their term, to be appointed within
sixty days after the ratification of this constitution, by the
Governor, Auditor and Commissioner of Agriculture and
Industries, or by a majority of them, acting as a board of
appointment. If one or more of the persons appointed on
such board of registration shall refuse, neglect, or be un
able to qualify or serve, or if a vacancy or vacancies occur
in the membership of the board of registrars from any
cause, the Governor, Auditor and Commissioner of Agri
culture and Industries, or a majority of them, acting as a
board of appointment, shall make other appointments to
fill such board. Each registrar shall receive two dollars per
day, to be paid by the State, and disbursed by the several
judges of probate, for each entire day’s attendance upon
the sessions of the board. Before entering upon the per
formance of the duties of his office, each registrar shall take
the same oath required of the judicial officers of the State,
which oath may be administered by any person authorized
by law to administer oaths. The oath shall be in writing
45
and subscribed by the registrar and filed in the office of
judge of probate of the county.
Second. First registration—Prior to the first day of
August, nineteen hundred and two, the board of registrars
in each county shall visit each precinct at least once, and
oftener, if necessary to make a complete registration of all
persons entitled to register, and shall remain there at least
one day from eight o ’clock in the morning until sunset.
They shall give at least twenty days’ notice of the time
when, and the place in the precinct where, they will attend
to register applicants for registration, by bills posted at
five or more public places in each election precinct, and by
advertisement once a week for three successive weeks in a
newspaper, if there be one published in the county. Upon
failure to give such notice, or to attend any appointment
made by them in any precinct, they shall, after like notice,
fill new appointments therein; but the time consumed by
the board in completing such registration shall not exceed
sixty working days in any county, except that in counties
of more than nine hundred square miles in area, such board
may consume seventy-five working days in completing the
registration, and except that in counties in which there is
any city of eight thousand or more inhabitants, the board
may remain in session, in addition to the time hereinbefore
prescribed, for not more than three successive weeks in
each of such cities; and thereafter the board may sit from
time to time in each of such cities not more than one week
in each month, and except that in the county of Jefferson
the board may hold an additional session of not exceeding
five consecutive days duration for each session, in each
town or city of more than one thousand and less than eight
thousand inhabitants. No person shall be registered ex
cept at the county site or in the precinct in which he resides.
The registrars shall issue to each person registered a certifi
cate of registration.
46
Third. Supplementary registration — The board of
registrars shall not register any person between the first
day of August nineteen hundred and two and the Friday
ne:$t preceding the day of election in November, nineteen
hundred and two. On Friday and Saturday next preceding
the day of election in November, nineteen hundred and two,
they shall sit in the court house of each county during such
days, and shall register all applicants having the qualifi
cations prescribed by section 180 of this Constitution, and
not disqualified under section 182, who shall have reached
the age of twenty-one years after the first day of August,
nineteen hundred and two, or who shall prove to the reason
able satisfaction of the board that, by reason of physical
disability or unavoidable absence from the county, they had
no opportunity to register prior to the first day of August,
nineteen hundred and two, and they shall not on such days
register any other persons. When there are two or more
court houses in a county, the registrars may sit during
such two days at the court house they may select, but shall
give ten days’ notice, by bills posted at each of the court
houses, designating the court house at which they will sit.
Fourth. Third registration—The board of registrars,
shall hold sessions at the court house of their respective
counties during the entire third week in November, nine
teen hundred and two, and for six working days next prior
to the twentieth day of December, nineteen hundred and
two, during which sessions they shall register all persons
applying who possess the qualifications prescribed in sec
tion 180 of this Constitution, and who shall not be dis
qualified under section 182. In counties where there are
more than two court houses the board of registrars shall
divide the time equally between them. The board of regis
trars shall give notice of the time and place of such sessions
by posting notices at each court house in their respective
47
counties, and at each voting place and at three other public
places in the county, and by publication once a week for
two consecutive weeks in a newspaper, if one- is published
in the county; such notices to be posted and such publica
tions to be commenced as early as practicable in the first
week of November, nineteen hundred and two. Failure on
the part of the registrars to conform to the provisions of
this article as to the giving of the required notices shall not
invalidate any registration made by them.
Fifth. Oath—The board of registrars shall have power
to examine, under oath or affirmation, all applicants for
registration, and to take testimony touching the qualifica
tions of such applicants. Each member of such board is
authorized to administer the oath to be taken by the appli
cants and witnesses, which shall be in the following form,
and subscribed by the person making it, and preserved by
the board, namely: “ I solemnly swear (or affirm) that in
the matter of the application of . . . for registration as an
elector, I will speak the truth, the whole truth, and nothing
but the truth, so help me God.” Any person who upon such
examination makes any wilfully false statement in refer
ence to any material matter touching the qualification of
any applicant for registration, shall be guilty of perjury,
and upon conviction thereof, shall be imprisoned in the
penitentiary for not less than one nor more than five years.
Sixth. Appeal—The action of the majority of the board
of registrars shall be the action of the board and a ma
jority of the board shall constitute a quorum for the trans
action of all business. Any person to whom registration is
denied shall have the right of appeal, without giving se
curity for costs, within thirty days after such denial, by
filing a petition in the Circuit Court or court of like juris
diction held for the county in which he seeks to register,
to have his qualifications as an elector determined. Upon
48
tlie filing of the petition the clerk of the court shall give
notice thereof to any solicitor authorized to represent the
State in said county, whose duty it shall be to appear and
defend against the petition on behalf of the State. Upon
such trial the court shall charge the jury only as to what
constitutes the qualifications that entitle the applicant to
become an elector at the time he applied for registration,
and the jury shall determine the weight and effect of the
evidence and return a verdict. From the judgment ren
dered an appeal will lie to the Supreme Court in favor of
the petitioner, to be taken within thirty days. Final judg
ment in favor of the petitioner shall entitle him to registra
tion as of the date of his application to the registrars.
Seventh. Printing of registrars—The Secretary of
State shall, at the expense of the State, have prepared and
shall furnish to the registrars and judges of probate of the
several counties a sufficient number of registration books
and of blank forms of the oath, certificates of registration
and notices required to be given by the registrars. The
cost of the publication in newspapers of the notices required
to be given by the registrars shall be paid by the State, the
bills therefor to be rendered to the Secretary of State and
approved by him.
Eighth. Fraudulent registration — Any person who
registers for another, or who registers more than once,
and any registrar who enters the name of any person on
the list of registered voters, without such person having-
made application in person .under oath on a form provided
for that purpose, or who knowingly registers any person
more than once, or who knowingly enters a name upon the
registration list as the name of a voter, without any one
of that name applying to register, shall be guilty of a
felony, and upon conviction thereof shall be imprisoned in
the penitentiary for not less than one nor more than five
years.
49
Code of Alabama 1940
Title 17
Sec. 21. Registrars; Appointment of.—Registration shall
be conducted in each county by a board of three reputable
and suitable persons to be appointed by the governor,
auditor and commissioner of agriculture and industries, or
by a majority of them acting as a board of appointment, and
who must be also qualified electors and residents of the
county and who shall not hold an elective office during their
term. One of said members shall be designated by the
board of appointment as chairman of the board of registrars
for each county. Provided, however, that in counties of
over 350,000 population, according to the last or any sub
sequent census, that the governor shall appoint the chair
man of the board of registrars.
Sec. 24. Fees, compensation of registrars—Each registrar
shall receive five dollars per day to be paid by the state and
disbursed by the several judges of probate for each day’s
attendance upon the sessions of the board.
Sec. 32. Persons qualified to register. The following per
sons and no other, who, if their places of residence shall
remain unchanged, will have at the date of the next gen
eral election the qualifications as to residence prescribed
by Section 178 of the constitution of 1901, shall be qualified
to register as electors, provided they shall not be disquali
fied under the laws of the state:
1st. Those who can read and write any article of the
constitution of the United States in the English language,
and who have worked or been regularly employed in some
lawful employment, business or occupation, trade or calling
for the greater part of twelve months next preceding the
time they offer to register, and those who are unable to
read and write if such inability is due solely to physical
disability; or
50
2nd. The owner in good faith in his or her own right,
or the husband of a woman or the wife of any man who
is the owner in good faith in her or his own right of forty
acres of land situated in this state, upon which they reside;
or the owner in good faith in his or her own right, or the
husband of any woman or the wife of any man who is the
owner in good faith in his or her own right of real estate
situated in this state, assessed for taxation at a value of
three hundred dollars, or more; or the owner in good faith,
in his or her own right, or the husband of any woman or the
wife of any man who is the owner in good faith in her or
his own right of personal property in this state assessed
for taxation for three hundred dollars or more; provided
that the taxes due upon such real or personal property for
the next year preceding the year in which he or she offers to
register shall have been paid, unless the assessment shall
have been legally contested and is undetermined.
Sec. 35. Right of appeal from registration.—
Any person to whom registration is denied shall have
the right to appeal, without giving security for costs, within
thirty days after such denial, by filing a petition in the
circuit Court or Court of like jurisdiction held for the
county in which he or she seeks to register, to have his or
her qualifications as an elector determined. Upon the filing
of the petition, the clerk of the Court shall give notice
thereof to the solicitor authorized to represent the state in
said county, who shall appear and defend against the peti
tion on behalf of the state. Upon such trial the Court shall
charge the jury only as to what constitutes the qualifica
tions that entitle the applicant to become an elector at the
time he or she applied for registration, and the jury shall
determine the weight and effect of the evidence, and return
a verdict. From the judgment rendered an appeal will lie
to the supreme Court in favor of the petition to be taken
within thirty days. Final judgment in favor of the peti
tioner shall entitle him or her to registration as of the date
of his or her application to the registrars.
51
APPENDIX C
Constitution of Louisiana
ARTICLE VIII
Section 5.—Remedy for denial of registration.
Any person possessing the qualifications for voting pre
scribed by this Constitution, who may be denied registra
tion, shall have the right to apply for relief to the district
court having jurisdiction of civil causes for the parish in
which he offers to register. Said court shall then try the
cause, giving it preference over all other cases, before a
jury of twelve, nine of whom must concur to render a ver
dict. This verdict shall be a final determination of the
cause. The trial court may, however, grant one new trial
by jury. In no cases shall any appeal lie or any other court
exercise the right of review. * * *
52
APPENDIX D
26 Oklahoma Statutes
S ection 74—Registration of electors—Time for certifi
cate to certain voters—Review of refusal
of registration—School district elections
excepted.
It shall be the duty of the precinct registrar to register
each qualified elector of his election precinct who makes
application between the thirtieth day of April 1916, and the
eleventh day of May 1916, and such person applying shall
at the time he applies to register be a qualified elector in
such precinct and he shall comply with the provisions of
this act, and it shall be the duty of every qualified elector
to register within such time; provided, if any elector should
be absent from the county of his residence during such
period of time, or is prevented by sickness or unavoidable
misfortune from registering with the precinct registrar
within such time, he may register with such precinct regis
trar at any time after the tenth day of May, 1916, up to and
including the thirtieth day of June, 1916, but the precinct
registrar shall register no person under this provision
unless he be satisfied that such person was absent from the
county or was prevented from registering by sickness or
unavoidable misfortune, as hereinbefore provided, and
provided that it shall be the mandatory duty of every pre
cinct registrar to issue registration certificates to every
qualified elector who voted at the general election held in
this state on the first Tuesday after the first Monday in
November, 1914, without the application of said elector for
registration, and, to deliver such certificate to such elector
if he is still a qualified elector in such precinct and the fail
ure to so register such elector who voted in such election
53
held in November 1914, shall not preclude or prevent such
elector from voting in any election in this state; and pro
vided further, that wherever any elector is refused registra
tion by any registration officer such action may be reviewed
by the district court of the county by the aggrieved elector
by his filing within ten days a petition with the Clerk of
said court, whereupon summons shall be issued to said
registrar requiring him to answer within ten days, and the
district court shall be a (give an) expeditious hearing and
from his judgment an appeal will lie at the instance of
either party to the Supreme Court of the State as in civil
cases; and provided further, that the provisions of this act
shall not apply to any school district elections. Provided
further, that each county election board in this state shall
furnish to each precinct election board in the respective
counties a list of the voters who voted at the election in
November, 1914, and such list shall be conclusive evidence
of the right of such person to vote.
L a w yer s P ress, I n c ., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300
k