Nixon v. Condon Respondents' Brief

    Supreme Glmirt of tljp *5>tatPB
OCTOBER TERM, 1931

No. 265

L. A. NIXON, Petitioner, 

against

JAMES CONDON AND C. H. NOLLE, Respondents.

RESPONDENTS’ BRIEF.

THORNTON HARDIE, 
BEN R. HOWELL,

Counsel for Respondents.



Subject Index.

PRELIMINARY STA TE M E N T......................................  1

JURISDICTION.......................................... _......................  1

SUMMARY OF RESPONDENTS’ ARGUM ENT.........  2

POINT I—The Fourteenth and Fifteenth Amend­
ments to the United States Constitution are a limi­
tation only upon the power of a State, and do not 
affect private individuals or private associations of 
individuals.........................................   4

POINT II—The action of the Democratic Executive 
Committee in excluding the petitioner from voting 
at a Democratic primary was not an action of the 
State of Texas...................................................................  5

(A ) A political party has the inherent right to
determine the qualifications of its own members ... 5

(B) The Statute enacted by the Texas Legisla­
ture in 1923, declared unconstitutional in Nixon 
v. Herndon, was void and did not operate to 
diminish the power already possessed by the 
Democratic Party to determine the qualifica­
tions of its own members..........................................  6

(C) The subsequent action of the Texas Legis­
lature in enacting Chapter 67 of the Laws of 
1927 did not affect this inherent power, except 
to limit it in two particulars, namely: former 
political views or affiliations and membership 
or non-membership in organizations other than 
a political party

Page

8



(D) By enacting Chap. 67 of the Laws of 1927
the Texas Legislature merely withdrew the 
State from an attempted unlawful interference 
with the right of the Democratic party to de­
termine the qualifications of its members............. 10

(E) The Legislature by enacting Chap. 67 of
the Laws of 1927 recognized a power which had 
long existed in the Democratic party to deter­
mine its membership and did not delegate such 
power to the p arty .................................................... 10

(F) Respondents, Judges in the Democratic 
primary, were not officers of the State of Tex­
as, and their action in denying petitioner a vote
was not State action.................................................. 13

POINT III—The Democratic primary involved was 
not an election of the people within the meaning of 
Sec. 31, Title 8 of the United States C ode..................... 15

POINT IV—The Fifteenth Amendment is a limita­
tion only upon States, and the State did not deprive 
petitioner of his v o te ........................................................ 16

CONCLUSION ... ,.................................................................  16

II

Page



Table of Cases.

Briscoe vs. Boyle, 286 S. W. 275..........................................  7
Buchanan vs. Warley, 245 U. S. 6 0 ..................................  5

Carter vs. Texas, 177 U. S. 442 ............................................  5
Child Labor Tax Case, 259 U. S. 2 0 ..................................  13
Civil Rights Case, 109 U. S. 3 ............................................  5
Corrigan vs. Buckley, 271 U. S. 323 ..................................  5
Cunningham vs. McDermott, 277 S. W. 218....................  6

Ex Parte Virginia, 100 U. S. 339 ......................................  5
Ex Parte Siebold, 100 U. S. 371..........................................  5
Ex Parte, Yarborough, 110 U. S. 651................................  5

Gibson vs. Mississippi, 162 U. S. 565 ................................  5
Giles vs. Harris, 189 U. S. 475..............................................  5
Grigsby vs. Harris, 27 Fed. (2d) 942.......................... 5, 6,12
Guinn vs. U. S., 238 U. S. 347 ..............................................  5

Hodges vs. U. S., 203 U. S. 1 ................................................  5
Home Tel. & Tel. Co. vs. Los Angeles, 227 U. S. 278 .......  13

In re Kemmler, 136 U. S. 436 .............................................. 5

James vs. Bowman, 190 U. S. 127......................................  5

Kearns vs. Hawley, 188 Pa. 116, 41 Atl. 273....................... 6
Koy vs. Schneider,

110 Tex. 36, 218 S. W. 480, 221 S. W. 880 ....................... 6

Love vs. Griffith, 266 U. S. 3 3 ............................................  5
Love vs. Wilcox, 28 S. W. (2d) 515.......................... 8, 9, 12

McPherson vs. Blacker, 146 U. S. 1 ....................................  5
Meyers vs. Anderson, 238 U. S. 369 ..................................  5

Neil vs. Delaware, 103 U. S. 370 ..........................................  5
Nixon vs. Condon, 34 Fed. (2d) 464, 49 Fed. (2d) 1012...  12
Nixon vs. Herndon, 273 U. S. 536.......................2, 5, 6, 8, 10

Page



a

Phillips vs. Gallagher, 73 Minn. 528, 76 N. W. 285 ...........  6
Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 3 6 ...............  5
Standard Scales Co. vs. Farrell, 249 U. S. 577 .................  13
State vs. Kanawha County, 78 W. Va. 168, 88 S. E. 662 ... 6 
Stephenson vs. Board of Electors,

118 Mich. 396, 76 N. W. 914............................................  6
Strauder vs. West Virginia, 100 U. S. 303 ......................... 5
Swafford vs. Templeton, 185 U. S. 487 ............................  5
Texas Almanac, 1926, p. 1 9 ..................................................  15
Texas Almanac, 1931, p. 260 ................................................ 15
U. S. vs. Harris, 106 U. S. 629 ...........................................  5
U. S. vs. Doremus, 249 U. S. 8 6 .........................................  12
U. S. vs. Reese, 92 U. S. 214............................................... 5
U. S. vs. Cruikshank, 92 U. S. 542 .............  5
U. S. vs. Mosley, 238 U. S. 383 ........................................... 5
Virginia vs. Rives, 100 U. S. 318........................................  5
Waples vs. Marrast, 108 Tex. 5, 184 S. W. 180............... 6
White vs. Lubbock, 30 S. W. (2d) 7 2 ................................  12
Wiley vs. Sinkler, 179 U. S. 5 8 ............................................  5
Winnett vs. Adams, 71 Neb. 917, 99 N. W. 681.................  6
Yick Wo vs. Hopkins, 118 U. S. 356 ..............................  5, 13

Provisions of Constitution.

Fourteenth Amendment.................................... 2, 4, 7, 10, 16
Fifteenth Amendment........................................ 2, 3, 4, 15, 16

Statutes.

U. S. C. A., Title 8, Sec. 3 1 .......................................... 2, 3, 15
Title 28, Sec. 4 1 .....................................................................  1
Texas Revised Civil Statutes, 1925,

Art. 3107 (Chap. 67,1927 Session Laws) ...........3, 8, 9, 10

Page



£>upmne (Enurt of tl|e llttitefc States
OCTOBER TERM, 1931

No. 265

L. A. NIXON, Petitioner, 

against

JAMES CONDON AND C. H. KOLLE, Respondents.

RESPONDENTS’ BRIEF.

PRELIMINARY STATEMENT.

The statement of the nature of the suit, the pleadings, 
the decision in the District Court and the decision of the 
Supreme Court of Appeals contained in petitioner’s Appli­
cation for Writ and in petitioner’s Brief is substantially 
correct. The record of the case is not long and respond­
ents deem it unnecessary to make an additional statement.

JURISDICTION.

Petitioner states that jurisdiction is provided by Sec. 41, 
Title 28 of the United States Code, which gives to the Fed­
eral District Courts original jurisdiction over suits of a 
civil nature at common law or in equity where the amount 
in controversy exceeds, exclusive of interest and costs, the 
sum or value of $3,000.00, and arises under the Constitu­
tion or laws of the United States. It is disputed by re­
spondents that the matter in controversy arises under (1) 
the Fourteenth Amendment to the Constitution of the Unit-



2

ed States; (2) the Fifteenth Amendment to the Constitu­
tion of the United States; (3) Section 31, Title 8 of the 
United States Code. The argument which will be made by 
respondents on the merits covers the objection to the ground 
of jurisdiction under the Fourteenth and Fifteenth Amend­
ments. Also the argument made on the merits will cover 
the objection made to jurisdiction under Section 31, Title 
8 of the United States Code. We may here state that a 
reading of Section 31, Title 8 of the United States Code 
limits the right to vote, without distinction of race, color or 
previous condition of servitude, to an election by the people. 
The Democratic primary, involved in this case, was not an 
election by the people, but constituted a nomination for an 
election by the people. The decision in Nixon v. Herndon 
is not applicable as that decision was limited expressly to 
a case arising under the Fourteenth Amendment.

The same objection to the grounds of jurisdiction under 
the Fourteenth and Fifteenth Amendments applies to the 
Court taking jurisdiction under Subdivision 11 of Section 
41 of Title 28 of the Judicial Code.

No conspiracy is alleged to give the Court jurisdiction 
under Subdivision 12.

Subdivision 14 is apparently based upon the Fourteenth 
Amendment and the objection to jurisdiction under this 
Section will be met by the same argument applying to the 
Fourteenth Amendment.

SUMM ARY OF RESPONDENTS’ ARGUM ENT.

I. The Fourteenth and Fifteenth Amendments to the 
United States Constitution are a limitation upon the power 
of a state, and do not affect private individuals or private 
associations of individuals.

II. The action of the Democratic Executive Committee



3

in excluding tlie petitioner from voting at a Democratic 
primary was not an action of the State of Texas.

(A) A political party has the inherent right to de­
termine the qualifications of its own members.

(B) The Statute enacted by the Texas Legislature 
in 1923, declared unconstitutional in Nixon v. Hern­
don, was void and did not operate to diminish the 
power already possessed by the Democratic Party to 
determine the qualifications of its own members.

(C) The subsequent action of the Texas Legisla­
ture in enacting Chap. 67 of the Laws of 1927 did not 
affect this inherent power, except to limit it in two 
particulars, namely: Former political views or affilia­
tions, and membership or non-membership in organiza­
tions other than a political party.

(D) By enacting Chap. 67 of the Laws of 1927 the 
Texas Legislature merely withdrew the State from an 
attempted unlawful interference with the rights of the 
Democratic party to determine the qualifications of 
its own members.

(E) The Legislature by enacting Chap. 67 of the 
Laws of 1927 recognized a power which had long ex­
isted in the Democratic party to determine its mem­
bership and did not delegate such power to the party.

(F) Respondents, Judges in the Democratic pri­
mary, were not officers of the State of Texas, and 
their action in denying petitioner a vote was not State 
action.

III. The Democratic primary involved was not an elec­
tion of the people within the meaning of Sec. 31, Title 8 of 
the United States Code.

IV. The Fifteenth Amendment is a limitation only upon 
states, and the State did not deprive petitioner of his vote.



4

I .

The Fourteenth and Fifteenth Amendments to the Unit­
ed States Constitution are a limitation only upon the power 
of a state, and do not affect private individuals or private 
associations of individuals.

Section 1 of the Fourteenth Amendment reads as fol­
lows :

“ 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 de­
prive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.”

The Fifteenth Amendment reads as follows:

“ 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 condition of servitude.

“ Section 2. The Congress shall have power to en­
force this article by appropriate legislation.”

Both amendments have been construed by this Court to 
apply only to action by a State of the United States, in dis­
tinction from an action of a private individual or an associ­
ation of private individuals.



Slaughterhouse Cases, 16 Wall. 36; 83 U. S. 36.1

This proposition is admitted by petitioner. In paragraph 
I of his argument he states the only question before this 
Court is whether the invasion of this interest and this clas­
sification were the result of State action.

II.

The action of the Democratic Executive Committee in 
excluding the petitioner from voting at a Democratic pri­
mary was not an action of the State of Texas.

(A ) A political party has the inherent right to 
determine the qualifications of its own members.

We believe it is conceded by all parties that in the ab­
sence of any action by the State a political party has the 
inherent right to exclude from its membership any person 
or class of persons it may desire excluded. No one can 
question the right of men to organize a party of men and 
exclude women from its ranks; no one can question the 
right of women to organize a party of women and exclude 
men from its ranks; no one can question the right of a group 
of individuals to organize a political party with its member­
ship based upon stature, color of the hair or color of the 
skin. It seems to be conceded in petitioner’s brief that the 1

1 See also:
United States vs. Reese, et al., 92 U. S. 214, 128; United States vs. 

Cruikshank, et al., 92 U. S. 542; Strauder vs. West Virginia, 100 U. S. 303; 
Virginia vs. Rives, 100 U. S. 318; Ex Parte Virginia, 100 U. S. 339; Ex 
Parte Seibold, 100 U. S. 371; Neil vs. Delaware, 103 U. S. 370; United States 
vs. Harris, 106 U. S. 629, 641; Civil Rights Cases, 109 U. S. 3; Ex Parte 
Yarbrough, 110 U. S. 651, 664; Yick Wo vs. Hopkins, 118 U. S. 356, 365, 
370, 373; In re Kemmler, 136 U. S. 436, 438, 448; McPherson vs. Blacker, 
146 U. S. 1, 23-25; Gibson vs. Mississippi, 162 U. S. 565, 579; Carter vs. 
Texas, 177 U. S. 442; Wiley vs. Sinkler, 179 (fol. 30) U. S. 58, 65; Swaf­
ford vs. Templeton, 185 U. S. 487, 491; Giles vs. Harris, 189 U. S. 475, 
485; James vs. Bowman, 190 U. S. 127, 136; Hodges vs. United States, 
203 U. S. 1, 15, 19; Guinn vs. United States, 238 U. S. 347, 354; Meyers vs. 
Anderson, 238 U. S. 369; United States vs. Mosley, 238 U. S. 383; Buch­
anan vs. Warley, 245 U. S. 60; Love, et al., vs Griffith, et al., 266 U. S. 
33; Corrigan vs. Buckley, 271 U. S. 323, 330; Nixon vs. Herndon, 273 
U. S. 536, 540; Grigsby vs. Harris (D. C., S. D. Tex.), 27 F. (2d) 942.



6

Democratic party, prior to 1923 when Art. 3093-A (the 
Statute involved in Nixon v. Herndon) was passed by the 
Texas Legislature, had the right to exclude the negro from 
membership in that party.

The Texas Supreme Court has drawn a clear distinction 
between the State and a political party, and has defined a 
political party. 2 Waples vs. Marrast, 108 Tex. 5, 184 
S. W. 180.

(B ) The Statute enacted by the Texas Legisla­
ture in 1923, declared unconstitutional in Nixon v. 
Herndon, was void and did not operate to diminish 
the power already possessed by the Democratic Party 
to determine the qualifications of its own members.

In Nixon v. Herndon this Court held unconstitutional the 
Act of 1923, which will be referred to in this brief as the 
“ old statute and the present Article 3107 will be termed 
the “ new statute.”  Both articles are set out in full in pe­

2 “A political party is nothing more or less than a body of men 
associated for the purpose of furnishing and maintaining the preva­
lance of certain political principles or beliefs in the public policies of 
the government. As rivals for popular favor they strive at the 
general elections for the control of the agencies of the government 
as the means of providing a course for government in accord with 
their political principles and the administration of those agencies by 
their own adherents. According to the soundness of their principles 
and the wisdom of their policies they serve a great purpose in the 
life of a government. But the fact remains that the objects of 
political organizations are intimate to those who compose them. They 
do not concern the general public. They directly interest, both in 
their conduct and in their success, only so much of the public as are 
comprised in their membership, and then only as members of the 
particular organization. They perform no governmental agency. The 
purpose of their primary elections is merely to enable them to fur­
nish their nominees as candidates for the popular suffrage. In the 
interest of fair methods and a fair expression by their members of 
their preference in the selection of their nominees, the State may 
regulate such elections by proper laws, as it has done in our general 
primary law, and as it was competent for the legislature to do by a 
proper act of the character of the one here under review.”

See also: Koy vs. Schneider, 110 Tex. 369, 218 S. W. 480, 221 S. W. 880; 
Cunningham vs. McDermott, 277 S. W. 218; Winnett vs. Adams, 71 Neb. 
917, 99 N. W. 681; State vs. Kanawha County, 78 W. Va. 168. 88 S. E. 
662, 20 A. L. R. 1030; Stephenson vs. Board of Electors, 118 Mich. 396, 
76 N. W. 914, 42 L. R. A. 214; Phillips vs. Gallagher, 73 Minn. 528, 76 
N. W. 285; Kearns vs. Hawley, 188 Pa. 116, 41 A., 273, 42 L. R. A. 235; 
Grigsby vs. Harris, 27 Fed. (2d) 942.



7

titioner’s brief and will not be copied here. An act of the 
State Legislature, which is repugnant to the Constitution 
of the United States, is void and is never effective, and af­
fords no protection to a person acting thereunder. It is 
illegal and without force from its inception. By enacting 
the old statute the Texas Legislature attempted to inter­
fere in the management of the Democratic party regarding 
membership or non-membership of negroes. We submit, 
this attempt was never consummated, but failed from its 
inception because repugnant to the Fourteenth Amendment. 
If our reasoning is correct, it follows that the enaction of 
the old statute did not change or vary any right then held 
by the Democratic party to determine the qualifications of 
its members. As stated before it is apparently granted by 
petitioner that the right existed. How then could the pass­
age of an unconstitutional act change or prejudice a right 
then in existence!

In petitioner’s brief, on pages 21 to 26, inclusive, he ar­
gues that the State by the passage of the old statute took 
over the right theretofore had by the Democratic party to 
provide the qualifications of its members. In support of 
this statement he cites Briscoe v. Boyle, 286 S. W. 275, and 
emphasizes statements in that opinion to the effect that 
the Legislature has taken possession and control of the ma­
chinery of political parties so as to deprive the parties and 
their managers of all discretion in the manipulation of that 
machinery and quotes the Court as follows:

“ By excluding negroes from participating in party 
primary elections, and by legislating upon the subject 
of the character and degree of party fealty required 
of voters participating in such elections, the Legisla­
ture has assumed control of that subject to the exclu­
sion of party action.”

It is thus seen that in making this decision the Texas Court 
of Civil Appeals regarded the old Statute as being valid, and



8

based its decision to a large extent upon the existence of that 
old Statute. After the decision in Nixon v. Herndon, that 
basis vanished, and is now seen to have never existed. This 
decision falls when these facts are considered.

(C ) The subsequent action of the Texas Legisla­
ture in enacting Chapter 67 of the Laws of 1927 did 
not affect this inherent power, except to limit it in 
two particulars, namely: former political views or af­
filiations and membership or non-membership in or­
ganizations other than a political party.

Chapter 67 of the Laws of 1927 is the new Statute now 
under consideration, and was passed after the old Statute 
was declared unconstitutional in Nixon v. Herndon. We be­
lieve our previous argument and authorities establish the 
fact that the inherent power to exclude Petitioner in this 
case existed in the Democratic Party from its inception and 
was not affected or diminished by the passage of the old 
Statute. In spite of Petitioner’s theory that the Texas Leg­
islature had taken this power from the party, we find, upon 
analysis that such taking, if any, existed solely by virtue of 
the new Statute. A  reading of this Statute shows it to be 
a limitation placed upon the Party by the Legislature. This 
limitation prevents the Party, through its Executive Com­
mittee, from excluding any person,

“ because of former political views or affiliations, or 
because of membership or non-membership in organi­
zations other than political party.”

The Legislature has here limited the powers of the parties 
in these two particulars, and in these two particulars only.

The decision by the Texas Supreme Coui't in Love v. Wil­
cox, 28 S. W. (2d) 515, holds this limitation valid. Even if 
Love v. Wilcox be correct, nevertheless, the only limitation 
placed upon the party by this Act was in these two men­



9

tioned particulars. If we are correct in our belief that up 
until the time of the passage of the new Statute the inher­
ent power still remained in the Party, then this new Stat­
ute merely restricted the power in the two specifications. 
The restriction was held valid in Love v. Wilcox. The de­
cision in Love v. Wilcox is merely to the effect that this re­
striction has been made by the Legislature and is valid. The 
grounds of the decision in Love v. Wilcox, are limited by 
the words of the decision itself, wherein the Court says: 

“ We are not called upon to determine whether a po­
litical party has power, beyond statutory control, to 
prescribe what persons shall participate as voters or 
candidates in its conventions or primaries. We have 
no such state of facts before us. The respondents claim 
that the State Committee has this power by virtue of 
its general authority to manage the affairs of the par­
ty. The statute, article 3107, Complete Tex. St. 1928 
(Vernon’s Ann. Civ. St. art. 3107), recognizes this gen- 
tral authority of the State Committee, but places a 
limitation on the discretionary power which may be 
conferred on that committee by the party by declaring 
that, though the party through its State Executive 
Committee, shall have the power to prescribe the qual­
ifications of its own members, and to determine who 
shall be qualified to vote and otherwise participate, 
yet the committee shall not exclude anyone from par­
ticipation in the party primaries because of former po­
litical views or affiliations, or because of membership 
or nonmembership in organizations other than the po­
litical party.”

In the express language of the decision, the Court con­
strues Article 3107 as a limitation and not a grant of power. 
It follows that if the effect of Article 3107 was merely to 
limit the power already had by the Democratic Party, and 
such Statute did not take away the right of the Party to ex­
clude Petitioner because of his color; then, this right to ex­
clude Petitioner because of his color rests in the Party, 
where it has always rested and where it is now undisturbed 
by the State of Texas.



10

We may here call attention to the fact that the previous 
decision of this court in Nixon v. Herndon does not control 
the decision of this case. In Nixon v. Herndon this court 
held that the Legislature of Texas may not pass an act ex­
cluding the negro from the primary of the Democratic 
party. Had the legislature attempted by statute to ex­
clude the negro from the Masonic Lodge, the Baptist 
Church, or any organization having no connection with po­
litical parties, such an act would have been in violation of 
the Fourteenth Amendment and void. Therefore, an en­
tirely new situation is here presented, not controlled by 
Nixon v. Herndon. The very fact which appeared of 
record as true in Nixon v. Herndon—that the State of 
Texas had itself excluded the negro—is here the question 
before the court.

(D ) By enacting Chap. 67 of the Laws of 1927  
the Texas Legislature merely withdrew the State from 
an attempted unlawful interference with the right of 
the Democratic party to determine the qualifications 
of its members.

(E ) The Legislature by enacting Chap. 67 of the 
Laws of 1927 recognized a power which had long 
existed in the Democratic party to determine its mem­
bership and did not delegate such power to the party.

In petitioner’s brief, he states that the Legislature could 
not recognize the inherent power, because no inherent power 
was in existence after the State had exercised sovereignty 
over the right. We have just shown that the State had not 
exercised its sovereignty, but had merely attempted to do 
so. Petitioner follows with the statement that whether this 
be regarded as the creation of a new power or the recogni­
tion and restoration of an old one, the existence of the power 
itself would be necessarily and wholly dependent upon the 
force of the statute and hence would be a statutory power,



11

not an inherent one. We find therein no authorities to sup­
port this . remarkable statement. We do not conceive it 
possible that because the State enacts a void law, one be­
yond its power to enact, it cannot then withdraw from the 
field which it attempted to usurp and leave that field in the 
condition in which it previously existed. If petitioner is 
correct in this reasoning, then every law repealed by the 
State has the effect of being a grant of power by the State. 
The citizens relieved of burdens by the repeal owe the right 
to transact their affairs in the same fashion as before to 
a statutory power. As an example, should the State enact 
a law requiring the directors of all corporations in the 
State to hold their meetings in the State Capitol, the repeal 
of that law by the State, is a grant of power by the State 
to the directors. If petitioner is correct in his statement, 
then every meeting held after the repeal of the law is deriv­
ed from force of the statute and a statutory meeting.

Petitioner further argues that because the Texas statutes 
regarding the conduct of primary elections recognize in the 
Executive Committee the right to perform certain functions 
which the party has always performed, it is an expression 
of legislative intention which turns a private affair into 
a State affair. Petitioner contends that recognition by the 
Legislature of the power of the Democratic party to deter­
mine its own membership deprives the party of that right. 
I f this be true, then all that is needed to turn every church 
in the State of Texas into an agency of the State is for the 
Legislature to pass an act stating that each church may 
make such requirements as it sees fit for membership in 
that church. The enactment of such a statute would pre­
vent a church congregation, a lodge, or any other group 
from excluding the negro. Every action of that church 
or lodge would be State action—if petitioner is correct.

Every court which has passed upon the statute in ques­



tion has construed it to be a withdrawal by the State and 
a recognition of the party’s rights by the State.

Nixon v. Condon, 34 Fed. (2d) 464, 49 Fed. (2d) 1012, 
Love v. Wilcox, 28 S. W. (2d) 515,
White v. Lubbock, 30 S. W. (2d) 72,
Grigsby v. Harris, 27 Fed. (2d) 972.

We refer the Court particularly to the opinion of Judge 
Hutcheson in Grigsby v. Harris.

Petitioner devotes considerable argument to the effect 
that the emergency clause attached to the new statute shows 
of itself the intent by the Legislature to deprive petitioner 
of membership in the Democratic party by legislation. Aside 
from the fact that in this day of crowded legislative hop­
pers, every bill introduced in the Texas Legislature has a 
similar emergency clause attached, the language of the bill 
shows no intent to achieve such result. The previous ac­
tion of the legislature in passing an unconstutional act, 
unlawfully invading the right of the Democratic party to 
manage its affairs, created a public necessity that the State 
withdraw its unlawful interference. It is only reasonable 
for any state to regard the removal of unconstitutional leg­
islation as an emergency. This Court has previously look­
ed at the language of a statute itself to determine its va­
lidity, and disregarded the fact that an additional result 
may be accomplished. In United States v. Doremus, 249 
U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493, this Court said, “ An 
act may not be declared unconstitutional because its effect 
may be to accomplish a purpose in addition to tax.”  In 
the Doremus case, the Court analyzed the statute, and held 
that the statute did not show on its face any unconstitu­
tional regulation. The statute now under consideration 
certainly shows on its face no purpose by the State to ex­
clude the negro.

A  study of cases adduced by petitioner shows that in



13

Yick Wo v. Hopkins, 118 U. S. 356, and in every case cited 
by him in connection therewith, no question was raised that 
anyone but the public authorities was applying the statute. 
The effect of Yick Wo v. Hopkins is limited by the opinion 
to application of laws by the public authorities charged 
with their administration. In Standard Scales Company v. 
Farrell, 249 U. S. 577, an Inspector of Weights and Meas­
ure, clearly a State Officer, was involved. Home Tele­
phone & Telegraph Company v. Los Angeles, 227 U. S. 278, 
involved the order of a municipal commission exercising 
power as an instrumentality of the State.

In the Child Labor Tax case, 259 U. S. 20, this Court 
examined the statute in question and held, “ The purpose 
to regulate child labor follows from enforcement of the 
statute itself, is apparent and is not dependent upon the 
acts of individuals.”  It was not necessary to show any 
facts in addition to the language of the statute itself to show 
the purpose. Petitioner is now trying to make that decis­
ion apply to a statute that does not show on its face any 
unlawful purpose. We believe the decision in the Doremus 
case disposes of his contention.

In order to sustain petitioner’s theory it is necessary to 
presume that the State intended to exceed its authority, 
to presume that the State delegated to the Committee pow­
ers which it already possessed, to presume that the Com­
mittee was an agent of the State, without which presump­
tions, petitioner’s theory cannot be sustained. On the con­
trary, withdrawal of interference by the State leaves the 
power in the original resting place, the Democratic party.

(F ) Respondents, Judges in the Democratic pri­
mary, were not officers of the State of Texas, and 
their action in denying petitioner a vote was not State 
action.



14

Our preceding argument applies with equal force to this 
statement. The record shows that the judges are not paid 
by the State, but by the party; are not selected by the 
State, but by the party. It is true that their duties are 
regulated in many details by the statutes. However, regu­
lation to insure fair primaries does not necessarily mean 
that the party officers become State officers. Texas, in 
common with many other States, has proscribed many and 
detailed regulations for the conduct of private corpora­
tions. The State has limited the purposes for which cor­
porations may be organized, has required a charter from 
the State, has placed a minimum upon the number of incor­
porators, has declared that fifty per cent of the capital stock 
must be paid in cash, and all the stock subscribed; has pro­
vided that married women may become stockholders free 
from the usual disabilities of coverture; has prescribed cer­
tain powers; has provided for the election of officers; has 
prescribed the powers of directors; has required a record 
to be kept of all stock; has required the payment of divi­
dends in certain cases; has regulated the voting by stock­
holders; has prohibited a corporation from contributing 
funds to the election or defeat of any political candidate, 
any political campaign, or any question to be decided by 
the voters; has limited the issuance of stock; has directed 
the principal office to be in Texas; has limited the purchase 
of lands; has provided for examination of the corporate 
books by the Attorney General; has provided for dissolu­
tion ; and has enacted laws limiting the conduct of corpora­
tions in infinite detail. Yet no one seriously contends that 
a private corporation is the agent of the State. No one 
claims that the corporate officers are officers of the State. 
Mere regulation does not create an adoption by the State. 
If petitioner is correct in declaring that the Legislature has 
made the Democratic Executive Committee and the pri­
mary judges officers of the State, then it has made every 
corporate officer an officer of the State. He contends that



15

the selection and terms of the members of the Executive 
Committee is regulated by the State. If this regulation 
results in the creation of State officers, then so does the 
regulation of corporations create State officers.

Petitioner states in several places that the Texas pri­
mary laws apply only to the Democratic party. He is mis­
taken in this assertion. (Page 36, Petitioner’s Points). 
Art. 3101 applies the primary laws to all parties which cast 
more than 100,000 votes at the last election. In 1924, the 
Republican Candidate Butte polled 294,970 votes against 
the Democrat Ferguson’s 422,558. In 1928, Republican 
Presidential electors were elected by Texas, and Holmes, 
the Republican candidate for Governor received 120,504 
votes. 3 It thus appears that petitioner is misaken in his 
various statements to the effect that this Statute applies 
and has always applied only to the Democratic party. His 
argument regarding the legislative intent loses considera­
ble force when the correct facts are known.

III.

The Democratic primary involved was not an election 
of the people within the meaning of Sec. 31, Title 8 of the 
United States Code.

Petitioner claims as ground for jurisdiction that the case 
arises under Sec. 31, Title 8, U. S. C. A. This section was 
passed by Congress on May 31, 1870, and states that “ all 
citizens of the United States, who are otherwise qualified 
by law to vote at any election by the people in any state, 
etc., shall be entitled and allowed to vote * * * . ”  Appar­
ently this Section is based upon the Fifteenth Amendment 
and shows Congressional intent as to the meaning of the 
Fifteenth Amendment, the amendment and the statute

3 1926 Texas Almanac, p. 19. 1931 Texas Almanac, p. 260.



16

being passed at almost the same time. We thus see the 
Congressional intent regarding the vote contemplated by 
the Firteenth Amendment. By statute Congress has limit­
ed this right to vote to an election of the people. A  party 
nomination is not an election of the people, but is merely 
the choosing of a candidate by that party, and conquently 
petitioner fails to show jurisdiction under this section or 
to state any cause of action against respondents under the 
statute.

IV.

The Fifteenth Amendment is a limitation only upon 
states, and the State did not deprive petitioner of his vote.

We have heretofore presented our contention that the 
Fourteenth Amendment is a limitation only upon the power 
of a state, and that no state action is involved in this case. 
The Fifteenth Amendment is likewise limited to action by 
a state. The same rules of construction apply and the same 
arguments that we advanced in discussing the Fourteenth 
Amendment apply with equal force to the Fifteenth Amend­
ment. We shall not repeat or recount these arguments

Petitioner claims his right to vote was abridged even if 
not denied. Unless this right was abridged by the State 
petitioner has stated no cause of action.

We submit that the foregoing argument shows that no 
action of the State denied or abridged petitioner’s right 
to vote.

CONCLUSION.

We may summarize our argument briefly to the effect 
that the issue in this case is whether or not action by the 
State is involved. We have shown that the Democratic 
party has always possessed power to do the thing complain­



17

ed of by petitioner. That the State’s attempted interfer­
ence was unconstitutional and void, leaving this power 
where it had always been. The statute in question did not 
consist of a grant of any new power, but was either a limita­
tion in regard to two particulars upon the power of the 
committee, a withdrawal by the State from an unauthorized 
field of activity, or a recognition of power in the committee 
which already existed. In either event the committee did 
not rely upon the State for its power exercised in this case. 
We do not deign to answer the threat in petitioner’s con­
clusion that the disenfranchised are fruitful soil for com­
munist propaganda, as we do not think this Court will be 
influenced by such statements.

It is respectfully submitted that the judgment appealed 
from should be affirmed.

THORNTON HARDIE,
BEN R. HOWELL,

Counsel for Respondents.